Summary
This memorandum is in connection with accused Basil who happened to be a trouble maker especially in respect of shop lifting and other troubles in shop. On 10 October, a scuffle broke out between Basil and Mike as the former had bad reputation and the latter thus asked him to leave. Similarly, Basil grabbed Mike and pushed him leading him to head injuries. However, he fled the scene yet police had arrested him later at home address. Similarly, there are a number of pieces of evidence such as witness statements of Mike, PC KELLY and Abdul, medical records, police station interview of Basil, and previous convictions. This MA thus provides discussion accordingly considering the strengths and weaknesses of evidence, any other evidence for investigators, and full code test for crown prosecutors, and issue of public interest.
Decision to prosecute: appropriate charhe
As a prosecutor, I have the power and duty to make decision to prosecute or not, and bring appropriate charge. Appropriate charges on the relevant facts, given that Mike has received medical treatment and had been wounded, can be for offences under sections 20 and 47 OAPA. The actus rea and mens rea for both have to be analysed before analysing the appropriate charge. Section 20 states that “Section 20 provides as follows: Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any person, either with or without any weapon or instrument, shall be guilty of an (offence punishable with a maximum of five years’ imprisonment).” GBH involves really serious harm that may not be permanent or dangerous but does require break in skin’s continuity. The key difference between section 20 and the more serious section 18 is level of mens rea. Prosecutor has to address whether there was mere recklessness or intention, as section 18 is a specific intent crime. For section 20 mere foreseeability of conduct might be causing harm is sufficient.
Appropriate offence where injury and harm are lesser than section 20 malicious wounding or GBH is section 47 OAPA relating to ‘assault occasioning actual bodily harm’. The CPS guidance states that “his offence is committed when a person intentionally or recklessly assaults another, thereby causing actual bodily harm (ABH). Harm need not be permanent but must be more than transient and trifling .” It further provides that “[t]his definition was cited with approval in in R v Brown [1994] 1 AC 212 which confirmed that consent may be a defence to battery but not to the infliction of any more serious harm (ABH or GBH), absent good reason for a recognised exception. Psychological injury not amounting to a recognisable psychiatric illness does not fall within the ambit of bodily harm. Psychiatric injury should be supported by medical evidence.” Citing the case of Savage (supra), Wilson notes that in that case “he accused threw a pint of beer in V’s face. The glass slipped, causing a cut to the victim’s wrist. In Parmenter, P shook his young son so roughly that he suffered serious injury. The House of Lords ruled, overruling Spratt, that it was not necessary for the prosecution to prove actual foresight of harm to be guilty under s 47.”
More evidence by medical expert is needed on the level of harm. This will be crucial in choosing between section 20 and section 47. It must be noted that the evidence has to be evaluated in overall context and not on statistical basis, as noted by Court of Appeal in R v Adams, as following :
“the attempt to determine guilt or innocence on the basis of a mathematical formula, applied to each separate piece of evidence, is simply inappropriate to the jury’s task. Jurors evaluate evidence and reach a conclusion not by means of a formula, mathematical or otherwise, but by the joint application of their individual common sense and knowledge of the world to the evidence before them … [T]o introduce Bayes’ Theorem, or any similar method, into a criminal trial plunges the jury into inappropriate and unnecessary realms of theory and complexity deflecting them from their proper task.”
Witnesses statement
The first important evidence is of witness of Mike. He was an important person given the eye witness of the last incident happened between Mike and Basil. It provides an essential account of the assault committed by Basil against Mike. Similarly, Mike is a witness of fact since he is eye witness to that incident and also a victim. The statement is important to impose a charge of actual bodily harm since there is clear head injury without much serious injury. Similarly, section 47 of the Offences Against the Person Act 1861 can be imposed on Basil as prima facie charge on Basil.
Secondly, there is an important statement of Abdul, who was security guard during the scuffle between Mike and Basil. Similarly, he can be an asset for Mike’s account and can be corroborated for the crime scene. Equally, it supports conviction of Basil as he fled scene, which may be argued as consciousness of guilt on the part of Basil. Abdul is qualified as a statement of fact and it is important piece of witness since such a witness is taken as an eye witness to incident.
In support of charges on Basil, his arrest from home further strengths the assault of him. Further, there is a statement of PC Kelly which supports that Basil had committed crime or allegations on him for any crime. Under the Police and Criminal Evidence Act 1984 (PACE), arrest of person is useful to investigate for crime. Another important piece of evidence is transcript of Basil’s interview at the police station. This is documentary evidence which plays an effective role as a primary piece of evidence.
Medical evidence
The medical record confirms that Mike had suffered from serious wounding as it required stitching. This means that there was breach of continuity of skin establishing injury of wounding. The expert medical evidence would therefore strengthen the case of prosecution, as argued by Mackay and Colman:
“In decisions regarding admissibility, the crucial question ought to be whether or not the expert evidence could make a significant contribution to the jury’s understanding of the accused’s state of mind. This must depend, of course, on the judge’s assessment of the probative value of the evidence. If the expert evidence points to an abnormal state of mind or personality of any degree on the defendant’s part at the time of the alleged offence, then we submit that the court ought to exercise its discretion in favour of admitting the evidence.”
Weaknesses of given evidence
Similarly, there are weaknesses in respect of the given pieces of evidence. And weaknesses per evidence can amount to exclusion as the court has discretion to exclude any evidence. The burden is on the Crown Prosecution Service (CPS) for discharging the legal burden of guilt. In the seminal case of Woolmington v DPP, the court said that defendant would only be convicted if the court or jury in question should be sure about the guilt of the defendant.
The denial of Basil about assault can be a weakness to the case of Mike. This leads to a factual dispute which essentially requires corroboration of each evidence in hand. Equally, the scuffle between Mike and Basil is not established by Abdul as his evidence only about escaping of Basil. This further makes the evidence of statement of Mike dubious which essentially further issues for determining factual dispute, and similarly requires a considerable take about evidence in all manner.
In further, there is no real evidence confirming about incident or scuffle between the two. It is usually in respect of any stolen goods or a weapon or instrument or CC TV Footage or drugs etc to have a real effect on the case. Such a weakness may be a blow to a case. The evidence may be lacking because the facts demonstrate a kind of bias in the words of Mike since he found Basil as frequent shoplifter and thus he acted against him. This can also weaken the evidence. Similarly, there is a need of essential or supportive evidence for establishing actus reus as well as mens rea. Otherwise, this bias may create a motive behind a crime which may not favour the victim or Mike because he a previous encounters with Basil.
Cooperation in interview
The court would have been able to draw adverse inferences from defendant’s silence in situations specified by sections 34 to 37 Criminal Justice and Public Order Act 1994 (‘CJPOA’). Basil opted not to be silent nor give pre-prepared statements. The advantage of answering all questions of police are succinctly summarised by Deborah:
“The advantage of a client answering all questions in interview is that this allows the client to put his version of events on record straight away. This can be particularly important if the client is raising a specific defence which imposes an evidential burden on him, such as self-defence or the defence of alibi (see Chapter 16). If the client’s defence is particularly strong and the client comes across well when interviewed, answering questions in full may even result in the police deciding not to pursue the case any further if they accept the truth of the client’s version of events.”
No adverse inferences possible
Further evidence – evidence by corroborating witness, CCTV, and other evidence – can still be used to draw adverse inferences if Basil changes his statement, or his account is contradiction. Nonetheless, his cooperation and full account of defence weakens prosecution’s case. In case of Dervish and Anori, it was stipulated that “ (1) if faced with a situation of silence on charge and interview, the prosecution may choose to remind the court of the potential drawing of adverse inference under both subsections, and; (2) if there is any doubt as to the admissibility of the interviews, the prosecution could be prepared to invite the court to draw an adverse inference under section 34(1)(b) if applicable.” In the case of R v Cowan, this position was affirmed.
Furthermore, since prosecution has to consider realistic prospect of conviction at the stage of charging decision applying Full Code Test (analysed later), the adverse inferences may not be drawn against Basil where police made up its mind to charge, under Code C paragraph 11.6, Code of Conduct for Prosecutors (‘CCP’). No interview after that point should take place. Hence, at this stage, adverse inferences can be made provided Basil changes his statement. At this stage, full account of defence has been provided. Basil has remained consistent in his account and this is a weakness to prosecution’s case.
Self-defence
The strengths and weaknesses of self-defence raised by Basil need to be considered. Basil had been cooperative during police interview and answered the questions of police, instead of opting for ‘no comment’ or submitting written statements. Furthermore, he argues that Mike had provoked him. For self-dence, section 76(6) CJIA 2008 is relevant. Under this, there is no duty to retreat but the uase of force must be necessary and reasonable. The claim of Basil is weakened by AG Reference case where the shopkeeper armed himself with petrol bombs to protect against rioters. Protecting property from burglars was valid reasonable force use in Martin (Anthony) and was held to be proportionate. Even if Mike, therefore, shoved Basil, given his character and prior convictions which Mike claims to have knowledge of, the use of force would be proportionate and self-defence claim by Basil would be undermined.
Basil would seek to rely on Rashford case where provocation was a valid ground for engaging in self-defence. In fact that case held that even if defendant provoked to fight, acting in self-defence does not undermine said defence. The prior convictions (analysed elsewhere as well) of Basil are highly relevant in analysing credibility of his statement vis-à-vis Mike and Abdul’s account. He had recently been convicted of theft three times in 2021, 2023, and 2024, and more relevantly he was convicted of assault in 2019 and 2021. This makes account of Mike more credible that he knew Basil had history of theft and therefore had to prevent this eventuality.
Further evidence
Given the lack of real evidence per crime scene, it is important to have more potential evidence. Similarly, investigators require an evidence of CCTV footage. It is an excellent piece of evidence and it is common that police investigators gather such documentary evidence. It provides a visual identification and similarly can be used to identify defendant in identification parade. Consider the case of R v Moran where the court allowed the CCTV evidence for conviction of murder. The prosecution adduced the said evidence and alleged that CCTV could establish violent incident. Similarly, the said evidence was used and the court thus made it admissible and upheld the conviction for murder.
For effective evidence with regard to incident, photographs of Mike’s injuries and shop could also be gathered to show that force was employed including a damage to stuff at shop. The photos contribute to identification evidence which is also required by CPS guidance. Similarly, there is Code D that provides for identification through photos or video. And this must be reminded against such photos to confirm the identity. This is also important to identify the crime scene given revealing the identity of offender.
Given the lack of actual footage or photos of the scene, there may be a need of expert witness to assess the situation. Part 19 of the Criminal Procedure Rule expert witnesses are required when there is a need to achieve certain overriding objective. This rule is applied and considered in respect of medical expert following any technicality of the matter per part 19. Similarly, it is also important to get an unbiased opinion in relation to any matter. Equally, the witness of such nature may attend to court for oral evidence per section 30 of the Criminal Justice Act (CJA) 1988. Similarly, doctor can also be called upon to determine the injuries and the wound he had suffered at the hands of Basil which can corroborated to impose charge of section 47 OAPA on the defendant.
Full Code Test
There are normally stages covered in respect of the test i.e. evidential stage and public interest stage. Question arises if there is sufficient evidence to make Basil liable or he is being convicted. Similarly, it needs to be established if the evidence is sufficient for his realistic prospect of conviction.
Evidential Stage
The relevance of the Code is essential since this evidentiary stage may like to be passed given both physical and documentary evidence. Given the statements of victim as well as witnesses such as Abdul and PC Kelly, this is essential to point out that evidentiary stage may be satisfied. However, the disciplinary record of Abdul, who may be an interested party given his character. However, issues may arise considering previous convictions of both Mike and Basil. Given that Mike was convicted for Fraud in 2018 may give room for arguments to defense council which can also impact on the credibility of statement of Mike as a witness. However, it is not flexible to consider bad character evidence of a person other than the defendant. There are very limited grounds. Section 100(1) of the Criminal Justice Act 2003 (CJA) very well provides for the limited grounds in admissibility of character evidence other than the defendant.
“(1) ... evidence of the bad character of a person other than the defendant is admissible if and only if (a) it is important explanatory evidence, (b) it has substantial probative value in relation to a matter which….”
The issue in respect of claim of Basil of self-defence can also be argued. Self-defence is available when there is assault. Similarly, it is connected with provocation. In this regard, evidentiary burden may be shifted onto the prosecution which needs to disprove it beyond reasonable doubt. The case of R v Owino is important in which the court said that use of force should be reasonable to discharge the burden. It is now a question of facts to decide if Mike’s actions in ousting Basil could amount to excessive force for the purposes of self-defence.
Nevertheless, the evidentiary stage is likely to be passed successfully as the prosecution can also argue on the basis of previous convictions. Basil was previously convicted on three occasions for theft and respective two times for assault. They are very recent one. It is clearly outlined under section 101(1) of the CJA that prosecution can introduce the evidence of bad character following previous convictions of Basil. In R v Campbell, the court allowed the previous conviction evidence and the convicted of the defendant for the murder of his niece. Similarly, in R v S, the court convicted the defendant for the abuse since he had assaulted the sisters on various occasions. In the said case, the court admitted the evidence per previous convictions although it was subject some 30 years. Similarly, it may be used when there is issue in respect of proceedings but it is essential to include considering the context of entire case. Essentially, the issues do arise with regard to character of victim i.e. Mike, yet there is very likely that courts may give it immense value to discourage other evidences.
Public Interest Stage
The public interest, generally, comes after the evidential stage has been satisfied by the prosecutor. Prosecution may not be required if it is not in public-interst per para 4.4 CCP. The relevant factors to assess public interest is contained in para 4.14. these factors involve: the seriousness of the offence; level of culpability of suspect; circumstances of victim and the level of harm; suspect’s age and maturity; impact on community; whether prosecution is proportionate response. CPS’ guidance in this regard shows that Basil has considerable culpability and wounding was caused which means it is a serious case of assault. Culpability per CPS guidance is determined by:
“i. the suspect’s level of involvement;
ii. the extent to which the offending was premeditated and/or planned;
iii. the extent to which the suspect has benefitted from criminal conduct;
iv. whether the suspect has previous criminal convictions and/or out-of-court disposals and any offending whilst on bail or whilst subject to a court order;
v. whether the offending was or is likely to be continued, repeated or escalated;
iv. the suspect’s age and maturity.”
Given the threat Basil poses to community by intruding in a shop and assaulting a shopkeeper, prior convictions, having good age and level of maturity, and other factors show his culpability. The level of evidence is also sufficient to act in public interest to charge hi,
Conclusion
Considering the full code test, it is first considered that actions of defendant (i.e. Basil) are such that can have likely conviction for assault. Firstly, there is victim’s evidence which establishes a possible scuffle between Mike and Basil. Similarly, there is a witness i.e. Abdul who found to be a witness of the escape of the offender i.e. Basil. Further to this is the statement of KC KELLY who found the offender being apprehended by police. This supports the view that assault might be committed by Basil. In addition, there is documentary evidence such as medical record which confirmed that Mike was wounded and got stitches. In essence, the above pieces of evidence clearly supports the conviction of Basil. The nature, extent, and type of wounding – whether it broke the two layers of skin – and extent of harm and injury must also be provided.
Bibliography
• ‘ADVERSE INFERENCES AND REMAINING SILENT’ (Reeds
• A-G’s Reference (No 2 of 1983) [1984] 2 WLR 465
• AAD [2022] EWCA Crim 106
• Andrew L-T Choo, Evidence (6th edn., Oxford University Press, 2021) 15
• As Laws LJ stated in R v Knight [2003] EWCA 1977, “We wish to make it crystal clear that of itself the making of a pre-prepared statement gives no automatic immunity against adverse inferences under section 34” at para [13].
• ashford [2005] EWCA Crim 3377
• CPS, ‘Offences against the Person, incorporating the Charging Standard’ (CPS 31 October 2024) https
• CPS, ‘The Code for Crown Prosecutors’ 26 October 2018 https://www.cps.gov.uk/publication/code-crown-prosecutors
• D Ormerod and D Perry, Blackstone’s Criminal Practice (34th edn., Oxford University Press 2024) 1578
• Deborah Sharpley, CRIMINAL LITIGATION PRACTICE AND PROCEDURE (College of Law, 2022) 24
• Dervish and Anori [2001] EWCA Crim. 2789
• Golding [2014] EWCA Crim 889.
• Liat Levanon, ‘SEXUAL HISTORY EVIDENCE IN CASES OF SEXUAL ASSAULT: A CRITICAL RE-EVALUATION’(2012) 62(4) The University of Toronto Law Journal 609, 611
• Martin (Anthony) [2001] EWCA Crim 2245
• Mike Redmayne, ‘The Relevance of Bad Character’(2002) 61(3) The Cambridge Law Journal 684, 688
• Pointer [1997] Crim.L.R. 676
• R D Mackay and A M Colman, ‘Excluding Expert Evidence: A Tale of Ordinary Folk and Common Experience’ [1991] Criminal Law Review 800, 809
• R v Adams [1996] 2 Cr App R 467
• R v Campbell [2005] EWCA Crim 248
• R v Cowan [1996] Q.B. 373
• R v D [2006] EWCA Crim 1139 and R v Chan-Fook;[1993] EWCA Crim 1
• R v Donovan;[1934] 2 KB 498
• R v Moran [2007] EWCA Crim 2947
• R v Owino [1996] 2 Cr App R 128
• R v S [2006] EWCA Crim 756
• R v Savage; DPP v Parmenter [1992] 1 AC 699.
• Section 100(1) of the Criminal Justice Act 2003
• William Wilson, Criminal law (7th edition, 2020) 247
• Woolmington v DPP [1935] AC 462