Criminal Litigation Advocacy Tests: Extended

Question 1

What is the overriding objective in the criminal courts?

Answer 1

That criminal cases be dealt with justly, which includes (amongst others):
i. acquitting the innocent and convicting the guilty,
ii. dealing with the prosecution and the defence fairly,
iii. recognising the rights of a defendant,
iv. respecting the interests of witnesses, victims and jurors, and
v. dealing with the case efficiently and expeditiously.

Question 2

How would you structure an application for visual identification evidence to be excluded due to being improperly obtained?

Answer 2

1. Identify the court’s discretion to exclude evidence under s78 PACE if they consider its admission would have such an adverse effect on the fairness of proceedings of trial that it ought to be excluded.
2. Identify the relevant breaches of identification procedures (usually video identification) under Code D, including:

i. a failure to take into account reasonable objections to the appearance of others in the identification procedure,

ii. a failure to keep the witnesses away from the suspect before or during the identification process,

iii. a failure to keep witnesses apart before or during the identification process, or

iv. a failure to warn witnesses that the suspect might not be shown at all.

Question 3

How would you structure an application for/against bail?

Answer 3

1. Remind the court of the defendant’s general right to bail.
2. Outline the test that must be satisfied so for the court to remand a defendant into custody,
3. Consider whether any of the exceptions to the right to bail exist,
4. Review the factors in deciding whether substantial grounds exist,
5. Consider whether any conditions could be put forward to address issues
6. Conclude on why bail should/should not be granted

Question 4

When can the court remand a defendant into custody?

Answer 4

Defendants have a general right to bail.

The court can remand a defendant into custody only if it finds:
i. an exception to the right to bail applies, and
ii. there is a real prospect of a custodial sentence being imposed if convicted.

Question 5

What are the exceptions to the right to bail?

Answer 5

A. the substantial grounds exception,

B. they are charged with an offence that can be tried in the Crown Court + they were on bail at the time of the offence,

C. custody is for their own protection,

D. there are substantial grounds for believing that the defendant would commit an offence on bail that would cause (or cause fear of) physical or mental injury to an associated person, which includes spouses, (former) partners, children + relatives of the defendant,

E. they are already serving a custodial sentence,

F. there is insufficient information to make a decision on bail, or

G. they have failed to surrender or breached bail conditions in the same proceedings.

Question 6

What is the substantial grounds exception to the right to bail?

Answer 6

There are substantial grounds for believing that the defendant would:
i. fail to surrender,
ii. commit further offences whilst on bail,
iii. interfere with witnesses or otherwise obstruct justice.

Question 7

What factors are considered in deciding whether the substantial grounds exception to bail exists?

Answer 7

i. the nature and seriousness of the offence and the probable method of dealing with it,

ii. the defendant’s character, previous convictions, associations, and community ties,

iii. the defendant’s record on complying with bail obligations,

iv. the strength of the evidence,

v. the risk that the defendant might engage in conduct that would or would be likely to, cause physical or mental injury to another

Question 8

What conditions could be imposed on bail to address any issues?

Answer 8

1. Requiring the defendant to reside at a specified address,
2. Requiring the defendant to report to a local police station at regular intervals,
3. Prohibiting the defendant from going to a particular area,
4. Prohibiting the defendant from contacting certain named individuals (e..g, victims + witnesses),
5. Requiring the defendant to comply with a curfew,
6. Requiring the defendant to wear an electronic tag, and
7. Requiring the defendant to obtain a surety who can post security that will be forfeited if the defendant fails to surrender

Question 9

What structure would you adopt for an application for special measures for vulnerable witnesses?

Answer 9

1. Remind the court that being eligible for special measures doesn’t mean that the court will automatically grant special measures,
2. Explain the test - the court must satisfy itself that the special measure or a combination of special measures is likely to maximise the quality of the witness’s evidence being granted on application.
3. Explain why the witness is eligible,
4. Explain why the measure(s) is being sought,
5. Explain how it will enable best evidence,
6. Present any views expressed by the witness.

Question 10

Who is eligible for special measures when acting as a witness?

Answer 10

i. under 18,
ii. have a disability, or disorder likely to affect evidence,
iii. affected by fear of giving evidence,
iv. complainants in sexual offences,
v. witnesses to specified gun + knife crimes

Question 11

How would you structure an application for prosecution’s reconsideration of bail?

Answer 11

1. Explain that the prosecution may apply to vary the conditions of bail, impose conditions on bail which had been granted unconditionally, or revoke bail,
2. Explain that the prosecution may only apply on the basis of information which wasn’t available to the court/police when the original decision was made
3. Explain that this new information need not relate directly to the offence but may relate to matters such as:
   i. the defendant’s criminal record,
   ii. his/her address in relation to the complainant’s address,
4. Show how such new information has been found, and why this affects bail.

Question 12

How would you structure an application for the exclusion of a confession?

Answer 12

1. Remind the court that once the admissibility of a confession is challenged, the burden is on the prosecution to show beyond reasonable doubt that neither oppression nor things said or done likely to render the confession unreliable apply.
2. Remind the court that the confession must be excluded if the prosecution fails to discharge this burden under s76 PACE.
3. Identify that the confession is relevant to a matter in issue between the prosecution and defence + is therefore admissible.
4. Identify under which ground the confession is sought to be excluded + provide relevant details
   i. it is unreliable owing to things said or done, or
   ii. it is unreliable owing to oppression.
5. Demonstrate causation from the things said or done or oppression to the confession.
6. Conclusion

Question 13

What does unreliability owing to things said or done include in relation to confessions?

Answer 13

Includes:
i. inducements,
ii. misrepresenting the strength of a case, or
iii. questioning a suspect when unfit.

Question 14

What does unreliability owing to oppression include in relation to confessions?

Answer 14

Includes:
i. torture,
ii. inhumane treatment,
iii. degrading treatment, and
iv. the use or threat of violence.

Question 15

How would you structure an application for exclusion of any evidence?

Answer 15

1. Remind the court that they have discretion to exclude evidence offered by the prosecution if it appears to the court, considering all the circumstances, that admission of the evidence would have an adverse impact on the fairness of the proceedings under s78 PACE 1984.
2. Remind the court that exclusion for unfairness is often used if police officers have breached their duties under PACE in obtaining evidence.
3. Explain that a court will usually not exercise their discretion unless the breaches are:
   i. significant and substantial, and
   ii. have rendered the evidence unreliable.
4. Show that the breaches have been:
   i. significant and substantial, and
   ii. rendered the evidence unreliable.

Question 16

What breaches of PACE may lead to evidence being excluded for unfairness under s78 PACE?

Answer 16

i. illegal searches,
ii. identification evidence,
iii. confessions,
iv. covert surveillance, and
v. undercover operations.

Question 17

What structure would you use for an application for the admissibility of single hearsay evidence?

Answer 17

1. Identify whether the hearsay is single or multiple hearsay,
2. Identify that single hearsay is inadmissible unless one of the exceptions applies:
   i. under statute,
   ii. by rule of law,
   iii. by agreement of the parties,
   iv. in the interest of justice
3. Explain how the exception applies - apply the test from the relevant exception

Question 18

What structure would you use for an application for the admissibility of multiple hearsay evidence?

Answer 18

1. Identify that the evidence is multiple hearsay.
2. Explain that it is inadmissible unless an exception applies.
3. Explain which exception applies:
   Multiple hearsay is allowed if it is:
   i. contained in a business document,
   ii. an inconsistent statement,
   iii. a consistent statement,
   iv. agreed to by all parties, or
   v. such valuable evidence that it is in the interests of justice.

Question 19

When does hearsay arise?

Answer 19

Hearsay arises when evidence is produced in writing or when someone testifies in court to something someone else told them out of court

Question 20

What are common hearsay examples?

Answer 20

1. witness statements read out in court (rather than the witness attending in person), and
2. business documents produced in court, e.g., company account records.

Question 21

When will single hearsay be admissible under statute?

Answer 21

Applies when:
1. A witness is unavailable
2. A business document may be adduced under certain conditions,
3. Statements were prepared for use in criminal proceedings + the relevant person cannot be expected to recollect the matter,

4. There are previous consistent or inconsistent statements of a witness,
5. Expert evidence is adduced,
6. There is a confession

Question 22

Hearsay - when will a witness be unavailable?

Answer 22

If they are:
i. dead,
ii. unfit owing to bodily or mental condition,
iii. outside of the UK and it is not reasonably practicable to secure their attendance, or
iv. unable to be found despite reasonably practicable steps having been taken to find them.

Also includes when a witness doesn’t give evidence through fear + the court gives leave for a written/recorded statement to be given in evidence.

Question 23

Hearsay - when can a business document be adduced under statute?

Answer 23

A business document may be adduced if:

i. the document was created or received in the course of trade, business, profession or other occupation,

ii. the person who supplied the information may reasonably be supposed to have had personal knowledge of the matter, and

iii. (if the information was received by other persons) it was done in the course of trade, business, profession, or other occupation.

Question 24

When is hearsay evidence admissible by the Rule of Law ?

Answer 24

Some rules of law permit the admission of certain categories of hearsay, including:

i. confessions or mixed statements by the defendant,

ii. statements made contemporaneously to the offence,

ii. statements preserved by res gestae

Question 25

Hearsay - when will statements be preserved by res gestae?

Answer 25

This includes:
i. statements made when a person is so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded,

ii. statements accompanying an act which can only be properly evaluated in conjunction with the statement, and

iii. statements relating to a physical or mental state

Question 26

What must the court consider when deciding whether hearsay is admissible in the interest of justice?

Answer 26

The court must consider:
i. the probate value of the statement to a matter in issue,

ii. what other evidence could be given,

iii. how important the evidence is in relation to the case as a whole,

iv. the circumstances in which the statement was made,

v. how reliable the maker of the statement appears,

vi. how reliable the evidence of the making of the statement appears,

vii. whether the oral evidence of the matter stated can be given,

viii. the amount of difficulty in challenging the statement, and

ix. the extent of the likely prejudice caused.

Question 27

How would you structure an application for the admissibility of a defendant’s bad character evidence?

Answer 27

1. Explain what bad character evidence is,
2. Explain that is is not admissible, unless it falls under any of the 7 gateways.
3. Outline the 7 gateways.
4. Explain how the bad character evidence is admissible under the appropriate gateway(s).

Question 28

What is bad character evidence?

Answer 28

Bad character evidence is evidence of, or of a disposition towards, misconduct, commission of offences, or other reprehensible behaviour, outside of the facts of the offence for which the defendant is charged.

Question 29

What are the 7 gateways for bad character evidence?

Answer 29

1. All parties agree,
2. The evidence is adduced by the defendant,
3. It is important explanatory evidence,
4. It is relevant to an important matter in issue,
   5.It is goes to a matter in issue between co-defendants,
5. It corrects a false impression given by a defendant
6. The defendant attacked another’s character

Question 30

When must the court not admit bad character evidence?

Answer 30

If evidence is sought to be adduced under:
i. ‘an important matter in issue between the prosecution and defence’, or
ii. ‘the defendant attacked another’s character’.

IF:
a. the defence make an application to exclude it, and
b. it appears to the court that admitting the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it.

In making this decision, the court must have regard to the amount of time that has lapsed between the matters that constitute the bad character evidence + offence charged.

Question 31

Bad character evidence - how can evidence be adduced by the defendant?

Answer 31

The evidence is adduced by the defendant, or the evidence is given by the defendant in response to cross-examination

Question 32

Bad character evidence - when will it be important explanatory evidence?

Answer 32

Evidence is admissible under this gateway if:

i. without it, the jury would find it difficult or impossible to properly understand other evidence in the case, and

ii. its value for understanding the case as a whole is substantial.

Question 33

Bad character evidence - when will it be relevant to an important matter in issue?

Answer 33

If the evidence is relevant to an important matter in issue, including the propensity to commit offences like the current charge + the propensity to be untruthful.

This gateway can be used to adduce similar previous convictions + cautions or even dishonesty convictions.

Question 34

Bad character evidence - when will the ‘matter in issue between co-defendants’ gateway be met?

Answer 34

If it provides substantial probative value to an important matter in issue between the defendant and co-defendant.

Question 35

Bad character evidence - when will the gateway of ‘correct false impression given by defendant’ be met?

Answer 35

If the evidence corrects a false impression given by the defendant.

This includes evidence:
i. given by the defendant in court or before court proceedings under caution, and
ii. evidence given by defence witnesses, or
iii. elicited by defence questioning.

Question 36

How would you structure an application for the admissibility of a non-defendant’s bad character evidence?

Answer 36

1. Explain that it is usually not admissible.
2. Explain that there are 3 grounds for adducing a non-defendant’s bad character evidence:

i. all the parties agree to the evidence being admissible,

ii. it is important explanatory evidence, or

iii. it has substantial, probative value in relation to a matter in issue in the proceedings + is of substantial importance in the context of the case as a whole.

3. Explain how one of these grounds has been met

Question 37

How would you structure an application to the court for a reduced/increased sentence?

Answer 37

1. Remind the court that the sentence must be proportionate to the seriousness of the offence, bearing in mind the offender’s culpability and any (potential) harm from the offence.
2. Identify the starting point for sentence + the range of sentences available from the Sentencing Guidelines,
3. Consider the aggravating and mitigating factors relating to the offence,
4. If there are multiple offences, explain why they should be concurrent, if appropriate,
5. Consider any mitigating factors relating to the offender,
6. Remind the court of creditor for a guilty plea (if appropriate),
7. Propose an appropriate sentence

Question 38

What aggravating factors relating to the offence must be taken into account? (plea in mitigation)

Answer 38

1. Previous convictions if is reasonable to do so,
2. Offence committed whilst on bail,
3. Racial or religious aggravation,
4. Hostility based on sexual orientation, transgender identity, or disability.

Question 39

What aggravating factors relating to the offence may be taken into account? (plea in mitigation)

Answer 39

1. Offence premeditated,
2. Offence committed in a group,
3. Targeting vulnerable victim,
4. Offence committed under the influence of drugs or alcohol,
5. Abuse of position of trust,
6. Use of a weapon,
7. Gratuitous violence or damage to property,
8. Victim providing a service to the public,
9. High value or sentimental nature of property,
10. Failure to respond to previous sentencing.

Question 40

What mitigating factors relating to the offence may be taken into account? (plea in mitigation)

Answer 40

i. offence committed on impulse,
ii. defendant subject to high degree of provocation,
iii. defendant has a disability or mental illness,
iv. defendant is very young or very old,
v. defendant played a minor role,
vi. defendant was motivated by fear,
vii. defendant has attempted to make reparation with the victim

Question 41

What mitigating factors relating to the defendant may be taken into account? (plea in mitigation)

Answer 41

The defendant’s:
i. age,
ii. health,
iii. good character,
iv. work and home situation,
v. progress since the offence was committed,
vi. remorse for offending,
vii. efforts to address the offending.

Question 42

How would you structure a submission of no case to answer?

Answer 42

1. Remind the court that the burden is on the prosecution to prove the defendant’s guilty and to prove that all the elements of the offence are made out.
2. Argue that the evidence the prosecution have adduced is insufficient for any reasonable court to convict on, either because:

i. the evidence adduced fails to prove one or more of the elements of the offence, or

ii. the evidence adduced by the prosecution is so manifestly unreliable that no reasonable bench, judge, or jury could convict on it.

3. Conclude that the prosecution hasn’t presented enough evidence to amount to a prima facie case.

Question 43

How would you structure an application arguing that the court should accept jurisdiction? (Mode of Trial)

Answer 43

1. Remind the court that it must consider the adequacy of its sentencing powers.

The Magistrates’ Court’s sentencing powers are restricted to:
i. 6 months’ imprisonment for a single offence, or
ii. 12 months’ imprisonment for 2 or more either way offences.

2. Go through the sentencing guidelines + consider the starting point for the sentence and the range that applies
3. Submit that the court’s sentencing powers are adequate + it should therefore accept jurisdiction.

Question 44

How would you structure an application for visual identification to be excluded owing to poor quality if there is no supporting evidence?

Answer 44

1. Identify the court’s discretion to exclude evidence under s78 PACE,
2. Argue against the strength of the identification evidence going through the following factors:
   i. amount of time,
   ii. distance,
   iii. visibility,
   iv. obstruction,
   v. known,
   vi. any reason to remember,
   vii. time lapse,
   viii. errors
3. Identify that there is no other evidence to support the prosecution case, and
4. Argue that the judge should therefore withdraw the case from the jury as there is insufficient evidence for any reasonable jury to convict.

Question 45

How would you structure an application for the exclusion of visual identification evidence owing to poor quality if there is other supporting evidence?

Answer 45

1. Identify the court’s discretion to exclude evidence under s78 PACE,
2. Identify what other evidence there is to support prosecution,
3. Argue for/against the strength of the identification evidence going through the following factors:
   i. amount of time,
   ii. distance,
   iii. visibility,
   iv. obstruction,
   v. known,
   vi. any reason to remember,
   vii. time lapse,
   viii. errors

Question 46

How would you structure an application asking for a youth case to be transferred to the Crown Court in the case of a ‘grave crime’?

Answer 46

1. Explain that when the Youth Court is faced with a grave crime, they should consider the adequacy of their sentencing powers,
2. Set out the court’s sentencing powers,
3. Explain that there is a grave crime,
4. State that if the Youth Court feels that its maximum sentence is insufficient and that a sentence of long-term detention would be appropriate, they can transfer it, but they must conclude that there is a real prospect of a custodial sentence of substantially more than 2 years,
5. Go through the sentencing guidelines to show that this is the case,
6. Conclude.

Question 47

How would you structure an application for the exclusion of interview due to it being improperly obtained?

Answer 47

1. Identify the court’s discretionary power to exclude evidence under s78 PACE,
2. Explain that the suspect has certain rights and show how any were breached:
   i. right to legal representation during the interview,
   ii. right to a caution at the beginning of interview,
   iii. right to silence (and to be informed of this right),
   iv. right to special caution (if appropriate0,
3. If appropriate, explain that the suspect was a vulnerable suspect + show how the police breached their duties under PACE re further safeguards,
4. Explain any other breaches:
   i. interview not recorded,
   ii. oppression or inducement,
   iii. interview room not heated/ventilated/lit,
   iv. suspect unfit for interview,
   v. legal representative wrongly removed from interview,
   vi. failure to disclose sufficient information to the legal representative.

Question 48

What structure would you use for an appeal from the Magistrates’ Court to the Crown Court?

Answer 48

1. Explain that the defendant, if convicted at trial, may appeal to the CC against either conviction or sentence.

If pleaded guilty - can appeal only against sentence.

2. Although there is no requirement to set out the basis of appeal as the court has no power to decline jurisdiction, it is usual practice to set out the grounds of appeal.

Question 49

What structure would you use for an appeal from the Magistrates’ Court to the Divisional Court (High Court) by Way of Case stated?

Answer 49

1. Explain that both the prosecution and the defendant may appeal from the Magistrates’ Court to the Divisional Court (High Court) by way of case stated.
2. Explain that the appeal must be on the ground that the decision is wrong in law or in excess of jurisdiction,
3. Show how the decision is:
   i. wrong in law, or
   ii. in excess of jurisdiction.

Question 50

What structure would you use for an appeal from the Crown Court to the Court of Appeal for the Defendant?

Answer 50

1. Explain that a defendant can appeal from the Crown Court against conviction + sentence to the CofA with permission of the trial judge or the Court of Appeal itself,
2. A defendant can appeal a conviction only on the ground that it is unsafe,
3. Explain how the conviction is unsafe,
4. A defendant can appeal against sentence on the basis that the sentence was:
   i. wrong in law,
   ii. wrong in principle, or
   iii. manifestly excessive

Question 51

When will a conviction be unsafe?

Answer 51

A conviction being ‘unsafe’ includes:

i. evidence was wrongly admitted or excluded,

ii. a direction was wrongly given or omitted,

iii. the conduct of the trial judge demonstrated obvious bias,

iv. there was wrongful exercise of discretion,

v. there were errors in summing up, or

vi. there were problems relating to the jury.

Question 52

When will a sentence be wrong in principle?

Answer 52

A sentence will generally be regarded as wrong in principle if the sentence was unlawful, e.g., the defendant was given a prison sentence in excess of the maximum.

Question 53

When will a sentence be manifestly excessive?

Answer 53

The fact that a sentence is harsh or the defendant could have received a lesser sentence will not be sufficient.

Appeal is only likely to be successful if the sentence passed is one considered to be outside the range for the offence and offender.

This requires an assessment of the applicable Sentencing Guidelines.

Question 54

When will a sentence be wrong in law?

Answer 54

When a sentence is passed which could not legally be passed.

Question 55

How would you structure an application for the prosecution to appeal a Crown Court decision to the Court of Appeal?

Answer 55

1. Explain that the prosecution cannot appeal a decision by the jury to acquit the defendant.
2. Explain that the prosecution can appeal rulings made by the judge during the course of the trial, for example:
   i. a judge’s decision that there is no case to answer,
   ii. decisions regarding the admission or exclusion of evidence, e.g., a refusal to admit a confession or identification evidence.
3. Explain that the Attorney General may refer a case to the Court if they feel a sentence passed was unduly lenient + permission is granted by the Court of Appeal itself.
4. Show the sentence passed was unduly lenient.