9. Jury trial procedure Flashcards
D15.82
The Principle
D15.82
As a general principle, an accused should be present throughout his trial. The attendance of the accused at the Crown Court is secured by the magistrates remanding him in custody or on bail when they send his case for trial. If, having been bailed, he fails to attend on the day notified to him as the day of trial, a bench warrant may be issued forthwith for his arrest under the BA 1976, s. 7 (see D7.98).
The accused must be present at the commencement of a trial on indictment in order to plead. It is then the almost invariable practice for him to be present throughout his trial. The implication of this rule is that the accused must not only be physically present, but must have the proceedings interpreted to him if that is necessary (Kunnath v The State [1993] 4 All ER 30). CrimPR 25.2(1)(b) provides that the court must not proceed if the accused is absent, unless the court is satisfied that he has waived the right to attend and the trial will be fair despite his absence.
By extension, this also means that the judge ought not to deal with matters which constitute part of the trial proceedings in the absence of counsel for the defence. For example, in Coolledge [1996] Crim LR 748, an appeal was allowed because the judge inquired of a witness in chambers and in the absence of defence counsel as to the reason why he had failed to attend court to give evidence. The Court of Appeal held that counsel should not have been excluded since the procedure went beyond a mere inquiry, and affected the conduct of the trial itself, which was therefore tainted.
Exceptions to the Principle
D15.83
Notwithstanding this general rule, the accused’s presence may be dispensed with in exceptional circumstances (per Lord Reading CJ in Lee Kun [1916] 1 KB 337 at p. 341). The situations in which the court may be justified in proceeding without the accused are as follows.
(a) as a result of the misbehaviour of the accused (see D15.86);
(b) where his absence is voluntary;
(c) when the accused is too ill to attend;
(d) following the death of the accused.
Each of these circumstances and various related matters is considered below.
-84,
D15.84
Principles to be Considered In Hayward [2001] EWCA Crim 168, [2001] QB 862, the Court of Appeal considered the principles which the trial judge ought to apply when dealing with an absent defendant, and summarised them as follows.
(a) An accused has, in general, a right to be present at his trial and a right to be legally represented.
(b) Those rights can be waived, separately or together, wholly or in part, by the accused himself:
(i) they may be wholly waived if, knowing or having the means of knowledge as to when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him;
(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 his instructions from those representing him.
(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 his legal representatives. The judge is required to warn the defendant at the PTPH of the risk of the trial continuing in his absence (CrimPR 3.13(2); see Supplement, R-19).
(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 absenting himself from the trial or disrupting its continuation, and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his 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 his right to representation;
(v) the extent to which the absent accused’s legal representatives are able to present his defence;
(vi) the extent of the disadvantage to the accused in not being able to give his account of events, having regard to the nature of the evidence against him;
(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, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, 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 he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.
D15.85 (1) and (2).
D15.85
The clear emphasis in Hayward was on the need for caution before proceeding to try a defendant in his absence. In view of the need to ensure compliance with the ECHR, Article 6, that caution is entirely proper. For the same reason, it is entirely proper that the focus in determining whether to proceed should be upon the accused’s right to attend the trial and be represented at it.
The principles outlined by the Court of Appeal in Hayward were considered and commended by the House of Lords in Jones [2002] UKHL 5, [2003] 1 AC 1. Lord Bingham endorsed the Court of Appeal’s guidelines with two reservations:
(1) the seriousness of the offence should not be considered — the principles would be the same whether the offence was serious or minor; and
(2) even if the accused absconded voluntarily, it would generally be desirable that he should be represented. It was emphasised that it was a step to be taken with ‘great caution and close regard to the overall fairness of the proceedings’. In Amrouchi [2007] EWCA Crim 3019, relying on those observations, Hughes LJ said it was a step that should only be taken when it was ‘unavoidable’.
D15.86
D15.86
Misbehaviour of the Accused If the accused behaves in an unruly fashion in the dock, e.g., by shouting out, or if he is apparently trying to intimidate jurors or witnesses by his conduct, and he thereby makes it impracticable for the hearing to continue in his presence, the judge may order that he be removed from court and that the trial proceed without him (Lee Kun [1916] 1 KB 337).
In practice, the judge would warn the accused before taking the extreme step of barring him from court, and it may be appropriate to allow him to return to the dock at a later stage if he undertakes not to repeat his unruly behaviour. Unruly behaviour may also be deterred by the threat of holding the accused to be guilty of a contempt in the face of the court (see B14.85). An accused should not be handcuffed in the dock unless there is a real risk of violence or escape and there is no alternative to visible restraint (Horden [2009] EWCA Crim 388, [2009] 2 Cr App R 24 (406)).
Similarly, if the accused refuses to be brought into court from the cells, the trial judge is entitled to proceed without him where he has unequivocally waived his right to be present (Smith [2006] EWCA Crim 2307). As is made clear at CrimPR 25.2(1)(b), and was repeated in Hussain [2018] EWCA Crim 1785, the discretion to continue in the absence of the accused is to be approached with great caution and with close regard to the fairness of the proceedings. It may often be better to allow time to cool off, and to continue the trial in the accused’s presence.
-15.87
D15.87
Voluntary Absence of the Accused If the accused, having been present for the commencement of his trial, later voluntarily absents himself, either by escaping from custody or by failing to surrender having been bailed by the court for the period of an adjournment, the judge has a discretion to complete the trial in his absence (Jones (No. 2) [1972] 2 All ER 731). Should he be convicted, sentence may also be passed in his absence (Jones (No. 2)). In Simms [2016] EWCA Crim 9, it was held that the same principle applied where the accused had voluntarily rendered himself incapable of participation in the trial through intoxication (or though a self-induced drug psychosis: Ehi-Palmer [2016] EWCA Crim 1844).
Whether to proceed in the accused’s absence must, however, be a matter for the judge’s discretion. In Amrouchi [2007] EWCA Crim 3019, the Court of Appeal identified questions relevant to the exercise of that discretion including whether (a) the accused had deliberately absented himself and (b) there were reasonable steps that could be taken to secure his attendance. The alternative is to discharge the jury from giving a verdict, thus allowing a retrial to take place before a different jury once the accused’s presence has been secured. This exercise of discretion involved more than an assessment of the adequacy of the evidence to explain the accused’s absence, and required an assessment of fairness (R (Rathor) v Southampton Magistrates’ Court [2018] EWHC 3278 (Admin)). Whether or not the court proceeds in the accused’s absence, the judge may and almost certainly will issue a warrant for his arrest under the BA 1976, s. 7 (see D7.98).
and D15.89
D15.89
Sickness of the Accused If the accused’s absence from court is for reasons beyond his control, the trial may not continue in his absence unless he consents (see, e.g., the dicta of Williams J in Abrahams (1895) 21 VLR 343, adopted by Roskill LJ in Jones (No. 2) [1972] 2 All ER 731) or if his case can be fully presented, including the accused’s own written evidence, without unfairness (Hamberger [2017] EWCA Crim 273, [2017] 2 Cr App R 9 (81)).
The obvious and common example of involuntary absence is sickness. Thus, should the accused become ill during the course of his trial, the judge must either adjourn the case until he recovers or discharge the jury (Howson (1981) 74 Cr App R 172; Kaur [2013] EWCA Crim 590). If the court is not satisfied with the adequacy of the evidence of illness it should provide an opportunity for further evidence to be provided before continuing the trial in the acccused’s absence, and must always have regard to fairness (R (Rathor) v Southampton Magistrates’ Court [2018] EWHC 3278 (Admin)). Possible exceptions to this proposition include:
(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 in his absence relate entirely to the cases against his co-accused and have no possible bearing on his case.
(b) Where the accused’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 the accused 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).
The decision in Howson also indicates that it is not enough for an accused to be physically present if he is too unwell to pay proper attention to the proceedings and give instructions to his legal representatives.
D17.17-
Treatment by Court of Unrepresented Accused
D17.17
If an accused is not legally represented, the court will, as a matter of practice, seek to give him such assistance in conducting his defence as may seem appropriate.
Alternatively, where the accused dismisses his counsel and/or solicitors during the course of the trial (or they withdraw during trial) and the accused remains entitled to public funding, the judge may grant an adjournment for the accused to be represented (Chambers [1989] Crim LR 367; Sansom [1991] 2 QB 130), though there is no requirement that the court must do so.
Accused’s Right to Give or Call Evidence
D17.18
The accused should always be told by the court at the end of the prosecution case of his right to give evidence himself, to call witnesses in his defence (whether or not he himself goes into the witness-box), or to stay silent and call no evidence. Failure to give the accused this information may lead to any conviction being quashed (Carter (1960) 44 Cr App R 225).
It is particularly important that an unrepresented accused should be informed of the inferences which may be drawn from a failure to give evidence, pursuant to the CJPOA 1994, s. 35 (see F20.42). The court is obliged to address the accused, pursuant to CrimPD VI, para. 26P.5 (see Supplement, PD-71), in the following terms:
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 that stage give evidence. Do you now intend to give evidence?
17.19
Restrictions on the Accused
D17.19
Since the YJCEA 1999, ss. 34 to 39 (see F7.3) came into effect, certain restrictions have applied. Unrepresented defendants are prohibited from cross-examining complainants and child witnesses in trials for certain offences. The courts also have the power to prohibit cross-examination of witnesses by unrepresented defendants if satisfied that the circumstances of the witness and the case merit it, and that a prohibition would not be contrary to the interests of justice. There are provisions for the appointment of representatives to conduct cross-examinations on behalf of unrepresented defendants. By way of guidance as to the role of such a representative, in Abbas v CPS [2015] EWHC 579 (Admin), [2015] 2 Cr App R 11 (183) the Divisional Court said that a s. 38 advocate did not have a free-ranging remit to conduct the trial on the defendant’s behalf. Rather the advocate was under a statutory duty to be in a position to properly conduct a cross-examination, which might include a pre-trial application to admit bad character evidence or for disclosure, if relevant to the cross-examination. The important point was that s. 38 advocates must ensure that their duties accorded with the words of the statute.
For the position as to cross-examination by an unrepresented accused and related matters, see also Brown [1998] 2 Cr App R 364, which is dealt with at F7.3. The procedure on an application for a prohibition on cross-examination of a particular witness is specified by CrimPR 23.4 (see Supplement, R-222).
D3.66
Abuse of Process: The Power to Stay Proceedings
D3.66
According to County of London Quarter Sessions, ex parte Downes [1954] 1 QB 1 at p. 6, once an indictment has been preferred, the accused must be tried unless:
(a) the indictment is defective (e.g., it contains counts that are improperly joined and so does not comply with CrimPR 3.21(4));
(b) a ‘plea in bar’ applies (such as autrefois acquit);
(c) a ‘nolle prosequi’ is entered by the A-G to stop the proceedings; or
(d) the indictment discloses no offence that the court has jurisdiction to try (e.g., the offence is based on a statutory provision that was not in force at the date the accused allegedly did the act complained of).
To this list must be added cases where it would amount to an abuse of process to continue with the prosecution. Where proceedings would amount to an abuse of process, the court may order that those proceedings be stayed. The usual effect of a stay is that the case against the accused is stopped permanently. Given the nature of the grounds upon which a case may properly be regarded as an abuse of process, it would only be in exceptional cases that there would be any basis for lifting a stay that has been imposed. An example of such a case, however, is Gadd [2014] EWHC 3307 (QB), where Globe J granted a voluntary bill of indictment to allow the accused to be prosecuted for offences which had been stayed by a magistrates’ court in 1998 (the stay being subsequently upheld by the Divisional Court). His lordship decided that, in the circumstances prevailing at the time of the application for a voluntary bill (including, in particular, the fact that there were other allegations to be tried), the interests of justice no longer required that the proceedings be stayed. A voluntary bill was therefore granted. An application for leave to appeal against conviction was subsequently dismissed by the Court of Appeal (Gadd [2015] All ER (D) 141 (Nov)).
The Meaning of ‘Abuse of Process’
D3.67
In Beckford [1996] 1 Cr App R 94, Neill LJ said (at p. 100) that the ‘constitutional principle which underlies the jurisdiction to stay proceedings is that the courts have the power and the duty to protect the law by protecting its own purposes and functions’. His lordship quoted the words of Lord Devlin in Connelly v DPP [1964] AC 1254 at p. 1354, that the courts have ‘an inescapable duty to secure fair treatment for those who come or are brought before them’. In Maxwell [2010] UKSC 48, [2011] 1 WLR 1837 (at [13]), cited in Warren v A-G for Jersey [2011] UKPC 10, [2012] 1 AC 22 (at [22]), Lord Dyson summarised the two categories of case in which the court has the power to stay proceedings for abuse of process:
It is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) 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. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will offend the court’s sense of justice and propriety (per Lord Lowry in R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42 (at 74G)), or will undermine public confidence in the criminal justice system and bring it into disrepute (per Lord Steyn in Latif [1996] 1 WLR 104 (at 112F)).
In Crawley [2014] EWCA Crim 1028, [2014] 2 Cr App R 16 (214), Sir Brian Leveson P summarised the scope of abuse of process thus (at [17]–[18]):
[T] here are two categories of case in which the court has the power to stay proceedings for abuse of process. These are, first, where the court concludes that the accused can no longer receive a fair hearing; and, second, where it would otherwise be unfair to try the accused or, put another way, where a stay is necessary to protect the integrity of the criminal justice system. The first limb focuses on the trial process and where the court concludes that the accused would not receive a fair hearing it will stay the proceedings; no balancing exercise is required. The second limb concerns the integrity of the criminal justice system and applies where the Court considers that the accused should not be standing trial at all, irrespective of the potential fairness of the trial itself.
… [T]here is a strong public interest in the prosecution of crime and in ensuring that those charged with serious criminal offences are tried. Ordering a stay of proceedings, which in criminal law is effectively a permanent remedy, is thus a remedy of last resort.
His lordship observed (at [21]) that ‘cases in which it may be unfair to try the accused (the second category of case) will include, but are not confined to, those cases where there has been 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 agencies or to convey the impression that it will adopt the approach that the end justifies the means: the touchstone is the integrity of the criminal justice system’ (at [23]). In Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42, Lord Griffiths (at p. 61H) said that if the courts have a power to interfere with the prosecution in such cases:
… it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law … I have no doubt that the judiciary should accept this responsibility in the field of criminal law.
-3.68
There are thus two main categories of abuse of process:
(a) cases where the court concludes that the accused cannot receive a fair trial;
(b) cases where the court concludes that it would be unfair for the accused to be tried.
The former focuses on the trial process; the latter is applicable where the accused should not be standing trial at all (irrespective of the fairness of the actual trial).
In D Ltd v A [2017] EWCA Crim 1172, David LJ noted (at [35]) that it is ‘important to bear in mind that the two limbs to the exercise of this jurisdiction to stay are legally distinct and have to be considered separately: considerations that may be relevant to the first limb may not be relevant to the second limb and vice versa. Moreover, the second limb requires a balance of the competing interests, whereas the first limb does not.’ The Court of Appeal (at [63]) accepted the argument that failures on the part of the prosecution are not of themselves ordinarily relevant to the first limb of abuse of process. The key issue is whether the consequences of those failures are such as to deprive the defendant of a fair trial. Thus, ‘for the purposes of the limb one argument one has to assess the prejudicial effect of that conduct on the fairness of the trial’ (at [66]).
In DPP v Humphrys [1977] AC 1, Lord Salmon (at p. 46) commented that a judge does not have ‘any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene.’
D16.9
Opening Speech
D16.9
CrimPD VII, para. 25A.1 (see Supplement, PD-56), states that ‘the purpose of the prosecution opening is to help the jury understand what the case concerns, not necessarily to present a detailed account of all the prosecution evidence due to be introduced’.
CrimPR 25.9(2)(b) invites the prosecution to identify the issues in the case as well as providing a concise outline of the evidence which the prosecution propose to call. In the same way, pursuant to CrimPR 25.9(2)(c), the judge may invite defence counsel concisely to identify what is in issue, in order to assist the jury, following the prosecution opening (CrimPD VII, para. 25A.4) (see also D17.7).
The following are matters that may affect the style and content of a prosecution opening speech.
Emotive Language
D16.10
In addressing the jury, prosecuting counsel’s role is that of a minister of justice who ought not to strive over-zealously for a conviction (see D16.3). Counsel should therefore avoid using emotive language liable to prejudice the jury against the accused. Avory J’s oft-quoted description in Banks [1916] 2 KB 621 was given in relation to observations by prosecution counsel ‘calculated to prejudice the jury’. The use of emotive language was criticised by his lordship as being ‘not in good taste or strictly in accordance with the character which prosecuting counsel should always bear in mind’ (see also Solloway [2019] EWCA Crim 454 as an example of inappropriate language from a prosecutor).
-11,
Submissions as to Law
D16.11
The extent to which the prosecutor deals with points of law that may arise during the trial or possible defences which the accused is likely to raise is a matter for discretion, depending on the circumstances of the particular case. In Lashley [2005] EWCA Crim 2016, Judge LJ stated (at [13]):
The presumption should be that an opening address by counsel for the Crown should not address the law, save in cases of real complication and difficulty 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 to remind the jury that matters of law are ultimately for the judge, and that counsel’s remarks should therefore be disregarded insofar as they differ from the judge’s directions. Such directions can be given at the beginning of a trial, or indeed at any other appropriate stage (CrimPD VI, para. 25A.3).
D16.17,
General Rule: Witnesses on Back of Indictment
D16.17
Having opened his case, prosecuting counsel calls his witnesses and reads out any written statements admissible under exceptions to the rule against hearsay. As a matter of practice, he should call or read the statements of all witnesses whose statements have been served, or, to use the traditional phrase ‘witnesses whose names are on the back of the indictment’.
Although counsel has a discretion not to call a witness on the back of the indictment, he must exercise his discretion in a proper manner and not for what Lord Thankerton in Adel Muhammed El Dabbah v A-G for Palestine [1944] AC 156 described as ‘some oblique motive’ (e.g., unfairly so as to surprise or prejudice the defence).
D16.36
Written Statements in Criminal Proceedings
D16.36
The CJA 1967, s. 9, provides for the admissibility of written statements in criminal proceedings (its terms are set out at D22.42). CrimPR part 16 and CrimPD V, paras. 16A.1 to 16A.6, set out the procedure (see Supplement, R-152 and PD-37).
In trials on indictment, it applies where the prosecution wish to adduce evidence additional to that served in accordance with the procedure when the case was sent, or by way of a notice of additional evidence thereafter (for which, see also CrimPD I, paras. 3B.1 to 3B.5: see Supplement, PD-4). The party proposing to tender the statement in evidence must serve a copy of it on each of the other parties. If one of those parties serves notice on the party wishing to use the statement that he objects to it going into evidence, the statement cannot be read at the trial. The Deregulation Act 2015, s. 80, amended the CJA 1967, s. 9, so as to replace the seven-day period in which such objection had to be made with provision for time-limits to be set by the CrimPR, though, subject to special circumstances, the time-limit is set by r. 16.4 at seven days.
, the first paragraph of D16.37
D16.37
In effect, s. 9 statements are admissible only if all the parties agree. Even if a statement is admissible under s. 9, the court may require that the maker attend to give evidence, e.g., where the defence dispute the contents of the statement but failed to object through an oversight (provision for which is made by s. 9(4) and CrimPR 16.4(4)).
, D16.40
Agreed Facts
D16.40
As an alternative to the reading of witness statements, facts derived from such witness statements or otherwise may be presented as agreed evidence. These facts, which are admitted by all parties to be true, are presented pursuant to the CJA 1967, s. 10 (see F1.2). Such admissions should be reduced to writing, and provided to the jury providing they are relevant to the issues that they are to determine and do not contain inadmissible material (Pittard [2006] EWCA Crim 2028 and CrimPR 25.13).
-16.41,
Standard Procedure
D16.41
Where the defence intend to object to the admissibility of prosecution evidence disclosed on the statements relied on by the prosecution (hereafter referred to as ‘disputed evidence’), the standard procedure is as follows.
(a) Defence counsel informs prosecution counsel of the objection before the latter opens his case to the jury. In his opening, prosecution counsel therefore makes no mention of the disputed evidence (as to circumstances where the admissibility issue ought to be resolved before the case starts, see D16.43).
(b) At the point at which the admissibility falls to be considered, the jury will withdraw to allow the matter to be resolved by the judge alone (see D16.42).
(c) If the admissibility of the disputed evidence raises collateral factual issues as to how it was obtained, it may be necessary to adduce evidence about those facts before the judge in the absence of the jury. This is known as a trial ‘on the voir dire’ because the witnesses testify on a special form of oath (see F4.32). Both prosecution and defence are entitled to call witnesses at this stage. However, their evidence (whether in chief or in cross-examination) should be limited to matters relevant to the admissibility of the disputed evidence. For the application of this rule to the admissibility of confessions, see the PACE 1984, s. 76(2), and Brophy [1982] AC 476 (see F18.8 and F18.62).
(d) Whether or not there has been evidence on the voir dire, the parties make their representations to the judge about the admissibility of the disputed evidence. (e) The judge then announces his findings on any factual issues arising on the voir dire and rules on whether the disputed evidence should be admitted or not, in the light of the findings of fact, the relevant law on admissibility of evidence and any discretionary power to exclude material which is legally admissible (considerations applicable to this determination are set out at D16.47).
(f) The jury return to court. If the judge ruled against the disputed evidence, the jury will know nothing about it (as to the editing of evidence consequent on such a ruling, see D16.51). If it is ruled admissible, the defence are still entitled to cross-examine on matters they raised on the voir dire, although at this stage the cross-examination goes to the weight, if any, that the jury should attach to the disputed evidence, not to its admissibility.
(g) The judge retains the discretion to review a determination on admissibility at a later stage (Watson [1980] 2 All ER 293, see D16.48).
This procedure, and the extent to which it is appropriate to depart from it in certain circumstances, is discussed below.
D16.51
Editing of Prosecution Evidence
D16.51
Where the prosecution evidence as foreshadowed in the statements relied on by the prosecution contains material which is of such prejudicial effect that the jury clearly ought not to hear it, the practice is for the parties to ‘edit’ the evidence by agreement before it is called. This practice was recognised by the Court of Appeal in Weaver [1968] 1 QB 353. Sachs LJ indicated (at pp. 357G–358A) that the best way for such editing to take place is for the evidence to appear ‘unvarnished’ in the committal statements. Counsel can then confer at trial to ensure that ‘the editing is done in the right way and to the right degree’. If necessary the judge can also play a part in the process.
CrimPD V, paras. 16A.1 to 16A.6 (see Supplement, PD-37), contain detailed instructions on the treatment of statements served as part of the prosecution case where some of the material contained therein may be inadmissible or unduly prejudicial. Three options are set out:
(a) A composite statement can be prepared to replace several earlier statements made by a witness (para. 16A.2).
(b) A completely fresh statement can be prepared for a witness to sign, omitting those parts of the first statement which are inadmissible or prejudicial (para. 16A.3(b)). The circumstances in which this is the preferred option are set out at para. 16A.4.
(c) Where the prosecution decide that it is unnecessary to have a new statement, the procedure to be adopted is that the original of the witness’s statement should be tendered to the court unmarked in any way but, on the copies served on the defence and provided to the court, the passages on which the prosecution do not propose to rely should either be bracketed or lightly struck out. The striking out should not be done in such a way as to obscure what is being deleted.
Paragraph 16A.3(a) states that the following note should be attached to the foot of the frontispiece or index to the bundle when served: ‘The prosecution does not propose to adduce evidence of those passages of the attached copy statements which have been struck out and/ or bracketed (nor will it seek to do so at the trial unless a notice of further evidence is served)’.
, D16.53-58,
Submission of No Case to Answer
D16.53
After the prosecution have closed their case, the defence may submit that the evidence does not disclose a case to answer in respect of any or all the counts on the indictment. The procedure for qthe making of such an application is dealt with at D16.66, along with the consequences of such a submission (see D16.69). The first issue, however, is the test to be applied.
The Test to Be Applied
D16.54
The leading authority on the test a trial judge should apply in determining whether there is a case to answer is Galbraith [1981] 2 All ER 1060. In the course of his judgment in that case, Lord Lane CJ said (at p. 1042B–D):
How then should the judge approach a submission of ‘no case’? (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 …
There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.
D16.55
First Limb As Lord Lane remarked, the first limb of the test set out in Galbraith [1981] 2 All ER 1060, does not cause any conceptual problems. The test of there being ‘no evidence that the crime alleged has been committed by the defendant’ is intended to convey the same meaning as the words of Lord Parker CJ in his Practice Direction (Submission of No Case) [1962] 1 WLR 227, when he told magistrates that submissions of no case to answer at summary trial should be upheld, inter alia, if ‘there has been no evidence to prove an essential element in the alleged offence’.
Such cases may arise, for example, where an essential prosecution witness has failed to come up to proof, or where there is no direct evidence as to an element of the offence and the inferences which the prosecution ask the court to draw from the circumstantial evidence are inferences which, in the judge’s view, no reasonable jury could properly draw (see further D22.52). However, judges should take care to avoid taking into account defence evidence which is yet to be called and potential defences which have not yet been made out in assessing this limb of the test (C [2007] EWCA Crim 1862).
D16.56
Second Limb The second limb of the test in Galbraith [1981] 2 All ER 1060, is far less straightforward, and has to be understood in the context of the practice that developed after the passing of the Criminal Appeal Act 1966, s. 4(1)(a) (now Criminal Appeal Act 1968, s. 2(1)), of inviting the judge to hold that there was no case to answer because a conviction on the prosecution evidence would be ‘unsafe’. That form of submission reflected the power given to the Court of Appeal by first the 1966 and then the 1968 Act to quash a conviction on the basis that it was, in the court’s opinion, ‘unsafe or unsatisfactory’ (but, since the Criminal Appeal Act 1995, part I, came into force, simply ‘unsafe’).
This approach inevitably involves the court considering the quality and reliability of the evidence, rather than its legal sufficiency, and therefore involved the court carrying out the assessment of evidence and witnesses that would otherwise be the exclusive prerogative of the jury. The judgment in Galbraith makes clear that it is not appropriate to argue on a submission of no case that it would be unsafe for the jury to convict, which would be an invitation for the judge to impose his own views of the witnesses’ veracity (see especially p. 1041B–C).
However, the second limb of the Galbraith test does leave a residual role for the court as assessor of the reliability of the evidence. The court is empowered by the second limb of the Galbraith test to consider whether the prosecution’s evidence is too inherently weak or vague for any sensible person to rely on it. Thus, if the witness undermines his own testimony by conceding that he is uncertain about vital points, or if what he says is manifestly contrary to reason, the court is entitled to hold that no reasonable jury properly directed could rely on the witness’s evidence, and therefore (in the absence of any other evidence) there is no case to answer.
D17.7
Defence Opening Speech
D17.7
If the defence intend to call evidence as to the facts of the case other than, or in addition to, the evidence of the accused, defence counsel has the right to an opening speech at the beginning of the defence case (Hill (1911) 7 Cr App R 1; CrimPR 25.9(2)(g)). If, however, the only defence evidence is to come from the accused (or from the accused and character witnesses) then counsel does not have an opening speech (see the Criminal Evidence Act 1898, s. 2) save where, pursuant to r. 25.9(2)(c), the judge invites defence counsel concisely to identify what is in issue, in order to assist the jury, following the prosecution opening. CrimPD VII, para. 25A.4 (see Supplement, PD-56), while acknowledging that the defence are not entitled to address the jury, indicates that the advantages of inviting the defence to do so are such that ‘usually the court should extend such an invitation’.
In an opening speech, defence counsel may both outline the anticipated defence case and criticise the evidence already given for the prosecution (Randall (1973) The Times, 11 July 1973). However, the speech should not make assertions of fact that are not to be proved by evidence that is to come.
