Advocacy Applications

Question 1

Allocation of either-way offences at first hearing in MC

Answer 1

• allocation guidelines state that either way offences must generally be tried summarily unless:

1. the magistrates court’s sentencing powers would be insufficient or inadequate and the outcome would be CLEARLY IN EXCESS of its powers

• MC sentencing powers = 6 months imprisonment for 1 either way offence; 12 months imprisonment for more than 1 either way offence
• refer to sentencing guidelines, find starting point sentence, and argue aggravating factors or mitigation

2. the case is factually, legally, or procedurally complex (e.g., several Ds, fraud cases, complex factual disputes)

• allocation guidelines also state that where there are no factual or legal complexities or where the case is borderline and the sentence is likely to be slightly in excess of the MC’s powers = the MC must bear in mind its power to commit to the CC for sentence after trial so it may retain jurisdiction

Question 2

MC committing a conviction of an either way offence to the CC for sentence

Answer 2

The magistrates court’s sentencing powers would be insufficient and the outcome would clearly be a sentence in excess of the MC’s powers for the offences considering mitigation

• refer to sentencing guidelines, find starting point sentence, and argue aggravating factors or mitigation
• MC sentencing powers = 6 months imprisonment for 1 either way offence; 12 months imprisonment for more than 1 either way offence

Question 3

Bail

(prosecution objecting to bail or defence applying for bail or responding to prosecution’s application to object to bail)

Answer 3

• The defendant has the right to bail under s 4 Bail Act 1976 which entails a presumption of their entitlement to bail unless the prosecution can properly make out an objection (when awaiting trial, sentence, or alleged to have breached a requirement of a community order)

P must object to bail on one of the following grounds:

• Indictable offence = if D were to be released on bail, there are substantial grounds for believing D would:

1. fail to attend a subsequent hearing
2. commit further offences on bail, or
3. interfere with witnesses or obstruct the course of justice (e.g., witness intimidation, destruction of evidence)

• ‘substantial grounds’ = objective test; low threshold; only need to show that fears of the behaviour happening have substance and merit (not that the defendant would satisfy the ground)
• Summary offence = P can only object on one of the above grounds if:

1. D having been on bail for the current proceedings breached a condition of that bail,
2. D has a conviction for failing to surrender in the past.

• Bail should not be removed on one of the grounds if there are no real prospects of D receiving a custodial sentence
• Further grounds for bail =

1. remand in custody for D’s own protection
2. insufficient information to deal with bail
3. D is already serving a custodial sentence

• Application for / objection to bail (on grounds above) should reference these factors =

1. nature and seriousness of offence, and likely sentence
2. D’s character, antecedent, associations, and community ties
3. D’s bail record
4. strength of evidence

• Bail can be imposed with the following conditions (and D should argue these alleviate concerns) = reporting at police station, curfew, restrictions on where D can go or who they can come in contact with, surety or security, residence at a specified address

Question 4

plea in mitigation

Answer 4

sentencing guidelines will be given

• assess the seriousness = use facts to argue why offence falls within lesser harm and culpability categories; state why offence does not fall within high harm and culpability categories; conclude with recommended sentencing range and starting point sentence
• ‘due to the application of mitigating factors and personal mitigation, the sentence should be on the lower end of the range’
• use facts to argue why mitigating factors in relation to the OFFENCE from guideline are satisfied
• use facts to argue why aggravating factors in relation to the OFFENCE from guideline are not satisfied
• use facts to argue mitigating factors in relation to the OFFENDER = no priors, good character, remorse, cooperation with police, pleading guilty at earliest opportunity, age/lack of maturity, provocation
• ‘while the offender made a mistake and ought to be punished, they must do so in a proportionate and appropriate way’

sentencing suggestion =

• if a custodial sentence is in category range = argue that custodial threshold is not met - the court must not impose a custodial threshold unless it is satisfied that the offence is so serious that neither a fine nor a community order can be justified
• if pre-sentencing report suggests a threshold, ask the court to be guided by this recommendation
• if custodial sentence is more likely, argue that given the mitigating factors and any guilty plea, a court could legitimately impose a suspended sentence

Question 5

appeal against sentence

Answer 5

• appeal in CC = the magistrates’ court’s sentencing exercise was not correct
• appeal in CoA = ground must be met that the offender should have been sentenced differently (manifestly excessive, CC did not take relevant matters of mitigation into account)
• same sentencing exercise as plea in mitigation

Question 6

submission of no case to answer / application for dismissal

Answer 6

• test = the court may acquit on the ground that the prosecution evidence is insufficient for any reasonable court to properly convict
• this amounts to the test in R v Galbraith

1. where there is no evidence to support the charge, the judge will stop the case
2. where there is some evidence but the integrity of that evidence is in question, the judge must consider whether that evidence taken at its highest, is such that a conviction can properly be founded upon it

Question 7

s 78 PACE

Answer 7

• test = under s 78 of PACE, the court has the DISCRETION to exclude prosecution evidence on the basis that admitting it would have such an adverse effect on the fairness of the proceedings that it ought not be admitted
• PACE breaches = significant and substantial and bad faith by police
• argue the extent of unfairness caused

Question 8

s 76(2)(a) PACE

Answer 8

test = Under s 76(2)(a) of PACE, the court MUST exclude confession evidence which was or may have been obtained by oppression of the person making it, unless the prosecution can prove beyond a reasonable doubt that the confession was not obtained by oppression.

• argue oppression occurred = oppression widely defined including torture, inhuman or degrading treatment, and the use or threat of violence + consider the character and attributes of the person making the confession
• argue the oppression CAUSED the confession
• definition of confession = a statement that is wholly or partly adverse to the person making it, whether made to a person in authority or not, and whether made in words or otherwise

Question 9

s 76(2)(b) PACE

Answer 9

• test = Under s 76(2)(b) of PACE, the court MUST exclude confession evidence which was or may have been obtained as a result of anything said or done which was likely, in the circumstances existing at the time, to render that confession unreliable, unless the prosecution proves beyond a reasonable doubt that the confession was not obtained as a result of this.
• identify the thing said or done
• Argue the thing likely CAUSED any resulting confession to be unreliable in the circumstances existing at the time. This is an objective test - not whether the actual confession was unreliable but whether any resulting confession would have been unreliable.

Question 10

Grave crimes

Answer 10

• when a youth is charged with an offence which falls under the definition of a grave crime, the Youth Court may send them to the Crown Court for either trial or sentencing

test =

1. does the offence fall under the definition of grave crime? =

• An offence which, for an adult, is punishable with 14 years imprisonment or more (indictable only offence, robbery, arson, burglary, sexual offences)

2. The Youth Court is of the view that it ought to be possible to impose a sentence of more than 2 years detention (conduct sentencing exercise)

• but sentencing council guidelines provide that sending a case to the crown court should only take place if the offence is so serious that a custodial sentence substantially exceeding 2 years is a realistic possibility (high threshold)
• o In cases where it will not be possible to decide this at that juncture, the YC is advised to retain jurisdiction and, if necessary, send the matter for sentence to the Crown Court at a later stage

Question 11

youth jointly charged with adult at MC and adult is sent to CC

Answer 11

test = is it in the interests of justice that the youth also be sent to the Crown Court to be tried jointly with the adult?

Question 12

witness summons

Answer 12

test =

1. the witness is likely to be able to give evidence that is likely to be material evidence
2. it is in the interests of justice to issue a summons

Question 13

special measures for witnesses

Answer 13

1. is the witness eligible for special measures?

• under 18 at time of trial = automatically eligible
• mental disorder = eligible if court considers that due to such issue, the quality of their evidence will likely be diminished
• fear / distress of giving evidence = eligible if court is satisfied that due to fear, the quality of their evidence will likely be diminished

2. which special measures do you want?

• how will these measures assist in giving evidence and maximising quality of evidence?
• are they in the interests of justice?
• are they proportionate?

Question 14

bad character evidence by prosecution against defendant (important matter in issue - propensity to be commit offences of the same kind)

Answer 14

• Bad character evidence is evidence of a defendant’s misconduct including prior convictions and reprehensible behaviour which does not have to do with the alleged offence in question
• bad character evidence is inadmissible unless the prosecution successfully admit it under a gateway under the Criminal Justice Act 2003
• The gateway the prosecution is seeking to admit evidence of the defendant’s conviction history is that it is relevant to a substantially important matter in issue, which is the defendant’s propensity to commit offences of the kind they are charged
• This gateway reflects the approach from the case of R v Hansen, which i will use to structure my submissions

1. does the defendant’s conviction history establish a propensity to commit offences of the kind charged? = propensity can be shown by evidence of prior offences of the same category or description, similarity of priors to each other and to the current offence, time between each prior and the current offence, number of priors
2. does the propensity make it more likely that the defendant committed the offence charged?
3. Would it be unjust to rely on the convictions or would proceedings be unfair if the evidence were to be admitted?

• the court MUST not admit bad character evidence under this gateway if it is satisfied that it would be unjust OR if it appears to the court that 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.
• defence can apply to exclude prosecution bad character evidence under s 78 of PACE = the court has discretion to exclude prosecution evidence if 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 (discretion)

Question 15

hearsay (objecting to admitting)

Answer 15

• Is the statement hearsay? = hearsay is a statement made out of court by someone who intended another person to believe it, which is being adduced into court ad evidence of the matter stated
• Hearsay evidence is inadmissible, except for where it can be admitted under a ground to admit hearsay under the Criminal Justice Act 2003 (P must prove ground BRD; D must prove ground on BOP)

1. Why the ground is not made out
2. It is not in the interests of justice to admit it

• Probative value and importance of the hearsay:
  o The probative value of the statement in proving a matter in issue (e.g., D’s guilt) is not high
  o The importance of the hearsay evidence is not high
  o The importance of the matter in issue it is adduced to support is not high
• Quality of the hearsay evidence is low and it is unconvincing :
  o Circumstances the hearsay was made
  o The reliability of the maker of the statement
  o The reliability of any witness adducing the hearsay evidence
  o The other evidence to support the hearsay evidence is inexistent or weak
• Difficulty in challenging the hearsay:
  o Why the maker of the statement cannot give oral evidence in court (b/c unavailable or unknown)
  o The maker of the statement cannot be tested and cross-examined in court to test the reliability of the evidence and the credibility of the maker of the statement
• This will cause unfairness and prejudice
  o The party will be deprived of the opportunity to cross-examine the maker to probe the evidence further and expose additional weaknesses in the absence of the maker.
  o The jury should have the opportunity to properly assess the witness’s reliability
  o The adducing party’s case is largely reliant on unconvincing hearsay, so it is not in the interest of justice to admit it and risk an unsafe conviction on its basis
  o Considering its low probative value and importance, the unfairness caused to the party by admitting the untested evidence outweighs the adducing party’s desire to put it before the court.
  o It is not accepted that a direction from the judge would be able to rectify the prejudice.
  o While it is accepted that the defendant would be able to give evidence denying the truth of what the witness says, it is submitted that it would be unfair to put them in the position of having to do so given the unreliability of the evidence.

3. Ask court to exercise its discretionary power to exclude the statement on the grounds that the case for excluding it outweighs the case for admitting it, and it would result in an undue waste of time which outweighs any benefit gained from admitting it
4. Ask court to exercise its discretionary power to exclude the statement under s 78 PACE on the grounds that its admission would have an adverse effect on the fairness of proceedings