9. Jury trial procedure

Question 1

what is the rule regarding presence of an accused at a jury trial?

Answer 1

jury trial must not proceed in absence unless they have waived their right to attend AND trial will still be fair despite absence.

present means = physically present and also proceedings to be interpreted if needed.

Question 2

how is attendance at trial of an accused secured?

Answer 2

remanding in custody or bail

if fail to attend on day notified as day of trial –> warrant may be issued for arrest

Question 3

when can the presence of an accused be dispensed with?

Answer 3

in exceptional circumstances:
* misbehaviour of accused
* where absence is voluntary
* when accused too ill to attend
* death of accused

Question 4

when does the accuse waive their right to be present and legally repped at trial?

Answer 4

• waived wholly if - knowing where trial is accused deliberately and voluntarily is absent or withdraws instructions
• waived in part if - being present and represented at outset accused during course of trial behaves in a way to obstruct course of proceedings / withdraws instructions.

Question 5

when exercising their discretion to proceed in the absence of a D what must the court have regard to?

Answer 5

fairness to defence prime importance
also have regard to:
* nature and circs of D;s behaviour in absenting / disrupting
* whether adjournment might resolve matter & length of adjournment
* whether D wants to be represented
* extent of disadvantage of D not giving ev
* risk of jury reaching improper conc about absence of D
* public interest
* interest of victims and witnesses that hearing takes place within reasonable time
* effect of delay on witness memory
* where more than 1 D prospects of fair hearing for the present ones.

Question 6

judges role if they proceed in absence of D?

Answer 6

• take reasonable steps to expose weakness fo pros case and
• make points on accused behalf and
• warn jury that absence is not an admission of guilt

Question 6

when is accused classed as misbehaving?

Answer 6

If they are unruly in the dock e.g. shouting, trying to intimidate jurors/witnesses and as a result makes it impracticable for hearing to continue

Question 6

what steps should court take when an accused is misbehaving?

Answer 6

• should warn accused and let them return if they undertake to behave
• if not can remove them and continue in absence
• can hold them in contempt of court
• handcuffs can be used if there is a real risk of violence / escape and there is no alternative

Question 7

when is an accused classed to have voluntarily absented?

Answer 7

• if they escape custody or fail to surrender
• if they render themselves incapable of participation via intoxication

Question 8

what steps are available to court if accused is voluntarily absent?

Answer 8

can continue in their absnece
before exercising discretion as to whether to proceed in absence ask:
* - whether D deliberately absented himself and
* - whether there were reasonable steps taken to secure his attendance.

Question 9

what happens if the accused is absent for reasons beyond their control?

Answer 9

trial MAY NOT continue in their absence UNLESS

• accused consents or
• case can be fully presented w/o unfairness.

Question 10

what happens if accused becomes unwell during trial?

Answer 10

judge must either:
* adjourn until they recover
* or discharge jury

Question 11

what are the exceptions where court can continue in absence of sick D?

Answer 11

• trial with multiple D’s may continue provided ev relates ONLY to cases of co-acccused
• D’s voluntary ingestion of drugs makes his participation impossible

Question 12

what should the court do if they are not satisfied with adequacy of evidence of illness?

Answer 12

• should provide an opportunity for further evidence to be provided and
• MUST have regard to fairness

Question 13

how will court treat an unrepresented accused?

Answer 13

• seek to give as much assistance as appropriate
• if accused dismisses counsel during trial and they remain entitled to legal aid - judge may grant adjournment for accused to be represented

Question 14

how is accused told of right to give / call ev?

Answer 14

at end of pros case accused must be told of right to:
* give evidence
* call witnesses
* stay silent and call no evidence

should be informed of inferences that can be drawn from failure to give ev

Question 15

how will court deal with an abuse of process?

Answer 15

court may order proceedings to be stayed indefinitely. only in exceptional circs can this stay be lifted.

Question 16

what can an unrepresented accused not do at trial?

Answer 16

• cannot cross-exam complainants and child witnesses of certain offences
• prohibited from X witnesses if satisfied that circs merit it and not contrary to ints of justice
• legal reps can be appointed to conduct X on behalf of D but do not have free-ranging remit to conduct trial

Question 17

what are the 2 categories of abuse of process?

Answer 17

1) where it is impossible to give accused fair trial and
* focuses on trial process.
* Assess prejudicial effect of conduct on fairness of trial

2) where it offends courts sense of justice to try the accused in the circs of case
* applicable where accused should not be standing trial at all
* unlawfulness
* bad faith
* excessive misconduct
* oppressive / vexatious

both limbs considered separately

Question 18

emotive language in opening speech ?

Answer 18

should be avoided. Prosecution role is minister of justice.

Question 19

when are submissions as to law in opening speech?

Answer 19

discretionary however presumption that should not address law save for cases of real complication of difficulty and trial judge agrees

if they do deal with law - remind jury matters of law are for judge

Question 20

general rule for which witnesses pros should call / tender?

Answer 20

all witnesses whose statements have been served should be called or read.

counsel does have discretion however.

Question 20

how can written witness statements be admitted in crim proceedings?

Answer 20

under s.9 CJA 1967

Question 21

procedure for introducing s.9 WS?

Answer 21

• party tendering statement to serve copies on all other parties.
• parties then have 5 business days to make an objection via a notice
• if there is an objection the WS will not be read.
• therefore, only admissible if all parties agree.
• even if agreed the court can still make them come to court - often where defence object but fail to serve notice.

Question 21

how can agreed evidence be admitted?

Answer 21

by way of s.10 CJA 1967 - facts from witness statements can be presented as agreed evidence

Question 21

when does s.9 CJA 1967 usually apply?

Answer 21

where pros want to adduce evidence that is:
additional to that served when the case was sent or
by way of notice of additional evidence

Question 22

how are s.10 admissions provided to court?

Answer 22

• they should be in writing
• the jury are given them as long as they do not contain inadmissible material.

Question 23

1.

what is the standard procedure when objecting to prosecution evidence?

Answer 23

1. defence notify of their objection BEFORE pros case opened to jury
2. pros will then make no mention of disputed evidence in opening
3. jury withdraw - admiss considered
4. if dispute raises factual issues - may hold voir dire (both sides can call witnesses)
5. either way both sides make representations
6. judge rules
7. jury return
8. if inadmissible - no mention
9. if admissible - defence can still cross examine on matters raised in voir dire to go to weight of evidence
10. judge has discretion to review determination on admiss at a later stage

Question 24

can prosecution evidence be edited?

Answer 24

yes, where it contains material which is prejudicial and jury should not hear.

Question 25

when can the defence make a submission of no case to answer?

Answer 25

after close of prosecution case

Question 25

how is prosecution evidence edited?

Answer 25

it is edited by agreement.

judge and counsel can confer at trial to ensure editing is done in the right way andd to the right degree.

Question 26

what case sets out the test for no case to answer?

Answer 26

galbraith

Question 27

1.

what is the galbraith test?

Answer 27

2 limbs:
1. no evidence that crime alleged has been committed
2. evidence of tenuous character (vague, weak, inconsistent with other evidence)

Question 28

what does limb 1 of galbraith mean?

Answer 28

there is no evidence to prove essential element of the offence and therefore the offence is not made out.

defence evidence should not be taken into account here.

Question 29

what does limb 2 of galbraith mean?

Answer 29

Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it.

where strength relies on witness reliability and theres a chance that on one view of facts they could properly come to conclusion of guilt - matter left to jury.

consider whether the prosecution’s evidence is too inherently weak or vague for any sensible person to rely on it.

‘self-contradictory and out of reason and all common sense’

Question 30

what are the principles of a proper approach to a submission of no case to answer?

Answer 30

• no evidence of essential element - MUST succeed
• some evidence of essential evidence - left to jury
• evidence so weak no reasonable jury properly directed on it could convict - submission succeed
• question of whether a witness is lying - matter for jury UNLESS inconsistencies so great any reasonable tribunal would be forced to conclusion that it would not be proper for case to proceed on ev of that witness alone

Question 31

when do the defence have a right to make an opening speech?

Answer 31

they have a right to an opening speech if they are calling evidence aside from the accused.

if it is only the accused they are calling - they cannot have an opening speech UNLESS judge invites them to ID what is in issue.

Question 32

what can the defence opening do?

Answer 32

• outline anticipated defence
• criticise evidence already given for pros

Question 33

what can a defence opening not do?

Answer 33

make assertions of fact that are not to be proved by evidence to come.

Question 34

what is the correct order of defence evidence?

Answer 34

• Usually it is the accused called first (s.79 PACE)
• Court can depart from this
• Character witnesses must always be called after the accused unless there are other witnesses as to the facts.

Question 35

1.

are witnesses (other than accused) allowed to be present in the courtroom?

Answer 35

no. A witness waiting to give evidence must not wait inside the courtroom, unless that witness is a party or an expert witness.

Question 36

when can judges call witnesses?

Answer 36

only where it is in interests of justice to do so

Question 36

what process should be followed by counsel when accused decides not to give evidence?

Answer 36

have decision recorded and have accused sign record indicating:
* they decided not to give evidence on own accord and
* has done that bearing in mind advice of counsel

Question 37

what usually happens prior to summing up?

Answer 37

prior to summing up or in first part, court will invite counsel in absence of jury to make representations of how the case should be dealt with (relevant law etc)

Question 38

what duty do counsel have to the court?

Answer 38

• duty to bring all relevant authorities to court attention even if unfavourable to case
• any procedural irregularities must be brought to courts attention during the hearing
• these duties apply equally to pros and defence

Question 39

1.

what limitations are placed on the content of closing speeches?

Answer 39

• dont ask for recommendation of mercy
• dont criticise counsel
• dont allude to alleged facts or other matters which have not been the subject of evidence

Question 40

what are the specific limitations on prosecution closing speech?

Answer 40

• role is as minister of justice
• no emotive / unjustified comments
• no reference to unadduced incriminating material
• no comment on consequences to police
• do not attack/abandon own witness (unless hostile)
• do not comment on failure of accused partner / spouse to give ev

entitled to comment on failure to answer questions in interview / give evidence

Question 41

1.

what are the specific limitations on defence closing speech?

Answer 41

• not confined to putting forward clients events
• can advance something that goes beyond if evidence called supports it
• not refer to consequences of conviction
• can comment on failure of accused to give ev
• can comment on co-accused not giving evidence

Question 42

how is the summing up done?

Answer 42

2 parts: direction on law & summary of evidence

written directions good
both counsel should take full notes of summing up

Question 43

1.

duties of counsel in relation to summing up?

Answer 43

• prosecuting counsel under duty to attend carefully and draw any possible errors to judges attention
• alert judge to any evidence on which jury could find provocation
• defence under duty to request good character direction
• both counsel under duty to raise any error or omission

Question 44

what is the rule regarding written directions?

Answer 44

it is the general rule that judge should provide jury with:
* list of written questions
* written legal directions and
* any other material that will assist them

before giving route to verdict - submit them to counsel for suggestions

Question 45

what precedents should court use when summing up

Answer 45

speciment directions in crown court compendium.

guidelines only - should be adapted to facts of case.

Question 46

direction as to functions of judge and jury?

Answer 46

• at start of summing up must direct jury as to their role.
• jury are judges of facts
• should tell them that if judge gives view on facts (significance, relevance) but jury disagree - it is jury view that matters

Question 47

direction on burden and standard of proof?

Answer 47

judge should direct on prosecution having burden of proof and that they have to discharge it beyond all reasonable doubt.

Question 48

how should a judge deal with separate counts in summing up?

Answer 48

• where multiple counts - direct jury to consider them separately
• judge summarise evidence on a count by count basis
• admissibility of evidence between counts
• where more than one D consider cases separately.

Question 49

direction on ingredients of offence?

Answer 49

have to direct jury as to elements of the offence charged.
isolate the issues that are for the jury’s consideration.
should be built to give the jury an understanding of their task in relation to the particular case.

Question 50

what can jury draw from failure to answer questions in interview / failure to give evidence at trial?

Answer 50

adverse inference under s.34 (silence at interview)/s.35 (silence at trial) CJPOA 1994

judge is required to identify significant facts relied on and to remind the jury of any reason for silence advanced by the accused.

Question 51

what are the limitations to the requirement to give a s.34 (silence at interview) direction?

Answer 51

• no inference if accused has not called/given ev or advanced positive case
• no requirement for accused to be specifically asked about fact they had failed to mention
• Where an accused’s account had changed between interview and trial, this was a matter on which comment could be made without the need for a formal direction under s. 34
• should address any other factors relevant to the jury’s assessment of failure to answer

Question 52

how does a trial judge deal with defences during summing up?

Answer 52

Obligation on trial judge to give legal directions which apply to the defence advanced by accused.

Where an accused is unrepresented, the judge should also remind the jury to bear in mind the difficulties for the accused of representing him or herself at trial

Question 53

how does judge deal with factual evidence in summing up?

Answer 53

• succinct but accurate summary of the issues of fact
• summary of evidence from both sides
• correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts

Question 54

how does judge deal with defence factual evidence in summing up?

Answer 54

• summarise accused evidence
• draw attention to consistencies / inconsistencies between interview and live evidence
• if interviewed but no live evidence - decide how to fairly put interview before jury
• overview of defence case weaved into chronology of pros evidence
• where no ev called for defence - identify central submissions and ensure jury get main arguments advanced by accused

Question 55

what should judges avoid in summing up?

Answer 55

• no extravagant comment or inappropriate sarcasm
• can give own views only if tell jury they are entitled to ignore opinions
• robust comments to detriment of defence case are allowed but should not be so critical to withdraw issue of guilt/NG from jury

Question 56

who is appointed at the end of summing up?

Answer 56

foreman of the jury. The foreman will act as their spokesman and, in due course, announce their verdict.

Question 57

at end of summing up judge should invite jury to…

Answer 57

retire and seek to reach a unanimous decision

Question 58

who is in charge of jury during retirement?

Answer 58

jury bailiff - should not separate from one another to ensure nobody interferes with jury while they are considering their verdict.

Question 59

how can jury ask questions of the judge during retirement?

Answer 59

usually pass a note to jury bailiff who takes it to judge

Question 60

how does judge deal with questions of jury?

Answer 60

if the communication raises something unconnected with the trial can be dealt with without reference to counsel or bringing jury back into court

in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and seek assistance from counsel - then ask jury to return - then deal with Q

Question 61

what is the time requirement for a majority verdict?

Answer 61

majority verdict should not be accepted unless jury has been considering verdict for at least 2hrs 10 mins.

Any period during which the jury return to court to ask a question of or receive a communication from the judge should be included.

Question 62

what are the minimum numbers for acceptable majorities?

Answer 62

11-1
10-2
10-1
9-1
jury of 9 must be unanimous

Question 63

when does majority size have to be stated in court?

Answer 63

if verdict guilty - foreman of the jury must state in open court the number of jurors who respectively agreed to and dissented from the verdict.

Question 64

when can a jury return a guilty verdict on a lesser offence?

Answer 64

One is where the offence charged expressly includes an allegation of another indictable offence;

Second is where it impliedly includes such an allegation.

Question 65

do judges have to give directions on lesser offences?

Answer 65

• not obliged to direct about option even if option available
• but if possibility that the accused is guilty only of a lesser offence has been obviously raised by the evidence, the judge should, in the interests of justice, leave the alternative to the jury.
• do this even if pros & def do not want alternative to be left to jury.

Question 66

what is the general procedure for returning verdicts?

Answer 66

done in open court
accused is present
jury foreman states G or NG (can be partial verdict)

Question 67

what happens if the jury is unable to agree a verdict?

Answer 67

they are discharged from giving a verdict.

Question 68

if the jury are discharged from giving verdict - what does it mean for the accused?

Answer 68

they are not acquited they can be retried.

Question 69

who has to ask for a retrial in event of hung jury?

Answer 69

prosecution - discretionary

Question 70

what is general practice when there is a hung jury?

Answer 70

• have a retrial following failure of first jury to agree
• if second jury also fail to agree - pros usually offer no evidence unless there are exceptional reasons.

Question 71

what facts are relevant in deciding whether it is an abuse of process for the prosecution to ask for a further trial?

Answer 71

• overall period of delay and reasons for it
• results of previous trials
• seriousness of offence
• extended to which case against D has changed since other trials.