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 one or more of the exceptions 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

When dealing with an offence which will bring about a custodial sentence - acknowledge that this is the case - second criterion likely to be satisfied, “therefore the decision on bail hinges on whether one of the exceptions to the right to bail apply”.

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’s protection
• D failed to surrender/breached bail conditions 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 (more serious = less likely to surrender)
• Strength of the evidence (less likely to abscond if stronger)
• D’s character (previous convictions / associations & community ties - family / network to house & keep out of trouble, mortgage, long term address, dependents)
• D’s record of complying with bail conditions
• Associations (no known associated (undesirable friends with criminal records who may tempt absconding).

Court will look at anything considered relevant (not just above)

Address prosections / defences likely objections / arguments for bail.

Question 5

Bail application

What are Common Bail Conditions

Answer 5

• Reside at specified address
• Report to police station regularly
• Prohibiting D from particular area
• Prohibiting from contacting certain individuals
• Curfer or electronic tag
• Security (paid into court before allowed on bail - paid in cash)
• Surerty (paid if not attending court)

Security / Surety should be proportionate to assets of person giving it

Question 6

Bail application

How should you finish up a bail application?

Answer 6

• Propose any conditions (must be relevant, proportionate and enforceable), if relevant
• Request the application be granted

in any event, even if you consider that an exception does apply, any conerns can be allayed by the imposition of conditions on bail.

Question 7

Mode of trial

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

Answer 7

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 8

Mode of trial

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

Answer 8

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

Question 9

Hearsay

What is the structure of a hearsay application?

Answer 9

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 10

Bad character

What is bad character evidence?

Answer 10

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 11

Bad character

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

Answer 11

• Matter in issue between prosecution and defence (including propensity to be untruthful / commit offence)
• D attacked another’s character
• Important explanatory evidence (including of propensity)
• To correct a false impression given by D
• Substantial probative value to matter in issue between co-defendants
• Adduced by D
• all parties to the proceedings agree to the evidence being admissible; section 101(1)(a)

Question 12

Bad Character Evidence

Application for bad character evidence of non-defendant

Answer 12

Generally not admissible, unless one of 3 exceptions apply:
* either agreement between the parties, or
* it is important explanatory evidence, or
* it has substantial, probative value to a matter in issue in proceedings and is of substantial importance in the context of the case as a whole

Question 13

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 13

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 14

Exclusion of evidence

What could “unfairness” arise from under S78

Answer 14

• the “fundamental right” of access to legal advice is denied
• waiver of the right of access to legal advice was not voluntary, informed or unequivocal;
• failure to caution a suspect before questioning;
• appropriate adult not provided for a youth, mentally disordered or mentally vulnerable suspect;
• identification procedures have not been followed;
• exclusion of confession evidence; and
• significant and substantial breach of PACE codes: test is whether, having regard to the circumstances, the conduct of the police, either wittingly or unwittingly, led to unfairness or injustice.

Question 15

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 15

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

Question 16

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 16

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 for being a statement that is untrue - due to being obtained by opression / inducement, in order for the confession to be admissible, the prosecution must prove beyond reasonable doubt that the s. 76 factors were not made out

Under s82(1) PACE, a confession is 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.

Question 17

Exclusion of confession

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

Answer 17

• 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 18

Exclusion of ID evidence

How should you structure exclusion of ID evidence submission

Answer 18

1. Identify the court’s discretion to exclude evidence under s78 PACE
2. Identify what other evidence there is to support prosecution.
3. Argue for/against the strength of the identification evidence going through the following factors:
   * Amount of time
   * Distance
   * Visibility
   * Obstruction
   * Known
   * Any reason to remember
   * Time lapse
   * Errors

Question 19

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 19

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 20

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 20

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 21

No case to answer

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

Answer 21

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 22

Plea in mitigation

What is the structure of a plea in mitigation?

Answer 22

• 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

Question 23

Addressing Judge

How should you address the Circuit Judge in the Crown Court

Answer 23

Your Honour

HHJ Allen

Question 24

Addressing Judge

How should you address the District Judge in the Magistrates’ Court

Answer 24

Judge

DJ Allen

Question 25

Addressing Judge

How should you address the Lay magistrate

Answer 25

Your Worship

Mrs Allen

Question 26

Hearsay

How is hearsay admissable under statute for being unavailable?

Answer 26

Witness is unavailable:
* Dead
* unfit owing to bodily or mental condition
* outside of the UK and it is not reasonably practicable to enforce attendance
* unable to be found despite reasonably practicable steps
* not willng to give evidence through fear

Question 27

Hearsay

What are the other statutory grounds for adducing hearsay?

Answer 27

• Business document adduced (if document created or received in the course of trade, person supplying may reasonably be supposed to have had personal knowledge of the matter, or don in the course of trade (if received by other persons)
• Prepared for use in crim proceedings and relevant person cannot be expected to recollect matter
• Previous inconsistent or consistent statements of a witness
• Expert evidence is adduced
• There is a confession

Question 28

Hearsay

How is hearsay admissable by rule of law?

Answer 28

• Confessions or mixed statements (partly inculpatory or exculpatory) by the defendant
• statements made contemporaneously to the offence
• statements preserved by res gestae:
• made when a person is so emotionally overwhelmed by an event that the possibility of concoction or distortion can be disregarded
• accompanying an act which can only be properly evaulated in conjunction with the statement; and
• relating to physical or mental state

Question 29

Hearsay

How is hearsay admissable in the Interests of Justice?

Answer 29

Safety net provision - giving court discretion to adduce evidence - court should consider:
* probative value of the statement to a matter in issue;
* 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;
* whether oral evidence of the matter stated can be given;
* the amount of difficulty in challenging the statement; and
* the extent of the likely prejudice caused.

Question 30

Hearsay

What is multiple hearsay and when is it admissable?

Answer 30

Occurs when a statement has been relayed through more than one person before it gets to court. Admissable only if:
1. it is a business document;
2. it is an inconsistent statement;
3. it is a consistent statement;
4. all parties agree; or
5. the value of the evidence is so high that it is in the interests of justice.