Tests for Advocacy- Criminal Litigation Flashcards
What is the test for plea before venue (allocation)?
Either way offences should be tried summarily unless
1. The court’s sentencing powers must be insufficient i.e outcome could clearly be a sentence in excess of the court’s power for offences after taking personal mitigation or any reduction for a guilty plea or
2. Reasons of unusual, procedural or factual complexity.
What is the test for committal for sentence?
- Realistic alternative to a custodial sentence.
- Defendant is a dangerous offender.
- Some appropriate reason for doing so.
How do the sentencing guidelines determine the offence category?
Look at culpability and harm.
What are the three culpability categories?
A (high)- premeditation or planning, vulnerable victim, highly dangerous weapon, leading role in group activity.
B (medium)- use of weapon that does not fall in category A, lesser role in group activity, between A and C.
C (lesser)- no weapon, excessive self defence, impulsive and short-lived.
What are the three harm categories in the sentencing guidelines?
category 1- serious physical injury or serious psychological harm and/or substantial impact upon victim.
category 2- harm falling between categories 1 and 3
category 3- level of physical injury or psysch harm with limited impact upon victim.
What is the test for a bail application?
Substantial grounds the D would either
1. Fail to attend a subsequent hearing.
2. Commit further offence on bail.
3. Interfere with witnesses, or otherwise obstruct the course of justice through witness intimidation or the destruction of evidence.
NO real prospects- bail should not be removed under one of these grounds if the D is charged with an offence where there are no real prospects of the D receiving a custodial sentence.
What are the factors to consider for a bail application?
- Nature and seriousness of the offence and likely sentence.
- Character of the D, D’s antecedents, associations and community ties.
- D’s bail record in the past.
- Strength of evidence.
What is the test for a plea in mitigation?
- Set out sentence you seek on behalf of the client.
- Set out the structure.
- Address the category from any SC guidelines.
- Outline mitigating features about the offence from the guidelines.
What is the test for admissibility of hearsay?
R v Twist
- Identify what relevant fact is sought to prove.
- Ask whether there is a statement of that matter in the communication.
- If yes, ask whether it was one of the purposes of the maker of the communication that the recipient, or any other person, should believe that the matter or act upon it as true.
What are the exceptions to the admissibility of hearsay?
- Witness is unavailable (person is dead, unfit to be a witness, outside of UK, cannot be found despite reasonable steps to find him have been taken. through fear relevant person does not give oral evidence)
- Business document.
- Interests of justice to admit it.
- Res gestae - statement was made by a person so emotionally overpowers by an event that the possibility of concoction or distortion can be disregarded.
What is s78 PACE?
Evidence on which the PROSECUTION relies if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of evidence would have such an adverse effect on the fairness of proceedings that the court ought not admit it,
What is a confession and how to exclude it under s76?
s82- confession includes any statement wholly or partly adverse to the person who made it whether made to a person in authority or not or made in worse or otherwise.
s76-
a)- by oppression of the person who made it, or
b)- in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession made.
court should not allow the confession to be given so far it is proved to the court on a balance of probabilities that the confession was not so obtained.
What are the 7 gateways for admissibility of a D’s bad character?
a) all parties to the proceedings agree to the evidence being admissible.
b) the evidence is adduced by the D himself or given in answer to a question asked by him in cross-examination and intended to elicit it.
c) important explanatory evidence.
d) it is relevant to an important matter in issue between the D and the prosecution.
e) substantial probative value in relation to an important matter in issue between D and co-defendant.
f) evidence to correct a false impression given by the D.
g) D has made an attack of another person’s character.
What are the elements for gateway D bad character?
Propensity to be untruthful or to commit offences of the kind of which he was charged.
Kind he was charged- same description or same category.
what is the test for submission of no case to answer?
R v Galbraith
1. where there is no evidence that the crime has been committed by the D.
2. where the prosecution evidence, taken as its highest, is such that a properly directed jury could not properly convict on it.
what are the turnbull guidelines?
When the case against the accused depends ‘wholly and substantially’ on the correctness of the visual identification which the defence allege is mistaken.
what is the maximum sentence a youth court can pass?
24 months (2 years)
what are grave crimes and what is the sentence?
any offence that in the case of an adult carries 14 years or more imprisonment.
What happens when a youth is jointly charged with adult for either way offence?
- Adult pleads not guilty and gets allocated.
- mag accepts jurisdiction= both tried in mag court.
- Court declines or adult elects, Interests of justice test is applied.
- if met, sent to CC. - if either plead guilty, tried separately.
what happens if a youth is jointly charged with an adult and it is a grave crime?
- youth pleas.
- if ng, should a sentence substantially in excess of two years be available? if yes, sent to cc.
- if two years test is not met, and adult pleads ng and is sent to cc, apply IOJ test.
- if adult pleads ng and remains in mag court, youth will remain in mag court.
what happens when youth is jointly charged with adult for indictable only offence?
- adult sent to CC.
- if youth is charged with homicide- send to CC.
- If youth is charged with a grave crime and two year test is met then send to CC.
- if two year test not met and plead ng, apply IOJ test.
When is a newton hearing needed?
When the D pleads guilty on the basis it will make a amterial different to sentence, a newton hearing is held to determine the factual basis of which they will then pass sentence.
