Advocacy - Criminal Tests

Question 1

Application to Remand a Defendant into Custody (pre­ conviction) - starting point?

Who does the presumption in favour of bail apply to?

Answer 1

There is a presumption that a defendant has a right to bail (prima facie right to bail), and it is for the Crown to apply to remand the defendant into custody. Granting bail is a ‘stepped approach’. The starting point is
unconditional bail, and if that is not appropriate, then the first ‘step’ is taken - which is conditional bail, and only if conditional bail is not appropriate can the final step be taken and the defendant remanded into custody.

Under s 4 of the Bail Act 1976, there is a presumption that bail will be granted to the following types of defendants (unless one or more exceptions apply):

(a) all defendants prior to conviction;
(b) defendants who have been convicted if their case has been adjourned for the court to obtain reports before sentencing; and
(c) defendants who are appearing before the court for breach of a community sentence.

Question 2

Application to Remand a Defendant into Custody (pre­ conviction) - who does the presumption in favour of bail not apply to?

Answer 2

To refuse bail, the court has to be satisfied that there are substantial grounds for believing that the consequences specified below would occur.

The presumption in favour of bail does not apply to defendants:

(a) who have been committed to the Crown Court for sentence (see Chapter 6); or
(b) who are appealing against conviction or sentence (see Chapter 12).

The only other limitation on the presumption that bail will be granted is in respect of defendants charged with the most serious types of offence. Under s 25 of the Criminal Justice and Public Order Act 1994, if the defendant is charged with one of a number of specified offences or has previously been convicted of any of these specified offences, a court may grant bail to that defendant only if exceptional circumstances exist. The specified offences are:

(a) murder
(b) attempted murder
(c) manslaughter
(d) rape
(e) attempted rape
(f) a number of other serious sexual offences

Where a defendant is charged with murder and makes an application for bail, s 115 of the Coroners and Justice Act 2009 (which has amended the power in s 25 of the Criminal Justice and Public Order Act 1994) states that only a Crown Court judge may grant bail. The magistrates’ court must transfer the defendant to the Crown Court (in custody). A Crown Court judge must then, within 48 hours, make a decision as to whether to grant bail. Section 114(2) of the Coroners and Justice Act 2009 provides that bail may not be granted, in these circumstances, unless the court is of the opinion that:

there is no significant risk of the defendant committing, whilst on bail, an offence likely to cause physical or mental injury to another.

If the defendant has tested positive to class A drug use under the Misuse of Drugs Act 1971, or the court is satisfied that the defendant’s offending is due to their drug dependency, and the defendant refuses to undergo an assessment or follow-up treatment for their dependency.

Question 3

Rebutting the presumption in favour of bail - no realistic prospect of custody.

Answer 3

There is a restriction on the exceptions applying in relation to bail in proceedings where:

(a) the defendant has attained the age of 18;

(b) the defendant has not been convicted of an offence in those proceedings; and

(c) it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence in the proceedings.

In such circumstances, a magistrates’ court will not have power to remand a defendant in custody before his case is dealt with.

Question 4

Offences triable only on indictment and either-way imprisonable offences - exceptions to the right of bail.

Answer 4

1. (1) The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would:

(a) fail to surrender to custody, or
(b) commit an offence while on bail, or
(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

2. The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause—

(a)physical or mental injury to an associated person; or

(b)an associated person to fear physical or mental injury.

3. The defendant need not be granted bail if—

(a)the offence is an indictable offence or an offence triable either way, and

(b)it appears to the court that the defendant was on bail in criminal proceedings on the date of the offence

4. The defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for their own protection or, if they are a child or young person, for their own welfare.
5. The defendant need not be granted bail where the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by this Part of this Schedule for want of time since the institution of the proceedings against them.
6. The defendant need not be granted bail if, having previously been released on bail in, or in connection with, the proceedings, the defendant has been arrested in pursuance of section 7.
7. If the defendant is charged with murder, the defendant may not be granted bail unless the court is of the opinion that there is no significant risk of the defendant committing, while on bail, an offence that would, or would be likely to, cause physical or mental injury to any person other than the defendant.
8. Where a case is adjourned for inquiries or a report, it is impracticable to complete inquiries or make a report without keeping the defendant in custody

Question 5

Summary-only imprisonable offences - exceptions to the right to bail

Answer 5

Section 52 of and Sch 12 to the Criminal Justice and Immigration Act (CJIA) 2008 have amended the law on bail in respect of summary-only imprisonable offences.

Bail for these offences may be refused only on one or more of the following grounds:

The following provisions of this Part apply to the defendant if—

1. The defendant need not be granted bail if—

(a)it appears to the court that, having been previously granted bail in criminal proceedings, he has failed to surrender to custody in accordance with his obligations under the grant of bail; and
(b)the court believes, in view of that failure, that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody.

2. The defendant need not be granted bail if—

(a)it appears to the court that the defendant was on bail in criminal proceedings on the date of the offence; and
(b)the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would commit an offence while on bail.

3. The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause—

(a)physical or mental injury to an associated persont; or
(b)an associated person to fear physical or mental injury.

4. The defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for his own protection or, if he is a child or young person, for his own welfare.
5. The defendant need not be granted bail if he is in custody in pursuance of a sentence of a court or a sentence imposed by an officer under the Armed Forces Act 2006.
6. The defendant need not be granted bail if —

(a)having been released on bail in or in connection with the proceedings for the offence, he has been arrested in pursuance of section 7 of this Act; and
(b)the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice (whether in relation to himself or any other person).

7. The defendant need not be granted bail where the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by this Part of this Schedule for want of time since the institution of the proceedings against him.

Question 6

Non-imprisionable offences - exceptons to the right of bail

Answer 6

Under Sch 1, Pt II to the Bail Act 1976, the court may refuse bail to a defendant charged with a non-imprisonable offence only if:

(a) The defendant has been convicted in the proceedings of an offence; AND having been previously granted bail in criminal proceedings, he has failed to surrender to custody; and the court believes, in view of that failure, that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody

(b) The defendant has been convicted in the proceedings of an offence ; AND has been arrested for failing to surrender or breach of bail conditions AND the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice (whether in relation to himself or any other person)

(c) The defendant has been arrested for failing to surrender or breach of bail conditions AND There aresubstantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause - (a) physical or mental injury to an associated person; or (b) an associated person to fear physical or mental injury. Associated person defined by Family Law Act – relatives, spouse/civil-partner, cohabitants or those in an intimate relationship of a significant duration

d. The defendant should be kept in custody for his own protection.

e. The defendant is a serving prisoner

Question 7

Application to Remand a Defendant into Custody (pre­ conviction) - ‘Paragraph 9’ factors - when deciding whether the legal grounds for withholding bail are present, the court is required to apply several factors to the facts of the offence

Answer 7

The following factors are considered:

(i) nature and the seriousness of the offence;
(ii) character, record, associates and community ties of the defendant;
(iii) bail record;
(iv) strength of the evidence;
(v) risk that the defendant would engage in conduct that would, or would be likely to, cause physical or mental injury to any other
person; and
(vi) any other relevant factor

Question 8

Further bail applications - While a court is under a duty to consider the grant of bail at each hearing after it has been refused, the defendant is prevented from making repeated applications.

Answer 8

If the court refuses the first application for bail, the defendant is only entitled to make one further application based on the same facts or legal arguments unless there is a change in circumstances.

Question 9

Application by the Prosecution to Appeal Against a Bail Decision - Where the prosecution unsuccessfully opposed the defendant being granted bail the prosecution has the right to appeal against the decision to grant bail to a Crown Court judge.

Answer 9

Essentially the main requirements contain three sets of deadlines to follow:
* Oral notice must be given by the prosecutor at the end of the hearing during which the
court granted bail; and before the defendant is released from custody.
* This notice must be confirmed in writing and served on the defendant not more than
2 hours after telling the court of the decision to appeal.
* The Crown Court must hear the appeal as soon as possible and in any event not later than
2 business days after the appeal notice was served (and this takes place as a re-hearing).

The appeal may be made only if -
(a) the prosecution made representations that bail should not be granted; and
(b) the representations were made before it was granted

The Code for Crown Prosecutors provides that this power should be used ‘judiciously and responsibly’, and so the power to appeal is not to be used merely because the Crown Prosecutor disagrees with the decision: ‘it should only be used in cases of grave concern.’

Question 10

Appeal by defendant of bail application in the Crown Court.

Answer 10

A defendant who is refused bail by the magistrates’ court (or who has been refused an application to vary a bail condition) may appeal against this decision to the Crown Court provided the magistrates have issued the ‘certificate of full argument’ referred to in 7.5 above.

Although a defendant may make an appeal to the Crown Court after the magistrates have made an initial refusal of bail, for tactical reasons most defence solicitors will usually delay making an appeal to the Crown Court until they have made two full applications for bail before the magistrates’ court. Delaying an appeal until after the second full application before the magistrates maximises the number of potentially successful applications for bail which the defendant will be able to make.

The notice of application will specify the decision the defendant wants the Crown Court to make (eg to grant bail or vary a bail condition) and each offence the defendant has been charged with. The notice should also explain why the Crown Court should grant bail (ie set out the arguments for why bail should be granted or conditions varied) as well as explaining any further information or legal argument that has come to light, if any, since the magistrates’ decision. The notice should also set out any suggested conditions to bail.

Question 11

When can conditional bail be granted?

Answer 11

A court has the power to grant bail to a defendant subject to the defendant complying with one or more conditions that the court attaches to that bail. Section 3(6) of the Bail Act 1976 requires that such conditions must be necessary to:

(a) prevent the defendant from absconding;
(b) prevent the defendant committing a further offence whilst on bail;
(c) prevent the defendant interfering with witnesses or obstructing the course of justice;
(d) ensure that the defendant makes himself available for the purpose of obtaining medical or other reports;
(e) ensure that the defendant keeps an appointment with his solicitor; or
(f) ensure the defendant’s own protection or, in the case of a defendant aged under 18, for his own welfare or in his own interests.

Question 12

Bail conditions

Answer 12

Question 13

Reconsidering the Issue of Bail.

Answer 13

The court may reconsider the grant of bail on application by the prosecution.

This section applies in any of these cases—

(a)a magistrates’ court has granted bail in criminal proceedings in connection with an offence to which this section applies or proceedings for such an offence;
(b)a constable has granted bail in criminal proceedings in connection with proceedings for such an offence;
(c)a magistrates’ court or a constable has granted bail in connection with extradition proceedings.

(1)The court or the appropriate court in relation to the constable may, on application by the prosecutor for the decision to be reconsidered—

(a)vary the conditions of bail,
(b)impose conditions in respect of bail which has been granted unconditionally, or
(c)withhold bail.

(2)The offences to which this section applies are offences triable on indictment and offences triable either way.

(3)No application for the reconsideration of a decision under this section shall be made unless it is based on information which was not available to the court or constable when the decision was taken.

(4)Whether or not the person to whom the application relates appears before it, the magistrates’ court shall take the decision in accordance with section 4(1) (and Schedule 1) of this Act.

(5)Where the decision of the court on a reconsideration under this section is to withhold bail from the person to whom it was originally granted the court shall—

(a)if that person is before the court, remand him in custody, and
(b)if that person is not before the court, order him to surrender himself forthwith into the custody of the court.

Question 14

Breach of Conditions of Bail - Breach of bail conditions is not an offence nor is it a contempt of court, unless there is some additional feature.

Answer 14

The magistrates’ court before which the defendant is brought may remand him in custody or grant bail subject to the same or to different conditions if it is of the opinion that:

(i) the defendant is not likely to surrender to custody; or
(ii) that the defendant has broken or is likely to break any condition of bail.

If the court is not of that opinion, it shall grant the defendant bail subject to the same conditions (if any) as were originally imposed.

The magistrates will adopt a two-stage approach:

(a) The court will first determine if there has been a breach of the bail conditions previously imposed. In practice the defendant will often admit the breach because there will usually be compelling evidence available to prove this. However, if the defendant does not admit to breaching their bail conditions, the magistrates will have to decide whether or not there has been a breach. Although it is possible that oral evidence from both the police
officer who arrested the defendant and the defendant will be given to determine whether a breach has occurred, usually the court will rely on the witness statements from the prosecution and only the defendant is likely to give oral evidence.

(b) If the magistrates determine that there has been a breach of bail conditions, they will decide whether the defendant should be remanded in custody or on bail pending the next hearing (unless the case can be disposed of at that hearing). So, a defendant who has breached their bail conditions without good reason is likely to be remanded in custody, although the magistrates may be persuaded to make a further grant of bail but with more stringent conditions attached to it

Question 15

Application to Adduce a Defendant’s Bad Character

Answer 15

The court’s leave is required in order to adduce the bad character (antecedent history, or otherwise) of an accused, ss.101(a) - 101(g) outlines various gateways via, and only via, which the accused bad
character is admissible:

(a) all parties to the proceedings agree to the evidence being admissible,
(b) the evidence is adduced by the defendant or is given in answer to a question asked by him in cross-examination,
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defendant and the prosecution,
(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person’s character.

Question 16

When must the court exercise its power to oppose the adduction of the defendant’s bad character? S101(3) Criminal Justice Act 2003

Answer 16

Gateway D - , the court must not admit this evidence if on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it:

a. when the nature of a defendant’s previous convictions is such that the jury are likely to convict a defendant on the basis of these convictions alone, rather than examining the other evidence placed before them, or where the evidence of the previous convictions is more prejudicial than probative (see R v Bennabou above);

b. when the CPS seeks to adduce previous convictions to support a case which is otherwise weak (R v Hanson, Gilmore & Pickstone [2005] Crim LR 787);

c. when the defendant’s previous convictions are ‘spent’.

absolute discharge None
conditional discharge None
fine 1 year
community order 1 year
custodial sentence up to 6 months 2 years
custodial sentence between 6 and 30 months 4 years
custodial sentence between 30 months and 4 years 7 years
custodial sentence over 4 years never spent

Gateway G - As with gateway (d), the court must exclude evidence that would otherwise be admitted under
this gateway if, on an application by the defendant, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it

Question 17

Submission of no case to answer

Answer 17

1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty - the judge will stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.

(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.

(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”

Limb 1; no evidence upon which the jury could convict

Limb 2: There is some evidence, but it is so poor that it would be unsafe to leave it to the jury.

References a jury but equally applies to the magistrates

Question 18

Security?

Bail condition

Answer 18

used for absconding

The defendant will be required to deposit a sum of money (or goods) with the court. If the defendant
fails to attend court to answer their bail, they will forfeit the security they have given.

Question 19

Reporting to a police station?

Bail condition

Answer 19

Absconding and committing offences on bail

The court orders the defendant to report to their local police station on a regular basis (on specified day(s) and time) so the police may ensure that the defendant remains in the local area

Question 20

Residence

Bail condition

Answer 20

Absconding and committing offences on bail

The court requires the defendant to reside at a specified address. The police will often check that such a condition is being complied with by visiting the address late at night or early in the morning.

Question 21

Curfew

Bail condition

Answer 21

Committing offences on bail

The court requires a defendant to remain at their place of residence between certain specified hours (for example, between 8 pm and 7 am). The police may visit the residence during these hours to check that the defendant is there.

To support conditions of residence and curfew, the court may order that the defendant be electronically
monitored (commonly referred to as ‘tagging’).

Question 22

Non-communication with prosecution witnesses

Bail condition

Answer 22

Committing offences on bail and interfering with a witness

This condition not only covers direct face-to-face contact with the witnesses, but also indirect contact such as through a third party or contacting the witnesses by telephone or in writing or through any other means such as social media.

Question 23

Restriction on entering specified areas

Bail condition

Answer 23

Committing offences on bail and interfering with a witness

This prevents the defendant from entering a geographical area or town, for example where a prosecution witness resides, or where the defendant habitually commits offences in the same place or type of place, such as theft from a shopping centre or committing assaults in a city centre.

Question 24

Attending appointments with his solicitor or the Probation Service

Bail condition

Answer 24

Requires a defendant to keep in regular touch with his solicitor to ensure that the case is not delayed
because the defendant has failed to provide their solicitor with prompt instructions

Question 25

Surrender of passport

Bail condition

Answer 25

Absconding

Requires a defendant to surrender their passport.

Only likely to be appropriate in serious cases where the defendant is known to have substantial financial assets or criminal contacts outside the UK.

Question 26

Sureties

Bail condition

Answer 26

Absconding

A surety is a person who enters into what is termed a recognisance’ of money and is under an obligation
to use every reasonable effort to ensure that the defendant attends court. If the defendant fails to answer their bail at the next hearing, the court must declare the immediate and automatic forfeiture of the recognisance. The court will order the surety to appear before the court to explain why they should not pay over the sum. The
court will then determine whether some or all of the surety should be paid.

A court is unlikely to accept as a surety a person who has a criminal record, who lives a long distance from
the defendant or who has no financial means. As a matter of professional conduct, a solicitor should never stand surety for a defendant.

Question 27

Gateway (c) – it is important explanatory evidence

Answer 27

Only the prosecution may adduce evidence of the defendant’s bad character under gateway
(c). The gateway is, however, likely to be used only in limited circumstances. Evidence is important explanatory evidence if:
(a) without it, the magistrates or jury would find it impossible or difficult properly to
understand the case; and
(b) the value of the evidence for understanding the case as a whole is substantial (CJA 2003, s 102) (‘substantial’ in this context is likely to mean more than merely trivial or marginal).

Case law does make it clear that where the evidence is clearly understandable without evidence of bad character, it should not be admitted (see for example R v Davis (2008) 172 JP 358 and R v Broome [2012] EWCA Crim 2879)

Question 28

Gateway (d) – it is relevant to an important matter in issue between the defendant and the prosecution

Answer 28

In practice this is by far the most important gateway relied on by the prosecution. Important matters in issue between the defendant and prosecution include:

(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged (except where his having such propensity makes it no more likely that he is guilty of the offence); and

(b) the question whether the defendant has a propensity to be untruthful (except where it is not suggested that the defendant’s case is untruthful in any respect) (CJA 2003, s 103(1)).

Question 29

Gateway D - Propensity to commit an offence of the kind charged

Answer 29

Section 103(2) of the CJA 2003 states that:

A defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of:

(a) an offence of the same description as the one with which he is charged, or
(b) an offence of the same category as the one with which he is charged (theft charges or sexual offences against U16).

Even if an earlier offence is not of the same description or in the same category as the offence charged, evidence of the defendant’s conviction for the earlier offence may still be admissible under this gateway if there are significant factual similarities between the offences, since this would fall within the definition of having a propensity to commit offences of the kind with which the defendant is charged.

R v Hanson Guidelines:

Three questions need to be considered should the CPS seek to adduce evidence of the defendant’s bad character under this part of gateway (d):

(i) Does the defendant’s history of offending show a propensity to commit offences?
(ii) If so, does that propensity make it more likely that the defendant committed the current offence?
(iii) If so, is it just to rely on convictions of the same description or category, having in mind the overriding principle that proceedings must be fair?

(b) Offences which can be relied upon by the CPS to show this propensity may go beyond offences of the same description or of the same category.

(c) The fewer the number of previous convictions the defendant has, the less likely it is that propensity will be established. If the defendant has only one previous conviction of the same description or category, this is unlikely to show propensity unless there are distinguishing circumstances or a tendency towards unusual behaviour. The Court gave examples of unusual behaviour as including fire starting and the sexual abuse of children.

Question 30

Gateway D - Propensity to be untruthful

Answer 30

The CPS may also place before the court evidence of a defendant’s previous convictions to show that the defendant has a propensity to be untruthful and therefore that evidence given by the defendant at trial may lack credibility. The CPS will be allowed to do this only if it is suggested that the defendant’s case is in any way untruthful (s 103(1)(b)).

In R v Hanson, Gilmore & Pickstone, the Court of Appeal held that a defendant’s previous convictions will not be admissible to show that the defendant has a propensity to be untruthful unless:

(a) the manner in which the previous offence was committed demonstrates that the defendant has such a propensity (because they had made false representations) need active disception like fraud by false rep or perjury; or

(b) the defendant pleaded not guilty to the earlier offence but was convicted following a trial at which the defendant testified and was not believed.

Question 31

Challening admissibility under Gateway D?

Answer 31

(a) Arguing that the previous convictions do not actually demonstrate the relevant propensity and so do not satisfy gateway (d). For example:

(i) How many convictions does the defendant have? One conviction is unlikely to show a propensity.
(ii) If the previous convictions are being adduced to show a propensity to commit offences of the same kind:

– do the factual circumstances of the previous convictions differ from the facts of the current offence;
– would it be unjust to rely on them given the time which has elapsed since they occurred (s 103(3)); or
– does the propensity make it no more likely that the defendant is guilty of the offence?

(iii) If the previous convictions are being adduced to show a propensity to be untruthful, is it not suggested that the defendant’s case is in any way untruthful?

(b) If the previous convictions do show the relevant propensity, can the court be persuaded to exercise its power under s 101(3) to exclude the convictions? Arguments that may be raised include:

(i) Would the convictions be more prejudicial than probative? Is there a danger that the defendant would be convicted on the basis of their previous convictions alone, due either to the extent or to the nature of such convictions?
(ii) Are the convictions being used to support a prosecution case that is otherwise weak?
(iii) Are the previous convictions spent?

Question 32

Gateway E?

Answer 32

– it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant.

This gateway may be used by one defendant to admit evidence of another defendant’s bad
character. It cannot be used by the CPS

A co-defendant is likely to want to admit evidence of a defendant’s bad character to demonstrate that the other defendant has a propensity to be untruthful (and thus to undermine the credibility of the evidence given by that defendant), or to show that the other defendant has a propensity to commit the kind of offence with which they have both been charged (thereby suggesting that it is the other defendant, rather than the co-defendant, who
committed the offence).

1. Propensity to commit offences of the same kind
2. Propensity to be untruthful

Section 104(1) of the CJA 2003 states:
(1) Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence.

This part of the gateway is most relevant where the defendants enter into what is called a ‘cutthroat’ defence. This occurs when there are two (or more) defendants jointly charged with an offence, and each defendant pleads not guilty and blames the other(s) as having committed the offence. In such a situation, it will be an advantage for a co-defendant to be able to adduce evidence of his fellow defendant’s previous convictions, in order to undermine the credibility of that defendant’s evidence and to suggest that their version of events is the more
credible

Question 33

Gateway F?

Answer 33

it is evidence to correct a false impression given by the defendant.

Only the prosecution may adduce evidence of a defendant’s bad character under gateway (f).

A defendant will give a false impression ‘if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant’

A defendant will be treated as being responsible for making such an assertion if the assertion is:

(a) made by the defendant in the proceedings (for example, when giving evidence in the witness box, or in a defence statement served on the CPS);
(b) made by the defendant when being questioned under caution by the police before charge, or on being charged;
(c) made by a witness called by the defendant;
(d) made by any witness in cross-examination in response to a question asked by the defendant that is intended to elicit it; or
(e) made by any person out of court, and the defendant adduces evidence of it in the proceedings (CJA 2003, s 105(2)).

Question 34

Gateway G?

Answer 34

the defendant has made an attack on another person’s character

Only the prosecution may adduce evidence of a defendant’s previous convictions under gateway (g)

Evidence attacking another person’s character is evidence to the effect that the other person has:

(a) committed an offence (whether a different offence from the one with which the defendant is charged or the same one); or
(b) behaved, or is disposed to behave, in a reprehensible way (CJA 2003, s 106(2)).

Although the courts are likely to find that a defendant who makes an emphatic denial of guilt has not attacked the character of another, it is likely that the courts will give a very wide interpretation to this gateway.

Question 35

Challenging the admissibility of disputed visual identification evidence

Answer 35

Section 78 of PACE 1984 provides the court with a discretion to exclude evidence upon which the prosecution seek to rely if ‘the admission of such evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it’.

Breaches of Code D:

(a) at a video identification procedure, the police may breach the requirement that the other images shown to the witness must resemble the suspect in age, general appearance and position in life (Code D, Annex A, para 2);

(b) at an identification parade, the police may breach the requirement that the witnesses attending the parade are segregated both from each other and from the suspect before and after the parade (Code D, Annex B, para 14);

(c) a breach of the Codes of Practice will occur if, whilst the defendant was detained at the police station, the police failed to hold an identification procedure when such a procedure should have been held pursuant to para 3.12 of Code D

Question 36

Turnbull Guidelines

Answer 36

Special guidelines apply when a witness who gives evidence for the CPS visually identifies the defendant as the person who committed the crime, and the defendant disputes that identification. The guidelines were laid down in the case of R v Turnbull [1977] QB 224.

A witness will identify the defendant as the person who committed the offence if:
(a) the witness picks out the defendant informally; or
(b) the witness identifies the defendant at a formal identification procedure at the police
station; or
(c) the witness claims to recognise the defendant as someone previously known to them.

In assessing the quality of this evidence, the trial judge will take into account a number of factors, including the following:

(a) The length of the observation – did the witness see this person for a lengthy period of ime, or did they just get a fleeting glimpse?
(b) Distance – was the witness close to this person, or were they some distance away?
(c) Lighting – did the observation happen in daylight or at night? If at night, was there any street lighting? If the observation occurred inside a building, was the building well-lit or was it dark?
(d) Conditions – if the sighting was outside, what were the weather conditions at the time? Was it a clear day, or was it raining or foggy? How many other people were present at the time and did they obstruct the witness’s view? Did anything else obstruct the view? If the sighting was in a building such as a pub, did any part of the building (such as a pillar) obstruct the view?
(e) How much of the suspect’s face did the witness actually see – did the witness see all of the suspect’s face, or merely part of it? Can the witness give a clear description of the
suspect’s face, or is the description vague and lacking detail?
(f) Whether the person identified was someone who was already known to the witness (a recognition case), or someone the witness had never seen before.
(g) How closely does the original description given by the witness to the police match the actual physical appearance of the defendant? Are there any discrepancies in height,
build, hair colour/length or age?

Good quality? Allow and give turnbull warning.
Poor but supported? Turn bull arning plus direct jury to issues in evidence
Poor and unspported? Direct jury to acquit

Question 37

Inferences under s 34 CJPOA 1994

Answer 37

(1) Where in any proceedings against a person for an offence, evidence is given that the
accused:
(a) at any time before he was charged with the offence, on being questioned under
caution by a constable trying to discover whether or by whom the offence had
been committed, failed to mention any fact relied on in his defence in those
proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted
for it, failed to mention any such fact being a fact, which in the circumstances existing at the time the accused could reasonably have been expected to mention … the court or jury … may draw such inferences from the failure as appear proper

In R v Argent [1997] 2 Cr App R 27, the Court of Appeal said that certain conditions had to be satisfied before adverse inferences could be drawn from a defendant’s silence in police interview under s 34(1)(a):
(a) the interview had to be an interview under caution;
(b) the defendant had to fail to mention any fact later relied on in his defence at trial;
(c) the failure to mention this fact had to occur before the defendant was charged;
(d) the questioning of the defendant at the interview in which the defendant failed to mention the fact had to be directed to trying to discover whether or by whom the alleged offence had been committed; and
(e) the fact which the defendant failed to mention had to be a fact which, in the
circumstances existing at the time, the defendant could reasonably have been expected
to mention when questioned

Question 38

Inferences under s 36 CJPOA 1994

Answer 38

Section 36 allows the court or jury to draw an adverse inference if, when interviewed by the police, the defendant failed to account for the presence of an object, substance or mark.
Section 36 provides:
(1) Where:
(a) a person is arrested by a constable, and there is:
(i) on his person; or
(ii) in or on his clothing or footwear; or
(iii) otherwise in his possession; or
(iv) in any place in which he is at the time of his arrest, any object, substance or mark, or there is any mark on any such object; and
(b) that or another constable investigating the case reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable; and
(c) the constable informs the person arrested that he so believes, and requests
him to account for the presence of the object, substance or mark; and
(d) the person fails or refuses to do so, then … the court or jury … may draw such inferences from the failure or refusal as appear proper

Question 39

Inferences under s 37 CJPOA 1994

Answer 39

Section 37 allows the court to draw an adverse inference if, when questioned at the police station, the defendant failed to account for his presence at a particular place at or about the time the offence was committed.

Section 37 provides:
(1) Where:
(a) a person arrested by a constable was found by him at a place at or about
the time the offence for which he was arrested is alleged to have been
committed; and
(b) that or another constable investigating the offence reasonably believes that
the presence of the person at that place and at that time may be attributed
to his participation in the commission of the offence; and
(c) the constable informs the person that he so believes, and requests him to
account for that presence; and
(d) the person fails or refuses to do so, then … the court or jury … may draw such inferences from the failure or refusal as appear proper

So as with s 36, inferences may be drawn under s 37 only if a suspect has been given the ‘special caution’.

Question 40

Silence at trial and inferences under s 35 CJPOA

Answer 40

Section 35(2) provides that:
the court shall, at the conclusion of the evidence for the prosecution, satisfy itself …
that the accused is aware that the stage has been reached at which evidence can
be given for the defence and that he can, if he wishes, give evidence and that, if
he chooses not to give evidence, or having been sworn, without good cause refuses
to answer any question, it will be permissible for the court or jury to draw such
inferences as appear proper from his failure to give evidence or his refusal, without
good cause, to answer any question.

The effect of s 35 is that, if the prosecution has raised issues which call for an explanation from the defendant, should the defendant then fail to give evidence, the court will be entitled to infer from that failure that the defendant has either no explanation, or no explanation that will stand up to cross-examination

In the combined appeal of R v Cowan; R v Gayle; R v Ricciardy [1995] 4 All ER 939, the
Court of Appeal stated that the court had to take into account the following matters when considering the application of s 35:
(a) the burden of proof remains on the prosecution throughout;
(b) the defendant is entitled to remain silent;
(c) before drawing an adverse inference from the defendant’s silence, the court had to be satisfied that there was a case to answer on the prosecution evidence;
(d) an adverse inference from the defendant’s failure to give evidence cannot on its own
prove guilt; and
(e) no adverse inference could be drawn unless the only sensible explanation for the
defendant’s silence was that he had no answer to the case against him, or none that
could have stood up to cross-examination

Unlike ss 34, 36 and 37, there is also a limited statutory exception to the drawing of adverse inferences which can be found at s 35(1)(b). This provides the court with a discretion to direct that an adverse inference is not drawn where it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence. (R v Friend)

Question 41

Hearsay Admissible in the Interests of Justice – s114(1)(d)

Answer 41

• Think of this as the “catch all”, allowing the Court to admit evidence that would not otherwise be admissible
• Court has VERY WIDE discretion for interests of justice
• Court must have regard to factors in 114(2):
  o (a) Probative value of statement in relation to a matter in issue or how valuable it is in understanding other evidence in case;
  o (b) What other evidence has been or can be given on the matter/evidence mentioned above;
  o (c) How important the matter/evidence mentioned above is in case as a whole;
  o (d) Circumstances in which statement was made;
  o (e) How reliable the maker appears to be;
  o (f) How reliable the evidence of the making of the statement appears to me;
  o (g) Can oral evidence of matter be given? If not, why?;
  o (h) Difficulty in challenging the statement;
  o (i) What extent would difficulty challenging statement prejudice party facing it
• Maher v DPP 2006: someone saw road accident, left note giving reg number, partner saw note called police, police made record of reg, note lost. The record was hearsay evidence, admitted under interests of justice under 114(1)(d). Nothing to suggest not in interests of justice, evidence substantial and reliable.

Question 41

Hearsay Admissible under Preserved Common Law Exception – s114(1)(b)

Answer 41

• S118(1) of CJA 2003 has a few common law exceptions against hearsay evidence reserved, the most important being:
  o (a) Evidence of confession or a mixed statement;
  o (b) Evidence admitted as part of Res Gestae.

Confession Evidence

o Pre CJA 2003, common law exception that evidence D had made a confession was admissible as exception to rule excluding hearsay evidence
o Codified in PACE 1984 s76(1)
o Subsequently preserved in 118(1) of CJA 2003
o VERY IMPORTANT

Evidence admitted as part of res gestae

o Common law principle of evidence being admitted as part of res gestate means any statement made at the time of event will be admissible as the spontaneity of the statement shows it has not been concocted
o R v Andrews 1987 – man fatally stabbed named his 2 attackers soon after he was attacked. It was admissible as hearsay evidence under the res gestae principle. Lord Ackner set out the following criteria for the admission of res gestae hearsay evidence (known as Ackner criteria):

 Can the possibility of concoction or distortion be disregarded?
 Consider the circumstances of the statement, was it so dramatic or unusual as to dominate the victims brain, prompting an instinctual reaction, not giving him the opportunity to reflect;
 For sufficient spontaneity, must be sufficiently linked with the event, the mind of the victim must still be controlled by the event;
 Apart from time, there may be special features of a case related to distortion;
 Possibility of error in facts of statement: if only the weakness of human recollection is relied upon, this is a fact for the jury to decide not a point on admissibility.

Question 42

Procedure for Admitting Hearsay Evidence

Answer 42

• Part 20 of the CrimPR apply to some of the grounds above
• Under Part 20, a party seeking to rely on hearsay, or a party objecting to another party’s application, must give notice of its intention to the Court and the other parties.
• Notice given in prescribed forms
• In standard directions, court will impose time limits (for both courts) to adduce hearsay evidence at trial.
• Relevant time limits in part 20
• Part 20.5 allows court to dispense with notice requirement, to allow notice to be given orally, and to shorten or extend limit
• Only following grounds apply to Part 20:
  o (a) interest of justice – s114(1)(d);
  o Witness unavailable – s116;
  o Evidence is multiple hearsay – s121; or
  o Evidence is s117 written witness statement for use in criminal proceedings.

Question 42

Grounds for submitting hearsay evidence?

Answer 42

• Section 114 CJA 2003, statement not made in oral evidence is admissible as evidence only if:
  o Statutory exceptions (in CJA and otherwise);
  o Common law (preserved by section 118);
  o All parties to proceedings agree
  o Court is satisfied interests of justice to admit evidence.
• Essentially there are four different ways hearsay can be admitted. By the statutory provisions of the CJA, which will be set out in turn below, by the common law exemptions (that have been preserved in s 118 of the CJA), by agreement of the parties or by the Court’s satisfaction that its in the interests of justice. Perhaps the last can be considered a bit of a catch all.

Hearsay Admissible under Statutory Provisions – s114(1)(a)
Provisions under the CJA:
1. Witness is unavailable – s116 CJA 2003
2. Business & other documents – s117 CJA 2003
3. Previous inconsistent statements of a witness – s119 CJA 2003
4. Previous consistent statements of a witness – s120 CJA 2003
5. Statements for a witness which are not in dispute – CJA 1967 s9; and
6. Formal admissions – s10 CJA 1967

Question 42

S116 – Witness unable to attend Court

Answer 42

o Any statement not made in oral evidence is admissible if:
 It is first hand hearsay (would be admissible in trial if given in oral evidence);
 The person who made the statement is identified to the court’s satisfaction; and
 One of the five conditions is met.
o 5 conditions:
 (a)Person is dead;
 (b) Unfit to be witness due to physical or mental condition;
 (c) Not in UK and not reasonably practicable to secure attendance;
 (d) Person can not be located and all steps taken that are reasonably practicable to carry out have been taken;
 (e) Not attending due to fear and have LEAVE FROM COURT to submit WS as evidence.
o S116(2)(e), court will only give leave if it is in interests of justice taking into account risk of unfairness, how difficult it would be to challenge the statement and the fact special measures direction could have been given.

Question 42

S117 – Business and docs prepared for criminal proceedings

Answer 42

o S117 states that in criminal proceedings a statement contained in a document is admissible as evidence of the matter stated if:
 Oral evidence in proceedings would be evidence of the matter;
 Requirements of subsection 2 (below) are met;
 Requirements of subsection 5 are satisfied for documents prepared for purpose of criminal proceedings (below).

Business Documents:
o S117 (2) requires:
 Document made or received by person in course of trade, business, occupation (paid or unpaid);
 Person who supplied info in the WS must have had (or reasonably supposed to have had) personal knowledge of the matters dealt with; and
 All people document passed through was in course of trade, business paid or unpaid.

o S117 business docs – first hand and multiple hearsay admissible if only passed through people in course of business
o Usually used for business records

Statements prepared for use in criminal proceedings:

o S117(5) – Statements prepared for use in criminal proceedings:
 If prepared for pending or contemplated criminal proceedings, will be admissible only if s117(5) conditions ALSO satisfied:
* Factors in 116(2) are met i.e dead, can’t be located etc; or
* Witness cannot be reasonably expected to have any recollection of thr matters dealt with in statement (regard to length of time).

Question 43

Confession evidence

Answer 43

• S82(1) PACE – any statement, wholly or partly, adverse to the person who made it (to authority, or otherwise, words or otherwise)
• Only needs to be in anyway detrimental
• S76(1) PACE:
  o In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
• Admissible at trial to prove truth of its contents (i.e prove D’s guilty)
• There is an exception to hearsay rule.
• Examples:
  o Confession transcript of audibly recorded interview;
  o Officer repeating confession at arrest in trial;
  o Someone admit guilts to their friend, friend puts it in statement and repeats in oral statement.
• MIXED STATEMENT: sometimes statement favourable to D and detrimental. Both parts of statement will be admissible under s76(1)

Question 44

Challenging Admissibility under s76 Pace

Answer 44

• If did make statement, try exclude under s76(2). 2 grounds:
  o (a) oppression;
  (b) anything said or done made confession unreliable.
  If oppression or unreliable, CPS must prove beyond reasonable doubt confession was not obtained through oppression or unreliable (even if court thinks confession is true).

Opression
o ‘torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)’- s76(8)
o In R v Paris 1993 (example of oppression) – victim bullied and hectored into confession. Court of Appeal said that, other than actual physical violence, it would find it hard to think of a more hostile and intimidating approach adopted by interviewing officers

Unreliability
o More common
o Don’t need deliberate misconduct of police
o Usually breach of PACE Code C, e.g
 Denying refreshments or rest so not it fit state, especially if have health condition
 Inducement to confess
 Misrepresenting strength of case
 Inappropriate questioning, repeating Qs, badgering
 Questing when know suspect not in fit state e.g drunk, drugs, medical condition
 Threatening e.g telling them they will be kept at station until make confession
 Common one – denied access to legal advice (Code C & s58 PACE). Not automatic – need to be causal link between no legal advice and confession. Difficult if hard criminal

Question 45

Challenging Admissibility under s78 Pace

Answer 45

• S76 = only confession evidence did make but due to oppression or unreliable. Duty of court to exclude unless proved beyond reasonable doubt.
• S78 – general DISCRETION to exclude prosecution evidence if “the court considers that the admission of the confession would have such an adverse effect on the fairness of proceedings that it ought not to be admitted”. But can include confession evidence.
• S78 used if deny making confession, or admits making confession but that it is untrue.

Accepts confession

o Can argue breach of PACE and or Codes – court can use discretion to exclude but must be significant and substantial – R v Keenan 1990
o Often when suspect denied legal advice
o R v Walsh – judge said in most cases when suspect has been denied legal advice in breach of s58 or Code C, it would lead to court using discretion.
o Overlap between court’s duty under s76(2) & s78 discretion. Remember, under s76 the court may only exclude evidence for no legal advice if causal link i.e probs not if hard criminal.

Denies making confession

o E.g if made outside police station then denies
o Likely to be excluded if made outside police station and Code C provisions breach:
 Not making accurate record of statement
 Failing to give D opportunity to view record and sign as accurate, or to dispute accuracy
 Failing to put admission/confession to D at start of interview – need to confirm or deny on record.

Question 46

Adducing BC Evidence – Not Defendant

Answer 46

• Apply to anyone not D e.g any witness, complainant, not a witness, CPS and D can rely
• Limited grounds
• S100(1) CJA, admissible only if:
  o (a) Important as explanatory evidence (a bit like grounds 101(c) – impossible to understand without it, and value for understanding as case as whole is substantial. Not used very often.);
  o (b) Substantial probative value in relation to matter which:
   Matter in issue in proceedings;
   Substantial importance in the context of the case as a whole; or
  o (C)All parties agree.
  o (b), substantial probative value means the evidence has value of giving truth, or disproving either 1. Particular issue in the proceedings or 2. Substantial importance of the case as a whole. – so either it has substantive probative value for 1 issue, or it is substantially important to the whole case.

Question 47

S100(1)(a) Important explanatory evidence

Answer 47

o LEAVE OF COURT require to adduce BCE of anyone not defendant under under s100(1)(a) (explanatory evidence)
o In practice, not used often
o Same conditions as 101(c):
 can’t understand evidence in case without it; and
 value for understanding case is substantial.
o Think of example where D adduces evidence that complainant assaulted her baby previously, and he only pulled her hair because he thought she was going to do it again.

Question 48

S100(1)(b) Substantive probative value

Answer 48

o LEAVE OF COURT require to adduce BCE of anyone not defendant under s100(1)(b) (explanatory evidence)
o Usually for Defendant adducing CPS witness bad character evidence to try and prove:
 Witness fabricated evidence; or
 Witness actually carried out offence or has engaged in misconduct related to offence.
o Misconduct related – propensity to commit similar crime
R v Weir [2005]

o Evidence of witness adduced under 100(1)(b) can be used to show to things:
 The witness themselves are guilty of the offence, or engaged in misconduct that is relevant; or
 Evidence lacks credibility due to propensity to be untruthful.
o When considering the probative value, which must be substantial, of the evidence the court must consider:
 The nature and number of the events, or things, which the evidence relates; and
 How long ago they happened or existed. S100(3)
o S100(1)(b) usually used for witnesses, but can be non witnesses too, i.e victim of a murder

Credibility as a witness

o Previous convictions of untruthfulness, perjury, misrep etc
o Convictions, pleaded not guilty, trial, not believed, convicted. Same as 101(1)(d)
o Unlike 101(d)&(e), for credibility of a witness, dishonesty offences like burglary may be admissible under 100(1)(b), even though they aren’t untruthful.
o Convictions depend on nature, number and age.

Misconduct in connection with current offence

o Claiming, usually complaint’s, previous misconduct has probative value to current offence
o Previous misconduct must have similarity between that misconduct and alleged misconduct in connection with current offence
o Example, D on trial for punching complainant, however, D alleges that complaint attacked him. Complainant has previous convictions for common assault, therefore, of adduced, it was more likely they were the aggressor.
o Court must have regard to the similarities and differences between the previous misconduct and the alleged misconduct.
R v Bovell [2005]
Judge could admit evidence of previous convictions relied upon to show the propensity of a prosecution witness to commit a particular type of offence if the defendant could show sufficient factual similarities between the earlier offence and the current incident
Guilty of committing the current offence
o Evidence of another person’s misconduct is probative because it is suggested they committed the offence
o court will have regard to the extent to which the evidence shows or tends to show that the same person was responsible each time (s 100(3)(d))
o Similar to above, but alleging they committed the offence, not just misconduct in relation to offence.
o Not going to be adduced if markedly different facts to previous case – case law

Question 49

S 78 PACE – Exclusion of Evidence

Answer 49

• court has a discretion to exclude improperly or unfairly obtained prosecution evidence if it appears to the Court admission of evidence would have such an adverse effect on fairness of proceedings court could not admit it.
• Discretion
• Usually used when something unreliable about evidence which police obtained and unfair to allow CPS to use it
• If relevant to charge, and way in which it was obtained does not cast doubt on reliability, s78 unlikely to be used i.e breach of pace code alone not enough – needs to effect reliability of evidence
• Breaches of PACE or Codes of Practice must be SIGNIFICANT AND SUBSTANTIAL – R v Keenan 1990
• Common examples of prosecution evidence which a defendant may seek to persuade a court to exclude under s 78 are:
  o (a) evidence obtained following an illegal search
  o (b) identification evidence
  o (c) confession evidence
  o (d) evidence obtained from the use of covert listening and surveillance devices and (e) evidence obtained in ‘undercover’ police operations

Question 50

“Entrapment” – Abuse of Process

Answer 50

• Entrapment by police isn’t a thing but falls under scope of s78, invite court to exercise power on basis of abuse of process to allow CPS to continue
• Case of R v Loosley 2000 – officers incited man to supply heroin. Evidence excluded. Proceedings stayed on abuse of process.
• Abuse of Process guidelines from R v Loosley:
  o Nature of investigation – more intrusive harder should be scrutinised;
  o Nature of offence – some offences can only be cracked covertly i.e drug trafficking
  o Nature of police involvement – how behaved, how persistent, were they a normal customer or did they badger
  o D’s crim record – evidence of recent similar involvement?
  o Level and extend of supervision of undercover officers.

Question 51

Plea in mitigation steps

Answer 51

1. Culpability
2. Degree of harm
3. Agg factors - why not much weight
4. Mitigating factors
5. Recommended sentence

Question 52

Closing argument - prosecution

Answer 52

1. Background. What has D accepted and denied. What evidence does D rely on?
2. Our evidence to support the charge in relation to the defendant’s denials. Include attack on D’s evidence.
3. Has D only accepted elements of offence where there is overwhelmin evidence?
4. Any similar convictions, are the facts similar or difference? Propensity to commit further offences / be untruthful.
5. Is it P’s burden of proof, have we met the standard of proof, are the legal tests satisfied?

Question 53

Closing argument - defendant

Answer 53

1. Burden and standard of proof on P
2. What evidence is disputed
3. What elements of offence must P prove
4. Sum up facts and D’s position
5. Tests for offence - how has this not been met
6. Tell court they must be sure of guilt and why they shouldn’t be
7. Invite court not to find guilty

Question 54

Test for dishonesty?

Answer 54

Ivey v Genting Casinos (UK) Ltd [2017]

The effect of this is that the magistrates or jury must:

(a) ascertain (subjectively) the actual state of the defendant’s knowledge or belief as to
the facts; and then
(b) determine whether their conduct was honest or dishonest by the (objective) standards of ordinary, decent people

Question 55

Submission of no case to answer

Answer 55

Galbraith 1981 case – test for case to answer.
2 limb test with such submission:

1. No evidence the alleged offence was committed by Defendant or
2. The evidence put forward by the prosecution could not form the basis of a conviction by the jury, if the jury were properly direct. Second limb we are focusing on as it is my submission the evidence is so tenuous it would be unsafe to convict the Defendant on this evidence.

Question 56

What to call a magistrate

Answer 56

Sir / Madam

Question 57

What to call district judge in Mag Court

Answer 57

Judge

Question 58

Recorder or Circuit judge in CC

Answer 58

Your honour

Question 59

The Recorder of Liverpool / Central Criminal Court (Old Bailey)

Answer 59

My Lord / Lady

Question 60

High Court Judge - CC

Answer 60

My Lord / Lady

Question 61

Lord Justices of Appeal - CoA

Answer 61

My Lord / Lady

Question 62

Submissions on allocation

Answer 62

Either-way cases should be tried summarily unless:

(a) the outcome would clearly be a sentence in excess of the court’s powers for the
offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or

(b) for reasons of unusual legal, procedural or factual complexity, the case should be
tried in the Crown Court. This exception may apply in cases where a very substantial fine
is the likely sentence.

In cases with no factual or legal complications the court should bear in mind
its power to commit for sentence after a trial and may retain jurisdiction notwithstanding that the likely sentence might exceed its powers

Question 63

Overriding objective (criminal)?

Answer 63

Cases be dealt with justly