Court Procedure and Witnesses

Question 1

Guilty Pleas By Post
Section 12 Magistrates Court Act 1980

What Type Of
Offences Does The
Process Apply To?

Answer 1

Summary offences started by way of either:
*Summons; or
* Requisition
…in either:
*The Magistrates Court; or
*The Youth Court - (only for those aged 16 or 17).

Question 2

What Documents Are
Served On The
Defendant?
3 items

Answer 2

The defendant is served with:
*The summons / requisition;
* Statement of facts; and
*Form of explanation.

Question 3

What Options Are
Available To The
Defendant Following
Service?
2 options

Answer 3

Option 1
Proceed to
trial.

Option 2
Pleading guilty by post
and putting forward mitigation
to the court in their absence.
If so — the Magistrates designated officer
informs the prosecution
of the written guilty plea.

Question 4

Options Available To
The Magistrates In The
Event Of Non
Appearance?
3 options

Answer 4

Option 1
Issue a warrant
for their arrest.

Option 2
Appoint a later date
to appear in court.

Option 3
Proceed in the
defendant’s absence.
Before taking action
the court must be satisfied that
any summons issued had been
properly served.

Question 5

When Will It Be
Appropriate To Proceed
In The Defendant’s
Absence?
Focus on the defendant’s age

Answer 5

Under 18
The court may
(has the discretion)
to proceed in their absence.

18 Or Over
The court must
proceed in their absence
-unless it is
contrary to the interests of justice.

Question 6

Examples Of Situations
Where The Court Will
Be Justified In
Proceeding In The
Defendant’s Absence?

Answer 6

Examples
*Deliberate absence.
*Defendant not caring about the
consequence of their absence.

Question 7

Is It Possible To
Proceed In The
Defendant’s Absence
When They Are Not To
Blame — For Example
Through Illness?

Answer 7

Yes
In extreme cases.

General Rule
The court will adjourn
— but will not adjourn indefinitely.
There will come a point where it will be in the
interests of justice
to proceed in the defendant’s absence.
R v Taiyor [20081 EWHC Crim 680.

Question 8

Mode Of Trial

Answer 8

3 categories of offences

Question 9

Summary Offences

Answer 9

Definition?
Statute only provides a maximum penalty
imposable on summary conviction
Statute does not provide a penalty for a
conviction on indictment.

Venue For Trial?
Magistrates Court
only.

Question 10

Either Way Offences

Answer 10

Definition?
Statute provides a maximum penalty for
both:
*A summary conviction; and
*A conviction on indictment.

Venue For Trial?
Either
the Magistrates Court
or
the Crown Court.

Question 11

Indictable Offence

Answer 11

Definition?
Common law offences
or
Statute only provides a maximum penalty
imposable on indictment.
Statute does not provide a penalty
for a summary conviction.

Venue For Trial?
Crown Court
only.

Question 12

Mode Of Trial
Hearing For Either
Way Offences
Section 19 Magistrates Court Act 1980

When Will The
Magistrates Convene A
Mode Of Trial Hearing?

Answer 12

Where a person aged 18 or over is charged
with an either way offence - the Magistrates
will hold a mode of trial hearing when the
person either:
*Pleads not guilty; or
*Has not indicated an intention to plead
guilty.

Question 13

Type Of Offences?

Answer 13

Magistrates Court
Summary
Either Way

Crown Court
Indictable
Either Way

Question 14

Presided Over By?

Answer 14

Magistrates Court
* At least 2 lay Justices of
the Peace; or
* Single (Deputy) District
Judge sitting alone.

Crown Court
* High Court Judge;
* Circuit Judge;
* Recorder; or
* Qualifying judge
advocate.

Question 15

Modes Of Address?

Answer 15

Magistrates Court
*Sir / Ma’am; or
* Your worship(s).
Crown Court
* High Court Judge — My
Lord / My Lady.
* Rest — Your Honour.

Question 16

Who Can Conduct Their Case?

Answer 16

Magistrates Court
Both the prosecution and
defence can conduct their
case in person or be legally
represented.

Crown Court
* The prosecution must be legally
represented
* The defence can conduct their
case In person or be legally
represented
* They can also be accompanied by
a friend who can act as an adviser
— but cannot examine witnesses or
address the court

Question 17

Who Has Rights Of Audience?

Answer 17

Magistrates Court
* Solicitors; and
* Barristers.

Crown Court
* Solicitors with higher
rights of audience; and
* Barristers.

Question 18

Jury?

Answer 18

Magistrates Court
None
The Justices Clerk advises lay
Magistrates on pants of law and
the Justices determine guilt by
considering the factual evidence
lad before them

Crown Court
Yes — all persons eligible provided
* On electoral register;
* Over 18 and under 70,
* Resident in UK, Channel Islands or
Isle Of Man for over 5 years since
the age of 13,
* Not mentally disordered, and
* Not disqualified from Jury service.

Question 19

Procedure Following A Guilty
Plea?

Answer 19

Magistrates Court
Prosecution:
* State the facts of the case, and
* Outhne previous convictions.
Defence:
* Make a plea in mitigation prior to
sentence.

Crown Court
Prosecution:
* Outline previous convictions, and
* If there iS a dispute about the facts
of the case — prosecution presents
evidence of their version of the facts
In a Newton hearing
Defence:
* Make a plea in mitigation prior to
sentence.

Question 20

Procedure Following A Not Guilty
Plea?

Answer 20

Magistrates Court
* Prosecution - summarises prosecution case
* Defence - Invited to identify what is in Issue.
* Prosecution - Presents prosecution case
* Defence - Presents defence case
* Closing speech,
* Verdict

Crown Court
* Prosecution - Presents prosecution
* If at the close of the prosecution case— the
prosecution has failed to prove all elements of
the actus reus and mens res of the offence
beyond reasonable doubt — judge will direct and
acquittal in response to a defence submission of no case to answer
* Defence - if there is a case to answer - defence presents the defence case
* Closing speeches
* Verdict

Question 21

SECURING THE ATTENDANCE OF A WITNESS AT COURT - WITNESS SUMMONSES

Answer 21

Who Can Apply?
Prosecution
Defence…

What Can They Apply For?
Either:
* Summons
*Warrant; or
*Order…

Purpose?
requiring a witness to attend either:
* Magistrates Court; or
*Crown Court.

Question 22

Service Of The
Summons
Rule 4.7(1) Criminal Procedure Rules 2015

Answer 22

Who Can The Summons Be
Served Upon?
A witness summons may be served on either:
*An individual; or
*A corporation
by any of 3 methods…

Means 1
Handing
it over.

Means 2
Leaving it
at an address
where it is reasonably believed
the witness will receive it.

Means 3
Posting it
to an address
where it is reasonably believed
the witness will receive it.

Question 23

COMPETENCE AND COMPELLABILITY OF WITNESSES

Answer 23

Definition Of
Competence
A witness is
competent if they
have the ability and
capacity to give
evidence.

Definition Of
Compellability
A witness is
compellable if they
can be forced to give
evidence.

Not
competent
>
Cannot
give
evidence.

Competent
But Non
Compellable
>
Discretion
whether to
give
evidence.

Competent &
Compellable
>
No choice
can be forced
to give
evidence.

Question 24

Presumption Of
Competence?

Answer 24

It is presumed that all witnesses,
irrespective of their age,
will have the capacity
to give evidence
and will be a competent witness…
…unless either of 2 exceptions apply.

Exception 1
They lack capacity to give evidence - they are
unable to give intelligible testimony — i.e. they
cannot either:
* Understand questions put to them as a witness;
or
* Give answers which can be understood.

Exception 2
They are the
accused / co-accused
as a witness
for the prosecution.

If they cease to be an accused person
-they will at that point
become an ordinary competent witness,
provided they possess
the requisite capacity.

An accused person
who possesses the requisite capacity
-will be a competent witness
for their own defence
or the defence of a co-accused.

Question 25

Means To Determine Whether Witnesses With A Disorder Or Disability Of The Mind Pass The Intelligible Testimony Test?

Answer 25

Means 1 Expert evidence. Means 2 The court determining whether the witness is able to understand questions put to them and provide responses that are capable of being understood.

Question 26

General Rule Bog Standard Witnesses

Answer 26

General Rule? Witness For The Prosecution Competent Compellable Witness For The Defence Competent Compellable

Question 27

Exceptions 3 categories Accused

Answer 27

Accused? Witness For The Prosecution Not competent Not compellable Witness For The Defence Competent Not compellable

Question 28

Co-Accused

Answer 28

Co-Accused? Witness For The Prosecution General Rule; Not competent Not compellable Exception: Cases to bo a co-accused Competent Compellable Witness For The Defence General Rule; Competent Not compellable Exception: Cases to bo a co-accused: Competent Compellable

Question 29

How Can A Person Cease To Be A Co-Accused?

Answer 29

*The co-accused pleads guilty; *The co-accused is convicted; or *Proceedings are discontinued against the co-accused.

Question 30

Spouses & Civil Partners

Answer 30

Definition Of A Spouse A spouse is a person married to the accused at the time of the trial NB - this definition also includes same sex married couples. Section Il Marriage (Same Sex Couples) Act 2013 Former Spouses A former spouse (due to divorce) is treated as if they were never married to the accused — i.e. they are treated as a "bog standard witness". Definition Of A Civil Partnership A civil partner is a person in an ongoing civil partnership with the accused at the time of the trial. Former Civil Partners A former civil partner (due to dissolution) is treated as if they never entered into a civil partnership — i.e. they are treated as a "bog standard witness". Timing Of Divorce / Dissolution Where the parties are married or in a civil partnership at the time of the commission of the offence or their arrest for the offence - but have subsequently divorced or had their civil partnership dissolved prior to the trial - they will be treated as if they have never been married or entered into a civil partnership. Common Law Partnerships A person "living with" the defendant in a common law cohabitation arrangement will not qualify as a "spouse or civil partner" — they are therefore treated as a "bog standard witness". R v Pearce [2002] 1 WLR 1553 Spouses & Civil Partners? Witness For The Prosecution General Rule: Competent Not compellable Exception - Section 80(3) ACE 1984 offences Competent Compellable Witness For The Defence Competent Compellable

Question 31

Section 80(3) PACE 1984 Offences?

Answer 31

* Assault, injury, or threat of injury to the spouse / civil partner. * Assault, injury, or threat of injury to a child under 16. * A sexual offence committed in respect of a child under 16. * Attempting, conspiring, aiding, abetting, counselling, procuring or inciting any of the above.

Question 32

Does A Spouse Or Civil Partner Need To Be Informed That They Are Not A Compellable Witness Before Interviewing Them In Relation To A Crime In Respect Of Which Their Spouse Is Suspected?

Answer 32

No R v L [2008] EWCA Crim 973

Question 33

Will The Spouse Or Civil Partner's Refusal To Take The Stand For The Prosecution Give Rise To An Adverse Inference At Trial?

Answer 33

No The prosecution will not be permitted to comment on the spouse's refusal.

Question 34

Sworn & Unsworn Testimony Section 55 & 56 YJCEA 1999 Can A Non-Competent Person Who Does Not Possess The Requisite Capacity Give Either Sworn Or Unsworn Testimony?

Answer 34

No The witness must be competent — i.e. have the requisite capacity before they are permitted to give anv evidence, be it sworn or unsworn.

Question 35

Determining Whether A Competent Witness, Who Does Possess The Requisite Capacity, Will Give Either Sworn Or Unsworn Evidence?

Answer 35

The presence of capacity merely provides the competence of a witness of any age to give evidence. It still needs to be determined whether the evidence tendered will be either sworn or unsworn in nature? This is determined by 2 factors: *The cut off age of 14 or over; and *The appreciation of the witness.

Question 36

Who Will Give Sworn Testimony?

Answer 36

* Witnesses aged 14 or over; * Possessing the requisite capacity - (capable of giving intelligible testimony); * Provided they have sufficient appreciation of: The solemnity of the occasion, and The particular responsibility to tell the truth which is involved when taking the oath.

Question 37

Who Will Give Unsworn Testimony?

Answer 37

* If the competent witness possessing the requisite capacity either: * Is under 14; or * Does not have a sufficient appreciation of: * The solemnity of the occasion; and * The particular responsibility to tell the truth whilst under oath. Children Aged Under 4 A child aged under 4 who is competent, will be permitted to give unsworn testimony — provided they display their competence throughout the whole of their evidence. R v P [2006] EWCA Crim 3

Question 38

Who Bears The Burden Of Proving That The Age Of The Witness Is 14 Or Over And Has The Requisite Appreciation? Section 55(3) YJCEA 1999

Answer 38

Starting Presumption If the witness is able to give intelligible testimony (i.e. they possess the requisite capacity) — they will be presumed have a sufficient appreciation Of both, * The solemnity Of the occasjon * The particular responsibility to tell the truth whilst under oath .if no evidence to show the contrary is adduced by any party So, put simply if a witness can give intelligible testimony, it is presumed that they also have the sufficient appreciation — unless this presumption is challenged via evidence to the contrary. Responding To A Challenge To The Witness Having Sufficient Appreciation If any such evidence is adduced — the party seeking to have the witness sworn must satisfy the court on the balance of probability that the witness both: * Has attained the age of 14; and * Has such a sufficient appreciation.

Question 39

What Evidence Can Be Produced To Prove The Age Of A Witness? 2 means

Answer 39

Means 1 Birth certificate plus evidence to identify the person named in the birth certificate. Means 2 A statement from a person present at the birth.

Question 40

Who Will Be Required To Swear An Oath Or Make An Affirmation?

Answer 40

2 Options Witnesses who give sworn evidence must either: *Take an oath; or *Make an affirmation.

Question 41

Will A Witness Who Merely Produces A Document Be Required To Take An Oath Or Affirmation?

Answer 41

No Perry v Gibson (1834) 1 A&E 48

Question 42

Which Method Of Swearing Is Appropriate? Section 1 Oaths Act 1978

Answer 42

Oath * Christians — On the New Testament; *Jews — On the Old Testament; *Muslims — On the Koran; and *Hindus — On the Vedas. Affirmation An affirmation will be sworn where either: * The witness objects to swearing on an oath; or * Their request for an alternative form of oath is not reasonably practicable and would delay or inconvenience the proceedings.

Question 43

Witness Anonymity Orders Section 88 Coroners & Justice Act 1999 Purpose Of A Witness Anonymity Order?

Answer 43

To take such measures as the court deems appropriate to ensure that the identity of a witness in criminal proceedings is not disclosed in, or in connection with the proceedings.

Question 44

Who Can Apply For A Witness Anonymity Order?

Answer 44

Both: *Prosecution; and *Defence.

Question 45

Criteria For Making A Witness Anonymity Order 3 steps

Answer 45

Step 1 — Necessity The order is necessary to either: * Protect the safety of a witness; * Protect the safety of a 3rd party; * Prevent serious damage to property, * Prevent real harm to the public interest. step 2 - Fair Trial Having regard to all the circumstances — making the order would be consistent with the defendant receiving a fair trial. Step 3 — Interests of Justice * It is in the interests of justice that the witness ought to testify; and * The witness would not testify without the order being made; and * There would be real harm to the public interest if the witness were to testify without a proposed order being made.

Question 46

Live Links For Witnesses Who Are Not The Accused General Rule

Answer 46

General Rule A witness must give their evidence in person at court.

Question 47

Exceptions 2 exceptions Witnesses Who Are Not The Accused Who Are Outside The UK Section 32 Criminal Justice Act 1988

Answer 47

Exception Any witness who is not the accused who is outside the UK - can give evidence via live link in: * Crown Court trials / appeals; * Youth Court trials / appeals; and * Extradition proceedings .provided leave (permission) of the court is granted to do so. Who Must Justify Why They Wish To Depart From The General Rule? The party calling the witness.

Question 48

Witnesses Who Are Not The Accused Who Are Inside The UK Section 51 Criminal Justice Act 2003

Answer 48

A witness (other than the defendant), may, if the court directs, give evidence through a live link from another location inside the UK.

Question 49

Means Of Obtaining A Direction?

Answer 49

Either: *On an application by a party to the proceedings; or *The court of it's own motion.

Question 50

Factors The Court Will Consider In Determining Whether To Make A Direction? 2 factors

Answer 50

Factor 1 It is in the interests of the efficient or effective administration of justice to utilise the live link - and will consider matters including: Matter 1 The importance of the evidence. Matter 2 Witness availability. Matter 3 The ability to effectively test the evidence. Factor 2 The parties to the proceedings (and the Youth Offending Team where relevant) — have been given the opportunity to make representations.

Question 51

Eligible Witnesses Sections 16 & 17 YJCEA 1999 2 categories

Answer 51

Category 1 Witnesses under 18 at the time of the hearing or video recording NB - They are automatically eligible for their evidence to be given via video and live link irrespective of the offence. NB — they can however testify in court if they wish. Category 2 Witnesses where the quality of their testimony will be diminished by any of the following.. Characteristic 1 Mental disorder. Characteristic 2 Significant impairment of intelligence and social functioning. Characteristic 3 Physical disability or disorder. Characteristic 4 Fear or distress in connection with testifying. Characteristic 5 Any witness to a relevant offence. (murder, manslaughter, wounding, assault etc.) and offences involving a firearm or knife. Characteristic 6 An adult victim of domestic violence who is vulnerable or intimidated. Characteristic 7 An adult complainant in relation to either: *A sexual offence; * Human trafficking offences; *Slavery offences; and *Indecent photographs of children offence.

Question 52

The Range Of Special Measures YJCEA 1994

Answer 52

Section 23 Screening witnesses from seeing the defendant. Section 24 Evidence given via live link accompanied by a supporter. Section 25 Evidence given in private — in cases involving: * Sex offences; * Trafficking for exploitation; or * Fear of witness intimidation. Section 26 Removal of wigs and gowns. Section 27 Video recording evidence in chief. Section 28 Video recording cross examination and re-examination. Section 29 Questioning via an intermediary for incapacitated or young witnesses. Section 30 Communication aids for incapacitated or young witnesses. Section 86 Coroners & Justice Act 2009 Witness anonymity orders investigation anonymity orders.

Question 53

Witnesses Refreshing Their Memory In The Box Section 139 Criminal Justice Act 2003 Who Can Refresh Their Memory?

Answer 53

A person giving oral evidence in criminal proceedings about any matter (i.e. a witness).

Question 54

When Can They Refresh Their Memory?

Answer 54

They may at any stage in the course of giving their evidence — refresh their memory from either of 2 sources.. Source 1 A document either: *Made; or * Verified by them at an earlier time. Source 2 A transcript of a sound recording of an oral account that they have given at an earlier time.

Question 55

Grounds? 2 steps

Answer 55

Step 1 They state in their oral evidence that the previously made: *Document; or * Transcript of the oral account records their recollection of the matter at that time.. step 2 .and their recollection of the matter is likely to have been significantly better at that time (i.e. when the document or oral account was previously made) than it is at the subsequent time of giving their oral evidence to the court.

Question 56

Who Will Determine Whether The Witnesses Recollection Was Better At The Time Of Making The Statement?

Answer 56

This will be a matter for the judge to determine. R v Chinn [2012] EWCACrim 501

Question 57

Will A Witness Who Has Refreshed Their Memory Prior To Giving Evidence Be Prevented From Further Refreshing Their Memory Whilst Giving Evidence?

Answer 57

No

Question 58

Examination In Chief

Answer 58

Definition? Examination in chief involves questions posed to the witness by the advocate who called the witness.

Question 59

Cross-Examination

Answer 59

Definition? Cross-examination involves one party asking questions of another party's witness. Purpose Of Cross-Examination? A witness will be cross-examined in order to either: * Undermine the witness's evidence * Support the other party's case by posing questions that are relevant to the issues in the case or the credibility of the witness.

Question 60

Entitlement To Cross- Examine Witnesses Article ECHR

Answer 60

Persons charged with a criminal offence are entitled to both: * Examine or have examined witnesses against them; and *Obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them.

Question 61

What Will Be The Consequence Of The Defendant Not Having The Opportunity To Cross-Examine A Key Prosecution Witness?

Answer 61

Unfair trial. R v Shah [2010] EWCA Crim 2326.

Question 62

What Is The Effect Of A Failure To Cross-Examine?

Answer 62

A failure to cross-examine a witness will be deemed to be an acceptance of the witness's story during examination in chief, which cannot later be challenged in summing up. R v Bircham [1972] Crim LR 430

Question 63

Consequences Of A Defendant Failing To Respond To Questions In Cross Examination?

Answer 63

Adverse inferences can be generated under section 35 CJPOA 1994.

Question 64

Can A Witness Ever Be Cross-Examined Without Having Been Examined In Chief Beforehand?

Answer 64

General Rule All witnesses must have been examined in chief before they may be cross-examined. Exception Where more than one witnesses evidence in chief are identical — for the purposes of expediency, one witness can be examined in chief to present the common evidence and then all of the witnesses will be cross-examined thereafter.

Question 65

CAN A DEFENDANT PERSONALLY CROSS EXAMINE A WITNESS?

Answer 65

General Rule The defendant is permitted to conduct their own defence and examine witnesses in person -without the assistance of an advocate. Exceptions The defendant will not be permitted to cross-examine prosecution witnesses in person under sections 34 - 36 YJCEA 1999. If any of these provisions apply either: * The defendant must appoint an advocate to conduct the cross-examination on their behalf; or * If the defendant refuses to do so — the court must appoint an advocate to conduct the cross-examination on their behalf.

Question 66

Prohibition On The Defendant Cross- Examining Complainants, Child Complainants & Child Witnesses Sections 34 & 35 YJCEA 1999

Answer 66

A person charged with either * A sexual offence under Part 1 Sexual Offences Act 2003; * Kidnapping; * False imprisonment; * Child abduction; * An offence under section 1 Children & Young Persons Act 1933: * Any offence involving either assault, injury, or threat of injury to any person; or * An offence under sections I & 2 Of the Modern Slavery Act 2015... .cannot cross-examine in person - either: * The complainant; *A child complainant to the offence; or *A child witness to the offence. either: * In connection with that offence; or * In connection with any other offence (of whatever nature) with which that person is charged in proceedings.

Question 67

Court Direction Prohibiting The Defendant Cross- Examining A Particular Witness Section 36 YJCEA 1999

Answer 67

If neither sections 34 or 35 YJCEA 1999 apply then either: * Upon an application of the prosecution; or * The court of own motion .the court shall make a direction - prohibiting the defendant from cross-examining a witness - if it appears to the court that both: Factor 1 The quality of the evidence given by the witness on cross-examination (or further cross-examination) would be likely to be either: * Diminished if the defendant conducted the cross examination in person; or * Improved if the defendant were prohibited by a direction from conducting the cross examination in person; and... Factor 2 ...that it would not be contrary to the interests of justice to prohibit the defendant to do so.

Question 68

Cross-Examination Of A Complainant About Their Previous Sexual Behaviour Section 41 (1) YJCEA 1999

Answer 68

What Is Sexual Behaviour? Acts or events of a sexual character. It can include sexual relationships with other persons as well as sexual practices — e.g. viewing pornography. If a person is charged with a sexual offence - then both: * No evidence may be adduced; and *No questions can be asked in cross examination... .either: * By the defendant; or *On behalf of the defendant about any sexual behaviour of the complainant — unless the court grants leave (permission) to do so.

Question 69

Victims Of Crime Code Of Practice 2021 12 Rights

Answer 69

Right 1 To be able to: *Understand; and *Be understood. Right 2 To have the details of a crime recorded without delay. Right 3 To be provided with information when reporting a crime. Right 4 To be referred by services that support victims and to have services and support tailored to the victim's needs. Right 5 To be provided with information about compensation. Right 6 To be provided with information about the investigation and prosecution. Right 7 To make a victim personal statement. Who Can Make A Victim Personal Statement? Either: *The victim; or *A bereaved close relative of the victim. Purpose Of A Victim Personal Statement? The statement tells the court how the crime has affected them. The statement is considered when sentencing the offender. Who Is Obliged To Inform Victims Of Their Right To Make A Victim Personal Statement? The police. Does The Victim Have To Make A Victim Personal Statement? No — it is the victim's choice whether to make a Victim Personal Statement. At Which Juncture May A Victim Provide A Victim Personal Statement? The victim may either: * Make; or * Update ...a Victim Personal Statement at any time prior to the case being disposed. Impact Statement For Business A business that has been a victim of crime can make an Impact Statement For Business — explaining how the crime affected the organization. e.g. damage to reputation, disruptive effect or financial loss incurred. Right 8 To be given information about: *The trial, *Trial process; and *The victim's role as a witness. Enhanced rights are available for: * Vulnerable victims; * Intimidated victims; * Persistently targeted victims; and * Victims of the most serious crimes. Right 9 To be given information about the outcome of the case and any appeals. Right 10 To be paid expenses and have property returned. Right 11 To be given information about the offender following a conviction. Right 12 To make a complaint about the victim's rights having not been met.