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SQE2.02 > CRIMINAL ADVOCACY > Flashcards

CRIMINAL ADVOCACY Flashcards

1
Q

What are the 3 major groupings of considerations for a plea in mitigation?

A

Seriousness

Thresholds

Aggravating/Mitigating Factors

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2
Q

What are the tests for the seriousness guideline?

A

Culpability
- Not mens/actus
- More abstract e.g., how the wounding was inflicted (minimally, excessively?)

Harm
- Caused, intended to cause, might foreseeably have caused

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3
Q

What is the threshold for a custodial sentence?

A

Court must not pass a custodial sentence unless is of the opinion that offence or combo of offences was SO SERIOUS that neither a fine alone nor a community sentence can be justified

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4
Q

What is the threshold for a community order?

A

Offence or combo of offences was SERIOUS ENOUGH as to justify making such an order

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5
Q

What are common aggravating factors?

A
  • Pre. convic.
  • While on bail
  • Racial/religious/disability/sexual aggravation
  • Alcohol
  • Abuse of power
  • Breach of trust
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6
Q

What are common mitigating factors?

A
  • Provocation
  • Self-defence
  • Good character
  • Vulnerability
  • Mental health
  • Remorse
  • Personal mitigation
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7
Q

What are some good talking points for a plea in mitigation?

A
  • Can advocate downplay seriousness of offence
  • Is D entitled to sentencing credit for guilty plea?
  • Can D’s role be played down?
  • Explanation for why offended?
  • What is D’s attitude toward offence?
  • Effect on family and D
  • Wider social and financial circumstances
  • Relationships
  • Explain away previous convictions
  • Future conduct
  • Steps being taken to improve and learn
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8
Q

What are the major overarching talking points in bail applications?

A

Presumption to bail

No Real Prospects

Big 3 Grounds

Secondary Trio

Specialist Grounds

Mandatory Factors

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9
Q

What are the Big 3 Grounds?

A

SUBSTANTIAL GROUNDS TO BELIEVE:

Failure to surrender

Commit further offences

Interfere with witnesses/obstruct course of justice

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10
Q

How does the application of Big 3 change if it is a summary imprisonable offence?

A

Surrender – only if D has prior FTS or s7 bail act violation

Further offences – only if D was on bail at the date of the alleged offence or following s7 bail arrest

Witness/interference – if following s.7 bail arrest

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11
Q

How does the application of Big 3 change if it is a non-imprisonable offence?

A

They will only apply if D has been convicted in proceedings and has a prior FTS or s.7 arrest

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12
Q

What is the effect of the altered application of the Big 3 bail grounds for summary and non-imprisonable offences?

A

Basically, they are very likely to get bail – even if there is a credible risk of them doing the things unless they have previously FTS/witness/crimes while on bail

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13
Q

What is the second trio of grounds?

A

‘NEED NOT BE GRANTED BAIL IF:

  • In custody for D’s own protection
  • Court has insufficient info, so stay in custody until more evidence
  • D is already in custody for smth else
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14
Q

For which offences/cases are there specialist grounds??

A

Murder

Attempted murder, rape, serious sex assault

Offence carrying life imprisonment

Drugs

Domestic Violence

Where D infringes bail

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15
Q

When does the presumption of bail not apply?

A

Appealing against conviction

Being committed for sentence from MAGS to CROWN

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16
Q

What are the specialist grounds for murder?

A

*Only CROWN can grant bail

If pre-convic for:
- Attempted mdr or murder
- Rape or serious sexual

THEN D may not be granted bail unless there are exceptional circumstances to justify it

IF NO PRE-CONVIC.
- May not be granted bail unless there is no significant risk of D causing an offence likely to cause physical or mental injury

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17
Q

What are the specialist grounds for attempted murder, rape and serious sexual?

A

If pre-convict for:
- Attempted mdr or murder
- Rape or serious sexual

D may not be granted bail unless there are exceptional circumstances to justify it

*MAGS CAN grant bail

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18
Q

What are the specialist grounds for an offence carrying life imprisonment?

A

If D was already on bail AND/OR failed to attend having been on bail

D may not be granted bail unless there is no significant risk of further offences being committed or failure to attend

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19
Q

What are the specialist grounds for domestic violence?

A

Need not be granted bail if:
- Substantial grounds to believe D would commit an offence on bail by engaging in conduct that would or be likely to cause physical/mental injury to an associated person

*only available for non-imprisonable offences if D is arrested under s.7 Bail Act

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20
Q

What are the specialist grounds for drug abuse?

A

Where:
- D has class A drugs in body AND
- Offence was related to class A drugs (caused or motivated) or D’s trying to take them

Court MAY NOT grant bail unless no significant risk of D creating further offences on bail

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21
Q

What are the specialist grounds if D committed current offence whilst on bail?

A

Indictable: need not grant

Summary: need not grant if substantial grounds to believe D will do again

Absconded indictable: need not be granted unless it is prior to conviction and there are no real prospects of D getting a custodial sentence

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22
Q

What are the mandatory factors?

A

Nature and seriousness

Character, antecedents, associations, community ties

Past bail record

Strength of evidence

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23
Q

How are the mandatory factors applied?

A

They help establish/rebut the grounds

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24
Q

What is considered for nature/seriousness of the offence?

A

If long sentence, more likely to run

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25
What is considered for character, antecedents, associations, community ties?
Prev. convictions making custodial more likely Personal circumstances Associations -- friends with criminals Community ties -- e.g., baby on the way
26
What is considered for strength of evidence?
D who is unlikely to be convicted is unlikely to run
27
Most common bail conditions?
Residence at X address Curfew Report to police at x times Surety -- eg., mom puts up money for you Security -- D gives own valuable thing Restriction on where can go Contact/restraining orders Ankle monitor Bail hostels
28
What is a s.7 Bail Act Violation?
Breaking the conditions of your bail *Not technically a criminal offence, just gets you brought back into custody
29
What is the test for a bail variation application?
There must be 'good reasons' Parties can also agree without court
30
Which bail breach IS a criminal offence?
Fail to surrender without reasonable cause 3mo prison (summary) 12mo prison (indictable) And/or unlimited fines
31
What is the test for determining whether bail conditions are appropriate?
Relevant, proportionate and enforceable
32
When can prosecution appeal bail?
MAY ONLY APPEAL IF - Prosecution represented that bail should not be granted - Representations were made before the bail was granted - Indictable or either-way
33
On what basis can prosecution appeal the granting of bail?
Info not available to court/police at last hearing
34
What will MAGS consider after a s.7 breach of bail conditions when deciding whether to grant bail again?
can remand or grant bail again based on same or different conditions if of opinion that: - D is not likely to surrender to custody - D has broken or is likely to break any condition of bail If court is not of this opinion, shall grant D the same conditions that were originally imposed
35
How is bad character evidence able to be admitted into proceedings?
GATEWAYS: **LOVELY** All parties agree **VALUE** Relevant to an important matter in issue between D and prosecution Important explanatory evidence Substantial probative value in relation to an important matter in issue between D and co-D **D'S FAULT** Evidence is adduced by D or given in answer to a question asked by him in cross-examination Evidence to correct a false impression given by the D D made an attack on another persons character
36
What are the main points for a no case to answer?
‘Evidence does not disclose a case to answer’ ‘Evidence is insufficient for any reasonable court properly to convict *but must not do so unless the prosecutor has had the opportunity to make representations
37
What are the considerations for admissibility of evidence?
Relevance -- does it prove or disprove a fact Exclusionary Rules Weight -- nobody could reasonably rely on it
38
What is the test to apply to dismiss a case?
Judge shall dismiss charge and quash indictment count if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted *same as no case to answer - No evidence crime was committed - Taken at highest, a properly directed jury could not properly convict on it *must look at strength of evidence holistically
39
Difference between app to dismiss case and sub of no case to answer?
Dismiss = after disclosure, before arraignment No case = after CPS has presented its whole case
40
What are the tests for no case to answer?
1. No evidence D committed the crime 2. Taken at highest, a properly directed jury could not properly convict on it *if strength of evidence depends on matters within province of jury (witness reliability), and there is possibilty jury could properly come to guilty conviction, then judge should allow matter to proceed
41
What to include in an abuse of process application?
(To stay proceedings forever) 1. Fair hearing not possible 2. Unfair to try the accused/stay is necessary to protect integrity of criminal justice system
42
What are common scenarios for abuse of process applications?
- D tricked or coerced into committing an offence - D prosecuted despite unequivocal promise by CPS that wouldn't be - Police acted in way to undermine public confidence e.g., destroy evidence - CPS misused/manipulated court to deprive D of protection at law - Delays for tactical advantage
43
What are the exclusionary rules for evidence generally?
S.82 PACE: - 'Nothing in act will precent court from excluding evidence at it's discretion' s.78 All circumstances, + how evidence was obtained, would have adverse effect on the fairness of proceedings such that ought not to be included
44
In what common scenarios are the exclusionary rules usually applied?
- When evidence was unlawfully/improperly/unfairly obtained - ECHR, PACE 1984, CODES OF PRACTICE, CONFESSIONS
45
In what circumstance is evidence very likely to be excluded?
Bad faith police officer
46
What are the 8 codes of practice?
A: STOP/SEARCH B: ENTRY/SEARCH/SEIZURE C: DETENTION/TREATMENT/QUESTION D: ID E: AUDIO RECORDING INTERVIEWS F: VISUAL RECORD INTERVIEWS WITH SOUND G: ARREST H: DETENTION/TREATMENT/QUESTION (of terrorists)
47
What is the threshold for excluding evidence in breach of police codes?
'Serious and substantial breach' Not the breach itself, but the effect of it
48
What is the standard of proof in a voir dire?
Normal burden/standard - beyond reasonable doubt *finding in favour of whose version of facts Prosecution has burden
49
What are the 2 limbs for excluding confession under s 76?
Obtained by oppression, as consequence, rendered unreliable, unless prosecution can prove it isn't unreliable beyond a reasonable doubt Anything said or done likely, in circumstances at time, to render confession unreliable
50
What does confession exclusion not omit?
Evidence/facts found as result of confession To show accused speaks/writes in a particular way
51
What is oppression for purposes of excluding a confession?
Torture, inhumane/degrading, threats of violence
52
What else is relevant when considering oppression?
Some things might be oppressive to weaker people that wouldn't be to stronger people
53
Who has the burden of proof with application to exclude evidence?
Prosecution must prove beyond reasonable doubt that there was no oppression OR unreliability
54
What is the 3 step approach for tackling unreliable evidence?
1. ID thing said or done 2. Ask: could this make confession unreliable 3. Ask: did pros. prove it was reliable beyond a reasonable doubt?
55
What does 'unreliable' mean -- how defined?
Cannot be relied upon as being the truth Objective
56
What is the common 'in alternative plea' for excluding evidence?
s.76 -- 2 LIMBS for excluding confessions s.78 -- general unfairness criteria 'adverse effect such ought not to be admitted'
57
What is the overarching approach categories of considerations regarding the admissibility of hearsay?
Not admissible unless: - statutory provisions allow - common law provisions allow - agreement of all parties - court thinks interest of justice
58
What are the statutory provisions for hearsay?
- Witness is unavailable - Is a business document - Is in interests of justice - Stat exceptions
59
What are the common law provisions for hearsay?
- Public information - Evidence of reputation - Res Gestae - Confessions - Statements in furtherance of common enterprise - Body of expertise
60
What is the test to decide if something is hearsay?
1. What is the matter sought to prove? 2. Is there a statement of that matter in the communication 3. Was it the intention of the statement maker that recipient/others should believe that matter was true?
61
What 6 things are definitely not hearsay?
Private diary CCTV Questions asked Showing effect of another persons words on the person to whom they were said Legally significant words e.g., offer of sex services for money Falsehoods -- if statement maker didn't intend statement to be true cannot be hearsay
62
What is the difference between hearsay and original evidence?
Original evidence = showing words were spoken, not that they were true e.g., threats of violence Hearsay = asserting that words said were true
63
What are the hearsay conditions for an unavailable witness?
Would be admissible if person was available + 1 of: - Is dead - Unfit - Not in UK, cannot reasonably secure person - Cannot be found despite reasonable steps - Through fear, won't come to court (doesn't need to be caused by the defendant)
64
What are the hearsay conditions for business documents?
Would have been admissible orally - doc made/received in course of business (broad) - person who gave info reasonably supposed to have had personal knowledge of matters dealt with - all info receivers got info in course of business - maker/receiver can be same person incl. med records, police notes
65
When are documents prepared for contemplated/pending criminal proceedings admissible?
1/5 of the business documents criteria Person who supplied statement cannot reasonably be expected to have any recollection of the matters dealt with in the statement
66
What factors are there to consider whether it is in the interests of justice to admit hearsay?
1. Probative value 2. Other available evidence (e.g., is more evidence needed) 3. How important matter to prove is 4. Circumstances statement was made 5. Reliability of statement maker 6. Can oral evidence be given 7. Difficulty of challenging the statement 8. Extent to which difficulty would prejudice party stating it
67
What is the common law res gestae exception to admit hearsay?
Statement is admissible if: - made by emotionally overpowered person by event that possibility of concoction/distortion can be disregarded - statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement - statement relates to a physical sensation or mental state
68
What is the common law hearsay rules regarding confession evidence?
You can admit these
69
How to structure closing speech?
Intro Sum Test: Review evidence Challenge other side Clear call to action
70
Sentencing Guidelines for Assault?
Maximum Sentence: 6 months' custody (summary only) Offence Range: Discharge to 26 weeks' custody Aggravated: Up to 2 years if racially/religiously aggravated or against an emergency worker
71
Offence Category Common Assault?
Summary
72
Sentence: ABH SENTENCE GUIDELINE:
Maximum Sentence: 5 years' custody Offence Range: Community order to 4 years' custody
73
Grievous Bodily Harm (GBH) / Wounding – s.20 OAPA 1861 SENTENCE GUIDELINE:
Maximum Sentence: 5 years' custody Offence Range: Community order to 4 years' custody
74
GBH / Wounding with Intent – s.18 OAPA 1861 SENTENCE GUIDELINE:
Maximum Sentence: Life imprisonment Offence Range: 3 to 16 years' custody
75
Theft – s.1 Theft Act 1968 SENTENCE GUIDELINE:
Maximum Sentence: 7 years' custody Offence Range: Discharge to 6 years' custody
76
Robbery – s.8 Theft Act 1968 SENTENCE GUIDELINE:
Maximum Sentence: Life imprisonment Offence Range: 2 to 16 years' custody
77
Burglary – s.9 Theft Act 1968 SENTENCE GUIDELINE:
Domestic Burglary: Maximum Sentence: 14 years' custody Offence Range: Community order to 6 years' custody Non-Domestic Burglary: Maximum Sentence: 10 years' custody Offence Range: Discharge to 5 years' custody
78
Aggravated Burglary – s.10 Theft Act 1968 SENTENCE GUIDELINE:
Maximum Sentence: Life imprisonment Offence Range: 1 to 13 years' custody
79
Criminal Damage – s.1 Criminal Damage Act 1971 SENTENCE GUIDELINE:
Summary (Damage < £5,000): Maximum Sentence: 3 months' custody and/or £2,500 fine Either Way (Damage > £5,000): Maximum Sentence: 10 years' custody
80
Aggravated Criminal Damage – s.1(2) Criminal Damage Act 1971 SENTENCE GUIDELINE:
Maximum Sentence: Life imprisonment Offence Range: 1 to 18 years' custody
81
Arson – s.1(3) Criminal Damage Act 1971 SENTENCE GUIDELINE:
Maximum Sentence: Life imprisonment Offence Range: Community order to 8 years' custody
82
Fraud by False Representation – s.2 Fraud Act 2006 SENTENCE GUIDELINE:
Maximum Sentence: 10 years' custody Offence Range: Community order to 6 years' custody
83
Fraud by Failing to Disclose Information – s.3 Fraud Act 2006 SENTENCE GUIDELINE:
Maximum Sentence: 10 years' custody Offence Range: Community order to 6 years' custody​
84
Fraud by Abuse of Position – s.4 Fraud Act 2006 SENTENCE GUIDELINE:
Maximum Sentence: 10 years' custody Offence Range: Community order to 6 years' custody​
85
Murder SENTENCE GUIDELINE:
Sentence: Mandatory life imprisonment Minimum Term: Determined by the judge based on aggravating and mitigating factors
86
Voluntary Manslaughter SENTENCE GUIDELINE:
Maximum Sentence: Life imprisonment Offence Range: 3 to 24 years' custody
87
SENTENCE GUIDELINE: Unlawful Act Manslaughter
Maximum Sentence: Life imprisonment Offence Range: 1 to 24 years' custody
88
Assault
Summary
89
ABH
Either
90
GBH .20
Either
91
GBH .18
Indictable
92
Theft
Either
93
Robbery
Either
94
Burglar
Either
95
Crim damage less than 5k?
Summary
96
AGG Burglar
Indict
97
Crim damage 5k+
Either
98
Arson
Either
99
Fraud all types
Either
100
Murder
indict
101
Voluntary manslaughter
Indict
102
Unlawful act manslaughter
Indict

SQE2.02 (31 decks)

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