Chapter 5: Trial

Question 1

Witnesses: Preliminary issues

Answer 1

This section considers four preliminary issues relating to witnesses:
* Competence
* Compellability
* Opinion evidence and experts
* Privilege

Question 2

1.1 Competence

Answer 2

When we talk about the competence of a witness, we simply mean whether the witness is permitted to give evidence to the court. In more formal language, a witness is competent if a person ‘may lawfully be called to testify’. Generally speaking, anyone is a competent witness. There are a few exceptions, ie a few instances where a witness, even if willing, is simply not competent to give evidence for one party or another

Question 3

The defendant/accused

Answer 3

The defendant is not competent to be a prosecution witness. Where
there are multiple defendants, none of them can be prosecution witnesses for the other. The proceedings must be completed against any one of them so that they are no longer defendants in the case before they can be competent as witnesses for the prosecution. Defendants are, of course, competent to give evidence on their own behalf, and are competent
to give evidence on behalf of a co-defendant

Question 4

Children and persons with a disorder or disability–

Answer 4

Age is not the determining factor of
whether a child is competent; the only test is whether the child can (1) understand questions, and (2) can give comprehensible answers. The test is the same for those operating with a disorder or disability.

Question 5

Spouse/civil partner

Answer 5

A spouse or civil partner of a defendant is competent to give evidence for any party in the case

Question 6

Deaf or speech impaired witness–

Answer 6

These witnesses are competent so long as they understand
the solemnity of taking the oath or affirmation. They can give evidence using interpreters, handwriting, sign language or any combination of these

Question 7

1.2 Compellability

Answer 7

Some witnesses cannot be compelled to give evidence. Most can, but some cannot. The primary exceptions, ie those who are not necessarily compellable, are as follows:

Question 8

1.2.1 The defendant

Answer 8

The defendant is not competent for the prosecution and so clearly can’t be compelled by the prosecution. The defendant may give evidence on D’s own behalf, but cannot be compelled to do so.

Question 9

1.2.2 Children and persons with a disorder or disability

Answer 9

If competent, these witnesses are compellable.

Question 10

1.2.3 Special rules

Answer 10

There are also rules for diplomats, sovereigns and bankers, but these are most unlikely to be examined.

Question 11

1.2.4 Spouses/civil partners

Answer 11

Spouses and civil partners can be compelled to give evidence for their spouse or civil partner (ie
for the defence) but only for the prosecution if the offence charged against their partner is (PACE
s 80):
(a) Assault on, or injury, or threat of injury to that spouse or partner (ie domestic violence)
(b) Assault on, or injury, or threat of injury, to a child under 16
(c) A sexual offence against someone under the age of 16
(d) Attempts, conspiring, aiding and abetting any of the above

Question 12

1.2.4 Spouses/civil partners

Answer 12

The logic is clear. Spouses and civil partners should not normally have to act against the interests of their partners, and this is generally accepted, unless the partner is inflicting domestic violence or abusing children. At that point, the courts can require spouses to attend to give evidence even if they do not want to do so. If they refuse to attend, they can be arrested, and if they refuse to
answer questions they can be held in contempt.

Question 13

1.3 Opinion evidence and experts

Answer 13

There is a rule which is simple in expression (but quite hard in practice) which is that witnesses are,
generally speaking, called upon only to be witnesses of fact. Analysis of those facts is argued by advocates, and it is for the jury to ultimately decide on what inferences they draw and what
conclusions they should come to from the factual evidence provided. The courts will receive opinions from witnesses, but only if:
(a) The opinion is given in relation to commonplace occurrences about which the witness’s
perception appears relevant and proper; or
(b) If the witness is an expert.

Question 14

1.3.1 Opinion evidence

Answer 14

There are so many different types of opinion that might be given by a witness, that it is not possible to have a list of matters that require (or do not require) an expert. A good example of an admissible perception of a non-expert is an opinion as to drunkenness.
Many people involved in crime or who are witnesses to it have consumed alcohol.

A witness could give factual evidence to indicate that a relevant person’s speech was slurred, pupils were dilated, or was walking unsteadily. In reality, though, witnesses would tend to simply say ‘the man was drunk’. This is, strictly, an opinion, and so would normally not be admissible

Question 15

1.3.1 Opinion evidence

Answer 15

However, the law does not restrict such a statement in court on the basis that it is a way of expressing in summary the factual observations that the witness had made, and that the assessment of drunkenness is sufficiently commonplace a task that the witness’s perception would be received by the court. It remains best practice to focus questions in examination on the observable facts rather than only eliciting the opinion.

Question 16

1.3.1 Opinion evidence

Answer 16

It remains best practice to focus questions in examination on the observable facts rather than
only eliciting the opinion. The list of other permissible non-expert opinions would be a truly huge list. Many of the items on the list would be under the heading of ‘identification’ as witnesses tend to combine facts (eg ‘the attacker wore a blue cardigan’) with opinion based on observations (eg ‘he
was young and male’).

Question 17

1.3.1 Opinion evidence

Answer 17

Similarly, recognition of voice and handwriting are examples of opinions which are acceptable as having been derived from observed facts and represent an inference, the like of which is commonplace and will be received as admissible perceptions.

Question 18

1.3.2 Expert evidence

Answer 18

Issues that would require expertise include more technical matters of science, medicine,
psychology etc. Doctors who have tended to a victim’s injuries may be tempted to give an opinion
as to whether the injury presented could have been caused in the way that was described by the
victim.

Occasionally the law specifies what level of expertise would be required before the court would
receive such an opinion. In this case (ie the opinion as to the likely cause of injury) it is clear that a
doctor, and specifically not a nurse, would be the only person with sufficient expertise to give
such evidence. Expertise can be acquired either through a course of study or by practical
experience (or a combination of both). It is for the party seeking to rely on the expert evidence to
establish that the expert has sufficient expertise

Question 19

1.3.2 Expert evidence

Answer 19

Witnesses that are deemed as experts are treated slightly differently to other witnesses. They are regarded more as independent consultants than partisan witnesses, and experts are asked to
consider their role as being neutral and objective. Where there are multiple experts in a case, they are encouraged to meet to establish the matters on which they agree and disagree, and to narrow the issues between them and to explain the basis on which any disagreement is founded. Experts should always be clear in defining the boundaries of their expertise and to indicate if the questioning is straying into areas in which their expertise may be less clearly relevant.

Question 20

1.3.2 Expert evidence

Answer 20

As a matter of good practice, an advocate should not ask an expert to give an opinion directly on
the ‘final’ issue in the case. So if, for example, the question for the jury is whether the defendant caused death by dangerous driving, one should not ask (without prior leave) the witness ‘Is it your opinion that the defendant caused this death by dangerous driving?’. Opinions as to the component parts of the driving would be better (eg giving an opinion as to the speed of the car by reference to skid marks). The jury would then conclude the final question for itself.

Question 21

1.3.2 Expert evidence

Answer 21

The jury is not obliged to accept expert evidence, even if it is not contradicted. In every case where there is an opinion that has not been directly contradicted, the judge has to decide how to sum
the case up to the jury and, if there is other evidence that tends to a conclusion which is not the
conclusion of the expert, the jury would still be empowered to prefer the alternative conclusion. Only in cases where the expert’s opinion and all the other evidence leads inevitably to only one conclusion should the jury be directed to accept the opinion as correct

Question 22

1.4 Privilege

Answer 22

We will consider two main forms of privilege:
* Against self-incrimination; and
* Legal professional privilege which can be sub-divided into:
- Litigation privilege; and
- Advice privilege.

Question 23

1.4.1 Against self-incrimination

Answer 23

There is a general principle (under the common law) that courts will uphold a witness’s right (and we are talking about witnesses other than the defendant) to refuse to answer questions or disclose documents if to do so would make that person liable to incriminate themselves. It is
important to note that the person cannot claim privilege to protect another person, even a spouse, and cannot be invoked in order to protect against possible liability in a civil court.

Question 24

1.4.1 Against self-incrimination

Answer 24

A defendant’s (ie someone ‘charged in criminal proceedings’) right to refuse to answer questions was removed from the common law by the Criminal Evidence Act 1898, and is now governed by the rules on ‘adverse inferences’, dealt with in separate sections.

Question 25

1.4.1 Against self-incrimination

Answer 25

If a person claims privilege against self-incrimination to protect information, the person cannot prevent the same information being acquired by other routes. The privilege only extends to that person, and any investigatory body is entitled to consider how else to access the information.

Question 26

1.4.2 Legal professional privilege

Answer 26

Legal professional privilege is the privilege that exists when a client communicates with a lawyer.
There are two sub-divisions at play, and are whether

(a) The purpose of the communication with a lawyer is to advance or act in a process of litigation (litigation privilege); or
(b) To obtain advice more generally (advice privilege).

Question 27

1.4.2 Legal professional privilege

Answer 27

There are slightly different rules in relation to these two purposes and privileges. Clearly there is a
lot of communication with lawyers which is not effected with litigation in mind. All the direct communication between lawyer and client is privileged, but the distinction comes into play in
relation to third parties. If the third-party communication is generated during, or in contemplation of, litigation, then privilege is likely to attract, but if there is no litigation involved, then documents supplied to a lawyer from a third party for more general advice is usually not protected by privilege.

Question 28

1.4.2 Legal professional privilege

Answer 28

The privilege can be waived either explicitly or by conduct, and as a rule a person cannot waive privilege partially. Only the person entitled to claim privilege can waive it. In the case of legal professional privilege, the right to waive privilege is the right of the client rather than the law firm.

Question 29

1.5 Summary

Answer 29

This section considered four preliminary issues relating to witnesses:
* The courts will receive opinions from witnesses, but only if:
- The opinion is given in relation to commonplace occurrences about which the witness’s
perception appears relevant and proper; or
- If the witness is an expert.

Question 30

1.5 Summary

Answer 30

• Privilege:
• Against self-incrimination- witnesses (other than the D in this context) have rights to refuse to answer questions or disclose documents if to do so would make that person liable to incriminate themselves.
• Legal professional privilege:
  ◦ All the direct communication between lawyer and client is confidential unless the client chooses to waive this.
  ◦ Communications with third parties will be privileged in the case of litigation but not general advice

Question 31

Examination of witnesses

2.1 Oaths and affirmations: Overview

Answer 31

As a general rule, all witnesses must either take an oath before giving evidence, or make an. affirmation. There is no difference between the two in the eyes of the law. The only real exception where evidence may be received unsworn is in the case of children and those of ‘unsound mind’.
In these cases, the courts can receive evidence, but it would be wrong to make the witness take the oath. The test for children and those with unsound mind is whether they ’have sufficient appreciation of the solemnity of the occasion and of the particular
responsibility to tell the truth which is involved in taking an oath’.

Question 32

Youth Justice and Criminal Evidence Act, s.55.

Answer 32

The court usher should have to hand a number of oath cards to cover all main religions. The ultimate issue is not whether the words on the card perfectly match the variant of the religion that
the witness might adhere to, but rather to assess if the oath is one that the witness would find ‘binding on one’s conscience’. Following this principle, a Muslim witness was deemed properly
sworn after swearing on the New Testament. Refusal to take an oath or affirmation can be punished as a contempt of court.

Question 33

2.2 Examination in chief

Answer 33

There are various issues relating to examination in chief that we will consider:
* Form of questioning
* Memory refreshing
* Hostile witnesses
* Previous consistent statements
- Res gestae
- Suspect’s response to police allegation
- Complaints
- Recent fabrication

Question 34

2.2.1 Form of questioning

Answer 34

For examination in chief, the questions should be non-leading. Evidence adduced from a leading question may be considered to be inadmissible or to carry less weight. The big exceptions are that leading may be allowed on issues that are not in dispute, or where the witness has been deemed hostile.

Question 35

2.2.2 Memory refreshing

Answer 35

Statements made out of court are considered to be hearsay (if they seek to prove the truth of their contents etc). There are three ways in which an out of court written witness statement may be
used in court:
(a) The statement may be read out if the contents of the statement are agreed. The hearsay objection is overcome by saying that the jury should regard the evidence read out in the statements as if the witness had come into court and given the evidence from the witness box

Question 36

2.2.2 Memory refreshing

Answer 36

(b) The witness can ask to ‘refresh their memory’ from their statement. This is normally uncontroversial, and witnesses are generally free to spend a moment reminding themselves of
their evidence from their statements. There are a few points of best practice, though:

Question 37

2.2.2 Memory refreshing

Answer 37

• Try to observe the statute that says that refreshing memory is permissible where the earlie written account provides a ‘significantly better’ recollection than could be achieved without it, Criminal Justice Act, s.139.
• Allow witnesses to read the statements back to themselves and then ensure that the evidence is given apparently from a recovered memory rather than by simply reading out
  the statements

Question 38

2.2.2 Memory refreshing

Answer 38

(c) In cross-examination on a previous inconsistent statement (see later).
- A witness does not have to read their statement in the witness box where it would be undesirable, for example, a dyslexic witness may wish to withdraw to a quiet room so to do.

Question 39

(c) In cross-examination on a previous inconsistent statement (see later).

Answer 39

When a witness refreshes their memory they may be cross examined on the contents of the statement used to refresh their memory without the statement coming into evidence. Where material other than that which the witness used to refresh their memory is raised in questioning, this entitled the other side to apply to put the statement into evidence so the
jury can form their own view about the basis for the cross examination.

Question 40

2.2.3 Hostile witnesses

Answer 40

It is occasionally the case that a witness known to have evidence that could assist the prosecution
then indicates they are not going to give that evidence in court. This is most common in domestic violence cases, where a partner reports having been assaulted, but then some time before the trial retracts that statement. This is often under pressure from the offending partner who has been promising to change and regains the partner’s affection.

Question 41

2.2.3 Hostile witnesses

Answer 41

If the witness is then called to give evidence and gives an account inconsistent with their original
statement to the point the judge forms the view the witness is not ‘desirous of telling the truth’, the party calling that witness may apply to the judge to treat them as hostile. A party is free to cross
examine a hostile witness and put their previous statement to them as the truth of the matter

Question 42

2.2.3 Hostile witnesses

Answer 42

Any inconsistent statement presented to a witness can be used to prove the truth of its contents notwithstanding that the statement was (or might have been) deemed as inadmissible hearsay
before the witness contradicted it in evidence.

Question 43

2.2.4 The use of previous consistent statements

Answer 43

As a general principle of evidence, it is thought that an allegation made by a witness does not become more reliable simply because the witness repeated the allegation on numerous occasions.
It was therefore the general rule that the court hears the witness make the allegation in court, and it is not generally admissible to elicit evidence that the witness made earlier consistent allegations or statements. This has been substantially altered by s.120 of the Criminal Justice Act 2003

Question 44

2.2.4 The use of previous consistent statements

Answer 44

There are some exceptions, ie where the court will hear the evidence of an earlier consistent complaint or statement. Where an exception exists, one needs to consider if the earlier consistent statement can be used to prove the statement itself is true, or only to prove the consistency of the
person who made the earlier statement. We will note what use the consistent statement can be
put to under each section. The main exceptions are as follows:

Question 45

Exceptions to the use of previous consistent statements

Answer 45

• Res gestae
• Suspect’s response to police allegation
• Complaints
• Recent fabrication

Question 46

2.2.5 Res gestae

Answer 46

This is because the person would not have had any time to conjure up a false response if you only look at what was said in the immediate aftermath of an incident. So, for example, if someone suddenly jumps up and shouts out on the tube ‘what are your hands
doing there you pervert!?’, that would seem to be an immediate response to a potential sexual assault, and would be admissible. This would be admissible to prove the truth of the (implied) allegation.

Question 46

2.2.5 Res gestae

Answer 46

Res gestae: This is a statement made as an immediate reaction to a crime being committed against the statement maker.

Question 47

2.2.6 Suspect’s response to police allegation

Answer 47

The police, as a matter of course, will ‘accuse’ all suspects of an offence when they arrest, interview and charge a suspect. The responses to all police allegations are admissible, whether
they are confessional or involve self-serving denials of guilt.

The only difference is the use to which they are put. If a suspect wholly denies an offence to the police, it may be useful to the jury to assess the overall conduct of the defence, and the
consistency of the defendant’s denials. It cannot go further and prove the truth of the denials.

Question 48

2.2.7 Complaints

Answer 48

There is a common law principle that the quicker that someone complains about an allegation, the more likely the complaint is to be reliable. The common law therefore developed a doctrine called the ‘doctrine of recent complaint’. The Criminal Justice Act 2003 took the principle a lot further and simply made complaints admissible where the complainant testifies that the earlier complaint was made and was true.

This statutory provision (s.120) does not replace the common law, but as it is much wider it makes the common law somewhat redundant. The Act also allows the earlier complaint to show consistency in complaining and to prove the truth of the complaint

Question 49

2.2.8 Rebuttal of ‘recent fabrication’ allegation

Answer 49

If a witness is challenged in the box, and it is suggested that something that the witness has just said has only just been made up, then the witness is permitted to try to prove that this is not the
case.

The witness is therefore allowed to negate the allegation of ‘recent fabrication’ by showing that earlier statement was made to the same effect as the statement impugned as being a recent fabrication.

Again, the court must consider s.120 CJA 2003 in deciding whether there is an earlier complaint that can rebut the allegation of recent fabrication.

Question 50

2.3 Cross-examination

Answer 50

We will consider:
* Form of questioning
* Previous inconsistent statements
* Restrictions

Question 51

2.3.1 Form of questioning

Answer 51

In cross-examination, advocates may ask leading questions, ie questions that contain factual statements that indicate what answer the advocate wants the witness to make. Indeed, there is a principle that is part of the Code of Conduct for barristers that states that
unless a witness’s account is challenged on a particular point, it is deemed to have been tacitly accepted.

Question 52

2.3.1 Form of questioning

Answer 52

This rule applies to both factual challenges, where the advocate has to promote the alternative factual case to the one being expressed by the witness, and to imputations on the witness’s character which must be done plainly to the witness’s face. The case that first set up this principle is the ancient and famous case of Browne v Dunn [1893] 6 R 67, HL. There has been case law in many ex-UK jurisdictions about just how fully and meticulously it is necessary to convey every minute disagreement between the witness and the party for the
other side, but the broad principle of ‘putting’ your case where it is in conflict with the witness remains fundamental.

Question 53

2.3.1 Form of questioning

Answer 53

Witnesses should generally only deal in facts. Witnesses should not be encouraged to give opinions unless they are on very ‘everyday’ matters
such as giving the opinion that someone was drunk. A practice that has been seen regularly in courts, but which is deemed to be improper, is the
question type that asks one witness to comment on another witness, particularly when they have given inconsistent evidence. So one shouldn’t say something like ‘Well, you can’t both be right, so are you calling X a liar?’ That is comment, not a question, and should be reserved for your closing speech.

Question 54

2.3.2 Previous inconsistent statements

Answer 54

The courts do not generally admit into evidence a police witness statement. It classifies as hearsay.
It can become admissible, under s.119 Criminal Justice Act 2003 however, if the witness in the box giving live evidence departs materially from the statement, either by contradicting the statement or adding something to it which was not there originally. In either case, the original statement can be produced and shown to the witness in order to challenge the discrepancy in the accounts provided.

Question 55

2.3.2 Previous inconsistent statements

Answer 55

The party using the statement in cross-examination can refer to the fact that the original statement was made much closer to the incident and it is a signed and sworn statement (as is the
live evidence). Given how readily memories fade, and how easy it is for witnesses to get flustered and make mistakes, it is quite common for inconsistencies to arise between the evidence in the box and the evidence in the statement.

Question 56

2.3.2 Previous inconsistent statements

Answer 56

Minor discrepancies should be expected and would not normally lead to an advocate picking them up and cross-examining upon them, but more major changes in an account can provide valuable insights into the credibility of the witness

Question 57

2.3.3 Restrictions on cross-examination

Answer 57

Cross-examination can be robust, and it can lead to a witness being upset, vilified or annoyed. For example, the Bar Standards Board Handbook for professional practice is clear, however, that upsetting a witness should never be done gratuitously, for its own sake, and it should never be done unless it serves a clear and useful purpose. The judge will determine if the questions ‘cross the line’.

Question 58

2.3.3 Restrictions on cross-examination

Answer 58

The judge can also determine if a matter has been sufficiently explored and can put time limits on time dedicated to issues that are peripheral or already covered sufficiently. The law in relation to what questions can be put to victims/complainants of sexual offences is quite carefully guarded by law. Questions about the victim’s general promiscuity or other sexual
behaviour are not allowed without leave of the court (Youth Justice and Criminal Evidence Act 1999, s.41).

Question 59

2.3.4 Finality on collateral matters

Answer 59

The rule of finality to collateral matters prevents trials from splintering into multiple insignificant disputes about credibility related matters collateral to the issues in the case. Therefore, if a
witness to a bank robbery is asked in cross examination whether they once lied on a mortgage application and they say no (imagining that to be (i) relevant and (ii) to have passed the
necessary bad character hurdles), the defence would be prohibited from adducing evidence of the mortgage application because the matter was collateral to main issues and the answer ‘no’ was final in the eyes of the law

Question 60

2.3.4 Finality on collateral matters

Answer 60

The courts are more lenient in allowing evidence to be admitted on the ‘collateral’ issue of a witness being ‘biased or partial’ and even when a witness denies such, counter-evidence will be admissible

Question 61

2.4 Re-examination

2.4.1 Form of questions

Answer 61

In any case, if matters are raised in cross-examination which could not reasonably have been
covered in examination in chief, then the party calling the witness may ask further questions after
the cross-examination in re-examination.
These questions should follow the same rules as examination in chief – namely no leading
questions unless the matter is not in dispute, and witnesses can refresh their memory if necessary

Question 62

2.5 Summary

Answer 62

This section considered:
* Oaths and affirmations
* Examination in chief
- Form of questioning
- Memory refreshing
- Hostile witnesses
- Previous consistent statements
◦ Res gestae
◦ Suspect’s response to police allegation
◦ Complaints
◦ Recent fabrication

Question 63

2.5 Summary

Answer 63

• Cross-examination
• Form of questioning
• Previous inconsistent statements
• Restrictions including finality on collateral matters
• Re-examination
• Form of questioning

Question 64

Summary trial

3.1 Introduction to summary trial

Answer 64

Trials are only necessary when the defendant pleads ‘not guilty,’ and their guilt needs to be
determined by the hearing of evidence. Most defendants plead guilty (around 90% in the Magistrates’ and 60% in the Crown).
Trial in the magistrates’ court is known as summary trial. Summary trials involve:
* ’Summary only’ offences (offences that can only be tried in the magistrates’ court); or
* ‘Either-way’ offences (offences that can be tried in either the magistrates’ court or the Crown
Court) where the magistrates have retained jurisdiction following the allocation procedure

Question 65

3.1 Introduction to summary trial

Answer 65

In the Crown Court a defendant is tried on indictment. Each indictment has a number of counts
reflecting the allegations against the defendant.
The overall process of a trial is the same irrespective of the court it is heard in. For example:
* The burdens of proof.
* The rules of the admissibility of evidence
* The possible inferences which can be drawn under the CJPOA 1994.
* How witnesses give evidence and which witnesses.
* The order of the evidence. A trial is adversarial, so the prosecution will always open the case as
it carries the evidential and legal burden of proving the case beyond reasonable doubt. If, at
the close of its case, the prosecution has failed to introduce sufficient evidence, then an
application of ‘no case to answer’ can be made.

Question 66

3.2 Magistrates’ court trial procedure (Criminal Rules Part 24)

Answer 66

All summary trials take place before a ‘bench’ of at least two, but usually three, lay magistrates
(also known as ‘justices of the peace’) or before a single District Judge.
District Judges are professional lawyers. Rather than sitting as part of a bench of three, a District
Judge usually sits alone.
Lay magistrates are not professional lawyers; they are unpaid volunteers. They receive training to assist them with the law and procedure in the court but also have a court legal adviser to help them.

Question 67

3.2.2 The authorised court officer

Answer 67

Previously referred to as the justices’ clerk, the court clerk or legal adviser.
The authorised court officer will provide assistance to justices of the peace with both the relevant law and procedure when required during the summary trial process. The authorised court officer
takes no part in deciding upon the verdict in a summary trial. The authorised court officer must be
present during a trial judged by a bench of lay magistrates but is not required to be present in a
summary trial presided over by a District Judge.

Question 68

3.2.3 Judges of fact and law

Answer 68

In a summary trial the magistrates or District Judge are the judges both of the fact and the law. As such, any legal applications requiring them to rule certain evidence as inadmissible require, if successful, the same magistrates/District Judge to ignore that material they have previously
heard about. This is just one reason why a defendant might be advised, in an appropriate either-way case, to
elect trial before judge and jury in the Crown Court.

Question 69

3.2.4 Legal arguments

Answer 69

In the magistrates’ court, the magistrates usually have a discretion as to when to determine questions of admissibility. As such, they can rule on an s.78 application when it arises or hear all the evidence (including the
disputed evidence relating to the legal argument) before ruling on admissibility

Question 70

3.2.5 Prosecution opening speech

Answer 70

Prosecution summarise the prosecution case, concisely identifying the relevant law, outlining the
facts and indicating the matters likely to be in dispute.

Question 71

3.2.6 Defence identify matters in issue

Answer 71

Where the magistrates or District Judge feel it would assist them to understand the case and resolve any issue, they are entitled to ask the defence (ie the defence representative or the defendant in person if unrepresented) to identify concisely what is in issue in the case (ie what is in dispute, CrimPR r.24.3(3)(b)). This is particularly helpful in summary trials because, unlike in cases that are sent to the Crown Court, there is no requirement for a defence statement.

Question 72

3.2.7 Prosecution evidence

Answer 72

Having opened its case, the prosecution will present its evidence to the court. Evidence can be presented by:
* Calling witnesses;
* Reading witness statements under s.9 Criminal Justice Act (‘CJA’) 1967 when the evidence of
that witness is not in dispute or where the prosecution have made a successful application to read a witness statement or part of it under the hearsay provisions;
* Reading admissions under s.10 CJA 1967 ie facts which are agreed by the prosecution and defence.

Question 73

3.2.8 Submission of no case to answer

Answer 73

On the defendant’s application or on its own initiative, the court may acquit on the ground that the prosecution evidence is insufficient for any reasonable court to properly convict.

Question 74

3.2.9 Right to give evidence and adverse inferences

Answer 74

Defendant must be informed of:
* The right to give evidence, and
* The potential effect of not doing so at all, or of refusing to answer a question while doing so

Question 75

3.2.10 Defence evidence

Answer 75

Like prosecution evidence, defence evidence can be given by witnesses live from the witness box in
court; alternatively, where the evidence is agreed by the prosecution, evidence can be read from witness statements or presented in the form of written admissions. It is also open to the defence to apply to read witness statements under the hearsay provisions of the Criminal Justice Act 2003, see the hearsay sections for more detail. Witnesses will be examined in chief, cross-examined and re-examined in the same order as the
defendant.

Question 76

3.2.11 Prosecution closing speech

Answer 76

The first closing speech they will hear is from the prosecution, but the prosecution is only entitled
to make a closing speech where:
* The defendant is represented; or
* Whether or not they are represented, the defendant has introduced evidence other than their own.
As such, the prosecution cannot make a closing speech in a case involving an unrepresented defendant who does not rely on any evidence other than what the defendant in person says in the
witness box.

Question 77

3.2.12 Defence closing speech

Answer 77

After the prosecution closing speech (if there is one) the defendant’s legal representative will make
a closing speech on behalf of the defendant. The defence are always entitled to make a closing speech.

Question 78

3.2.13 Legal advice

Answer 78

Before retiring to consider their verdict, the legal adviser will advise the magistrates in open court on any matters of law that are required.
When a District Judge is hearing the case, even if an authorised court officer was present, there would rarely be any need for such advice to be given.

Question 79

3.2.14 Magistrates retire

Answer 79

After receiving any legal advice the magistrates will retire to consider their verdict. If the magistrates require assistance from the authorised court officer after retirement they should
request this in open court. If any legal advice is given to the magistrates other than in open court the authorised court officer should inform them this advice is only provisional; the authorised
court officer should then repeat the substance of the advice in open court to allow representations from the prosecution and defence.

Question 80

3.2.15 Verdict

Answer 80

The magistrates/District Judge will announce the verdict in open court.
Where there is disagreement amongst three lay magistrates the view of the majority prevails; however, if only two magistrates were able to hear the case and they are evenly divided, they
must adjourn the case for a rehearing before a new bench.

Question 81

3.2.16 Guilty: Duty to give reasons

Answer 81

If the magistrates/District Judge convict a defendant sufficient reasons must be given to explain the decision.

Question 82

3.3 Summary

Answer 82

This section provided an overview of the procedural steps in a summary trial.
Some key differences between summary and Crown Court trials include:
* The role of the legal adviser to assist the bench; and
* The judges (who are the judges of law and facts in magistrates’ court trials.

Question 83

Magistrates’ Court trial procedure (Criminal Procedure Rules Part 24):

Answer 83

• Legal arguments
• Prosecution opening speech
• Defence identify matters in issue
• Prosecution evidence
• Conclusion of the prosecution case
• Submission of no case to answer
• Right to give evidence and adverse inferences
• Defence evidence
• Prosecution closing speech
• Defence closing speech
• Legal advice
• Magistrates/District Judge retire to consider verdict
• Verdict

Question 84

4 Trial in the Crown Court

Answer 84

Trials are only necessary when the defendant pleads ‘not guilty,’ and their guilt needs to be determined by the hearing of evidence. Most defendants plead guilty (around 90% in the magistrates’ and 60% in the Crown Court).

Crown Court trials are also referred to as ‘trials on indictment’ and offences which can be tried in the Crown Court are ‘indictable’ offences that is either-way or indictable only offences.

These will often be the more serious either-way offences where the magistrates have considered
that their sentencing powers in the event of conviction would be insufficient and have sent the
case for trial to the Crown Court. A defendant also has the right to elect to be tried on indictment

Question 85

4 Trial in the Crown Court

Answer 85

The Crown Court is the only court where indictable only offences can be tried. These are offences such as murder, attempted murder, manslaughter, causing grievous bodily harm with intent and robbery. The Crown Court differs from a magistrates’ court in that it has to incorporate space for a jury of 12 people. Often in the Crown Court there will also be more space both for the public to watch cases and for the legal representatives to sit. Invariably therefore a Crown Court is larger than a magistrates’ court.

Question 86

4 Trial in the Crown Court

Answer 86

It is worth noting at this stage that the court clerk in the Crown Court is not the same as th authorised court officer in the magistrates’ court. Although they both carry out some similar
administrative functions, the Crown Court Clerk is:
* Not legally qualified and never gives legal advice
* Responsible for many of the duties relating to:
- Selecting and taking verdicts from the jury; and
- For arraigning defendants
Trials in the Crown Court take place before a judge and a jury, save for a few exceptional occasions (not dealt with in this section) where trials by a judge alone can take place

Question 87

The judges who sit in the Crown Court are:

Answer 87

• Circuit Judges- referred to as ‘Your Honour’. They wear a violet and black robe and a red tippet (sash) over their left shoulder;
• Recorders- referred to as ‘Your Honour’. Recorders are barristers or solicitors who sit as parttime judges. They wear black robes; and
• High Court Judges- referred to as ‘My Lord, My Lady’. Occasionally, the most serious Crown Court cases are heard by High Court Judges who are distinguished by their red robes, hence
  often being referred to as ‘red’ judges

Question 88

4.1 Role of the judge and jury

Answer 88

The judge:
* Is the arbiter of the law.
* Makes rulings about the admissibility of evidence (in the absence of the jury).
* Directs the jury about matters of law (eg explaining what has to be proved and who by).
* Can direct a jury to find a defendant not guilty (for example following a successful submission
of no case to answer) but cannot direct a jury to find a defendant guilty.

Question 89

The jury:

Answer 89

• Is the sole decider/arbiter of facts.
• Decides whether the defendant is guilty.
• Must accept and apply the judge’s directions about the law.
• Must reach its decision only based on the evidence it hears in court. It will:
• Determine whether, and to what extent, the evidence is to be believed; and
• Decide whether to draw inferences from the evidence or from a defendant’s silence.

Question 90

4.2 Crown court trial procedure
(Criminal Procedure Rules Part 25)
4.2.1 Legal arguments

Answer 90

Crown Court cases are actively managed in the lead up to trial in order that the trial itself runs as
smoothly as possible.
Sometimes pre-trial hearings before the trial judge take place specifically for the purpose of dealing with legal arguments. In practice, however, many legal arguments take place on the first day (or first few days) of trial. Legal arguments in the Crown Court can be heard before or after the jury are sworn.

Question 91

Voir dire

Answer 91

Where a voir dire is required, this still takes place in the absence of the jury, since it is a procedure
for the judge to resolve a factual dispute which is relevant to a legal argument.
In practice, when a legal representative says to the judge that ‘a matter of law’ has arisen, the
judge will take this as the cue to ask the jury to briefly retire whilst the legal argument is dealt
with.
Common legal arguments dealt with just prior to the commencement of a jury trial in the Crown
Court are:
* Applications relating to bad character;
* Hearsay applications;
* Applications to exclude evidence under section 76 or 78 Police and Criminal Evidence Act 1984;
and
* Abuse of process applications.

Question 92

4.2.2 Jury selection and swearing in the jury

Answer 92

Twelve jurors are required to start a Crown Court trial. A ‘jury panel’ of about 16 people go into court from which the 12 will be chosen at random. As each juror is called from the panel they will
take their place in the jury box. When the jury box is full but before each juror takes the jury oath or affirmation, the defendant is told by the court clerk that they have the right to object to any
juror. Each jury member is then sworn.
The jury selection process that takes place in the USA is very different.

Question 93

4.2.3 Judge’s preliminary instructions to the jury

Answer 93

The judge will tell the jury that the evidence upon which they must decide the case is the evidence
that will be presented to them in court and they must not discuss it with anyone else who may have a view but will not have heard the evidence. The judge will also explain that matters of law are for the judge alone, so if any legal applications are made during the trial the jury will be asked to leave court while they are dealt with.

Question 94

4.2.4 Prosecution opening speech

Answer 94

In the Crown Court, the prosecution opening speech is focused on the facts and issues in the case, namely on what the case is about, what the areas of dispute are and why the prosecution
says the defendant is guilty of the offence or offences with which the defendant is charged. The prosecutor will tell the jury what counts the defendant faces. The prosecutor should avoid the use of overly emotive language

Question 95

4.2.5 Defence identify matters in issue

Answer 95

To help the jury to understand the case, the judge can invite the defence to confirm or clarify what the issues in the case are (ie what precisely is in dispute).

Question 96

4.2.6 Prosecution evidence

Answer 96

The prosecution case has been served on the defence at the outset of the proceedings. All witnesses the defence wish to question will have been included in the Plea and Trial Preparation. Hearing form. The defence will only want to question a prosecution witness if there is some
disagreement with the contents of that witness’s statement. The prosecution will start by calling all the prosecution witnesses that the defence asked to be
called. The prosecutor will then take the witness through evidence in chief. The witness is then cross-examined by the defendant’s legal representative

Question 97

4.2.6 Prosecution evidence

Answer 97

When the defence has no dispute with the content of a prosecution witness’s statement no purpose would be served in calling the witness to give live evidence and instead, where the
defence agree, the prosecution can read the statements of prosecution witnesses. Just before the prosecutor reads a witness statement to the jury, the judge will explain to the jury
that they can receive evidence in various ways and that this is agreed evidence which is why it is
being read to them. The defendant’s ‘record of taped interview’ (ROTI) with the police will be produced in an edited
form containing the salient questions and answers. The jury will get a copy of the ROTI and the prosecution will also read the interview out in court

Question 98

4.2.6 Prosecution evidence

Answer 98

Where the defendant has made a ‘no comment’ interview, rather than presenting a ROTI to the
jury the prosecution will often instead present agreed written admissions stating what the defendant was asked about and that the defendant replied ‘no comment’ to all questions put. This
will allow the jury to consider whether it would be proper to draw an inference from the defendant’s silence.

Question 99

4.2.7 Conclusion of the prosecution case

Answer 99

The case for the Crown is concluded.

Question 100

4.2.8 Submission of no case to answer

Answer 100

At the end of the prosecution evidence, on the defendant’s application or on its own initiative, the judge may direct the jury to acquit on the ground that the prosecution evidence is insufficient for
any reasonable court properly to convict, but must not do so unless the prosecutor has had an opportunity to make representations.

Question 101

4.2.8 Submission of no case to answer

Answer 101

This is known as a submission of no case to answer and is often referred to as a ‘half time’ submission due to the stage in the trial at which it is made.
The submission will be made in accordance with the test laid down by Lord Lane CJ in R v Galbraith [1981].

Question 102

4.3 Defendant’s right to give evidence or not

Answer 102

After the prosecution has closed its case the judge will ask the defendant’s legal representative in the presence of the jury if the defendant is going to give evidence. If the answer is yes, the case will proceed. If the answer is no the judge will ask, ‘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 103

4.3 Defendant’s right to give evidence or not

Answer 103

There is no obligation on the defendant to give evidence, but failure to do so can result in adverse
inferences being drawn pursuant to s 35 Criminal Justice and Public Order Act 1994. The final decision as to whether or not to give evidence is for the defendant to take, but the
defence advocate should advise the defendant and, should the defendant decide not to give evidence, it should be recorded in writing that the defendant has received advice and has decided freely not to testify.

Question 104

4.3.1 Defence opening speech

Answer 104

When the prosecution case has ended, or following a rejected submission of no case to answer, the defence case will start. The defence do have the right to make an opening speech at this
stage but only if one or more defence witnesses, other than the defendant in person, will be called to give factual (as opposed to merely character) evidence. Even though there is a right to a defence opening speech, it is rarely used.

Question 105

4.3.2 Defence evidence

Answer 105

If the defendant is represented and the defendant chooses to give evidence, the defence advocate will call the defendant and take the defendant through evidence in chief. The defendant will then be cross-examined by any other defendants and the prosecution. Any other defence witnesses will be examined in chief, cross-examined and re-examined in the same order as the defendant.

Question 106

4.3.3 Legal discussions

Answer 106

When the defence case is closed it is common practice for the jury to be sent out in order to allow the judge and the prosecution and defence advocates an opportunity to consider those matters
of law which should be raised during the judge’s summing up. This allows submissions to be made on all the legal matters that have arisen in the course of the trial and which will form part of the judge’s directions on law to the jury. This is a convenient way of ensuring, so far as possible, that any problems are ironed out prior to speeches and the summing up and, therefore, that an appeal is less likely in the event of a conviction.

Question 107

4.3.4 Closing speeches

Answer 107

The prosecution can make a closing speech where the defendant is legally represented, or has called at least one defence witness (other than the defendant in person) to give factual evidence or where the court otherwise so permits. The prosecution closing speech is always first. The defence is always entitled to make a closing
speech which will follow that of the prosecution.

Question 108

4.3.5 The judge’s summing up

Answer 108

After closing speeches have been delivered by the prosecution and defence, the judge will sum the
case up to the jury. The summing-up falls into two parts: the law and the facts. This means that the judge will deal with all necessary legal directions and then move on to sum up the prosecution and defence
cases. Both prosecution and defence advocates should be alert to errors in the summing-up and draw
them to the judge’s attention at its close so that corrections can be made.

Question 109

The judge will direct the jury that they have different functions:

Answer 109

• The judge is the arbiter of the law; the judge will give the jury directions on the law which they must accept.
• The jury, on the other hand, are the arbiter of the facts. They must reach their own conclusions on the evidence

Question 110

Every case is different and the legal directions the judge gives to the jury will be tailored
accordingly.

Answer 110

In summing up the case to a jury, the judge will deal with the following:
* Burden and standard of proof
* The ingredients of the offence and any defences
* A written route to verdict
* Other legal directions relevant to the case
* Electing a foreman
* Unanimity
* Separate considerations of counts and defendants if needed

Question 111

To assist the jury to focus on the issues during retirement, the judge should provide:

Answer 111

• A reminder of the issues;
• A summary of the nature of the evidence relating to each issue;
• A balanced account of the points raised by the parties; and
• Any outstanding directions.
  It is not necessary for the judge to recount all relevant evidence or to rehearse all of the significant points raised by the parties.

Question 112

Foreman

Answer 112

The judge will tell the jury to appoint a foreman (a person of any gender) to deliver the jury’s verdict in due course.

Question 113

Unanimity

Answer 113

Just before the jury bailiffs are sworn and the jury retire to consider their verdict, the jury will be
told that they may have heard of majority verdicts, but the only verdict the judge can accept is a
unanimous verdict.
The judge will go on to say that if the time should come when a majority verdict can be accepted
from them, the judge will call the jury back into court and give them a further direction.

Question 114

4.3.6 Jury bailiffs sworn and jury retires

Answer 114

The jury bailiffs swear/affirm to keep the jury ‘in some private and convenient place’ and not to allow anyone to speak to them or to speak to them themselves without the leave of the court other than to ask them if they have reached a verdict. The jury bailiffs are court ushers who become jury bailiffs once they take the jury bailiff’s
oath/affirmation.

The jury will go to their retirement room to deliberate on their verdict.
They are entitled to ask questions of the judge by giving a note to the jury bailiff who will pass it to the judge. The judge may give further directions during retirement.

Question 115

Majority direction

Answer 115

The Juries Act (JA) 1974 permits a majority verdict to be given by a jury after they have deliberated for at least 2 hours although in practice the minimum period is 2 hours and 10 minutes as required in the Criminal Practice Direction VI Trial 26Q Majority Verdicts. This is to take account of any time not spent deliberating, such as getting to the jury room and electing a
foreman.

Question 116

Majority direction

Answer 116

A majority verdict should not be accepted unless it appears to the court that the jury have had such period of time for deliberation as the court thinks reasonable having regard to the nature
and complexity of the case. As such, what is reasonable will be different in every case and in long and complex cases involving multiple defendants the jury could be out for many days before any thought is given to their receiving a majority direction.

Question 117

4.3.7 Verdict

Answer 117

Once the jury have reached a verdict they will inform the jury bailiff.
The court will reassemble and the foreman will be asked to stand.
If the jury have not received a majority direction the court clerk will ask the foreman if the jury have reached a verdict on which they are all agreed. If the answer is yes, the clerk will ask ‘What is your verdict?’ and the foreman will reply ‘Guilty’ or ‘Not guilty’.

Question 118

Convicting of alternative offences

Answer 118

In certain circumstances the jury can convict of a lesser offence which is an alternative to a count on the indictment. For example, an offence of inflicting grievous bodily harm contrary to s 20 Offences Against the Person Act 1861 is included in (and therefore a direct alternative to) the more serious offence of causing grievous bodily harm with intent, contrary to s 18 Offences Against the Person Act 1861. In
essence, s 20 is the same as s 18 without the element of intent, so the lesser offence is included in the greater offence.

Question 119

Guilty verdict

Answer 119

A defendant who is found guilty will either be sentenced immediately or, if reports are required to assist with sentencing, such as a pre-sentence report or a psychiatric report, the case will be adjourned for sentence to a later date. It is common practice for the judge, whether a defendant is acquitted or convicted, to thank the jury for carrying out their public duty.

Question 120

Not guilty verdict

Answer 120

A defendant who is acquitted will be entitled to be discharged. The defendant will therefore be free to leave so long as no further matters facing the defendant are before the court.

Question 121

4.4 Summary

Answer 121

This section considered Crown Court Trial Procedure (Criminal Procedure Rules Part 25) as follows:
* Legal arguments
* Jury selection and swearing in the jury
* Judge’s preliminary instructions to the jury
* Prosecution opening speech
* Defence identify matters in issue
* Prosecution evidence
* Conclusion of the prosecution case
* Submission of no case to answer
* Right to give evidence and adverse inferences
* Defence opening speech
* Defence evidence
* Legal discussions
* Closing speeches
* Judge’s summing up
* Jury bailiffs sworn and jury retire
* Verdict