Trial Procedure in the Magistrates' Court and Crown Court Flashcards
(34 cards)
What are the burden and standard of proof in criminal trials?
Except for diminished responsibility and insanity, burden remains with P throughout the trial
P presents case first and must prove D’s guilty beyond reasonable doubt
D will have the evidential burden to raise some evidence of their defence, for things like alibi and self-defence
In summary, what is the normal order of events for a trial in the MC?
Opening speech by CPS
P’s witnesses will be called to give evidence. Examined in chief by P and cross-examined by D. May be re-examined by P
Possible submission of no case to answer by D’s solicitor
D’s witnesses will be called to give evidence; D themselves being called first. Examined in chief by D and cross-examined by P. May be re-examined by D.
P may make a closing speech
D’s closing speech
Magistrates retire to consider verdict and later deliver the verdict
If guilty
- Sentence immediately; or
- Adjourn sentence if they wish to obtain pre-sentence reports on D
If acquitted
- D formally discharged and free to go
What will happen in the CPS’s opening speech in the MC?
CPS’ advocate’s speech will set the scene, by laying out the factual details about the charge, explaining the relevant substantive law and what is needed for a conviction
They will remind MC of their burden of proof and that MC should acquit if unsure of guilt
They will outline P’s case, which witnesses they intend to call and summarise the evidence the witnesses will give
They might refer MC to relevant points of law which might arise, like Turnbull guidelines or s78 power to exclude evidence
How do the prosecution deal with witnesses during a trial in the MC?
Witnesses aged 14 and over give sworn evidence, so they must take an oath or affirmation, where they promise to tell the truth
First witness is usually the complainant
Questions by P, then D, maybe P again
Witnesses that aren’t called will have their statements read out by the prosecutor
If D interviewed at PS, one of the below will be read or played:
- 1) Summary
- 2) Transcript; or
- 3) Audio recording of interview (if D objects to 1 + 2)
How will arguments on points of law be addressed in a MC trial?
1) If P seeks to place evidence before the court which D’s solicitor considers to be inadmissible, the MC will hold a voir dire to determine the admissibility of the evidence in dispute
Common to dispute:
- Confession (in circumstances rendering it unreliable)
- Visual ID evidence (identification procedure not followed properly)
- Bad character evidence
2) Voir dire involves Ws giving evidence on matters relevant to admissibility of evidence + both sides making legal submissions as to admissibility
- If inadmissible, P cannot make further reference to the evidence
- If admissible, P can rely on it, but D is entitled to undermine it
3) The issue is, MC decides fact and law, so the evidence may be inadmissible, but they are still aware it exists – not the case in CC, as jury won’t know
- To combat this, MC might hold pre-trial hearing with different bench to determine admissibility issues
4) Instead of voir dire, MC may also hear the disputed evidence as part of the trial and deal with the admissibility at no case to answer or when D makes closing submissions
When can a submission of no case to answer be made in the MC?
If P fails to satisfy their burden to justify a finding of guilt, D should make a submission of no case to answer at the end of P’s case, asking MC to dismiss the case
This will be made by D’s solicitor if either is satisfied (Galbraith test):
- P has failed to put forward evidence to prove an essential element of the offence; or
- Evidence produced by P has been so discredited by cross-examination or is so manifestly unreliable, that no reasonable tribunal could safely convict on it
If submission accepted, charge is dismissed; if rejected, case continues, but P cannot call for a conviction at that stage
How challenging is it to make a successful submission of no case to answer?
It is difficult
If the case depends entirely on circumstantial evidence, there would still be a case to answer, unless a reasonable mind could still not reach a conclusion of guilt beyond a reasonable doubt even if evidence accepted and favourable inferences to P drawn
Even weak or tenuous evidence which can prove the charge would therefore prevent a submission of no case to answer
Following P’s case and either no submission or an unsuccessful submission of no case to answer, the defence will present their case.
Discuss how the defendant can act as a witness and the importance of this
1) The defendant is a competent witness for the defence but not compellable
- They can give evidence on their own behalf, but aren’t obliged to
2) D’s solicitor will discuss with D whether they should give evidence in their own defence – usually necessary to discharge evidential burden for defences like alibi or self-defence
- They may incriminate themself or their account might not stand up to cross-examination though
3) Helps credibility if they repeat answers they gave at police station or in a prepared written statement at trial – shows consistent defence
May be an adverse inference drawn from failure to give evidence on own behalf (s35)
In what order are the defence’s witnesses called to give evidence in trial?
Defendant must be called first so they don’t tailor their testimony to take account of other witnesses’ comments
- All other witnesses not allowed in court, for either side, until D has testified
D questions each witness, then cross-examination, then potential re-examination by D
Can both sides do a closing speech? What should be included in an effective closing speech?
1) If P makes a closing speech, in both MC and CC trials, it happens before the defence’s closing speech
- They should only make one in more complex cases if it will assist the court
2) D has a choice too, but will almost always make a closing speech to have the last word, summarise the defence’s case and point out flaws in P’s case
It should:
- Be short and to the point
- Remind MC that all that is needed for an acquittal is for the prosecution to have failed to prove its case beyond a reasonable doubt – no need to prove D is innocent
- Point out flaws in prosecution case based on what they set out to do in the opening speech
- Cover evidential issues (Turnbull warnings, (disputed confession evidence and bad character evidence - undermine the credibility/significance of these last two))
- Persuade the MC to conclude that the only appropriate verdict is one of not guilty
How will the verdict be reached and delivered in the MC?
1) MC makes decisions by majority, not unanimity (bench of 3 magistrates)
2) If guilty, they may sentence immediately or adjourn if they wish to obtain medical or other pre-sentence reports
- If sentenced immediately, D’s solicitor will deliver a plea in mitigation prior to sentence
- If adjourned, a bail decision is made
- D can appeal against conviction/sentence to CC
3) If not guilty, they are formally discharged and told they are free to go
How are the roles of judge and jury split in the CC?
Jury decides matters of fact and decides guilt/innocence
Judge resolves any disputes over points of law and directs the jury on the relevant law + sentences D in the event of a finding of guilt
A defendant can change their plea from not guilty to guilty at any time before verdict, at the judge’s discretion.
When can a defendant change their guilty plea to not guilty?
If D wishes to change their guilty plea to not guilty, they must apply, in writing, ASAP after becoming aware of the grounds for making such an application to change a plea of guilty
- Similar procedure in the MC
Although the order of events in the CC is similar to the MC, there are some differences.
To begin with, how are the jury selected?
Jury is sworn in (empanelled) - takes place after D is arraigned and they only know about the not guilty pleas
- Random selection of 12, 18–75-year-olds, whose names are on the electoral roll for the local area and have resided in UK for at least 5 years
- Certain people ineligible
Next comes P’s opening speech and their witnesses.
Following this, disputes on points of law may be resolved. How will this be done in the CC?
Any disputes on points of law or relating to admissibility will be resolved at a voir dire, in the absence of the jury
- Often resolved pre-trial when D notifies P of their challenges
- If not resolved before, P won’t mention these items/issues in opening speech + when reached in P’s case, jury dismissed and voir dire held
If inadmissible, jury won’t hear evidence
If admissible, D can still undermine through cross-examination or examining their own witnesses
How does a submission of no case to answer work in the CC?
D may make a submission of no case to answer at end of P’s case, on same grounds as for summary trials (Galbraith test)
Submission made in jury’s absence
- If submission successful, jury will be instructed to return a not guilty verdict
- If submission unsuccessful, judge may allow D to change their plea to guilty
Unlike in the MC, the defence can make an opening speech, but when is this possible?
If D is calling a witness or witnesses other than D themselves, the defence is entitled to give an opening speech
- Not entitled if only the defendant is giving evidence
Next comes D’s witnesses and a closing speech from both sides, CPS first.
The judge will give a summing up of the trial to the jury after the closing speeches. What is covered in the summing up?
They will give directions on the law and a summary of the evidence
On the law, they cover 3 areas:
- Burden and standard of proof
- Legal requirements of the offence; and
- Any other issues of law and evidence (Turnbull warning or directions re adverse inferences etc)
On summarising the evidence, they will provide:
- Succinct summary of the issues of fact that the jury must decide
- Accurate and concise summary of the evidence and arguments on both sides
- Correct statement of the inferences the jury is entitled to draw
Judge will tell jury to appoint a foreperson and will instruct them to reach a unanimous conclusion
How do the jury reach their verdict?
Jury deliberations are secret + they cannot discuss the case with anyone other than a fellow juror
- Majority of 11:1 or 10:2 OK if unanimity impossible after at least 2 hours and 10 minutes
- If any jurors discharged, leaving 9, only unanimity is accepted
If the jury cannot reach a verdict within a reasonable time, they will be discharged and there will likely be a retrial before a new jury
What will the outcome of the verdict be in the CC?
1) If jury finds D not guilty, D is discharged and costs usually paid by state, if D not funded by representation order
2) If D found guilty, judge will either sentence immediately or adjourn to obtain pre-sentence reports
- If they adjourn, they will make a bail decision
- For serious offences, likely to remand due to concerns that D would fail to surrender to custody
What are some key modes of address and tips for court room etiquette?
1) Modes of address:
- Chairperson of MC – addressed using ‘Sir’ or ‘Madam’
- Trial before district judge – addressed using ‘Sir’ or ‘Madam’
- Trial in CC – address judge as ‘Your Honour’
- Opposing advocate – addressed using ‘my learned friend’
2) Etiquette:
Bow to judge or MC on entering or leaving court
Stand when judge or MC enters or leaves
Stand when addressing court or examining witnesses, unless:
- Dealing with videolink for D or W or the advocate appears over videolink
- Dealing with secure link for W, normally due to special measures
- Representing a juvenile client in youth court
- Making a bail appeal before a judge in chambers in CC
Don’t eat in court + switch electronic devices off
What is the purpose of examination in chief? What type of questions can be asked during this?
Purpose is to allow a witness to tell their story
Advocate must not ask leading questions (questions suggestive of the answer) for the examination-in-chief
- Use open questions instead, like who, what, when, where, how
What is the purpose of cross-examination? What type of questions can be asked during this?
3 main purposes:
1) Put your case to the witness for the other side
- This means suggesting that their version of events is incorrect and suggesting an alternative version
- Must be done, because if D does not put to the victim (for example) that they attacked D first and D attacked in self-defence, D cannot then enter the witness box and claim self-defence later
2) Undermine the credibility of the evidence they gave in examination-in-chief
3) Obtain favourable evidence from the witness that supports your case
Cross-examination is usually done by asking closed or leading questions, to better control what they will say
What is the purpose of re-examination? What type of questions can be asked during this?
Can only re-examine matters that have arisen in cross-examination and only open, non-leading questions are allowed
