PART C Knowledge Revealed

This section provides suggested answers and guidance for approaching exercises, problem questions and case studies within this textbook. The case study answers are intended as a starting point for developing arguments and should not be taken as the definitive list of possible answers for each scenario.

Suggested Answers for Chapter 1

Exercise A - Problem Question

• This is an example of where there is possibly be a clash between the SRA Principles and the SRA Code of Conduct. Under Code 3 you have a duty of confi­dentiality to your client; to inform the prosecution about the missed convictions would be a breach of the duty of confidentiality. In addition, Code 2 states that you must “draw the court's attention to relevant cases and statutory provisions, or procedural irregularities of which you are aware, and which are likely to have a material effect on the outcome of proceedings” (2.7). It could be argued that the prosecution's failure to disclose all convictions could be regarded as a procedural irregularity under the duty of disclosure found in CrimPR Part 15 and Criminal Practice Direction IV. Also the Criminal Practice Direction 2015 (as amended) places the responsibility of the prosecution to ensure that the police national computer printout of convictions is up to date (see 8A.8). However, it could be argued that failing to pass on important information that you are aware of might be regarded as a failure to act with honesty under Principle 4. The way to resolve this conflict is to follow the one that best serves the public interest. It could therefore be argued that the public interest would best be served by preserving the fundamental principle of law that the prosecution must prove their case and the defendant remains innocent until proven guilty.

Exercise B - Multiple Choice Tests

Test One

The correct answer is 4. This is because although there is a clear conflict of interest between your duty of confidentiality to the client/acting in your client's best inter­ests and your duty not to mislead the court, observing the duty to the court is the one that is likely to best serve the wider public interest. The SRA Code of Conduct chapters 2.2 and 2.4 state that you could not seek to influence the evidence or help to generate false evidence. In particular, you could not make false assertions or put forward, statements, representations or submissions to the court that are untrue. The duty to the court is to only present facts and information that you know to be true. It does not, however, require you to reveal weaknesses in your client's case. As such, as long as your client does not expect you to mislead the court about the extent of his injury you are not required to immediately tell the court what you know.

Test Two

The correct answer is 3. This is because whilst it is true that in a criminal case an expert must disclose the nature of their evidence in the form of reports, which have been served on all parties concerned before the trial, an expert may still be called to give testimony in court.

Suggested Answers for Chapter 2

Exercise A - Problem Question

Section 319(2)(g) of the Communications Act 2003 states that any advertisement that contravenes the prohibition against political advertising contained in s. 321(2) shall not be included in any television or radio services.

Section 321(2)(a) defines political advertising as including an advertisement by or on behalf of a body whose objects are wholly or mainly of a political nature.

Section 321(b) defines political advertising as also including an advertisement directed at a political end.

Some suggested arguments in support of IMA's case might be:

1. Using the literal rule, it could be argued that in relation to s. 321(2)(a) an App containing just one political meme out of 50 memes cannot be said to show that IMA's objects are of a ‘wholly or mainly' political nature. If ‘wholly' or ‘mainly' are given their ordinary meaning this would suggest the App should have at least over half of the memes as political memes.

2. Using the literal rule, whilst it could be argued that a meme about the voting system has the potential to influence public opinion, it cannot be said for the purposes of s. 321(3)(f) that the voting system in the UK is a matter of ‘contro­versy'.

3. Using the golden rule, it could be argued that for the purposes of s. 321(2)(b), if we take the sentence as a whole then the words “an advertisement directed towards a political end” would focus on the product that is being advertised (the App) rather than the political meme which is not itself the purpose of the advert. The App is directed towards humour and is a collection of humorous messages and therefore does not have a political end. ‘End' in this context should be inter­preted to mean ‘outcome' or ‘goal'.

4. Usingthe golden rule, if one were to read s. 319 and s. 321 together and consider them in the context of the whole statute then these sections would seem to be aimed at preventing political activities that might influence the public to, for example, vote for a particular political party or lobby for changes to the law. The sections were not intended to prevent politics being the object of humour.

5. Usingthe purposive rule to argue that memes are an internet practice that was not around at the time of the passing of the 2003 Act but are commonly used to communicate satire for all aspects of life including political life but do not neces­sarily have the ability to ‘influence’ the outcome of elections or referendums as required by the wording of s. 321(3)(a) unless the internet was flooded with such memes during the election period. The internet has become a much more effec­tive way of reaching and influencing people than radio.

Exercise B - Multiple Choice Tests

Test One

The correct answer is 3 this is because the Practice Directions (Judgments: Form and Citation) states that where a case has a neutral citation this should be used first fol­lowed by the law report citation - see discussion in Chapter 2, 2.4.3.

Test Two

The correct answer is 2 and 4 because they are both false. Two is false because any opposing party or a court is likely to object to the use of the client’s own accountant as experts must be independent. 4 is false because an expert’s duty is to the court not the instructing party (see Chapter 2, 2.3.1).

Suggested Answers for Chapter 3

Exercise A - Problem Question

The errors that would have occurred during the hearing relate to court etiquette and arguments. These are as follows:

1. It is your opponent’s interim application and therefore they should have started and spoken first instead of you.

2. A District Judge in the County Court who is hearing an interim application is addressed as Sir/Madam.

3. You should avoid referring to your client in court as ‘my client’ and instead refer to them by their litigation status or their name.

4. You should not present your argument based on what your client thinks. Instead, your arguments should be based on the law.

5. Your argument that CPR 6.1 is simply unreasonable is not a valid argument and is instead merely opinion. You should make clear arguments supported by law. For example, does the district judge have a discretion to disapply the required time period? If so, where is this to be found in the civil procedure rules? Why should the district judge exercise his/her discretion in your client’s favour?

6. You should ideally refer to a barrister as ‘my learned friend’.

You could therefore have selected any three from the above list.

Exercise B - Multiple Choice Tests

Test One

The correct answer is 2, 3, 4 and 5 (4 is wrong because you would not ordinarily address a new client by their first name).

Test Two

The correct answer is 2 (because this is false, as Aristotle called the ability to prove ‘logos’).

Suggested Answers for Chapter 4

Exercise A - Problem Question

The scenario firstly raises issues around competency and secondly in relation to the ability to exercise rights of audience.

You will recall that in this chapter we looked at rules governing rights of audience. As a trainee solicitor you would not, at this stage, have completed the requisite training and been registered to obtain a practising certificate that would enable you to exer­cise rights of audience - see the Legal Services Act 2007, Part 3, s. 12 and Schedule 2. It is a criminal offence for someone who does not have rights of audience or the right to conduct litigation to exercise that right (see Legal Services Act 2007, s. 14). This offence carries a maximum sentence of 12 months (Magistrates' Court) or two years (Crown Court). However, it will be a defence if the person did not know, or could not have known that they were committing such an offence. It may be less difficult to argue that you were not aware that you did not have rights of audience given that it is part of your responsibility to acquaint yourself with your professional body's rules and guidance and codes of conduct.

By attending court and failing to explain your professional status to the court clerk it could be argued that you have acted unethically by being dishonest and/or that your actions lack integrity. It is also likely that your actions will be viewed as undermining the public trust and confidence in the profession. Although the application was suc­cessful it was not a risk worth taking given the alternative of adjourning the hearing.

Exercise B - Multiple Choice Tests

Scenario One

The correct answer is 3 because this is the only part of the report that has complied with CPR PD 35 para 3.

1 is incorrect because CPR PD 35 para 3.1 states that an expert's report should be addressed to the court.

2 is incorrect because whilst the report should include the substance of instructions it should also include details of the expert's qualifications (see para 3.2 (1)).

4 is incorrect because the correct wording for a statement of truth in an expert's report is:

I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer. I under­stand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

5 is incorrect because para 3.2(2) states that literature or other material that is being relied upon should be included rather than simply unread literature.

Scenario Two

The correct answer is 2 because children under 14 are permitted to give unsworn evidence in court.

1 is incorrect because the age of criminal liability is ten and so a 13-year-old child can be charged with an offence.

3 is incorrect because the case will be heard in the Youth Court of the Magistrates' Court rather than an adult court.

4 is incorrect because the Mental Capacity Act 2005 does not apply here because capacity under the Act is defined as mental incapacity not incapacity due to age. There is nothing to suggest that the client lacks mental capacity.

5 is incorrect because anonymity orders are reserved for situations where a witness will not give evidence without an order protecting their identity and the interests of justice require such an order to be made (see s. 88 of the Coroners and Justice Act 2009). Children are in any event entitled to reporting restrictions in the Youth Court which would prevent their identity being revealed in the media. This is not the same as an anonymity order.

Suggested Answers for Chapter 5

Exercise 1 (Bail)

You are acting for the defence in a crown court bail application and so it is important to use the correct address for the judge (Your Honour). The first issue to be addressed is whether s. 25 of the Criminal Justice and Public Order (‘CJPOA’) 1994 applies given that the defendant does not have any previous convictions for the offences listed in s. 25(2). Whilst it is true he has been charged with attempted murder, this is the cur­rent charge; s. 25 would only apply if he had a previous charge or conviction for one of the offences mentioned.

The court should be informed that the CPS has failed to provide a list of the defend­ant’s previous convictions despite repeated requests. Even if it could be established that the defendant had previous convictions, he could still come within the ‘excep­tional circumstances’ of s. 25 and be entitled to bail because the case of O (FC) v Crown Court at Harrow [2006] UKHL 42 defines ‘exceptional circumstances’ as mean­ing no more than that if one were to take into account all the circumstances of the case that there is nothing to suggest the defendant would fail to surrender to cus­tody, commit a crime, interfere with witnesses or obstruct the course of justice. The ‘exceptional circumstances’ in s. 25 was therefore taken to mean no more than the normal way bail applications would be determined under the Bail Act 1976.

However, s. 25 does contain a presumption of no entitlement to bail which can then be rebutted by a defendant showing exceptional circumstances. According to the case of O (FC) the court has to be persuaded that the arguments in favour of the existence of ‘exceptional circumstances’ outweigh the arguments against. Although s. 25 reads as if the burden of proving the exceptional circumstances lies with the defendant, in fact this case and others used statutory interpretation to ‘read down’ the provisions. This means the burden of proof remains with the prosecution.

Assuming the judge who hears the bail application accepts that s. 25 of the CJPOA 1994 does not apply, then the arguments can then proceed on the basis of para 2 and 2ZA of Schedule 1 Part 1 of the Bail Act 1976; see below:

a) Fail to surrender to custody, or

b) Commit an offence while on bail, or

c) Interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person (para 2).

Note: these para 2 grounds may be more difficult to argue against because the defendant faces charges that carry a custodial sentence; however, the defendant has never been convicted before and so this should be stressed to the court. The risk can be alleviated by offering conditions of bail relating to reporting at the police station and/or the defendant surrendering his passport to the police (see CrimPR Part 14.14).

d) The defendant would engage in conduct that would or is likely to cause physical or mental injury to an ‘associated person' or cause them to fear physical violence (para 2ZA).

Note: this ground may be more difficult to argue given the allegation of violence by the defendant against his wife. An ‘associated person' is defined by s. 62(3) of the Family Law Act 1969 as the defendant's relatives, spouse, civil partner, cohabitee or person the defendant is in an intimate relationship with. The risk can be alleviated by offering conditions of bail that require the defendant to reside away from the matri­monial home (see CrimPR Part 14.11).

In terms of submissions, it is easy to consider all four grounds (para 2 and 2ZA) with reference to all the charges as a whole and by using the Schedule 1 Part 1 para 9 factors as a checklist (as the defendant is not a child, one of the para 9 factors has been removed):

1. Nature and seriousness of the offence (including the likely sentence) - You mightfor example try submissions along the following lines: “Whilst it is true that these are all violent offences that include attempted murder and wounding, the defendant denies the allegations. There are no witnesses to the alleged attack itself and the defendant told police officers that the victim (who is the only wit­ness to the events) inflicted the injuries upon herself. This is clearly a troubled marriage and the background to the events need to be explored in more detail and in time more witnesses are likely to come forward, this may change the nature of what is alleged. The defendant is an upstanding member of the com­munity who has a prestigious award of an OBE for his contribution to business. He wishes nothing more than to clear his name in court.”

2. Defendant’s character, antecedents, associations and community ties - You mightfor example try submissions along the following lines: “We are instructed that the defendant does not have any criminal offences and the prosecution have not produced evidence to contradict this. There is no evidence to suggest that he would fail to surrender to bail. The defendant cannot therefore be said to pose a risk under Schedule 1 Part 1 of failure to surrender to bail or commit

offences whilst on bail. Whilst we accept the defendant faces charges that carry a custodial sentence, this alone is not a reason to suggest that he is a flight risk. However, if Your Honour takes the view that there is such a risk, the defendant would be prepared to surrender his passport and report to the police station each day as part of his bail conditions. In terms of interfering with witnesses, the defendant currently resides at the matrimonial home which is also the home of the alleged victim. The defendant would be prepared to accept a condition attached to his bail that he should reside elsewhere. He is able to reside at his mother's address.”

3. The defendant’s previous record of fulfilling any obligations on previously being granted bail - You might for example try submissions along thefollowing lines: “The defendant does not have a history of bail or failure to surrender to cus­tody in the past. There is no evidence that he would not fulfil any bail conditions imposed on him today.”

4. The strength of the evidence against the defendant (except where a defend­ant’s case has been adjourned for inquiries or a report) - You might for example try submissions along thefollowing lines: “As mentioned, Your Honour, the major­ity of these offences will rest on the word of the defendant against that of the main victim. There were no witnesses to the alleged murder itself or even to the alleged theft of £500. Much of the evidence is circumstantial. The defendant does not deny that he was at the Moonrise Guesthouse and that he went there to find his wife. He denies that he harmed her or that he stole money from the premises.”

5. If the court considers there is a bail risk, whether the risk would be by engag­ing in conduct that would, or is likely to, cause physical or mental injury to a person other than the defendant - You might for example try submissions along thefollowing lines: “We accept that the victim may allege that she is afraid of our client and that he poses a continuing risk to her. This is denied but if Your Honour considers that there is a risk of the defendant contacting the victim and that a residence condition is not sufficient, he would be willing to accept a condition of electronic monitoring but only as a last resort. We ask Your Honour to take into consideration the fact that the defendant has a place in society that would be greatly affected if he were to appear at important events wearing an electronic monitoring device. We would argue that any risks the defendant poses can be controlled by the imposition of conditions relating to residence and surrender of passport.”

6. Any other factors that appear relevant - You might for example try submissions along thefollowing lines: “Although the defendant faces serious charges, it is impor­tant to note that no weapon was found either at the guesthouse or at the matri­monial home. The defendant was also arrested at the matrimonial home and there was no attempt by him to flee and evade arrest even though he was not arrested for a few hours after the incidence. Those are my submissions Your Honour.”

If the bail application is successful, an application for wasted costs against the pros­ecution might be possible under the Prosecution of Offences Act 1985, s. 19A(2) if it can be shown that costs were incurred due to “unnecessary or improper act or omission”. This might be because the prosecution adopted the procedure as if the charge were one of murder. Section 19(2)(a) allows costs order to be made at any time in the proceedings. It could be argued that bail should have been applied for at a first hearing in the Magistrates’ Court rather than waiting for the matter to be sent to the Crown Court under s. 115 of the Coroners and Justice Act 2009. This is because s. 115 does not apply as this was not a murder case but an attempted murder case. Also, there was no evidence that the defendant had previously been charged with attempted murder or any of the other offences. Section 115(3) requires a Crown Court to hear bail decisions within 48 hours after a defendant is brought to the Magistrates’ Court but because of delays in the Crown Court the bail application was not heard until five days later. This means the defendant spent longer in custody than he needed to.

Exercise 2 (Specific Disclosure)

For this type of application, you will be making submissions based on arguments that the disclosure requirements of the Criminal Procedure and Investigations Act 1996 have not been properly followed and that this has placed the defendant at a disadvantage.

You might start by explaining the nature of your application and that it is made under CrimPR Part 15.5. It will be necessary to explain the nature of the material for which you are seeking specific disclosure. This will be all documentation relating to the company ‘Global Ethical Trading’ that was discovered as a result of searching 41 Tennyson Avenue on or about the early hours of 5 January. It is necessary to also explain why there is reasonable cause to think the prosecution will have that mate­rial and so this is where it is important to refer to the witness statement of Simon Montiana and the facts in that witness statement.

It might be appropriate to remind the court that s. 3 of the CPIA 1996 places a duty on the prosecution to disclose any previously undisclosed material which might be capable of undermining the case for the prosecution. The witness statement of Simon Montiana can be said to undermine the credibility of a key prosecution wit­ness and therefore is capable of undermining the prosecution’s case. The witness statement should have been disclosed much earlier than it has been (see s. 7A of the 1996 Act).

A reference to the Attorney-General’s Guidelines on disclosure would also bolster your arguments, particularly para 6 that states that when deciding whether mate­rial satisfies the disclosure test the prosecution should consider factors that include the use that might be made of that evidence on cross-examination. Certainly, the defence would want to cross-examine Mrs Vermont about the truthfulness of her

story, particularly the allegation that her husband attacked her to stop her revealing that he had falsified the company accounts.

The prosecution also has a continuing duty to keep disclosure under review (see s. 7A CPIA 1996). Also, the Code of Practice to the 1996 Act sets out a duty to retain mate­rial (5.1) and this includes any material casting doubt on the reliability of a witness (5.4) and in particular a prosecution witness (5.5). Such material should be retained until the accused is convicted or acquitted (5.8).

Even if the material (the company documents) was not retained, your firm has made the prosecution aware that it is relevant and the Code of Practice (5.3) places a duty to take steps to obtain it.

You can strengthen your arguments by using a quote from R v H and C [2004] UKHL 3. Although this case is primarily about disclosure of sensitive materials, it makes some helpful observation about disclosure generally. A helpful quote can be taken from the case as follows:

Fairness ordinarily requires that material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experi­ence has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.

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Exercise 3 (Hearsay and Character Evidence)

For this application you will now look at the facts of the case from the prosecution’s point of view. The prosecution intends to make two applications at the hearing and so the submissions should explain to the judge the nature of each application and which application will be addressed first in the submissions.

Hearsay Evidence of Callum Proustin

Before s. 116 of the Criminal Justice Act (‘CJA’) 2003 can be used to admit hearsay evidence, the pre-conditions under s. 116(1) must be met and so the prosecution case might start by confirming to the court that:

1. If Callum Proustin had given evidence in court his evidence would have been admissible as evidence of the matters contained in the statement (i.e. Callum Proustin would have been a competent witness and there is nothing in the evi­dence that would have been excluded if he had given that evidence in person at court).

2. That the prosecution is able to identify the person who made the statement as Callum Proustin and that Callum Proustin's identity can be established to the court's satisfaction. This provision is clearly satisfied as the prosecution is not seeking to admit Callum Proustin's evidence as an anonymous witness. It has his name and address.

The prosecution should then set the relevant ground under s. 116 (2) that it will be relying on, namely s. 116(2)(c) - Callum Proustin will be outside the UK at the time of the trial. The issue however is whether is it reasonably practicable to get him to attend. This ground must also be proved to the standard of beyond reasonable doubt.

The prosecution will need to explain what efforts have been made to get Mr Proustin to attend trial. The prosecution should explain that a witness summons was served on him. However, this will not necessarily guarantee his attendance at the trial as he may still refuse to attend or inform the court that he is unable to attend. Whilst technically he could be found in contempt of court by refusing to appear, it may be more difficult to enforce any penalty or sanctions as he is now living outside the UK.

A pre-CJA 2003 case which is still relevant to this area of law is R vCastillo [1996] 1 Cr App R 438. In that case, the court set out guidance on what might amount to ‘reasonably practicable' steps to take to secure an absent witness's attendance at court. The judge will need to consider how relevant Callum Proustin's evidence is to the issues and how prejudicial it would be to the defence's case if the witness statement were admitted.

The defence may argue Callum Proustin is a central witness and that they would be disadvantaged by being denied an opportunity to cross-examine him if the court relies just on his witness evidence. The defence may ask the judge to exercise his/her discretion to exclude the witness statement under s. 126 CJA 2003.

The prosecution should pre-empt such arguments and so may argue that as Callum Proustin did not witness the attempted murder or the theft that is related to the alle­gation of burglary, he is not a material witness in that sense. He is important merely to place the defendant at the scene. The defendant does not deny that he was pre­sent at the Moonrise Guesthouse and that he went upstairs without permission to see his wife, June Vermont. As such, there would not be any prejudice to the defence in admitting Mr Proustin's evidence as hearsay evidence. The difficulty with this is if the prosecution is relying on the part of his evidence about the criminal damage and theft to suggest that the defendant carried out these offences then the defence would want the opportunity to cross-examine Mr Proustin.

The Court of Appeal in the case of Castillo also stated that the expense and inconven­ience of securing a witness's attendance should be taken into account by the judge. One option that might be suggested by the prosecution is for the court to consider the use of video-link technology from a court in Dunedin to enable Mr Proustin to give evidence at the trial in the UK. This is permissible under s. 51 of the Criminal Justice Act 2003 either as live audio link or live video link. The court can allow a wit­ness (who is not the defendant) to give live link evidence; this provision could there­fore apply to Mr Proustin. The judge must be satisfied it is in the interests of justice to make such an order to allow Callum Proustin to give evidence (see s. 51(4)). The case of R v Gyima (Edward) [2007] EWCA Crim 429 confirms that whether a witness should be allowed to give evidence by video-link is at the discretion of a judge as it involves considerable cost in arranging the video evidence. This may not be regarded as a ‘reasonably practicable' means to get Mr Proustin to attend.

Even if the prosecution cannot show it has taken all steps ‘reasonably practicable' to ensure Mr Proustin's attendance, it could ask the judge to use his/her inclusionary discre­tion to include the evidence in any event. However, this would require the prosecution to satisfy the ‘interests of justice' test (see s. 114 (1) (d) CJA 2003). The prosecution should consider whether there are any other witnesses who could corroborate what Callum Proustin says in his evidence (e.g. other guests and staff who were present and saw the defendant). If so, the evidence becomes less relevant and there may be justification for admitting it as hearsay evidence because the evidence then becomes less prejudicial.

Equally, if the evidence is not regarded as important evidence and if other witnesses can give similar evidence, then the court might feel that the trial can proceed with­out Mr. Proustin's evidence at all.

The prosecution should be mindful of the fact that Mr Proustin's evidence also con­tains evidence about the state of mind of the defendant at the time of the attack as he describes the defendant as ‘agitated'. If the prosecution intends to rely on this evidence to show that Mr Proustin was agitated it would need to admit such state­ments as part of the ‘res gestae’ under s. 118(4) CJA 2003 as statements that relate to a physical sensation or a mental state. The statement may therefore contain mul­tiple hearsay within the meaning of s. 121 CJA 2003. As it does not fall under s. 117, s. 119 or s. 120, it will only be admissible if the defence agrees (s. 114 (1)(c)) to its admission or if the judge admits it under the interests of justice test (s. 114 (1) (d)).

The case of Riat and Others v R [2012] EWCA Crim 1509 states that the court should consider whether the admission of the evidence of the absent witness poses a risk of unreliability and if so to what extent and whether the reliability of the evidence can be tested and assessed (see paras 6-7 of the judgment). The prosecution may seek to rely on arguments that the evidence of Mr Proustin is reliable evidence that can be tested by the evidence of other witnesses including June Vermont, the victim.

Character Evidence of Simon Montiana

The starting point is that permission of the court is needed for the evidence of Simon Montiana's previous convictions to be used at trial (see s. 100(4) of the Criminal Justice Act 2003).

The evidence to be adduced falls within the definition of bad character under s. 98 of the Criminal Justice Act (CJA) 2003 because it is “disposition towards misconduct (other than evidence which has to do with the alleged facts of the offence for which the defendant is charged) or is evidence in connection with the investigation or pros­ecution of that offence.” Misconduct means previous convictions or other reprehen­sible behaviour (s. 112 of the CJA 2003).

Under s. 100(1)(b) of the CJA 2003 the evidence of Simon Montiana (a non-defend- ant) must have ‘probative value' in relation to a matter in issue in the proceedings and be of substantial importance in the context of the case. It is within the judgment or discretion of a judge to decide if the previous convictions of Simon Montiana have probative value.

It could be argued that a matter in issue in the proceedings is who was responsible for the company fraud as it is alleged that the motivation for the attack on Mrs Vermont was to silence her and stop her revealing the fraud. However, if evidence suggests that she was in fact involved in the fraud and not the defendant, this will remove a motive for the attack upon her. The prosecution wishes to use the evidence of the previous convictions to discredit Simon Montiana during cross-examination so that its main prosecution witness's evidence remains intact. Therefore, Mr Montiana's evidence may be regarded as material to the case.

In deciding whether the evidence has probative value and is of substantial impor­tance, the court will consider the factors in s. 100(3). One way of structuring submis­sions is therefore for the prosecution advocate to address the factors in s. 100(3).

The relevant factors based on the facts of the case are:

a) The nature and number of the events to which the conviction relates - there are two convictions.

b) When those events are alleged to have happened - the speeding conviction is more recent (2020) than the fraud conviction (2010).

c) Where the evidence suggests a person’s misconduct and that person is respon­sible for the misconduct charged and the identity of the person responsible for the misconduct charged is disputed - the prosecution may try to tie in some knowledge on the part of Mr Montiana about the company fraud as he has a conviction for fraud in the past (although this is insurance rather than company fraud) to suggest he is also tied into the misconduct.

The difficulty with this application is in showing that Mr Montiana's convictions are of ‘substantial importance'. This is because they may be unrelated to the actual question of his credibility as a witness. The case of Brewster and Cromwell v R [2010] EWCA Crim 1194 is authority for stating that if evidence of misconduct is to be used to attack a witness's credibility it must undermine the credibility directly and not

indirectly. The speeding conviction (2020) is largely irrelevant as it only indirectly undermines credibility. The conviction for fraud is more relevant as it is insurance fraud and shows Mr Montiana is capable of making false statements. However, the conviction might be regarded as ‘stale’ in the sense of very old. It will be necessary to convince the court that a sole conviction, which is relatively old, can still be of substantial importance. The defence may ask the court to refuse permission for the prosecution to rely on s. 100(1)(b) due to its prejudicial nature to the witness who is merely trying to assist the court in its administration of justice function.

Suggested Answers for Chapter 6

Exercise 1 Memorandum A - Setting

Aside a Default Judgment

The action is in the High Court and so the interim application will be heard by a Master and so the appropriate mode of address to use is ‘Master’ (for both male and female judges).

Part 13 of the Civil Procedure Rules (‘CPR’) is the rule that governs this application together with Part 23 which governs interim applications generally. The rules should be read in conjunction with any accompanying practice direction. Whilst Part 23 has an accompanying practice direction, there is not an associated practice direction for Part 13.

Under Part 13.3 it will be necessary to persuade the judge that if the default judg­ment is set aside, the defendant has a real prospect of successfully defending the action. It is also necessary to show, according to Core-ExportSpa v Yang Ming Marine Transportation Corporation [2020] EWHC 425 (comm) that the application to set aside judgment was made promptly and without substantial delay. The witness statement supporting the application is dated three days after the default judgment and so it can be argued that the defendant acted promptly. This is not therefore a situation where the application to set aside is likely to be denied because the application itself was not made promptly as occurred in Cranfield and Another v Bridgegrove Ltd [2003] EWCA Civ 656.

In terms of the process for making an interim application, the Part 23 requirements appear to have been adhered to as we are told in the memorandum that both an application notice and a witness statement have been filed in court and copies served on the claimants’ solicitors. The defendant’s solicitor’s witness statement also fol­lows the format under Part 32.6, 32.8 and PD 32 paras 17-23. The witness statement also contains a statement of truth with the correct wording under PD 32 para 20.2.

The witness statement of Margrit Munsted identifies the particular grounds under Part 13 on which the application is being made. You should therefore match the facts to each ground in your submissions, for example, the defendant has a real prospect of success because it is alleged the defendant was speeding and also the defendant denies making an admission.

When analysing the grounds for setting aside the judgment in default under Part 13, attention should also be paid to any procedural irregularities with regard to the claim as a whole. The claimants’ solicitors do not appear to have followed the relevant pre-action protocol for personal injury claims or the Practice Direction on Pre-action Conduct and Protocols and it could be argued that this is an important failure (see paras 15 and 16 of the practice direction and CPR Part 3.1(4)-(6)).

A case that may be helpful here is Denton and Others v TH White Ltd and Others [2014] EWCA Civ 906. In this case (which was largely about relief from sanctions) the Court of Appeal considered the issue of setting aside due to failure to comply with court orders. This can equally be applied to failure to comply with procedural rules. The court held it was important to consider whether the failure was of a serious or significant nature, whether there was good reason for the failure and lastly whether taking into account all the circumstances, the default judgment should be set side.

Whilst the claimants’ solicitors have sent a letter of claim as required by para 5 and Annex B of the protocol, they have not given the required 21-day period to allow the defendants to submit a response or allowed for a three-month period of investiga­tion (see paras 1.6 and 6 of the protocol). There are no limitation issues regarding the claim (the action has ample time within the three-year limitation period under s. 11 of the Limitation Act 1980). The particulars of claim states that the claim is worth more than £50,000 and so the main personal injury pre-action protocol (rather than the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents) is the one to consider. It is worth referring to CPR Part 3.4 which provides that when giving directions the court will also have regard to whether or not a person has com­plied with a pre-action protocol. This failure to comply with the pre-action protocol is therefore an important consideration.

The claimants’ solicitors also failed to file a certificate of service in court in accord­ance with CPR Part 6.17(2)(a). This is an important point as CPR Part 6.17(2)(b) goes on to state that judgment in default cannot be entered where a certificate of service has not been filed. As such, there is a strong argument here that the judgment in default has been wrongly entered.

However, this defect may not be regarded as serious as in Henriksen v Pires [2011] EWCA Civ 1720 the court held that the defendant had not suffered any meaningful prejudice because of the claimant’s failure to properly file a certificate of service. The defendant admits receiving the letter of claim and the particulars of claim and there­fore had ample time to instruct solicitors and file an acknowledgement of service and/ or defence before judgment in default was entered. The facts of this case can, how­ever, be distinguished from the matters in this fact pattern because the defendant’s tenants may have played an active role in knowingly failing to pass on important doc­uments. It is also important to note that whilst the case of Henriksen makes it clear that the absence of a certificate of service will not automatically lead to an order to set aside the default judgment, it remains a matter that is at the discretion of the judge.

It is important to pre-empt your opponent’s arguments and it may be that the claim­ant’s solicitors will remind the court that they have the power to cure any procedural irregularities under CPR Part 3.

When arguing whether there are good reasons for the court to set aside the default judgment it is also worth referring to relevant parts of the overriding objective in CPR Part 1 such as Part 1.2(a) (ensuring parties are on an equal footing) and CPR Part 1.2 (f) (ensuring compliance with court rules); these are relevant to the fact that the claimants have breached court rules.

It is important to also ask the court for directions about the future progression of the action if your application to set aside the default judgment is successful. Directions for service of a defence are important as well as directions regarding obtaining medi­cal expert reports (perhaps from joint experts - see CPR Part 35.4).

It is worth noting that if there were to be any procedural irregularities in your client’s case that you should make the court aware of this at the earliest opportunity and not wait for your opponent to do so. This is because the SRA Code of Conduct Code 2 states that an advocate should “draw the court’s attention to relevant cases and statutory provisions, or procedural irregularities of which you are aware, and which are likely to have a material effect on the outcome of proceedings” (2.7).

It would also be fair to question (privately to your supervising solicitor rather than in any court submissions) whether it is appropriate for your firm to act for both the first and second claimants. You should always be mindful of any potential breaches of the SRA Principles or SRA Code of Conduct found in the SRA Standards and Regulations (see Principle 7 and Code 6). Whilst there does not appear to be a conflict of interest at present because an admission is alleged to have been made by the defendant, this is contested by the defendant who claims it was in fact the first defendant who made the admission (see witness statement of Assiah Proctor). The defendant also alleges negligence on the part of the first claimant who was driving. If this is proved then the second claimant would have a claim against the first claimant for damages (which would in reality be met by the first claimant’s insurance company). This can happen despite the first claimant being the second claimant’s mother. A conflict of interest could therefore arise in the future which would mean the firm could risk breaching the SRA Standards and Regulations 6.

At the end of a successful application, it is usual to make an order for costs (known as summary assessment of costs). We have considered this in Chapter 4.

Exercise 2 Memorandum B - Summary Judgment

Summary judgment is an interim application in the High Court and so will be heard by a Master. Again, the appropriate mode of address to use is ‘Master’ (for both male and female judges).

For this application, the arguments will be based on whether the defendant has a real prospect of successfully defending the claimants’ action.

The case of Swain v Hillman and Others [1999] EWCA Civ 3053 interprets the word ‘real’ in this test to mean the opposite of fanciful. The legal principle arising from this case is also that in meeting this test, the court should not attempt to conduct a mini trial. Therefore, it would not be appropriate to explore whether admissions of liability were made and/or the legal effect. This is because the defence itself does not make any admissions other than that the accident occurred. CPR Part 14 has a formal pro­cess for admissions which requires the admission to be given in writing.

However, the case of Royal Brompton Hospital v Hammond (no 5) [2001] EWCA Civ 550 states that whilst it may not be appropriate for the court to conduct a mini trial, it does not preclude some consideration of the available evidence or the lack of evi­dence, if this goes to the question of prospects of succeeding at trial. However, the case must be more than merely arguable and must, according to the decision in ED & F Man Liquid Products v Patel [2003] EWCA Civ 472, carry a degree of conviction about it. Some further guidance can be found in Three Rivers District Council v Governor and Company of the Bank of England [2001] UKHL 16 which reminds us that the ‘real prospects of success’ test gives the judge a discretionary power and this discretion­ary power involves exercising judgment about whether a trial should take place or not. This is an assessment rather than a fact-finding exercise (which would be based on calling evidence). The issue is whether there is an absence of any reality of suc­cess. If evidence is not to be found in the pleadings but will be available at trial the case should be allowed to proceed to a fuller investigation of the facts according to cases such as Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63.

The witness statement of Assiah Proctor also invites the court to strike out the defence under CPR Part 3 as an alternative measure. Whilst the application itself has only been made under Part 24, the court has the power to make alternative orders of its own initiative (see CPR Part 3.3).

Strike out is sought on the basis that the defence does not disclose reasonable grounds for defending the action. CPR PD 3A para 1.6(1) gives examples of where a case discloses no reasonable grounds for defending a case, including where the defendant files a bare denial.

In terms of pre-empting what arguments the defendant may raise, be mindful that the defendant could argue that he has a right to plead his case in general terms until disclosure has occurred, at which point, he can apply to amend his defence to plead specific denials. This was an approach approved in Arsenal Football Club Plc v Elite Sports Distribution Limited [2002] EWHC 3057.

In terms of procedural irregularities, it is important to note that whilst the defence contains a statement of truth, it is incomplete and does not contain the full word­ing required by CPR Part 22(1)(a) and the practice direction to PD 22 para 2.1 (see document 2 for an example of the correct wording). It is possible to argue that the court should apply CPR Part 22.1(b) and preclude the defendant from relying on any evidence in the defence or CPR Part 22.2 which provides that a statement of case (which includes a defence) can be struck out if not verified by a statement of truth.

It is important to pre-empt your opponent’s arguments especially on the question of procedural irregularities relating to the statement of truth. The defendant may argue that the statement of truth is merely defective rather than absent altogether. As such, the defendant may ask the court to apply CPR Part 22.4 and order that the defendant amend the defence to contain the correct wording for the statement of truth. The court can deal with a summary judgment by giving further directions rather than dismissing the defence (see CPR Part 24.6).

As a counterargument to this, it could be argued that under CPR Part 3.1(m) the court should be making orders that further the overriding objective. It could be argued that the overriding objective under CPR Part 1.2(b) of saving expense would best be served by dismissing the defence or argued that CPR Part 1.2(f) requires the court to be mindful of its overriding objective to enforce compliance with rules.

This application will always be a difficult one to win if the defendant appears as a litigant-in-person. This is because CPR Part 3.1A(2) recognises that an unrepresented litigant may require a degree of assistance from the court. Litigants-in-person will not always be familiar with court rules and procedure. In Barton v Wright Hassall LLP [2018] UKSC 12 the Supreme Court held that whilst allowances should be made for the fact that a party is unrepresented when conducting hearings (including interim hearings), that does not mean the procedural rules should be applied with a lower standard for litigants-in-person. However, as the procedural irregularity can be easily corrected under the rules, and the rules permit this, the argument about procedural irregularities may be more difficult to win if the judge decides to give the defendant an opportunity to correct.

If the application is successful, then the next stage is to ask the court to make an order for costs. As discussed in Chapter 4, the court can make a summary order for costs. The advocate should before attending the hearing file a costs schedule with

details of the costs claimed. This will be based on the hourly charging rate identified in the memorandum to this exercise.

Note: The Civil Justice Council Costs Committee ('CJCCC') Guidelines 2021 set out suggested hourly rates for lawyers depending on seniority. The hourly rate of £186 is based on Grade D for London (1) for junior lawyers such as trainee solicitors and paralegals. In its January 2021 consultation paper, the CJCCC suggested these rates should be reviewed regularly in future. Therefore always check to see if the rates have been updated!

Exercise 3 Memorandum C - Interim Payments

The issue to be argued on this application is whether the claim for £105,000 by way of an interim payment can be considered as a reasonable proportion of the likely amount of the final judgment.

As a starting point, the application can be approached by considering whether CPR Part 25.7(1)(c) is met and this has to be proved to the civil standard of ‘on a balance of probabilities’ according to Test Claimants in Franked Investment Income Group Litigation v Revenue & Customs Commissioners (No 2) [2012] EWCA Civ 57. This means showing on the evidence that if the matter went to trial, Rose Landice (the second claimant and applicant) would obtain judgment for a substantial amount of money. The case of Test Claimants defined ‘a substantial amount of money’ as meaning sub­stantial rather than negligible amounts. It would be wise to therefore refer to the figures in the schedule of loss showing that the total claim exceeds £1 million (see instructions in Memorandum C).

One of the difficulties, however, is that the applicant is alleged to be contributorily negligent due to a failure to wear a seatbelt. It cannot therefore be certain what per­centage of contributory liability the judge will determine at trial and therefore, if the applicant succeeds at trial, by how much the damages will be reduced. The defend­ants might therefore use the same Test Claimants case to argue that the applicant is unable on a balance of probabilities to show that the substantial sums claimed in the schedule of loss would actually be recovered at trial. They may refer to the judgment of Heidelberg Graphic Equipment Ltd v R & C Commissioners [2009] EWHC 870 (Ch) to argue that the standard of proof, although on a balance of probabilities, still has a high threshold as it is necessary to show the action will succeed at trial rather than that it is likely to succeed at trial.

It is important to note that the Test Claimants case criticises the assessment of the standard of proof as set out in the Heidelberg Graphic case. Arguments on behalf of the applicants can therefore be found by applying the interpretation placed on the standard of proof as found in the Test Claimants case per Aikens LJ (para 38) that the

court must be satisfied based on the material before the court at the time of the interim payment application that the claim is likely to succeed at trial.

The court would be assisted by referring to similar cases that have applied a contribu­tory negligence reduction of damages due to a failure to wear a seatbelt. The case of Froom v Butcher [1975] EWCA Civ 6 is still the leading case. The guidelines provide for a 25% reduction where the injuries could have been avoided if a seatbelt had been worn. If the injury would have occurred in any event but was made worse by a failure to wear a seatbelt then a reduction of 15% is advised. However, if the injuries would have occurred if no seatbelt had been worn then damages will not be reduced.

It could be argued in rebuttal that there is an evidential burden on the defendants to put forward evidence of contributory negligence. Even if we assume that it can be proved and (as a worst-case scenario) a 25% reduction would be made at trial, the resulting reduced damages could arguably still be considered substantial and the interim payment represents only a small proportion of what would be obtained as damages at trial.

The defendants may take another direction and argue that as the case as a whole involves difficult questions of law, there cannot be any certainty that the applicant will succeed at trial because causation is in issue and therefore the court should not exercise its powers under CPR Part 25.7(1)(c) as the defendant has an arguable defence.

In response to this it could be argued that there is an evidential burden on the respondents to raise any matters in evidence that they feel would show the appli­cant is unlikely to obtain substantial damages at trial. The defendant was entitled to file evidence under CPR 25.6(4) but has chosen not to do so. It is not enough for the defendants to simply point to their statement of case (the defence) and expect the court to accept this as proof that the applicant’s claim will not succeed at trial.

Perhaps the strongest argument that the defendants will have is that the estimate about the house adjustments has come from a medical expert rather than, for exam­ple, a surveyor, and therefore the court does not have adequate evidence to assess whether the amount of the interim payment is a reasonable one. Also, the estimate in the medical report is lower than the amounts claimed.

This may be where it is necessary to assess the mood of the court on the day of the application. If the judge seems swayed by arguments that the application is pre­mature or unsupported then perhaps give a concession (after consultation with the litigation friend) that the applicant might be prepared to accept a reduced interim payment in the first instance to allow work to begin whilst final costs are explored. A further application can be made at a later date if further sums are needed.

Again, reference to the overriding objective in CPR Part 1 would be helpful in any arguments made on behalf of the applicant. It could be argued that dealing with the case justly and at proportionate cost could be achieved by making an interim pay­ments order as it would ensure that the case is dealt with expeditiously and fairly (see CPR Part 1.2(d)).

Suggested Answers for Chapter 7

Exercise 1

In this exercise you were asked to prepare a ‘plea in mitigation'. Based on the relevant sentencing guidelines detailed in your instructions, your arguments might be struc­tured in the following way:

1) the offence (including minimising aggravating factors and emphasising mitigat­ing factors)

This is an offence that arguably falls within the lower range for sentencing based on the Sentencing Guidelines: Violent Disorder. This is because none of the category A factors are present as the defendant did not use any firearms or other weapons or incendiary devices during the incident and did not carry out a leading role or target particular individuals or groups. Whilst the jury found that the defendant started the fight, the defendant is adamant that he did not instigate the actual altercation and can be said to have been provoked rather than taking a lead role in starting the argument or disorder.

Category B factors are not present in that whilst the defendant did participate in an incident involving acts of violence and whilst two members of the public were injured as a result of the disorder this was by another defendant who has been found guilty at a separate trial.

This offence therefore should fall into category C for the purposes of the sentencing guidelines and the defence can take issue with the recommendations in the pre-sen­tence report that places the offence within Category B. The offence involved a lower level of violence as far as the four men who were convicted are concerned.

In terms of harm, it is accepted that some aspects of category 2 are present in that the incident did result in physical injury and led to fear and distress to bystanders who witnessed events and also possibly had an impact on the local community and costs were incurred by a business (the cinema) in terms of damage to a glass door. However, it is argued that none of these events, in terms of the involvement of the defendant can be categorised as ‘serious’ or ‘substantial’ as required by the wording in category 2 and therefore should be dealt with at the lower-level category 3.

2) the offender (including the offender’s personal circumstances as set out in any pre-sentence report)

The defendant does not have any previous convictions and only has a caution for an offence that he denies committing. The defendant is an individual who has previ­ously held a job requiring responsibility and honesty, and prior to this incident had never been involved in any violent acts. He is a carer for his elderly mother who has Parkinson’s and partly due to this and losing his job due to the charges brought against him, has been unable to find work.

3) the offender’s conduct

The defendant was not the instigator of the altercation and attempted to walk away when first confronted by Mr Thomas Lennon. It is Mr Lennon who was charged with the more serious offence of wounding. The defendant was involved in the fight that followed but the injured parties sustained minor bruising only compared to the defendant’s more serious injury of a fractured jaw.

4) the offender’s capacity to reform

The defendant accepts his role in the fighting which led to property damage and injuries to others. He is remorseful and regrets that he was unable to walk away from the fight. Whilst he does not accept that he started the fight he respects the jury’s verdict and now just wishes to put matters behind him and to get on with his life.

5) relevant sections of the pre-sentence report that assist your arguments about the appropriate sentence

With reference to step 2 of the Sentencing Guidelines this would mean that for the starting point custodial sentence would be at least 26 weeks’ custody but with a cat­egory range of a medium level community order or up to one year in custody.

The offence carries a range of possible sentences including a fine and/or commu­nity service. It is arguable that the custody threshold has not been met here as the offence cannot be said to be so serious that a community sentence cannot be justi­fied (see s. 230 of the Sentencing Act 2020).

If the court considers that the offences are serious enough for a community order and that the threshold under s. 204 of the 2020 Act has been met, then this should be considered before any custodial sentence. Under s. 203 the court has the power to make a community order because the defendant is over 18 and faces an imprisonable offence. When referring to the community order requirements table at s. 201 of the Sentencing Act 2020 a requirement of a curfew may be appropriate. This would pro­vide sufficient restrictions on the defendant’s liberty without the need to impose a custodial sentence. Given that the defendant is a carer and needs to be present dur­ing the day a programme requirement would not be appropriate.

In addition, the court may feel that the imposition of a fine would also be an appro­priate deterrent in terms of future misconduct. The court has power to impose a fine under s. 125 of the Sentencing Act 2020 at a level to reflect the seriousness of the offence. The Sentencing Guidelines Overarching Principles set out the level of fines from Band A-F. The court must take into account the financial circumstances of the defendant. As the defendant is unemployed, it is arguable Band A would be the most appropriate in these circumstances (50% of relevant weekly income). This would still have a significant economic impact on the defendant.

In addition, the court may feel that a compensation order should be made in terms of the damage to the cinema glass door. The court has the power to make an ancillary order for a compensation order in respect of the property damage to the cinema and the Crown Court Compendium Part II (Sentencing) S3.4 states that the court must consider making a compensation order in every case where there is personal injury, loss or damage (if it has the power to do so). However, applying the principles in R v York [2018] EWCA Crim 2754 it is argued that such an order is not realistic given the defendant’s limited means unless the repayments were stretched across a long repayment period. The compensation could not, and should not, be payable based on a relative or friend’s financial assistance. Based on the Sentencing Guidelines Overarching Principles, if the court is considering imposing both a fine and a com­pensation order then preference should be given to the compensation order where a defendant is of limited means.

Finally, consider whether there is a realistic prospect of rehabilitation, if so, it would be appropriate to address the judge about exercising his/her discretion to suspend the custodial sentence (assuming one is to be imposed). See Sentencing Act 2020 s. 286.

Exercise 2

In this exercise you were required to read an extract from a summing-up by a judge towards the end of the trial. This summing-up is the subject of an appeal. You are asked to consider possible grounds of appeal.

The following wording from parts of the summing-up of the trial judge in this ficti­tious case gives some possible grounds for appeal as follows:

1. "This is because the prosecution also had supporting evidence from a witness, a Ms Lowden, who claimed to have seen the defendant running from the scene.

The defence deny that the defendant has been correctly identified as the perpe­trator of the crime. The prosecution however state that Mrs Lowden's evidence is recognition evidence” - the trial judge has not given a proper ‘Turnbull warn­ing' regarding the identification evidence of Ms Lowden.

Refer to this chapter (7.7.5) and the Crown Court Compendium (15). The identifica­tion evidence is contested and unsupported and the prosecution is relying wholly or substantially on it to prove the theft. The judge should have given a ‘Turnbull warn­ing' to the jury of ‘a special need for caution' - see R v Turnbull [1977] QB 224. This warns the jury of the dangers of relying on such evidence because a convincing wit­ness might still have made an honest mistake. The judge therefore directs the jury to examine, assess and evaluate the identification evidence in a number of ways. The two parts of the warning which might be problematic from the facts are:

a) Assessing the quality of the evidence - the fact that Ms Lowden only saw the defendant running from the scene could be problematic. How long did she have the defendant under observation? If it was only a ‘fleeting glimpse' the jury should never have been allowed to consider the visual identification evidence.

b) Looking at the circumstances that led up to the identification evidence being made - it is relevant here that Ms Lowden knows the defendant. However, the judge should still have reminded the jury that recognition evidence can still be mistaken.

The next part of the summing-up that gives cause for concern and might justify grounds for appeal is the following:

2. "You have been permitted to consider evidence of the defendant's previous con­viction for theft of a bicycle which took place 8 years ago. This evidence was admitted because the defendant made an attack on the truthfulness of Ms Lowden's evidence during the trial. The evidence of the defendant's previous conviction can be used to decide whether you consider it likely that the defend­ant committed the present crime”.

The judge appears to have admitted bad character evidence under the gateway of s. 101(1)(g) of the Criminal Justice Act 2003 because the defendant made an attack on another person (a prosecution witness). This may form one ground of appeal. Refer to the relevant discussion of character evidence in Chapter 5 and also read the Crown Court Compendium (12-9). If the ground of appeal is that the bad character evidence should have been excluded under s. 101(3) it is important to remember this is a dis­cretion as the wording is “it appears to the court” and so it is a matter for the court's judgment and not easily appealable unless the judge's decision can be said to be ‘Wednesbury unreasonable'. If the court decides that the admission of the evidence would have such an adverse effect on the proceedings that it ought not to be admit­ted, then it must be excluded. Section 101(4) also states that in deciding whether to exercise its discretion the judge should consider the length of time between the previous convictions and the current offence. It might be possible to argue that the offence of theft committed eight years ago is ‘stale’ but this may not be accepted by an appeal court. A ground of appeal might lie in the fact that the judge may have wrongly directed the jury as to how to treat the evidence and that it should have gone towards credibility only and not propensity as an offence for theft of a bicy­cle committed eight years ago does not mean the defendant has the propensity to commit the current offence of robbery. R v Hanson [2005] EWCA Crim 824 confirms that to show propensity a single conviction will usually not be enough unless the conviction shows “a tendency to unusual behaviour or where its circumstances dem­onstrate probative force in relation to the offence charged” [9].

In addition, R v Highton [2005] EWCA Crim 1985 suggests that a distinction needs to be drawn between the basis for admitting the evidence and the use that may be made of it once admitted. For this reason, the judge will generally have to give the jury a ‘clear warning’ during his/her summing-up ‘against placing undue reliance’ on the evidence and explain why it has been admitted and the ways in which it is rel­evant. This does not appear to have happened.

Another section of the summing-up that may contain grounds for appeal can be found in the following passage:

3. "Ms Lowden struck me as a truthful witness, one who is to be believed.”

It is arguable that the judge has shown a bias in favour of Ms Lowden. The appeal case of Derek William Bentley (Deceased) [1998] EWCA Crim 2516 considered the fact that the original trial judge appeared to be biased towards the prosecution witnesses who were police officers as they were described as showing "the highest gallantry and resolution; they were conspicuously brave”. He then posed the question to the jury "Are you going to say they are conspicuous liars?” This summing-up was held to be biased and prejudicial. In the same way, the comments about Mrs Lowden’s truthfulness might be regarded as biased and prejudicial as it is for the jury to decide whether or not they believe the prosecution witness Ms Lowden. This may form one ground for appeal.

Another section of the summing-up that may contain grounds for appeal is as follows:

4. "She later changed her story and said a friend had given her the £10 but did not produce the friend as a witness to support this story. You may decide that this constitutes a lie that the defendant has been found to have told and this lie may be causative when deciding guilt or innocence”.

The judge has failed to give a proper ‘Lucas Direction’ in relation to the lies told by the defendant.

Refer to the Crown Court Compendium (16.3). The lie must be a deliberate lie (rather than arising from confusion or mistake) and relate to a material issue. The jury must be sure that there is not an explanation for the lie which does not suggest guilt. Whilst there is no standard wording that the trial judge should use the judge should not tell the jury it is definitely proof of guilt as this is a matter for the jury to decide after weighing up other possible reasons why the lie was told.

5. “Remember that it is for the prosecution to convince you of the defendant’s guilt and this must be done to a very high standard indeed. You must examine the evidence and decide which evidence you believe based on its credibility and cer­tainty of truth” - the judge has failed to correctly sum-up the burden and stand­ard of proof in this section.

Refer to 7.2.1 in this chapter and Crown Court Compendium (5). As the judge has correctly indicated the burden of proof rests with the prosecution. However, he has not correctly summarised the standard of proof. The standard of proof is ‘beyond reasonable doubt’, which has been expressed by Lord Goddard in R vSummers (1952) 3 Cr App R 14 as the jury members asking themselves whether they are satisfied so that they are sure. This has become known as ‘the sure test’. The case of R v Miah [2018] EWCA Crim 563 confirms that the use of the word ‘sure’ is sufficient, but no particular words are needed. The judge can use the words ‘beyond reasonable doubt’ but this usually requires an explanation of its meaning. Beyond reasonable doubt does not mean absolute certainty.