Unit 9 Jury Trial Procedure

Question 1

Can D be absent for a trial on indictment?

Answer 1

No, unless -

(1) D has waived right to attend AND the trial will be fair despite his absence

(2) A has misbehaved to such an extent that A is excluded from court. Before excluding A the judge should:

• warn him
• allow him to return to dock later if he undertakes not to repeat behaviour
• threaten to hold him guilty of contempt of court
• allow him time to cool off, then continue in his presence
• A should not be handcuffed in dock unless real risk of violence or escape, and no alternative to visible restraint

(3) A is voluntarily absent

• E.g. escaping from custody, FTS after bail, voluntary intoxication renders A incapable of participation
• The question the judge needs to consider in determining whether the trial should proceed in A’s absence is what the fairness of the case demands (it’s not about the reason for A’s absence). In deciding this the judge has to consider:
• (a) If A had deliberately absented himself and
• (b) there were reasonable steps that could be taken to secure his attendance
• whether or not case proceeds, judge will almost certainly issue AW

(4) In limited circumstances the trial can proceed if A is involuntarily absent. These are:

• (a) he consents or
• (b) his case can be fully presented, including A’s own written evidence, without unfairness

(5) A has died

Question 2

What needs to happen if A becomes ill during the trial?

Answer 2

If A becomes ill during trial, judge must either:

• (1) adjourn the case until he recovers or
• (2) discharge the jury.

If court doesn’t believe illness

• Should provide opportunity for further evidence to be provided before continuing trial in absence

In some circumstances the court may proceed in A’s absence:

• If the illness is ‘voluntary’ (e.g. A voluntary ingests drugs)
• if the reqs for proceeding in the case of A’s involuntary absence are met (i.e. consent or ability to present case effectively on A’s written evidence without unfairness)

Also note: if one co-A becomes sick, trial may continue for co-As and not A

Question 3

What factors should a judge consider in determining whether it is appropriate to proceed in A’s absence?

Answer 3

Obviously the case needs to fit into one of the special categories that allow this in the CC. Assuming it does, the primary consideration is fairness. But the judge must also consider:

(1) nature and circumstances of A’s absence (whether deliberate/voluntary)

(2) whether adjournment may result in A being caught / attending voluntarily

(3) likely length of such an adjournment

(4) whether A is legally represented or has waived right to representation

(5) extent to which A’s legal representatives can present his defence

(6) extent of disadvantage to A in not being able to testify

(7) risk of jury reaching improper conclusion about A’s absence

(8) general PI and interest of Vs and Ws that trial should occur within a reasonable time

(9) effect of delay on the memories of Ws

(10) if more than one A, the undesirability of separate trials, and prospects of a fair trial for the Ds present

(11) Even if A absconded voluntarily, should be represented unless unavoidable – and in this case, judge must take steps to ensure fair trial: I.e.

• Expose weaknesses in P case and make points on behalf of A (both during evidence and summing up)
• In summing-up, must warn jury that absence = not admission of G

NB: ‘seriousness of offence’ should NOT be considered

Question 4

What must the court do in relation to unrepresented defendants?

Answer 4

• Give such assistance in conducting their defence as may seem appropriate
• The judge may grant an adjournment for A to get a legal rep
• A always has to be told at the end of P’s case that they have a right ‘(1) to give evidence himself, (2) to call Ws to his defence or (3) to stay silent and call no evidence (but jury can draw such inferences as they see proper)’ - it is particularly important that this happens if A is unrepresented and failure to tell A may lead to the conviction being quashed

Question 5

Does A have to be tried once the indictment has been served (or can the court choose not to)?

Answer 5

General rule = once an indictment has been preferred, A must be tried

Exceptions:

(1) indictment is defective (e.g. counts improperly joined)

(2) autrefois acquit/convict

(3) nolle prosequi (this is a sort of power to dismiss, but it’s only used very rarely)

(4) indictment discloses no triable offence

(5) it would be an abuse of process to continue.

Question 6

What is the effect of a stay of proceedings?

Answer 6

• The case is stopped permanently
• Only in exceptional cases would stay be lifted (e.g. new allegations to be tried)

cf. with ‘adjournment’ where the proceedings are simply scheduled to continue at a later time

Question 7

On what bases can the court find that the proceedings are an abuse of process? What happens if the court makes a finding of abuse of process?

Answer 7

Effect of abuse of process = proceedings are stayed

(1) ‘Procedural’ reasons

• Question to be asked: do the consequences of P’s failures deprive D of a fair trial?
• There is no question of balancing competing interests
• Remember: we already saw that delays caused by the prosecution can have this effect

(2) Substantive unfairness

• Question to be asked: is P asking in bad faith, unlawfully or is there an issue of executive misconduct (n.b. this is not about public policy; P must be oppressive and vexatious)
• The stay will only be granted if (1) the trial will offend court’s sense of justice of propriety or (2) it will undermine public confidence in the criminal justice system and bring it into disrepute
• Here the court is concerned with a balancing of competing interests

Question 8

What are the steps of a trial in the CC?

Answer 8

N.B. The trial proper commences with P’s opening speech. However, the indication of plea that was taken at the PTPH will be confirmed in the arraignment before the trial commences.

• (1) Jury selected and sworn
• (2) Preliminary directions from the judge to the jury + indictment is read out to the jury so they know what they need to decide
• (3) P’s opening speech
• (4) Judge can invite D to address the jury briefly to set out the issues in the case
• (5) P calls its first witness (EiC)
• (6) W is CE by D1, then D2, then D3 (as they appear on the indictment)
• (7) Possible re-examination of W by P
• (8) P calls next witness, etc
• (9) Possible submission of no case to answer
• (10) Then D’s case starts (the D whose name appears first on the indictment will go first)
• (11) D opening speech (if appropriate)
• (12) D evidence (following same pattern as P evidence)
• (13) Discussion between judge and all counsel (P and all Ds) regarding the summing-up that the judge will give
• (14) Closing submissions: P, D1, D2, etc (in that order)
• (15) Summing-up
• (16) Verdict

Arguments on admissibility of evidence take place at whatever point seems convenient

Question 9

What is the purpose of the prosecution opening speech?

Answer 9

(1) identify the issues in the case and

(2) provide a concise outline of the evidence which P proposes to call

Question 10

Can the prosecution use emotive language in their opening speech?

Answer 10

No.

Question 11

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

Answer 11

No, unless:

(1) circumstances of real complication and difficulty where trial judge agrees jury may be assisted

(2) to remind jury that matters of laws are for judge

Question 12

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

Answer 12

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 13

What rules does s. 9 of the CJA 1967 concern?

Answer 13

The rules for the admissibility of written statements as evidence

Question 14

When will written statements be admissible as evidence?

Answer 14

Only if all parties agree.

Question 15

What is the time limit for objecting to the admission of written statements as evidence?

Answer 15

5 business days from service of a copy of the statement

Question 16

What does s. 10 of the CJA 1967 contain?

Answer 16

The rules for the admissibility of agreed facts (also referred to as formal admissions). These must be reduced to writing.

Question 17

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

Answer 17

(1) D counsel informs P counsel of objection before P opening speech

(2) P makes no mention of disputed evidence to jury in opening speech

(3) When time to consider admissibility, jury will withdraw

(4) If admissibility issue raises collateral factual issues as to how it was obtained → may be necessary to hold a voir dire

• = ‘trial within a trial’ where evidence adduced about those facts before judge in absence of jury (this is very similar to any other trial)
• Witnesses testify on oath
• P and D can call Ws, but limited to matters relevant to admissibility of disputed evidence
• the judge will make any relevant factual findings
• good example where voir dire is often necessary = where allegation is that a confession was obtained by oppression

(5) Voir dire or not, parties make representations to judge about admissibility

(6) Judge announces findings of fact and makes ruling on admission

(7) Jury return to court

• If inadmissible → Jury will know nothing about it
• If admissible → D can still CE P Ws on matters they raised in voir dire, but CE goes to the weight that jury should attach to the disputed evidence, not to its admissibility.

(8) Judge retains discretion to review admissibility at a later stage

Question 18

What are the three options for editing prosecution evidence?

Answer 18

1. A composite statement can be prepared to replace several earlier statements made by a witness.
2. A completely fresh statement can be prepared for a witness to sign, omitting those parts of the first statement which are inadmissible or prejudicial.
3. 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. The evidence should state: ‘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 19

What is the test in Galbraith?

Answer 19

Galbraith sets out the test to be applied in cases of trial on indictment for a submission of no case to answer. It has two limbs

1. Limb 1

• This is relatively straight-forward: if there is no evidence then the case should be dismissed
• Examples: an essential prosecution witness has failed to come up to proof, or where there is no direct evidence as to an element of the offence and the inferences which the prosecution ask the court to draw from the circumstantial evidence are inferences which, in the judge’s view, no reasonable jury could properly draw

2. Limb 2

• More complicated: there is some evidence but it is tenuous
• Not appropriate to argue that it would be unsafe to convict (i.e. that it could later be quashed)
• Examples when this limb applies: “if the witness undermines his or her own testimony by conceding uncertainty about vital points, or if what the witness says is manifestly contrary to reason, the court is entitled to hold that no reasonable jury properly directed could rely on the witness’s evidence, and therefore (in the absence of any other evidence) there is no case to answer”
• Test: case should be dismissed if no reasonable jury could properly convict, taking P’s evidence at its highest

Question 20

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

Answer 20

Only if D intend to call evidence other than evidence of A + Ws testifying as to A’s character

Question 21

What can a defence opening speech contain?

Answer 21

(1) outline anticipated D case and

(2) criticise the evidence already given by P

Question 22

Are the defence obliged to call evidence?

Answer 22

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 23

Does A have to give evidence?

Answer 23

No - A is competent but not compellable

Question 24

What must A’s counsel do if A decides not to testify?

Answer 24

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 25

Can the judge call witnesses?

Answer 25

Yes - the judge has a discretion to call/recall Ws whom neither P nor D chose to call if to do so would be in the interests of justice

Question 26

What will the judge usually do before summing up?

Answer 26

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 27

Can counsel wait to bring up issues of procedural irregularity until the appeal?

Answer 27

No - 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 28

Who has a right to make a closing speech?

Answer 28

Both P and D

Question 29

Who makes their closing speech first?

Answer 29

Prosecution, then defence.

Question 30

What rules govern the content and style of the closing speeches? What are P and D entitled to mention?

Answer 30

For both P and D

• No allusions to facts not the subject of evidence
• Jury should not be invited to add a recommendation of mercy if G verdict
• No personal criticism of opponent advocate

Just for P

• must not be improper and remember role as a minister of justice
• should not comment to jury on serious consequences to POs of their evidence being disbelieved
• not entitled to abandon/attack credit of own W (unless hostile) or invite inferences contrary to called evidence
• should not comment on failure of A’s spouse to give evidence
• can comment on: (1) failure of A to answer Qs in interview, (2) failure of A to serve a DS, (3) divergence between A’s DS and evidence

Just for D

• Not confined to putting forward A’s version of events: may advance hypotheses that go beyond, provided evidence has been called to support
• Should not refer to likely consequences of a conviction re: sentence
• Entitled to comment upon A’s failure to give evidence
• Entitled to comment upon a co-A not entering the W-box (though judge may comment additionally if he believes unfair)

Question 31

What form does the summing up usually take? What practices have been encouraged/discouraged?

Answer 31

• Usually two parts: (1) a direction on the law, (2) a summary of the evidence.
• The CA has encouraged the direction on the law to happen before closing speeches and the summary of the evidence after the closing speeches - but remember that before any kind of summing up the the judge will usually invite the advocates to a discussion so they know what the judge is inclined to say in the summing up
• CA has discouraged the summing up to happen late or right before the weekend
• CA has also encouraged the use of written summing up (if no written summing up, counsel should make a note) - this may include written directions/Qs

Question 32

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

Answer 32

Both P and D counsel

• Attend carefully and draw any possible errors of fact or law to judge’s attention at its close

D counsel

• Must request a good character direction if A entitled

Question 33

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

Answer 33

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 34

What information is contained in a standard direction to the jury?

Answer 34

1. Functions of judge / jury (tribunal of law / fact)
2. Burden and standard of proof (otherwise, conviction liable to be quashed)
3. Separate consideration of counts and Ds (judge should summarise evidence on a count-by-count basis)
4. Elements of the offence
5. Jury entitled to draw such inferences as they deem proper from A’s silence in interview or failure to give evidence

• Obviously other info may be included in appropriate cases (e.g. good character references, Lucas direction etc)
• The judge must also give legal directions regarding any defences raised by A
• The judge should direct the jury to reach a unanimous view (and only give a second direction about majority verdicts this becomes a possibility)

Question 35

What rules apply once the jury retires for deliberation?

Answer 35

• Once jury retires, should not separate from one another or jury bailiffs
• Must remain in the charge of the court throughout

Question 36

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

Answer 36

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

Question 37

What guidance is given to judges in dealing with written questions received from the jury?

Answer 37

1. If raises something unconnected (e.g. message to relative of juror), can be dealt with w/o reference to counsel or bringing jury back to court
2. In almost every other case a judge should state in open court the nature and content of communication from jury and, if helpful, seek assistance of counsel – once sought, jury will be told in open court
3. If communication contains info which jury should not have given (e.g. details of voting figures) then communication should be dealt with in normal way, but judge should not disclose detailed info jury shouldn’t have revealed

Question 38

Does a jury vote have to be unanimous?

Answer 38

The verdict should be unanimous, but there are circumstances in which a majority verdict is permissible:

1. the jury must’ve been considering their case for such period as the court considers reasonable given the complexity of the case. Not less than 2h10mins (2h, 10mins added to account for time it takes jury to leave court room and start deliberating)
2. Minimum majorities:

• Jury of 12: 11-1 or 10-2
• When one or more jurors discharged: 10-1 or 9-1
• Jury of 9 or less must be unanimous

Question 39

If the verdict is not unanimous, does the majority and minority of the jury have to be stated in open court?

Answer 39

If (and only if) the verdict is guilty

Question 40

Can the jury find D guilty of a lesser offence?

Answer 40

Yes, if:

1. Offence charged expressly incl. allegation of another indictable offence
2. Offence charged impliedly incl. allegation of another indictable offence

Question 41

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

Answer 41

Not obligatory, but good practice to do so if the possibility has been obviously raised by the evidence - judge can do this even if P and D don’t consent to lesser charge being put to the jury

Question 42

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

Answer 42

The judge will discharge jury, and A may be retried by a different jury

• Discretion of P whether to ask for a retrial
• Usually retrial after one jury fails to agree
• If two juries fail, P usually doesn’t seek third trial but offers no evidence

Question 43

In what circumstances will a request by P to seek a further trial following two juries being unable to reach a verdict amount to an abuse of process?

Answer 43

Depends on the facts including:

1. overall period of delay and reasons for it
2. results of previous trials
3. seriousness of the offence, and (possibly)
4. extent to which the case against D had changed since previous trials