SQE2 - Criminal Advocacy

When objecting to bail, what should be satisfied?

There are substantial grounds for believing the D will:

• fail to surrender

• commit further offences

• interfere with witnesses / evidence

The court must not withhold bail if there is no real prospect the D would receive a custodial sentence if convicted

When responding to an objection to bail what should the defence rely upon?

no exemptions should apply

• failure to surrender (D has job, risk adverse)

• commit further offences (no previous, they have changed)

• interfere with witness/evidence

OFFER CONDITIONAL BAIL

What does the court consider in a case management hearing?

• would the outcome be clearly be a sentence in excess of mags powers?

• representations made by prosecution and defence

• sentencing / allocation guidelines

What should the prosecution do at a case management hearing?

1. open with facts of the case

2. outline D’s offending history

3. submissions that the trial should be held in crown court?

4. aggravating factors

What should the defence do at a case management hearing?

1. submission as to venue (if disagree with prosecution)

2. submissions that trial should be held in Mags

3. mitigating factors

what should the defence do when opposing bad character evidence under ground D (important matter in issue)

Apply Hanson!

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

2. If so, does the propensity make it more likely that D committed the crime charged?

3. Fairness and relevance (court should consider usefulness in proving something important and that it is not outweighed

   by its potential for unfair prejudice against D)

Consider can the court exclude where it would be unjust to admit?

Consider if the admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it

Under what section and act is the ground to exclude bad character evidence if it would be unjust to admit it?

s 101 (3) Criminal Justice Act

Under what section and act is the ground to exclude evidence if it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it?

s 78 PACE

What should you argue if trying to admit bad character evidence?

• It is important as explanatory evidence. Without it, the court/jury would find it difficult to properly understand other evidence in the case (court must grant leave)

• It has substantial probative value in relation to a matter raised in the proceedings and is of substantial important in the context of the whole case (court must grant leave)

If all parties agree to the evidence being admissible (court need not grant leave)

When can the court allow hearsay?

• Witness unavailable

• Res gestae (spontaneous statement made by someone so emotionally overpowered by an event that the possibility of distortion can be disregarded)

• Confessions

• Parties agree to it being admissible

• Court is satisfied that it is in the interests of justice to admit it

What is the interest of justice test?

If something is in the interests of justice - (evidence crucial to the case, without it court deprived of relevant info, it can be trusted, no alternative evidence to prove the matter in question)

What section is the interests of justice test and which act?

s114 of the Criminal Justice Act

What should the solicitor argue in an application to exclude evidence if it is a confession?

s76(2)(a) PACE - confession evidence obtained as a result of oppression (mandatory unless prosecution can prove ‘beyond reasonable doubt’)

s76(2)(b) PACE - confession obtained as a result of (1) anything ‘said or done’ which (2) is likely to render the confession unreliable (mandatory unless the prosecution can prove ‘beyond reasonable doubt’)

S 78 - adverse effect on fairness of proceedings

What should the solicitor argue in an application to excludeevidence?

S78 PACE

Will have an adverse effect on the fairness of proceedings (for example, reading out the statement is denying the defence the opportunity to cross-examine) (discretionary)

Refer to the interests of justice test (s114 Criminal Justice Act)

Admitting the evidence would not be in the interests of justice (unfair, not available for cross-examination, right to fair trial, there are other ways to prove the matter outside of hearsay evidence, jury may place undue weight on untested evidence)

What should the solicitor argue in a submission of no case to answer?

Galbraith:

The judge should stop the case if:

• If there is no evidence that the crime has been committed by D, the judge should stop the case (as there is no evidence upon which the jury could convict)

• Where the prosecution evidence, taken at its highest, is such that a jury could not properly convict on it, the judge should stop the case (as there is such poor evidence that it would be unsafe to leave it with the jury)

Talk about evidence and essential elements of offence

What should the solicitor argue in a plea in mitigation?

Sentencing guidelines (why lower harm/culpability appropriate)

Offence mitigating factors (no weapon, provocation, fear, remorse)

Personal mitigating factors (troubled background, stable employment, education, early guilty plea, good character)

Suggested sentence

What should the solicitor argue in an appeal from the Mag to High Court?

Conviction made was:

Wrong in law, (wrong interpretation of law, admissible evidence excluded, inadmissible evidence admitted) or

In excess of jurisdiction (Mags had jurisdiction)

What should the solicitor argue in an appeal from the Crown to CoA?

• Conviction was unsafe (error made by judge meaning right to fair trial breached - misdirected jury, fail to give caution, inappropriate intervention) (conviction only)

• Sentence was wrong in law or

• Sentence was wrong in principle or

• Sentence was manifestly excessive

When do the turnbull guidelines apply?

1. When the P’s case relies wholly or substantially on ID evidence; and

2. That ID evidence is in dispute

How should a judge assess the reliability of ID evidence?

A - a sustained look (how long did witness see the suspect)

D - distance

V - visibility

O - obstructions

K - known (was the suspect known to witness)

A - any reason to remember (was there a distinguishing feature)

T - time elapsed (between seeing suspect and reporting to police)

E - errors / discrepancies in description of appearance

How can ID evidence be excluded under a 78 PACE?

Adverse effect on the fairness of proceedings because there was significant and substantial breaches of code D. Examples:

Failure to conduct proper ID procedure

Failure to inform D of their right to legal advice