UNIT 5: HEARINGS

Question 1

Case management timing directions

Answer 1

• Case management directions are standard, but court can vary them if necessary.
  o The directions - allow parties 8 weeks to prepare the case for trial (or 14 weeks if expert evidence is required)
  o Standard form to record directions = Magistrates’ Court Trial Preparation Form

Question 2

Securing attendance of a witness?

Answer 2

• Witnesses who are prepared to give a written statement are often reluctant to attend court to give oral evidence at trial, and a prudent solicitor will secure their attendance by obtaining a witness summons from the magistrates’ court.

Question 3

Procedure for securing a witness

Answer 3

o Court will issue witness summons if satisfied that the witness can give material evidence in the proceedings and it is in the interests of justice for a summons to be issued (s97 Mags Court Act)
o D’s solicitor will usually ask a potential defence witness to confirm in writing that they will attend court
 If a negative/no response is received, the solicitor should then request the court to issue a witness summons

Question 4

What must the defence do to secure a witness

Answer 4

D must serve CPS a notice setting out the names, addresses and dates of birth of any witnesses they intend to call to give evidence

Applies in relation to all cases where D pleads not guilty in the mags court or any case sent to the CC for trial

Question 5

Time limit for notice + Failure to comply?

Answer 5

• Time limit - must comply with s6C in 28 days from the date on which the prosecutor complies, or purports to comply, with s3 of the CPIA
• Failure to comply - court result in inference provisions of s11 CPIA being applicable

Question 6

Does the defendant have to serve potential witness statements they intend to rely on?

Answer 6

NO

• D generally does not have to serve on the CPS copies of the statements taken from the witness whom they intend to call to give evidence at trial
  o BUT reports from any expert witnesses whom D wishes to call must be served on the CPS

Question 7

Expert report procedure?

Answer 7

• When is it required? - in respect of any technical matter which is outside the competence of the court **
• When should it be obtained? - as soon as possible
  o Exception - if D’s case is funded by a representation order, D’s solicitor should obtain prior authority from the LLA to instruct the expert.

Question 8

Disclosure obligations for calling an expert witness?

Answer 8

o If D’s solicitor wants to call an expert to give evidence at trial, they must serve a copy of the expert’s report on the CPS before the trial
o Expert witness unlikely to require witness summons - D’s solicitor should nevertheless check the expert’s availability to attend trial so that the trial can be fixed on a date when the expert is available to attend court

Question 9

Written statement requirements?

Answer 9

a written statement from a witness will be admissible at trial (as opposed to the witness having to attend court) provided that:
1. it is signed and dated
2. it contains the following declaration: ”This statement (consisting of [1] page signed by me) is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.”
3. a copy has been served before the hearing on the other parties in the case; and
4. none of the other parties has objected within 7 days
* Statement can only contain matters which would have been admissible if witnesses had given oral evidence in court

Question 10

When can a s9 witness statement be used?

Answer 10

• s9 statements should only be used for evidence which is not in dispute

Question 11

What does a party who opposes a s9 witness statement have to do?

Answer 11

o If the party receiving a statement which is served in this form wants to challenge the admissibility of anything said in it, or to cross-examine the maker of the statement, they should object in writing within 7 days

Question 12

Rule for documentary evidence?

Answer 12

• Will often take form of plans or photos of the place where the alleged crime occurred
• Should be verified by witness statement from the person who prepared the plan or took the photos

Question 13

What happens with evidence obtained relied upon by prosecution?

Answer 13

• In the case of summary-only or either-way offences, any evidence obtained which will subsequently be relied upon as part of the prosecution case at trial will be supplied to the defendant’s solicitor as part of the initial details of the prosecution case (IDPC).

Question 14

Remaining material other that evidence relied upon for trial?

Answer 14

• The remaining material which CPS has but doesn’t propose to rely on at trial is referred to as ‘unused material’
  o e.g., a statement from a person who the police initially think may help the prosecution case, but who in fact does not say anything that does so

Question 15

When must the D be sent to the Crown Court?

Answer 15

• Where an adult appears before a mags court charged with an offence triable only on indictment, the court must send them to CC for trial (s51(1) CDA 1998):
  
  • the either-way or summary offence appears to the court to be related to the offence triable only on indictment; and
  • in the case of a summary-only offence, it is punishable with imprisonment, or involved obligatory or discretionary disqualification from driving (s51(11) CDA)

Question 16

Purpose of sending hearing in mags court?

Answer 16

• Purpose of hearing at mag’s court - to determine whether an offence triable only on indictment is charged and whether there are related offences which should also be sent to the CC

Question 17

What happens when mags decide that the D is to be charged on indictment only trial

Answer 17

, they will set a date for the PTPH at the Crown Court – or a date for a preliminary hearing in the Crown Court if such a hearing is necessary (see below) – and will remand the defendant either on bail or in custody to appear at the Crown Court

Question 18

Notice to D from mags?

Answer 18

• The magistrates will give the defendant a notice specifying the offence(s) for which they have been sent for trial and the Crown Court at which they are to be tried.
  o A copy of the notice will also be sent to the relevant Crown Court (CDA 1998, s 51D).

Question 19

D charged with either way offence?

Answer 19

• A D charged with an either-way offence who pleads not guilty at plea before venue will be tried in the CC if either
  o the magistrates decline jurisdiction or
  o D elects CC trial at the allocation hearing
• D is sent to the CC, as for offences triable only on indictment (s51(1) CDA 1998)

Question 20

Linked summary offences?

Answer 20

• If the linked summary offence listed below, D may be tried for these offences at the CC if the offence is founded on the same facts as the either way offence
  o common assault
  o taking a conveyance without consent
  o driving whilst disqualified, or
  o criminal damage

Question 21

Multiple either-way offences?

Answer 21

IF mags send D for trial for one or more either-way offences, they may also send D for trial in relation to summary offences if it:
1. is punishable with imprisonment or disqualification from driving; and
2. appears to the court to be related to the either-way offence (CDA 1998, s 51)

Question 22

• If D, on conviction for the either-way offence, pleads GUILTY to the summary-only offence, where will he be sent?

Answer 22

CC can sentence for the summary offence, although sentencing powers are limited to those of the magistrates

Question 23

• If D is ACQUITTED of the either-way offence OR pleads NOT guilty to the summary-only offence, where will he be sent?

Answer 23

that offence must be remitted back to the magistrates’ for trial

Question 24

When is a preliminary hearing needed?

Answer 24

• CrimPR contain standard case management directions that MAGS will issue when a case is sent for trial to CC
• BUT sometimes an indictable offence may require a preliminary hearing to take place at CC, and any directions necessary will be given by the judge at this hearing

Question 25

When will a preliminary hearing take place for an offence triable only on indictment?

Answer 25

1. there are case management issues which the Crown Court needs to resolve;
2. the trial is likely to exceed four weeks;
3. it is desirable to set an early trial date;
4. the defendant is under 18 years of age; or
5. there is likely to be a guilty plea and the defendant could be sentenced at the preliminary hearing

Question 26

When must the preliminary hearing be held?

Answer 26

must take place within 10 business days of when MC sends the case to CC

Question 27

What is the PTPH?

Answer 27

• For cases sent to CC where preliminary hearing is not required, the first hearing will be the PTPH
• Purpose: enable D to enter plea and if NG plea to issue further case management directions

Question 28

When must the PTPH be held?

Answer 28

• If no preliminary hearing, PTPH should take place within 20 business days after sending

Question 29

What is arraignment?

Answer 29

• At the start of PTPH, D will be arraigned = the count(s) on the indictment will be put to D who will make their plea

Question 30

What if D pleads guilty to some counts but not others?

Answer 30

, the jury at D’s trial will not be told about the counts to which a guilty plea has already been entered (ie do not prejudice D)

Question 31

What happens if D is charged with several counts and agrees with CPS to plead guilty to certain counts if CPS does not proceed with other counts?

Answer 31

o CPS will offer no evidence in respect of these other accounts and the judge will order that a verdict of not guilty will be entered

Question 32

When will the CPS offer no evidence at the arraignment?

Answer 32

o CPS also offers no evidence at the arraignment if, since the case was sent for trial, further evidence has become available which leads it to conclude that there is no longer a reasonable prospect of securing a conviction
 the judge will again order that a not guilty verdict be entered, and the defendant will be formally discharged

Question 33

When will the CPS ask that a count ‘lie on the court file’

Question 34

PTPH - what happens with a guilty plea?

Answer 34

• Judge will either sentence immediately or, if necessary, adjourn sentence for the preparation of pre-sentence reports, eg medical reports or reports from the Probation Service

Question 35

When is a Newton hearing held?

Answer 35

• Judge may also need to adjourn if D pleads guilty but disputes the specific factual allegations made by the prosecution witnesses
  o Here, a separate hearing (’Newton hearing’) will be necessary to determine the factual basis for the sentence

Question 36

What happens to D if case is adjourned?

Answer 36

• If adjourned, D will either be released on bail or remanded in custody pending either sentencing hearing or Newton hearing

Question 37

When will the judge give advance indication of a likely a sentence at the PTPH?

Answer 37

• At the PTPH, judge can give D an advance indication of the likely sentence they would receive if they were to enter a guilty plea at that stage
• D MUST ASK SPECIFICALLY for such an indication
• If judge gives an indication and D enters a guilty plea, the indication will be BINDING
• Practice: ‘Goodyear’ indications are common

Question 38

What happens if D pleads not guilty at PTPH?

Answer 38

judge will consider if further directions are necessary to prepare the case for trial (over and above MC directions already given)

Question 39

What will the judge consider if further directions are necessary?

Answer 39

• To decide if directions are needed, prosecution and defence advocates must present at the PTPH to be in a position to supply the following information:
  1. a summary of the issues in the case;
  2. details of the number of witnesses who will be giving oral evidence at trial and the estimated length of the trial;
  3. whether the transcript(s) of the defendant’s police station interview(s) require(s) editing;
  4. whether a defence statement has been served and, if so, whether there is any issue as to the adequacy of the statement;
  5. whether the prosecution will be serving any additional evidence;
  6. whether there is any dispute as to the adequacy of disclosure of unused material by the prosecution;
  7. whether any expert evidence is to be called and, if so, whether any additional directions are needed in respect of this;
  8. whether any further directions are necessary concerning hearsay or bad character evidence;
  9. whether special measures are required for any witnesses;
  10. any facts which can be formally admitted;
  11. any points of law or issues concerning the admissibility of evidence which are likely to arise at trial;
  12. dates of availability to attend trial of the witnesses and the advocates

Question 40

What is a warned list?

Answer 40

• At PTPH, judge will give further case management directions that are necessary in light of the above information, and fix a date for trial or place the case in the ‘warned list’
• Warned list = list of cases awaiting trial that have not been given a date

Question 41

What is the procedure for warned list

Answer 41

o If case is placed on this list, CC will contact D’s solicitor to let them know that the case has been listed for trial shortly before the date when the trial is due to start

• At the end of the PTPH, D will either be released on bail or remanded in custody pending trial

Question 42

Change of plea?

Answer 42

• D who enters a not guilty plea may, at the discretion of the judge, change this to a guilty plea at any time before the jury return the verdict
  o typically where D pleaded not guilty in the hope for a submission of no case to succeed before D needed to give evidence, but it fails
• D may also change their plea during the trial if the judge makes a ruling on a point of law or admissibility of a piece of evidence which deprives D of a defence on which they wanted to rely

Question 43

Disclosure authority?

Answer 43

• Disclosure obligations contained in CPIA 1996
• Also a ‘Judicial Protocol on the Disclosure of Unused Material in Criminal Cases and Attorney-General’s Guidelines on Disclosure’ and a ‘National Disclosure Improvement Plan’ produced jointly by the police and the CPS
  o set out principles to be applied to disclosure and expectations of the court, its role in disclosure, particularly in relation to case management, and the consequences if there is a failure by the prosecution or defence to comply with their disclosure obligations

Question 44

Prosecution initial duty of disclosure?

Answer 44

• CPS must serve on D all the evidence on which it wishes to rely at trial to prove D’s guilt

Question 45

Unused material - test for disclosure?

Answer 45

o CPS must retain this material and, if D enters a not guilty plea, disclose it if it satisfies the test set out in s3 CPIA 1996:
this material must be disclosed if it ‘might reasonably be considered capable of undermining the case for the prosecution … or of assisting the case for the accused’. Examples of the types of material that require disclosure include.. even if CPS does not intend to rely on evidence from specific witness:
1. records of the first description of a suspect given to the police by a potential eyewitness if that description differs from that of the defendant;
2. any information provided by D which indicates an innocent explanation for the offence;
3. material casting doubt on the reliability of a witness (eg previous convictions);
4. material casting doubt on the reliability of a confession; and
5. any statements from witnesses which appear to support the defendant’s account

Question 46

Disclosure general rules

Answer 46

o Case management directions give time limits as to when the prosecution must make initial disclosure of unused material which meets the test
o CPS usually sends to the defendant’s solicitor a schedule of all the non-sensitive unused material in its possession, together with copies of any items on the schedule which satisfy the test in s 3
o Disclosure is ongoing, so CPS must apply this test to any further material it receives after making initial disclosure (s 7A CPIA 1996)
o CPS must consider the need to make further disclosure in light of any information received from the defence about the nature of the defence case

Question 47

What if defendant’s solicitor considers that the disclosure made by the CPS is incomplete?

Answer 47

, they will request disclosure of any ‘missing’ items when drafting the defence statement

Question 48

• If CPS refuse to supply to D’s solicitor items which they requested?

Answer 48

solicitor may apply to the court to request specific disclosure of such items under s 8(2) CPIA 1996
o Requirement: D provided a defence statement

Question 49

Can the prosecution withhold disclosure of unused material?

Answer 49

• CPS may have sensitive items which it does not want to disclose, EG:
  1. material relating to matters of national security or intelligence;
  2. material relating to the identity of police informants or undercover police officers;
  3. material revealing techniques and methods relied upon by the police (eg covert surveillance techniques used); and
  4. material relating to a child witness (such as material generated by a local authority social services department)
• If this material satisfies the test in s 3, CPS can withhold it IF it is protected by ‘public interest immunity’
  o This is a decision of the court
  o CPS must make an application to the court for a finding that it is not obliged to disclose the relevant material
  o The relevant procedural rules which must be followed when this application is made are set out in Part 15 CrimPR
  o This application will be made ex parte (without notice to the defence)
• It is common, when drafting a defence statement, to ask CPS if a schedule of sensitive materials has been prepared and, if so, whether the CPS has made any application to the court to withhold material

Question 50

Defence disclosure rules?

Answer 50

• In MC, if D pleads not guilty and decides to serve a defence statement (aka ‘Defence Case Statement’ / DCS) this should be made within 10 business days of CPS making initial disclosure of any unused material it has
  o DCS will be served on CPS and a copy sent to the court
• In CC, the time period is 20 business days from service of unused material

Question 51

Complex case/multiple Ds?

Answer 51

• If the case is complex and the time periods are insufficient, D may apply to the court for a longer period
• If the case involves 2 or more co-accused, s 5A CPIA 1966 allows the court to make an order that a copy of the DCS made by each defendant is to be served on the other defendants

Question 52

When is a defence statement compulsory?

Answer 52

• requirement only applies in D facing trial at CC, not MC
  o enforced by the court being able to draw an adverse inference against D if DCS is not provided

Question 53

When should D provide defence statement under mags court?

Answer 53

• In MC, D’s solicitor should consider serving a DCS only IF they think the CPS will, in light of the information provided in it, be in a position to disclose additional unused material that may assist the defence case
  o likely to arise only if the DCS contains additional details about the defence of which the CPS was previously unaware
  o extremely rare for a DCS in MC, given the disadvantage of giving away too much information

Question 54

Defence statement contents?

Answer 54

The defence statement must be a written statement which:
1. sets out the nature of the defence, including any particular defences on which the defendant intends to rely (for example, alibi or self-defence);
2. indicates the matters of fact on which the defendant takes issue with the prosecution and why they take such issue;
3. sets out particulars of the matters of fact on which the defendant intends to rely for the purposes of their defence;
4. indicates any points of law (including any point as to the admissibility of evidence) that the defendant wishes to take at trial, and any legal authority on which the defendant intends to rely for this purpose; and
5. in the case of an alibi defence, provides the name, address and date of birth of any alibi witness, or as many of these details as are known to the defendant

Question 55

Can the defence statement be udpated?

Answer 55

• Defence is also under a continuing duty to update the DCS if details given change before trial
  o eg if a witness comes forward who is able to support an alibi given by the defendant and whose existence was unknown at the time the initial defence statement was prepared

Question 56

Obtaining D’s approval for DS?

Answer 56

• Presumption of authority: s 6E CPIA 1996: DCS will be deemed to be given with the authority of D unless contrary is proved
• Practice (approval): D’s solicitor should ensure D sees and approves a copy before it is served
• Practice (sign): As the DCS is usually drafted by D’s solicitor, usual practice is for the solicitor to sign the original statement, and for D to sign a copy which will be kept on the solicitor’s file

Question 57

When may the court draw an adverse inference?

Answer 57

• In CC, court may draw adverse inference if there are any ‘faults’ in disclosure given by the defence, including:
  1. failing to provide a defence statement at all;
  2. late service of the defence statement;
  3. serving a defence statement that is incomplete;
  4. serving a defence statement which is not consistent with the defence put forward at trial; and
  5. failing to update a defence statement
• If any of the above faults occur, the court or [with leave] any other party (eg prosecution or co-accused) may make such comments as appear appropriate, and the court or jury may draw such inferences as appear proper when deciding whether D is guilty

Question 58

Further disclosure obligations on prosecution

Answer 58

The only ‘reward’ for a D who provides a DCS is that CPS must review its initial disclosure of unused material and determine if further unused material is in its possession which, in light of the matters contained in the DCS, might be deemed capable of undermining the CPS case or assisting D’s case

Question 59

Burden of proof for some statutory defences?

Answer 59

With some statutory defences (eg insanity) the burden of proof remains with the prosecution throughout a criminal trial
 hence the prosecution must present their case first and persuade the court beyond reasonable doubt of D’s guilt

Question 60

Evidential burdens?

Answer 60

operate on both the prosecution and D
 D: eg to raise defences of alibi or self-defence

Question 61

Opening speech?

Answer 61

• Begins with prosecution advocate giving an opening speech
• Does not contribute to evidence
• Outlines the factual details about the charge
• Explain to the magistrates
  o the relevant substantive law
  o what the prosecution need to prove to convict
  o that the prosecution has the burden of proving beyond a reasonable doubt that D is guilty, and that D is entitled to acquittal unless magistrates are sure of guilt
  o what the case consists of, ie which witnesses they intend to call + summarise the evidence to be given by these witnesses
• Prosecution must refer the magistrates to any points of law which they anticipate may arise during trial (eg Turnbull guidelines in a case of disputed evidence)

Question 62

Opening speech?

Answer 62

• Begins with prosecution advocate giving an opening speech
• Does not contribute to evidence
• Outlines the factual details about the charge
• Explain to the magistrates
  o the relevant substantive law
  o what the prosecution need to prove to convict
  o that the prosecution has the burden of proving beyond a reasonable doubt that D is guilty, and that D is entitled to acquittal unless magistrates are sure of guilt
  o what the case consists of, ie which witnesses they intend to call + summarise the evidence to be given by these witnesses

Question 63

When can the prosecution refer to the mags for point of law

Answer 63

• Prosecution must refer the magistrates to any points of law which they anticipate may arise during trial (eg Turnbull guidelines in a case of disputed evidence

Question 64

Next call witness?

Answer 64

• Next call witnesses
• Unless the witness is a child under the age of 14, witness evidence will be sworn evidence which means the witness will either take an oath or affirmation to tell the truth

Question 65

Customary first prosecution witness?

Answer 65

first prosecution witness is the complainant
* After the complainant, other witnesses (inc. expert witnesses) will be called
* Any prosecution witness who is not being called to give evidence will have their statements read out to the court by the prosecutor (eg under s 9 CJA 1967)

Question 66

• If D was interviewed at the police station?

Answer 66

either a summary or full transcript of the interview will be read out to the court, unless D’s solicitor objects to this
o If objects (eg because the summary neglects points which D wishes to support their defence), the audio recording will be played to the court

Question 67

Inadmissible evidence?

Answer 67

• During the presentation of their case, the prosecutor may seek to place evidence before the court which the defendant’s solicitor considers to be inadmissible
  o eg challenge to confession evidence (s 76 PACE) or s 78 exclusion challenge
• If challenged, magistrates will normally hold a hearing called a voir dire to determine the admissibility of the particular piece of evidence in dispute
  o involves witnesses giving evidence on matters relevant to the admissibility of the evidence
  o After the witnesses have given evidence, the prosecutor and the defendant’s solicitor will make legal submissions as to the admissibility of the disputed evidence

Question 68

Alternative to voir dire?

Answer 68

evidence may be heard by magistrates in the trial itself and then consider admissibility either when D’s solicitor makes a submission of no case to answer or when D makes closing submissions

Question 69

Submission of no case to answer - test?

Answer 69

• When presenting the prosecution case, the prosecutor bears an evidential burden
• If prosecution fails to satisfy this burden, D’s solicitor should make a submission of no case to answer at the conclusion of the prosecution case
• Test = a submission will be made by D’s solicitor if:
  1. the prosecution has failed to put forward evidence to prove an essential element of the alleged offence; or
  2. the evidence produced by the prosecution has been so discredited as a result of cross-examination, or is so manifestly unreliable, that no reasonable tribunal could safely convict on it.

Question 70

Why is it difficult to have no case to answer?

Answer 70

difficult to make a submission of no case because not much evidence is required to fulfil the burden
* R v Sardar
 where there is direct evidence capable of proving the charge, then there will always be a case to answer, no matter how weak or tenuous this appears.
 If case depends on circumstantial evidence, there will only be no case to answer where the evidence is not capable in law of supporting a conviction. So in a case where the prosecution is solely relying on circumstantial evidence, if all the prosecution evidence was accepted and all the inferences favourable to the prosecution were drawn from this evidence, if a reasonable mind could still not reach a conclusion of guilt beyond a reasonable doubt, or exclude other hypotheses consistent with innocence, then the prosecution will not have discharged their evidential burden.
 In this case, the circumstantial evidence was that the accused was in the region at the time. He was in possession of information about terrorism and bomb-making equipment and his fingerprints were found on other, similar IEDs which had been deployed in the same narrow geographical area during the same time period. On this evidence, it was held that he was rightly found to have a case to answer.

Question 71

If mags accept or reject no case to answer submission?

Answer 71

• If magistrates accept a submission of no case to answer, the charge against D is dismissed
• If magistrates reject, D may then present their case and call witnesses

Question 72

Will D need to give evidence?

Answer 72

• D can give evidence, but is not obliged to do so
• It is usually necessary for D to give evidence, eg to support an evidential burden in raising self-defence
  
  • also eg: if the prosecution has adduced evidence of a confession made by the defendant, and the defendant disputes the truth of this confession, the defendant will need to give evidence to explain why he made a false confession
• D’s answers to questions in police interview will have enhanced credibility if D supports this in the witness box
  
  • ie putting forward a consistent defence since first being arrested and questions
• NB. D failing to give evidence will likely lead to the court drawing an adverse inference from such failure (s 35 CJPOA 1994)
  
  • Effect: if the prosecution has raised issues which call for an explanation from the defendant, should the defendant then fail to give evidence, the court will be entitled to infer from that failure that the defendant has either no explanation, or no explanation that will stand up to cross-examination
  • ExampleLloyd is charged with common assault. Lloyd pleads not guilty on the basis that he was acting in self-defence. At the end of the prosecution case, Lloyd declines to enter the witness box to give evidence on his own behalf. The court is entitled to infer from this that Lloyd has no defence to the charge, or no defence that will stand up to cross-examination (in other words, an inference that Lloyd is guilty of the offence).

Question 73

Order of defence witnesses?

Answer 73

• If D is giving evidence on their own behalf, they must be called first, THEN other witnesses can be called
• Same procedure as prosecution witnesses: each will be examined in chief by D’s solicitor then cross-examined by the prosecutor, then possibly re-examined by D’s solicitor

Question 74

When should the prosecution make a closing speech?

Answer 74

• Prosecution has the right to make a closing speech, but Guidance suggests though that this right should only usually be exercised in more complex cases where it will be of assistance to the court

Question 75

Will D make a closing speech?

Answer 75

• D will always make their speech after the prosecution
• D’s solicitor has a choice in MC whether to make an opening or a closing speech

Question 76

Format for speech?

Answer 76

• No set format for a closing speech, but consider the following:
  1. The closing speech should be kept short and to the point. Closing speeches that are too long often have little impact on the magistrates.
  2. D’s solicitor should always remind the magistrates that the CPS bears the burden of proving beyond a reasonable doubt that the defendant is guilty of the offence with which he is charged. The magistrates should be told that the defendant is entitled to an acquittal unless they are sure that the defendant is guilty. The defendant does not need to prove that they are innocent. All they need to do to secure an acquittal is to demonstrate that the prosecution has failed to prove its case beyond a reasonable doubt
  3. D’s solicitor should refer back to the opening speech made by the prosecutor to point out where they have not succeeded in proving what they needed. Place emphasis on weaknesses and discrepancies in the prosecution case
  4. D’s solicitor may also need to cover evidential issues during the closing speech (eg give a Turnbull warning). D’s solicitor should undermine credibility of prosecution evidence if it is disputed. D’s solicitor should downplay significant of evidence relating to bad character.
  5. D’s solicitor should ‘show’ the magistrates how to find D not guilty, ie persuade them into the path. Often useful to conclude with weaknesses in prosecution case and invite magistrates to conclude that the only possible verdict is one of not guilty.

Question 77

The verdict - majority required?

Answer 77

• Magistrates will normally retire to consider their verdict
• Most trials at MC will be before a bench of three magistrates, who make the decision by majority (ie 2/3)

Question 78

Verdict: D found guilty?

Answer 78

magistrates then consider the sentence, either immediately or adjourn until a later date
* If D is sentenced immediately, solicitor will deliver a plea in mitigation prior to sentence

Question 79

If D guilty and case adjourned?

Answer 79

• If case is adjourned, consider bail or remand in custody
• D found guilty in MC has the right to appeal against conviction/sentence to CC

Question 80

If D acquitted by mags?

Answer 80

• If the defendant is acquitted by the magistrates, they will be formally discharged immediately

Question 81

CC trial functions of judge and jury?

Answer 81

• Functions of deciding on fact and law are split between judge and jury
• Jury (12 members of the public) decide matters of fact which are in dispute and decide on guilt/innocence
• Judge resolves disputes on points of law and will direct the jury as to the relevant law

Question 82

Change of plea from guilty to not guilty?

Answer 82

• Rule 25.5 CrimPR sets out procedure: D must apply, in writing, as soon as practicable after becoming aware of the grounds for making such an application
• Similar procedure for changing pleas in MC (r 24.10)

Question 83

CC jury sworn in?

Answer 83

o 12 members of the public aged 18-75 whose named are on the electoral register for the local area and have resided in the UK for at least 5 years
o Some people are ineligible (eg mental disorder)
o Some are disqualified (eg currently on bail for criminal proceedings or previous convictions which served custodial sentence)
o D will usually have already been arraigned and entered their NG plea at the PTPH, but if this has not taken place jury will not hear D’s plea to protect against NG pleas to some counts but guilty to others – the clerk will not tell the jury about the guilty pleas

Question 84

Prosecution opening speech, usually containing….?

Answer 84

o legal elements of the offence(s) on indictment;
o an outline of the evidence the prosecutor intends to call; and
o an explanation of the operation of the burden and standard of proof in a criminal case
o NB. Prosecution may also highlight points of law anticipated to arise in the case and possible defences open to D

Question 85

CC prosecution witnesses

Answer 85

3. Prosecution witnesses then called in the same way as MC, starting with the complainant. Each witness will be examined in chief by the prosecutor, cross-examined by the defence advocate and then (if necessary) re-examined by the prosecutor. Prosecution will read out witness statements from those not required to attend and statements from witnesses admitted as hearsay evidence.

Question 86

Voir dire CC

Answer 86

if necessary, to resolve disputes on points of law or arguments as to admissibility of evidence [jury absent].
o Good practice: for the defence to notify the prosecutor prior to the trial of any items of prosecution evidence of which they will seek to challenge the admissibility at trial
o The judge will hear evidence from witnesses, and then legal submissions from both parties’ advocates about the item of evidence in dispute, and then rule of admissibility; if inadmissible, jury will not hear about the evidence; if admissible, jury will hear but open to discrediting in cross-examination

Question 87

CC no case to answer

Answer 87

5. At the conclusion of prosecution case, D’s solicitor may make a submission of no case to answer
   o This submission is made in the absence of the jury
   o Judge applies the ‘Galbraith test’

Question 88

CC successful/unsuccessful no case to answer submission?

Answer 88

6. If submission is successful, jury is asked to return and judge instructs them to return a NG plea.
   If submission is unsuccessful, the judge may now allow D to change their plea from NG to G at this stage.

Question 89

CC D’s opening speech?

Answer 89

7. D’s advocate presents D’s case. If D is calling witnesses (not inc. D), D is entitled to make an opening speech
   o If more than one D, each D will present their case in turn according to their names

Question 90

Defence witnesses examination?

Answer 90

8. Defence witnesses called. Each defence witness will be examined in chief by the defence advocate, cross-examined by the prosecutor and then (if necessary) re-examined by the defence advocate

Question 91

CC closing speeches?

Answer 91

9. At the conclusion of the defence case, both prosecuting and defence advocates will deliver a closing speech to the jury. The prosecutor will give their closing speech first, followed by the defence.

Question 92

Judge ‘summing up’ the jury - points of law?

Answer 92

10. Before the jury retire to consider their verdict, the judge will then give their ‘summing up’ to the jury. The summing up has two parts, namely directions on the law and a summary of the evidence
    o When the judge directs the jury on the law, they will cover three areas:
11. the burden and standard of proof;
12. the legal requirements of the offence; and
13. any other issues of law and evidence that have arisen during the trial (for example, a Turnbull warning in the case of disputed identification evidence, or a direction as to the drawing of adverse inferences under ss 34 to 37 of the CJPOA 1994)

Question 93

Summing up - evidence?

Answer 93

evidence
o When the judge gives the jury a summary of the evidence, they will provide the following:
1. a succinct summary of the issues of fact that the jury has to decide;
2. an accurate and concise summary of the evidence and arguments raised by both prosecution and defence; and
3. a correct statement of the inferences the jury is entitled to draw from their conclusions about the facts.
o At the end of the summing up, the judge will tell the jury to appoint a foreman and will instruct them to retire to consider their verdict and to reach a unanimous conclusion

Question 94

Juror decision time?

Answer 94

o Jurors must only consider the evidence they have heard and cannot discuss with non-jurors
o Must decide verdict unanimously, although a verdict of 11:1 or 10:2 will be accepted if, after at least 2 hours and 10 minutes, unanimity is not possible. If the case is lengthy or complex, the judge will likely wait much longer to accept a majority verdict.

Question 95

What if a juror is discharged?

Answer 95

o If any jurors are discharged during trial, the majority requirements reflect this, ie: 11 jurors = majority of 10:1 10 jurors = majority of 9:1 where there are only 9 jurors, then only a unanimous verdict is acceptable

Question 96

If majority decision not reached within reasonable time?

Answer 96

If majority verdict is not reached within reasonable time, judge will discharge the jury. Prosecution is then likely to request a retrial before a new jury

Question 97

D not guilty

Answer 97

13. If jury find D not guilty, D is discharged.
    o If D’s case was not funded by way of representation order, the judge will usually order that their legal costs are paid from central funds (ie the state)

Question 98

If D guilty

Answer 98

If jury finds D guilty, the judge can then proceed to sentence D, either immediately or later by adjournment.

Question 99

How are judges addressed in each court?

Answer 99

Magistrates Court
* Magistrates addressed collectively as ‘Your Worships’, or to the chairperson of the bench as ‘Sir’ or ‘Madam’
* If trial takes place before a district judge: ‘Sir’ or ‘Madam’
Crown Court
* address the judge as ‘Your Honour’

Question 100

Opposite advocate mode of address?

Answer 100

Opposite advocate
* ‘my friend’ or if they are a barrister ‘my learned friend’

Question 101

Formalities

Answer 101

• When entering or leaving the court, it is customary to bow to the judge or magistrates
• All in court are required to stand when the judge or magistrates enter or leave the court

Question 102

Exception to standing up

Answer 102

• When you address the court or are examining witnesses, the default position is that you are required to stand up if the proceedings are taking place in open court, subject to exceptions when the advocate will usually remain seated:
  o when representing a juvenile client in the youth court;
  o where a defendant appears via videolink from prison;
  o where a witness appears via secure link, normally because of special measures
  o where witnesses are located far from court (especially police officers) and need to give evidence via videolink;
  o where an advocate has requested to appear over videolink (the court videolink facility is called CVP or Cloud Video Platform);
  o when making a bail appeal before a judge in chambers in the Crown Court

Question 103

Examination in chief - leading vs non leading questions?

Answer 103

o Purpose: tell a story
o Ask questions which enable the witness to repeat the version of events which they provided in their witness statement
o Difficulty: advocate is not allowed to ask leading questions (those suggestive of an answer)
o Example
Ewan is called as a prosecution witness. He is to testify to the fact that at 2 pm on 5 June he saw Grant steal a tin of baked beans from Sainsbury’s.
The prosecuting solicitor cannot say to Ewan: ‘Did you see Grant steal a tin of baked beans from Sainsbury’s at 2 pm on 5 June?’ because this is a leading question.
Instead of asking such a leading question, the advocate conducting the examination-in-chief should use ‘open’ questions to elicit the information from the witness.
o Continuing with the example above, the prosecutor could elicit the information from Ewan in the following way:
Q Where were you on 5 June at about 2 pm?
A I was in Sainsbury’s.
Q What did you see when you were in Sainsbury’s?
A I saw Grant pick up a tin of baked beans and put them in his jacket pocket.
Q What happened next?
A I saw Grant walk out of the shop without paying for the tin of baked beans.
o The use of non-leading, open questions enables the witness to place their account before the court in their own words.
o Such questions usually start with words such as:
 Who…?
 What…?
 When…?
 Where…?
 How…?

Question 104

Cross-examination purpose?

Answer 104

 to enable the party conducting the cross-examination to put their case to the witness (ie suggest an alternative version of events to their account);
 to undermine the credibility of the evidence which that witness has just given in examination-in-chief; and
 to obtain favourable evidence from the witness that supports your case.

Question 105

Cross-examination questions

Answer 105

o Cross-examination will usually be done by asking a witness ‘closed’ or leading questions
o Example
Q Mr Barnard, you told the court that you spent the evening of 14 December at a club?
A Yes.
Q You had quite a bit to drink, didn’t you Mr Barnard?
A I wouldn’t say I had that much.
Q Well according to your witness statement you had seven pints to drink. Is that correct?
A Yes.
Q That’s quite a lot isn’t it Mr Barnard?
A I suppose so.

Question 106

Re-examination?

Answer 106

o At the end of the cross-examination, the party who called the witness may, if they choose, briefly re-examine their witness
o Such re-examination should only be in relation to matters that have arisen in cross-examination and as with examination-in-chief, only open, non-leading questions are allowed
o Usually used to clarify confusion which may have arisen following cross-examination and/or try to repair damage caused by cross-examination

Question 107

General rule of competence

Answer 107

The general rule
o All persons are competent to give evidence at a criminal trial.
o s 53 YJCEA 1999 uniform test applicable to all criminal proceedings:
“At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.”
o All competent persons are also compellable – ie all can be summoned to testify by the court issuing a witness summons
o Failure to attend court in such circumstances is contempt of court
o If, having come to court, the witness refuses to answer questions, this will again be contempt of court which can result in imprisonment either underthe general law of contempt or under a specific statute such as s 97 Magistrates’ Courts Act 1980

Question 108

Exception to the general rule on competencea

Answer 108

s 53 also provides:
“A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to:
6. understand questions put to him as a witness; and
7. give answers to them which can be understood.”
o Issues relating to credibility and reliability are therefore not relevant to this test – solely concerned with understanding

Question 110

Will children always be a s53 exception?

Answer 110

No, whilst Sometimes a child might not have the level of understanding that is required by this test
 AGE IS NOT DETERMINATIVE
 The only issue is whether the witness is able to give intelligible testimony
 so a young child could be competent if they have sufficient intelligence

 For child witnesses, there is a linked question:
Should the child give sworn or unsworn evidence?
s 55: “the witness may not be sworn … unless he has attained the age of 14.”
 So where a witness is over 14, they will generally give sworn evidence if ‘he has sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking the oath’ and this will be presumed to be the case unless there is evidence to show the contrary.

Question 111

Those with defective intellect?

Answer 111

 May be able to give unsworn evidence if they satisfy the basic test for competence (above)
 Judge’s discretion to decide whether a person whose capacity is challenged is competent

Question 112

compellability: can the accused be a witness?

Answer 112

The accused
11. As a witness for the Crown
 General rule - accused is not a competent witness for the Crown
 Issue - where the Crown wants to call one co-accused to testify against another
 Exceptions - Crown can call a co-accused if:
1. Attorney General files a nolle prosequi (formal notice abandoning the prosecution)
2. Order made for separate trials (but only co-accused from first trial can be called at the second, not vice-versa)
3. Accused may be formally acquitted, e.g., if the prosecution offers no evidence
4. Accused may plead guilty and then give evidence for the Crown against a co-accused (but NB it is desirable that the accused is sentenced before giving evidence)

Question 113

Co-accused

Answer 113

12. As a witness for a co-accused
     Rule - a co-accused is competent but not compellable
13. In his own defence
     Rule - D is competent but never compellable
     Key issue - adverse inferences may be drawn where an accused chooses not to testify

Question 114

Spouse of the accused?

Answer 114

14. For the Crown
     Only compellable if:
15. offence charged involves an assault on or injury or threat of injury to the spouse or a person under 16; or
16. the charge is a sexual offence, or such an attempted offence involving a person under 16, or aiding and abetting such offences
17. For the accused:
     Spouse is compellable
18. For a co-accused:
     Only compellable in situations as above (as for the Crown)
19. Where spouses are co-accused:
     One is never compellable for the other
     NB if they are no longer married at the date of trial, it is as if they were never married

Question 115

• Who can apply to court for assistance of special measures? (ss16 and 17 YJCEA 1999)

Answer 115

o children under 18
o those with mental or physical disorder, or disability or impairment that is likely to affect their evidence
o complainants in sexual offences (automatically eligible unless contrary is requested)
o those who are witnesses in specified gun and knife crimes

Question 116

Types of special measures?

Answer 116

o screens to ensure that W does not see D
o allowing W to give evidence from outside court by live television link, and where appropriate, allowing a witness supporter to accompany them
o clearing people from the court to allow evidence to be given in private
o in a CC case, judge and barristers removing wigs and gowns
o allowing a witness to be examined in chief before trial and a video recording of that to be shown at trial
o allowing a witness to be cross-examined and re-examined before trial and a video recording of that to be shown at trial
o allowing an approved intermediary (e.g., interpreter or speech therapist) to help W communicate when giving evidence
o allowing W to use communication aids, e.g, sign language or a hearing loop

Question 117

Special measures - judge’s obligation?

Answer 117

MUST warn the jury that the fact that special measures have been used should not in any way prejudice them against the defendant or give rise to any suggestion that the defendant has behaved in any way improperly towards the witness

Question 118

D’s impairment?

Answer 118

D whose ability to participate effectively as a witness in court is compromised by reason of their mental disorder, impaired intellectual ability or social functioning, can give evidence by video link.

Question 119

If client admits guilt to solicitor?

Answer 119

• If a client admits their guilt to the solicitor:
  
  • it would still be appropriate for the solicitor to put the prosecution to proof of its case if the solicitor considered that case to be weak (i.e., continue acting)
  • but solicitor cannot say anything in their client’s defence which they know to be untrue
• If D’s solicitor has to cease to act for client:
  
  • solicitor must not tell the court why they are ceasing to act
  • will say they are no longer able to act ‘for professional reasons’

Question 120

Preparing the defendant to give evidence?

Answer 120

• D’s solicitor must tell client what is likely to happen at trial
• If D is to give evidence in their own defence:
  o supply D with a copy of their witness statement
  o allow D time to refresh their memory as to what they first told the solicitor
  o do NOT coach D or any other witness