Tribunals of Fact and Law

Question 1

What is the role of the judge?

Answer 1

The judge is the tribunal of law.

1. Summing up directing the jury on a variety of evidential points
2. Whether a witness is competent to give evidence.
3. Whether proceeding should be stayed for “abuse of process”
4. Whether evidence is admissible
5. The sufficiency of evidence.

Question 2

As said in Jackson, how should a judge direct the jury on evidential points?

Answer 2

Jackson [1992]:

“It is my job to tell you what the law is and how to apply it to the issues of fact that you have to decide and to remind you of the important evidence on these issues…As to the law you must accept what i tell you. As to the facts, you alone are the judges.”

The must be unbiased and objective.

Question 3

What decides whether a witness is competent?

Answer 3

According to Youth Justice and Criminal Evidence Act 1999 -S53(1): all persons are (whatever their age) competent to give evidence.

Subject to S53(3):

A person is not competent if:

a) they cannot understand the questions
b) they cannot give answers to them that can be understood.

This is determined by the judge through a Voir dire.

Question 4

What decides whether a witness is compellable?

Answer 4

Mostly, competent witnesses are also compellable witnesses, with exceptions:

The accused: for the prosecution, not competent or compellable. For the defence, is competent but not compellable

Co-accused: Is competent for prosecution if no longer part of proceedings. For the co-defendant, is competent but not compellable unless no longer a co-defendant.

Question 5

Is the spouse of the accused a competent and compellable witness?

Answer 5

For the prosecution against accused/co-accused and for the co-accused: Competent (unless are co-accused), and compellable only if a specified offence (S80(3) PACE)

Question 6

Are ex-wives/husbands competent and compellable?

Answer 6

In any proceedings, a person who has been, but is no longer married to the defendant, shall be competent and compellable as if they had never been married.

Question 7

When should a judge stay the court process due to Abuse of Power?

Answer 7

An abuse exists if the prosecutions is an affront to the public conscience or is deeply offensive to the ordinary notions of fairness.

The types of issues that arise are:

• Delay
• Manipulation of the Court Process (entrapment)
• Suppression of evidence.
• Loss of evidence

Question 8

What discretion can the judge use to exclude evidence?

Answer 8

Common law - Sang:

1. A trial judge always has a discretion to exclude evidence tendered by the Prosecution if its prejudicial effect outweighs its probative value but.
2. Save with regards to admissions and confessions, the judge has no discretion to exclude relevant admissible evidence on the ground it was obtained by unfair/improper means.

Question 9

What statute can the judge call on to exclude evidence?

Answer 9

Section 78 PACE:

In any proceedings the court may refuse evidence that the prosecution relies on if it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it

(only applies to prosecution evidence)

Question 10

What dictates the sufficiency of evidence and when is there no case to answer?

Answer 10

Questions of sufficiency of evidence are for the judge.

Evidential Burden - Where a party bears the evidential burden on a fact in issue, they must adduce sufficient evidence of that fact. If the evidence is insufficient, the matter cannot be submitted to the jury, and is withdrawn from them, e.g. self defence.

Galbraith: If there is no evidence that the crime alleged has been committed by the defendant, the judge will stop the case.

Question 11

What Statutes regulate Juries?

Answer 11

Sections 69-77 of the Criminal Justice and Courts Act 2015; it is an offence to:

• research the case they are trying (s.20)
• Disclose information to another juror found through research (s.20A) and the information has not been provided by the court (s.20B).
• Intentionally try the issue otherwise than on the basis of the evidence provided (s.20C)

Question 12

When can a trial without jury be implemented?

Answer 12

Sections 43-49 Criminal Justice Act 2003

S43(5): In cases where, “the complexity of the trial or length is likely to make the trial so burdensome to the jury that the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury”.

S44 - Jury tampering cases.