Advocacy - Crim and Civ (Complete)

Question 1

Summary judgement

Answer 1

Discretionary
- No real prospect of success
- No other compelling reason

Question 2

Setting aside default judgment

Answer 2

Mandatory if the judge got the timelines wrong
Otherwise, discretionary:
- There is a real prospect of success
- Or there is another compelling reason

Question 3

Security for Costs

Answer 3

Discretionary
Where there is a prospect of success for D and,
There is evidence that C will be unable to pay costs
o C might have started moving assets
o Anything in the facts that provides that C may not be able to pay
o Change of address or failure to provide the correct address to the court

Question 4

Interim Prohibitory Injunction

Answer 4

• Discretionary
• Serious question to be tried
• Damages would be insufficient
• Balance of convenience
• Cross undertaking in damages

Question 5

Application to vary directions

Answer 5

-Discretionary power to make/vary directions
- Disclosure CPR Part 31
- Expert CPR 35
Discuss how variation of directions will further the overriding objective to deal with cases justly and proportionately

Question 6

Application for an unless order

Answer 6

Applicant has clean hands
Respondent has breached a court order e.g. the directions
Overriding objective
o Just
o Fair
o Proportionate

Question 7

Application to strike out

Answer 7

Discretionary power for cases that don’t belong in court

No reasonable case to answer

Claim is abuse of process, or

There has been failure to comply with specific directions/payment/order (usually only if an unless order was put in place to ensure compliance)

Question 8

Application for relief from sanctions

Answer 8

3 stage test
- Seriousness of the non-compliance (if it is not serious then stop here).
- Why the non-compliance occurred (trivial errors are not a good reason)
- Overriding objective of proportionality, efficiency, and compliance. Promptness, previous breaches, and proportionality of sanction considered.

Question 9

Application for adjournment/stay of proceedings

Answer 9

Discretionary
Overriding objective: fair, just, proportionate
Method
o Explain why adjournment is necessary
o Show why this is in the interest of the overriding objective
o Show that you applied promptly.

Question 10

Track allocation hearing

Answer 10

Discretionary use of case management powers
o Value of claim
o Is there a protected party
o Is it regarding personal injury
o Is the claim complex

Conclude with track recommendation

Question 11

Interim Payment

Answer 11

Discretionary power

D has filed the acknowledgement of service

At least one of the following 4 things have happened:

o D admitted liability
o C has obtained judgement against D
o Substantial amount of money would be awarded
o Or finally, there are multiple defendants and
(i) The court is satisfied that D would obtain judgement of a substantial amount from at least one of them but aren’t sure which
or (ii) They are insured or are a public body

Question 12

Application for exclusion of ID evidence for poor quality

Answer 12

• Discretionary (s.78 PACE)
• Strength of prosecution case
• Turnbull guidelines (ADVOKATE)

Question 13

Application for the exclusion of ID evidence for improperly obtaining it

Answer 13

Discretionary (s.78 PACE)

Identify relevant breach

o Appearance of others during ID process
o Keep witnesses away from suspects and other witnesses
o Warning that the suspect may not be shown

Question 14

Application to exclude a confession on the grounds that it is unreliable

Answer 14

Once admissibility is challenged, the prosecution must shown beyond reasonable doubt that the confession is not unreliable.

Mandatory for the judge to exclude the confession if this burden of proof is not met (s.76 PACE)

Steps:

o Show that the confession is admissible because it is relevant to the matter at hand

o Identify why it is unreliable
(i) Oppression or
(ii) Things said/done/process

o Demonstrate the causation between the oppression/things said or done to the confession.

Question 15

Application to exclude any evidence

Answer 15

This can be stand alone or added to any of the prior tests for evidence

Discretionary (s.78 PACE)

• If any evidence would cause an unfair outcome (having regard to the whole case) then it should not be admitted by the court.

Question 16

Admissibility of Hearsay Evidence

Answer 16

First Q: Is it single or multiple hearsay?

Single: it is inadmissible unless one of the exceptions applies:
o Rule of law
o Statute
o Agreement of the parties
o In the interest of justice

Multiple: it is inadmissible unless on the exceptions applies:
o Contained in a business document
o Inconsistent statement/consistent statement
o All parties agree
o Value of evidence so high that it is in the interest of justice

Apply test to facts

Question 17

Admissibility of Bad Character Evidence

Answer 17

Bad character evidence is NOT admissible if:
o It is evidence of / disposition towards previous
 Misconduct
 Offences
 Reprehensible behaviour

EXCEPT where it falls under the 7 gateways of admission
o All parties agree it should be admissible
o Adduced by D
o Important explanatory evidence
o Relevant to an important disputed matter
o Substantial probative value to an important matter between co defendants
o Rectifying a false impression given by D
o D attacks the character of another

Effect of fairness of the overall proceedings must be considered.

Question 18

Bail Application

Answer 18

Bail is a RIGHT (except for in murder cases)

This can only be refused by the court if
o There’s a real prospect of a custodial sentence AND
o One of the exceptions to the right to bail apply.

Exceptions: There are substantial grounds to believe D would;

o Not surrender following bail
o Commit further offences whilst on bail
o D’s character
o Record of compliance
o Strength of the evidence

Conditions: if there is anything above that D has done wrong, consider what bail conditions could remedy this e.g. a curfew/tag/reporting…

Question 19

Plea in mitigation

Answer 19

Sentence must be proportionate to the overall seriousness of the offence

Consider offenders culpability and potential harm.

Identify the sentencing range

Consider aggravating and mitigating factors

If there are multiple offences, explain why they should be concurrent

Credit for guilty plea (if applicable)

Propose appropriate sentence

Question 20

Submission of no case to answer

Answer 20

Burden is on the prosecution to prove D’s guilt and that all of the elements of the offence have been found
- Argue that evidence is insufficient
- Any elements of the offence that have failed to be proven
- Evidence is manifestly unreliable no reasonable court could convict based on it

Question 21

Arguing that the Magistrates Court should accept jurisdiction (Mode of Trial)

Answer 21

Max sentence of MC is 6 months for single offence or 12 months for an either way/more than one offence

Consider the range of the offence

Submit that the courts sentencing powers are adequate