Advocacy SQE2

What are the discretionary grounds for summary judgement under the CPR?

• no real prospect of success; and

• there is no other compelling reason for trial

CPR 24.3

What are some examples of compelling reasons for trial in a summary judgement application?

• defendant needs more time for an investigation

• expert evidence is required

• multi-party litigation

• scrutiny of key documents

• defendant has the right to a trial by jury (e.g. fraud cases)

What are the 2 key matters which the court considers in a security for costs application?

1. whether it is just to make the order; and

2. whether one of the 6 key conditions are met

CPR 25.13

What are the 6 conditions the court considers in a security for costs application?

1. claimant is outside the jurisdiction

2. claimant is a company & there is reason to believe they wont be able to pay defendant’s costs

3. claimant taking actions that make cost enforcement difficult

4. claimant changed their address

5. claimant fails to give address

6. claimant acting as a nominal claimant & reason to believe they wont be able to pay costs

CPR 25.13

If the conditions are met for a security for costs application, must the court grant the order?

• no, the court has discretion to order security.

• the primary consideration is the respondent’s ability to meet the security requirement

CPR 25.13

What guidelines will the court consider when deciding whether to grant an interim prohibitory injunction?

American Cyanamid Guidelines:

1. is there a serious question to be tried?

2. would damages be an adequate remedy instead?

3. where does the balance of convenience lie? (would granting the injunction carry a lesser risk of injustice than not granting it?)

What 3 principles should a party seeking an injunction abide by as it is an equitable remedy?

1. they should only seek an injunction if it serves a practical purpose

2. they must have ‘clean hands’

3. they must not cause excessive delay

When can an application for strike out be brought?

1. the claim has no reasonable grounds or

2. it is an abuse of process

CPR 3.4(2)(a)

What is the legal test for an application to set aside default judgement?

Discretionary if:

1. applicant has a real prospect of successfully defending the claim OR

2. there was some other compelling reason for the failure to respond to the action

CPR 13.3

What is the 3 step process for dealing with an application for relief from sanctions?

Denton Principles:

1. identify the seriousness and significance of the failure

2. consider why the default occurred

3. evaluate the circumstances of the case to ensure the court deals with the matter justly, considering:

   1. litigation should be conducted efficiently at proportionate cost and

   2. court must enforce compliance with rules, PDs and orders

What is an unless order?

an order which provides for an automatic sanction in the event of non-compliance with the order

When will the court grant an interim payment order?

CPR 25.7:

1. if D admits liability for damages / another sum

2. if C obtains judgment for damages to be assessed OR

3. if court believes C would likely obtain a substantial judgment at trial

In a bail application, what will the court presume?

D is entitled to bail unless a valid objection is raised

What are the 3 primary grounds for objecting to bail for indictable offences?

Substantial grounds to believe D would -

1. FTS

2. commit further offences on bail

3. interfere with witnesses or otherwise obstruct the course of justice

When should bail never be removed?

No real prospects of D receiving a custodial sentence

In what 3 circumstances does the right to bail not apply?

1. murder cases

2. appealing convictions

3. when D is being committed for sentence to the CC

What are the 6 grounds for objecting to bail for summary offences?

Only available if D breached bail / has previous convictions for FTS:

substantial grounds for believing D will -

1. FTS

2. commit further offences

3. interfere with witnesses or otherwise obstruct the course of justice

4. remand in custody is for D’s own protection

5. court has insufficient info to deal with bail so a short-term remand is needed to produce sufficient evidence

6. D is already serving a sentence

When will an either way offence be tried on indictment in the crown court?

1. the magistrates’ court’s sentencing powers are insufficient; or

2. there are unusual, legal, procedural, or factual complexity that requires a crown court trial

What factors might be relevant to determining whether a defendant is tried in the magistrates’ or crown court?

1. D’s offending history

2. Sentencing guidelines

3. Case law

4. D’s submissions

What is a confession under s.82(1) PACE?

1. any statement wholly or partly adverse to the statement maker

2. whether made to a person in authority or not

3. and whether made in words or otherwise (nodding, thumbs up)

What are 2 ways to challenge the admissibility of a confession under s.76(2) PACE?

(a) oppression

(b) unreliability

What must the prosecution prove if the defence try to exclude a confession for unreliability under s.76(2)(b)?

Must prove beyond a reasonable doubt that the confession was not obtained in such a manner

If the prosecution cannot prove a confession was not unreliable under s.76(2)(b) PACE, what happens?

Court MUST not admit the evidence (mandatory)

When can s.78 PACE be used to exclude evidence?

Where the prosecution evidence being admitted would adversely affect the fairness of the proceedings

Discretionary court power

In what circumstances may s.78 PACE be invoked?

1. improper denial of legal advice

2. non-voluntary waiver of rights

3. failure to caution suspects

4. appropriate adults not provided

5. ID procedures not followed

6. breach of PACE Code C

What are abuse of process applications?

1. used when a case should be stopped due to fundamental unfairness or impropriety

2. D can apply to stay proceedings if it would be an abuse of process

When may an abuse of process application be brought to stay proceedings?

Where it offends the court’s sense of justice and propriety to allow the case to be tried like -

1. D coerced into committing an offence

2. D prosecuted despite unequivocal prosecution promise

3. police acted in a way which undermined public confidence in the criminal justice system

4. prosecution manipulated court process to deprive D of protections

5. inordinate or unconscionable delay due to prosecution inefficiency

When might hearsay evidence be admitted?

All under Criminal Justice Act 2003

1. witness is unavailable (s.116 CJA)

2. contained within a business document (s.113 CJA)

3. it is in the IOJ to admit it (s.114)

4. public information (s.118)

5. confessions (s.118)

6. res gestae (s.118)

7. documents prepared for criminal proceedings

8. evidence of reputation (s.118)

What are the 7 gateways for adducing bad character evidence s.101(1) Criminal Justice Act 2003?

Must satisfy one of these:

1. all parties agree to admit evidence

2. evidence adduced/given by D (cross-examination)

3. important explanatory evidence (required so court can properly understand the case - must have substantial value)

4. relevant to an important matter in issue (relating to D's propensity to be untruthful or commit the offences) - "done it before"

5. Substantial probative value to an important between D and Co-D

6. evidence to correct a false impression given by D

7. D has made an attack on another person's character

What is the fairness test under s.101(3) for bad character evidence and when does it apply?

s.101(1)(d) and (g)

the Court MUST not admit evidence if the admission would have such an adverse effect on the proceedings that the court ought not to admit it

stronger than s.78 PACE as it is mandatory

What steps must be followed to determine whether convictions can be used to show propensity in a bad character application (s.101(1)(d) CJA)?

HANSON CRITERIA:

1. do convictions establish a propensity to commit offences of the kind charged?

2. does propensity make it more likely D committed this crime?

3. for offences of the same category/description - is it unjust to rely on them? / where propensity is proved by other means - is it unfair to admit evidence (fairness)?

Does a propensity to be untruthful mean the same thing as a propensity to be dishonest?

No - untruthfulness can be shown when:

1. not guilty plea to a previous offence and D gave evidence at trial which jury must not have believed

2. the way in which the offence was committed involved being untruthful (e.g. fraud)

What is the effect of a submission of no case to answer?

If accepted, an order is granted to stop the proceedings if P’s case is too weak

What is the Galbraith test in a submission of no case to answer?

a case can be stopped if:

1. there is no evidence of the crime OR

2. P’s evidence, taken at its highest, is insufficient for a properly directed jury to properly convict

What is a plea in mitigation?

Where the defence uses the facts of the case and the offender to plea for a lower sentence

What are the 5 steps to structure your plea in mitigation?

1. check court has the papers

2. identify a category (sentencing guidelines)

3. offence mitigation

4. offender mitigation

5. sentencing suggestion

What is the discretionary power for specific disclosure?

CPR 31.12(2)

The court has a discretionary power to grant specific disclosure where the party from whom specific disclosure is sought has failed adequately to comply with the obligations imposed in ordinary disclosure and the court will consider all circumstances of the case, in particular the overriding objective.

What is the test for standard disclosure?

CPR 31.6

·         Document they rely on

·         Adversely affecting own case

·         adversely affecting other case

·         document supporting another case

Must make a reasonable search

What are the appeal grounds from MC to CC?

• is it against conviction or sentence?

• set out what should have been found

What are the grounds for appealing by way of case stated?

• decision made by MC is wrong in law

• decision made by MC is in excess of their jurisdiction

What can you ask for by appeal by way of case stated?

• reverse

• affirm

• amend

• remit to MC

What are the appeal grounds from CC to CoA?

• is the conviction unsafe?

• is the sentence wrong in law?

• is the sentence manifestly excessive or wrong in principle?

When might a conviction be unsafe?

o    Judge incorrectly rejected a submission of no case to answer

o    Judge misdirected the jury on a point of law

o    Judge permitted evidence to be adduced which should have been excluded or excluded evidence which should have been permitted

o    Judge made an error in summing up

o    Fresh evidence → is it in the interests of justice? → is it credible? → would it have been admissible at trial? → is there a reasonable explanation for the failure to adduce it at trial?

When is a sentence manifestly excessive?

Beyond the appropriate range for the offence

When is a sentence wrong in principle?

Not the most appropriate in the circumstances

What are the Turnbull Guidelines for excluding ID evidence?

·         Amount of time under investigation

·         Distance

·         Visibility

·         Obstructions

·         Known or seen before

·         Any reason to remember?

·         Time between witness seeing the incident and making ID

·         Error or material discrepancies between first and subsequent accounts

When might evidence have been obtained improperly?

Breach of PACE Code D:

·         D’s reasonable objections as to the appearance of the others in ID parade not considered

·         Failure to keep witnesses away from each other or D during procedure

·         Failure to warn witness D may not appear in parade at all

What is a grave offence?

Serious offences for which the sentence is not fixed by law and is punishable with imprisonment of 14 years or more for an adult over 21, and some violent and sexual offences (s.91 Powers of Criminal Courts (Sentencing) Act 2000).

What is the test for where to try a youth?

Is there a real prospect that a sentence in excess of two years’ detention will be imposed on the youth?

What offences automatically send a youth to CC?

• Homicide

• Firearm offences subject to a mandatory minimum sentence of 3yrs (and aged 16/17)

• Offences where notice has been served in fraud or child cases

• Offence for which dangerous offender provisions apply (specified offences)

What factors should be considered for sending a youth to CC with adult?

Interests of Justice Test:

1. Whether separate trials will cause injustice to witnesses or to case as a whole

2. Age of youth →younger Y is, greater desirability to be tried in YC

3. Age gap → bigger the age gap, favourable to try in YC

4. Lack of maturity of youth

5. Relative culpability of Y compared with A and alleged role played by Y was minor

6. Lack of previous convictions on part of Y