Identification Evidence

Question 1

What is the evidential burden?

Answer 1

All that we now have to do is to explain the ‘evidential burden’ without losing sight of how simple an idea the legal burden is.

In the previous examples you will have noted that it’s a question of fact for the tribunal of fact as to whether the legal burden of proof has been discharged. In the Crown Court, it’s the jury that’s being addressed when there are discussions about the prosecution proving its case beyond reasonable doubt.

However, before any issue is put before the jury, the judge has to be happy that the jury has heard some evidence on which it could find that the issue has been proved. There is a function here for the judge (as tribunal of law) to ensure that some evidence has been raised on an issue or fact, before the jury (as tribunal of fact) can find if the fact or issue is proved. The burden to raise some evidence to satisfy the judge that the matter should be argued before the jury is the evidential burden.

It is very important to understand that if the defence simply challenges the prosecution case and asserts that the prosecution is wrong, this does not create any burden on the defence.

The defence can call evidence and make positive assertions such as ‘it was not me’, ‘you are lying’ and ‘your view was not good’, and none of these mean that a burden has passed to the defence. It is simply that the defence is engaging and contesting issues that the prosecution has to prove.

There are relatively few examples of where the law puts a burden on the defence, and it is reserved for cases where an active defence is being run, such as automatism, insanity and diminished responsibility.

Question 2

When might the legal and evidential burden become detached?

Answer 2

In every case, if you have a legal burden to prove a fact in issue, you have the evidential burden of ‘passing the judge’ with the same evidence.

However, in very rare cases, the legal burden and the evidential burden become detached. The only example that surfaces with any regularity at all is ‘self-defence’. This is a very special and rare breed, where the judge requires some evidence to be raised in order to put the issue before the jury, but where there is no actual standard of proof required. In the case of assaults generally, it is presumed that any use of force is unlawful. It is, however, possible that the defendant used force in self-defence lawfully. The courts simply require that the defence raise ‘some’ evidence to ‘pass the judge’ that the defendant did act in self-defence. If the judge is content, then the prosecution is on notice that to prove that the use of force was lawful, it has to disprove self-defence. The burden was always upon the prosecution to prove that the force was unlawful, so in a way nothing has changed, except that we now know that proving that the force was unlawful requires proof that the force was not in self-defence.

The evidential burden on the defence here has simply meant that the defence can’t make a speech to the jury calling on the jury to acquit on the basis of self-defence without actually having raised some evidence of self-defence earlier in the trial. To that extent, the rule simply gives force to common sense that the defence can’t raise a matter like this without at least some evidence of it.

Question 3

What are the Turnbull guidelines?

Answer 3

Safeguards were introduced at every stage of the criminal justice process to ensure that identification evidence before a jury is reliable as possible:

• Investigation stage: Police and Criminal Evidence Act 1984 (PACE) Code of Practice D; and
• Trial stage: Turnbull guidelines.

This element focuses on the investigation stage.

In R v Turnbull [1977] QB 224 (key case), the Court of Appeal issued guidelines to be followed in all cases where the case against the accused depended wholly or substantially on evidence of identification which the suspect alleged to be mistaken. In Turnbull, the Court of Appeal gave guidance:

• on what a judge should say to a jury when a case depended wholly or substantially on disputed identification evidence; and
• to judges on when identification evidence can safely be left to the jury and when a case must be withdrawn to protect the defendant from an unsafe conviction.

Question 4

When should a Turnbull direction be given?

Answer 4

The Court of Appeal in R v Turnbull prescribed rules to guide judges faced with contested visual identification evidence. A Turnbull direction should be given when the case against the accused depends ‘wholly or substantially’ on the correctness of the visual identification.

In essence this usually means those situations where the defendant was picked out in formal ID procedure but maintains that the witness was mistaken in that identification.

A Turnbull direction should be given even in cases of alleged recognition; many times someone has seen a stranger in the street and thought they recognised them, even when on closer inspection they discover they were wrong.

If presence at the scene is admitted but the defendant disputes their role in an incident, then it is likely that a Turnbull direction will not be required. However, each case turns on its own facts, and the court should be alive in every case to the possibility of a direction being required. This should be discussed between judge and advocates in the absence of the jury prior to speeches and summing up.

Question 5

What is a Turnbull direction?

Answer 5

The guidelines are aimed at assessing the quality of the identification. Where the case against an accused person depends wholly or substantially on the correctness of an identification of the accused which the defence allege is mistaken:

• The judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification, whenever the prosecution case against an accused depends wholly or substantially:
• on the correctness of one or more identifications of the accused; and
• the defence alleges the identification to be mistaken.
• This special Turnbull warning has three key elements. The judge should:
• instruct the jury as to the reason for the need for such a warning; mistaken witnesses can be convincing ones.
• direct the jury to examine the circumstances in which the identification by each witness came to be made.
• remind the jury of any specific weaknesses in the identification evidence.

Question 6

Other evidence supporting the identification

Answer 6

Other evidence supporting the identification

The trial judge will direct the jury to consider if there is any other evidence to support the correctness of the identification. The trial judge should identify to the jury the evidence capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might consider to be supporting when it did not have this quality, the judge should say so.

Evidence capable of supporting the identification includes:

• Scientific evidence, for example footwear, facial mapping, telephone evidence
• Multiple identifications by different witnesses (as long as the identifications are of sufficient quality so as to be left to the jury to assess)
• The accused’s bad character or previous convictions (if admissible)
• The accused’s silence on interview (if it is proper for an adverse inference to be drawn)
• The accused’s admissions at the scene / in interview / in the witness box

Question 7

Withdrawing the case from the jury

Answer 7

Judges are also required to examine the state of identification evidence at the close of the prosecution case and to stop the case if it is poor and unsupported.

In cases of visual identification, the judge must answer two principal questions:

• What is the quality of the identification evidence?
• Is there other evidence to support the correctness of the identification?

In assessing the quality of the identification evidence, the judge will need to consider lighting, distance, length of time of observation and qualities relating to the witness themselves, such as their eyesight.

Question 8

Assessing the quality of visual identification evidence

Answer 8

· A- Amount of time under observation- How long did the witness have the accused in view?

· D- Distance- What was the distance between the witness and the accused?

· V- Visibility- What was the visibility like at the time?

· K- Known or seen before- Had the witness ever seen the accuses before? If so, where and when?

· A- Any reason to remember- Did the witness have any special reason for remembering the accused?

· T-Time lapse- How long has elapsed between the witness seeing the accused and the ID procedure being held?

· E- Error or material discrepancy- Are the any errors or material discrepancies between the first description given by the witness and the actual appearance of the accused?

Question 9

Quality of identification evidence

Answer 9

• When the quality of the identification is good, the jury can be safely left to assess the value of the identifying evidence, regardless of whether there is other evidence to support it: provided always, however, that an adequate warning has been given about the special need for caution.
• When the quality of the identifying evidence is poor – i.e. a fleeting glance or an observation made in difficult conditions – the judge should consider whether there is other evidence to support the correctness of the identification.
• If there is not, the judge should withdraw the case from the jury and direct an acquittal.
• If there is some supporting evidence, for example scientific evidence, then the judge can leave the weak identification to the jury to be assessed alongside the supporting evidence.

Question 10

Dock identification

Answer 10

• Identification of the defendant by a witness for the first time in court (a ‘dock identification’) is exceptional and rare.
• It is an undesirable practice, as it leaves the witness with no other alternative than the defendant and the fact that the defendant is already standing in the dock is highly prejudicial.
• A well-meaning witness may simply assume that the person responsible for the crime is the defendant because it is the defendant in the dock.
• A trial judge retains a discretion to permit a dock identification. In considering this, the judge will need to consider whether such a course of conduct will jeopardise the fairness of the accused’s trial. For example, in a case of alleged recognition, the judge may be of the view that it would not be unjust to allow a dock identification.

Question 11

What are the four key aspects of making an application to exclude confessions?

Answer 11

• advance notification;
• timing;
• voir dire; and
• submissions.

Question 12

Advance notification

Answer 12

Criminal Procedure and Investigations Act 1996, section 6A requires that a defence statement (optional in a magistrates’ court and mandatory in the Crown Court cases only) should include any points of law, including any point as to the admissibility of evidence. At the Plea and Trial Preparation Hearing or Further Case Management Hearing at the Crown Court, the judge will review the Defence Statement and is likely to order, with time limits, the defence to serve a skeleton argument in support of any s.76/78 arguments and the prosecution to serve a response to the same. The judge will also direct when the arguments will be heard.

When dealing with case management in a magistrates’ court, standard case preparation time limits require any defence skeleton argument in support at least 10 business days before trial and the prosecution response 5 business days after that. It should be noted that these time limits are contained on the magistrates’ court ‘Preparation for Effective Trial’ form and not within any specific criminal procedure rule, although Criminal Procedure Rule 1.1 contains the ‘overriding objective’ which includes dealing with cases efficiently and expeditiously.

Question 13

Timing

Answer 13

In the Crown Court, the application to exclude the confession can be made at a pre-trial hearing listed specifically for this purpose or it can be dealt with just prior to opening the case to the jury (and in the absence of the jury).

Making an application prior to trial would be most suitable either if the prosecution needs to know if the confession is admissible or not in order to open its case in a full and meaningful way, or if the result of the legal argument will be decisive as to whether the prosecution can continue with its case, such as where the confession is the only significant evidence in its possession.

Alternatively, the application can be made during the trial itself where there is no pressing need to deal with it at the outset. When the prosecution is on notice that the defence are challenging the admissibility of evidence, it is incumbent on it not to adduce that evidence before the court or to refer to it in an opening speech.

In a magistrates’ court, any application under s.76 should be dealt with as a preliminary issue.

Voir dire

Where a challenge is raised under s.76(2)(a) and/or (b) the prosecution must prove beyond reasonable doubt that the confession was not obtained by:

(a) oppression; and/or

(b) by anything said or done which was likely in the circumstances to render any confession unreliable.

Where the facts on both sides are disputed the judge will have to make findings of fact. This is done by way of a hearing called a voir dire (also known as a ‘trial within a trial’) where evidence is called.

During the voir dire the prosecution will call its evidence. The defence likewise are entitled to call evidence on a voir dire. Having heard the evidence, the judge will then resolve the disputed facts before ruling on the admissibility of a confession. A voir dire takes place in open court in the presence of the defendant and (when taking place in the Crown Court) in the absence of the jury.

If a judge fails to resolve disputed facts on a voir dire before ruling on the admissibility of a confession, even where not specifically invited to do so, any resulting conviction is likely to be quashed because it is logically impossible for a judge to be satisfied that the prosecution has proved beyond reasonable doubt that a confession has not been or might not have been obtained by either of the means set out in s.76(2)(a) or(b) if the judge has heard no evidence either way.

In a magistrates’ court, the magistrates should consider an application under s.76 as a preliminary issue and should, where the relevant evidence is in dispute, hear evidence to resolve the matter. If they decide to exclude the evidence, they are then (being judges of both fact and law) required to exclude from their minds the excluded confession evidence, a ‘position in which justices are commonly placed and one with which they are well capable of coping both by training and by disposition.’ (Hayter v L [1998] 1 WLR 854, QBD, Poole J.). In a magistrates’ court, where the application is under both s.76 and s.78 and the evidence is disputed, the magistrates should hear evidence on the matter and decide the applications as a preliminary issue. If, however, the application in a magistrates’ court is only under s.78, the magistrates have a discretion to hear all the evidence in the usual way and decide upon its admissibility at a later stage.

In the Crown Court a voir dire is required where the application is made under s.76 (or both s.76 and s.78) and the evidence founding the application is in dispute.

Question 14

Submissions

Answer 14

A voir dire is only required if a factual matter relating to the substance of the legal argument requires resolution for the argument to proceed.

If the background facts are agreed then there is no need for a voir dire and the legal argument can be made on the agreed factual basis.

For example, where the defence rely for their s.76 argument on Code C breaches and the prosecution agrees these breaches occurred (but simply wish to argue they do not amount to oppression/unreliability), there will be no need for the prosecution to call evidence. At the hearing the defence will make their submissions on s.76 and, should they wish, s.78. They will do this orally, relying also on any previously submitted skeleton argument. The prosecution will respond, first making submissions to demonstrate beyond reasonable doubt that the confession was not obtained within s.76(2)(a) or(b) and, secondly, to deal with any defence s.78 arguments. Having considered the submissions, the judge would then make a ruling in open court.

If the ruling was to exclude the confession, the prosecution could not refer to it during the trial. If the effect of an excluded confession was to deprive the prosecution of its only real evidence in the case, it would have no option but to offer no evidence against the defendant which would result in a ‘not guilty’ verdict being entered.

If the judge concluded that the confession was admissible, the prosecution would be entitled to adduce it. However, this would not deprive a defendant of raising the same issues before a jury. For example, a defendant suggests that their confession was unreliable because of threats during interview. A voir dire is held and the interviewing officers give evidence. The defendant also gives evidence. The defence and prosecution make their submissions. Having listened to the evidence and submissions, the judge is sure that the threat did not occur. The judge is sure s.76(2)(a) and(b) do not apply and the judge also refuses to exclude the confession under s.78. As such, the prosecution can adduce the confession. In these circumstances the defence can still put the same allegations (namely the threats) to the police during the trial itself. It will then be for the jury (who are the judges of the facts) to decide whether they consider this to be a confession they can actually rely upon.

Question 15

How is the crown court different from the magistrate’s court?

Answer 15

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.

It is worth noting at this stage that the court clerk in the Crown Court is not the same as the 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 element) where trials by a judge alone can take place.

Question 16

Which judges sit in the crown court?

Answer 16

• 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 part-time 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.

Question 17

What is the role of the judge in the crown court?

Answer 17

• 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 (e.g. 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.

Question 18

What is the role of the jury in the crown court?

Answer 18

• 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.

Question 19

What is the Crown Court Trial Procedure?

Answer 19

(1) Legal arguments

(2) Jury selection and swearing in the jury

(3) Judge’s preliminary instructions to the jury

(4) Prosecution opening speech

(5) Defence identify matters in issue

(6) Prosecution evidence

(7) Conclusion of the prosecution case

(8) Submission of no case to answer

(9) Right to give evidence and adverse inferences

(10) Defence opening speech

(11) Defence evidence

(12) Legal discussions

(13) Closing speeches

(14) Judge’s summing up

(15) Jury bailiffs sworn and jury retire

(16) Verdict

Question 20

Legal arguments

Answer 20

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.

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 or78 Police and Criminal Evidence Act 1984; and
• abuse of process applications.

Question 21

Jury selection and swearing in the jury

Answer 21

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.

Question 22

Judge’s preliminary instructions to the jury

Answer 22

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.

Question 23

Prosecution opening speech

Answer 23

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.

Question 24

Defence identify matters in issue

Answer 24

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 (i.e. what precisely is in dispute).

Question 25

Prosecution evidence

Answer 25

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.

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.

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.

Conclusion of the prosecution case

The case for the Crown is concluded.

Question 26

Submission of no case to answer

Answer 26

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.

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].

Question 27

Defendant’s right to give evidence or not

Answer 27

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?’

If the legal representative says the defendant has been so advised the case can proceed; if the defendant has not been so advised the case will be adjourned briefly for the advice to be given.

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 (key legislation).

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.

Question 28

Defence opening speech

Answer 28

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.

Question 29

Defence evidence

Answer 29

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.

Question 30

Legal discussions

Answer 30

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.

Question 31

Closing speeches

Answer 31

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.

Question 32

The judge’s summing up

Answer 32

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.

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.

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

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.

Question 33

What must the jury do after the judge’s summing up?

Answer 33

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.

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.

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.

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.

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.

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’.

Question 34

How might the jury decide?

Answer 34

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.

Verdicts

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.

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.