Jury trial procedure. Procedural steps Flashcards
Opening Speech
invites the prosecution to identify the issues in the case as well as providing a concise outline of the evidence which the prosecution propose to call. In the same way, pursuant to CrimPR 25.9(2)(c), the judge may invite defence counsel concisely to identify what is in issue, in order to assist the jury, following the prosecution opening.
The following are matters that may affect the style and content of a prosecution opening speech.
Emotive Language
In addressing the jury, prosecuting counsel’s role is that of a minister of justice who ought not to strive over-zealously for a conviction.
Counsel should therefore avoid using emotive language liable to prejudice the jury against the accused. Avory J’s oft-quoted description in Banks was given in relation to observations by prosecution counsel ‘calculated to prejudice the jury’. The use of emotive language was criticised by his lordship as being ‘not in good taste or strictly in accordance with the character which prosecuting counsel should always bear in mind’
Submissions as to Law
The extent to which the prosecutor deals with points of law that may arise during the trial or possible defences which the accused is likely to raise is a matter for discretion, depending on the circumstances of the particular case. In Lashley
The presumption should be that an opening address by counsel for the Crown should not address the law, save in cases of real complication and difficulty where counsel believes and the trial judge agrees that the jury may be assisted by a brief and well-focused submission.
If counsel deals with a matter of law, it is usual to remind the jury that matters of law are ultimately for the judge, and that counsel’s remarks should therefore be disregarded insofar as they differ from the judge’s directions. Such directions can be given at the beginning of a trial, or indeed at any other appropriate stage
Witnesses the Prosecution Should Call or Tender
General Rule: Witnesses on Back of Indictment
Having opened the case, prosecuting counsel calls witnesses and reads out any written statements admissible under exceptions to the rule against hearsay. The rules relating to witness statements are set out in CrimPR Part 16.
Although counsel has a discretion not to call witnesses whose statements have been served as part of the prosecution case (sometimes still referred to as witnesses on the back of the indictment), as a matter of practice the statements of all witnesses whose statements have been served should be called or read. Counsel must exercise the discretion in a proper manner and not for what Lord Thankerton described in Adel Muhammed El Dabbah v A-G for Palestine as ‘some oblique motive’.
Written Statements in Criminal Proceedings
The CJA 1967, s. 9, provides for the admissibility of written statements in criminal proceedings.
CrimPR 16.4 sets out the procedure.
In trials on indictment, it applies where the prosecution wish to adduce evidence additional to that served in accordance with the procedure when the case was sent, or by way of a notice of additional evidence thereafter. The party proposing to tender the statement in evidence must serve a copy of it on each of the other parties. If one of those parties serves notice on the party wishing to use the statement that he or she objects to it going into evidence, the statement cannot be read at the trial. The Deregulation Act 2015, s. 80, amended the CJA 1967, s. 9, so as to replace the seven-day period in which such objection had to be made with provision for time-limits to be set by the CrimPR, though, subject to special circumstances, the time-limit is set by r. 16.4 at five business days.
In effect, s. 9 statements are admissible only if all the parties agree. Even if a statement is admissible under s. 9, the court may require that the maker attend to give evidence, e.g., where the defence dispute the contents of the statement but failed to object through an oversight
Agreed Facts
As an alternative to the reading of witness statements, facts derived from such witness statements or otherwise may be presented as agreed evidence. These facts, which are admitted by all parties to be true, are presented pursuant to the CJA 1967, s. 10.
Such admissions should be reduced to writing, and provided to the jury providing they are relevant to the issues that they are to determine and do not contain inadmissible material
Objections to Prosecution Evidence
Standard Procedure
Where the defence intend to object to the admissibility of prosecution evidence disclosed on the statements relied on by the prosecution (hereafter referred to as ‘disputed evidence’), the standard procedure is as follows.
(a) Pursuant to CrimPR 16.4(4) the defence should notify the prosecution of their objection to its introduction in evidence.
(b) Further or alternatively, defence counsel should inform prosecution counsel of the objection before the latter opens the prosecution case to the jury. In the opening, prosecution counsel therefore makes no mention of the disputed evidence.
(c) At the point at which the admissibility falls to be considered, the jury will withdraw to allow the matter to be resolved by the judge alone.
(d) If the admissibility of the disputed evidence raises collateral factual issues as to how it was obtained, it may be necessary to adduce evidence about those facts before the judge in the absence of the jury. This is known as a trial ‘on the voir dire’ because the witnesses testify on a special form of oath. Both prosecution and defence are entitled to call witnesses at this stage. However, their evidence (whether in chief or in cross-examination) should be limited to matters relevant to the admissibility of the disputed evidence.
(e) Whether or not there has been evidence on the voir dire, the parties make their representations to the judge about the admissibility of the disputed evidence.
(f) The judge then announces findings on any factual issues arising on the voir dire and rules on whether the disputed evidence should be admitted or not, in the light of the findings of fact, the relevant law on admissibility of evidence and any discretionary power to exclude material which is legally admissible.
(g) The jury return to court. If the judge ruled against the disputed evidence, the jury will know nothing about it. If it is ruled admissible, the defence are still entitled to cross-examine on matters they raised on the voir dire, although at this stage the cross-examination goes to the weight, if any, that the jury should attach to the disputed evidence, not to its admissibility.
(h) The judge retains the discretion to review a determination on admissibility at a later stage
Editing of Prosecution Evidence
Where the prosecution evidence as foreshadowed in the statements relied on by the prosecution contains material which is of such prejudicial effect that the jury clearly ought not to hear it, the practice is for the parties to ‘edit’ the evidence by agreement before it is called. This practice was recognised by the Court of Appeal in Weaver that the best way for such editing to take place is for the evidence to appear ‘unvarnished’ in the committal statements. Counsel can then confer at trial to ensure that ‘the editing is done in the right way and to the right degree’. If necessary the judge can also play a part in the process.
Submission of No Case to Answer
Test to be Applied
The leading authority on the test a trial judge should apply in determining whether there is a case to answer is Galbraith.
In the course of his judgment in that case, Lord Lane CJ said
How then should the judge approach a submission of ‘no case’?
(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.
(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.
(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury …
There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.
First Limb
As Lord Lane remarked, the first limb of the test set out in Galbraith, does not cause any conceptual problems. The test of there being ‘no evidence that the crime alleged has been committed by the defendant’ is intended to convey the same meaning as the words of Lord Parker CJ in his Practice Direction (Submission of No Case) when he told magistrates that submissions of no case to answer at summary trial should be upheld, inter alia, if ‘there has been no evidence to prove an essential element in the alleged offence’.
Such cases may arise, for example, where an essential prosecution witness has failed to come up to proof, or where there is no direct evidence as to an element of the offence and the inferences which the prosecution ask the court to draw from the circumstantial evidence are inferences which, in the judge’s view, no reasonable jury could properly draw.
However, judges should take care to avoid taking into account defence evidence which is yet to be called and potential defences which have not yet been made out in assessing this limb of the test
Second Limb
The second limb of the test in Galbraith is far less straightforward, and has to be understood in the context of the practice that developed after the passing of the Criminal Appeal Act 1966, s. 4(1)(a) of inviting the judge to hold that there was no case to answer because a conviction on the prosecution evidence would be ‘unsafe’. That form of submission reflected the power given to the Court of Appeal by first the 1966 and then the 1968 Act to quash a conviction on the basis that it was, in the court’s opinion, ‘unsafe or unsatisfactory’ (but, since the Criminal Appeal Act 1995, Part I, came into force, simply ‘unsafe’).
This approach inevitably involves the court considering the quality and reliability of the evidence, rather than its legal sufficiency, and therefore involved the court carrying out the assessment of evidence and witnesses that would otherwise be the exclusive prerogative of the jury. The judgment in Galbraith makes clear that it is not appropriate to argue on a submission of no case that it would be unsafe for the jury to convict, which would be an invitation for the judge to impose his or her own views of the witnesses’ veracity.
However, the second limb of the Galbraith test does leave a residual role for the court as assessor of the reliability of the evidence. The court is empowered by the second limb of the Galbraith test to consider whether the prosecution’s evidence is too inherently weak or vague for any sensible person to rely on it. Thus, if the witness undermines his or her own testimony by conceding uncertainty about vital points, or if what the witness says is manifestly contrary to reason, the court is entitled to hold that no reasonable jury properly directed could rely on the witness’s evidence, and therefore (in the absence of any other evidence) there is no case to answer.
Reliability of Evidence under the Second Limb
It is often central to the application of the test in Galbraith to undertake an assessment of the reliability of the evidence adduced by the prosecution. This was illustrated in Shippey where the trial judge (Turner J) found there was evidence to support the prosecution’s assertions, but that the evidence as a whole contained ‘really significant inherent inconsistencies’. On a literal view of Galbraith and Barker the case should therefore have gone to the jury for them to weigh the inconsistencies, but Turner J took a more robust view.
He said that ‘taking the prosecution case at its highest’ did not mean ‘taking out the plums and leaving the duff behind’. It was for the judge to assess the evidence and, if it was ‘self-contradictory and out of reason and all common sense’, then the judge could properly conclude that it was ‘inherently weak and tenuous’ within the meaning of the second limb of the Galbraith test.
The proper test to be applied remains that enunciated in Galbraith, and the decision in Shippey merely illustrates the requirement that the court consider the evidence as a whole, including both its weaknesses and strengths.
Proper Approach to a Submission of No Case to Answer
The following propositions are advanced as representing the position that has now been reached on determining submissions of no case to answer:
(a) If there is no evidence to prove an essential element of the offence, a submission must obviously succeed.
(b) If there is some evidence which, taken at face value, establishes each essential element, the case should normally be left to the jury.
(c) If, however, the evidence is so weak that no reasonable jury properly directed could convict on it, a submission should be upheld. Weakness may arise from the sheer improbability of what the witness is saying, from internal inconsistencies in the evidence or from its being of a type which the accumulated experience of the courts has shown to be of doubtful value
(d) The question of whether a witness is lying is nearly always one for the jury, save where the inconsistencies are so great that any reasonable tribunal would be forced to the conclusion that it would not be proper for the case to proceed on the evidence of that witness alone.
Having identified those general principles, it is appropriate to consider various particular types of evidence and categories of cases.
Defence Opening Speech
If the defence intend to call evidence as to the facts of the case other than, or in addition to, the evidence of the accused, defence counsel has the right to an opening speech at the beginning of the defence case.
If, however, the only defence evidence is to come from the accused (or from the accused and character witnesses) then counsel does not have an opening speech save where, pursuant to r. 25.9(2)(c), the judge invites defence counsel concisely to identify what is in issue, in order to assist the jury, following the prosecution opening.
In an opening speech, defence counsel may both outline the anticipated defence case and criticise the evidence already given for the prosecution.
However, the speech should not make assertions of fact that are not to be proved by evidence that is to come.
The Defence Case
Because the burden of proof is on the prosecution, the defence are never obliged to call evidence, and more particularly the defence are not obliged to call the accused, since the accused is a competent but not compellable witness.
Most defence witnesses are governed by the same rules and considerations as prosecution witnesses.
The only additional limitation is the duty of the court to stop evidence being given where it is irrelevant to the issues in the case or where the court is being used as a political sounding board
