5c. Criminal Advocacy Applications FINAL FINAL

Question 1

What are the likely applications you will be asked to make in the criminal advocacy assessment?

Answer 1

• Bail application
• Mode of trial (Magistrates should retain jurisdiction)
• Admission or exclusion of hearsay/bad character
• Exclusion of confession
• Exclusion of evidence generally

Question 2

Bail application

What is the first part of a bail application?

Answer 2

Remind the court of defendant’s general right to bail (unless murder).

Bail can only be refused if an exception applies and there is a real prospect of custodial sentence

You could have to argue for or against bail, but the factors are the same

Question 3

Bail application

What are the exceptions to the right to bail?

Answer 3

• Substantial grounds to fear defendant would fail to surrender, commit other offences, or interfere with witnesses/justice
• Offence committed on bail
• D failed to surrender already in these proceedings
• Not enough evidence to make a decision on bail

Question 4

Bail application

What four things should you consider if deciding whether substantial grounds exist?

Answer 4

• Nature and seriousness of the offence
• Strength of the evidence
• D’s character
• D’s record of complying with bail conditions

Question 5

Bail application

How should you finish up a bail application?

Answer 5

• Propose any conditions, if relevant
• Request the application be granted

Question 6

Mode of trial

What does the Magistrates first consider when deciding whether to retain jurisdiction over an either way offence?

Answer 6

The adequacy of its sentencing powers relative to the nature of the offence in question

Six months for one; twelve months for two or more

Depending on the side you are acting for, you must convince the court its powers are either adequate or not adequate

Question 7

Mode of trial

What parts of the case documentation would you use to evidence the adequacy of the court’s powers?

Answer 7

1. Sentencing guidelines
2. Evidence of aggravating/mitigating factors

Question 8

Hearsay

What is the structure of a hearsay application?

Answer 8

1. Hearsay generally inadmissible
2. Admissible if an exception applies (statute, case law, etc.)
3. Apply the test in support of why the hearsay should be admitted/not admitted

Question 9

Bad character

What is bad character evidence?

Answer 9

Evidence of, or of a disposition toward:
* Misconduct
* Commission of offences
* Other bad behaviour outside of the facts of the offence in question

Not generally admissible, unless an exception applies

Question 10

Bad character

What are some of the grounds under which bad character evidence can be admitted?

Answer 10

• Matter in issue between prosecution and defence (including propensity)
• D attacked another’s character
• Important explanatory evidence (including of propensity)
• To correct a false impression given by D
• Matter in issue between co-defendants

Question 11

Exclusion of evidence

No matter the reason, an application to exclude any evidence (other than confession) is made under what section, and what is the test?

Answer 11

Section 78 of PACE

Court has discretion to not admit any evidence if it would have such an adverse effect on the fairness of proceedings that it ought not be admitted

Question 12

Exclusion of bad character evidence

Although an application to exclude evidence under s. 78 PACE is at the court’s discretion, which two bad character grounds make it mandatory to exclude if the adverse effect on fairness test is met?

Answer 12

• Matter in issue between P and D
• D attacked another’s character

Question 13

Exclusion of confession

An application to exclude a confession is made under what section, and what does it provide which should form the opening of your submission?

Answer 13

Section 76 of PACE

Submit to the court that although a confession is generally admissible as a matter in issue between P and D, once challenged, in order for the confession to be admissible, the prosecution must prove beyond reasonable doubt that the s. 76 factors were not made out

Question 14

Exclusion of confession

What are the two factors under s. 76 to exclude a confession?

Answer 14

• Unreliability due to things said or done likely to render the confession unreliable, or
• Unreliability due to oppression

You must then demonstrate how the factors are met on the facts

Question 15

Exclusion of ID evidence

Other than making a general s. 78 application to exclude the evidence under the adverse effect on fairness test, what should you consider in the context of an application to exclude ID evidence?

Answer 15

The ADVOKATE factors which go to quality of the evidence

The poorer the quality, the bigger the adverse effect on the fairness of proceedings

Question 16

Exclusion of improperly obtained ID evidence

Other than making a general s. 78 application to exclude the evidence under the adverse effect on fairness test, what should you consider in the context of an application to exclude ID evidence that was unfairly obtained?

Answer 16

The failure under Code D to:
* Take into account reasonable objections to appearance of others
* Keep witnesses away from suspect
* Keep witnesses apart
* Warn that suspect might not be shown

Question 17

No case to answer

What are the stages of a submission of no case to answer?

Answer 17

Submit that the prosecution:
* Bear the burden to prove D’s guilt and prove all elements of the offence, and
* Have failed to prove an element of the offence, or the evidence is so manifestly unreliable, no reasonable court would convict

Question 18

Plea in mitigation

What is the structure of a plea in mitigation?

Answer 18

• Submit that the sentence must be proportionate to the seriousness of the offence (and custody threshold)
• Use sentencing guidelines to identify sentence starting point and range
• Identify aggravating and mitigating factors of the offence in the facts
• Consider consecutive/concurrent argument based on facts
• Identify mitigating factors of the offender in the facts
• Reference credit for guilty plea if D pleaded
• Propose appropriate sentence

Question 19

What is the definition of hearsay under the CJA 2003?

Answer 19

A statement not made in oral evidence in proceedings that is adduced as evidence of the matter stated.

(CJA 2003 s.114(1))

Question 20

What are the four main hearsay gateways under s.114(1) CJA 2003?

Answer 20

(a) Statutory provisions (e.g., s.116)
(b) Agreement of all parties
(c) Court permits in interests of justice
(d) Common law preserved under s.118

Question 21

What are the conditions under s.116 for admitting hearsay where the witness is unavailable?

Answer 21

Witness identified but unavailable due to specified reasons (e.g., death, fear)
Statement made outside proceedings
Admission is in the interests of justice

Question 22

What case outlines the test for whether a statement is hearsay?

Answer 22

R v Twist – 3-stage test:

1. Purpose of statement
2. Intention to cause belief or action
3. Used as proof of matter stated

Question 23

What is the relevance of R v Andrews to hearsay evidence?

Answer 23

Exception for res gestae: Spontaneous statements may be admissible if contemporaneous and credible.

Question 24

What does s.114(2) of the CJA 2003 require courts to consider before admitting hearsay?

Answer 24

Factors include:

• Probative value
• Circumstances of the statement
• Reliability
• Ability to challenge
• Importance of evidence to the case

Question 25

What legal mechanism can be used to exclude hearsay on fairness grounds?

Answer 25

s.78 PACE 1984 — Exclusion of unfair evidence - In R v Sparks (1994), hearsay evidence was admitted but later excluded under s.78 PACE because it was unreliable and unfair to the defendant. Art. 6 ECHR — Right to a fair trial s.114(2) CJA 2003 — Interests of justice test

Question 26

When can fear be a valid reason for witness unavailability under s.116?

Answer 26

If genuine and substantial fear is proven (R v Ibrahim). Court must consider alternative special measures first.

Question 27

What is the hearsay rule’s relationship to Art. 6 ECHR?

Answer 27

Hearsay may breach fair trial rights unless: - There is good reason for absence - Evidence is reliable - Safeguards are in place ## Footnote (R v Al-Khawaja and Tahery [2011])

Question 28

How should you structure a hearsay objection in oral advocacy?

Answer 28

Identify the objection: “Your Honour, this is hearsay.” State legal basis: “Under s.114(1)...” Apply to facts and argue exclusion Cite relevant case law Conclude clearly and respectfully

Question 29

What is the test for admissibility under s.114(1)(d)?

Answer 29

Court may admit hearsay if it is in the interests of justice. ✅ Consider nine factors (reliability, importance, etc.) under s.114(2).P.O.I.C.R.R.A.D.P. → "Please Offer Interesting Cases, Reliable Reports And Detailed Proof!" 1️⃣ Probative value → How much does this help prove the case? 2️⃣ Other available evidence → Is there anything else supporting or contradicting it? 3️⃣ Importance in the case → Is this crucial or just background detail? 4️⃣ Circumstances of the statement → Was it said calmly or in chaos? 5️⃣ Reliability of the maker → Can we trust the person who made the statement? 6️⃣ Reliability of the statement itself → Is the content accurate? 7️⃣ Availability of oral evidence → Could the witness have testified instead? 8️⃣ Difficulty in challenging the statement → Can the defence properly test it? 9️⃣ Potential prejudice → Would admitting it unfairly sway the trial? Now, every time you're analyzing hearsay evidence, just think: "Please Offer Interesting Cases, Reliable Reports And Detailed Proof!" 😃 Would you like me to refine this further or make another version? 📚 Case: R v Xhabri – court reluctant unless no better evidence available. | .O.I.C.R.R.A.D.P. → "Please Offer Interesting Cases, Reliable Reports An

Question 30

How do you argue hearsay should be excluded for unfairness?

Answer 30

Cite s.114(2) CJA – consider: Reliability Motivation to lie Possibility of cross-examination Cite Article 6 ECHR: Right to fair trial 📚 R v Sellick – admission of hearsay not unfair if witness unavailable through no fault of state.

Question 31

Can a spontaneous 999 call be hearsay?

Answer 31

Depends on intent. If it reflects immediate reaction to events, not intended to assert truth, it may fall outside hearsay. 📚 R v Ratten – “Res gestae” exception ⚖️ R v Andrews – admissible if contemporaneous and credible.

Question 32

When is hearsay admissible due to a witness' fear?

Answer 32

Under s.116(2)(e), hearsay may be admitted if the witness is in fear, but the court must consider using special measures first. 🧠 Case: R v Ibrahim – fear must be real and substantial. ⚖️ Must balance prejudice and fairness under Art. 6.

Question 33

What is the legal framework for excluding confession evidence?

Answer 33

A confession must be excluded if obtained by oppression or unreliability.

Question 34

What are examples of oppression in confession evidence?

Answer 34

Oppression can include threats or prolonged questioning.

Question 35

What are examples of unreliability in confession evidence?

Answer 35

Unreliability can include inducements or misleading statements.

Question 36

What is the conclusion for excluding confession evidence?

Answer 36

Request exclusion to ensure fairness.

Question 37

What is the legal framework for excluding oppression evidence?

Answer 37

Evidence must be excluded if its admission would adversely affect fairness.

Question 38

What are examples of procedural breaches in oppression evidence?

Answer 38

Procedural breaches can include failure to caution or denial of legal representation.

Question 39

What is the conclusion for excluding oppression evidence?

Answer 39

Urge exclusion to uphold justice.

Question 40

What is the legal framework for mode of trial submission?

Answer 40

Refer to the Magistrates’ Courts Act 1980.

Question 41

What are arguments for seeking Magistrates' Court?

Answer 41

Emphasize lower sentencing powers, speed, and cost.

Question 42

What are arguments for seeking Crown Court?

Answer 42

Highlight complexity, seriousness, and jury trial benefits.

Question 43

What is the conclusion for mode of trial submission?

Answer 43

Persuade the court to accept the preferred venue.

Question 44

What is the introduction for a bad character application?

Answer 44

"Your Honour, I make an application under s.101 Criminal Justice Act 2003 to [admit/exclude] evidence of the defendant's bad character."

Question 45

What are the seven gateways for admissibility under s.101 CJA 2003?

Answer 45

1. Agreement by all parties. 2. Adduced by the defendant. 3. Important explanatory evidence. 4. Relevant to an important matter in issue. 5. Substantial probative value in relation to a co-defendant. 6. Correcting false impression given by the defendant. 7. Defendant attacked another's character.

Question 46

What is an argument for admitting bad character evidence?

Answer 46

"The defendant's past convictions demonstrate a clear propensity to commit similar offences (R v Hanson (2005))."

Question 47

What is an argument for excluding bad character evidence?

Answer 47

"The proposed evidence does not meet any s.101(1) gateways and would unfairly prejudice the defendant (R v Somanathan (2004))."

Question 48

What is the conclusion for a bad character application?

Answer 48

"Your Honour, given the balance of fairness and statutory requirements, the application to [admit/exclude] should be granted."

Question 49

What is the introduction for an application to exclude identification evidence?

Answer 49

"Your Honour, I apply to exclude identification evidence under the Turnbull guidelines (1977)."

Question 50

What are the ADVOKATE factors for identification reliability?

Answer 50

1. A - A sustained look? 2. D - Distance from suspect? 3. V - Visibility? 4. O - Observation impeded? 5. K - Was suspect known to witness? 6. A - Any unique features remembered? 7. T - Time between sighting and identification? 8. E - Errors in identification?

Question 51

What is an argument for excluding identification evidence?

Answer 51

"The witness’s description is vague and inconsistent (R v Turnbull (1977))."

Question 52

What is the conclusion for excluding identification evidence?

Answer 52

"Given the unreliable nature of this identification and lack of corroboration, exclusion is warranted."

Question 53

What is the introduction for a hostile witness application?

Answer 53

"Your Honour, I apply under s.3 Criminal Procedure Act 1865 for leave to treat the witness as hostile."

Question 54

What defines a hostile witness?

Answer 54

A hostile witness is one who refuses to testify truthfully or contradicts previous statements.

Question 55

What is an argument for treating a witness as hostile?

Answer 55

"The witness’s contradictions in statements indicate hostility (R v McAfee (2009))."

Question 56

What is the conclusion for a hostile witness application?

Answer 56

"In light of the witness’s inconsistent evidence, leave to treat them as hostile should be granted."

Question 57

What is the introduction for applying to set aside adverse inference?

Answer 57

"Your Honour, I apply to set aside the adverse inference drawn under **s.34-38 Criminal Justice and Public Order Act 1994**, as it would be unfair to rely on it in these circumstances."

Question 58

What does **s.34 CJPOA 1994** address?

Answer 58

Adverse inference from failure to mention facts later relied upon.

Question 59

What does **s.35 CJPOA 1994** address?

Answer 59

Adverse inference from failure to testify.

Question 60

What does **s.36 CJPOA 1994** address?

Answer 60

Adverse inference from failure to account for objects, substances, or marks.

Question 61

What does **s.37 CJPOA 1994** address?

Answer 61

Adverse inference from failure to account for presence at a particular place.

Question 62

What does **s.38 CJPOA 1994** address?

Answer 62

Interpretation and limitations on adverse inferences.

Question 63

What is a key argument regarding reasonable reliance on legal advice?

Answer 63

"The defendant remained silent on legal advice, which was reasonable and genuine." ## Footnote **Beckles v UK (2012)**—legal advice must be considered when assessing fairness.

Question 64

What is an argument based on exceptional circumstances?

Answer 64

"The defendant was under extreme distress or lacked capacity at the time of questioning." ## Footnote **R v Howell (2003)**—mental state can negate adverse inference.

Question 65

What is an argument regarding procedural unfairness?

Answer 65

"The police failed to properly caution the defendant or provide legal representation." ## Footnote **R v Argent (1997)**—procedural breaches can invalidate adverse inference.

Question 66

What is an argument concerning alternative explanations?

Answer 66

"The defendant had no knowledge of the fact relied upon at the time of questioning." ## Footnote **R v Roble (1997)**—adverse inference should not apply where the defendant was unaware of the fact.

Question 67

What is the conclusion regarding the adverse inference?

Answer 67

"Given the circumstances, the adverse inference should be set aside to ensure a fair trial."

Question 68

Beckles v UK (2012)

Answer 68

- Arguments: - Reasonable reliance on legal advice: - "The defendant remained silent on legal advice, which was reasonable and genuine (—legal advice must be considered when assessing fairness)."

Question 69

- Exceptional circumstances:R v Howell (2003)

Answer 69

- "The defendant was under extreme distress or lacked capacity at the time of questioning (—mental state can negate adverse inference)." -

Question 70

Procedural Unfairness- R v Argent 1997

Answer 70

Procedural unfairness: - "The police failed to properly caution the defendant or provide legal representation (R v Argent (1997)—procedural breaches can invalidate adverse inference)."

Question 71

(R v Roble (1997)

Answer 71

- Alternative explanations: - "The defendant had no knowledge of the fact relied upon at the time of questioning —adverse inference should not apply where the defendant was unaware of the fact)."

Question 72

What is the introduction of the Youth Allocation Advocacy Plan?

Answer 72

"Your Honour, this is an application concerning the appropriate allocation of proceedings for a youth defendant under the **Magistrates’ Courts Act 1980** and the **Crime and Disorder Act 1998**."

Question 73

Where are youth defendants generally tried?

Answer 73

**Youth defendants (aged 10-17) are generally tried in the Youth Court** unless certain conditions apply.

Question 74

What are the exceptions for youth defendants being tried outside the Youth Court?

Answer 74

1. They are jointly charged with an adult (**s.51 Crime and Disorder Act 1998**). 2. They are charged with a **grave crime** (e.g., murder, serious sexual offences, firearms offences) (**s.24 Magistrates’ Courts Act 1980**). 3. The Youth Court declines jurisdiction due to sentencing limitations (**s.19 Magistrates’ Courts Act 1980**).

Question 75

What is an argument for seeking Youth Court allocation?

Answer 75

"The Youth Court is best suited for rehabilitation-focused sentencing (**R v Ghafoor (2002)**—emphasis on youth rehabilitation)."

Question 76

What is another argument for seeking Youth Court allocation?

Answer 76

"The defendant’s age and vulnerability warrant proceedings in a specialist jurisdiction (**R v T (2020)**—importance of tailored youth justice)."

Question 77

What is an argument for seeking Crown Court allocation?

Answer 77

"The gravity of the offence exceeds the Youth Court’s sentencing powers (**R v Smith (2018)**—serious offences require Crown Court jurisdiction)."

Question 78

What is another argument for seeking Crown Court allocation?

Answer 78

"A custodial sentence exceeding two years is likely, making Youth Court jurisdiction inappropriate (**R v S (2015)**)."

Question 79

What is the conclusion of the Youth Allocation Advocacy Plan?

Answer 79

"Given the nature of the offence and the defendant’s circumstances, the case should be allocated to [Youth Court/Crown Court] to ensure a fair and proportionate trial."

Question 80

What is the legal test under Section 76 PACE 1984 for mandatory exclusion of confession evidence?

Answer 80

A confession must be excluded if the prosecution cannot prove beyond reasonable doubt that it was not obtained by oppression or not rendered unreliable due to something said or done.

Question 81

What constitutes oppression under Section 76 PACE 1984?

Answer 81

Oppression includes torture, inhuman or degrading treatment, or the use/threat of violence.

Question 82

What leads to unreliability of a confession under Section 76 PACE 1984?

Answer 82

Unreliability arises if the confession was obtained in circumstances likely to make it unreliable, such as inducements or misleading statements.

Question 83

What is the key case law defining oppression?

Answer 83

R v Fulling (1987) defined oppression as conduct that is inhuman or degrading.

Question 84

What was the outcome of R v Paris, Abdullahi & Miller (1993)?

Answer 84

Confession was excluded due to aggressive police questioning.

Question 85

What led to the exclusion of evidence in R v Mason (1988)?

Answer 85

Police deception led to exclusion under s.76.

Question 86

What is the legal test under Section 78 PACE 1984 for discretionary exclusion of evidence?

Answer 86

The court may exclude evidence if its admission would have an adverse effect on the fairness of proceedings.

Question 87

What types of evidence does Section 78 PACE 1984 apply to?

Answer 87

This applies to any evidence, not just confessions.

Question 88

What factors does the judge consider under Section 78 PACE 1984?

Answer 88

The judge considers all circumstances, including how the evidence was obtained.

Question 89

What is the key case law regarding fairness in proceedings?

Answer 89

R v Quinn (1995) emphasizes that courts must protect fairness in proceedings.

Question 90

What was the outcome of R v Samuel (1988)?

Answer 90

Denial of legal advice led to exclusion under s.78.

Question 91

What justified exclusion in R v Walsh (1990)?

Answer 91

Serious breaches of PACE justified exclusion.

Question 92

What is the type of exclusion under s.76 PACE 1984?

Answer 92

Mandatory exclusion.

Question 93

What is the type of exclusion under s.78 PACE 1984?

Answer 93

Discretionary exclusion.

Question 94

What grounds for exclusion are specified in s.76 PACE 1984?

Answer 94

Oppression or unreliability.

Question 95

What grounds for exclusion are specified in s.78 PACE 1984?

Answer 95

Unfairness in proceedings.

Question 96

What is the burden of proof under s.76 PACE 1984?

Answer 96

Prosecution must prove confession was not obtained improperly.

Question 97

What is the burden of proof under s.78 PACE 1984?

Answer 97

Defence must argue unfairness.

Question 98

Is there judicial discretion under s.76 PACE 1984?

Answer 98

No discretion—if test is met, exclusion is required.

Question 99

Is there judicial discretion under s.78 PACE 1984?

Answer 99

Judge decides based on fairness.