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Jury Trial Procedure - Coggle Diagram

- - - - 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
        Should the accused be convicted, sentence may also be passed in the accused's absence
        This principle also applied where the D had voluntarily rendered himself incapable of participation in the trial through intoxication (or through a self-induced drug psychosis
        The Judge must have the discretion to decide whether to proceed in the accused's absence
        The 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.
        Another part of the verdict is to discharge the current jury from giving a verdict and appointing a different jury for the retrial 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
- - - - 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.
        
        EMOTIVE LANGUAGE The advocate should therefore avoid using emotive language liable to prejudice the jury against the accused.
        The use of emotive language was criticised as being 'not in good taste or strictly in accordance with the character which prosecuting counsel should always bear in mind'
        
        DIRECTIONS AS TO THE FUNCTIONS OF JUDGE AND JURY At the beginning of the summing up the judge must direct the jury as to their respective roles and the different status of the two parts relating to law in which the judge is the final arbiter AND
        Relating to fact in which the judge summarises the evidence before the jury
        It is the jurys view that matters in the event that the jury disagree with a piece of evidence
        
        BURDEN AND STANDARD OF PROOF Every summing up must contain at least a direction to the jury as to the burden and standard of proof and the ingredients of the offence or offences which the jury are called upon to consider
        If the judge fails to properly direct the jury that the prosecution have the burden of proof and have to discharge that burden beyond all reasonable doubt or that the jury are sure the conviction is liable to be quashed
        
        INGREDIENTS OF OFFENCE It is insufficient for the judge simply to spell out the issues in the case
        The judge is required to direct the jury to the elements of the offence charged
        The judge is not required to give the jury a general dissertation on some aspects of criminal law but to isolate the issues for the jurys consideration
        
        FAILURE TO ANSWER QUESTIONS OR GIVE EVIDENCE
        If the defendant fails to answer questions in an Interview or fails to give evidence the jury are entitled to draw inferences as they deem appropriate from the failure
        The judge is required to identify significant facts relied on and to remind the jury of any reason for silence advanced by the accused
        
        Section 34 of the Criminal Justice and Public Order Act 1994
        No inferences should be drawn from the silence in an 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 the interview and trial this is a matter on which comment should be made without the need for a formal direction under s34
        There is no requirement that the accused should be specifically be asked about the fact that the accused had failed to mention/speak in an interview. The question is whether it was a fact that could reasonably have been mentioned
        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 eg the age of the accused
        Where such inferences should not be drawn the jury should be specifically directed to that effect
        
        DEFENCES The trial judge has an obligation to give directions which apply to the defence advanced on behalf of the accused
        Common defences and partial defences include:
        Self defence
        Alibi
        Loss of control
        Diminished responsibility
        Where an accused is unrepresented the judge should also remind the jury to bear in mind the difficulties for the accused representing him or herself at trial
        
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- - - - SHOULD CALL OR TENDER- GENERAL RULE: WITNESSES ON BACK OF INDICTMENT
        Having opened the case, the prosecutor 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
        
        RETIREMENT OF JURY Once the jury retires to consider the verdict it they should not separate from one another and from the jury bailiffs
        They must remain in charge of the court through the bailiffs throughout
        The purpose of this is that no one interferes with the jury whilst the are considering the verdict
        
        QUESTIONS FROM THE JURY The jury are permitted to ask questions to the judge during their retirement
        The normal method of doing so it to pass a note to the jury bailiff who takes it to the judge
        There is a need to time and date the notes
        The object of procedures:
        Is to remove any suspicion of private or secret communication between the court and the jury AND
        To enable the judge to assist the jury properly on any matter of law or fact which appears to be troubling the jury
        Judges should normally share the content of jury questions with counsel and invite their view before answering them
        The failure of the judge to share a note from the jury deprived the parties from the chance to make submissions and to ensure that the jury were properly directed as to their approach
        
        MAJORITY VERDICTS At common law the verdict of a jury had to be unanimous
        This is stated in the Juries Act 1974 s17 some majority of verdicts are permissible subject to certain conditions being satisfied
        
        TIME REQUIREMENT A majority verdict may not be accepted unless the jury have been considering their verdict for a period the court considers reasonable having regard to the nature and complexity of the case
        The jury should not be given less than 2 hours
        Any period during which the jury return to court to ask a question or receive a communication from the judge should be included in the time period
        The jury should at least be allowed two hours and 10 minutes for deliberation before the majority direction is given
        The considerations are to be applied by the trial judge as to when to take any unanimous verdicts before giving the majority direction for the remaining counts
        
        MINIMUM NUMBER FOR ACCEPTABLE MAJORITY The Juries Act 1974 s17 (1) states the minimum majorities allowed are 11-1 or 10-2 OR
        In a 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- with everyone's agreement
        
        STATEMENT OF SIZE OF MAJORITY AND MININORITY IN OPEN COURT
        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 - S17 (3) of the Juries Act 1974
        A failure to comply with this rule will lead to the conviction being quashed
        
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- - - - Statements are admissible only is all the parties agree Even if the statement is admissible under s9 the court may require that the maker attend to give evidence
        For example where the defence dispute the contents of the statement but failed to object
- - - - SEXUAL OFFENCES AND DELAY It is often the case that allegations involving sexual offences emerge a long time after the alleged abuse took place
        Such cases have come to be regarded as, in effect, a separate category so far as delay is concerned
        The view generally taken by the courts is that the unfairness can be minimised by a direction to the jury to take proper account of the fact that the accused was handicapped in defending the case because of the length of time which has elapsed since the alleged offence was committed
        Any residual prejudice is regarded as outweighed by the importance of prosecuting such serious offences.
      - DEFENCE OPENING SPEECH
        If the defence intend to call on evidence as to the facts of the case other than or in addition to the evidence of the accused the defence counsel has the right to an opening speech at the beginning of the defence case
        If however, the only defence evidence is to come from the accused or from the accused and character evidence then counsel does not have an opening speech except where the judge invited the defence counsel concisely to identify what is in issue in order to assist the jury following the prosecution opeining
        In an opening speech the defence counsel may both outline the anticipated defence case and criticise the evidence already given for the prosecution
        However the speech should not make assertions of fact that are not to be proved by evidence that is no come
        
        THE DEFENCE CASE
        The burden of proof is on the Prosecution
        The defence are never obliged to call evidence and are not obliged to call the accused since the accused is a competent but not a compellable witness
        Most defence witness are governed by the same rules and considerations as the prosecution witnesses
        The only additional limitation is the duty of the court to stop evidence being given where it is irrelevant to the issues in the case or where the court is being used as political sounding board
        
        ORDER OF DEFENCE EVIDENCE
        The accused should normally be called before any other defence witnesses PACE 1984 s79
        The rationale for this rule is that while witnesses are normally kept out of court until they testify the accused has the right to be present throughout the trial and would have the opportunity to adjust his or her evidence to accord with that of the witnesses
        The court has the discretion to depart from the rule under PACE 1984. For example, to allow a witness whose evidence was not substantially disputed to testify out of the normal order if the circumstances made that convenient
        
        Section 79 PACE 1984 If at the trial of any person for an offence the defence intends to call two or more witnesses to the facts of the case and the accused shall be called before the other witness or witnesses unless the court in its discretion decides otherwise directs
        
        A witness waiting to give evidence must not wait inside the court room unless the witness is a party or an expert witness
        
        DECISION TO CALL THE ACCUSED The accused has the decision whether to testify or not
        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 clear indication of the fact having of their accord decided not to give evidence and the accused has done that bearing in mind the advice regardless of what it was given by counsel
        Failure to advice the accuse 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
- - - - PROPER APPROACH TO A SUBMISSION OF NO CASE TO ANSWER
        Determining submissions of no case to answer:
        If there is no evidence to prove an essential element of the offence a submission must obviously suceed
        If there is some evidence which taken at face value establsihes each essential element the case should normally be left to the jury
        However, it the evidence is so weak that no jury properly directed could convict on it , a submission should be upheld
        The question of whether a witness is lying is nearly always for the jury EXCEPT where there are inconsistencies so great that any reasonable tribunal would be forced to the conclusion that iw would not be proper for the case to proceed on the evidence of the witness alone
- - - - PROSECUTION COUNSEL Prosecutors must remember their role as a minister of the justice when they make speeches
        Prosecuting counsel should not comment to the jury on the potentially serious consequences to police officers of their evidence being disbelieved, even when a police officer has raised a matter of evidence
        Prosecution counsel is not entitled to abandon or attack the credit of the prosecutions own witness- unless leave has been given to treat the witness as hostile and the counsel should not invite inferences contrary to the evidence that has been called
        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 spouse or civil partner to give evidence
        Prosecution evidence is entitled to comment on the failure of the accused to answer questions in unterview or to give evidence
        The prosecution may make such a 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 accuseds evidence
        
        DEFENCE COUNSEL In delivering the closing speech defence counsel is not confined to putting forward their clients version of events
        Defence counsel should not refer to the likely consequences of a conviction in terms of punishment since sentencing is no concern of the jury
        The defence counsel is entitled to comment on their clients failure to give evidence
        They can also comment upon the co-accused not having entered the witness box
        The judge has no power to prevent or restrict such comment but if it seems to the judge to have been unfair may comment on it personally
        
        SUMMING-UP The trial judges summing up falls into a direction on the law and a summary of the evidence
        The use of written directions is also strongly advocated
        The Crown Court Compendium is a useful source of guidance to draft directions
        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 especially if the sentence is short
        
        DUTIES OF COUNSEL IN RELATION TO THE SUMMING UP Prosecution counsel is under a duty to attend carefully to the summing up and draw any possible errors (whether fact or law) to the judges attention at its close- the court is entitled to rely on such assistance The defence counsel can traditionally remain silent if it considered to be in the clients best interests
        
        WRITTEN DIRECTIONS The court should provide the jury with a written list of questions, written legal directions and other materials that will assist them in their task
        For example, setting out the legal issues that must be proved in order to reach their verdict
        Before the judge provides the jury with a written route to verdict they must submit them to the counsel so that they can make suggestions and can base their closing speeches upon the issues raised in the proposed directions
        The court and counsel could discuss written directions by email as long as the email chain is uploaded to the Digital Case System
        The jury should be given a 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
        
        STANDARD DIRECTIONS It is encouraged for the court to use standard forms through which directions on frequently recurring matters of law may be given
        Though they are suggested as guidelines only and judges should adapt them to the circumstances of a particular case