TESTS

Question 1

Visual ID evidence - exclusion owing to poor quality

Answer 1

1. Identify court’s discretion to exclude under s78 PACE
2. Identify what other evidence there is to support prosecution
3. Argue for/against the strength of the ID evidence going through the Turnbull Guidelines

Question 2

Visual ID evidence - exclusion as improperly obtained

Answer 2

1. Identify the court’s discretion to exclude under s78 PACE
2. Identify the relevant breaches of identification procedures under Code D, including:
   -Taking into account reasonable objections to appearance of others in the ID procedure
   -Keeping witnesses away from the suspect before and during procedure
   -Keeping witnesses apart during procedure
   -Warning that the suspect might not be shown at all

Question 3

Exclusion of confession

Answer 3

1. Remind court that once the admissibility is challenged, it is for the prosecution to prove beyond reasonable doubt that the confession is NOT unreliable
2. Remind court that the confession MUST be excluded if prosecution did not discharge this burden of proof under s76 PACE
3. Identify that the confession is relevant to a matter in issue b/w prosecution and defence
4. Identify which ground the confession is sought to be excluded and provide relevant details:
   -Unreliability owing to things said or done to render it unreliable
   -Unreliability owing to oppression
5. Demonstrate causation from the things said or done or oppression

Question 4

Exclusion of any evidence

Answer 4

(In addition to other tests) court has discretion to exclude if having regard to all the circumstances, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it under s78 PACE.

Question 5

Admissibility of hearsay evidence

Answer 5

1. Identify whether single or multiple hearsay
2. For single, state hearsay is inadmissible unless one of the exceptions applies:
   -Under statute (witness unavailable because dead, unfit, outside UK, unable to find) expert evidence, confession
   -By rule of law (statements made contemporaneously to the offence, res gestae circumstances)
   -By agreement of the parties
   -In the interest of justice
3. For multiple, consider if all the parties agree, contained in business doc, inconsistent/consistent statement, value of the evidence so high its in interests of justice
4. Apply the test from the relevant exception

Question 6

Admissibility of D’s bad character

Answer 6

1. Is it evidence of, or of a disposition towards, misconduct, commission of offences, or other reprehensible behaviour outside of the facts of the offence? If yes, inadmissible unless:
2. Falls under any of the 7 gateways to admission:
   -All the parties agree
   -It is adduced by D
   -It is important explanatory evidence
   -Relevant to an important matter in issue* (e.g. propensity)
   -There’s substantial probative value to an important matter in issue b/w co-D’s
   - Corrects a false impression given by D
   -D attacks another’s character*
3. If adduced under ‘important matter in issue’ or under ‘D attacked another’s character’ the court must not admit if defence make 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.

Question 7

Bail application

Answer 7

1. Remind court of the D’s right to bail - bail can only be refused if one of the exceptions to the right to bail apply AND there is a real prospect of a custodial sentence
2. Consider whether any exceptions to the right to bail apply e.g. whether there are substantial grounds to fear D would fail to surrender, commit further offences on bail, interfere w/ witnesses, obstruct justice
3. Review the factors in deciding whether substantial grounds exist e.g. nature and seriousness of offence, D’s character, D’s record of complying with bail conditions, strength of the evidence
4. Consider whether any conditions can be put forward to address these issues e.g. residence, reporting, exclusion, tag, curfew
5. Conclude on why bail should/should not be granted

Question 8

Plea in mitigation

Answer 8

1. 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 from the offence
2. Identify the starting point for sentence and the range of sentences available
3. Consider the (aggravating) and mitigating factors relating to the offence
4. For multiple offences, explain why the sentences should be concurrent (if appl.)
5. Consider mitigating factors relating to the offender
6. Remind the court of credit for a guilty plea (if appropriate)
7. Propose an appropriate sentence

Question 9

Submission of no case to answer

Answer 9

1. Remind court that burden is on the prosecution to prove the D’s guilt and to prove that all elements of the offence are made out
2. Argue that the evidence the prosecution have adduced is insufficient for any reasonable court to convict, either because the prosecution have failed to prove an element of the offence, or because the evidence adduced by the prosecution is so manifestly unreliable that no reasonable court could convict on it

Question 10

Mode of trial - arguing that the court should accept jurisdiction

Answer 10

1. The court must consider the adequacy of its sentencing powers
   Magistrates Court’s sentencing powers are restricted to 6 months’ imprisonment for single offence or 12 mos. imprisonment for 2 or more either-way offences
2. Go through relevant sentencing guidelines and consider starting point for the sentence and range that applies
3. Submit that the court’s sentencing powers are adequate and it should therefore accept jurisdiction