Advocacy - Crim and Civ (Complete) Flashcards
Summary judgement
Discretionary
- No real prospect of success
- No other compelling reason
Setting aside default judgment
Mandatory if the judge got the timelines wrong
Otherwise, discretionary:
- There is a real prospect of success
- Or there is another compelling reason
Security for Costs
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
Interim Prohibitory Injunction
- Discretionary
- Serious question to be tried
- Damages would be insufficient
- Balance of convenience
- Cross undertaking in damages
Application to vary directions
-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
Application for an unless order
Applicant has clean hands
Respondent has breached a court order e.g. the directions
Overriding objective
o Just
o Fair
o Proportionate
Application to strike out
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)
Application for relief from sanctions
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.
Application for adjournment/stay of proceedings
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.
Track allocation hearing
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
Interim Payment
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
Application for exclusion of ID evidence for poor quality
- Discretionary (s.78 PACE)
- Strength of prosecution case
- Turnbull guidelines (ADVOKATE)
Application for the exclusion of ID evidence for improperly obtaining it
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
Application to exclude a confession on the grounds that it is unreliable
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.
Application to exclude any evidence
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.
Admissibility of Hearsay Evidence
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
Admissibility of Bad Character Evidence
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.
Bail Application
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…
Plea in mitigation
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
Submission of no case to answer
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
Arguing that the Magistrates Court should accept jurisdiction (Mode of Trial)
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
