sqe2 advocacy

Question 1

which statute is relevant for a bad character application?

Answer 1

s 101(1) Criminal Justice Act 2003

Question 2

what is the test for bad character applications?

Answer 2

bad character evidence is generally inadmissible, UNLESS it goes through one of the 7 gateways

Question 3

what are the 7 gateways for bad character application?

Answer 3

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)

Question 4

how can you exclude evidence going through gateways D (matter in issue between pros. and D) and G (attack another’s character)

Answer 4

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

Question 5

how can you stop a case that involves bad character evidence application?

Answer 5

s 107 CJA: if bad character evidence is contaminated and any conviction would thus be unsafe
=> court has DISCRETION to stop case

Question 6

what test do you use when propensity is argued by pros. through bad character evidence?

Answer 6

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?

Question 7

what do you use in an application to exclude evidence?

Answer 7

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

Question 8

how do you exclude evidence under the common law?

Answer 8

s 82(3) PACE: preserves the common law discretion of the courts to exclude evidence where its prejudicial effect outweighs its probative value

Question 9

how do you exclude confessions?

Answer 9

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

Question 10

how do you argue a bail app?

Answer 10

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?

2. 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
3. will conditional bail alleviate the fears identified in the exception?

Question 11

what is the test for summary judgment?

Answer 11

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

Question 12

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?

Answer 12

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

Question 13

what is the test for a strike out?

Answer 13

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

Question 14

what is the test for an interim payment?

+ when is the first limb satisfied?

+ what must the court take into account?

Answer 14

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

Question 15

when may an interim injunction be granted? (test)

what can you offer to the court?

Answer 15

s 37 Senior Courts Act + American Cyanamid guidelines:

1. is there a serious q to be tried?
2. 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?)
3. 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)

Question 16

what are some general CPR provisions that might come in handy in case management hearings?

Answer 16

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

Question 17

how do you make your submissions at an allocation hearing?
DR

Answer 17

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

Question 18

if costs come up, what should you ask for?

Answer 18

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

Question 19

what is the test for security for costs?

Answer 19

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

Question 20

how do you structure a plea in mitigation?

Answer 20

1. identify the category of the offence
2. offence mitigation
3. offender mitigation
4. sentencing suggestions

Question 21

when can an appeal against sentence be allowed and what are the common grounds for an appeal against sentence?

Answer 21

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

Question 22

what is the single test for an appeal against conviction?

Answer 22

whether or not the conviction can be regarded as safe

Question 23

how can you argue that something isn’t hearsay?

Answer 23

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

Question 24

what is the general rule on hearsay and how can you admit it?

Answer 24

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

Question 25

when addressing hearsay, what two questions do you have to address?

Answer 25

1. does the evidence fall within the def of hearsay evidence?
2. does it fall within one of the exceptions to the general exclusionary rule

Question 26

what are the exceptions to the general hearsay exclusionary rule?

Answer 26

all parties agree
IOJ
W is unavailable
business doc
public info
evidence of reputation
res gestae
confessions
statements in furtherance of common enterprise
body of expertise
previous inconsistent statement

Question 27

where does the test for determining whether something is hearsay come from and what is the test?

Answer 27

R v Twist -3 part test

1. identify what relevant fact/matter it is sought to prove
2. ask whether there is a statement of that matter in the communication
3. if yes, ask whether it was one of the purposes of the maker of the statement that the recipient should believe it/act upon it as true

Question 28

what is the test for a submission of no case to answer?

Answer 28

R v Galbraith: judge should stop the case:

1. where there is no evidence that the crime has been committed by the D (first limb); OR
2. where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it (second limb)

Question 29

what is the general rule for case allocation?
criminal

Answer 29

cases should be tried summarily UNLESS:
-the court’s sentencing powers are insufficient for the anticipated sentence; OR
-the outcome would clearly be a sentence in excess of the court’s powers

also if unusual legal, factual or procedural complexity, then should be tried in CC

Question 30

what is the process for allocating a youth charged with a grave crime?

Answer 30

youth court MUST conduct a plea before venue

if youth pleads G, => proceed with sentencing in MC or CC

if youth pleads NG/no plea => is there a real prospect that a sentence in excess of two years’ detention will be imposed?

Question 31

what is an abuse of process application?

Answer 31

an app to stay the indictment where either (1) D cannot have a fair trial; or (2) continuing the prosecution offends the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system

Question 32

how do you seek an order for disclosure of specific documents?

Answer 32

CPR 31.12(1) the court can make an order for specific disclosure

31A PD 5.5 if allows party to advance his own case or to damage that of the party giving disclosure

31A PD 5.4 the court will consider all the circumstances of the case including the overriding objective

31A PD 5.4 if docs should’ve already been disclosed

if they’re relevant to an issue which is of central importance to the case, then court more likely to allow it

Question 33

what does the court look at in an app for relief from sanctions?

Answer 33

(1) all the circumstances of the case, so as to enable it to deal justly ie
(a) for litigation to be conducted efficiently and at proportionate cost; AND
(b) to enforce compliance with rules etc

(2) app must be supported by evidence

Question 34

how would you argue an app for refusing an extension of time for exchange of witness statements?

Answer 34

CPR 1.1 court should deal with case + app in a way which is just and at proportionate cost - this includes not allowing extensions of time which are UNREASONABLE OR IMPERIL THE HEARING DATE/proceedings

CPR 1.1(2)(c) dealing with the case proportionately to its value/complexity

CPR 1.1(2)(d) - dealing with the case expeditiously and fairly

Question 35

what should you argue for an extension of time application AFTER expiry?

Answer 35

that the party has acted promptly AND
party took all reasonable steps OR court failed to serve statement of case on time

also mention overriding objectiveee! and that delaying won’t have an impact on the case if possible