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

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

A legal burden falls on the defendant only in limited cases: certain statutory exceptions (express or implied reverse burdens) and the common law defence of insanity. Where the defence bears the legal burden, the standard is the balance of probabilities (lower than the prosecution standard). For most defences (e.g. self-defence, alibi) the defendant bears only an evidential burden.

What is the definition of a confession under PACE 1984?

Under s.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. A mixed statement (partly inculpatory, partly exculpatory) is admissible as a whole.

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

Under s.76(2), where it is represented that a confession was or may have been obtained (a) by oppression, or (b) in consequence of anything said or done likely to render it unreliable, the court must exclude it unless the prosecution proves beyond reasonable doubt that it was not so obtained. Oppression includes torture, inhuman or degrading treatment, and the use or threat of violence (s.76(8)).

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

Under s.78, the court may refuse to allow evidence on which the prosecution proposes to rely if, having regard to all the circumstances including how it 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 exclusionary power covering, e.g., breaches of PACE/the Codes, unfair identification procedures, and improperly obtained confessions.

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

Bad character of the defendant is admissible if: (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 re an important matter 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.

How does s.103 CJA 2003 define an 'important matter in issue' for gateway (d), and what discretion exists to exclude?

Under s.103, matters in issue include whether the defendant has a propensity to commit offences of the kind charged (which may be shown by previous convictions for offences of the same description/category) and a propensity to be untruthful. Under s.101(3), evidence under gateways (d) and (g) must be excluded if, on the defendant's application, it would have such an adverse effect on fairness that it ought not to be admitted; the court must also have regard to time elapsed (s.103(3)).

What is the statutory definition of hearsay under s.114 Criminal Justice Act 2003?

Hearsay is a statement not made in oral evidence in the proceedings that is relied upon as evidence of any matter stated in it. It is admissible only if one of four routes applies: (a) a statutory provision makes it admissible; (b) a preserved common law rule applies; (c) all parties agree; or (d) the court is satisfied it is in the interests of justice to admit it (the 'safety valve').

On what grounds may a hearsay statement be admitted where a witness is unavailable under s.116 CJA 2003?

Under s.116, a statement is admissible if oral evidence would be admissible, the maker is identified, and a specified reason applies: the witness is (a) dead; (b) unfit through bodily/mental condition; (c) outside the UK and attendance not reasonably practicable; (d) cannot be found despite reasonable steps; or (e) does not give evidence through fear (with the court's leave, having regard to special measures).

What are the factors a court must consider under s.114(2) CJA 2003 when deciding whether the interests of justice favour admitting hearsay?

Factors include: the probative value of the statement; what other evidence is available; how important the matter is; the circumstances in which the statement was made; the reliability of the maker and of the evidence of the making of the statement; whether oral evidence can be given and, if not, why; the difficulty of challenging the statement; and the extent of any prejudice to the party facing it.

What are the Turnbull guidelines and when do they apply?

Turnbull (R v Turnbull [1977]) governs cases that depend wholly or substantially on disputed identification evidence. The judge must warn the jury of the special need for caution before convicting in reliance on identification, explain why mistaken (even convincing/honest) witnesses can be wrong, and direct them to examine the circumstances of the identification using the ADVOKATE factors.

What do the ADVOKATE factors assess in a Turnbull identification direction?

ADVOKATE: 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; Error or material discrepancy between the description first given and the defendant's actual appearance. Where identification is poor and unsupported, the judge should withdraw the case from the jury.

When can a court draw adverse inferences from a defendant's silence under s.34 CJPOA 1994?

Under s.34, the court/jury may draw such inferences as appear proper from the defendant's failure, when questioned under caution or charged, to mention a fact later relied on in his defence which in the circumstances he could reasonably have been expected to mention. A conviction cannot be based solely or mainly on such an inference (s.38(3)), and a proper legal advice to remain silent may be relevant.

What inferences arise under ss.36 and 37 CJPOA 1994?

Section 36 allows adverse inferences from a failure to account for objects, substances or marks on the suspect's person, clothing or footwear, or in his possession or place of arrest. Section 37 allows inferences from a failure to account for the suspect's presence at a particular place at or about the time of the offence. Both require a special caution by the constable explaining the consequences of silence.

What is examination-in-chief and the rule against leading questions?

Examination-in-chief is the questioning of a witness by the party that called them, to elicit their evidence. Leading questions - which suggest the desired answer or assume disputed facts - are generally not permitted in chief (except on non-contentious/introductory matters), because the witness's own account should emerge. Leading questions are permitted in cross-examination.

When may a witness refresh their memory and when may a party treat their own witness as hostile?

Under s.139 CJA 2003 a witness may refresh memory from a document made or verified earlier while giving evidence, if it records their recollection and their memory was significantly better at the time. A party may apply to have its own witness declared 'hostile' (not merely unfavourable) where the witness shows no desire to tell the truth; the witness may then be cross-examined by the calling party, including on previous inconsistent statements.

What is cross-examination and what is the rule in Browne v Dunn?

Cross-examination is questioning of a witness by an opposing party, to test/undermine their evidence and elicit favourable matters; leading questions are permitted. The rule in Browne v Dunn (1893) requires that if a party intends to contradict or impeach a witness's evidence, that challenge must be 'put' to the witness in cross-examination so the witness has a fair opportunity to respond; failure to do so may prevent later reliance on the contradicting case.

What is the test for a submission of no case to answer under R v Galbraith?

R v Galbraith [1981]: the judge should stop the case (a) where there is no evidence that the defendant committed the offence; or (b) where the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it (e.g. so weak, vague or inconsistent that no reasonable jury could safely convict). Where the evidence's strength depends on the witnesses' reliability, the matter should normally be left to the jury.

What is the difference between competence and compellability of witnesses?

Competence is whether a person is legally permitted to give evidence; under s.53 YJCEA 1999 all persons are competent unless they cannot understand questions or give intelligible answers. Compellability is whether a competent witness can be lawfully required (by summons/order) to give evidence. Most competent witnesses are compellable, but exceptions exist (e.g. the accused is not competent for the prosecution; a spouse/civil partner is compellable for the defence and only for the prosecution in limited specified offences).

What are special measures and which witnesses are eligible under the YJCEA 1999?

Special measures (e.g. screens, live TV link, evidence in private, removal of wigs/gowns, video-recorded evidence-in-chief, examination through an intermediary, communication aids, and prohibition on the accused personally cross-examining) assist eligible witnesses. Eligible witnesses include: those under 18 (s.16), those with a mental/physical disorder or impairment (s.16), and those whose evidence is likely to be diminished by fear or distress (s.17), with complainants in sexual offences automatically eligible.

What is the respective role of the judge and the jury in a Crown Court trial?

The judge decides questions of law (e.g. admissibility of evidence, legal directions), controls the trial, sums up the law and evidence, and passes sentence. The jury is the sole judge of fact: it determines disputed facts, assesses witness credibility, applies the law as directed by the judge, and returns the verdict of guilty or not guilty. The judge must not usurp the jury's fact-finding role.

What essential directions must a judge give the jury in summing up?

The judge must direct on: the burden and standard of proof (prosecution must make them sure); the legal elements of each offence; the separate consideration of each count and each defendant; how to approach particular evidence (e.g. Turnbull, hearsay, bad character, lies/Lucas, adverse inferences, expert evidence); the route to verdict; and the requirement to reach a verdict (unanimity, and only later, on direction, a qualifying majority).

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

The court must have regard to: (a) the punishment of offenders; (b) the reduction of crime (including 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.

What is the role of the Sentencing Council guidelines and a court's duty in relation to them?

The Sentencing Council issues definitive guidelines. By s.59 Sentencing Act 2020 every court must follow any relevant sentencing guideline unless satisfied it would be contrary to the interests of justice to do so. Offence-specific guidelines use a stepped approach: determine the offence category by assessing culpability and harm, identify the starting point and category range, then adjust for aggravating and mitigating factors.

What credit is given for a guilty plea and how does it vary with timing?

Under the Reduction in Sentence for a Guilty Plea guideline, the maximum reduction is one-third where the plea is indicated at the first stage of proceedings (usually the first hearing). It reduces to a maximum of one-quarter after that, and on a sliding scale down to a maximum of one-tenth at the door of the court or after the trial has begun. Credit reduces the sentence but is given to encourage early pleas, save witnesses and resources.

What are the main types of sentence available for adult offenders?

In ascending order of severity: (1) discharge (absolute or conditional); (2) fine; (3) community order (with requirements e.g. unpaid work, curfew, rehabilitation activity); (4) custodial sentence, which may be suspended (a suspended sentence order) or immediate; plus ancillary orders (compensation, costs, disqualification, restraining orders, etc.). Custody is a last resort and must be the shortest term commensurate with the offence.

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 the offence and associated offences) was so serious that neither a fine nor a community sentence can be justified. Community order threshold (s.204): a community order may be made only where the offence is serious enough to warrant one. These thresholds ensure proportionality.

When can a court impose a suspended sentence order, and what does it involve?

A suspended sentence order may be imposed where the custodial term is between 14 days and 2 years (Crown Court) / up to the magistrates' limit, with an operational period of 6 months to 2 years. The custodial term is not served unless the offender breaches a requirement or commits a further offence during the operational period, in which case the suspended term may be activated.

What is a plea in mitigation and what does it typically address?

A plea in mitigation is the defence advocate's address to the court before sentence, advancing factors to reduce the sentence. It typically addresses: the facts and the offender's role (lower culpability/harm); personal mitigation (e.g. age, ill health, remorse, good character, family/employment circumstances, steps towards rehabilitation); credit for a guilty plea and any assistance to authorities; and a realistic submission on the appropriate type and level of sentence with reference to the guideline.

What is a Newton hearing and when is it held?

A Newton hearing (R v Newton [1982]) is a fact-finding hearing held after a guilty plea where the prosecution and defence disagree on the factual basis for sentence and the difference is material to sentence. The judge hears evidence and determines the disputed facts. The prosecution must prove its version to the criminal standard (so the judge is sure). If the defence version is rejected after a Newton hearing, credit for the guilty plea may be reduced.

What appeal routes are available to a defendant convicted or sentenced in the magistrates' court?

A defendant may appeal to the Crown Court against conviction and/or sentence (as of right - a full rehearing on a guilty plea limited to sentence). Alternatively, either party may appeal by way of case stated to the High Court (Divisional Court) on a point of law or jurisdiction, or seek judicial review. The Crown Court on appeal may confirm, reverse or vary the decision (and may increase sentence up to the magistrates' powers).

What are the routes and tests for appeals from the Crown Court following trial on indictment?

A defendant appeals to the Court of Appeal (Criminal Division) with leave (or a trial judge's certificate). Against conviction the test (Criminal Appeal Act 1968, s.2) is whether the conviction is 'unsafe'. Against sentence, the court may quash and substitute a less severe sentence if the original was wrong in principle or manifestly excessive. A further appeal to the Supreme Court requires the Court of Appeal to certify a point of law of general public importance and leave.