Trial Procedure in the Magistrates' Court and Crown Court

Question 1

Explain the normal order of events in a trial in the Maigstrates’ Court.

Answer 1

1) Opening speech by prosecution;

2) Prosecution witnesses will be called to give evidence. Each witness examined by by prosecuting solicitor and then cross examined. Prosecution solicitor may then choose to reexamine the witness;

3) Possible submission of no case to answer if appropriate;

4) Defence witnesses then called. Examined by defence then cross examined by prosecution. D’s solicitor can then rexamine a witness if they feel appropriate;
5) prosecution closing speech;

6) Closing speech by defence;

7) Magistrates’ consider verdict;

8) Magistrates’ deliver verdict;

9) If D is found guilty, sentence will either happen immediately or adjourn sentence until later date following a pre-enticing report. If acquitted, D will be free to go.

Question 2

What is contained in the prosecution opening speech?

Answer 2

• Facts are explained. Scene is set. Does not really contain any evidence.
• They will also tell magistrates’ of the relevant substantive law and will tell them what the prosecution will need to prove in order to secure a conviction.
• They remind then Magistrates’ of the burden of proof (ie beyond reasonable doubt);
• They outline the prosecution case and the witnesses they intend to call;
• They will refer magistrates to any points iff law they expect will arise during trial (eg Turnbull guidelines or s76 if there is a disputed evidence confession).

Question 3

Explain how the prosecution will present their evidence in the Magistrates’ court.

Answer 3

• After closing speech they will call their first witness (usually the complainant eg the victim of an assault);
• Unless witness is under 14, witness will give an oath or affirmation to tell the truth.
• After first witness, other witnesses will be called (eg experts or witnesses to the crime).
• Any witnesses not in attendance, but have had it agreed their statements can be adduced will be read out to the court.
• transcript of any relevant police interviews is then read out (unless defence objects in which case an audio recording of the interview will be played).

Question 4

What happens where there are arguments as to points of law (for example where provsuection during the trial seeks to adduce evidence which the defence objects to)?

Answer 4

• A voir dire will be held to determine the admissibility of the evidence.
• This may involve further witnesses being called.
• This may happen if, for example, prosecution tries to adduce a confession which the defence objects to under PACE (ie it was obtained in circumstances rendering it unreliable/ under oppressive circumstances).
• Both the prosecution an defence will make legal submissions following the void dire and the magistrates’ then decide on the admissibility of the evidence.

Question 5

Explain the procedure for a submission of no case to answer in the Magistrates’ court.

Answer 5

• Prosecution has an evidential burden to present sufficient evidence of D’s wrongdoing.
• If they do not, defence should make a submission of no case to answer (effectively stating the prosecution have not discharged this burden), following the conclusion of the prosecution case.
• This submission asks the magistrates’ to dismiss the case, and will be made by the defence if:

1) Prosecution has failed to put forward evidence to prove an essential element of the offence;
2) Evidence produced by prosecution has been so discredited by the cross examination, or is clearly unreliable that no reasonable tribunal could safely convict on it.

Question 6

Is the defendant obliged to give evidence on their own behalf?

Answer 6

No (in accordance with the criminal evidence act 1898 s1(1)).

Question 7

Explain how the defence case is presented.

Answer 7

• Usually necessary for D to give evidence in the normal course of events (although not compulsory).
• If raising a defence they will have to adduce some evidence of this defence, as they have an evidential burden to do so. Simplest way to discharge this burden is for D to give evidence of the defence.
• D who repeats at trial what they said at interview in police station will likely gain credibility.
• If D fails to give evidence at trial, the court will likely draw adverse inference from such failure to do so (s35 CJPOA 1994), that D either has no explanation or has not explanation that could stand up to cross examination.

Question 8

Explain how the defence will then call witnesses after D has given evidence.

Answer 8

• D will usually give evidence and this will be done first.
• After this the defence will call other witnesses. Other witnesses can only sit in court once they have given their own evidence (so they are not given the advantage of seeing other cross examined).
• Witnesses will give evidence in the same way the prosecution witnesses do (ie they will be examine by the defence and then cross examined by the prosecution).

Question 9

Explain what is contained in the closing speeches.

Answer 9

• Both prosecution and defence have the right to make a closing speech.
• Guidance suggests the prosecution right to a closing speech however should only ve exercised in complex cases.
• The closing speeches don’t really contain evidence.
• The following points are usually considered when a defence solicitor is strutting their closing speech:
  1) Should be kept short and concise.
  2) D’s solicitor should remind the Magistrates’ of the burden (beyond reasonable doubt) and that D is entitled to be acquitted if this threshold is not met.
  3) D does not need to prove they are innocent, but merely that the prosecution haven’t proven their guilt.
  4) D’s solicitor may need to cover some evidential issues in their closing speech (eg if there is disputed identification evidence, D’s solicitor must give a Turnbull warning to the magistrates’).
  50 often a good idea to list all f the weaknesses in the prosecution case and the invite the magistrates’ to conclude the only plausible verdict is to find D not guilty.

Question 10

Explain what happens in the verdict of the trial.

Answer 10

Usually 3 magistrates’ and the decision does not need to be unanimous (its done by majority).

If D is not guilty they are free to go. If found guilty D’s solicitor will make a plea in mitigation.

D has the right to appeal the conviction and /or sentence to the crown court.

Question 11

List the order of events for a trial in the Crown Court.

Answer 11

1) jury sworn in;
2) Protection opening speech.
3) prosecution witnesses are then called;
4) If any disputes over evidence being admitted, visor dire will be held (in the absence of the jury);
5) defence may then make submission of no case to answer if appropriate.
6) Defence will then present their case starting with an opening speech.
7) Defence will then call D to give evidence (if they are giving evidence);
8) Defence ill then call other witnesses.
9) both prosecution and defence then give closing speeches.
10) Jury deliberate and then return to give verdict.
11) Judge will either then sentence immediately or adjourn to obtain pre-sentencing report (if not guilty they are free to go).

Question 11

How does D change their plea from guilty to not guilty?

Answer 11

Rule 25.5 of CrimPR states of D wishes to change plea from guilty to not guilty, they must apply in writing to do so as soon as practicable after becoming aware of the grounds for making the application for the change of plea (eg if they claim they misunderstood the prosecution case).

Rule 24.10 CrimPR sets out a similar proceeder in the Magistrates’

Question 12

Explain the make up of the jury.

Answer 12

Randomly selected panel of 12 member era between ages of 18 and 25.

Question 13

What will the prosecution outline in their opening statement in the Crown Court?

Answer 13

• Outlines legal elements of the offence;
• Outlines the evidence they intend to call;
• Explanation of operation of the burden and standard of proof in a criminal case.
• They may highlight points of law which they intend to rely, to the jury.

Question 14

What happens where there are disputes as to points of law/ arguments as to the admissibility of evidence?

Answer 14

A voir dire will be held.

The jury will be asked to leave in order to be sure they won’t be prejudiced by hearing evidence which is later deemed inadmissible.

Often this may even be dealt with at a hearing prior to the trial.

Question 15

What happens if the submission of no case to answer is accepted by the judge?

Answer 15

The jury will be asked to return and the judge will direct them to return a verdict of not guilty.

Question 16

Following the prosecution case being presented (and a potential no case to answer submission being unsuccessful) is D allowed to change their plea from not guilty to guilty?

Answer 16

Yes - the judge will give them an opportunity for this.

Question 17

Can the jury in the crown court draw an adverse inference from D refusing to give evidence anther trial?

Answer 17

Yes - the judge will direct the jury according (pursuant to s35 CJPOA 1994).

Question 18

Explain the which two directions the judge gives to the jury prior to the jury leaving to deliberate their verdict.

Answer 18

This contains two parts: directions on the law and a summary of the evidence.

After they have directed them on the law and evidence the judge will ask them to appoint a foreman and to reach a unanimous decision.

Question 19

Explain the judges direction to the jury on the law (prior to deliberate of the verdict).

Answer 19

Direction as to the law overs the following areas:

1) reminder of burden and standard of proof;
2) legal requirements of the offence;
3) any other issues/ evidence which have arisen during the trial (eg Turnbull warnings, or drawing adverse inferences).

Question 20

Explain the judge’s direction to the jury as to the evidence (immediately prior to deliberation of the verdict).

Answer 20

In addition to direction on law, the judge will give a final direction to the jury:

1) succinct summary of issues of fact jury has to decide;
2) accurate and concise summary of evidence and arguments raised by both prosecution and defence;
3) correct statement as to the inferences the jury can draw from conclusions about the facts.

Question 21

Does a jury’s decision have to be unanimous?

Answer 21

The decision ideally must be unanimous.

If however after 2hrs and 10 minutes of deliberation unanimity is not reached (ie its not possible) a majority verdict of either 11:1 or 10:2 will be accepted (pursuant to the Juries Act 1974, s17). However if the case is lengthy or complex, the judge is likely to wait much longer than this minimum period before telling the jury they are prepared to accept a majority verdict.

Question 22

How does the discharge of one or more jurors affect the unanimity/ majority requirements of the jury?

Answer 22

If one is discharged (and a majority decision is deemed acceptable by the judge) a majority can be in the form of 10:1. similarly if 2 leave, the majority must be 9:1.

If there are only 9 jurors remaining the decision MUST be unanimous.

Question 23

What happens if the jury take too long to deliberate on a verdict?

Answer 23

If, within a reasonable time, the jury cannot reach a decision, the judge will discharge the jury and likely order a re trial in front of a different jury.

Question 24

when is it appropriate to sit down whilst addressing the court or a judge?

Answer 24

In the following situations:

1) Where representing a juvenile client in youth court;
2) Where D appears via video link from a prison;
3) Where witness appears via video link;
4) Where an advocate has requested to appear over video link;
5) Where making an application to the judge regarding bail, in chambers.

Question 25

Explain how the examination in chief (ie the advocate who is leading the questioning of their own witnesses) should ideally ask their questions.

Answer 25

• They should aim to let the witness tell their story in a similar way to those provided in earlier witness statements.
• They are not allowed to ask leading questions, and therefore should frame the questions in a way which allow the witness to structure their answer entirely on their own.
• They cannot ask for empale ‘ did you see jack steal that camera’ as this would be a leading question.

Question 26

What are the three main purposes of the advocate cross-examining a witness?

Answer 26

• to enable to party conducting cross examination to put their case to the witness;
• to undermine the credibility of the evidence which that witness has just given to the opposing counsel.
• to obtain favourable evidence form the witness which supports your case.

It is therefore always necessary for the advocate conducting the cross examination to put forward their client’s version of events, and to seek to undermine the credibility of what the witness has just said to the examination in chief.

Question 27

What one thing must the defence advocate ask the alleged victim under cross-exmaination, if their client (the defendant) is seeking to rely on a defence?

Answer 27

They must ensure they put to the victim that the defendant acted in self defence, and therefore that the victim attacked D first.

Question 28

Explain whether there are any limits on the re-examination of a witness (ie examining the witness after cross examination by opposing counsel).

Answer 28

It should be limited to those matters which have arisen during the cross examination and only open, non-leading questions are allowed.

Question 29

Is cross examination usually done by asking cloud and leading questions?

Answer 29

Yes. This is to retain more control over the cross examination and the answers which are given.

Question 30

Give two situations where it may be a good idea to re-examine your witness after cross examination.

Answer 30

1) to clarify confusion arising fro there cross examination; or
2) to try and repair damage which has arisen during the cross examination.

Question 31

What does the s53 Youth Justice and Criminal Evidence Act 1999 provide?

Answer 31

It provides a uniform test that all witnesses (in all criminal proceedings) must:

’ at every stage of criminal proceedings, all persons whatever their age must ne competent to give evidence’

Question 32

what does it mean to say a witness is compellable?

Answer 32

All witnesses are compellable, meaning witnesses can be compelled to testify by issuing a witness summons. failure to attend would be contempt of court.

If a witness does not answer questions (ie refuses to answer questions) they will be held in contempt of court.

Question 33

What does s53 deem an incompetent witness to be?

Answer 33

A person not competent to give evidence is a person who appears not to be able to:
1) understand questions put to him as a witness; or
2) give answers to them which can be understood.

Therefore issues as to competence do not relate to credibility or reliability, but merely understanding.

Question 34

Which two groups of people MAY fall within the definition of not competent to give evidence in accordance with s53?

Answer 34

1) Children; and
2) Those with defective intellect.

Question 35

How is it determined whether a child has sufficient competence to give evidence as a witness?

Answer 35

Children may not have the level of understanding required by the test of competence.

The age however is not the determining factor here. it has been determined the only issue is whether the witness is able to give an intelligible testimony. As such young children may be competent if they are deemed to have sufficient intelligence.

It also has to be determined whether the child can give sworn or unsworn evidence. The rule is the witness can only be sworn in if they are over the age of 14.

Question 36

Explain whether people with defective intellect are deemed competent enough to serve as a witness.

Answer 36

They may be able to give unsworn evidence if they satisfy the basic test for competence (ie they can give an intelligible testimony).

where there is an issue and their competence is challenged, the judge will usually have to decide whether they have sufficient capacity to testify.

Question 37

The general rule is that co-accused defendants cannot be compelled to give evidence and testify against one another. What are the exceptions to this (set out by s53 YJCEA 1999)?

Answer 37

1) AG may file a nolle prosequi (formal notice abandoning the prosecution of the co-accused);
2) An order may be made for separate trials, but if this is done co-accused from the first trial can be called t the second, but not vice versa;
3) Accused may be formally acquitted (eg if prosecution offers no evidence); and
4) The accused may plead guilty and may give evidence for crown against co-accused. it is desirable the accused should be sentenced first before giving evidence.

Question 38

List the special measures available.

Answer 38

1) Screens to ensure fitness does not see defendant;
2) Allowing evidence via video link;
3) Clearing people from the court so evidence can be given in private.
4) Judges and barristers removing their wigs and gowns (if it is a crown court case);
5) Allowing examination or cross examination of the witness to be done prior to the trial and a recording of this to be played in court;
allowing communication aids (eg sign language);
6) Allowing an interpreter/ speech therapist;

Question 38

list the types of witnesses which may be ellegbile for special measures when giving evidence.

Answer 38

1) Children under 18;
2) Complaint’s in sexual offences;
3) Those whose evidence is likely to be affected by their fear/ distress at giving evidence in the proceedings;
4) Those who are witnesses in specified gun and knife crimes;
5) Those suffering from mental/ physical disorders, disabilities or impairments likely to affect their evidence.

Victims in sexual assault cases are automatically entitled to the special measures and the judge has discretion in whether they award special measures to witnesses falling in any of the other categories above.

Question 38

Is the spouse of an accused (where the spouse is not a co-accused) a compellable witness?

Answer 38

No - unless:

1) the offence charged involves an assault, injury or threat of injury to spouse or a person who was under 16; or

2) the charge is a sexual offence, or an attempted sexual offence involving a person under 16.

Question 39

Why are special measures important in trying to get witnesses to come to court/ terrify orally where they have requested not to duet fear?

Answer 39

To allow the defence to cross examine them.

Question 40

Explain the provision of s32 of 1999 Act.

Answer 40

Judge must give the jury not to prejudice in any way based on special measures being used.

Question 41

Explain the provision of s33A of the 1999 Act.

Answer 41

D is not eligible for special measures, but can use video link to deliver evidence if their evidence could be comprised by:
1) mental disorder; or
2) impaired intellectual ability/ social functioning

Question 42

Explain the solicitors duty to the court.

Answer 42

Solicitor representing D before court is under duty to day what their client would , if they had the necessary skills and knowledge to do so (ie they must act in their client’s best interests).

They therefore have a duty to put pressure on the prosecution to prove their case (even if D has admitted to them that they are guilty).

However, they also have duty to uphold the rule of law and the proper administration of justice and have an overriding duty not to mislead the court. they cannot say anything they know to be untrue.

Question 43

Can a solicitor tell the court why they are ceasing to act for a client =?

Answer 43

No - as they owe their client a duty of confidentiality.

The best answer is they are ceasing to act for ‘profession reasons’.