Guidance on Advocacy Plans

As you all know for both Advocacy 2 (examination in chief) and Advocacy 3 (cross
examination) assessments you must prepare a plan which you will use during your
examination of the witness and then hand to your assessor at the end of your performance.

Both the Advocacy 2 and 3 criteria award 10% of the marks for the plan. The advocacy
assessment criteria set out what must be included as a minimum in the plan.

What will the plan be used for?

1. The plan will be used by the student as an aide memoir during witness handling.
2. The plan is used to assess the student on knowledge areas that cannot be ascertained in
the oral performance. For example, whether you understood which piece of evidence
was inadmissible and why.
3. The relevant sections of the plan are designed to ensure you have considered everything
that is relevant before beginning you examination.

In accordance with the advocacy criteria, the following points must be covered in your
plan. This does not mean that this is all that you may put into a plan. It is a minimum
requirement. In order to ensure that you have covered all of the essential points, you
will find it helpful to put each point as a sub-heading.

Demonstrate effective preparation by presenting a legible, handwritten, plan which

identifies:

 the stage of proceedings and your role;

You must identify at which stage of the trial you are starting your examination. For
example: cross examination of the Defendant in the defence case.

 a viable prosecution and defence theory of the case;

Students often struggle with case theories.

You should review your case analysis SPS notes from induction week.

A viable theory not only tells the story i.e. the defendant burgled the victim’s home and
stole a gold ring, but will also deal with the evidence that supports that story, thereby
demonstrating why the jury should accept that factual version of events.

Below you will find a prosecution and defence theory from SPS 1. This is meant as an
illustration only. You may have phrased things differently or relied on one point rather
than another but it shows the sort of things you should have considered in your plan.
Prosecution Case Theory

Declan Callaghan is a short-tempered man, who is excessively protective of his partner and his
dog. On 3rd September 2017, Mr. Mullen’s dogs were in his garden when the Defendant’s dog
went past, barking. Mr. Mullen’s dogs ran out of the garden but did not attack the Defendant’s
dog. The Defendant’s partner was aggressive and abusive, threatening to “get Dec”. The
Defendant was incensed when he heard about the dogfight and he went to Mr. Mullen’s home
in a rage. On arrival, he became abusive, reached into Mr. Mullen’s garden and in retaliation
for the perceived wrong and without any provocation savagely punched, kicked and stamped
on Mr. Mullen. When Mrs. Mullen attempted to defend her husband from attack by hitting out
at the defendant with a small plastic bucket, the Defendant then assaulted Mrs. Mullen by
hitting her.

Defence Case Theory

Thomas Mullen owns two Jack Russell dogs. The dogs are quite vicious and he does not
adequately control them. A month before the current incident, Mr. Mullen’s dogs attacked Mr.
Callaghan’s dog, Zak, and caused it injury. Earlier in the year, Mr. Mullen’s dogs ran out of
their garden and again attacked Zak. On 3rd September 2017, Mr. Callaghan went to Mullen’s
house to discuss the matter. When Mr. Callaghan mentioned that he would report Mullen to
the RSPCA, Mr. Mullen became very angry and dragged Mr. Callaghan into his garden and
began violently pushing him around. Mrs. Mullen also began hitting Mr. Callaghan with a
heavy bucket. When Mr. Mullen drew his fist back to punch Mr. Callaghan, Mr. Callaghan was
forced to defend himself and hit Mr. Mullen once. Both Mr. and Mrs. Mullen have exaggerated
the incident and are lying about what happened.

 all relevant legal issues e.g. elements of the offence, burden/standard of proof,
relevant statutory provisions/authorities etc;

 any evidence that is inadmissible;

Under this heading you must deal with any evidence that you know cannot be used in
the trial because it is inadmissible. You must say exactly what the evidence is, why it
is inadmissible and how you intend to deal with it.

An example from the Callaghan case would be as follows:

The witness statement of Thomas Mullen contains the words ‘Callaghan has a reputation
for doing horrible things and I have been worried since the incident…etc’. This is
inadmissible because it is both hearsay and evidence of bad character. I will not ask any
questions which might elicit this information.

 the main issues that you want the witness to address;

This will form the bulk of your plan. It is this section that you will use to help you in
your examination. You must not script your questions in this section. If you do so you
will lose marks. Instead, you must deal with the area or issues that you will go through
with a witness.
 Different students may make different tactical decisions, or may view one area as being
more important that another. For this reason, you can explain why you have decided
deal with a particular fact or issue.

The following is an example of what might be included.

Thomas Mullen

Background

 Personal details
 Date, time, location (leading questions permitted as matters not in dispute)

First Incident (this is important to demonstrate the Defendant’s motive for attacking the
Mullens during the second incident)

 Three dogs in garden.

 Woman walked past with a dog on a lead.
o Small black and tan terrier.
 Terrier was barking at W’s dogs.
 W and wife immediately brought his dogs back into garden.
 Woman was shouting “I’M GONNA GO AND GET DEC AND HE’S GONNA HAVE
YOU”.
 “Dec” is Declan Callaghan, the Defendant

Second Incident

 5 minutes later, D arrived.

 W was inside the house.
 Wife called W.
o She sounded worried (important to support her evidence that the Defendant
was aggressive from the outset).
 Dogs were in the house (important to contradict the Defendant’s assertion that the
dogs were aggressive to Mr Callaghan).
 W approached D.
 D standing outside the garden.
 D said “I WANT A WORD WITH YOU ABOUT THESE FUCKING DOGS”.
o His manner was very loud and aggressive (important to establish that
Callaghan was the aggressor from the outset).
 W replied “WELL, WHAT’S THE MATTER, I GOT THE DOGS BACK IN THE
GARDEN”.

Details of Assault

 D had his right arm raised with a clenched fist.

 D punched W in the face (these questions are necessary to establish the elements of
assault required for section 47 offence and help the jury to visualise what
happened).
o Twice.
 o Extremely hard.
o Not sure which fist used.
o Force of blows made W fall backwards.
o Consequence – W felt disorientated and held onto the fence for support.
 Deny trying to punch D (important to negate D’s assertion of self-defence)
 Aware D was in the garden.
 Heard shouting.
 Heard wife’s voice.
 Heard plastic bucket banging.
 W got up.
 Saw D heading for the gate.
 Heard wife say “I’M GONNA GET THE POLICE”.
 D replied “GET THE POLICE AND I’LL KILL YOU”.
 Neighbour called police.

Injuries (to establish ABH caused to Thomas Mullen and to support wife’s evidence that she
too was attacked)

 Didn’t go to hospital until next day as had to return pony to stables.

 Attended Newcastle General hospital.
 Injuries:
o left cheek was extremely swollen.
o left eye was nearly closed.
o right side of face was swollen.
o top half of right ear was black with bruising behind ear.
o slight bruising around right eye.
o right elbow bruised, swollen and cut.
o left torso bruised and very painful.
o right buttock numb for a couple of days after the assault.
o Since the attack, headaches and pains in head, vision has been hazy, struggling
to read as well.
o Lost time at work.

 any rules of evidence and/or statutory provisions and/or authorities which may
affect the way in which you conduct your examination;

You may not always have something to put under this heading.

 any other factual or legal issues that you feel relevant to your examination of the
witness.

Again, you may not have anything to put under this heading. It is there to remind you
to add to your plan anything which you think is relevant but has not yet been included.
Amongst others you may wish to include the elements of the offence (to remind you of
what you must establish) or the steps to be taken when introducing a previous
inconsistent statement if that will be relevant. If you were examining a witness such as
a Police Officer you may wish to remind yourself of the procedure involved in memory
refreshing or that an officer must identify himself by name, rank and station.
 The issues that can be raised under this heading are very varied and will be entirely
dependent on the facts of the case. If you do not have anything to include under this
heading do not be too concerned.

Hopefully this has given you a better idea of what should be included in a plan. Please
make sure that for SPSs you prepare a plan as you would do in the assessment. This
plan can be given to your tutor who will give you feedback in the session.