Advocacy Flashcards

Question

CL - visual ID evidence - improperly obtained

Answer 1

1. Identify court discretion exclude evidence under s78 PACE 2. Identify relevant breaches of ID procedure under Code D, incl: -Take into account reasonable obj to appearance of others in ID procedure -Keep witness away from suspect before and during procedure -Keep witness apart during procedure -Warning suspect might not be shown at all

Answer 2

1. Remind court admissibility challenged - prosecution to prove beyond reasonable doubt that confession not unreliable 2. Confession must be excluded if prosecution do not discharge burden of proof under s76 PACE 3. Identify confession relevant to mater in issue between prosecution and defence, therefore admissible 4. Identify which ground confession sought to be excluded and provide details (unreliability things said/done/oppression) 5. Demonstrate causation from things said/done/oppression to confession

Answer 3

Court general discretion exclude prosecution evidence if regard all circumstances in which evidence obtained, admission of evidence have adverse effect on fairness of proceedings that the court ought not to admit under s78 PACE *Alternative/additional argument, in conjunction or stand-alone

Answer 4

1. Identify single or multiple 2. Single - identify hearsay inadmissible unless exceptions apply -statute -rule of law -agreement of parties -interest of justice 3. multiple - business doc, consistency, all parties agree, value evidence so high - interest of justice 4. apply test from relevant exception

Answer 5

1. Evidence of misconduct, commission of offences, other reprehensible behaviour (if yes, not admissible UNLESS) 2. 7 gateways: -All parties agree admissible -Adduced by D -Important explanatory evidence -Relevant to important matter in issue between prosecution and defence -Substantive probative value to important matter in issue between co-defendants -Corrects false impression given by D -D attacks another's character 3. If above important matter of attack another character, then court must not admit if D make app to court that admit evidence have adverse effect on fairness of proceedings that court must admit

Answer 6

*Rules of evidence do not apply as strictly as bail 1. Remind court of D's right to bail - bail refused if one of exceptions to right to bail apply AND real prospect of custodial sentence 2. Consider whether any exceptions to right to bail apply - usually substantial grounds to fear D would fail to surrender, commit further on bail or interfere with witnesses or otherwise obstruct justice 3. Review factors deciding whether substantial grounds exist - nature and seriousness of offence, D's character, D's record of complying with conditions on bail, strength of evidence 4. Consider whether conditions can put forward to address these issues: residence, reporting, exclusion, non-contact tag, curfew 5. Consider why bail should/should not be granted

Answer 7

1. Remind court sentence proportionate to seriousness of offence, bear in mind offender's culpability and potential harm 2. Identify starting point for sentence and range available 3. Consider aggravating and mitigating factors 4. Multiple offences - explain why sentences should be concurrent 5. Consider mitigating factors relating to offender 6. Remind court of credit for guilty plea 7. Propose appropriate sentence

Answer 8

Remind court burden on prosecution to prove D's guilt Prove all elements of offence made out Argue evidence prosecution adduced insufficient for any reasonable court to convict, either because prosecution failed to prove element of offence OR because evidence adduced by prosecution is manifestly unreliable that no reasonable court could convict on it

Answer 9

Court consider adequacy of sentencing powers Mag Court restricted 6 month imprisonment for single offence 12 month for 2 or more either way offences Sentencing guidelines Consider starting point and range Submit court sentencing powers adequate and should accept jurisdiction