Advocacy - Key Test Flashcards
Visual ID - exclusion owing to poor quality
Court has discretion to exclude
Identify what evidence there is to support prosecution
Argue for/against strength of the evidence using:
A - Amount of time W saw
D- Distance from W to S
V- Visibility
O- Obstruction
K- S known to W
A- Any reason to remember
T - Time elapsed
E- Errors in W account of S
s78(1) PACE - Exclusion of unfair evidence
Court has discretion to exclude
- Demonstrate using the evidence that the admission of the evidence, and in consideration of the circumstances it was obtained, would lead to such an adverse impact on the fairness of proceedings that the court ought not admit it.
Visual ID - exclusion as improperly obtained
State that the Court discretion under s78 PACE
Identify breaches of PACE Code D:
- Failure to take into account reasonable objections to appearance of others in ID procedure
- Failure to keep witnesses away from suspect before ID
- Failure to keep witnesses apart during ID procedure
- Failing to warn that the suspect may not be shown at all
Exclusion of a confession
- Remind the court that once admissibility has been challenged it is for the prosecution to prove that the confession is not unreliable
- Court must exclude if prosecution fails
- Identify that the confession is relevant to a matter in issue between D and P and therefore admissible
- identify under what grounds the confession is sought to be excluded (oppression / unreliability)
- Demonstrate causation - How did the oppression/unreliability operate?
Exclusion of any evidence
Court has discretionary power to exclude evidence
Demonstrate that the evidence would have such an adverse impact on the fairness of the proceedings that the court ought not admit it
Admissibility of hearsay evidence
- Identify whether single or multiple hearsay
- For single hearsay it is inadmissible unless the following exceptions apply:
- Under statute
-By rule of law
- By agreement of the parties
- In the interests of justice - For multiple hearsay consider whether it is:
- Business document
- Consistent or inconsistent statement
- All parties agree
- In the interests of justice - Apply the relevant exception to the evidence
Admissibility of D’s bad character
- Is it evidence of, or of a disposition towards, misconduct, commission of offences, or other reprehensible behaviour outside of the facts of the offence? If yes, not admissible unless:
(7 gateways)
- All parties agree it is admissible
- It is adduced by the D
- It is important explanatory evidence
- It is relevant to a matter in issue between D and P
- It is of substantive probative value to a matter in issue between D and Co-D
- Correct false impression created by D
- D attacks another’s character
- If adduced under relevant to issue between D and P or under D attacks another’s character, the court must not admit if D argue that it would have such an adverse impact on the fairness of proceedings
Bail application
- Remind the court of the D’s right to bail. Court is permitted only to refuse bail if one or more of the exceptions apply AND there is a real prospect of a custodial sentence being imposed
- Do any of the exceptions apply? Fail to surrender, commit further offences, was on bail and charged with CC offence, harm an associated person, interfere with witnesses, otherwise obstruct justice
- Review the factors in deciding whether substantial grounds exist - consider: nature and seriousness of the offence, defendant’s character, defendant’s record of complying with bail conditions, strength of the evidence
- Consider whether any conditions could be used: residence, reporting, curfew, exclusion, no-contact tag etc
- Conclude on why bail should/should not be granted
Plea in mitigation
- Remind the court that all sentences should be proportionate to the seriousness of the offence
- Identify the starting point for sentence and the range of sentences available
- Consider the mitigating factors (lightly cover the aggravating factors)
- For multiple offences explain that the sentence should be concurrent
- Consider mitigating factors relating to the defendant
- Remind the court of the credit for guilty plea
- Propose an appropriate sentence range
Submission of no case to answer
Remind the court that the burden is on the prosecution to prove the D’s guilt, and to prove that all the elements of the offence are made out
Argue that the evidence is insufficient for any reasonable court to convict, either because the prosecution have failed to prove an element of the offence, or because the evidence adduced by the prosecution is so manifestly unreliable that no reasonable court could convict on it
Mode of trial - arguing that the court should accept jurisdiction
In deciding whether to accept jurisdiction, the court must consider the adequacy of its sentencing powers
Magistrates restricted to 6 months for a single offence, or 12 months for 2 or more either way offences
Go through the relevant sentencing guidelines and consider the starting point for sentence and the range that applies
Submit that the court’s sentencing powers are adequate and it should therefore accept jurisdiction
