Criminal Practice Flashcards
Included in a plea in mitigation?
1) The likely sentence (identify it)
2) The offence (circumstances, aggravating/mitigating factors )
3) The offender (personal mitigating circumstances)
4) Suggested sentence - in light of all the information.
Included in allocation ?
1) Sentencing guidelines
2) Aggravating and mitigating factors
Included in excluding evidence?
1) Police And Criminal Evidence Act 1984 s 78
2) Police and Criminal Evidence Act 1984 s 76 - Confession evidence.
Included in bail application ?
1) Remind court of general right to bail
2) The grounds to bail upon which it could be refused:
- Failure to surrender
- Commit further offences
- Interfere with witness
3) Mitigate these grounds with the following factors:
- Nature and seriousness of offence
- Character, antecedents, associations and community ties.
- Defendants record in respect to bail
- Strength of evidence
4) Reasonable conditions that could be imposed to satisfy any further concerns:
- Security
- Surety
- passport
- residence
- report to station
- not go to area
Included in excluding confession evidence specifically?
1) Remind the Judge once admissibility of confession evidence is challenged, it is up to the prosecution to prove beyond a reasonable doubt confession isn’t reliable.
2) Remind court that confession evidence must be excluded if prosecution fail to discharge their burden under s 76 of the Police and Criminal Evidence act 1984.
3) Identify the grounds it is sought to be excluded:
a) Did not ever make the confession
b) Did but it should still be excluded
- Rendered unreliable by things said and done
- Unreliable owing to oppression.
4) Demonstrate causation for the grounds you are relying on.
5) Conclusion as to why it should be excluded.
Included in exclusion of improper ID evidence?
1) Remind judge that under s 78 Police and Criminal Evidence act court has discretion to exclude any evidence that would have an adverse effect on fairness of proceedings.
2) Explain how it was improperly obtained
3) Conclude as to why it should be excluded.
Included in admitting / excluding bad character evidence?
1) Explain basis upon which the bad character evidence should be admitted:
- All the parties agree to it being admitted.
- It is adduced by defendant
- Important explanatory evidence (Without it court would struggle to understand other evidence in the case /it has value for understanding case as a whole)
- Relevant to issue between D and Prosecution (Propensity to commit same type of crime / Propensity to be untruthful).
- Substantive probative value to important matter in issue
-Defendant attacked another’s character
- Corrects a false impression given by defendant
What to be included in No case to answer?
1) Remind the court the prosecution has the burden of proving the case beyond a reasonable doubt
2) Explain the evidence the prosecution have adduced is insufficient for any reasonable court to convict defendant.
How to dispute that Defendant gave a false impression in a submission to exclude bad character evidence?
‘Defence has only given a false impression if they are responsible for the making of an express or implied assertion which is apt to give the court a false or misleading impression about them’
What are the three ways that Hearsay evidence can be admitted?
1) Grounds under the CJA 2003
2) All parties agree to it being admitted
2) Court satisfied it is in the interest of justice for it to be admitted.
What are the grounds for admitting hearsay evidence under CJA 03 ?
1) s 116 (unavailable witness)
a) oral evidence by them would be admissible + identified to court.
b) but that person is:
- Dead
- Mentally/physically unfit
- Outside of UK and unreasonable to travel
- Not possible to find
- Afraid to testify.
2) s 117 Business documents:
a) documents created in the course of business
b) Person creating the document had personal knowledge of the matters contained within them
c) Each person through whom the information was supplied, received the info in the course of business
What are the factors the court must consider when determining whether it is in the interest of justice to admit hearsay evidence ?
1) Probative value in relation to matter in issue in proceedings,
2) What other evidence has been, or can be, given on such an issue
3) How important the matter or evidence mentioned in such issue is in the context of the case as a whole.
4) Circumstances in which statement was made
5) How reliable maker of statement appears to be.
6) How reliable the evidence of the making of the statement appears to be
7) Whether oral evidence of the matter stated can be given and if not why not.
8) The amount of difficulty involved in challenging the statement
9) The extent to which that difficulty would be likely to prejudice the party.
How would you dispute the admission of hearsay evidence?
Perhaps:
1) Address why the specific ground is false for an unavailable witness such as ‘they are in fear’
- Have not established beyond a reasonable doubt that the witness is in fear - no causative link between fear in witness statement and unwillingness to testify.
OR
2) The court should not give leave to admit hearsay evidence as it is not in the interest of justice to do so - discuss the factors that have weight in this regard.
