Unit 14 - Jury trial procedure Flashcards
Presence of the accused at trial
General principle
accused should be present throughout the trial
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.
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
The accused must be present at the commencement of a trial on indictment in order to plead
- 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
CrimPR 25.2(1)(b) provides that the court must not proceed if the accused is absent, unless
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.
The judge ought not to deal with matters which constitute part of the trial proceedings in the absence of counsel for the defence.
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.
Exceptions to the General principle
an accused should be present throughout the trial
(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.
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:
(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.
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.
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.
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:
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.
If the judge decides that a trial should take place or continue in the absence of an unrepresented accused, the judge must ensure
(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
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:
(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’.
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:
(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
Misbehaviour of the Accused
Is accused is misbehaving, can he return at a later stage?
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
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
Should an accused should be handcuffed in the dock?
NO
unless there is a real risk of violence or escape and there is no alternative to visible restraint
if the accused refuses to be brought into court from the cells, what should the judge do?
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.
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:
(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
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?
Judge has discretion to proceed in his absense
Who decides whether to proceed in the voluntary absence of the accused?
this is for the judge to decide
Whether to proceed in the absence of the accused? is a matter for the judge’s discretion, and judge should consider:
a. whether the accused had deliberately absented himself;
b. whether there were reasonable steps that could be taken to secure his attendance.
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
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.
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.
(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
If the accused’s absence from court is for reasons beyond the accused’s control.. what can the judge do:
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
If the accused’s absence from court is for reasons beyond the accused’s control… when can the judge proceed
i. he consents; OR
ii. if his case can be fully presented without
unfairness (including the accused’s own written evidence).
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
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).
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.
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.
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.
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
Failure to give the accused this information may lead …
to any conviction being quashed
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”
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
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).
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.
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.
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 ).
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)
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’.
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
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.
Where prosecutor is aware that certain evidence will be challenged by D =
cannot refer to that evidence during opening speech.
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.
So, after Opening Speeches, Prosecuting counsel will:
a. Call Witnesses and
b. Read out any Written Statement, Admissible under exceptions to rule against hearsay
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).
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.
s. 9 statements are admissible only if =
all the parties agree
Even if a statement is admissible under s. 9 =
the court may require that the maker attend to give evidence,
e.g., where the defence dispute the contents of the statement but failed to object through an oversight