Conference ‘R V Kelvin Shelby’

Introduction:
Hello, Good Morning Mr. Shelby,
My name is Abdul Basit Javaid and I have been instructed by Thomas and Co solicitors to act
as counsel for you. I would like to go through some important matters with you.
Agenda/ Purpose:
I will first outline how this meeting will proceed so that I do not miss out anything. First, I
will ask you some questions regarding the events and then I will move on to advice on plea. I
will further advice you on sentencing for cases involving attempted burglary. Before I move
forward, I would like to confirm whether you understand how this is going to proceed. I’ll to
ask questions in a manner to understand your background, course of events.
Background Questions:

 Your full name is kevin and Shelby, and dob is 28.02.94.

 16, Addiscombe Road, Erdington, Birmingham.
 How long you have been unemployed? Your last job?
 No qualification, read and write?
 You have been in care, how did affect your life?
 How much allowance? Financial condition?
 Any specific reasons for not meeting children?

Questions:

 How did your day started on 6th of march 2024?

 Did you visit Wyndley Leisure Centre on 6th of marc 2024? What happened over
there?
 Where were you coming from before visiting leisure centre?
 Were you alone?
 What was the purpose of your visit to wyndley leisure centre?
 Do you visit that place often?
 Do you remember what you wore that day while visiting that place? white, about
5’8” tall, short dark hair, a short dark moustache and beard, and he was wearing blue
jeans, a blue tee shirt and a black jacket.
 Why did you join the queue?
 Did you move to vending machine area?
 Was there any sign of ‘staff only/ public restricted’ visible? How is your eyesight?
 Why did you feel the need to approach a restricted area?
 Did you ask someone for assistance?
 Which room did you enter in that area?
 Did you touch anything in staff lounge? Reason to touch coat?
  How did you come to know about the job there? Have you applied to some other
places for job?
 As per Kuldeep the manager, why did you feel to run out from leisure centre?
 Were you in hurry during this period?
 Did the manager call you or tried to stop you while you were going out?
 What did you do right after, when you left wyndley leisure centre?
 Reason to stay around that place?(30 mins gap)
 What happened when the police approached you? What happened during arrest?
 Did you say these words “you are joking”?
 What happened during the police interview? Did PC ask you specifically about being
in private area, with intent to steal?
 Did you make the comment ‘There is no CCTV’?
 Did any CCTV camera capture you entering the staff lounge?
 When the police conducted an interview, is there any reason behind those no
comments statements?
 Are you complying the bail conditions?
 Is acquittal your preference?
 Any specific date you want to avoid for next hearing?

Preliminary Advice:
Offence:
Offence on non-dwelling burglary (Blackstone 4.75) Either-way offence.
Charged under s.9 (1)(a) of the Theft Act which is entering any building or part of building as
a trespasser with intent to stealing anything in building or part of that building. Hence it has
been alleged that defendant was in restricted area and did not have permission to be there.
Trespasser: Someone who does not have permission to enter either explicitly or implicitly to
enter the premise, (a) whether entry was trespassory and also (b) whether the D knew it was
trespassory, or was reckless to that.
Legal issue:
On a charge of burglary with intent contrary to s. 9(1)(a), it must be shown that, at the time of
the entry (not before and not after), D intended to commit the offences listed in s. 9(2).
The defence: For this offence the prosecution will have to prove beyond reasonable doubt
that the intent was to steal or inflicting grievous bodily harm to anyone.
Prosecution/ Defence Case:
Complainant/Kuldeep kaur (Manager):

 Decided to take a break and went to staff lounge.

 Saw alleged defendant, who was white, about 5’8” tall, short dark hair, a short dark
moustache and beard and he was wearing blue jeans, blue t-shirt and a black jacket.
  Saw the ‘D’ touching one of the coats.
 Asked the ‘D’ questions which he answered.
 Ran out of staff area and building.
 Immediately recognized the alleged defendant.
 Nothing stolen.

Witness/Craig Albutt:

 At reception, saw the defendant at back of queue.

 Black leather jacket same description.
 Left queue and move to vending machine area. Scanning the area. Moved to stand
directly under camera.
 Saw him coming out of foyer double door and exit the building.

Police Constable/Mary-Beth Cagney:

 Arrived at the premises at 13:05.

 Kuldeep Kaur explained the reason for call and pointed out towards the man outside
leisure centre.
 Approached the alleged ‘D’ outside the premises and identified themselves.
 Ask the ‘D’ his name, and about visiting Wyndley Lesiure Centre, to which he replied
‘Kevin Shelby’ and accepted visiting leisure centre.
 After caution arrested him while ‘D’ made a comment “you are joking”.
 Between 15:10-15:30, made ‘no comment’ interview, upon being charged he said
“there is no cctv”.
 Then released on bail with the condition to remain at his address.

Police Constable/Muhammd Iqbal:

 Similar to above till custody, sergeant booked ‘D’ for custody.

Interview:

1. During the police interview the client made no comment to every question. Adverse
inference may be possible. Undisputed facts.

(a) The most common inference, that the fact relied on has been invented after the
interview;

(b) The accused had the fact in mind at the time of interview, but was unwilling to
expose his account to scrutiny;

(c) That the accused was faced with a choice between silence and lying/incriminating
himself further with the truth.

This is self-explanatory. The defendant must fail to mention a specific fact. Note that it is not
enough for the prosecution to simply point to a no comment interview; it must specify exactly
what fact it is that the defendant failed to mention.
There can be no conviction, or finding of a case to answer, solely on an inference drawn
under s.34 CJPOA 1994. Juries must be directed that an inference alone cannot prove guilt.
The European Court of Human Rights has extended the principle, and stated that a conviction
can not be based solely or mainly on silence or a refusal to answer.

Jury can be warned against ‘forbidden reasoning’. Lucas order.

Summary:
The severity of the case is moderate. This is neither a strong nor a weak case. The
complainant has a witness of seeing Mr. Shelby getting out of foyer which is not open to
public. And the no comment interview can cause adverse inference for jury. The comment no
cctv may have some reasons. On the other hand there is a possibility of mistaken identity or
you did not mean to enter in that premises or you were forced to run away or no mens rea/
intent or mental health issue. There is no CCTV footage.
Advice on Plea:
So, I would advise you to plead NOT guilty on the basis of any of the reasons found in the answers.
This is on the basis that you can raise the defence mentioned, However I’d like you to bear in mind
that this is your decision to make. My job as a barrister is to advise you so you could reach an
informed and sound decision.

Credit:

- If you plead guilty at the first hearing or which will be at the Crown court you will be
given full credit which is 1/3
- If you plead guilty on the next hearing, it will be reduced to ¼
- It will continue to reduce by 10 % until the day of trial
- Judge’s look more favourably on those who plead guilty.

Choice:
Plea is a matter for you to decide. My role is just to advise you.

Sentence:
Burglary-Non-Dwelling:
If you opt for Guilty Plea or are convicted in trial, then the court will apply the Sentencing
Guide Council for non-domestic burglary.

 Culpability: C Lower culpability ( D entered in restricted area but nothing stolen or

damage to property) or if intention or planning then culpability B. And if B then
medium level community order is SP and ranges between Low level community order
and High level community order.
  Category 3: Nothing was stolen or damaged, disturbance, distress, police needed to be
called.
 Starting point (SP): Band B fine. (100% relevant weekly income-25-75% of relevant
weekly income)
 Category Range: Discharge- low level community order.
 Aggravated factors: None as such
 Reducing Factors: No previous Conviction, Remorse, deprived background, prospect
of work is training, positive character, mental/physical disability.
Instructions to plea:

 Plea is matter for you, however don’t plead guilty to the offence you have not
committed.
 Confirm plea: Guilty or not? If yes, plea on full facts?

Allocation:

 Burglary is an either-way offence so the court of trail is still to be decided.

 Benefits of MC trial: quicker, less formality, less expensive, lower sentencing powers
and can have a re-trial in CC if disagree with verdict (appeal)
 Benefits of CC trial: higher acquittal rate, separate tribunals of fact and law, jurors are
more persuadable than Magistrates.
 CC or MC advise
 Instructions on allocation.
NEXT STEPS
 Will be taken into court and identified in the dock by name and address.
 The matters will be put to you and will be asked to indicate plea.
 Guilty: will be sentenced without trial with credit reserved. PSR will be requested.
May be committed to CC for sentence
 Not Guilty/silent: court will proceed to allocation
If Magistrates allocate to MC, client gets a choice to choose MC trial or CC trial
If Magistrates allocate to CC, client will not get a choice.

So, Magistrates court first. Magistrate court deals with less serious trials..if you go for trial in
magistrate court, it will either be a judge or three lay magistrates who will decide whether
you're guilty or not. Lay magistrates..they are not lawyers, they are actually members of the
public who have volunteered for this job. Do you understand so far? [ANSWER] Okay.
Magistrate court also has lower sentencing power than the Crown Court (but that doesn't
really affect you since the nature and records of your offence would mean that even if you
were convicted, your sentence would be very low regardless of where it’s passed)

Okay, now the Crown Court. The Crown Court is more formal, if you were go for trial in the
Crown Court then it will be the jury who decides whether you're guilty or not. And a jury, I
am assuming you know that they are made of 12 people who are randomly selected from the
public. Are we clear here?

Alright now moving on to the pros and cons of each courts. The benefit of going to the
Magistrates court is that the process is much quicker. It will take less time for your case to
come to trial and the trial itself will be much quicker. Its also far less formal compared to the
Crown Court as I mentioned earlier. The disadvantage of Magistrate court is that the judges
tend to be more case hardened, which means they are usually less sympathetic as they deal
with cases of your kind on a regular basis.

Crown Court on the other hand, the jury is likely to be more sympathetic in nature and and
give you the benefit of the doubt. Thats one of the most crucial benefits of the crown Court.
The disadvantage of the Crown Court is that it’s more formal and therefore people tend to be
intimidated by its setting. And not to forget, its also a lengthier process compared to
Magistrate court. (ONLY IF HE PLEADS GUILTY, MENTION THAT CC IS MORE
COSTLY THAN MAGS COURT) I hope you understand the differences between the two
courts, do you have any question on that? [ANSWER] Alright.

So you’ll be tried in the Birmingham Magistrates Court. Your name would be asked, and your charge
would be read out, followed by your decision in plea. You would plead not guilty, and Magistrate
court will probably assert that the case could be tried in Magistrate court itself but they will ask you
where you’d like to be tried, and this where you will say the Crown court. And then the case will be
adjourned, and they will then fix a date for you to come back to court, do you have any dates that you
will try to avoid, for instance you’ve got a family medical situation like before or perhaps exams or
anything of that sort? In the meantime, you would be on unconditional bail as before. Are you clear
with all of these?

QUESTIONS FROM CLIENT

If you have any questions after today, you may feel free to contact your solicitors.
1. 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.

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

Yes but only if there is something that renders the conviction unsafe or the sentence
is manifestly excessive. Leave is required.

3. 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.
4. 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?
5. Can you ask the Judge to tell me what sentence I will be looking at if I were to change my
plea to guilty at the Crown Court?
Ans. Yes, you may ask the Judge for an indication of sentence should the defendant
change his plea. This is called a Goodyear direction, named after the case, that set out
the correct approach to judicial indications of sentence.
6. If the prosecution adduces bad character evidence, what would you do?
Ans. We can make an application to the court to exclude evidence (under s78 Criminal
evidence Act 1984 or S. 101(3) CJA 2003), on the basis that it was two years old, and you
are remorseful, thereby it is not relevant.
7. If D says I do not want to attend the court? Same for bail breach of bail conditions
Ans. If you fail to attend the court, without good reasons, there are very likely chances
that the case will proceed in your absence. You will be committing an offence contrary
to the bail act, therefore, arrest warrant could be issued and potentially sentenced to a
term of immediate imprisonment.

8. I will take a fine for these offences if it is on offer?

The court have to follow SCG and in respect of sentencing on offences like these there is a
community order.

9. What should I say about running away?

The truth. Counsel must not assist in concocting a more “attractive” account.
10. I have heard of trials lasting weeks and weeks on the news. Will my trial?
No, the case won’t take weeks. Note to students: If the case remains in the Magistrates’
Court then it will take a day. If the case is sent to the Crown Court then it will take 2 – 3
days.
If the Magistrates’ Court retain jurisdiction over this offence then the maximum
sentence that can be passed in the Magistrates’ Court is 6 months’ imprisonment.
However, the Magistrates may also commit the case for sentence at the Crown Court
where the maximum sentence would be 5 years’ imprisonment.
11. Will the jury hear about my previous conviction?
A: Potentially, yes. The prosecution are most likely to apply to adduce the conviction
under the gateway of s.101(d) - propensity. Counsel for the defence will certainly oppose
any such application.
12. Can you guarantee that I will not go to prison?

No. The court has a wide range of sentencing disposals available and this includes immediate
imprisonment. The lack of previous convictions combined with any personal mitigation may
well persuade a court to suspend any sentence of imprisonment but, generally, a sentence of
immediate imprisonment will follow an offence of group fighting involving kicking and the
use of missiles/weapons.