Jury Trial Procedure Flashcards
Proceeding in absence of D - Unrepresented Ds - Abuse of Process - Procedural Steps - Speeches and Summing Up - Verdicts
1
Q
What are the rules on Ds presence at Crown Court trials?
A
Generally, the accused should be present throughout trial.
2
Q
How is Ds presence at CC trial secured?
A
By magistrates remanding in custody or on bail when the case is sent to CC
3
Q
What happens if a bailed D fails to attend on CC trial day?
A
A bench warrant may be issued under BA s.7
4
Q
Hamou [2019]
A
D must be present at commencement of a trial on indictment in order to plead.
5
Q
When D is absent at CC trial what must happen?
A
Court MUST NOT proceed if D is absent unless satisfied that they WAIVED THE RIGHT to attend AND trial will remain fair in their absence
6
Q
How many exceptions are there to the rule against proceedings continuing in absence of D?
A
4
7
Q
What is the 1st exception to the general rule that trial cannot continue without Ds presence?
A
Court may be justified to continue proceedings without the accused as a result of their misbehaviour
8
Q
What is the 2nd exception to the general rule that trial cannot continue without Ds presence?
A
Court may be justified to continue proceedings without the accused where his absence is voluntary
8
Q
What is the 3rd exception to the general rule that trial cannot continue without Ds presence?
A
Court may be justified to continue proceedings without the accused when he is too ill to attend
9
Q
What is the 4th exception to the general rule that trial cannot continue without Ds presence?
A
Court may be justified to continue proceedings without the accused following his death.
10
Q
Hayward [2001]?
A
Lists principles which the trial judge should apply when dealing with an absent defendant
11
Q
What is the general rule for trial without an accused’s presence?
A
D has a right to be present at the trial and a right to be legally represented. These rights can be wholly or partially waived.
12
Q
When would Ds rights to presence or representation at trial by wholly waived?
A
Where D is deliberately and voluntarily absent and/or withdraws instruction from counsel
13
Q
When would Ds rights to presence or representation at trial by partially waived?
A
If during trial, D behaves in a way that obstructs proper course of proceedings and/or withdraws instruction from counsel
14
Q
What must the trial judge raise to D at the PTPH?
A
Judge must warn D of the risk of trial continuing in their absence if not reasonable.
14
Q
How frequently should CC trials continue without the presence of D?
A
Rarely. The discretion to do so should be used exceptionally ESPECIALLY if D is unrepresented.
15
Q
What is the most important factor when deciding whether to proceed with CC trial without Ds presence?
A
Fairness to the defences - although fairness to prosecution should also be considered.
16
Q
In evaluating whether it’d be FAIR to continue CC trial without D what should be considered?
A
Examples include: Ds behaviour, whether adjournments would be disruptive; risk to jury; risk to Ds defence; public interest
17
Q
Lee Kun [1916]?
A
If D behaves badly in the dock making it IMPRACTICABLE for continuing, judge may order their removal and continuation in Ds absence. WOULD give D a warning first.
18
Q
Horden [2009]?
A
An accused should only be handcuffed to the dock where there’s real risk of violence or escape and no alternative.
19
Q
Smith (Henry Lee) [2006]?
A
Trial judge is entitled to proceed without D where the right to be present was unequivocally waived.
20
Q
Jones (No. 2) [1972]?
A
If D was present at commencement but later is voluntarily absent (escape/failure to surrender) trial MAY be completed in his absence. AND sentencing too.
21
Q
Is intoxication a reason for failure to attend that the court would accept?
A
No - as it is voluntary EVEN if medically alcoholic
22
Q
Amrouchi [2007]?
A
In deciding whether to proceed with CC trial - judge should consider whether the absence was deliberate AND if reasonable steps could be taken to secure attendance.
23
Howson [1981]?
If Ds absence is involuntarily caused by sickness the judge must either adjourn or discharge the jury. Opportunity to provide evidence should be given.
24
What happens if an accused is involuntarily absent?
If absence is beyond their control the trial MAY NOT continue in their absence UNLESS they consent and it would remain fair
25
What are 3 exceptions to the general rule on Ds involuntary absences from CC trial?
(1) if multiple Ds and 1 is sick, trial may continue as long as evidence and proceedings relate to ONLY other Ds (2) voluntary ingestion of drugs (3) long-lasting conditions where counsel can be effective with written evidence.
26
If an accused is unwell but present, can the CC trial continue?
Really, this shouldn't happen. If too unwell to properly pay attention and give instructions - adjournment or discharge of jury is preferable.
27
What will CC do if an accused did not secure legal representation?
They'll give D any assistance in conducting defence as is appropriate.
28
What will CC do if accused dismisses their legal aid lawyers during trial?
If still entitled to public funding, judge MAY grant adjournment for accused to be represented. No requirement to do so though.
29
Carter [1960]?
D should ALWAYS be told after prosecution case of their right to give evidence in person, call witnesses, AND to stay silent. Failure to notify can lead to quashing.
29
What is particularly important to make unrepresented defendants at CC aware of?
Unrepresented defendants should be explicitly told about inference which may be drawn from failure to give evidence.
30
Where can you find the speech detailing consequences of giving no evidence?
Crim Practice Direction VI para. 26P.5
31
What limitations are there on what an unrepresented defendant can do personally?
They're prohibited from cross-examining complainants and child witnesses for certain offences OR if court says so because circumstances necessitate prohibition.
32
What happens to witnesses that an unrepresented defendant may not cross-examine?
Unrepresented defendants can have representatives appointed SOLELY for the purpose of examining those witnesses.
33
What are the exceptions to trying an accused after preferring of an indictment?
Proceedings may be stayed IF (1) defective indictment (2) or discloses no offence within courts jurisdiction (3) plea in bar applies (4) nolle prosequi applies (5) when it would be an abuse of process
34
What is a plea in bar?
Application where D gives special reasons as to why the trial should not go ahead.
35
What is a nolle prosequi?
Dismissal of legal proceedings by the Attorney-General
36
What should happen to cases amounting to an abuse of process?
The court MAY order those proceedings to be stayed. Usually, this means the case against D is permanently stopped.
37
What is the 1st category of cases in which CC has power to stay proceedings?
Court has power to stay proceedings where it will be impossible to give the accused a fair trial.
38
What is the 2nd category of cases in which CC has the power to stay proceedings?
Court has power to stay proceedings where it offends their sense of justice and propriety to try the accused as prosecution wish. (to protect justice system).
39
What sort of remedy is a stay of CC proceedings?
Staying CC proceedings is a remedy of last resort. In criminal law its basically permanent, and USUALLY, public interest for prosecution is more important.
40
What are the 2 categories of abuse of process in CC?
(1) accused cannot receive a fair trial (2) unfair for the accused to be tried. What is relevant to these categories MUST be considered separately.
41
What is important to note about the 2 categories of abuse of process in CC?
The second category is not worse abuse than the first and need not be proven as such by D - just, different.
42
What is the purpose of the prosecution's opening speech at CC?
To help the jury understand what the case concerns, identify issues, and provide outline of evidence they'll call upon.
43
Can the prosecution use emotive language?
No. Their role is not to over-zealously strive for conviction. They should avoid using emotive language throughout proceedings.
44
Should matters of law be brought up in the prosecution's opening speech?
Largely, no. Apart from where there's severe complication. Matters of law are ultimately for the judge so counsel remarks should be disregarded.
45
What happens at CC once the prosecution have opened the case?
The prosecution call witnesses and read out any witness statements that are admissible under exceptions to the rule against hearsay.
46
What governs the admissibility of written statements in criminal proceedings?
CJA 1967, s.9- applies at CC level to any additional evidence gained after sending: P must serve copy on all parties, if it is objected the statement can't be read at trial.
47
What is the time limit on making an objection to additional written statements for evidence at CC?
A party has 5 business days to object to the intent to use a written statement gathered after sending. as evidence at trial.
48
When are CJA 1967 s.9 statements admissible?
Effectively, only when all parties agree that they are.
49
What is the rule on agreed facts at jury trials?
The same as that at summary trials - must be recorded in writing, and should be provided to the jury where relevant to the issues they must determine.
50
If defence object to the admissibility of prosecution evidence, what is the 1st step in standard procedure to dispute?
Defence should notify prosecution of their objection to the disputed evidences introduction in evidence.
51
If defence object to the admissibility of prosecution evidence, what is the 2nd step in standard procedure to dispute?
Next, or alternatively, D counsel should inform P of the objection before the case is opened to the jury so the disputed evidence is not mentioned in the opening statement.
52
If defence object to the admissibility of prosecution evidence, what is the 3rd step in standard procedure to dispute?
When the question of admissibility is being considered, jury must withdraw so that the disputed evidence matter can be decided by the judge alone.
53
If defence object to the admissibility of prosecution evidence, what is the 4th step in standard procedure to dispute?
If admissibility raises relevant factual issues, these must be considered by the judge without a jury. Witnesses may be brought in. This is known as "A trial on the voir dire"
54
If defence object to the admissibility of prosecution evidence, what is the 5th step in standard procedure to dispute?
Whether voir dire evidence was given by witnesses or not, Prosecution and defence will then make their representations as to the admissibility of evidence.
55
If defence object to the admissibility of prosecution evidence, what is the 6th step in standard procedure to dispute?
Judge announces findings on factual issues and rules on admissibility
55
If defence object to the admissibility of prosecution evidence, what is the 7th step in standard procedure to dispute?
The jury return to court. If the judge ruled against disputed evidence, the jury will never know about it, if it is found admissible, defence remain entitled to cross-examine on it
56
How many steps are there to the standard procedure for objecting to prosecution evidence?
8
56
If defence object to the admissibility of prosecution evidence, what is the 8th and final step in standard procedure to dispute?
The judge retains the discretion to review an admissibility decision at a later stage.
57
Weaver [1968]?
Where prosecution evidence contains prejudicial material the jury shouldn't hear, the practice is to "edit" the evidence by agreement - with judicial involvement if necessary.
58
What are the 3 options on how to treat statements that contain inadmissible or prejudicial material?
(1) Composite statement can be made to replace several earlier witness statements (2) Completely fresh statement omitting "bad" parts of old one (3) Provide "bad" one to court, on copies served to D and jury bracket or strike out statements not relied on (add note stating this has been done).
59
What should happen if the jury ask to see the original of an edited (for admissibility and prejudice reasons) document?
Jury should be told that there are technical reasons why this cannot be permitted.
60
What may the defence sometimes do after the prosecution has closed their case?
Defence MAY submit that the evidence does not disclose a case to answer in respect to some or all of the counts on the indictment,
61
What test is applied to submissions of no case to answer?
The 2 limb test of Galbraith [1981]
62
What is the first limb of the Galbraith test?
1: if there is no evidence that the crime alleged has been committed by the defendant, the judge will stop the case
63
What is the second limb of the Galbraith test?
2: If there is evidence of tenuous character - whether due to weakness or inconsistency - and taken at its highest no proper conviction could be made, the judge will stop the case.
64
What is an example of a case that would satisfy the first limb of the Galbraith test?
Where burden of proof has not been met, or there is no direct evidence and the inferences the prosecution wants the jury to draw are unreasonable.
65
In the second limb of the Galbraith test, what does the judge have to consider?
The judge has to consider the QUALITY and RELIABILITY of evidence to decide whether at its highest a proper conviction could be made.
66
What is an example of a case that would satisfy the second limb of the Galbraith test?
Where a case rests on 1 witness's evidence and they undermine their own testimony by conceding uncertainty about vital points or speak contrary to reason.
67
How should the court consider the reliability of evidence when applying the 2nd limb of the Galbraith test?
The weaknesses and the strengths of the evidence should be considered as a whole - there shouldn't be self-contradiction
68
What is the first potential outcome of a Galbraith test?
If there is no evidence to prove an essential element of the offence, submission of no case to answer will succeed.
69
What is the second potential outcome of a Galbraith test?
If there is some evidence which at face value establishes an essential element, the case should be left to the jury.
70
What is the third potential outcome of a Galbraith test?
If evidence is so weak no reasonable jury properly directed could convict, the submission should succeed.
71
Hill [1911]?
Defence have right to an opening speech at the beginning of their case IF calling evidence other than that given by the defendant.
72
What may defence opening statements entail?
May outline anticipated defence case and criticise evidence already given for prosecution. BUT shouldn't make assertions of fact.
73
Are the defence obliged to call evidence?
No - never. Because the burden of proof is on the prosecution
74
What is the difference between rules for prosecution witnesses vs defence witnesses?
Largely the same except that the court has a duty to stop evidence being given that is irrelevant to the issues in dispute.
75
What order should defence witnesses be called in?
The accused should normally be called before any other defence witnesses as they have a right to be present for all trial and thus can't adjust own evidence as they hear testimonies.
76
PACE 1984 s. 79?
The court has discretion to allow other witnesses to testify before the accused EXCEPT character witnesses where there's no fact witnesses.
77
Who decides whether or not the accused testifies?
The accused themselves. The decision and that advice was given to D should be recorded by counsel and signed by D.
78
Does the accused have the right to give evidence twice?
No
79
What can be a result of failure to advise the accused about the advisability of testifying?
Failure to say how advisable testifying is may constitute grounds for CoA to rule a conviction unsafe.
80
Who can call and recall witnesses?
The judge has discretion to call a witness whom neither the prosecution nor defence chose to call. But this power should be sparingly exercised ONLY when necessary for justice.
81
What ALWAYS happens before CC summing up?
Court will invite counsel BEFORE speeches , without jury, to make representations on how certain aspects of the case should be dealt with.
82
Cocks [1976]?
It almost never appropriate to discuss law with counsel after the summing up but before the jury's retirement.
83
What are the counsel's duties to assist the court (CC)?
P+D Counsel have a duty to bring all relevant authorities to court's attention even if unfavourable to their argument. Any procedural irregularity must also be brought to attention.
84
In what order are closing speeches?
Prosecution first, then defence
85
What mustn't be in any party's closing speech?
No counsel should allude to alleged facts or other matters which have nit been the subject of evidence.
86
Can closing speeches be emotive?
No - prosecution cannot use emotive language nor abandon their witnesses
87
What latitude is given to the defence in their closing speech?
Defence are not confined to putting forward the accused's version of events but can advance different hypotheses so long as evidence that supports it was called.
88
What shouldn't defence closing speeches mention?
Anything to do with consequences of conviction and sentencing since this is not a jury concern
89
Wickham [1971]?
Where there are co-accuseds, the defence of one may comment in closing upon the other not giving evidence. Judge cannot restrict comment but can add own comment to it if unfair.
90
What are the 2 parts to a trial judge's job of summing up?
(1) direction on the law (2) summary of the evidence
91
When shouldn't there be summing up?
Late in the day or just before the weekend - it should be within working hours and give time to permeate the jury's mind
92
Does the judge have to provide their summing up in writing to parties?
No - counsel should take notes, this avoids delay of waiting for transcripts and can expedite appeals
93
What duty does the prosecution have for the judge's summing up?
Prosecution have a duty to attend summing up and draw any factual or legal errors to judge's attention. So must D.
94
What duties do the defence have during summing up?
D + P must alert judge to leave issues of provocation to jury; D must request a good character direction if entitled to one; D + P must raise any factual or legal errors to attention.
95
What should the judge provide the jury with to aid reaching a verdict?
The jury should be provided at summing up with a written list of questions (a route to verdict) and written legal directions setting out what must be proved. These should first be run past counsels.
96
What happens if counsel fail to comment on draft written directions for the jury?
It's not fatal to an appeal, but failure to comment on any misdirection can affect how serious a deficiency as a result of it is taken in appeal stage.
97
Grant [2021]?
There is now an expectation that juries be provided with written directions.
98
When should the jury receive their written directions for verdict?
At the start of summing up so that the judge can guide them through each direction
98
Where can you find standard written direction forms that are often used by judges to direct juries?
Crown Court Compendium - though these should be tweaked according to every case's circumstances.
99
How are burden and standard of proof referred to in summing up?
Judge must give a direction to the jury on burden and standard of proof ALONG WITH ingredients of the offence/s charged.
99
What are the 2 parts of summing up (that can be split)?
The part relating to law (where the judge is the final arbiter) and the part relating to fact (summarising the evidence before them).
99
What must the judge remind the jury of about the prosecution's burden during summing up?
Jury must be reminded that the prosecution have the burden of proof and must discharge it beyond a reasonable doubt. If he doesn't remind them, the conviction can be quashed.
100
What must the judge direct the jury about at the beginning of summing up?
Must inform the jury of their respective roles and the 2 parts to summing up.
100
What part of summing up are the jury judges of?
The facts - so it is their opinion of the evidence, not the judges, which matters.
101
How does summing up work where there are multiple counts on the indictment?
The jury should be directed to give separate consideration to each count.
Judge should summarise evidence on a count-by-count basis not witness-by-witness. Lack of cross-admissibility should be noted if present.
102
How does summing up work where there are multiple accuseds on the indictment?
The jury should be directed to consider the case for and against each defendant separately.
103
104
CJPO 1994, s.34?
The jury are entitled to draw such inferences as they deem appropriate from the failure of the defendant to answer questions in interview.
104
Should the judge go further than simply outlining the issues of the case in summing up?
Yes - the judge should direct the jury as to the elements of the offence/s charged.
105
CJPO 1994, s. 35?
The jury are entitled to draw such inferences as they deem appropriate from the failure of the defendant to give evidence.
106
Lowe [2007]?
In summing up, the judge is obligated to remind the jury of any reason given for why an accused remained silence
107
When can't the jury infer from silence?
(1) when the accused is silent in interview and evidence, does not call evidence, or advance a case (2) where account changed between interview and trial (3) where other factors may be relevant as to silence e.g. Ds age.
108
Should the judge mention a failure to call a witness in summing up?
No - it could make the jury forget that the burden of proof is solely on the prosecution
109
For which defences MUST a judge give legal directions to the jury about?
(1) self defence (2) alibi (3) loss of control (4) diminished responsibility
110
What should be included in summing up where D is unrepresented?
Judge should remind jury to bear in mind difficulties of self-representation at trial
111
Is a summary of facts by the judge to the jury in summing up always necessary?
Basically, yes. Otherwise procedural irregularity. summing-up provides the record of the facts a verdict is made upon.
112
Must the judge include a summary of the defence in their summing up?
Yes
113
What about the defence case should the judge summarise to the jury?
Accused's evidence, consistencies and inconsistencies of evidence, remind jury of counsel's speech, how to fairly reference any interview that was not followed by giving evidence.
114
Can the judge indicate their own views in summing up?
Yes, robust comments are permitted providing it is not so critical as to withdraw the question of guilt or innocence.
115
What procedural step is taken after summing up?
The judge advises the jury to appoint a foreman - who will act as their spokesman and announce the verdict later on.
116
What procedural step is taken after directing the jury to appoint a foreman?
Judge should invite the jury to retire and seek to reach a unanimous decision (failure to do this won't make a conviction unsafe)
117
Can the judge indicate the jury how long it will be before he accepts a majority verdict instead of a unanimous one?
No, although to do so wouldn't be detrimental to the case. Further directions would be given when the time to reduce to majority arose,.
118
What is the general rule for juries between end of summing up and verdict?
Once the jury retires is shouldn't separate, they must remain under the charge of the court bailiffs (to ensure non-interference).
119
Can the jury ask the judge questions during retirement?
Yes- by passing a timed and dated note to the jury bailiff who takes it to the judge (to remove suspicion of secret communication).
120
What 3 propositions assist judges who receive jury notes during retirement?
1) if communication is unconnected with the trial counsel do not need referencing (2) in all other cases judge should state nature and content of note in open court (3) If jury reveal something they shouldn't e.g. voting numbers, judge should not disclose but otherwise deal with note normally.
121
Inns [2018]?
Before answering jury notes, judges should normally share the content and nature with counsel in open court and invite their views.
122
Juries Act 1974 s. 17?
At common law, verdicts of juries had to be unanimous. Some majority verdicts are allowed as long as certain conditions are met.
123
Juries Act s. 17(4)?
A majority verdict can only be accepted where the jury have been deliberating for a reasonable period according to the nature of the case - at least 2 hours.
124
What is the minimum time limit for permitting majority instead of unanimous verdict?
The jury must at the VERY LEAST have been deliberating for at least 2 hours. This includes returning to court to ask questions.
125
What are the minimum majorities permissible under the Juries Act s.17?
11-1, 10-2, or where 1+ juror was dismissed 10-1 or 9-1. If a jury only has 9 people, it must be a unanimous verdict.
126
What happens if the jury decide on a guilty verdict?
The foreman must state in open court the number of jurors who agreed and dissented from the verdict. Failure to do so results in quashed conviction.
127
What is the general rule on verdicts of guilty of an alternative offence?
Jury can find guilt of an alternative where expressly included in indictment OR where offences impliedly include allegations.
128
Does the judge have to make the jury aware of verdicts of alternative offences?
No. There's no obligation. But if obviously raised by the evidence, in the interests of justice the question of an alternative offence should be left to the jury. Even if no party wishes it to be.
129
Hodson [2009]?
It is important in summing up that the court leave an alternative which does not require proof of specific intent where intent was required for the original indicted offence.
130
Can the jury return partial verdicts?
Yes if they find D guilty on one count but not others, or guilty of some particulars of a count but not others.
131
What happens if the jury cannot return a verdict?
The judge discharges the jury. The accused is not acquitted but may be retried by a different jury. Requesting a retrial is prosecutions choice.
132
Would the prosecution seek retrial after 2 juries failed to reach a verdict?
No. Practice is to try once more, but not 3 times. Prosecution more likely to offer no evidence and let the offence lie on file.
133
What would make it abuse of process for the prosecution to seek retrial?
major delays; results of previous trials; seriousness of offences; extent of which case has changed since previous trials.
