Advocacy tests Flashcards
summary judgement application
Other side has no real prospect of success and no other compelling reason to go to trial
Exclude poor quality visual identification evidence
court has discretion under s78 PAE
(?) identify what other evidence there is to support prosecution
argue for/against the strength of ID evidence based on:
Amount of time the witness observed the suspect
Distance between witness and defendant
Visibility at the time (dark etc)
Obstruction between witness and defendant
Known - if def known to witness
Any special reason to remember the suspect
Time lapse between incident and ID procedure
Errors in witness’s first description of defendant’s appearance
if judge concludes evidence is weak and without any other support, should withdraw the case and enter an acquittal
Exclusion of visual identification evidence as improperly obtained
court has discretion to exclude evidence under s78 PACE: may exclude if admission would have an adverse effect on fairness
identify relevant breaches of ID procedure under Code D, including:
-taking into account appearance of others in the ID procedure: others must be similar in appearance and distinguishing features must be concealed
-keeping witnesses away from the suspect before and during procedure
-keeping witnesses apart during the procedure
-warning that the suspect might not be shown (doesn’t apply to group ID)
Exclusion of a confession
- remind court that once admissibility is challenged, it is for prosecution to prove beyond reasonable doubt that confession is not unreliable
- remind court that confession must be excluded if prosecution do not discharge this burden of proof under s76 PACE
Xxx3. Identify that confession is relevant to a matter in issue between prosecution and defence and therefore admissible
- Identify under which ground the confession is sought to be excluded and provide relevant details:
a) unreliability owing to things said or done to render it unreliable
b) unreliability owing to oppression - Demonstrate causation from the things said or done or oppression to the confession
Exclusion of any evidence
in addition to tests on visual ID/confession, court has general discretion to exclude prosecution evidence if having regard to all the circumstances, including circumstances in which evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it under s78 PACE
(can use this as additional argument or as a stand-alone)
Admissibility of hearsay evidence
- identify if it is multiple or single hearsay
- for single, hearsay inadmissible unless exception applies:
-under statute
-by rule of law
-by agreement of parties
-in the interests of justice - for multiple hearsay, admissible if:
-business document
-consistent or inconsistent statement
-all parties agree
-value of evidence so high that it is in the interest of justice - apply test from the relevant exception
When is hearsay evidence admissible by statute?
witness is unavailable because they are dead, unfit, outside the UK and not practicable to secure their attendance or unable to be found
business doc that was created or received in the course of trade or other business/profession, person who supplied the information might reasonably be supposed to have had personal knowledge of the matter and if info received by others, it was in the course of business/trade/occupation
statements were prepared for use in criminal proceedings and relevant person cannot be expected to recollect the matter
earlier consistent or inconsistent statements of a witness
expert evidence
confession
When is hearsay evidence admissible by rule of law?
statements a witness heard contemporaneously to the offence
statements preserved by res gestae (circumstances, person so emotionally overpowered that concoction can be disregarded, accompanying act that can only be evaluated in conjunction with the statement, relating to physical or mental state)
confessions or mixed statements
When is hearsay evidence admissible in the interest of justice?
court has discretion to adduce evidence that might not otherwise be admissible. when deciding if it’s in the interest of justice, must consider:
probative value
what other evidence could be given
how important it is in relation to the case as a whole
circumstances in which it was made
how reliable the maker of statement appears
whether oral evidence can be given on the matter
amount of difficulty in challenging the statement
extent of likely prejudice caused
7 gateways for admission of bad character evidence
all parties agree
adduced by defendant
important explanatory evidence (evidence is needed to properly understand other evidence in the case and its value to understanding case as a whole is substantial)
*relevant to important matter at issue between prosecution and defence (such as propensity to commit the/same type offence or propensity to be untruthful)
substantial probative value to an important matter in issue between co-def
corrects false impression given by the defendant
*defendant attacks anothers character
admissibility of defendant’s bad character
- is it evidence of, or a disposition towards, misconduct commission of offences, or other reprehensible behaviour outside of the facts of the offence?
if yes, it is not admissible unless it falls under 7 gateways to admission - if adduced under ‘important matter in issue between prosecution and defence’ or ‘defendant attacked another’s character’, the court MUST not admit it if the defence makes an application to exclude it and it appears to the court that admitting the evidence would have such an adverse effect on the fairness of proceedings that the court must not admit it
grounds for adducing non-defendant’s bad character evidence
all parties agree
important explanatory evidence
substantial probative value in relation to matter that is in issue in proceedings and is of substantial importance in context of the case as a whole
bail application
- remind court of the defendant’s right to bail: bail can only be refused if one of the exceptions to the right to bail apply AND there is a real prospect of custodial sentence
- consider whether any of the exceptions to the right to bail apply - these are usually whether there are substantial grounds to fear the defendant would fail to surrender, commit further offences on bail, interfere with witnesses or otherwise obstruct justice
- review the factors in deciding whether substantial grounds exist: for example, nature and seriousness of the offence, defendant’s character, defendant’s record of complying with conditions on bail, strength of the evidence etc
- consider whether any conditions can be put forward to address these issues. for example, residence, reporting, exclusion, no-contact tag, curfew etc
- conclude on why bail should or shouldn’t be granted
Exceptions to right to bail - bail need not be granted if:
there are substantial grounds for believing the D would:
-fail to surrender
-commit further offences while on bail
-interfere with witnesses or otherwise obstruct justice
-cause or cause fear of physical or mental injury to an associated person
or
they are tried with an offence that can be tried in Crown Court and were on bail at time of offence
Custody is for their own protection
already serving a custodial sentence
insufficient info to make a decision on bail
have failed to surrender or breached conditions in the same proceedings
in deciding whether substantial grounds are made out, the court will consider:
nature and seriousness of offence, and probable method of dealing with it
defendant’s character, previous convictions, associations, community ties
defendant’s record on complying with bail obligations
strength of the evidence
risk they may engage in conduct that would or would be likely to cause physical or mental injury to another
Plea in mitigation
- remind the court that the sentence must be proportionate to the seriousness of the offence, bearing in mind the offender’s culpability and any (potential) harm from the offence
- identify starting point for sentence and the range of sentences available
- consider aggravating and mitigating factors relating to the offence
- for multiple offences, explain why they should be concurrent (if appropriate)
- consider mitigating factors relating to the offender
- remind court of credit for guilty plea (if appropriate)
- propose an appropriate sentence
submission of no case to answer
remind the court that the burden is on the prosecution to prove the defendant’s guilt and to prove all the elements of the offence are made out
argue that the evidence the prosecution have adduced 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 court could convict
mode of trial - arguing for court to accept jurisdiction in criminal
court must consider adequacy of its sentencing powers: mag is 6 months for single, 12 for 2+ EW
go through relevant sentencing guidelines and consider starting point and range that applies
submit that the court’s sentencing powers are adequate and it should therefore accept jurisdiction
Summary judgement
Discretionary power to give summ judgement if app can show:
Claimant has no real prospect of successfully succeeding on claim or issue
Or
def has no real prospect of successfully defending the claim or issue and
There is no other reason why the case or issue should be disposed of at trial
Setting aside a default judgement - mandatory
Can be made by defendant
If judgement was wrongly entered.
Here the judgement was entered when the time for filing the acknowledgement of service or defence had not expired
Court must also consider if application for setting aside default judgement was made promptly
Setting aside default judgement - discretionary
If applicant can show:
They have a real prospect of successfully defending the claim or
It appears to the court that there is some other good reason why the judgement should be set aside or defendant should be allowed to defend the claim
Security for costs order
Discretionary power to order security for costs if the defendant can show one or more of the grounds below:
that the claimant is outside the jurisdiction (but not in Brussels contracting)
Is a company or other body and there
is reason to believe they will be unable to pay the defendants’ costs if ordered to do so
Has changed address since the claim was started with a view to evading the consequences of litigation
Failed to provide an address or gave incorrect address on the claim form
Is acting as a nominal claimant and there is reason to believe they will not be able to pay costs if ordered
Has taken steps in relation to assets that would be it difficult to enforce an order for costs against them
interim prohibitory injuction
discr power if appl can show:
serious question to be tried
damages would not be an adequate remedy for the loss and
the balance of convenience lies in favour of the injunction
if appropriate, can offer a cross undertaking in damages
Vary directions
court has power to make or vary directions further to its general case management powers
justify the directions referencing relevant CPR rule
justify the directions you seek by reference to how they will further the overriding objective to deal with cases justly and proportionately
unless order
disc case management power to make an order if app can show:
-the other party is in breach of a court order and
-they have complied with the order
-the order would be in the interest of the overriding objective to enforce court orders and deal with cases fairly, justly and proportionate costs
strike out
discr power to make an order if the applicant can show:
-statement of case discloses no reasonable grounds for bringing or defending the claim (for ex. the PoC discloses no cause of action recognised in law or defence is bare denial)
-the claim or defence is an abuse of process
-there has been a failure to comply with a court order, procedural rule or payment of court fees
Relief from sanctions
example: claim or defence struck out for non compliance with a rule, practice direction or court order or financial sanctions for non-payment of court fees
on an application for relief from any sanction imposed, court will consider all the circumstances of the case so as to enable it to deal justly with the application, including the need:
-for litigation to be conducted efficiently and at proportionate cost and
-to enforce compliance with rules, practice directions and orders
court should approach with 3-stage approach:
- consider seriousness of the non-compliance. if it’s not serious, then discretion should be exercised and don’t proceed with stage 2&3. if more serious, proceed to stage 2
- why the non-compliance occurred: whether there was good reason. trivial errors or mistakes unlikely to be a good reason for serious breach. then move to stage 3
- all circs to deal proportionately, efficiently and enforce compliance: court will consider whether the app was made promptly, previous breaches and whether the sanction is proportionate
adjournment or stay of proceedings
judge has discr case management powers to manage cases so they further the overriding objective: deal with cases fairly, justly and at proportionate costs:
-explain why adjournment/stay is necessary
-show why it is in the interest of the overriding objective to adjourn/stay
-prompt application after the need for an adjournment/stay has arisen
track allocation hearing
track allocation at discr of judge using court’s case management powers:
-set out the facts of the case
-refer to the factors considered in track allocation (value of claim, does it involve protected party or personal injury, is it complex), subject matter or evidential issues or a test case
-conclude with a track recommendation
interim payment
discr. power under CPR
only made by claimant
must show:
-defendant filed the AOS
-establish at least one condition for interim payment has been met:
–>def admitted liability
–>claimant has obtained judgement against defendant
–>if claim went to trial, claimant would obtain judgement for a substantial amount of money (other than costs) against the def
–>specific conditions for an order for possession of land (not usually relevant in DR)
–>two or more defs and one of following are satisfied:
1. court is satisfied that if claim went to trial claimant would obtain judgement for substantial amount against at least 1 (but court can’t determine which)
2. all defendants either insured, liability will be met by Motor Insurers Bureau agreement or def is a pulic body
-explain what interim payment will be used for
-request a specific sum for payment or instalment payment
-demonstrate the sum requested is a reasonable proportion of likely damages
-address the court if appropriate on a) contributory negligence and b) any relevant set off or counter claim
