Unit 14 Trial in the Crown Court

Question 1

Must the accused be present for trial?

Answer 1

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.

Question 2

In what exceptional circumstances may the accused’s presence at trial be dispensed with? (4)

Answer 2

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.

Question 3

What happens if the accused is misbehaving in the dock making it impracticable for a hearing to continue?

Answer 3

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

Question 4

What is the court’s discretion if an accused is voluntarily absent?

Answer 4

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.

Question 5

What happens if an accused becomes ill and cannot attend trial?

Answer 5

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.

Question 6

What if the accused falls ill during the trial?

Answer 6

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.

Question 7

What must the defendant be told with regards to their right to give evidence, following the prosecution’s case?

Answer 7

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?

Question 8

Can unrepresented defendants cross-examine all witnesses?

Answer 8

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.

Question 9

What happens if a case is believed to be an abuse of process by the prosecution?

Answer 9

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. 

Question 10

What is the meaning of “abuse of process”?

Answer 10

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’. 

Question 11

What are the two main categories of abuse of process?

Answer 11

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.

Question 12

What is the purpose of the prosecution opening?

Answer 12

‘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.

Question 13

Can the prosecution use emotive language in their opening speech?

Answer 13

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.

Question 14

Should the prosecution deal with points of law in the opening speech?

Answer 14

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

Question 15

Do the prosecution have to call all the witnesses listed on the back of the indictment?

Answer 15

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.

Question 16

What is the standard procedure if the defence wishes to object to the prosecution evidence?

Answer 16

(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.

Question 17

What are the three options for editing prosecution evidence?

Answer 17

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)’.

Question 18

What is the proper approach to a submission of no case to answer?

Answer 18

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.

Question 19

When does the Defence have a right to an opening speech?

Answer 19

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. If, 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, save where, the judge invites defence counsel concisely to identify what is in issue, in order to assist the jury, following the prosecution opening.

Question 20

What can a defence opening speech contain?

Answer 20

In an opening speech, defence counsel may both outline the anticipated defence case and 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.

Question 21

Are the defence obliged to call evidence?

Answer 21

Because the burden of proof is on the prosecution, the defence are never obliged to call evidence, and more particularly the defence are not obliged to call the accused, since the accused is a competent but not compellable witness.

Question 22

What order are defence witnesses called in?

Answer 22

The accused first, as other witnesses are kept outside of court until the testify, whereas the accused is present throughout.
The court has a discretion to depart from this usual rule, for example to allow a witness whose evidence was not substantially disputed to testify out of the normal order if circumstances made that convenient.
In contrast, 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 offender.
Character witnesses must always be called after the accused unless there are other witnesses as to the facts

Question 23

What is the procedure if the accused decides not to testify?

Answer 23

The decision whether to testify or not is for the accused.
The Court of Appeal has stated that, when the accused decides not to go into the witness box, it should be the invariable practice of counsel to 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.

Question 24

At what point does discussion on how relevant law should be dealt with happen?

Answer 24

Prior to summing-up, or the first part of the summing-up if it is split, the 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.

Question 25

What is counsel’s duty to the court during trial?

Answer 25

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. Further, any procedural irregularity must be brought to the attention of the court during the hearing and not reserved to be raised on appeal (e.g., where a juror is seen speaking to a witness).

Question 26

Who makes their closing speech first?

Answer 26

Prosecution, then defence.

Question 27

What are the limitations as to content of the closing speeches?

Answer 27

Neither counsel in a closing speech should allude to alleged facts or other matters which have not been the subject of evidence Neither should the jury be invited to add a recommendation of mercy to their verdict should it be one of guilty. Advocates are also prevented from making personal criticism of their opponents in closing addresses; this is a practice that ‘judges must ensure ceases immediately and not be repeated in any case’.

Question 28

What two parts should be included in a judge’s summing up?

Answer 28

The trial judge’s summing-up conventionally falls into two parts, namely, a direction on the law and a summary of the evidence.

Question 29

What are the duties of counsel in relation to summing up?

Answer 29

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.

Question 30

If the defence counsel fails to correct an error in summing up, does this invalidate any right of appeal?

Answer 30

No, in Holden [1991], the Court of Appeal made it clear that the dismissal of an appeal would not be automatic where defence counsel had failed to correct an error.

Question 31

What are the rules with regard to inferences that the jury can draw?

Answer 31

Pursuant to the CJPO 1994, ss. 34 and 35, 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).
A number of limitations to the requirement for a s. 34 direction have been recognised:
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.
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.
Where such inferences should not be drawn, the jury should be specifically directed to that effect.

Question 32

What directions must the judge make with regard to defences available to the accused in summing up?

Answer 32

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.
Where an accused is unrepresented, the judge should also remind the jury to bear in mind the difficulties for the accused of representing him or herself at trial

Question 33

Should the judge address the facts in summing up?

Answer 33

Yes. In addition to directing the jury on the law, 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.
In very simple cases, it might suffice for the judge to sum up the facts by reading out an abbreviated version of his or her note of the evidence. However, if the trial has been at all complex, judges are exhorted to assist the jury by analysing the evidence and relating it to the various issues raised.

Question 34

Does the judge need to summarise the defence case in his own summing up?

Answer 34

It is part the judge’s duty to identify the defence. The way in which this is done will depend on the circumstances of the case, however the following propositions apply:
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.
Moreover, it is desirable for the judge to give an overview of the defence case, in addition to weaving the defence case into the chronology of the prosecution evidence

Question 35

What is the purpose of the retirement of the jury?

Answer 35

‘once the jury retires to consider their verdict it should not separate, one from another and from the jury bailiffs. They must remain in the charge of the court through the bailiffs throughout.’ The purpose of this is to ensure that nobody interferes with the jury while they are considering their verdict.

Question 36

Are the jury permitted to ask questions of the judge during their summing up?

Answer 36

Yes. Written questions, timed and dated and passed to the Bailiff to submit to the judge.

Question 37

What is the object of the jury being able to ask questions during summing up?

Answer 37

a. to remove any suspicion of private or secret communication between the court and jury, and
b. to enable the judge to assist the jury properly on any matter of law or fact which appears to be troubling them

Question 38

What guidance is given to judge’s in dealing with written questions received from the jury?

Answer 38

1. First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel and without bringing the jury back to court.
2. Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful so to do, seek the assistance of counsel. This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication.
3. Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures… then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed.

Question 39

Does a jury vote have to be unanimous?

Answer 39

Yes. At common law, the verdict of a jury had to be unanimous. This was qualified by what is now the Juries Act 1974. By s. 17(1) some majority verdicts are permissible, subject to certain conditions being satisfied.

• Time limit: jury must’ve been considering their case for such period as the court sees reasonable given the complexity of the case. Not less than two hours
• The minimum majorities permissible are 11–1 or 10–2, or (in the case of a jury from which one or more of the original jurors have been discharged) 10–1 or 9–1. A jury reduced to nine must be unanimous.

Question 40

What is the minimum time limit a jury must discuss a case for (for majority verdict to be accepted, in a simple case)?

Answer 40

A period of not less than two hours. Any period during which the jury return to court to ask a question of or receive a communication from the judge should be included when computing the two hours.
Time spent not actually deliberating, for example in making their way to the jury room and electing a foreman, is catered for by: that the jury should be allowed at least two hours and ten minutes for deliberation before the majority direction is given.

Question 41

What is the minimum majority permissible?

Answer 41

The minimum majorities permissible are 11–1 or 10–2, or (in the case of a jury from which one or more of the original jurors have been discharged) 10–1 or 9–1. A jury reduced to nine must be unanimous.

Question 42

Must the majority and minority of the jury be stated in open court?

Answer 42

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. Since stating the size of a majority for conviction is expressed as a precondition of the court accepting the verdict, failure to comply will result in any purported conviction being quashed. However, it is sufficient that the foreman states the number in the majority leaving the size of the minority to be inferred by the simplest of arithmetic.

Question 43

What is the general rule for a jury finding a defendant guilty of a lesser offence?

Answer 43

The general provision on the availability of alternative verdicts is:
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.
There are thus two principal situations covered. One is where the offence charged expressly includes an allegation of another indictable offence; the other is where it impliedly includes such an allegation.

Question 44

Must the judge advise the jury on the option of finding the accused guilty of a lesser offence in summing up?

Answer 44

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. 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. This is the case even if neither prosecution nor defence counsel wishes the alternative offence to be left to the jury.

Question 45

What is the procedure if the jury fail to agree on a verdict?

Answer 45

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. 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.

Question 46

If two juries fail to reach a verdict, where might it be an abuse of process by the prosecution to seek a third trial?

Answer 46

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.
(third trial is still available and may be appropriate, e.g. if jury tampering etc.)