5c. Criminal Advocacy Applications

Question 1

What are the likely applications you will be asked to make in the criminal advocacy assessment?

Answer 1

• Bail application
• Mode of trial (Magistrates should retain jurisdiction)
• Admission or exclusion of hearsay/bad character
• Exclusion of confession
• Exclusion of evidence generally

Question 2

Bail application

What is the first part of a bail application?

Answer 2

Remind the court of defendant’s general right to bail (unless murder).

Bail can only be refused if an exception applies and there is a real prospect of custodial sentence

You could have to argue for or against bail, but the factors are the same

Question 3

Bail application

What are the exceptions to the right to bail?

Answer 3

• Substantial grounds to fear defendant would fail to surrender, commit other offences, or interfere with witnesses/justice
• Offence committed on bail
• D failed to surrender already in these proceedings
• Not enough evidence to make a decision on bail

Question 4

Bail application

What four things should you consider if deciding whether substantial grounds exist?

Answer 4

• Nature and seriousness of the offence
• Strength of the evidence
• D’s character
• D’s record of complying with bail conditions

Question 5

Bail application

How should you finish up a bail application?

Answer 5

• Propose any conditions, if relevant
• Request the application be granted

Question 6

Mode of trial

What does the Magistrates first consider when deciding whether to retain jurisdiction over an either way offence?

Answer 6

The adequacy of its sentencing powers relative to the nature of the offence in question

Six months for one; twelve months for two or more

Depending on the side you are acting for, you must convince the court its powers are either adequate or not adequate

Question 7

Mode of trial

What parts of the case documentation would you use to evidence the adequacy of the court’s powers?

Answer 7

1. Sentencing guidelines
2. Evidence of aggravating/mitigating factors

Question 8

Hearsay

What is the structure of a hearsay application?

Answer 8

1. Hearsay generally inadmissible
2. Admissible if an exception applies (statute, case law, etc.)
3. Apply the test in support of why the hearsay should be admitted/not admitted

Question 9

Bad character

What is bad character evidence?

Answer 9

Evidence of, or of a disposition toward:
* Misconduct
* Commission of offences
* Other bad behaviour outside of the facts of the offence in question

Not generally admissible, unless an exception applies

Question 10

Bad character

What are some of the grounds under which bad character evidence can be admitted?

Answer 10

• Matter in issue between prosecution and defence (including propensity)
• D attacked another’s character
• Important explanatory evidence (including of propensity)
• To correct a false impression given by D
• Matter in issue between co-defendants

Question 11

Exclusion of evidence

No matter the reason, an application to exclude any evidence (other than confession) is made under what section, and what is the test?

Answer 11

Section 78 of PACE

Court has discretion to not admit any evidence if it would have such an adverse effect on the fairness of proceedings that it ought not be admitted

Question 12

Exclusion of bad character evidence

Although an application to exclude evidence under s. 78 PACE is at the court’s discretion, which two bad character grounds make it mandatory to exclude if the adverse effect on fairness test is met?

Answer 12

• Matter in issue between P and D
• D attacked another’s character

Question 13

Exclusion of confession

An application to exclude a confession is made under what section, and what does it provide which should form the opening of your submission?

Answer 13

Section 76 of PACE

Submit to the court that although a confession is generally admissible as a matter in issue between P and D, once challenged, in order for the confession to be admissible, the prosecution must prove beyond reasonable doubt that the s. 76 factors were not made out

Question 14

Exclusion of confession

What are the two factors under s. 76 to exclude a confession?

Answer 14

• Unreliability due to things said or done likely to render the confession unreliable, or
• Unreliability due to oppression

You must then demonstrate how the factors are met on the facts

Question 15

Exclusion of ID evidence

Other than making a general s. 78 application to exclude the evidence under the adverse effect on fairness test, what should you consider in the context of an application to exclude ID evidence?

Answer 15

The ADVOKATE factors which go to quality of the evidence

The poorer the quality, the bigger the adverse effect on the fairness of proceedings

Question 16

Exclusion of improperly obtained ID evidence

Other than making a general s. 78 application to exclude the evidence under the adverse effect on fairness test, what should you consider in the context of an application to exclude ID evidence that was unfairly obtained?

Answer 16

The failure under Code D to:
* Take into account reasonable objections to appearance of others
* Keep witnesses away from suspect
* Keep witnesses apart
* Warn that suspect might not be shown

Question 17

No case to answer

What are the stages of a submission of no case to answer?

Answer 17

Submit that the prosecution:
* Bear the burden to prove D’s guilt and prove all elements of the offence, and
* Have failed to prove an element of the offence, or the evidence is so manifestly unreliable, no reasonable court would convict

Question 18

Plea in mitigation

What is the structure of a plea in mitigation?

Answer 18

• Submit that the sentence must be proportionate to the seriousness of the offence (and custody threshold)
• Use sentencing guidelines to identify sentence starting point and range
• Identify aggravating and mitigating factors of the offence in the facts
• Consider consecutive/concurrent argument based on facts
• Identify mitigating factors of the offender in the facts
• Reference credit for guilty plea if D pleaded
• Propose appropriate sentence