Criminal Advocacy Flashcards
General Points
What are the most likely criminal advocacy applications?
- Bail application
- Plea in mitigation
- Mode of trial (magistrates to retain jurisdiction)
- Admission or exclusion of bad character/hearsay
- Exclusion of confession
- Exclusion of evidence generally
General points
What is it important to remember about the documents?
Some documents will be privileged (e.g. client instructions) and should not be referenced during submissions
Think about what the judge will have seen
Bail applications
What is the first part of a bail application?
Remind the court of D’s general right to bail.
Bail can only be refused where an exception applies and there’s a real prospect of a custodial sentence
Bail applications
What are the exceptions to the right to bail?
- Substantial grounds to believe D would fail to surrender, commit further offences, or interfere with witnesses
- Offence committed on bail
- D failed to surrender previously in these proceedings
- Not enough evidence to make a decision on bail
Bail applications
What things will the court consider when deciding if substantial grounds exist?
- Nature and seriousness of the offence
- Strength of evidence against D
- D’s character and antecedents
- D’s record of complying with bail conditions
Bail applications
How should a bail application be ended?
- Propose any conditions, if relevant
- Request application be granted
Bail applications
What are examples of bail conditions?
- Surety
- Security
- Reporting to police station
- Residing at specified address
- Curfew
6,. Non-communication with prosecution witnesses - Not to enter specified area
- Surrender passport
- Electronic monitoring
Mode of trial
What will the court consider first when deciding whether to accept jurisdiction?
The adequacy of its sentencing powers relative to the nature of the offence (max of 6 months for one offence, 12 months for two or more)
Mode of trial
What can be used as evidence of adequacy of powers?
- Sentencing Guidelines
- Evidence of aggravating/mitigating factors
Hearsay
What is the structure of a hearsay application?
- Hearsay generally inadmissible
- Admissible only if exception applies
- Apply test in support of argument for/against hearsay
Hearsay
What are the exceptions under section 114 CJA where hearsay is admissible?
- Admissible under statute
- Admissible under case law
- All parties agree
- Court considers it in interests of justice to admit it
Hearsay
What factors will the court consider for an application to admit hearsay under the interests of justice limb?
- How much probative value the statement has in relation to a matter in issue, or how valuable it is for understanding the other evidence in the case
- What other evidence has been, or can be given, on a matter of evidence
- How important the matter or evdience mentioned is in context fo the case as a whole
- Circumstances in which statement made
- How reliable statement maker appears to be
- How reliable evidence of making the statement appears to be
- Whether oral evidence of matter stated can be given and if not, why not
- Amount of difficulty involved in challenging the statement
- Extent to which that difficulty would likely prejudice party facing it
Hearsay
What are the statutory exceptions to the rule against hearsay?
- Witness unavailable
- Business and other documents
- Previous inconsistent statements of witness
- Previous consistent statements of witness
- Statements from witness which are not in dispute
- Formal admissions
Hearsay
What are the conditions for admission of hearsay under s116 CJA where a witness is unable to attend?
- Evdience would be admissible if given in oral evidence
- Statement maker identified to court’s satisfaction
- Any of the conditions in subsection (2) is satisfied
Hearsay
What are the s116(2) absent witness provisions?
- Relevant person is dead
- Relevant person is outside jurisdiction and not practicable to secure their attendance
- Relevant person unable to be witness due to mental or bodily condition
- Relevant person cannot be found after reasonable steps
- Through fear the relevant person does not want to give evidence (can be fear for oneself or someone else, does not have to be fear of D)
Hearsay
Are the statutory exceptions to the rule against hearsay mandatory?
No, they are discretionary
Hearsay
What are the case law exceptions to the rule against hearsay?
- Evidence of confession or mixed statement made by D
- Statement made as part of the res gestae
Hearsay
What is res gestae?
Statement made contemporaneously with event such that any possibility of concotion can be disregarded
Statement must be so closely associated with event which had excited the statement that it could be fairly said that mind of declarant was still controlled by event
Bad character
What is bad character evidence?
Evidence of, or disposition towards:
1. Misconduct
2. Commission of offences
3. Other bad behaviour outside facts of offence in question
Bad character evidence generally not admissible unless exception applies
Bad character
What are the grounds to introduce bad character evidence?
- Matter in issue between prosecution and defence (incl. propensity)
- D attacked another’s character
- Important explanatory evidence (incl. of propensity)
- To correct false impression given by D
- Matter in issue between co-Ds
Bad character
Which bad character grounds are exclusion mandatory for where adverse effect on fairness test made out?
- Matter in issue between prosecution and defence
- D attacked another’s character
Bad character
What are the two categories of propensity?
- Propensity to commit offences of the kind charged
- Propensity to be untruthful
Bad character
How can propensity to commit offences of the same kind be shown?
Evidence of previous offences of the same description, category or similar facts
Bad character
What is the structure for an argument in defence of propensity to commit similar offences?
- Does D’s history of offending show propensity to commit offences of kind charged? If yes,
- Does that propensity make it more likely D committed the current offence? If yes,
- Is it just to rely on that conviction given overriding principle proceedings must be fair?
Bad character
What are the most likely arguments in defence of propensity to commit similar offences?
- Current offence not factually similar to previous offences
- Not enough previous convictions to show propensity
- Convictions too old to be relied on
Bad character
How can propensity to be untruthful be shown?
- Previous offences where D’s conduct was dishonest (D made a false representation)
- D pleaded not guilty to previous offences, testified and was not believed
Bad character
What are the most common arguments in defence of propensity to be untruthful?
- D’s previous behaviour was not dishonest
- Not enough previous convictions/evidence for propensity
Bad character
What arguments can be relied on to demonstrate that introducing bad character on the grounds of propensity is unfair?
- More prejudicial than probative
- Used to prop up otherwise weak case
- Convictions are spent
Exclusion of evidence
Under what section are general applications to exclude evidence other than confessions made?
Section 78 PACE on the basis that court has discretion to not admit any evidence if it would have such an adverse effect on proceedings that it ought not to be admitted
Exclusion of evidence
What is the structure of an application to exclude evidence?
- Introduce self, who you act for and background facts of charge. State C’s plea
- Introduce application - set out and number issues to be addressed
- Flag any docs which will be used and check judge has copies. No agreed hearing bundle
- Briefly address relevant law and apply facts to each issue, using docs as they are given
- Conclude with strongest arguments and offer to assist in answering any questions
Confessions
Under what section is an application to exclude a confession made?
Section 76 PACE
Confessions
What are the two grounds under s76 PACE to exclude a confession?
- Confession made as a result of things said or done which render it unreliable
- Confession unreliable due to oppression
Confessions
What is important to show for an application under s76(2)?
A causative link between the behaviour and the confession:
1. That what was said or done is a matter of fact likely to render confession unreliable
2. What causal link between things said and done and confession is
3. Look for significant and substantial breaches of PACE/Codes
Confessions
Who has the burden of proof under section 76?
The prosecution must prove beyond reasonable doubt that section 76 factors are not made out
Confessions
How should an application to exclude a confession open?
Submit that although confessions generally admissible as matter in issue between prosecution and defence, once challenged, prosecution must prove beyond reasonable doubt that s76 is not satisfied
Exclusion of ID evidence
What should be considered in addition to s78 where application is to exclude ID evidence?
The ADVOKATE factors going to quality of evidence
The poorer the quality, the bigger the adverse effect on fairness
Exclusion of ID evidence
What should be considered in an application to exclude ID evidence unfairly obtained?
Failure to:
1. Take into account reasonable objections to appearance of participants
2. Keep witnesses away from suspect
3. Keep witnesses apart
4. Warn suspect may not be shown
5. Conduct the procedure via an officer not involved in the investigation
No case to answer
What are the stages in a submission of no case to answer?
Submit that the prosecution:
1. Bear the burden to prove D’s guilty and prove all elements of the offence, and
2. Have failed to prove an element of the offence or the evidence is so manifestly unreliable that no reasonable court could convict
Plea in mitigation
What is the structure of a plea in mitigation?
- Submit sentence must be proportionate to seriousness of offence (and custody threshold)
- Use Sentencing Guidelines to identify starting point and range
- Identify aggravating/mitigating factors of offence on the facts
- Identify mitigating factors of the offender on the facts
- Reference credit for guilty plea, if relevant
- Propose appropriate sentence
Plea in mitigation
What should be considered for offender mitigation?
- C’s instructions
- Pre-sentence report
- How the above demonstrate the s142 requirements will be satisfied by a lower sentence
Plea in mitigation
What are the s142 (Principles of Sentencing) requirements?
- Punishment
- Reduction in crime
- Reform and rehabilitation
- Public protection
- Reparation
