Likely Criminal Tests

Question 1

What is the test for jurisdiction of either-way offences should tried?

Answer 1

Either way offences should be tried summarily unless:

1. Sentencing powers would be insufficient (taking into account mitigation, aggravating factors etc)
2. For reasons of unusual legal, procedural or factual complexity - so serious it should be in the Crown Court)

Question 2

What should the structure be for an application relating to jurisdiction of either-way offences?

Answer 2

1. Outline Offence

(i) if prosecution - outline the facts and offending history

(ii) if defendant - respond to prosecutions

2. Outline sentencing powers

(i) mags powers = 6 months for single offence, 12 months for 2 or more either-way offences

3. Go through sentencing guidelines and consider the starting point for the sentence and the range that applies to it

(i) Thresholds:

a) not pass a custodial sentence unless the offence was so serious that neither a fine nor community sentence can be justified

b) not make a community order unless the offence was serious enough to warrant the order

4. Statutory aggravating and mitigating factors - taken into account when considering if sentencing powers are sufficient
5. Refer to allocation guidelines and expand where relevant

(i) is the sentence in excess of magistrates power?

(ii) are there any unusual, procedural or factually complex rules which mean that sending to the CC would be more appropriate

6. Conclude

(i) Submit that court’s sentencing powers are adequate and jurisdiction should be accepted. Can always be committed to Crown court for sentence

(ii) submit that court’s sentencing powers are inadequate or complex and magistrates should decline jurisdiction

Question 3

When should a no case to answer submission be made?

Answer 3

After the prosecution’s evidence.

Representations must be made in the absence of a jury in the crown court

Question 4

What is the test for a no case to answer submission?

Answer 4

Test in R v Galbraith

The court may acquit the defendant:

1) Where there is no evidence that the crime has been committed by the defendant

OR

2) Where the prosecution evidence, taken at its highest is such that a properly directed jury could NOT properly convict on it:

(i) inherently weak/vague
(ii) credibility of witness open for question
(iii) inconsistent with other evidence

Question 5

When should an application for dismissal be made?

Answer 5

Must be made:

(1) only after D is sent by MC for trial in the Crown Court

(2) after the defendant has been served with the evidence relating to the offence (20 business days); and

(3) before the defendant is arraigned (entered plea)

Question 6

What is the test for application for dismissal?

Answer 6

1. The judge shall dismiss a charge if it appears to him that the evidence against the applicant would NOT be sufficient for him to be properly convicted
2. R v Galbraith - no evidence that the crime has been committed by the defendant OR where the prosecution evidence, taken at its highest is such that a properly directed jury could not properly convict on it

Question 7

What is the test for refusing bail (general test)?

Answer 7

(1) bail can only be refused if one of the grounds of objection apply

AND

(2) there is a real prospect of a custodial sentence

Question 8

What are the grounds for objecting to bail for indictable offences?

Answer 8

Bail Act 1976 - Sch 1 - Para 2

Must be substantial grounds for believing that:

i) defendant will fail to surrender

ii) interfere with witnesses

iii) commit further offences

Question 9

What are the grounds for objecting to bail for summary offences?

Answer 9

Bail is presumed unless:

Substantial grounds for believing

(a) D will breach conditions

(b) conviction for failure to surrender in the past

Question 10

When does bail need not be granted bail?

Answer 10

1. For D’s own protection
2. Not enough evidence for this issue
3. Already serving sentence in custody

Question 11

What factors should be considered in deciding if the grounds for not allowing bail are made out?

Answer 11

(i) nature and seriousness of the offence

(ii) character of the defendant eg previous convictions, associations, ties

(iii) amount of evidence

(iv) past convictions/bail conditions

Question 12

What might alleviate concerns surrounding bail?

Answer 12

The appropriate package of conditions

Question 13

What is the general test with regards to the admissibility of evidence?

Answer 13

1. Is the evidence relevant? (logically probative of a fact in issue)
2. If the evidence is of a special character, is there an inclusionary rule allowing for its admission which is not otherwise excluded by the statutory framework for the special character.
3. Does an exclusionary discretion apply (s 78 or s 76 or common law jurisdiction)?

Question 14

When should application to exclude unfair evidence be made under s 78 of PACE?

Answer 14

Before the prosecution rely on the evidence

Question 15

What evidence can s 78 PACE be used to exclude?

Answer 15

• ID evidence (failing to do a procedure or not conducting it in line with PACE)
• Hearsay
• Bad character
• Confessions
• Statements in interview
• witness statements

Question 16

What is the test under s 78 PACE?

Answer 16

The court may refuse to allow prosecution evidence if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it

Question 17

What is the threshold standard for excluding evidence under s 78 for unfairness?

Answer 17

There must be a breach of PACE that is significant and substantial for the court to exclude evidence

Question 18

What can result in evidence being excluded under s 78 for unfairness?

Answer 18

• Breaches of ECHR
• Breaches of PACE
• Bad faith on the part of the investigators
• Not asked to take place in formal identification procedure/ID procedures have not been followed
• Procedural irregularities
• Evidence obtained unlawfully, improperly, unfairly
• Significant and substantial breaches of PACE, the effect of which is unfairness
• Fundamental right of access to legal advice has been improperly denied or waiver of right of access was not voluntary, informed or unequivocal
• Failure to caution
• No appropriate adult
• Confession obtained by breach

Question 19

What is the common law test for excluding evidence?

Answer 19

Court can exclude ‘unfair’ evidence if the court concludes that the ‘probative’ value of the evidence is outweighed by its prejudicial effect

Question 20

What is a confession under s 76 of PACE?

Answer 20

Any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise (s 82 PACE)

Will include:

• unequivocal confessions of guilt
• mixed statements (I didn’t do that but I’m glad they died)
• nods, signs, gestures
• maybe = confession

Question 21

What is the general rule as to the admissibility of a confession?

Answer 21

Any confession is admissible as long as it is:

(1) relevant and

(2) not excluded by the court in pursuance of s 76

Question 22

What is the test for excluding a confession under s 76?

Answer 22

If it is represented to the court that the confession was obtained either:

(i) by oppression or D; or

(ii) in consequence of anything said or done which was likely in the circumstances existing at the time, to render the confession unreliable

The court shall not allow the confession unless the prosecution proves beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in this way and the confession

Question 23

What will amount to oppression under s 76?

Answer 23

(i) torture, inhuman treatment, or threat of violence OR

(ii) exercise of authority or power in burdensome, harsh, wrongful manner

(iii) unjust or cruel treatment

Question 24

What will amount to unreliability under s 76?

Answer 24

(i) not given proper rest or no sleep

(ii) denial of access to legal advice

(iii) no caution at the start of the interview

(iv) no proper record

(v) result of inducement e.g. promise of bail or promise of no prosecution from confession

(vi) hostile and aggressive questioning

(vii) failure to allow sufficient time to rest prior to the interview

Question 25

What is bad character evidence?

Answer 25

Evidence of or a disposition towards, misconduct, commission of offences or other reprehensible behaviour outside the facts of the offence. Eg previous convictions, cautions, acquittals, agreed facts that amount to reprehensible behaviour and witness evidence

Question 26

What must the prosecution do to introduce bad character evidence (generally)?

Answer 26

They must prove it is bad character evidence. Set out how they are going to prove that evidence eg certificate of previous convictions, official record, other evidence) Prove that it is admissible under one of the 7 gateways in s 101(1) Criminal Justice Act 2003

Question 27

What is the required for bad character evidence to be admitted under the (c) gateway of important explanatory evidence?

Answer 27

- this relates to motive - leave of court is required - important explanatory evidence: (i) without it the court or jury would find it impossible or difficult to properly understand other evidence in the case; and (ii) its value for understanding the case as a whole is substantial Eg show the previous relationship between people involved in the trial, without which it would not be possible to understand the narrative put forward by the prosecution

Question 28

What is the required for bad character evidence to be admitted under the (d) gateway of relevant to an important matter in issue (eg previous conviction)?

Answer 28

- leave of court is required Must establish either propensity to: (i) commit offences of the kind with which he is charged (ii) be untruthful

Question 29

How is propensity to commit offence of the kind he has been previously charged with established for the gateway (d) under s 101 of the Criminal justice Act 2003?

Answer 29

Can be shown by evidence that defendant has previously been convicted of (s 103(2): (i) an offence of the same description as the one charged; or (ii) an offence of the same category as the one charged

Question 30

What guidance does the case of Hanson offer in relation to propensity to commit offences for bad character applications under gateway d of s 103?

Answer 30

1. Does defendant's offending history establish a propensity to commit offences of the kind charged? 2. Does the propensity make it more likely that D committed the offence charged? 3. Would it be unjust to rely on them due to length of time s 103(3)? 4. Would proceedings be unfair if the evidence was admitted s 101(3)? Principles from Hanson: (1) no minimum number of previous convictions (2) the strength of the prosecution case should be considered (i.e. unlikely to be admissible if there is little other evidence against D)

Question 31

What will the court also have to have regard to when considering to admit bad character evidence in relation to previous convictions?

Answer 31

The length of time that has elapsed since the previous conviction - must not admit if length of time would mean that it is unjust to do so

Question 32

What is the guidance from Hanson in relation to propensity to be untruthful?

Answer 32

Untruthful is not about dishonesty Previous convictions will show propensity to be untruthful where: (i) plea of not guilty to previous offence and D gave evidence the jury disbelieved (ii) the way in which the offence was committed involved being untruthful (e.g. fraud)

Question 33

What is the fairness test protection in relation to bad character under s 101(3)?

Answer 33

The court must not admit bad character evidence where it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.

Question 34

What is the required for bad character evidence to be admitted under the (e) gateway of substantive probative value in relation to defendant vs co-defendant?

Answer 34

Leave of court Admissibility (s 104): - only evidence which: (i) is to be or has been added by the co-defendant; or (ii) a witness is to be invited to give or has given in cross-examination by the co-defendant

Question 35

What is the required for bad character evidence to be admitted under the (f) gateway of evidence to correct a false impression?

Answer 35

(1) leave of court is required (2) Defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about him (s 105) (3) evidence is admissible only to the extent that it goes no further than necessary to correct the false impression

Question 36

What is the required for bad character evidence to be admitted under the (g) gateway of defendant attacks another person's character?

Answer 36

(1) Leave of court is required (2) Evidence attacking the other person's character = evidence to the effect that the other person: (i) has committed an offence (ii) has behaved or is disposed to behave in a reprehensible way (3) what sort of evidence can be admitted? (i) only prosecution evidence (ii) note evidence of dishonesty (not just propensity to be untruthful) can be admitted this way Fairness test: Court must not admit this sort of evidence if on an application from D to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it

Question 37

What is the definition of hearsay?

Answer 37

Statement made of out court, by the statement maker intending another to believe it as truth of the matter stated. R v Twist: 1. identify what the relevant fact (matter) is sought to be proved 2. ask whether there is a statement of that matter in the communication 3. If yes, was it one of the purposes of the maker of the communication that the recipient or any other person should believe that matter or act upon it as true If yes = hearsay

Question 38

What is the test for admitting hearsay (generally)?

Answer 38

General rule is that hearsay is inadmissible so need to consider whether there is an exception

Question 39

What are the statutory exceptions to the rule that hearsay is inadmissible?

Answer 39

- witness is unavailable (s 116 CJA 2003) - business document (s 117 CJA 2003) - previous inconsistent statements of a witness (s 119 CJA 2003) - previous consistent statements of a witness (s 120 CJA 2003) - interests of justice (s 114(1)(d))

Question 40

What are the common law exceptions to hearsay?

Answer 40

- public information - evidence of reputation - res gestae - confessions - statements in furtherance of a common enterprise - body of expertise

Question 41

What is the test for the admissibility of hearsay under the statutory ground that the witness is unavailable (s116 CJA 2003)?

Answer 41

Test s 116(1): (i) oral evidence given in the proceedings by the person who made the statement would be admissible, and (ii) the person who made the statement is identified to the court's satisfaction AND (iii) any of the five conditions in s 116(2) is satisfied S 116(2) conditions: (a) dead (b) unfit to give evidence because of a bodily or mental conditions (about giving evidence not being at court and does not need to be a medical condition (c) outside the UK and it is not reasonable practical to secure attendance (remember this includes by video link) (d) cannot be found although reasonably practical steps have been taken (e) does not give oral evidence through fear and court gives leave for statement to be given in evidence

Question 42

What is the test for the admissibility of hearsay under the statutory ground of business document (s 117)?

Answer 42

Test: (i) oral evidence in the proceedings would be admissible of the matter and (ii) the requirements of s 117(2) are satisfied s 117(2) conditions: (a) document or part containing the statement was created or received by a person in the course of trade, business, profession or other occupation as the holder of office; and (b) the person who supplied the information had or may reasonably be supposed to have had personal knowledge of the matter dealt with (c) each person through whom the information was supplied from the relevant person to the person in (a) received the information in the course of trade, business, profession or other occupation or as the holder of the office

Question 43

When may business documents be excluded even though admissible under hearsay admissibility rules?

Answer 43

May exclude evidence if the statement's reliability is doubtful in view of (i) its contents (ii) the source (iii) the way in which it was supplied (iv) the way it was created/received

Question 44

What is the test for the admissibility of hearsay under the statutory ground of previous inconsistent statement of a witness (s 119)?

Answer 44

A previous inconsistent statement that the witness admits making/is proved to have made is admissible as evidence of the matter stated

Question 45

What is the test for the admissibility of hearsay under the statutory ground of previous consistent statement of a witness (s 120)?

Answer 45

A previous consistent statement is admissible as evidence of any matter stated to rebut a suggestion of recent fabrication or as recent complaint of evidence

Question 46

What is the test for the admissibility of hearsay under the statutory ground of interests of justice (s 114(1)(d)?

Answer 46

The court has a discretion to admit hearsay when it considers it in the interest of justice. Court must consider: (i) probative value of the statement (assuming it is true) in relation to a matter in issue, or how valuable it is for understanding other evidence in the case (ii) what other evidence has been given or can be given on the matter or evidence in issue (iii) how important the matter of evidence in (i) is in the context of the case (iv) circumstances in which the statement was made (v) how reliable the maker of the statement appears (vi) how the reliable the evidence of the making of the statement appears to be (vii) whether giving oral evidence on the matter can be given (viii) amount of difficulty involved in challenging the statement (ix) extent to which that difficulty would be prejudiced the party facing it

Question 47

What is the test for the admissibility of hearsay under the common law ground of public information?

Answer 47

Must be public information such as (i) public works dealing with matters of public nature (dictionaries or maps) (ii) public documents (eg public registers) (iii) records (court records, public treaties) (iv) a persons' own age and place of birth

Question 48

What is the test for the admissibility of hearsay under the common law ground of evidence of reputation?

Answer 48

Evidence of reputation as to character

Question 49

What is the test for the admissibility of hearsay under the common law ground of res gestae?

Answer 49

- Alterative conditions: a statement is admissible as evidence of the matter stated if… a) The statement was made by a person so emotionally over powered by an event that the possibility of concoction or distortion can be disregarded; OR o Statement need not have been made as part of the action of an offence o Event must be so unusual or startling or dramatic as to dominate the thoughts of the victim so that the utterance was an instinctive reaction to that event b) The statement was accompanied by an act which can be properly evaluated as evidence only if considered in conjunction with the statement; OR c) The statement relates or a physical sensation or mental state NB: The jury must be satisfied that there was no mistake on the part of the witness as to what had been said to them or that there was no concoction by the maker of the statement

Question 50

What is the test for the admissibility of hearsay under the common law ground of confession?

Answer 50

Must be a confession

Question 51

What is the test for the admissibility of hearsay under the common law ground of statement in furtherance of a common enterprise?

Answer 51

Must be a statement of one part to a common criminal enterprise in furtherance of that enterprise are admissible against all the parties of that enterprise

Question 52

What is the test for the admissibility of hearsay under the common law ground of body of expertise?

Answer 52

An expert witness may draw on a body of expertise (otherwise it would be impossible for experts to give evidence of any of the learning within their field, except that which they themselves had contributed)

Question 53

How would you exclude ID evidence on the basis of it being improperly obtained?

Answer 53

1. Identify court's power under s 78 PACE - the court may exercise their discretionary power and exclude evidence under s 78 where the admission of evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it 2. Threshold for such breaches must be significant and substantial 3. Identify the relevant breaches of PACE Code D: (i) failure to take account of reasonable objections of appearance of others (ii) failure to keep witnesses away from the suspect before or during ID procedure (iii) failure to separate witnesses (iv) failure to warn witnesses that suspect may not be shown at all 4. Link back to s 78 and note that this is a significant and substantial breach and the court should exercise its powers to exclude the evidence

Question 54

How would you set out an application in relation to disputed evidence/Turnbull request?

Answer 54

1. Identify the court's discretion to exclude evidence under s 78 2. Identify the evidence to be excluded 3. Identify what other evidence there is to support the prosecution's case i.e. none/some (i) fingerprints (ii) bad character (iii) silence in interview (iv) DNA 4. Argue for/against the strength of the ID evidence going through the following factors (ADVOKATE) (i) amount of time in view (ii) distance (iii) visibility (iv) obstruction (v) known to the witness before event (vi) any reason to remember (vii) time lapse - between seeing and identifying (viii) error 5. Ask the court to exercise its powers to exclude the evidence or in the alternative make a Turnbull direction

Question 55

How would you structure a plea in mitigation?

Answer 55

1. State the offence 2. Remind court that sentence must be proportionate to seriousness of the offence - bearing in mind the offender's culpability and harm from the offence (i) identify culpability level (ii) identify harm level (iii) set range 3. Identify the starting point for sentence and range available: (i) not pass custodial sentence unless offence was so serious that neither a fine alone nor a community sentence can be justified (ii) not make a community order unless the offence was serious enough to warrant the order 4. Consider aggravating and mitigating factors relating to the offence 5. Remind court of any credit for guilty plea (i) first opportunity - 1/3 (ii) after that but before trial - 1/4 (iii) trial - 1/10 8. Propose sentence: (i) suspended sentence - 3 elements (custodial, operation, supervision (ii) community order - must be serious enough