Unit 14 - Jury trial procedure Flashcards
1
Q
Presence of the accused at trial
General principle
A
accused should be present throughout the trial
2
Q
The attendance of the accused at the CC is secured by the MC remanding in custody or on bail when the case is sent for trial.
A
If having been bailed, the accused fails to attend on the day notified as the day of trial, a bench warrant may be issued forthwith for the accused’s arrest under the BA 1976, s. 7
3
Q
The accused must be present at the commencement of a trial on indictment in order to plead
A
- It is then the almost invariable practice for the accused to be present throughout the trial.
- The implication of this rule is that the accused must not only be physically present, but must have the proceedings interpreted if that is necessary
4
Q
CrimPR 25.2(1)(b) provides that the court must not proceed if the accused is absent, unless
A
the court is satisfied that the accused has waived the right to attend and the trial will still be fair despite the accused’s absence.
5
Q
The judge ought not to deal with matters which constitute part of the trial proceedings in the absence of counsel for the defence.
A
in Coolledge
- an appeal was allowed because the judge inquired of a witness in chambers and in the absence of defence counsel as to the reason why he had failed to attend court to give evidence.
- The COA held that counsel should not have been excluded since the procedure went beyond a mere inquiry, and affected the conduct of the trial itself, which was therefore tainted.
6
Q
Exceptions to the General principle
an accused should be present throughout the trial
A
(a) as a result of the misbehaviour of the accused (see D15.86);
(b) where his absence is voluntary;
(c) when the accused is too ill to attend;
(d) following the death of the accused.
7
Q
An accused has, in general, a right to be present at the trial and a right to be legally represented.
(b) Those rights can be waived, separately or together, wholly or in part, by the accused:
A
(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.
8
Q
c) 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.
A
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.
9
Q
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.
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:
A
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;
x. 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.
10
Q
If the judge decides that a trial should take place or continue in the absence of an unrepresented accused, the judge must ensure
A
(1) the judge must ensure that the trial is as fair as the circumstances permit.
(2) 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
11
Q
The principles outlined by the COA
in Hayward were considered and commended by the HOL in Jones
the COA’s guidelines were endorsed with two reservations:
A
(1) the seriousness of the offence should not be considered — the principles would be the same whether the offence was serious or minor; and
(2) even if the accused absconded voluntarily, it would generally be desirable that the accused should be represented. It was emphasised that it was a step to be taken with ‘great caution and close regard to the overall fairness of the proceedings’. In Amrouchi [2007] EWCA Crim 3019, relying on those observations, Hughes LJ said it was a step that should only be taken when it was ‘unavoidable’.
12
Q
Misbehaviour of the Accused
If the accused behaves in an unruly fashion in the dock, e.g., by shouting out, or is apparently trying to intimidate jurors or witnesses, and thereby makes it impracticable for the hearing to continue, the judge may order:
A
(1) that the accused be removed from court and that the trial proceed in the accused’s absence
(2) the judge would warn the accused before taking the extreme step of barring from court
13
Q
Misbehaviour of the Accused
Is accused is misbehaving, can he return at a later stage?
A
yes…
it may be appropriate to permit a return to the dock at a later stage if the accused undertakes not to repeat the unruly behaviour
14
Q
it may be appropriate to permit a return to the dock at a later stage if the accused undertakes not to repeat the unruly behaviour
A
15
Q
Should an accused should be handcuffed in the dock?
A
NO
unless there is a real risk of violence or escape and there is no alternative to visible restraint
16
Q
if the accused refuses to be brought into court from the cells, what should the judge do?
A
If the accused refuses to be brought into court from the cells
As is made clear at CrimPR 25.2(1)(b), and was repeated in Hussain [2018] - the discretion to continue in the absence of the accused is to be approached with great caution and with close regard to the fairness of the proceedings. It may often be better to allow time to cool off, and to continue the trial in the accused’s presence.
17
Q
Voluntary Absence of the Accused
If the accused, having been present for the commencement of his trial, later goes voluntarily absent, either by escaping from custody or by failing to surrender having been bailed by the court for the period of an adjournment, the judge has a discretion to:
A
(1) to complete the trial in the accused’s absence
(2) Should the accused be convicted, sentence may also be passed in the accused’s absence
18
Q
What happens in an event that D had voluntarily rendered himself incapable of participation in the trial through intoxication (or through a self-induced drug psychosis?
A
Judge has discretion to proceed in his absense
19
Q
Who decides whether to proceed in the voluntary absence of the accused?
A
this is for the judge to decide
20
Q
Whether to proceed in the absence of the accused? is a matter for the judge’s discretion, and judge should consider:
A
a. whether the accused had deliberately absented himself;
b. whether there were reasonable steps that could be taken to secure his attendance.
21
Q
The COA restated that a trial can proceed in the absence of an accused who has not been arraigned:
however, the court was first required to be satisfied that the accused had waived the right to be arraigned
A
If the indictment had been amended after the accused had absconded, it could not necessarily be assumed that the accused had waived the right to be arraigned on that amended indictment, although this also depended on a fact-specific analysis.
22
Q
When deciding if court should proceed in the absence of the accused: the alternative is to discharge the jury from giving a verdict, thus allowing a retrial to take place before a different jury once the accused’s presence has been secured.
A
(1) This exercise of discretion involved more than an assessment of the adequacy of the evidence to explain the accused’s absence, and required an assessment of fairness
(2) Whether or not the court proceeds in the accused’s absence, the judge may and almost certainly will issue a warrant for the accused’s arrest under the BA 1976, s. 7
23
Q
If the accused’s absence from court is for reasons beyond the accused’s control.. what can the judge do:
A
the trial may not continue in his or her absence unless the accused consents or if the case can be fully presented, including the accused’s own written evidence, without unfairness
e.g. sickness of the accussed
24
Q
If the accused’s absence from court is for reasons beyond the accused’s control… when can the judge proceed
A
i. he consents; OR
ii. if his case can be fully presented without
unfairness (including the accused’s own written evidence).
25
If accused becomes ill during trial = judge must either:
i. Adjourn the case until he recovers; OR
ii. Discharge the jury.
If the court is not satisfied with the adequacy of the evidence of illness it should provide an opportunity for further evidence to be provided before continuing the trial in the acccused’s absence, and must always have regard to fairness
26
Possible exceptions to this principle that the trial may not continue in an event that the accused’s absence from court is for reasons beyond the accused’s control:
(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.
(b) Where D’s voluntary ingestion of drugs makes his participation in the trial impossible, the situation may well be otherwise (Simms).
(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 (Hamberger).
27
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.
However, in F [2018] , the judge was found to have been correct to continue with the trial of an elderly hospitalised defendant by reference to factors such as the long delays in bringing the case to trial;
- the many adjournments which had already been granted;
- the interests of witnesses, including the complainant; and, crucially, whether the appellant’s counsel was fully instructed and able to represent his interests without him being present.
28
If an accused is not legally represented, the court will, as a matter of practice =
seek to give the accused such assistance in conducting his or her defence as may seem appropriate.
29
Where defence counsel and/or solicitor withdraw or are dismissed by the D during the trial, and he remains eligible to receive legal aid =
normally the judge will grant an adjournment for D to gain new representation.
30
Assistance to D: Accused’s right to give or call evidence
The accused should always be told by the court at the end of the prosecution case of the right to give evidence in person, to call witnesses in his or her defence (whether or not the accused goes into the witness-box), or to stay silent and call no evidence
31
Failure to give the accused this information may lead ...
to any conviction being quashed
32
Particular, accused should always be told of:
o His right to give evidence himself;
o His right to call witnesses in his defence (whether or not he himself goes into the witness box)
o His right, alternatively, to stay silent and call no evidence;
o that he is able to put his case to prosecution witnesses in cross-examination;
o Particularly importance: must be informed of the inferences which may be drawn from a failure to give evidence (pursuant to s35 CJPOA 1994). - Accused should be addressed as follows: “if you do not give evidence
(or, having been sworn, don’t answer a question without good cause) = the jury may draw adverse inferences as appear proper. That means they may hold it against you”
33
The judge may ask a witness any question necessary in the defendant’s interests (r25.11(6)(b)).
There are limitations on what such a defendant can do personally.
Restrictions placed on unrepresented Defendants in XX, ss34-36 Youth Justice
and Crim Evidence Act 1999
34
Restrictions placed on unrepresented Defendants in XX,
ss34-36 Youth Justice
and Crim Evidence Act 1999
(1) An unrepresented D may not cross-examine in person a complainant in proceedings for a sexual offence
(2) D may not cross-examine in person a child complainant or other child witnesses in proceedings for sexual offences and certain other offences (eg kidnapping, false imprisonment, abduction).
35
3) And Court has power to prohibit XX of a witness by an unrepresented D IF satisfied that:
i. the quality of evidence is given is likely to be diminished by XX by accused in person and improved by such a direction; and
ii. not contrary to interest of justice.
36
Court appointed advocate: if unrepresented D is prevented from XX etc, the court may:
if necessary in the interests of justice an advocate will be appointed to conduct the cross-examination on unrepresented D’s behalf.
37
Abuse of power
According to County of London Quarter Sessions, ex parte Downes [1954] 1 QB 1 at p. 6, once an indictment has been preferred, the accused must be tried unless:
(a) the indictment is defective (e.g., it contains counts that are improperly joined and so does not comply with CrimPR 3.29(4):
(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 ).
38
There are Two Categories of case where court has power to stay proceedings for Abuse of Process:
(i) where it will be impossible to give the accused a fair trial,
(this limb focuses on trial process)
and
(ii) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case.
(Is an application to ‘stay’ proceedings: will normally be permanent, but is not the same as a ‘not guilty’ verdict. In exceptional circumstances the stay may be lifted)
39
the purpose of the prosecution opening speech =
is to help the jury understand what the case concerns, not necessarily to present a detailed account of all the prosecution evidence due to be introduced’.
40
Prosecutor should address
* Opening Speech will Contain:
i. Identifies the issues in the case (what matters likely to be in dispute);
ii. Concise outline of the evidence which prosecution proposes to call.
* Prosecutor will tell jury what counts D faces, will usually hand to the jury a copy of the indictment
41
Opening speech
Prosecutor should avoid
(1) avoid use of overly emotive language:
(2) Prosecuting counsel should remember his role as a ‘minister of justice’, who should not strive over-zealously for a conviction.
(3) So should avoid using emotive language liable to prejudice the jury against the accused.
42
Where prosecutor is aware that certain evidence will be challenged by D =
cannot refer to that evidence during opening speech.
43
Submissions as to points of law in prosecution opening speech:
(1) Presumption = an opening speech should NOT ADDRESS THE LAW (save in cases of real complication and difficulty, where counsel believes, and judge agrees, that the jury may be assisted by a brief and well-focused submission)
(2) Is a matter of discretion for prosecutor, re extent to which he deals with points of law that may arise during trial or possible defences.
(3) If does deal with a matter of law, it is usual to remind the jury that matters of law are ultimately for the judge, and thus that counsel’s remarks should be disregarded if they differ from the judge’s directions.
44
So, after Opening Speeches, Prosecuting counsel will:
a. Call Witnesses and
b. Read out any Written Statement, Admissible under exceptions to rule against hearsay
45
General rule: Witnesses on back of indictment:
(1) As a matter of practice the statements of all witnesses whose statements have been served should be called or read
(2) Prosecution counsel does have a discretion not to call a witness on the back of the indictment, but must exercise this in a proper manner, and not for some ‘oblique motive’ (eg to unfairly surprise or prejudice the defence).
46
The CJA 1967, s. 9, provides for the admissibility of written statements in criminal proceedings
(1) 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
(2) 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.
(3) 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.
47
s. 9 statements are admissible only if =
all the parties agree
48
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
49
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
50
Objections to Prosecution Evidence
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 (as to circumstances where the admissibility issue ought to be resolved before the case starts
(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. For the application of this rule to the admissibility of confessions, see the PACE 1984, s. 76(2), and Brophy [1982].
(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.
a) If the judge ruled against the disputed evidence, the jury will know nothing about it.
b) 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
51
Editing of Prosecution Evidence
Where the prosecution evidence as foreshadowed in the statements relied on by the prosecution, contains material 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.
Best way to edit (Weaver, Sachs LJ):
o The evidence should appear unvarnished in the committal statements.
o Counsel on both sides can then confer at trial to ensure the editing is done in the right way and to the right degree.
o If necessary, judge can also play a part.
52
CrimPD V, paras. 16A.1 to 16A.6
contain detailed instructions on the treatment of statements served as part of the prosecution case where some of the material contained therein may be inadmissible or unduly prejudicial. Three options are set out:
(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 (para. 16A.3(b)). The circumstances in which this is the preferred option are set out at para. 16A.4.
(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.
the following note should be attached to the foot of the frontispiece or index to the bundle when served: ‘The prosecution does not propose to adduce evidence of those passages of the attached copy statements which have been struck out and/or bracketed (nor will it seek to do so at the trial unless a notice of further evidence is served)’
53
Submission of no case to answer
After conclusion of prosecution case, on (a) D’s application or (b) court’s own initiative, the court:
1. MAY acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict; BUT
2. MUST not do so unless the prosecutor has had opportunity to make representations.
(SAME AS MC - NO NEED TO REPEAT BOTH IN THE MC NOTES)
54
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
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
Except when the judge invites defence counsel concisely to identify what is in issue, in order to assist the jury, following the prosecution opening.
55
In an opening speech, defence counsel may:
(1) the anticipated defence case and
(2) 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.
56
Defence Evidence
The defence are NEVER obliged to call evidence, because the burden of proof is on
the prosecution.
- And defence are not obliged to call the accused (as he is a competent,but not compellable, witness)
- Generally, same rules for defence witnesses as prosecution witnesses.
57
Additional limitation re defence witnesses:
duty of court to stop evidence being given
where:
a. It is irrelevant to the issues in the case; OR
b. Where the court is being used as a political sounding board.
58
Order of Defence Evidence
ACCUSED then other D witnesses (unless court directs otherwise)
Rationale: witnesses are normally kept out of court until they testify, but accused has right to be present throughout trial, and thus would have the opportunity to adjust his evidence to accord with that of other defence
witnesses if he wasn’t called first.
Court discretion to depart from this rule: eg to allow a witness whose evidence was not substantially disputed to testify out of the normal order if convenient.
59
psychiatric expert evidence in relation to an accused ought to follow on after the prosecution’s evidence of the offence and any evidence from the accused
60
Order of Defence Evidence: when should Character witnesses be called?
after the accused unless there are other witnesses as to the facts
61
A witness waiting to give evidence must not wait inside the courtroom,
UNLESS
that witness is a party or an expert witness
62
Decision to Call the Accused
The decision whether to testify or not is for ...
the accused.
63
The Court of Appeal has stated that, when the accused decides not to go into the witness-box, his counsel should:
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
64
Failure to advise the accused properly about the advisability of testifying may result in =
in appropriate circumstances, constitute grounds for the COA to decide that a conviction is unsafe and unsatisfactory
65
Judge calling or recalling a witness
* The judge has a discretion to call a witness whom neither prosecution nor defence have chosen to call.
* Should be sparingly exercised, and only where necessary in interests of justice.
66
Legal Discussions
Prior to summing up, or the first part of the summing up if it is split
court will almost always invite counsel, in the absence of the jury, to make representations on how certain aspects of the case should be dealt with. This is especially important where there might otherwise be misunderstanding or doubt as to how points of law and evidence which have arisen during the course of the case should be dealt with
67
Can the law be discussed in front of the jury:
Only in very exceptional circumstances would it be appropriate for the court to discuss the law with counsel after concluding the summing-up and before the jury’s retirement
68
Counsel for prosecution & defence are under a duty to assist the court:
(1) Counsel is under a duty to bring all relevant authorities to the court’s attention even if some are unfavourable to counsel’s own argument
(2) any procedural irregularity must be brought to the attention of the court during the hearing and not reserved to be raised on appeal
69
Order of Speeches
P first
70
Limitations as to Content
Neither counsel in a closing speech should :
(1) allude to alleged facts or other matters which have not been the subject of evidence
(2)should the jury be invited to add a recommendation of mercy to their verdict should it be one of guilty
71
Prosecution Counsel
Prosecution can only closing speech only where
(i) D is represented or
(ii) whether or not represented, the D has called at least one witness other than himself to give evidence in person about the facts of the case; or
(iii) the court so permits.
72
In closing speech: D should not:
(1) counsel should not comment to the jury on the potentially serious consequences to police officers of their evidence being disbelieved, even where a police officer has raised the matter in evidence
(2) use emotive and unjustified comments on the defence case, insinuations of additional unadduced incriminating material and a number of passages where the prosecutor improperly vouched for the soundness of the prosecution’s case.
(3) is not entitled to abandon or attack the credit of the prosecution’s own witness
(4) the prosecution should not comment on the failure of the accused’s spouse or civil partner to give evidence - However, prosecution counsel is entitled to comment on the failure of the accused to answer questions in interview, or to give evidence
73
In P closing speech: can P make ‘such comment as appears appropriate’, about the failure of the accused to serve a defence statement, or as to divergence between that statement and the accused’s evidence?
YES -providing that the court grants leave,
74
D closing speech - are they entitled to make one?
Defence are always entitled to make a closing speech.
75
D closing speech - what can they say?
(1) counsel is not confined to putting forward the client’s version of events.
(2) Hypotheses may be advanced which go beyond this version of events, always provided that other evidence has been called which supports such hypotheses
(3) duty of D counsel: in presenting the client’s case, and the duty of a trial judge to ensure that the defence case is accurately put before the jury even if this requires intervention in defence counsel’s speech
76
D closing speech - what should they not say?
(1) Defence counsel should not refer to the likely consequences of a conviction in terms of punishment since sentencing is no concern of the jury
77
Closing speech - what can D say about the defendant’s failure to give evidence?
- Defence counsel is obviously entitled to comment upon his or her own client’s failure to give evidence.
- Counsel is also, in a case where a co-accused runs a defence which conflicts with that of the accused he or she represents, entitled to comment upon the co-accused’s not having entered the witness-box (Wickham (1971)).
- The judge has no power to prevent or restrict such comment, but, if it seems to the judge to have been unfair, may comment upon it personally (Wickham).
78
Duties of Counsel in Relation to the Summing-up
(1) Prosecuting counsel is under a duty to attend carefully to the summing-up and draw any possible errors (whether of fact or law) to the judge’s attention at its close
79
defence counsel has traditionally been able to remain silent, if that was considered to be in the best interests of the client
However, this position has since been eroded. For example:
(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
(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
(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
80
The COA made it clear that the dismissal of an appeal would not be automatic where defence counsel had failed to correct an error.
81
Written Directions
IN ALL CASES =
the judge should provide the jury with:
a) a written list of questions (a route to verdict),
b) written legal directions and such other material as will assist them in their task,
for example, setting out the legal issues which must be proved in order to reach their verdict
82
Before providing to jury, judge should submit the written route to verdict to counsel:
1. Counsel for prosecution & defence are entitled to make suggestions/representations in advance of any such doc being handed to
the jury; this will often take place at the legal discussions stage.
2. Counsel can then base their closing speeches on the issues raised in the proposed written route to judgment
3. Failure by counsel to comment on such draft directions is not necessarily fatal to an appeal based on any misdirection, but such failure is likely to affect the weight accorded to the deficiency
83
Jury should be given the list at the start of the summing-up, so that the judge can take them through the directions one by one, as he deals with each point.
Judge can decline to provide such written directions to jury, even if requested. But there is strong argument in favour of giving written route to verdict
84
a summing up should be ‘custom-built to make the jury understand their task in relation to a particular case’
Which legal directions are necessary will therefore vary and what is set out here is a survey of the standard directions which may be required. CrimPD VI, para. 26K.17, provides a useful checklist of directions that could form part of part one of a split summing up.
85
There is guidance for legal directions judge should give;
but judge can be flexible, does not need to follow scripted texts for legal directions to give at summing-up.
Model directions issued by Judicial Studies Board are only to provide sample guidance, they should be tailored to individual case.
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Direction as to the Functions of Judge and Jury
At the beginning of the summing up, the judge must direct the jury as to their respective roles and hence the different status of the two parts of the summing-up:
1) that part relating to law, in relation to which the judge is the final arbiter,
and
2) that relating to fact (summarising the evidence before them).
(Therefore, if, in the course of the summing up, the judge expresses a certain view as to the facts or as to the significance of a piece of evidence but the jury disagree; or mention of certain evidence which they consider important is omitted; or, conversely, something which they consider unimportant is stressed — in all such eventualities, it is the jury’s view which matters. )
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Burden & Standard of Proof
Every summing-up must contain at least one such direction.
A conviction is liable to be quashed if: the judge fails properly to direct the jury as to the Prosecution:
a. having the Burden of Proof; AND
b. having to Discharge that Burden Beyond Reasonable Doubt/the jury are ‘SURE’.
88
Separate Consideration of Counts and Defendants
If indictment contains more than 1 count
Jury should be directed to:
consider EACH COUNT SEPERATELY.
(For the same reason, the judge should also summarise the evidence on a count-by-count rather than a witness-by-witness basis)
In Adams, COA emphasised:
-that where an accused faced multiple counts
- the jury should be given clear direction as to whether, and if so in what way, evidence relating to one count was admissible in relation to consideration of any other.
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If indictment contains more than 1 D
+
the evidence against each differs materially
=
Judge should direct the jury to consider the case against each D individually.
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The Ingredients of the Offence
Judge must take the jury through the ingredients of each offence faced by D (each count), explaining clearly what the prosecution must prove
conflicting case law:
should direct the jury as to the ingredientsof the offence; VS should tailor such directions to the actual issues in the particular case.
a. Some says: judge should not simply spell out the issue in the case, but must direct the jury as to the elements of the offence charged.
b. Other approach: function of summing-up is not give the jury a dissertation on some aspect of the criminal law, but to isolate the issues for the jury’s consideration.
Where an ingredient of an offence is a question of factual interpretation, it is incumbent on the judge to remind the jury of those facts relied on by the defence as arguing against that ingredient being established
91
Failure to Answer Questions or Give Evidence
the jury are entitled to draw such inferences as they deem appropriate from the failure of the defendant to answer questions in interview (s. 34) or failure to give evidence (s. 35).
Judge is required to identify significant facts relied on and remindthe jury of any reason for silence advanced by the accused
(although is not expected to identify every fact in relation to which an inference may be drawn).
92
Failure to Answer Questions or Give Evidence
Where such inferences should not be drawn
=
the jury should be specifically directed to that effect
92
Limitations to requirement for a s34 direction (Failure of D to answer questions in Answer):
(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
(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
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There is an obligation on the trial judge to give the legal directions which apply to the defence advanced on behalf of the accused. Common defences and partial defences to which this applies include:
(a) self-defence;
(b) alibi — where an alibi is demonstrated or accepted to be false, a Lucas-type direction is appropriate;
(c) loss of control ; and
(d) diminished responsibility
93
Where an accused is unrepresented =
judge should also remind the jury to bear in mind the difficulties for the accused of representing him or herself at trial
94
The judge should remind them of and comment upon the evidence.
It is clear that a summary of the evidence is necessary in almost all cases. For example:
(a) In Brower [1995], it was made clear that in the majority of cases, it was necessary for the judge to sum up on the facts in order to assist the jury and ensure a fair trial. It was incumbent on the judge to define the issues and remind the jury of the evidence they had heard, albeit very recently.
(b) In Amado-Taylor [2000], it was held to be a procedural irregularity for a judge to sum up without a review of the facts. There were exceptions where this was not required, such as where a case was short and simple. But the closing speeches of counsel were no substitute for a judicial and impartial view of the facts from the trial judge, whose duty it was to focus the attention of the jury upon the issues which he identified.
(c) In Reynolds [2019], the Court of Appeal stressed that, since the jury’s verdict was not reasoned, the summing-up provides the record of the facts on which that verdict was founded and, in a long case, was needed to provide a ‘rational consideration of the evidence
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The Analysis Involved
In very simple cases, it might suffice for the judge to sum up the facts by =
reading out an abbreviated version of his note of the evidence.
96
The Analysis Involved
If the trial has been at all complex, judges should =
judges are exhorted to assist the jury by analysing the evidence and relating it to the various issues raised
- Merely reading a note of the evidence in such cases has been criticised.
Summing up should include a:
- succinct but accurate summary of the issues of fact;
- a correct but concise summary of the evidence &
- arguments on both sides; and a correct statement of the inferences which jury can draw.
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Summarising the Defence case:
Judge must identify the defence (should give main arguments being advanced by the accused):
(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.
{it is desirable for the judge to give an overview of the defence case}
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Summarising the Defence case:
What should the Judge say when a defendant has said little or nothing in interview and has elected not to give or call evidence?
(1) the limit of the judge’s duty is simply to remind the jury of
a) ‘such assistance, if any, as (defence) counsel had been able to extract from the Crown’s witnesses in cross-examination’ and
b) any ‘significant points made in defence counsel’s speech’.
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Judicious Judicial Comment
a) It is the judge’s duty to state matters ‘clearly, impartially and logically’, and not to indulge in inappropriate sarcasm or extravagant comment
b) however distasteful the offence/repulsive the defendant, however laughable his defence = judge must present case fairly.
c) However, provided the judge emphasises that the jury are entitled to ignore his opinions, judge may indicate his own views
on the evidence.
d) Robust comments to the detriment of the defence case are permitted, IF the judge is not so critical as to effectively withdraw
the issue of guilt or innocence from the jury
99
Appointment of a Foreman
At end of summing-up, the judge will tell the jury to appoint a foreman to deliver the jury’s verdict in due course.
100
To anticipate jury questions about the possibility of a majority verdict, the judge should direct the jury, at this stage, to try to reach a unanimous verdict
If the time should come when the judge can accept a verdict which is not the verdict of them all, a further direction will be given
The judge should not, however, indicate the precise period which must elapse before a majority verdict becomes a possibility
If this is done, it will not necessarily be improper, e.g., where the effect is to alleviate anxiety or uncertainty which the jury may be feeling
101
Questions from the Jury
Jury entitled to ask questions of the judge during their retirement, by giving a note to the jury bailiff who will pass it on to judge:
* Such notes must be dated and timed
* The object the procedure =
a. to remove any suspicion of private or secret communication between the court and jury
b. to enable judge to assist he jury properly on any matter of law/fact which is troubling them.
102
Judge who receive a note from a Jury:
1) In almost every other case, judge should state in open court the nature & content of the note he has received; and, if he considers helpful, may seek assistance/representations of counsel. Such assistance normally sought before jury is asked to return to court; then, ask jury to return to court and answer their question/request.
2) If the note concerns details of voting figures (or other information which the jury need not/should not have imparted) = the commination should be dealt with in the normal way, but the judge should not reveal to counsel/open court the information which the jury should not have revealed (eg about
voting figures).
3) If the note raises something unconnected with the trial (eg a request that some message be sent to a relative of a juror) =can simply be dealt with without any reference to counsel and without bringing jury back to court.
103
MAJORITY VERDICTS
At common law, the verdict of a jury had to be unanimous. This was qualified by what is now the Juries Act 1974, s. 17
104
A “majority direction” =
the direction informing the jury that the time has come when a majority verdict is acceptable.
105
S17 Juries Act 1974 (JA): Permits a majority verdict to be given.
Time limit before majority direction can be given: after jury have deliberated for such period as court considerers reasonable (having regard to nature & complexity of the case) = in any event, at least 2 hours
Any time during which jury return to court to ask a question/receive communication from the judge should be included when computing the 2 hours.
- in practice, minimum is 2 hours 10 minutes, as required in Crim PD VI Trial 26Q = to take account of any time not spent deliberating, eg getting to the jury room and electing a foreman.
106
S17(4) JA, a majority verdict should not be accepted UNLESS:
- it appears to court that the jury have had such period of time for deliberation as the court thinks reasonablehaving regard to the nature and complexity of the case.
o So what is ‘reasonable’ will be different
o In long and complex cases, involving multiple Ds, jury could be out for many days before unreasonable to give a majority direction.
107
Minimum Number for Acceptable Majority
the minimum majorities permissible are 11–1 or 10–2
A jury reduced to nine must be unanimous
108
If (and only if ) the verdict is guilty =
the foreman of the jury must state in open court the number of jurors who respectively agreed to and dissented from the verdict
109
If jury convict after a Majority Direction, the court clerk will ask whether the verdict is unanimous or by majority.
If answer is verdict is by majority =
1. clerk will ask how many agreed and how many dissented.
2. the foreman of the jury must state in open court the number of jurors who respectively agreed to and dissented from the verdict
110
Failure to state the size of majority =
will result in any purported conviction being quashed. Stating the size is a precondition for accepting the verdict
111
What if jury acquit after majority direction?
clerk will not enquire about numbers
112
It is sometimes open to a jury to find the accused not guilty of the offence alleged in a count but guilty of some other alternative offence. This is commonly referred to as a verdict of guilty of a lesser offence.
(1) At common law, a jury could find an accused guilty of a lesser offence if the definition of the greater offence charged necessarily included the definition of the lesser.
(2) the enactment of a number of statutory provisions has considerably broadened the situations in which alternative verdicts are now permitted.
Although the decision of the House of Lords in Saunders [1988] demonstrates that there is still a residual role for the common law to play, this discussion of alternative verdicts proceeds on the basis that the law is now to be found in statute
113
The general provision on the availability of alternative verdicts is contained in the CLA 1967, s. 6(3), which provides as follows:
[CASE LAW]
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.
114
There are thus two principal situations covered by alternative verdict:
1. where the offence charged expressly includes an allegation of another indictable offence;
2. where it impliedly includes such an allegation.
115
Judge’s Judgement in Directing Jury as to Alternative Offences
1. The judge in summing up is not obliged to direct the jury about the option of finding the accused guilty of an alternative offence, even if that option is available to them as a matter of law.
2. If, however, the possibility that the accused is guilty only of a lesser offence has been obviously raised by the evidence, the judge should, in the interests of justice, leave the alternative to the jury.
3. This is the case even if neither prosecution nor defence counsel wishes the alternative offence to be left to the jury
4. It is important for the court to leave an alternative which does not require proof of specific intent where such intent was required for the charge on the indictment
116
Verdict
The jury’s verdict is delivered in open court, in the presence of the accused
What the jury can do:
1. The invariable practice is for the person the jury have selected to be their foreman to state in response to questions from the clerk of court whether they find the accused guilty or not guilty.
2. The jury are entitled to return a partial verdict in the sense of finding an accused guilty on one count but not on others, or finding one accused guilty but another not
3. They are also entitled to find an accused guilty in respect of some only of the allegations set out in the particulars of a count, as when a count for theft specifies several items as the subject-matter of the charge and the jury are satisfied that the accused stole some of them but are left in doubt as to others
117
Jury Unable to Agree Upon a Verdict (Hung Jury)
If the jury cannot agree on a verdict, the judge discharges them from giving a verdict
As always when the jury are discharged, the accused is not acquitted but may be retried by a different jury
118
Hung Jury; who decides the re-trial?
Whether to ask for a retrial is in the discretion of the prosecution
- In the absence of exceptional reasons to the contrary, it is the practice to have a retrial following failure by one jury to agree.
- If a second jury also fail to agree, the prosecution would not usually seek a third trial but instead offer no evidence.
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This convention was examined in Henworth [2001], and it was stated that it should not be elevated into a proposition of law. In some cases, a further trial might be proper, e.g. if a jury had been tampered with, or some cogent piece of evidence for the Crown had since been discovered. 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.
