Chapter 8: Trial Procedure in Magistrates' and Crown Courts

Question 1

Who has the burden of proof? What is the standard?

Answer 1

The burden of proof is on the prosecution to prove that the defendant is guilty of the offence charged.

They must satisfy the bench/District Judge/jury beyond reasonable doubt that the offence was committed

Question 2

Who calls witnesses first?

Answer 2

As the prosecution bear the burden of proof, they will call witnesses first.

Question 3

What are the stages of a criminal trial in the Magistrates’ court?

Answer 3

1. Prosecution makes opening speech, outlining allegations and key evidence
2. Prosecution calls witnesses
3. [if applicable] Defence makes an application of no case to answer
4. Defence calls witnesses
5. Bench or judge deliver verdict
6. [if applicable] If guilty, pre-sentence reports may be ordered,
7. [if applicable] Bench or judge passes sentence

Question 4

What are the stages of trial in the Crown Court?

Answer 4

1. Prosecution makes opening speech, outlining allegations + key evidence
2. Prosecution calls witnesses
3. [if applicable] Defence makes an application of no case to answer
4. Defence calls witnesses
5. Judge sums up evidence
6. Jury deliberate
7. Jury deliver verdict
8. [if applicable] If guilty, pre-sentence reports may be ordered
9. [if applicable] Judge passes sentence

Question 5

Who will a witness be questioned by?

Answer 5

They will first be questioned by the party that has called them, and then by the other side

Question 6

What happens in examination in chief?

Answer 6

In examination in chief, a witness may be asked only non-leading questions.

Question 7

What are non-leading questions?

Answer 7

Questions that do not suggest the answer.

They will typically start with:
- who,
- what,
- where
- when,
- why
- how

Question 8

When does cross-examination take place?

Answer 8

Once a witness has completed their evidence in chief, they will then by subject to cross-examination by the opposing side.

Question 9

What is the advocate’s role in cross-examination?

Answer 9

To cast doubt upon the evidence given in chief + to put their client’s account to the witness.

Question 10

What are leading questions allowed?

Answer 10

In cross-examinations

Question 11

What are leading questions?

Answer 11

Questions that suggest the answer in the formulation of the question.

Question 12

What does competence mean?

Answer 12

Competence means that a witness is allowed to give evidence in court.

Question 13

What is compellability?

Answer 13

Compellability means that a witness can be forced to give evidence

Question 14

When is a witness not competent?

Answer 14

A witness is not competent to give evidence in criminal proceedings if it appears to the court that they are not able to:
1. Understand the questions put to them as a witness, and
2. Give answers to the court which can be understood.

Question 15

What witnesses are competent ?

Answer 15

All witnesses other than the defendant and the defendant’s spouse/civil partner are competent to give evidence for the party that calls them

Question 16

What witnesses are compellable?

Answer 16

All competent witnesses are compellable

Question 17

Is the defendant competent or compellable?

Answer 17

The defendant is neither competent nor compellable for the prosecution whist on trial.

The defendant is competent for the defence, but they are not compellable.

Question 18

What may happen if the defendant does not give evidence?

Answer 18

The jury (or bench or judge in the Magistrates’ Court) may draw an adverse inference if the defendant does not give evidence.

Question 19

What does the specimen direction for the judge to give to the jury in summing up state?

Answer 19

1. The defendant is entitled not to give evidence,
2. The jury may draw such inferences as appear proper,
3. Failure to give evidence on its own cannot prove guilty, but depending on the circumstances, the jury may hold this failure against the defendant, and
4. If the jury think the only sensible explanation for the decision not to give evidence is that the defendant has no answer to the case against them - or none that could have stood up to cross-examination - then it would be open to the jury to hold the failure to give evidence against the defendant.

Question 20

Who decides whether it is fair to hold the defendant’s failure to give evidence against them?

Answer 20

It is for the jury to decide

Question 21

Is the defendant’s spouse competent or compellable for the prosecution?

Answer 21

For the prosecution or co-defendant, the defendant’s spouse or civil partner is competent but not compellable, unless the offence involves:
i. assault, injury, or threat of injury to them or a child under 16,
ii. a sexual offence on a child under 16, or
iii. attempting, conspiring, aiding, or abetting those crimes

Question 22

Is the defendant’s spouse or civil partner competent or compellable for the defendant?

Answer 22

For the defendant, their spouse or civil partner is competent and compellable (unless they are jointly charged)

Question 23

Are co-defendants competent or compellable?

Answer 23

They are not competent or compellable for the prosecution.

They are competent for the defence, but not compellable.

Question 24

When will a co-defendant be competent and compellable?

Answer 24

If a co-defendant pleads guilty or the case against them is dropped, they become an ordinary witness + therefore become competent and compellable for either party

Question 25

What witnesses may request special measures to assist them giving evidence?

Answer 25

Include those who are:
i. under the age of 18,
ii. with a disability or disorder likely to affect evidence,
iii. affected by fear of giving evidence,
iv. complainants in sexual offences, or
v. witnesses to specified gun and knife crimes.

Question 26

What possible special measures are available to assist certain witnesses giving evidence?

Answer 26

The possible measures include:
i. placing a screen between the witnesses + the defendant,
ii. allowing the witness to testify through a video link,
iii. having court officers remove their wigs and gowns,
iv. allowing the witness to give evidence in private,
v. allowing a witness to pre-record testimony, and
vi. using an intermediary to obtain information from the witness.

The court can also permit any witness other than the defendant to give evidence via video link if it is in the interest of efficient or effective justice

Question 27

When may the defence choose to make a submission of no case to answer?

Answer 27

At the end of the prosecution calling witnesses

Question 28

What does making a submission of no case to answer do?

Answer 28

Argues that the prosecution has not presented enough evidence to amount to a prima facie case

Question 29

When will the prosecution failed to present enough evidence to amount to a prima face case?

Answer 29

This is the case if:

i. The prosecution has either failed to adduce evidence of one or more of the elements of the offence, or

ii. If the evidence given is so unreliable that no reasonable bench, judge, or jury could convict.

Question 30

Who hears an application of a submission of no case to answer?

Answer 30

The judge in the absence of the jury (if in the Crown Court)

Question 31

What happens following a submission of no case to answer?

Answer 31

If successful - the defendant is acquitted.

If unsuccessful - the defence will then proceed to advance their case, which may include calling their won witnesses.

Question 32

How are individual magistrates addressed in the Magistrates’ Court?

Answer 32

As ‘judge’

Question 33

How is a bench of magistrates addressed?

Answer 33

“Your Worships”

Question 34

What must be done if a defendant admits guilt but insists they will plead not guilty?

Answer 34

The solicitor must advise the client carefully on the strength of the evidence + of credit for guilty plea.

If the defendant remains adamant that they will plead not guilty, the solicitor may continue to act for them but cannot put anything before the court that they know to be untrue.

Therefore, the solicitor will be able to test the strength of the prosecution evidence but will not be able to put forward a positive defence.

If the defendant wishes to advance an alternative defence, the solicitor will have to withdraw.

Question 35

What happens if a defendant wishes to plead guilty even if they have not committed the offence?

Answer 35

The solicitor should advise the client of the defence available.

If the defendant insists on pleading guilty, the solicitor can continue to act, but they will not be able to put forward anything in mitigation that suggests the defendant did not commit the offence.

This is because a solicitor may not mislead the court + by pleading guilty a defendant is accepting guilt.
To suggest in mitigation that the defendant does not accept guilty would prompt the judge to reexamine the plea.

Question 36

What duty does the court have in assisting the court of points of law?

Answer 36

The solicitor is under a positive duty to assist the court on points of law, even if this goes against the defendant’s interests.

There is no duty to assist if a solicitor is aware of missing or misinterpreted facts, but they may not mislead the court.

Question 37

What might the defence solicitor need to do if they are the only legally qualified person in the room in the Magistrates’ Court?

Answer 37

A defence solicitor may need to advise on the admissibility of evidence or the interpretation of elements of the offence

Question 38

When can a solicitor act for 2 or more defendants?

Answer 38

Only if their accounts are aligned.

Question 39

What should be done if a solicitor acts for 2 or more defendants and a conflict subsequently arises?

Answer 39

The solicitor will normally have to withdraw from the case entirely.

The solicitor may continue to act for one of the defendants only if the duty of confidentiality to the other defendant would not be compromised.