Criminal Litigation - Advocacy Legal Tests

Question 1

Bail Application (Structure)

Answer 1

1) D has a general right to bail
2) Exceptions to right to bail
3) Factors to consider regarding exceptions to right to bail
4) Whether a custodial sentence would be imposed (sentencing guidelines)
5) Propose conditional bail

Question 2

Starting point for bail applications

Answer 2

Defendant has a general right under s4 Bail Act 1976

Bail can only be refused if two conditions are satisfied

1. One or more of the exceptions to right to bail apply AND
2. There is a real prospect of a custodial sentence being imposed if convicted

Question 3

Grounds to refuse bail

Answer 3

The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would:

(a) fail to surrender to custody, or

(b) commit further offences, or

(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

Question 4

Factors to consider for refusing the right to bail

Answer 4

a) nature and seriousness of offence, and probable sentence;
b) character and antecedents of defendant; (previous convictions)
c) defendant’s associations and community ties;
d) defendant’s bail history;
e) strength of the evidence

Question 5

Linking grounds to factors (Failure to surrender custody)

Answer 5

Failure to surrender custody

• Nature and seriousness of offence, and probable sentence
  a) If likely to result in a prison sentence and the evidence against is strong, to abscond and avoid that fate).
• Strength of the evidence
• Defendant’s community ties;
  a) If, for example, the defendant is unemployed, has no relatives in the local area, has lived in the area only for a short time or is of no fixed abode, the CPS may argue that there is nothing to keep them in the area and nothing to prevent them from absconding.
• Defendant’s bail history;
  a) If D has a history of absconding

Question 6

Linking grounds to factors (Commit further offences)

Answer 6

**Commit further offences **

• D’s character and antecedents of defendant; (previous convictions)
  a) If D has a history of committing similar types of offences or repetitive (serial).
  b) If D committed an offence whilst on bail
• Defendant’s associations
• If D is part of a gang or crime group

Question 7

Linking grounds to factors (Interfere with the witnesses)

Answer 7

Interfere with the witnesses

• D’s community ties
• If the D knows the witnesses and they fear him.

Question 8

Bail Conditions

Answer 8

• Surety (Absconding) :
• A surety is a person who enters into what is termed a ‘recognisance’ of money and is under an obligation to use every reasonable effort to ensure that the defendant attends court.
• Security (Absconding) :
• The defendant will be required to deposit a sum of money (or goods) with the court. If the defendant fails to attend court to answer their bail, they will forfeit the security they have given.

** Report to police station (Absconding and committing offences on bail) *

• Residence (Absconding and committing offences on bail) :
• The defendant resides at a specific address where the police will do regular checks
• Curfew (committing offences on bail) :
• The defendant remains at their place of residence between specified hours

*** Non-communication with prosecution witnesses (committing offences on bail and interfering with witnesses) **

*** Not to enter specified area (committing offences on bail and interfering with witnesses)

• Surrender passport (absconding)**

Question 9

Plea in mitigation (Opening Sentence example)

Answer 9

Introduce the plea by stating that the court “may be minded to impose” a particular sentence (likely to be custodial) but that you hope to persuade the court that [a lesser sentence e.g. community sentence] will be a more suitable sentence.

I will outline the sentencing guidelines, the defendants previous history, and the submit that a community order is suitable sentence.

Question 10

Plea in mitigation (Structure)

Answer 10

1) Facts of the case
2) Likely sentence
3) Proposed sentence or why the likely sentence should not be given (state that you will explain)
4) Mitigation of the offence
5) Mitigation of the offender
6) Highlight reduction for an early guilty plea (if there is one)
7) Suggest a sentence (after mitigation)

Question 11

Mitigation of the offence (Aggravating and mitigating factors)

Answer 11

 Minimise the impact of any aggravating factors :

• Was the offence planned or premeditated ?
• Did the offender operate in a group or gang?
• Did the offender deliberately target vulnerable groups (such as the elderly or disabled victims)?
• Was the offence committed whilst under the influence of drink or drugs ?
• Was a weapon used?
• Was there deliberate and gratuitous violence or damage to property, beyond that required to carry out the offence?
• Did the offence involve the abuse of a position of trust ?
• Was the offence committed against those working in the public sector or providing a service to the public e.g. police officer?
• In property offences, was the property of high value (including sentimental value) to the victim?

 Highlight the presence of any mitigating factors :

• Did the defendant act on impulse ?
• Did the defendant experience a greater degree of provocation than normally expected ?
• Did the defendant only play a minor role in the offending ?
• Was the defendant motivated by genuine fear ?

Question 12

Mitigation of the offender (Aggravating and mitigating factors)

Answer 12

I.e. the “sob story” - list factors about the offender which help explain/go towards justifying why they committed the offence.

 Minimise the significance of aggravating factors :

• Has there been a failure to respond to previous sentences?
• Distinguish previous convictions (if there is)

 Highlight the presence of mitigating factors :

• Mental illness or physical disability?
• Age
• Is the Defendant particularly young or old (particularly in the case of young offenders who are immature and have been led astray by others)?
• Has the defendant been remorseful, or attempted to make reparation to their victim?
• Family
• Does he have a regular home and job ? Will his family help him stay out of trouble in the future?

-Does he have children to care for? Is he a single parent? Is he expecting children?

• Will the defendant lose his job ? Will this damage the defendant if he is trying to get his “life back on track”?
• Cooperative with police?
• Previous convictions?
• Likelihood of repeat offending?

Question 13

Early Guilty Plea Reduction

Answer 13

If the defendant as pleaded guilty, the court must “take into account’ the stage in the proceedings at which the defendant gave his indication of a guilty plea

o Recommended Reductions (Reduction in Sentence for a Guilty Plea)
* 1/3 reduction if entered at the ‘first reasonable opportunity’;
* 1/4 reduction if entered when the trial date has already been set.
* 1/10 reduction if given either just before the trial begins, or during the trial.

Question 14

How to distinguish previous convictions (plea in mitigation)

Answer 14

• Explain how the current offence is different .
• If there are previous convictions, how long ago were they committed ?
• Highlight an absence of previous convictions , if applicable.
• A defendant of hitherto good character will lose his good name as a result of being convicted.

Question 15

Submission of no case to answer (structure)

Answer 15

1) Remind the court that the burden is on the prosecution to prove the defendant’s guilt and to prove that all the elements of the offence are made out beyond reasonable doubt

**2) Galbraith test **
The submission has two limbs as follows:
1. Either, that there is no evidence that a crime has been committed by the defendant; or
2. That there is some evidence before the court, but it is insufficient for any reasonable court to convict

Key arguments

That the evidence the prosecution has adduced is insufficient for any reasonable court to convict, either because:
* the prosecution has failed to prove an element of the offence, or
* the evidence adduced by the prosecution is so manifestly unreliable that no reasonable court could convict it

Question 16

Submission of no case to answer (Galbraith test)

Answer 16

The submission has two limbs as follows:

1. Either, that there is no evidence that a crime has been committed by the defendant; or
2. That there is some evidence before the court, but it is insufficient for any reasonable court to convict

Question 17

Submission of no case to answer (Second limb of Galbraith and Example)

Answer 17

That the evidence the prosecution has adduced is insufficient for any reasonable court to convict, either because:

• the prosecution has failed to prove an element of the offence, or
• the evidence adduced by the prosecution is so manifestly unreliable that no reasonable court could convict it

Example

If the defendant’s solicitor considers that the quality of the identification evidence given by an eyewitness is poor, and the CPS has no other supporting evidence, the solicitor should make a submission of no case to answer at the end of the prosecution case.

Question 18

Submission on mode of trial/ allocation (i.e., that the court should accept jurisdiction), committal and court procedure (Structure)

Answer 18

1) What sentence the prosecution suggested

2) Submit that the court’s sentencing powers are adequate to deal with the matter, and it should therefore accept jurisdiction.

3) Refer to the sentencing guidelines

a) Explain starting point up to maximum range
b)Mitigating factors
c) Aggravating factors

4) Determine the likely sentence (aim for the lower end of the range)

5) Conclude by saying that the sentence is within the powers of the court

Question 19

Sentencing powers of the courts

Answer 19

Magistrates : Max 12 months imprisonment

Question 20

Application for a representation order/legal aid (structure)

Answer 20

Defendant must satisfy two tests for an order to be awarded:
1. The interests of justice test AND
2. The means test

Question 21

Legal Aid (Interest of Justice Test)

Answer 21

1) Whether the defendant is likely to lose their liberty or livelihood or suffer serious reputational damage

• Relevant if a custodial sentence is likely. Consider the seriousness and nature of the offence, previous good character and standing of the defendant

2) Whether the case requires the determination of a substantial question of law

• Cases involving challenging identification evidence, hearsay evidence, bad character evidence, or inferences from silence then a RO is more likely to be granted

3) If the defendant is unable to understand the proceedings or state their own case

• Vulnerability (age, poor English) are relevant

4) If the case involves tracing witnesses, interviewing them or expertly cross-examining them
* Relevant if there is a need for expert witnesses

5) If it is in the interest of another person
* Relevant when case may involve cross- examination of a complainant in a secy or violent offence

Question 22

Legal Aid (Means Test)

Answer 22

The Means Test

Automatically satisfied if:
* Under 18
* Receipt of income support
* Job Seeker’s Allowance
* State pension
* Universal credit

Otherwise need to prove means are sufficiently low to qualify for legal aid:
* Threshold is £3,398 of annual disposable income after all deductions and adjustments

Question 23

Appeal against sentence/ conviction (Magistrates to the Divisional High Court by way of case stated)

Answer 23

• Appeal must be on the ground that the decision is wrong in law or in excess of jurisdiction

Question 24

Appeal against sentence/ conviction (Appeals from Crown Court)

Answer 24

Conviction: appeal on the grounds that the conviction is unsafe

Unsafe:
* Evidence was wrongly admitted or excluded
* Direction to jury was wrongly given or omitted
* Conduct of the trial judge demonstrated obvious bias
* Wrongful exercise of discretion
* Errors in summing up
* Problems relating to the jury

Sentence: appeal on the grounds the sentence was wrong in law, wrong in principle, or manifestly excessive

Question 25

Exclusion of any evidence under s78 PACE

Answer 25

DISCRETIONARY GROUND Court to exclude evidence if having regard to all the circumstances, including the circumstances in which 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 under s78 PACE. Support: Show why it would be unfair and conclude by stating that the admission of the evidence would be prejudicial rather than probative

Question 26

Exclusion of visual Identification evidence- exclusion due to poor quality under 78 PACE (Structure)

Answer 26

1) Discretionary Ground under s78 PACE 2) Argue for/against the quality of the evidence using the Turnbull guidelines 3) Turnbull factors (ADVOKATE)

Question 27

ADVOKATE factors

Answer 27

A - Amount of time (that they saw the accused) D - Distance (from the accused) V - Visibility O - Obstructions K - (accused was) Known to the witness A - Any reason for the witness remembering the accused T - Time since seeing the accused (i.e. when they witnessed them) E - Errors (any reason why the witness could have made an error).

Question 28

Exclusion of visual Identification evidence- exclusion as improperly obtained under s78 PACE

Answer 28

1) Discretionary Ground under s78 PACE 2) Significant and substantial breach of Code D

Question 29

What are some significant and substantial breaches of Code D

Answer 29

Failure to: * Take into account reasonable objections to appearance of others in the ID procedure * Keep the witnesses away from the suspect before and during the procedure * Keep witnesses apart before and during the procedure * Conceal or replicate a suspects unusual features (such as a facial scar, a tattoo or distinctive hair style or colour) which do not appear on the images of the other people * Warn that the suspect might not be shown at all

Question 30

Exclusion of confession evidence under s76 and s78 PACE (structure)

Answer 30

1) Mandatory ground to exclude evidence under s76 PACE * Confession MUST be excluded if the prosecution does not prove beyond reasonable doubt that the confession is not unreliable under s76 PACE. a) Unreliability owing to things said or done to render it unreliable (breach of PACE Code C) b) Unreliability owing to ‘Oppression’ 2) Discretionary ground to exclude evidence under s78 PACE

Question 31

Exclusion of confession evidence under s76 PACE (Unreliability/breach of Code C) - Examples

Answer 31

(a) **denying a suspect refreshments or appropriate periods of rest between interviews**, so that the suspect is either not in a fit state to answer questions properly, or makes admissions in interview simply to get out of the police station as soon as possible or to obtain rest or refreshments (b) **offering a suspect an inducement to confess, for example, telling a suspect that if they confess they will receive a lesser sentence**, suggesting to the suspect that they will be able to leave the police station much more quickly if they admit their guilt, or telling the suspect that they will only be granted police bail if they make a confession; (c) **misrepresenting the strength of the prosecution case**, for example by telling a suspect that the prosecution case is much stronger than it actually is and that there is no point in denying guilt; (d) **questioning a suspect in an inappropriate way**, for example by repeatedly asking a suspect the same question, or badgering a suspect until they give the answer the officer wants to hear; (e) **questioning a suspect who the police should have known was not in a fit state to be interviewed** either because the suspect had consumed drink or drugs, or because the suspect was suffering from some form of medical condition or ailment. The answers given by such a suspect in interview may be unreliable; (f) **threatening a suspect**, for example by telling them that they will be kept at the police station until they make a confession, so that the suspect thinks they have no option other than to confess if they want to get out of the police station. (g) **denying legal advice** when requested or not allowing at all

Question 32

Exclusion of confession evidence under s76 PACE (Oppression) - Examples

Answer 32

* Use or threat of violence * Torture * Inhumane or degrading treatment * Silence * Hostile or intimidating approach * Too many police officers being present during interview

Question 33

Exclusion of confession evidence under s78 PACE (Unfairness)

Answer 33

* Many of the cases in which the court has exercised this discretion under s 78 are concerned with suspects who have been **denied access to legal advice.**

Question 34

Admissibility of hearsay evidence

Answer 34

Grounds for admitting hearsay evidence Hearsay evidence will be admissible if it falls within one of four categories. Section 114 of the CJA 2003 states: (a) Admissible under statute, (b) admissible under any rule of law (c) all parties to the proceedings agree to it being admissible, or (d) the court is satisfied that it is in the interests of justice for it to be admissible.

Question 35

Hearsay evidence admissible under statute

Answer 35

1. Under statute – s114(1)(a) CJA **a. A witness is unavailable to attend court – s116 CJA** [dead, unfit owing to bodily/mental function, outside of UK, impractical to attend, fear ( there must be a causative link between their fear and making the statement) ] **b. Business doc may be adduced** if (1) doc was created/ received in course of trade, business profession or other occupation (2) person who supplied the info may reasonably be supposed to have had personal knowledge of the matter and (3) if info was received by another, it was done in the course of trade, business, profession or other occupation **c. Statements were prepared for use on criminal proceedings and the relevant person cannot be expected to recollect the matter** **d. There are previous consistent or inconsistent statements of a witness** **e. Expert evidence is adduced ** **f. There is a confession**

Question 36

Hearsay evidence admissible because it is in the interest of justice (s114(2) factors) 9 Factors

Answer 36

1. Probative value of the statement to a matter in issue 2. What other evidence could be given 3. How important the evidence is in relation to the case as a whole 4. Circumstances in which the statement was made 5. How reliable the maker of the statement appears 6. How reliable the evidence of the making of the statement appears 7. Whether oral evidence of the matter stated can be given 8. The amount of difficulty in challenging the statements 9. The extent to which that difficulty would be likely to prejudice the party facing it

Question 37

Admissibility of defendant’s bad character - 7 Gateways / s101(1) CJA (Structure)

Answer 37

1. All parties agree it is admissible 2. It is adduced by the defendant 3. It is important explanatory evidence 4. It is relevant to an important matter in issue between the prosecution and the defence 5. There is substantial probative value to an important matter in issue between co-defendants 6. It corrects a false impression given by the defendant 7. The defendant attacks another character

Question 38

7 Gateways - It is important explanatory evidence (s101(1)(c))

Answer 38

It is important explanatory evidence a. Without the evidence, the jury would find it difficult or impossible to understand other evidence in the case b. It has a substantial value for understanding the case as a whole

Question 39

7 Gateways - It is relevant to an important matter in issue between the prosecution and the defence (s101(1)(d))

Answer 39

Because it shows; a) Propensity to commit similar types of offences or even a b) Propensity to be untruthful

Question 40

7 Gateways - There is substantial probative value to an important matter in issue between co-defendants (s101(1)(e))

Answer 40

May apply where co-defendants are running a defence that blames each other

Question 41

7 Gateways - The defendant attacks another character (s101(1)(g))

Answer 41

7. The defendant attacks another character a) Covers suggestions that a witness is biased, raising their previous convictions, or accusing police of misconduct. b) the mere denial of the prosecution case will not be sufficient to attack another's character, and a defendant must go further.

Question 42

7 Gateways - It is evidence to correct a false impression given by the defendant (s101(1)(f)) When is a false impression given ?

Answer 42

if the defendant is responsible for the making of an express or implied assertion which is likely to give the court a false or misleading impression about the defendant.

Question 43

Bad Character evidence - Mandatory grounds to admit

Answer 43

4. It is relevant to an important matter in issue between the prosecution and the defence 7. The defendant attacks another character

Question 44

7 Gateways - It is relevant to an important matter in issue between the prosecution and the defence (s101(1)(d)) a) propensity to commit similar types of offences

Answer 44

Admitting (Prosecution) Defendant’s propensity to commit offences of the kind with which he is charged may be established by evidence that he has been convicted of: (a) an offence of the same description as the one with which he is charged, or (b) an offence of the same category as the one with which he is charged. (c) there are significant factual similarities between the offences Not-admitting (Defence) 1) Lapse of time 2) Factual Differences 3) How many previous convictions ? One conviction is unlikely to show a propensity. 4) Are the previous convictions spent ? 5) Does the propensity make it more likely that the defendant is guilty of the current offence?

Question 45

7 Gateways - It is relevant to an important matter in issue between the prosecution and the defence (s101(1)(d)) b) Propensity to be untruthful

Answer 45

Admitting (Prosecution) (a) the manner in which the previous offence was committed (because they had made false representations eg fraud); or (b) the defendant pleaded not guilty to the earlier offence but was convicted following a trial at which the defendant testified and was not believed. Not-admitting (Defence) 1) Lapse of time 2) Factual Differences 3) How many previous convictions ? One conviction is unlikely to show a propensity. 4) Does the propensity make it more likely that the defendant is guilty of the current offence?

Question 46

Bad character evidence - Fairness argument under s101(3) CJA (Arguments that can be raised)

Answer 46

s 101(3) of the CJA 2003: The court must not admit this evidence if on an application by the defendant to exclude it, it appears to the court that **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.** Arguments that may be raised include: (i) Would the convictions be **more prejudicial than probative?** Is there a danger that the defendant would be convicted on the basis of their previous convictions alone, due either to the extent or to the nature of such convictions? (ii) Are the previous convictions spent? (iii) Are the convictions being used to support a prosecution case that is otherwise weak?