Analyzing Legal Contexts: Assault, Sexual Offenses, and Defense Procedures

Part 1 Incident 1 assault occasioning actual bodily harm

You have a right to free legal advice and the police cannot question you until you have received access to the legal advice. I can come down to the police station as my office is just 10 minutes away from the police station.

You are in detfention and you must be informed the custody officer about the legal right to be represented by a solicitor. As per law, all you can consult and communicate any time with a solicitor privately.

The police can waive your right to legal advice, if the case is serious. This is provided under Section 8 of the Police and Criminal Evidence Act (PACE) 1984. If you waive this right, it must be recorded.

The police can hold you for up to 24 hours before they have to charge you or release you. You can be released on bail if there is not enough evidence to charge you. You can be

released on conditional bail if the police think that you commit another offence, fail to turn up at court, intimidate witnesses, or obstruct the course of justice.

Assault occasioning actual bodily harm is a serious assault. The police have to prove that you have unlawfully hit or used force against someone, and that the assault has caused them an injury more serious than bruising or grazing. For you to be liable, they need to prove that you had the criminal intent to cause the harm and your action caused the harm.

If the injuries you caused are of a severe nature, you can be charged with grievous bodily harm. If the injuries were caused in an incident, you may have the defence of self-defence and you will not be guilty of an unlawful assault. However, the force that you used must be reasonable and not disproportionate.

The case will be dealt with in the Magistrates Court or the Crown Court, depending on how serious the case is. If it is serious and you are guilty, there is a very high risk of sending you to the prison, which may be years

Incident 2 Dafydd has the right to free legal advice as he is being questioned at a police station. Dafydd is 15 years old and anyone under 16 or 18 if they are in full-time education or on certain benefits automatically gets legal aid for legal representation. Even in case Dafydd cannot get free legal aid, Dafydd may be able to get free advice from the Law Centres Network, Citizens Advice, or the AdviceNow.

Our firm, as your legal advisor, can apply for legal aid on Dafydd’s behalf. If Dafydd qualifies, the government will pay Dafydd’s costs directly.

Even if Dafydd pleaded guilty, it cannot be justified unless there is a significant change in circumstances that can affect the seriousness of the offence. We can determine the charge depending on the seriousness or not seriousness of the injuries. Serious injuries are those that require medical assessment at least, and can be damaged teeth or bones, extensive and severe bruising, and cuts to name a few.

Incident 3

The custody officer is correct. Acting for more than one suspect at an interview can cause a conflict of interest. If upon taking instructions, there is a clear conflict of interest between Dafydd and the other boy, I must only act for the suspects who are not in conflict with each other. In this case, I may need to consider if I needs to withdraw from representing all of the suspects. It can be determined only after I speak with the other boy and Dafydd and they provide information that incriminates each other. If that happens. I inform the custody officer that I will not be able to provide representation. I do not need to give the reason for this, as it will alert the police of the conflict between the suspects and cause confidentiality issues.

Part 3

Q1. a

Rape occurs in in a private setting. The victim is the only witness. If John does not plead guilty, Debbie will have to give evidence in the court. In case of conflicting evidence, the prosecutor must assess the credibility and reliability of Debbie’s evidence. The prosecutor must use all the information provided to them. The case may not proceed if after considering the available evidence, there is not enough to meet the required evidential stage.

Evidence will be in the form of corroboration or supporting evidence (medical, scientific evidence, CCTV evidence, or eyewitnesses). The prosecution must prove the defendant's guilt because cases may fail if the jury cannot decide between the victim and the defendant’s statements. In this case, Debbie had disclosed being raped to Megan before reporting it to the police. Hence, strict legal rules of evidence will apply to admitting this disclosure as evidence at court.

The key evidence in the case are the green floral maxi skirt produced as exhibit AS/1; a pair of white knickers produced as exhibit AS/2; and a pair of sheer tights ripped on the right-side seam produced as exhibit AS/3 (CARDIFF CENTRAL POLICE WITNESS STATEMENT: SIAN SMITH - Document C); and grey fleece throw from the sofa produced as exhibit AS/4 (CARDIFF CENTRAL POLICE WITNESS STATEMENT MEGAN HALFPENN - Document D). Along with these, there are the John Wyatt’s charge sheet and form MG4A; a statement from the complainant, Debbie Thomas; a statement from the arresting and investigating officer DC 607 Smith; statement from Ms Megan Halfpenny; statement from Melvyn Clegg, and a statement from John Wyatt taken by his defence solicitor.

b.

John is raising the defence of consent.

The Sexual Offences Act 1956 defines rape as any act of non-consensual intercourse. This means for a rape, Debbie must have not consented to the sexual intercourse. The lack of consent is inferred from the surrounding circumstances. John can raise the defense that Debbie was consenting, and the jury must deice based on the facts.

The Sexual Offences Act 2003 provides that a person consents if they agree by choice, and have the freedom and capacity to make that choice. There must be an agreement by choice. The law does not require a person to have resisted physically to prove a lack of consent. All the circumstances surrounding the offence must be considered.

Consent is important in situations where there is a pre-existing relationship between the parties in the case. The key point is to determine whether or not Debbie was able to give the consent and give the consent at the time. The Sexual Offences Act 2003 will require John to show that his belief in consent was reasonable. In deciding whether the belief of John was reasonable, a jury must have regard to all the circumstances, including any steps John took to ascertain whether Debbie consented.

The court also recognised the fact that people who have consumed alcohol may reach such a level of drunkenness that they no longer have the capacity to give consent. Evidence is required, such as injury, struggle or immediate distress to prove a lack of consent.

In this case, John and Debbie have a pre-existing relationship. They had sexual intercourse on 23rd April. On 1st May, as per John’s statement, they kissed. Debbie did not stop John when he touched her breasts outside her top. He lifted her skirt and she pulled his hand away and told him that she was not that sort of girl. John believed that she was saying that in a flirtatious way. John carried on and at no point Debbie stopped him. This made John believe that she was consenting until the time when she became angry and agitated.

Further, the circumstances were not so that Debbie reached a level of drunkenness that she lacked the ability to say no. The jury has to consider all these circumstances to determine John’s defence of consent from Debbie.

Q2.

Special measures are required in case a witness is vulnerable or intimidated in order to enable them give their best evidence. Sexual offence is a serious crime and victims of such offence are eligible for special measures. This case involves a sexual offence and hence, Debbie will be entitled to special measures.

In this case, Debbie may be intimidated. Hence, a combination of special measures can be arranged. She can apply for a live link to give evidence during the trial from outside the court. If Debbie is giving evidence by live link and she does not wish to be seen by John, she can make an application for screens to shield the live link screen. Debbie can also used pre-recorded evidence and John can see and watch the evidence when it is played. A visual recorded interview is automatically admissible unless it goes against the interests of justice.

To prevent a defendant viewing a visual recorded interview, an early special measures application could be made to stop the defence showing it to the defendant, but it would have to be timely and may not be granted by the court.

Q3.

John must note that even if Debbie withdraws support for a prosecution and does no longer wish to give evidence, the case does not stop. The prosecution will find the reason for her withdrawal. The court hearing may be delayed to investigate this matter and to decide the next best course of actions. It is the prosecution’s duty to ask the police to record a statement from Debbie to explain the reasons for her withdrawal; confirm whether her original complaint was true; and find out whether he was put under any pressure to withdraw.

If Debbie’s statement is not the same as the original, the police will ask her the reason. If it is true, the prosecution will decide the possibility of continuing the case without her evidence and in the public’s interest. In case of any pressurised on Debbie, the police will investigate further to seek any offences, such as harassment or intimidation.

In case John pleaded guilty, he can plead guilty but disagree with the prosecution version of events. The court may hold a 'Newton hearing', if there may be a substantial difference in sentence if John was to be sentenced on the prosecution's version of events. In such hearings, the defence and prosecution can dispute the facts upon which the court is going to sentence John.

The court will consider a potential reduction for a guilty plea in accordance with Section 73 of the Sentencing Code and the Reduction. An acceptance of guilt will reduce the impact of the crime upon Debbie. It will save Debbie and John from having to testify. It serves public interest by saving time and money on investigations and trials. If the guilty plea is indicated at the first stage of proceedings, the reduction is one-third should be made. In the case, this is the first stage of hearing at which his plea will be sought and recorded by the court.

Q4.

b. There is a time limit of 28 days within which a judge may grant a certificate of fitness for appeal. If John is successful in his appeal the court can replace his sentence with one that is more appropriate.

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