Pupillage (Bar Vocational Stage) Advocacy Skills Syllabus

Give three practical principles of effective cross-examination technique.

Ask short, single-fact leading questions (one fact per question); keep tight control and avoid open-ended 'why' questions that invite explanation; and stop when you have the answer you need (do not ask 'one question too many'). Always know the answer or be content with any answer the witness can give.

What is meant by 'one question too many' in cross-examination?

It is the final, unnecessary question that invites the witness to explain away the favourable concession you have just obtained, often the 'so how do you explain...?' question. The advocate should secure the point and leave the conclusion for closing submissions.

What is re-examination and what is its purpose?

Re-examination is the further questioning of your own witness after cross-examination, conducted by the advocate who called them. Its purpose is to clarify, explain or repair matters that arose during cross-examination, restoring or completing the witness's evidence.

What are the two key limits on re-examination?

It must be confined to matters arising out of cross-examination (no new topics without the court's leave), and leading questions are not permitted (as with examination-in-chief, because it is your own witness).

How does examination of an expert witness differ from that of a witness of fact?

An expert gives opinion evidence (not just fact) within their field of expertise, owing an overriding duty to the court rather than to the party calling them. Examination focuses on qualifications, methodology, assumptions, the basis of the opinion, and areas of agreement/disagreement (often recorded in a joint statement).

To whom does an expert witness owe their overriding duty, and what governs this in civil cases?

The expert's overriding duty is to the court, not to the party paying them. In civil proceedings this is governed by CPR Part 35, which requires the expert to provide independent, objective opinion and to state this duty in the report.

What is a common strategy when cross-examining an expert witness?

Rather than disputing established science, the advocate challenges the assumptions, instructions, data and methodology underpinning the opinion, exposes areas conceded in the joint statement, and tests whether the conclusion is the only reasonable one. Securing concessions on facts/assumptions can undermine the opinion without attacking the expert's expertise.

What is an interim application and how is the advocacy on it structured?

An interim (interlocutory) application is a pre-trial application for an order (e.g. summary judgment, injunction, strike-out, disclosure). The advocate identifies the order sought, the legal test/rule (CPR), and applies the relevant evidence to that test, usually supported by a witness statement, dealing also with costs.

What must an applicant disclose when making a without-notice (ex parte) interim application?

The applicant owes a duty of full and frank disclosure: they must bring to the court's attention all material facts, including those adverse to their own case, because the other side is not present to do so. Breach can lead to the order being discharged.

How should an advocate make a submission of law (legal argument) on a contested point?

State the proposition of law clearly, identify the legal source (statute/authority), take the court to the relevant passage, apply it to the facts, and distinguish or address adverse authority. The argument should move logically from rule to application to conclusion.

What is an advocate's duty when citing authority that is adverse to their case?

An advocate must draw the court's attention to relevant adverse authority (and relevant legislation) of which they are aware, even if it harms their client's position. This duty to the court overrides the duty to the client and is a core professional obligation.

What is a submission of 'no case to answer' in a criminal trial, and what test governs it?

A submission, made at the close of the prosecution case, that there is insufficient evidence for the case to continue. It is governed by R v Galbraith: the judge stops the case if there is no evidence that the defendant committed the crime, or if the prosecution evidence is so tenuous/weak that, taken at its highest, a properly directed jury could not properly convict.

State the two limbs of the Galbraith test for a submission of no case to answer.

Limb 1: there is no evidence that the crime was committed by the defendant. Limb 2: there is some evidence but it is so tenuous, inconsistent or weak that, taken at its highest, no reasonable jury properly directed could safely convict. If either limb is met, the case is stopped.

What is a 'submission of fact' and at what stage is it typically made?

A submission of fact argues, on the evidence, what findings the tribunal of fact should make and what inferences should be drawn. It is typically made in closing speeches/submissions, marshalling the evidence to support the desired factual conclusions.

In a civil trial, what is the equivalent of a 'no case to answer' submission and its key risk?

A defendant may submit there is no case to answer at the close of the claimant's case. The court will usually put the defendant to an election: if they make the submission, they may be required to call no evidence, so losing the submission means losing the case. Hence it is made cautiously.

What is the standard and burden of proof an advocate addresses in criminal versus civil cases?

Criminal: the prosecution must prove guilt 'beyond reasonable doubt' (so the jury is sure). Civil: the claimant must prove the case 'on the balance of probabilities' (more likely than not, i.e. probability $> 0.5$). Advocacy on the facts is framed around the applicable standard.

What does 'on the balance of probabilities' mean expressed as a probability threshold?

It means the fact is more likely than not to be true, i.e. a probability greater than one half: $P(\text{fact}) > \frac{1}{2}$ (more than 50%). It is the civil standard of proof.

What advocacy training is undertaken during pupillage in England and Wales?

Pupils complete an advocacy training course as part of compulsory pupillage training, typically run by their Inn of Court and/or Circuit (the 'advocacy weekends/courses'), using the Hampel method of performance review, alongside compulsory Practice Management, Ethics and Forensic Accounting courses before being granted a full practising certificate.

What is the Hampel method used in advocacy training?

A structured performance-review feedback method in which the trainer: identifies one specific point ('headline'), plays back what the advocate did, explains why it matters, demonstrates the better technique, and has the advocate perform it again. It isolates a single improvable point per review for focused learning.

During pupillage, when may a pupil exercise rights of audience and conduct advocacy in court?

Generally in the second six (the non-practising first six is for shadowing). After satisfactory completion of the first six and on the supervisor's confirmation, the pupil obtains a provisional practising certificate and may accept instructions and appear in court in their own right.

What was QASA and what was its purpose?

The Quality Assurance Scheme for Advocates was a proposed/joint regulatory scheme by the BSB, SRA and CILEx Regulation to assure the competence of criminal advocates through graduated levels of accreditation and judicial evaluation. It was intended to standardise quality across barristers and solicitor advocates in the criminal courts.

What is the current status of QASA?

QASA was abandoned/withdrawn (it never came into force; the regulators announced in 2017 they would not proceed). Advocate competence is now assured through each regulator's own standards and ongoing competence frameworks rather than a single cross-profession accreditation scheme.

How was QASA structured in terms of levels?

It proposed four graduated levels of criminal advocacy (Levels 1 to 4), from the simplest cases (e.g. magistrates' court / straightforward Crown Court matters) up to the most complex and serious (e.g. murder, serious fraud). Advocates would be accredited and assessed (including by judicial evaluation) to practise at each level.

What has replaced QASA-style assurance for barristers' ongoing competence?

The BSB's ongoing competence framework and continuing professional development requirements, together with the BSB Handbook's Core Duties and competence statements. Criminal advocacy competence is monitored through these regulatory mechanisms rather than a graduated accreditation scheme.

What is an advocate's paramount professional duty when it conflicts with the client's interests?

The duty to the court in the administration of justice is paramount and overrides the duty to act in the client's best interests. An advocate must not mislead the court, even to advance the client's case (BSB Handbook Core Duties CD1 over CD2).

Can an advocate put forward a defence they know to be false or call evidence they know to be untrue?

No. An advocate must never knowingly mislead the court. They may test the prosecution case and require it to be proved, but they cannot assert a positive case they know to be false, fabricate evidence, or call a witness to give evidence they know is untrue.

What must an advocate do if their client admits guilt but wishes to plead not guilty?

The advocate may continue to act and put the prosecution to proof (testing its evidence), but must not assert a positive case inconsistent with the confession, suggest someone else committed the offence, or call the defendant to deny guilt on oath. If the client insists on giving false evidence, the advocate must withdraw.

What is the 'cab-rank rule' for barristers?

A barrister in independent practice must accept any instructions in a field in which they profess to practise, regardless of the identity or character of the client, the nature of the case, or their own opinion of it, provided the work is within their competence and the proper fee is offered. It ensures access to representation.

What is an advocate's duty regarding their independence and personal opinion in court?

An advocate must remain independent and must not give their personal opinion (e.g. 'I believe my client') or become a witness to the facts. They present the client's case and the evidence; vouching personally for a client's truthfulness breaches independence and the duty to the court.

What duty does an advocate owe regarding courtesy and conduct towards opponents and witnesses?

Advocates must act with honesty and integrity, treat opponents, witnesses and the court with courtesy and respect, not make abusive or gratuitously offensive cross-examination, and not knowingly make a false or unsupported allegation. Robust advocacy must stay within the bounds of fairness and professional conduct rules.