CLP - Trial

What is the role of the court clerk in the CC?

- not legally qualified and never gives legal advice

- responsible for many of the duties relating to selecting and taking verdicts from the jury and for arraigning defendants.

Which judges hear cases in the CC?

- circuit judges

- recorders

- High Court judges for most serious CC cases

How should District Judges be addressed?

Judge

How should a circuit judge in Crown Court be addressed?

Your Honour

How should a High Court judge be addressed?

my Lord/my Lady

How should magistrates be addressed?

Sir/Madam

Your Worships

How should any judge in the Central Criminal Court be addressed?

Your Honour

What is the role of the judge as tribunal of law?

- makes rulings about the admissibility of evidence (in the absence of the jury).

- directs the jury about matters of law (e.g. explaining what has to be proved and who by).

- can direct a jury to find a defendant not guilty (for example following a successful submission of no case to answer)

- cannot direct a jury to find a defendant guilty.

What is the jury's role as tribunal of fact?

- sole decider/ arbiter of facts.

- decides whether the defendant is guilty.

- will determine whether, and to what extent, the evidence is to be believed

- will decide whether to draw inferences from the evidence or from a defendant's silence.

What is the order of the first half of a CC trial? (up til defence opening speech)

(1) Legal arguments

(2) Jury selection and swearing in the jury

(3) Judge's preliminary instructions to the jury

(4) Prosecution opening speech

(5) Defence identify matters in issue

(6) Prosecution evidence

(7) Conclusion of the prosecution case

(8) Submission of no case to answer

(9) Right to give evidence and adverse inferences

When will legal arguments be heard (in CC)?

- sometimes in pre-trial hearings

- mostly in the first few days of the trial

- can be with or without the jury

e.g., applications relating to bad character, hearsay applications

What is the jury selection process?

- 12 jurors are required to start a trial

- a jury panel of 16 will go into the court, and 12 will be chosen at random from the panel

- D is told they have the right to object to any juror

- each juror swears the oath or affirms

What preliminary instruction will the judge give the jury?

- the evidence presented in court is what they must use to decide the case

- they must not discuss the evidence with anyone else who may have a view but will not have heard the evidence

- matters of law are for the judge alone

- if any legal applications are made during the trial the jury will be asked to leave court

What will the prosecution opening speech cover?

- focused on the facts and issues in the case

- what the areas of dispute are

- why the prosecution says the defendant is guilty of the offence or offences

- will tell the jury what counts the defendant faces.

- will avoid the use of overly emotive language.

What input can the defence have on the P opening speech?

- judge can invite the defence to confirm or clarify what the issues in the case are following P's opening speech

When would the defence question a prosecution witness?

- if there is some disagreement with the contents of that witness's statement.

What is the process for calling a P witness?

- P calls the prosecution witness

- P takes them through evidence in chief

- D's legal rep then cross-examines W

What will happen if D does not dispute P witness' testimony?

- if the defence agrees, P can read the statement in court without needing to call them to give live evidence

- before it is read out, judge will explain to the jury that this is agreed evidence

How will D's record of taped interview (ROTI) with the police be used in court?

- will be produced in an edited form

- jury will get a copy of the ROTI

- prosecution will read the interview out in court.

How will a no comment interview be shown in court?

- P will often present agreed written admissions stating what the defendant was asked about and that the defendant replied 'no comment' to all questions put

- allows the jury to consider whether it would be proper to draw an inference from the defendant's silence.

What is a submission of no case to answer? (aka half time submission)

- on D's application or on judge's own intiative, judge may direct jury to acquit on the grounds that prosecution evidence is insufficient

- must give P a chance to make representations

- from Galbraith

What is the test for there being no case to answer? (2 limbs)

1. there is no evidence that a crime has been committed by the defendant

OR

2. there is some evidence before the court, but it is tenuous or inconsistent in nature.

- Judge must consider whether the evidence, when taken at its highest, is such that the jury could not properly convict upon it.

What is the order of the second half of a CC trial? (from defence opening speech)

(10) Defence opening speech

(11) Defence evidence

(12) Legal discussions

(13) Closing speeches

(14) Judge's summing up

(15) Jury bailiffs sworn and jury retire

(16) Verdict

What happens if D does not wish to give evidence?

- judge will ask D's legal rep if D will give evidence

- if yes, case will proceed

- if no, judge will ask whether D has been advised that the jury may draw adverse influences from their omission to give evidence

- if legal rep says D has been advised, case can proceed

- if D has not been advised, case will adjourn while they are given this advice

- will be recorded in writing that D has received advice and has decided freely not to testify.

When is it possible for D's legal rep to make a defence speech?

- at the end of prosecution case

- only if one or more defence witnesses, other than the defendant in person, will be called to give factual evidence (as opposed to character evidence)

What is the process of hearing evidence from D and other defence witnesses? Who will cross-examine them?

- D advocate will call D and take them through the evidence in chief

- D will be cross-examined by other Ds and the prosecution

- any other defence witnesses will be examined in chief, cross-examined

What will happen once all of the evidence has been heard from witnesses?

- jury will be sent out while prosecution, defence and judge consider which matters of law should be raised in the judge's summing up

- submissions can be made on all the legal matters in the trial

- convenient way of ensuring that any problems are ironed out prior to speeches and summing up and, therefore, that an appeal is less likely in the event of a conviction.

When will P be allowed to make a closing speech?

- where the defendant is legally represented

- or if D has called at least one defence witness (other than the defendant in person) to give factual evidence

- or where the court otherwise so permits.

When will D be allowed to make a closing speech?

- always entitled to make a closing speech

- follows that of the prosecution.

If D raises a defence, what standard of proof must they show?

no standard of proof (eg beyond the balance of probabilities)

just has to raise a defence

What is the overview of what the judge will include in their summing up?

- will deal with the necessary legal directions, then sum up the P and D cases

- P and D advocates should be aware of any errors so that corrections can be made

What specific issues will the judge mention in their summing up?

- burden and standard of proof

- the ingredients of the offence and any defences

- a written route to verdict

- other legal directions relevant to the case

- electing a foreman

- need for unanimity (if more than 2 hrs passes, jury will be invited back and told a majority verdict could be accepted)

- separate considerations of counts and defendants if needed

- a reminder of the issues;

- a brief summary of the evidence relating to each issue

- a balanced account of the points raised by the parties

Can the judge offer the jury a lesser offence to find D guilty of in their summing up?

Yes, judge can also offer alternative, lesser offence that the jury can find D guilty of

What will happen when the jury retires?

- jury bailiffs (court ushers sworn in as jury bailiffs) swear to keep the jury 'in some private and convenient place' and not to allow anyone to speak to them, or to speak to them themselves without the leave of the court other than to ask them if they have reached a verdict.

- jury will go to their retirement room

- they are entitled to ask questions of the judge by giving a note to the jury bailiff

- judge may give further directions during retirement.

When can a majority verdict by the jury be accepted?

- 10-2 or 11-1

- a majority verdict can be given by a jury that has deliberated for 2 hrs and 10 minutes

- MV will only be accepted if judge decides that jury has had such a period of time for deliberation as befits the nature and complexity of the case

- for long and complex cases, many days could be reasonable

How will the jury deliver their verdict?

- jury will inform court bailiff of their verdict

- foreman will stand and deliver their verdict

- possible for them to convict D guilty for a lesser offence given as an alternative e.g., less serious form of GBH

What will happen if D is found guilty?

- D may be sentenced immediately

- or court will be adjourned if reports are required eg pre-sentence report or a psychiatric report

What will happen if D is found not guilty?

- D is free to leave

Who is not a competent witness?

competent = able to give evidence, that's all

- defendant (not competent for the prosecution)

- children who cannot understand questions and give comprehensible answers

- those with a disability who cannot understand questions and give comprehensible answers

- deaf/speech impaired witnesses as long if they are not able to understand the solemnity of taking the oath or affirmation - but can give evidence using sign language etc.

Is a defendant competent and compellable?

- Competent to testify in his own defence

- but not compellable for either side

- but jury can draw adverse inference if defendant does not speak in their own defence

Can defendant ever give evidence for prosecution case (one exception)?

- D can become a witness for P if they are pleading guilty

- there may still be a trial despite guilty plea

- if there is still some evidence to be resolved to decide on what basis they are pleading guilty

Is defendant's spouse a competent witness?

yes, they can give evidence for either side

When can a spouse be compelled to give evidence?

cannot be compelled by the defence

can be compelled to give evidence by the prosecution in certain cases

When can the prosecution compel a spouse to give evidence?

if the offence charged is:

- domestic violence to that spouse

- violence to child under 16

- sexual offence against a child under 16

- attempts, conspiring, aiding and abetting any of the above

- but cannot be compelled if they are a co-defendant to their spouse

What will happen if a witness compelled to give evidence refuses to do so?

- If they refuse to attend, they can be arrested and held in contempt of court.

When will witnesses be allowed to give their opinions?

- can given their opinion in relation to commonplace occurrences about which the witness's perception appears relevant and proper (e.g., recognition of voice and handwriting)

- or if they are an expert

- also often allowed to give the opinion that someone seemed drunk

Does the jury have to accept expert witness testimony as correct?

- jury is not obliged to accept expert evidence, even if it is not contradicted

- unless it is a case where the expert's opinion and all the other evidence leads inevitably to only one conclusion - in which case, the jury should be directed to accept the opinion as correct.

What types of privilege apply in this context?

- against self-incrimination

- legal professional privilege (litigation privilege and advice privilege)

What is a witness' right to avoid self-incrimination?

- courts will uphold a witness's right to refuse to answer questions or disclose documents if to do so would make them incriminate themselves

- but they cannot claim privilege to protect another person, even a spouse

- and only means that they cannot themselves share that information - any investigatory body is entitled to consider how else to access the information

- can only be invoked in criminal, not civil, context

- does not apply to Ds, who can suffer from an adverse influence

What is privileged under legal professional privilege?

- All direct communication between lawyer and client is privileged

- third-party communications generated during, or in contemplation of, litigation if likely to attract litigation privilege

- if not in contemplation of litigation, documents supplied to a lawyer from a third party for more general advice is usually not protected by privilege.

- client has a right to waive privilege

Who does not need to give an oath in order to give evidence?

- children and those of 'unsound mind'

- can still give evidence, as long as they 'have sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath'

What is the punishment for refusing to swear the oath?

contempt of court.

What is the main purpose of examination in chief? (ie what is the lawyer trying to introduce)

- The advocate is trying to introduce all the details from the witness statement into evidence

- Otherwise that advocate will not be able to use those points in their closing statement

What are leading questions?

- Closed questions designed to lead to one answer, even if they're not aggressive

- basically anything other than very open questions (did you notice anything vs did you notice a mark on his face?)

Are leading questions allowed on examination in chief?

- the questions should be non-leading (e.g., how did you travel to the party vs did you take your blue car to the party)

- evidence from a leading question may be considered to be inadmissible or to carry less weight.

- however, leading may be allowed for issues not in dispute, or for a hostile witness

- the same rules apply when this side re-examines a witness after cross-examination

When can a witness statement made out of court be used in court?

1. if the contents of the statement are agreed by both sides

2. if the witness needs to refresh their memory from the statement (permissible if this will allow a 'significantly better' recollection)

3. in cross-examination regarding a previous inconsistent statement

What is a previous inconsistent statement?

- when a witness is asked about their statement on the stand and they either can't commit to agreeing with their statement (eg I don't remember) or they disagree

- the lawyer will then seek to adduce a previous inconsistent statement as evidence (the part of their witness statement)

What is a hostile witness?

- if a witness gives an account on the stand that is inconsistent with their witness statement

- eg victims of domestic violence who want to retract their complaint under pressure

- Judge will forms the view the witness is not "desirous of telling the truth", and the party calling that witness may apply to the Judge to treat them as hostile

What additional steps can be taken with regards a hostile witness?

- the party who called them can cross-examine them and use their original witness statement against them

Will the court accept as evidence the fact that the witness repeated an allegation out of court?

general rule: evidence that the witness made earlier consistent allegations or statements is not admissible

- witness should make the statement themselves in court instead

- but there are some exceptions to this

What is a res gestae?

- A statement made by the victim as an immediate reaction to a crime being committed

- this is admissible

- on the grounds that the person would not have had any time to conjure up a false response

e.g., 'what are your hands doing there you pervert!?'

Are statements made in police interviews admissible?

- responses made to the police by a suspect in police interviews are admissible

- whether they are confessions or denials

Are complaints about an allegation admissible?

- common law principle: the quicker that someone complains about an allegation, the more likely their complaint is to be reliable

- to be admissible, the complainer has to testify that the earlier complaint was made and was true

What is the advocate trying to achieve in cross-examination?

- will put statements to the witness e.g., 'you never actually saw the defendant with the knife, did you?'

- if they have never put this statement to the witness, they cannot rely on it in their closing speech

- also trying to dispute as much of their testimony as possible, as ignoring a piece of information counts as tacit agreement

What kind of questioning can be used in cross-examination?

- advocates can ask leading questions

- in fact, if a witness' account is not challenged on a point, that point is deemed to have been tacitly accepted

- regarding facts and any issues with the witness' character

Can witness statements taken by the police be admitted?

- generally classified as hearsay

- can become admissible however if the witness giving live evidence departs materially from the statement (via contradicting their evidence or adding something)

- in this case, the original statement can be produced in order to challenge the discrepancy

What are the limits on cross-examining a witness?

- permittable for a witness to be upset, vilified or annoyed as a result of examination

- but upsetting a witness without good reason is not acceptable

- also cannot ask about victim's general promiscuity or other sexual behaviour without leave of the court

What is the rule of finality to collateral matters?

- prevents trials from splintering into multiple insignificant disputes about collateral credibility related matters

- once a witness has given evidence, the other side cannot then go onto adduce more evidence to dispute their credibility

- however, the courts are more lenient in allowing evidence to be admitted on the 'collateral' issue of a witness being 'biased or partial'

Can a witness sit in court before they are due to give evidence?

No, unless they are the defendant or giving expert evidence

SUMMARY TRIAL below this card

n/a

Who presides over summary trials?

- A 'bench' of at least two, usually three, lay magistrates (justices of the peace)

- Or a single District Judge

What is the role of the authorised court officer? (aka legal advisor)

- Provides assistance to justices of the peace with relevant law and procedure

- Takes no part in deciding the verdict

- Must be present during trials judged by lay magistrates

Are authorised court officers required for summary trials with a single District Judge?

No

What are the steps in a magistrates' court trial procedure?

1. Legal arguments heard before trial starts

2. Prosecution opening speech

3. Defence identify matters in issue

4. Prosecution evidence

5. Conclusion of the prosecution case

6. Submission of no case to answer

7. Right to give evidence and adverse inferences

8. Defence evidence

9. Prosecution closing speech

10. Defence closing speech

11. Legal advice

12. Magistrates/district judge retire to consider verdict

13. Verdict

At what point in the trial will magistrates determine matters of admissibility?

- Magistrates have discretion on when to determine questions of admissibility

- Can rule on s.78 application when it arises or hear all evidence before ruling

What occurs during the prosecution opening speech?

- Prosecution summarizes their case

- Identifies relevant law

- Outlines facts

- Indicates matters likely to be in dispute

Who asks the defence to identify matters in issue?

- Magistrates or District Judge may ask defence to identify what is in dispute

- Particularly helpful as there's no requirement for a defence statement in summary trials

What is a submission of no case to answer?

- Court may acquit on defendant's application or own initiative

- Based on insufficient prosecution evidence for any reasonable court to properly convict

What must the defendant be informed of regarding their right to give evidence?

- The right to give evidence

- The potential effect of not giving evidence at all

- The potential effect of refusing to answer a question while giving evidence

Will the prosecution always be entitled to make a closing speech?

No, only if:

- D is represented

- or D has introduced evidence other than their own, regardless of representation

Is D entitled to make a closing speech?

- Always entitled to make a closing speech

- Occurs after the prosecution closing speech (if there is one)

What happens during the legal advice stage?

- Legal adviser advises magistrates in open court on matters of law

- Rarely needed when a District Judge is hearing the case

- Any legal advice given outside open court is provisional and must be repeated in open court

How is the verdict announced and what happens in case of disagreement?

- Verdict announced in open court

- Majority view prevails among three lay magistrates

- If only two magistrates heard the case and are evenly divided, case is adjourned for rehearing before a new bench

What is the duty when delivering a guilty verdict?

Magistrates/District Judge must give sufficient reasons to explain the decision

What is the consequence of non-compliance with the court's directions? (eg filing evidence after deadline)

- The court has discretionary powers to impose sanctions or decide the course of action

- If the late submission of a notice adversely affects the fairness of the trial or prejudices the opposing party, the court can refuse to allow the evidence (eg prosecutor might not have adequate time to prepare)

- can also impose costs sanctions