Tests for Advocacy CLP Flashcards
Statutory Factors taken into consideration when deciding on Bail
- The nature and seriousness of the offence and the probable method of dealing with the defendant for it
- The defendant’s character, antecedents, associations, and community ties
- The strength of evidence against the defendant (not relevant if already convicted)
- The defendant’s previous record on bail
- Risk of harm to any person
- Any other relevant factor e.g. misuse of drugs
Grounds for appeal against sentence
1) Wrong in law
2) Wrong in principle
3) Manifestly excessive
4) Legitimate expectation
5) Judge fails to take into account important matter
Grounds for appeal against conviction
1) Wrongful admission or exclusion of evidence
2) Wrongful rejection of submission of no case to answer
3) Misdirection on law
4) Wrongful withdrawal of issues with a jury
5) Inconsistent jury verdicts
6) Fresh evidence
7) Defects In process
8) Conduct of lawyers
Bad Character Evidence - Excluding, what process would be used?
S78 PACE 1984
Judge discretion to exclude evidence that the prosecution seeks to adduce if it would have adverse effect on the fairness of proceedings
Not applicable for D against another D
Admissibility of Bad Character Evidence of the defendant
Contents: (P and Co-D)
- Set out facts of the misconduct
- Explain how the party will prove the facts (certificate of conviction, record, other evidence), if disputed
- And explain why it is admissible
Response to the application
- Which facts are disputed/admitted
- Why evidence is not admissible
- Why it would be unfair to admit it
- Any other objection
No Case to Answer - Dismissing the charge
‘The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment…) if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted.’
Galbraith test
(a) where there is no evidence that the crime has been committed by the defendant; or
(b) where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.
Hearsay Test / definition
Definition:
a) Made out of court
b) The person that made it intended another to believe it
c) And it is adduced as evidence of the matter stated
Grounds to introduce hearsay
- Witness is unavailable (Dead, unfit, out of the UK, cannot be found with reasonable steps taken, fear) – need to identify the maker
- Business document
- Res Gestae
- Public information
- Evidence of reputation
- Confession
- Body of expertise
- Statements in furtherance of common enterprise
- Parties agree
- Interest of justice
10- Interests of justice for bad character definition
- Probative value
- If any other evidence can be given on the same matter
- Importance in the context of the case
- Reliability of the maker
- Whether oral evidence could be given or not
- Difficulty of challenging the statement and whether it would prejudice the party facing the difficulty
Hearsay - is it hearsay?
- Ask what the relevant fact/ matter it will prove
- Ask whether there is a statement of that matter in the communication
No – no issue of hearsay - If yes to 2, ask whether it was one of the purposes (need not be the dominant) was to make the recipient believe that matter or act is true
- Yes to 3 = hearsay, no = not hearsay
What is the evidence trying to prove?
👉1 Ask: What fact is this piece of communication being used to prove in court?
Does the communication contain a statement of that fact?
👉 2Ask: Is that fact actually stated in the message?
👉3 Ask: Did the sender say it to inform or convince the recipient that the fact is true?
confession evidence S76(2) PACE
Oppression
- Torture, inhuman or degrading
- treatment
- Use of threat or violence
- Causation
OR
Unreliability
- Confession given as a result of something ‘said or done’
- Can include breaches of PACE
- Conduct of interview
- Causation
Arguing retention of jurisdiction (to MC)
- straightforward case
- unlikely to receive a sentence in excess of 12 months
- vulnerable? lesser culpability = lower sentence
-lower harm - at the lower end
Arguing sending a case to CC
- too complex
- needs a jury
-needs a sentence over 12 months
-high culpability and harm
How would you argue around injuries caused by a Defendant?
although there were injuries caused, are they at the lower end of the scale? was he provoked?
Basis on which a Defendant pleas not guilty? how do you approach this in advocacy?
My client has pleaded NG because they do not accept they have caused / done….
what facts do they agree with? what facts do they dispute?
factors of witnesses/victim that change the perspective?
How to intoduce an application to withdraw confession?
if i may address you in relation to the confession
client said things he should not have due to pressure / influence / no legal rep
should be excluded under GROUNDS
confession evidence S78 PACE
Court has discretion to exclude evidence that:
‘Would have an adverse effect on the fairness of proceedings that the court ought not to admit it’
PACE 76 v 78: which one to choose?
s78 has a wider application perhaps easier to prove
can apply for both
What type of evidence will s76 or s78 PACE exclude
S78 ALL including confessions
S76 confessions only
