Criminal Litigation - advocacy tests Flashcards
(20 cards)
Overriding objective
1.1.—(1) The overriding objective of this procedural code is that criminal cases be dealt with justly.
(2) Dealing with a criminal case justly includes―
(a)
acquitting the innocent and convicting the guilty;
[F1(b)
treating all participants with politeness and respect;]
[F2(c)]
dealing with the prosecution and the defence fairly;
[F2(d)]
recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;
[F2(e)]
respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;
[F2(f)]
dealing with the case efficiently and expeditiously;
[F2(g)]
ensuring that appropriate information is available to the court when bail and sentence are considered; and
[F2(h)]
dealing with the case in ways that take into account―
(i)
the gravity of the offence alleged,
(ii)
the complexity of what is in issue,
(iii)
the severity of the consequences for the defendant and others affected, and
(iv)
the needs of other cases.
Exclusion of defendant’s confession
A confession is relevant to a matter in issue between the defendant and prosecution and is therefore admissible. However:
The court MUST exclude confession evidence if obtained by oppression or due to anything said or done likely to make it unreliable. If admissibility is challenged under s.76, the burden
of proof is on the prosecution to prove beyond reasonable doubt that the confession was not obtained by oppression/not unreliable. It is not for D to prove that it was so obtained. The court is entitled to consider the character and experience of the suspect in deciding what is
oppressive or likely to make a confession unreliable. There must be a CAUSAL LINK such that the ‘thing said or done’ or ‘oppression’ has caused or may have caused the confession (s76 PACE)
The court MAY exclude evidence if it has an adverse effect on the fairness of the proceedings (s78 PACE)
Admissibility of co-defendants’ confession
For Prosecution - not admissible, but common enterprise hearsay exception allows one statement by one party to common enterprise to be admitted.
For another co-defendant - admissible
Challenging witness evidence
TURNBULL GUIDELINES
Amount of time
Distance
Visibility
Obstruction
Known to witness
Any special reason for remembering
Time lapsed
Errors
The court may exclujde evidence if it has an adverse effect on the fairness of the proceedings (s78 PACE)
You may:
Attack witness’ credibility
Challenge witnessses of fact giving opinions
Challenge relevancy
Challenge hearsay evidence.
Section 126 CJA - hearsay must be excluded if its admission would result in undue waste of time
Admissibility of defendant’s bad character evidence
Is it evidence of, or of a disposition towards, misconduct, commission of other offfences or reprehensible behaviour outside of the offence? If yes, it is not admissible unless:
All parties agree
It is adduced by the defendant
It is important explanatory evidence
Relevant to an important matter at issue between the prosecution and defence
Substantial probative value to matter at issue between co-defendants
Corrects a false impression given by the Defendant
The defendant attacks another’s character
If important matter in issue between prosecution and defence, or D attacks another character, the court must not admit it if D makes an application to exclude it and it appears to the court that admitting the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it.
Non-defendant’s bad character evidence
3 gateways:
Important explanatory evidence (court leave required).
Substantial value relating to an important matter in issue (court leave required).
Parties agree
No case to answer
Burden lies with Prosecution to prove D committed the offence beyond reasonable doubt.
Ruling based on either:
No evidence
Evidence is insufficient for any reasonable court to properly convict.
Court should consider the evidence at its highest (credibility and reliability not relevant).
Court bail
Presumption in favour of bail: there is a general right to unconditional bail
3 main exceptions:
There are substantial grounds to believe that the defendant would:
Fail to surrender
Commit an offence whilst on bail
Interfere with witnesses
Exceptions will not apply where there is no real prospect of a custodial sentence if convicted.
Consider the strength of the evidence against D; nature and seriousness, character and criminal record, community ties.
Examples bail conditions:
Risk of absconding: surrender passport/residence/curfew/reporting to police station
Interfere with witnesses: not to contact name witnesses/not to go within certain radius
Commit an offence: curfew, police checks
It is a criminal offence to surrender without reasonable cause whilst on bail.
Exclusion of visual identification evidence owing to poor quality
S78 Pace
Identify what other evidence there is to support Prosecution
Argue for/against the strength of the evidence going through ADVOKATE
Exclusion of visual identification evidence owing to improper obtainment
S78 PACE
Identify relevant breaches of identification procedures under Code D, including:
Taking into account reasonable objections to appearance of others in ID procedures
Keeping witnesses away from the suspect before and during the procedure
Keeping witnesses apart during the procedure
Warning that the suspect might not be shown at all
Plea in mitigation
Remind court that the sentence must be proportionate to the seriousness of the offence, bearing in mind the offender’s culpability and any (potential) harm for the offence.
Identify the starting point for the sentence + range of sentences available
Consider aggravating and mitigating factors
For multiple offences, ,explain why they should be served concurrently
Remind court of credit for guilty plea
Propose an appropriate sentence.
Notice to introduce hearsay evidence
Hearsay only admissible if it falls under a category of admissible hearsay:
Witness unavailable (outside UK, dead and not reasonable practicable to secure attendance. Fear requires court leave).
A business document if (1) it was created or received in the course of trade (2) the person who supplied the info may reasonably be supposed to have had personal knowledge of the matter and (3) if information was received by others, it was done in the course of trade
Statements prepared for use on criminal proceedings and the relevant person cannot be expected to recollect the matter.
There are previous consistent or inconsisten statements of a witness.
Expert evidence is adduced.
There is a confession.
Res gestae
Agreement of all the parties
Admissible in the interests of justice, court must consider:
Probative value
What other evidence could be given
How important the evidence is in relation to the case as a whole
The circumstances in which the statement was made
How reliable the maker of the statement appears
How reliable the evidence of the making of the statement appears
Whether oral evidence of the matter stated can be given
The amount of difficulty in challenging the statement
The extent of the likely prejudice caused
Multiple hearsay is only admissible if: (1) it is a business document, (2) an inconsistent statement (3) consistent statement; (4) all parties agree; (5) the value of the evidence is so high it is in the interests of justice.
Notice to exclude hearsay evidence
S78 PACE
Section 126 CJA - hearsay must be excluded if its admission would result in undue waste of time
Mode of trial - arguing court should accept jurisdiction (allocation hearing - either-way offences)
Court must consider the adequacy of its sentencing powers.
Magistrates’: 6 months for summary only, or a single either way offence. 12 months for multiple either way offences.
Go through the relevant sentencing guidelines.
Submit that the court’s sentencing powers are adequate and it should therefore accept jurisdiction.
Application for witness summons
The court may issue a summons if it appears in the interests of justice to do so.
Explain what evidence they will give and why it is material to the case.
Explain why the witness may not attend voluntarily.
Why it is in the interests of justice.
Youth allocation
Is the offence indictable only? If yes, it must be sent to the Crown Court.
If either way, the Youth Court must consider the Magistrates’ Court Sentencing Guidelines to decide whether their powers are sufficient. If sufficient the case should be retained in the Youth Court.
Would an adult charged with the same offence be sent to the Crown Court? If yes, still consider whether the youth’s age, maturity and lack of prior record justify retention in the Youth Court.
Is the Youth charged with an adult? Try separately to avoid prejudicing youth but if in interests of justice, they can be sent to Crown court with the adult.
Good character direction
If D has no previous convictions, they are automatically entitled for the judge to give a good character direction that a person is of good character and is less likely to commit the offence and is more likely to be credible when asserting their innocence
Self defence test
The defendant must have honestly believed that the use of force was necessary to protect themselves or another.
The use of force was reasonable in the circumstances the defendant believed them to be.
Application for special measures
The court must be satisfied that the quality of the witness’s evidence is likely to be diminished due to their fear or distress about testifying.
Newton Hearing
Defendant pleads guilty but disputes facts materially affecting sentencing.
