Bar Professional Training Course (BPTC) Criminal Litigation, Evidence and Sentencing Syllabus

Outline the order of events at a trial on indictment in the Crown Court.

(1) Jury empanelled and sworn; (2) prosecution opening speech; (3) prosecution evidence; (4) submission of no case to answer (in jury's absence); (5) defence opening (if calling witnesses other than the defendant) and defence evidence; (6) closing speeches (prosecution then defence); (7) judge's summing-up and direction on law; (8) jury retires, returns verdict; (9) sentence.

What is the rule on jury verdicts and majority verdicts in the Crown Court?

The jury must first be directed to reach a unanimous verdict. A majority verdict may be accepted only after at least 2 hours 10 minutes of deliberation and only by a margin of 11-1 or 10-2 (with a full jury of 12), or 10-1/9-1 where the jury has reduced to 11 or 10. A jury of fewer than 9 cannot return a majority verdict. For a guilty majority verdict the foreperson must state the numbers in open court.

What is the general rule on which court tries a youth (aged 10-17), and what are the main exceptions?

General rule: youths are tried in the youth court (a specialised magistrates' court). Exceptions sending a youth to the Crown Court include: (1) homicide (murder/manslaughter); (2) 'grave crimes' where a sentence beyond the youth court's powers may be needed (s.250 Sentencing Act 2020); (3) certain firearms offences with mandatory minimums; (4) dangerous offender provisions; (5) being jointly charged with an adult where it is in the interests of justice.

What is the age of criminal responsibility in England and Wales, and how are under-18s categorised?

The age of criminal responsibility is 10 (Children and Young Persons Act 1933, s.50). A 'child' is aged 10-13 and a 'young person' is aged 14-17. Below 10 a person cannot be guilty of a criminal offence. The doctrine of doli incapax for 10-13 year-olds was abolished by s.34 Crime and Disorder Act 1998.

What is the legal (persuasive) burden of proof in a criminal trial and to what standard?

The prosecution bears the legal burden of proving every element of the offence and disproving most defences. The standard is 'beyond reasonable doubt' (so that the tribunal is 'sure' of guilt). This is the Woolmington v DPP [1935] 'golden thread' principle: the prosecution must prove the case; the defendant need prove nothing.

When does a legal burden fall on the defendant, and to what standard must it be discharged?

A reverse legal burden arises by express or implied statutory provision (e.g. insanity at common law; the defence of diminished responsibility under the Homicide Act 1957; some statutory defences). The defendant discharges it on the balance of probabilities (i.e. more likely than not), a lower standard than the prosecution's.

Distinguish a legal burden from an evidential burden.

A legal (persuasive) burden requires a party to prove a fact to the requisite standard or lose on that issue. An evidential burden merely requires a party to adduce sufficient evidence to raise an issue fit for the tribunal's consideration; it is not a burden of proof. E.g. for self-defence the defendant bears only the evidential burden, after which the prosecution must disprove it beyond reasonable doubt.

What is the statutory definition of a confession under PACE 1984?

Section 82(1) PACE 1984: a confession 'includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.' It thus covers mixed statements and informal admissions, not just formal confessions to police.

On what two grounds may a confession be excluded under s.76 PACE 1984?

Section 76(2): the court must exclude a confession if it was or may have been obtained (a) by oppression of the person who made it; or (b) in consequence of anything said or done likely to render unreliable any confession the accused might make (the unreliability limb). Once the issue is raised, the prosecution must prove beyond reasonable doubt the confession was NOT so obtained.

How is 'oppression' defined for the purposes of s.76(2)(a) PACE?

Section 76(8) states oppression includes torture, inhuman or degrading treatment, and the use or threat of violence. Case law (R v Fulling [1987]) adds the ordinary dictionary meaning: 'the exercise of authority or power in a burdensome, harsh or wrongful manner' - usually importing some impropriety by the interrogator.

What is the general discretion to exclude prosecution evidence under s.78 PACE 1984?

Section 78 PACE: the court may refuse to allow prosecution evidence if, having regard to all the circumstances including how the evidence was obtained, its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. It is a discretionary, fairness-based exclusion, commonly used for breaches of PACE Codes.

What are the seven statutory 'gateways' for admitting evidence of a defendant's bad character under s.101(1) Criminal Justice Act 2003?

(a) all parties agree; (b) the defendant adduces it himself; (c) it is important explanatory evidence; (d) it is relevant to an important matter in issue between defendant and prosecution; (e) it has substantial probative value in relation to an important matter in issue between co-defendants; (f) it corrects a false impression given by the defendant; (g) the defendant has made an attack on another person's character.

What is the statutory definition of hearsay and the four routes to admit it under the CJA 2003?

Hearsay (s.114 CJA 2003) is a statement not made in oral evidence in the proceedings, relied on as evidence of any matter stated. It is admissible only if: (a) a statutory provision makes it admissible (e.g. ss.116, 117); (b) a preserved common law rule applies (s.118); (c) all parties agree; or (d) the court is satisfied it is in the interests of justice to admit it (the s.114(1)(d) safety valve).

Under s.116 CJA 2003, on what grounds may hearsay be admitted where the witness is unavailable?

The relevant person who made the statement is: (a) dead; (b) unfit to be a witness through bodily or mental condition; (c) outside the UK and not reasonably practicable to secure attendance; (d) cannot be found despite reasonable steps; or (e) does not give evidence through fear (leave required, judged by interests of justice). The maker must be identified.

What is the Turnbull guidance and when must it be given?

From R v Turnbull [1977], where the case depends wholly or substantially on disputed identification evidence, the judge must (1) warn the jury of the special need for caution before convicting in reliance on identification, (2) explain why such mistakes happen (even honest, convincing witnesses can be wrong), and (3) direct the jury to examine the circumstances of the identification using the ADVOKATE factors. If the ID evidence is poor and unsupported, the judge should withdraw the case.

What do the ADVOKATE factors assess in identification evidence?

Amount of time under observation; Distance; Visibility (lighting/conditions); Obstruction to the view; Known or seen before; Any reason to remember; Time lapse since the sighting; Errors/discrepancies between the description given and the actual appearance. They structure the Turnbull assessment of the quality of an identification.

When can an adverse inference be drawn from a defendant's silence under s.34 CJPOA 1994?

Where, on being questioned under caution or charged, the defendant failed to mention a fact later relied on in his defence which, in the circumstances, he could reasonably have been expected to mention. The court/jury may draw such inferences as appear proper. A conviction cannot be based wholly or mainly on the inference, and no inference may be drawn if the defendant remained silent on legal advice that was genuinely relied on (subject to reasonableness).

Distinguish the inferences available under ss.36 and 37 CJPOA 1994.

Section 36: failure to account for objects, substances or marks found on the person, clothing, footwear or place of arrest. Section 37: failure to account for one's presence at a particular place at or about the time of the offence. In both, the suspect must have been given a 'special caution' before an inference may be drawn, and a conviction may not be based wholly or mainly on the inference.

What are the five statutory purposes of sentencing for adults under s.57 of the Sentencing Act 2020?

(a) the punishment of offenders; (b) the reduction of crime (including its reduction by deterrence); (c) the reform and rehabilitation of offenders; (d) the protection of the public; and (e) the making of reparation by offenders to persons affected by their offences. (These do not apply to mandatory sentences or offenders under 18.)

What is the custody threshold and the community order threshold for sentencing?

Custody threshold (s.230 Sentencing Act 2020): a court must not pass a custodial sentence unless the offence (or combination of offences) was so serious that neither a fine alone nor a community sentence can be justified. Community order threshold (s.204): a court must not make a community order unless the offence is serious enough to warrant one. Each represents a rising level of seriousness.

How does a court approach sentencing using the Sentencing Council guidelines (the step-by-step method)?

Step 1: determine the offence category by assessing culpability and harm to reach a category range and starting point. Step 2: adjust within the range for aggravating and mitigating factors. Further steps consider reduction for guilty plea, totality, ancillary orders, and giving reasons. Courts must follow guidelines unless contrary to the interests of justice (s.59 Sentencing Act 2020).

What reduction in sentence is available for a guilty plea, and how does timing affect it?

Under the Sentencing Council's guideline: a maximum reduction of one-third (1/3) for a guilty plea at the first stage of proceedings (first hearing); reducing to one-quarter (1/4) after that up to the first day of trial; and a maximum of one-tenth (1/10) on the day of trial, decreasing thereafter even to zero. The reduction rewards the utilitarian value of the plea, not remorse.

List the principal categories of disposal available to a sentencing court for adults, in ascending order of severity.

(1) Absolute/conditional discharge; (2) fine; (3) community order (with one or more requirements); (4) suspended sentence order; (5) immediate custodial sentence. Ancillary orders (compensation, costs, disqualification, restraining orders, etc.) may accompany the main sentence.

What is a suspended sentence order, and what are its statutory limits?

A custodial sentence of between 14 days and 2 years (in the Crown Court) that is not activated provided the offender complies with requirements and commits no further offence during the operational period. The operational period is 6 months to 2 years. Requirements (e.g. unpaid work, rehabilitation activity) may be attached. Breach can lead to activation of the custodial term.

What examples of requirements may be attached to a community order?

Up to one or more of: unpaid work (40-300 hours); rehabilitation activity requirement (RAR); programme requirement; prohibited activity requirement; curfew (with electronic monitoring); exclusion requirement; residence requirement; mental health, drug or alcohol treatment requirement; and electronic monitoring. The combination must be the most suitable for the offender and proportionate to the seriousness.

What is the mandatory minimum sentence for murder, and how is the minimum term set?

Murder carries a mandatory sentence of life imprisonment. The judge sets a minimum term ('tariff') the offender must serve before being eligible for parole, determined by the starting points in Schedule 21 of the Sentencing Act 2020 (e.g. whole life order, 30 years, 25 years, 15 years), adjusted for aggravating and mitigating factors. A whole life order means no eligibility for release.

From the magistrates' court, what are a convicted defendant's routes of appeal?

(1) Appeal to the Crown Court against conviction (if pleaded not guilty) and/or sentence - a full rehearing, no leave required; or (2) appeal by way of case stated to the High Court (Administrative Court/Divisional Court) on a point of law or jurisdiction; or (3) judicial review of the magistrates' decision. The prosecution may also appeal by case stated or seek judicial review.

What is the test for appealing against conviction from the Crown Court to the Court of Appeal (Criminal Division)?

Under the Criminal Appeal Act 1968 (as amended), the Court of Appeal must allow an appeal against conviction if it thinks the conviction is 'unsafe', and dismiss it otherwise. Leave to appeal is required (usually from the single judge). Grounds include errors of law, material irregularity, or fresh evidence under s.23.

What powers does the Court of Appeal have when hearing a Crown Court appeal against conviction?

It may: (1) allow the appeal and quash the conviction; (2) dismiss the appeal; (3) order a retrial under s.7 if the interests of justice require; (4) substitute a conviction for an alternative offence of which the jury could have convicted; and (5) on a sentence appeal, vary the sentence but it has no power to increase the sentence on the defendant's own appeal.

How can a sentence imposed in the Crown Court be increased after the defendant has been sentenced?

Through the Attorney General's reference of an 'unduly lenient sentence' (ULS) scheme under s.36 Criminal Justice Act 1988. The Attorney General may refer certain serious offences to the Court of Appeal within 28 days, and the court may increase the sentence if it finds it unduly lenient. This is the only route by which a defendant's sentence may be increased on appeal.

What is the role of the Criminal Cases Review Commission (CCRC)?

The CCRC is the independent statutory body (Criminal Appeal Act 1995) that investigates suspected miscarriages of justice. It may refer a conviction or sentence back to the Court of Appeal (or, for magistrates' cases, the Crown Court) where there is a real possibility the conviction/sentence will not be upheld, usually requiring a new argument or new evidence not previously raised.