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1a) Advice Jim on…

Jim should be advised on the investigation process and the consequences that he could face,

as to whether he is to be found guilty of rape. Substantially, the police have the power to

interrogate and detain a suspect, despite the type of crime committed. The aim of the

polices interrogation would be to obtain a confession. There is no doubt that Jim was most

likely arrested before brought into custody. Furthermore, it is important for Jim to know

that an arrest provides additional powers to the police, including the potential of Jim’s

property being searched since he is the one being arrested of a crime1.

Jim was arrested for a cause, which again there is no doubt that the police would refer to

this cause as ‘reasonable suspicion’. This is evident in the case of Hayes V Chief Constable of

Merseyside Police, in which the judgement issued, states “An arrest without warrant by a

police constable was lawful where it was shown that the constable believed the arrest was

necessary, and for a specified reason and that belief, objectively was reasonable. (It was

necessary for the constable to have actively considered all possible courses of action, which

is an alternative to an arrest.2)

1
Siobhan Weare, 'The Investigation Of Crime' (Www-oxfordlawtrove-

com.ezproxy.brunel.ac.uk, 2021)

<https://www-oxfordlawtrove-com.ezproxy.brunel.ac.uk/view/10.1093/he/

9780198868996.001.0001/he-9780198868996-chapter-12#he-9780198868996-chapter-12>

accessed 28 February 2022.

2
Hayes V Chief Constable of Merseyside Police (Civil division).

1
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S41. Pace ensures the police can detain suspects for up to 24hours, however since rape is an

indictable offence, Jim may be detained for 36 hours or more. At this point of the process,

Jim may be subjected to a number of rights. These rights would be asked by a sergeant, who

is given the responsibility to ensure there are sufficient grounds for detention following an

arrest. After that the sergeant should inquire if, in this case Jim may want legal counsel and

if he may want someone to be made aware of his arrest. However, Pace 1984 does allow

these rights to be deterred for a period of time, in limited circumstances 3.

Should Jim’s case be taken into trial of any kind, the crown prosecution service would have

to weigh in the rights if all suspects, defendants, and offenders. The crown prosecution

service is the independent agency that prosecutes criminal cases that have been

investigated by the police. The criminal justice act of 20034 is what guides the crown

prosecution service to determine the appropriate charges in serious cases. It is most likely

that the CPS would undertake a full code test wherever possible if there is sufficient

evidence. Evidence that could be brought against Jim would therefore be decided, whether

it is sufficient, whether it may be used in court and whether it is both reliable and credible.

In the incident of rape, the victim will most definitely have to testify in court unless Jim was

to plead guilty at an earlier stage. If there was to be conflicting evidence, the prosecution
3
Alisdair Gillespie and Siobhan Weare, “Deterring Notification or Legal Advice P445”

(https://www-oxfordlawtrove-com.ezproxy.brunel.ac.uk/view/10.1093/he/

9780198868996.001.0001/he-9780198868996-chapter-12#he-9780198868996-chapter-12).

4
Gov.uk, “Criminal Justice Act 2003” (Legislation.gov.uk2012)

<https://www.legislation.gov.uk/ukpga/2003/44/contents>.

2
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must decide if the evidence given by the victim is credible and reliable. The CPS would

ensure that this is done rationally using all relevant information provided. Due to the

magnitude of the police investigation, it shall be assumed that Jim would most likely be

charged. If this was to happen, it will be decided upon, whether he would continue to go

through the prosecution of rape. The decision to prosecute is kept under review. This means

taking account of any issues that arise during the pre-trial process5.

At this stage, according to the law, Jim may consider challenging a decision formed by the

prosecution, if he wishes. The case of R ( On the application of Pepushi ) V crown

prosecution service6. The applicant sought to challenge the decision to prosecute him for an

immigration offence. The challenge wads after the magistrates court had transferred the

matter to the crown court and the divisional court was clear that judicial review was not

appropriate7. Prior to this decision the CPS would take certain circumstances into

consideration. These circumstances have more so, to do with the public interest which

include the seriousness of the offence and Jim’s level of involvement (whether it was

5
Alisdair A Gillispie and Siobhan Weare, Decision to Prosecute, vol. p 473 <https://www-

oxfordlawtrove-com.ezproxy.brunel.ac.uk/view/10.1093/he/9780198868996.001.0001/he-

9780198868996-chapter-15>.

6
R (On the application of pepushi) v the crown prosecution service.

7
Alisdair A Gillispie and Siobhan Weare, The English Legal System, vol. p474 (8th edn., 2021)

<https://www-oxfordlawtrove-com.ezproxy.brunel.ac.uk/view/10.1093/he/

9780198868996.001.0001/he-9780198868996-chapter-15>.

3
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premeditated or planned or whether Jim has been previously convicted of a criminal

offence.)

Should Jim’s prosecution go ahead, it is necessary for him to know which courts will take

care of his proceedings. It is important to differentiate the two courts that hear criminal

matters, the magistrates court, and the crown court. Therefore, wherever Jim’s case is to

proceed is based on the information given prior. Indictable only offences have to be tried in

the Crown Court (s. 51 Crime and Disorder Act 1998) and include homicide, rape, robbery

and riot.

Before the criminal trial of Jim proceeds a judge will make themselves familiar with the

details of the case. Jim’s trial would begin with an opening speech directed to the jury and

not the judge. Should Jim have a witness on his behalf, they may also be able to make an

opening speech. For rape victims, giving their evidence in court may be a difficult ordeal, the

victim may find it difficult testify Infront of the perpetrator (Jim.) Therefore, an alternative

such as, a video recorded interview may be used. Jim should fundamentally know that he

can give evidence, but it is important for him to know that he is not obliged to do so.

Since a rape case is an indictment, the jury would have to follow immediate steps. Ideally

the jury will return with an unanimous verdict. If they do then the clerk of the court would

ask the foreperson to stand and asks them if they have reached a verdict, upon which they

all agree. Should the answer be ‘yes’ then the clerk reads each count aloud and asks

whether the jury finds the defendant guilty or not8.

8
Siobhan Weare, The English Legal System, Unanimous Verdict, vol. p546 (8th edn., 2021)

<https://www-oxfordlawtrove-com.ezproxy.brunel.ac.uk/view/10.1093/he/

9780198868996.001.0001/he-9780198868996-chapter-15>.
4
2116511

It is compulsory for Jim to know that a number of variables will influence his sentence,

including the facts of the case, the impact of the offence on the victim, relevant law and

judgement from the court of appeal, that is if he should appeal. However, before sentencing

Jim may be able to make a plea in mitigation. A coherent logical and reliable piece of advice

would be, that if there is a possibility for Jim to plead guilty earlier in the process, he should

take it. S144 of the Criminal Justice Act 2003 allows the reduction of sentence for guilty

pleas, up to a third of custodial sentence and or non-custodial sentence.

This is due to the knowledge that it may produce some benefits such as a shorter sentence,

less cost effective and would also avoid there being a trial in court. However, Jim should not

be pressured to plead guilty if he does not wish.

1b) Advice Jim on whether he Is likely to be convicted of the crime of rape under Section 1

of the SOA 2003 if he pleads not guilty.

It is mandatory for Jim to understand that according to the Sexual Offences act 2003, a

person (A) commits an offence if (B) does not consent to the penetration 9. Based on the

account given by Jim, Katia claimed that she had been raped, signifying the structure of rape

9
“Sexual Offences Act 2003” (Legislation.gov.uk2012)

<https://www.legislation.gov.uk/ukpga/2003/42/section/1>.

5
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in accordance with the SOA 2003. She consented to having sexual intercourse with johnny

not Jim, which is evident when she states, “Show us what you are made of Johnny”.

Conditional consent is unsurprisingly defined by the crown prosecution service as a

condition imposed on the giving consent by the victim10.

Additionally, the evidence given that she was black out drunk contributes to the lack of her

ability to have properly consented. A complainant does not need to be unconscious through

drink to lose their capacity to consent. Capacity to consent may evaporate before a

complainant becomes unconscious11. Jim should be made aware that the courts may

consider this as him taking advantage the drunken state she was in. He misinterpreted

himself as Johnny which resulted in rape. As it is impossible to gain inequivalent consent

when alcohol is involved. Consent simply cannot be given by someone who is inebriated.

This is depicted in the case of R V Hysa12. Issues of consent and capacity to consent to

intercourse in cases of alleged rape should normally be left to the jury to determine 13.

10
<https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-6-consent>.

11
CPS, “Rape and Sexual Offences - Chapter 6: Consent | the Crown Prosecution Service”
(www.cps.gov.ukOctober 19, 2020) <https://www.cps.gov.uk/legal-guidance/rape-and-
sexual-offences-chapter-6-consent>

‌
12
Raiine, “Sexual Offences Pt 2: The Common Element of Non-Consent” (London Law

StudentMarch 20, 2014) <https://lifeofalondonlawstudent.com/sexual-offences-pt-2-the-

common-element-of-non-consent/>

13
CPS, “Rape and Sexual Offences - Chapter 6: Consent | the Crown Prosecution Service”

(www.cps.gov.ukOctober 19, 2020) <https://www.cps.gov.uk/legal-guidance/rape-and-

6
2116511

However, it may be argued against S76 that in order for Jim to be placed under this category

he needed to have actively and intentionally impersonated Johnny, when in reality she

mistook Jim for Johnny. However, the incident would not have occurred if Jim had stated

that he was not Johnny. Jim had taken on voluntary responsibility by taking her home on

assumption. Therefore, an omission will be considered an act reus if the defendant had a

‘duty to act’.

Although, Jim intended to leave and at no point indicate that he was John, when actually

Katia is to have said pulled him down, in the complainants mind she consented to sexual

intercourse with Johnny not John. Therefore, Jim is guilty of impersonation, as well as

conducting the actus reus of the offence of rape. In the eyes of the law, he has induced the

complainant to consent to the relevant act by impersonating a person known to the

complainant. Substantially, making him fulfil the necessary requirements to be guilty under

s76 of the Sexual offences act. If he pleads not guilty he would have to go through trial, in

which his freedom depends on the jury and courts and may be subject to a sentence.

sexual-offences-chapter-6-consent>.

7
2116511

Bibliography

Websites

https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-6-consent

Weare S, The English Legal System, Unanimous Verdict, vol. p546 (8th edn., 2021)
https://www-oxfordlawtrove-com.ezproxy.brunel.ac.uk/view/10.1093/he/
9780198868996.001.0001/he-9780198868996-chapter-15

Gov.uk, “Criminal Justice Act 2003” (Legislation.gov.uk2012)

<https://www.legislation.gov.uk/ukpga/2003/44/contents>

‌ illispie AA and Weare S, The English Legal System, vol. p474 (8th edn., 2021)
G
<https://www-oxfordlawtrove-com.ezproxy.brunel.ac.uk/view/10.1093/he/
9780198868996.001.0001/he-9780198868996-chapter-15>

8
2116511

“‌ CPS Policy for Prosecuting Cases of Rape | the Crown Prosecution Service”
(Cps.gov.uk2009) <https://www.cps.gov.uk/publication/cps-policy-prosecuting-cases-rape>

‌
Cases
R (On the application of pepushi) v the crown prosecution service

‌
Hayes V Chief Constable of Merseyside Police (Civil division)

‌
Acts
Gov.uk, “Criminal Justice Act 2003” (Legislation.gov.uk2012)
<https://www.legislation.gov.uk/ukpga/2003/44/contents>

‌
“Sexual Offences Act 2003” (Legislation.gov.uk2012)
<https://www.legislation.gov.uk/ukpga/2003/42/section/1>

1c) Following the requirements of the civil procedure rules, draft a letter to your friend. She
is: Mona Meldrum and lives at 16A Summerhill Crescent, Uxbridge UB4 8BZ
Rebecca Fashola

14 Brimpsfield Close

London

Mona Meldrum

16A Summerhill Crescent

Uxbridge

UB4 8BZ

9
2116511

Dear Mona,

This letter that has been written in order for, you to know that a mistake has been made in

regard to, the laptop you sold me. Since you sold the laptop to me, it should be agreed that

that the risk of a unilateral mistake is on your side. Originally, I was desperate and in need of

a laptop as my work had not been saving properly, this was definitely a contract between us

as we both got something in return which in your case was £500.

Unfortunately, I was not able to complete my work, which delayed time in providing help for

my client. The reason for this is because the hard drive from your laptop was corrupted and

instead of it being 6 months old like you stated, it was actually 2 years old, all these factors

resulted in the laptop not being mendable, which may also result in me having to buy a new

laptop. However, consequences for both of us can be avoidable or more lenient if we come

to a common ground.

What would be admissible is if you are able to return to me the £500 or simply be the

person who can purchase me a new laptop since it was be who had the burden of a financial

loss. As you sold me a broken one with the intention of knowing it was broken. This dispute

between us, can be evident in Perishing of goods and the sale of goods act 1979, where a

contract was made for the sale of specific goods that have perished by the time the contract

is void. However, in this case I shall be taking it further.

An option for us would be to have an alternative dispute resolution, where we can both

decide what the rules of this dispute would be without being bound to the court process.

However, if you wish to not give me a response to this letter in the designated time I

provide, then I will have no option but to go through the courts. I believe mediation is a

compatible way for us to resolve this issue, as we would have a third party, working as a go

10
2116511

between for us to negotiate a common solution. This is an advantage as we will not need to

give additional costs as well as it needing just one meeting to resolve.

Please give a response to this letter by Monday 7th March 2022, should you wish to ignore

this letter it may lead to me starting proceedings which may increase my liability for costs. I

would also need you to bring relevant documents such as the laptops receipts and your

contractual statement for it.

Yours Sincerely, Rebecca

11
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2a) In May 2021, when addressing the London international disputes week, the master of

the rolls said “the role of dispute resolution providers, whether they are governments or

online portals, is simply facilitation that is quick and cost-effective resolution”.

Critically discuss this statement.

There are alternative options for claimants to resolve their disputes without the legal court

system intervening. This essay will focus on the role of the dispute resolution providers and

to determine whether it is ‘quick and cost effective’.

To begin with, the term ‘dispute resolution’ is used in both commercial and private law and

is the process of resolving disagreements between two or more parties. Furthermore, the

judiciary’s role can be categorised under ‘dispute resolution’ as ‘The judiciary system

provides a mechanism for resolving disputes between citizens, citizens, and the

government14. However, dispute resolution, has more to do with interparty disputes and

less on government decision.

As a result of the court system inefficiencies, alternative dispute resolutions have been

introduced, therefore the parties themselves can decide what the rules are, without being

bound by traditional understandings of the law and process15. There are two types of ADRS

14
(Aees.gov.in, 2020)

<http://www.aees.gov.in/htmldocs/downloads/Econtent_aug2020/VIII_CIV_L05_M01_JUDI

CIARY_HANDOUT.pdf> accessed 28 February 2022.

15
Alisdair A Gillispie, 'Alternative Dispute Resolution' (Www-oxfordlawtrove-

com.ezproxy.brunel.ac.uk, 2022)
12
2116511

in the UK, which are adjudicative and non-adjudicative. Adjudicative forms of ADR are those

where the process does not read to an agreement but instead somebody decides as to the

dispute.

Arbitration has legal standing, and an arbitrator’s decision is similar to an award which can

be enforced in courts. In section 1 of the arbitrators act 1996, it is disclosed that the object

of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without

unnecessary delay of expense16. The act implies that there are distinctive regulations for

arbitration process which are, impartial tribunals, costs, and the courts being relaxed.

Therefore, an advantage an arbitrator with relevant experience can be appointed if a party’s

dispute involves a technical subject. Another advantage is that it is less expensive than

litigation, no penalties would be imposed by the courts as the control is not within the

courts.

Mediation is a non-adjudicative form of ADR, which is voluntary and confidential. The

process involves a third party working as a go between for two disputing parties to

negotiate a common solution to their claims. The family law Act 1996 reinforced the idea of

mediation most especially in divorce cases, where both parties come to an agreed

<https://www-oxfordlawtrove-com.ezproxy.brunel.ac.uk/view/10.1093/he/

9780198868996.001.0001/he-9780198868996-chapter-19?rskey=C5ASzf&result=1>

accessed 28 February 2022.

16
'Arbitration Act 1996' (Legislation.gov.uk, 2011)

<https://www.legislation.gov.uk/ukpga/1996/23/section/1> accessed 28 February 2022.

13
2116511

settlement17. This process supports the statement issued above since it is free for both

parties and efficient in terms of time (many mediations are completed in just one meeting)

Online dispute resolutions have now been offered to assist small and substantial businesses

in resolving claims. It is depicted as a form that is beneficial to both claimants. An example

being that it is convenient method of resolving a dispute because it affects parties all over

the world. “It is what younger businesspeople and consumers expect. Secondly it is far

easier to integrate and apply alternative dispute resolution process in the online

environment, using artificial intelligence and smart programming to suggest resolutions. 18”

However, there are some disadvantages as they are only satisfactory for specific disputes.

Contradictorily, it could be argued that, although using ADR may be beneficial, it is not

bound to always return a decision. Meaning various cases will still end up in court. It is quite

possible that in non-adjudicative forms of ADR, time and expense are incurred trying to

identify a solution, only for it to collapse at the last minute or be rejected. However, others

may counteract the argument and imply that ADR is created to ease civil dispute matters,

both public and private. This is evident in the case of Cowl v Plymouth city council, where

Lord Woolf passed a few observations on the application of ADR19.

17
'Family Law Act 1996' (Legislation.gov.uk, 2011)

<https://www.legislation.gov.uk/ukpga/1996/27/section/26> accessed 28 February 2022.

18
'London International Disputes Week 2021: Keynote Speech London – Virtually' (2021)

<https://www.judiciary.uk/wp-content/uploads/2021/05/MR-to-LIDW-10-May-2021.pdf>

accessed 28 February 2022.

14
2116511

Additionally, litigation (which is the courts way of resolving disputes) is supported as well as

ADRS. Litigation has several benefits, one of which is done through the courts and thus

ensures it is part of the public record. As a result, the final decision between disputes draws

a line in control, ensuring various parties, whether it be business reputations, will not be

damaged. In contrast to ADR, litigation enables appeals where a line of action can be

pursued if an error was to be made. Whereas Arbitration would be far more difficult to

appeal. Despite that, litigation can be extremely undertaking, in some cases the successful

party can claim its legal costs from the other, it is unlikely that a party would be able to

recover all its legal costs20.

To conclude, whilst the statement states that dispute resolution providers is ‘quick and cost

effective’ in some relative minor disputes, this may not be the case as AFDR consists of

greater work than minor disputes. Some forms of ADR will require several steps meaning

that even if the process is quicker, it may seem protracted21. However, as well as ADRS being

19
Cowl v Plymouth City Council (2001)

http://www.nadr.co.uk/articles/published/AdrLReports/COWLvPLYMOUTH.CA2001.pdf

https://wwwbailiiorg/ew/cases/EWCA/Civ/2001/1935html.

20
'What Is Litigation? All You Need To Know About The Law & Process'

<https://burlingtonslegal.com/news/what-is-litigation-all-you-need-to-know-about-the-law-

process/> accessed 28 February 2022.

21
Siobhan Weare, 'The Investigation Of Crime' (Www-oxfordlawtrove-com.ezproxy.brunel.ac.uk,

2021) <https://www-oxfordlawtrove-com.ezproxy.brunel.ac.uk/view/10.1093/he/

9780198868996.001.0001/he-9780198868996-chapter-12#he-9780198868996-chapter-12>

accessed 28 February 2022.

15
2116511

quick and cost effective it is deemed as appropriate in comparison to other forms. Overall,

ADR appears to avoid most of the issues that arise in civil courts, for example, the risk of

making a dispute worse. Mediation results in a solution from both parties.

Bibliography

Websites

(Aees.gov.in, 2020)
<http://www.aees.gov.in/htmldocs/downloads/Econtent_aug2020/VIII_CIV_L05_M01_JUDI
CIARY_HANDOUT.pdf> accessed 28 February 2022

16
2116511

(Www-oxfordlawtrove-com.ezproxy.brunel.ac.uk, 2021) <https://www-oxfordlawtrove-

com.ezproxy.brunel.ac.uk/view/10.1093/he/9780198868996.001.0001/he-9780198868996-
chapter-19> accessed 28 February 2022

S, 'Alternative Dispute Resolution' (Www-oxfordlawtrove-com.ezproxy.brunel.ac.uk, 2021)

<https://www-oxfordlawtrove-com.ezproxy.brunel.ac.uk/view/10.1093/he/
9780198868996.001.0001/he-9780198868996-chapter-19?rskey=C5ASzf&result=1>
accessed 28 February 2022

<https://burlingtonslegal.com/news/what-is-litigation-all-you-need-to-know-about-the-law-
process/> accessed 28 February 2022

Speeches

'London International Disputes Week 2021: Keynote Speech London – Virtually' (2021)
<https://www.judiciary.uk/wp-content/uploads/2021/05/MR-to-LIDW-10-May-2021.pdf>
accessed 28 February 2022

Acts

'Arbitration Act 1996' (Legislation.gov.uk, 2011)

<https://www.legislation.gov.uk/ukpga/1996/23/section/1> accessed 28 February 2022

'Family Law Act 1996' (Legislation.gov.uk, 2011)

<https://www.legislation.gov.uk/ukpga/1996/27/section/26> accessed 28 February 2022

Cases

Cowl v Plymouth City Council (2001)

http://www.nadr.co.uk/articles/published/AdrLReports/COWLvPLYMOUTH.CA2001.pdf
https://wwwbailiiorg/ew/cases/EWCA/Civ/2001/1935html

17