Topic 12 - Trial

Question 1

What are the four preliminary issues relating to witnesses?

Answer 1

• Competence
• Compellability
• Expert evidence
• Privilege

These issues are critical for understanding the role and limitations of witnesses in court.

Question 2

What does competence of a witness refer to?

Answer 2

Whether the witness is permitted to give evidence to the court

A witness is considered competent if they may lawfully be called to testify.

Question 3

Who is not a competent witness for the prosecution?

Answer 3

The defendant

Defendants can only give evidence on their own behalf or on behalf of a co-defendant.

Question 4

What is the determining factor for a child’s competence as a witness?

Answer 4

Whether the child can understand questions and give comprehensible answers

Age itself is not the determining factor.

Question 5

Can spouses or civil partners of a defendant give evidence?

Answer 5

Yes, they are competent to give evidence for any party in the case

They can be compelled to give evidence against their partner in specific circumstances.

Question 6

What is compellability in the context of witnesses?

Answer 6

Whether a witness can be compelled to give evidence

Not all witnesses can be compelled, with specific exceptions.

Question 7

In what circumstances can spouses be compelled to give evidence for the prosecution?

Answer 7

• Assault or threat of injury to their spouse
• Assault or threat of injury to a child under 16
• A sexual offence against someone under 16
• Attempts, conspiring, aiding and abetting any of the above

This reflects the seriousness of domestic violence and child protection.

Question 8

What type of evidence are witnesses generally called to provide?

Answer 8

Witnesses of fact

Expert opinions are only permitted under specific conditions.

Question 9

What is a common example of an admissible non-expert opinion?

Answer 9

An opinion as to drunkenness

Witnesses can express factual observations indicative of a person’s state.

Question 10

What types of issues typically require expert evidence?

Answer 10

• Technical matters of science
• Medicine
• Psychology

Experts offer opinions based on their specialized knowledge.

Question 11

What is legal professional privilege?

Answer 11

The privilege that exists when a client communicates with a lawyer

It ensures confidentiality in legal advice and proceedings.

Question 12

What are the two sub-divisions of legal professional privilege?

Answer 12

• Litigation privilege
• Advice privilege

Each has different rules regarding third-party communications.

Question 13

What must happen for a witness to claim privilege against self-incrimination?

Answer 13

They must refuse to answer questions or disclose documents that could incriminate themselves

This privilege does not extend to protecting another person.

Question 14

What is a summary trial?

Answer 14

A trial that takes place in the magistrates’ court

It involves either ‘summary only’ offences or ‘either-way’ offences.

Question 15

Who presides over summary trials?

Answer 15

A bench of at least two lay magistrates or a single District Judge

District Judges are professional lawyers, while lay magistrates are unpaid volunteers.

Question 16

What is the role of the authorised court officer in a summary trial?

Answer 16

To assist justices of the peace with relevant law and procedure

They do not participate in deciding the verdict.

Question 17

What are the procedural steps in a summary trial?

Answer 17

• Legal arguments
• Prosecution opening speech
• Defence identifies matters in issue
• Prosecution evidence
• Conclusion of the prosecution case
• Submission of no case to answer
• Right to give evidence & adverse inferences
• Defence evidence
• Prosecution closing speech
• Defence closing speech
• Legal advice to magistrates
• Verdict

These steps outline how a summary trial is conducted.

Question 18

What is the verdict process in a summary trial?

Answer 18

Magistrates or District Judge retire to consider the verdict

If guilty, the court must provide reasons for the decision.

Question 19

What characterizes a trial in the Crown Court?

Answer 19

It takes place before a judge and a jury

There are exceptions where trials can occur with a judge alone.

Question 20

What must a court provide if a guilty verdict is reached?

Answer 20

Sufficient reasons to explain the decision

This is in accordance with CrimPR r.24.3(5)

Question 21

What is a Crown Court trial also known as?

Answer 21

‘Trials on indictment’

Because the cases tried in the Crown Court are ‘indictable’ offences.

Question 22

Who are the judges that sit in the Crown Court?

Answer 22

• Circuit Judges
• Recorders
• High Court Judges

Question 23

What are the robes worn by Circuit Judges in the Crown Court?

Answer 23

Violet and black robe with a red tippet over their left shoulder

Question 24

What types of offences does the Crown Court try?

Answer 24

• Either-way offences
• Indictable only offences

Question 25

What is the only court where indictable only offences can be tried?

Answer 25

The Crown Court

Question 26

What is the significance of the jury in the Crown Court?

Answer 26

There must be a jury of 12 people

Question 27

What is a key difference between a Crown Court and a magistrates' court?

Answer 27

Crown Court incorporates space for a jury and is larger

Question 28

What is the role of the Crown Court Clerk?

Answer 28

Responsible for duties relating to the jury and arraigning defendants, but not legally qualified

Question 29

What is the first procedural step in a Crown Court trial?

Answer 29

Legal arguments

Question 30

What does CrimPR r.25.9(2)(c) require the defence to do?

Answer 30

Identify matters in issue

Question 31

What is the purpose of the prosecution's opening speech?

Answer 31

To summarise the prosecution case and outline facts likely to be in dispute

Question 32

What must happen after the conclusion of the prosecution case?

Answer 32

Submission of no case to answer may occur

Question 33

What does CrimPR r.25.9(2)(f) state about a defendant's right to give evidence?

Answer 33

The judge must confirm the defendant intends to give evidence

Question 34

In what circumstance can the defence opening speech occur?

Answer 34

If the defendant intends to call at least one witness

Question 35

What happens during the judge's summing up?

Answer 35

The judge summarizes the case for the jury

Question 36

What does Section 11 of the Magistrates' Courts Act (MCA) 1980 allow?

Answer 36

Magistrates' court to proceed to try an absent defendant

Question 37

What must the court consider before proceeding in the absence of a defendant?

Answer 37

If there is an acceptable reason for the absence

Question 38

What is a potential consequence for a defendant who fails to attend trial on bail?

Answer 38

A warrant can be issued for their arrest

Question 39

What does CrimPR r.25.2(1)(b) state about proceeding with a trial in the absence of the defendant?

Answer 39

The court must be satisfied that the defendant waived the right to attend

Question 40

What happens if a trial proceeds in the absence of a defendant?

Answer 40

The judge must warn the jury not to hold the absence against the defendant

Question 41

What assistance does the court provide to unrepresented defendants?

Answer 41

Explaining trial stages and rights

Question 42

What is required from witnesses before giving evidence?

Answer 42

They must take an oath or make an affirmation

Question 43

What is the general rule regarding examination in chief?

Answer 43

Questions should be non-leading

Question 44

What is one way a witness can refresh their memory?

Answer 44

By looking at their written statement

Question 45

What is a consequence of refusing to take an oath or affirmation?

Answer 45

It can be punished as contempt of court

Question 46

What does the Youth Justice and Criminal Evidence Act, s.55 state about children and witnesses of unsound mind?

Answer 46

They may give evidence without taking an oath if they understand the responsibility to tell the truth

Question 47

What is the test for determining if children or those of unsound mind can give evidence?

Answer 47

Sufficient appreciation of the solemnity of the occasion

Question 48

What does the Criminal Justice Act, s.139 provide regarding witness memory?

Answer 48

It allows witnesses to refresh their memory and gives significantly better recollection than without it. ## Footnote This section emphasizes the importance of witnesses recalling from memory rather than simply reading statements.

Question 49

What should be ensured when witnesses read statements to refresh their memory?

Answer 49

Evidence should be given from a recovered memory rather than by simply reading out the statements.

Question 50

In what situation may a dyslexic witness prefer to read their statement?

Answer 50

In a quiet room rather than in the witness box.

Question 51

What happens when a witness refreshes their memory during cross-examination?

Answer 51

They may be cross-examined on the contents of the statement used to refresh their memory without the statement being admitted into evidence.

Question 52

What is a hostile witness?

Answer 52

A witness who indicates they will not provide evidence that could assist the prosecution, often under pressure from the offender.

Question 53

What can happen if a witness gives an inconsistent account from their original statement?

Answer 53

The party calling the witness may apply to the Judge to treat them as hostile.

Question 54

What is the general principle regarding the reliability of repeated allegations by a witness?

Answer 54

An allegation does not become more reliable simply because it is repeated numerous times.

Question 55

What does s.120 of the Criminal Justice Act 2003 change about consistent statements?

Answer 55

It allows for the admissibility of earlier consistent complaints or statements.

Question 56

What is res gestae in legal terms?

Answer 56

A statement made as an immediate reaction to a crime being committed against the statement maker.

Question 57

Why are immediate reactions admissible in court?

Answer 57

Because they are spontaneous and not likely to be fabricated.

Question 58

What does the doctrine of recent complaint imply?

Answer 58

The quicker someone complains about an allegation, the more likely the complaint is to be reliable.

Question 59

What is permitted if a witness is challenged about recent fabrication?

Answer 59

The witness can show that an earlier statement was made to counter the allegation.

Question 60

What is the principle regarding leading questions in cross-examination?

Answer 60

Advocates may ask leading questions, but witnesses should generally only deal in facts.

Question 61

What case established the principle that witnesses' accounts must be challenged?

Answer 61

Browne v Dunn [1893] 6 R 67, HL.

Question 62

What is the status of police witness statements in court?

Answer 62

They are generally classified as hearsay and not admitted unless certain conditions are met.

Question 63

What are the restrictions on cross-examination regarding victims of sexual offences?

Answer 63

Questions about the victim's promiscuity or sexual behavior are not allowed without court leave.

Question 64

What does the rule of finality to collateral matters prevent?

Answer 64

It prevents trials from becoming mired in insignificant disputes about credibility related to collateral issues.

Question 65

What can the party calling a witness do if new matters are raised in cross-examination?

Answer 65

They may ask further questions in re-examination, following the same rules as examination in chief.

Question 66

Fill in the blank: The responses of suspects to police allegations are _______.

Answer 66

admissible.

Question 67

What must be considered when using earlier consistent statements under s.120 CJA 2003?

Answer 67

Whether the earlier statement can be used to prove its truth or only the consistency of the person who made it.