Criminal Practice - Evidence

Question 1

Burden of proof

In criminal cases, the prosecution bears the ____ burden of proving…

A defendant raising a specific defence will always have the…

Answer 1

Legal; defendant’s guilt

Evidential burden.

Question 2

Burden of proof

If the prosecution fails to present sufficient evidence to justify a finding of guilt, what is the defendant’s solicitor entitled to do and why?

Answer 2

Make a submission of no case to answer on the basis that the prosecution has failed to discharge their evidential burden.

Question 3

Visual Identification Evidence: Turnbull Guidance

If the defendant’s solicitor considers that disputed visual identification has been obtained which the prosecution will rely upon, what is the solicitor’s best course of action?

If that course of action is declined by the court, what is the solicitor’s next strategy?

Answer 3

Challenge admissibility by asking court to exclude it under s.78 PACE.

If declined by the court, try to undermine the quality of the evidence at cross-examination and make representations to the court in respect of Turnbull guidelines.

Question 4

Turnbull Guidelines

(1) When is a witness known as a “Turnbull witness”? (3 circumstances)

(2) The guidelines apply when…

Answer 4

When a witness identified the defendant as the person who committed the offence:
- informally;
- at a formal ID procedure; or
- by claiming to recognise the defendant as someone previously known to them.

(2) …a prosecution witness visually identifies the defendant as the person who committed the crime, and the defendant disputes that identification.

Question 5

Lewis is on trial following a public order incident. A witness called by the CPS tell sthe court that he saw a man involved and later identified Lewis as that man at the video ID procedure. In which of these circumstances will the Turnbull guidelines apply?

(a) Lewis denies being at the scene.
(b) Lewis admits taking part in the incident but claims he was only acting in self-defence.
(c) Lewis admits being at the scene but denies involvement, suggsting that someone else was also present who was involved.

Answer 5

(a) and (c)

But note: in one case, similar facts to (c) occurred where there was no one else present who resembled the accused in height, clothing, or hair colour. There Turnbull did not apply.

Question 6

John is on trial for burglary. A witness sees the burglary and tells the court it was committed by a man who was approximately 6 feet tall, with brown hair and a moustache. John matches that description, but the witness failed to pick him out at the video identification.

Will Turnbull guidelines apply?

Answer 6

No. No direct visual identification evidence, as this was simply evidence of description.

Question 7

Turnbull Guidelines: Crown Court

(1) The trial jury must assess the quality of identification evidence by a witness called by the CPS. There are three levels of quality that the identification can be:

(2) What factors will the court take into account in this assessment?

Answer 7

(1)
a. Good quality.
b. Poor but supported.
c. Poor and unsupported.

(2)

(a) Length of observation
(b) Distance
(c) Lighting
(d) Conditions
(e) How much of suspect’s face the witness saw
(f) Whether person identified was someone already known to witness.
(g) How closely original description given by witness to police matches actual physical appearance.

Question 8

Turnbull Guidelines: Crown Court

What is the Turnbull Warning in relation to good quality identification evidence? (state who gives it and when)

Answer 8

The judge gives the Turnbull Warning when summing up the case. He tells the jury it is very easy for an honest witness to be mistaken as to identity, and will direct the jury to examine closely the circumstances of the original sighting and take into account factors (above) when considering quality of the identification evidence.

Question 9

Turnbull Guidelines: Crown Court

What is the Turnbull Warning for poor but supported evidence?

Answer 9

The same, but also:
- drawing specific attention to weaknesses in the identification evidence;
- warn jury about the dangers of convicting on the basis of ID evidence alone; and
- tell the jury to look for other supporting evidence.

Question 10

Turnbull Guidelines: Crown Court

What does the judge do if the identification is poor and unsupported?

Answer 10

Stop trial at end of prosecution case; direct the jury to acquit the defendant.

Will usually follow a submission of no case to answer from defendant’s a

Question 11

Turnbull Guidelines: Magistrates Court

How will the defendant’s solicitor address the Turnbull guidelines in the Magistrates’ Court?

Answer 11

1. Warn magistrates of inherent unreliability of ID evidence from an eyewitness and
2. Point to any weaknesses in prosecution evidence.

No case to answer likely to be submitted only if poor and unsupported.

Question 12

Inferences from silence

What are the adverse inferences?

Answer 12

Sections 34 - 37 of the Criminal Justice and Public Order Act 1994 (CJPOA 1994)

Failure to:

• mention facts in a police interview or when charged which the defendant relies on in their defence at trial (s.34)
• account for an object, substance or mark found on their person at the time of arrest (s.36)
• account for their presence at a particular place when arrested (s.37)
• give evidence in support of their case at trial (s.35)

Note: s.35 is the only inference drawn from silence at trial.

Question 13

Inferences from silence

When are adverse inferences not permitted to be drawn?

Can a defendant be convicted of an offence if the only evidence against him is an adverse inference from silence?

Answer 13

The defendant’s silence occurred when he was not given the opportunity to take independent legal advice.

No.

In contrast, if he is given such an opportunity, but declines, then an adverse inference will be allowed.

Question 14

Adverse inferences: s.34 CJPOA 1994

What are the s.34 requirements?

Answer 14

1. the defendant was interiewed under caution at a police interview; and
2. failed to mention any fact he later relies upon in his defence.
3. the failure occurred before charge.
4. police questioning was directed to ascertaining whether/by whom the offence had been committed;
5. the defendant could reasonably have been expected to mention the fact when questioned.

e.g. alibi

Note: may apply even where defendant is not silent, but does not mention the fact.

Court will allow adverse inference only if the reason for the defendant’s silence was that they had no answer, or no answer that would stand up to scrutiny.

Question 15

Adverse inferences: s.34 CJPOA 1994

s.34 will be prevented from operating where…

Answer 15

…defendant remains silent in interview, but relies on a written statement that contains the facts later relied upon.

Question 16

Adverse inferences: s.34 CJPOA 1994

In what three instances will the solicitor advice a suspect to remain silent?

Will the court automatically be prevented from drawing adverse inferences where defendant remained silent based on legal advice?

What is the relevant test in such cases?

Answer 16

• low level of disclosure given by police;
• complex case;
• personal circumstances of suspect are unfavourable.

No.

Whether defendant genuinely and reasonably relied on legal advice to remain silent.

This will require that legal privilege is waived, allowing defendant to be cross-examined later about any other reason for solicitor advising client to remain silent.

Question 17

Adverse inferences: special caution

What is the special caution and when must it be given?

The ‘special caution’

Answer 17

Sections 36 and 37 require the special caution to be given by the police, which includes telling the suspect:

(a) what the offence under investigation is
(b) what fact the suspect is being asked to account for
(c) that the officer believes the fact may be due to suspect taking part in commission of the offence.
(d) that a court may draw an adverse inference;
(e) that a record of the interview may be given in evidence.

These adverse inferences do not depend on a statement at trial. Since they automatically operate, it is important that the defendant is warned of this.

Question 18

Adverse inferences: s.36 CJPOA 1994

The failure to account for an object, substance or mark will relate to any of those that are:

Answer 18

i. on his person;
ii. in/on his clothing/footwear
iii. otherwise in his possession;
iv. any place which he was at the time of arrest.

Question 19

Adverse inferences: s.37 CJPOA 1994

Relevant where, during interview, the police officer or another investigating officer:

3 points

Answer 19

reasonably believes that the presence of the person at the place and time of arrest may be attributed to his participation in the offence.

Question 20

Adverse inferences: s.35 CJPOA 1994

When is this adverse inference drawn?
When will this not be available to the prosecution?

Answer 20

When the prosecution raises an issue that call for an explanation from the defendant, and the defendant fails to give evidence on his own behalf at trial.

Where there is no case to answer.

Court able to conclude that he has no explanation, or none which would stand up to cross-examination, provided this is the only sensible conclusion.

In most cases, defendant has a right to remain silent at trial.

Question 21

Hearsay Evidence

A hearsay statement is defined in s.114(1) of the CJA 2003 as:

Answer 21

“A statement, not made in oral evidence, relied on as evidence of a matter in it.”

Question 22

Maryam is a bank clerk. She receives $5000 cash from a customer and places it in the bank’s safe. She tells Brian, the senior cashier, who in turn tells Emir, the manager. Emir makes an entry of the deposit in a ledger. An armed robbery takes place and the $5000 is stolen.

The entry in the ledger is an example of….
The CPS want to use the entry to show how much money was in the safe. Can this ever be allowed as evidence at trial?

Answer 22

Multiple hearsay.
Yes, but in more limited circumstances than first-hand hearsay.

Question 23

Hearsay Evidence

Admissible if it falls into one of four categories (s.114, CJA 2003):

Note: as a starting point, hearsay is inadmissible unless it falls within one of the four categories.

Answer 23

1. Admissible under statute
2. Admissible under common law exception.
3. Admissible under agreement.
4. Admissible in the interests of justice.

Question 24

Hearsay Evidence: Admissible under statute

The statutory provisions for hearsay are:

Answer 24

• Cases where a witness is unavailable (s.116 CJA)
• Business documents (s.117(2) CJA)
• Statements prepared for use in criminal proceedings (s.117(5) CJA)
• Previous inconsistent statements of a witness (s.119)
• Previous consistent statements of a witness (s.120)
• Statements from a witness that are not in dispute (s.9)
• Formal admissions (s.10).

We will focus on the first three groups

Question 25

Hearsay: Admissible under statute - Witness Unavailable (s.116 CJA)

What are the legal conditions for hearsay to be admissible on the ground that the witness is unavailable?

This applies where (a) the statement is… and (b) the witness is…

Additionally, one of five conditions must be satisfied:

Cases where witness is unavailable to attend court

Answer 25

a. the statement is first-hand hearsay;

b. the witness is identified to the court’s satisfaction; and

One of the below five conditions is met:

i. relevant person is dead.
ii. relevant person is unfit to be a witness
iii. relevant person is outside of the UK and his attendance is not reasonably practicable to secure.
iv. relevant person cannot be found, despite reasonably practicable steps being taken to find him.
v. relevant person does not give oral evidence through fear, and court gives leave for the statement to be given in evidence.

Question 26

Sophia witnesses an assault. She tells Jenny what she saw. Jenny then gives a signed statement to the police repeating what she had been told by Sophia. Before case comes to trial, Jenny is killed in an accident. Is Jenny’s statement admissible?

Answer 26

No. This is multiple hearsay. Her statement repeats what she had been told by Sophia, which was itself hearsay.

Question 27

Hearsay: Admissible under statute - Business documents (s.117(2) CJA)

What are the legal conditions for hearsay to be admissible on the ground that it is a business document?

Business documents

Answer 27

(a) The document was created or received by a person in the course of a trade, business, profession, or as holder of paid/unpaid office;
(b) person who supplied the information had or may reasonably be supposed to have had, personal knowledge of the matters dealt with;
(c) each person through whom the information was supplied received the information in the course of a trade, business, profession, etc.

Therefore allows multiple hearsay.

Question 28

Hearsay: Admissible under statute - Criminal Proceedings (s.117(5) CJA)

What are the legal conditions for hearsay to be admissible on the ground that the statement is prepared for use in criminal proceedings?

Answer 28

(1) The s.117(2) business documents conditions are met and

(2) Either the s.116 (unavailable witness) conditions are met or the relevant person cannot reasonably be expected to have any recollection of the matters in the statement.

No recollection: due to length of time since supplying the information and other circumstances.

Question 29

Hearsay Evidence: Admissible under common law

Other than confession evidence (discussed later), the most important common law exception allowing hearsay evidence is…

This occurs where a statement made contemporaneously with an event is admissible because…

Answer 29

Res gestae

…the spontaneity of the statement excludes the possibility of concoction.

Jordan is charged with murder. The CPS allege that he shot the victim with a rifle. HIs defence is that the rifle went off accidentally, but the CPS wish to call evidence from a witness who heard the victim shout “Don’t shoot me Jordan!” immediately before the shot was fired. This would be hearsay evidence, but admissible as res gestae to prove the shooting was not an accident.

Question 30

Hearsay: admissible in the interests of justice

This is a catch-all provision giving the court a very wide discretion to admit hearsay. What factors must it consider?

Answer 30

• The probative value of the statement
• What other evidence has been given;
• The importance of the matter or evidence to which it relates;
• The circumstances in which the statement was made;
• The reliability of the evidence that the statement was made;
• Whether oral evidence of the matter stated can be given;
• The difficulty in challenging the statement;
• The extent to which such difficulty would prejudice the other party.

Question 31

Hearsay: admissible in the interests of justice

Give an example of hearsay being admissible in the interests of justice.

Answer 31

A witness to a conviction of a sexual offence refuses to give evidence that claims that she was also raped by the defendant.

Question 32

Hearsay Evidence: Part 20 Procedure

When is notice required to be given to the other parties and the court of a party’s intention to adduce hearsay evidence?

Answer 32

(1) Admissible under statute:
- witness is unavailable
- witness statement prepared for use in criminal proceedings

(2) Multiple hearsay

(3) Admissible in the interests of justice.

Note: notice would also be required to oppose such an application.

Question 33

Confession Evidence

Definition:

Answer 33

“Any statement wholly or partly adverse to the person who made it”

Question 34

Confession Evidence: Co-accused

At trial, if a confession is made by a defendant that implicates the co-defendant, is this admissible against the co-defendant?

What if a pre-trial confession of the same nature was made?

SKIP THIS CARD

Answer 34

Yes.

Pre-trial confession only admissible against that defendant, not the co-defendant.

Question 35

Confession Evidence: Challenging Admissibility

The defendant can challenge the admissibility of confession evidence in two ways:

Answer 35

(a) Under s.76 PACE, by arguing that:
- the confession was obtained by oppression or;
- the confession is unreliable due to things said or done.

(b) Under s.78 PACE, by arguing that admitting the confession would have such an adverse effect on the fairness of proceedings that it ought not be admitted.

Question 36

Confession Evidence: Admissibility by s.76

What does ‘oppression’ include under s.76(2)(a)?

What would constitute ‘things said or done’ rendering the confession unreliable under s.76(2)(b), and what are these breaches of?

If the defendant successfully argues that a confession is inadmissible under s.76, is the court allowed to use that evidence?

Answer 36

Oppression: Torture, inhuman or degrading treatment and the use/threat of violence.

Unreliability

• denying access to legal advice (s.58 PACE)
• denying a suspect refreshments or appropriate periods of rest between interviews;
• offering inducements to confess;
• misrepresenting the strength of the prosecution case;
• inappropriate questioning;
• questioning a suspect who the police should have known was not in a fit state to be interviewed;
• threatening a suspect

These are breaches of Code C of the Code of Practice.

If the defendant successfully argues that a confession is inadmissible under s.76 the court cannot allow the evidence unless the prosecution prove beyond reasonable doubt that it was not obtained in that way.

Question 37

Confession Evidence: Admissibility by s.76

A defendant is denied access to legal advice and confesses to robbery. The defendant gives evidence to the effect that he knew his rights and understood the police caution given. Will his application to exclude the confession evidence succeed?

Unreliability

Answer 37

No. He was fully aware of what his rights were. There needs to be a causal link between the denial of legal advice and unreliability of confession.

But see below as section 78 is likely to be available.

Question 38

Confession: Co-defendant admits guilt

Where there are two co-defendants pleading guilty, and one of them admits his own guilt (without implicating the other), can the other defendant adduce that as evidence?

If the defendant who made the confession represents to the court that s.76 is in play, the court must exclude it. If, in turn, the other defendant wants to argue that the confession was not obtained in that way, the court would need to be satisfied of such…

Answer 38

Yes.
…on the balance of probabilities.

Question 39

Confession: Challenging admissibility under s.78

Where the defendant alleges the police breached PACE in obtaining a confession, in what circumstance is the court likely to exercise its discretion to exclude it?

In most cases where the defendant has been denied…. this would amount to a significant and substantial breach.

Confessions made but untrue

This not only relates to confession evidence, but any question of admissibility of evidence under s.78.

Answer 39

If the breaches are significant and substantial.
…access to legal advice.

Question 40

Confessions: Challenging admissibility under s.78

Provide three instances where the confession is excluded under s.78 having been made “outside” the police station.

Answer 40

a. Failing to make accurate record of defendant’s comments.
b. Failing to give defendant opportunity to view the record and sign or dispute it.
c. Failing to put the confession to the defendant at the start of a subsequent interview.

Question 41

Confessions: Procedure for challenging admissiblity

Admissibility of disputed confession evidence in the Crown Court is determined by the trial judge in…

If the court deems it admissible, the defendant will still be able to…

Crown Court

Answer 41

…the absence of the jury (at a voir dire)
…attack credibility of confession.

Representations will be made by defendant and interviewing officer or whoever the confession was obtained from.

Question 42

Confession Evidence: Procedure for admissibility

If defendant raises submissions under s.76 and s.78, both arguments are heard in a voir dire What about if it is s.78 only?

Magistrates Court

Answer 42

No obligation to hold voir dire

Question 43

Confession: Evidence obtained as a result of inadmissible confession

The fact that the court excludes evidence of a confession made by a defendant will not affect…

Answer 43

the admissibility in evidence of facts discovered as a result of the confession.

Question 44

Character Evidence

Definition of bad character:

If there is misconduct related to the offence, will this be admissible evidence?

Answer 44

Evidence of, or a disposition towards, misconduct other than evidence connected with the offence”

Yes. This does not count as bad character evidence (i is admissible without needing to sastisfy the test for bad character evidence.)

Misconduct = offence or other reprehensible behaviour.

Question 45

Character Evidence

What are the seven gateways under s.101 of CJA 2003 allowing the defendant’s bad character to be raised at trial?

Can a defendant’s bad character prove guilt?

Answer 45

(a) All parties agree to it being admissible.
(b) It is evidence adduced by defendant himself or in answer to a question when cross-examined, with the intention to elicit it.
(c) It is important explanatory evidence
(d) It is relevant to an important matter in issue between defendant and prosecution.
(e) It has substantial probative value for important matter in issue between defendant and co-defendant.
(f) It is evidence to correct a false impression
(g) The defendant has made an attack on another person’s character.

Not by itself.

On (b) this will be relevant where defendant raises evidence of his own bad character to claim that on an earlier offence the defendant accepted guilt, but on this occasion he is pleading not guilty because he genuinely did not commit the offence.

Question 46

Character Evidence: Gateway C: Important Explanatory Evidence

What are the two conditions for this gateway to be satisfied?

Only prosecution can adduce this

Answer 46

• Without it, magistrates/jury would find it impossible or difficult properly to understand case; and
• Its value for understanding the whole case is substantial.

Question 47

Character Evidence: Gateway D: Important issue between D and prosecution

Only the prosecution can adduce this. It must show one of two things:

The most important gateway relied upon by prosecution.

Answer 47

Propensity to
(a) commit an offence of the kind charged.
(b) be untruthful.

Question 48

Character Evidence: Gateway D: Important issue between D and prosecution

To place such evidence before the court, the CPS must first satisfy the court that…

Thus, s.103(2) of CJA 2003 states that for the CPS to argue a propensity to commit an offence of the kind charged, it must be established that the defendant has previously been convicted of an offence of:

Answer 48

…establishing such propensity makes it more likely that the defendant committed the offence.

(a) the same description; or
(b) the same category

Question 49

Character Evidence: Gateway D: Important issue between D and prosecution

(1) For the purposes of identifying “an offence of the same category”, the Secretary of State has prescribed two categories:

(2) In the second category, what are the four main offences?

Propensity to commit an offence of the kind charged

Answer 49

(a) Sexual offences category against children under 16.
(b) Theft category.

i. Theft
ii. Robbery
iii. Burglary
iv. Aggravated Burglary.

Others in theft category are:

v. Taking a motor vehicle or conveyance without authority;
vi. Handling stolen goods;
vii. Going equipped for stealing;
viii. Making off without payment
ix. attempting any of the above;
x. aiding, abetting, counselling, procuring, inciting the commission of any of the above.

Question 50

Character Evidence: Gateway D: Important issue between D and prosecution

If the earlier offence is not in the same description or category, when can it be used under this part of gateway d?

Propensity to commit an offence of the kind charged

Answer 50

…when there are significant factual similarities between the offences.

Question 51

Character Evidence: Gateway D: Important issue between D and prosecution

When can the CPS admit character evidence on the basis of the defendant’s propensity to be untruthful?

The defendant’s previous conviction will not be admissible unless…

Propensity to be untruthful

Answer 51

Where it is suggested that the defendant’s case is in any way untruthful

(a) manner in which previous offence was committed demonstrates a propensity to be untruthful; or
(b) defendant was convicted following a not guilty plea.

Question 52

Character Evidence: Gateway D: Important issue between D and prosecution

Provide two offences that demonstrate a propensity to be untruthful under the (a) “Manner in which previous offence was committed” provision?

Why isn’t theft one of these offences?

Propensity to be untruthful

Answer 52

• Perjury
• Fraud by false representation

Not theft, as it must be shown that the defendant actively sought to mislead or had lied to another person.

Theft is dishonest, but not necessarily untruthful.

Question 53

Character Evidence: Gateway D: Important issue between D and prosecution

Kate is charged with common assault. She is claiming defence of alibi at trial. She has several previous convictions in which she pleaded not guilty, but was convicted following a trial. Can CPS raise these previous convictions?

Propensity to be untruthful

Answer 53

Yes, to show that she has a propensity to be untruthful - in those previous convictions, the defendant was convicted following non-guilty plea so Gateway D can be used.

Question 54

Character Evidence; Gateway (e)

Substantial probative value - defendant and co-defendant

Which two reasons will a co-defendant use this gateway for?

This must relate to a “matter in issue”. What does this mean?

Answer 54

• To undermine the other defendant’s credibility by demontrating their propensity to be untruthful; or
• To suggest the other defendant committed the offence by demonstrating their propensity to commit offences of the same kind.

‘Matter in issue’ means the relevance of such convictions is more than merely marginal.

(a) seems less restrictive than the equivalent in gateway d: no mention of “related categories”.
(b) same as in gateway d: offences that involve making a false statement or representation.

Question 55

Character Evidence: Gateway (f): False impression created by defendant

A defendant is treated as being responsible for making such an assertion where the assertion is made by: (5 circumstances)

Prosecution only

Answer 55

• defendant in the proceedings.
• defendant when questioned under caution by police;
• defence witness;
• any witness in cross-examination by defendant, intended to elicit it;
• any person out of court and defendant adduces evidence of it.

But on (3) s.78 PACE still available.

Question 56

Character Evidence: Gateway (g) - Attack on another person’s character

Evidence attacking another’s character is evidence to the effect that the other person has either:

Includes any person - dead, alive, witness, non-witness.
Prosecution only

Answer 56

a. Committed an offence.
b. Behaved reprehensibly.

Question 57

When must bad character evidence be excluded by the court under s.101(3) CJA 2003?

In what three situations will the court use their power under s.101(3) to exclude bad character evidence?

Answer 57

1. Gateway (d) important matter in issue between defendant and prosecution or (g) attack on character is relied upon by the prosecution;
2. The defendant makes an application to exclude the evidence;
3. Admitting the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.

(a) Nature of previous convictions are such that the jury are likely to convict on the basis of those convictions alone.
(b) Used by CPS to support an otherwise weak case.
(c) Previous convictions are spent.

Unlike under s.78 PACE, In this case, the court must exclude the evidence. It doesn’t have a discretion.

Question 58

Court’s power to exclude bad character evidence

Other than the 101(3) powers to exclude evidence and the discretionary power for all gateways under s.78 PACE, when may the judge direct the jury to acquit, or order a retrial under s.107 CJA 2003?

When does this section not apply?

Answer 58

Where there has been contamination of bad character evidence.

Trials in the magistrates’ court.

This may occur if witnesses have colluded in order to fabricate evidence of the defendant’s bad character. (s.107 of CJA 2003).

Question 59

Character evidence: Procedure for admitting

What is required of the CPS if they wish to adduce evidence of defendant’s bad character evidence?

If the defendant wishes to oppose such evidence, they must…

Answer 59

Give notice of this intention to the court and all other parties.
…apply to the court . This application must be sent to the court and all other parties.

Question 60

Trial procedure: Magistrates

How does trial in the magistrates begins?

Most trials in the magistrates’ court will be before a bench of 3 magistrates, who decide by majority.

Answer 60

With the prosecution (1) giving an opening speech and (2) calling their first witness.

Each witness will be cross-examined by the defendant’s solicitor, and the prosecutor may, if they choose, re-examine the witness.

The defendant’s solicitor has a choice between an opening and a closing speech. Neither of these are evidence.

Question 61

Trial procedure: Magistrates

Where the prosecutor seeks to place evidence which the defence solicitor considers inadmissible, what would the magistrates normally do?

This will involve witnesses giving evidence on matters relevant to admissibility.

Alternatively, magistrates will hear the disputed evidence as part of the trial itself, and will consider the question of admissibility when the defender’s solicitor…

Answer 61

Hold avoir dire

…makes a submission of no case to answer.

(or when the defence makes their closing submissions).

Question 62

Trial procedure: Magistrates - No case to answer

When would the defendant’s solicitor submit a no case to answer?

Answer 62

No case to answer
- The prosecution has failed to discharge their evidential burden of proving all essential elements of the offence, or

• The prosecution evidence has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict.

Question 63

Trial procedure: Magistrates

• A defendant who is raising a defence such as ____ or ____ has the evidential burden of placing…
• What must the defendant’s solicitor always remind the magistrates of in their closing speech?

The defence case

Answer 63

• Self-defence or alibi; some evidence of the defence before the court.
• That CPS bears the burden of proving guilt beyond reasonable doubt.

The defendant’s solicitor may also need to cover evidential issues during the clsoing speech.

Question 64

Trial procedure: Crown Court

If a defendant wants to change their plea to not guilty in the Crown Court, what must they do?

Answer 64

Apply in writing as soon as practicable after becoming aware of the grounds for making the application.

(there’s a similar procedure in the magistrates’ court)

Question 65

Trial procedure: Crown Court

How many members does the jury consist of?
Between what ages?
Their names must be on the… and must have resided in the UK for at least…
Certain people are ineligible, such as…
Certain people are disqualified, such as

Answer 65

Twelve.
Ages 18 - 75.
Electoral roll; five years.
People suffering from a mental disorder.
People on bail in criminal proceedings and many who have previous convictions for which they served a custodial sentence.

Question 66

Trial procedure: Crown Court

The prosecutor’s opening speech in the Crown Court usually contains the following three elements:

What would not be mentioned in the opening speech, if the prosecutor, has advance notice of the issue?

When would a defendant be likely to change their plea from not guilty to guilty?

Answer 66

i. Legal elements of the offence.
ii. Outline of the evidence the prosecutor will call;
iii. Explanation of the operation of the burden and standard of proof.

An admissibility issue that was not resolved at a hearing prior to trial.

When the judge made a ruling on a point of law or admissibility that deprives the defendant of a defence upon which they hoped to rely.

Then prosecution witnesses are called, cross-examined, re-examined as in the Mags.
On admissibility matters during trial, a voir dire will be held without the jury.

Question 67

Trial procedure: Crown Court

When directing the jury on the law, the judge covers three areas:

Deliberations of the jury must remain…

Generally, the jury must decide unanimously. What are the two exceptions?

If the jury cannot reach a majority verdict within a reasonable time, the judge will…

Answer 67

(1) Directing the jury:

i. Burden and standard of proof;
ii. Legal requirements of offence;
iii. Any other issues of law and evidence (e.g. Turnbull warning)

(2) …completely secret.

(3) A majority vote of 10:2 is accepted if after 2 hours and 10 minutes, unanimity is not possible.
A majority vote will also be sufficient where any juror has been discharged.

(4) Discharge the jury.

On (4), CPS is likely to ask for a retrial before a new jury.

Question 68

Modes of Address and Court Room Etiquette

Refer to magistrates as either:
Refer to district judges as:
Refer to Crown Court judges as:
Refer to the opposing advocate as:
If opposing advocate is a barrister:
On entering or leaving court, it is customary to…
When addressing the court or examining witnesses, the default position is that you are required to… if proceedings take place in an open court.

However, there are some situations in which you would remain seated. Name three.

Answer 68

“Sir” or “Madam”
“Sir” or “Madam”
“Your Honour”
“My friend”
“My learned friend”
…bow to the Royal Coat of Arms.
…stand up

• Representing a juvenile in a youth court.
• Defendant appears via videolink from prison.
• Witness appears via secure link due to special measures.
• Making a bail appeal before a judge in Crown Court chambers.

Traditionally, “Your worships” was used for the magistrates.

Question 69

Trial procedure: Examination and cross-examination

(1) For examination-in-chief, are you allowed to use leading questions? What about for cross-examination?

(2) What are the three main purposes of cross-examination?

(3) In an assault case, the defendant is claiming self-defence. When cross-examining the victim, the defendant’s solicitor does not put to the victim that the defendant was acting in self-defence.

What is the consequence?

(4) Re-examination a party’s own witness should only be in relation to… Are leading questions allowed?

Answer 69

(1) Leading questions

• Examination-in-chief: non-leading questions only.
• Cross-examination: leading questions allowed.

(2) Purposes of cross-examination
- enable the party to put their case to the witness;
- undermine credibility of evidence the witness has given;
- obtain favourable evidence from the witness.

(3) The defendant will not be able to enter the witness box and say they were acting in self-defence.

(4) …matters that have arisen in cross-examination. No.

Question 70

Trial procedure: Competence

What is the general rule on competence as a witness?

Answer 70

All persons are competent to give evidence at a criminal trial.

Question 71

Trial procedure: Competence

The exception to the general rule on competence is that a person is not competent to give evidence in criminal proceedings where they cannot: (2 conditions)

Do child witnesses automatically meet this exception?
Do child witnesses give sworn or unsworn evidence?

Exception to general rule on competence

Answer 71

(a) understand questions put to him as a witness; and
(b) cannot give understandable answers.

No.
Sworn, unless under 14.

For 14 and above: sworn, provided he appreciates the solemnity of the occasion. This is presumed unless there is evidence to the contrary.

Question 72

Trial procedure: Competence

(1) Is an accused generally a competent witness for the Crown?
(2) There are four situations in which the prosecution can call a co-accused:

Exceptions to general rule on compellability: Accused

Answer 72

(1) No.
(2) Crown calling co-accused:
- Under the AG’s formal notice (nolle prosequi)
- An order is made for separate trials.
- Accused is formally acquitted.
- Accused pleads guilty.

A co-accused from the first trial may be called for the second trial, but not vice versa.

Question 73

Trial procedure: Compellability

What is the general rule on compellability?

Answer 73

All competent persons are compellable.

This means all competent persons can be compelled to testify by the court issuing a witness summons.

Question 74

Trial procedure: Compellability

What are the exceptions to the general rule that all competent witnesses are compellable in relation to:

A. The accused

B. The accused’s spouse

Answer 74

A. The accused

• An accused is never compellable as a witness for the co-accused (this includes co-accused spouses)
• An accused is not compellable to give evidence in his own defence (but would be wise to, to avoid adverse inferences).

B. The accused’s spouse

Only compellable as a prosecution witness for “specified offences”, for which there are two categories:

• assault or threat of injury to the spouse or any person under the age of 16.
• sexual offence against a person under the age of 16 (including attempted, aiding/abetting).

Question 75

Trial Procedure: Special Measures