Criminal Practice - Trial

Question 1

Stages of Criminal Trial

Answer 1

• Prosecution opening
• Prosecution calls witnesses to give evidence
• Defence cross-examination of prosecution witnesses
• Prosecution may re-examine witnesses [if necessary]
• [If applicable] defence make an application of no case to answer
• [If there is a case to answer] Defence calls witnesses (if defendant is giving evidence they will go first)
• Prosecution cross-examination of defence witnesses
• Defence may re-examine witnesses [if necessary]
• [In Crown Court only] Judge’s summing up
• [In Crown Court only] Jury deliberate
• Verdict delivered
• [If applicable] If guilty, pre-sentence reports may be ordered
• Sentence passed

Question 2

No case to answer

Answer 2

• Defence may make submission at the end of the prosecution calling witnesses
• Prosecution has not presented enough evidence to amount to prima facie case
• If the case is in the Crown Court this is decided by the Judge in absence of jury
• If successful the defendant is acquitted

Question 3

Examination in Chief

Answer 3

• Witness questioned by own side
• Non-leading questions [unless facts being ilicited are uncontested]
• If leading questions asked on disputed matters the other side can object
• May piggyback on a witness’s previous answer (e.g. ‘You say you saw the defendant standing next to the victim. How far away from you were they?]

Question 4

Cross-Examination

Answer 4

• Follows on from examination in chief
• Witness questioned by opposing side
• To cast doubt on evidence in chief
• Leading questions permitted

Question 5

Witness Competence

Answer 5

• Witness allowed to give evidence in court
• Most people will be competent unless they are unable to understand questions put to them as a witness and to give understandable answers

Question 6

Witness Compellability

Answer 6

• Witness can be forced to give evidence
• Competent witnesses are generally compellable

Question 7

Exceptions to the general rule that competent = compellable

Answer 7

Defendant

• Neither competent nor compellable for prosecution
• Competent but not compellable for the defence (although adverse inference may be drawn from the failure to give evidence)

Defendant’s spouse or civil partner

• Competent but not compellable for prosecution (unless it involves a specified offence not covered by SQE)
• Competent and compellable for defence (unless jointly charged)

Co-defendants

• Neither competent nor compellable for prosecution
• Competent but not compellable for defence

If a co-defendant pleads guilty or their case is dropped they become an ordinary witness

For everyone else the ordinary rules apply, namely competence = compellable

Question 8

Special Measures

Answer 8

If witness is under 18, with a disability / disorder likely to affect evidence, fearful, complainant in sexual offences or witnesses to specified gun and knife crimes

Possible special measures:

• Screens
• Video link
• Court personnel removing wigs and gowns
• Giving evidence in private
• Pre-recorded testimony
• Using intermediary to obtain information from witness

Question 9

Modes of Address

Answer 9

Crown Court:

• Circuit Court Judge: Your Honour, His/Her Honour Judge [Surname]

Magistrates’ Court:

• Judge: Sir or Madam
• Bench of lay magistrates: Your Worships
• Individual magistrate: Judge

Question 10

Professional Conduct Obligations

Answer 10

• Duty not to mislead the court
• Perform undertakings within a reasonable amount of time
• Duty not to offer any benefit to witnesses
• Only to make assertions that are properly arguable
• Duty not to place yourself in contempt of court
• Duty not to waste the court’s time
• Duty to draw the court’s attention to relevant cases and statutory provisions

Question 11

Assisting the Court on Points of Law

Answer 11

• Positive duty to assist the court even if this goes against the defendant’s interests
• In the Magistrates’ Court the defence solicitor may be the only legally qualified person in the room (may need to advise on such things as the admissibility of evidence or the interpretation of elements of the offence)

Question 12

Conflicts of Interest

Answer 12

• Solicitor cannot act for two or more defendants unless their accounts are aligned
• If a conflict subsequently arises the solicitor will normally have to withdraw from the case entirely
• Solicitor may continue to act for one of the defendants if the duty of confidentiality to the other defendant would not be compromised
• A solicitor may continue to act for one out of two defendants if a conflict arises but they have not yet taken information from the other defendant