Criminal Flashcards
(17 cards)
Bail
Legal test
- Presumption in favour of bail
- Court shoudl only refuse bail if it is has subtantial grounds to beleive D would FTS, CFO, IWW, OCJ.
- Court shoudl ahve regard to factors when making its decision (ties, prior offences, FTSs, community ties, D”s character, seriousness of offence)
Submissions:
- P: Court should refuse bail on basis htere are SG2B …
- D: court should grant bail on basis there are no SG2B. If the court is not minded to agree, court should instead grant conditional bail because concerns can be allayed by conditions.
Plea in mitigation
Rule
- Court must follow sentencing guidlelines unless it would be contrary to the IoJ
- Under sentencing guidlines, court should determine category of offence by considering seriousness of the offence. Then the court shoudl consider aggravating and mitigating factros to determine whether sentence should be upper or lower end of range. Then the court should consider reduction for asssiting P or early guilty plea. Lastly the court shoudl consider totality and ancillary orders.
Submissions:
- first I will make submissions in relation to seriousness, then I will address aggravating and mitigating factors and hten I will address the appropriate reduction for early guilty plea.
- It is submitted that court should impose X sentence.
No case to answer
The court MUST acquit D if:
1) P have failed to prove an element of the offence; or
2) The evidence is so unreliable that no reasonable tribunal could safely convict on the evidence
Submissions:
- Elements of offence are… / P has failed to prove X,Y,Z
- no reasonable tribunal could safely convict because (1) weak ID evidence; and (2) no other supporting evidence
Allocation hearing / committing D for sentence
Rule:
- either way offences should be tried summarily unless the court’s sentencing powers would be insufficient (max 12 months).
- the court should assess the likely sentence D would receive in light of the facts alleged by P, taking into consideration all aspects of the case including those advanced by D
Submissions:
- P: outline facts + D’s previous convictions
- D: Reps as to why Mags / CC more suitable
Order for witness summons
Court MAY make an order if :
1) W could provide material evidence; an
2) order is in IoJ
Submissions:
- explain why material
- explain why IoJ
Special measures
Court MAY order special measures if W falls into a specified category.
Grave Crime submissions
Y must be tried in youth court unless an exception applies. One exception is where the offence is a grave crime and D is liely to receive a sentence substantially in excess of 2 years.
Structure
- Why grave crime
- Why real prospect Y will receive a sentence substantially in excess of 2 years (strong evidence + serious)
Submissions on jointly tried adult and youth
As a general rule, Youth shoud be tried in youth court. However, where a youth is jointly tried with an adult and the adults trial will be in the Crown court, the youth may be tried in the crown court if this would be in the interests of justice.
the court should have regard to teh folloiwng factors:
- Y’s age
- Y’s culpability
- Impact on witnesses
- Y’s maturity
- Y’s previous convictions
Submissions:
- jointly charged, both pleading ng, D’s trial in CC.
- Whether CC trial is in IoJ
Bad character - IMPORTANT EXPLANATORY EVIDENCE (c) - context
- BCE is misconduct or reprenhsible behaviour unrelated to offence
- Inadmissible unless falls within 1 of 7 gateways
- Relevant gateway is (c): important explanatory evidence
- evidence may be admitted under gateway C if without it (1) difficult or impossible to understand the rest of the evidence and (2) value for understanding the case as a whole is substantial
If P trying to adduce:
- First, I will set out why evidence wish to admit is BCE
- Then I shall move on to explain why it hsoudl be admitted on basis impossible / diff to understand rest of evidence
- Finally, I shall explain why it has substantial value for understanding case as a whole
If D contesting
- First, submitted that shoudl not be admitted because test is not satisfied.
- Alternatively, shoudl not be admitted because s78
Bad Character - (e) SPV in relation to an IMI between D and Co-D
- BCE is misconduct or morally reprehensible beheavioru
- inadmissible unless falls within 1 of 7 gateways
- Relevant gateway is (e) SPV in relation to an IMI between D and Co-D
- BCE is admissible under (e) if (1) SPV = impacts way court view evidence (2) IMI = propensity, credibility, disputed fact
Submissions:
- BCE because…
- SPV because..
- IMI because…
Bad character - gateway (f) correct false impression
- BCE is defined as…
- BCE is inadmissible unless falls within 1 of 7 gateways
- Relevant gateway is (f): correct a false impression
- Evidnece may be admitted under (f) if (1) D has created a false impression (2) D has not distanced themselves from false impression (3) Goes no further than to correct false impression
P’s submissions
- BCE because..
- Each limb of test
D’s submissions:
- BCE because
- Gateway not satisfied
- Court shoudl exclude under s78 PACE
Bad character - D attacks another’s character (g)
- BCE definition
- BCE is inadmissible unless falls within 1 of 7 gatways
- Relevant gateway is gateway g - attacks anothers character
- Admissible if: D attacks another’s character
P
- BCE because
- Attacked another because…
D
- Gateway not satisfied because..
- MUST not admit if adverse effect on fairness
Bad character - relevant to an important matter in issue (d)
- BCE is..
- Inadmissible unless falls within 1 of 7 gateways
- Relevant gateway here is (d): relevant to an important matter in issue.
- To determine whether admissible under this limb court should have regard to factors in Hanson
- Whether BCE shows propensity to commit offences of type charged. Propensity can be demonstrated by prior convictions of same description or category.
- Whether propensity means more likely D committed this offence
- Whether it would be unjust to admit
relevant considerations:
- Length of time
- Should not be admitted to bolster a weak case
- MUST not admit if it woudl have such an adverse effect on fairness
- s78 PACE
P’s submissions
- BCE because…
- Falls within D because propensity, more likely commited this offence and would not be unjust
D’s submissions
- BCE because
- Consider HAnson
- ALternatively, court hsould not admit under s78 PACE
Hearsay - unavailable witness app
- Hearsay is a statement made outside of court, repeated in court, to prove the truth of matter stated
- Hearsay is inadmissible unless it falls within a statutory exception.
- the relevant statutory exception here is that the witness is unavailable.
- To be admissible under this exception:
1) SM could have given evidence at trial (releavnt, admissible and competnent and compellible)
2) SM is identifiable
3) Specified reason for unavailability
- dead
- ill
- missing + cannot reasonably be located
- Abroad + not practicable to secure attendance
- Fear + interests of justice (importance, unfairnes, special measures)
Pro-admission
- Should be admitted because satisfies test.
- If court does not agree, shoudl admit because IoJ to admit
response
- Should not be admitted becuase does not satisfy test
- Alternatively, unfair to admit under s78 PACE
- Alternatively, case for excluding outweighs case for admitting
Hearsay - business doc
- Hearsay is a statement made out of court repeated in court to prove truth of matter stated
- Inadmissible unless exception applies.
- Relevant exception here is that it is a business doc.
- Business doc is admissible if:
- Produced in course of business
- SM had personal knwoledge
- Each intermediary acted in course of business
- if notebook / WS: unavailable or length of time
Confession evidence
- Confession is defined as a statement by D which is averse to D made to anyone
- Confession is admissible as an exception to hearsay rule
- However court must exclude under s76 if caused by oppression or things said or done which render it unrelaible
- court also has discretionary power to exclude under. s78 PACE
First, I will make subsmission as to why court is obliged to exclude under s76. In the event hte court is not pursauded, I shall then address why the court shoudl exercise its discretion under s78
- Opression + causation (close proximity)
- s78: serious and substantial breach of PACE + all surrounding circs ought not be admitted bc
Exclusion under s78 PACE
May exclude if it woudl ahve such an adverse effect on fairness it ought not be admitted.
- court shoudl ahve regard to all circs including circs evidence obtained
- any breach should be significant and subsantial
Submissions:
1. Explainhow breach was serious and substantial + tf would have such adverse effect because…
2. Address other cirs which mean admission woudl ahve such advese effect (weak case / other breaches)
