sqe2 advocacy Flashcards
advocacy tests DR + CLP
which statute is relevant for a bad character application?
s 101(1) Criminal Justice Act 2003
what is the test for bad character applications?
bad character evidence is generally inadmissible, UNLESS it goes through one of the 7 gateways
what are the 7 gateways for bad character application?
s 101(1)(a) = agreement (of the parties)
(b) = blurts it out (evidence adduced by D)
(c) = context (important explanatory evidence)
(d) = done it before (matter in issue between P and D)
(e) = ‘e did it (matter in issue between D and co-D)
(f) = false impression (correcting a false impression)
(g) = gets at the witness (attack on another person’s character)
how can you exclude evidence going through gateways D (matter in issue between pros. and D) and G (attack another’s character)
by using s 101(3) = court MUST NOT admit evidence when it appears that it would have such an adverse effect on the fairness of the proceedings that it ought to not be admitted
how can you stop a case that involves bad character evidence application?
s 107 CJA: if bad character evidence is contaminated and any conviction would thus be unsafe
=> court has DISCRETION to stop case
what test do you use when propensity is argued by pros. through bad character evidence?
Hanson: 3 stage test on whether evidence establishes a propensity to commit offences of the kind
1: whether the history of convictions is capable of establishing a propensity to commit offences of the kind
2: does that propensity makes it more likely he committed this particular offence
3: Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted?
what do you use in an application to exclude evidence?
s 78 PACE: court has a discretion to exclude evidence when it would have such an ADVERSE EFFECT ON THE FAIRNESS OF PROCEEDINGS that the court ought not to admit it
how do you exclude evidence under the common law?
s 82(3) PACE: preserves the common law discretion of the courts to exclude evidence where its prejudicial effect outweighs its probative value
how do you exclude confessions?
s 76 PACE - CAN’T admit if unreliable!
76(2) if confession was/may have been obtained -
(a) by oppression; or
(b) [unreliability] in consequence of anything said or done (in the circumstances existing at the time) which was likely to render it unreliable
=> then court MUST REFUSE! to allow confession unless pros. can prove beyond reasonable doubt that it WASN’T obtained like that
how do you argue a bail app?
GENERAL RIGHT TO BAIL so only test if-
Bail Act 1976 test:
1. does D pose a real risk in respect of any of the exceptions to the general right to bail?
- if yes, which exceptions?
-D failing to surrender/commit another offence/interfere with W
-D likely to cause physical/mental harm to an associated person
-already on bail at time of offence
-has failed to surrender/breached bail conditions in past
-should be kept in custody for own protection - will conditional bail alleviate the fears identified in the exception?
what is the test for summary judgment?
court MAY grant judgment if:
(a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; AND
(b) there is no other compelling reason why the case or issue should be disposed of at trial
what is the test for setting aside default judgment?
is this power mandatory or discretionary?
what else do you need to address?
what is the application for relief?
CPR r 13.3(1):
a. real prospect of successfully defending the claim; OR
b. some other good reason why the judgment should be set aside/varied/D should be allowed to defend
discretionary power
address promptness! r 13(3)(2)
app for relief: Denton 3 stage test-
1. has the breach been serious or significant?
2. why did the default occur?
3. all the circumstances of the case
what is the test for a strike out?
CPR 3.4(2)- court MAY strike out a statement of case if it appears that-
(a) the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) the statement of case is an abuse of the court’s process/otherwise likely to obstruct the just disposal of proceedings; OR
(c) there’s been a failure to comply with a rule/practice direction/court order
what is the test for an interim payment?
+ when is the first limb satisfied?
+ what must the court take into account?
CPR 25.7: court MAY make order where ANY of the following are satisfied:
- C would obtain judgment
- for a substantial sum
- reasonable proportion sought - taking into account contributory negligence
first limb satisfied when:
-D has admitted liability to pay damages
-C has obtained judgment against D for damages to be assessed
-it is satisfied that if claim went to trial, C would obtain judgment for a substantial amount of money
court must take into account contributory negligence and any set-off/counterclaim
when may an interim injunction be granted? (test)
what can you offer to the court?
s 37 Senior Courts Act + American Cyanamid guidelines:
- is there a serious q to be tried?
- would damages be an adequate remedy for a party injured by the court’s grant/refusal of an injunction?
((i) damages for the applicant? (ii) damages for the respondent?) - where does the balance of convenience lie?
offer a cross-undertaking to court to pay damages to the respondent for any loss sustained (BUT ONLY IF CLIENT ASKED YOU TO)
what are some general CPR provisions that might come in handy in case management hearings?
CPR 3.1(2)- court may:
extend or shorten time for compliance with any rule
adjourn or bring forward a hearing
stay the whole or part of any proceedings or judgment
exclude an issue from consideration
dismiss/give judgment on a claim
exchange of costs budget
how do you make your submissions at an allocation hearing?
DR
CPR part 26 = address:
the value
length of trial and expert evidence
other matters the court should consider
more specifically Part 26.13-
financial value of claim
nature of the remedy sought
likely complexity of case
number of parties
value of any counterclaim + complexity
amount of oral evidence required
public importance?
views + circumstances of parties
if costs come up, what should you ask for?
costs in any event, and if not possible then costs in the case (which is the general rule)
note any points of your submission that the court has commented favourably on and criticise other side’s conduct if possible
what is the test for security for costs?
CPR 25.13;
court may make an order if:
it is satisfied that having regard to all the circumstances, it is just to make such an order; AND
one or more of the conditions apply:
-C is resident out of jurisdiction (not in Hague Convention)
-C is a company and reason to believe wouldn’t be able to pay
-C has changed address to avoid litigation
-C failed to give address/gave incorrect address on claim form
-C has taken steps in relation to his assets to make it more difficult to enforce a costs order
this app also needs to be made promptly
Sir Lindsay Parkinson v Triplan:
a claim which appears to not be genuine/has little prospects of success, will make D’s application more likely to succeed
how do you structure a plea in mitigation?
- identify the category of the offence
- offence mitigation
- offender mitigation
- sentencing suggestions
when can an appeal against sentence be allowed and what are the common grounds for an appeal against sentence?
can be allowed if court thinks D should’ve been sentenced differently
wrong in law
wrong in principle
manifestly excessive
legitimate expectation
judge fails to take account of relevant matters
judge takes account of improper considerations
unjustified disparity between co-Ds/failure to distinguish between offenders
what is the single test for an appeal against conviction?
whether or not the conviction can be regarded as safe
how can you argue that something isn’t hearsay?
by showing that the purpose of adducing evidence of words spoken out of court is to show the EFFECT the words had ON THE PERSON to whom they were said, not the truth of what was said
what is the general rule on hearsay and how can you admit it?
hearsay is generally inadmissible, as a statement made out of court cannot be presented in evidence as proof of its contents.
however, s 114 CJA provides that if hearsay falls within one of the exceptions, then it’s admissible
