Conference- R v Parlour-theft and bail-detailed plan PDF

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Summary

This assignment details how to give advice during a conference with a client regarding bail and theft offences- the introduction, type of word choices, plea, sentencing and conclusion....

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Preparation as a barrister Read the Brief in R v Parlour, research and consider any law and procedure that you need to and analyse the evidence. Consider your preliminary view on plea, venue, sentence, and chances of success at trial. Prepare a conference plan that will help you to question the client, take full instructions on the evidence and to give appropriate and accurate advice. Refer back to the Notes/Plans in R v Barker and R v Pepper and other supporting documents posted on Moodle throughout the Conference Skills module as part of your preparation for this final formal feedback session. Bail You will read that your client is likely to raise a bail query. There are only so many questions a client is likely to have about bail in a straightforward situation. By now learning on the course will indicate that these might include one or more of the client: • asking for an explanation of a condition • asking to be reminded of what the conditions are • telling you that a condition has been and/or is about to be breached • asking whether a certain course of action would be a breach of a condition or of bail • telling you there is a problem of some sort with a condition • wanting you to ask the court to lift or vary a condition or replace a condition with another: make an application to vary the condition • telling you there is a problem with attendance at court: • If the court accepts there is a good reason for defendant’s absence: adjournment, with defendant remanded on bail as before. • If the Defendant claims to be unfit to attend court, a medical certificate to that effect should be produced. INTRODUCTION 1. Good Morning Ms Parlour, I am Monica Green and I will be representing you at your plea before venue hearing at the Highwood Corner Magistrates’ Court at 10.00 am on 25 January 2021. The purpose of today’s meeting is for me to prepare you for the upcoming plea before venue and to ask you a few questions regarding the charge against you. Lastly, I will advise you on the likely sentencing. Please feel free to ask me any questions at any stage you are unclear about something. 2. Ms Parlour, have you seen and read the case papers? 3. Having read your case papers, I understand that you have been charged with one count of theft of a wallet and contents belonging to Gina Trent. On 26 December 2020, police constable Barry visited you at 15 Kenlow Street, asked you a few questions and arrested you on suspicion of theft of a wallet and contents belonging to Gina Trent. 4. You were subsequently given conditional bail at Highbury Corner Magistrates’ Court on 30 December 2020. 5. Later, I will be asking you a few questions about your charge. After I’ve gained the full picture, I would be in a better position to give you my analysis of the strength and weaknesses of the prosecution case, and my view on which plea will put you in the best position. 6. After that, I will take instructions from you as to the plea. Please be rest assured that ultimately it is for you to decide whether to plead guilty or not guilty.

7. Before we turn to the issue of plea, I understand Ms Parlour, that you have some queries regarding your bail conditions. I will seek to address your queries now before we turn to the issue of plea and sentencing. What is your bail concern? Ms Parlour was given conditional bail, namely not to contact any prosecution witness directly or indirectly AND that she does not go to any part of the street, Kenlow Street, Upper Holloway. It is important not to breach the bail conditions. Even though breaching a bail condition is not an offence, there is a power of arrest allowing officers to arrest those either who are in breach, or who are about to be so. After the defendant has been arrested for breach of bail, they must be brought before a magistrate within 24 hours (excluding Sundays). The magistrate has to consider two questions: 1. Is the defendant likely to abscond or breach a bail condition, or has the defendant already broken a condition? If ‘yes’: 2. Should the defendant be granted bail and, if so, on what conditions? If there has been a breach of the bail condition, and you are asking the court for variation of a condition (to avoid further future breaches) disclosure to the court is sometimes necessary and advisable. This requires careful explanation for the client. Such disclosure also requires the client’s authorisation. OR issue with attendance on hearing date Burden of proof on is on you, the defendant to show that you had “reasonable cause” not to surrender/ attend. - in your case, since you have an interview, you may seek to vacate the trial date If you fail to attend court: - Trial in absence of defendant (BCP D7.98). - Bench warrant for defendant’s arrest (BCP D7.98). - failure to surrender will appear on your record and affect chances of bail in the future. Now, Ms Parlour I will be asking you questions on your whereabouts on 25 November.

CASE, EVIDENCE AND PLEA Questions Identity • Ms Parlour, where do you live? • Who do you live with? • What is your relationship with Rosemary Warner or Roo as she’s known otherwise? • Do you know any of the other tenants in the building? • Have you had any interactions with the other tenants? • What is the relationship between Roo and the other tenants? • Where were you on 25 November 2020?

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Could you please describe what you were wearing that day? Does your dark brown leather jacket have pockets? What time did you leave the flat? What were you doing around 12 noon that day? What did you see in the communal hallway when you left your apartment? Could you please describe what you saw outside Ms Gina Trent’s flat? What did you do when you saw the items? Where did you go to after? Did you see anyone behind you?

I will now turn to advising you regarding the strengths and weaknesses of the prosecution’s case. Theft Act 1968 s22(1)

There are five elements of theft that the Prosecution must prove. The Prosecution must prove that Ms Parlour: (Section 1 of the Theft Act 1968 provides the ‘basic definition of theft’. There are five elements which need to be proved) • Appropriated : any assumption by a person of the rights of an owner • Property: includes money and all other property, real or personal, including things in action and other intangible property.’ • Belonging to another • Dishonestly: Two limbs: Ghosh test 1. was what D did dishonest according to the standards of reasonable and ordinary people? (objective) AND; 2. did D realise that reasonable and honest people regard what he did as dishonest? Or did the D appreciate this? (subjective) However, the case of Ivey criticized Ghosh’s second subjective limb. “Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective.” •

Intended to permanently deprive

Analysis of prosecution case Prosecution case strength: The prosecution’s witness, Robert Cowell saw a woman with dark brown leather jacket and dark blue jeans putting her right hand inside Gina’s handbag which was sitting outside of a wheelie suitcase. This matches the exact description of the clothes of what you were wearing on 25 November 2020, the day of the incident.

Mr Cowell also saw the woman taking out a wallet and putting it into her jacket pocket and rushed out to the front door. You also do admit being in the hallway around the time Robert Cowell says. Prosecution case weaknesses: However, from where Mr Cowell was standing, he could only see the back of the woman. He could not see the face of the woman. By the time Mr Cowell ran to the street, he could not find the woman thus he could not put a face to the woman he saw. From this analysis, the prosecution case is strong, there is a low chance of being acquitted. Advice & Instructions It is completely your decision whether or not you choose to plead guilty or not guilty. If you choose to plead not guilty but you in fact are guilty, I cannot positively mislead the court about your guilt. I cannot - suggest to the prosecution witness that you did not commit the crime; - suggest that someone else committed the crime; - call you or witnesses to show that you did not commit the crime; - put forward an alibi on behalf of you. So, Ms Parlour, how do you wish to plead? 1. In order to take active part in the class would you then please prepare to give your advice on plea - all 4 stages. • Make clear bulleted notes to help you as you give that advice. Assume her instructions remain as they are on paper. • For stage 2 of the advice on plea prepare to explain for her only the following aspects of the case o Burden and standard and elements of the offence o Adverse inferences s 34 o Good character Adverse inferences 3:55 mins Analyse this case with reference to s34 PACE 1984 – do not give rote advice about anything. Consider your instructions carefully. Do you think adverse inferences will be a feature of a trial in this case? Advice on adverse inferences: Referring back to your record of interview at the Hornsey Road Police Station, you made no comment on all questions after you were asked about the wallet. Now, Ms Parlour this may be an issue.

According to section 34 of the Criminal Justice and Public Order Act (CJPOA) 1994, an adverse inference could be drawn if a suspect is silent when questioned under caution prior to charge and subsequently relies upon a relevant fact at Court, which he or she could reasonably have been expected to mention when questioned. However, in your interview, you said you didn’t do it. It is unlikely for an adverse inference to be drawn in your case. 14:19 mins If you are unsure what an adverse inference means, it simply means a common sense conclusion that is adverse to the interests of a party in proceedings.

Character 19:23 I have been informed by my instructing solicitors that, you are of good character. Good character will usually be evidenced by the defence adducing the fact that the defendant has no previous convictions. Ms Parlour, this can form part of your personal mitigation for a reduced sentence. Parlour has no previous convictions (unless this changes in conference) and will benefit from a good character direction. It seems that all witnesses in this case are of good character. It’s is not a complete defence but it is something the court will take into your account in your favour. VENUE & SENTENCE We have reached the plea before venue stage of the proceedings. After you have pleaded not guilty, an allocation hearing will take place and you will have to elect whether you would like to be tried in the Magistrates or Crown Court. If you do elect to be tried in the Magistrates Court, there is a possibility that the Magistrates court might commit you to the Crown Court for sentencing if they consider their sentencing power to be inadequate. Venue – preparation/legal research The offence is triable either way. This means that at the next hearing Ms Parlour will have to indicate to the Magistrates what her plea will be. If Not Guilty, then a choice, Allocation what used to be called Mode of Trial, must be made about where she will be tried – the Crown Court or Magistrates’ Court – . Only if the Magistrates agree that the case is suitable for summary trial AND Ms Parlour consents to summary trial can the case be tried by the Magistrates (summarily). The Magistrates must follow the Allocation Guideline [BCP D6.14 & BCP Supp SG-1-1] in general, either way offences should be tried summarily unless the

outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court. If Ms Parlour wishes to be tried by a jury, he can elect Crown Court trial (even if the Magistrates accept jurisdiction). If Parlour indicates a not guilty plea, and the Magistrates accept jurisdiction and Parlour is convicted following trial in the Magistrates’ Court, the Magistrates can still commit his case to the Crown Court for sentence. If Ms Parlour indicates a guilty plea, he can be sentenced by the Magistrates or committed to the Crown Court for sentence: s3 PCC(S)A 2000.

Sentencing Ms Parlour, before I move on to advising you on the likely sentencing, I would like to ask you a few questions. -

Do you have any previous convictions? Have you been convicted for theft in the past? Are you employed? Do you have any dependants? Do you receive any redundancy pay?

Reduction in sentence for a guilty plea - It is usual for the court to apply a reduction in sentence when the Defendant indicates a guilty plea. In deciding how great that reduction will be, the court will consider the stage that the proceedings have reached at the time of indicating the guilty pleas as well as the circumstances in which the indication was given. Obviously, the earlier the plea is indicated the more likely it is that the full one third reduction will be applied [BCP Supp SG4-1 et seq.]. Credit for the guilty plea can be reduced from the maximum one third reduction where the plea was not indicated at the ‘first stage of proceedings’. In this case that would be the PTPH – ‘where an indication of plea is sought and recorded by the court’. You might have told Barker about possible reduction for guilty plea, carefully and without exerting pressure, when dealing with plea. You will need to question Ms Parlour about any aggravating and/or mitigating factors before advising on likely sentence. Questions - Personal/Mitigation • Housing • Work/prospects • Money • Relationships and family • Health

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Previous Convictions – did he find community sentence useful/completed successfully? Prison sentence - effect?

Given that the value of stolen items: wallet cost £45, £70 cash (notes and some coins), 2 credit cards, one debit card, one gym membership card, a book of stamps, a driving licence, an RSPB membership card, a Friends of the Royal Opera House card, a Robert Dyas gift card (with around £50.00 credit on it), and a Health Insurance card (E111) Advice & Instructions • Likely sentence: Category 3 Harm, Category C Culpability • Range is Band B fine to Low level community order, starting point is Band C Fine Fine Band B 100% of relevant weekly income 75 – 125% of relevant weekly income Fine Band C 150% of relevant weekly income 125 – 175% of relevant weekly income •

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Court is likely to apply the starting point of Band C fine, since there seems to be no other aggravating factors o No previous conviction – strong mitigating factor o Other mitigation o Good pre-sentence report o Court will take into account Victim Personal Statements o May well receive a community sentence Of course if plead guilty, credit will be given. If he had been remanded in custody, credit will be given for time spent in custody....