Trial

Question 1

what does it mean if a witness is competent?

Answer 1

Witness is competent if they are able to be called to testify

Question 2

what does it mean if a witness is compellable?

Answer 2

Witness is compellable if, being competent, they can be compelled to give evidence

Question 3

when is a witness deemed incompetent?

Answer 3

If the witness cannot:
o Understand the question; or
o Give answers to questions understood

Question 4

common ways a witness MAY be deemed as incompetent

Answer 4

• those aged under 16
• those who suffer from a mental impairment

Question 5

Exceptions for compellability:

Answer 5

o Defendant to be compelled to be called to be witness for defence, for himself or co-accused
o The accused spouse/partner is not compellable, only in a number of cases such as domestic violence or violence/abuse against a child.

Question 6

is an accused competent to be a witness for the prosecution?

Answer 6

No.

Question 7

Co-Accused as a witness against a defendant

Answer 7

• Co-accused can only give evidence for the prosecution if they are relived from being accused of the crime
• So long as they are no longer liable to be convicted of the charge in criminal proceedings
• This also applied where the co-accused is to be tried separately to the defendant
• It applies where the co-accused is acquitted
• Applies even of the accused pleads guilty but their evidence suggests they had no participation in the crime for the principle defendant

Question 8

Accused being a witness on their own behalf

Answer 8

• Every stage of criminal litigation allows the accused to give evidence, this includes the sentencing
• including a voir dire
• The accused is not compellable

Question 9

compelling spouses as witnesses: Further information

Answer 9

• If they become unmarried/separated, the spouse/partner will be treated as such
• Compelling for prosecution witness a spouse/partner includes co-habitees

Question 10

can an accused’s spouse be a compellable witness for the defence case on the behalf them?

Answer 10

Yes.

Question 11

can an accused’s spouse be a compellable witness in the defence case for anyone else involved in the proceedings?

Answer 11

Yes. but only in the case of specified/certain offences offences

Question 12

can the accused’s spouse be compellable witness on the behalf of the prosecution?

Answer 12

Yes. but only in specified/certain offences offences

Question 13

for the purposes of compellability, what are specified/certain offences?

Answer 13

“certain offences” are:
- Assault or injury to the spouse/partner or to someone under age of 16
- Sexual harm to someone aged under 16
- Conspiracy to the above

Question 14

what happens if the spouse or partner of the accused becomes an accused too?

Answer 14

they cannot be a competent or compellable witness against the original accused

Question 15

sworn evidence

Answer 15

• Witness cannot be sworn to give evidence unless they have attained the age of 14
• They must also have the sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking the oath
• It will be assumed that the witness can understand questions and provide understanding answers unless counsel put forth evidence to the contrary
• If such evidence is adduced then it is for the counsel of the use of the witness to provide evidence to prove on the balance of probabilities that the witness has attained age 14 and satisfies the test.
• Hearings like this should be done in absence in jury

Question 16

other factors when considering the competence of child witnesses

Answer 16

• The question of competence is entirely witness or child specific
• No presumptions or preconceptions
• Broadly speaking so long as the witness can understand the question and provide understandable answers, then they are deemed competent. No need for witness to understand the telling of truth, nor to understand every single question.
• The test is applied in both the prosecution and defence perspective
• Whether the witness fulfils the criteria is a matter of discretion.
• A child who can speak and understand basic English with strangers is deemed to be competent
• Credibility and reliability won’t be put to the witness, only in submissions
• The witness need not be aware of their status as a witness

Question 17

oaths and affirmations

Answer 17

• Witness must take either one before giving evidence
• Someone to give evidence who is not permitted to be sworn shall attend unsworn
• Witness to produce a document need not be sworn
• The witness in context of ^ cannot be cross-examined
• Disputing the document must be done under sworn evidence
• Where there is a video of a child in interview, 14 or over, the child must be sworn
• There is no ground for appeal when a witness is unsworn.

Question 18

When can magistrates issue a summons?

Answer 18

where a magistrate is satisfied that:
(a)any person within the jurisdiction is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, for purposes of a summary trial, and
(b)it is in the interests of justice to issue a summons to secure the attendance of that person to give evidence or produce the document or thing,

Question 19

ways for securing the attendance of a witness for a magistrates trial

Answer 19

• Witness can be compelled under a summons or warrant
• It applies to both prosecution witnesses and defence who are proposed witnesses

Question 20

powers that clerks of a magistrates court have to ensure attendance from witnesses

Answer 20

they can issue summons but cannot issue an arrest warrant

Question 21

when will a warrant be used for a witness attendance in a magistrates court?

Answer 21

Court can issue an arrest warrant if the witness fails to attend

Question 22

what crime is committed when a witness does not adhere to a witness summons

Answer 22

the crime is contempt of court

Question 23

service of summons

Answer 23

summons may be served by handing it to individual; or by leaving it at, or sending it by first class post to, an address where it is reasonable to believe that the individual will receive it

Question 24

when can Magistrates order an arrest warrant for a witness failing to turn up?

Answer 24

In this circumstance, must be satisfied that:
- (a)the witness is indeed likely to be able to give material evidence or produce a material document or thing (evidence of this sought must be given and is required to be given under oath);
- (b)the witness has been duly served with the summons and been paid or tendered a reasonable sum for costs and expenses (evidence like this may be given under oath); and
- (c)there is no just excuse for the failure to attend.

Question 25

securing attendance in the crown court: Compelling

Answer 25

witness summons is used for those not wanting to come voluntarily
works the same with producing documents

Question 26

securing the attendance of witnesses in the Crown Court: generally

Answer 26

• the police ensure it for prosecution witnesses and defence solicitor ensures it for defence witnesses
• the steps taken will depend on the sensitivity of the witness and the fixed trial date
• or if the case is on a warned list, where the accused has to keep in daily contact with solicitors

Question 27

punishment for failure to attend as a witness in Crown Court

Answer 27

• punishment for not turning up is contempt of court
• the judge who makes the ruling for witness summons, it is desirable for them to deal with the failure to turn up
• max penalty is 3 months
• prosecution must prove beyond reasonable doubt that the summons was delivered to witness and they received it
• the witness needs to produce a just excuse for not coming in. Forgetfulness will not suffice
• witnesses musts show up even if it is exceptionally burdensome on their business or private life
• witness can be remanded for as ling ass it can be reasonable needed for the possibility that they shall give evidence.

Question 28

purpose of a pre-trial ruling?

Answer 28

The hearing can take place before the court decides whether D is fit to plead or not

Rulings considering the admissibility of evidence may be done

Question 29

Pre-trial rulings will not be made unless —

Answer 29

o Both parties have had chance to make representations; and
o It is in the interests of justice to do so

Question 30

applications for a pre-trial ruling can be made by who?

Answer 30

o Prosecution
o Defence
o Court on own initiative

Question 31

status of a pre-trial ruling in magistrates

Answer 31

• Ruling is binding until the case is disposed of
• Disposal is where the prosecution discontinues the case or the case is dismissed
• Ruling can be altered or varied or discharged or dismissed if parties apply to or the court does it on its own motion
• So long as it is in the interest of justice to do so and that parties have been heard or had a chance to be heard
• Court can vary or discharge where there is a material change in the circumstances
• There needs to be a compelling reason when it is in the interests of justice to do so
• Not the same if a different bench reaches a different conclusion on the same facts
• When a decision has been made properly with correct consideration on the facts, then it must stay and not be merely re-examined
• Can even be permissible when circumstances were not brought to the attention of the court despite existing when order was made

Question 32

can you appeal a pre-trial ruling in the magistrates?

Answer 32

You cannot appeal the ruling itself, but you can appeal a final decision in the mags if it has concluded the case and that ruling led to the conclusion of the case.

Question 33

what power is there for the Magistrates to continue in the absence of the accused if the accused is under the age of 18?

Answer 33

Discretionary.
If the accused is a child, and they fail to attend court without excuse, the Mags MAY choose to proceed.

Question 34

what power is there for the Magistrates to continue in the absence of the accused if the accused has attained the age of 18?

Answer 34

If the accused is an adult and they have failed to attend court without excuse, the court MUST proceed in their absence.

Question 35

what has to be confirmed to continue on the absence of an accused through summons or requisition?

Answer 35

Where prosecution was commenced by summons or requisition, then it must be proven to the satisfaction of the court that the requisition or summons arrived and was served on D in a reasonable time

Question 36

Failure of parties or witnesses to appear in Magistrates: power to adjourn

Answer 36

• Court must consider adjournment of the case if accused or witness fails to show
• Court may set the resuming date
• If the court remands the accused then a new date must be fixed
• Otherwise the time and date can be left to be determined
• Trial can resume when parties are given adequate notice
• Court may send accused an adjournment notice when they fail to attend

Question 37

power and procedure to have a magistrates trial in the absence of the accused

Answer 37

• There is the presumption that the court will proceed in the absence of the accused when they are aged 18 and over, and it is in the interests of justice to do so
• Court must give reasons if they do not proceed
• Court must be satisfied that the summons or requisition was served on D in reasonable amount of time if this is the method proceedings was instigated
• Where case has been adjourned previously to the date that D has not shown, it must be satisfied that the adjournment notice was serve don D in reasonable amount of time
• Court can adjourn when case has concluded and D is convicted in order for them to be present for sentencing

Question 38

Magistrates determining whether to proceed in the absence of the accused

Answer 38

• If there is an acceptable reason for failure to turn up then the court shall not proceed in the absence of the accused
• No obligation to enquire these reasons
• For those aged 18 and over and fails to attend, the judge has to state their reasons in open court why they are not proceeding in D’s absence
• The continuing in the absence of the accused is the default position. When D knows the date and the time of the court hearing
• Court will also be bound by the ‘interests of justice’ when deciding to proceed or not.
• Where a medical note has been presented then the court must consider it and whether it is in the interests of justice to proceed
• If D has been kicked out if the court house due to his behaviour, it is seen that D has voluntarily excluded himself from the court date, thus absented himself. It was overruled in the sense that D wished to be present, so not seen as absent

Question 39

what will the magistrates consider to decide whether it is in the interests of justice not to proceed?

Answer 39

o Such reasons for absence to be offered
o Reliability of that information in support for those reasons
o The date on which the reasons for the absence came aware to the accused
o What action the accused took in response to those reasons

Question 40

Magistrates court: Accused fails to appear - Warrant for arrest

Answer 40

• If the offence is an imprisonable offence, then the justices have the opportunity to have a warrant for D’s arrest if they are absent to court and when court has adjourned
• Or if the court wishes to pose a disqualification
• Unless the current adjournment is a second or subsequent adjournment of the trial and D was present knew the date and it was fixed when D was present
• If offence is an indictable one, then prosecution can seek arrest if D was charged by summons or requisition and this was served in reasonable time
• Can issue an arrest warrant if D has been bailed and therefore breached bail

Question 41

Section 14 MCA 1980: Proceedings invalid where accused did not have knowledge of them

Answer 41

(1) Where a summons has been issued under section 1 above and a magistrates’ court has begun to try the information to which the summons relates, then, if—
(a) the accused, at any time during or after the trial, makes a statutory declaration that he did not know of the summons or the proceedings until a date specified in the declaration, being a date after the court has begun to try the information; and
(b) within 21 days of that date the declaration is served on the [designated officer for the court]1 ,
without prejudice to the validity of the information, the summons and all subsequent proceedings shall be void.

(2) For the purposes of subsection (1) above a statutory declaration shall be deemed to be duly served on the [designated officer]2 if it is delivered to him, or left at his office, or is sent in a registered letter or by the recorded delivery service addressed to him at his office.

(3) If on the application of the accused it appears to a magistrates’ court (which for this purpose may be composed of a single justice) that it was not reasonable to expect the accused to serve such a statutory declaration as is mentioned in subsection (1) above within the period allowed by that subsection, the court may accept service of such a declaration by the accused after that period has expired; and a statutory declaration accepted under this subsection shall be deemed to have been served as required by that subsection.

(4) Where any proceedings have become void by virtue of subsection (1) above, the information shall not be tried again by any of the same justices.

Question 42

what is a summary of the Summary Trial Process?

Answer 42

• Legal Arguments (Preliminary Issues)
• Prosecution Opening Speech
• Defence identify matters in issue
• Prosecution Evidence
• Prosecution Conclusion
• Submissions of No Case to Answer
• Right to give evidence and adverse inferences
• Defence Evidence
• Prosecution Closing Speech
• Defence Closing Speech
• Legal Advice to JoP’s
• Magistrates Consider Verdict
• Verdict

Question 43

what if the accused has not entered a plea before the summary trial?

Answer 43

If the accused has not entered a plea then he will be asked again what his plea is at the start of the trial

Question 44

what is a summary of a trial on indictment process?

Answer 44

• Legal arguments
• Jury selection and swearing in the jury.
• Judge’s preliminary instructions to the jury.
• Prosecution opening speech
• Defence identify matters in issue
• Prosecution evidence
• Conclusion of the prosecution case.
• Submission of no case to answer
• Right to give evidence & adverse inferences
• Defence opening speech
• Defence evidence
• Legal discussions
• Prosecution closing speech
• Defence closing speech.
• Judge’s summing up.
• Jury bailiffs sworn & jury retire.
• Potential further directions during retirement
• Verdict.

Question 45

Summary Trial: Prosecution opening speech

Answer 45

• To open the case
• Give brie details of what the case is about
• Including any legislation or case law which will be of any assistance
• Not be necessary to give detailed account of the prosecution evidence
• If the case is adjourned then the prosecution can give another opening speech upon the adjourned date in order to bring the justices up to speed an remind them again of the case at hand
• Counsel are allowed to refine the key issues which have to be decided at the trial in order to help the justices come to a quick just decision
• If the accused refuses to identify the key issues in the case at the case management stage the court may limit the proceedings on the day of the trial which allows limitation of the questioning of the witnesses
• Any significant divergencies from the key issues may result in sanctions and limitations

Question 46

summary trial: Prosecution witnesses

Answer 46

• Prosecution must call the witnesses on whom have served witness attempts which the prosecution wish to rely on
• Court cannot compel prosecution to call a particular witness
• If the court is of the mind where the case is not being conducted properly where the accused cannot have a fair trial then they can dismiss the case
• This will be under an abuse of process
• Justices can call witnesses if they choose to do so but it will be rare as they are supposed to be impartial in the proceedings

Question 47

Summary trial: Written evidence at trial

Answer 47

• Section 9 Criminal Evidence act 1967
• Also known as a section 9 statement
• This allows a statement to be submitted without calling witness to the stand

Question 48

difference between Formal Admissions (Section 10 statement) and Written Evidence (Section 9 Statement)

Answer 48

the account of a witness whose statement is adduced under s. 9is treated no differently than if that account had been given by witnesses from the witness box. In either case, the tribunal of fact is entitled to accept or reject the witness’s account as it sees fit, and then by contrast, where an admission is made pursuant to s. 10, that is conclusive of the matter stated and it is not open to the court to reject that fact.

Question 49

Summary Trial: Formal Admissions

Answer 49

• Where the party admits facts which the parties jointly agree to the they can be submitted as formal admissions
• A written record must be made

Question 50

Summary trial: Objections to prosecution evidence

Answer 50

• Better when there are pre-trial rulings to rule evidence inadmissible as magistrates are not normally sitting as the same bench with a pretrial ruling and an actual trial. This removes the issue so simple asking s magistrate bench to simply forget the inadmissible evidence.
• Delaying the determination of an admissibility question of an accused confession may be ruled as unfair if left to the close of the prosecution evidence

Question 51

if the prosecution case is solely based on a confession, where should a section 76 determination be made?

Answer 51

As soon as practicable, wither a pre trial ruling or a preliminary issue. mainly because if the whole prosecution case is base non a confession, it will save time in waiting for a no case to answer submission.

Question 52

Summary Trial: Closing Speeches

Answer 52

• If the accused is represented or they have called evidence other than having thief own testimony then the prosecution may make a closing speech and have final submissions/representations to the court
• The accused may make final representations to the court in support of their case
• The accused can then have the last word when the case is concluded
• If the party wishes to make for e evidence after the specified opportunity, then the magistrates can refuse to hear the closing submissions
• It is said that the magistrates court should refuse any further evidence or submissions alike this after the party has had the opportunity, save for exceptional circumstances

Question 53

Summary Trial: Role of Authorised Court officers

Answer 53

This is new the name instead of justices clerk

The roles and functions of an authorised court officer:
(a) to give advice to justices of the peace about matters of law (including procedure and practice) on questions arising in connection with the discharge of their functions, including questions arising when the person is not personally attending on them, and
(b) to bring to the attention of justices of the peace, at any time when the person thinks appropriate, any point of law (including procedure and practice) that is or may be involved in any question so arising.

They can also highlight what facts and what issues are in dispute and what are agreed
- Formulating the courts reasoning,
- Helping the court to record their reasons for their decision ,
- Marking parts of evidence and inadmissible
- Making a note of oral representations for the justices
- Ensuring a record is kept for the decision which have been made

Question 54

Summary Trial: Authorised Court officers; what can they advise on?

Answer 54

They can advise the magistrates on:
(a)questions of law;
(b)questions of mixed law and fact;
(c)matters of practice and procedure;
(d)the process to be followed at sentence and the matters to be taken into account, together with the range of penalties and ancillary orders available, in accordance with the relevant sentencing guidelines;
(e)any relevant decisions of the superior courts or other guidelines;
(f)the appropriate decision-making structure to be applied in any given case; and
(g)other issues relevant to the matter before the court.

Question 55

the case governing a submission of no case to answer

Answer 55

R v. Galbraith

Question 56

the two-limb test set out in Galbraith

Answer 56

(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 …’.

Question 57

Galbraith: Process

Answer 57

• Court can do this on their own initiative or when the defence raises the argument at the closing of the prosecution case
• The prosecution should be given the opportunity to make the representations when ta case of no case to answer is risen
• The decision depends not on whether the justices would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer. The submission should therefore succeed if a conviction would be perverse, in the sense that no reasonable bench could convict.
• When a submission of no case to answer is made then there is no need to record the reasons as to why the justices have rejected it

Question 58

Galbraith: Credibility of prosecution witnesses

Answer 58

o The question to ask that even when taking the case at its highest that the case is not so tenuous that a jury could not reasonably convict even when give n proper directions before they decide on the verdict
o Credibility of witnesses should eb left aside when deciding a no case to answer, as the credibility of witnesses should be left to the tribunal of fact, not the tribunal of law
o the general principle remains that, so long as the necessary minimum amount of prosecution evidence has been adduced so as to raise a case on which a reasonable tribunal could convict, the justices should allow the trial to run its course rather than acquitting on a submission.

Question 59

Galbraith: Prosecutions right to response

Answer 59

o Prosecutors must have a right to reply to a defence counsels submission of no case to answer.
o If having heard the defence counsel that the justices are of the mind that there is no case to answer when they must give the prosecution a chance to answer to the defence counsel submission
o If the justices have taken the view that there is a case to answer after hearing defence counsel, effectively already disagreeing with the defence, then the prosecution do not have a right to reply as the justices already agree with prosecution so they do not need to answer the submission

Question 60

Magistrates Verdict: Duty to give reasons

Answer 60

o Magistrates must give sufficient reasoning as to why they have come to that decision
o They do not need to do it in an elaborate form nor do they need to write a judgment
o All what is needed is a few simple sentences and that it is good practice for magistrates to give reasons as to why a defendant has been found guilty
o Example: D was charged with the offence of tampering with a motor vehicle. The magistrates convicted him, saying that D ‘did not say anything to persuade us that he did not tamper with the moped’ and they were therefore ‘sure’ that he was guilty. The conviction was quashed. The words used by the magistrates created the impression that they had convicted D because he had not proved his innocence (thus reversing the burden of proof).
o If the accused is acquitted, then the court may give decisions

Question 61

Magistrates verdict: Guilty of Lesser offence

Answer 61

The justices must find guilt or innocence on the charge of the individual that is brought before them

However there are some exceptions:
- Certain driving offences allow the justices to find a guilt of the accused of a lesser offence. An example would be careless driving instead of dangerous driving
- Instead of aggravated vehicle taking it can be found that D is guilty of taking a vehicle

Question 62

Magistrates Verdict: Alternative offences

Answer 62

o If the accused is charged with alternative offences at the outset and pleads guilty to both then the magistrates should not convict of both offences
o It is wrong for an accused to be found guilty twice for the single wrong

Question 63

Calling Witnesses: Tendering Witnesses

Answer 63

Once it has notified the defence of those witnesses it relies upon and once the defence have requested the attendance of any of those witnesses in order to cross-examine them, the prosecution is obliged to call them. This means that the prosecution cannot simply abandon a witness mid-trial unless the defence agree. As such, even if the prosecution decides they do not wish to adduce evidence from any such witness, they must still call the witness and ‘tender’ that person, meaning the witness will go into the witness box and will not be asked questions in chief by the prosecutor, but the defence will still be able to cross-examine the witness.

There is one exception to this rule: where, after service of the statement but before trial, the prosecutor forms the view that the witness is not capable of belief, then there is no obligation to call that witness. The prosecution will then abandon that witness from its case. The defence, of course, can then make its own arrangements to call that witness if it wishes to do so to support its case.

Question 64

types of witness statements which are common in a section 9 statement

Answer 64

I. doctors who have examined and noted injuries;
II. police officers who have attended the scene of an alleged crime and arrested the defendants and transported them to the police station;
III. Scenes of Crime Officers who attended crime scenes and took fingerprint lifts, photographs or recovered other evidence;
IV. witnesses, such as CCTV operators and shop workers, who took or passed to the police video evidence of an incident and can add nothing to what is on the video.

Question 65

Editing witness statements for Section 9

Answer 65

It is open to the defence and prosecution to agree to edit a witness statement to avoid the need to call a witness. For example, if a witness statement includes a part which the defence consider prejudicial (and therefore do not want it read by the court) and the prosecution agrees not to rely on it (e.g. because it has no relevance to the issues in the trial) then the offending part can be edited and just the remaining portion relied upon. Editing statements is common practice in both the magistrates’ and Crown Courts.

Question 66

Interviews as evidence

Answer 66

Where a defendant has been interviewed at the police station and has responded to the questions asked, that interview is recorded and from that recording a ‘record of taped interview’ (ROTI) is produced.
The interview forms part of the prosecution evidence in the case. It is usually presented to the court as a written record of interview.

It is very rare for a transcript of the whole of the interview to be shown to the court; in practice, the prosecution and the defence agree an edited record of interview which contains the relevant questions and answers whilst removing those questions and answers that are not relevant to the issues in the case.

The magistrates/District Judge and the authorised court officer will get a copy of the ROTI and it is usual practice for the prosecution to read the interview record out in court. Where a defendant has made a ‘no comment’ interview, rather than presenting a ROTI to the court the prosecution will often instead present written admissions stating what the defendant was asked about and that the defendant replied ‘no comment’ to all questions put. The interview is usually the last part of the prosecution case.

Question 67

what is a general right an accused has when it comes to a jury trial

Answer 67

An accused has, in general, a right to be present at the trial and a right to be legally represented.

Question 68

what can happen to the right to be present at trial and the right to be legally represented?

Answer 68

Those rights can be waived, separately or together, wholly or in part, by the accused:
(i)they may be wholly waived if, knowing or having the means of knowledge as to when and where the trial is to take place, the accused is deliberately and voluntarily absent and/or withdraws instructions from legal representatives;
(ii)they may be waived in part if, being present and represented at the outset, the accused, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws instructions from legal representatives.

Question 69

what power does the judge have when it comes to an accused being absent at trial?

Answer 69

The trial judge has a discretion as to whether a trial should take place or continue in the absence of an accused and/or the accused’s legal representatives. The judge is required to warn the defendant at the PTPH of the risk of the trial continuing in the defendant’s absence.

That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the accused is unrepresented.

Question 70

what must the judges have regards to when exercising discretion involving the accused being absent at trial?

Answer 70

In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:
(i)the nature and circumstances of the accused’s behaviour in being absent from the trial or disrupting its continuation, and, in particular, whether the behaviour was deliberate, voluntary and such as plainly waived the right to appear;
(ii)whether an adjournment might result in the accused being caught or attending voluntarily and/or not disrupting the proceedings;
(iii)the likely length of such an adjournment;
(iv)whether the accused, though absent, is, or wishes to be, legally represented at the trial or has waived the right to representation;
(v)the extent to which the absent accused’s legal representatives are able to present the defence;
(vi)the extent of the disadvantage to the accused in not being able to give his or her account of events, having regard to the nature of the evidence;
(vii)the risk of the jury reaching an improper conclusion about the absence of the accused;
(viii)the seriousness of the offence to the accused, victim and public;
(ix)the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;
(x)the effect of delay on the memories of witnesses;
(xi)where there is more than one accused and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.

Question 71

what if the judge decides to proceed in the accused’s absence?

Answer 71

If the judge decides that a trial should take place or continue in the absence of an unrepresented accused, the judge must ensure that the trial is as fair as the circumstances permit. In particular, reasonable steps must be taken, both during the giving of evidence and in the summing-up, to expose weaknesses in the prosecution case and to make such points on behalf of the accused as the evidence permits. In summing up the judge must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.

Question 72

misbehaviour of the accused

Answer 72

o If the accused acts in a way for tit to be difficult to conduct the proceedings, then they may be removed from the court and the trial will continue in their absence
o Accused will be given warnings
o Accused may be let back in once they have improved behaviour
o Accused should be handcuffed in dock if they are of a threat to be violent or escape
o If the accused is refusing to come up from the cells, judge can still continue in absence
o Although judge should exercise this discretion with caution
o Sometimes best to let accused cool off and come to senses and then start the trial once they are better behaved

Question 73

voluntary absence of the accused

Answer 73

If D decided to be absent after the start of proceedings then the judge has the ability to continue in D’s absence
The judge may even still proceed to sentencing in Ds absence
Even if D is intoxicated then court will still proceed in absence
Judge has discretion to proceed in C’s absence

Questions for court to consider:
- Is absence voluntary and deliberate?
- Were there reasonable steps taken to secure attendance from D?

Even though D has not been arraigned then the court can still proceed in Ds absence
If the indictment changes materially without D knowing, then the continuance in d’s absence becomes more of an issue
Factual analysis must be taken in this case to see if it is fair to proceed in D’s absence
Court will most certainly issue a warrant for Ds arrest if absent
If D does not appear mid trial, then the jury may be discharged and D be retried once D is tracked down

Question 74

sickness of the accused

Answer 74

Trial cannot continue without D’s consent if the absence is something beyond their control, such as sickness
Or if the case can proceed without unfairness to DS and evidence can be given without the need of D being there
The two options are that the judge must adjourn until accused is better or discharge the jury
If judge is not satisfied with the evidence of D’s sickness then they just adjourn until further evidence is served and only until that happens can they continue without D. if they present little more or no evidence, then the court may proceed without D

Possible exceptions:
(a)As mentioned in Howson, if there are several accused and one falls sick, the trial may continue in that accused’s absence provided that the evidence and proceedings relate entirely to the cases against the co-accused and have no possible bearing on the absent accused’s case. The decision in Howson also indicates that it is not enough for an accused to be physically present if too unwell to pay proper attention to the proceedings and give instructions to legal representatives.
(b)Where D’s voluntary ingestion of drugs makes his participation in the trial impossible, the situation may well be otherwise.
(c)Where D had a heart condition preventing his attendance but it was considered that his counsel were able to argue his case effectively and he was given the opportunity to give written evidence.

Judge may be of the mind that they can consider witnesses, accused and others involved and still proceed in D’s absence. Especially if the trial has been adjourned many times before

Question 75

treatment of the court for unrepresented accused: Crown Court

Answer 75

• Court will give assistance to those unrepresented
• If the accused was represented but dismissed counsel and solicitor then judge will adjourn if D is legally funded in order to allow them to seek further representation
• There is no requirement that court must do this

Question 76

Accused’s right to call or give evidence: Crown Court

Answer 76

o The accused must always be informed that at the end of the prosecution case they may call and give evidence themselves on have evidence be given by their own witnesses or have evidence in different forms.
o They also may choose to stay in silence
o If the accused is not given the direction by the court then the conviction may be quashed
o Court is obliged to tell accused the inferences that may be drawn by silence, if they are unrepresented
You have heard the evidence against you. Now is the time for you to make your defence. You may give evidence on oath, and be cross-examined like any other witness. If you do not give evidence or, having been sworn, without good cause refuse to answer any question, the jury may draw such inferences as appear proper. That means they may hold it against you. You may also call any witness or witnesses whom you have arranged to attend court. Afterwards you may also, if you wish, address the jury by arguing your case from the dock. But you cannot at that stage give evidence. Do you now intend to give evidence?

Question 77

Restrictions on the accused when representing themself

Answer 77

o Role of the trial judge in asking questions on the behalf of the accused in order to help them deliver their case to the jury
o There are limitations of what a defendant can do
o Unrepresented defendants cannot cross examine child witnesses or complainants in certain cases
o Courts also have the power to limit the defendants cross examination if it is appropriate to do so – interests of justice to do so
o Reps can be appointed to do the cross examinations for unrepresented defendants but that’s all they do

Question 78

once an indictment is preferred, the accuse must be tried unless —

Answer 78

(a)the indictment is defective (e.g., it contains counts that are improperly joined and so does not comply with CrimPR 3.29(4): see Supplement, R3.29);
(b)a ‘plea in bar’ applies (such as autrefois acquit);
(c)a ‘nolle prosequi’ is entered by the A-G to stop the proceedings; or
(d)the indictment discloses no offence that the court has jurisdiction to try (e.g., the offence is based on a statutory provision that was not in force at the date the accused allegedly did the act complained of).

Question 79

where the proceedings are found to be an abuse of process…

Answer 79

…the proceedings must be stayed. Usually, the case against the accused is stopped permanently

Question 80

two main categories of abuse of process:

Answer 80

• Cases where judge concludes that defence cannot receive a fair trial: Where evidence has been destroyed or something has happened in the process
• Court concludes it would be unfair for defence to be tried: May be capable of having fair trial, but something has happened where it would be unfair to try accused.

Two types are distinct and should be considered separately
Second limb requires a balancing of interest, where ad the first limb does not
The prime focus id that the thinking if the consequences would make the trial unfair
There needs to be an assessment of the prejudicial effect pf the actions
The same misconduct can find the reasoning for both limbs, bit only one limb needs to be satisfied in order to establish an abuse of process
It follows that, ‘depending on the nature and degree of the abusive conduct, the same acts and/or omissions may both render a fair trial impossible (thus, category 1) and make it an affront to the conscience of the court to prosecute at all (and thus,

Question 81

opening speech: crown court

Answer 81

• To show what the case concerns but not an in depth understanding of the case, just a base line
• To briefly indentify the issues and the outline of the evidence to be presented to the jury in order to help them understand what is about to happen.
• Who to hear from and what to show
• Emotive language should not be used
• It is of bad taste of the character of counsel
• It is to prejudice the jury

Submissions as to law:
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.

Question 82

witnesses prosecution should call to tender

Answer 82

o As a rule of thumb, the statement that have been served, should be read or have the witnesses be called
o This is done after opening speeches

Question 83

objections to protection evidence: Standard procedure

Answer 83

(a) 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 (Watson [1980] 2 All ER 293, see D16.48).

Question 84

three options to editing prosecution evidence

Answer 84

(a)A composite statement can be prepared to replace several earlier statements made by a witness.
(b)A completely fresh statement can be prepared for a witness to sign, omitting those parts of the first statement which are inadmissible or prejudicial. The circumstances in which this is the preferred option are set out at para.
(c)Where the prosecution decide that it is unnecessary to have a new statement, the procedure to be adopted is that the original of the witness’s statement should be tendered to the court unmarked in any way but, on the copies served on the defence and provided to the court, the passages on which the prosecution do not propose to rely should either be bracketed or lightly struck out. The striking out should not be done in such a way as to obscure what is being deleted.

Question 85

can prosecution evidence be edited?

Answer 85

Yes.

• If evidence provides prejudicial parts which should not be shown to a jury then it can be edited so the jury cant see it
• This is evidence by agreement before it is called
• Judge can also play a part in the process
• Evidence should arrive to court ‘unvarnished’ for it to be dealt with by counsel

Question 86

first limb of Galbraith

Answer 86

o Overall if there is no evidence, then there is no evidence.
o This is also applied in the sense of there is missing evidence to substantiate an element of the offence, thus will suffice
o Where prosecution witnesses has failed to come up to proof
o Where there are inferences which no reasonable jury could draw
o Judges should avoid taking into account defence evidence as it as not been heard as of that point

Question 87

second limb of Galbraith

Answer 87

o The standard is that the evidence is ‘unsafe or unsatisfactory’
o Court has to consider the quality and reliability of the evidence
o Judge cannot impose their own view of the witness veracity, so counsel cannot say in a submission of no case to answer that it would be unsafe for jury to convict
o This is where the judge has to consider whether the prosecution evidence is inherently weak, or vague for any reasonable person to draw a conclusion from it
o Where a witness is manifestly contrary to reason

Reliability:
o Where the evidence is really significant inherent inconsistencies
o If it is self-contradictory and out of reason for all common sense’ then the evidence is all so tenuous and inherently weak
o Court is to consider evidence as a whole

Question 88

proper approach to no case to answer (Galbraith)

Answer 88

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.

Question 89

Defence opening speech

Answer 89

• Defence has a right to an opening speech if they are to call on evidence as well as or instead of defendant themselves, so long as it is facts and not character
• If it is only character witnesses then defence counsel cannot have an opening speech
• This can follow a prosecution opening, this is to be invited by a judge
• Speech shall not contain assertions of fact
• Speech can outline anticipated defence and criticise evidence given for prosecution

Question 90

the defence case: Crown court

Answer 90

• Defence are never obliged to call evidence mainly because of how the burden of proof works
• Since accused is competent but not compellable witness
• Court has to stop evidence which is not relevant to the proceedings

Question 91

Where the only witness to the facts of the case called by the defence is the person charged…

Answer 91

…he shall be called as a witness immediately after the close of the evidence for the prosecution.

Question 92

If at the trial of any person for an offence—

Answer 92

(a) the defence intends to call two or more witnesses to the facts of the case; and
(b) those witnesses include the accused,
the accused shall be called before the other witness or witnesses unless the court in its discretion otherwise directs.

Question 93

order of defence evidence

Answer 93

• Character evidence must be called after accused and witnesses of fact
• Expert witnesses such as psychiatric can be called before accused
• Accused can be present throughout the prosecution case so he can answer the evidence which has been presented and alter defence accordingly

Question 94

decision to call the accused

Answer 94

When the accused decides not to go into the witness-box, it should be the invariable practice of counsel to have that decision recorded and to cause the accused to sign the record giving a clear indication (a) of the fact of having, of his or her own accord, decided not to give evidence, and (b) that the accused has done that bearing in mind the advice, regardless of what it was, given by counsel.

Can be ground for appeal if D was not advised accordingly

Question 95

judge calling or re-calling witnesses

Answer 95

• Judge has the power for them to call witnesses on their own initiative
• Power should be used sparingly
• Only used when it is in the interests of justice

Question 96

Discussion of the relevant law: Crown Court

Answer 96

• Split summing up, where the admin bits of the summing up are dealt with first then counsel can discuss the law with judge
• This is for points of law which have arisen throughout the trial
• Counsel may highlight any errors they think arose in the summing up

Assisting the Court:
o Counsel to bring all the authorities to the attention of the court even if they are not in favour of their case

Question 97

limitations on the content of closing speeches: Prosecution

Answer 97

o No emotive language
o No unjustified comments on defence case
o No improper vouching of the soundness of defence case
o No insinuations of incriminating material which has not been adduced
o Not attack their own witnesses credibility
o Not invite inferences contrary to the evidence
o Not comment on the failure of the accused spouse or civil partner to give evidence
o Can comment on accused failure to answer in interview
o May comment on failure to serve defence statement

Question 98

limitations on closing speeches: general

Answer 98

• Counsel to not elude any facts. Which have not come up ion the casein their closing speech
• Nor ask for the mercy of the defendant
• Nor should counsel criticise their opponents

Question 99

limitations on closing speeches: Defence Counsel

Answer 99

o Counsel not confined to presenting D’s version of events
o Hypotheses which advance these version of events
o Defence counsel should not comment on consequences of sentencing on conviction
o Can comment on accused failure to come into witness box – explain why
o Can comment on the co-accused’s version of events not being consistent
o Entitled to comment on co-accused not going in witness box

Question 100

summing-up: Preliminary general matters

Answer 100

• Discourage courts from doing summing-up late in the day or just before the weekend
• Counsel have to take note of summing-up if it is not written

Question 101

summing up: Duties of counsel

Answer 101

o Prosecution counsel needs to pay attention to summing-up and draw judges attention to any error made
o Defence counsel can remain silent if it is in the interest of their client
o Dismissal of appeal would not be automatic where defence counsel failed to correct an error of law

Counsel’s duty:
(a)It is the duty of both prosecution and defence counsel to alert the judge to evidence on which the jury could find provocation, before the summing up, and, if the judge agrees, remind him or her that statute requires the judge to leave the remaining issues to the jury (Cox [1995] 2 Cr App R 513).
(b)Defence counsel is under a duty to request a good character direction, if the accused was entitled to one, rather than making complaint later if one is not given (Gilbert v The Queen [2006] UKPC 15, [2006] 1 WLR 2108; and see Hunter [2015] EWCA Crim 631, [2015] 2 Cr App R 9 (116)).
(c)There is a duty on all counsel to focus during the summing up on what is being said and to raise any material error or omission at the time (Sakin [2021] EWCA Crim 291).

Question 102

summing-up: written directions

Answer 102

o Written route to verdict
o A series of questions for jury to answer to help jury reach their verdict
o Questions are shown to counsel so they have the chance to make any additions, though when counsel fail to adequately check them it won’t necessarily give ground for appeal but affect weight in the deficiency
o Written questions should be seen as the ‘norm’
o Jury should be given them at the start of the summing up in order for the judge to be able to go through them with the jury during the actual summing-up itself

Question 103

standard directions

Answer 103

There are standard forms provided for judges to tweak and apply them to the case at hand and to allow standardisation

Question 104

directions to function of judge and jury

Answer 104

o Judge to give directions to the functioning of the jury and what they can and can’t do
o If jury see a piece of evidence they see to be important but the judge sees fit to exclude it, the jury can still refer to it, so long as it is legally allowed
o It is the jury’s view which matters

Question 105

summing-up: Burden and Standard of proof

Answer 105

Judge must always refer to the standard and burden of proof
If the judge fails to refer to:
- The prosecution having the burden of proof; or
- The jury having to be sure beyond reasonable doubt
This gives rise for an appeal and conviction to be quashed

Question 106

summing up: Separate consideration for counts and defendants

Answer 106

o Jury consider each count separately
o Judge summarise the evidence count-by-count rather hen witness-by-witness
o Each defendant dealt with separately
o Judge should make it clear if the admissibility of evidence was allowed in one count and was relatable to another

Question 107

summing up: elements of offence

Answer 107

o Tailoring each summing up to deal with the elements which are in issue
o Judge needs to isolate the issues which the jury need to consider

Question 108

Summing up: Failure to answer or give evidence

Answer 108

o Judge to direct jury on the inferences which can be drawn on the accused not giving evidence or being silent
o Judge to identify the certain facts which D was silent on
o Number of limitations when it comes to section 34 CJOP 1994:
(a)No inferences should be drawn from the silence in interview of an accused who does not give or call evidence, and has not advanced a positive case (Moshaid [1998] Crim LR 420).
(b)Where an accused’s account had changed between interview and trial, this was a matter on which comment could be made without the need for a formal direction under s. 34(Maguire [2008] EWCA Crim 1028).
(c)The direction given in relation to a failure to answer questions must address not only the reason advanced for the failure, but any other factors relevant to the jury’s assessment of it, e.g., the age of the accused (Murphy [2020] EWCA Crim 1898, [2022] 1 Cr App R 7 (103)).
o Jury should be directed where inferences are not to be allowed to be drawn

Question 109

what can the judge say tot he jury if D is a litigant in person?

Answer 109

Judge to remind jury of the difficulties posed if D is representing themselves

Question 110

Summing up: Defences

Answer 110

Legal directions on the defence which D relies on

Common ones are:
(a)self-defence (see Palmer [1971] AC 814, Lobell [1957] 1 QB 547, Harvey [2009] EWCA Crim 469, the Crown Court Compendium, ch. 18-1 and A3.55);
(b)alibi (see Anderson [1991] Crim LR 361, the Crown Court Compendium, ch. 18-2 and F3.44) — where an alibi is demonstrated or accepted to be false, a Lucas-type direction is appropriate, see Lesley [1996] 1 Cr App R 39;
(c)loss of control (see Clinton [2012] EWCA Crim 2, [2013] QB 1, and the Crown Court Compendium, ch. 19-2); and
(d)diminished responsibility (see Terry [1961] 2 QB 314, the Crown Court Compendium, ch. 19-1, and B1.25).

Question 111

summing up: facts

Answer 111

Judge must give all the relevant facts in a summarised form

Question 112

summing up: analysis involved

Answer 112

o Judge help jury analyse the facts in cases which are very complex. This si not needed in simple cases
o Summary should be consise and succinct
o It is to be accurtate and reflect both sides of the argument
o To provide a jury with a rational consideration of the facts at hand

Question 113

Summing up: summarising the defence case

Answer 113

o Judge is to identify the defence for the jury to consider
o The following propositions apply:
(a)Where the accused has given evidence, it will be desirable to summarise that evidence.
(b)Where the accused has given evidence and answered questions in interview, it may be appropriate to draw attention to consistencies and inconsistencies between the two.
(c)When an accused is interviewed at length but does not give evidence, the judge has to decide how, fairly and conveniently, to place the interview before the jury.
(d)When the accused has done neither, it will usually be appropriate to remind the jury of counsel’s speech.
o Judge to give overview of defence and chronology of prosecution events

Question 114

Summing up: judicial comment

Answer 114

o Be clear, logical and impartial
o No need for sarcasm or extravagant comments
o ‘however distasteful the offence, however repulsive the defendant, however laughable his defence, he is nevertheless entitled to have his case fairly presented to the jury both by counsel and by the judge’
o Jury are to ignore the opinion and comments judge may make on the evidence

Question 115

Appointment of foreman

Answer 115

Foreman appointed at the end of summing up and they will deliver the verdict

Question 116

judge to tell jury to reach a unanimous verdict?

Answer 116

o Failure for a judge to tell jury their verdict must be unanimous will not render conviction unsafe
o Judge should not indicate the exact period in which they will accept a majority verdict

Question 117

Unanimity on the basis of a guilty verdict

Answer 117

o Where there are more than one basis for guilt and prosecution putting the case, the jury must be told that they find D guilty on these bases
o Consider the following too:
(a)Where several matters were set out in a single count, the judge must consider whether to give the jury a direction that they must all be agreed on the particular ingredient which they rely on to find the accused guilty (Brown).
(b)Such a direction will be necessary only comparatively rarely. In the great majority of cases (particularly where dishonesty is alleged and where the allegations stand or fall together), it will be unnecessary and may serve only to confuse the jury (Price [1991] Crim LR 465 and More (1988) 86 Cr App R 234). The direction is limited to cases where the factual bases for the charges as indicted are ‘individually coterminous’ with an essential element of the offence (Chilvers [2021] EWCA Crim 1311, [2022] 1 Cr App R 2 (12)).
(c)In an appropriate case, where there was a realistic danger that the jury might return a verdict of guilty on the basis that some of them found one ingredient proved and others found another ingredient proved, a direction should be given that they must be unanimous as to the proof of the ingredient which demonstrated that offence.

Question 118

retirement of the jury

Answer 118

• Announcement of verdict must be succinctly clear
• Nobody to interfere with jury when deliberating
• Jury, once in deliberation, must be in charge of the court through the jury bailiff
• They must not be interfered with and must not be separated from each other or bailiff

Question 119

Questions from the jury

Answer 119

• Jury can ask judge questions during deliberation
• Done by passing note between jury and judge through bailiff
• Three propositions laid out to help jury during deliberation:
  First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel and without bringing the jury back to court.
  Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful so to do, seek the assistance of counsel. This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication.
  Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures … then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed.
• Judge should invite and tell counsel once they have been handed a jury question and allow counsel to have their input

Question 120

when can there be a majority verdict?

Answer 120

Allowed once conditions are satisfied

Time requirement:
o Must be a time for consideration which the judge sees reasonable before they reduce the verdict from unanimous to majority
o A period of no less than 2 hours
o Should be allowed 2 hours and 10 minutes before a majority will be considered
o It depends largely on the complexity of the case
o The length of the trial does not indicate complexity, tis the issues at hand which show it
o 2 hours and 40 minutes was seen a little too soon for a murder trial which lasted 15 days

Question 121

minimum number for an acceptable majority verdict

Answer 121

11-1 or 10-2: when there are 12 jury members

10-1 or 9-1 where one or more of the original jurors have been discharged

Question 122

statement of size of the majority and minority when majority Verdict

Answer 122

o Foreman must state the number of jurors who agreed and who dissented when reaching the verdict
o Failure to do this will lead to a conviction being quashed
o Foreman can leave the minority number out to be inferred once stated the majority – this will suffice
o Must make clear how the jury were divided

Question 123

Verdict off guilty of an alternative offence

Answer 123

General rule: Where, on a person’s trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.

There are thus two principal situations covered by s. 6(3). One is where the offence charged expressly includes an allegation of another indictable offence; the other is where it impliedly includes such an allegation.

Question 124

Judges judgement as to directing jury to alternative offences

Answer 124

• Judge is not obliged to highlight the option of finding D guilty of another offence
• Judge to leave alternative to the jury
• Judge to not add alternative of their own initiative once evidence is being given

Question 125

Returning the verdict: general procedure

Answer 125

o Verdict should be delivered in court in presence of D – if D shows up
o Court clerk asks the question of their verdict
o Foreman delivers verdict
o Jury can return partial verdict where D is guilty for one offence but is not guilty for the other
o Jury can find guilt on D where some matters are seen to be basis of guilt but others are not. So long as the subject matter is satisfied then the verdict is safe. An example of this would be where D is guilty of theft but the number of items he was charged for, jury thought 8/10 items D was guilty of stealing

Question 126

when jury are unable to return a verdict

Answer 126

• If jury are unable to reach a decision then they must be discharged
• D is then retried
• If jury then do the same then it is normal on the third occasion for prosecution to offer no evidence
• This is because the offence still lies
• In some cases a further trial might be proper in case of jury being tampered with etc

Whether it was an abuse of process for the prosecution to seek a further trial must depend on the facts, including:
(a)the overall period of the delay and the reasons for it;
(b)the results of the previous trials;
(c)the seriousness of the offence; and (possibly)
(d)the extent to which the case against the defendant had changed since previous trials.

Question 127

Jury Bailiff Sworn

Answer 127

The jury bailiffs swear/affirm to keep the jury ‘in some private and convenient place’ and not to allow anyone to speak to them or to speak to them themselves without the leave of the court other than to ask them if they have reached a verdict.
The jury bailiffs are court ushers who become jury bailiffs once they take the jury bailiff’s oath/affirmation.
A court usher is a court employee who assists in running the courtroom, such as by informing legal representatives when their cases are about to be called on, calling defendants when their case is called, assisting witnesses and dealing with members of the public.