Oral Skills

Workshop 5 (conference)
Supplemental Guidance
Supplemental Guidance – Role Play A
Below you will find, in bold, supplemental guidance on how to deal with some of the
matters raised in this conference as well as the answers to the questions raised by
the client in conference. These should be used to consolidate your conference
skills.

Demeanour

 Be bolshy and rude to Counsel.

 Tell them you clearly do not need them there as you are innocent and having a
barrister only makes you look guilty.

Counsel must bring the defendant around so that too much time is not wasted
in the conference trying to convince the defendant as to the importance of
legal representation. The defendant should be informed that everyone has the
right to legal representation, she is entitled to legal aid and therefore the
representation will be free of charge and you will act on her behalf – and in her
best interests – throughout.

Offence

 You were not acting suspiciously in Warmsburys at all.

 You were not looking at the CCTV cameras but rather you were trying to look for the
heaters so that you could stand under them as you were cold.
 If asked, you can confirm that you did leave the pram with Marcus for a little while
whilst you were looking at the toiletries. Maybe he put the items into the pram then.

Marcus

 Marcus told you, at Costa, that he had been following a couple around all morning
and had heard them say that they were going to the Market Hall next door to the
market. He then stole the card from the woman.
 You didn’t name Marcus in your interview because there is a history of domestic
abuse and you fear he may assault you if you snitch on him to the police.
 You are genuinely frightened of him and are adamant that you will not provide his
name to the police or in evidence.

It is important for Counsel to be sympathetic with the defendant about this

sensitive topic but also to explain that naming Marcus would give the police
the real culprit in this case which may potentially result in them reassessing
the case against the defendant.

Marcus could be spoken to by the police were the defendant to provide them
with his details. Of course he may deny the offence and the police may ask him
to provide a statement to that effect.

It is also right that this is the first time that the defendant has mentioned the
conversation with Marcus in the coffee shop, should she give this account in
evidence at trial then she will be asked why she had never mentioned it before
and it will be suggested that she is making it up to fit the evidence.
Previous conviction

 Your previous convictions for theft/attempt theft all relate to shop theft aside from
conviction 6 which was a theft from person, during which you elbowed the person out
of the way to steal their cash. You were initially charged with robbery but offered to
plead guilty to the two lesser offences and that was accepted by the Crown.
 You have had a drug problem in the past, namely crack cocaine. You have not
touched drugs since the birth of your first child.

The previous convictions for theft that are in similar circumstances to this
offence are of some age and the latest conviction is dissimilar in
circumstances. The Crown are still likely to seek to adduce them as bad
character under s.101 Criminal Justice Act 2003 but this will be opposed and it
is likely that that opposition will be upheld.

In terms of the drugs, the last conviction for drugs was 2018 and the
defendant’s eldest child is 7, therefore it is seemingly not correct that the
defendant has not “touched drugs” since his birth. Counsel should point this
out in a non-judgmental way and ask the defendant if she is mistaken about the
dates whilst making it clear that convictions for drugs are completely irrelevant
to this offence.

During the conference at an appropriate time please ask the following questions:

1. What is the maximum sentence for this shop theft?

Low-value shoplifting (less than £200) is a summary only offence, section 22A
of the Magistrates’ Courts Act 1980 and the maximum sentence is therefore 6
months’ imprisonment.

2. Will my trial be heard in the Magistrates’ Court?

Low-value shoplifting (less than £200) is a summary only offence, section 22A
of the Magistrates’ Courts Act 1980 but, where an accused is aged 18 or over,
s/he must be given the opportunity of electing Crown Court trial (s. 22A then
ceases to apply and higher sentencing powers would apply in Crown Court).
Handling is an either-way offence and so can be heard in the Crown Court but,
realistically, both are suitable for summary trial. Unless you elect trial in the
Crown Court (which is your right), this is a case that is destined for the
Magistrates’ Court and is the type of case that they deal with regularly.

3. What happens if the witnesses do not come to the trial?

Firstly, the prosecution will make enquiries as to why the witnesses have not
attended. Secondly, the prosecution will either make an application to adjourn
the case (which the defence will oppose as, without the witnesses, there is no
case against you) or the prosecution will drop the case. The Magistrates’ (or
CC judge if you elect CC trial) closely scrutinise any application to adjourn
proceedings and would only allow an adjournment for a good reason. If only
one witness did not attend, however, then the prosecution would reassess
their case and see if they could prove it without them before considering an
application to adjourn.
Supplemental Guidance – Role Play B
Below you will find, in bold, supplemental guidance on how to deal with some of the
matters raised in this conference as well as the answers to the questions raised by
the client in conference. These should be used to consolidate your conference
skills.

Demeanour

 Act upset.
 You know you have been in trouble in the past, but this is a really big shock for you
and you are devastated to be back before the court.

It can be difficult to deal with a client who is upset. This is where your natural
emotional intelligence needs to be used. Do not simply ignore the fact that
your client is upset but acknowledge that they are upset and that you
appreciate how difficult this appears to be for them. Gently steer the
conference back to what you need to discuss with the client.

Offence

 You completely deny the offences.

 The supermarket was very busy and you spent some time navigating around the
store and trying to find the perfect gift.
 You do not accept that you took longer than “normal” in the alcohol aisle, what is
“normal”?
 You do not accept that you have previously stolen from this store.

The description given by the witness Joanna Head is something to be explored

in cross-examination at trial, it is logical that there is no “normal” when it
comes to perusing shelves in a supermarket. In terms of the assertion from
Christopher Lindsay that you have stolen from the store before, the Crown
would need to apply to adduce this as bad character if they wished to rely
upon it. This is not an identification case and so it is irrelevant that Lindsay
has recognised the defendant from the store previously.

Marcus

 You and Marcus are back together and very much in love.
 You intend to call him as a witness at trial as he will say that you didn’t steal the bank
card or the items.

The comments made to staff/police about the defendant’s “ex-boyfriend” being

responsible and the pre-prepared statement will be adduced as evidence if
there is to be a trial. This will be directly contradicted if Marcus gives evidence
to the contrary and may look as though (i) they are both telling lies, (ii) they are
both in it together and she attempted to blame him at the scene or (iii) she is
lying to protect Marcus but she is actually innocent. Only the latter option
would be one that assists the defendant and there is a substantial risk that that
would not be the finding of the court.

Previous Convictions
  You are a recovering Class A drug user as demonstrated by your previous
convictions.
 Shortly after the birth of your youngest child you relapsed.
 You were on drugs at the time of the offence being committed and think that this is
why you were aggressive towards Joanna Head.
 If asked, you can confirm that there was no drug test taken whilst in custody.

If the Crown are made aware of the defendant’s drug addiction then the
suggestion will be that the defendant was stealing to fund a habit. This would
provide the defendant with the motivation to steal items in the store,
corroborate the assessment of her given by Joanna Head and cast doubt on
the defendant’s recollection of the event. The defendant may be asked at trial
why she was aggressive towards Joanna Head and must not lie but, at the
moment, the Crown are seemingly unaware of the defendant being on drugs at
the time. This may impact on the defendant’s decision as to whether to give
evidence later down the line but importantly it does not make her guilty of the
offence.

During the conference at an appropriate time please ask the following questions:

1. I have a pre-booked holiday next month; will I be allowed to go?

There is nothing to stop you from going abroad but it is important to ensure
that this holiday does not clash with any future court dates. It is unlikely that
the trial will take place next month but, when the court are booking the trial
date, I will inform them of your unavailability. Which days are you away on
holiday?

2. Can I appeal if I lose at trial in the Magistrates’ Court?

Yes, you can appeal against your conviction and/or sentence to the Crown
Court within 21 days of sentence being passed. The appeal would be a
complete re-hearing of the case and would be heard by two magistrates’ and a
Judge. If you lose on appeal, then the court can pass a greater sentence than
the one imposed in the lower court albeit it must not be greater than the
maximum sentencing power of the Magistrates’ and you may have to pay the
prosecution costs.

3. If the CCTV was not recording, then can Christopher Lindsay give evidence about
what he saw on the monitor?

Lindsay can give evidence about what he witnessed live on the monitor as it is
no different in principle from the evidence of a bystander who observed the
primary facts. If the issue in the case was identification then we could make an
application under s.78 PACE to exclude such evidence but the case law would
be against us, see Taylor v Chief Constable of Cheshire [1986] 1 All ER 225.
Supplemental Guidance – Role Play C
Below you will find, in bold, supplemental guidance on how to deal with some of the
matters raised in this conference as well as the answers to the questions raised by
the client in conference. These should be used to consolidate your conference
skills.

Demeanour

 As soon as Counsel starts fold your arms to create defensive body language.
 Part way through the introduction / agenda aggressively explain that you are sick of
being judged and you know that Counsel is judging you.
 Allow Counsel to calm you down and say, “Oh go on then, what do you want to
say?!”, sighing and rolling your eyes and relax your body language. If you feel what
Counsel has said would not have calmed a real client keep your arms folded but
make the statement as above.

It is important not to get off on the wrong foot with a new client, particularly
one who feels that Counsel is already not on their side. This will test Counsel’s
ability to handle a defendant who is difficult from the beginning. Counsel
should calm the defendant and bring the conference back on track as quickly
as possible. There is a fine balance to be had between being authoritative and
respectful.

Offence

 In Warmsburys you were not looking around for CCTV but rather looking around for
assistance in order to tell staff that Marcus was bothering you.
 You paid for the £9.99 legitimate purchase with money drawn out at an ATM on King
Street. You have since found the receipt for the withdrawal.
 You want to provide your bank statements to demonstrate that you have a healthy
bank balance as you are really good with the money that you do receive. It shows
that you have no reason to steal.

There is no suggestion that the £9.99 item was purchased using the stolen
bank card (if there was then there would be an additional charge of fraud) and
therefore it does not seem necessary to provide the ATM print out to prove that
cash was used. Nor will it assist with the defendant’s whereabouts on the day
as she accepts being in the same location as Camilla Allen and where the card
was stolen. The bank statements may be useful but realistically it does not
mean that the defendant had not stolen the items.

Marcus

 You did not name Marcus in interview as previously he has forced you to steal on his
behalf using bank cards that he has stolen. You have never been caught for this
before and it has previously happened in Warmsburys.
 Marcus would threaten to tell social services that you take drugs (even though you do
not anymore) if you did not do as he asked.

It is really important for Counsel to clarify that this did not happen on this
occasion. If it did then it may amount to a defence of duress. The threshold for
such a defence is very high and it is not assisted by the fact that it was not
 raised in interview. In reality, the defendant is not saying this did occur on this
occasion and, if she mentions in evidence that she has previously stolen from
the store – albeit at Marcus’ direction – then she would be adducing her own
bad character at trial.

Previous Convictions

 You are on a community order for an offence of theft from shop and are complying
fully with the probation service.
 You have finished all of the unpaid work.
 You want to tell the court that you have learnt a lot from this order and have changed.

Counsel must note that this alleged offence was committed during the
currency of a community order and will naturally ask how the defendant has
complied with the order in order to assist them with their advice on sentence.
In terms of the defendant telling the court about the order, however, she would
be adducing her own previous convictions in order to tell the court about it.
This may cause the court to think that there is a pattern emerging of low-level
criminal activity which would work against the defendant and demonstrate
propensity. If a decision is made not to adduce her previous convictions, the
Defence case cannot mislead.

Notwithstanding that, if the defendant still wished to tell the court about the
conviction then that is perfectly acceptable as, it works both ways, and may
show the defendant to be an open, honest and reformed individual. There are
arguments for and against this course of action and ultimately it is a matter for
the defendant.

During the conference at an appropriate time please ask the following questions:

1. Can I stop my mum from coming to the trial as I am really ashamed?

You cannot stop a member of the public from coming into the court room.
Whether you choose to tell your mum of these proceedings and when the trial
is going to take place is a matter for you.

2. Will I still have to do the remaining unpaid work on my current community order if I
am found guilty of these offences?

Maybe, it all depends on the sentencer. The present order may be left to run
alongside a further order or, it could be revoked and a new sentence imposed
that may or may not include further unpaid work.

3. A friend of mine was prosecuted recently and provided a defence statement. Will I
have to give one as I could name Marcus in that?

Provision of a defence statement in the Magistrates’ Court is entirely voluntary

and no adverse inference can be drawn from the defendant’s failure to serve
one. You can provide one should you choose to do so and that must be done
within 14 days from which the prosecution has complied or purported to
comply with its initial duty of disclosure. If you are intending to name Marcus
at trial then a defence statement is one way in this case to prevent the Crown
from alleging that you have ambushed them at trial with this information. If one
is provided then it will be given to the police and they will look into the
contents. Otherwise, it can be listed as an issue on the case management
form/PTPH form which will also prompt investigation. If you elect Crown Court
trial then you will be required to serve a defence statement within 28 days of
the date when the prosecution complies with its duty of initial disclosure (or
purports to do so).
Supplemental Guidance – Role Play D
Below you will find, in bold, supplemental guidance on how to deal with some of the
matters raised in this conference as well as the answers to the questions raised by
the client in conference. These should be used to consolidate your conference
skills.

Demeanour

 Act fidgety and anxious.

 Interrupt Counsel on a number of occasions.

Clients can exhibit a whole host of emotions during a conference. A client may
very well want to have their say. This is understandable. Your job is to control
the conference whilst being respectful of the client. You will need to decide if
the interruptions are matters which you need to explore at the stage the client
raises them, park them until later in the conference or if they are irrelevant.
Your assessment of the interruption governs how you deal with the matter.

Offence

 You think you left your pram with Marcus at Warmsburys whilst you went to the fresh
produce aisle. You are sure that this will be supported by Joanna Head.
 You answered no comment in your interview after providing your pre-prepared
statement as you felt that you had answered the key allegations and your solicitor
told you it was sensible.

Joanna Head does not state that the pram was left solely with Marcus at any
point but this can be explored in cross-examination. In relation to the interview,
the Crown may still ask for an adverse inference to be drawn if she gives
evidence about Costa Coffee, for example, or admissions from Marcus as to
his earlier “people watching”. These are facts that the defendant could have
told the police and chose not to. It will be a matter for the court.

Marcus

 Marcus has warned you not to give his name to the police or to the courts as he is
wanted for a number of dwelling burglary offences.
 You do not want to get him into trouble but will name him at trial if the court can
guarantee that his name will not get back to the police or to the press so that he will
not find out.

If Marcus is named as responsible at first hearing and/or trial then it will

inevitably get back to the police as they assist the CPS in complying with their
duty of disclosure. There is also no guarantee that the press will not hear of it
because they are entitled to attend at all public hearings. If the defendant does
not wish to name Marcus in those circumstances then that is a matter for her
but it is likely that she will be cross-examined about this and inference drawn
as to her failure to mention him. If Marcus is an acquisitive offender then a
non-defendant bad character application could be made if the defendant
changes her mind.
Previous Convictions

 You have been interviewed for two matters of shop theft committed since this one.
 Both were committed at stores in Altrincham but not at Warmsburys.
 You answered “no comment” in your interview.
 You have not yet been charged.
 There is CCTV evidence in that case that shows you committing the offences.

If the CPS prosecutor dealing with the defendant’s case is aware of the new
offences then they may wish to adjourn these proceedings in order for there to
be a joint trial. This is unlikely, however, given the minor nature of the
offending and the unknown timescale in getting the new matters to court.

Counsel must not inform the court of these pending matters without the
defendant’s consent but, if asked directly, then must seek the defendant’s
consent to mention them and, if refused, must withdraw.

Realistically, the impact of these offences will be upon sentence as it would be

in the defendant’s interest to have all matters dealt with together if convicted
due to the principle of totality. Also, Counsel cannot make the point in
mitigation that there has been no involvement with the police since the present
incident which, ordinarily, would be a strong submission.

During the conference at an appropriate time please ask the following questions:

1. Can I call character witnesses at trial?

A defendant can call character witnesses at trial in order to showcase their

good character. If you choose to do this, however, then you will be creating a
false impression of yourself as, in the eyes of the law, you are not someone of
good character as you have previous convictions. The Crown will likely
succeed in adducing all of your previous convictions at trial if you produce
positive character evidence.

2. Can you ask the police to check the integrity of their own witnesses?

The CPS have an ongoing disclosure duty and must disclose any information
that undermines the prosecution case or supports the defence case. The police
will inevitably check whether any of the Crown’s witnesses have records of
previous convictions, for example, and if they do – and if they meet the
disclosure test – then they will be disclosed to us. There is a very high
threshold to adducing the bad character of a non-defendant and so, even if the
witnesses do have previous convictions, it is unlikely that they would be
adduced at trial.

3. Is there any likelihood of a further community order?

It is possible that the court can revoke your current community order and
impose a new one or a suspended term of imprisonment with community
requirements.
Supplemental Guidance – Role Play E
Below you will find, in bold, supplemental guidance on how to deal with some of the
matters raised in this conference as well as the answers to the questions raised by
the client in conference. These should be used to consolidate your conference
skills.

Demeanour

 You are really suggestible and agree with everything Counsel says.
 Use phrases such as “I will do that, if that is what you think”, “I will do whatever you
tell me to do” and “I will only plead not guilty if you say I should.”

Counsel should make it clear that their role is to advise on the strength of the
evidence and as to what the plea should be based on instruction only. It is not
for Counsel to tell the defendant what to say, what plea to enter or where their
trial should be heard. Counsel must impress upon the defendant that these are
all matters for the defendant to decide upon.

Offence

 Now you have thought about it, you don’t think it was Marcus at all who stole the
items in Warmsburys.
 You think Joanna Head must have framed you and planted the items on your pram.
 Joanna Head was unusually obsessed with you, followed you and must be needing
to get to her “quota” of shoplifters for the month. She was quick enough to return to
work after the police arrived!

If Counsel suggests to Joanna Head that she has planted the items on the
defendant, lied to the police and provided a false witness statement then that
would amount to an attack on her character. This would allow the Crown to
adduce the evidence of defendant’s previous convictions in order to address
this. Furthermore, this is not something that has been raised previously and
would allow the Crown to infer that the defendant is making it up as she goes
along and will say anything to get herself out of trouble. The defendant can put
forward this account at trial but must be aware of the risks in doing so.

Marcus

 You cannot explain the presence of the card in your handbag other than Marcus
having put it there.
 You keep all of your cards and cash inside of your purse and, if you had stolen the
card, you would have put it inside of your purse in order to make it look more
legitimate.
 There is no evidence that you stole the card and therefore you are not guilty of
handling stolen goods.

The Crown have evidence that the card was stolen by someone. The defendant
does not need to have actually taken the card in order to be guilty of handling
stolen goods. If she knew or believed the card to be stolen at the time the card
was in her possession then she would be guilty of the offence. The point about
where the defendant keeps her purse/card is a trial point.
Previous Conviction

 You have missed your last 5 sessions of unpaid work.

 You are concerned that the court will hear about that and think that you are
untrustworthy and find you guilty.

Any breach of a court order will not form part of the evidence at trial. It will only
become relevant upon sentence as it will have an impact on the potential
sentence that the court thinks appropriate.

During the conference at an appropriate time please ask the following questions:

1. Will I have to pay for the stolen goods if I am found guilty?

On the face of it, no you will not have to pay for the items as the goods were
recovered. Only if the goods were recovered but in an unsuitable condition for
resale would the Crown consider making an application for compensation. In
this case that is only likely to apply to the fresh meat if anything at all. Just
because the Crown make an application for compensation does not mean that
the court will grant it and, if granted, your means will be taken into
consideration as to how much compensation is granted and the payment
terms.

2. Will I be able to plead guilty to the theft but not the handling?

Yes. The Crown would then need to decide if they accepted those mixed pleas
and if they are happy not to continue with the handling offence. This is
something we can ascertain on a without prejudice basis and see, prior to
entering pleas, if such an offer would be acceptable. If unacceptable then this
offer would not be used against you at trial.

3. What if I did do it but I don’t want to admit it as I am scared of going to prison?

If you did it and you tell me that you did it then my advice is to plead guilty.
You do not have to plead guilty even if you admit to it though, however, you
would not be allowed to give evidence to say that you did not do it. We would
simply have to test the evidence and ask the witnesses if they are sure. We
would not be able to suggest to any witness in questioning or give the
impression through questioning witnesses that you were not involved. Without
you giving evidence, you will probably lose. If you wanted to give evidence
after admitting it to me then I would have to withdraw. So, did you do it or not?