Bar Training Course (BTC) Advocacy Flashcards

24 sample cards from the Advocacy deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. What is the rule on cross-examining an expert witness effectively?

   Challenge the basis of the opinion (facts assumed, methodology, literature, limits of the field, instructions given) rather than arguing the science head-on; expose assumptions, concessions and the boundaries of the expert's expertise.

2. What overriding duty does an expert witness owe, and how can an advocate exploit it?

   An expert's overriding duty is to the court, not the party instructing them. An advocate can use this to secure fair concessions, e.g. that alternative explanations are reasonable or that data is limited.

3. How does a 'submission of no case to answer' work in the Crown Court, and what is the test?

   At the close of the prosecution case the defence may submit there is no case to answer. The test is in R v Galbraith: a judge should stop the case if (a) there is no evidence of an element of the offence, or (b) the prosecution evidence, taken at its highest, is so weak that no properly directed jury could convict.

4. What are the two limbs of the Galbraith test for no case to answer?

   Limb 1: there is no evidence that the crime was committed by the defendant. Limb 2: the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.

5. On a bail application, what is the presumption and where does it come from?

   There is a general presumption in favour of bail under s.4 of the Bail Act 1976 for defendants; bail may be withheld only if a statutory ground/exception applies.

6. Name the principal 'exceptions to the right to bail' an advocate must address for an imprisonable offence.

   Substantial grounds for believing the defendant would: fail to surrender, commit further offences, or interfere with witnesses/obstruct justice. The court considers factors like nature/seriousness of offence, character, antecedents, associations, community ties and bail record.

7. What conditions can a defence advocate offer to overcome bail objections?

   Residence at a fixed address, curfew with tagging, reporting to a police station, surety or security, surrender of passport, exclusion zones, and non-contact conditions with witnesses/co-defendants.

8. Distinguish an 'interim' application from an 'interlocutory' application.

   Both are applications made before final determination. Interim relief is temporary relief pending trial/final order (e.g. an interim injunction); 'interlocutory' broadly describes any application/order made during proceedings that does not finally dispose of the case.

9. What is the American Cyanamid test for granting an interim injunction?

   (1) Is there a serious question to be tried? (2) Would damages be an adequate remedy for either side? (3) Where does the balance of convenience lie? (and (4) preserving the status quo / strength of case as a tiebreaker).

10. What undertaking must an applicant normally give when obtaining an interim injunction?

    A cross-undertaking in damages — a promise to compensate the respondent for loss caused by the injunction if it later turns out it should not have been granted.

11. What is the duty of 'full and frank disclosure' on a without-notice (ex parte) application?

    The applicant must disclose to the court all material facts, including those adverse to their own case and any defences the absent party might raise; breach can lead to discharge of the order.

12. How should an advocate handle a judicial intervention or question from the bench?

    Stop speaking immediately, listen fully, answer the question directly and concisely first, then return to your structure. Never talk over the judge; treat the question as a chance to address the judge's real concern.

13. What is the recommended technique when a judge appears hostile to your argument?

    Acknowledge the concern, address the strongest point against you head-on, concede what is untenable, and reframe to your strongest ground. Stay calm and courteous; do not become argumentative or defensive.

14. What is the purpose and content of a prosecution opening speech in the Crown Court?

    To outline the case to the jury: identify the charges and the issues, summarise the facts the prosecution will prove and the evidence to be called, and explain the law neutrally. It must be fair and not argumentative or emotive.

15. What is the burden and standard of proof the prosecution explains, and how is it now expressed to juries?

    The legal burden is on the prosecution; the standard is proof 'so that the jury is sure' of guilt (the modern formulation of 'beyond reasonable doubt').

16. What is the purpose of a closing speech, and what may it contain that an opening may not?

    To persuade the tribunal to accept your case theory by arguing the evidence actually given. Unlike an opening, a closing speech may comment on, argue from, and draw inferences from the evidence, and address credibility.

17. In a Crown Court trial, what is the conventional order of closing speeches?

    The prosecution closes first, then the defence closes last (the defence has the 'last word' to the jury before the judge's summing-up).

18. What is a 'submission on a point of law' and when is it typically made?

    A legal argument addressed to the judge (often in the jury's absence) on issues such as admissibility of evidence, the elements of an offence, or no case to answer. It is grounded in statute and authority and seeks a ruling rather than persuading on facts.

19. What is the structure of a plea in mitigation?

    Address the seriousness of the offence (culpability and harm), then the offender's personal mitigation (circumstances, remorse, prospects), engage with the relevant sentencing guidelines, and propose a realistic sentence or disposal the court can adopt.

20. Under the Sentencing Council guidelines, what two factors primarily determine the offence category/starting point?

    Culpability (the offender's role and blameworthiness) and harm (the actual or intended harm caused). These set the category, starting point and range before adjusting for aggravating and mitigating factors.

21. What credit is available for a guilty plea, and how does timing affect it?

    Maximum one-third reduction for a plea at the first stage of proceedings, reducing on a sliding scale to one-quarter after that, and a maximum of one-tenth for a plea on the day of trial (or sometimes less).

22. What delivery techniques make oral advocacy persuasive?

    Controlled pace with deliberate pauses; varied tone and emphasis; clear signposting; eye contact with the tribunal; economy of words; and confident, audible projection without rushing.

23. What is 'signposting' in advocacy and why is it effective?

    Telling the tribunal in advance how your submission is structured (e.g. 'I make three points; first…'). It aids comprehension and note-taking, demonstrates organisation, and keeps the judge oriented through the argument.

24. How should authorities be cited and used persuasively in submissions?

    Cite only the best, binding authority; give the correct citation; identify the proposition it supports and the relevant passage; explain why the facts are analogous; and be ready to distinguish adverse authorities the duty of candour requires you to mention.

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