Criminal Advocacy Tests Flashcards
What are the 9 most likely applications that could arise in the criminal advocacy assessments?
- Bail application
- Exclusion of confession evidence
- Exclusion of identification evidence
- Exclusion of evidence (general)
- Admissability/exclusion of bad character evidence
- Admissability/exclusion of hearsay evidence
- Submission of no case to answer
- Mode of trial hearing
- Plea in mitigation
What is the general structure in criminal advocacy?
- Introduce yourself and your client
- Explain the application/s that are being made
- Briefly summarise the underlying case/Ask the judge if they require a summary
- Confirm with the judge that they have the necessary documents in front of them
- You should list all the documents one by one and wait for the judge to confirm they have every document.
- Address the relevant law: set out your first ground
- On each application look to sub-divide the law into relevant issues
- Address your own arguments first and then those posed by the other side
- Repeat for any additional grounds/issues
- Conclude with your strongest arguments and offer to assist the court
How should you set out an application for bail (6) + What are the grounds/factors around which you should centre an application for bail?
- The presumption in favour of granting bail- remind the court of this
- Explain that bail can only be refused if one of the 3 exceptions to bail apply AND a custodial sentence for the offence is likely
Substantial grounds to believe;
- D will FAIL TO SURRENDER
- D is likely to COMMIT FURTHER OFFENCES whilst on bail
- D is likely to INTERFERE WITH WITNESSES.
- Explain whether a custodial sentence is likely in relation to the case based on the sentencing guidelines
- If a custodial sentence is likely, bail is STILL POSSIBLE if none of the three exceptions apply
- Even if one of the three exceptions to bail apply, bail conditions can be imposed on the defendant
- Explain why the three- exceptions to the right to bail are unlikely to be made out by going through the following 5-factors the court should consider when deciding whether to grant bail
- The nature and seriousness of the offence + Strength of the evidence :
- D’s character and prior criminal record
- D’s associations: people the D associates with (e.g. gang members and known criminals which may increase the risk of re-offedning or witness interference)
- Community Ties
- D’s record in respect of previous grants of bail: particularly any failures to surrender
- Pick out any relevant conditions out of the 5- main conditions which can be imposed to ensure D keeps out of trouble
- Residing at a specific address
- Regularly reporting to the police station
- Prohibition on entering the area of: the offence, the victim’s home, prosecution witness’ home
- Prohibition on contacting the victim and any other prosecution witness
- Requirement to comply with curfew or house arrest/ or wear an electronic tag.
- Conclude strongly on why bail should be granted: no substantial grounds to believe D will fail to surrender, commit further offences, interfere with witnesses
How should you lay out an application to exclude confession evidence (6) + what are the two grounds around which you should centre an application to exclude confession evidence.
- Remind the court that once the admissability of a confession has been challenged its up to the prosecution to prove beyond reasonable doubt that the confession is NOT unreliable
- Remind the court tht the confession MUST be excluded if the prosecution does not discharge the burden under s 76 PACE: confession MUST be excluded if prosecution cannot prove beyond reasonable doubt the confession was NOT obtained either by OPPRESSION or things said or done likely to render a confession UNRELIABLE.
- Explain that as the confession is relevant to a matter in issue between the prosecution and the defence the confession is typically admissible.
- Identify the grounds in which the confession is sought to be excluded:
Ground 1: Section 76(2) PACE 1984: requires the court to exclude the confession if it was obtained through
(a) Oppression
(b) Circumstances likely to render the confession unreliable.
- If such claims are made, the prosecution must prove beyond a reasonable doubt that the confession was not obtained in either manner for it to be admissible, even if the confession appears true.
Ground 2: Section 78 PACE 1984: Court may use their broad discretion to exclude prosectuion evidence if its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.
- Demonstrate causation between the opression OR the things said and done and the induced confession
- Conclude strongly as to why opression should be excluded
Under Section 76(2)(a) PACE 1984, what actions may constitute OPRESSION
Opression- s76(a)
Section 76(8) defines OPPRESSION as including;
* Torture
* Inhuman or degrading treatment, OR
* The use or threat of violence
The courts interpret this broadly to include harsh, burdensome, or unjust treatment.
Key Case: R v Paris (1993)
* A defendant was repeatedly hectored and bullied during a police interview.
- The Court of Appeal found this to be highly oppressive and excluded the confession.
Under Section 76(2)(b) PACE 1984 what circumstances are likely to render a confession unreliable (7)?
Unreliability-s76(b)
Unreliability (s 76(2)(b))
A confession may be excluded if it was made under circumstances likely to render it unreliable, regardless of police intent. This often involves breaches of Code C of PACE 1984.
Examples of 7 Circumstances Rendering a Confession Unreliable:
- Denial of rest or refreshments:
- A suspect may confess just to leave the police station or due to exhaustion, especially if ill or vulnerable.
- Inducements to confess:
- Promising a lesser sentence or faster release in exchange for a confession.
- Misrepresenting evidence:
- Telling a suspect the prosecution case is stronger than it is, to coerce a confession.
- Inappropriate questioning/interview techniques:
- Badgering a suspect or asking the same question repeatedly.
- Suggestive questioning/statements- suggesting that a D has committed an offence and using guilt based language
- Using silence as an intimidation tactic to unnerve the suspect.
- Interviewing unfit suspects:
- Taking statements from intoxicated or medically unfit suspects.
- Threats:
- Imposing undue pressure, such as threatening prolonged custody without a confession.
- Denial/Delay to legal advice
- Suspect has the right to free and independent legal advice at any time while in custody
- If a suspect who has previously refused legal advice asks for it in an interview, the interview should be stopped and the D should be provided with legal advice.
- In certain situations denying legal advice is insufficient alone to exclude a confession (particulalrly for experienced suspects who understand their rights), unless the defence shows a causal link between the denial and the confession’s unreliability.
Denial of legal advise can only be obtained if;
- Denied by an officer of rank superintendent or above.
- D suspected of an indictable or either way offence.
- The denial of legal advice is to prevent the D from alerting others, interfering with witnesses and to secure the recovery of evidence.
Key Case: R v Trussler (1998)
* A drug addict denied rest, refreshments, and legal advice confessed after 18 hours of detention.
- The confession was excluded as unreliable due to the conditions.
Key Case: R v Alladice (1998)
* A defendant denied legal advice, but the court admitted the confession because the defendant was experienced and understood their rights, making it unlikely the confession was unreliable.
Under Section 78 PACE 1984 when would the admission of confession evidence (where D admits having made a confession) have such an adverse effect on the fairness of proceedings that it ought not to be admitted?
Using s78 PACE to exclude a confession if D admits having made a confession;
If a defendant argues that the police breached PACE 1984 or its Codes of Practice, the court may exclude the confession under s 78 if these breaches are SIGNIFICANT and SUBSTANTIAL
- Breaches of PACE or the Codes must be significant and substantial to justify excluding evidence- R v Keenan [1990]
- Denial of access to legal advice is likely to render a confession inadmissible if it significantly impacts fairness- R v Walsh (1989)
Under Section 78 PACE 1984 when would the admission of confession evidence (where D DENIES having made a confession) have such an adverse effect on the fairness of proceedings that it ought not to be admitted?
Using s78 Pace to exclude a confession if D denies having made a confession
A defendant may challenge confessions allegedly made outside the police station. Breaches of Code C of PACE may justify exclusion under s 78, such as:
- Failure to record the defendant’s comments accurately
○ The police must substantiate that the defendant made the statement. - Failure to allow the defendant to review and sign the record
○ The defendant must have the opportunity to confirm or dispute the record. - Failure to put the confession to the defendant during the recorded interview
○ This ensures the defendant can confirm or deny the statement “on the record.”
- The police failed to make contemporaneous notes of alleged admissions.
- The court excluded the evidence under s 78 due to the adverse impact on fairness- R v Canale [1990]
How do you set out an application to exclude weak quality ID evidence (3)? + what are the relevant grounds in relation to ADVOKATE
- Remind the court that it has discretion under s 78 PACE to exclude any evidence that would have an adverse effect on the fairness of proceedings
- Using the Turnbull Guideline’s reference to ADVOKATE explain why the ID in your specific case is weak and should be excluded under s 78 PACE
- Amount of time under observation- How long did the witness have the person/incident in view was able to view the suspect
- Distance: What was the distance between the
witness and the person/incident? - Visibility: What was the visibility at the time?
- Obstructions: Were there any obstructions to the view of
the witness? - Known or seen before: Did the witness know,
or had the witness ever seen, the person
before? If so, where and when? - Any reason to remember? Did the witness
have any special reason for remembering the
person/incident? Was there something specific
that made the person/incident memorable? - Time lapse; How long has elapsed since the
witness saw the person/incident? - Error or material discrepancy: Are there any
errors or material discrepancies between
descriptions in the first and subsequent
accounts of the witness?
The poorer the quality, the bigger the adverse effect on the fairness of proceedings
- Conclude the application with why the ID evidence should be excluded
How do you set out an application to exclude weak ID evidence (improperly obtained) (3) + what are the three relevant grounds/reasons to exclude weak ID evidence.
- Remind the court that it has a discretion under s 78 PACE to exclude any evidence that would have an adverse effect on the fairness of proceedings
- With reference to Code D of Pace explain why the ID evidence was improperly obtained and should be excluded
The 3 main reasons why ID evidence would be considered improperly obtained are
(a) The Defendant’s reasonable objections as to the appearance of the others in the ID parade were not taken into acount
(b) There was a failure to keep witnesses away from each other OR away from the defendant during the ID procedure
(c) There was a failure to warn the witness that the defendant may not appear in the ID parade at all
- Conclude the application with why the ID evidence should be excluded
What are the 7 other common breaches to Code D, in relation to exclusion of ID evidence?
a). Failure to hold a required identification procedure
b). Improper use of confrontation
c). Investigating officer involved in the identification procedure
d). Suggestive or unfair identification procedures
e). No record or disclosure of the witnesses first description
f). Failure to keep witnesses separate
g). Custody record not updated to show informal identification procedures
- Failure to Hold a Required Identification Procedure
- Where a witness claims they can identify the suspect and the suspect disputes it, police must offer a formal ID procedure (e.g. video ID or ID parade).
- Relying on informal or street identification without this is a major breach as it mean the reliability of the evidence has not been tested.
- Improper Use of Confrontation
- Using confrontation (e.g. taking the witness to the custody suite to view the suspect) without first offering other formal procedures is improper.
- Confrontation should only be used as a last resort.
- Suggestive nature of thie procedure creates a high risk of memory contamination and error leading to misidentification.
- Investigating Officer Involved in the Identification Procedure
- The officer conducting the procedure must be independent from the investigation.
- Involvement of the investigating officer risks influencing the witness and undermines fairness.
- Suggestive or Unfair Identification Procedures
- The suspect must not stand out from others in the procedure.
- If the suspect has a distinguishing feature (e.g. scar, tattoo, unusual hairstyle), it must be concealed or replicated in the others. Failing to do so makes the suspect stand out and renders the identification unfair.
- In an identification parade, there must be at least 8 other individuals who resemble the suspect.
- In video identification, the witness must be shown at least 12 images, including the suspect and others of similar appearance.
- The witness must be told that the suspect may or may not be present.
- If any of these safeguards are not followed, the procedure becomes unfair and suggestive.
- No Record or Disclosure of the First Description
- Police must record and provide the first description given by the witness.
- Without it, the defence cannot test the accuracy or reliability of any later identification.
- Failure to Separate Witnesses
- Witnesses must be kept apart and must not communicate with each other before, during, or after the procedure.
- Breaches here risk contamination of identification evidence.
- Lack of Record of Informal Identification in the Custody Record
- If an informal identification (e.g. street or spontaneous ID) takes place, it must be clearly recorded in the custody record.
- Failure to document it prevents the defence from properly challenging the ID (e.g. what was said to the witness, how the witness responded to the suspect, what was said etc) which raises concerns about fairness of the proceedings due to the lack of transparency surrounding the circumstances which undermines the reliability and integrity of the prosecution’s evidence.
What are the relevant laws/grounds/issues around which you should centre an application to exclude prosecution evidence generally (2)?
- Section 78 PACE 1984
- Explain that having regard to all the circumstances including how the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Examples include: - Evidence obtained by entrapment
- Evidence obtained by abuse of process i.e., illegal searches and raids
- Conclude with why the evidence should be excluded
How do you set out an application to admit evidence of a D’s bad character (3)?
5 main grounds to admit evidence of a D’s bad character?
Impalas, Run, Swiftly, Chasing, Antelopes
- Explain on which ground the evidence of a D’s bad character should be admitted on
- Important explanatory evidence
- Relevant to an IMPORTANT matter in issue between the prosecution and the defence
- Substantial provative value in relation to an IMPORTANT matter in issue between co-defendants
- Corrects a false impression given by the defendant
- Attacked another persons character
- Explain how the defendant has shown their bad character
- Use facts in the bundle
- Example may include the D committed an offence of the same nature recently
- Conclude the application with why the D’s bad character should be admitted as evidence
How do you set out an application to exclude evidence of a D’s bad character (3)?
- Set out the gateway under which the prosecution wish to adduce bad character evidence
- Gateway C
- Gateway D
- Gateway E
- Gateway F
- Gateway G
- Make a submission that the bad character evidence the prosecution wish to adduce under a particular gateway should be excluded under s 78 PACE as it would have an adverse effect on the nature of the proceedings
- Conclude the application on why the D’s bad character evidence should be excluded
Exclusion of bad character evidence
Although an application to exclude evidence under s. 78 PACE is at the court’s discretion, which two bad character grounds make it MANDATORY to exclude if the adverse effect on fairness test is met?
- Matter in issue between Prosecution and Defendant
- Defendant attacked another person’s character
What are some examples of defence submissions to exclude bad character evidence under gateways C and D
Examples
Gateway c: Important explanatory evidence
This gateway can only be used if
- Without it the court would find it difficult to understand other evidence in the case
- It’s value for understaning the case as a whole is substantial
Defence submission
* Previous convictions are not needed for the court to understand the evidence put forwards in this case
- The facts of this case are materially different to the D’s previous convictions
Gateway D-relevant to an importan matter in issue between D and Prosection
- Prosecution wish to use this gateway and introduce D’s previous convictions to show;
- D has a propensity to commit offences of the same nature
- D has a propensity to be untruthful
Defence submission
- Massive time lapse between previous convictions and current convictions.
- Previous convictions are spent
- Materially different facts between the circusmtances of each offence
-Propensity to commit an offence (of the same nature) not established
- D has only been found guilty in one offence which doesn’t show an active pattern of deception
-Propensity to be untruthful not established
What are some examples of defence submissions to exclude bad character evidence under gateways F and G
Examples:
Gateway F- Evidence to correct a false impression given by the Defendant
- Prosecution wish to introduce evidence to correct a false impression created by the D
Defence submission
* The D has not created a false/misleading impression about themselves in this situation
Gateway G- Defendant has made an attack on another person’s character
- Prosecution wish to adduce bad character evidence on the ground the D has made an attack on another’s character
Defence Submission
To make an attack on another person’s character a D must
* make accusations of a person having a bad character
* Suggest a person regularly engages in immoral or criminal behaviour
* Suggest a person has a tendency to be untruthful/unreliable
- The D’s statements relate to a persons actions in a SPECIFIC INCIDENT rather than amounting to allegations of a person being generally dishonest, immoral or engaging in criminal behaviour
How do you set out an application to admit hearsay evidence (3)?
- Identify whether the hearsay is standard hearsay or multiple hearsay
- Standard hearsay: This is a statement made outside of court which is used in court as evidence of truth of the matter stated.
- Multiple Hearsay: This is a statement that contains one or more levels of hearsay — essentially hearsay within hearsay.
- Explain to the court hearsay is not generally admissible unless an exception applies
The four main exceptions to admit standard hearsay
- Standard hearsay is admissable under statute
-Section 116 CJA 2003 allows hearsay such as a written witness statement to be disclosed if the witness who originally gave the statment is unavailable. - Standard hearday is permitted by rule of law
-Section 118(1) of the CJA 2003 allow certain types of public documents which already contain public information to be admitted - All parties involved agree to admit the hearsay evidence
- The value of the evidence is so imporant that it is in the interests of justice to admit it- under section 114(2) CJA 2003, hearsay evidence can be admitted if a judge determines that the evidence is very important to the context of the case as a whole.
The four main exceptions to admit multiple hearsay
- Multiple hearsay can be admitted if it contained in a business document which was- created in the course of trade + the person who supplied the document has personal knowledge of the matter
- Multiple hearsay can be admitted where a witness gives oral evidence but has made a previous inconsistent statement (where they repeat what someone else has said). This previous inconsistent statement (which is multiple hearsay), can be admitted to weaken the witnesses credibility- section 119 CJA 2003
- Multiple hearsay can be admitted where a witness gives oral evidence and has made a previous consistent statment (where they repeat what someone else has said). This previous statement is multiple hearsay and can be admitted to prove the witnesses’ credibility or consistency- section 120 CJA 2003
- The value of the evidence is so important that it is in the interest of justice to admit it- under s114(2) a judge determines that the evidence is very important to the context of the case as a whole.
- Conclude with why hearsay should be admitted into evidence
How do you set out an application for a submission of no case to answer (3) + what are the relevant grounds?
- Remind the court that the prosecution has the burden of proving the defendant’s guilt beyond reasonable doubt and must prove all elements of the offence were made out
- Explain (using 2 main grounds) why the evidence the prosecution have adduced is insufficient for any reasonable court to convict the defendant
Ground 1: The Prosecution have failed to prove an element of the offence
OR
Ground 2: The evidence adduced by the prosecution is so manifestly unreliable that no reasonable court could convict the defendant
- Conclude the application with why the case should not proceed to trial
How do you set out a mode of trial representation (4)
(application for the magistrate’s to retain/decline jurisdiction)?
- Remind the court of two things:
- That it must consider the adequacy of its sentencing powers when deciding whether to accept jurisdiction and should only decline jurisdiction if it does not believe its sentencing powers are adequate.
- Remind the court of it’s actual sentencing powers e.g. restricted to maximum of 6 months imprisonment for a single either way offence
- Set out the typical starting point sentence and range of sentences for the offence using the sentencing guidelines for the offence committed
- Identify whether there are any aggravating factors or mitigating factors in relation to the offence
- Conclude the application by explaining what the likely sentence is and why the court should retain jurisdiction (i.e. it’s within the magistrate’s sentencing powers)
How to structure a plea in mitigation (9)?
- Explain the application being made: I will be making a plea in mitigation in relation to the defendant’s sentence
- Confirm with the judge that they have the necessary documents in front of them
- Briefly summarise what the case is about/ask the judge if they require a summary of the case
- Identify the STARTING POINT SENTENCE for the offence and the RANGE of sentences available
- Consider the aggravating factors & mitigating factors in relation to the offence
- Try and downplay aggravating factors and highlight mitigating factors related to the offence that make it less serious
- If the defendant committed multiple offences, explain why the sentences should be concurrent
- Consider any mitigating factors related to the defendants’ personal circumstances
- Use the clients’ instructions and the probation service’s pre-sentecing report to explaim why the section 57 Sentencing Act 2020 purposes (punishment of offenders, reduction of crime, reform and rehabilitation of offenders, protection of the public, making reparations to victims) will be satisfied by a lower sentence
- If the defendant entered an early guilty plea remind the court that the D should be credited for this and receive a fractional reduction off their sentence
- Conclude by proposing a recommended sentence for the defendant
