10. Preliminary evidential matters. Tribunals of fact and law Flashcards
Questions of Law and Fact
In a Trial on Indictment: General Principles
As a general rule, questions of law (including practice) are for the judge, and questions of fact for the jury. In trials on indictment without a jury, the judge decides all questions of both law and fact and, if the accused is convicted, must give a judgment which states the reasons for the conviction.
Lay magistrates, when sitting with a judge in the Crown Court, are also judges of the court they should participate in all questions to be determined by the court, including the factual aspect of any question relating to the admissibility of evidence, but must accept the ruling of the judge on any question of law.
In jury trials, questions of law for the judge include those relating to:
(a) where the court has determined that an accused is unfit to plead, whether the accused did the act or made the omission charged as the offence.
(b) challenges to jurors
(c) the discharge of a juror or the whole jury
(d) the competence of persons to give sworn or unsworn evidence
(e) the admissibility of evidence;
(f) the withdrawal of an issue from the jury;
(g) submissions of no case to answer
(h) the numerous issues on which the jury should be directed in the summing-up, such as the substantive law governing the charge, the burden and standard of proof, the use which the jury is entitled to make of the evidence adduced, the operation of any presumptions, the nature of, and any requirement for, corroboration etc.
(i) matters ancillary to the trial itself, such as questions of bail, costs and leave to appeal.
Questions of fact for the jury include:
(a) whether the accused stands mute of malice or by visitation of God;
(b) the credibility of the witnesses called and the weight of the evidence adduced; and
(c) whether, applying the burden and standard of proof applicable to the case, they are satisfied as to the existence or non-existence of the facts in issue.
In jury trials, questions of fact which fall to be determined by the judge are whether the accused is fit to plead the existence or non-existence of preliminary facts, i.e. facts which must be proved or disproved as a condition precedent to the admissibility of certain types of evidence; the sufficiency of evidence (in deciding whether an issue should be withdrawn from the jury); and the evaluation of evidence adduced by the parties (for the purpose of commenting on its weight in summing up to the jury). There are also a number of special cases, dealt with below, in which questions of fact fall to be determined, either wholly or in part, by the judge.
In Summary Trials
In the case of proceedings presided over by lay justices, the justices decide all questions of both law and fact, but on questions of law, including the law of evidence, should seek and accept the advice of the justice’s legal adviser.
In theory, district judges (magistrates’ courts) are in the same position as lay justices. In practice, however, the district judge will be the more experienced lawyer, so that the occasions for asking for advice will be quite rare.
