Advocacy Applications Flashcards
What are the grounds for summary judgment under the Civil Procedure Rules (CPR)?
No real prospect of success
AND
There is no other compelling reason for trial
CPR 24.5
What are some examples of compelling reasons for trial in a summary judgment application?
Defendant needs more time for an investigation
Expert Evidence is required
Multi-Party Litigation
Scrutiny of Key Documents
Defendant has the right to a Trial by Jury (e.g., fraud cases)
What are the 2 key matters which the court considers in a security for costs application?
Whether it is just to make an order
AND
Whether one of the 6 key conditions are met
CPR 25.13
What are the 6 conditions the court considers in a security for costs application?
Claimant is outside the jurisdiction
Claimant is a company and there is reason to believe they won’t be able to pay defendant’s costs
Claimaint taking actions that make cost enforcement difficult
Claimant changed their address
Claimant fails to give address
Claimant acting as a nominal claimant and reason to believe they won’t be able to pay costs
CPR 25.13
If the conditions are met for a security for costs application, must the court grant the order?
No, the court has discretion to order security.
The primary consideration is the respondent’s ability to meet the security requirement.
CPR 25.13
What guidelines will the court consider when deciding whether to grant an interim prohibitory injunction?
American Cyanmid Guidelines:
- Is there a serious question to be tried?
- Would damages be an adequate remedy instead?
- Where does the balance of convenience lie? (Would granting the injunction carry a lesser risk of injustice than nor granting it?)
What 3 principles should a party seeking an injunction abide by as it is an equitable remedy?
- They should only seek an injunction if it serves a practical purpose (it won’t be granted otherwise)
- They must have ‘clean hands’
- They must not cause excessive delay (excessive delay may lead to refusal)
When can an application for strike out be brought?
The claim has no reasonable grounds
OR
It is an abuse of process
CPR 3.4(2)
What is the legal test for an application to set aside default judgment?
The court may set aside if:
The applicant has a real prospect of successfully defending the claim
OR
There was some other compelling reason for the failure to respond to the action
CPR 13.3
What is the 3 step process for dealing with an application for relief from sanctions?
The Denton Principles:
- Identify the seriousness and significance of the failure (if neither serious nor significant, relief should be granted)
- Consider why the default occurred
- Evaluate the circumstances of the case to ensure the court deals with the matter justly, considering:
- Litigation should be conducted efficiently at proportionate cost; AND
- The court must enforce compliance with rules, PDs, and orders
- Litigation should be conducted efficiently at proportionate cost; AND
What is an unless order?
An order which provides for an automatic sanction in the event of non-compliance with the order
When will the court grant an interim payment order?
If defendant admits liability for damages/another sum
If claimant obtains judgement for damages (or a sum other than costs) to be assessed; or
If the court believes the claimant would likely obtain a substantial judgment at trial.
CPR 25.7
In a bail application, what will the court presume?
The court presumes that a defendant is entitled to bail unless a valid objection is raised
What are the 3 primary grounds for objecting to bail for indictable offences?
There are substantial grounds the defendant would:
1) Fail to attend a subsequent hearing (failure to surrender)
2) Commit further offences on bail
3) Interfere with witnesses/otherwise obstruct the course of justice
When should bail never be removed?
Bail should not be removed if there is no real prospects of the defendant serving a custodial sentence
In what 3 circumstances does the right to bail not apply?
- In Murder Cases
- When Appealing Convictions
- When the defendant is being committed for sentence to the Crown Court
What are the 6 grounds for objecting to bail for summary offences?
Only available if the defendant (D) breached bail/has previous convictions for failing to surrender (FTS):
- Substantial grounds for believing D will FTS
- Substantial grounds for believing D will commit further offences
- Substantial grounds for believing D will interfere with witnesses/otherwise obstruct the course of justice
- Remand in custody is for D’s own protection
- Court has insufficient information to deal with bail so a short-term remand is needed to produce sufficient evidence
- D already serving a sentence
When will an either-way offence be tried on indictment in the Crown Court?
The Magistrates’ Court’s sentencing powers are insufficient
OR
There are unusual, legal, procedural, or factual complexity that requires a Crown Court trial
What factors might be relevant to determing whether a defendant is tried in the Magistrates’ or Crown Court?
D’s Offending History
Sentencing Guidelines
Case Law
D’s Submissions
What is a confession under S.82(1) PACE?
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
What are the 2 primary ways to challenge the admissibility of a confession under S.76 PACE?
- Exclusion for Oppression
- Exclusion for Unreliability
What must the prosecution prove if the defence try to exclude a confession for unreliability under S.76 PACE?
They must prove beyond a reasonable doubt that the confession was not obtained in such a manner
If the prosecution cannot prove a confession was not unreliable under S.76 PACE, what happens?
The court MUST NOT admit the evidence (mandatory)
When can S.78 PACE be invoked to exclude evidence?
Where the prosecution evidence being admitted would adversely affect the fairness of the proceedings
The court ought not to admit it (discretionary)
In what circumstances may S.78 PACE be invoked?
Improper Denial of Legal Advice
Non-Voluntary Waiver of Rights
Failure to Caution Suspects
Appropriate Adults not provided
ID Procedures not followed
What are abuse of process applications?
Used when a case should be stopped due to fundamental unfairness or impropriety
Defendant can apply to stay proceedings if it would be an abuse of process
When may an abuse of process application be brought to stay proceedings?
Where it offends the court’s sense of justice and propriety to allow the case to be tried, e.g.,
D coerced into committing an offence
D prosecuted despite unequivocal prosecution promise
Police acted in a way which undermined public confidence in the criminal justice system
Prosecution manipulated court process to deprive D of protections
Inordinate or unconscionable delay due to prosecution inefficiency
When might hearsay evidence be admitted?
Witness is Unavailable
Contained within a Business Document
It is in the Interests of Justice to Admit it
Res Gestae (Overcome with emotion)
Previous Inconsistent Statements
Documents Prepared for Criminal Proceedings
Evidence of Reputation
What are the 7 gateways for adducing bad character evidence - S.101(1) Criminal Justice Act 2003?
A - Agreement
All parties consent
B - Blurts it out
D adduces bad character evidence about themselves
C - Context
Important explanatory evidence
D - Done it before
Important matter in issue between D and Prosecution. Offence is of the same description (or category for theft/sexual assault offences)
E - ‘E did it!
Important matter in issue between D and Co-Defendant
F - False Impression
Prosecution wants to correct a false impression given by D
G - Gets at witness
D made an attack on someone else’s character
What is the fairness test under S.101(3) for bad character evidence and which gateways does it apply to?
Applies to gateways S.101(d) and S.101(1)(g): Important Matter in Dispute between D and Prosecution
&
Attack by D on someone else’s character
The court MUST NOT admite evidence if the admission of the evidence would have such an adverse effect on the proceedings that the court ought not to admit it (stronger than S.78 PACE as it is not discretionary)
What steps must be followed in determing whether convictions can be used to show propensity in a bad character application?
S.101(1)(d) CJA 2003
Hanson Criteria (Unjust/Unfair):
- Do convictions establish a propensity to commit offences of the kind charged?
- Does propensity make it more likely D committed this crime?
- For offences of the same category/description…
Is it unjust to rely on them?
Where propensity is proved by other means…
Is it unfair to admit evidence? (S.101(3) Fairness Test)
Does a propensity to be untruthful mean the same thing as a propensity to be dishonest?
No (R v Hanson).
Untruthfulness can be shown when:
Not guilty plea to a previous offence and D gave evidence at trial which the jury must not have believed
The way in which the offence was committed involved being untruthful (e.g., fraud by false representation)
You can plead guilty to a dishonest offence, showing your behaviour is not untruthful
What is the effect of a submission of no case to answer?
If accepted, an order is granted to stop the proceedings if the prosecution’s case is too weak
What is the Galbraith test in a submission of no case to answer?
A case can be stopped if:
There is no evidence of the crime; or
Prosecution’s evidence, at its highest, is insufficient for a conviction
What is a plea in mitigation?
Where the defence use the facts of the case and the offender to plead for a lower (mitigated) sentence
What are the 5 steps you can structure your plea in mitigation around?
- Check Court has the papers
- Identify a Category (Sentencing Guidelines)
- Offence Mitigation
- Offender Mitigation
- Sentencing Suggestion
