Criminal Litigation Flashcards
(11 cards)
Plea in mitigation
-Outline starting point of offence and range in Sentencing Guidelines
-Consider culpability and harm, and appropriate category under Sentencing Guidelines
-Outline aggravating and mitigating factors
-If multiple offences, consider concurrent or consecutive sentences
-Consider if early guilty plea, credit for sentence
-Conclude with appropriate sentence taking into account all the circumstances
Submission of no case to answer
R v Galbraith (1981) test:
- Either, that there is no evidence that a crime has been committed by the D; or
- That there is some evidence before the Court, but it is tenuous or inconsistent in nature:
- Judge must consider whether the evidence, when taken at its highest, is such that the jury could not properly convict upon it. If yes, the case should be dismissed.
Bail hearing
S4 Bail Act 1976 provides a presumption of bail.
The big three grounds of objection are set out in Schedule 1, para 2 Bail Act 1976:
a) fail to attend a subsequent hearing
b) commit further offences on bail
c) interfere with witnesses or otherwise obstruct the course of justice
Next most common trio are:
a) remand in custody is for D’s own protection
b) Court has insufficient information deal with issue of bail
c) D is already in custody
Consider any conditions of bail in order to overcome any objections.
Also consider nature and seriousness of the offence, Ds community ties, conviction record and strength of evidence.
Allocation
General rule-either way offences should be tried summarily unless insufficient sentencing powers or for reasons of unusual legal, procedural or factual complexity under S19-20 Magistrates’ Court Act 1980.
Consider sentencing powers of each Court and the likely sentence for the offence.
Potentially consider a Goodyear indication of sentence.
Magistrates have the power to commit the D to Crown Court for sentencing after trial.
Admissibility of adverse inferences
S34 CJAPOA 1994: when D later relies on a fact they failed to mention during questioning, an adverse inference can be drawn. Must be proportionate and reasonable to have mentioned in the circumstances at the time.
S36 CJAPOA 1994: when D fails to account for an object, substance or mark.
S37 CJAPOA 1994: when D fails to account for presence at the scene
S38 CJAPOA 1994 provides no D can be convicted solely on the basis of an adverse inference.
Excluding confession evidence under S76 PACE 1984
S76(a): ‘oppression’-if the confession was obtained by oppression, the Court shall not allow it unless the prosecution prove beyond reasonable doubt it was not.
S76(b): ‘unreliability’-if the confession was was obtained by anything said or done which was likely to render unreliable any confession made in consequence thereof, the Court shall not allow it unless the prosecution prove beyond reasonable doubt it was not.
R v Barry (1991) shall be applied as well:
- Identify the thing said or done eg a promise of bail/threat
- Ask whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence
- Ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done
Excluding confession evidence under S78 PACE 1984
Whether admission of the evidence would have such an adverse effect on the fairness of proceedings that the Court ought not to admit it.
Admissibility of bad character evidence (defendant)
Set out in s101(1)(a-g) CJA 2003:
a) All parties agree-no leave required
b) D chooses to adduce evidence e.g. come clean about an old conviction, no leave required
c) Important explanatory evidence: leave required
d) ‘done it before’: prosecution evidence only, R v Hanson (2005) sets out questions to be considered-leave required
d) Relevant to an important matter in issue between D and prosecution: substantial probative value-leave required
f) Correcting a false impression-leave is required
g) D attacks another’s character: triggered when an attack is made on any person-leave required
Admissibility of bad character evidence (non-defendant)
S100 CJA 2003:
- Important explanatory evidence: needed to help the Court/jury understand other evidence in the case-leave required)
- Substantial probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole: recent misconduct holds greater weight-leave required
- Agreement of the parties: no leave required
Admissibility of visual ID evidence
Turnbull direction-should be given when the case against the accused depends wholly or substantially on the correctness of visual identification evidence.
A: amount of time under observation
D: distance
V: visibility
O: obstruction
K: known or seen before
A: any reason to remember
T: time lapse
E: error or material discrepancy
Also consider S78 PACE 1984 application if after ADVOKATE is applied, the visual ID evidence is weak.
Admission of hearsay evidence
General rule, hearsay is inadmissible. Exceptions are set out in S114-S117 CJA 2003:
-the witness is unavailable (dead, unfit, outside UK, cannot be found or in fear)
-business document (medical records etc)
-in the interests of justice to admit it, considering probative value, importance of matter, circumstances and reliability
