9. Jury trial procedure PDF

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9. Jury trial procedure (in the Crown Court) proceeding in the absence of the defendant unrepresented defendants abuse of process in the Crown Court procedural steps in a jury trial, including the different ways in which evidence may be presented or proved, dealing with points of law during the tria...

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9. Jury trial procedure (in the Crown Court) 1. proceeding in the absence of the defendant 2. unrepresented defendants 3. abuse of process in the Crown Court 4. procedural steps in a jury trial, including the different ways in which evidence may be presented or proved, dealing with points of law during the trial and submission of no case to answer 5. speeches and summing up 6. verdicts, including majority verdicts and conviction of a lesser offence

Proceeding in the absence of the defendant The general rule that an accused should be present throughout his trial GR: The accused (after pleading) must be present throughout The court MUST NOT proceed without the accused UNLESS 1. The court is satisfied that he has waived his right to attend 2. The trial will be fair despite his absence The court MUST NOT deal with any issues in relation to trial proceedings without the defence present (can be appealed). The exceptions to the general rule a. As a result of misbehaviour of the accused b. Voluntary absence c. Accused is too ill to attend d. Death of the accused Principles to consider when dealing with an absent Defendant Hayward (mixed with other considerations): 1. An accused has a right to be at trial and to be legally represented. 2. Those rights can be waived by the accused himself a. Wholly waived, by absenting himself from trial purposefully** (e.g. he refuse to go to court) i. Was the absence voluntary ii. Were there reasonable steps that can be taken to secure his attendance b. Partially waive, if acts in a way to obstruct proceedings and/or withdraws instructions 3. The trial judge has the discretion to continue in A’s absence. 4. Discretion is exercised with great care, only in exceptional cases will cases proceed without accused especially if accused is unrepresented 5. The trial judge must be fair to both prosecution and the defence and consider ALL the circumstances, including

a. A’s behaviour i. E.g. behaving unruly on the dock. Warning first, then take the extreme step of barring him from court. May be appropriate to allow him back in if he undertakes to behave. ii. May also be held in contempt iii. No handcuffs unless there is a real risk of violence or escape b. Consequence of adjournment a. Length of adjournment b. Whether accused wants to be legally represented c. Extent to which legal representatives can present their defence d. Extent of disadvantage if not able to give his account e. Risk of jury reaching improper conclusion without accused f. Seriousness of the offence to accused, victim and public (seriousness by itself is not an issue) g. Public interest h. If there is a strict timeline i. Effect on delay on witness memory j. More than one accused and not all have absconded 6. The judge must tell the jury that the absence is not an admission and adds nothing to the prosecution case. 7. The judge must make points on behalf of the accused. 8. The judge must consider not only the evidence for his absence, but the fairness on both parties as well 1. Seriousness itself is not an issue 2. Even absconding witnesses need representation. Only continue if it is unavoidable. Voluntary absence If the accused appears at the start, and later voluntarily absents himself (escaping or failing to surrender). The judge has the discretion to complete trial in his absence (both conviction and sentencing)  Self-intoxication is considered voluntarily absenting himself The court may (whether trial continued in absence or adjourned) issue a warrant for his arrest. Sickness of the accused. General rule: If he is absent for reasons beyond his control, the trial CANNOT continue in his absence Exception: 1. If A consents 2. If his case can be fully presented (including the accused own WS), without unfairness 3. The trial will only concern a co-accused 4. His sickness is caused by himself (e.g. alcohol or drugs)

Common example: Sickness If can show that the sickness is serious enough that he cannot make it to trial the Court may 1. Adjourn 2. Discharge the jury (allowing retrial to take place before a different jury) Unpresented Defendants General rule If the defendant is unrepresented, the court will (as a matter of practice) give him such assistance in conducting his defence where appropriate. If the defendant has dismissed his counsel and has access to public funding, the court MAY adjourn proceedings to allow the defendant to seek legal representation. The accused’s right to give or call evidence At the end of the prosecution’s case, the judge MUST inform the unpresented defendant of his right to give evidence or to stay silent and draw adverse inference from the jury. Also, that he is entitled to address to jury at the end, but no more evidence can be adduced at that time. Restrictions on the accused Restricted for 1. Sexual related offences 2. Protected witnesses 3. General discretion if: Quality of evidence likely to be diminished and not contrary to the interests of justice  If accused is prevented, court MUST invite him to appoint a legal representative. If accused fails to do so, the court will (only if in the interests of justice) appoint a legal representative for him JUST for cross.  If accused is prevented, court must warn the jury Abuse of process in the Crown Court Courts power to stay proceedings General rule: Once indictment has been preferred, the accused must be tried. UNLESS 1. Indictment is defective 2. Nolle prosequi 3. Plead in bar (e.g. Autrefois acquit) 4. Indictment discloses no offence that the court has jurisdiction to try

5. Abuse of process Abuse of process The court may order a stay of proceedings (stop proceedings permanently) The court may lift the stay, but this is in exceptionally rare circumstances in consideration of the nature of an abuse of process. Definition of ‘abuse of process’ Two main categories of ‘abuse of process’ based on case law 1. Where the court concludes that the accused cannot receive a fair trial (trial process) 2. Where the court concludes that it was be unfair for the accused to be tried (or necessary to protect the integrity of the criminal justice system) (should not be at trial at all) Second limb e.g. bad faith, misconduct, executive misconduct

Jury Trial Procedure Common arguments just before the commencement of jury trials: • applications relating to bad character; • hearsay applications; • applications to exclude evidence under s.76 or 78 PACE; and • abuse of process applications. No . 1.

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Opening Speech

Prosecution has the right to make opening speech (only if not guilty plea)  Explain what the case is about (concisely outlining the facts and the matters likely to be in dispute) The judge may, in addition, invite the accused to concisely identify what is in issue (defence may reject) The prosecution is seen to be ministers of justice when addressing the jury. Should avoid emotive language that overly tries to secure a conviction at this stage or anywhere else.

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Prosecution witness

The prosecution should not touch on points of law unless it is very complicated and feels its necessary. In that case, the prosecution must remind the jury that issues in law are for the court and they should disregard what was said. Prosecution witness Prosecution to  Call his witnesses  Read out any witness statements under the exceptions to hearsay As a matter of practice, the prosecution should call all witnesses whose names are on the back of the indictment (traditional phrase). They have the discretion, but should refuse to unfairly to surprise or prejudice the defendant) Written statements *s. 9 CJA 1967 Tendering written witness evidence without calling the maker. This is usually used when  the prosecution wants to adduce evidence not originally served.  The witness statement is not central to the case (a) Signed, true (b) Served 7 days (other party may reject here, if no reject and

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tender conflicting evidence, may call and the failed party to pay costs) (c) Read in full, or court may order to summarise parts If the Defendant rejects, the prosecution cannot read it at trial. Seven days to reject. Conclusion: section 9 statements are only admissible if all the parties agree. Even if agree, the court may require the maker to give oral evidence. Admissions/agreed facts *s. 10 CJA 1967 Any formal admissions (jointly admit or agree) MUST be recorded in writing. 3.

D objects to prosecution evidence

1. D informs the prosecution before P’s opening speech (P will not mention it in the speech) 2. When the time comes to determine admissibility, jury withdraws, leaving judge alone 3. Evidence can be tendered by both prosecution and defendant relating to the disputed evidence (trial ‘on the voir dire’) 4. Whether or not there is evidence, both parties make their representations on admissibility 5. Judge will announce his ruling (findings on factual issues, rules of admissibility, discretionary power to exclude legally admissibile material) 6. Jury returns, if ruled against disputed evidence, they will not hear of it. If evidence is admissible, can be crossed on the same points in the voir dire but this will go to weight not admissibility. 7. Judge maintains discretion to review admissibility at a later stage.

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Editing of Prosecution evidence

If there are parts of P’s witness statement that are clearly prejudicial, the person tendering may a. Composite statement to replace early statements b. Fresh statement prepared and signed c. File unmarked original, but on the served copies, strike out/bracket parts which are undesirable Best practice Check with court to see what is the best way forward

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Submissions of no case to answer

Considerations Often in submissions of no case to answer, consider reliability of P’s evidence *Galbraith 1. If there is no evidence to prove each essential element, there is no case to answer

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2. If there is some evidence, which taken at face value, establishes each essential element, there is a case to answer 3. If, the evidence is so WEAK that, even taken at its highest, no reasonable jury could properly convict on it, there is no case to answer (e.g. highly improbably witness account, internal inconsistencies, or generally doubtful) 4. If a witness is lying, there is usually still a case to answer. But if the lies are so material that it would be impossible to convict on this witness statement alone, there is no case to answer. The credibility of PWs will not normally be considered as it is a matter for the jury. UNLESS the justice has formed the view that even if taken at its highest, it will not be able to convict. Note that if it could convict, then there is a case to answer.

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Where there is no case to answer, the jury will be directed to acquit on that specific count. Defence In the Crown Court, the Defendant has a right to make an opening opening speech statement, ONLY IF, he intends to call evidence other than himself.  Outline anticipated defence  Criticize the evidence adduced by the Prosecution Exception: The judge may invite the accused to concisely identify what is in issue after P’s opening speech.

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The defence case

Order of defence evidence

The prosecution bears the burden of proving, therefore the Defence DOES NOT have to tender any evidence. Not even the evidence of the accused himself (he is not compellable) The court has a duty to stop any evidence that is irrelevant to the case. 1. The accused (because he will be there the whole time so we don’t want him to adjust his statement) 2. Other Defence witnesses 3. Prosecution witness 4. Expert evidence or character witnesses The court has discretion to depart from this rule. *Witnesses must not wait inside the courtroom (unless expert witness or a party)

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The accused as a witness

The witness has a free choice to be a witness or not. BUT counsel should record and make the accuse sign the record which states

(a) He decided on his own not to give evidence (b) He has done so bearing in mind the advice of counsel  Failing to properly advice your client is grounds for a conviction to be unsafe.

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The discretion of the judge to call or recall a witness

The accused CANNOT give evidence twice. The Defence may request the prosecution to call witnesses if they disagree with their witness statements. Prosecution may refuse to call but must not prejudice the Defendant.

The judge has full discretion to call any witness who neither Defence or Prosecution has chosen to call. This is used sparingly in the interests of justice. Counsel It is common (before summing up) to invite counsel, in the absence of representations the jury, to make representations of how certain aspects of the case should be dealt with, especially where there is doubt in law/evidence.

Speeches

Counsel has a duty to bring all relevant authorities to the court’s attention. Raise all irregularities and issues during the hearing in the absence of the jury, not on appeal (e.g. contact with witnesses) Order of speeches 1. Prosecution 2. Defence Limitation on prosecution speech  No content not in evidence  No content contrary to evidence  No discrediting own witness if no leave to treat as hostile  No recommendation of mercy if guilty  No personal minister of justice Limitation on defence speech  Not confined to his own evidence, may put forward hypothesis based on other evidence  No reference to the likely punishment, sentencing is not the jury’s concern  May comment on his own’s client’s failure to attend, or codefendant if co-def evidence is contrary to clients case.  Court may even intervene to ensure the Defendant properly sums up the case for the jury

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Summing up

Summing up Typically, two parts: 1. Direction on the law (Before speeches) 2. Summary of the evidence (after speeches) If no sum up in writing, both counsel should take notes, to avoid delay

of waiting for a transcript. Duties of counsel  Prosecution counsel must be attentive and draw any possible errors to the court’s attention.  Defendant counsel should also raise any issues but it will not held against him on appeal if he remained silent. Written route to verdict 1. The judge is ENCOURAGED and usually provides the jury with a list of questions, directions or other material to assist them in their task 2. The judge should submit the written directions to counsel to make suggestions and base their closing speeches on it 3. Failure to submit to counsel is not fatal, but goes to weight. Standard directions Found in the Crown Court Compendium as guidelines, not mandatory. Burden and standard of proof MUST address: 1. Burden and standard of proof (if prosecution BYD or Defendant BOP, and whether Def BOP has been discharged) 2. Ingredients of the offences the jury is called to consider Failure to do so can be grounds for appeal. Counts and Defendants MUST address: 1. Each count individually 2. Consider the case for each defendant separately (unless joint participation Ingredients of the offence (+ issues) MUST address: 1. Ingredients of the offences the jury is called to consider 2. Summary of issues 3. Summary of evidence 4. Argument on both sides 5. Correct statement of the inferences SHOULD consider: 1. The purpose of summing up is to isolate the issues to consider Failure to answer or give evidence MUST address: 1. Failure to answer questions 2. Failure to give evidence

3. Change in witness account from interview and trial 4. Reasons for the above Limitations: 1. No inferences should be drawn from witnesses who remained silent in interview and did not tender evidence or put forward a positive case* Defences MUST address 1. The test/burden of proof for any defences raised  Self-defence  Alibi  Provocation  Diminished responsibility For unpresented defendant, the court should remind the jury of the difficulty of representing himself. MUST give 2. A summary of the Defence case. (a) Overview of the defence (b) Summarise evidence (c) Draw attention to consistencies and inconsistencies with evidence (d) How the interview should be treated (e) If no evidence or interview, then remind jury of counsel’s closing speech. The facts ALMOST ALWAYS address 1. Summed up facts (unless facts were extremely short and simple, but still recommended to do so) The analysis SHOULD address 1. With a succinct but accurate summary of the issues of fact which need to be considered 2. Correct by concise summary of evidence and arguments of both sides 3. Correct statement of inferences which the jury is entitled to draw This is especially in long and complex cases. Alternative offences DOES NOT need to: 1. Direct the jury to any alternative offences (implied, expressed

or by statute) Unless the lesser offence was raised in evidence. Manner of the judge The judge must always speak impartially, fairly, not sarcastically or emotionally. Must not be so critical as to withdraw the issue of guilt from the jury. Exception 1. If it is one comment and the jury is told to ignore his comments

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Jury decision

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Verdicts

1. Appoint a foreman (spokesperson) 2. Judge should invite the jury to retire and reach a unanimous decision (failure to do state the need of unanimous decision is not fatal) Basic rule: Once the jury retires, they must not separate with each other or the bailiffs. They will remain in charge of the court through the bailiffs. Questions from the jury 1. Jury may ask questions by sending notes to and receiving them from the judge through the bailiff. 2. If unrelated, deal with it himself 3. If related, deal with it in open court with assistance from counsel 4. Invite the jury back 5. Deal with the communication. Unanimous verdicts 1. The decision must be unanimous (or unanimous -1) 2. Otherwise it is a “hung jury” and may retrial. A second hung jury will usually cause the prosecution to not seek a third retrial but instead offer no evidence. Hence not guilty. 3. For third retrial, consider  Delay before third retrial  Result of previous trials  Seriousness of the offence  The extent to which defendant has changed since previous trials (possibly) Time to consider Verdict may not be accepted unless they have considered it within reasonable time (two hours ten minutes) (including questions)

Acceptable majority for verdict 12-0 | 11-1 | 10-2 | 10-1 | 9-1 | 9-0 Must state how many The foreman MUST indicate how many were in majority. Failure to do so will quash the conviction. Verdict of guilty of a lesser offence The jury may find him guilty of a lesser offence. At common law : if the charge expresses (e.g two charges) or implies a lesser offence At statute : statutorily stated. Delivery of verdict Foreman state in open court, in the presence of the accused (cannot, if A has died) Partial verdict 1. Guilty on one count, but not another 2. One defendant guilty but not another 3. Guilty on some allegations, but not another (e.g. theft of several items)...