Appeal against sentence - Drafting Flashcards
Structure
1) Introduction
2) Summary of facts
3) Summary of grounds
4) Ground 1
5) Ground 2
6) Keep going for grounds
Introduction
Between [dates] [DEFENDANT’S NAME], the Applicant, was tried in the [ENTER COURT] before [Her Honour Judge NAME] and a jury. The Applicant was unanimously convicted of a [single count of robbery contrary to section 8(1) of the Theft Act 1968]
Summary of facts
[On [date] the Applicant was identified by the victim, in an identity parade. The Applicant was interviewed by the police and during that interview confessed to the robbery. The defence was that the Applicant was not involved in the robbery and made a false confession. At trial the Applicant gave evidence]
Summary of grounds
This will usually be because they:
1) Erred in directing the jury as to the burden of proof
2) Inadequately and wrongly directed the jury as to the standard of proof
3) Wrongly directed the jury in relation to the ingredients of the offence
4) Wrongly and inadequately directed the jury in relation to the approach to evidence such as identification or confession
How to draft each ground
1) Identify the event or decision to which it relates
2) Summarise any facts that are relevant to the ground
3) Concisely outline each argument in support and identify any relevant authorities
Erred in directing the jury as to the burden of proof - Example
The learned Judge erred in directing the jury as to the burden of proof. The judge’s direction to the jury that it was for [NAME] to prove his alibi, leaves open the real possibility that the jury thought the burden was on him to do so and thereby the burden of proving his innocence fell on the Applicant. In these circumstances, the jury’s verdict is unsafe
Inadequately and wrongly directed the jury as to the standard of proof - Example
The learned Judge inadequately and wrongly directed the jury as to the standard of proof. In the absence of any instruction to the jury that the Applicant only had an evidential burden to raise the defence of alibi and that the burden of disproving it to the criminal standard was on the Prosecution, the jury’s verdict is unsafe.
Wrongly directed the jury in relation to the ingredients of the offence - Example
Without a proper direction on the ingredients of the offence of robbery, the jury could not have properly evaluated the evidence in coming to a decision about whether the Prosecution had proved its case.
Wrongly and inadequately directed the jury in relation to the approach to evidence - Visual identification failure of turnbull warning Example
As the Prosecution’s case depended on disputed visual identification evidence, a Turnbull direction should have been given by the Judge to the jury. The Judge failed to do this, in particular omitting to warn the jury that:
(a) there is a need for caution to avoid the risk of injustice;
(b) a witness who is honest and convinced in his own mind may be wrong;
(c) a witness who is convincing may be wrong.
The jury should have been directed to put caution into practice by carefully examining the surrounding circumstances of the evidence of identification, in particular: [INSERT]. In the absence of an appropriate Turnbull direction, the jury’s verdict is unsafe
Wrongly and inadequately directed the jury in relation to the approach to evidence - Confession Example
The Judge should have reminded the jury of the evidence given by the Applicant as to why he said he made the confession. The Judge should have directed the jury that if they concluded that the confession was, or may have been, obtained as a result of what was said or done which was likely to render it unreliable, they should give it no weight and disregard it. The Judge should have directed the jury that otherwise it was a matter for them to determine what weight to give it.
