9. Jury Trial Procedure

Question 1

What is the general rule on the accused’s presence at trial?

Answer 1

They should be present throughout the trial.

Question 2

How is attendance of the accused at the Crown Court secured?

Answer 2

Either through magistrates remanding in custody or bailing

Question 3

Can the judge issue any warrants if an accused fails to attend the Crown Court?

Answer 3

Yes, a bench warrant may be issued forthwith

Question 4

Is there any point the accused MUST be present in the crown court?

Answer 4

Yes, in order to plead.

Question 5

Does the court need to get an interpreter for an accused?

Answer 5

Yes, if necessary

Question 6

Can the court proceed in the defendant’s absence?

Answer 6

Except to plead in the mags (other than where he is represented legally in the mags), yes, where the court is satisfied that the accused has waived the right to attend and the trial will still be fair despite their absence

Question 7

Can the court proceed with matters which constitute part of the trial proceedings in absence of defence counsel?

Answer 7

No

Question 8

In what circumstances can the accused’s presence be dispensed with?

Answer 8

(a) as a result of the misbehaviour of the accused;
(b) where his absence is voluntary;
(c) when the accused is too ill to attend;
(d) following the death of the accused.

Question 9

What principles should the trial judge apply when dealing with an absent defendant?

Answer 9

(a) An accused has, in general, a right to be present at the trial and a right to be legally represented.
(b) Those rights can be waived, separately or together, wholly or in part, by the accused:

(i) they may be wholly waived if, knowing or having the means of knowledge as to when and where the trial is to take place, the accused is deliberately and voluntarily absent and/or withdraws instructions from legal representatives;
(ii) they may be waived in part if, being present and represented at the outset, the accused, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws instructions from legal representatives.
(c) The trial judge has a discretion as to whether a trial should take place or continue in the absence of an accused and/or the accused’s legal representatives. The judge is required to warn the defendant at the PTPH of the risk of the trial continuing in the defendant’s absence (CrimPR 3.21(2); see Supplement, R3.21).
(d) That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the accused is unrepresented.
(e) In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:

(i) the nature and circumstances of the accused’s behaviour in being absent from the trial or disrupting its continuation, and, in particular, whether the behaviour was deliberate, voluntary and such as plainly waived the right to appear;
(ii) whether an adjournment might result in the accused being caught or attending voluntarily and/or not disrupting the proceedings;
(iii) the likely length of such an adjournment;
(iv) whether the accused, though absent, is, or wishes to be, legally represented at the trial or has waived the right to representation;
(v) the extent to which the absent accused’s legal representatives are able to present the defence;
(vi) the extent of the disadvantage to the accused in not being able to give his or her account of events, having regard to the nature of the evidence;
(vii) the risk of the jury reaching an improper conclusion about the absence of the accused (but see (f) below);
(viii) the seriousness of the offence to the accused, victim and public;
(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;
(x) the effect of delay on the memories of witnesses;
(xi) where there is more than one accused and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.
(f) If the judge decides that a trial should take place or continue in the absence of an unrepresented accused, the judge must ensure that the trial is as fair as the circumstances permit. In particular, reasonable steps must be taken, both during the giving of evidence and in the summing-up, to expose weaknesses in the prosecution case and to make such points on behalf of the accused as the evidence permits. In summing-up the judge must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.

Question 10

What is the summary of principles appropriate to dealing with an absent defendant?

Answer 10

1. They generally have a right to be there
2. They may waive it via their deliberate decision to not attend or their behaviour during attendance (but it is generally desirable that they are represented)
3. Court has a discretion to continue
4. Prime importance is fairness to defence, but also to pros
5. Court should take into account all circumstances (but not the seriousness of the offence)
6. If proceeding, the judge must take steps to ensure the trial is fair (such as pointing out weaknesses in pros case)

Question 11

When can it be said that an accused has absented himself via his own misbehaviour?

Answer 11

Where he has behaved in an unruly fashion in the dock e.g. shouting or intimidating jurors/witnesses

Question 12

Where the judge sees the defendant misbehaving in the dock, should he immediately remove him from the dock?

Answer 12

No, the judge should warn him. Judge may threaten him with contempt.
he may be permitted to return at a later stage if excluded

Question 13

should the accused be handcuffed in the dock?

Answer 13

No, unless there is a real risk of violence or escape and there is no alternative.

Question 14

Can the accused be said to have waived his right to attend his trial where he refuses to be brought into court from the cells?

Answer 14

Yes, only if the judge is satisfied that the right has been unequivocally waived.
However, it may be better to allow time to cool off and to continue the trial in the accused’s absence due to the fairness required.

Question 15

Can sentence be passed in the accused absence where they are voluntary absent?

Answer 15

Yes.

Question 16

Can the trial continue where an accused who attended at the commencement of the trial later goes voluntary absent?

Answer 16

Yes, they have that discretion

Question 17

Can the judge say that an accused has voluntarily absented himself through intoxication?

Answer 17

Yes

Question 18

What should the judge question when an accused voluntarily absents himself after the trial starts?

Answer 18

(a) Whether D had deliberately absented himself and
(b) Whether there were reasonable steps that could be taken to secure his attendance.

Question 19

Can the trial proceed in the absence of an accused who has not been arraigned?

Answer 19

Yes, but only where the court is satisfied that the accused has waived the right to be arraigned.
If the indictment has been amended after the accused has absconded, then it cannot necessarily be assumed that he has waived that right. It depends upon a factual analysis.

Question 20

What alternative to continuing the trial in absence is there where an accused voluntarily absents himself?

Answer 20

Discharging the jury and therefore allowing a retrial.

Question 21

How should the judge make the decision between continuing a trial in absence and discharging the jury for a new trial where the accused voluntarily absents himself?

Answer 21

This exercise involves more than an assessment of adequacy of the evidence to explain the accused’s absence, and required an assessment of fairness

Question 22

What will the court do where the accused voluntarily absents himself from the trial?

Answer 22

Issue a warrant.

Question 23

Where the accused is not present for their crown court trial for reasons beyond their control, may the trial continue in their absence?

Answer 23

No, unless they consent or if the case can be fully presented, including the accused’s own written evidence, without unfairness

Question 24

What should the judge do where the defendant is sick?

Answer 24

Adjourn the case until they recover or discharge the jury.
If not satisfied with the adequacy of the evidence, it should provide an opportunity for further evidence before continuing and must always have regard to fairness.
The exceptions to this are:
(a) As mentioned in Howson, if there are several accused and one falls sick, the trial may continue in that accused’s absence provided that the evidence and proceedings relate entirely to the cases against the co-accused and have no possible bearing on the absent accused’s case.
(b) Where D’s voluntary ingestion of drugs makes his participation in the trial impossible, the situation may well be otherwise (Simms [2016] EWCA Crim 9).
(c) Where D had a heart condition preventing his attendance but it was considered that his counsel were able to argue his case effectively and he was given the opportunity to give written evidence (Hamberger).

Question 25

Should the trial continue where the accused can be present put is too unwell to pay attention to the proceedings?

Answer 25

No.

Question 26

Can the court refer to the background circumstances of the case when considering whether or not to continue with the trial in the case of an unwell defendant?

Answer 26

Yes, for example in one case:
the judge was found to have been correct to continue with the trial of an elderly hospitalised defendant by reference to factors such as the long delays in bringing the case to trial; the many adjournments which had already been granted; the interests of witnesses, including the complainant; and, crucially, whether the appellant’s counsel was fully instructed and able to represent his interests without him being present.

Question 27

What will the court do where the accused is unrepresented?

Answer 27

Give such assistance as may seem appropriate

Question 28

Where the accused dismisses counsel/solicitors during the trial but remains entitled to public funding, what may the court do?

Answer 28

The judge may grant an adjournment for representation, but there is no requirement for that.

Question 29

Where the accused is unrepresented, what should the accused be told about at the end of the prosecution case?

Answer 29

Of the right to give evidence in person, to call witnesses in his or her defence, or to stay silent and call no evidence.
Particularly important to tell the accused about the inferences in these terms:
“Now is your chance to give evidence if you choose to do so. If you do give evidence it will be on oath [or affirmation], and you will be cross-examined like any other witness. If you do not give evidence the jury may hold it against you. If you do give evidence but refuse without good reason to answer the questions the jury may, as I have just explained, hold that against you. Do you now intend to give evidence?”

Question 30

Where an unrepresented accused is not warned about his right to give evidence, to call witnesses, or to stay silent, what may happen?

Answer 30

May be appealed and any conviction quashed.

Question 31

What restrictions are there on an unrepresented defendant’s conduct of trial?

Answer 31

Prohibited from XX complainants and child witnesses in trials for certain offences.
May also be prohibited where the circumstances of the witness and the case merit it and it would not be contrary to the interests of justice.
A representative can be appointed for this.

Question 32

What does the duty of an advocate appointed to XX on an unrepresented defendant’s behalf entail?

Answer 32

Only to ask questions. They can make applications to be put in a position to ask those questions, such as apply for bad character.

Question 33

What can the court to in respect of abuse of process?

Answer 33

Stay proceedings, which means that the case is stopped permanently.

Question 34

Can a stay imposed for abuse of process be lifted?

Answer 34

Yes, such as where the interests of justice no longer require proceedings to be stayed

Question 35

Where can the case be stayed for abuse of process?

Answer 35

1. Where it will be impossible to give the accused a fair trial
2. Where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case (the court being concerned to protect the integrity of the CJS)
   The second category includes cases of bad faith, unlawfulness, or executive misconduct. In such a case, the court is concerned not to create the perception that it is condoning malpractice by law enforcement or to convey the impression that its approach is that the end justified the means. The touchstone is the integrity of the system.

Question 36

Can the judge refuse to try a case because the judge believes, as a matter of policy, it should not have been brought?

Answer 36

No. it is only if the prosecution amounts to an abuse of process and is oppressive and vexatious that the judge has the power to intervene.

It is not an abuse of process where a prosecution is court where the judge considers a conviction is unlikely (subject to the no case power).

Question 37

How connected are the two limbs of abuse of process?

Answer 37

They are distinct and should be analysed as such.
It may be the case, though it really does not need to be, that it could be both cat 1 and cat 2 abuse at the same time under the same evidence. It certainly does not need to be though – could be either, or both limbs founded upon separate evidence, as well as cat 1 and 2 founded on the same evidence.

Question 38

When should a submission of no case to answer be given in a jury trial?

Answer 38

After the prosecution have closed their defence

Question 39

What test should be applied to whether there is a case to answer?

Answer 39

Summary is: if there is no evidence of the crime – stop.
If the evidence is so tenuous that, taken at its highest, a jury properly directed could not properly convict, should stop the case.
However, if it is a case which turns on reliability or other matters within the view of the jury and there is evidence that a jury could properly come to the conclusion to convict, then the case should continue.

In detail below:
(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.
(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.
(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury

Question 40

How is the first limb of Galbraith satisfied?

Answer 40

Where there is no evidence the crime has been committed – i.e., the witness has failed to come to proof or any inferences on any evidence are ones a jury could not properly draw.

Question 41

How is the second limb of Galbraith satisfied?

Answer 41

Has to be understood in context of the old practice of inviting the judge to hold there was no case to answer because a conviction would be ‘unsafe’.
Involves the court considering quality and reliability of the evidence, rather than its legal sufficiency, so entails the court carrying out an analysis of it.
However, the court may assess some amount of reliability – i.e. if the evidence is too inherently weak or vague/contrary to reason.

Question 42

How should reliability be used in deciding a submission of no case to answer?

Answer 42

It should not take out the plums and leave the duff behind – should take a holistic view of the prosecution cased at its highest. i.e. if it was self-contradictory and out of reason and all common sense, then it may be inherently weak and tenuous.
So, court should consider evidence as a whole

Question 43

What guidance is given on reaching a decision on a submission of no case to answer?

Answer 43

1. If there is no evidence to prove, submission must succeed
2. If there is some evidence which, at face value, establishes each essential element, the case should be left
3. If the evidence, however, is so weak that no reasonable jury properly directed could convict on it, a submission should be upheld. May be weak because of sheer improbability, internal inconsistences, or of a type being of doubtful value
4. The question of a whether a witness is lying is one for the jury, save where the inconsistencies are so great that any reasonable tribunal would be forced to the conclusion it would not be proper for the case to proceed on the evidence of that witness alone.

Question 44

What and how should the prosecution give their opening speech in the crown court?

Answer 44

Should identify the issues and give a concise outline of the evidence which the prosecution proposes to call.
Should do so in an unemotive way, in keeping with their role as a minister of justice

Question 45

Can the defence give an opening speech straight after the prosecution in the crown court?

Answer 45

Yes, they may be invited to do so to identify what is in issue/give a concise outline

Question 46

Should the prosecution opening speech deal with submissions as to law?

Answer 46

It is a matter for discretion, depending on the circumstances of the particular case.
The presumption is that an opening address should not address the law, save in cases of real complication and difficult where counsel believes and the trial judge agrees that the jury may be assisted by a brief and well-focused submission
If counsel deals with a matter of law, it is usual for them to remind the jury that matters of law are for the judge ultimately, and that counsel’s remarks should be disregarded insofar as they differ from the judge’s directions.

Question 47

What happens in a crown court trial after opening speech(s)?

Answer 47

The prosecuting counsel calls witnesses and reads out any written statements admissible.

Question 48

Can prosecuting counsel not read out witness statements served as part of the prosecution case?

Answer 48

Yes, they can chose not to (such as where they believe the witness is not credible) but as a matter of practice they all should be read or called. The discretion must not be exercised for an oblique motive.

Question 49

What does s9 CJA 1967 provide for?

Answer 49

The admissibility of witness statements where no party objects to it going into evidence.

Question 50

By when, if a party is objecting to a s9 statement going in, must a party serve a notice to that effect?

Answer 50

Within 5 business days

Question 51

If no one objects to a s9 statement, does that mean that the witness does not have to be called at all?

Answer 51

No, they can be required to be called even in these circumstances. A reason for the court to require them is where the defence dispute the statement but failed to object through an oversight.

Question 52

What are agreed facts?

Answer 52

They are facts which are agreed by all parties to be true.

Question 53

How should agreed facts be given to the jury?

Answer 53

They should be reduced to writing and provided to the jury providing they are relevant to the issues they are to determine and do not contain inadmissible material.
They also should be read.

Question 54

How should evidence whose admissibility is disputed be approached at a crown court trial?

Answer 54

The defence should notify the prosecution of their objection
The defence counsel should inform them before opening and the prosecution make no mention of it if admissibility has not been decided
The jury will then withdraw when its admissibility falls to be decided
If admissibility depends upon collateral fact issues, then it may be necessary to conduct a voir dire. Witnesses can be called.
The parties then make their representations
The judge then announces finding on any factual issues and rules on admissibility.
The jury is then called back in. they are not told about the evidence if ruled inadmissible. If it is ruled admissible the defence may XX about maters they raised on the voir dire.
The judge can review admissibility at a later stage.

Question 55

Can witness statements/other evidence be edited before being presented to the jury?

Answer 55

Yes, where the evidence contains parts of such prejudicial effect that they clearly ought not to hear it.
In practice, there is an agreed editing.
The evidence should be unvarnished at committal and then edited at trial. The judge can also be involved in this.

Question 56

Does the defence have the right to an opening speech at any point?

Answer 56

Yes, where the defence intend to call evidence as to the facts of the case other than, or in addition to, the evidence of the accused, the defence counsel has the right at the beginning of the defence case.
No such right applies where the evidence is merely from the accused and character witnesses.

Question 57

What may the defence counsel do in an opening speech at the start of the defence case?

Answer 57

He can outline the anticipated defence case and criticise the evidence already given.
Should not make assertions of fact that are not to be proved by evidence that is to come.

Question 58

Are the defence obliged to call any evidence?

Answer 58

No, and cannot be obliged to call the accused either.

Question 59

what limitations are there on the evidence defence witnesses can give?

Answer 59

The same as the prosecution, but also the court has a duty to stop it where it is irrelevant or being used as a political sounding board.

Question 60

In what order is the defence evidence called?

Answer 60

The accused first generally, but it can depart from this such as where a witness whose evidence was not substantially disputed was called first if circumstances made that convenient.
Psychiatric expert evidence ought to follow after the prosecution’s evidence and any evidence from the accused.
Character witnesses must always be called after the accused unless there are other witnesses as to the facts.

Question 61

Can witnesses wait inside the court room?

Answer 61

No, unless they are a party or an expert. However, in the past the court has declined to exclude the potentially helpful evidence of a defence witness who had been in court during the prosecution case

Question 62

Whose decision is it to call the accused to testify?

Answer 62

The accused alone.

Question 63

What should counsel do where the accused decides not to testify?

Answer 63

when the accused decides not to go into the witness-box, it should be the invariable practice of counsel to have that decision recorded and to cause the accused to sign the record giving a clear indication (a) of the fact of having, of his or her own accord, decided not to give evidence, and (b) that the accused has done that bearing in mind the advice, regardless of what it was, given by counsel

Question 64

is there a right for an accused to give evidence twice?

Answer 64

No.

Question 65

Can failure to advise properly about the admissibility of testifying constitute grounds for unsafe conviction?

Answer 65

Yes, in appropriate circumstances.

Question 66

Can a judge re-call a witness?

Answer 66

Yes, on its own initiative.

Question 67

Can a judge call a witness who has not been called by the prosecution or defence?

Answer 67

Yes, but should be sparingly exercised and only where it is necessary in the interests of justice

Question 68

How does the trial judge’s summing up work in the Crown Court?

Answer 68

It is firstly a direction on the law and then a summary of the evidence. The use of written directions is strongly advocated for. Crown Court Compendium is of particular use for these.

Question 69

What should occur prior to summing-up, or the first part of summing-up if it is split?

Answer 69

The court will almost always invite counsel, in the absence of the jury, to make representations on how certain aspects of the case should be dealt with.
This is especially important where there might otherwise be misunderstanding or doubt as to how points of law and evidence should be dealt with.
only in very exceptional circumstances would it be appropriate for the judge to discuss with counsel the law after the summing up and before retirement.

Question 70

Can the judge conduct his summing up in the approach of ‘counsel correct any errors you here as they arise’?

Answer 70

No, it is inappropriate to do so as it detracts from the authority of what the judge was saying

Question 71

What duty is counsel under when the judge is about to sum up?

Answer 71

A duty to bring all relevant authorities to the court’s attention, even those unfavourable.
Any procedural irregularity must also be brought to the attention of the court during the hearing, not reserved for appeal.

They apply equally for both counsel.

Question 72

Whose closing speech is made first?

Answer 72

The prosecution’s

Question 73

What limitations are there generally for the content of closing speeches?

Answer 73

Neither counsel should allude to alleged facts or other matters which have not been subject to evidence
Neither should the jury be invited to add a recommendation of mercy to their verdict should it be guilty.
Not should advocates make personal criticism of their opponents.

Question 74

What limitations are there for the content of pros closing speeches?

Answer 74

Prosecutors must remember they are a minister of justice and not make emotive speeches.
They should not comment on serious consequences to police officer of their evidence being disbelieved, even where this is raised in evidence
They should not abandon or attack the credit of their own witness (unless they are hostile) and should not invite inferences contrary to the called evidence
Should not comment on the failure of a spouse or civil partner to give evidence.
may comment on failure to answer qs in interview or to give evidence, or to serve a defence statement or divergence between that and the accused’s evidence
prosecuting counsel’s comment on a failure to give evidence or call witnesses is ill-advised but not prohibited, if caveated with ‘nothing was said to undermine the judge’s directions as to where the burden of proof lay’.

Question 75

What limitations are there for the content of defence closing speeches?

Answer 75

The defence counsel is not confined to putting forward the client’s version of events. They can put forward hypotheses where the evidence supports this.
Defence counsel should not refer to the likely consequences of a conviction in terms of punishment since sentencing is no concern of the jury.
Defence counsel can comment upon his or her own client’s failure to give evidence. They can also comment upon a co-d’s failure to enter the witness box such as in a case where that defence conflicts with that of the accused. The judge cannot restrict that comment but can comment upon it himself if he believes it has been unfair.
The judge may intervene to ensure the defence case is accurately put where necessary.

Question 76

When should summing up not be commenced?

Answer 76

A late hour, or just before the weekend

Question 77

What should counsel do where the judge does not provide the full summing-up in writing?

Answer 77

Counsel should take as full a note of it as possible, especially where any sentence is likely to be short. A good note may avoid delay caused by waiting for a transcript and thus expedite an appeal.

Question 78

What duties do counsel have in relation to the summing up?

Answer 78

For pros, they should draw any possible attention to the judge’s attention at its close.
The proposition that the defence counsel can generally remain silent in the best interests of the client has been eroded, such as through:
(a) Both sides are under a duty to alert the judge to evidence on which the jury could find provocation before the summing up and, if the judge agrees, remind them the statute requires the judge to leave the remaining issues to the jury
(b) A duty to request a good character direction if one is not given, not to merely wait for an appeal
(c) To focus on what is being said and to raise any material error or omission at the time
However dismissal of an appeal is not automatic where defence counsel failed to correct an error.

Question 79

What should the judge do re: written directions?

Answer 79

In virtually all cases, the judge should provide the jury with a written list of questions (a route to verdict), written legal directions, and such other material as will assist them in their task, such as setting out the legal issues which must be proved in order to reach their verdict.
Judge should submit them to counsel and make suggestions on them, and so they can base their submissions upon them. Failure by counsel to comment is not necessarily fatal to an appeal, such failure is likely to affect the weight accorded to the deficiency.
The jury should be given the written list at the start of the summing-up so that the judge can take them through the directions one by one as each point is dealt with.

Question 80

How should directions be built?

Answer 80

They should be customised to the case, but there are standard directions in the compendium, whose use is encouraged by the CoA. They should be adapted to the case.
If there are no specimen directions, directions should be crafted to the context of that case. The case law is helpful.

Question 81

Is a failure to follow model directions a ground of appeal in and of itself?

Answer 81

No

Question 82

What should the judge say at the beginning of the summing up?

Answer 82

The roles of the jury and judge, which part is their domain and which is the judge’s.
He also must warn them that any view they perceive of his should not be taken into account, and any omission of a piece of evidence or mention of it then this also does not matter: it is the jury’s opinion that matters.

Question 83

What should the judge say re burden and standard of proof?

Answer 83

There must be a direction as to this, as well as the ingredients of the offences

Question 84

What happens if the judge fails to direct on the standard and burden of proof?

Answer 84

A conviction is liable to be quashed

Question 85

Should a judge deviate from the standard direction on the standard of proof in answer to a question?

Answer 85

No. They should not explain sure or say that it requires 100% certainty.

Question 86

What should the judge do for directions in cases involving injuries to a small child?

Answer 86

Give a very clear direction as to the burden of proof.

Question 87

What should the judge do where an accused was under an evidential burden?

Answer 87

In appropriate circumstances, seek agreement that this burden had been discharged.

Question 88

Where there are multiple counts on the indictment/multiple defendants, what should the judge direct the jury to do?

Answer 88

Give separate consideration to each of counts/defendants
Also should make some comment on cross-admissibility, i.e. whether that is permissible or not.

Question 89

Where there are multiple counts on the indictment/multiple defendants, what should the judge do re summing up?

Answer 89

Summarise the evidence on a count-by-count basis.

Question 90

What should the judge do re the direction on the ingredients of the offence?

Answer 90

Could either isolate the issues or direct them on all the elements
Where an ingredient is a question of factual interpretation, it is incumbent on the judge to remind the jury of those facts relied on by the defence as arguing against that ingredient being established.

Question 91

What should the judge do in directing the jury where an accused has failed in something in which causes an inference to potentially be drawn?

Answer 91

They should remind them that they can drawn an inferences as seem proper but must not wholly or mainly convict upon this, and must remind the jury any reason for silence advanced by the accused. The judge should also remind the jury of every fact in relation to which an inference may be drawn.
Limitations for a direction on this have been recognised in that:
(a) No inferences should be drawn from the silence in interview of an accused who does not give or call evidence, and has not advanced a positive case (Moshaid [1998] Crim LR 420).
(b) Where an accused’s account had changed between interview and trial, this was a matter on which comment could be made without the need for a formal direction under s. 34 (Maguire [2008] EWCA Crim 1028).
(c) There was no requirement that the accused had specifically been asked about the fact that he had failed to mention in interview. The question was whether it was a fact that could reasonably have been mentioned (Harewood [2021] EWCA Crim 1936).
(d) The direction given in relation to a failure to answer questions must address not only the reason advanced for the failure, but any other factors relevant to the jury’s assessment of it, e.g., the age of the accused (Murphy [2020] EWCA Crim 1898).
Where inferences should not be drawn, the jury should be directed to that effect

Answer 92

What should the judge give re directions on the defences?

Answer 93

The trial judge should give the applicable legal directions on these defences, such as on:
(a) Self defence
(b) Alibi
(c) Loss of control
(d) Diminished responsibility
Where the accused is unrepresented, the judge should also give the jury directions on the difficulties unrepresented defendants may face.

Question 94

When summing up, what should the judge do re: the facts?

Answer 94

He should remind them of and comment upon the evidence. He should define the issues and remind the jury of the evidence they had heard. He should do so with a review of the facts. It is needed as it provides a record of the facts on which that verdict was founded and is especially needed in long cases.

Question 95

If there are any issues with summing up, when should these be raised?

Answer 95

At the time, not on appeal

Question 96

What analysis is involved in summing up?

Answer 96

In simple cases, an abbreviated version of the facts. If the trial has been at all complex, analysing the evidence and relating it to the various issues raised. Merely reading a note of the evidence is not a good approach.
A succinct, concise, approach is encouraged, and a correct statement of the inferences the jury can draw

Question 97

What should the judge do in summing up re the defence’s case?

Answer 97

(a) Sum up the accused’s evidence
(b) Draw attention to consistencies/inconsistencies between the accused’s testimony and answers in interview
(c) Where interviewed at length but not giving evidence, the judge has to decide how to fairly and conveniently place the interview before the jury
(d) When the accused has neither testified or answered in interview, remind the jury of counsel’s speech
Give an overview of the defence case, including weaving it into the chronology of the prosecution evidence.
If the accused has not testified or answered in interviews, the judge should remind the jury of the points made in counsel’s speech or that is helping from evidence extracted, remind them of the right of the defendant to say nothing or offer no evidence and rely upon the prosecution’s witnesses.
Does not have to be extensive, but merely has to identify and remind the jury of the central submissions and evidence underpinning them.

Question 98

How should the judge state matters in his summing up?

Answer 98

Clearly, impartially, and logically. Should not indulge in inappropriate sarcasm or extravagant comment. The CoA stressed that the observance of the accused’s right to have the case presented fairly is never more important than when the cards seem to be stacked most heavily against him.
Provided he tells them they are entitled to ignore opinions, the judge may comment on the evidence in a way which indicates their own views. Robust comments to the detriment of the defence case are permitted providing the judge is not so critical as effectively to withdraw the issue of guilty or innocent from the jury.

Question 99

What should the judge do re: appointment of a foreman?

Answer 99

He should advise the jury to appoint one of their number to be their foreman, who will act as their spokesman.

Question 100

What should the judge say to the jury about unanimity?

Answer 100

He should ask them to reach a unanimous decision. He should tell them that, for now, they should try to get a unanimous one and should not give a majority one until further direction. He should not give them a timeframe in which that will happen.
If he mentions a period, it will not necessarily be improper such as where the effect is to alleviate the jury’s anxiety or uncertainty.

Question 101

Will a failure of the judge to remind on unanimity render the conviction unsafe?

Answer 101

Not necessarily

Question 102

What should happen while the jury is in retirement?

Answer 102

They should be kept in the charge of the jury bailiffs and should not be separate from one another.

Question 103

Can the jury ask questions during their retirement?

Answer 103

Yes, they can.

Question 104

How does a jury ask questions during their retirement?

Answer 104

Passing a note to the jury bailiff who takes it to the judge

Question 105

What should be on a note where a jury asks questions during their retirement?

Answer 105

Date and time them.

Question 106

How should the judge deal with a question from the jury during their retirement?

Answer 106

If the communication is unconnected with the trial, for example a message to be passed to a relative, it can be dealt with without reference to counsel or bringing the jury back into court.
In almost every other case, the judge should state in open court the nature and content of the communication and, if appropriate, seek the assistance of counsel. The jury would then return to court and the judge deal with their communication. This includes where the jury asks to examine an exhibit.
Exceptionally, if the communication contains information which the jury need not and should not have imparted, such as details of voting figures, then the communication should be dealt with in the normal way save the judge should not disclose the detailed information which the jury ought not to have revealed.

Question 107

Can verdicts be of a majority?

Answer 107

Yes, in certain circumstances.
Firstly, the court will not accept them unless the jury has been considering their verdict for such period as the court considers reasonable having regard to the circumstances of the case and, in any event, not being a time less than two hours (in practice, two hours 10 minutes). Any period of return to court for questions should be included in the two hours. The time allowed, after the minimum period, is ultimately a matter for the judge.

Question 108

What are the minimum majorities permissible for verdicts?

Answer 108

11-1 or 10-2, or (in the case of a jury from which one or more of the original jurors have been discharged) 10-1 or 9-1. A jury reduced to nine must be unanimous.

Question 109

When the verdict is guilty, what must the foreman do?

Answer 109

State in open court the number of jurors who agreed and disagreed from the verdict.
It is sufficient to state how many agreed and leave the arithmetic to be done on how many disagreed.

Question 110

What will happen where the size of the majority is not given by the foreman?

Answer 110

Any purported conviction would be quashed.

Question 111

Can the jury find an accused not guilty of the offence alleged in a count but guilty of an alternative?

Answer 111

Yes, the general rule is:
Where, on a person’s trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (EXPRESSLY OR BY IMPLICATION) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.

Question 112

Is the judge obliged to direct the jury about the option of finding guilty on an alternative?

Answer 112

No, but if the possibility has been raised by the evidence, then the judge should, in the interests of justice, leave the alternative to the jury. This is the case even if neither counsel wishes the alternative to be left.
It is important for the court ot leave an alternative which does not require proof of specific intent where such intent was required for the charge on the indictment.
The court should not add an alternative charge after the accused has given evidence.

Question 113

How is the verdict delivered?

Answer 113

In open court, in the presence of the accused. The invariable practice is the clerk will ask whether they find the accused guilty or not guilty

Question 114

Can the jury deliver a partial verdict?

Answer 114

Yes, in the sense of finding the accused guilty on one count but not another.
They can also find the accused guilty for stealing in respect of some of the items mentioned in the indictment, rather than all.

Question 115

What happens where the jury is unable to agree on a verdict?

Answer 115

The judge discharges them from giving a verdict. The accused may then be retried.

Question 116

Who can ask for a retrial?

Answer 116

The prosecution. It is in their discretion.

Question 117

If there is a re-trial but they also fail to agree, what does the prosecution do?

Answer 117

Generally offer no evidence, but this is not a proposition of law. A further trial may be appropriate, such as where a jury is allegedly tampered with.

Question 118

Could it be an abuse of process for a further trial after two juries fail to agree?

Answer 118

Potentially, but it depends upon the facts, including:
(a) The overall period of delay and reasons for it;
(b) The results of pervious trials;
(c) Ther seriousness of the offence; and (possibly)
(d) The extent to which the case against the defendant had changed since previous trials.