Advocacy Criminal

Question 1

Exclusion of Visual Identification Evidence due to poor quality

Answer 1

Court discretion to exclude under s. 78 of PACE (so adverse to fairness of proceedings that it ought to excluded)

1. Identify what other evidence there is to support the prosecution
2. Argue for/against strength of evidence using Turnbull Guidlines
   - ADVOKATE
3. Show why unfair
   - is prejudice to party more than probative value of the evidence

Question 2

Exclusion of Visual Identification Evidence because improperly obtained

Answer 2

Court discretion to exclude evidence under s. 78 of PACE (so adverse …)

1. Relevant breach of identification procedure which are substantial and significant
   - not taking reasonable objection to appearance into account
   - not keeping witness away from suspect before or during
   - not keeping witness separate from one another before/during
   - not warning that suspect may not appear
2. Explain effect on fairness

Question 3

Exclusion of confession

Answer 3

1. once admissibility is challenged it is for prosecution to prove beyond reasonable doubt that it is not unreliable
2. confession must be exlucded under s76 of PACE if prosecution do not discharge burden of proof
3. Admissibility
   - is the confession relevant to matter in issue between
4. Grounds for it to be excluded
   - unreliable owing to things said and done to render it unreliable
   - unreliable owing to oppression (inhumane, degrading treatment or torture)
5. Causation of grounds to the confession
6. Consider if court should use discretion to exclude due to unfairness

Question 4

Exclusion of evidence due to unfairness

Answer 4

Court discretion under s78 of PACE to exclude any prosecution for unfairness
- having regards to all circumstance, including circumstance in which evidence was obtained, court finds it so adverse to the fairness of proceedings that it ought to be excluded

1. Police breach of PACE
   - is substantial and significant
   - even if not can be if police are also acting in bad faith (must have clear evidence to argue this)
2. Other Grounds for being unfair
   - difficulty in challenging
   - prejudice to party outweighs any probative value
   - unreliability

Question 5

Admissibility of Single Hearsay

Answer 5

Hearsay is inadmissible unless one of exceptions applies
- Under statute
- Under RoL
- Agreement of the Parties
- In the interest of Justice

Apply test for relevant exception

(Maybe Acknowledge that court has discretionary power to exclude hearsay evidence
- if it is satisfied that the statement will result in undue waste of time which outweighs any benefit to be gained from admitting it)
- maybe distinguish

Question 6

Admissibility of Multiple Hearsay

Answer 6

Acknowledge that multiple hearsay is inadmissible unless one of grounds applies
- Business Document
- inconsistent/consistent statement
- all parties agree
- value is so high that it is in the interest of justice

Question 7

Admissibility of defendants bad character

Answer 7

1. Is it evidence of / disposition towards: misconduct, commission of offences, or other reprehensible behaviour, outside the facts of the offence
   - If yes then not admissible unless :
2. Not admissible unless introduced under one of the following grounds
   - agreement of the parties
   - Attacked another character
   - substantial probative value to a matter in issue between defence and prosecution
   - important explanatory evidence
   - correct a false impression
   - substantial probative value to a matter in issue between co-defendants
   - adduced by defendant

Question 8

Exclusion of bad character evidence

Answer 8

1. Court power

Court MUST exclude if notice was given and came under matter in issue between P and D, attacked another credibility AND
- considers unfair

Otherwise may exclude for unfairness

2. Was it admissible
   - not admissible unless one of 7 Gateways applies
   - critically assess whether it applies
3. Must exclude if
   - Must exclude if: substantial probative value to matter in issue between P and D, or D attacked credibly of another
   - May exclude if: all others
   - AND unfair in addition to one of above
4. Unfairness
   - in all circumstances the court considers the admission of the evidence to be so adverse to the fairness of the proceedings that it ought to be excluded

CONSIDER
- was offence long ago
- was offence not relevant
- can past offence be distinguished (strong case of self defence in this case not present in previous)
- insufficient number of past offences

Question 9

Bail Application (not murder)

Answer 9

1. Defendant has a right to bail unless
   - real possibility of custodial sentence
   - substantial grounds for believing that D will do (below)
2. Is there a real possibility of a custodial sentence
3. Are there substantial grounds to believe that D would
   - commit crime on bail
   - fail to surrender
   - interfere with evidence or otherwise obstruct the administration of justice
4. Also consider where relevant
   - no bail for own safety
   - not enough information to make bail decision
   - either way/indictable only offence and on bail when committed
   - breached bail conditions in the past
5. Consider Conditions
   - residing at adress
   - reporting to police station
   - curfew
   - electronic tag
   - not going to specified places
   - not contacting specified people (accomplices, witness etc.)

Question 10

Bail Application (Murder)

Answer 10

1. No right to bail
2. Bail can be grated if court is satisfied that there is no significant risk that D will commit an offence whilst on bail that will cause mental or physical injury to another person.

Question 11

Bail for minors

Answer 11

Same as other except court can also refuse on grounds that

• bail for the child’s own welfare

Question 12

Plea in Mitigation

Answer 12

(arguments for seriousness of sentence)

1. Remind court that sentence must be proportionate to seriousness of offence, taking into account the culpability and harm
2. Identify the starting point for sentence and range available
3. consider aggravating and mitigating factors related to offence
4. (Multiple Offences)
   - explain why sentence should be concurrent
5. consider mitigating factors related to offender
6. Remind of credit for early guilty plea
7. Propose appropriate sentence

Question 13

Submission of no case to answer

Answer 13

2. Discretion of the court
3. 1. Remind court that burden is on prosecution to prove all elements of offence beyond a reasonable doubt
4. Argue prosecution evidence is insufficient for any reasonable court to convict
   - failed to prove an element of offence; AND/OR
   - evidence is so manifestly unreliable that no reasonable court could convict on it

Question 14

Mode of Trial: Should Magistrates Court accept Jurisdiction (argue for)

Answer 14

1. Remind court that generally either way offences should be tried in Magistrates court unless:
   - the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned
   - for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court
2. Likely Sentence Outcome
   - consider Magistrates court power (6-12 months)
   - go through relevant sentencing guidelines
   - take into account personal mitigation
   - consider credit for guilty plea (only if committal for sentencing after conviction)
3. Unusual legal, procedural or factual complexity
   - consider if serious fraud
   - consider if child witness who’s interests would be better protected in crown court

Question 15

Mode of Trial for Youth Court (should it go to crown)

Answer 15

1. Remind court that youth generally should be tried at youth court unless murder, attempted murder or manslaughter
   - court has discretion in Grave Crimes
2. Consider if it is Grave Crime
   - adult could be sentenced to 14 years in prison
3. Consider if Youth Court sentencing power adequate
   - must conclude that real possibility of custodial sentence of substantially more than 2 years if convicted
   - use sentencing guidelines

Question 16

What to consider if there are ‘substantial grounds to believe’ in bail?

Answer 16

• Nature and seriousness of offence
• Likely sentence
• Character, antecedents, associations and community ties of the defendant
• Strength of evidence
• Previous record of being granted bail
• Risk that the defendant will engage in conduct likely to cause physical or mental injury.

(* Welfare of the young defendant)

Question 17

Admissibility of Bad Character Evidence of someone other than defendant

Answer 17

1. Is not admissible unless one of the gateways applies
2. Gateways are
   - agreement of the parties
   - importance explanatory evidence
   - substantial probative value in relation to a matter which is in issue, and is of substantial importance to the context of the case as a whole

Question 18

Adverse Inference (failure to mention something at interview you later rely on)

Answer 18

1. Court may draw adverse inference from silence under questioning if D subsequently relies on fact
2. Test
   - must be proceedings against a person for an offence
   - alleged failure to mention a fact at trial must have occurred before a Defendant is charged
   - alleged failure must have occurred during questioning under caution
   - questioning must have been directed to trying to discover whether or by whom the alleged offence was committed
   - alleged failure of the accused must have been to mention any fact relied on in his defence in those proceedings
   - alleged failure must have been to mention a fact which, in the circumstances existing at the time, the accused could reasonably have been expected to mention when so questioned
3. Consider if silence was due to legal advice
   - Did they genuinely rely on (accept/believe) legal advice
   - Was it reasonable for them to rely on legal advice (unreasonable if they did so because they had no excuse etc.)

Question 19

Adverse Inference (defendant does not give evidence at trial)

Answer 19

Court or jury may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.

1. Not if (statute)
   - physical or mental condition makes it undesirable for them to give evidence
   - court must be satisfied that D is aware that failure may lead to adverse inference
2. Case Law test
   - prosecution has burden of proof
   - Defendant has right to remain silent

Therefore,
- court/jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence; and
- conclude that the silence can only sensibly be attributed to the Defendant’s having no answer or none that would stand up to cross-examination

Question 20

Adverse inference from for refusal to account for mark substance etc.

Answer 20

allows an inference to be drawn when a Defendant fails or refuses to account for his presence at a particular place where it is believed that he may have committed an offence

1. Was object, mark, substance found or arrested at crime scene
2. Does investigating officer reasonably believe that presence of mark etc. may be attributable to commission of offence
3. Must have been questioned under caution
4. If at police station must have had access to legal advice prior to request being made

Question 21

Newton hearing

Answer 21

1. Remind that burden is on prosecution to prove their version of events beyond a reasonable doubt. If this is not met the defendant is entitled to the credit for an early guilty plea.
2. Go through factual issues in dispute
   - your evidence
   - undermine protection evidence