Crown Court Trial .docx

*[SUBJECT 2 -- Crown Court trial]* *[What about proceedings in the absence of the accused? ]* [The Principle --] an accused should be present throughout the trial. The attendance of the accused at the Crown Court is secured by the magistrates remanding in custody or on bail when the case is sent f...

*[SUBJECT 2 -- Crown Court trial]* *[What about proceedings in the absence of the accused? ]* [The Principle --] an accused should be present throughout the trial. The attendance of the accused at the Crown Court is secured by the magistrates remanding in custody or on bail when the case is sent for trial. If, having been bailed, the accused fails to attend on the day notified as the day of trial, a bench warrant may be issued forthwith for the accused's arrest under the BA 1976, s. 7. - The accused must be present at the commencement of a trial on indictment in order to plead. - The implication of this rule is that the accused must not only be physically present, but must have the proceedings interpreted if that is necessary. - The court must not proceed if the accused is absent, unless the court is satisfied that the accused has waived the right to attend and the trial will still be fair despite the accused's absence. - the judge ought not to deal with matters which constitute part of the trial proceedings in the absence of counsel for the defence *[What are the exceptions to the principle? ]* a. as a result of the misbehaviour of the accused (see D15.86); b. where his absence is voluntary; c. when the accused is too ill to attend; d. following the death of the accused. *[The principles for a trial judge to apply when dealing with an absent accused? ]* a. An accused has, in general, a right to be present at the trial and a right to be legally represented. b. Those rights can be waived, separately or together, wholly or in part, by the accused: - they may be wholly waived if, knowing or having the means of knowledge as to when and where the trial is to take place, the accused is deliberately and voluntarily absent and/or withdraws instructions from legal representatives; - they may be waived in part if, being present and represented at the outset, the accused, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws instructions from legal representatives. a. The trial judge has a discretion as to whether a trial should take place or continue in the absence of an accused and/or the accused's legal representatives. The judge is required to warn the defendant at the PTPH of the risk of the trial continuing in the defendant's absence. b. That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the accused is unrepresented. c. In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular: - the nature and circumstances of the accused's behaviour in being absent from the trial or disrupting its continuation, and, in particular, whether the behaviour was deliberate, voluntary and such as plainly waived the right to appear; - whether an adjournment might result in the accused being caught or attending voluntarily and/or not disrupting the proceedings; - the likely length of such an adjournment; - whether the accused, though absent, is, or wishes to be, legally represented at the trial or has waived the right to representation; - the extent to which the absent accused's legal representatives are able to present the defence; - the extent of the disadvantage to the accused in not being able to give his or her account of events, having regard to the nature of the evidence; - the risk of the jury reaching an improper conclusion about the absence of the accused (but see (f) below); - the seriousness of the offence to the accused, victim and public; - the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates; - the effect of delay on the memories of witnesses; - where there is more than one accused and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present. d. If the judge decides that a trial should take place or continue in the absence of an unrepresented accused, the judge must ensure that the trial is as fair as the circumstances permit. In particular, reasonable steps must be taken, both during the giving of evidence and in the summing-up, to expose weaknesses in the prosecution case and to make such points on behalf of the accused as the evidence permits. In summing up the judge must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case. The need for caution before proceeding to try a defendant in his absence. It is entirely proper that the focus in determining whether to proceed should be upon the accused's right to attend the trial and be represented at it. Two reservations about the above conditions -- e. The seriousness of the offence should not be considered --- the principles would be the same whether the offence was serious or minor; and f. Even if the accused absconded voluntarily, it would generally be desirable that the accused should be represented. It was emphasised that it was a step to be taken with 'great caution and close regard to the overall fairness of the proceedings'. It was a step that should only be taken when it was 'unavoidable'. Where D's defence involved the retraction of admissions made to the police in interview, his presence at his trial was of importance. - Expedition should not be a reason to continue a trial in the absence of the accused. In a multi-handed case where one defendant was voluntarily absent, the impact of evidence relevant to that defendant being adduced in the trial of others had to be considered, and the possibility of severing the absent defendant to avoid prejudice to others considered. Proper direction should be given to the jury when proceeding without the accused. *[What about misbehaviour of the accused? ]* - If the accused behaves in an unruly fashion in the dock, e.g., by shouting out, or is apparently trying to intimidate jurors or witnesses, and thereby makes it impracticable for the hearing to continue, the judge may order that the accused be removed from court and that the trial proceed in the accused's absence. - The judge would warn the accused before taking the extreme step of barring from court, and it may be appropriate to permit a return to the dock at a later stage if the accused undertakes not to repeat the unruly behaviour. Unruly behaviour may also be deterred by the threat of holding the accused to be guilty of a contempt in the face of the court (see B14.89). - An accused should not be handcuffed in the dock unless there is a real risk of violence or escape and there is no alternative to visible restraint. - If the accused refuses to be brought into court from the cells, the trial judge is entitled to proceed without the accused where the right to be present has been unequivocally waived. - It may often be better to allow time to cool off, and to continue the trial in the accused's presence. *[What about voluntary absence of the accused? ]* - If the accused, having been present for the commencement of his trial, later goes voluntarily absent, either by escaping from custody or by failing to surrender having been bailed by the court for the period of an adjournment, the judge has a discretion to complete the trial in the accused's absence. - sentence may also be passed in the accused's absence - Same principle applied where D had voluntarily rendered himself incapable of participation in the trial through intoxication - Court of Appeal identified questions relevant to the exercise of that discretion including whether (a) D had deliberately absented himself and (b) there were reasonable steps that could be taken to secure his attendance. - A trial can proceed in the absence of an accused who has not been arraigned, however, the court was first required to be satisfied that the accused had waived the right to be arraigned. If the indictment had been amended after the accused had absconded, it could not necessarily be assumed that the accused had waived the right to be arraigned on that amended indictment, although this also depended on a fact-specific analysis. - The alternative is to discharge the jury from giving a verdict, thus allowing a retrial to take place before a different jury once the accused's presence has been secured. This exercise of discretion involved more than an assessment of the adequacy of the evidence to explain the accused's absence, and required an assessment of fairness. - Whether or not the court proceeds in the accused's absence, the judge may and almost certainly will issue a warrant for the accused's arrest under the BA 1976, s. 7. *[What if the defendants sick? ]* - Absence from court is for reasons beyond the accused's control, the trial **may** not continue in his or her absence unless the accused consents - or if the case can be fully presented, including the accused's own written evidence, without unfairness. - Thus, should the accused become ill during the course of the trial, the judge must either adjourn the case until the accused recovers or discharge the jury. - If the court is not satisfied with the adequacy of the evidence of illness it should provide an opportunity for further evidence to be provided before continuing the trial in the acccused's absence, and must always have regard to fairness. Possible exceptions -- - 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. - Where D's voluntary ingestion of drugs makes his participation in the trial impossible, the situation may well be otherwise (Simms \[2016\] EWCA Crim 9 ). - Where D had a heart condition preventing his attendance but it was considered that his counsel were able to argue his case effectively and he was given the opportunity to give written evidence. It is not enough for an accused to be physically present if too unwell to pay proper attention to the proceedings and give instructions to legal representatives. Correct to continue with the trial of an elderly hospitalised defendant by reference to factors such as the long delays in bringing the case to trial; the many adjournments which had already been granted; the interests of witnesses, including the complainant; and, crucially, whether the appellant's counsel was fully instructed and able to represent his interests without him being present. *[How will the court treat an unrepresented accused? ]* - If an accused is not legally represented, the court will, as a matter of practice, seek to give the accused such assistance in conducting his or her defence as may seem appropriate. - Alternatively, where the accused dismisses counsel and/or solicitors during the course of the trial (or they withdraw during trial) and the accused remains entitled to public funding, the judge may grant an adjournment for the accused to be represented. (it\'s not compulsory). *[What is the accused's right to call evidence? ]* - The accused should always be told by the court at the end of the prosecution case of the right to give evidence in person, to call witnesses in his or her defence (whether or not the accused goes into the witness-box), or to stay silent and call no evidence. Failure to give the accused this information may lead to any conviction being quashed. - It is particularly important that an unrepresented accused should be informed of the inferences which may be drawn from a failure to give evidence. "You have heard the evidence against you. Now is the time for you to make your defence. You may give evidence on oath, and be cross-examined like any other witness. If you do not give evidence or, having been sworn, without good cause refuse to answer any question, the jury may draw such inferences as appear proper. That means they may hold it against you. You may also call any witness or witnesses whom you have arranged to attend court. Afterwards you may also, if you wish, address the jury by arguing your case from the dock. But you cannot at that stage give evidence. Do you now intend to give evidence?" *[What are the restrictions? ]* - The role of the trial judge in asking questions of witnesses on behalf of an unrepresented defendant in that defendant's interests. Beyond that, there are limitations on what such a defendant can do personally. - Unrepresented defendants are prohibited from cross-examining complainants and child witnesses in trials for certain offences. The courts also have the power to prohibit cross-examination of witnesses by unrepresented defendants if satisfied that the circumstances of the witness and the case merit it, and that a prohibition would not be contrary to the interests of justice. There are provisions for the appointment of representatives to conduct cross-examinations on behalf of unrepresented defendants. - s\. 38 advocate did not have a free-ranging remit to conduct the trial on D's behalf, can do cross examinations -- might include a pre-trial application to admit bad character evidence or for disclosure. *[The power to stay proceedings for abuse of process? ]* Once an indictment has been preferred, the accused must be tried unless: a. the indictment is defective (e.g., it contains counts that are improperly joined and so does not comply with CrimPR 3.29(4): see Supplement, R3.29); b. a 'plea in bar' applies (such as autrefois acquit); c. a 'nolle prosequi' is entered by the A-G to stop the proceedings; or d. the indictment discloses no offence that the court has jurisdiction to try (e.g., the offence is based on a statutory provision that was not in force at the date the accused allegedly did the act complained of). To this list must be added cases where it would amount to an abuse of process to continue with the prosecution. The usual effect of a stay is that the case against the accused is stopped permanently. It would only be in exceptional cases that there would be any basis for lifting a stay that has been imposed. - His lordship decided that, in the circumstances prevailing at the time of the application for a voluntary bill (including, in particular, the fact that there were other allegations to be tried), the interests of justice no longer required that the proceedings be stayed. *[What is abuse of process? ]* - 'constitutional principle which underlies the jurisdiction to stay proceedings is that the courts have the power and the duty to protect the law by protecting its own purposes and functions'. - Courts have 'an inescapable duty to secure fair treatment for those who come or are brought before them'. \[T\]here are two categories of case in which the court has the power to stay proceedings for abuse of process. These are, first, where the court concludes that the accused can no longer receive a fair hearing; and, second, where it would otherwise be unfair to try the accused or, put another way, where a stay is necessary to protect the integrity of the criminal justice system. The first limb focuses on the trial process and where the court concludes that the accused would not receive a fair hearing it will stay the proceedings; no balancing exercise is required. The second limb concerns the integrity of the criminal justice system and applies where the Court considers that the accused should not be standing trial at all, irrespective of the potential fairness of the trial itself. Staying a proceeding is permanent and a remedy of last resort. 'cases in which it may be unfair to try the accused (the second category of case) will include, but are not confined to, those cases where there has been bad faith, unlawfulness or executive misconduct'. There are thus two main categories of abuse of process: a. cases where the court concludes that the accused cannot receive a fair trial; b. cases where the court concludes that it would be unfair for the accused to be tried. The former focuses on the trial process; the latter is applicable where the accused should not be standing trial at all. - Two limbs need to be considered separately and are legally distinct. Considerations for the first limb may not be valid for the second and vice versa. - Second requires a balancing exercise the first does not. - Failures on the part of the prosecution are not of themselves ordinarily relevant to the first limb of abuse of process. The key issue is whether the consequences of those failures are such as to deprive the defendant of a fair trial. Thus, 'for the purposes of the limb one argument, one has to assess the prejudicial effect of that conduct on the fairness of the trial'. - Judge does not have 'any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene.' - It is not necessary for an accused who raises category 2 abuse to prove misconduct that goes beyond what establishes the category 1 abuse. In those exceptional cases where abuse of process is raised, it will often be abuse in one category only; where both categories are raised, there may be a distinction between the matters relied on in each category. However, as a matter of principle, there is 'no reason why the same misconduct cannot provide the basis for a finding of both categories of abuse'. It follows that, 'depending on the nature and degree of the abusive conduct, the same acts and/or omissions may both render a fair trial impossible (thus, category 1) and make it an affront to the conscience of the court to prosecute at all (and thus, category 2)'. *[What is an opening speech? ]* - 'The purpose of the prosecution opening is to help the jury understand what the case concerns, not necessarily to present a detailed account of all the prosecution evidence due to be introduced'. - Prosecution to identify the issues in the case as well as providing a concise outline of the evidence which the prosecution propose to call. In the same way, pursuant to CrimPR 25.9(2)(c), the judge may invite defence counsel concisely to identify what is in issue, in order to assist the jury, following the prosecution opening. *[What about the use of emotive language? ]* - Prosecuting counsel's role is that of a minister of justice who ought not to strive over-zealously for a conviction. - Therefore avoid using emotive language liable to prejudice the jury against the accused. - The use of emotive language was criticised by his lordship as being 'not in good taste or strictly in accordance with the character which prosecuting counsel should always bear in mind'. *[What about submissions as to law in opening speeches? ]* - The presumption should be that an opening address by counsel for the Crown should not address the law, save in cases of real complication and difficulty where counsel believes and the trial judge agrees that the jury may be assisted by a brief and well-focused submission. - If counsel deals with a matter of law, it is usual to remind the jury that matters of law are ultimately for the judge, and that counsel's remarks should therefore be disregarded insofar as they differ from the judge's directions. (Can be given at the beginning or at an appropriate stage). *[What is the general rule in relation to witnesses on the back of an indictment? ]* - Having opened the case, prosecuting counsel calls witnesses and reads out any written statements admissible under exceptions to the rule against hearsay. - Although counsel has a discretion not to call witnesses whose statements have been served as part of the prosecution case (sometimes still referred to as witnesses 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. - P Counsel should not use discretion for some oblique motive. *[What about written statements? ]* - In trials on indictment, it applies where the prosecution wish to adduce evidence additional to that served in accordance with the procedure when the case was sent, or by way of a notice of additional evidence thereafter (for which, see also CrimPD I, paras. 3B.1 to 3B.5: see Supplement, CPD.3B). - The party proposing to tender the statement in evidence must serve a copy of it on each of the other parties. If one of those parties serves notice on the party wishing to use the statement that he or she objects to it going into evidence, the statement cannot be read at the trial. - Serving notice time limit subject to special circumstances is 5 business days. In effect, s. 9 statements are admissible only if all the parties agree. Even if a statement is admissible under s. 9, the court may require that the maker attend to give evidence, e.g., where the defence dispute the contents of the statement but failed to object through an oversight. *[What about agreed facts? ]* - As an alternative to the reading of witness statements, facts derived from such witness statements or otherwise may be presented as agreed evidence. These facts, which are admitted by all parties to be true, are presented pursuant to the CJA 1967, s. 10. - Admissions should be reduced to writing, and provided to the jury providing they are relevant to the issues that they are to determine and do not contain inadmissible material *[How to object to prosecution evidence? ]* Where the defence intend to object to the admissibility of prosecution evidence disclosed on the statements relied on by the prosecution (hereafter referred to as 'disputed evidence'), the standard procedure is as follows -- - The defence should notify the prosecution of their objection to its introduction in evidence. - Defence counsel should inform prosecution counsel of the objection before the latter opens the prosecution case to the jury. In the opening, prosecution counsel therefore makes no mention of the disputed evidence. - At the point at which the admissibility falls to be considered, the jury will withdraw to allow the matter to be resolved by the judge alone. - If the admissibility of the disputed evidence raises collateral factual issues as to how it was obtained, it may be necessary to adduce evidence about those facts before the judge in the absence of the jury. This is known as a trial 'on the voir dire' because the witnesses testify on a special form of oath. - Prosecution and defence are entitled to call witnesses at this stage. However, their evidence (whether in chief or in cross-examination) should be limited to matters relevant to the admissibility of the disputed evidence. - Whether or not there has been evidence on the voir dire, the parties make their representations to the judge about the admissibility of the disputed evidence. - The judge then announces findings on any factual issues arising on the voir dire and rules on whether the disputed evidence should be admitted or not, in the light of the findings of fact, the relevant law on admissibility of evidence and any discretionary power to exclude material which is legally admissible. - The jury return to court. If the judge ruled against the disputed evidence, the jury will know nothing about it (as to the editing of evidence consequent on such a ruling, see D16.51). If it is ruled admissible, the defence are still entitled to cross-examine on matters they raised on the voir dire, although at this stage the cross-examination goes to the weight, if any, that the jury should attach to the disputed evidence, not to its admissibility. - The judge retains the discretion to review a determination on admissibility at a later stage. *[What does editing of prosecution evidence mean? ]* - Where the 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. - That the best way for such editing to take place is for the evidence to appear 'unvarnished' in the committal statements. Counsel can then confer at trial to ensure that 'the editing is done in the right way and to the right degree'. If necessary the judge can also play a part in the process. Three options -- - A composite statement can be prepared to replace several earlier statements made by a witness (para. 16A.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 (para. 16A.3(b)). The circumstances in which this is the preferred option are set out at para. 16A.4. - 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. Following note should be attached to the foot of the frontispiece or index to the bundle when served: '*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)*'. *[What about the defence case? ]* - Defence Counsel is only entitled to make an opening speech, before defence evidence. Only entitled to an opening speech at this stage if they are going o call evidence of fact in addition to the evidence of the defendant. If the only evidence to be called is of the defendant's or a defendant plus a character witness, there can be no defence opening speech. Unless the judge invites defence counsel concisely to identify what is in issue, in order to assist the jury, following the prosecution opening. - while acknowledging that the defence are not entitled to address the jury, indicates that the advantages of inviting the defence to do so are such that 'usually the court should extend such an invitation' - In the opening speech the counsel can outline the defence or criticise the prosecution evidence heard so far. Speech should not make assertions of fact that are not to be proved by evidence that is to come. - 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. - Most defence witnesses are governed by the same rules and considerations as prosecution witnesses. - Additional limitation is the duty of the court to stop evidence being given where it is irrelevant to the issues in the case (Brown (Milton) \[1998\] 2 Cr App R 364), or where the court is being used as a political sounding board *[What is the order of the defence evidence?]* - The accused should normally be called before any other defence witnesses. - The court has a discretion to depart from this usual rule (PACE 1984, s. 79), for example to allow a witness whose evidence was not substantially disputed to testify out of the normal order if circumstances made that convenient. - Psychiatric expert evidence in relation to an accused ought to follow on after the prosecution's evidence of the offence and any evidence from the accused. - Character witnesses must always be called after the accused unless there are other witnesses as to the facts. - Where the only witness to the facts of the case called by the defence is the person charged, he shall be called as a witness immediately after the close of the evidence for the prosecution. - A witness waiting to give evidence must not wait inside the courtroom, unless that witness is a party or an expert witness. *[How to take the decision to call the accused? ]* - The decision whether to testify or not is for the accused. 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 There is no right, even in cases to which the DVCVA 2004, s. 6, applies (see B1.90), for an accused to give evidence twice. - Failure to advise the accused properly about the advisability of testifying may, in appropriate circumstances, constitute grounds for the Court of Appeal to decide that a conviction is unsafe and unsatisfactory. *[Does the judge have a discretion to recall a witness? ]* - The discretion of a court to require a witness to give live evidence 'on its own initiative'. In fact, it has long been recognised that the judge has a discretion to call a witness whom neither the prosecution nor defence have chosen to call. - The power should be sparingly exercised (Roberts (1984) 80 Cr App R 89), and used only where it is necessary in the interests of justice. NO CASE TO ANSWER IN UNIT 3 NOTES. *[What about discussion of the relevant law? ]* - Prior to summing up, or the first part of the summing up if it is split (as advocated in CrimPD VI, para. 26K16, see D18.21), 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. 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. - Should take place before speeches, which are required to be 'consistent with' directions already provided to the jury in a split summing-up. - Only in very exceptional circumstances would it be appropriate for the court to discuss the law with counsel after concluding the summing-up and before the jury's retirement. *[Does counsel need to assist the court? ]* - Counsel is under a duty to bring all relevant authorities to the court's attention even if some are unfavourable to counsel's own argument. Further, any procedural irregularity must be brought to the attention of the court during the hearing and not reserved to be raised on appeal. - The duties outlined so far apply equally to prosecution and defence counsel. *[What is the order of the speeches? ]* - The order of speeches, and make clear that the prosecution speech is made first. *[Are there any limitations on the content? ]* - Neither counsel in a closing speech should allude to alleged facts or other matters which have not been the subject of evidence. - Neither should the jury be invited to add a recommendation of mercy to their verdict should it be one of guilty. - The practice of advocates making personal criticism of their opponents in closing addresses; this was a practice that 'judges must ensure ceases immediately and not be repeated in any case'. *[What is the role of the prosecution? ]* - Prosecutors must remember their role as a minister of justice in relation to the terms in which they make their speeches. - Privy Council upheld an appeal based upon an improper closing speech by the prosecutor, which contained emotive and unjustified comments on the defence case, insinuations of additional unadduced incriminating material and a number of passages where the prosecutor improperly vouched for the soundness of the prosecution's case. - Prosecuting counsel should not comment to the jury on the potentially serious consequences to police officers of their evidence being disbelieved, even where a police officer has raised the matter in evidence. - Equally, prosecution counsel is not entitled to abandon or attack the credit of the prosecution's own witness (unless leave has been given to treat the witness as hostile) and counsel should not invite inferences contrary to the evidence that has been called. - It was made clear that the prosecution should regard the whole of a witness's evidence as reliable before calling that person as a witness. - The prosecution should not comment on the failure of the accused's spouse or civil partner to give evidence. However, prosecution counsel is entitled to comment on the failure of the accused to answer questions in interview, or to give evidence (see F20.41). Similarly, pursuant to the CPIA 1996, s. 11(5), the prosecution may make 'such comment as appears appropriate', providing that the court grants leave, about the failure of the accused to serve a defence statement, or as to divergence between that statement and the accused's evidence. *[What is the role of the defence counsel? ]* - In delivering the closing speech defence counsel is not confined to putting forward the client's version of events. Hypotheses may be advanced which go beyond this version of events, always provided that other evidence has been called which supports such hypotheses. - Defence counsel should not refer to the likely consequences of a conviction in terms of punishment since sentencing is no concern of the jury. - Defence counsel is obviously entitled to comment upon his or her own client's failure to give evidence. Counsel is also, in a case where a co-accused runs a defence which conflicts with that of the accused he or she represents, entitled to comment upon the co-accused's not having entered the witness-box (Wickham (1971) 55 Cr App R 199). The judge has no power to prevent or restrict such comment, but, if it seems to the judge to have been unfair, may comment upon it personally. - The duties of defence counsel in presenting the client's case, and the duty of a trial judge to ensure that the defence case is accurately put before the jury even if this requires intervention in defence counsel's speech. *[What are the preliminary and general matters when summing up? ]* - The trial judge's summing up conventionally falls into two parts, namely, a direction on the law (see D18.25) and a summary of the evidence. - Encourages the court to split the summing up so as to address the law before speeches and then turn to the facts after speeches have been made. The use of written directions is also strongly advocated. - The Court of Appeal has stressed the desirability of using the Crown Court Compendium as an invaluable resource in terms of guidance and draft directions. - The Court of Appeal has also discouraged courts from commencing a summing up, or addressing an important aspect of one, at a late hour or just before the weekend. - Where the judge does not provide the summing-up (or parts of it) in writing, both counsel should take as full a note of the summing-up as is possible. This is especially important where any sentence is likely to be short. A good note may avoid delay caused by waiting for a transcript and thus expedite an appeal. *[What are the duties of counsel in relation to summing up? ]* - Prosecuting counsel is under a duty to attend carefully to the summing-up and draw any possible errors (whether of fact or law) to the judge's attention at its close. - The court is entitled to rely on such assistance. - It is the duty of both prosecution and defence counsel to alert the judge to evidence on which the jury could find provocation, before the summing up, and, if the judge agrees, remind him or her that statute requires the judge to leave the remaining issues to the jury. - Defence counsel is under a duty to request a good character direction, if the accused was entitled to one, rather than making complaint later if one is not given. - There is a duty on all counsel to focus during the summing up on what is being said and to raise any material error or omission at the time. - Dismissal of an appeal would not be automatic where defence counsel had failed to correct an error. *[What are written directions? ]* - The judge should provide the jury with a written list of questions (a route to verdict), written legal directions and such other material as will assist them in their task, for example, setting out the legal issues which must be proved in order to reach their verdict. - Before providing the jury with the written route to verdict, the judge should submit them to counsel, so that they can make suggestions and can base their closing speeches upon the issues raised in the proposed directions. While failure by counsel to comment on such draft directions is not necessarily fatal to an appeal based on any misdirection, such failure is likely to affect the weight accorded to the deficiency. - Cases where written directions would not be required are very few, and that their provision should be the 'norm'. - Crown Court Compendium, ch. 1-4, describes the argument in favour of giving written directions as 'overwhelming' and gives further guidance on their use. - The jury should then be given the written list at the start of the summing up, so that the judge can take them through the directions one by one, as each point is dealt with. *[What are standard directions? ]* - A summing up should be 'custom-built to make the jury understand their task in relation to a particular case'. Which legal directions are necessary will therefore vary and what is set out here is a survey of the standard directions which may be required. - The Court of Appeal continues to encourage the use of these standard forms through which directions on frequently recurring matters of law may be given. - Judges should adapt them to the circumstances of the particular case. - As the Crown Court Compendium provides guidance and suggested formats, rather than prescribed text for legal directions, it follows that the case law as to the appropriate form of directions on legal topics remains important. - It needs to be said as clearly as possible, is not and never can be by itself a ground of appeal. The Judicial Studies Board does not issue directions or orders to judges. It is a forum within which they can compare their practices. The so-called model directions which are in any event about to be supplemented by additional sample directions are no more than that. They are examples which may be helpful to judges in framing a direction which is tailored to the individual case. It is fundamentally to misunderstand the nature of the Judicial Studies Board and the materials provided by it to treat any of its materials as carrying any force of law at all. *[Any directions as to the functions of the judge and jury? ]* - At the beginning of the summing up, the judge must direct the jury as to their respective roles and hence the different status of the two parts of the summing-up: that part relating to law, in relation to which the judge is the final arbiter, and that relating to fact (summarising the evidence before them). - Therefore, if, in the course of the summing up, the judge expresses a certain view as to the facts or as to the significance of a piece of evidence but the jury disagree; or mention of certain evidence which they consider important is omitted; or, conversely, something which they consider unimportant is stressed --- in all such eventualities, it is the jury's view which matters. *[What is the Burden and Standard of Proof in summing up? ]* - Every summing-up must contain at least a direction to the jury as to the burden and standard of proof, and as to the ingredients of the offence or offences which the jury are called upon to consider. Thus, if the judge fails properly to direct the jury as to the prosecution a. having the burden of proof and b. having to discharge that burden beyond reasonable doubt or so that the jury are sure, a conviction is liable to be quashed Judges were warned of the risks of deviating from this core direction, even in answer to a question from a jury as to the meaning of 'sure'. - In cases involving injuries to a small child it was essential that a very clear direction should be given as to the burden of proof. This was to counteract any tendency on the part of the jury, albeit subconsciously, to succumb to their emotions. Where the statute under which an accused was being prosecuted imposed an evidential burden upon the accused, good sense dictated that in appropriate circumstances the court should seek agreement that this burden had been discharged so that only the prosecution's burden needed to be left to the jury. *[Do separate counts and defendants warrant specific consideration? ]* - Where there is more than one count on the indictment, the jury should be directed to give separate consideration to each of them. - The judge should also summarise the evidence on a count-by-count rather than a witness-by-witness basis. - Where an accused faced multiple counts, the jury should be given clear direction as to whether, and if so in what way, evidence relating to one count was admissible in relation to consideration of any other. Where there was no cross-admissibility between counts this had to be made clear. - Where there is more than one accused on trial, the jury should be directed to consider the case for and against each separately. - Allegation of joint participation warrants a direction of that kind. *[Any direction as to the ingredients of the offence? ]* - It was insufficient for the judge simply to spell out the issue in the case. He was required to direct the jury as to the elements of the offence charged. - Second approach -- the function of a summing-up was not to give a jury a general dissertation on some aspect of the criminal law, but to isolate the issues for the jury's consideration. - Where an ingredient of an offence is a question of factual interpretation, it is incumbent on the judge to remind the jury of those facts relied on by the defence as arguing against that ingredient being established. "A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts". *[What is the failure to answer questions or give evidence? ]* - CJPO 1994, ss. 34 and 35, the jury are entitled to draw such inferences as they deem appropriate from the failure of the defendant to answer questions in interview (s. 34) or failure to give evidence (s. 35). - Although not expected to identify every fact in relation to which an inference may be drawn, the judge is required to identify significant facts relied on and to remind the jury of any reason for silence advanced by the accused. Limitations to the requirement of a direction -- - No inferences should be drawn from the silence in interview of an accused who does not give or call evidence, and has not advanced a positive case. - Where an accused's account had changed between interview and trial, this was a matter on which comment could be made without the need for a formal direction under s. 34. - The direction given in relation to a failure to answer questions must address not only the reason advanced for the failure, but any other factors relevant to the jury's assessment of it, e.g., the age of the accused. - Where such inferences should not be drawn, the jury should be specifically directed to that effect. *[What about defences? ]* There is an obligation on the trial judge to give the legal directions which apply to the defence advanced on behalf of the accused. Common defences and partial defences to which this applies include: - self-defence - alibi --- where an alibi is demonstrated or accepted to be false, a Lucas-type direction is appropriate, see Lesley \[1996\] 1 Cr App R 39; - loss of control (see Clinton \[2012\] EWCA Crim 2, \[2013\] QB 1 , and the Crown Court Compendium, ch. 19-2); and - diminished responsibility (see Terry \[1961\] 2 QB 314 , the Crown Court Compendium, ch. 19-1, and B1.25). Where an accused is unrepresented, the judge should also remind the jury to bear in mind the difficulties for the accused of representing him or herself at trial. *[What about directions on facts? ]* - In addition to directing the jury on the law, the judge should remind them of and comment upon the evidence. It is clear that a summary of the evidence is necessary in almost all cases. - It was made clear that in the majority of cases, it was necessary for the judge to sum up on the facts in order to assist the jury and ensure a fair trial. It was incumbent on the judge to define the issues and remind the jury of the evidence they had heard, albeit very recently. - It was held to be a procedural irregularity for a judge to sum up without a review of the facts. There were exceptions where this was not required, such as where a case was short and simple. But the closing speeches of counsel were no substitute for a judicial and impartial view of the facts from the trial judge, whose duty it was to focus the attention of the jury upon the issues which he identified. - Since the jury's verdict was not reasoned, the summing-up provides the record of the facts on which that verdict was founded and, in a long case, was needed to provide a 'rational consideration of the evidence'. *[What analysis is involved in summing up?]* - In very simple cases, it might suffice for the judge to sum up the facts by reading out an abbreviated version of his or her note of the evidence. However, if the trial has been at all complex, judges are exhorted to assist the jury by analysing the evidence and relating it to the various issues raised. - Merely reading a note of the evidence in such cases has been criticised, not least because it 'must bore the jury to sleep'. - The desirability of the summing-up including a '**succinct but accurate summary** of the **issues of fact** as to which a decision is required, a **correct but concise summary** of the **evidence** and arguments on both sides, and a **correct statement of the inference**s which the jury are entitled to draw from their particular conclusions about the primary facts' (emphasis added). Such a succinct and focused summary of the evidence is of particular importance at the end of a long and complex trial, as it is required to provide the jury with a rational consideration of the evidence. *[How to summarise the defence case? ]* It was part the judge's duty to identify the defence: a. Where the **accused** has given **evidence**, it will be desirable to **summarise** that evidence. b. Where the accused has given evidence and **answered questions in interview**, it may be appropriate to draw **attention to consistencies and inconsistencies** between the two. c. When an accused is interviewed at length but **does not give evidence**, the judge has to decide how, **fairly and conveniently, to place the interview before the jury**. d. When the **accused has done neither**, it will usually be appropriate to remind the jury of **counsel's speech.** Desirable to give an overview of the defence case; weaving the defence case into the chronology of the prosecution evidence. it is clear that when a defendant has said little or nothing in interview and has elected not to give or call evidence, ordinarily the limit of the judge's duty is simply to remind the jury of 'such assistance, if any, as (defence) counsel had been able to extract from the Crown's witnesses in cross-examination' and any 'significant points made in defence counsel's speech'. - It is to be stressed that in order to present a defence to the charges the defendant is not compelled to give or to call evidence; instead, he is entitled to rely on evidence presented by the prosecution or by his co-accused when advancing arguments for the jury's consideration as to whether the prosecution has established his guilt. The rehearsal of this material by the judge does not necessarily have to be extensive or detailed --- indeed, frequently it will be sufficient merely to identify the central submissions and the evidence that underpins them --- but the judge must generally ensure that the jury receives a coherent rehearsal of the main arguments that are being advanced by the accused. *[What are judicious judicial comments? ]* - It is the judge's duty to state matters 'clearly, impartially and logically', and not to indulge in inappropriate sarcasm or extravagant comment. - 'however distasteful the offence, however repulsive the defendant, however laughable his defence, he is nevertheless entitled to have his case fairly presented to the jury both by counsel and by the judge'. - Provided it is emphasised to the jury that they are entitled to ignore opinions, the judge may comment on the evidence in a way which indicates his or her own views. - Robust comments to the detriment of the defence case are permitted (e.g., O'Donnell (1917) 12 Cr App R 219, in which the judge described the accused's story as a 'remarkable one'), providing the judge is not so critical as effectively to withdraw the issue of guilt or innocence from the jury. Too critical -- In which the judge repeatedly told the jury that the defence case was absurd. *[How to appoint a foreman? ]* - At the end of the summing up, the judge should advise the jury to appoint one of their number to be their foreman. The foreman will act as their spokesman and, in due course, announce their verdict. *[What is unanimity? ]* - The judge should invite the jury to retire and to seek to reach a unanimous decision. - A failure on the part of the judge to give the jury the direction that their verdicts must be unanimous will not necessarily render a conviction unsafe. - To anticipate jury questions about the possibility of a majority verdict, the judge should direct the jury, at this stage, to try to reach a unanimous verdict. If the time should come when the judge can accept a verdict which is not the verdict of them all, a further direction will be given. - The judge should not, however, indicate the precise period which must elapse before a majority verdict becomes a possibility. - If this is done, it will not necessarily be improper, e.g., where the effect is to alleviate anxiety or uncertainty which the jury may be feeling. *[What are the basic rules for a retirement of a jury? ]* - Once the jury retires to consider their verdict it should not separate, one from another and from the jury bailiffs. They must remain in the charge of the court through the bailiffs throughout.' The purpose of this is to ensure that nobody interferes with the jury while they are considering their verdict. *[What are the questions from jury? ]* - The jury are permitted to ask questions of the judge during their retirement. - The normal method of so doing is to pass a note to the jury bailiff who takes it to the judge. - The need to time and date such notes. The object of the procedures is: (a) to remove any suspicion of private or secret communication between the court and jury, and (b) to enable the judge to assist the jury properly on any matter of law or fact which appears to be troubling them. *[Procedure for jury questions -- ]* a. First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel and without bringing the jury back to court. b. Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful so to do, seek the assistance of counsel. This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication. c. Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures ... then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed. Normally share the content of jury questions with counsel, and invite their view, before answering them. *[What are majority verdicts? ]* - At common law, the verdict of a jury had to be unanimous. - Some majority verdicts are permissible, subject to certain conditions being satisfied. *[Any time requirement for a majority verdict? ]* - A majority verdict may not be accepted unless the jury have been considering their verdict for such period as the court considers reasonable having regard to the nature and complexity of the case, being in any event a period of not less than two hours. - Any period during which the jury return to court to ask a question of or receive a communication from the judge should be included when computing the two hours. - Time spent not actually deliberating, for example in making their way to the jury room and electing a foreman, is catered for, which states that the jury should be allowed at least **two hours and ten minutes** for deliberation before the majority direction is given. *[What is the minimum number of acceptable majority? ]* - The minimum majorities permissible are 11--1 or 10--2, or (in the case of a jury from which one or more of the original jurors have been discharged) 10--1 or 9--1. - A jury reduced to nine must be unanimous. If (and only if) the verdict is guilty, the foreman of the jury must state in open court the number of jurors who respectively agreed to and dissented from the verdict. (mandatory compliance): - Since stating the size of a majority for conviction is expressed as a pre-condition of the court accepting the verdict, failure to comply with s. 17(3) will result in any purported conviction being quashed. - It is sufficient for compliance with s. 17(3) if, as happened in Pigg \[1983\] 1 All ER 56 , the foreman states the number in the majority leaving the size of the minority to be inferred by the simplest of arithmetic But the precise form of words used by the clerk of the court when asking questions of the foreman of the jury, and the precise form of words used by the latter in answer to such questions, **as long as they make it clear to an ordinary person how the jury was divided, do not constitute any essential part of that requirement**. *[What about when the verdict is guilty of an alternate offence? ]* It is sometimes open to a jury to find the accused not guilty of the offence alleged in a count but guilty of some other alternative offence. This is commonly referred to as a verdict of guilty of a lesser offence. - At common law, a jury could find an accused guilty of a lesser offence if the definition of the **greater offence charged necessarily included the definition of the lesser.** However, the enactment of a number of statutory provisions has considerably broadened the situations in which alternative verdicts are now permitted. Discussion of alternative verdicts proceeds on the basis that the law is now to be found in statute. The general provision on the availability of alternative verdicts is contained in the CLA 1967, s. 6(3): - Where, on a person's trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, **but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence** falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence. There are thus two principal situations covered by s. 6(3). One is where the offence charged expressly includes an allegation of another indictable offence; the other is where it impliedly includes such an allegation. *[What about Judge's judgment in directing a jury as to alternate offences? ]* - The judge in summing up is not obliged to direct the jury about the option of finding the accused guilty of an alternative offence, even if that option is available to them as a matter of law. If, however, the possibility that the accused is guilty only of a lesser offence has been obviously raised by the evidence, the judge should, in the interests of justice, leave the alternative to the jury. - This is the case even if neither prosecution nor defence counsel wishes the alternative offence to be left to the jury. - It is important for the court to leave an alternative which does not require proof of specific intent where such intent was required for the charge on the indictment. - The court should not take the initiative to add an alternative charge after the accused has given evidence. *[What is the general procedure for returning a verdict? ]* - The jury's verdict is delivered in open court, in the presence of the accused (and this cannot occur if the accused has died during the jury's retirement). - The invariable practice is for the person the jury have selected to be their foreman to state in response to questions from the clerk of court whether they find the accused guilty or not guilty. - The jury are entitled to return a partial verdict in the sense of finding an accused guilty on one count but not on others, or finding one accused guilty but another not. They are also entitled to find an accused guilty in respect of some only of the allegations set out in the particulars of a count, as when a count for theft specifies several items as the subject-matter of the charge and the jury are satisfied that the accused stole some of them but are left in doubt as to others. - where the jury sent a note asking the judge if they could return such a verdict and the Court of Criminal Appeal held that the judge's affirmative answer was undoubtedly correct, even though the method by which he had communicated the answer was at fault. *[What if the Jury is unable to agree on a verdict? ]* If the jury cannot agree on a verdict, the judge discharges them from giving a verdict. As always when the jury are discharged, the accused is not acquitted but may be retried by a different jury. Whether to ask for a retrial is in the discretion of the prosecution. In the absence of exceptional reasons to the contrary, it is the practice to have a retrial following failure by one jury to agree. If a second jury also fail to agree, the prosecution would not usually seek a third trial but instead offer no evidence. This is not a proposition of law. (don't need to go 2 times to trial) In some cases, a further trial might be proper, e.g., if a jury had been tampered with, or some cogent piece of evidence for the Crown had since been discovered. Whether it was an abuse of process for the prosecution to seek a further trial must depend on the facts, including: c. the overall period of the delay and the reasons for it; d. the results of the previous trials; e. the seriousness of the offence; and (possibly) f. the extent to which the case against the defendant had changed since previous trials.