Criminal Litigation: Principles, Procedure and Case Examples

Introduction

Criminal litigation covers how the state prosecutes offences and how the defence responds, from investigation through to trial, sentence and appeal. It combines strict procedure with practical skills. The prosecution must prove the case beyond reasonable doubt; the defence protects the client’s rights, challenges the evidence and puts forward any positive case. Fairness, disclosure and effective case management shape each step. This guide sets out the main rules, common procedures and everyday skills you will use in England and Wales, with case law and quick tools you can apply in practice and SQE preparation.

What You'll Learn

• The roles of prosecution and defence, and how the burden and standard of proof work
• The main stages of a criminal case: investigation, charge, first appearance, allocation, PTPH, trial, sentence and appeal
• Disclosure duties under the CPIA 1996 and how to deal with Public Interest Immunity (PII)
• Rules on hearsay, bad character, confessions and identification evidence
• Case management under the Criminal Procedure Rules (CrimPR) and Criminal Practice Directions (CrimPD)
• Bail decisions and custody time limits (CTLs)
• Practical advocacy: submissions, witness handling and mitigation
• Drafting essentials: defence statements, skeleton arguments and pre-trial applications
• A focused legal research workflow using primary and secondary sources
• Key cases to cite and how to use them

Core Concepts

Burden and Standard of Proof

• Presumption of innocence: the prosecution bears the legal burden to prove guilt beyond reasonable doubt (Woolmington v DPP).
• Evidential burdens: the defence may need to point to evidence for certain issues (e.g. self-defence), after which the prosecution must disprove them.
• True reverse burdens exist for specific issues (e.g. insanity) where the defence must prove on the balance of probabilities.
• Adverse inferences from silence may apply (Criminal Justice and Public Order Act 1994, ss. 34–37), but cannot stand in place of a case to answer.
• No case to answer: if the evidence is so weak that a jury properly directed could not convict, the judge should stop the case (R v Galbraith).

The Criminal Process at a Glance

• Investigation (PACE 1984): arrest powers, caution, detention limits, right to legal advice (Code C), interview rules and seizure of items.
• Charging: CPS applies the Full Code Test (evidential and public interest) or, in limited cases, the Threshold Test. Outcome may be charge, out-of-court disposal or no further action.
• First appearance: plea, bail, legal aid, and case management begin in the Magistrates’ Court for all cases.
• Allocation and mode of trial: either-way offences are allocated under s.19 Magistrates’ Courts Act 1980. Defendant may elect jury trial if suitable for the Crown Court.
• PTPH (Crown Court): prosecution case served; case directions set under CrimPR Pt 3; applications timetabled (e.g. hearsay, bad character).
• Trial: order of speeches and evidence; legal rulings on admissibility; directions of law and route to verdict.
• Sentence: credit for early guilty plea; Sentencing Council guidelines; Newton hearings where facts are disputed; ancillary orders (e.g. restraining orders, confiscation under POCA 2002).
• Appeal: case stated or to the Crown Court from the Magistrates’ Court; to the Court of Appeal (Criminal Division) from the Crown Court.

Disclosure and Duties of Fairness

• Prosecution duty (CPIA 1996): disclose material that might reasonably be considered capable of undermining the prosecution case or assisting the defence. Duty is continuing.
• Schedules: MG6C (non-sensitive) and MG6D (sensitive) disclosure schedules must be served; prosecutors must review and certify disclosure.
• Defence statement: required in the Crown Court (and often sensible in the Magistrates’ Court). It must set out the nature of the defence, matters in issue and any alibi details. Late or inadequate statements can limit cross-examination and attract adverse comment.
• Defence applications: s.8 CPIA applications for further disclosure where material is likely to assist or undermine.
• PII: where disclosure would harm the public interest, the prosecution may seek PII rulings (R v H and C). The court balances fairness to the defendant with the public interest.
• Case law trends: R v Ward emphasises the breadth of the prosecution duty and the need to retain material that may assist the defence.

Admissibility: Hearsay, Bad Character, Confessions and Identification

• Hearsay (Criminal Justice Act 2003, ss. 114–118): statutory gateways include unavailability (s.116), business records (s.117), and interests of justice (s.114(1)(d)). Notice must be given. Courts assess reliability and fairness; directions to the jury are essential.
• Bad character (CJA 2003, ss. 98–113): gateways under s.101 include important explanatory evidence, propensity and important matter in issue. The probative value must outweigh prejudice.
• Confessions and unfair evidence: PACE s.76 (oppression/unreliability) and s.78 (general exclusionary discretion). Breaches of the Codes, lack of legal advice, or oppressive interviewing can lead to exclusion.
• Identification evidence: Turnbull guidelines require caution with visual identification. The judge should warn the jury and consider the quality of the identification and supporting evidence.
• Dishonesty: Ivey v Genting set the current approach—assess the defendant’s actual state of mind as to facts, then apply the objective standards of ordinary decent people.

Bail, Custody Time Limits and Mode of Trial

• Bail (Bail Act 1976): right to bail subject to exceptions (risk of fail to surrender, commit further offences, or interfere with witnesses). Conditions and sureties can manage risk. Reasons must be given if bail is refused.
• CTLs: strict statutory time limits apply to defendants in custody. Common limits include 56, 70 and 112 days depending on stage and forum. Extensions require good and sufficient cause and due diligence.
• Allocation/mode of trial: the court assesses seriousness, complexity and sentencing powers. Defendants may elect jury trial for either-way offences suitable for the Crown Court. Consider totality and the risk of committal for sentence.

Skills for Research, Drafting and Advocacy

• Research workflow:
  • Define the issue precisely. Identify the relevant statute and procedural rule (e.g. PACE 1984, CPIA 1996, CJA 2003, CrimPR/CrimPD).
  • Use primary sources first; confirm current law using Westlaw/Lexis. Check Practice Directions and recent appellate cases.
  • Consult secondary sources for context (textbooks, practitioner notes, Sentencing Council guidance).
  • Record citations accurately; keep a short “authorities list” for court.
• Drafting essentials:
  • Defence statements: set out the positive case, list matters in issue, include alibi details and expert use.
  • Skeleton arguments: issue, legal test, authorities, application to facts and a clear order sought.
  • Applications: bail, special measures (YJCEA 1999), hearsay/bad character, expert evidence, extensions of CTLs.
  • Use plain English, headings and short sentences. Avoid surplus material and ensure accuracy.
• Advocacy basics:
  • Build a clear case theory and theme. Plan examinations to prove or test each element in dispute.
  • Half-time submissions (Galbraith) where the prosecution evidence is incapable of supporting a conviction.
  • Mitigation: personal mitigation, offence mitigation, steps towards rehabilitation, and guideline analysis.
  • Professional conduct: courtesy, focus on issues, and fair treatment of witnesses. Keep the judge informed on directions and time.

Key Examples or Case Studies

• Woolmington v DPP [1935] AC 462

  • Context: Murder conviction; issue of who bears the burden.
  • What it shows: The “golden thread” that the prosecution must prove guilt; exceptions are limited.
  • Use: Cite when arguing against reverse burdens and to remind the court about the standard of proof.

• R v Galbraith [1981] 1 WLR 1039

  • Context: Submission of no case to answer in the Crown Court.
  • What it shows: If the evidence is so tenuous or inconsistent that no reasonable jury could convict, the case should be withdrawn.
  • Use: Frame half-time submissions; assess sufficiency of prosecution evidence.

• R v Turnbull [1977] QB 224

  • Context: Visual identification evidence.
  • What it shows: The court must warn of the special risk of mistaken identification and evaluate quality and corroboration.
  • Use: Challenge weak ID evidence; request tailored jury directions.

• R v H and C [2004] UKHL 3

  • Context: Disclosure and PII.
  • What it shows: Courts can order disclosure, consider PII schedules and hold private hearings; fairness is the touchstone.
  • Use: Structure applications for further disclosure; handle sensitive material properly.

• Ivey v Genting Casinos [2017] UKSC 67

  • Context: Dishonesty test clarified.
  • What it shows: The objective standard applies once the defendant’s actual belief as to facts is established.
  • Use: Apply the current test for dishonesty offences; refine directions and submissions.

• R v Goodyear [2005] EWCA Crim 888

  • Context: Sentence indications.
  • What it shows: Defendants can seek a formal sentence indication from the judge.
  • Use: Advise on plea strategy and potential sentence; record any indication.

Practical Applications

• At the police station

  • Check grounds for arrest and detention; obtain disclosure.
  • Advise on interview: reply options (answer, prepared statement, no comment) and potential adverse inferences.
  • Ensure PACE Code C compliance (legal advice, appropriate adult, interpreter).

• First appearance

  • Confirm correct charge; consider jurisdiction and allocation.
  • Make a focused bail application; propose workable conditions if risk factors arise.
  • Address legal aid and timetable for service of case papers.

• Case management and disclosure

  • Pin down issues early at PTPH; agree admissions to save time.
  • Demand proper MG6 schedules. File a clear defence statement; follow up with targeted s.8 CPIA requests.
  • Keep a disclosure log; revisit after new evidence or witness updates.

• Pre-trial applications

  • Hearsay: identify the gateway, file notices and deal with reliability safeguards.
  • Bad character: pick the correct gateway; balance probative value against prejudice; propose limiting directions.
  • Confessions: challenge under PACE ss.76/78; highlight Code breaches.
  • Special measures: apply under YJCEA 1999 with supporting evidence (e.g. intermediaries, screens).

• Trial conduct

  • Opening: short and issue-focused.
  • Examination-in-chief: build a coherent narrative; avoid leading questions (except for background and non-contentious points).
  • Cross-examination: set objectives by witness; control the pace; use prior statements to confront inconsistencies.
  • Legal submissions: be ready with authorities and proposed directions. Seek a Galbraith ruling if appropriate.
  • Jury directions: request Turnbull or good character directions where relevant; propose a written route to verdict.

• Sentencing and ancillary orders

  • Calculate credit for plea on the correct timeline.
  • Use Sentencing Council guidelines; highlight aggravating/mitigating features and personal mitigation.
  • Consider Newton hearings where facts affecting sentence are disputed.
  • Address compensation, restraining orders, forfeiture, and ancillary financial orders (including POCA).

• Appeals and post-conviction

  • Identify appeal routes and deadlines promptly.
  • Preserve material for appeal: keep a clean note of rulings and directions.
  • Consider sentence appeals on manifest excess or wrong principle.

• Research and writing habits that save time

  • Keep a running authorities list for hearsay, bad character and disclosure.
  • Build templates for defence statements, skeleton arguments, and bail applications.
  • Use neutral citations and pinpoint references; check for updates before hearings.

• SQE exam tip

  • Align your work with SRA performance indicators: clear issue spotting, accurate law, structured application, and concise, professional communication.

Summary Checklist

• Prosecution must prove guilt beyond reasonable doubt; know limited exceptions
• Map the case: investigation, charge, allocation, PTPH, trial, sentence, appeal
• Apply CPIA 1996 disclosure duties; use s.8 applications and manage PII issues
• Prepare and file defence statements on time; keep a disclosure audit trail
• Plan pre-trial applications: hearsay, bad character, confessions, special measures
• Use Turnbull for identification, Galbraith for half-time submissions
• Make targeted bail applications; track custody time limits accurately
• Use Sentencing Council guidelines; calculate plea credit and consider Newton hearings
• Draft skeleton arguments with issues, legal tests, authorities and a clear order sought
• Keep research current with CrimPR/CrimPD, PACE, CJA 2003 and recent appellate cases

Quick Reference