Unit 14: Trial in the Crown Court

Question 1

Generally, should an accused be present throughout their trial?

Answer 1

Yes.

Question 2

Must the accused be present at the commencement of a trial to plead?

Answer 2

Yes.

Question 3

Can a court proceed in the absence of the accused?

Answer 3

Only if satisfied that the accused has waived their right to attend + trial will still be fair.

Question 4

List the exceptions to requiring D’s presence at trial, enumerated in Lee Kun [1916] / Hayward [2001]

Answer 4

As a result of D’s misbehaviour;

Voluntary absence;

Withdraws instructions from legal representatives;

Too ill to attend;

D’s death.

Question 5

If D is absent from the trial, MUST the judge continue?

Answer 5

No - they have a discretion.

It is rare to proceed.

Question 6

When does a judge warn D about the risk of a trial continuing in their absence?

Answer 6

PTPH

Question 7

What factors must a judge consider when exercising the discretion to continue in D’s absence?

Answer 7

Nature of D’s behaviour in being absent;

Would an adjournment result in the attending, whether by arrest or by volunteering;

Length of adjournment;

WHether D wishes to be legally represented, absent or not (desirable for them to be represented);

Can legal reps present defence?

Disadvantage to D if unable to give account of events;

Risk of jury reaching improper conclusion;

Seriousness of offence (although Lord Bingham opposed this in Jones)

Public interest in trial occurring in reasonable time

Effect of delay on witnesses

Undesirability of separate trials (where multiple accused and not all absconded)

Question 8

If D does not attend, must the judge warn the jury that absence is an admission of guilt?

Answer 8

No - he must warn that absence is NOT an admission of guilt.

Question 9

Can D be in contempt of court for being disruptive during trial?

Answer 9

Yes.

Question 10

When should D be handcuffed in the dock?

Answer 10

Only if there is a real risk of violence, escape or no alternative to visible restraint.

Question 11

What happens if D refuses to be brought into court from the cells?

Answer 11

The judge is entitled to proceed where the right to be present has been unequivocally waived.

Question 12

can sentene be passed in D’s absence?

Answer 12

Yes.

Question 13

What must a judge consider when D absents himself during trial?

Answer 13

Was it deliberate?

Are there reasonable steps to secure his attendance?

Question 14

Can a trial proceed in the absence of an accused who has not been arraigned?

Answer 14

Yes, but it must be satisfied that they have waived their right to be arraigned.

Question 15

If D is absent due to involuntary reasons, may the court continue?

Answer 15

Only if they consent, or the case can be fully presented without unfairness.

Question 16

If D voluntarily ingests drugs and is therefore unable to attend trial, may the judge proceed?

Answer 16

It is likely that this would be treated differently from standard rules of involuntary absence.

Question 17

How much help must the court given an unrepresented defendant?

Answer 17

As much as may seem appropriate.

Question 18

If Dis entitled to public funding and dimisses their counsel during the trial, what may the judge do?

Answer 18

Grant an adjournment to acquire representation, but no requirement to do so.

Question 19

What happens if the court fails to tell D, at the end of P’s case, of his right to give evidence / call witnesses / stay silent?

Answer 19

Any conviction may be quashed on this basis.

Question 20

If D cannot XX a particualr witness, what may be done?

Answer 20

A representative may be appointed to conduct XX.

Question 21

Once an indictment has been preferred, the accused must be tried unless:

Answer 21

The indictment is defective;

A plea in bar applies;

AG enters a ‘nolle prosequi’

Indictment does not disclose an offecne which the court has jurisdiction to try

Abuse of process to continue

Question 22

What is the usual effect of staying proceedings for abuse of process?

Answer 22

The case against the accused is stopped permanently, subject to extremely exceptional circumstances.

Question 23

Lord Dyson in Warren v AG for Jersey [2011] identified two cases where the court has power to stay for abuse of process:

Answer 23

Where impossible to give D a fair trial;

Where it would be unfair for D to be tried / offends the court’s sense of justice to try the accused in the circumstances. (protect integrity of CJS)

Question 24

Cases where D cannot receive a fair trial concern

Answer 24

Trial process

Question 25

Cases where it would be unfair for accused to be tried?

Answer 25

Where D should not be standing at all

Question 26

What is the purpose of the opening speech?

Answer 26

To help the jury understand what the case concerns, not necessarily to present a detailed account of all the prosecution evidence due to be introduced.

Question 27

Are prosecuting counsel advised to use emotive language when addressing the jury?

Answer 27

No - they are not striving over-zealously for a conviction.

Question 28

Should submissions as to law be dealt with in an opening speech?

Answer 28

Generally, no.

Question 29

Section 9 CJA provides for…

Answer 29

…the admissibility of written statements in criminal proceedings.

Question 30

Is the consent of all parties required to admit s9 statements?

Answer 30

In effect, yes.

Question 31

Section 10 CJA concerns…

Answer 31

…formal admissions / agreed facts.

Question 32

What is the standard procedure for objecting to prosecution evidence? (re admissibility)

Answer 32

Inform P of objection;

Preferably before opening speech;

Jury will leave and judge will determine admissibility;

Voir dire may be necessary to determine how the evidence was obtained.

Each party makes representations to J;

Judge rules on admissibility.

Jury returns to court.

Question 33

How can prejudicial evidence be edited?

Answer 33

Composite statement prepared to replace earlier statements;

Fresh statement made for W to sign, omitting the prejudicial bits;

Copies served to D/court should be bracketed/struck out in the relevant parts, without obscuring what is being deleted.

Question 34

What does Galbraith consider?

Answer 34

The test a trial judge should apply in determining whether there is a case to answer.

Question 35

What is the first limb of the Galbraith test?

Answer 35

Is there any evidence that the crime alleged has been committed by D?

Question 36

What is the second limb of Galbraith?

Answer 36

Assessment of quality/reliability of prosecution evidence.

Is the evidence too inherently weak/vague for any sensible person to rely on it?

Question 37

The question of whether a witness is lying is nearly always for…

Answer 37

…the jury.

Question 38

When does defence counsel have the right to an opening speech for the defence case?

Answer 38

Where D intends to call evidence other than, or in addition to, the evidence of the accused.

Question 39

TRUE or FALSE. D gets an opening speech when they rely on D’s evidence in court.

Answer 39

FALSE. Need to rely on something other than the accused.

Question 40

What should be contained in a defence opening speech?

Answer 40

Outline anticipated defence;

Criticise evidence already given for P.

No assertions of fact that are not to be proved by evidence to come.

Question 41

Is the defence obliged to call evidence?

Answer 41

No.

Question 42

Does the defendant go before other defence witnesses?

Answer 42

Yes - prevents him altering evidence depending on how his witnesses testify. (s79 PACE / CEA s2)

Question 43

If D is not properly advised about the advisability of testifying, what may happen?

Answer 43

CoA may hold the conviction unsafe.

Question 44

Can the judge call witnesses whom neither party has called?

Answer 44

Yes, but only where necessary in the interests of justice.

Question 45

Should discussions of law occur before closing speeches?

Answer 45

Yes.

Question 46

What cannot be mentioned in a closing speech?

Answer 46

Factual assertions that have not been the subject of evidence.

Mercy in their guilty verdict.

Personal criticism of opponent

Question 47

In closing speech, the prosecution must not:

Answer 47

Comment on serious consequences for police officers if not believed;

Attack credit of P’s witness (unless hostile leave)

Comment on failure of spouse/CP to give evidence.

Question 48

Can D put forward hypotheses that go beyond D’s version of events in closing?

Answer 48

Yes, provided that evidence has been called which supports such hypotheses.

Question 49

Can D refer to sentencing consequences in closing?

Answer 49

No, should not.

Question 50

Can D comment on D’s failure to give evidence in closing?

Answer 50

Yes.

Question 51

Summing up has two parts:

Answer 51

Direction on law;

Summary of evidence.

Question 52

TRUE or FALSE. Courts are advised to sum up at a late hour/just before weekend.

Answer 52

False.

Question 53

What must court do if they identify an error in summing up?

Answer 53

Expressly acknowledge it;

Tell jury to disregard it;

Give correct direction.

Question 54

TRUE or FALSE. Only P counsel has a duty to alert judge to evidence on which jury could find provocation.

Answer 54

FALSE. Both P and D.

Question 55

TRUE or FALSE. Defecne counsel is only obliged to request a good character direction if the judge fails to give one.

Answer 55

FALSE. If the accused requests it, D must positively request it.

Question 56

Are written directions the norm?

Answer 56

Yes.

Question 57

If judge and jury disagree as to the relevance of particualr facts, whose view prevails?

Answer 57

Jury.

Question 58

What happens if judge fails to tell the jury the burden and standard of proof in summing up?

Answer 58

Conviction is liable to be quashed.

Question 59

Give two limitations for directions as to adverse inferences re D’s failure to answer questions/give evidence

Answer 59

No inferences if D does not give/call evidence and does not advance a positive case;

If D’s account changes between interview and trial, comment is made without need for a formal direction.

Question 60

If D is unrepresented, must judge tell the jury of the difficulties of representing oneself?

Answer 60

Yes.

Question 61

Is a summary of evidence necessary in all cases, re judge’s summing up?

Answer 61

Yes, almost all cases.

Question 62

TRUE or FALSE. Failure to inform the jury in a direction that they must reach a unanimous verdict will render conviction unsafe.

Answer 62

FALSE.

Question 63

Should the judge indicate the precise period which must elapse before a majority verdict becomes a possibility?

Answer 63

No.

Question 64

Can the jury ask questions of the judge during their retirement?

Answer 64

Yes. Notes must be dated and timed.

Question 65

If a communication between jury and judge is unconnected to the trial, must counsel be referred to? Must jury be brought back to court/

Answer 65

No and no.

Question 66

Can the judge address counsel before he addresses jury questions?

Answer 66

Yes - he is advised to.

Question 67

When can a majorty verdict become acceptable?

Answer 67

When reasonable period has passed, no less than two hours.

Question 68

What are the acceptable minimum majorities?

Answer 68

11-1 or 10-2

10-1 or 9-1 is jurors discharged.

A jury reduced to nine must be unanimous.

Question 69

When must the foreman state in open court the number of jurors who agreed to the verdict?

Answer 69

When it is a guilty verdict.

Question 70

Can a jury find D guilty of an alternative, lesser offence?

Answer 70

Yes.

Question 71

What happens if jury unable to agree on a verdict?

Answer 71

Discharge.

New jury if Prosecution wants.

If they cannot agre either, prosecution will usually not seek a third trial.