Criminal litigation advocacy

Question 1

Application to exclude visual ID evidence due to poor quality

Answer 1

1) Identify the court’s discretion to exclude evidence under s 78, PACE 1984
2) Identify what other evidence there is to support prosecution
3) Argue for / against the strength of the evidence following guidelines set out in R v Turnbull:
a. Amount of time
b. Distance
c. Visibility
d. Obstruction
e. Known
f. Any reason to remember
g. Time lapsed between witnessing and identification
h. Errors in first description

R v Turnbull

Question 2

Application to exclude visual ID evidence due to it being improperly obtained

Answer 2

1) Identify the court’s discretion to exclude evidence under s 78, PACE 1984
2) Identify the relevant breaches of identification procedures under Code D, including:
a. Taking into account reasonable objections to appearance of others in ID procedure
b. Keeping witnesses away from suspect before and during procedure
c. Keeping witnesses apart during procedure
d. Warning that suspect might not be shown at all

Code D, Police and Criminal Evidence 1984

Question 3

Application to exclude a confession

Answer 3

1) Confession is generally admissible as a matter in issue between the prosecution and defence
2) Once admissibility is challenged, prosecution must prove beyond reasonable doubt that confession is not unreliable
3) Confession is unreliable if there is a causal link between it and:
a. Things said or done
b. Oppression
4) The confession would not have been made independently
5) Confession must be excluded if prosecution do not discharge this burden of proof

s 76, Police and Criminal Evidence Act 1984

Question 4

Application to exclude any evidence

Answer 4

1) Court has a general discretion to exclude prosecution evidence if having regard to all the circumstances, including the circumstances in which the evidence was obtained, admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it

s. 78, Police and Criminal Evidence Act 1984

Question 5

Application to admit hearsay evidence

Answer 5

1) Identify whether hearsay is single or multiple
2) Single hearsay is inadmissible unless an exception applies
a. Statute (Criminal Justice Act 2003):
i. Witness is unavailable
ii. Business document
iii. Statements were prepared for use in criminal case and relevant person cannot recollect
iv. Previous consistent / inconsistent statement of witness
v. Confession
b. Rule of law
i. Confession or statement part inculpatory and part exculpatory
ii. Statements made at the time of the event
iii. Statements preserved by res gestae: made when emotionally overpowered, accompanying an act which can only be properly evaluated with reference to the statement, relating to physical / mental state at time of statement
c. Agreement of parties
d. Interest of justice
3) Multiple hearsay is inadmissible unless an exception applies
a. Business document
b. Consistent / inconsistent statement with witness’ in-court testimony
c. Agreement of parties
d. Interests of justice

S.114, Criminal Justice Act 2003

Question 6

Bad character evidence of Defendant

Answer 6

1) Definition of bad character: ‘evidence of, or of a disposition towards, misconduct, commission of offences or other bad behaviour other than evidence related to the offence.’
2) NOT admissible unless it falls under one of the 7 gateways to admission (s 101, Criminal Justice Act 2003)
a. All parties agree
b. Adduced by D
c. Important explanatory evidence
d. Needed to correct false impression given by D
e. Substantial probative value to important matter between co-defendants
f. D attacks another’s character
g. Relevant to important matter in issue between prosecution and defence, including propensity to commit the offence or propensity to be dishonest
3) If admitted on basis of last two gateways, if defence makes application to exclude it and it appears to court that admission would have adverse effect on fairness of proceedings, court MUST NOT admit it

Criminal Justice Act 2003

Question 7

Bail application

Answer 7

1) D must be granted bail without condition, if no exception applies (S4, Bail Act 1976)
2) Bail can only be refused to if:
a. Exception applies, AND
b. There is real prospect of a custodial sentence
3) Exceptions (Sch 1, Bail Act 1976):
a. Failure to surrender
b. Commit further offences on bail
c. Interfere with witnesses or obstruct justice
d. Commit offence on bail that would injure an associated person
e. Charge is offence that can be tried in Crown Court
f. Custody is for their own protection
g. Failed to surrender / breached bail conditions in same proceedings
h. Insufficient information to make a decision
4) For (a)-(d), there must be substantial grounds:
a. Nature and seriousness of offence
b. D’s character
c. Record of complying with conditions on bail
d. Strength of evidence
5) Could any conditions address these issues? e.g. Geographical restriction, reporting, non-contact tag, curfew
6) Request bail

Bail Act 1976

Question 8

Plea in mitigation

Answer 8

1) Remind the court that under the totality principle, the sentence must be proportionate to seriousness of offence, and the custody threshold requires the court to only impose a custodial sentence where a community order or fine would be inadequate
2) Use sentencing guidelines to identify the starting point and range
3) Identify any aggravating / mitigating factors
4) Multiple offences: explain why sentences should be concurrent (arose out of same facts)
5) Any mitigating factors relating to the offender?
6) Remind the court of credit for a guilty plea (if appropriate)
7) Propose an appropriate sentence

Question 9

Submission of no case to answer

Answer 9

1) Burden is on prosecution to prove defendant’s guilt and all elements of the offence
2) Argue that prosecution has not presented enough evidence for a prima facie case
3) Apply test in R v Galbraith:
a. There is no evidence that a crime has been committed by the defendant; OR
b. There is some evidence, but it is tenuous or inconsistent in nature.
4) Judge must consider whether the evidence, when taken at its highest, is such that the jury could not properly convict upon it: if so, case should be dismissed

R v Galbraith

Question 10

Plea before venue- court should accept jurisdiction

Answer 10

1) Magistrates’ Court’s sentencing powers are restricted to:
a. Single either way offence: 6 months’ imprisonment
b. 2 or more either way offences: 12 months’ imprisonment
2) Go through relevant sentencing guidelines and aggravating / mitigating factors

Question 11

Youth Court- allocation when offence is a ‘grave crime’

Answer 11

1. Generally youths aged 10-17 are tried in the youth court unless they are charged with an adult or charged with a grave crime
2. A grave crime is a sexual or violent offence that carry a maximum sentence of 14 years or more in the adult court
3. Factors considered when determining which court are:
   i. Is there a real prospect that the youth, if convicted, will receive a custodial sentence of substantially more than 2 years
   ii. Welfare of the child and child’s best interests
4. Maximum sentence the youth court can impose is a 2 year Detention and Training Order
5. If on the line, the court should not commit the child to the adult court

S91, Powers of Criminal Courts (Sentencing) Act 2000

Question 12

Bad character evidence of non-defendant

Answer 12

Only admissible if:
1. Important explanatory evidence
2. Has substantial probative value in relation to:
a. A matter in issue in the proceedings: AND
b. Is of substantial importance in the case as a whole.
3. All parties agree

Evidence is important explanatory evidence if:
1. Without it, court would find it difficult to understand other evidence: AND
2. Its value for understanding the case as a whole is substantial.

S.100, Criminal Justice Act 2003