PRELIMINARIES Welcome / Put at ease
INTRODUCTION Self / Role / Objectives of Conference
CHECK: Client understands purpose of conference
Client has seen/read papers
Client understands stage proceedings have reached
OUTLINE STRUCTURE OF CONFERENCE
1. Deal with Barker’s bail query
2. Need to ask questions before can advise, therefore cover the following areas:
a) Clarification of Barker’s version of events
b) Barker’s response to what other witnesses say
c) Barker’s personal circumstances
3. Advice on (with reasons why)
a) Charge-what does Prosecution have to prove?
b) Plea-does he have a defence?
c) Evaluation of Strengths and Weaknesses of Barker’s position (in light of instructions and papers) chances of success
d) Consequences of being found guilty
e) If found/plead guilty-likely sentence.
ANY QUESTIONS FROM CLIENT
ENSURE CLIENT UNDERSTANDS:
i) The advice given
ii) What will happen next?
iii) Methods of communication after conference.
TAKE INSTRUCTIONS FROM CLIENT-CONFIRM NEXT STEPS
PREPARATION AND PLANNING
R v. Tony Barker
OVERVIEW
Location of conference: Chambers (with a representative from solicitor)
Client:Tony Barker
Self-employed
49 Parklands Crescent, Polegate.
Charge: Dishonestly receiving a stolen microwave oven worth $ 99.99 from Safeway’s Superstore in Eastbourne, contrary to section 22 (1) of the Theft Act 1968.
Stage in Proceedings: Next appearance is plea before venue hearing.
SUMMARY of client’s version of events/charge/background:
On 8th March 2004, Mr Vishal Soora had a conversation with Tony Barker at the Shipwright’s Arms Public House during the evening when Mr Barker said that he could get him a brand new Microwave for about $40, which was bankrupt stock. Mr Barker then said that he would fetch it from his car. He paid Mr Barker $40 and took home the microwave with a box marked ‘Zanussi CX1 Microwave Oven’ though the box was opened already. On the following day, having unpacked the microwave Mr Soora saw that it had a plastic security tag with a bar code on it. The number on the code was 1357924/01. He then found that there was a Safeway’s Superstore label stuck on it saying ‘Safeway Value: Microwave price $99.99’. As Mr Soora feared that it might be stolen so told him about the tag and the sticker he just laughed and said ‘Well what do you expect for $40?’ He asked Mr Barker to money back what he declined. Mr Soora then went to Eastbourne police station and spoke to a PC Parrott, described her what happened and gave her the Microwave.
The Loss Prevention Officer of Safeway Superstore later confirmed the police that the security tag attached of a Zanussi CX1 microwave was a Safeway’s tag with the unique identifier 1357924/01,appeared to be the missing microwave.
Mr Barker was arrested and taken to Eastbourne Police Station. He said on interview that he bought the microwave from a bloke by $20 but refused to mention the name, although he was reluctant to answer the question that he sold the microwave to Mr Soora.
He has four previous convictions; although one of the convictions was involved with shoplifting was committed on 05.11.98.
BARKER WANTS TO KNOW
How to plead as well as venue-does he have a defence?
The likely sentence if he pleads guilty or is found guilty
Advice on evidence/ about his conditions of bail
LEGAL ANALYSIS
Charge: Dishonestly handling a stolen microwave oven, contrary to S 22(1) of the Theft Act 1968.
The prosecution, in order to succeed must prove, beyond reasonable doubt:
- Mr Barker has dishonestly received the microwave, which in question was stolen microwave at the time of the alleged handling.
- Mr Barker actually knew that the microwave was stolen, or correctly believed that it was.
Is this dishonestly handled?
However dishonest Mr Barker may be, there can be no conviction for handling stolen microwave unless the prosecution proves that the microwave in question was in fact stolen microwave at the time of the alleged handling. However, Mr Barker has done an act which would be a sufficient act of handling, intended to handle, was dishonest and believed the microwave to be stolen will be liable for an attempt to handle if the microwave was not stolen (Shivpuri 1987 AC). Further, it must be proved on a charge of handling stolen microwave that Mr Barker actually knew that the microwave was stolen, or correctly believed that it was. This knowledge or belief must correspond in time with the actus reus (Williams 1994 Crim LR 934). In cases of handling by receiving, this means the moment of receipt or acquisition. If Mr Barker only later becomes aware that the microwave stolen, this will not suffice, even if his retention of them is clearly dishonest (Brook 1993 Crim LR 455). On the other hand, dishonest retention in such circumstances may sometimes amount to theft (subject to the TA 1968, s. 3(2), which precludes such liability in cases where the property was acquired bona fide and for value); or it may amount to an offence under the Proceeds of Crime Act 2002, s 329.
PROCEDURAL ANALYSIS:
Dishonestly handling stolen microwave, as alleged here, is an offence triable either way. An alleged to commit an either way offence, contrary to S 22(1) of the Theft Act 1968 will also be triable either way. Therefore:
Plea before venue proceedings- Which Court?
Barker will be asked to indicate his plea;
If guilty. Magistrates will proceed to the sentencing stage and either sentence him themselves or commit him to the Crown Court for sentence if they feel their powers are insufficient (Powers of Criminal Courts (Sentencing) Act 2000 s.3). There may be an adjournment for a pre-sentence report.
If not guilty. Magistrates will consider whether it is a suitable case to deal with summarily. If they accept jurisdiction Barker will be asked if he consents to summary trial or not. If he does not, he will have elected Crown Court trial. If the magistrates do not consider it a suitable case to be dealt with summarily, the case will be committed to the Crown Court with no reference to Barker’s wishes.
Practice Note (Mode of Trial Guidelines) (Revised) state that cases of handling should be tried summarily unless one or more of the following aggravating features is present and that the magistrates’ sentencing powers are insufficient:
- Dishonest handling of stolen property by a receiver who has commissioned the theft.
- The offence has professional hallmarks.
- The property is of high value (at least $ 10,000).
This would have been an offence committed with the low monetary value of the goods. However, it is likely that the magistrates will accept jurisdiction, given that they can commit for sentence should they feel 6 months imprisonment is insufficient.
Is a defence statement necessary?
If Barker indicates a not guilty plea and the case is committed to the Crown Court a defence statement (Criminal Procedure and Investigations Act 1996) must be served. The time limit for service is 14 days after Primary Disclosure by the prosecution (this is post –committal). At present therefore, no requirement to draft a defence statement has arisen, although instructions taken during conference will be in preparation for statement should it be required.
EVIDENTIAL ISSUES
1. Vishal Soora gives fairly uncontroversial evidence that Mr Barker sold a microwave by saying that it was a bankrupt stock which was in fact holding a Safeway’s Superstore label stuck on it saying ‘Safeway Value: Microwave price $99.99’.It is also hard to see how the acts described could not have been known or intentional.
The Loss Prevention Officer of Safeway Superstore Miss Patricia Dunlop later confirmed the police that the security tag attached of a Zanussi CX1 microwave was a Safeway’s tag with the unique identifier 1357924/01, which appeared to be the missing microwave. Therefore, the evidence against Mr Barker is prima facie strong.
RELUCTANCY AND REFUSAL TO ANSWER FURTHER QUESTIONS IN INTERVIEW
Criminal Justice and Public Order Act 1994, s 34 – In deciding on Barker’s guilt such inferences as appear proper may be drawn from his reluctance and silence. Therefore, need to find out:
- What exactly happened in interview?
- Did police say anything about the consequences of failing to answer?
- Any legal representation ? Any offered? None appears to interview transcript.
AREAS OF QUESTIONING ARISING FROM THE PAPERS (and prior to further instructions). This list is not intended to be definitive.
- Background
- Police arrest and interview
- Relationship with Mr Soora
- The microwave (source)
- Previous dealing with Vishal Soora
- Previous Convictions
- Personal Circumstances
PRELIMINARY ADVICE ON PLEA (from the information in the papers and prior to receiving further instructions)
Microwave Oven
The difficulty for Barker will be to explain why he was both reluctant to answer the questions about the microwave and refused to disclose the name of the person he bought it from on arrest and in interview. In order to explain this properly, the previous dealing with Mr Soora may have to be disclosed. The Jury/ magistrates will be entitled to draw adverse inferences regarding the failure of Barker to tell the police about the person name who he bought the microwave from, provided that he didn’t know it was stolen.
The source (unknown person)
The difficulty raised by the microwave is compounded in that on the papers, unknown person, means the person sold the microwave in first place to Mr Barker, appears unavailable to give evidence. Should he be willing to give evidence, there will be real difficulty persuading the jury/ magistrates that Mr. Barker bought the microwave without knowledge of stolen due to make some money by selling it.
Overview:
Given the evidence, taken together, the case against Mr Barker appears strong in relation to the dishonestly handling a stolen microwave oven. Mr Barker must be made aware of his chances of success at trial no matter what his instructions on plea are, although he didn’t make clear whether he will plea guilty / not guilty. Currently, it seems clear from the paper that he is holding an intention to deny the charges. If his instructions are that he intends to plead guilty, Counsel may try to persuade the court to pass lesser sentence considering the mitigating factors.
SENTENCE
1. Summary trial Six months or a fine not exceeding the statutory maximum, or both.
2. On indictment The maximum penalty is 14 years (TA 1968, s. 22(2)) on indictment.
Aggravating Factors:
Previous Convictions
Selling stolen goods
The physical or temporal closeness of the handler to the primary offence.
Mitigating Factors:
Low value
Not part of a sophisticated operation
Single item
Self-employed
Guilty plea (if appropriate)
Stable relationship
Settled accommodation
Barker with a record of dishonesty is likely to attract a custodial sentence. He can be considered either a record of offences for dishonesty or who engages in sophisticated law breaking will attract a custodial sentence. When fixing the length of that sentence, the aggravating and mitigating features referred to above will come into play, as will the personal mitigation of the offender, who may (in accordance with Ollerenshaw 1991) be dealt with by a somewhat shorter sentence than might, at first blush, otherwise have seemed appropriate. Moreover, this offence would otherwise probably fall within the community sentence bracket. A lengthy Community Punishment Order is a possibility but Barker should be warned that a custodial sentence of up to six months is still a real risk.
For more guidance on sentence on these offences see Blackstone’s Criminal Practice 2003 B4. 129 and Magistrates’ Association Guidelines in Butterworths Online (Crime Online/ Publications).
DISCOUNT FOR PLEADING GUILTY
Barker should not plead guilty if he is not guilty. However, he needs to be informed of the reduction in sentence for a timely plea. Section 152 PCC(S)A 2000 gives statutory authority to the notion that larger discounts should be given for earlier pleas. In Barber (2002) 1 Cr App R (S) 548, the CA stated that a plea entered at or before plea before venue proceedings might attract a discount of even more than the usual one third. ( R v. Buffrey 1993 14 Cr App R (S) 411)
In Archer (1998) 2 Cr App R (S) 76, it was held that appropriate credit should be given to a defendant who was willing to plead guilty to a lesser charge at an early stage in the proceedings, but where the prosecution indicated that such a plea would be acceptable only at a later stage. This may be relevant here if Barker decides to offer a Plea to going Equipped.
WHAT WILL HAPPEN NEXT
The next court appearance, scheduled date (unspecified) is the plea before venue hearing ( see notes ‘Procedural Analysis’ above for procedure). Barker remains on bail until that date.
If Barker has been breaching his bail conditions? While it is not a criminal offence to breach bail conditions (save failing to surrender to bail), a police officer may arrest Mr Barker if he is discovered that he had tried to contact Mr. Soora directly or indirectly. He will be brought before the Magistrates and, if they are satisfied that he has breached this condition, they will reconsider his bail. It may be withdrawn entirely, in which case he will await trial in prison, or they may impose new conditions or simply allow bail to continue as before. In any event, he should certainly be advised to stop breaching these conditions and the consequences of his actions should be explained to him.
If he has a good reason to ask that his bail conditions be varied (may be he has to use the pub where he sees Mr. Soora) then an application could be made to the Magistrates. The only difficulty might be that this will actually raise the question about whether he has been adhering to his conditions so far. Presumably Mr Barker does not want his breaches of bail before the court ( considering the likely consequences) and so counsel will be unable to answer any question on this matter from the Magistrates. The duty of confidentiality to the client (para. 702 Code of Conduct) forbids disclosing information that the client wishes kept confidential and the duty not to mislead the court. (Para. 302 Code of Conduct) prohibits counsel from lying. Unless absolutely essential, Mr Barker may be best advised to stick to his existing bail conditions.