Admissibility of evidence—overview

There are two kinds of ‘burden’ in criminal proceedings: the legal burden the evidential burden The legal burden A party carries the legal (also termed ‘the persuasive’) burden when that party bears the responsibility to establish a fact or issue in the case to the requisite standard of proof. Ordinarily, this burden rests with the prosecution (subject to limited exceptions mentioned below). Thus, where a defendant enters a not guilty plea, the prosecution must prove every element of the offence—for example, the defendant’s identity, the character of the act, any required knowledge or intent, and the refutation of any defences raised. That duty also includes proving negative elements of an offence, such as the absence of consent in a rape or assault allegation. It is for the jury or the magistrates to decide whether the burden has been satisfied. Whichever decision‑making tribunal undertakes this task, it must be evident that the correct test has been applied. A failure to do so can furnish a ground of appeal against conviction...

Vacating a guilty plea Setting aside a guilty plea is a nuanced yet crucial remedy available in both the magistrates’ courts and the Crown Court. This Practice Note offers direction to applicants wishing to set aside a guilty plea, outlining the procedural steps and substantive bases needed to justify withdrawing it. It further considers circumstances in which an appellate court may invalidate a plea when hearing an appeal against conviction entered on a plea of guilty. The early guilty plea scheme in England and Wales aims to make the system more efficient by promoting earlier admissions in return for a reduction in sentence (see Practice Note: Credit for guilty plea). Yet, the scheme can at times leave defendants feeling under pressure, or insufficiently advised, when deciding how to plead. Consequently, such influences can prompt some to attempt to retract their plea(s) later on. Both the magistrates’ court and the Crown Court exercise a discretion to allow a change from guilty to not guilty at any point before the case is finally disposed of by the court. Nonetheless, the judiciary have repeatedly stressed that allowing such reversals should remain relatively rare. The courts retain the authority, in law and in practice, to...

Under paragraph 2(1) of Schedule 3 to the Crime and Disorder Act 1998 (CDA 1998), a defendant may, after being served with the documents containing the evidence underpinning the charge(s) but before arraignment, request the Crown Court—either orally or in writing—to dismiss the charge(s). The application may relate to any or all of the charges in the case. The process is set out in the Criminal Procedure Rules 2025 (CrimPR 2025), SI 2025/909, r 3.20. How to make an application to dismiss The defendant must apply in writing no later than 20 business days after service of the prosecution evidence and before they are arraigned. An application can be made to extend the time limit. The application must be served on the Crown Court officer and on every other party to the proceedings...

Evidence of a defendant’s good character in criminal proceedings is admissible and may relate to propensity, credibility, or both: propensity — the defendant is less likely to have committed the charged offence credibility — the defendant is more truthful than a person without such character Procedure for giving good character directions As a lack of convictions does not of itself prove good character, where reliance is placed upon it, it is the responsibility of defence counsel and the defendant to ensure the judge is made aware. If there is any uncertainty, it is good practice for the judge to raise the point with counsel. Any proposed good character direction should be provided to counsel, and counsel for both the prosecution and the defence should be given the chance to make submissions (R v Gonzales [2004] EWCA Crim 2117 (not reported by LexisNexis®)). Who is entitled to a good character direction? The law on good character directions was carefully reassessed by the Court of Appeal in R v Hunter, which concluded that good character directions (since the decisions in R v Vye and R v Aziz had been wrongly...