#19556 - 14. Criminal Litigation 2023 2024 Trial In The Crown Court - BPC Criminal Litigation (formerly BPTC) 2024/2025

• If the accused is found unfit to plead, and the jury determine that the accused did the act or made the omission as charged, the court may make one of the following orders:

  • A hospital order;

  • A supervision order; or

  • An order for the accused’s absolute discharge.

• The decision on fitness to plead may be at any time up to the opening of the case for the defence. It shall be determined by the court without the jury. Must be determined on the written or oral evidence of two or more registered medical practitioners, at least one of whom is duly approved.

• As a general principle, an accused should be present throughout the trial.

• 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.

  • They have waived their right wholly if they are voluntarily absent and/or withdraw instructions from legal representatives. They have waived it in part if during the course of trial, the accused behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws instructions from legal representatives.

• The accused’s presence may be dispensed with in exceptional circumstances:

  • As a result of the misbehaviour of the the accused (misbehaviour in the dock - the accused will be warned before taking the step of removing them from court)

  • Where his absence is voluntary and reasonable steps were taken to secure his attendance.

  • When the accused is too ill to attend,

    • If the accused’s 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.

  • Following the death of the 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; though there is no requirement that the court must do so.

• There are limits on what a defendant can do personally:

  • Unrepresented defendants are prohibited from cross-examining complainants and child witnesses in trials for certain offences.

  • Can be prohibited from XX when it would be merited.

• 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.

• Where proceedings amount to an abuse of process, the court may order that those proceedings be stayed. The usual effect of a stay is that the case against the accused is stopped permanently exceptional circumstances for a stay to be lifted.

• Two categories of case in which the court has the power to stay proceedings for abuse of process:

  • where it will be impossible to give the accused a fair trial, and

    • (stay proceedings without more)

  • where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case.

    • (stay if the court concludes that in all the circumstances a trial will offend the court’s sense of justice and propriety)

Opening speech:

• In addressing the jury, prosecuting counsel's role is that of a minister of justice who ought not to strive over-zealously for a conviction. Counsel should therefore, avoid using emotive language liable to prejudice the jury against the accused.

• The extent to which the prosecutor deals with points of law that may arise during the trial or possible defences which the accused is likely to raise is a matter for discretion, depending on the circumstances of the particular case. If they decide to do so, the jury should be reminded that these matters are for the judge.

Prosecution witnesses:

• Having opened the case, prosecuting counsel calls witnesses and reads out any written statements admissible under exceptions to the rule against hearsay.

• 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. 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. Time limit to object is 5 business days.

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. Agreed facts can be reduced to writing and provided to the jury.

Objection to Prosecution evidence:

• D should notify P, preferable before they open the prosecution case, P will then make no mention of it. It will then be dealt with by the judge. Parties will make representations and the judge will make a finding.

Submission of no case to answer:

• Galbraith case:

  • No evidence that D has committed the alleged offence; or

  • The evidence taken at its highest is such that no reasonable jury properly directed could properly convict.

• Question of a witness lying is nearly always up to the jury.

Defence opening speech:

• Because the burden of proof is on the prosecution, 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.

• The accused should normally be called before any other defence witness. If D does not give evidence, he risks an adverse inference against him.

Closing speeches:

• D goes last. Co-D’s make speeches in the order they appear on the indictment.

• 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.

• 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.

• P should not comment on consequences or attack their own witnesses D must not refer to the consequences of a conviction.

Summing up:

• The judge summarises the evidence and explains the law to the jury.

• The trial judge’s summing up conventionally falls into two parts, namely, a direction on the law and a summary of the evidence.

• The use of written directions is strongly encouraged.

• 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. Moreover, the court is entitled to rely on such assistance.

• D is under a duty to alert to evidence on provocation, request good character direction and raise any errors.

• 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.

• Where there is more than one count on the indictment, the jury should be directed to give separate consideration to each of them. For the same reason, the judge should also summarise the evidence on a count-by-count...