To come to effect on 31 January 2021 Standards for solicitor higher court advocates in criminal proceedings Evidence Unit No. Assessment outcome: what candidates Assessment criteria: what successful Indicative syllabus content with higher rights will be able to do: candidates will have shown they can do General note: These evidence standards cover criminal advocacy generically. They apply to all criminal proceedings but do not extend to specialist areas of law, for instance family courts. Advocates should ensure they are familiar with the particular rules of evidence, practice and procedure for the courts in which they practise. Advocates must be able to apply the rules of evidence to a set of facts, determine what evidence is relevant and understand its admissibility in the context of case and cost management. 1. Apply the burden and standard of proof to the 1 a. Apply the burden of proof in criminal • The burden of proof. factual analysis of a dispute. proceedings including the incidence of • The incidence of the reverse burden. the reverse burden. • The evidential and legal burden. 1 b. Distinguish the evidential burdens from • The standard of proof. the legal burdens of proof. • Admissions of fact. 1 c. Apply the standard of proof correctly in • Presumptions of fact and adverse criminal proceedings. inferences. 1 No. Assessment outcome: what candidates Assessment criteria: what successful Indicative syllabus content with higher rights will be able to do: candidates will have shown they can do 2. Apply the rules of disclosure of documents in 2 a. Apply the rules governing disclosure. • CPR Part 8 and 15 and especially the criminal proceedings. 2 b. Recognise and explain the different provisions governing: ways of claiming (and waiving) privilege. o The procedure for disclosure 2 c. Apply the rules governing inadvertent o The continuing duty of disclosure. disclosure 2 d. Apply the rules governing third party o PII (Public Interest Immunity) disclosure. o Specific disclosure. • Documents which are privileged and the grounds for claiming privilege. • Part 8 Compliance. • Waiver of privilege. • Third party disclosure. • The SRA Code of Conduct for Solicitors, RELs and RFLs and inadvertent disclosure. • Electronic disclosure and disclosure of management documents. 3. Distinguish between the different categories 3 a. Identify what evidence is and is not • The difference between witnesses of fact of evidence in criminal proceedings. admissible and for what purpose. and expert witnesses. 3 b. Recognise hearsay evidence and • CPR 20 hearsay evidence. explain how it can be adduced in • Bad character. criminal proceedings. • Expert. 3 c. Demonstrate an understanding of how • In the Criminal Justice Act 2003 the the court evaluates hearsay evidence. provisions dealing with: 3 d. Recognise bad character and explain o The definition of hearsay how it can be adduced. evidence. 3 e. Demonstrate an understanding of expert o Previous statements. evidence. o Hearsay notices. • Criminal Justice Act 2003, chapter 2, sections 114 to 126. • Criminal Justice Act 2003, chapter 1, sections 98 to 112. • Definition of expert evidence, CPR Part 19, compliance and Part 21, bad character. 2 No. Assessment outcome: what candidates Assessment criteria: what successful Indicative syllabus content with higher rights will be able to do: candidates will have shown they can do 4. Adduce admissible evidence from witnesses 4 a. Differentiate between factual and opinion • The competence and compellability of of fact. evidence. witnesses. 4 b. Prepare and evaluate the advocate’s • The use of witness summonses. own witness statements. • The formal requirements for the content 4 c. Analyse and evaluate the opponent’s and service of witness statements. witness statements. • The rules governing evidence in chief, cross examination and re-examination and the role of each. • Special measures under the Youth Justice and Criminal Evidence Act 1999 Section 16 to 28. 5. Adduce admissible expert evidence. 5 a. Apply the rules governing expert • The role of expert evidence in criminal witnesses, the preparation of their procedure. evidence and their duty to the court. • CPR 19: the form and content of an expert 5 b. Obtain and submit expert evidence in the report. proper form. • Joint experts and meetings of experts. 5 c. Analyse and evaluate the opponent’s • Opinion evidence given by witnesses of expert evidence. fact. 6. Utilise other categories of evidence. 6 a. Make appropriate use of ‘real’ evidence • The definition of ‘real’ evidence. and exhibits. • The relevance, importance and use of 6 b. Adduce other forms of evidence. photographs, models, visual aids, and site 6 c. Demonstrate an understanding and use visits. of exclusionary discretions. • Provisions dealing with public records, works of reference, business and public authority records. • Section 78 PACE 1984 exclusionary discretions. • Section 76 PACE Confessions. • Section 41 Youth Justice and criminal evidence act 1999 – cross examination of sexual history. 3 Standards for solicitor higher court advocates in criminal proceedings Advocacy Unit No. Assessment outcome: what advocates Assessment criteria: what successful Indicative syllabus content with higher rights will be able to do candidates will have shown they can do Introduction: Advocacy in the higher courts Introduction: As with any examination or Introduction: The syllabus will, as a matter requires demanding standards of skill and assessment, it is not anticipated that every of course, be adapted to include any knowledge. To meet those standards a candidate will be tested on every criterion. A significant future changes in the law, solicitor must demonstrate that he is flexible assessment will test a representative procedure or practice. competent to undertake both trial and selection of knowledge and skills. interim advocacy at a level commensurate However, a candidate will fail the with the reasonable expectations of the assessment if he commits an egregious client, the judge and other court users. error meaning an error which, had it been replicated in practice would have justified disciplinary or regulatory proceedings or a wasted costs order or would inevitably have caused serious and irreparable harm to their client’s case. By way of example only, a candidate may commit an egregious error if he attempts to mislead the court by inventing helpful, or suppressing unhelpful, evidence, if he significantly misrepresents the law, if their advocacy, taken as a whole, demonstrably harms their client’s case or if he is grossly discourteous to the court or a witness. 4 Knowledge: to be assessed primarily in a written assessment Successful candidates will be able to: The successful candidate can: The syllabus will include: 1. Advise on plea. 1 a. Advise client on pleading guilty or not • Credit for guilty plea. guilty. • Understanding of attorney general guidelines regarding guilty pleas. 1 b. Demonstrate an awareness of out of • Basis of plea/Newton hearings. court disposal. • Alternative counts on Indictment. • Indication of sentence. • Caution, bindover. 2. Advise on essential preliminaries for trial in 2 a. Demonstrate knowledge and • PTPH form completion. the higher courts. importance of preparation for trial and • Formulation of appropriate directions. case management. 2 b. Advise on and comply with PTPH • Sanctions for non-compliance. directions. • Compliance with PTPH directions and practice directions. 2 c. Demonstrate an understanding of • Joinder/severance. preliminary issues. • Abuse of process/dismissal. 5 3. Advise on and conduct the interim and 3 a. Demonstrate a good working • The Criminal Procedure Rules and preparatory stages of criminal litigation in knowledge of the Criminal Procedure Practice Directions and specifically those the higher courts. Rules generally and a detailed dealing with: knowledge of the Rules and Practice o Time limits and service of Directions as specified in the syllabus. documents. o Disclosure and privilege. o Preparation for trial and trial procedures. • Part 15, criminal procedure rules. • Part 6, reporting restrictions. • Part 9, Allocation and sending. • Part 17, witness summonses. • Part 14, Bail and custody time limits. • Part 18, special measures. 3 b. Revise, correct and improve a defective • The function and importance of a defence or incomplete draft of a defence statement, indictment, hearsay/bad statement, indictment, hearsay/bad character notice. character notice: alternatively draft the • The form and content of a witness entire document. statement. • The use of precedents and conventional 3 c. Understand an advocate’s wording. responsibilities with regard to a • Amending indictments. defective indictment and rules of amendment. 3 d. Demonstrate an understanding of how • The rules governing PTPHs, including to prepare for and/or conduct an telephone hearings and video hearings. effective PTPH process. • Case summaries. 3 e. Advise on case management directions • Time limits. and the sanctions and costs • Sanctions, and the consequences of non- consequences of non-compliance. compliance, including orders for costs. 6 Skills: to be assessed primarily in a practical assessment Successful candidates will be able to: The successful candidate can: The syllabus will include: 4. Conduct an effective examination in chief 4 a. Conduct an effective examination in • The rules governing examination in chief. (and re-examination) in the higher courts. chief in compliance with the rules. • Relevance and objectives.