Trial II

Question 1

SUMMARY TRIALS

What are summary trials and what offences do they involve?

Answer 1

Trials in the magistrates’ - will involve…

• Summary only offences (only triable in magistrates); or
• Either way offences (where magistrates’ have retained jurisdiction following allocation procedure)

Question 2

SUMMARY TRIALS

What is the same regardless of the court?

Answer 2

• Burdens of proof
• Rules on admissibility of evidence
• Possible inferences that can be drawn
• How witnesses give evidence and which witnesses
• The order of evidence

Question 3

SUMMARY TRIALS

What is the significance of a trial being adversarial?

Answer 3

Prosecution always open case (carries the evidential and legal burden)

Question 4

SUMMARY TRIALS

Who makes up the bench in a summary trial? What are they the judges of?

Answer 4

• At least 2 (usually 3) lay magistrates’ or single District Judge
• Are the judges of both fact and law

District Judge = professional lawyer
Lay magistrates = unpaid volunteers who receive training to help them with law/procedure (and have legal adviser)

Question 5

SUMMARY TRIALS

What does the authorised court officer do and not do? When must they be present?

AKA justices’ clerk, court clerk, legal adviser

Answer 5

• Does provide assistance to justices of peace with relevant law and procedure
• Does not take part in deciding upon verdict in summary trial

Must be present during trial judged by bench of lay magistrates (but not in summary trial presided over by District Judge)

Question 6

SUMMARY TRIALS

What is the procedure of a summary trial?

Answer 6

1. Legal arguments would be heard before trial starts/during (e.g. s78 applications)
2. Prosecution opening speech (summarise prosecution case, identify relevant facts)
3. Defence identify matters in issue (where it would help the bench)
4. Prosecution evidence (call witnesses, read statements if agreed/successful application under hearsay)
5. Conclusion of prosecution case
6. Submission of no case to answer (D’s application/court’s own initiative)
7. Right to give evidence and adverse inferences (D informed of right to give evidence and potential effect of not doing so)
8. Defence evidence
9. Prosecution closing speech
10. Defence closing speech
11. Legal advice (legal adviser advises magistrates in open court on any matter; rarely needed for DJ)
12. Magistrates/District Judge retire to consider verdict (any advice given here to be repeated in open court)
13. Verdict (announced in open court)

Question 7

SUMMARY TRIALS

Will there always be a prosecution and defence closing speech?

Answer 7

• Prosecution = only if D represented or as introduced evidence other than prosecution’s own
• Defence = always

Question 8

SUMMARY TRIALS

What happens if disagreement between magistrates?

Answer 8

• Between 3 = majority prevails
• Between 2 = adjourn case for rehearing before new bench

Question 9

TRIALS ON INDICTMENT

What are ‘trials on indictment’?

Answer 9

Another way of saying Crown Court trials

Question 10

TRIALS ON INDICTMENT

What offences are tried on indictment?

Answer 10

Either-way (magistrates’ consider sentencing powers insufficient / D has elected) or indictable only

Question 11

TRIALS ON INDICTMENT

How is the physical layout of Crown Court different from magistrates’?

Answer 11

• Space for 12 jurors
• Space for public to watch/legal reps to sit

Question 12

TRIALS ON INDICTMENT

How is a court clerk in Crown different from authorised officer in magistrates’?

Answer 12

Court clerk is not legally qualified and does not give advice, but responsible for selecting/taking verdicts from jury and arraigning Ds

Question 13

TRIALS ON INDICTMENT

What judges sit in the Crown?

Answer 13

• Circuit Judges (your honour)
• Recorders (your honour)
• High Court Judges (My Lord, My Lady)

Question 14

TRIALS ON INDICTMENT

How do the roles of the judge and jury differ?

Answer 14

Judge
* Arbiter of law
* Makes rulings on admissibility of evidence (w/o jury)
* Directs jury on matters of law (what must be proved)

Jury
* Arbiter of facts
* Decides whether D guilty
* Accepts and applies judge’s directios about law
* Reaches decisions only based on evidence it hears in court

Question 15

TRIALS ON INDICTMENT

Can a judge direct a jury to find a D guilty?

Answer 15

No! But can direct a jury to find a D not guilty (e.g. following successful submission of no case to answer)

Question 16

TRIALS ON INDICTMENT

What is the Crown Court trial procedure?

Answer 16

1. Legal arguments
2. Jury selection and swearing them in
3. Judge’s preliminary instructions to jury
4. Prosecution opening speech
5. Defence identify matters in issue
6. Prosecution evidence
7. Conclusion of 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 17

TRIALS ON INDICTMENT

What ‘legal arguments’ will be heard and when?

First stage in the process

Answer 17

• Applications of bad character, hearsay applications, exclusion applications etc.
• Can be in a pre-trial hearing before trial judge or on the first day(s) of the trial

Voir dire where requested (factual dispute)

Question 18

TRIALS ON INDICTMENT

Where are 12 jurors chosen from? What right does D have in the jury selection process?

Answer 18

• 12 chosen from ‘jury of panel’ [16 people]
• D is told of right to object to any juror when full

Question 19

TRIALS ON INDICTMENT

What preliminary instructions will the judge give to the jury?

Answer 19

Will tell jury…

• Evidence presented in court is that on which they decide case
• Cannot discuss evidence with anyone who has not heard evidence and may have a view
• Matters of law are for judge alone

Question 20

TRIALS ON INDICTMENT

What will prosecution say in opening speech? Will defence always identify matters in issue after?

Answer 20

• Prosecution say what case is about, the areas of dispute, counts D faces and why D is guilty of offence
• Defence may be invited by judge to clarify issues to help jury understand

Question 21

TRIALS ON INDICTMENT

At the ‘prosecution evidence’ stage, will all prosecution witnesses give live evidence? What happens in this stage?

Defence witnesses = witnesses the the defence asked to be called

Answer 21

• Only those whose witness statements the defence has a dispute with (disagrees with) - otherwise prosecution will just read out the prosecution witnesses’ statements
• Prosecution witnesses present taken through evidence in chief - then cross-examined by D’s legal rep

No point calling witness to give live evidence if defence has no dispute with their witness statement

Question 22

TRIALS ON INDICTMENT

How will D’s ‘record of taped interview’ (ROTI) with police be presented in court? What happens if D has made a no comment interview?

Answer 22

• Will be in edited form containing Q&As - copy given to jury and prosecution reads out
• No comment interview = instead of giving ROTI, prosecution present written admissions stating D what was asked about and that D replied no comment to all (allows jury to consider whether proper to draw AI)

Question 23

TRIALS ON INDICTMENT

At the ‘submission of no case to answer’ stage (half time submission), on what ground would D apply/judge direct jury on own initiative to acquit? What must prosecution have the opportunity to do?

Answer 23

• That prosecution evidence is insufficient for any reasonable court to convict
• Prosecution must have opportunity to make representation

Submission made in accordance with R v Galbraith test:
1. there is no evidence that a crime has been committed by the defendant; or
2. there is some evidence before the court, but it is tenuous or inconsistent in nature

Question 24

TRIALS ON INDICTMENT

What does the “D’s right to give evidence or not” stage entail?

Answer 24

Judge will ask D’s legal representative in presence of jury if D will give evidence

Question 25

# **TRIALS ON INDICTMENT** What happens if legal representative says yes or no to whether D is giving evidence?

Answer 25

* Yes = case proceeds * No = judge asks if D has been advised of AIs from D's failure to give evidence (yes = case proceeds, no = adjourned for advice to be given)

Question 26

# **TRIALS ON INDICTMENT** Is there any obligation for D to give evidence?

Answer 26

No, but failure to do so can result in AI being drawn ## Footnote D should be advised to give evidence, but if not it should be **recorded in writing** that D has received advice and has decided freely not to testify

Question 27

# **TRIALS ON INDICTMENT** When does defence have the right to make an opening speech?

Answer 27

Only if one or more defence witnesses (other than D) will be called to give factual evidence

Question 28

# **TRIALS ON INDICTMENT** What happens at the defence evidence stage?

Answer 28

* If D chooses to give evidence, advocate will take them through evidence in chief, followed by cross-examination by any other Ds/prosecution * Any other defence witnesses examined in chief, cross-examined, and re-examined

Question 29

# **TRIALS ON INDICTMENT** What happens at the 'legal discussions' stage?

Answer 29

Jury is sent out allowing judge, prosecution and defence to consider matters of law to be raised in judge's summing up (to form part of directions on law to jury) ## Footnote Convenient way to ensure any problems are ironed out prior to speeches and summing up - so appeal less likely in event of conviction

Question 30

# **TRIALS ON INDICTMENT** Can both the prosecution and defence **always** make a closing speech?

Answer 30

* Prosecution can where D legally represented, D hs called at last one defence witness, or where court otherwise permits * Defence always can (after prosecution's)

Question 31

# **TRIALS ON INDICTMENT** What are the two parts of a judge's 'summing up'?

Answer 31

1. The law (judge deals with necessary legal directions) 2. The facts (judge sums up prosecution and defence cases) ## Footnote Both sides to be alert to any errors in summing up and draw judge's attention

Question 32

# **TRIALS ON INDICTMENT** What does judge deal with when summing up?

Answer 32

* Burden/standard of proof * Ingredients of offence and any defences * Written route to verdict * Electing foreman * Tells jury can only accept a unanimous verdict To assist jury: * Reminder of issues * Summary of nature of evidence relating to each isue * Balanced account of points raised by parties * Outstanding directions

Question 33

# **TRIALS ON INDICTMENT** What do jury bailiffs swear/affirm to do?

Answer 33

Keep jury in private and convenient place and not allow anyone to speak with them **without leave of court other than to ask if they have reached verdict** ## Footnote Court ushers become bailiffs once taking the oath

Question 34

# **TRIALS ON INDICTMENT** Where to the jury go and what if they have questions?

Answer 34

* To retirement room to deliberate verdict * Can give note to jury bailiff who will pass to judge if asking a question

Question 35

# **TRIALS ON INDICTMENT** When will a majority verdict (not unanimous) be accepted?

Answer 35

Not unless it appears to court that jury have had such period time for deliberation as court thinks reasonable having regard to. nature/complexity of case | Can be days for some cases ## Footnote Time in rules is 2 hours 10 minutes minimum

Question 36

# **TRIALS ON INDICTMENT** What happens if the jury say that accused is guilty/not guilty?

Answer 36

* Guilty = sentenced immediately **or** case adjourned if reports are required to assist with sentencing * Not guilty = D acquitted; free to leave if no further matters facing D

Question 37

# **TRIALS ON INDICTMENT** Can juries ever convict of alternative offences?

Answer 37

In certain circumstances where a lesser offence is an alternative to a count on the indictment e.g. s20 instead of s18