Trials and Trial Procedures PDF

THE COLLEGE OF LEGAL PRACTICE SOLICITORS LEGAL KNOWLEDGE 9.5 TRIALS AND TRIAL PROCEDURES Relevant SRA SQE Assessment specification Functioning Legal Knowledge: Trial procedure in the magistrates’ court and Crown Court: stages of a criminal trial, including submission of no case to answer...

THE COLLEGE OF LEGAL PRACTICE SOLICITORS LEGAL KNOWLEDGE 9.5 TRIALS AND TRIAL PROCEDURES Relevant SRA SQE Assessment specification Functioning Legal Knowledge: Trial procedure in the magistrates’ court and Crown Court: stages of a criminal trial, including submission of no case to answer modes of address and court room etiquette, and solicitor’s duty to the court. 9.5.1 Introduction This topic explores the structure of the trial and identifies the key rules that apply during the trial itself. This will require some understanding of the basic methods of proof. Understanding the trial process will also require some understanding of matters of etiquette and the ethical duties of solicitors. There are some important differences between a Crown Court trial and a trial in the magistrates’ court, but the overall process is very similar. 9.5.2 General concepts There are some key concepts that apply to all courts. 9.5.2.1 Methods of proof – evidence Trials rely on proof of disputed facts. These disputed facts can be proven by one of three types of evidence: Testimony: This is spoken evidence of witnesses and includes evidence given by police officers and expert witnesses. In some cases, testimony, if agreed, may be read out in court under the Criminal Justice Act 1967 s 9. This form of evidence is still witness testimony. Testimony can be pre-recorded in some circumstances or given via live link under “special measures directions”. Documentary evidence: This includes any evidence contained in writing, on a computer or in an audio or visual recording, if it is not given under oath as part of a trial. Real evidence: This includes objects, items or other things that “speak for themselves”, including any exhibits to be produced at trial, such as a murder weapon. It also includes the limited entitlement of the tribunal of fact to be taken out of court to observe something like the scene of a crime. 9.5.2.2 Formal admissions – agreed facts Facts can be formally admitted under the Criminal Justice Act 1967 s 10, either before the trial in writing or orally at trial by a legal representative. This can save a lot of time. A formal admission is treated as conclusive on the matter, meaning it cannot be subject to further proof. For example, in a driving whilst disqualified trial, a defendant admitting formally that they were disqualified at the material time. That fact is now an agreed fact and, therefore, the trial would focus upon the fact in issue namely whether or not they were driving. College of Legal Practice Ltd (UK ID 11734212) © Copyright 2024 (used under licence from the copyright owner) 37  Criminal Practice 9.5.2.3 Tribunals of law and fact The roles during the trial are separated between decisions about law and decisions about fact. Tribunal of law The tribunal of law makes decisions on legal matters, including the meaning of the law, the procedures to be followed, the admissibility of evidence and any sentence to be imposed following conviction. In the Crown Court, the judge is the tribunal of law. In the magistrates’ court, the lay magistrates or district judge are the tribunal of law. Lay magistrates have a justices’ clerk or court clerk (technically referred to as an “authorised court officer” to provide legal advice but the decision on points of law is made by the magistrates themselves. Tribunal of fact The tribunal of fact makes decisions on the factual issues in the case. In the Crown Court, the jury is the tribunal of law. In the magistrates’ court, the lay magistrates or district judge are the tribunal of fact as well as the tribunal of law. This means they make decisions, as a tribunal of law, on the admissibility of evidence to themselves, as a tribunal of fact 9.5.2.4 Burden of proof The prosecution bears the burden of proving their case and, therefore, it will call its evidence first. The basic stages of a criminal trial are: Stage Magistrates’ court Crown Court 1. Prosecution opening speech Jury is sworn 2. Prosecution calls evidence Prosecution opening speech 3. Defence makes a submission of no case to Prosecution calls evidence answer, if appropriate 4. Defence call evidence (if they wish) Defence makes a submission of no case to answer, if appropriate 5. Speeches Defence call evidence (if they wish) 6. Magistrates deliberate Speeches 7. Verdict with reasons Summing up to jury 8. Jury retires to deliberate 9. Verdict College of Legal Practice Ltd (UK ID 11734212) © Copyright 2024 (used under licence from the copyright owner) 38  THE COLLEGE OF LEGAL PRACTICE SOLICITORS LEGAL KNOWLEDGE 9.5.2.5 Modes of address Who Mode of address Magistrates (individually) “Sir” or “Madam” Magistrates (bench) “Your worships” or directed to the Chair as “Sir” or “Madam” District judge “Judge” Crown Court judge “Your Honour” High Court judge “My Lord” or “My Lady” or “ Your Lordship” or “ Your Ladyship” A solicitor “My friend” A barrister “My learned friend” 9.5.3 Crown Court trial 9.5.3.1 Start of the trial The defendant should be present throughout the trial, although there are exceptions. The trial judge may dispense with the presence of the accused where they have acted in a way that obstructs the course of proceedings, are too ill to attend or have decided not to attend and to have the case proceed in their absence. Before the trial starts, a jury of 12 people should be selected. A group of 16 or more people will be brought into the court room and called in a random order to determine whether they are suitable. If the prosecution is unhappy with a particular juror, they can ask that individual juror to “stand by”. No reason need be given by the prosecution. There are Attorney General’s guidelines on the exercise of this right. This power is now exercised in only exceptional cases. It seems this power would only be exercised on national security or terrorism grounds or in ordinary cases where a juror is obviously unsuitable and the defence agree. Either the prosecution or the defence can challenge jurors “for cause”. This could be, for instance, because the juror is ineligible or disqualified or where there are reasonable grounds to suspect the juror may be biased. 9.5.3.2 Prosecution case The prosecution always starts in criminal cases and must establish their case before the defendant comes under any obligation to do so. The opening speech sets out the case to the jury and establishes the prosecution’s interpretation (theory) of the case. However, it should not be emotive or sensational. The prosecution should make clear to the jury that they bear the burden of proof and that the case needs to be proven beyond reasonable doubt. The prosecution will then outline the key facts, identify any points of law and explain which witnesses and what evidence will be called during the trial. If there are any remaining doubts about the admissibility of evidence (most should have been resolved before the trial), facts shown by that evidence should not be mentioned. College of Legal Practice Ltd (UK ID 11734212) © Copyright 2024 (used under licence from the copyright owner) 39  Criminal Practice The prosecution must then call all witnesses that will be relied upon to prove the case. The process for each witness is: The witness is sworn or allowed to affirm (give a non-religious promise to tell the truth). The witness is then “examined-in-chief” by the prosecution. This involves the witness giving their account in their own words as a response to non-leading questions from the prosecution advocate. The witness is then cross-examined by the defence advocate or advocates, if there is more than one defendant. This involves being challenged or invited to make relevant concessions by each other party. Cross-examination by defendants takes place in the order they are listed on the indictment. The witness might then be re-examined by the prosecution. Re-examination should be restricted to matters that arose as fresh issues in cross-examination. The purpose of re- examination is to get the prosecution’s account of new matters, not to allow a repeat of what has been testified already. The prosecution will also submit some evidence, that of witnesses not giving controversial evidence on written statements under Criminal Justice Act 1967 s 9. These will be read out loud at court but not subject to cross-examination. Once the prosecution has called all its evidence, the defence may (but is not obliged to) submit that the evidence does not disclose a case to answer in respect of any or all of the counts on the indictment. This is known as a submission of “no case to answer”. The test to be applied is named after the leading case and is called “a Galbraith submission”. The application is in the absence of the jury. There are two limbs to the test: 1. There is no evidence that the crime alleged has been committed by the defendant. For example, there may not have been evidence of an essential element of the offence. In a trial alleging handling stolen goods, where there is no evidence the goods found in the possession of the defendant were stolen. 2. Where the prosecution case, taken at its highest, is such that a jury properly directed could not properly convict on it. It might be weak or vague. This inevitably involves the judge considering the quality and reliability of the evidence. However, it should not be an assessment of whether a witness is lying, because a question of credibility is generally a matter for the jury. The prosecution has an opportunity to answer the defence submission of no case to answer. If the submission succeeds, the judge should direct the jury to acquit the defendant on the relevant count. This will usually mean that the jury should be directed to acquit the defendant. However, if there are still outstanding counts and the submission did not succeed in relation to all matters on the indictment, the trial will continue on the outstanding counts. 9.5.3.3 Defence case If the submission of no case to answer fails, it will be each defendant’s opportunity to present their case. They do so in the order their names appear on the indictment. The defence may make an opening speech if they are calling evidence as to the facts of the case other than or in addition to the defendant. They may outline the anticipated defence case and criticise the evidence already given for the prosecution. In practice, this is rarely done. College of Legal Practice Ltd (UK ID 11734212) © Copyright 2024 (used under licence from the copyright owner) 40  THE COLLEGE OF LEGAL PRACTICE SOLICITORS LEGAL KNOWLEDGE The defendant does not have to give evidence themselves but, if they do not, they may be subject to an adverse inference from their failure to testify under Criminal Justice and Public Order Act 1994 s 35. If the jury are invited (at the end of trial), they may draw an adverse inference. If the jury believes that the only sensible explanation for the accused’s failure to testify is that they had no credible defence or one that would not stand up to cross-examination, then it would be open to them to hold that failure against the defendant. A defendant cannot be found guilty on the basis of an adverse inference alone. If the defendant does give evidence, their testimony should be given before that of any other witnesses. All witnesses, including the defendant, give evidence in the same sequence as prosecution witnesses: examined-in-chief for the defendant cross-examined by each other defendant and by the prosecution, and re-examined for the defendant. 9.5.3.4 End of the case Once their case is closed, the general rule is that neither party can reopen their case and call more witnesses. 9.5.3.5 Speeches and summing up Once all parties’ cases have been closed, each party has the chance to make a closing speech to the jury, setting out their case. The speech is intended to be persuasive and to convince the jury to reach a verdict in the party’s favour. The prosecution speaks first and then the defendants in the order that they appear on the indictment. A closing speech should be limited to matters called in evidence or matters that can be inferred from such evidence. In other words, the closing speech should not invite the jury to reach conclusions that cannot be reasonably supported by the evidence called at trial. The judge will then sum up the case to the jury. This will involve reminding the jury of the cases advanced by each party and reminding them of the law they should apply. The judge will give directions on key points of evidence, including directing juries how to treat difficult or controversial matters, such as character evidence or identification evidence. The judge will explain the law to the jury and may issue directions on how to determine key legal concepts. The judge must remind the jury who bears the burden of proof and to what standard each issue in the case must be proved. The judge can also give the jury guidance on factual issues. The judge should ensure that it is clear to the jury that factual matters are for them to decide. The judge should also ensure that their explanation of the facts is fair and balanced. 9.5.3.6 Verdict and outcome Once the summing up has finished, the jury retire to consider their verdict(s). The jury should reach a unanimous verdict on each count on the indictment. If the jurors cannot reach a unanimous verdict, the judge may call them back into court after they have deliberated for at least two hours (or for such longer time as is reasonable given the length and complexity of the case). College of Legal Practice Ltd (UK ID 11734212) © Copyright 2024 (used under licence from the copyright owner) 41  Criminal Practice At that point, the judge will ask them whether they can reach a unanimous verdict. If they state that they cannot, the judge may ask them to continue to try to reach a unanimous verdict but direct them that a majority verdict will be accepted if they cannot. A majority verdict means that 10 jurors agree on a verdict of either guilty or not guilty. If there are fewer than 12 jurors, verdicts of 10:1 or 9:1 will be accepted. If the jury still cannot agree, the judge can discharge them. This is not an acquittal, so the prosecution may decide to retry the defendant at a later date. If the defendant is acquitted on all counts, they are discharged from the dock and are free to go. If the jury convicts the defendant on any of the charges, the defendant will be sentenced by the judge (either immediately or following an adjournment for the preparation of a pre-sentence report). 9.5.4 Magistrates’ court trial 9.5.4.1 Process of trial The process of trial follows the same sequence as in the Crown Court but with certain differences. At the close of the prosecution case, of their own motion or on an application by the defence, the magistrates may acquit on the ground that the prosecution case is insufficient for any reasonable court properly to convict. The basis of the decision is “no reasonable court could properly convict”. The prosecution has a right to reply to the defence submissions. Established practice is that the defence have no right to make an opening speech prior to calling their evidence. Once the case has been concluded, the magistrates should retire to consider their verdict. The magistrates are under a duty to reach a verdict. If they cannot decide that the defendant is guilty, they should enter a verdict of not guilty. They should reach a majority decision. If the bench is evenly numbered (a bench of two magistrates is valid), then there is no casting vote; if there is not a majority, the case will be adjourned for a rehearing. The bench should not identify whether it is a unanimous or majority decision. However, if the defendant is convicted, the bench should give sufficient reasons to explain its decision. This does not have to be a fully reasoned judgment of the type a professional judge might produce; it simply needs to be enough so that the defendant understands why they were convicted. The magistrates’ court has no power to enter an alternative verdict to the offence alleged on the charge or information. The justices’ legal advisors (as they are known) are legal professionals whose duties are to provide legal advice on matters of substantive law, evidence, procedure or sentencing to lay magistrates. This can occur either when requested by the magistrates or to bring such matters to their attention when it seems appropriate on the facts of the case. Advice by the legal advisor should be given publicly, and the parties should have the chance to respond to what is advised. The legal advisor should not retire with the magistrates when they retire to consider their verdict but may attend them to give advice. Any advice given out of court College of Legal Practice Ltd (UK ID 11734212) © Copyright 2024 (used under licence from the copyright owner) 42  THE COLLEGE OF LEGAL PRACTICE SOLICITORS LEGAL KNOWLEDGE is provisional and should be repeated to the legal representatives in open court. The magistrates are not obliged to follow their advice on the law. The legal advisor should not be part of the decisions of fact, although (like a Crown Court judge) they can remind the magistrates of the legal evidence and clarify the legal issues. 9.5.5 Solicitors’ duty to the court A solicitor’s duty to the court is defined by the professional responsibilities as a solicitor and solicitors are expected to comply with their code of conduct. There are also obligations imposed on legal representatives under the Criminal Procedure Rules 2020. 9.5.5.1 Solicitors Regulation Authority Principles and Code of Conduct Pursuant to the Solicitors Regulation Authority (SRA) Principles, a defence solicitor must act in the best interests of their client but also in a way that upholds the proper administration of justice and public confidence in the profession. Where there is a conflict between these principles, those that relate to public interest and confidence override those to the client. Key elements of the SRA Code of Conduct for Solicitors, RELs and RFLs applicable to trials include but are not limited to: Duty Example of a failure Not to mislead the court. See factual example below. Not to misuse evidence or tamper with Calling a witness whose evidence you know evidence, generate false evidence or to be untrue, paying a witness to give false persuade witnesses to give false evidence. evidence or telling a witness what to say. To put forward properly arguable assertions. Advancing submissions which you know, as a matter of law, cannot be sustainable. Not to waste the court’s time. Calling irrelevant witnesses. To draw the court’s attention to relevant and Failing to draw the court’s attention to material law. relevant and material law. Not acting where the solicitor has a conflict of Representing multiple defendants whose interest (or significant risk of such). accounts of the incident undermine the defence of the other defendants represented by the same solicitor. A solicitor must also not be complicit in a direct lie to the court by a witness. If the solicitor knows that the client has misled the court on a material fact, the solicitor should invite the client to correct it or should cease to act. If a client admits the offence to the solicitor but wishes to pursue a not-guilty plea, this does not necessarily require the solicitor to cease to act. It is still possible to represent the client, to test the prosecution case and to require the prosecution to prove their case. But what the solicitor cannot do is advance any positive case that would contradict the client’s admission because they would be placing something before the court they know to be untrue. In these circumstances, the solicitor could test the strength of the prosecution case by cross-examining the witness, but could not make a positive assertion of innocence. Nor could the solicitor call any witness to testify as to the defendant’s innocence. College of Legal Practice Ltd (UK ID 11734212) © Copyright 2024 (used under licence from the copyright owner) 43  Criminal Practice For example, the defendant is charged with burglary. They tell their solicitor that they did it. The issue is identification. The evidence putting the defendant at the scene comes from one identifying witness. The solicitor, under cross-examination, could test the quality of the circumstances of observation evidence, light, distance, fleeting glimpse etc. The solicitor could not put to the witness that they were mistaken, nor could the solicitor call the client to say that they were elsewhere or call an alibi witness. 9.5.5.2 Duties under the Criminal Procedure Rules 2020 Court personnel, the parties and their legal representatives all have duties to comply with the overriding objective of the Criminal Procedure Rules 2020 to deal with cases justly and, in particular, by: acquitting the innocent and convicting the guilty respecting the interests of witnesses dealing with the case efficiently and expeditiously, and ensuring that appropriate information is available to the court. Parties and their legal representatives are also under a duty to assist the court in active case management. Legal representatives have a duty to assist with: early identification of real issues and the needs of witnesses clarifying who must do what, setting an early timetable and complying with directions avoiding delay, and co-operating with other parties. Legal representatives should co-operate as much as they can with the defendant’s right to a fair trial and their entitlement to test and challenge the real issues in the case. Defendants and their legal representatives should not be unreasonably obstructive in this regard. Failure to comply with these obligations can lead to wasted costs orders. 9.5.6 Summary of key principles Trials in the magistrates’ court and Crown Court have essentially the same structure. The prosecution must establish their case first. If they do not establish it strongly enough, the defence may apply for the case to be dismissed. If that application fails, the defence can call their evidence. Crown Court trials are determined by the jury and the judge provides guidance on the law. The decision about guilt is to be made by the jury. Magistrates’ court trials are determined by the magistrates, who make decisions on fact and law, but they are advised by the justices’ legal advisor. College of Legal Practice Ltd (UK ID 11734212) © Copyright 2024 (used under licence from the copyright owner) 44