5.2 Jury trial - defence

Question 1

What happens in the Crown Crown when D says she will not be giving evidence and D is represented?

Answer 1

The judge asks the defence counsel:

“Have you advised your client that the stage has now been reached at which the defendant may give evidence and, if the defendant chooses not to do so or, having been sworn, without good cause refuses to answer any question, the jury may draw such inferences as appear proper from the defendant’s failure to do so?”

Question 2

What happens in the Crown Court where D is not represented and it is time for her to give evidence?

Answer 2

Section 35(2) Criminal Justice and Public Order Act 1994 / CrimPR 25.9(2)(f)

The judge will ask her in the presence of the jury:

“You have heard the evidence against you. Now is the time for you to make your defence. You may give evidence on oath, and be cross-examined like any other witness.

“If you do not give evidence or, having been sworn, without good cause refuse to answer any question, the jury may draw such inferences as appear proper. That means they may hold it against you.

“You may also call any witness or witnesses whom you have arranged to attend court.

“Afterwards you may also, if you wish, address the jury by arguing your case from the dock. But you cannot at any stage give evidence.

“Do you now intend to give evidence?

Question 3

What must happen when D decides not to give evidence?

Answer 3

It must be recorded in writing that they received advice and decided freely not to testify.

Question 4

In the Crown Court, what is the next stage after the right to give evidence and adverse inferences, and before defence evidence?

Answer 4

CrimPR 25.9(2)(g)

The defence has the right to make an opening speech but only if she intends to call supporting witnesses.

Question 5

At what stage during defence evidence will D give oral evidence?

Answer 5

Section 79 PACE

First, before XIC of defence witnesses.

Question 6

What happens after defence evidence and before closing speeches

Answer 6

Legal discussions on issues arising during the trial, which will form part of the judge’s directions to the jury.

Question 7

What matters are likely to be discussed during final legal discussions before closing speeches

Answer 7

1.
Good character evidence (unless it is effective good character);
2.
Procedural irregularities;
3.
Defences, partial and complete;
4.
The route to verdict if the judge plans to give one to the jury;
5.
Any other matters requiring a direction to the jury.

Question 8

When can the prosecution make a closing speech?

Answer 8

CrimPR 25.9(2)(j)

The prosecution can make a closing speech where D is legally represented or called any witnesses in support.

Question 9

What should prosecution closing speeches refrain from?

Answer 9

1.
Emotive language;
2.
Unjustified attacks on the defence case;
3.
Unsupported assertions;
4.
Comments on the potential consequences of police evidence not being believed.
5.
Criticising opposing advocates.

Question 10

What should defence closing speeches refrain from?

Answer 10

1.
The consequences to their client if convicted;
2.
Calls for mercy if the jury thinks D is guilty.
3.
Criticising opposing advocates.