Criminal Advocacy Flashcards
Structure - Bail Application
Introduction - state this a bail application and list the concerns of the prosecution and the alternative measures you propose.
BOP - As you are aware the burden is on the prosecution to show that the grounds are made out and that any risks cannot be mitigated by imposing bail conditions. I submit that the threshold for refusing bail has not been met and that Mr(s) X…
1. Address the concerns of the prosecution (the exceptions to the general right to court bail):
a. Ground 1: Fail to surrender to custody; and/or
b. Ground 2: Commit an offence whilst on bail; and/or
c. Ground 3: Interfere with witnesses
2. Suggest alternative measures/conditions
3. If applicable mention other information that helps your client’s bail application
a. (eg) turning briefly to the offence itself… I invite the court to take into account that Mr(s) X has been fully cooperative… pleaded not guilty/guilty to the offence…
Conclusion -
To deny Mr(s) X bail would be disproportionate and the imposition of the conditions I have proposed would address all the concerns that your [Judge address] or the prosecution may have.
Unless I can assist the court further, that concludes my submission
Factors that the court should consider when deciding whether legal grounds for withholding bail are present- factors set out in Para 9 of sch1, Part 1 of the BA 1976:
- The nature and seriousness of the offence and the probable method of dealing with it
- The defendant’s character, record, associates and community ties
- The defendant’s bail record
- The strength of the evidence against the defendant
- If the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail, would commit an offence while on bail, including the risk that the defendant may do so by engaging in conduct that would or would like to cause physical or mental injury to any person other than the defendant
- Other relevant Factors
Common bail conditions to propose
Residence at a given address
Curfew
Reporting to a local police station at given times
Surety
Security
Restriction on where a D may go during bail
Restriction on who the D might have contact with during bail
Electronic monitoring (tagging)
Bail hostels
Structure of a plea in mitigation
- State the offence / outline
- state whether you dispute the category of offence that has been decided - Remind court sentence must be proportionate to the seriousness, considering culpability and harm
- Sentencing Guidelines
- Identify starting point, range of sentences and thresholds
- Determine seriousness by addressing aggravating and mitigating factors
- If Multiple offences, refer to totality principle and concurrent sentences
- If guilty plea, remind court of mitigation (eg. discount in plea)
- Propose appropriate sentence
Bad Character Application: Definition of Bad Character
“evidence of, or of a disposition towards misconduct” (s98 CJA) that does not pertain to the offence itself.
Bad Character Application: Misconduct definition
“the commission of an offence or other reprehensible behaviour” (s112 CJA)
What is capable of constituting reprehensible behaviour will be fact specific and has been held to include:
● Drinking to excess and taking illegal drugs - R v M [2014] EWCA Crim 1457
● Membership of a violent gang - R v Lewis [2014] EWCA Crim 48
Reprehensible behaviour = connotes some degree of moral blameworthiness
Sources of Bad Character Evidence
● Previous convictions (also from a foreign court if such offences have a domestic equivalent)
● Cautions
● Acquittals where the prosecution contends that in fact the defendant was guilty of the previous offence of which D was acquitted * (NB: Prosecution is allowed to assert that the D did commit the offence but cannot seek to have the D punished for the previous offences)
● Agreed facts that amount to reprehensible behaviour
● Witness evidence of a reputation for reprehensible behaviour
● Membership of a gang
● Blasphemy and affair do not count
7 Defendant Gateways: Bad Character Evidence
- Agreement between all parties
- D brings it up
- Important explanatory evidence
- Relevant to an important matter in issue between the defendant and the prosecution. Only prosecution ev. admissible
- Substantial probative value in relation to an important matter in issue between the defendant and a co-defendant
- Correcting a false impression
- Attacks the character of another
Court’s Power to exclude bad character evidence
The court has power under s 78 PACE to exclude prosecution bad character evidence if it would have adverse effect on the fairness of the proceedings
s 101(3) CJA 2003: Court must NOT admit evidence under these gateways if it wou;d have adverse effect on the fairness of the proceedings.
- Gateways (d) and (g) only which are - relevant to important matter in issue or attacking another person’s character
Introducing Hearsay Evidence: Structure
Define Hearsay
a. Evidence which is not directly given. A statement made out of court (either in writing or orally) & repeated in court (by someone else) to prove that something is/is not true.
i. s115(3) = ‘to cause another person to believe the matter’.
ii. Not hearsay where something being repeated to demonstrate that it was said/it happened i.e. to explain someone’s actions.
1. Examples that are not hearsay: private diary, CCTV, questions (no statement of a matter), no comment interviews, legally significant words, falsehoods.
Introducing Hearsay Evidence: Structure
General Rule wrt Hearsay
a. General rule = hearsay is NOT admissible.
b. Approa ch to exclusionary rule re hearsay →
i. Does the evidence fall within the definition of hearsay evidence? If YES then the evidence is prima facie INADMISSABLE.
ii. Does it fall within one of the exceptions to the general exclusionary rule?
1. Grounds for admitting hearsay are set out in Criminal Justice Act 2003.
4 Grounds for admitting hearsay evidence under s 114(1) CJA
- Statute
- Common law (rule of law)
- Interests of Justice
- Agreement of parties
Grounds for admitting hearsay evidence: Statutory Grounds
- Evidence would have been admissible in oral evidence
- Witness identified to the court’s satisfaction
AND
s116 CJA: Witness is unavailable
a. Death
b. Unfit to be a witness because of bodily or mental condition
c. Outside the UK and not reasonably practicable to secure attendance
d. Cannot be found although reasonable steps taken
e. Fear = court MUST grant leave.
i. Is widely construed
ii. Includes fear of death or injury of another person, financial loss.
2. Court will only grant leave if in the interests of justice to allow the statement to be read → must explore possibility of witness giving evidence by other means
Admitting Hearsay Evidence: Statutory Exception wrt Business Documents
- A doc created and received in course of trade, business, profession. Person supplying info within had/reasonable had personal knowledge of the matters dealt with.
a. (e.g.) medical records, statement written down by police officer in the course of duty. - BUT the court has the discretion to exclude such a business document if it is satisfied that the statement’s reliability is doubtful.
a. Court to decide on whether statement’s reliability is doubtful in view of its contents, source of info, way in which info suppled/received/created.
Adducing Hearsay Evidence: Common Law Exception
s 118 CJA
- Confession
- Res Gestae
- Public Information
- Except evidence
Adducing Hearsay Evidence: Interests of Justice Test
Hearsay may be adducted if the court is satisfied that it is admissible in the interests of justice - considering these factors:
- (a) Probative value of the statement re issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
- (b) what other evidence has been, or can be, given on the matter
- (c) how important the matter/evidence is in the context of the case as a whole;
- (d) the circumstances in which the statement was made;
- (e) how reliable the maker of the statement appears to be;
- (f) how reliable the evidence of the statement maker appears to be;
- (g) whether oral evidence of the matter stated can be given;
- (h) amount of difficulty involved in challenging the statement;
- (i) the extent to which that difficulty would be likely to prejudice the party facing it.
Application to exclude visual identification evidence:
Breaches of PACE Code D which could apply here:
- failure to take account of reasonable objections to appearance of others
- failure to keep witness away from suspect before or during
- failure to separate witnesses
- failure to warn witness that suspect may not be shown at all.
Definition of ‘Confession’ (PACE)
(1) In this Part of this Act— ‘confession’, includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.
● Can be made orally or in writing to any person.
Excluding a confession: Relevant statutory authority
s 76 PACE
Excluding a Confession: What does PACE say about when this may be done
(2) 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
(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 insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
Challenging the admissibility of a confession: Burdens of Proof
It is for the prosecution to prove beyond reasonable doubt that the confession is NOT unreliable / was NOT obtained in the way the defence alleges
If the prosecution does not discharge this burden than the confession MUST be excluded under s 76 PACE
Hearing to Determine Jurisdiction (either-way offence) Structure:
- The offence
- Pros. will have gone over details of the facts, D responds to this submission - Sentencing powers
- remind court that jurisdiction ultimately comes down to their sentencing powers - Go through sentencing guidelines and consider starting point + category range which apply
- The court cannot pass a custodial sentence unless offence is so serious that neither a fine alone nor community sentence can be justified - Statutory aggravating and mitigating factors for court to take into account
- Refer to allocation guidelines and expand where relevant
a. ie. whether a sentence is clearly in excess of MAGs powers is likely OR
b. for reasons of unusual legal, procedural or factual complexity which mean that sending to the CC would be more appropriate - Mags to accept:
- submit court’s sentencing powers are adequate and it should accept jurisdiction
- can commit an either way case for sentence following conviction to can argue for trial in Mags safe in knowledge that D could be sent to CC for sentence anyways - Commit to Crown Court
- expand
CPR Which govern Witness Summons Applications
Rule 17.3
(1) Promptness
● “Must apply as soon as practicable after becoming aware of the grounds for doing so”
(2) The Application: When you make your application, you must:
(a) identify the proposed witness
(b) explain:
i. what evidence they can give or produce
ii. why it is likely to be material evidence (evidence of the offence)
iii. why it is in the interests of justice to issue a summons
CPR for Applications for Arrest Warrants
Rule 17.3
(1) Promptness
● “Must apply as soon as practicable after becoming aware of the grounds for doing so”
● CPR 17.3(1) - A party who wants the court to issue a witness summons, warrant or order must apply as soon as practicable after becoming aware of the grounds for doing so.
(2) The Application: When you make your application, you must:
(a) identify the witness
(b) explain:
iv. what evidence they can give or produce
v. why it is likely to be material evidence (evidence of the offence)
vi. why it is in the interests of justice to issue an arrest warrant
