Advocacy Flashcards
Bail
Bail Application Outline
1) Concerns of prosecution (general exceptions):
* Ground 1: Fail to surrender to custody; and/or
* Ground 2: Commit an offence whilst on bail; and/or
* Ground 3: Interfere with witnesses
+ factors to consider in light of these (Para 9 of sch1, Part 1 of the BA 1976)
2) Suggest alternative measures/conditions.
* curfew
* residence at a given address
* reporting to a local police station at given times
* surety
* security
* restriction on where D may go during bail
* restriction on who D might have contact with during bail.
* Electronic monitoring
* Bail hostels
3) If relevant, mention other info in support of client’s bail application:
* Seriousness of offence
* Losing job / livelihood
* Family disruption / carer and childcare responsibilities
Youth Court - Grave Crimes
1) Any offence where in case of an adult carries a sentence of imprisonment of 14 years or more; and
2) Whether there is a real prospect that a sentence in excess of two years will be imposed on the youth?
Jointly charged youth/adult
Whether it would be in the interests of justice to send the youth to the Crown Court for trial
Youth Court
Relevant factors for Jointly charged Youth/Adult
- Potential injustice to witnesses or case as a whole if separate trials were held.
- Age of child or young person (younger, more favourable sending to Y.C is)
- Lack of maturity of youth
- Relative culpability of the child or young person compared with the adult and whether the alleged role played by the child or young person was minor; and/or
- Lack of previous findings of guilt on part of child/young person.
MAGIC - mnemonic
General grounds for denying bail
If the defendant is released on bail, there are ‘substantial grounds’ for believing that the defendant would either (‘big three’- FIC):
a. Fail to surrender;
b. Interfere with witnesses, or otherwise obstruct the course of justice (e.g. witness intimidation or destruction of evidence).
c. Commit further offences on bail; and/or
+ No real prospect of a custodial sentence being imposed – consider facts surrounding offence.
Difference between the exceptions to the general right to bail between an indictable versus summary offence
Summary-only offences
‘Big-three’ are only relevant following a trigger event:
a. Past conviction for failing to surrender.
b. Breached a bail condition in the ongoing proceedings.
Plea in Mitigation Outline
1) State the offence
2) Remind court sentence must be proportionate to the seriousness, considering culpability and harm.
3) Sentencing Guidelines
* What category offence?
* Role of sentencing guidelines → court MUST follow sentencing guidelines.
* Set out an appropriate range of sentence based on (1) greater culpability & harm; (2) greater culpability and lesser harm/vice versa; (3) less culpability and lesser harm.
4) Identify starting point, range of sentences and thresholds.
* Range of sentences for particular offence.
* Thresholds - non-custodial (serious enough); custodial (so serious).
5) Determine seriousness by addressing aggravating and mitigating factors.
* aggravating
* mitigating
6) If multiple offences, refer to totality principle and concurrent sentences:
* Totality - final sentence must be just and proportionate.
* Concurrent sentence: for offences arising out of the same events.
* Consecutive sentence: for offences arising out of separate events.
7) If guilty plea, remind court of mitigation.
* First stage of proceedings - max ⅓ off.
* After first stage = max ¼ off.
* On day of trial = max 1/10 off
8) Propose appropriate sentence
Bad Character
Bad Character Outline
- Bad character evidence
* Define.
* Court duty: when assessing what weight to give to evidence part of the reasoning must be to look at the credibility of the witness - Decide which gateway applies
* a) Set out fact of the misconduct on which that party relies;
* b) Explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them; and
* c) Explain why the evidence is admissible.
Bad Character
S103(1)(b) - Propensity to be untruthful
Elaborates on section 101(1)(d)
* Propensity to be untruthful, does not mean propensity to be dishonest (Hanson)
* Previous conviction for dishonesty offence does NOT mean D is untruthful.
Bad Character
S 103(1)(a) - Propensity to commit offences of type charged
Elaborates on section 101(1)(d)
TEST: R v Hanson and others
1. Does the D’s history establish a propensity to commit offences of the kind charged?
* a. offences of the same description
* b. offences of the same category (theft act offences).
- Does that propensity make it more likely that the D committed the offence charged?
- Where the previous offences are of the same description or category as the offence charged, would it be unjust to rely on them (s103(3))?
* In any event, would proceedings be unfair if the evidence were to be admitted (s103(3))?
Bad Character
Power to exclude bad character evidence
1) S78 PACE – prosecution evidence only. Allows a judge discretion.
* Gateway D and G.
2) S101(3) CJA 2003 – where admission of evidence would have an adverse effect on fairness of proceedings. Court MUST NOT admit evidence under these gateways:
* Gateway D and G.
3) S103 – offences may be excluded by length of time since conviction or for any other reason it would be unjust to admit the evidence.
* Gateway D.
4) S107 – stopping the case where evidence is contaminated.
5) S110 – requires the court to give reasons in open court on bad character rulings
Evidence
Hearsay Application Outline
- Define
- General Rule - hearsay is inadmissible.
- Grounds
* Identify whether the hearsay is single or multiple hearsay - adminssibility under specific gateways differs.
* statute, common law (rule of law), interests of justice, agreement of parties. - Apply the relevant hearsay test.
* Courts discretion - exclusionary powers of court.
Hearsay
Exclusionary Powers
S78 → it is unfair prosecution evidence.
S125 → by stopping the case, where the case depends wholly or partly on unconvincing hearsay evidence.
S126 → statement will result in undue waste of time which outweighs any benefit to be gained from admitting it.
S117 → unreliable business docs.
Evidence
Confession Evidence Outline
Structure
- Burden of proof - on prosecution.
- Confession MUST be excluded if the prosecution do not discharge this burden of proof under s76 PACE.
- Identify that the confession is relevant to a matter in issue between prosecution and defence and is therefore admissible.
- Identify under which ground the confession is sought to be excluded and provide relevant details:
a) Unreliability owing to things said or done to render it unreliable;
* Objective test.
* Could include behaviour which does not amount to oppression. Must show causation & resulting unreliability.
b) Unreliability owing to oppression.
* Oppression → torture, inhuman or degrading treatment, violence or threat of violence. - Demonstrate causation from the things said or done or oppression to the confession.
- Remind the court that they may also exclude confession owing to their discretionary power under s78.
* Admission would have such an adverse effect on the fairness of proceedings.
Allocation Hearing
1) The offence
* If Pros: outline the facts
* If Def: my learned friend has outlined the facts, I will respond to their submission.
2) Sentencing powers
* In deciding whether to accept/reject jurisdiction, the court must consider the adequacy of its sentencing powers.
* State courts sentencing powers:
3) Go through the relevant sentencing guidelines and consider the starting point for the sentence and the range that applies.
a) Thresholds:
* Custodial sentence - so serious.
* Community order - serious enough
4) Statutory aggravating and mitigating factors
* Court to take into account when considering if sentencing powers are sufficient.
5) Refer to Allocation guidelines and expand where relevant.
* whether a sentence clearly in excess of Mags powers is likely OR
* For reasons of unusual legal, procedural or factual complexity which mean that sending to CC would be more appropriate.
Depending on if prosecution/defence:
6) Mags to accept:
* Submit that the court’s sentencing powers are adequate and it should therefore accept jurisdiction.
* Always have the option of sending case to CC for sentencing if necessary.
6) Commit to Crown Court:
* Submit that the court’s sentencing powers are inadequate or for other reason (complexity).
