Chapter 5: Trial Flashcards
1
Q
Witnesses: Preliminary issues
A
This section considers four preliminary issues relating to witnesses:
* Competence
* Compellability
* Opinion evidence and experts
* Privilege
2
Q
1.1 Competence
A
When we talk about the competence of a witness, we simply mean whether the witness is permitted to give evidence to the court. In more formal language, a witness is competent if a person ‘may lawfully be called to testify’. Generally speaking, anyone is a competent witness. There are a few exceptions, ie a few instances where a witness, even if willing, is simply not competent to give evidence for one party or another
3
Q
The defendant/accused
A
The defendant is not competent to be a prosecution witness. Where
there are multiple defendants, none of them can be prosecution witnesses for the other. The proceedings must be completed against any one of them so that they are no longer defendants in the case before they can be competent as witnesses for the prosecution. Defendants are, of course, competent to give evidence on their own behalf, and are competent
to give evidence on behalf of a co-defendant
4
Q
Children and persons with a disorder or disability–
A
Age is not the determining factor of
whether a child is competent; the only test is whether the child can (1) understand questions, and (2) can give comprehensible answers. The test is the same for those operating with a disorder or disability.
5
Q
Spouse/civil partner
A
A spouse or civil partner of a defendant is competent to give evidence for any party in the case
6
Q
Deaf or speech impaired witness–
A
These witnesses are competent so long as they understand
the solemnity of taking the oath or affirmation. They can give evidence using interpreters, handwriting, sign language or any combination of these
7
Q
1.2 Compellability
A
Some witnesses cannot be compelled to give evidence. Most can, but some cannot. The primary exceptions, ie those who are not necessarily compellable, are as follows:
8
Q
1.2.1 The defendant
A
The defendant is not competent for the prosecution and so clearly can’t be compelled by the prosecution. The defendant may give evidence on D’s own behalf, but cannot be compelled to do so.
9
Q
1.2.2 Children and persons with a disorder or disability
A
If competent, these witnesses are compellable.
10
Q
1.2.3 Special rules
A
There are also rules for diplomats, sovereigns and bankers, but these are most unlikely to be examined.
11
Q
1.2.4 Spouses/civil partners
A
Spouses and civil partners can be compelled to give evidence for their spouse or civil partner (ie
for the defence) but only for the prosecution if the offence charged against their partner is (PACE
s 80):
(a) Assault on, or injury, or threat of injury to that spouse or partner (ie domestic violence)
(b) Assault on, or injury, or threat of injury, to a child under 16
(c) A sexual offence against someone under the age of 16
(d) Attempts, conspiring, aiding and abetting any of the above
12
Q
1.2.4 Spouses/civil partners
A
The logic is clear. Spouses and civil partners should not normally have to act against the interests of their partners, and this is generally accepted, unless the partner is inflicting domestic violence or abusing children. At that point, the courts can require spouses to attend to give evidence even if they do not want to do so. If they refuse to attend, they can be arrested, and if they refuse to
answer questions they can be held in contempt.
13
Q
1.3 Opinion evidence and experts
A
There is a rule which is simple in expression (but quite hard in practice) which is that witnesses are,
generally speaking, called upon only to be witnesses of fact. Analysis of those facts is argued by advocates, and it is for the jury to ultimately decide on what inferences they draw and what
conclusions they should come to from the factual evidence provided. The courts will receive opinions from witnesses, but only if:
(a) The opinion is given in relation to commonplace occurrences about which the witness’s
perception appears relevant and proper; or
(b) If the witness is an expert.
14
Q
1.3.1 Opinion evidence
A
There are so many different types of opinion that might be given by a witness, that it is not possible to have a list of matters that require (or do not require) an expert. A good example of an admissible perception of a non-expert is an opinion as to drunkenness.
Many people involved in crime or who are witnesses to it have consumed alcohol.
A witness could give factual evidence to indicate that a relevant person’s speech was slurred, pupils were dilated, or was walking unsteadily. In reality, though, witnesses would tend to simply say ‘the man was drunk’. This is, strictly, an opinion, and so would normally not be admissible
15
Q
1.3.1 Opinion evidence
A
However, the law does not restrict such a statement in court on the basis that it is a way of expressing in summary the factual observations that the witness had made, and that the assessment of drunkenness is sufficiently commonplace a task that the witness’s perception would be received by the court. It remains best practice to focus questions in examination on the observable facts rather than only eliciting the opinion.
16
Q
1.3.1 Opinion evidence
A
It remains best practice to focus questions in examination on the observable facts rather than
only eliciting the opinion. The list of other permissible non-expert opinions would be a truly huge list. Many of the items on the list would be under the heading of ‘identification’ as witnesses tend to combine facts (eg ‘the attacker wore a blue cardigan’) with opinion based on observations (eg ‘he
was young and male’).
17
Q
1.3.1 Opinion evidence
A
Similarly, recognition of voice and handwriting are examples of opinions which are acceptable as having been derived from observed facts and represent an inference, the like of which is commonplace and will be received as admissible perceptions.
18
Q
1.3.2 Expert evidence
A
Issues that would require expertise include more technical matters of science, medicine,
psychology etc. Doctors who have tended to a victim’s injuries may be tempted to give an opinion
as to whether the injury presented could have been caused in the way that was described by the
victim.
Occasionally the law specifies what level of expertise would be required before the court would
receive such an opinion. In this case (ie the opinion as to the likely cause of injury) it is clear that a
doctor, and specifically not a nurse, would be the only person with sufficient expertise to give
such evidence. Expertise can be acquired either through a course of study or by practical
experience (or a combination of both). It is for the party seeking to rely on the expert evidence to
establish that the expert has sufficient expertise
19
Q
1.3.2 Expert evidence
A
Witnesses that are deemed as experts are treated slightly differently to other witnesses. They are regarded more as independent consultants than partisan witnesses, and experts are asked to
consider their role as being neutral and objective. Where there are multiple experts in a case, they are encouraged to meet to establish the matters on which they agree and disagree, and to narrow the issues between them and to explain the basis on which any disagreement is founded. Experts should always be clear in defining the boundaries of their expertise and to indicate if the questioning is straying into areas in which their expertise may be less clearly relevant.
20
Q
1.3.2 Expert evidence
A
As a matter of good practice, an advocate should not ask an expert to give an opinion directly on
the ‘final’ issue in the case. So if, for example, the question for the jury is whether the defendant caused death by dangerous driving, one should not ask (without prior leave) the witness ‘Is it your opinion that the defendant caused this death by dangerous driving?’. Opinions as to the component parts of the driving would be better (eg giving an opinion as to the speed of the car by reference to skid marks). The jury would then conclude the final question for itself.
21
Q
1.3.2 Expert evidence
A
The jury is not obliged to accept expert evidence, even if it is not contradicted. In every case where there is an opinion that has not been directly contradicted, the judge has to decide how to sum
the case up to the jury and, if there is other evidence that tends to a conclusion which is not the
conclusion of the expert, the jury would still be empowered to prefer the alternative conclusion. Only in cases where the expert’s opinion and all the other evidence leads inevitably to only one conclusion should the jury be directed to accept the opinion as correct
22
Q
1.4 Privilege
A
We will consider two main forms of privilege:
* Against self-incrimination; and
* Legal professional privilege which can be sub-divided into:
- Litigation privilege; and
- Advice privilege.
23
Q
1.4.1 Against self-incrimination
A
There is a general principle (under the common law) that courts will uphold a witness’s right (and we are talking about witnesses other than the defendant) to refuse to answer questions or disclose documents if to do so would make that person liable to incriminate themselves. It is
important to note that the person cannot claim privilege to protect another person, even a spouse, and cannot be invoked in order to protect against possible liability in a civil court.
24
Q
1.4.1 Against self-incrimination
A
A defendant’s (ie someone ‘charged in criminal proceedings’) right to refuse to answer questions was removed from the common law by the Criminal Evidence Act 1898, and is now governed by the rules on ‘adverse inferences’, dealt with in separate sections.
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1.4.1 Against self-incrimination
If a person claims privilege against self-incrimination to protect information, the person cannot prevent the same information being acquired by other routes. The privilege only extends to that person, and any investigatory body is entitled to consider how else to access the information.
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1.4.2 Legal professional privilege
Legal professional privilege is the privilege that exists when a client communicates with a lawyer.
There are two sub-divisions at play, and are whether
(a) The purpose of the communication with a lawyer is to advance or act in a process of litigation (litigation privilege); or
(b) To obtain advice more generally (advice privilege).
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1.4.2 Legal professional privilege
There are slightly different rules in relation to these two purposes and privileges. Clearly there is a
lot of communication with lawyers which is not effected with litigation in mind. All the direct communication between lawyer and client is privileged, but the distinction comes into play in
relation to third parties. If the third-party communication is generated during, or in contemplation of, litigation, then privilege is likely to attract, but if there is no litigation involved, then documents supplied to a lawyer from a third party for more general advice is usually not protected by privilege.
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1.4.2 Legal professional privilege
The privilege can be waived either explicitly or by conduct, and as a rule a person cannot waive privilege partially. Only the person entitled to claim privilege can waive it. In the case of legal professional privilege, the right to waive privilege is the right of the client rather than the law firm.
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1.5 Summary
This section considered four preliminary issues relating to witnesses:
* The courts will receive opinions from witnesses, but only if:
- The opinion is given in relation to commonplace occurrences about which the witness’s
perception appears relevant and proper; or
- If the witness is an expert.
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1.5 Summary
* Privilege:
- Against self-incrimination- witnesses (other than the D in this context) have rights to refuse to answer questions or disclose documents if to do so would make that person liable to incriminate themselves.
- Legal professional privilege:
◦ All the direct communication between lawyer and client is confidential unless the client chooses to waive this.
◦ Communications with third parties will be privileged in the case of litigation but not general advice
31
Examination of witnesses
2.1 Oaths and affirmations: Overview
As a general rule, all witnesses must either take an oath before giving evidence, or make an. affirmation. There is no difference between the two in the eyes of the law. The only real exception where evidence may be received unsworn is in the case of children and those of ‘unsound mind’.
In these cases, the courts can receive evidence, but it would be wrong to make the witness take the oath. The test for children and those with unsound mind is whether they ’have sufficient appreciation of the solemnity of the occasion and of the particular
responsibility to tell the truth which is involved in taking an oath'.
32
Youth Justice and Criminal Evidence Act, s.55.
The court usher should have to hand a number of oath cards to cover all main religions. The ultimate issue is not whether the words on the card perfectly match the variant of the religion that
the witness might adhere to, but rather to assess if the oath is one that the witness would find ‘binding on one’s conscience’. Following this principle, a Muslim witness was deemed properly
sworn after swearing on the New Testament. Refusal to take an oath or affirmation can be punished as a contempt of court.
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2.2 Examination in chief
There are various issues relating to examination in chief that we will consider:
* Form of questioning
* Memory refreshing
* Hostile witnesses
* Previous consistent statements
- Res gestae
- Suspect’s response to police allegation
- Complaints
- Recent fabrication
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2.2.1 Form of questioning
For examination in chief, the questions should be non-leading. Evidence adduced from a leading question may be considered to be inadmissible or to carry less weight. The big exceptions are that leading may be allowed on issues that are not in dispute, or where the witness has been deemed hostile.
35
2.2.2 Memory refreshing
Statements made out of court are considered to be hearsay (if they seek to prove the truth of their contents etc). There are three ways in which an out of court written witness statement may be
used in court:
(a) The statement may be read out if the contents of the statement are agreed. The hearsay objection is overcome by saying that the jury should regard the evidence read out in the statements as if the witness had come into court and given the evidence from the witness box
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2.2.2 Memory refreshing
(b) The witness can ask to ‘refresh their memory’ from their statement. This is normally uncontroversial, and witnesses are generally free to spend a moment reminding themselves of
their evidence from their statements. There are a few points of best practice, though:
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2.2.2 Memory refreshing
- Try to observe the statute that says that refreshing memory is permissible where the earlie written account provides a ‘significantly better’ recollection than could be achieved without it, Criminal Justice Act, s.139.
- Allow witnesses to read the statements back to themselves and then ensure that the evidence is given apparently from a recovered memory rather than by simply reading out
the statements
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2.2.2 Memory refreshing
(c) In cross-examination on a previous inconsistent statement (see later).
- A witness does not have to read their statement in the witness box where it would be undesirable, for example, a dyslexic witness may wish to withdraw to a quiet room so to do.
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(c) In cross-examination on a previous inconsistent statement (see later).
When a witness refreshes their memory they may be cross examined on the contents of the statement used to refresh their memory without the statement coming into evidence. Where material other than that which the witness used to refresh their memory is raised in questioning, this entitled the other side to apply to put the statement into evidence so the
jury can form their own view about the basis for the cross examination.
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2.2.3 Hostile witnesses
It is occasionally the case that a witness known to have evidence that could assist the prosecution
then indicates they are not going to give that evidence in court. This is most common in domestic violence cases, where a partner reports having been assaulted, but then some time before the trial retracts that statement. This is often under pressure from the offending partner who has been promising to change and regains the partner’s affection.
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2.2.3 Hostile witnesses
If the witness is then called to give evidence and gives an account inconsistent with their original
statement to the point the judge forms the view the witness is not ‘desirous of telling the truth’, the party calling that witness may apply to the judge to treat them as hostile. A party is free to cross
examine a hostile witness and put their previous statement to them as the truth of the matter
42
2.2.3 Hostile witnesses
Any inconsistent statement presented to a witness can be used to prove the truth of its contents notwithstanding that the statement was (or might have been) deemed as inadmissible hearsay
before the witness contradicted it in evidence.
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2.2.4 The use of previous consistent statements
As a general principle of evidence, it is thought that an allegation made by a witness does not become more reliable simply because the witness repeated the allegation on numerous occasions.
It was therefore the general rule that the court hears the witness make the allegation in court, and it is not generally admissible to elicit evidence that the witness made earlier consistent allegations or statements. This has been substantially altered by s.120 of the Criminal Justice Act 2003
44
2.2.4 The use of previous consistent statements
There are some exceptions, ie where the court will hear the evidence of an earlier consistent complaint or statement. Where an exception exists, one needs to consider if the earlier consistent statement can be used to prove the statement itself is true, or only to prove the consistency of the
person who made the earlier statement. We will note what use the consistent statement can be
put to under each section. The main exceptions are as follows:
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Exceptions to the use of previous consistent statements
* Res gestae
* Suspect’s response to police allegation
* Complaints
* Recent fabrication
46
2.2.5 Res gestae
This is because the person would not have had any time to conjure up a false response if you only look at what was said in the immediate aftermath of an incident. So, for example, if someone suddenly jumps up and shouts out on the tube ‘what are your hands
doing there you pervert!?’, that would seem to be an immediate response to a potential sexual assault, and would be admissible. This would be admissible to prove the truth of the (implied) allegation.
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2.2.5 Res gestae
Res gestae: This is a statement made as an immediate reaction to a crime being committed against the statement maker.
47
2.2.6 Suspect’s response to police allegation
The police, as a matter of course, will ‘accuse’ all suspects of an offence when they arrest, interview and charge a suspect. The responses to all police allegations are admissible, whether
they are confessional or involve self-serving denials of guilt.
The only difference is the use to which they are put. If a suspect wholly denies an offence to the police, it may be useful to the jury to assess the overall conduct of the defence, and the
consistency of the defendant’s denials. It cannot go further and prove the truth of the denials.
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2.2.7 Complaints
There is a common law principle that the quicker that someone complains about an allegation, the more likely the complaint is to be reliable. The common law therefore developed a doctrine called the ‘doctrine of recent complaint’. The Criminal Justice Act 2003 took the principle a lot further and simply made complaints admissible where the complainant testifies that the earlier complaint was made and was true.
This statutory provision (s.120) does not replace the common law, but as it is much wider it makes the common law somewhat redundant. The Act also allows the earlier complaint to show consistency in complaining and to prove the truth of the complaint
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2.2.8 Rebuttal of ‘recent fabrication’ allegation
If a witness is challenged in the box, and it is suggested that something that the witness has just said has only just been made up, then the witness is permitted to try to prove that this is not the
case.
The witness is therefore allowed to negate the allegation of ‘recent fabrication’ by showing that earlier statement was made to the same effect as the statement impugned as being a recent fabrication.
Again, the court must consider s.120 CJA 2003 in deciding whether there is an earlier complaint that can rebut the allegation of recent fabrication.
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2.3 Cross-examination
We will consider:
* Form of questioning
* Previous inconsistent statements
* Restrictions
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2.3.1 Form of questioning
In cross-examination, advocates may ask leading questions, ie questions that contain factual statements that indicate what answer the advocate wants the witness to make. Indeed, there is a principle that is part of the Code of Conduct for barristers that states that
unless a witness’s account is challenged on a particular point, it is deemed to have been tacitly accepted.
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2.3.1 Form of questioning
This rule applies to both factual challenges, where the advocate has to promote the alternative factual case to the one being expressed by the witness, and to imputations on the witness’s character which must be done plainly to the witness’s face. The case that first set up this principle is the ancient and famous case of Browne v Dunn [1893] 6 R 67, HL. There has been case law in many ex-UK jurisdictions about just how fully and meticulously it is necessary to convey every minute disagreement between the witness and the party for the
other side, but the broad principle of ‘putting’ your case where it is in conflict with the witness remains fundamental.
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2.3.1 Form of questioning
Witnesses should generally only deal in facts. Witnesses should not be encouraged to give opinions unless they are on very ‘everyday’ matters
such as giving the opinion that someone was drunk. A practice that has been seen regularly in courts, but which is deemed to be improper, is the
question type that asks one witness to comment on another witness, particularly when they have given inconsistent evidence. So one shouldn’t say something like ‘Well, you can’t both be right, so are you calling X a liar?’ That is comment, not a question, and should be reserved for your closing speech.
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2.3.2 Previous inconsistent statements
The courts do not generally admit into evidence a police witness statement. It classifies as hearsay.
It can become admissible, under s.119 Criminal Justice Act 2003 however, if the witness in the box giving live evidence departs materially from the statement, either by contradicting the statement or adding something to it which was not there originally. In either case, the original statement can be produced and shown to the witness in order to challenge the discrepancy in the accounts provided.
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2.3.2 Previous inconsistent statements
The party using the statement in cross-examination can refer to the fact that the original statement was made much closer to the incident and it is a signed and sworn statement (as is the
live evidence). Given how readily memories fade, and how easy it is for witnesses to get flustered and make mistakes, it is quite common for inconsistencies to arise between the evidence in the box and the evidence in the statement.
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2.3.2 Previous inconsistent statements
Minor discrepancies should be expected and would not normally lead to an advocate picking them up and cross-examining upon them, but more major changes in an account can provide valuable insights into the credibility of the witness
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2.3.3 Restrictions on cross-examination
Cross-examination can be robust, and it can lead to a witness being upset, vilified or annoyed. For example, the Bar Standards Board Handbook for professional practice is clear, however, that upsetting a witness should never be done gratuitously, for its own sake, and it should never be done unless it serves a clear and useful purpose. The judge will determine if the questions ‘cross the line’.
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2.3.3 Restrictions on cross-examination
The judge can also determine if a matter has been sufficiently explored and can put time limits on time dedicated to issues that are peripheral or already covered sufficiently. The law in relation to what questions can be put to victims/complainants of sexual offences is quite carefully guarded by law. Questions about the victim’s general promiscuity or other sexual
behaviour are not allowed without leave of the court (Youth Justice and Criminal Evidence Act 1999, s.41).
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2.3.4 Finality on collateral matters
The rule of finality to collateral matters prevents trials from splintering into multiple insignificant disputes about credibility related matters collateral to the issues in the case. Therefore, if a
witness to a bank robbery is asked in cross examination whether they once lied on a mortgage application and they say no (imagining that to be (i) relevant and (ii) to have passed the
necessary bad character hurdles), the defence would be prohibited from adducing evidence of the mortgage application because the matter was collateral to main issues and the answer ‘no’ was final in the eyes of the law
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2.3.4 Finality on collateral matters
The courts are more lenient in allowing evidence to be admitted on the ‘collateral’ issue of a witness being ‘biased or partial’ and even when a witness denies such, counter-evidence will be admissible
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2.4 Re-examination
2.4.1 Form of questions
In any case, if matters are raised in cross-examination which could not reasonably have been
covered in examination in chief, then the party calling the witness may ask further questions after
the cross-examination in re-examination.
These questions should follow the same rules as examination in chief – namely no leading
questions unless the matter is not in dispute, and witnesses can refresh their memory if necessary
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2.5 Summary
This section considered:
* Oaths and affirmations
* Examination in chief
- Form of questioning
- Memory refreshing
- Hostile witnesses
- Previous consistent statements
◦ Res gestae
◦ Suspect’s response to police allegation
◦ Complaints
◦ Recent fabrication
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2.5 Summary
* Cross-examination
- Form of questioning
- Previous inconsistent statements
- Restrictions including finality on collateral matters
* Re-examination
- Form of questioning
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Summary trial
3.1 Introduction to summary trial
Trials are only necessary when the defendant pleads ‘not guilty,’ and their guilt needs to be
determined by the hearing of evidence. Most defendants plead guilty (around 90% in the Magistrates’ and 60% in the Crown).
Trial in the magistrates’ court is known as summary trial. Summary trials involve:
* ’Summary only’ offences (offences that can only be tried in the magistrates’ court); or
* ‘Either-way’ offences (offences that can be tried in either the magistrates’ court or the Crown
Court) where the magistrates have retained jurisdiction following the allocation procedure
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3.1 Introduction to summary trial
In the Crown Court a defendant is tried on indictment. Each indictment has a number of counts
reflecting the allegations against the defendant.
The overall process of a trial is the same irrespective of the court it is heard in. For example:
* The burdens of proof.
* The rules of the admissibility of evidence
* The possible inferences which can be drawn under the CJPOA 1994.
* How witnesses give evidence and which witnesses.
* The order of the evidence. A trial is adversarial, so the prosecution will always open the case as
it carries the evidential and legal burden of proving the case beyond reasonable doubt. If, at
the close of its case, the prosecution has failed to introduce sufficient evidence, then an
application of ‘no case to answer’ can be made.
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3.2 Magistrates’ court trial procedure (Criminal Rules Part 24)
All summary trials take place before a ‘bench’ of at least two, but usually three, lay magistrates
(also known as ‘justices of the peace’) or before a single District Judge.
District Judges are professional lawyers. Rather than sitting as part of a bench of three, a District
Judge usually sits alone.
Lay magistrates are not professional lawyers; they are unpaid volunteers. They receive training to assist them with the law and procedure in the court but also have a court legal adviser to help them.
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3.2.2 The authorised court officer
Previously referred to as the justices’ clerk, the court clerk or legal adviser.
The authorised court officer will provide assistance to justices of the peace with both the relevant law and procedure when required during the summary trial process. The authorised court officer
takes no part in deciding upon the verdict in a summary trial. The authorised court officer must be
present during a trial judged by a bench of lay magistrates but is not required to be present in a
summary trial presided over by a District Judge.
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3.2.3 Judges of fact and law
In a summary trial the magistrates or District Judge are the judges both of the fact and the law. As such, any legal applications requiring them to rule certain evidence as inadmissible require, if successful, the same magistrates/District Judge to ignore that material they have previously
heard about. This is just one reason why a defendant might be advised, in an appropriate either-way case, to
elect trial before judge and jury in the Crown Court.
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3.2.4 Legal arguments
In the magistrates’ court, the magistrates usually have a discretion as to when to determine questions of admissibility. As such, they can rule on an s.78 application when it arises or hear all the evidence (including the
disputed evidence relating to the legal argument) before ruling on admissibility
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3.2.5 Prosecution opening speech
Prosecution summarise the prosecution case, concisely identifying the relevant law, outlining the
facts and indicating the matters likely to be in dispute.
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3.2.6 Defence identify matters in issue
Where the magistrates or District Judge feel it would assist them to understand the case and resolve any issue, they are entitled to ask the defence (ie the defence representative or the defendant in person if unrepresented) to identify concisely what is in issue in the case (ie what is in dispute, CrimPR r.24.3(3)(b)). This is particularly helpful in summary trials because, unlike in cases that are sent to the Crown Court, there is no requirement for a defence statement.
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3.2.7 Prosecution evidence
Having opened its case, the prosecution will present its evidence to the court. Evidence can be presented by:
* Calling witnesses;
* Reading witness statements under s.9 Criminal Justice Act (‘CJA’) 1967 when the evidence of
that witness is not in dispute or where the prosecution have made a successful application to read a witness statement or part of it under the hearsay provisions;
* Reading admissions under s.10 CJA 1967 ie facts which are agreed by the prosecution and defence.
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3.2.8 Submission of no case to answer
On the defendant’s application or on its own initiative, the court may acquit on the ground that the prosecution evidence is insufficient for any reasonable court to properly convict.
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3.2.9 Right to give evidence and adverse inferences
Defendant must be informed of:
* The right to give evidence, and
* The potential effect of not doing so at all, or of refusing to answer a question while doing so
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3.2.10 Defence evidence
Like prosecution evidence, defence evidence can be given by witnesses live from the witness box in
court; alternatively, where the evidence is agreed by the prosecution, evidence can be read from witness statements or presented in the form of written admissions. It is also open to the defence to apply to read witness statements under the hearsay provisions of the Criminal Justice Act 2003, see the hearsay sections for more detail. Witnesses will be examined in chief, cross-examined and re-examined in the same order as the
defendant.
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3.2.11 Prosecution closing speech
The first closing speech they will hear is from the prosecution, but the prosecution is only entitled
to make a closing speech where:
* The defendant is represented; or
* Whether or not they are represented, the defendant has introduced evidence other than their own.
As such, the prosecution cannot make a closing speech in a case involving an unrepresented defendant who does not rely on any evidence other than what the defendant in person says in the
witness box.
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3.2.12 Defence closing speech
After the prosecution closing speech (if there is one) the defendant’s legal representative will make
a closing speech on behalf of the defendant. The defence are always entitled to make a closing speech.
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3.2.13 Legal advice
Before retiring to consider their verdict, the legal adviser will advise the magistrates in open court on any matters of law that are required.
When a District Judge is hearing the case, even if an authorised court officer was present, there would rarely be any need for such advice to be given.
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3.2.14 Magistrates retire
After receiving any legal advice the magistrates will retire to consider their verdict. If the magistrates require assistance from the authorised court officer after retirement they should
request this in open court. If any legal advice is given to the magistrates other than in open court the authorised court officer should inform them this advice is only provisional; the authorised
court officer should then repeat the substance of the advice in open court to allow representations from the prosecution and defence.
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3.2.15 Verdict
The magistrates/District Judge will announce the verdict in open court.
Where there is disagreement amongst three lay magistrates the view of the majority prevails; however, if only two magistrates were able to hear the case and they are evenly divided, they
must adjourn the case for a rehearing before a new bench.
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3.2.16 Guilty: Duty to give reasons
If the magistrates/District Judge convict a defendant sufficient reasons must be given to explain the decision.
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3.3 Summary
This section provided an overview of the procedural steps in a summary trial.
Some key differences between summary and Crown Court trials include:
* The role of the legal adviser to assist the bench; and
* The judges (who are the judges of law and facts in magistrates’ court trials.
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Magistrates’ Court trial procedure (Criminal Procedure Rules Part 24):
* Legal arguments
* Prosecution opening speech
* Defence identify matters in issue
* Prosecution evidence
* Conclusion of the prosecution case
* Submission of no case to answer
* Right to give evidence and adverse inferences
* Defence evidence
* Prosecution closing speech
* Defence closing speech
* Legal advice
* Magistrates/District Judge retire to consider verdict
* Verdict
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4 Trial in the Crown Court
Trials are only necessary when the defendant pleads ‘not guilty,’ and their guilt needs to be determined by the hearing of evidence. Most defendants plead guilty (around 90% in the magistrates’ and 60% in the Crown Court).
Crown Court trials are also referred to as ‘trials on indictment’ and offences which can be tried in the Crown Court are ‘indictable’ offences that is either-way or indictable only offences.
These will often be the more serious either-way offences where the magistrates have considered
that their sentencing powers in the event of conviction would be insufficient and have sent the
case for trial to the Crown Court. A defendant also has the right to elect to be tried on indictment
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4 Trial in the Crown Court
The Crown Court is the only court where indictable only offences can be tried. These are offences such as murder, attempted murder, manslaughter, causing grievous bodily harm with intent and robbery. The Crown Court differs from a magistrates’ court in that it has to incorporate space for a jury of 12 people. Often in the Crown Court there will also be more space both for the public to watch cases and for the legal representatives to sit. Invariably therefore a Crown Court is larger than a magistrates’ court.
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4 Trial in the Crown Court
It is worth noting at this stage that the court clerk in the Crown Court is not the same as th authorised court officer in the magistrates’ court. Although they both carry out some similar
administrative functions, the Crown Court Clerk is:
* Not legally qualified and never gives legal advice
* Responsible for many of the duties relating to:
- Selecting and taking verdicts from the jury; and
- For arraigning defendants
Trials in the Crown Court take place before a judge and a jury, save for a few exceptional occasions (not dealt with in this section) where trials by a judge alone can take place
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The judges who sit in the Crown Court are:
* Circuit Judges- referred to as ‘Your Honour’. They wear a violet and black robe and a red tippet (sash) over their left shoulder;
* Recorders- referred to as ‘Your Honour’. Recorders are barristers or solicitors who sit as parttime judges. They wear black robes; and
* High Court Judges- referred to as ‘My Lord, My Lady’. Occasionally, the most serious Crown Court cases are heard by High Court Judges who are distinguished by their red robes, hence
often being referred to as ‘red’ judges
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4.1 Role of the judge and jury
The judge:
* Is the arbiter of the law.
* Makes rulings about the admissibility of evidence (in the absence of the jury).
* Directs the jury about matters of law (eg explaining what has to be proved and who by).
* Can direct a jury to find a defendant not guilty (for example following a successful submission
of no case to answer) but cannot direct a jury to find a defendant guilty.
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The jury:
* Is the sole decider/arbiter of facts.
* Decides whether the defendant is guilty.
* Must accept and apply the judge’s directions about the law.
* Must reach its decision only based on the evidence it hears in court. It will:
- Determine whether, and to what extent, the evidence is to be believed; and
- Decide whether to draw inferences from the evidence or from a defendant’s silence.
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4.2 Crown court trial procedure
(Criminal Procedure Rules Part 25)
4.2.1 Legal arguments
Crown Court cases are actively managed in the lead up to trial in order that the trial itself runs as
smoothly as possible.
Sometimes pre-trial hearings before the trial judge take place specifically for the purpose of dealing with legal arguments. In practice, however, many legal arguments take place on the first day (or first few days) of trial. Legal arguments in the Crown Court can be heard before or after the jury are sworn.
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Voir dire
Where a voir dire is required, this still takes place in the absence of the jury, since it is a procedure
for the judge to resolve a factual dispute which is relevant to a legal argument.
In practice, when a legal representative says to the judge that ‘a matter of law’ has arisen, the
judge will take this as the cue to ask the jury to briefly retire whilst the legal argument is dealt
with.
Common legal arguments dealt with just prior to the commencement of a jury trial in the Crown
Court are:
* Applications relating to bad character;
* Hearsay applications;
* Applications to exclude evidence under section 76 or 78 Police and Criminal Evidence Act 1984;
and
* Abuse of process applications.
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4.2.2 Jury selection and swearing in the jury
Twelve jurors are required to start a Crown Court trial. A ‘jury panel’ of about 16 people go into court from which the 12 will be chosen at random. As each juror is called from the panel they will
take their place in the jury box. When the jury box is full but before each juror takes the jury oath or affirmation, the defendant is told by the court clerk that they have the right to object to any
juror. Each jury member is then sworn.
The jury selection process that takes place in the USA is very different.
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4.2.3 Judge’s preliminary instructions to the jury
The judge will tell the jury that the evidence upon which they must decide the case is the evidence
that will be presented to them in court and they must not discuss it with anyone else who may have a view but will not have heard the evidence. The judge will also 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 are dealt with.
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4.2.4 Prosecution opening speech
In the Crown Court, the prosecution opening speech is focused on the facts and issues in the case, namely on what the case is about, what the areas of dispute are and why the prosecution
says the defendant is guilty of the offence or offences with which the defendant is charged. The prosecutor will tell the jury what counts the defendant faces. The prosecutor should avoid the use of overly emotive language
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4.2.5 Defence identify matters in issue
To help the jury to understand the case, the judge can invite the defence to confirm or clarify what the issues in the case are (ie what precisely is in dispute).
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4.2.6 Prosecution evidence
The prosecution case has been served on the defence at the outset of the proceedings. All witnesses the defence wish to question will have been included in the Plea and Trial Preparation. Hearing form. The defence will only want to question a prosecution witness if there is some
disagreement with the contents of that witness’s statement. The prosecution will start by calling all the prosecution witnesses that the defence asked to be
called. The prosecutor will then take the witness through evidence in chief. The witness is then cross-examined by the defendant’s legal representative
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4.2.6 Prosecution evidence
When the defence has no dispute with the content of a prosecution witness’s statement no purpose would be served in calling the witness to give live evidence and instead, where the
defence agree, the prosecution can read the statements of prosecution witnesses. Just before the prosecutor reads a witness statement to the jury, the judge will explain to the jury
that they can receive evidence in various ways and that this is agreed evidence which is why it is
being read to them. The defendant’s ‘record of taped interview’ (ROTI) with the police will be produced in an edited
form containing the salient questions and answers. The jury will get a copy of the ROTI and the prosecution will also read the interview out in court
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4.2.6 Prosecution evidence
Where the defendant has made a ‘no comment’ interview, rather than presenting a ROTI to the
jury the prosecution will often instead present agreed written admissions stating what the defendant was asked about and that the defendant replied ‘no comment’ to all questions put. This
will allow the jury to consider whether it would be proper to draw an inference from the defendant’s silence.
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4.2.7 Conclusion of the prosecution case
The case for the Crown is concluded.
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4.2.8 Submission of no case to answer
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 the prosecutor has had an opportunity to make representations.
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4.2.8 Submission of no case to answer
This is known as a submission of no case to answer and is often referred to as a ‘half time’ submission due to the stage in the trial at which it is made.
The submission will be made in accordance with the test laid down by Lord Lane CJ in R v Galbraith [1981].
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4.3 Defendant’s right to give evidence or not
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. If the answer is yes, the case will proceed. If the answer is no the judge will ask, ‘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?’
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4.3 Defendant’s right to give evidence or not
There is no obligation on the defendant to give evidence, but failure to do so can result in adverse
inferences being drawn pursuant to s 35 Criminal Justice and Public Order Act 1994. The final decision as to whether or not to give evidence is for the defendant to take, 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.
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4.3.1 Defence opening speech
When the prosecution case has ended, or following a rejected submission of no case to answer, the defence case will start. The defence do have the right to make an opening speech at this
stage but only if 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 there is a right to a defence opening speech, it is rarely used.
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4.3.2 Defence evidence
If the defendant is represented and the defendant chooses to give evidence, the defence advocate will call the defendant and take the defendant through evidence in chief. The defendant will then be cross-examined by any other defendants and the prosecution. Any other defence witnesses will be examined in chief, cross-examined and re-examined in the same order as the defendant.
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4.3.3 Legal discussions
When the defence case is closed it is common practice for the jury to be sent out in order to allow the judge and the prosecution and defence advocates an opportunity to consider those matters
of law which should be raised during the judge’s summing up. This 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. This is a convenient way of ensuring, so far as possible, that any problems are ironed out prior to speeches and the summing up and, therefore, that an appeal is less likely in the event of a conviction.
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4.3.4 Closing speeches
The prosecution can make a closing speech where the defendant is legally represented, or has called at least one defence witness (other than the defendant in person) to give factual evidence or where the court otherwise so permits. The prosecution closing speech is always first. The defence is always entitled to make a closing
speech which will follow that of the prosecution.
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4.3.5 The judge’s summing up
After closing speeches have been delivered by the prosecution and defence, the judge will sum the
case up to the jury. The summing-up falls into two parts: the law and the facts. This means that the judge will deal with all necessary legal directions and then move on to sum up the prosecution and defence
cases. Both prosecution and defence advocates should be alert to errors in the summing-up and draw
them to the judge’s attention at its close so that corrections can be made.
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The judge will direct the jury that they have different functions:
* The judge is the arbiter of the law; the judge will give the jury directions on the law which they must accept.
* The jury, on the other hand, are the arbiter of the facts. They must reach their own conclusions on the evidence
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Every case is different and the legal directions the judge gives to the jury will be tailored
accordingly.
In summing up the case to a jury, the judge will deal with the following:
* Burden and 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
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To assist the jury to focus on the issues during retirement, the judge should provide:
* 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; and
* Any outstanding directions.
It is not necessary for the judge to recount all relevant evidence or to rehearse all of the significant points raised by the parties.
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Foreman
The judge will tell the jury to appoint a foreman (a person of any gender) to deliver the jury’s verdict in due course.
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Unanimity
Just before the jury bailiffs are sworn and the jury retire to consider their verdict, the jury will be
told that they may have heard of majority verdicts, but the only verdict the judge can accept is a
unanimous verdict.
The judge will go on to 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.
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4.3.6 Jury bailiffs sworn and jury retires
The jury bailiffs swear/affirm 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. The jury bailiffs are court ushers who become jury bailiffs once they take the jury bailiff’s
oath/affirmation.
The jury will go to their retirement room to deliberate on their verdict.
They are entitled to ask questions of the judge by giving a note to the jury bailiff who will pass it to the judge. The judge may give further directions during retirement.
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Majority direction
The Juries Act (JA) 1974 permits a majority verdict to be given by a jury after they have deliberated for at least 2 hours although in practice the minimum period is 2 hours and 10 minutes as required in the Criminal Practice Direction VI Trial 26Q Majority Verdicts. This is to take account of any time not spent deliberating, such as getting to the jury room and electing a
foreman.
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Majority direction
A majority verdict should not be accepted unless it appears to the court that 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. As such, what is reasonable will be different in every case and in long and complex cases involving multiple defendants the jury could be out for many days before any thought is given to their receiving a majority direction.
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4.3.7 Verdict
Once the jury have reached a verdict they will inform the jury bailiff.
The court will reassemble and the foreman will be asked to stand.
If the jury have not received a majority direction the court clerk will ask the foreman if the jury have reached a verdict on which they are all agreed. If the answer is yes, the clerk will ask ‘What is your verdict?’ and the foreman will reply ‘Guilty’ or ‘Not guilty’.
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Convicting of alternative offences
In certain circumstances the jury can convict of a lesser offence which is an alternative to a count on the indictment. For example, an offence of inflicting grievous bodily harm contrary to s 20 Offences Against the Person Act 1861 is included in (and therefore a direct alternative to) the more serious offence of causing grievous bodily harm with intent, contrary to s 18 Offences Against the Person Act 1861. In
essence, s 20 is the same as s 18 without the element of intent, so the lesser offence is included in the greater offence.
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Guilty verdict
A defendant who is found guilty will either be sentenced immediately or, if reports are required to assist with sentencing, such as a pre-sentence report or a psychiatric report, the case will be adjourned for sentence to a later date. It is common practice for the judge, whether a defendant is acquitted or convicted, to thank the jury for carrying out their public duty.
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Not guilty verdict
A defendant who is acquitted will be entitled to be discharged. The defendant will therefore be free to leave so long as no further matters facing the defendant are before the court.
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4.4 Summary
This section considered Crown Court Trial Procedure (Criminal Procedure Rules Part 25) as follows:
* Legal arguments
* Jury selection and swearing in the jury
* Judge’s preliminary instructions to the jury
* Prosecution opening speech
* Defence identify matters in issue
* Prosecution evidence
* Conclusion of the prosecution case
* Submission of no case to answer
* Right to give evidence and adverse inferences
* Defence opening speech
* Defence evidence
* Legal discussions
* Closing speeches
* Judge’s summing up
* Jury bailiffs sworn and jury retire
* Verdict
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