The Post-Trial Case Studies

We will now turn to our exercises in this final chapter by considering two case stud­ies. The first relates to sentencing and the second relates to evidential matters on an appeal.

In this section you will find documentation relating to two types of applications that might be made after a criminal trial namely, (1) a ‘plea in mitigation' to reduce a sentence that a judge might be thinking of passing and (2) an appeal based on a defective summing-up given by a trial judge. This time, each application is preceded by a set of instructions for each exercise. You should assume that all dates given are current dates. Where it is indicated in italics that a document is ‘not supplied', assume that it does not include any procedural irregularities and can be ignored for the purposes of the fact pattern.

You will find suggested guidance on possible arguments that can be advanced in support of each application in section C. You should however try to work through the exercises first and prepare your own arguments drawing on some of the skills learnt in Part A.

You might approach the exercises in the following way:

• Read the documents through once.

• Read through the document a second time but this time highlight any key words or sentences that you think are important.

• Read the criminal evidential rules contained in Chapter 5 and the criminal stand­ard and burden of proof contained in this chapter and details of potential sources of miscarriages of justice (also in this chapter).

Consider any additional evidential rules that might be relevant (refer to the Table in Appendix B).

• Read any cases and legislation mentioned in the documentation.

• Consider whether any other cases might be relevant - for example, do the cases that are referred to in the documentation lead you to a research trail of other cases/legislation?

• Start to construct possible grounds - you might want to use a ‘strengths and weaknesses' table similar to the Table discussed in Chapter 2 but this time divide by ‘points of law' and ‘incorrect factual analysis' arising from the summing-up or ‘aggravating factors' and ‘mitigating factors' in the case of the sentencing exercise.

7.8.1 Exercise 1 (Sentencing)

In this exercise you will play the role of defence advocate. Following a trial, your client Simeon Notte (who is the defendant) has been convicted of violent disorder under the Public Order Act 1986. This exercise requires you to find the correct sentenc­ing guideline for this type of offence to appreciate the range of sentences that the court could make and what matters will be regarded as aggravating factors (that would increase the likely sentence) and mitigating factors (that would reduce the likely sentence). Where an offence has a possible sentence that includes both a cus­todial sentence and/or a community sentence, it is also important to read and con­sider the sentencing overarching guidelines ‘Imposition of Community and Custodial Sentences', in particular, whether the ‘custody threshold' or the ‘community order threshold' have been passed to justify imposing such a sentence. It is also important to consider whether the offence allows for other types of sentences to be imposed such as a fine which might be more suitable depending on the level of seriousness of the offence. Finally, any recommendations made in a pre-sentence report should be taken into account in accordance with s. 30 of the Sentencing Act 2020.

Instructions

You are a solicitor employed by LegalWays LLP and have represented the defendant Simeon Notte at a trial for violent disorder under the Public Order Act 1986 for which he was convicted. You are now appearing before the judge to make a ‘plea in miti­gation' to persuade the judge to give the minimum rather than the maximum sen­tence for the offence. You have been asked to read the pre-sentence report that was ordered by the judge (see document one).

Construct your submissions with reference to:

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

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

3) the offender's conduct; and

4) the offender's capacity to reform; and

5) relevant sections of the pre-sentence report that assist your arguments about the appropriate sentence or that you disagree with.

It may be necessary to disagree with the recommendations made in the pre-sen­tence report. Those recommendations are not binding on the court and so it may be necessary to persuade the judge against adopting the recommendations if they are adverse to your client.

You may find the following case helpful:

R v York [2018] EWCA Crim 2754.

You may also find the following legislation and guidelines helpful:

Sentencing Act 2020, ss. 125, 201, 202, 230(2), 204.

Sentencing Guideline: Violent Disorder - see www.sentencingcouncil.org.uk. Sentencing Guideline: Overarching Principles - see www.sentencingcouncil.org.uk. Sentencing Guideline: Overarching Guidelines Imposition of Community. Custodial Sentences - see www.sentencingcouncil.org.uk.

Case Study 1 - Simeon Notte (Sentencing)

Document One

Extracts from Pre-Sentence Report

The Offence

Simeon was convicted of violent disorder contrary to s. 2 of the Public Order Act 1986. This offence relates to an altercation which was alleged to have taken place between him, a group of his friends and another rival group. The events took place outside a local cinema. Altogether six men were charged but only four (including Simeon) were convicted.

The prosecution’s case was that at the time of the offence Simeon had gone to see a film with his girlfriend (Diane) and as he was leaving the cinema, he said hello to two men he recognised from an estate close to where he lives (Frank and Meko). A group of three men who were also coming out of the cinema then barged past all three of them. One of the men was known locally as a drug dealer who lives on the same housing estate as Frank and Meko (who were also convicted along with Simeon). This man is called Thomas (‘Tommy’) Lennon and was convicted at a separate trial of wounding contrary to s. 18 of the Offences Against the Person Act 1861 but arising from the same incident. It was accepted at the trial that Tommy made a derogatory comment about Simeon’s girlfriend Diane describing her as “a sight for sore eyes”.

The Offender

Mr Notte currently resides at 3 Prince Court, AnyTown, Landshire with his mother and was born on 12 February 1996. Prior to the incident he was employed as a tax consultant with a leading business advisory service but has since lost his job due to the criminal charges that he faced. Mr Notte owns the property at 3 Prince Court and cares for his ageing mother who has Parkinson's disease. He separated from his girlfriend Diane, a few weeks after the offence.

Simeon continues to maintain his innocence in terms of starting the fight but accepts that he was involved in the fighting that ensued and that property damage was caused, and people were injured.

Simeon received a caution following a stop and search last year when the police found a knife on him. He says this was not intended as a weapon as he had bought it for a friend who was going travelling and it was more a multi-tool device. Details of his caution were admitted as evidence at the trial.

Recommended Sentence

The court has a range of sentences available to it including a discretionary cus­todial sentence. This is a defendant with a recent prior record, but it is for a cau­tion which is less serious than a conviction. Mr Notte continues to maintain his innocence in terms of starting the fight and does not accept guilt despite the findings of the jury. The defendant was not found to have had or used weapons during the present offence for which he was found guilty although he did par­ticipate in an incident that involved the serious acts of violence in which two members of the public were injured. This is in my view culpability in the mid­range of the Sentencing Guidelines for Violent Disorder and the jury did accept evidence that Mr Notte had initially attempted to diffuse the situation before the fight broke out.

7.8.2 Exercise 2 (Grounds of Appeal)

In this exercise you are asked to consider an extract from a summing-up in the ficti­tious case of R v Greenham in order to advise on potential grounds for appeal. These will be based on a defective summing-up given by the trial judge. You may find it helpful to re-read the section in this chapter relating to judicial directions and warn­ings as well as referring to the Crown Court Compendium to consider where errors may have been made in the summing-up.

Instructions

You are a solicitor employed by Messrs Munsted and Partners and have been asked to draft a notice of appeal based on the summing-up given by the trial judge which is thought to have breached a number of evidential rules.

Consider the following extract from the summing-up. In order to identify the grounds for appeal consider where the summing-up may have been defective by considering the latest edition of the Crown Court Compendium.

You may also find the following cases helpful:

• R v Turnbull [1977] QB 224

• R v Highton [2005] EWCA Crim 1985

• R v Hanson [2005] EWCA Crim 824

• R v Summers (1952) 3 Cr App R 14

• R vMiah [2018] EWCA Crim 563

• Derek William Bentley (Deceased) [1998] EWCA Crim 2516

You may also find the following legislation helpful:

• s. 101(1)(g), 101(3) and 101(4) of the Criminal Justice Act 2003

• Code D of the Police and Criminal Evidence Act 1984

Case Study 2 - R v Greenham (Appeal)

Document Three

Extractfrom Summing-up of His Honour Judge Toklein

The defendant Teresa Greenham has been charged with robbery. Your role as members of the jury is to consider her guilt or innocence. You have heard the prosecution’s case that in the early hours of the morning on 9 March (year) the defendant attempted to steal from a member of the public, Darren Smith. At first, she approached Mr Smith on compassionate grounds asking for money in order to buy food. When he refused, she then blocked his path so that he could not continue on his way and she then became aggressive and threatened to “cut him” unless he gave her £50. Mr Smith gave her all that he had on his person at the time which was £10.00. He then managed to run away and call the police on his mobile telephone. The police were called to the scene at which time the defendant had fled. Mr Smith described the defendant in terms of colour, height, clothing and distinguishing features all of which matched the defendant. The defendant was later arrested by the police, but Mr Smith failed to correctly identify the defendant Teresa Greenham during a police video iden­tification procedure at the police station under Code D of PACE 1984. At the time of the arrest the defendant had £10.00 on her person.

During the trial, objection was made to the admissibility of the visual identifi­cation evidence but I allowed the evidence to be admitted. 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 Ms Lowden’s evidence is recognition evi­dence. This is because the main prosecution witness Ms Lowden is known to the defendant. She is a shopkeeper and the defendant, who was homeless at the time, had often slept outside her shop. Ms Lowden often threw water over the defendant to get her to move from the shop and they would often argue as a result and one such altercation led to the police being called. Ms Lowden struck me as a truthful witness, one who is to be believed.

You have been permitted to consider evidence of the defendant’s previous con­viction for theft of a bicycle which took place eight 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.

During the trial the defendant claimed that the £10 was money that she found in the street. 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.

Your role is an important one. Having heard the evidence, you must now decide on the defendant's guilt or innocence. 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.

When you have completed both exercises, go to Part C to find suggested approaches and solutions to the exercises.

Self-Reflection Checklist

You can now check Part C for further guidance on how to approach the two exercises in this chapter!