Unit 14 Trial in the Crown Court Flashcards
Must the accused be present for trial?
Yes. 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.
By extension, this also means that the judge ought not to deal with matters which constitute part of the trial proceedings in the absence of counsel for the defence.
In what exceptional circumstances may the accused’s presence at trial be dispensed with? (4)
The situations in which the court may be justified in proceeding without the accused are as follows.
a. as a result of the misbehaviour of the accused;
b. where his absence is voluntary;
c. when the accused is too ill to attend;
d. following the death of the accused.
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.
What happens if the accused is misbehaving in the dock making it impracticable for a hearing to continue?
In practice, the judge would warn the accused before taking the extreme step of barring from court, and 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. Unruly behaviour may also be deterred by the threat of holding the accused to be guilty of a contempt in the face of the court. An accused should not be handcuffed in the dock unless there is a real risk of violence or escape and there is no alternative to visible restraint
What is the court’s discretion if an accused is voluntarily absent?
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 complete the trial in the accused’s absence. Should the accused be convicted, sentence may also be passed in the accused’s absence.
What happens if an accused becomes ill and cannot attend trial?
If the accused’s absence from court is for reasons beyond the accused’s control, the trial may not continue in the absence of the accused unless the accused consents, or if the case can be fully presented, including the accused’s own written evidence, without unfairness.
What if the accused falls ill during the trial?
If the accused become ill during the course of the trial, the judge must either adjourn the case until the accused recovers or 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 accused’s absence, and must always have regard to fairness.
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.
What must the defendant be told with regards to their right to give evidence, following the prosecution’s case?
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?
Can unrepresented defendants cross-examine all witnesses?
No. Unrepresented defendants are prohibited from cross-examining complainants and child witnesses in trials for certain offences. The courts also have the power to prohibit cross-examination of witnesses by unrepresented defendants if satisfied that the circumstances of the witness and the case merit it, and that a prohibition would not be contrary to the interests of justice. There are provisions for the appointment of representatives to conduct cross-examinations on behalf of unrepresented defendants.
What happens if a case is believed to be an abuse of process by the prosecution?
Where proceedings would amount to an abuse of process, the court may order that those proceedings be stayed. The usual effect of a stay is that the case against the accused is stopped permanently. Given the nature of the grounds upon which a case may properly be regarded as an abuse of process, it would only be in exceptional cases that there would be any basis for lifting a stay that has been imposed.
What is the meaning of “abuse of process”?
In Beckford [1996]: the ‘constitutional principle which underlies the jurisdiction to stay proceedings is that the courts have the power and the duty to protect the law by protecting its own purposes and functions’. The courts have ‘an inescapable duty to secure fair treatment for those who are brought before them’.
What are the two main categories of abuse of process?
a. cases where the court concludes that the accused cannot receive a fair trial;
b. cases where the court concludes that it would be unfair for the accused to be tried.
What is the purpose of the prosecution opening?
‘the purpose of the prosecution opening 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’.
CrimPR 25.9(2)(b) invites the prosecution to identify the issues in the case as well as providing a concise outline of the evidence which the prosecution propose to call. In the same way, pursuant to CrimPR 25.9(2)(c), the judge may invite defence counsel concisely to identify what is in issue, in order to assist the jury, following the prosecution opening.
Can the prosecution use emotive language in their opening speech?
No. In addressing the jury, prosecuting counsel’s role is that of a minister of justice who ought not to strive over-zealously for a conviction. Counsel should therefore avoid using emotive language liable to prejudice the jury against the accused.
Should the prosecution deal with points of law in the opening speech?
Not usually. 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.
If they DO deal with a matter of law, it is usual to remind the jury that matters of law are ultimately for the judge, and that counsel’s remarks should therefore be disregarded insofar as they differ from the judge’s directions. Such directions can be given at the beginning of a trial, or indeed at any other appropriate stage
Do the prosecution have to call all the witnesses listed on the back of the indictment?
Although counsel has a discretion not to call a witness on the back of the indictment, as a matter of practice the statements of all witnesses whose statements have been served should be called or read and counsel must exercise the discretion in a proper manner.
What is the standard procedure if the defence wishes to object to the prosecution evidence?
(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.
(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.
(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.
What are the three options for editing prosecution evidence?
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.
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.
As with (c) 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)’.
What is the proper approach to a submission of no case to answer?
The following propositions are advanced as representing the position that has now been reached on determining submissions of no case to answer:
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 (especially in identification evidence cases).
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.