Criminal Litigation Tests

Question 1

How do you address a lay magistrate?

Answer 1

Sir/Madam

Question 2

How do you address a bench of magistrates?

Answer 2

Your Worships

Question 3

How do you address a District Judge?

Answer 3

Judge

Question 4

How do you address a Crown Court Judge?

Answer 4

Your Honour

Question 5

What is a test for a bail application?

Answer 5

A defendant has a general right to bail. The court can remand a defendant into custody only if it finds:
1. An exception to the right to bail applies; and
2. There is a real prospect of a custodial sentence being imposed if convicted.

Question 6

What are the exceptions to the right to bail? (non-exhaustive list)

Answer 6

It must be proven there are substantial grounds for believing the defendant would:
- Fail to surrender.
- Commit further offences whilst on bail.
- Interfere with witnesses or otherwise obstruct justice.
- Commit an offence on bail that would cause (or cause fear of) physical or mental injury to an associated person.
- They are charged with an offence that can be tried in the Crown Court, and were on bail at the time of the offence.
- Custody is for their own protection.
- They are already serving a custodial sentence.
- There is insufficient information to make a decision on bail.
- They have failed to surrender or breached bail conditions in the same proceedings.

Question 7

In deciding if there are substantial grounds, what things will the court consider?

Answer 7

• The nature and seriousness of the offence.
• The defendant’s character, previous convictions, associations, and community ties.
• The defendant’s record on complying with bail conditions.
• The strength of the evidence.
• The risk the defendant might engage in conduct that may cause physical or mental injury to another.

Question 8

When can the court attach conditions to bail?

Answer 8

If they are relevant, proportionate, and enforceable.

Question 9

What are examples of conditions which can be attached to bail?

Answer 9

• Requiring the defendant to reside at a specific address.
• Requiring the defendant to report to a local police station.
• Prohibiting the defendant from going to a particular area.
• Prohibiting the defendant from contacting certain individuals.
• Requiring the defendant to comply with a curfew.
• Requiring the defendant to wear an electronic tag.
• Requiring the defendant to obtain a surety.

Question 10

What is the test for bail if the defendant is charged with murder?

Answer 10

There is no general right to bail. The defendant will not be granted bail unless there is no significant risk that the defendant would commit an offence likely to cause physical or mental injury to another.

Question 11

What will the court consider when deciding if an either way offence can be dealt with in the Magistrate’s Court?

Answer 11

1. The defendant’s previous convictions;
2. Whether the court’s sentencing powers are adequate, taking into account the sentencing guidelines and aggravating/mitigating factors.
3. Representations by the defence and prosecution on mode of trial and the adequacy of sentencing powers.

Question 12

What is the test to exclude evidence based on unfairness?

Answer 12

A court has DISCRETION to exclude evidence offered by the prosecution if it appears to the court, considering all circumstances, admission would have an adverse effect on the fairness of the proceedings (s.78 PACE 1984).

The breaches must have been significant and substantial.

Question 13

What are some examples of breaches which may lead to evidence being excluded for unfairness?

Answer 13

• Illegal searches
• Identification evidence
• Confessions
• Covert surveillance
• Undercover operations

Question 14

What is the test to exclude evidence based on mistake, untruth, oppression, or unreliability?

Answer 14

If these grounds are found to exist, the court MUST exclude the evidence.

Question 15

What are the two grounds for excluding a confession?

Answer 15

Oppression or things said or done likely to render the confession unreliable.

Question 16

What is the test for excluding a confession?

Answer 16

1. The defence must show a causal link between the oppression/unreliability and the confession.
2. The prosecution must then show beyond a reasonable doubt that neither of these apply. If they fail to do so, the confession MUST be excluded.

Question 17

What is the test to exclude identification evidence?

Answer 17

1. Same general test for exclusion of evidence + ADVOKATE.
2. If the judge finds the identification is weak and there is no supporting evidence, they should withdraw the case and direct acquittal. Otherwise, it is up to the jury to decide.

Question 18

What are the ADVOKATE factors?

Answer 18

1. Amount of time the witness observed the suspect.
2. Distance between the witness and the suspect.
3. Visibility at the time of the observation.
4. Obstruction between the witness and the suspect.
5. Known or unknown to the witness.
6. Any reason to remember the suspect.
7. Time lapse between the incident and the identification procedure.
8. Errors in the witness’s first description of the suspect’s appearance.

Question 19

What is the test to exclude the obtaining of identification evidence?

Answer 19

Same general test for exclusion of evidence + also considering:
- Reasonable objections to the appearance of others.
- Failure to keep witnesses apart.
- Failure to keep witnesses away from the suspect.
- Failure to warn that the suspect might not be shown.

Question 20

What are the 7 gateways to adduce bad character evidence?

Answer 20

1. All parties agree.
2. The evidence is adduced by the defendant.
3. Important explanatory evidence - needed to properly understand other evidence in the case, and its value to understanding the case as a whole is substantial.
4. Relevant to an important matter in issue, including propensity to commit offences like the current charge and the propensity to be untruthful.
5. Substantial probative value to an important matter in issue between the defendant and co-defendant.
6. The evidence corrects a false impression given by the defendant.
7. The defendant or their representative attacked another’s character.

Question 21

What are the time limits for adducing bad character evidence?

Answer 21

1. Prosecution must provide notice to admit within 20 business days of a not-guilty plea in MC, 10 in CC).
2. A defendant wishing to oppose must do so within 10 business days.

Question 22

What is the test to exclude bad character evidence?

Answer 22

The court has DISCRETION to not admit it if it would have such an adverse effect on the fairness of proceedings that it ought not be admitted.

Question 23

What is the test to exclude bad character evidence based on grounds 4 and 7?

Answer 23

The court MUST not admit it if:
1. The defence make an application to exclude it; and
2. It appears to the court admitting the evidence would have such an adverse effect on the fairness of proceedings that the court must not admit it.

The court will consider time elapsed between the matters constituting the bad character evidence and the offence charged.

Question 24

What are the grounds for admitting a non-defendant’s bad character?

Answer 24

Grounds 1, 3 and 4

Question 25

What is the structure of a hearsay application?

Answer 25

1. Hearsay is generally inadmissible.
2. It is admissible if an exception applies.
3. Apply the test in support of why the hearsay should/should not be admitted.

Question 26

When is hearsay admissible under statute?

Answer 26

1. A witness is unavailable, i.e. dead, unfit, outside of the UK and it is not reasonably practicable to secure their attendance, they cannot be found, or fear.
2. Business document - if the document was created or received in the course of trade, business, profession, or other occupation; and the person who supplied the information may reasonably be suspected to have had personal knowledge of the matter.
3. Statements were prepared for use in criminal proceedings and the relevant person cannot be expected to recollect the matter.
4. Previous consistent or inconsistent statements of a witness.
5. Expert evidence is adduced.
6. There is a confession.

Question 27

When is hearsay admissible by rule of the law?

Answer 27

1. Confessions or mixed statements by the defendant.
2. Statements made contemporaneously to the offence.
3. Statements preserved by res gestae.

Question 28

When are statements preserved by res gestae?

Answer 28

1. Statements made when a person is so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded.
2. Statements accompanying an act which can only be properly evaluated in conjunction with the statement.
3. Statements relating to a physical or mental state.

Question 29

What is the other ground for admitting hearsay?

Answer 29

Agreement of all parties.

Question 30

When is hearsay admissible in the interest of justice?

Answer 30

The court has DISCRETION to adduce evidence which may not otherwise be admissible, considering:
- The probative value of the statement to a matter in issue.
- What other evidence could be given.
- How important the evidence is in relation to the case as a whole.
- The circumstances in which the statement was made.
- How reliable the maker of the statement appears.
- How reliable the evidence of the making of the statement appears.
- Whether oral evidence of the matter stated can be given.
- The amount of difficulty in challenging the statement.
- The extent of the likely prejudice caused.

Question 31

When is multiple hearsay admissible?

Answer 31

1. It is a business document.
2. It is an inconsistent statement.
3. It is a consistent statement.
4. All parties agree.
5. The value of the evidence is so high that it is in the interests of justice.

Question 32

What is the test to submit no case to answer?

Answer 32

Argument that the prosecution has not presented enough evidence to amount to a prima facie case, i.e. had the burden of proof and failed:
1. The prosecution has failed to adduce evidence of one or more of the elements of the offence; or
2. The evidence given is so unreliable that no reasonable bench, judge, or jury could convict.

If successful, the defendant is acquitted.

Question 33

What should be submitted in a plea in mitigation?

Answer 33

It should be submitted that the sentence must be proportionate to the seriousness of the offence, considering:
1. Sentencing guidelines.
2. Consecutive or concurrent sentences.
3. Credit for an early guilty plea.
4. Aggravating and mitigating factors.

Question 34

Which aggravating factors MUST be considered?

Answer 34

1. Previous convictions, taking into account nature and time passed.
2. Offence committed whilst on bail.
3. Racial or religious aggravation.
4. Hostility based on sexual orientation, transgender identity, or disability.

Question 35

Which aggravating factors MAY be considered?

Answer 35

1. Offence was premeditated.
2. Offence was committed in a group.
3. Targeting a vulnerable victim.
4. Offence was committed under the influence of drugs/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 sentence.

Question 36

Which mitigating factors MAY be considered?

Answer 36

1. Offence was committed on impulse.
2. D was subject to a high degree of provocation.
3. D has a disability or mental illness.
4. D is very young or very old.
5. D played a minor role.
6. D was motivated by fear.
7. D has attempted to make reparations with V.
8. D’s age, health, good character, work and home situation, progress since the offence, remorse etc.