F1.37 – Questions of Law and Fact: In a Trial on Indictment: General Principles

Question 1

In trials on indictment without a jury, what must the judge do in relation to questions of law and fact?

Answer 1

Decide all questions of both law and fact and, if the accused is convicted, must give a judgment which states the reasons for the conviction (CJA 2003, s. 48(3) and (5)).

Question 2

(a) When lay magistrates are sitting with a judge in the Crown Court, what is their status?

(b) What is their role in regard to questions of fact to be determined by the court?

(c) What is their role in relation to questions of law to be determined by the court?

Answer 2

(a) Lay magistrates, when sitting with a judge in the Crown Court, are also judges of the court (Senior Courts Act 1981, ss. 8 and 73).

(b) They should participate in all questions to be determined by the court, including the factual aspect of any question relating to the admissibility of evidence.

(c) They must accept the ruling of the judge on any question of law (Orpin [1975] QB 283).

Question 3

In jury trials, what do questions of law for the judge include? (a-i)

Answer 3

Questions relating to:

(a) where the court has determined that an accused is unfit to plead, whether the accused did the act or made the omission charged as the offence — see D12.10;

(b) challenges to jurors — see D13.22 et seq.;

(c) the discharge of a juror or the whole jury — see D13.50 et seq.;

(d) the competence of persons to give sworn or unsworn evidence — see F4.2 et seq.;

(e) the admissibility of evidence;

(f) the withdrawal of an issue from the jury;

(g) submissions of no case to answer — see D16.53 et seq.;

(h) the numerous issues on which the jury should be directed in the summing-up, such as the substantive law governing the charge, the burden and standard of proof, the use which the jury is entitled to make of the evidence adduced, the operation of any presumptions, the nature of, and any requirement for, corroboration, etc. — see further D18.21 et seq. and F5; and

(i) matters ancillary to the trial itself, such as questions of bail, costs and leave to appeal.

Question 4

In jury trials, what do questions of fact for the jury include? (a-c)

Answer 4

(a) whether the accused stands mute of malice or by visitation of God;

(b) the credibility of the witnesses called and the weight of the evidence adduced; and

(c) whether, applying the burden and standard of proof applicable to the case, they are satisfied as to the existence or non-existence of the facts in issue.

Question 5

In a jury trial, which questions of FACT fall to be determined by the JUDGE? (a-d)

Answer 5

• Whether the accused is fit to plead (see D12.9);
• The existence or non-existence of preliminary facts, i.e. facts which must be proved or disproved as a condition precedent to the admissibility of certain types of evidence;
• The sufficiency of evidence (in deciding whether an issue should be withdrawn from the jury);

– And the evaluation of evidence adduced by the parties (for the purpose of commenting on its weight in summing up to the jury).

There are also a number of special cases in which questions of fact fall to be determined, either wholly or in part, by the judge.