TRIAL PROCEDURE IN MAGISTRATES’ AND CROWN COURTS

Question 1

states of criminal trial

Answer 1

Question 2

EXAMINATION IN CHIEF

Answer 2

1. A witness will first be questioned by the party that has called them, and then by the other side. For example, a prosecution witness will first be questioned by the prosecution (this is known as examination in chief), and they will then be questioned by the defence (this is known as cross examination).
2. In examination in chief, a witness may be asked only** non-leading questions**. Non-leading questions are questions that do not suggest the answer. They will typically start with who,
   what, where, when, why, or how. Alternatively, they may be open questions, like “describe” or “tell me about”. They may piggyback upon a witness’s previous answer.

Question 3

CROSS-EXAMINATION

Answer 3

1. Once a witness has completed their evidence in chief, they will then be subject to cross examination by the opposing
   side.
2. The advocate’s role in cross-examination is to **cast doubt **upon the evidence given in chief and to put their client’s account to the witness.
3. In cross-examination, advocates may ask** leading questions**; Advocates will frequently use leading questions to put their case to a witness.

Question 4

4

COMPETENCE AND COMPELLABILITY

Answer 4

1. Competence means that a witness is allowed to** give evidence** in court.
2. Compellability means that they can be forced to give evidence.
3. A witness is not competent to give evi-dence in criminal proceedings if it appears to the court that they are not able to (1) understand questions put to them as a witness and (2) give answers to the court which can be understood.
4. Subject to the above, all witnesses (other than the defendant and the defendant’s spouse or civil partner) are competent to give evidence for the party that calls them. All competent witnesses are compellable.

Question 5

The Defendant

Answer 5

1. The defendant is neither competent nor compellable for the prosecution whilst on trial.
2. The defendant is competent for
   the defence, but they are not compellable.
3. However, the jury (or bench or judge in the Magistrates’ Court) may draw an adverse inference if the defendant does not give evidence.

Question 6

4

specimen direction

Answer 6

The specimen direction for the judge to give to the jury in
summing up states that:
1. The defendant is entitled not to give evidence;
2. The jury may draw such inferences as appear proper;
3. Failure to give evidence on its own cannot prove guilt, but depending on the circumstances, the jury may hold this failure against the defendant; and
4. If the jury think the only sensible explanation for the decision not to give evidence is that the defendant has no answer to the case against them—or none that could have
stood up to cross-examination—then it would be open to the jury to hold the failure to give evidence against the defendant.

Question 7

Defendant’s Spouse or Civil Partner

Answer 7

1. For the prosecution or co defendant, the defendant’s spouse or civil partner is** competent but not compellable **(that is, they may testify but they cannot be forced to)
2. unless the offence involves assault, injury, or threat of injury to them or a child under 16; a sexual offence on a child under 16; or
   attempting, conspiring, aiding, or abetting those crimes.
3. For the defendant, their spouse or civil partner is competent and compellable (unless they are jointly charged).

Question 8

Co-Defendants

Answer 8

1. Co-defendants are not competent or compellable for the
   prosecution.
2. Co-defendants are competent for the defence, but they are not compellable.
3. However, if a co-defendant
   pleads guilty or the case against them is dropped, they become an ordinary witness and therefore become competent and compellable for either party.

Question 9

4

SPECIAL MEASURES

Answer 9

Certain witnesses may request special measures to assist
them giving evidence. These witnesses include those who are:
1. Under the age of 18;
2. With a disability or disorder likely to affect evidence;
3. Affected by fear of giving evidence;
4. Complainants in sexual offences; or
5. Witnesses to specifed gun and knife crimes.

Question 10

SUBMISSION OF NO CASE TO ANSWER

Answer 10

1. At the end of the prosecution calling witnesses, the defence
   may choose to make a submission of no case to answer, argu-ing that the prosecution has not presented enough evidence to amount to a** prima facie case**.
2. This is the case if the prosecution has either failed to adduce evidence of one or more of
   the elements of the offence or if the evidence given is so unreliable that no reasonable bench, judge, or jury could convict.
3. This application is heard by the judge in absence of the jury (if in the Crown Court). If successful, the defendant is acquitted.
4. If unsuccessful, the defence will then proceed to advance their case, which may include calling their own witnesses.

Question 11

COMMON PROFESSIONAL CONDUCT ISSUES
“I Did It, but I’m Pleading Not Guilty”

Answer 11

1. If a defendant admits guilt but insists they will plead not guilty, the solicitor must advise the client carefully on the strength of the evidence and of credit for guilty plea.
2. If the defendant remains adamant that they will plead not guilty, the solicitor may continue to act for them but cannot put anything before the court they know to be untrue. This means the solicitor will be able to test the strength of the prosecution evidence but will not be able to put forward a positive defence.
3. If the defendant wishes to advance an alternative defence, the solicitor will have to withdraw.

Question 12

COMMON PROFESSIONAL CONDUCT ISSUES
“I Didn’t Do It, but I’m Pleading Guilty”

Answer 12

1. Conversely, a defendant may wish to plead guilty even if
   they have not committed the offence—to avoid the stress or inconvenience of going to trial.
2. In these circumstances, the
   solicitor should advise the client of the defence available. If the defendant insists on pleading guilty, the solicitor can con-tinue to act, but they will not be able to put forward anything in mitigation that suggests the defendant did not commit the offence.
3. This is because a solicitor may not mislead the court, and by pleading guilty a defendant is accepting guilt. To suggest in mitigation that the defendant does not accept guilt would prompt the judge to reexamine plea.

Question 13

Assisting the Court on Points of Law

Answer 13

1. The solicitor is under a positive duty to assist the court on points of law, even if this goes against the defendant’s interests.
2. There is no duty to assist if a solicitor is aware of missing or misinterpreted facts, but they may not mislead the court.

a.Magistrates’ Court
In the Magistrates’ Court, the defence solicitor may find
themselves to be the only legally qualifed person in the room. The solicitor may appear before a lay bench, guided by a legal advisor who has not necessarily completed their route to qualifcation, with the prosecution case put forward by a prosecution caseworker who might not be a qualifed lawyer either. In these circumstances, a defence solicitor may need to advise on the admissibility of evidence or the interpretation of elements of the offence.

Question 14

Avoiding Conficts of Interests

Answer 14

A solicitor cannot act for two or more defendants unless
their accounts are aligned. If a solicitor agrees to act for two defendants and a confict subsequently arises, the solicitor
will normally have to withdraw from the case entirely. The
solicitor may continue to act for one of the defendants only if the duty of confidentiality to the other defendant would not
be compromised.