2.7 Criminal Litigation - Trial Procedure (Magistrates & Crown Court)

Question 1

What is the trial procedure in Magistrates’ Court?

Answer 1

1) ‘Preparation for Effective Trial’ form
- CPS/D completes at first court hearing (NO guilty plea) > Summary trial
- Form > Issues to be identified (contentious issues, W reqs), potential legal arguments
- CPS/D > Request pre-trial hearing, keep court informed of issues that may affect trial date, actively assist court in fulfilling case mgmt duties

2) CPS’s opening speech
- Likely short
- Brief intro
- Outline of evidence to be called
- To experienced bench (lay magistrates, district judge)

3) CPS’s evidence

W examination
1) CPS examines W
2) D cross-examines W
3) CPS re-examines W
UNLESS W evidence agreed => Read to court (NO need for W to attend)

CPS evidence (exhibits) > Court

4) Submission of no case to answer [R v Galbraith]

NO case to answer (end of CPS’ case)

• Ask court to dismiss case (CPS case not sufficient to allow reasonable tribunal to convict D)
• Successful => Acquit D (NO need to present evidence) + NOT retry D on same offence
• NOT successful => Continue trial

Case to answer (NO submission)

• D is competent (NOT compelling) W for defence
• D will give evidence (call other Ws) > Otherwise court may draw adverse inferences if it considers CPS raised issues calling for D’s explanation

5) Closing speeches
- By D
- By CPS (if D called evidence other than his own)

6) Decision
- 2-3 mags/District Judge will hear case > Retire at end > Consider verdict (NOT substitute for lesser offence, reasons, all or nothing > guilty/NOT guilty)
- Court legal advisor > Advises MC on laws
- MC decides facts + laws

Question 2

What is the trial procedure in Crown Court?

Answer 2

1) First hearing (Plea and Trial Preparation Hearing)
- Allow CC to exercise case mgmt powers
- Require parties to comply w duties

2) ‘Plea and Trial Preparation Form’
- CPS/D to complete
- D is formally arraigned > Guilty plea/NO guilty plea
- Court makes directions > Ensure trial is effective on listed dates/Avoid adjournments

3) Judge + jury preside over trial
- If jury decides D is guilty => Judge to pass sentence (max. life imprisonment/limited by statutes)

4) Types of offences
- EW offences
- Indictable-only + related offences
- Convicted offenders at CC
- Committed for sentence at MC
- Appeals vs conviction/sentence at MC/YC

Question 3

What is the burden of proof?

Answer 3

CPS has legal burden to prove D’s guilt [Woolmington principle]

D has reverse burden of proof

• Actual > Insanity pleaded/Law creates such burden
• Implied > D relies on defence of exception/exemption/proviso/excuse/qualification re offence
• Can challenge if violate Art 6 ECHR (contrary to right to presumption of innocence until guilty is proven) > May ‘read down’ Art 6 so only evidential burden

D has legal burden to prove D’s alibi/positive defence (if D advanced them)

Legal burden

• CPS > Beyond reasonable doubt
• D > Balance of probabilities

Evidential burden (party holding legal burden)
- D to create reasonable doubts in jury's mind (if evidence believed + contradicted)

Formal admissions

• By CPS/D
• NO need for admitted facts to be proven at trial
• Before trial (writing)/At trial (writing/oral)

Question 4

What is the difference between leading and non-leading questions?

Answer 4

CPS/D can elicit supporting evidence from W

Leading qs

• ‘Isn’t it true that…?’
• Suggest particular answer
• NOT ask re matter in issue
• Rep cannot lead W to give answers that Rep wants to hear

Non-leading qs

• Open/Closed qs
• Can start neutrally > Interrogatories (who/what/why/when/how)
• Can start w/ neutral invitation > Explain/describe
• If subject of q agreed => Examination-in-chief can lead
• Advocate can ask leading qs > Elicit denial from W re own alleged actions/conduct

Question 5

What is competence and compellability?

Answer 5

W must be present at court

• Called to testify (except experts/police)
• Refresh memories > Review W statements

Competent to testify
- Presumed > UNLESS challenged > Pre-trial (rare)/PTPH/Trial > May require court hearing expert to have evidence on W’s competency

Compellability

• Made to give evidence
• Otherwise contempt of court/imprisonment

Competent + compellable (D/D’s spouse)

• To give evidence for D (UNLESS jointly charged)
• To give evidence for CPS > D charged w (threat of) assault vs spouse or child under 16 / sexual offence vs child under 16 (UNLESS spouse/civil partner jointly charged) / attempt to conspire/aid/abet/counsel/procure/incite such offences

Question 6

What are special measures?

Answer 6

Affordable to;

• Vulnerable (D < 18 at hearing OR significant physical or mental impairment)
• Intimidated Ws (diminished in quality through fear/distress connected with testifying)
• Ws (sexual offence/violence cases)

Examples

• Give evidence (behind screen/TV live link/privately)
• Removal of wigs/gowns
• Video-recorded evidence/cross or re-examinations
• W exam through intermediary
• Aids to communication
• Anonymous W evidence

Question 7

What is the solicitor’s duty to the court?

Answer 7

Advocacy in Crown Court

• Barristers
• Needs further qualifications > Higher rights of audience
• Otherwise limited to MC appeals, sentencing committals, prelim hearings before arraignment

Instruct counsel

• Draft brief (details, case paper)
• Prepare trial case (tracing, interview Ws, statements, necessary comms w CPS + court)

Question 8

What is the procedure for trial on indictment?

Answer 8

1) Jury empanelment

CPS can uncover info re juror potentially unsuitable

CPS can challenge juror for cause

• D knows juror > Discharge juror
• Bias allegatio > Question juror
• CPS can show present danger of jury tampering

12 jurors selected from pool of jurors available at court

2) CPS opening speech
- Address jury
- Detailed explanation (facts, offence, intent to prove D’s guilt)

3) Call CPS evidence + submission of no case to answer

4) D’s opening speech
- Call Ws to testify (disputed facts, NOT character W)
- Summarise D’s case

5) D’s case

6) Closing speeches
- By D
- By CPS (rare)

7) Judge’s summary
- Rulings of law
- Facts > Jury
- Reiterate burdens +standards of proof
- Review evidence + laws
- Specific directions (Turnbull warnings, draw inferences) => Jury

8) Jury’s verdict
- Retire > Deliberate on verdict
- Request clarification from judges/Ask to see exhibits

Verdict

• Unanimous
• Maj. verdict (10:2) after +2 hours elapsed (in some courts)
• Otherwise hung jury => Retry D => Retry D again (exceptional cases)

Guilty verdict

• Sentence D
• Adjourn matter for pre-sentencing report

NOT guilty verdict
- Discharge D