Pupillage (Bar Vocational Stage) Criminal Litigation, Evidence and Sentencing Syllabus

What is the prosecution's continuing duty of disclosure under s.7A CPIA 1996?

The prosecutor must keep under review the question of disclosure throughout the proceedings and disclose any further material satisfying the undermining/assisting test as soon as is reasonably practicable, particularly in light of the defence statement.

What consequences may follow from faults in defence disclosure under s.11 CPIA 1996?

Where the accused fails to provide a defence statement, provides it late, sets out inconsistent defences, or at trial relies on a defence not mentioned (or calls an alibi witness not disclosed), the court or jury may draw such inferences as appear proper in deciding guilt, and comment may be made by the court or another party.

What is the test and procedure for public interest immunity (PII) in disclosure?

Where disclosable material attracts a real risk of serious prejudice to an important public interest, the prosecution applies to the court to withhold it. The court balances the public interest in non-disclosure against the defendant's right to a fair trial, disclosing only so much as is consistent with fairness. Applications may be on notice, on notice without specifying the material, or ex parte.

What is the Plea and Trial Preparation Hearing (PTPH) and when is it held?

The PTPH is the first hearing in the Crown Court after a case is sent, normally held within about 28 days. It has two parts: the plea (arraignment) where the defendant is asked to plead to each count, and, if not guilty, trial preparation where the judge sets directions, identifies issues, and fixes the trial timetable.

What is the effect of a guilty plea on credit (sentence reduction)?

Under the Sentencing Council guideline, the maximum reduction is one-third where the guilty plea is indicated at the first stage of proceedings (first hearing). This reduces on a sliding scale to a maximum of one-quarter after that, and to a maximum of one-tenth on the first day of trial, reducing further (even to zero) thereafter.

What is a Goodyear indication?

A Goodyear indication (from R v Goodyear) is an advance indication from the judge, on the defendant's request, of the maximum sentence the judge would impose if the defendant were to plead guilty at that stage. Once given it binds the judge (and successors). The defendant is not obliged to plead guilty after receiving it.

Where does the legal (persuasive) burden of proof lie in a criminal trial, and to what standard?

The legal burden of proving the defendant's guilt lies on the prosecution (Woolmington v DPP, the 'golden thread'), and the standard is proof beyond reasonable doubt (so that the tribunal is sure of guilt).

What is the evidential burden, and how does it differ from the legal burden?

The evidential burden is the obligation to adduce sufficient evidence to raise an issue fit for the tribunal's consideration; it is not a burden of proof. For most defences (e.g. self-defence, duress) the defendant bears only the evidential burden, after which the prosecution must disprove the defence to the criminal standard.

When does a legal (reverse) burden fall on the defendant, and to what standard?

Exceptionally, statute may place a legal burden on the defendant (e.g. diminished responsibility under the Homicide Act 1957; insanity under M'Naghten; certain statutory defences). Where the defendant bears a legal burden, the standard is the balance of probabilities (the civil standard).

How is a confession defined under PACE 1984?

Section 82(1) PACE defines a confession as including 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.

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

Where the defence represents that the confession was or may have been obtained (a) by oppression, or (b) in consequence of anything said or done likely to render any confession unreliable, the court must exclude it unless the prosecution proves beyond reasonable doubt that it was NOT so obtained. Section 76(8) defines oppression to include torture, inhuman or degrading treatment, and the use or threat of violence.

How does the s.78 PACE discretion to exclude evidence operate?

Under s.78, the court may refuse to allow prosecution evidence on which it 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 it ought not to be admitted. It is discretionary (unlike the mandatory s.76) and applies to any prosecution evidence, including confessions.

Compare s.76 and s.78 PACE as routes to excluding a confession.

s.76: mandatory exclusion; triggered by oppression or unreliability; prosecution must prove beyond reasonable doubt the confession was not so obtained; focuses on how the confession was obtained. s.78: discretionary exclusion; based on overall fairness of the proceedings; defence effectively persuades the court; broader, covering breaches of PACE Codes (e.g. denial of legal advice, no caution).

What is the general rule on the admissibility of a defendant's bad character under the Criminal Justice Act 2003?

Section 101(1) CJA 2003 makes evidence of the defendant's bad character admissible only if it passes through one of seven 'gateways' (a)–(g): (a) all parties agree, (b) the defendant adduces it, (c) important explanatory evidence, (d) relevant to an important matter in issue between defendant and prosecution, (e) substantial probative value in a matter in issue between co-defendants, (f) to correct a false impression, (g) the defendant has attacked another person's character.

What does gateway (d) of s.101 CJA 2003 cover, and what is the court's power to exclude it?

Gateway (d) admits bad character relevant to an important matter in issue between the defendant and prosecution, including propensity to commit offences of the kind charged and propensity to be untruthful. Under s.101(3) the court must exclude evidence under gateways (d) or (g) if, on application, its admission would have such an adverse effect on fairness that it ought not to be admitted.

How is hearsay evidence defined and what is the rule on its admissibility in criminal proceedings?

Hearsay is a statement not made in oral evidence in the proceedings that is relied on as evidence of a matter stated. Under s.114(1) CJA 2003 it is admissible only if: (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').

Name the main statutory routes to admitting hearsay under the CJA 2003.

(1) s.116 – witness unavailable for one of five reasons (dead; unfit through bodily/mental condition; outside the UK and not reasonably practicable to attend; cannot be found; absent through fear, with leave); (2) s.117 – business and other documents; (3) s.114(1)(d) – interests of justice; (4) preserved common law categories under s.118 (e.g. res gestae, confessions, expert reference works).

What factors must the court consider under s.114(2) CJA 2003 when admitting hearsay in the interests of justice?

Including: the probative value/importance of the statement, what other evidence is available, the circumstances in which it was made, the reliability of the maker and of the evidence of its making, whether oral evidence can be given and if not why, the difficulty of challenging it, and the extent of prejudice to a party from that difficulty.

What are the Turnbull guidelines and when do they apply?

From R v Turnbull, where the prosecution case depends wholly or substantially on the correctness of disputed identification evidence, the judge must warn the jury of the special need for caution before convicting in reliance on it, explain why such evidence can be mistaken (an honest witness can be convincing yet wrong), and direct them to examine the circumstances of the identification (using the ADVOKATE factors).

What does the mnemonic ADVOKATE stand for in assessing identification evidence?

Amount of time the suspect was observed; Distance between witness and suspect; Visibility (lighting/conditions); Obstruction to the view; Known or seen before by the witness; Any reason to remember the suspect; Time elapsed since the observation; Errors or material discrepancies between the description and the actual appearance.

What is the effect of s.34 Criminal Justice and Public Order Act 1994 (silence at interview)?

Where the accused, when questioned under caution or on being charged, failed to mention a fact later relied on in his defence which he could reasonably have been expected to mention, the court or jury may draw such inferences as appear proper. No conviction may be based wholly on such an inference, and no inference may be drawn if the defendant was denied access to legal advice.

Distinguish the inferences available under ss.34, 36 and 37 CJPOA 1994.

s.34: failure to mention, when questioned or charged, a fact later relied on in defence. s.36: failure to account for objects, substances or marks (e.g. on the person, clothing, or footwear) found on arrest. s.37: failure to account for presence at a particular place at or about the time the offence was committed. Sections 36 and 37 require a special warning to be given; all permit proper adverse inferences.

Outline the standard order of a summary trial in the magistrates' court.

(1) Prosecution opening; (2) prosecution evidence (with cross-examination); (3) optional defence submission of no case to answer; (4) defence case/evidence; (5) closing speeches (prosecution may make one; defence has the final word); (6) magistrates/district judge retire and deliver a verdict with reasons; (7) if convicted, sentence (possibly after reports).

Outline the structure of a Crown Court trial on indictment.

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

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

A submission succeeds where (1) there is no evidence that the crime was committed by the defendant, or (2) the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it (e.g. evidence so tenuous, inconsistent or weak). Where the strength depends on a jury's view of reliability, the case should be left to the jury.

What are the five purposes of sentencing for adults under the Sentencing Act 2020?

Section 57 Sentencing Code: (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 custody threshold and the community order threshold in sentencing?

Custody threshold (s.230 Sentencing Code): the court must not pass a custodial sentence unless the offence (or combination of offence and associated offences) was so serious that neither a fine alone nor a community sentence can be justified. Community threshold (s.204): a community order may not be imposed unless the offence was serious enough to warrant one. Custody must be for the shortest term commensurate with seriousness.

How does the court approach seriousness, and what is the role of aggravating and mitigating factors?

Seriousness is assessed by the offender's culpability and the harm caused, intended or foreseeable (s.63 Sentencing Code). The court follows the relevant Sentencing Council guideline to fix a category starting point and range, then adjusts up for aggravating factors (e.g. previous convictions, offence on bail, hostility based on race/religion/sexual orientation/disability) and down for mitigating factors (e.g. remorse, good character), before applying guilty-plea credit.

What are the routes of appeal from the magistrates' court?

(1) Appeal to the Crown Court by the defendant against conviction (if pleaded not guilty) and/or sentence – a full rehearing; (2) appeal by either party to the High Court (Divisional Court) by way of case stated on a point of law or jurisdiction; (3) application for judicial review of the magistrates' decision. The Crown Court on appeal may confirm, reverse or vary, including increasing the sentence up to the magistrates' maximum powers.

How does a defendant appeal from the Crown Court, and what is the test for an unsafe conviction?

With leave of the Court of Appeal (Criminal Division) or a certificate from the trial judge (Criminal Appeal Act 1968). The Court allows an appeal against conviction if it thinks the conviction is unsafe (s.2). On sentence it may quash and substitute any sentence the Crown Court could have passed, provided the appellant is not dealt with more severely overall. Further appeal lies to the Supreme Court on a certified point of law of general public importance with leave.

What are an Attorney General's Reference and a CCRC reference?

An Attorney General's Reference: under s.36 Criminal Justice Act 1988 the Attorney General may refer an unduly lenient sentence (for specified offences) to the Court of Appeal, which may increase it; under s.36 Criminal Justice Act 1972 the AG may refer a point of law after an acquittal for the court's opinion (without affecting the acquittal). A CCRC reference: the Criminal Cases Review Commission may refer a conviction or sentence back to the appellate court where there is a real possibility it would not be upheld.