Criminal Litigation Tests: Workbook

Question 1

What structure should you adopt if the topic is visual identification evidence - exclusion owing to poor quality?

Answer 1

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:
   A - amount of time
   D - distance
   V - visibility
   O - obstruction
   K - known to the witness
   A - any reason to remember
   T - time lapse
   E - errors

Question 2

What structure should you adopt if the topic is visual identification - exclusion as improperly obtained ?

Answer 2

1. Identify the court’s discretion to exclude evidence under s78 PACE
2. Identify the relevant breaches of identification procedures (usually video identification) under Code D, including:
   a) taking into account reasonable objections to appearance of others in the ID procedure,
   b) keeping witnesses away from the suspect before and during the procedure,
   c) keeping witnesses apart during the procedure
   d) warning that the suspect might not be shown at all

Question 3

What structure should you adopt if the topic is exclusion of evidence?

Answer 3

1. Remind the court that once the admissibility is challenged, it is for the prosecution to prove beyond reasonable doubt that the confession is not unreliable.
2. Remind the court the confession MUST be excluded if the prosecution don’t discharge this burden of proof under s76 PACE
3. Identify that the confession is relevant to a matter in issue between prosecution and defence and is therefore admissible
4. Identify under which ground the confession is sought to be excluded and provide relevant details:
   i. unreliability owing to things said or done to render it unreliable
   ii. unreliability owing to oppression
5. Demonstrate causation from the things said or done or oppression to the confession.

Question 4

What structure should you adopt if the topic is exclusion of any evidence?

Answer 4

In addition to any of the other tests cited for the admission or exclusion of evidence, remember that the cost has a general discretion to exclude prosecution evidence:
- if having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would ave such an adverse effect on the fairness of the proceedings that the court ought not to admit it under s78 PACE.

This could be used as an alternative/additional argument, in conjunction with other tests, or as a stand-alone argument.

Question 5

What structure should you adopt if the topic is the admissibility of hearsay evidence?

Answer 5

1. Identify whether the hearsay is single or multiple hearsay
2. For single hearsay, identify that 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. Or, for multiple hearsay, consider whether it is contained in a business document, it is an inconsistent statement or a consistent statement, if all the parties agree, or if the value of the evidence is so high that it is in the interests of justice,
4. Apply the test from the relevant exception.

Question 6

What structure should you adopt if the topic is admissibility of defendant’s bad character?

Answer 6

1. Is it evidence of, or of a disposition towards, misconduct, commission of offences, or other reprehensible behaviour outside of the facts of the offence?
   If yes, it is not admissible, unless
2. It falls under any of the 7 gateways to admission, because:
   i. all parties agree it is admissible,
   ii. it is adduced by the defendant,
   iii. it is important explanatory evidence
   iv. it is relevant to an important matter in issue between prosecution and defence,
   v. there is substantial probative value to an important matter in issue between co-defendants,
   vi. it corrects a false impression given by the defendant,
   vii. the defendant attacks another’s character.
3. If adduced under ‘important matter in issue between prosecution and defence’ or under ‘the defendant attack another’s character’ - the court must not admit it if the defence make an application to exclude it and 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.

Question 7

What structure should you adopt if the topic is bail application?

Answer 7

1. Remind the court of the defendant’s right to bail - bail can only be refused if one of the exceptions to the right to bail apply, and there is a real prospect of custodial sentence
2. Consider whether any of the exceptions to the right to bail apply - these are usually whether there are substantial grounds to fear the defendant would fail to surrender, commit further offences on bail, or interfere with witnesses or otherwise obstruct justice,
3. Review the factors in deciding whether substantial grounds exist - e.g., nature and seriousness of the offence, defendant’s character, defendant’s record of complying with conditions on bail, the strength of the evidence, etc.
4. Consider whether nay conditions can be put forward to address these issues, e.g., residence, reporting, exclusion, non-contact tag, curfew, etc., and
5. Conclude on why bail should/should not be granted

Question 8

What structure should you adopt is the topic is plea in mitigation?

Answer 8

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 and the range of sentences available
3. Consider the (aggravating and) mitigating factors relating to the offence
4. For multiple offences, explain why the sentences should be concurrent (if appropriate)
5. Consider 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

What structure should you adopt if the topic is submission of no case to answer?

Answer 9

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.

Argue that the evidence the prosecution have adduced is insufficient for any reasonable court to convict, either because the prosecution have failed to prove an element of the offence, or because the evidence adduced by the prosecution is so manifestly unreliable that no reasonable court could convict on it.

Question 10

What structure should you adopt if the topic is mode of trial?

Answer 10

In deciding whether to accept jurisdiction, the court must consider the adequacy of its sentencing powers.

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

Go through the relevant sentencing guidelines and consider the starting point for the sentence and the range that applies.

Submit that the court’s sentencing powers are adequate and it should therefore accept jurisdiction