SPA CRIMINAL LITIGATION Flashcards
SPA G
Advocacy
Client - Janet Louise Anthony
-due to appear at Wisbech Magistrates’ Court on a charge of burglar
-unrepresented at police station, now refute
-ID evidence dubious
Attend court and make submissions 3 points
1. That the matter should be tried in the Magistrates’ Court
2. That the confession should be excluded
3. That the identification evidence should be excluded
Sources
-Police report with summary of key evidence, defendant interview, non key evidence, antecedents
-Client attendance note 4d ago
-Witness statement John Hugh Proctor 2 weeks ago
-Extract from interview with Janet Anthony
-Sentencing guidelines domestic burglary: determine offence category, starting point and category range,
-Harm
Structure
1-Introduction: address judge, represent client, matter to be tried in magistrate court
-Three submissions on behalf
2-Brief summary of facts
3-Facts set out in paper
4-Present each substantive point
5-Outline reasons and take judge to relevant evidence
6- Outline relevant law
7-Ask court grant app
8-Costs
i) Matter tried in Mag court
-Only decline if not adequate sentencing power
-6M as max for single either way offence
-L3 burglary = lower harm ,culpability;
-Range of offence, aggravating factor, 2 previous convictions
-Likely sentence is high community order or short custodial sentence
-Within sentencing powers as 6M imprisonment
-Submission should admit jurisdiction
ii) Confession should be excluded
-Client does not feel well
-Requested legal rep but told delay
-If means get on with it, need to get out of it
-Pressure to confess as secure prompt release on bail
-Anthony initially deny but pressured to admit to secure release - strong incentive
-Pressure to proceed w/o legal rep
-Under s76 pACE, confession must be excluded if based on oppression or things said or done likely render confession unreliable
-D pushed to proceed w/o rep, confess to secure bail, strength of evidence misrepresented
iii) ID evidence should be excluded
-Court discretion under s78 PACE if adverse effect
-Distracted by dog
-ID so poor so should not be admitted
Ask court grant app
-Judge, my submission light of poor quality of ID, render ID unreliable, court should exercise discretion under s78 PACE
-ID so poor, should not be admitted
-My submission sentencing powers adequate
-Court should accept jurisdiction and confession and ID should be excluded
-Unless assist court any further, this concludes my submissions
Consider
-Issue, law, application, conclusion
-Sentencing guidelines impact on accept jurisdiction, rules of evidence relating to confessions, ID evidence
Apply law
-In deciding whether to accept jurisdiction of an either way offence, the MC considers its sentencing powers (6 months’
custody for an either way offence).
-Level of harm and the level of culpability mean this level 3 burglary with a sentencing range of low level
community order-26 weeks’ custody.
-some aggravating factors, the sentence is likely to fall within the MC’s sentencing powers.
-s 76 PACE, a confession MUST be excluded if it based on oppression or anything said or done likely to render the
confession unreliable.
-prosecution bear the burden BRD that neither apply.
-pushed to proceed without representation, pressured to confess to secure bail and the strength of the evidence was
misrepresented to her.
-ID procedure breached Code D PACE
-Breach comprises reliability of ID evidence
-Court discretion to exclude any evidence adverse effect on fairness under s78 PACE
-ID evidence excluded under this provision
Improvement
-Clear outline of legal principles
-Provide detailed references
-Revise area of law
SPA J
CMA
Client - Alison Nash
-granted a Representation Order to represent Alison Nash in an allegation of ABH against her husband Mark Nash
-Charged following interview, due to appear court
File note:
1.Plea
2.What is likely to happen if Mark Nash does not co-operate with the prosecution
3. The admissibility of the 999 call.
4. Bail conditions
Charge Sheet and transcript of 999 call attached, along with Ms Nash’s statement.
Structure:
-Client
-Matter
-Date of advice
Liability:
-Charge of assault occasioning ABH
-Battery
-Intentionally or recklessly applied immediate, unlawful force
-Force caused ABH
-In instructions, applied immediate force, accept factual and legal cause of injury
-Accept injury consistent with ABH
-Denies acting intentionally or recklessly in app of unlawful force
-MR is lacking
-Pulling free from complainant grasp so self-defence
1.Plea:
-On her account, not guilty of offence charged
-Decision how plead alone, advise strength of evidence
-D receive credit for early guilt plea, 1/3 reduction in sentence
Admissibility of 999 call:
-Hearsay: evidence other than oral given in court offered as proof of truth of content
-Not generally admissible in criminal proceedings
-Exceptions to rule incl. res gestae: when person so emotionally overpowered by event that possibility of concoction or distortion disregarded
-Prosecution likely make app
-999 call made so res gestae exception mean admissible in evidence
-Defence could challenge admissibility under s78 PACE if unfair, so complinant does not attend court to give evidence
- What will happen if complainant not co-operate?
-Mr N not support
-Case may proceed w/o his support
-Spouse so compellable as offence involves use of force agaisnt him
If Mr N attend court, provide different acc and denies Ms N battered him, then Mr N treated as hostile witness - could seek adduce written statement as hearsay to show previous inconsistent statement - app v likely granted
If Mr N refuse co-operate with prosecution, written statement could adduced as hearsay
-Prosecution make app to use statement on basis witness not available and not reasonably practicable to ensure attendance
-Any app on basis could be strongly opposed
If Mr N fails to attend court, could potentially face prosecution himself
-Prosecution could still opt to proceed and rely 999 call alone
-prosecution make bad character app and seek rely together with 999 call = admissible
Non-appearance add weight to defence opposition to any hearsay
Bail:
-Mr N seek change in bail to permit contact w/ Mr N
-Permission to disclose to court Mr N incitement to breach bail conditions and Ms N ongoing resistance
-Ms N highly unlikely court remove non-contract condition
-Objection interference with witnesses without it
-Ms N should be warned that any breach in bail could result bail being reconsidered and even withdrawn
-Continue comply req until. court agrees to change
Potential next stepes
Ms N
-Continue comply w/ bail conditions
-Attend court as req
Propose do on behalf
-Liase with CPS re public interest to proceed, in light complainant opposition
-Seek disclosure of 999 recording to check audio, verify accuracy
-Seek disclosure of previous call to police by compliainant
-Collate message received from complainant and consider further liaison w/ prosecution to press for withdrawal of proceedings
-Attend court
-Apply for change of bail conditions
SPA O
Drafting
R v Max George Allen, Bad Character Application
coming up for trial at Mill Hill Magistrates’ Court in 6 weeks’ time.
application to adduce the defendant’s bad character evidence
Court form to complete
Key docs to case incl, D’s antecedents
Old files where D gave evidence for robbery
Not sure whether gave evidence when standing trial for criminal damage
Draft an application to adduce the defendant’s bad character at trial - see template
*Remove grounds
s101(1)(c) important explanatory evidence
s101(1)(e) substantive probative value in relation to important matter between D and co-D
*Facts of misconduct
-D convicted of robbery 3 years ago; pleaded NG and testified, propensity to be untruthful
-ABH 4 years ago and robbery 3 years ago = propensity to commit offences of violence
-ABH and robbery = character of D who given false impression
-Character of D who made attack on character of others
*Explain why admissible
s101(1)(d) - important matter
-Prosecution case D propensity to be untruthful
-Convicted after giving evidence at trial
-3 years ago for robbery contrary to s8 Theft Act 1968 - dishonesty offence
-Prosecution case D propensity to commit offences of type charged
-Convicted of ABH contrary to s47 OAPA 1861 four years ago and robbery s8 Theft Act 1968
-Evidence to correct false impression given by D
(f)
Police interview ‘not kind of person to attack woman’ and ‘never do sth like this’, ‘it’s jsut not me’
-D convictions for violent offence - ABH contrary to s47 OAPA 1861 and robbery against s8 Theft Act 1968
(g)
-D allege victim Rebecca Anderson attacked him
-Acting in self-defense
-All convictions consider character of D who made attack on Rebecca Anderson
SPA R
Writing
Client - Tony Teuma
-forthcoming trial for robbery
-accosted the victim, Ms Rose Jones, outside Ely station
-grab handbag, short tussle
-RJ pushed to floor, severe bruising
-RJ bag contained £100 in £5 notes
-TT arrested in pub next door, was with brother James Teuma, had 18 £5 notes
-TT not provide account , nor answer Q, following instructions
-not commit robbery
-TT bumped into JT outside pub
-JT out of breath, suggested go in
-JT passed notes to TT and asked to keep
-TT did not answer Q as do not want to get JT in trouble
-No evidence at trial
Write to TT effect of give, not give, evidence at trial?
Already provided advice on court process and strength evidence
-Tony granted legal aid order, so need not address
Currently on bail subject to residence
Structure
-Firm address
-Telephone number
-Email address
-Client name and address
Further to your meeting with [partner’s name] today and your instructions that you don’t want to give evidence at trial… outline rules relating to D giving evidence at trial
Effect of not giving evidence
-Your decision
-Not under obligation
-Adverse inference may be drawn
-Jury wonder why if have defence that would stand up scrutiny, do not give account
-If mentally/physically unfit then jury cannot draw inference
-Understand may not want to implicate brother
-Adverse inference likely drawn
Effect of adverse inference
-Burden of proof remains with prosecution to prove case beyond reasonable doubt
-Adverse inference alone cannot prove guilt
-If prosecution present enough evidence that there is case to answer, then adverse inference can be drawn from failure to give evidence
-Prosecution has some circumstantial evidence, such as presence near scene shortly after offence
-Possession of 18 £5 notes, and your failure to provide an account in interview.
= inference drawn if choose not give evidence
-Rep still able to challenge prosecution evidence and seek to persuade jury not beyond reasonable doubt
-May assist defence if give evidence at trial
Effect of giving evidence at trial
-Adverse inference drawn from failure to give account in police interview
-Questioned at trial why not provide acc at earlier stage
Next steps
-Decision give evidence or not is crucial
-Decide before trial day
-Arrange conference with trial advocate before trial date
-Contact office to agree convenient date and time
-If Q, get in touch
SPA X
Research
Client - Cathy Hannon, of My Lovely Horse Charity (MLH)
Matter - potential private prosecution
-rescued 20 horses and 4 dogs from Fogerty Farm belonging to Max Tustain
-prosecute against MT
10 horses kept in field no shelter
No water supply, only empty buckets
Malnourished and emaciated
-MT stated belong to son
4 dogs seized, tails bobbed
Posters advertising dog fighting
1 horse serious bacterial illness, no routine vaccinations
Advise any grounds for prosecution
Structure
Client:
Matter:
Date
Advice
Summary -
client CH urns MLHC
Seized 20 horses and 4 dogs
Research grounds for private prosecution based on 4 incidents
Criminal offences in relation lack of care and treatment
Issue 1 - horses poor condition, malnourished
Summarise - no shelter, no water supply, malnourished, son Jon aged 14 as owner
AWA 2006
s2 protected animal if domestic animal
-Living with Mr T hence not wild
-s3 responsible for protected animal if own and person under 16
-Mr T seek to avoid responsibility but son under 16 hence liable for any breaches
-Most relevant left in field to cause unnecessary suffering
-AWA s1 suffering include physical and mental
-s4 person commit offence if cause
-List of number of factors which include relevant act or legitimate purpose
-R v Aylesbury Crown Court
-Show animals protected = likely satisfied
-Mr T failure to act cuase dhorses to suffer = likely establish poor condition
-Main issue whether Mr T knew or ought to know failure to act cause suffering
-Facts seem no justification and unlikely persuade court conduct reasonable competent and humane person
-Category suffering unnecessary
-All elements of offence likely established
Issue 2 - dogs bobbed tails
-AWA apply as not wild state
-Mr T bear responsibility
-s6(1) offence to remove whole or part of dog tail other than medical purposes
-s6(2) Mr T committed offence a. if responsible for dog
b. another person removes tail
c. permitted to happen or failed to prevent
-Subject to confirmation not medical purpose, Mr T must have planned, organised, allowed or failed to prevent
Issue 3 - materials/evidence dog fights
-Posters and 4 dogs injuries consistent with dogfighting
-AWA s8 offence to train, promote, publicise, cause animals engage in fighting
-Dogs protected animals, offence to cause take part in fight or receive money
-s8(7) fight defined protected aniaml placed with animal for fight/wrestle/bait
-Mr T publicise
Involvement money is aggravating factor, not necessary
RSPCA v McCormick
-Mr T committed further offence
Issue 4 - lack of veterinary care
-s9 AWA peroson responsible take reasonable steps to ensure welfare
-Fail to vaccinate is failure to take reasonable steps
-Reasonably competent and humane person
-Fall below standard of care
Conclusion:
Several offences under AWA
Further offences to cause dog fighting
Sufficient grounds to justify private prosecution
Additional PFA
Research
Client - Damian Brewster
Painter and sculptor
-Latest exhibition launched
-Interactive, online-only
-Write-up for teen and tweens, site specify schools to use content
-Exhibition v explicit sexual acts
-Some people portray painter and former partner acctress
-Bondage
-Spark convo on consent
-Damian telephone call from police officer, complaint from school teacher who upset
-Complained and suspended exhibition
-Officer asked D to attend police station tomorrow
D may be arrested and charged tmw with criminal offence
Research any criminal offence committed
Structure:
Client
Matter
Date
-DB potentially face. charge under Obscene Publications Act 1959, criminalise publication of obscene articles
-Offnce either way (Mag/Crown), max 6 months in Mag or 5 yrs Crown
-D to publish article that is obscene without valid defence
Article:
-Explicit images
-Incl read or looked
-Online images s1(2) OPA 1959
Publication
-s1(3) OPA - show/play/project
-Include sharing 1 person electronically (R v GS)
-Went live and one person complained so there has ben publication
-Possible DB did not publish and instead TateOnline, as DB is creator not producer
-Images and exhibition under DB name so argument may not succeed
Obscene:
-Def v restrictive
-Deprave and corrupt persons seeing it
-Consider all circumstances s1(1) OPA 1959
-Deprave means make morally bad, pervert, debase, corrupt morally
-Case law indicate consider all persons likely to see
-School aged children and marketed at schools
-Youth and impressionability likely deprave and corrupt so more likely obscene
Defence of public good
-s4 OPA 1959
-No liability if interest of science/literature/art/learning
-Potential justification of artistic merit - expert evidence adduced
-Contribution to sex education for young persons
-Expert evidence could be sought
Art 10 - freedom of expression
-ECHR though unlikely succeed as prosecution under act found to be in pursuit of legitimate aim in case law (Handyside v The UK App no 5493/72)
Conclusion:
-DB may face charge under OPA 1959
-Such charge comply with convention rights under Art 10
-Defence of public good put forward as grounds of artistic merit and learning
*Source 2, 3, 8 irrelevant as deal with civil rather than criminal law
PFA
Advocacy
Client - Kelly Conway
Matter - bail app
-charged with causing grievous bodily harm contrary to s.18 OPAPA 1861
-appeared Cambridge mag court
-Sent to. Crown Court and KC remanded in custody
-See antecedents re political and environmental activist protest
-Plead not guilty
-Rep order granted
Attend Cambridge Crown Court and make app on behalf
Structure:
-Address - your honour
-Ref facts against relevant witness statement to avoid giving judge impression give evidence self
-There is a general right to bail
-The defendant can only be remanded if there is a real prospect of a custodial sentence and one or more of the exceptions to the right to bail applies.
-Here, the charge is s18 GBH which is likely to attract a lengthy custodial sentence, if proven.
-The relevant exceptions are that there are substantial grounds to believe the defendant would fail to surrender (FTS), committing further offences whilst on bail (FFO) or interfere with
witnesses of otherwise obstruct justice (IW).
-In deciding whether there are substantial grounds, the court will consider:
-Nature and seriousness of the offence
-D’s character
-D’s record of complying with bail conditions
-Strength of the evidence (in deciding this, the court may consider that self defence is for the prosecution to disprove, once raised)
-The risk that D may cause another physical or mental injury
-The court will consider whether bail conditions could be imposed to allay any concerns.
These could include residence at mother’s address, reporting to police station, exclusion from area,
prohibition on contact with witnesses, curfew and electronic tag.
Structure
1-Introduction: address judge, represent client, matter to be tried in crown court
-submissions on behalf
2-Brief summary of facts
3-Facts set out in paper
4-Present each substantive point
5-Outline reasons and take judge to relevant evidence
6- Outline relevant law
7-Ask court grant app
8-Costs
Summary of facts
-The D was arrested following incident
-C is …
-D was arrested and interviewed
-Incident happened as altercation
-Group of 12 hunt saboteurs
-1400 group of 6 riders
-Argument between D and Rudland
Substantive point
-Court D right to bail - only refused if 1 of exceptions apply and real prospect of custodial sentence
-Consider any xceptions - fear D would fail to surrender, commit offences on bail, interfere witness
-Review factors in deciding whether substantial grounds exist
-Consider any conditions put forward
-Conclude why bail should/ not be granted
Reasons for judge to take evidence
-D job at environmental charity, required in office
-D lives by self
-D mother live 5 miles outside town Hideway - need care
Outline relevant law
-Ms C - number of stringent conditions, incl curfew, requirement to surrender docs, regular report to police station
Ask court to grant app
-Judge, my submission in light of above, Ms C not pose risk or danger
-Persoanl circumsatnces, care for mother and strong community, history of compliance, make ideal candidate for bail
-Ask court exercise discretion to grant bail
Tips from exemplar:
Intro -
-Ms C appear Cambridge mag court, GBH, s18 OAPA 1861
-Bail refused so further app for bail
-Check relevant docs
Summary of facts
-Matter took place
-Ms C joined meeting
-At 1400 hunting party rode past
-Victim amongst riders
-Prosecution case that Ms C assaulted Mr C by throwing rock and fractured humerus
-ms C deny offence maintain acting in self-defence
App to bail
-General right
-bail only refused if 2 conditions
-Real prospect
-Offence at lower end of scale
-3 to 5 years imprisonment
-Decision on bail hinges exceptions to right to bail
Address prosecution likely objections
3 exceptions substantial grounds: fail to surrender, further offence on bail, interfere witness
-List of previous convictions where complied and never failed to attend court
-Self-defence reasonable and proportionate
-Submission that difficult for prosecution to disprove Conway use of force disproportionate in these circumstances
-Prosecution evidence weak - -No substantial grounds to fear Conway fail to surrender
Further offence
-Ask honour to review antecedents - no history of offend or breach bail
-Work for charity - if continue remand then lose job
-Tie to community
Propose potential court conditions
-Regular reporting
-Prohibition enter area of offence
-Prohibition on contacting witnesses
-Requirement D comply with curfew and house arrest
-Curfew - electronic tag
