CRIMINAL ADVOCACY Flashcards
What are the grounds for a bail application?
Presumption in favour of bail for all D’s (subject to exceptions above) pre-conviction (Bail Act 1976, s 4).
Are there substantial grounds for believing that, if released on bail, D will:
* Fail to surrender to custody?
* Commit an offence whilst on bail?
* Interfere with witnesses/obstruct the course of justice?
Apply factors to decide if ground(s) exist:
* Nature and seriousness of the offence, and probable sentence.
* Character and antecedents of defendant.
* Defendant’s associations and community ties.
* Defendant’s bail history.
* Strength of evidence.
If substantial grounds exist can these grounds be removed by imposing conditions?
* Surety.
* Security.
* Report to police station.
* Residence.
* Curfew.
* Non-communication with prosecution witnesses.
* Not to enter specified area.
* Surrender passport.
YES –> court will grant conditional bail.
NO –> court will refuse bail and defendant will be remanded in custody.
What is the procedure for the plea before venue?
For an either-way offence when D appears before the MAG court:
a) The charge will be read out to D by the court’s legal adviser, who will also check that D’s solicitor has received IDPC (initial details of prosecution case).
b) The legal adviser will then tell D that they may indicate to the court how they would plead if the matter were to proceed to trial (D is under no obligation to indicate their plea). The legal adviser will also tell the defendant that if they indicate a guilty plea, they will then be treated as having pleaded guilty before the magistrates who may either sentence them or commit them to the CC to be sentenced if they consider their own sentencing power to be inadequate.
c) The legal adviser will then ask D to indicate their plea.
What are the relevant grounds/sections for excluding confession evidence?
S 76 (2)
MANDATORY – court must exclude the evidence – always go for this one first before going for s 78.
“If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained –
A) By oppression of the person who made it; or
B) In consequence of anything said or done which was likely, in the circumstances existing at the time to render unreliable any confession which might be made by him in consequence thereof.
The court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
S 78
Provides the court with the discretion to exclude confession evidence on which the Prosecution seeks to rely 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.
What are some examples of oppression under s 76(2)?
S 76(2) – OPPRESSION
= torture, inhuman or degrading treatment, and the use or threat of violence.
Examples:
* interviewing officer raises their voice or shouts at the defendant.
* makes threatening gestures towards the defendant.
* Leans toward the defendant so that they are ‘in the defendant’s face’.
* Stands over or behind the defendant.
* Threatens to detain the defendant indefinitely unless the defendant makes a confession.
Under which gateways can the court exclude bad character evidence?
The court has no power under CJA 2003 to exclude bad character evidence admitted under any gateway except (d) and (g).
The court retains the discretionary power under s 78 PACE 1984 if the evidence would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.
S 101(3) CJA 2003
The court must not admit this evidence if on an application by a defendant to exclude it, it appears to the court it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
What are the grounds for introducing bad character evidence and whom can make the application?
S 101(c) – PROSECUTION ONLY
Important explanatory evidence.
S 101(d) – PROSECUTION ONLY – relevant to an important matter in issue between that defendant and the prosecution.
S 101(1)(e) – DEFENDANT v DEFENDANT – it has substantial probative value in relation to an important matter in issue between that defendant and co-defendant.
S 101(1)(f) – PROSECUTION ONLY – evidence to correct a false impression given by that defendant.
S 101(1)(g) – PROSECUTION ONLY - defendant has made an attack on another person’s character.
What is a plea in mitigation?
CrimPR 25.16(6)
Plea in mitigation = speech by defence advocate – can also involve calling of character witnesses on behalf of D or introducing character letters to speak of D’s generally good character.
OBJECTIVE
= persuade the sentencing court to impose upon D the most lenient sentence which the court could reasonably be expected to give for that offence.
What should be the structure of a plea in mitigation?
STRUCTURE OF A PLEA IN MITIGATION:
a) The likely sentence.
b) The offence – minimise agg. Factors and emphasise importance of mitigating factors. Dissociate from agg. Factors that would lead the court to impose a sentence in excess of the ‘starting point’ sentence.
c) The offender – emphasise personal mitigation.
* Age of D – young/immature. Elderly & out of character?
* Health of D – drug addict/alcoholic? Sentence designed to help him overcome his illness – community order w drug rehabilitation programme. Long-term illness/injury/mental illness.
* Cooperation with police/early guilty plea? D assisted police with enquiries – naming others involved in crime – naming location of stolen property etc. Prompt confession to officers?
* Voluntary compensation – D who voluntarily makes good damage they caused/compensation to the victim particularly if D is of limited means.
* Remorse – mere apology to the victim not likely to do much but positive steps to change their behaviour – e.g., solve drug habit is likely to go far.
* Character – distinguish previous convictions from the current offence and explain circumstances of previous convictions. D with no previous convictions – should have this taken into account.
* Family circumstances – pre-sentence report will look in depth at D’s personal background – regular home and job and supportive family home? Troubled background – refer to this – particularly if young. Sexually abused as a child. Broken home? D’s solicitor may be able to argue that the client has made a genuine attempt to overcome this background.
* Low-risk of re-offending – risk of D committing further offences – risk low – should mention this in mitigation – one off – willingness to change.
d) The suggested sentence – type of sentence which he considers to be most appropriate.
* Sentence they think court should impose – lower than likely sentence and should reflect all the mitigating factors which D’s solicitor has placed before the court.
* Must be realistic – lower end of the range of possible sentences.
* If the same sentence as suggested in pre-sentence report – this should be mentioned!
What is a newton hearing?
Newton Hearing = if there is a dispute of the specific factual version of events put forward by the CPS which has a bearing on the type of sentence the court imposes, the court must either accept the defendant’s version of events, or all the CPS and D to call evidence so that the court can determine the true factual circumstances of the offence on which D’s sentence will be based.
