Criminal (advocacy) Flashcards
What are the four statutory matters that must be considered in deciding on bail?
- Nature and seriousness of the offence
- Character, previous convictions and any community ties of the defendant
- Defendant’s previous record of complying/not complying with bail
- Strength of evidence against the defendant
What plan should you follow in making a plea in mitigation submission?
- Introduce yourself, say what you’re there for
- Check judge has relevant documents
- Brief outline of the facts
- Personal circumstances of the client (e.g., good character, admissions of guilt)
- Referring judge to supporting evidence (witness statements / evidence pointing towards an alternative outcome)
- Propose a sentence with reference to sentencing guidelines (include if client will accept conditions / will pay compensation / guilty plea discount)
- Conclude and invite questions
What do the allocation guidelines state about where either way offences should be tried?
Should be tried in the MC unless:
- outcome is clearly in excess of the MC sentencing powers
- case has unusual legal / procedural / factual complexity
even if MC accept jurisdiction, they can always commit to the CC for sentencing
What are the exceptions to the right of bail?
- Real prospect of a custodial sentence being imposed
- Substantial grounds for believing defendant will:
- fail to surrender
- commit further offences whilst on bail
- interfere with witnesses - Defendant is charged with an either way/indictable offence and was on bail at the time of committing this offence
- Defendant is already serving a custodial sentence
- Defendant has failed to surrender in the same proceedings previously (did they have good reason to)
What objections can be used to the admissibility of video/identification procedures?
Code D failures:
- failure to take into account reasonable objections
- failure to keep witnesses away from the suspect
- failure to keep witnesses away from each other
- failure to warn witnesses that suspect might not be present
What is an argument made under s.76 PACE?
That the court should not allow for a confession of the accused to be given in evidence if it represented to the court that the confession was/may have been obtained:
(a) by oppression of the person who made it
(b) in consequence of anything said/done which was likely to render any confessions unreliable
What is an argument made under s.78 PACE?
That court may refuse to allow any evidence on which prosecution proposes to rely to be given if it appears to the court that, having regard to all circumstances(including circumstances in which evidence was obtained), the admission of evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
What are the factors that must be considered when determine whether to make a Turnbull warning?
A = amount of time they viewed the defendant
D = distance between them
V = visibility at the time
O = obstructions at the time
K = known or unknown
A = any particular reason to remember
T = time between original viewing and identification procedure
E = errors in the identification
When will a submission of no case to answer be made?
When prosecution has not presented enough evidence to amount to a prima facie case
- by failing to adduce evidence of one or more of the elements of the offence
- the evidence adduced is so unreliable that no reasonable bench / judge / jury could convict (any conviction would be manifestly unreliable)
What are the bad character gateways?
(a) all parties agree
(b) BCE adduced by the defendant
(c) important explanatory evidence
(d) relevant to an important matter in issue between prosecution and defence (showing propensity)
(e) important matter in issue between defendant and co-defendant (must have substantial probative value)
(f) correcting a false impression given by the defendant
(g) it is an attack on another person’s character
When must a court refuse to admit bad character evidence on the grounds of adverse effect on fairness of proceedings?
Court must not admit bad character evidence of:
- important matter in issue between prosecution and defence, or
- defendant’s attack on another person’s character
If it would have such an adverse effect on the fairness of proceedings, and defence petitions for its exclusion
court have discretion to exclude on the basis of fairness for all other grounds
When is hearsay evidence admissible under statute?
- witness is unavailable
- it is a business document
- it is in the interests of justice
- it is a previous consistent / inconsistent statement (challenging the credibility of the maker)
- it is a document prepared for use in criminal proceedings
When is hearsay evidence admissible under common law?
- information is publicly available
- res gestae (statement made at the time of the event, where person was so emotionally overpowered that it must have been true)
- confessions (must be relevant to the matter in issue)
- interests of justice
- evidence of reputation (e.g., membership of gangs)
- common enterprise (words spoken by one defendant in pursuit of a common enterprise are admissible against all defendants)
- expert evidence (previous consistent statements to rebut allegations of recent fabrication)
When is a witness unavailable
- dead
- unfit due to their bodily / mental condition
- outside of the UK and not reasonably practicable to secure their attendance
- cannot be found despite reasonable steps being taken
- fear (in which case leave is required to admit)
What structure should a closing speech follow in any application?
- Address court on all elements of the offence (and how offence was committed)
- Re-iterate your defence
- State whether defendant is of good character (credibility/propensity limbs) + speak about personal circumstances of the client
- State the required burden and standard of proof in the case
- Conclude (re-iterate a summary of what you are seeking)
