4. Trial Procedures in Magistrates' and Crown Courts

Question 1

If the defendant opts to give evidence, when will they give it?

Answer 1

Before any other defence witness

Question 2

Please provide a general (9-step) outline regarding the stages of a criminal trial.

Answer 2

Question 3

What is Examination-in-Chief and what is cross-examination

Answer 3

Examination refers to the first questioning of a witness by their own side, e.g., a prosecution witness will first be questioned by the prosecution.

They will then be questioned by the defence (*this is known as cross-examination)

Question 4

What are leading questions and are they allowed to be asked during the Examination-in-Chief?

Answer 4

Leading questions are questions that suggest an answer. Leading questions are only allowed, during examination in chief when asking a witness about the background or agreed issues. Otherwise, leading questions are not allowed.

Question 5

Are leading questions allowed during cross-examination?

Answer 5

Yes. Advocates will frequently use leading questions to put their case to a witness.

Question 6

What does the competence of a witness go to?

Answer 6

Whether they are allowed to give evidence

Question 7

What does the compellability of a witness go to?

Answer 7

Whether they can be forced to give evidence

Question 8

A witness will be deemed to not be competent if they are not able to do what two things?

Answer 8

Unable to:

1. Understand questions put to them as a witness
2. Gives answers which can be understood

Question 9

What is true of all competent witnesses, other than the defendant, the defendant’s spouse/civil partner, and co-defendants?

Answer 9

They are compellable

Question 10

With regard to the defendant’s competence and compellability, what is the situation for the prosecution and defence?

Answer 10

Prosecution:
D is neither competent nor compellable

Defence:
D is competent but not compellable

Question 11

Again however, even though the defendant is not compellable, what can the jury do if they fail to give evidence?

Answer 11

Draw an adverse inference

Question 12

What must generally be true before the jury will hold the failure to give evidence against the defendant?

Answer 12

The jury must think the only sensible explanation for the decision not to give evidence is that the defendant has no answer to the case against them, or no answer that would have stood up to cross examination

Question 13

Can a defendant be convicted solely on an adverse inference?

Answer 13

A defendant cannot be convicted on the basis of an adverse inference from the failure to give evidence alone.

Question 14

With regard to the competence and compellability of the defendant’s spouse or civil partner, what is the situation for the prosecution and defence?

Answer 14

Prosecution:
Spouse is competent but not compellable (unless exception applies)

Defence:
Spouse is competent and compellable, unless jointly charged

Question 15

What must the offence for which defendant is being prosecuted involve before the spouse or civil partner of the defendant can be compelled by the prosecution?

Answer 15

Offence involves:

1. Assault, injury, or threat of injury to the spouse or a child under 16
2. Sexual offence on a child under 16
3. Attempting, conspiring to commit, aiding, or abetting either 1 or 2

Question 16

What is the situation if the married couple are no longer together?

Answer 16

if spouses are no longer married at the date of the trial it is as if they were never married for the purpose of establishing their compellability.

Question 17

Can an adverse inference be drawn from the spouse’s failure to give evidence?

Answer 17

No

Question 18

With regard to the competence and compellability of co-defendants, what is the situation for the prosecution and defence?

Answer 18

basically the same as for the “normal” defendant

Prosecution:
Co-D is neither competent nor compellable

Defence:
Co-D is competent but not compellable

Question 19

What happens where a co-defendant pleads guilty of the charges against them and the other defendant continues to/with trial?

Answer 19

They become an ordinary witness

Question 20

What is a submission of no case to answer and when is it made?

Answer 20

At the end of the prosecution case, the defence may argue that they prosecution has not presented enough evidence to amount to a prima facie case, either:

1. By failing to adduce evidence of one or more of the elements or the offence, or
2. If the evidence is so unreliable that no reasonable bench, judge, or jury could convict

Question 21

What are the modes of address in criminal court?

Answer 21

Individual magistrates: Sir or madam or Your Worship

Bench collectively: Your worships

District Court judge: Judge

Crown Court judge: Your Honour, or His/Her Honour Judge X

Supreme Court Judge: My Lord/Lady

Question 22

Where the defendant admits that he did it to the solicitor, but wishes to plead not guilty, what is the solicitor limited to doing?

Answer 22

Testing the strength of the prosecution case only, and must not put forward a positive defence or any suggestion that the defendant did not do it

Question 23

Where the defendant admits that he did not do it to the solicitor, but wishes to plead guilty, what is the solicitor not able to do and why?

Answer 23

They will not be able to put forward anything in mitigation which suggests the defendant did not commit the offence.

Because they must not mislead the court, and when a defendant pleads guilty, they are accepting guilt.

Question 24

What does a solicitor have a duty to assist the court on and what do they not have a duty to assist the court on?

Answer 24

Duty to assist: Points of law
No duty to assist: Missing or misinterpreted facts, as long as they themselves do not mislead the court

Question 25

What must a solicitor do if they are representing two defendants and a conflict arises?

Answer 25

Cease to act for one defendant, and they can only continue to represent one if the duty of confidentiality to the other one would not be compromised

Question 26

What are the two possible professional conduct issues which could arise when representing a defendant?

Answer 26

1. D tells solicitor they did it, but wants to plead not guilty
2. D tells solicitor they didn’t do it, but wants to plead guilty