Unit 5 – Trial Procedure

Question 1

TRIAL PROCEDURE – MAGISTRATES COURT

Question 2

Does the opening speech form part of the evidence on which magistrates will decide the case?

Answer 2

NO. Setting the scene merely

– Sets out factual details of the charge and relevant law.

Question 3

1) Opening speech by prosecutors ..

Answer 3

• Does not form part of the evidence on which magistrates will decide the case and is more a matter of setting the scene.
• Factual details of the charge which D faces & relevant law.
• Will state what the prosecution will need to prove to secure a conviction.
• Prosecutor to remind the magistrates that the prosecution has the burden of proving beyond a reasonable doubt that D is guilty & that the D is entitled to an acquittal unless the magistrates are sure of guilt.
• Outlines what case consists of, telling court which witnesses they intend to call to give evidence for the prosecution and summarise the evidence that is to be given to these witnesses.
• May refer to any points of law which they anticipate to arise during the trial.

Question 4

2) Prosecution Evidence …

Answer 4

• After opening speech, prosecutor calls their first witness to give evidence.
• Evidence will be sworn (witness will either take an oath or affirmation and will promise to tell the truth) – unless they’re under 14 yrs old.
• First prosecution witness likely to be the complainant.
• Each prosecution witness is asked questions by prosecutor and then D’s solicitor will have the opportunity to cross-examine the witness. Prosecutor may then re-examine the witness.
• Any prosecution witness not called to give evidence (e.g., if they’re solely giving a witness summary) have their statements read to the court by the prosecutor.
• If D was interviewed at police station, either a summary or full transcript of interview will be read out to the court, unless D’s solicitor objects. If they do object, then an audio recording is played to the court.

Question 5

2a) Voir Dire – Arguments on points of law

Answer 5

• If prosecutor seeks to adduce evidence which D’s solicitor considers inadmissible, magistrates hold a voir dire to determine admissibility of the particular piece of evidence in dispute.

Question 6

What is involved in a voir dire?

Answer 6

• Voir dire = involves witnesses giving evidence on matters relevant to admissibility of the evidence. After witnesses have given evidence, the prosecutor and D’s solicitor will make legal submissions as to the admissibility of disputed evidence.

Question 7

What will happen with a voir dire (trial within a trial) in the magistrates court?

Answer 7

. A pre-trial hearing may be conducted to determine admissibility of disputed evidence before a different bench of magistrates to ensure the magistrates who eventually decide the case are not aware of evidence which is inadmissible.

Question 8

3) Submission of no case to answer by D’s solicitor

Answer 8

Test for no case to answer:

a) Prosecution has failed to put forward evidence to prove an essential element of the alleged offence; or

b) 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 9

Key case – R v Sardar… Direct / circumstantial evidence

Answer 9

1) Direct evidence – 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 it appears.

2) Circumstantial evidence – If the 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.

Question 10

4) Defence case (if submission of no case to answer is rejected / not made)

Answer 10

• If D is to give evidence on their own behalf, they must be called first before any other witnesses for the defence.
• All other witnesses are not allowed in court until they have testified.
• Defence & prosecution witnesses give evidence in the same way.
• Each defence witness will be examined in chief by D’s solicitor and will then be cross-examined by the prosecutor. D’s solicitor will then have the opportunity to re-examine their witness.

Question 11

What is the status of the defendant as a witness for the defence?

Answer 11

• A defendant is a competent witness for the defence but is not compellable.

– This means that a D can give evidence on his own behalf, but he is not obliged to do so.

Question 12

What are situations where D may be required to give evidence?

Answer 12

1) Where D is raising a defence (like self-defence or alibi), they then have the evidential burden of placing some evidence of this defence before the court.

2) If prosecution has adduced evidence of a confession made by the defendant, and the defendant disputes the truth of this confession, D will need to give evidence to explain why he made a false confession.

3) If D answered questions / provided a written statement at the police station will have the credibility of this evidence enhanced if they stand witness. This enables D’s solicitor to say, in their closing speech, that D has put forward a consistent defence since first being arrested and questioned.

• S 35 = If prosecution has raised issues which call for an explanation from D, should D then fail to give evidence, the court will be entitled to infer from that failure that D has either no explanation or no explanation that will stand up to cross-examination.

Question 13

When are closing speeches allowed?

Answer 13

More complex cases.

Question 14

5) Closing speech

Answer 14

1) Always done by prosecution first
2) Is optional for defence to do opening / closing speech

Question 15

Contents of Defences’ closing speech…

Answer 15

(a) Closing speech should be short and concise.

(b) D’s solicitor must always remind the magistrates that the CPS bears the burden of proof of proving beyond reasonable doubt that D is guilty of the offence with which he is charged.

 Magistrates should be told that D is entitled to an acquittal unless they’re sure that D is guilty.

 D does not need to prove they’re innocent. All they need to do is demonstrate that the prosecution has failed to prove its case beyond a reasonable doubt.

(c) D’s solicitor should refer back to opening speech made by prosecutor, in which they set out what they were going to prove. D’s solicitor should point out every area they have come up short, placing emphasis on factual weaknesses or discrepancies in the prosecution case.

(d) D’s solicitor may need to cover evidential issues – e.g., if prosecution has relied on disputed identification evidence, D’s solicitor will need to give a Turnbull warning to magistrates.

 Any evidence which D’s solicitor thinks should not have been admitted (i.e., confession), should be undermined.

 Any evidence of bad character should be downplayed.

(e) Aim of closing speech = persuasion.

 Should invite the magistrates to conclude that the only possible verdict is one of not guilty.

Question 16

6) The Verdict

Answer 16

• Magistrates usually retire to make a decision. Legal adviser reminds the magistrates of the evidence given in the case, can advise on points of fact and law. Can join the magistrates outside the courtroom at their request.
• Magistrates can make their decision by majority – does not need to be unanimous agreement on the verdict.
• When magistrates return to court after deciding on verdict, D is asked to stand and is told by chairperson if they’ve been found either guilty/not guilty.
• Guilty = Magistrates then consider sentencing.

 Either sentence immediately or adjourn the case if they wish to obtain other reports before sentencing.

 If sentenced immediately, D’s solicitor will deliver a plea in mitigation to the magistrates prior to the sentence.

 If adjourned, magistrates will need to consider whether D should have bail or be remanded in custody prior to the sentencing hearing.

 If D is found guilty, they have the right to appeal against the conviction and/or sentence to the Crown Court.

• Not guilty = D is acquitted by magistrates and formally discharged.

Question 17

TRIAL PROCEDURE – CROWN COURT

Question 18

What is the jury and what do they decide on?

Answer 18

Jury = 12 members of public between ages 18 and 75 whose names are on the electoral roll for the local area and who have resided in the UK for at least five years.

Decide matters of fact which are in dispute and ultimately decide on D’s guilt / innocence.

Question 19

Who cannot be a juror?

Answer 19

1)Mental disorder; or

2) On bail in criminal proceedings or has served a cutodial sentence

Question 20

What is judges’ role in crown court?

Answer 20

Judge = resolves any disputes over points of law during the court of a trial & directs jury as to the relevant law they must apply.

• Judge sums up for the jury the evidence which they have heard before the jury retire to consider the verdict – jury are solely responsible for deciding what the true facts of the case are.

Question 21

What happens to the jury at the beginngin of the trial?

Answer 21

They’re sworn in.

Question 22

After the closing speech of both prosecutor and defence, the judge gives a ‘summing up’ to the jury. What is contained in the summing up?

Answer 22

1) Directions on the law

2) Summary of evidence

Question 23

What is contained within the 1) directions on the law?

Answer 23

Judge covers 3 areas:

1) Burden and standard of proof

2) Legal requirements of the offence; and

3) Any issues of law and evidence that have arisen during trial

Question 24

What is contained within 2) summary of evidence?

Answer 24

1) succinct summary of the issues of fact the jury has to decide

2) Accurate and concise summary of evidence and arguments raised by both prosecution and defence; and

3) A correct statament of the inferences the jury is entitled to draw from their conclusion about the facts.

Question 25

What is the process of the jury retiring?

Answer 25

Deliberations private and completely secret.

Question 26

How must the jury arrive at their verdict?

Answer 26

jury must decide their 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 case is complex / lengthy, the judge is likely to wait much longer than this minimum period before telling the jury that they are prepared to accept a majority verdict.

– If any jurors have been discharged during the trial, then the majority verdict requirements reflect this (where there were only 11 jurors, the majority must be 10:1. If there were only 10 jurors, it must be 9:1 and where there are only 9 jurors then only a unanimous verdict is acceptable.

– If jury cannot reach a majority verdict within a reasonable time, judge will discharge jury – prosecution is then likely to request a retrial before a new jury.

Question 27

MAGISTRATES – Mode of address / court room etiquette

Answer 27

• Trial in magistrates normally be conducted before a bench of 3 magistrates.
• Magistrates should be addressed as “Sir” or “madam”.
• If trial takes place before a district judge, should be addressed “Sir” or “Madam”.
• On leaving/entering court customary to bow to judge/magistrates.
• When judge/magistrate enters/leave court, everyone should stand up.
• Solicitor/advocate should stand when examining a witness/addressing the court.

Question 28

CROWN COURT – Mode of address / court room etiquette

Answer 28

• Address the judge as “your honour”.
• When referring to the opposing advocate, should be addressed as “my friend”. If they’re addressing a barrister, it should be “my learned friend”.
• Bow to judge on entering/leaving.
• When judge enters/leaves court, everyone should stand up.
• Solicitor should stand when examining a witness/addressing court.

Exceptions – Solicitor will remain seated when:

(a) Representing a juvenile client in the youth court;
(b) Where a D appears via video link from prison;
(c) Where a witness appears via secure link, normally because of special measures
(d) Where witnesses are located far from court and need to give evidence via video link
(e) Where an advocate has requested to appear over video link
(f) When making a bail appeal before a judge in chambers in the Crown Court

Must not:

• Eat food in court.
• Use any electronic devices / phones (should be turned off).
• It is a criminal offence to take pictures, video or audio record court proceedings.

Question 29

What is cross-examination?

Answer 29

Cross-examination of a witness called by the other party has three main purposes:

1. Enable the party conducting the cross-examination to put their case to the witness;
2. Undermine credibility of evidence which that witness has just given in examination-in-chief; and
3. To obtain favourable evidence from the witness that supports your case.

“Putting your case”

– Suggesting to a witness that the version of events which that witness has just put forward in examination-in-chief is incorrect and suggesting an alternative version of evets.

– Always necessary for an advocate to put their client’s version of events to a witness in cross-examination.

– Solicitor should put to the witnesses a version of events which allows D to then enter the witness box to ratify.

• Cross-examination usually be done by asking a witness ‘closed’/ leading questions. I.e., yes/no questions.

Question 29

What is “examination in chief”?

Answer 29

• Purpose = allow a witness to ‘tell their story’.
• Advocate conducting questioning should ask questions enabling the witness to repeat the version of events which that witness has provided earlier in their witness statement.
• Advocate not allowed to ask leading questions.

“Leading questions” = Questions which are suggestive of the answer.

E.g., “did you see Grant steal a tin of baked beans from Sainsburys at 2pm?” leading question.

“Non-leading questions” = open questions enabling the witness to place their account before the court in their own words – i.e., who, what, where, when, how?

Question 30

What is re-examination?

Answer 30

• Only open, non-leading questions allowed.
• At the end of the cross-examination, the party who called the witness may, if they choose, re-examine their witness.
• Re-examination will only be in relation to matters that have arisen in cross-examination and as with examination-in-chief.
• Used to clarify any confusion etc.

Question 31

What is the general rule on competence and compellability?

Answer 31

1) All persons are competent to give evidence at a criminal trial.

2) All competent persons are also compellable.

Question 32

What are the exceptions to the general rule on competence?

Answer 32

A person is not competent if:

a) They cannot understand questions put to him as a witness; and

b) Give answers to them which can be understood

The crux of this is UNDERSTANDING – has nothing to do with reliability / credibility.

Question 33

What are the main 2 groups who come under the exception to the general rule on competence?

Answer 33

1) Children

Children can give evidence as long as they have the intelligence required to understand the questions and give intelligible answers.

• Age is not a factor to determine whether a child can give evidence.
• Children under 14 give unsworn evidence.

2) Defective intellect

If a witness has defective intellect, as long as they satisfy the above test, they can give unsworn evidence.

• It is for the judge to decide whether they’re competent.

Question 34

What are the exceptions to the general rule on compellability?

Answer 34

1) The accused / person charged is not competent to give evidence in the proceedings for the prosecution.

2) Co-accused – where there are several co-accused, the Crown cannot call one co-accused to testify against another except in the following circumstances:

1. Attorney–General may file a nolle prosequi (a formal notice abandoning the prosecution).
2. An order may be made for separate trials but in such a case, a co-accused from the first trial may be called at the second (but not vice versa).
3. Accused may be formally acquitted, e.g., if prosecution offers no evidence.
4. Accused may plead guilty and may then give evidence for the Crown against a co-accused; it is usually considered desirable that the accused should be sentenced first before giving evidence.

3) A defendant is competent to gie evidence in his own defence but NEVER compellable.

Question 35

How is the spouse of the accused dealt with?

Answer 35

For the Crown

• Spouse of an accused is only compellable for the Crown where the ‘specified offences’ are relevant.
• For any other offence, spouse is not compellable.

Specified offences:

1. Where the offence charged involves an assault on or injury or threat of injury to the spouse or a person who was under 16; or
2. Where the charge is a sexual offence, or such an attempted offence involving a person under 16 or aiding and abetting such offences.

Question 36

What is the effect that spouses are no longer married at the date of the trial?

Answer 36

It is as if they were never married for the purpose of establishing their compellability.

Question 37

Competence =

Answer 37

Ability to be a witness.

Question 38

Compellability =

Answer 38

Ability to testify at trial.

Question 39

Who can apply to the court for special measures to help them give evidence in court?

Answer 39

(a) Children aged under 18;

(b) Anyone suffering from mental / physical disorder, disability or impairment likely to affect their evidence;

(c) Those whose evidence is likely to be affected by their fear/distress at giving evidence in the proceedings – note, this category will automatically be eligible for special measures unless the witness tells the court that he or she does not want assistance.

(d) Complainants in sexual offences;

(e) Those who are witnesses in specified gun and knife crimes.

Question 40

What can a fearful witness request?

Answer 40

• Fearful witness can request for their written statement to be read out rather than attend the court to give oral evidence. (must have leave of the court).
• Before giving leave, the trial judge should assess whether the fears of the witness may be allayed by the use of special measures to enable the witness to give evidence.
• Benefit of special measures = the defendant will not then be deprived of the opportunity to cross-examine the witness.

Question 41

Where special measures are used, what must the jury be told?

Answer 41

– Jury must be warned that special measures have been used and should not prejudice them against D or give rise to any suggestion that D has behaved in any way improperly towards the witness.

– A defendant is not eligible to have special measures.

Question 42

Defence solicitors’ duty to the court …

Answer 42

• D’s solicitor is under an overriding duty not to mislead the court and so they cannot say anything in their client’s defence which they know to be untrue.
• D’s solicitor owes duty of confidentiality to their client. I.e., upon ceasing acting for their client, D’s solicitor must not tell the court why they are ceasing. They must state ‘professional reasons’.

Question 43

Should the solicitor “coach” their client in the giving of their witness statement? /i.e., rehearse it in relation to the evidence?

Answer 43

NO – they are allowed to supply them with their witness statement so they can readi ti before trial but not allowed to rehearse . coach them.