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Criminal Practice Revision - 8 - Trial Procedure (check notes) - Coggle…
Criminal Practice Revision - 8 - Trial Procedure (check notes)
Examination in Chief
No leading questions unless facts agreed
However, on
*background matters (like the defendant's address) and
agreed issues
*, it is permissible to ask leading questions.
An advocate can settle a witness into giving evidence by starting them with some of these agreed issues before moving into contentious areas
Cross-examination and re-examination - leading questions ALLOWED
No Case to Answer
Submitted
after prosecution gives opening statement + evidence
Defence argues
Prosecution has submitted INSUFFICIENT EVIDENCE for prima facie case
The prosecution has
failed to present evidence on an essential element
of the offence; or
The
evidence presented
by the prosecution is
so weak or inconsistent that no reasonable tribunal
could properly
convict
the defendant.
Outcomes:
Success = defendant acquitted
Failure = defence begins its argument + case statements
Considered by:
High Court Judge
in
absence of Jury
Special Measures to Assist Witnesses in Giving Evidence
At Court's discretion
Court may PERMIT
Anyone but defendant to give evidence via VIDEO-link if:
In the
interests of
Efficient justice
Effective Justice
Common in:
Under 18
With a
disability or disorder
that’ll likely affect evidence
Have a
fear
of giving evidence
Complaintints in sexual
offences
Witnesses to
specified knife and gun crimes
Includes:
Video-link
Having court
officers remove
hats
and gowns
Allowing the witness to give evidence in
private
Letting a
witness pre-record
testimony
Using an
intermediary
to obtain evidence
Common Professional Conduct Issues:
"I DID it, but I'm pleading NOT guilty"
If a client admits guilt, but insists they will plead not guilty:
The Solicitor
may continue to act
BUT
MUST NOT MISLEAD
THE COURT
So, they can
test the strength of the prosecution’s evidence
, but
NOT put forward a positive
defence
If the defendant
insists on putting forward an alternative defence, you must withdraw
You must also
advise the client carefully
on the strength of the evidence and the guilty plea
"I didn't do it, but I'm pleading GUILTY"
Here, you should
Advise your client of the DEFENCE AVAILABLE
If the defendant insists on pleading guilty regardless, you:
CAN continue to act; But
CANNOT put forward anything in mitigation (mitigating factors) that suggests the defendant DIDN’T COMMIT
the crime, because you have a duty to not mislead the court, and to suggest in mitigation that the defendant doesn’t accept guilt would prompt the judge to re-examine the plea
Acting for TWO OR MORE DEFENDANTS
You cannot act for 2 or more defendants
unless their accounts are aligned
If a
conflict
subsequently arises,
you MUST WITHDRAW FROM THE CSAE ENTIRELY
unless
there has been
no breach of CONFIDENTIALITY that would COMPROMISE the other defendant
Assisting the Court on
points of law
You have a duty to assist the
Court on relevant points of law, EVEN IF THEY HURT YOUR CAS
E
No duty to assist if a solicitor is aware of missing or misinterpreted facts
But you
MUST NOT MISLEAD THE COURT
Magistrates' Court
You have a
duty to assist on points of law, INCLUDING ADMISSIBILITY OF EVIDENCE
OR
INTERPRETATION OF ELEMENTS IN AN OFFENCE
, esp if you are the only legally qualified person in the room
Competence and Compellability:
Prosecution: Defendant not competent or compellable. Defendant's spouse competent but not compellable. Co-defendant not competent or compellable unless plead guilty or case dropped.
Exception: Defendant's spouse may be compellable if offence involes
assault, injury, or threat to them or a child U16
, INC AIDING OR ABETTING
Defence: Defendant competent but not compellable. Spouse competent and compellable. Co-defendant competent BUT not compellable (unless dropped/guilty)
Court may draw ADVERSE INFERENCE
from
defendant failing to testify
depending on CIRCUMSTANCES
If court/jury thinks
only sensible explanation for the decision not to give evidence is that the defendant has no answer to the case against them
—or
none that could have stood up to cross-examination
—THEN it would be
open
to
the jury to hold the failure to give evidence
against the defendant.
What is COMPETENCE?
defendant is NOT competent if the court sees they
Cannot understand questions
put to them as a witness; and
Cannot give answers
to the court which are
understood
Modes of Address:
Magistrates'
Individual Magistrate = Judge
Bench (collectively= Your worships
District Judge = Sir/Madam
Crown Court (HONOUR)
Judge: Your Honour
Third person judge = His or her Honour