Advocacy (Criminal) Flashcards
You are asked to attend a bail application hearing.
What is the starting point for bail in most cases?
s.4 bail Act
The right to bail is presumed. Objections must be raised to remand in custody.
You are asked to attend a bail application hearing.
D has commited an indictable offence (i.e. not summary only).
What are the big three grounds that you could rely on as an objection?
- Fail to Attend Later Hearing; or
- Commit further offences; or
- Interfere with witnesses
… unless there is no real prospects of D receiving a custodial sentence
You are asked to attend a bail application hearing.
D has commited a summary only offence.
Are the big three grounds available as an objection?
Only available if …
- D breached bail and is under arrest per s.7 Bail Act; or
- D has prior ‘’failure to surrender’ conviction
You are asked to attend a bail application hearing.
The big three grounds are not available as an objection. What could you rely on?
Need Not Grounds
- Remand for Ds Protection; or
- D already serving a custodial sentence; or
- Insufficient time to gather evidence to deal with the issue of bail
You are asked to attend a bail application hearing.
Your client is charged with murder.
Is bail presumed? When will bail be granted?
If D has a pre-conviction for (a) murder; (b) attempted murder; (c) rape; or (d) serious sexual offence, there is no bail unless exceptional circumstances justify
If D has no such pre-convictions, there is no bail unless no signifiant risk of D causing an offence likely to injure whilst on bail.
You are asked to attend a bail application hearing.
Your client is either charged with rape, serious sexual offences or attempted murder..
Is bail presumed? When will bail be granted?
If D has a pre-conviction for (a) murder; (b) attempted murder; (c) rape; or (d) serious sexual offence, there is no bail unless exceptional circumstances justify
If D has no such pre-convictions, s.4 Bail Act presumption still applies.
You are asked to attend a bail application hearing.
Your client is charged with an offence against family member or partner
When will bail be granted?
D need not be granted bail if there are substantial grounds for believing D will commit an offence on bail by engaging in conduct to cause mental/physical injury to associated persons
You are asked to attend a bail application hearing.
Your client is charged with an offence of Abuse of Drugs.
When will bail be granted?
If D has class A drugs in their body, and the offence relates to the Class A drugs, there is no bail unless no significant risk of a bail offence.
You are asked to attend a bail application hearing.
Your client is charged with a summary onlu offence committed whilst on bail.
What ground could be used to object to bail?
Bail need not grant bail if there are substantial grounds for believing D may commit another offence
You are asked to attend a bail application hearing.
Your client is charged with an indictable only offence committed whilst on bail.
What ground could be used to object to bail?
Bail need not be granted.
The committing of the indictable only offence is sufficient objection..
You are asked to attend a bail application hearing.
Your client is charged with an either-way offence committed whilst on bail.
What ground could be used to object to bail?
Bail need not be granted.
The committing of the either-way offence is sufficient objection.
You are at the mid-way point of a trial and wish to make an argument of no case to answer.
What test do you apply?
Galbraith Test:
The case should be stopped
(a) where there is no evidence that the crime has been committed by D; or
(b) where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict it.
You are making a s.76 application to exclude confession evidence.
What must the prosecution do?
Prosecution must refute any claim under s.76 beyond reasonable doubt that the confession was not obtained by (a) oppression; or (b) was rendered unreliable.
You are objecting to a s.101 bad character evidence application.
What are the 7 gateways?
- Agreement
- Blurt it Out
- Context
- Done it Before
- E Did It
- False Impression
- Gets at the Witness
You are objecting to a s.101 bad character evidence application.
The prosecution argue that the relevant gateway is s.101(d) that he has propensity. What does this mean?
- D commits an offence of the same description (exact offence on the charge)
- D commits an offence of the same category (Sexual Offences;or Theft)
- D commits offences of the ‘same kind - (Hanson)
You are objecting to a s.101 bad character evidence application.
The prosecution argue that the relevant gateway is s.101(d) that he has propensity.
What are the two stages to your defence?
Submission 1: There is no propensity to commit offences of the same description, category or kind; and
Submission 2: s.101(d) issubject to s.101(3) Safeguard that the court must not admit evidence if it would have an adverse effect on the fairness of proceedings.
You are objecting to a s.101 bad character evidence application.
The prosecution argue that the relevant gateway is that D ‘got at the witness’
What are the two stages to your defence?
Submission 1: The defendant did not attack another person’s character; and
Submission 2: This gateway (g) is subject to s.101(3) Safeguard that the court must not admit evidence if it would have an adverse effect on the fairness of proceedings.
You are making an application to introduce hearsay evidence.
What are the ‘unavailable witness’ grounds?
Are there any limtis to it?
- Dead
- Unfit to give evidence once in court
- Outside the UK and reasonably practicable to securetheir attendance
- Cannot be found.
- Does not give oral evidence through fear
It must be first hand hearsay
You are making an application to introduce hearsay evidence.
What are the ‘business documents’ grounds?
Note, the document was not prepared for criminal proceedings
Are there any limtis to it?
Admissible if it is a statement contained in a business document created or received in the course of their occupation and the person who supplied information had personal
For example…
* Medical records
* Receipts
* Banking Ledgers
* Police Book
Note, if the information is multiple hearsay then each person passing it on also received it in the course of their occupation, or as holder of a paid or unpaid office.
You are making an application to introduce hearsay evidence.
You are relying on the business document gateway.
The document was prepared for criminal proceedings
Are there any limtis to it?
If the document was prepared for criminal proceedings there are additional requirements…
(a) Witness is unavailable (s.116 above: dead etc.); or
(b) Witness could not be expected to remember the matters referred to
You are making an application to introduce hearsay evidence.
When can you rely on a previous statement made by a witness as proof of its contents if it is adduced in evidence?
If it is used to…
(a) To rebut an allegation of recent fabrication
(b) As a memory-refreshing document; or
(c) It relates to the identity of a person, place or thing; or made while matters were still fresh in their memory; or it is a recent complaint
You are making an application to introduce hearsay evidence.
When can you rely on res gestae?
If the statements were made when a person was so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded
You are making an application to introduce hearsay evidence.
Can you rely on evidence of a confession, or must it be admitted under a gateway?
Confessions by the accused are admissible as to their truth
You are attending a sentencing hearing and are required to make a plea in mitigation and sentencing.
How do the court narrow the range of potential sentences?
The court consider the seriousness of the offence:
Culpability + Harm caused, intended or risk of being caused
You are attending a sentencing hearing and are required to make a plea in mitigation and sentencing.
What is the custodial threshold test that must be considered?
The court must not pass a custodial sentence unless it is the opinion of the court that the offence or combination of offences was so serious that neithe r afine nor community order can be justified.
Every court must also follow the sentencing guidlines unless it would be contrary to the interests of justice to do so.
You are attending a sentencing hearing and are required to make a plea in mitigation and sentencing.
What are the mitifating factors to consider?
- Youth and age
- Health
- Addictions
- Early cooperations
- True remorse
- Good character
- Low risk of re-offending
You are attending a sentencing hearing and are required to make a plea in mitigation and sentencing.
What are the aggrivating factors to consider?
- Previous convictions
- Planning
- Discrimination
- Drink and drugs
- Multiple offences
- Gangs
- Prescence of others
- Abuse of trust
You are attending a sentencing hearing and are required to make a plea in mitigation and sentencing.
What credit for a guilty plea should be considered?
Up to 1/3 at first stage (33%)
Up to 1/4 after first stage (25%)
Up to 1/10 on the day of trial (10%)
You are objecting to a hearsay application.
In addition to objecting to the grounds, what other objectiosn could you raise?
- s.78 PACE - impact fairness of proceedings
- s.126 CJA - Court’s general discretion to exclude evidence if the value is outweighed by the undue waste of time which its admission would cause.
You are attending court to make an abuse of process application.
What test do you apply?
(a) Is it impossible for the defendant to have a fair trial? or
(b) Is a stay of proceedings necessary to protect the integrity of the criminal justice system?
You are lodging an appeal for your client.
You are in the crown court.
On what basis can you appeal the conviction, and how long do you have?
You can appeall the conviction to the Court of Appeal on the basis that the conviction is unsafe
You must appeal within 28 days of conviction
The court can quash, order a re-trial, substitute verdict or amend sentence
You are lodging an appeal for your client.
You are in the crown court.
On what basis can you appeal the sentence, and how long do you have?
You can appeall the conviction to the Court of Appeal on the basis that D should have been sentenced differently.
You must appeal within 28 days of sentence.
Note, the corut can quash sentence; or pass a new Sentence. However, they must ensure the appellant is not more severely dealt with than they were below.
You are attending a sentencing hearing for your client who is a youth.
He has no previous convictions and pleads guilty to an imprisonable offence.
What submission should you make?
If it is in the Youth Court of Magistrates Court, the court must impose a referral order since
(a) No previous convictions
(b) Pleads guilty
(c) Imprisonable offence
This can be between 3 - 12 months
Note, not available if in the Crown Court
You are attending a sentencing hearing for your client who is a youth.
You believe that the case is serious enough to warrant punishment but it need not be imprisonable
What submission should you make?
Youth Rehabilitation Community Order
Only available in Youth Court and Crown Court
You are attending a sentencing hearing for your client who is a youth.
Your hearing is in the youth court.
What sentence is available for them to be sentenced to detention?
What are the reqquirments?
Detention and Training Orders (DTO)
The only custodial sentence available to a youth court. Half DTO is spent in secure detention. Half in the community.
Between 4 - 24 months.
Requirments:
* Must be 15 - 17; or
* Persistent Offender aged 12 - 14
* Cannot be used if youth is 10 - 11.
Also available in the Crwon Court
You are attending a sentencing hearing for your client who is a youth.
He has been found guilty of a grave crime and neither a community order nor DTO is suitable.
What are the three possible sentences the crown Court may hand down?
- Dangerous Offenders - sentence for extended detention or for life
- Detention at His Majesty’s Pleasure - Mandatory sentence for any child found guilty of murder. Starting point is 12 years minimum term.
- Detention in Young Offenders Institution - Sentenced as adults, but used for 18 - 21
You are attending a sentencing hearing for your client who is a youth.
He has been found guilty murder.
What is the mandatory sentence?
Detention at His Majesty’s Pleasure
This is a mandatory sentence for any child found guilty of murder.
Starting point is 12 years minimum term.
Your client is a youth solely charged.
Where is the first hearing?
Presumption that the first hearing is in the Youth Court
Exception: The first hearing will be the Magistrates Court if…
- Jointly charged with an adult
- Charged with aiding/abetting an adult
- Adult charged with aiding/abetting youth
- Offence arises out of connected adult offence
Your client is a youth solely charged.
When considering allocation for trial, when will a case be committed to Crown Court for trial?
Youth must be committed to Crown Court for trial if charged with….
(a) Homicide and Serious Cases
* Homicide
* Firearms (mandatory 3 year sentence)
* Serious fraud case
(b) Grave Crimes
* Offence punishable by 14 years; and
* Real possibility of a sentence of 2+ years detention would be imposed
(c) Dangerous Young Offender
* Charged with a specified violent or sexual offence; and
* Significant risk to the public; and
* A custodial term of at least 4 years would be imposed
Your client is a youth solely charged.
They have been found guilty before the Crown Court of an offence other than homicide
What must the Crown Court do?
The Crown Court must remit the case to the youth court for sentence unless undesirable - balancing the need for child expertise and benefits of CC sentencing.
Your client is a youth charged with an adult.
It is a summary only offence.
Where will the first hearing take place?
Magistrates
Court
Your client is a youth charged with an adult.
It is a summary only offence.
Where will they be tried if the adult is tried summarily?
Tried in Magistrates Together
Your client is a youth charged with an adult.
It is a summary only offence.
Where will they be tried if the Joint Charge is Summary Only?
Tried in Magistrates Together
Your client is a youth charged with an adult.
It is a non-grave either-way offence.
Where will they be tried if the either adult or youth pleads guilty?
Deal Separately
Send Youth to Youth Court
Your client is a youth charged with an adult.
It is a non-grave either-way offence.
Where will they be tried if the adult pleads not guilty and so does the youth?
The adult will be tried summarily
Both Tried in Magistrates (Summarily)
Your client is a youth charged with an adult.
It is a non-grave either-way offence.
Where will they be tried if the adult pleads not guilty and so does the youth?
The adult is committed or elected Crown Court Trial.
Apply IOJ Test
- IOJ Met: Youth & Adult Tried Jointly in Crown Court
- IOJ Not Met: Seperate - Youth Tried in Youth Court
Your client is a youth charged with an adult.
It is a *grave either-way** offence.
Where will they be tried if the Youth or Adult Pleads Guilty?
Each dealt with separately
Ask whether a 2 year sentence is likely for the youth:
Yes: Youth Sent to Crown Court
No: Youth Sent to Youth Court
Your client is a youth charged with an adult.
It is a grave either-way offence.
Where will they be tried if the Youth and Adult Pleads Not Guilty?
Ask whether a 2 year sentence is likely for the youth:
If yes > Crown Court Jointly
If No >Apply IOJ Test:
* IOJ Met: Youth & Adult Tried Jointly in Crown Court
- IOJ Not Met: Seperate - Youth Tried in Youth Court
Your client is a youth charged with an adult.
It is a non-grave indictable only offence.
Where will they be tried if the Youth Pleads Not Guilty?
Apply IOJ Test:
- IOJ Met: Youth & Adult Tried Jointly in Crown Court
- IOJ Not Met: Seperate - Youth Tried in Youth Court
Your client is a youth charged with an adult.
It is a non-grave indictable only offence.
Where will they be tried if the Youth Pleads Guilty?
Sentence in Crown Court or remit to Youth Court
Your client is a youth charged with an adult.
It is a grave indictable only offence.
Where will they be tried if the Youth Pleads Not Guilty?
Ask whether a 2 year sentence is likely for the youth:
Yes: Youth Sent to Crown Court
No: Youth Sent to Youth Court
Your client is a youth charged with an adult.
It is a grave indictable only offence.
Where will they be tried if the Youth Pleads Guilty?
Sentence in Crown Court or remit to Youth Court
You are attending a hearing with a youth.
The court are considering allocation and you are asked to make submissions in relation to the interest of Justice Test.
What is this?
Whether youth and adult should be tried jointly depends on
- Whether separate trials will cause injustice to witnesses
- Age of young person
- The age gap
- Maturity of the young person
- Relative culpability of young person
- Previous findings of guilt of young person.
You are attending a hearing with a youth.
The court are considering allocation and you are asked to make submissions in relation to the characterisation of the offence as a grave crime
What is this?
Either….
(a) Punishable with 14 years imprisonment or more for an adult; or
(b) Sexual assault offences committed by a young person; or
(c) Firearms and weapons subject to a minimum term
AND
It is possible to sentence them to more than two years’ detention if found guilty of the offence
You are attending a hearing with a youth.
The available sentences turn on whether your client is a Persistent Young Offender
What are the requirments?
- Aged 10 - 17
- Convicted of; Admission of guilt
- Of imprisonable offences;
- On 3 occasions in 12 months
You are addressing a court on sentencing.
The hearing concerns multiple offences.
The offences arise out of seperate events.
What should you ask the court?
Consecutive sentence - One after the other
For offences arising out of separate events
For example, 2x12 month sentences run consecutively = total 24 months
You are addressing a court on sentencing.
The hearing concerns multiple offences.
The offences arise out of the same facts.
What should you ask the court?
Concurrent sentence
For offences arising out of the same events, the sentences run at the same time.
For example, 2x12 month sentences run concurrently = total 12 months)
You are making submissions in relation to bad character eviddence.
Can blasphemy and evidence of an affair be introduced?
No
Blasphemy and affair do not count
They are NOT examples of a reputation for reprehensible behaviour
You are responding to a badcharacter application.
The prosecution rely on propensity to be untruthful (s.103(1)(b).
What does this mean?
Propensity to be untruthful, does not mean propensity to be dishonest
It concerns two situations:
(a) Where a plea of not guilty to a previous offence was entered, and the D gave evidence at trial which
the jury disbelieved; or
(b) The way in which the offence was committed involved being untruthful, such as fraud by false representation
You are objecting to a bad character application..
What provision applies to gateways (d) and (g) as a safeguard?
S101(3) CJA 2003 – where admission of evidence would have an adverse effect onfairness of proceedings, court MUST NOT admit evidence under these gateways:
- S101(d) – relevant to an important matter in issue between D and P (Done it Before)
- S101(g) – D attacked another person’s character (Gets at Witness)
In your submissions for the exclusion of confession evidence (s.76) what should you remind the court about the burden of proof?
Remind the court that…
(a) Once the admissibility is challenged, it is for the prosecution to prove beyond reasonable doubt that the confession is not unreliable; and
(b) The confession MUST be excluded if the prosecution do not discharge this burden of proof under s76 PACE.
You are making an application for special measures.
What submission should be made for the following:
Witnesses under 18 at time of trial
Automatically eligibl for special measures
You are making an application for special measures.
What structure of submisisons should you follow?
- Why the measure is sought?
- How it will enable best evidence?
- Views expressed by the witness
What test do you apply if making a no case to answer application?
R v Galbraith:
(1) There is no evidence that the crime alleged has been committed by the defendant; or
(2) The prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it
… Successful no case to answer submission stope the trial then and there.
You are making submissions in relation to allocation of a youth.
Is GBH a grave crime?
Yes - GBH is a grave crime that an adult could be sentenced to for 14 years.
Apply the test: Is there a real prospect that a sentence in excess of 2 years’ detention will be imposed?
Yes > Commit to Crown Court
No > Retain Youth Court Jurisdiction
You are making submissions in relation to allocation of a youth.
Is Robbery a grave crime?
Yes - Robbery is a grave crime that an adult could be sentenced to for 14 years.
Apply the test: Is there a real prospect that a sentence in excess of 2 years’ detention will be imposed?
Yes > Commit to Crown Court
No > Retain Youth Court Jurisdiction
You are making submissions in relation to allocation of a youth.
Is Burglary of a Dwelling a grave crime?
Yes - Burglary of a dwelling is a grave crime that an adult could be sentenced to for 14 years.
Apply the test: Is there a real prospect that a sentence in excess of 2 years’ detention will be imposed?
Yes > Commit to Crown Court
No > Retain Youth Court Jurisdiction
You are making submissions in relation to allocation of a youth.
Is Aggravated Burglary a grave crime?
Yes - aggravated burglary is a grave crime that an adult could be sentenced to for 14 years.
Apply the test: Is there a real prospect that a sentence in excess of 2 years’ detention will be imposed?
Yes > Commit to Crown Court
No > Retain Youth Court Jurisdiction
You are making submissions in relation to allocation of a youth.
Is Aggravated Criminal Damage a grave crime?
Yes - aggravated criminal damage is a grave crime that an adult could be sentenced to for 14 years.
Apply the test: Is there a real prospect that a sentence in excess of 2 years’ detention will be imposed?
Yes > Commit to Crown Court
No > Retain Youth Court Jurisdiction
You are making submissions in relation to allocation of a youth.
Is Arson a grave crime?
Yes - arson is a grave crime that an adult could be sentenced to for 14 years.
Apply the test: Is there a real prospect that a sentence in excess of 2 years’ detention will be imposed?
Yes > Commit to Crown Court
No > Retain Youth Court Jurisdiction
You are making submissions in relation to allocation of a youth.
Is criminal damage (non-aggravated) a grave crime?
No - criminal damage without it beinf aggravated is not a grave crime that an adult could be sentenced to for 14 years.
Retain Youth Court Jurisdiction
No need to ask the ‘excess of 2 year’ questin
You are making submissions in relation to allocation of a youth.
Is ABH a grave crime?
No - criminal damage without it beinf aggravated is not a grave crime that an adult could be sentenced to for 14 years.
Retain Youth Court Jurisdiction
No need to ask the ‘excess of 2 year’ queston
You are making submissions in relation to allocation of a youth.
Is theft a grave crime?
No - theft is not a grave crime that an adult could be sentenced to for 14 years.
Retain Youth Court Jurisdiction
No need to ask the ‘excess of 2 year’ queston
What do you call a court of appeal judge?
My Lord/My Lady
What do you call a high court judge?
My Lord/My Lady
What do you call a circuit judge?
Your Honour
What do you call a district judge ?
Judge
What do you call a district judge in the magistrates court?
Judge
What do you call a magistrate?
Your Worship
