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Criminal Litigation - Oral Tests Flashcards

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1
Q

What are the grounds against bail?

A

Substantial grounds to believe:

1) Fail to surrender to custody
2) Commit further offences on bail
3) Interfere with witnesses or obstruct justice

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2
Q

What could indicate failure to surrender to custody?

A

1) Previous failures to attend court
2) No fixed address

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3
Q

What could indicate commit further offences on bail?

A

Past convictions, ongoing offending

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4
Q

What could indicate interfere with witness or obstruct justice?

A

Contact with victims, intimidation, access to evidence

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5
Q

What else does court consider in bail application?

A

1) Nature and seriousness
2) Strength of evidence
3) D’s past record and bail history
4) Ties to the community (family, job, address)
5) Risk of harm to public
6) Likelihood of custodial sentence

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6
Q

What conditions can be imposed instead of refusing bail?

A

1) Residence condition
2) Curfew
3) Surety / security
4) Reporting to police station
5) Non-contact with witness
6) Surrendering passport

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7
Q

What is the structure of a plea in mitigation?

A

1) Confirm guilty plea, show remorse
2) Explain offence (not excuse it)
3) D’s background
4) Previous convictions (or lack of)
5) Steps taken since offence
6) Impact on sentence of D and others
7) Credit for early guilty plea
8) Propose an appropriate sentence

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8
Q

What are grounds of appeal by D from Magistrate’s to Crown Court for the sentence?

A

1) Sentence manifestly excessive
2) Wrong in principle
3) Procedural error

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9
Q

What is meant by manifestly excessive?

A

According to sentencing guidelines

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10
Q

What is meant by wrong in principle in appeal of sentence?

A

e.g. Judge applied wrong legal test or misunderstood facts

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11
Q

What is meant by procedural error in appeal against sentence?

A

e.g. failed to give proper credit

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12
Q

What is the structure of oral advocacy for sentencing appeal?

A

1) State appeal and client’s details
2) Explain basis of appeal
3) Set out what happened below
4) Mitigating factors
5) Reference sentencing guidelines
6) Remind court of sentencing principles
7) Propose a just sentence

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13
Q

Do you need permission to appeal from Magistrates’ Court to the Crown Court?

A

No, it is as of right

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14
Q

What can D appeal against from Magistrates’ Court to Crown Court?

A

Conviction (if pleaded not guilty) and Sentence

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15
Q

Is permission required by D to appeal to the Court of Appeal from the Crown Court?

A

Yes, immediately by the trial judge or Court of Appeal

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16
Q

What can D appeal against from Crown Court to Court of Appeal?

A

Conviction and Sentence

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17
Q

What is the test for D permission to appeal conviction from Crown to CoA?

A

Is there an arguable ground to show that the conviction is unsafe?

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18
Q

What is the test for D actual appeal of conviction from Crown to CoA?

A

Is the conviction unsafe?

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19
Q

What are the grounds for D to appeal against sentence from Crown to CoA?

A

1) Manifestly excessive
2) Wrong in principle
3) Wrong in law

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20
Q

Can a prosecution appeal against sentence to CoA?

A

Yes

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21
Q

Can a prosecution appeal against conviction to CoA?

A

No

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22
Q

Who applies for prosecution appeal against sentence to CoA?

A

Attorney General

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23
Q

What is the appeal test for sentence by prosecution appeal to CoA?

A

Sentence must be unduly lenient that no reasonable judge would have imposed it

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24
Q

What is prosecution appeal on point of law to CoA?

A

Clarify legal point

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25
When can an appeal be made from CoA to Supreme Court?
- Point of law of general public importance - Point ought to be considered by Supreme Court
26
What are time limits to appeal?
28 days
27
How many gateways for admitting bad character evidence for a Defendant?
7
28
When can bad character evidence be admitted without a test?
1) All parties agree 2) Evidence adduced by D himself
29
What is the test for admitting bad character evidence where evidence is important explanatory evidence?
1) Without it jury would find it impossible or difficult to understand other evidence 2) Must have substantial explanatory value
30
What is the test for admitting bad character evidence where it is relevant to an important matter in issue between D and Prosecution?
1) Relevant to significant issue (e.g. propensity to commit, truthfulness) 2) Must have probative value (makes it more likely D committed offence)
31
What is the test in relation to an important matter in issue between co-defendants for admitting bad character?
1) Must have substantial probative value 2) Directly relevant to the matter in issue
32
What is the test for bad character admittance where evidence is to correct a false impression given by D?
1) D created false impression 2) Evidence must correct that impression
33
What is the test for bad character where D has made an attack on another person’s character?
1) D attacks character of another directly or by implication 2) Allows prosecution to introduce D’s bad character in response Must be relevant to issues in the case (i.e. credibility)
34
When can bad character be excluded even if admissible?
If admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it
35
When is bad character evidence admissible for a non-defendant?
1) Important explanatory evidence 2) Has substantial probative value
36
Is hearsay admissible?
No, unless exceptions apply
37
How many gateways for admitting hearsay evidence?
4
38
What are the gateways for admitting hearsay?
1) Statutory exceptions 2) Common law exceptions 3) Agreement 4) Interests of justice
39
What are statutory exceptions for admitting hearsay?
1) Witness unavailable 2) Business documents
40
What is the test for witness unavailable in admitting hearsay?
1) Witness identified 2) Witness unavailable because dead / unfit / fear / outside UK
41
What is the meaning of probative value in evidence?
If evidence has probative value, it has weight in making a fact more likely to be true than it would without that evidence
42
What is the test for business documents in admitting hearsay?
1) Proper record keeping 2) No motivation to misrepresent 3) No unreliable source
43
What are common law preserved exceptions for admitting hearsay?
1) Res gestae 2) Public documents 3) Reputation as to character
44
What is res gestae?
Things said naturally during the facts, spontaneously
45
What are the interests of justice factors considered for admitting hearsay? [7]
1) Probative value 2) Surrounding evidence 3) Context 4) Circumstances 5) Reliability 6) Difficulty in challenging 7) Risk of unfairness
46
When is hearsay not admissible even if exceptions satisfied?
It would be unfair
47
What are the three main ways that prosecution evidence can be excluded?
1) S76 2) S78 3) Common law discretion
48
What are the limbs of s76 exclusion of evidence? What evidence does it apply to?
1) Unreliability 2) Oppression Applies to confession evidence.
49
What is s76 exclusion of evidence applicable to?
Confession evidence only
50
What is the s78 exclusion of evidence test?
If admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it
51
What is s78 exclusion of evidence applicable to?
PACE (investigative evidence) - including confession evidence
52
What is the common law discretion for exclusion of evidence?
Judge can exclude evidence if prejudicial effect outweighs its probative value (might mislead jury or create unfair prejudice)
53
What is the test for submission of no case to answer test called?
R v Galbraith (1981)
54
What are the limbs of the no case to answer test?
1) No evidence on which a jury could convict 2) Evidence is tenuous or unreliable - unsafe
55
If there is some evidence but it is weak, what must the judge ask in determining whether or not to pass no case to answer?
Could a reasonable jury, properly directed, convict on this evidence?
56
What is the purpose of the grave crime test?
To see if a youth being tried alone should be sent to Crown Court
57
What is the grave crime test?
1) Is the offence a grave crime? 2) Likely to justify a sentence of 2+ years?
58
What offences are considered a grave crime?
1) Imprisonable for 14+ years if adult, OR 2) If not, involves firearm or dangerous sexual behaviour
59
What factors does the court consider when questioning whether detention would be longer than 2 years for a youth in grave crime test?
1) Nature and seriousness 2) Aggravating / mitigating factors 3) Youth’s age and previous convictions 4) Sentencing guidelines
60
What is the test for if a Youth is tried with an Adult and whether they should be sent to Crown Court?
The Interests of Justice Test
61
What factors will court consider for Youth in Interests of Justice Test?
1) Seriousness 2) Likely sentence 3) Need for joint trial 4) Age and maturity 5) Welfare 6) Risk of prejudice in crown 7) Views of CPS and Defence
62
When is the dangerous offender test for Youths used?
If considering imposing custodial sentence for public protection (called an extended sentence)
63
What are the limbs of the dangerous offender test for Youths?
1) Has the youth committed a specified offence? 2) Is there a significant risk of serious harm to the public from further offences?
64
What is a specified offence for dangerous offender test for Youths?
Violent and sexual offences (robbery, GBH with intent, rape, aggravated burglary)
65
What factors are considered in dangerous offender test for Youths in whether there is a significant risk of serious harm to public from further offences?
1) Nature and circumstances 2) Previous convictions 3) Behavioural reports 4) Pattern of escalating behaviour 5) Lack of remorse
66
What should you always say when making a point?
I submit
67
How should you end an oral assessment?
Therefore judge, unless I can assist you further, those conclude my submissions.
68
How should you start the oral assessment?
I appear on behalf of Steven Jackson. Could you confirm that you have the papers?
69
What do you call a Lay Magistrates?
Your Worship(s)
70
What do you call a District Judge in the Magistrates?
Judge
71
What do you call a Circuit Judge in the Crown Court?
Your Honour
72
What do you call a High Court Judge in the Crown Court?
My Lord / My Lady
73
What do you call a Recorder in the Crown Court?
Your Honour
74
What do you call a judge in the Court of Appeal?
My Lord / My Lady
75
What should you keep in mind with every single application?
The Overriding Objective - Deal with cases justly, fairly and expeditiously.
76
What additional factors to unsafeness could be relevant to a conviction of appeal to CoA?
1) Significant procedural error 2) Misdirection by judge 3) New evidence 4) Other considerations that might make conviction unjust
77
What are the gateways for admitting bad character evidence?
1) All parties agree 2) Evidence introduced by D 3) It is relevant to important matter in issue between D and prosecution 4) Substantial probative value in issue between co-defendants 5) Necessary to correct false impression 6) Attack on another persons character 7) Important explanatory evidence

ORAL ASSESSMENTS (2 decks)

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