Advocacy - Criminal Flashcards
(26 cards)
How do you address a judge in the HC?
My lord/lady
How do you address a circuit judge or recorder?
Your Honor
How to address a District Judge? And magistrate?
Judge, Sir or Madam
What factors are considered when deciding whether legal grounds for withholding bail are present
6 conditions
LAW: (Bail Act 1976, paragraph 9)
1) Nature and seriousness of the offence
2) charecter, record, assoicates and community ties of D
3) bail record
4) Strength of evidence
5) Risk D will engage in conduct that would be likely to cause harm to others
6) Any other relevant factor
When can bail be refused without considering exceptions?
4 answers
- Grave crimes such as murder, rape, manslaughter or previous conviction for a grave crime (unless there is no sig risk the person would commit an offence that would be likely to cause injury to another person)
- If they are already on bail when the new offence is committed. (unless no sig risk of committing offence)
- Is already on bail for the offence and has failed to surrender to custody (unless no sig risk)
- Positive test for class A substance and indication of drug dependency and refusal to undergo treatment.
Application to remand a D in custody (pre-trial) Bail Application
Brought by P, opposed by D. Challenging the presumption against bail so must cite exclusion or exception. Starting point is bail, then bail with conditions, then remand.
When can the presumption in favour of bail be rebutted? (Bail act 1976)
9 answers
1) Adjournment due to pre-sentencing report and completion of report not practical if D is not in custody
2) Indictable offence with real prospect of imprisonment
3) Already on bail and charged with indictable offence
4) already serving custodial sentence
5) failure to surrender
6) On bail already and charged with indictable offence.
7) should be kept in custody for their own protection or, if they are a child or young
person, for their own welfare
8)Substantial grounds for believing that:
1. D will fail to surrender to custody
2. D will commit and offence while on bail
3. D interfere with witnesses or otherwise obstruct the course of justice, whether in
relation to themselves or any other person
9) Court has not been able to obtain sufficient info to decide re bail
What is the process for further bail applications?
BAIL ACT: Bail act schedule 1 part IIA
If first application is refused can make one further application on the same facts unless change in circumstances. Court must consider bail at each hearing after refusal but D cannot apply for bail more than twice.
Application by P to appeal against bail decision
Appeal to CC judge. Can only be made if the P made representations that bail should not be granted and these were made before it was granted.
Reconsidering the issue of bail (brought by P)
Bail Act s 5B
Court may reconsider only if there is new info that was not available to court or police at previous hearing. E/W and Indictable only
Application to vary bail (Usually D) CRIm PR 14.7
LAW: Criminal Proceedure Rules 14.7
- App to vary bail conditions
- Must have good reason and apply to court that granted bail or to CC If case has been passed there
Breach of bail conditions
LAW: (Bail act 1976, s 7(5))
Not an offence or contempt but D will be brought before Mags court may remand or grant bail with same/different conditions if they are of the view that:
i) D is unlikely to surrender to Custody
ii) D has broken or is likely to break or has broken bail conditions.
If neither i or II apply bail will remain as is.
Application for remand post conviction
LAW: (Bail Act 1976, s.4(2))
Application by P for remand between conviction and sentence due to pre-s report. Usually based on likely sentence, no prima facie right to bail for convicted person so court discretion
Application to adduce D bad character
7 answers
LAW: Criminal justice act 2003 98-110, 112
Brought by P, opposed by D
Court leave is required in order to adduce bad C via gateways 101(a)-(g)
a) All parties agree to evidence being admissible
b)D offered the bad C info or it is given in answer to cross-examination
c) Important explanatory evidence
d) relevant to an important matter in dispute between D & P
e) Substantial probative value in relation to an important matter between D and Co-d
f) evidence to correct false impression given by D
g) D has made an attack on another person’s character
.
Application to adduce hearsay
(statement not made in oral evidence that is evidence of any matter stated)
4 answers
LAW: CJA 2003 114-136
Presumption is that hearsay is not admissable in Criminal proceedings except when there is one of the following:
a) Statutory provision renders it admissable (witness unavailable as dead, unfit, overseas, scared, missing)
b) Common law rule in favour of admissibility is preserved by 118 CJA (eg res gestae- person emotional state when it was made makes it impossible for it to be untrue, it is necessary to interpret an act, it is about the physical or mental state of a person)
c) Agreement of all parties
d) Court satisfied it is in the interests of justice to admit
No case to answer (D)
LAW: CrimPR 24(3)(d)(i)
Galbraith
Once P have rested the D can submit that the evidence does not disclose a case to answer in relation to all or any of the counts on the indictment.
Court may acquit on grounds P evidence insufficient for a reasonable court to convict. If unsuccessful D will go on to give evidence to support D N-G plea. No case to answer is done sui juris and should not be referred to infront of jury if unsuccessful.
Newton hearing
LAW: (Newton 1982, Cr App R 13)
Fact finding hearing before a judge or justices sitting alone. D has pleaded g but there is a material difference in versions of event put forward by D & P that could impact sentencing. Court must either accept D version or allow both sides to present evidence and then court decides true factual circumstances.
Newton H is a mini trial on disputed issue only
Application/submission re allocation
LAW: (CrimPR Part 9, Allocation guideline (sentencing council), Magistrates Court Act 1980 s 17(a)
Premise:
E-W cases should be tried summarily unless:
a) Outcome would clearly be a sentence in excess of the court’s powers taking into account mitigating factors and reduction due to plea
b) For reasons of unusual legal, procedural or factual complexity the case should be heard in the CC.
What is the exception to the rule re E-W offences and allocation?
Burglary is an E-W offence but is triable on indictment if a person inside the property is subject to actual or threat of violence or the D is over 18 and has 2 separate convictions for domestic burglary
Sentencing (usually plea in mitigation)
LAW: CrimPR 25.16
Address sentencing guidelines and argue for appropriate categorisation within the guidance. Refer to pre-sentence report if available.
Remind court of mitigating factors in connection with current offence e.g., credit for a guilty plea, downplay seriousness of offence or d role in offence, any possible explanation for the offence, d actions since defence eg remorse, impact of conviction on D/family.
Can then discuss wider social and financial circumstances and explain away previous convictions if applicable. finally move on to look at D future conduct and measures they have taken to prevent re-offending,
in short a) look at minimizing the severity in order to reduce the harm/culpability rating and associated sentencing band b) consider any credit for early plea or role in offence c) present mitigating factors re D conduct during offence d) consider impact on d and family of the sentence e) downplay previous convictions f) look at future conduct e.g. is now in rehab and d actions to prevent re-offending.
What are the statutory reasons for admitting hearsay?
1) Witness is dead
2) Witness cannot be located and reasonable efforts have been made
3) Witness unfit to appear due to physical or mental condition.
4) Person does not give evidence due to fear.
What are the grounds for opposing admissibility of a confession?
Section 76 pace -
a) Obtained by oppression
b) Unreliable in the circumstances
or section 78 adverse effect of fairness of the proceedings. Exclusion under 76 is mandatory, 78 courts judgement. If 76 objection is raised P must prove b.r.d that it does not apply.
Oppression must be deliberate action by police. Unreliablity must have been caused by something external to the D e.g if you admit to this now you can keep your job.
What are the grounds to object to visual ID (Turnball)? 3 main areas
1) Distance, duration, lighting, obstructions
2) Prior acquaintance and time elapsed
3) Discrepancies between description and D
Factors: Quality of ID extended vs brief observation, recognition vs identification. Judge must point out to Jury evidence that supports and negates the ID and warn that ID in general even if well meaning can be unreliable
What are the powers under section 78 PACE?
Exclude any evidence that would have adverse effect on fairness of proceedings. eg evidence not obtained properly by police. Court’s discretion. Commonly applied to evidence obtained via illegal search, in a breach of code D or via undercover officer.
