ICCA Unit 4 Crim

What happens after plea in magistrates trial? (4.1/Trial procedure)

Legal advisor summarises allegations, agreed facts + issues

What is a pre-trial hearing and when does it occur in the Magistrates’? (4.1/Summary Trial Procedure)

·      A pre-trial hearing is a hearing which takes place before court begins to hear evidence from prosecution at the trial (or, in those cases where fitness to plead is an issue, before the court considers whether to exercise its power under the Mental Health Act 1983, s. 37(3), to make a hospital order without convicting the accused (s. 8A(2))

·      At this hearing, magistrates may decide any Q as to the admissibility of evidence and any other Q of law relating to the case (s.8A(4))

o   These rulings may only be made if the court has given parties an opportunity to be heard and it is in the interests of justice to make the ruling (s.8A(3)(b) and (c))

o   If the accused is unrepresented, they must be given the chance to apply for legal aid (s.8A(5))

o   Pre-trial rulings may be made on application of defence or prosecution, or of the court’s own motion (s.8A(6))

Can the Magistrates’ make binding rulings at the pre-trial hearing? (4.1/Summary Trial Procedure)

Under s.8B(1), a pre-trial ruling is binding until the case against the accused is disposed of.

The court may make binding rulings at the pre-trial hearing if it is in the interests of justice to do so, and any unrepresented party has been given the opportunity to apply for legal representation.

When may pre-trial rulings be varied/discharged in the Magistrates’? (4.1/Summary Trial Procedure)

• Under s.8B(3), the court may (on an application or on own motion) discharge or vary the ruling provided it is in the interests of justice to do so, and the court has given the parties an opportunity to be heard.

• A party can apply for the ruling to be discharged or varied only if there has been a material change in circumstances since the ruling was made, or if there has been a previous application under s.8B since that application was made

• Per Gloucester Justices - If the bench (whether the same or a different bench) considers there has been a material change of circumstances since the ruling was made, has given the parties an opportunity to be heard and is satisfied that it is in the interests of justice to vary or discharge, the court may act accordingly

What may be read out in P opening speech? (4.1/Trial procedure)

Written statements (s9) + admissions (S10)

In what circumstances may the P ‘edit’ their evidence? (4.2/Jury Trial Procedure)

Where prosecution evidence as foreshadowed in the statements relied on by the prosecution contains material which is of such prejudicial effect that the jury clearly ought not to hear it, the practice is for the parties to ‘edit’ the evidence by agreement before it is called

What may happen to D after P opening speech? (4.1/Trial procedure)

May be invited to comment on matters in issue

When can D make an opening speech? (4.1/Trial procedure)

- CC only
- Only if D calls evidence of fact other than D + charcter witnesses

When may P be allowed to make a second opening speech? (4.1/Trial Procedure)

At the invitation of the magistrates at a part heard hearing to remind them of the evidence.

When can D make an application of no case to answer? (4.1/Trial procedure)

After close of prosecution case

When is P entitled to make a closing speech? (4.1/Trial procedure)

- Always in CC
- In magistrates only if D is legally represented or has called evidence other than his own testimony

When is D entitled to make a closing speech? (4.1/Trial procedure)

- Always in CC
- In magistrates if P makes a closing speech

What happens after close of D case in CC? (4.1/Trial procedure)

- Jury retires + court discusses directions to give jury
- Closing speeches
- Summing up
- Verdict

Which witnesses should P call? (4.1/Trial procedure)

- all witnesses whose statements have been served (unless exception met), though has discretion not to
- P witnesses who attend court to give evidence + D requests (must call or tender for cross-exam)

What is the consequence of a failure to call a witness?
(4.1/Trial procedure)

P cannot be compelled to, but if court satisified P is conducting case such that D cannot obtain fair trial, court may dismiss case as abuse of process

Exceptionally, court can call witnesses themselves

What should the court tell D in regards to giving evidence + when (CC)? (4.1/Trial procedure)

- At end of P case
- That adverse inferences can be drawn
- That he has the right to give evidence/stay silent

When should an admissibility application be decided in the magistrates’ court? (4.1/Summary Trial Procedure)

It may be decided at any time provided that no unfairness is caused to either side

What must D do if he decides not to give evidence (CC)? (4.1/Trial procedure)

- Confirm + sign document stating they have been advised by counsel + chosen not to give evidence

When does D give evidence? (4.1/Trial procedure)

Before other defence witnesses + always before character witnesses

What happens where evidence is disputed (CC)? (4.1/Trial procedure)

- Court has discretion to hold voir dire in absence of jury with discretion whether to hear evidence to decide how evidence was obtained/whether it should be excluded

What happens when evidence is disputed (M)? (4.1/Trial procedure)

- Has discretion hear evidence/make ruling on admissibility at any time (though delay until after P evidence may be unfair to D)
- Can only have voir dire for confessions, as cannot admit unless satisfied it was not obtained by oppression/words/conduct likely to render confession unreliable

What happens if D is absent for hearing in magistrates court? (4.1/Trial procedure)

Must proceed in their absence + on assumption of not guilty plea (if not pled) providing it would not be contrary to interests of justice (with exceptions)

When will there be additional requirements before proceeding in absence of D? (4.1/Trial procedure)

- If brought by summons/requisition + D not at last hearing in person: must be satisfied it was served on D reasonable time before hearing
- If hearing adjourned: must be saisfied D had reasonable notice of when/where adjourned
- Acceptable reason for D's absence if presented for D's representative, considering reasons, reliability, date at which reasons became known + action taken
- If U18: may proceed but not required to

What is the rule regarding proceedings being commenced either by summons or written charge and requesition and the D failing to answer it to attend court? (4.1/Trial Procedure)

If he has not previously answered the summons or requisition, then proof must be given to the court that the summons/requisition was served on the accused a reasonable time before the hearing.

If he has previously answered the summons or requisition, such proof is not required.

If the accused was not present when the case was adjourned, what must the court do? (4.1/Trial Procedure)

An adjournment notice must be served, providing reasonable notice of when and where the hearing is to be held.

The Court is not required to inquire into the reasons for the D’s failure to attend before deciding whether to proceed.

What are some examples of involuntary absence cases? (4.1/Trial Procedure)

R (Davies) v Solihull Justices [2008] EWHC - After his case had been called on, it was discovered that D had been excluded from the court building by the security staff because of disorderly behaviour. Underhill J ruled that D’s misbehaviour did not justify excluding him from his own trial nor was he voluntarily absent since he had wanted to be in court but was prevented by the exclusion

R (R) v Thames Youth Court [2002] EWHC 1670 (Admin) - D committed an offence on the way to court and was then arrested so was unable to attend court - Pitchford J said this was not to be regarded as D having excluded himself deliberately

If M court decides to proceed to trial without adult D, what else can they do? (4.1/Trial procedure)

- Must give reasons
- May adjourn
- May issue arrest warrant

What happens if D is absent for hearing in Crown Court? (4.2/Jury Trial Procedure)

Trial should not continue without D + judge ought not to deal with matters which constitute part of trial in absence of D's counsel; discretion to continue exercised exceptionally + without considering seriousness of offence

Where is it not necessary to have D present at commencement of trial on indictment to plead? (4.2/Jury Trial procedure)

- D’s misbehaviour - has been deliberately disruptive + is sent down by judge (usually warned first + may be able to return later)
- D voluntarily absents from trial
- Accused is too ill to attend
- Following death of the accused

What does misbehaviour of the accused mean? (4.2 Jury Trial Procedure)

If accused behaves in an unruly manner (e.g. shouting out, or trying to intimidate jurors or witnesses) and thus makes it impracticable for the hearing to continue, the judge may order that the accused be removed from court and the trial proceed in the accused’s absence (Lee Kun [1916] 1 KB 337)

Judge would warn accused before taking step of barring from court and may be appropriate to permit a return to the dock at a later stage if the accused undertakes not to repeat the behaviour

If D is absent beyond his control, when can CC proceed trial without him? (4.1/Trial procedure)

Only if D consents/case can be fully presented without unfairness

What happens if 1 or multiple Ds is ill in CC? (4.1/Trial procedure)

Trial may continue without D if evidence does not impact on trial/if D's counsel can properly argue their case

What are some examples of voluntary absence cases in the CC? (4.2/Jury Trial Procedure)

·      If the accused, having been present for commencement of the trial, later goes voluntarily absent, either by escaping from custody or failing to surrender having been bailed by court for period of an adjournment, judge has discretion to complete the trial in their absence (Jones (Robert Edward Wynyard) (No. 2) [1972] 2 All ER 731)

o   Simms [2016] EWCA Crim 9 - was held that the same principle applied where D had voluntarily rendered himself incapable of participation in the trial through intoxication (or through a self-induced drug psychosis

o   Whether to proceed is a matter for the judge’s discretion – CA identified questions relevant to the exercise of this discretion in Amrouchi [2007] EWCA Crim 3019: including whether (a) D had deliberately absented himself and (b) there were reasonable steps that could be taken to secure his attendance

What is the CC’s approach to cases where D is sick? (4.2/Jury Trial Procedure)

· If the accused’s absence from court is for reasons beyond the accused’s control, the trial may not continue in their absence unless the accused consents, or if the case can be fully presented, including the accused’s own written evidence, without unfairness

o   Should the accused become ill during the course of the trial, the judge must either adjourn the case until accused recovers or discharge the jury (Howson (1981) 74 Cr App R 172)

o   If there are several accused and one falls sick, the trial may continue in that accused’s absence provided that the evidence and proceedings relate entirely to the cases against the co-accused and have no possible bearing on the absent accused’s case.

What does D need to be to participate in CC proceedings? (4.1/Trial procedure)

- Physically present
- Well enough

What happens if there is abuse of process in magistrates? (4.1/Trial procedure)

Court has discretion to refuse to try case + acquit D

What is the test for abuse of process in the magistrates? (4.1/Trial procedure)

- D could not have a fair trial, considering fiarness only

When can delay amount to abuse of process in magistrates? (4.1/Trial procedure)

- Deliberate delay can be shown (usually)
- If not deliberate, if D applies to magistrates on grounds there has been inordinate/unscionable delay due to P's inefficiency + prejudice to D from delay is proved/inferred
- Unlikely to succeed if delay partly due to D

When will delay likely not provide a good reason to stay proceedings? (4.1/Trial Procedure)

Where the delay is in part attributable to the accused’s own conduct (e.g. failure to disclose existence of a W in timely fashion)

What happens if there is an abuse of process in CC? (4.1/Trial procedure)

Will stay proceedings + not start again except in exceptional circumstances (exception to rule that D must be tried after indictment preferred)

What is the test for abuse of process in CC? (4.1/Trial procedure)

- D could not have fair trial (considering fairness only)
- Offends court's sense of justice + proprietary to try D in circumstances (balancing sense of justice + proprietary/public interest in trying D)

(considered separately + same evidence may result in abuse of process on both limbs)

What will the court consider under the first category of the abuse of process cases? (4.2/Jury Trial Procedure)

• The focus of the court when considering an application under the first category is on the fairness of the trial.

• It follows that misconduct by the prosecution per se will not lead to a stay under the first category unless the effect of that misconduct is to make it impossible for the accused to have a fair trial

What will the court consider under the second category of abuse of process cases? (4.2/Jury Trial Procedure)

When considering whether to stay a case under the second category, the judge should balance the integrity of the criminal justice system against the public interest in ensuring that those accused of offences are tried.

Unlike the first category, the second category requires that the court undertakes a balancing exercise

What is the Court’s approach to unrepresented defendants? (4.2/Jury Trial Procedure)

If an accused is not legally represented, the court will, as a matter of practice, seek to give the accused such assistance in conducting their defence as may seem appropriate

Alternatively, where the accused dismisses counsel and / or solicitors during the course of the trial (or they withdraw) and the accused remains entitled to public funding, judge may grant an adjournment for the accused to be represented but there is no requirement to do so

Can a jury convict D of an alternative lesser offence + when? (4.1/Trial procedure)

Yes - judge will raise if lesser offence clearly raised by evidence (+ does not require proof of specific offence if required by main offence) so it would be interests of justice to do so (even if neither side want it)

What power does the judge have in the Crown Court regarding directing the jury as to alternative offences? (4.2/Crown Court Trial)

The judge is not obliged to direct the jury on finding the defendant guilty of an alternative offence, even if it is available to them. However, if the possibility that the accused is guilty of a lesser offence has been obviously raised in evidence, the judge should, in the interests of justice, leave the alternative to the jury in the interests of justice, even if the prosecution and defence counsel do not wish for it to be done

How does a jury convict multiple Ds? (4.1/Trial procedure)

Entitled to find some guilty/some not even fi joint enterprise is alleged

Can magistrates convict D of lesser offence + when? (4.1/Trial procedure)

No except if:
- offence was one charged against them
- certain RTAs
- taking motor vehicle without consent (alt to aggravated vehicle taking)

What happens if D is charged with alternative offences + pleads not guilty to both? (4.1/Trial procedure)

Magistrates should not convict of both

Can magistrates convict of an alternative offence where there is insufficient evidence to prove the main offence? (4.1/Trial Procedure)

They have no power to find an accused not guilty as charged but guilty of a lesser offence.

They may only do so for certain driving offences and aggravated vehicle taking

When does court have to give reasons? (4.1/Trial procedure)

Only if court convicts D/grants hospital order - must be sufficient but do not have to be stated formally

When can court issue a warrant D for non-attendance at trial if adjourned in absence? (4.1/Trial procedure)

- Offence punishable with imprisonment, or
- Court convicted D + considers imposing disqualification, or
- IF ISSUED: summons/requisition was served on accused a reasonable time before trial, or D was present at last hearing where current date was set, or
- D is already on bail

What can be done if D appears to be evading service of summons/requisition + offence is indictable? (4.1/Trial procedure)

Open to prosecution to start proceedings again by seeking an arrest warrant at any time

What can be raised in closing speeches? (4.1/Trial procedure)

- Comment on D or co-accused failing to give evidence (P/D)
- Comment on defence statement/difference from evidence at trial (P)
- Hypotheses going beyond D's account, if supported by evidence given (D)

What should not be raised in closing speeches? (4.1/Trial procedure)

- Any facts/matters not raised in evidence
- D's spouse's failure to give evidence (P)
- Consequences for police of being found to have lied (P)

What is the duty of judge in closing speeches + what can they do? (4.1/Trial procedure)

- To ensure D's case is given accurately, even if that requires intervention in D's case
- May also comment on failure of co-accused to give evidence, if they consider it unfair

Under what provision can written statements be read out in court? (4.1/Trial procedure)

s9 CJA

What does CJA s9 make provision for? (4.1/Trial procedure)

Written statements to be read out in court without oral evidence given

When may a written statement be read out in court without oral evidence? (4.1/Trial procedure)

- signed by person who made it
- contains declaration it is truth to best of knowledge/belief + statement made knowing he would be liable to P if he stated anything he did not believe to be true

What is the procedure to read out written statement? (4.1/Trial procedure)

- Copy of statement served on all parties
- P may object by serving counter notice within 5 business days of service (but failure does not prevent adducing inconsistent evidence)
- Statement written in full or summarised at court's discretion, admissible as if oral evidence

What provision deals with formal admissions? (4.1/Trial procedure)

s10 CJA

What does s10 CJA deal with? (4.1/Trial procedure)

Formal admissions

What is a formal admission? (4.1/Trial procedure)

A fact of which oral evidence maybe given that is admitted by either party + so taken as conclusive evidence of fact for trial + any related proceedigns (Including appeal/retrial)

What is the procedure for making a formal admission? (4.1/Trial procedure)

- May be made before/at proceedings, and written + signed if not in court
- If made by indivdual D, signed by D + approved by lawyer before/at trial
- If made on behalf of individual D, made + signed by lawyer
- If made by body corporate, signed by director/manager/secretary/etc

When can a formal admission be withdrawn? (4.1/Trial procedure)

In any proceedings in which it is used, with the leave of the court

What can D do at the close of P's case? (4.1/Trial procedure)

Make submission of no case to answer

When can D make submission of no case to answer? (4.1/Trial procedure)

At close of P's case

When can court acquit/direct jury to acquit on the basis of a submission of no case to answer? (4.1/Trial procedure)

- There is no evidence (not taking into account evidence not called/defences not made out)
- Evidence taken at its highest is insufficient for any reaosnable court/properly directed jury to convict

What must P allow before deciding submission? (4.1/Trial procedure)

Must give P opportunity to make representations why bench should not dismiss case, unless magistates rule before hearing

What cannot be argued in a submission of no case to answer? (4.1/Trial procedure)

- That it is unsafe for jury to convict

What should court consider in considering whether evidence is insufficient in submission of no case to answer? (4.1/Trial procedure)

Quality + reliability of P evidence (considering strengths/weaknesses, inconsistencies, implausible W evidence)

How should court treat the possibility W is lying in dealing with submission of no case to answer? (4.1/Trial procedure)

Left to jury, except where inconsistencies are so great that any reaosnable tribunal would be forced to conclude it would not be proper for case to proceed on evidence of that witness alone

How should court treat unrepresented D in Crown Court? (4.1/Trial procedure)

- Assist but not go as far as cross examining witnesses on behalf
- Tell D of right to give evidence and/or call witnesses
- Warn D of consequences of not giving evidence
- If lawyers withdraw mid trial, may grant adjournment so D can apply for representation (considering ie. complexity)

How should court proceed with cross-examination with unrepresented D? (4.1/Trial procedure)

May appoint advocate to cross-examine:
- adult witnesses in sexual offences
- child witnesses in violent/sexual offences
- anyone else where direction made on basis it would diminish quality of evidence + not contrary to interests of justice to make order

What summaries must be included in summing up?(4.1/Trial procedure)

- Summary of relevant law
- Summary of evidence

What should be included in the summary of relevant law? (4.1/Trial procedure)

- Discussion of burden + standard of proof
- Discussion on role of judge + jury as deciders of law + fact
- Separate counts/Ds should be considered separately
- Ingredients of offence (particuarly those in issue, not lengthy)
- adverse inferences that may be drawn against D
- law behind any defences D relies on

What should be included in summary of evidence? (4.1/Trial procedure)

- Summing up of facts involved + evidence given, with some form of analysis + may comment on view of evidence if not excessive/unfair to D + clear that judge's own views to be disregarded
- Summarise D case + give separate overview including evidence given by D

How should D consider evidence given/not given by D? (4.1/Trial procedure)

- If D gave evidence + had interview: may compare
- If D did not give evidence + had interview: decide how to fairly + conveniently place interview before jury
- If neither: remind of counsel's speech
- If no comment inerview: may draw adverse inference only if D could reasonably have been expected to mention facts he now relies on, only sensible explanation for failure is he had no answer/none that would stand up to scrutiny + P case is so strong it clearly calls for an answer

When is a majority verdict acceptable? (4.1/Trial procedure)

If jury have not returned verdict after time determined by judge (over 2hr10mins + whatever is considered reasonable given nature + complexity of case

What is the minimum number of jurors and what happens if it goes below this? (4.1/Trial procedure)

9 - if more jurors discharged, jury must be discharged

How can jury ask question? (4.1/Trial procedure)

Passing note to judge via jury bailiffs

How can judge deal with jury question? (4.1/Trial procedure)

- If does not concern trial: may deal with it without counsel
- If concerns trial: counsel should be consulted before making decision
- If jury note contains jury deliberations, not shared with anyone

What is an acceptable majority? (4.1/Trial procedure)

11 - 1 (12)
10 - 2 (12)
10 - 1 (11)
9 - 1 (10)
9 (unanimous only)

If D is found guilty by majority, what must be done? (4.1/Trial procedure)

Foreman should state size of majority in open court

What happens if foreman does not state size of majority after conviction? (4.1/Trial procedure)

Conviction will be quashed

If D found not guilty, what details about votes must be revealead? (4.1/Trial procedure)

Nothing

What happens if jury cannot agree? (4.1/Trial procedure)

Discharged, D not acquitted, P can seek retrial

What happens after second jury cannot agree? (4.1/Trial procedure)

CPS policy is not to seek another re-trial, but may be permitted in exceptional cases (ie. jury tampered with/cogent new evidence)

What may be the consequence of a third re-trial? (4.1/Trial procedure)

May amount to abuse of process, depending on
- period + reasons for delay
- results of previous trials
- seriousness of trials
- extent to which case against D has changed since earlier trials

What happens if D fails to identify natters in issue between P/D/significantly diverges from identified issues? (4.1/Trial procedure)

At trial, court may:
- impose sanctions on defence
- limit duration of stage of proceedings
- limit questioning of witnesses

When does a party have to call evidence to be given in court?

If account is disputed by defence