Trial in the Crown Court

Question 1

When are trials necessary?

Answer 1

When the client pleads not guilty - their guilt needs to be determined by the hearing of evidence
(90% of defendants plead guilty in mag court & 60& in crown court)

Question 2

What can crown court trials also be referred to as?

Answer 2

Trials on indictment

Question 3

What type of offences can be tried in the crown court?

Answer 3

Indictable offences - either way or indictable only

Question 4

Does the defendant have the right to elect to be tried on indictment?

Answer 4

Yes

Question 5

Can the magistrates send the case for trial in the crown court if they have considered that their sentencing powers in the event of conviction would be insufficient?

Answer 5

Yes

Question 6

Which is the only court where indictable only offences can be tried?

Answer 6

Crown court

Question 7

What are examples of indictable only offences?

Answer 7

murder, attempted murder, manslaughter, causing GBH with intent & robbery

Question 8

How does a crown court differ from a magistrates?

Answer 8

• cc has to incorporate space for a jury of 12 people
• cc will have more space for public to watch cases & for legal representatives
• cc is larger than magistrates

Question 9

Is the court clerk in the crown court the same as the authorised court officer in the magistrates?

Answer 9

No

Question 10

The crown court clerk….

Answer 10

• not legally qualified & never gives legal advice
• responsible for many of duties relating to: selecting & taking verdicts from the jury & for arranging defendants

Question 11

Who do trials in the crown court take place before?

Answer 11

• a judge and jury
• may just be judge?

Question 12

Which judges sit in the crown court?

Answer 12

• Circuit judges
• Recorders
• High court judges

Question 13

What are circuit judges referred to & what do they wear?

Answer 13

• your honour
• wear a violet and black robe & red tippet (sash) over their left shoulder

Question 14

What are recorders referred to & what do they wear?

Answer 14

• your honour
• barristers/solicitors who sit as part time judges
• wear black robes

Question 15

What are high court judges referred to & what do they wear?

Answer 15

• my lord/lady
• red robes (red judges)
• most serious crown court cases are heard by them

Question 16

What is the role of the judge?

Answer 16

• is the arbiter of the law
• makes rulings about the admissibility of evidence (in absence of the jury)
• directs the jury about matters of law (eg explaining what has to be proved & who by)
• can direct a jury to find a defendant not guilty (eg following a successful submission of no case to answer) but can’t direct a jury to find a defendant guilty

Question 17

What is the role of the jury?

Answer 17

• is the sole decider/arbiter of facts
• decides whether the defendant is guilty
• must accept & apply the judge’s directions about the law
• must reach its decision only based on the evidence it hears in court
• will determine whether, and to what extent, the evidence is to be believed
• will decide whether to draw inferences from the evidence or from a defendant silence

Question 18

Why are crown court cases actively managed in the lead up to trial?

Answer 18

so the trial runs as smooth as possible

Question 19

In practice, when do many legal arguments take place?

Answer 19

• on the first day (or first few days) of trial
• can be heard before or after the jury are sworn

Question 20

Where a voir dire is required, will this take place in the absence of the jury?

Answer 20

yes - since it’s a procedure for the judge to resolve a factual dispute which is relevant to a legal argument

Question 21

In practice, when a legal representative says to the judge that ‘a matter of law’ has arisen, what will the judge take this as a cue to ask?

Answer 21

Will take this as the cue to ask the jury to briefly retire whilst the legal argument is dealt with

Question 22

What are common legal arguments dealt with prior to the commencement of a jury trial in the crown court?

Answer 22

• applications relating to bad character
• hearsay applications
• applications to exclude evidence under s76/78 PACE
• abuse of process applications

Question 23

How many jurors are required to start a crown court trial?

Answer 23

12

Question 24

How are the 12 jurors selected?

Answer 24

A jury panel of around 16 go into court from which the 12 will be chosen at random
- as each juror is called form the panel they will take their place in the jury box

Question 25

What happens when the jury box is full of 12 people?

Answer 25

The defendant is told by the court clerk that they have the right to object to any juror (before each juror takes the jury oath/affirmation)
- each jury member is then sworn

Question 26

What are the judge’s preliminary instructions to the jury?

Answer 26

• judge will tell jury that the evidence upon which they must decide the case is the evidence that will be presented to them in court
• they must not discuss this with anyone else who may have a view but will not have heard the evidence
• judge will explain that matters of law are for the judge alone, so if any legal applications are made during the trial, the jury will be asked to leave court while they’re dealt with

Question 27

What is the prosecution opening speech focused on in a crown court?

Answer 27

• focused on the facts and issues in the case
• what the case is about
• what the areas of dispute are
• why the prosecution says the defendant is guilty of the offence they’re charged with
• prosecutor will tell jury what counts the defendant faces

Question 28

Should the prosecutor avoid the use of overly emotive langauge?

Answer 28

Yes

Question 29

To help the jury to understand the case, can the judge invite the defence to confirm/clarify what the issues in the case are (what precisely is in dispute)?

Answer 29

Yes

Question 30

In which form will the witnesses the defence wishes to question be included in?

Answer 30

the plea & trial preparation hearing form

Question 31

Why would a defence want to question a prosecution witness?

Answer 31

if there’s some disagreement with the contents of that witness’s statement

Question 32

Prosecution evidence…

Answer 32

• the prosecution will start by calling all the prosecution witness’s that the defence asked to be called
• the witness is then cross examined by the defendants legal representative

Question 33

Can the prosecution read the statements of prosecution witnesses?

Answer 33

yes - where the defence has no dispute with the content of a prosecution witness’ statement no purpose would be served in calling the witness to give live evidence & instead, where the defence agree, the prosecution can read the statements of prosecution witnesses

Question 34

What will the judge explain to the jury before a prosecutor reads a witness statement to the jury?

Answer 34

That they can receive evidence in various ways and that this is agreed evidence which is why it’s being read to them.

Question 36

At the end of the prosecution evidence, on the defendant’s application or on its own initiative, the judge may direct the jury to acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but must not do so unless…

Answer 36

… the prosecutor has had an opportunity to make representations
(aka submission of no case to answer - ‘half time’ submission)

Question 37

Which test will the submission be made in accordance with?

Answer 37

The test laid down by Lord Lane CJ in R v Galbraith 1981

Question 38

After the prosecution has closed its case, the judge will ask the defendant’s legal representative in the presence of the jury if the defendant is going to give evidence - what happens if the answer is yes?

Answer 38

The case will proceed.

Question 39

What will the judge ask if the defendant’s legal rep isn’t going to give evidence?

Answer 39

‘Have you advised your client that the stage has now been reached at which the defendant may give evidence and, if the defendant chooses not to do so or, having been sworn, without good cause refuses to answer any question, the jury may draw such inferences as appear proper from the defendant’s failure to do so?’

Question 40

If the legal rep says the defendant has been so advised, the case can proceed…if the defendant hasn’t been so advised…

Answer 40

… the case will be adjourned briefly for the advice to be given.

Question 41

Is there an obligation on the defendant to give evidence?

Answer 41

No, but failure to do so can result in adverse inferences being drawn pursuant to s35 Criminal Justice & Public Order Act.

Question 42

Who takes the final decision on whether or not to give evidence?

Answer 42

The defendant - but the defence advocate should advise the defendant and, should the defendant decide not to give evidence, it should be recorded in writing that the defendant has received advice and has decided freely not to testify.

Question 43

When will the defence start?

Answer 43

When the prosecution case has ended, or following a rejected submission of no case to answer.

Question 44

The defence has the right to make an opening speech but only if ….

Answer 44

one or more defence witnesses, other than the defendant in person, will be called to give factual (as opposed to merely character) evidence
(even though defence has this right - it’s rarely used)

Question 45

If the defendant is represented and the defendant chooses to give evidence, the defence advocate will call the defendant and take the defendant through…

Answer 45

evidence in chief
(any other defence witnesses will be examined in chief, cross-examined and re-examined in the same order as the defendant)

Question 46

When the defence case is closed, is it common for the jury to be sent out in order to allow the judge & prosecution & defence advocates an opportunity to consider those matters of law which should be raised during the judge’s summing up?

Answer 46

Yes.

Question 47

What’s the benefit of sending the jury out and having these discussions?

Answer 47

• allows submissions to be made on all the legal matters that have arisen in the course of the trial and which will form part of the judge’s directions on law to the jury
• it’s a convenient way of ensuring, so far as possible, that any problems are ironed out prior to speeches and the summing up - that an appeal is less likely in the event of a conviction

Question 48

Whose closing speech is always first?

Answer 48

The prosecution - the defence is always entitled to make a closing speech which will follow that of the prosecution

Question 49

After closing speeches have been delivered by the prosecution & defence, who will sum the case up to the jury?

Answer 49

The judge

Question 50

What two parts does the summing up fall into?

Answer 50

1) the law 2) the facts
- the judge will deal with all necessary legal directions and then move on to sum up the prosecution and defence cases

Question 51

The judge will direct the jury that they have two different functions - what are they?

Answer 51

• the judge is the arbiter of the law; the judge will give the jury directions on the law which they must accept
• the jury are the arbiter of the facts; they must reach their own conclusions on the evidence

Question 52

In summing up the case to a jury, the judge will deal with…

Answer 52

• burden & standard of proof
• the ingredients of the offence and any defences
• a written route to verdict
• other legal directions relevant to the case
• electing a foreman
• unanimity
• separate considerations of counts and defendants if needed

Question 53

What should the judge provide to assist the jury to focus on the issues during retirement?

Answer 53

• a reminder of the issues
• a summary of the nature of the evidence relating to each issue
• a balanced account of the points raised by the parties
• any outstanding directions

(it’s not necessary for the judge to recount all relevant evidence or to rehearse all of the significant points raised by the parties)

Question 54

Who will the judge tell to appoint a foreman to deliver the jury’s verdict in due course?

Answer 54

The jury

Question 55

Just before the jury bailiffs are sworn and the jury retire to consider their verdict, what will the jury be told?

Answer 55

That they may have heard of majority verdicts, but the only verdict the judge can accept is a unanimous verdict

(the judge will say that if the time should come when a majority verdict can be accepted from them, the judge will call the jury back into court and give them a further direction)

Question 56

Who are the jury baillifs?

Answer 56

Court ushers who become jury bailiffs once they take the jury bailiff’s oath/affirmation

Question 57

Where will the jury go to deliberate on their verdict?

Answer 57

Their retirement room.

Question 58

What do the jury bailiffs swear/affirm?

Answer 58

to keep the jury ‘in some private and convenient place’ and not to allow anyone to speak to them or to speak to them themselves without the leave of the court other than to ask them if they have reached a verdict.

Question 59

How are the jury entitled to ask questions of the judge?

Answer 59

By giving a note to the jury bailiff who will pass it to the judge - the judge may give further directions during retirement

Question 60

Does the Juries Act (JA) 1974 permit a majority verdict to be given by a jury after they have deliberated for at least two hours?

Answer 60

Yes - although in practice the min period is 2 hours 10 minutes as required in the Criminal Practice Direction VI Trial 26Q Majority Verdict
(this is to take account of any time not spent deliberating, such as getting to the jury room and electing a foreman)

Question 61

A majority verdict shouldn’t be accepted unless it appears to the court that …

Answer 61

… the jury have had such period of time for deliberation as the court thinks reasonable having regard to the nature and complexity of the case

Question 62

Once the jury has reached a verdict, who will they inform?

Answer 62

The jury bailiff - then, the court will reassemble and the foreman will be asked to stand

Question 63

If the jury haven’t received a majority direction, what will the court clerk ask the foreman?

Answer 63

If the jury have reached a verdict on which they are all agreed. If yes, the clerk will ask what’s your verdict. They will reply ‘guilty’ or ‘not guilty’

Question 64

Can the jury convict of a lesser offence which is an alternative to a count on the indictment?

Answer 64

Yes, in certain circumstances

Question 65

Example…

Answer 65

An offence of inflicting GBH contrary to s20 OAPA is included in (and therefore a direct alternative to) the more serious offence of causing GBH with intent, contrary to s18 OAPA
- in essence s20 is the same as s18 without the element of intent, so the lesser offence is included in the greater offence

Question 66

Is it common practice for the judge, whether a defendant is acquitted or convicted, to thank the jury for carrying out their public duty?

Answer 66

Yes

Question 67

A defendant who’s found guilty will either be sentenced immediately, or if reports are required to assist with sentencing, such as pre-sentence report or a psychiatric report, the case will be adjourned for sentence to a later date

Question 68

Will a defendant who’s acquitted be entitled to be discharged?

Answer 68

Yes - the defendant will be free to leave so long as no further matters facing the defendant are before the court