Advocacy - Criminal

Question 1

No case to answer: legal test

Answer 1

Burden of proof is on prosecution to prove the defendant’s guilt and to prove all elements of offence made out

Evidence the prosecution have adduced is insufficient for any reasonable court to convict either because:
1. Prosecution have failed to prove an element of the offence OR
2. Evidence adduced by prosecution is so manifestly unreliable that no reasonable court could convict

Question 2

Plea in mitigation

Question 3

Bail application

Question 4

Appeal against bail decision: reconsider or oppose bail

Question 5

Adjourn hearing/trial

Question 6

Introduce/exclude confession

Answer 6

Once admissibility is challenged it is for prosecution to prove beyond reasonable doubt that the confession is not unreliable
MUST be excluded if prosecution do not discharge burden of proof

Prosecution: confession is relevant to a matter in issue between prosecution and defence and is therefore admissible

Defence: identify which grounds the confession is sought to be excluded and provide relevant details including causation
a. Unreliable owing to things said or done to render it unreliable
b. Unreliability owing to oppression

Question 7

Introduce/exclude hearsay

Answer 7

Single hearsay: inadmissible unless exception applies:
a. Under statute
b. By rule of law
c. Parties agree
d. In interests of justice

Multiple hearsay: inadmissible unless exception applies:
a. Contained in business document
b. An inconsistent or consistent statement
c. Parties agree
d. Value of evidence is so high it is in the interest of justice

Apply test for relevant exception

Question 8

Introduce/exclude bad character

Question 9

Introduce/exclude identification evidence - owing to poor quality

Answer 9

Court has discretionary power to exclude evidence under PACE

Prosecution: identify what other evidence there is to support prosecution

Prosecution/defence: argue for/against strength of ID evidence

Amount of time
Distance
Visibility
Obstructions
Known
Any reason to remember
Time lapse
Errors

Question 10

Exclude any evidence under s78 PACE

Answer 10

Court has discretion to exclude prosecution evidence if having regard to all the circumstances, including how the evidence was obtained, the admission of the evidence would have such adverse effect on the fairness of proceedings that the court ought not to admit it under Section 78 the Police and Criminal Evidence Act

Question 11

Exclude identification evidence - improperly obtained

Answer 11

Court has discretionary power to exclude evidence under PACE

Identify relevant breach of ID procedure under Code D PACE, including:
a. Failed to warn that suspect might not be shown at all
b. Failed to keep witnesses away from suspect before and during procedure
c. Failed to keep witnesses apart during procedure
d. Failed to take into account reasonable objections to appearance of others in ID procedure

Question 12

Mode of trial: court should accept jurisdiction

Answer 12

Court has discretionary power to accept jurisdiction of this matter if it considers it has adequate sentencing powers:
- 6 months for single offence
- 12 months for 2 or more either way offences

Courts sentencing powers are adequate and should therefore accept jurisdiction
Consider starting point for sentence and range

Question 13

Appeal