#10405 - Crown Court Trial - BPC Criminal Litigation (formerly BPTC) 2024/2025

CC TRIAL

The jury

• who can serve

  • every person must attend or jury service when summoned if:

1. aged 18 - 70; AND

2. on the electoral roll; AND

3. ordinarily resident in UK for any period of at least 5 years since attaining age 13; AND

4. NOT ineligible due to mental disorder; AND

5. NOT disqualified due to pre-cons i.e. a person:

   1. permanent disqualification:

      • life sentence

      • dangerous offender sentence / IPP

      • sentenced to 5+ years' UK custodial sentence

   2. temporary disqualification

      • on bail at time called

      • UK custodial / suspended sentence in last 10 years (i.e. disqualified for 10 years)

      • community order in last 10 years (i.e. disqualified for 10 years)

   • excusal / deferral

     • no one can refuse jury service

     • BUT Jury Central Summoning Bureau (JCSB - administers jury system for CC) has discretion (on application of juror) to allow juror to:

1. be excused if

1. can show good reason (s9(2) Juries Act); OR

2. NOT capable of acting effectively as juror due to physical disability

2. seek deferral of summons (s9A1) e.g. holiday clash

   • regardless of whether already applied to JCSB, can also apply to court to be excused

   • potential bias

     • test = apparent bias: would a fair-minded and informed observer conclude that there was a real possibility of bias having regard to fact eligible and that any objection would be the subject of judicial decision? (Porter v Magill)

       • CPS employee in case prosecuted by CPS

       • serving police officer working in same area as police Ws in case

       • juror knows disputed W personally (i.e. W likely to give oral evidence)

       • juror is serving police officer AND knows W personally AND important conflict on police evidence

       • agreed W (even if police officer)

       • merely employed as prison officer in prison where D held (mere suspicion would know D's bad character)

       • CPS employee in case prosecuted by another pros authority

       • ? serving police officers generally:

1. fair minded observer conclude partiality of juror to W may have caused jury to accept evidence of that W; AND

2. would fair minded observer consider that this may have affected outcome of trial?

   • how is biased determined?

     • case-by-case basis

     • judge asks Qs to juror (in court / in writing)

• summoning for jury service

  • can be summoned to attend anywhere

  • BUT Lord Chancellor must have regard to convenience to jurors + desirability of selecting those who live within reasonable travelling service

  • LC simply picks from electoral roll duty to inform if ineligible / disqualified

  • panels of those summoned

    • LC preps lists of those summoned, in his discretion

• empanelling the jury

1. number of potential jurors come into courtroom

2. clerk explains to D 12 names read will = jury

3. clerk selects 12 jury cards (name + address) + reads out names

4. those 12 go into the jury box

5. clerk tells D he has right to challenge jurors before sworn

6. clerk reads each name, after which juror swears oath

7. judge warns jury that they:

1. should try case on evidence + nothing else

2. must not discuss case outside court

3. should NOT conduct own private research, especially re: the internet (special emphasis, set out penal consequences)

4. warn of need to bring to judge's attention immediately if have any concerns about fellow jurors

• challenging potential jurors

1. standby

   • procedure

     • as juror starts to take oath, pros says 'stand by'

     • judge explains juror cannot sit on that jury (but may be able to on another)

   • common reasons for standby

1. juror fails check

   • usually: PCN for pre-cons by pros

   • national security: thorough check by pros

   • if check positive, stand juror by

2. manifestly unsuitable to sit on particular jury + defence agrees e.g. can't read oath + case document heavy

   • who has power to stand a juror by?

     • only pros (NOT defence) + do NOT have to give reasons

     • judge (rare)

       • N.B. judge CANNOT use power to ensure racially balanced jury or otherwise interfere with random composition of jury

2. challenge for cause

   • use if suspect juror may be biased

   • challenge the polls (single juror) OR challenge the arraign (whole jury)

   • procedure

     • counsel says 'challenge' before juror takes oath

     • simple reason: counsel says in open court

     • complex reason: jury leave, counsel explains, juror may Q'd

   • determining bias

     • test: real possibility of bias Porter (see above)

     • no Q can be asked of juror unless challenging party has already established a prima facie case that person likely to be biased

   • adverse pre-trial publicity

     • juror should only be asked if read (+ if has, successfully challenged) in exceptional circumstances

     • NOT reason for stopping trial if possible to have fair trial

   • who has power to stand a juror by?

     • pros

     • defence

3. judge objects (discretion)

   • replacement of juror after successful challenge

     • replaced by member of jury in waiting

• discharge of jurors

  • discharge of individual jurors during trial

    • up to 3 jurors can be discharged due to evident necessity (matter for judge) e.g. illness, juror has behaved contrary to oath

    • minimum number on jury = 9

    • if more than 3 jurors discharged trial must be abandoned in favour of fresh trial

  • discharge of entire jury

    • mechanism of discharge

      • judge has discretionary power

      • either side can invite making of order BUT judge can make even if both sides submit that it should NOT be made

      • global test = do the interests of justice require the jury to be discharged - are there real grounds for doubting ability of jury to bring objective judgment to bear?

    • effect of discharge

      • D NOT acquitted - can be retried

    • reasons for discharge

1. jury hears evidence that is inadmissible AND prejudicial to D

   • test = test for bias: would OR could continuing trial - by reason of admission of unfairly prejudicial material - result in an unfair conviction?

   • NOT automatic - discretion of trial judge

   • judge may simply direct jury to ignore inadmissible evidence

2. jury CANNOT agree on a verdict

3. individual juror discharged AND risk that juror contaminated rest of jury:

   1. e.g. revealing inadmissible evidence

   2. if juror has specialist knowledge of something relevant to case against D + communicates it to rest of jury must discharge jury (evidence unchallenged)

4. members of jury misbehave during trial

   • test = real danger of prejudice to D?

5. co-D (A) changes plea only if 'possible to point to particular unfairness resulting from B continuing to be tried by same jury'

Judge only trial if danger of jury tampering

• the rule

  • can be tried by judge alone in cases where there is a danger of jury tampering (s44 CJA 2003)

  • = last resort - must be sure below criteria fulfilled

• the procedure for judge only trial BEFORE START OF TRIAL

  • the application

    • pros make

    • must be made at a preparatory hearing

    • all parties must be given an opportunity to make representations

  • judge may only make order if:

1. satisfied real and present danger of jury tampering; AND

2. notwithstanding any steps which might reasonably taken to prevent jury tampering (including police protection) the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice

   • examples of appropriate cases

1. retrial + jury in original trial discharged due to tampering

2. jury tampering has taken place in previous criminal proceedings involving D

3. attempted / actual intimidation of Ws (s44(6))

• procedure for DISCHARGE DURING TRIAL of jury because of jury tampering

1. judge must allow parties opportunity to make representations

2. judge:

1. may order trial to continue without jury if:

1. satisfied jury tampering has taken place; AND

2. to continue without jury would be fair to D (s46(3))

------OR---------

2. must order that trial be terminated if necessary in the interests of justice (s46(4))

   • AND if Y judge may order any new trial be conducted without jury (s46(5))

• domestic violence trials

  • on application of pros (must be at preparatory hearing), judge alone permitted to order trial of some - NOT all - counts on indictment if:

1. number of counts on indictment likely to mean trial by jury involving all counts impracticable; AND

2. each count / group of counts which would be tried with a jury can be regarded as a sample of counts which could be tried without a jury; AND

3. in interests of justice for order to be made

   • judge must have regard to steps which might reasonably facilitate trial by jury ( reasonable if D might get lesser sentence)

   • effect

     • D found G by jury on sample count other counts can be tried without jury

     • if D found G of other counts, judge must give reasons

Custody time limits - also in SGS 3 (bail)

• definition

  • = max period D can be kept in custody whilst relevant preliminary stage of proceedings is being completed

  • complies with art 5(3) i.e. = 'trial within reasonable time / release pending trial'

• preliminary stage

  • custody time limit ceases to operate at start of trial

  • start of trial =

    • point jury sworn / court accepts G plea (CC)

    • if there is a preparatory hearing, that is deemed to = start of trial (CC)

    • when court begins to hear pros evidence (unless re: hospital order) / accepts G plea (mags')

• time limits

1. summary offences

   1. between first appearance + summary trial - 56 days

2. either way offences

   1. between first appearance + decide on summary trial within 56 days - 56 days

   2. between first appearance + s51 sending - 70 days

   3. between s51 sending to CC + start of trial - 182 days

3. indictable only offences

   1. between s51 sending to CC + start of trial - 182 days

• expiry / extension of time limits

  • on expiry, D must be released on bail (BUT see below)

  • on expiry, CPS / pros should:

    1. apply for extension

    • Ds charged with homicide / rape...