Workshop 15 PDF

Preview

Summary

Workshop 15...

Description

DISPUTE RESOLUTION (KNOWLEDGE) Unit 15 Guide Case Analysis, Evidence and Professional Ethics

Context As a criminal practitioner representing the prosecution or the defence you will need to be familiar with the rules of evidence that apply in criminal proceedings. This will enable you to analyse the strengths and weaknesses of both your own and your opponent’s case. This Unit looks at one of the most important evidential issues likely to arise in criminal proceedings, namely applications to adduce the bad character of the defendant under s101(1)(d) of the Criminal Justice Act 2003. All prosecuting bodies (like the Crown Prosecution Service, the Department for Business Innovation & Skills and the Health and Safety Executive) make such applications on a regular basis and it is important to appreciate the significance of these applications for the defence when representing a client on a not guilty plea. Unlike in civil proceedings, the general rule is that hearsay evidence is not admissible at a criminal trial. In this Unit you will consider an exception to that general rule by considering the admissibility of confession evidence. You will need to be able to identify whether what an accused says amounts to a confession and if so, whether it is prima facie admissible and how such admissibility may be challenged. Another exception to the hearsay rule relates to documentary hearsay (absent witnesses and business documents). You will be considering these provisions in your preparation for and consolidation of the Unit and will develop your understanding further in Unit 16. Outcomes By the end of this Unit you should be able to: 1.

Carry out effective case analysis. Prep Task

2.

Identify some evidential requirements relating to the admissibility of bad character evidence in respect of a defendant. Task 1

3.

Explain the rules on admissibility of hearsay evidence in respect of documentary hearsay and confession evidence. Task 2

4.

Respond appropriately to a professional ethics issue. Task 3

890ec67f12ae46b19f0f220ee4305bb5.docx

281

© The University of Law Limited

Unit Workshop Tasks In this Unit Workshop you will complete tasks on: 1.

Analysing a case to identify evidential issues arising and developing your understanding of burdens and standards of proof.

2.

Identification of the evidential and procedural requirements in relation to the admissibility of hearsay evidence and bad character evidence in the context of a prosecution for an offence of assault contrary to s.47 Offences Against the Person Act 1861.

3.

Responding appropriately to a professional ethics issue.

Preparation To prepare for this Unit Workshop you should: 1.

Read the following parts of your Criminal Litigation textbook:  Chapter 16.2  Chapter 19.1 to and including 19.5.1.3  Chapter 19.5.5 to and including 19.8  Chapter 19.10.1 to and including 19.10.3  Chapter 20.1 to and including 20.5  Chapter 20.8  Chapter 22.1 to and including 22.4.1 (excluding 22.2.2)  Chapter 22.4.5  Chapter 22.4.9 to and including 22.4.11  Chapter 22.9.1 and 22.9.3

2.

Complete the Unit Workshop Preparatory Task attached to this Unit Guide.

3.

Read Paragraphs 6, 8, 9, 11 and 12, and Annexes G and H of Code C of the Codes of Practice to the Police and Criminal Evidence Act 1984. You will need to undertake some research to find these provisions. Ensure that you access the most recent version. At the time of preparing these materials (March 2019) the most recent version was published in July 2018.

4.

Complete the Test and Feedback for Unit 15 (Preparation). Please note that the topic of documentary hearsay under ss.116 and 117 Criminal Justice Act 2003 will not be addressed in this Unit. The topics are examinable and it is essential that you check your understanding by completion of the Test and Feedback exercises. Do not attempt any of the Unit Workshop Tasks on pages 20-21 of this Guide.

© The University of Law Limited

282

890ec67f12ae46b19f0f220ee4305bb5.docx

Materials required for the Unit Workshop 1.

The notes you have made (in either electronic or hard copy) from your reading including the relevant provisions of Code C outlined above.

2.

Your answer to the Unit Workshop Preparatory Task.

3.

Your Criminal Litigation textbook.

4.

The SRA Code of Conduct.

5.

This Unit Guide.

Consolidation It is important that you consolidate your learning. In particular you should: 1.

Revise your answers to all the Tasks in light of the feedback you received in the Unit Workshop.

2.

Complete the Test and Feedback for Unit 15 (Consolidation). Please note that, although the topic of documentary hearsay (absent witnesses and business documents) under ss.116 and 117 Criminal Justice Act 2003 was not addressed in this Unit, the topic is examinable and it is essential that you check your understanding by completion of the Test and Feedback exercises. You will also revisit s.116 in Unit 16.

890ec67f12ae46b19f0f220ee4305bb5.docx

283

© The University of Law Limited

This page is intentionally blank.

© The University of Law Limited

284

890ec67f12ae46b19f0f220ee4305bb5.docx

PREPARATORY TASK Instructions You are a solicitor specialising in criminal litigation, working for Schwartzel Solicitors in Cheltenham. You have been instructed by Nathan Duggan who has been charged with an offence of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861. Read the Nathan Duggan case study on pages 6 to 19 of this Guide. Using Documents A to G of the case study undertake the following case analysis: (a) What must the prosecution prove if Nathan Duggan is to be convicted? Nathan Duggan on 11th December at Kings Head Public House hit Darren Piat with a single blow causing actual bodily harm. Actual bodily harm being split lip. (b) What evidence do the prosecution have to prove each element of the offence? -

-

Identification is not an issue as Nathan agree it was him and agreed that he hit the victim. Medical evidence. Injury sustain look at the level of actual bodily harm. Nathan Duggan said it was clear that the lip was bleeding and washed up before going home. The doctor can provide medical evidence as well The witnesses The dispute appears to be that Nathan Duggan is saying he only hit as self defence. However, we have enough evidence here to section 47. Previous convictions – which go against him and also the transcript of the interview also evidence the police has. (c) What is Nathan Duggan’s defence? Defendant is not denying his action but his defence that acted in this way as Self defence (a common law defence) Darren Piat attempted to hit me and his single hit was reasonable and proportional to the danger he saw. (d) What evidence supports his defence? He does not have a legal burden. (rare in criminal law – in practice possibly seen in certain cases) They will have to reverse the defence but it does not include proving it. Selfdefence can be used as evidential burden. If Nathan put evidence forward than crown will have to disprove that evidence. Crown will have to disprove that case without reasonable doubt. In order to discharge evidential burden Nathan Duggan should give evidence himself in order to discharge his evidential burden.

890ec67f12ae46b19f0f220ee4305bb5.docx

285

© The University of Law Limited

He will need to show how Mr Piat had attempted to hit him and how he defended himself. Your answer should include an explanation of how the legal and evidential burdens will operate in this case. You must arrive at the Unit Workshop with a completed case analysis.

© The University of Law Limited

286

890ec67f12ae46b19f0f220ee4305bb5.docx

DOCUMENT A STATEMENT TAKEN BY DEFENCE SOLICITOR (for client file) Nathan Duggan of 4 Grape Lane, Cheltenham, Gloucestershire, GL49 8GF will say as follows: I am charged with an offence of ABH (assault occasioning actual bodily harm) on a man in a public house near my home. I intend to plead not guilty. At approximately 2.00 p.m. on Sunday, 11 December I was in the King’s Head public house in Cheltenham. I am a regular customer there as I live a few minutes walk away. I was alone at the time. I had gone in for a drink and to watch a live Premier League football match. I’d only had 2 pints that afternoon and would describe myself as sober at the time of the incident. I remember in particular one noisy group of men drinking and watching the game. One of this group, who I now know to be the complainant, Darren Piart, seemed to have had more to drink than the rest and I remember that he was the loudest of his group. On one occasion he’d walked past me to the toilet and knocked my table, spilling my pint. I remember I told him to watch what he was doing but I’m not even sure he heard me or was even aware what he’d done. This would have been about 4.00 p.m. His friends all left at about 5.00 p.m. but I remember he stayed on at the bar and was chatting up this new bar maid. Although I wasn’t paying much attention, I’m sure at one stage I saw him kiss her and she didn’t seem to object. By the time he left at about 5.30 p.m. the bar was fairly empty. Even though the bar was empty he again managed to stumble into my table on the way out. It seemed to me that he did this deliberately, trying to provoke me to do something. He didn’t spill my drink this time as I grabbed hold of it as he went past. I said something like “Watch out!” and I admit I called him something like a “clumsy wanker”. He lashed out and started throwing punches at me but fortunately I saw them coming and even though I was sat down at the table facing him I managed to duck and he missed. Everything then happened really quickly but it was obvious he was going to try and punch me again as he had his fists raised and was moving towards me. I threw one punch at his face and to my surprise he went down. I must have hit him on his mouth because I remember there was quite a bit of blood coming from his top lip. As I threw the punch I was getting up to defend myself but he seemed to have had enough when he saw me standing over him. I can’t remember what I said to him but I admit I was a bit pumped up at that point. He then got up and left the pub, but he did say something along the lines that I hadn’t heard the end of it. I then decided to leave as I was worried he might come back with some of his mates. I went to the toilet first as there was a bit of blood on my hands and on the front of my shirt so I washed this off before leaving. I then went home. I was just starting to make some tea when the police turned up. I was arrested and taken to the police station. I arrived at the police station at about 7.00 p.m. and saw the custody officer, who told me I would be detained for questioning. I was handed notices about my rights and I was asked if I wanted to see a solicitor. I said I did not because I thought it would be sorted out quickly.

890ec67f12ae46b19f0f220ee4305bb5.docx

287

© The University of Law Limited

I was put in a cell and left for what seemed to be ages. Then I was interviewed. I was feeling pretty tired and hungry by this time as I’d had nothing to eat all day. Apparently I had missed the evening mealtime at the police station, so I was not offered any food. I was pretty pissed off when they took me out to be interviewed. I remember telling the interviewing officer before the interview started that I wanted to see a solicitor since I’d been kept waiting so long. He said that was my right but it would delay things even further if I wanted one. I decided not to pursue this in the hope that I’d be out soon. I think I also asked for legal advice during the interview when they made it clear that they didn’t believe I’d acted in self-defence. During the interview I began to feel unwell. I eventually said what the policeman wanted to hear so that I could leave. It was obvious I wasn’t going to get out until I did. I am diabetic (Type 2) but I did not want to disclose this. I have been diagnosed with diabetes for about a year. I do not require insulin but I do need to eat regularly. If my employer was aware of this I would lose my job. I am 35 years old and live on my own. I work as a technician in the oil and gas industry. My work involves travelling by helicopter out to mainly foreign owned oilrigs in the North Sea. I work shift patterns, normally 14 days on and 14 days off. I feel very upset about this criminal charge and am worried about what is going to happen to me. I’ve been in trouble in the past. Most recently, at the start of last year, for causing grievous bodily harm (“GBH”). I got 6 months imprisonment at the Crown Court. Other than that I have another conviction for smashing a window, one for stealing and then one a long time ago when I was a kid for threatening a bouncer at a night club. This was after he refused me entry because he claimed I was too young and too drunk.

Signed:

Nathan Duggan

Dated:

16 December 20__

© The University of Law Limited

288

890ec67f12ae46b19f0f220ee4305bb5.docx

DOCUMENT B GLOUCESTERSHIRE POLICE (Criminal Procedure Rules, r. 16.2; Criminal Justice Act 1967, s.9)

Station or Section: Cheltenham

Division: G

Statement of DARREN PIART (in full - Block letters) Date and place of birth: Over 18

Date:11 December 20__

Occupation:

Factory worker

This statement (consisting of 1 page signed by me) is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.

Dated: 11 December 20__

Signed:

Darren

Piart I spent the afternoon on 11 December 20__ watching the football on the television in the King’s Head public house. My friends had already left and I was the last to leave. I think I had between 4 and 5 bottles of lager during the afternoon. I would describe myself as merry but not drunk. At about 5.30 p.m, I was walking out of the pub. The bar was almost empty by then. As I was leaving I tripped and accidentally stumbled into a table. The only other person in the bar was sat at the table and he took exception to this. He seemed to think I’d done it on purpose and called me a few choice things. I told him to calm down and the next thing I remember was sitting on the floor with my head ringing. He’d obviously punched me, but it happened so quickly I hadn’t even seen it coming. I then remember my lip pouring with blood. He stood over me and I thought I was in for a right kicking. He said something like I could have some more from where that came from. He then left the pub. There was a young barmaid in the pub who helped me to get up. My lip wouldn’t stop bleeding and it felt in a bad way so I went straight to Accident and Emergency at the District Hospital. I saw a doctor who stopped the bleeding and put 4 stitches in. She then gave me some pain killers to take. Someone at the hospital called the police when I told them what had happened. I would describe the person who attacked me as over 6 foot and powerfully built. He had short dark hair but I can’t remember what clothes he was wearing or any other facial features. I’m not sure I’d recognise him again because I didn’t get much of a look at him. Nobody had permission to assault me and I would like to make a complaint against this person. As a result of the attack my top lip is sore and swollen and it is causing me a lot of discomfort and pain.

D. Piart 1057 Farrell Signature:

890ec67f12ae46b19f0f220ee4305bb5.docx

Signature

289

witnessed

by:

PC

© The University of Law Limited

© The University of Law Limited

2810

890ec67f12ae46b19f0f220ee4305bb5.docx

DOCUMENT C GLOUCESTERSHIRE POLICE (Criminal Procedure Rules, r. 16.2; Criminal Justice Act 1967, s.9)

Station or Section: Cheltenham

Division: G

Statement of: KLAUDIA MAKOWSKI (in full - Block letters) Date and place of birth: Over 18, Poland

Date:11 December 20__

Occupation:

Barmaid

This statement (consisting of 1 page signed by me) is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.

Dated: 11 December 20__

Signed:

Klaudia

Makowski I am employed by Scottish and Oldcastle Breweries as a barmaid. I have been working at the pub for about 2 weeks. On 11 December 20__ I was working in the King’s Head public house in Cheltenham. My shift started at 1.00 p.m. and I worked through until I had a break between 3.45 p.m. and 4.15 p.m. My shift ended at 9.00 p.m. I was serving in the public bar at about 5.30 p.m. There were only 2 people in the bar area at this time. There was a disagreement between a man sitting near the door who is a regular called Nathan Duggan and another man whom I now know is called Darren Piart. It all happened very quickly but I remember first of all hearing one of them call the other a “wanker”. This made me look up from what I was doing and I saw Nathan Duggan, who had been sat down, now standing over Darren Piart with his fists clenched. Darren Piart got up and he was bleeding a lot. I was too shocked to say or do anything at first. Nathan Duggan seemed to leave just afterwards. I then went to help Darren Piart get up. His lip was bleeding a lot and I told him to go to hospital. I would describe Nathan Duggan as 6 foot and powerfully built with short dark hair. He had a leather jacket on and blue denim jeans.

Signed: Klaudia

Makowski

Taken by:

PC

1057 Farrell

890ec67f12ae46b19f0f220ee4305bb5.docx

2811

© The University of Law Limited

DOCUMENT D GLOUCESTERSHIRE POLICE (Criminal Procedure Rules, r. 16.2; Criminal Justice Act 1967, s.9)

Station or Section: Cheltenham

Division: G

Statement of: STEVEN FARRELL (in full - Block letters) Date and place of birth: Over 18 England

Date: 12 December 20__

Occupation:

Police Constable

This statement (consisting of 2 pages signed by me) is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.

Signed: Steven

Dated: 12 December 20__

Farrell

I am Police Constable 1057 Farrell of Gloucestershire Police based at Cheltenham. On 11 December 20__ I was on foot patrol duty in Cheltenham town centre when I received a message at 19:15 hours to attend Cheltenham District Hospital. On arrival at the hospital I saw a man I now know to be Darren Piart. He had a cut to his top lip and I could see that there were some stitches in it. I took a statement of complaint from him. In light of what he told me I then proceeded to the King’s Head public house on Grape Street, Cheltenham. There I spoke to a lady, a Miss Klaudia Makowski, who said that she was ...