Trial Procedure in the Magistrates’ Court and Crown Court

Criminal Practice - Chapter 10

What happens after the prosecution witness has given evidence?

i) the D’s solicitor will have the opportunity to cross-examine the witness

ii) the P may, if they choose, briefly re-examine the witness.

When is a voir dire used in the MC? (‘a trial within a trial’)

To determine the admissibility of the particular piece of evidence in dispute - e.g. admissibility of a confession, bad character evidence.

Witnesses give evidence and solicitor’s will make legal submissions as to the admissibility of the disputed evidence.

If the magistrates decide that the evidence is inadmissible, the prosecutor will not be allowed to make any further reference to such evidence during the course of the trial

If accepted - form part of P’s case (D’s solicitor can cross-examine)

*danger Ms will be biased even if evidence is not admitted (as decide both rule and law) - can be overcome by having a pre-trial hearing with a different group of magistrates.

**in CC, a voir dire is with no jury present (cannot be prejudiced)

When will the D’s solicitor submit no case to answer?

If P fails to discharge evidential burden (i.e. prove guilt)

Either:

i) the prosecution has failed to put forward evidence to prove an essential element of the alleged offence

ii) 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.

Can a D give evidence on their own behalf?

YES (but not obliged to do so) - competent witness but not compellable

However, a D who is raising a defence such as self-defence or alibi has the evidential burden of placing some evidence of this defence before the court - simplest way is to give evidence

A defendant who answered questions (or provided a prepared written statement) at the police station will also have the credibility of this evidence enhanced if they go into the witness box at trial (solicitor can say the D put forward a consistent defence)

What is the significance of s.35? (AI)

If the prosecution has raised issues which call for an explanation from the defendant;

Should the defendant then fail to give evidence 0 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.

How is the verdict decided in the MC?

Three Ms retire - need a majority

If the defendant is found guilty, the magistrates will move on to consider the sentence to be imposed - either immediately or will adjourn

If the defendant is sentenced immediately, their solicitor will deliver a plea in mitigation to the magistrates prior to sentence.

If adjourn - need to consider bail or remand in custody

D can appeal decision in the CC

What is the significance of the P having the evidential burden?

If they cannot prove guilt beyond reasonable doubt - the D will be acquitted.

How can a D change their plea from guilty to not guilty?

The D must apply, in writing, as soon as practicable after becoming aware of the grounds for making such an application to change a plea of guilty (e.g. misunderstood P’s case)

*similar procedure in the MC

What are the requirements to be on the jury?

i) 18-75

ii) on electoral roll

iii) resided in the UK for at least two years.

How does a jury decided its verdict?

i) retire and secret discussions (only within the jury)

ii) The jury must decide their verdict unanimously, although a majority verdict of 11:1 or 10:2 will be accepted if, after at least 2 hours and 10 minutes, unanimity is not possible.

iii) If the case was lengthy or in any way complex, the judge is likely to wait much longer than this minimum period

iv) verdict delivered by a nominated foreman

*if the jury cannot reach a majority verdict within a reasonable time, the judge will discharge the jury - prosecution is then likely to request a retrial before a new jury.

v) if found not guilty - discharged - legal costs covered by central funds (i.e. the state)

What presumption is made if a D has been convicted but not yet sentenced?

A presumption in favour of bail for a defendant - rebutted if a very serious offence (on grounds the D will fail to surrender or that it would be impractical to prepare the report unless the defendant is in custody)

How is a judge addressed in the MC and CC?

MC = ‘your worships’ ‘sir’ ‘madam’

CC = ‘your honour’

How is the examination in chief conducted?

NON-LEADING QUESTIONS - ‘who’ ‘what’ ‘where’

What is the purpose of cross-examination?

To put your version of events to the witness and try and undermine their credibility

Usually done with LEADING QUESTION/ CLOSED QUESTIONS - yes or no answer

What is re-examination?

After C-E - the party who called the witness may, if they choose, briefly re-examine their witness

Only open/non-leading questions - to clarify any confusion

What is the general rule for competence and compellability of witnesses?

All persons are competent to give evidence at a criminal trial

Except: i) children (not about age - about understanding) ii) mentally defective people - as may not be able to understand Qs/ or give understandable answers

All competent persons are also compellable - can be compelled to attend by witness summons

*witness can only be sworn in if over 14 - if defective intellect may give unsworn evidence

Who cannot be compelled to give evidence as a witness?

i) the accused - (co-accused may be able to if plead guilt or acquitted)

ii) a witness for a co-accused

iii) co-accused - competent but not compellable (unless exceptions above apply)

iii) in own defence - a D is competent to give evidence in his own defence but never compellable (however, AIs could be drawn)

iv) spouse of the accused - unless violence/sexual crime against someone under 16

*if no o longer married at the date of the trial it is as if they were never married for the purpose of establishing their compellability - can compel them through a witness summons

Who can special measures be applied to and what are some examples?

Applied to:

i) children

ii) mental/physical disorder

iii) fear/distress

iv) sexual offences

Measures include:

i) screens

ii) TV link

iii) clearing the court

iv) barristers remove wigs and gowns

v) examined before (recording shown at trial)

vi) approved intermediary

vii) sign language/hearing loop

*judge must warn jury NOT to be prejudiced by any special measures

Why should special measures be considered before allowing a written witness statement?

Special measures should be considered before allowing a written statement - as would still allow cross-examination (a witness statement would not)

Can solicitor’s coach their clients?

NO

What two ways can a submission of no case to answer succeed? (R v Galbraith)

i) the prosecution has failed to put forward evidence to prove an essential element of the alleged offence

ii) 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.

To what is a solicitor’s overriding duty?

THE COURT