Criminal Litigation Advocacy Tests Flashcards
What is the process for excluding visual identification evidence which was improperly obtained?
- Identify the court’s discretion to exclude identification evidence under section 78 of PACE
- Identify the relevant breached of the identification procedures under Code D of PACE:
- Failure to take into account reasonable objections to other parties in ID procedure
- Failure to be warned of obligations and consequences of action/ reason why ID procedure being held
*Failure to keep witnesses apart
*Failure to keep suspect and witnesses apart
*Failure to warn witness suspect might not appear (apart from for group ID)
*Failure to conduct police station ID process after identifying in group ID process
*Failure to take photograph of identified individual/play video parade twice
What is the process for excluding visual identification evidence due to poor quality?
- State that the court has discretion to exclude the evidence under section 78 of PACE. Should consider whether including the evidence would have such an adverse effect on the fairness of proceedings that it ought reasonably to be excluded.
- State the other evidence which the prosecution can rely on
- Address the strengths and weaknesses of the identification evidence using ADVOKATE
- Amount of time visible for
- Distance
- Visibility
- Obstruction
- Known
- Anything to remember
- Time elapsed
- Errors
What would an application to exclude a confession include?
- Remind the court that once the admissibility of the confession has been challenged, it is up to the prosecution to prove beyond reasonable doubt that the confession is not unreliable
- Identify the court’s mandatory duty to exclude a confession under s76 of PACE if the prosecution fail to discharge the burden of proof
- Identify that the confession is relevant to a matter in issue between the prosecution and the defence and is therefore admissible
- Identify the grounds under which you are seeking to exclude the evidence and provide relevant details
- Unreliability owing to things said or done to render it unreliable
- Unreliability owing to oppression
-Mistake
- Demonstration how the things said or done or oppression caused the confession
What is needed to apply to have other evidence excluded?
The court has a general duty to disclose prosecution evidence if, having regard to all the circumstances, inclusion of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it under section 78 of PACE
This could be used in conjunction with the exclusion of other evidence or as a stand alone argument
What is needed to demonstrate for hearsay evidence to be admissable?
- Identify whether the hearsay is single or multiple hearsay;
- For single hearsay, identify that hearsay is inadmissable unless one of the following grounds is established:
- Under statute;
-witness unavailable=witness cannot be found= reasonably practicable steps taken to locate - Under rule of law;
- Under agreement of the parties;
- In the interests of justice
- Or, for multiple hearsay, consider whether it is contained in a business document, it is an inconsistent/consistent statement, if all the parties agree, or if the value of the evidence is so high it is in the interests of justice
- Apply the test from the relevant exception
What must be demonstrated for a defendant’s bad character evidence to be admissible?
- Identify whether it is evidence of a disposition towards: misconduct, commission of offences, or other reprehensible behaviour outside of the offence. If it is, it is only admissable if it falls under one of the seven gateways:
- All parties agree;
- Adduced by defendant
- Important explanatory evidence
- It is relevant to an important matter in issue between the prosecution and defence
- There is substantial probative value to an important matter in issue between co-defendants
- It corrects a false impression given by a defendant
- The defendant attacks another’s character
Remember, the court should not admit point 4 and 7 if doing so would have such an adverse effect on the fairness of proceedings that the court must not admit it
What is required when appearing in an application for bail?
- Remind the court of the defendant’s right to bail: can only be refused if one of the grounds for refusing bail applies AND there is a real prospect of a custodial sentence being imposed
- Consider whether any exceptions to the right to bail apply e.g. substantial grounds for believing the defendant would commit further offences/ interfere with justice/interfere with witnesses/ fail to surrender/ cause injury/fear of to a related person
- Consider whether there are substantial grounds for believing this- past compliance, seriousness of offence, strength of evidence, community ties etc.
- Consider whether any conditions on bail could be imposed: anything that is relevant, proportionate and enforceable
- Conclude on why bail should/should not be granted
What is a plea in mitigation?
Statement containing information about the offence or yourself which might result in a lower sentence being imposed
What would an application for a plea in mitigation involve?
- Remind the court that the sentence must be proportionate to the seriousness of the offence, bearing in mind the offenders culpability/ any potential harm from the offence
- Identify the starting point for the offence and the range of sentencing available
- Consider the aggravating and mitigating factors related to the offence
4.. For multiple offences, explain why the sentences should be concurrent - Remind the court of credit due for an early guilty plea (if appropriate)
- Propose an appropriate sentence
What would an application of no case to answer involve?
- Remind the court that the burden is on the prosecution to prove each element of the offence beyond reasonable doubt
- Argue that the evidence the prosecution have adduced is insufficient for any reasonable court to convict:
either the prosecution have failed to prove an element of the offence, or because the evidence produced by the prosecution is so manifestly unreliable that no reasonable court could convict on it.
What would need to be included in an application for mode of trial- arguing that the court should accept jurisdiction?
- Remind the court that it must consider the adequacy of its sentencing powers (in relation to duration of sentence and complexity of the case)
- Think about MC-6/6/6/12
- Go through the range of sentencing powers and consider aggravating and mitigating factors which could impact where the defendant’s sentence would fall within this range
- Submit that the court’s sentencing powers are adequate and that it should therefore accept jurisdiction
How should you address a magistrate in the MC?
Your Worship
Sir/Madam
How should you address a District Judge in the MC?
Judge
How should you address a Circuit Judge in the Crown Court?
Your Honour
What type of judge is HHJ Allen?
Circuit judge, crown court, referred to as Your Honour
