#13796 - Trial Prcoedures Juries Etc - BPC Criminal Litigation (formerly BPTC) 2024/2025

Trial Procedures

• To avoid D being on remand-in-custody for unduly long periods of time, P must bring case to trial within certain "custody time limits". The numbers to remember are:

  • 56 days for trials in Magistrates of summary-only or either-way offences;

  • 182 days for trials in Crown Court of indictable-only or either-way offences, less any days spent in custody prior to case being sent to Crown Court (usually zero).

• If the limits expire (at any point), D will be released unless P apply to extend it and show it acted:

  • With "all due diligence and expedition"; and

  • That there is "good and sufficient cause" to have D further remanded into custody.

Proceeding in Absence of D in Mags

• s11 MCA 1980 – may try an absent D if under 18. must try an absent D if over 18, unless it appears to the court contrary to the interests of justice. s11(2A) states court shall not proceed in D's absence if there is an acceptable reason for his failure to appear. BUT the court needn't enquire into the reasons for D's failure to appear (s11(6)).

• D will be asked whether he understands the trial can go ahead in his absence on the Preparation for Effective Trial Form per r37.11.

• r37.11 CPR – The general rule requires that the Court must proceed as if he was present and pleaded NG. It must give reasons if it does not do so.

• NB: If D was bailed, he will have committed an offence by failing to surrender to bail - s7 BA.

• Where case is commenced by summons or requisition, court must be satisfied it was served on D a reasonable time before the hearing, or if adjourned D had reasonable notice.

• In deciding whether or not to proceed, Mags/DJ should have regard to the non-exhaustive criteria in (R v Jones [2002]):

  • The nature and circumstances of D's absence (ie: whether voluntary)

  • Whether adjournment may resolve the issue;

  • The length of such an adjournment;

  • Whether D wished to be represented at the hearing;

  • Whether representative is/was able to receive instructions;

  • The extent of disadvantage to D in not giving his own account of events;

  • The risk of jury reaching an improper conclusion about D's absence;

  • The general public interest, and interests of victims/witnesses requiring trial in a reasonable time.

  • The effect of delay on the memories of W;

  • Where allegations against more than one D are joined, and not all have failed to attend, the undesirability of having separate trials.

Crown Court Proceedings

Proceeding in D's Absence in Crown Court

• D is warned he can be tried in his absence at the PCMH, and is in the PCMH Advocates' Questionnaire, Advocate must tick a box confirming D is warned trial may proceed in his absence. This is also an offence under s6 BA 1976.

• The judge will have regard to the R v Jones [2002] factors set out above.

Juror Selection

• Jury summons are sent to those on Voting Register aged 18-70yo (the Voter Register is marked per s3 JA) and ordinarily resident in the UK, Channel Islands, or Isle of Man for any period of at least 5 years since 13yo (s1 JA), who must attend unless granted a discretionary excusal under s9(2) JA where there is a "good reason why he should be excused from attending".

• Thus the general rule is "every person shall be qualified to serve as a juror" (s1 JA 1976)

• A person is disqualified from serving on a jury if:

  • Person is detained under the Mental Capacity Act 2005, or Mental Health Act 1983;

  • Any person on bail;

  • Detention on Her Majesty's Pleasure

  • Any person previously sentenced to life imprisonment;

  • Any person sentenced to imprisonment for public protection (now abolished);

  • An extended sentence;

  • Imprisoned for 5 years or more (and the youth equivalents...!)

  • Any person who in the last 10 years, served any part of a sentence of imprisonment, detention, or received a suspended sentence of imprisonment, or received any community order.

  • This includes all imprisonment under the Armed Forces Act 2006.

  • Imprisonment means custody in detention upon conviction (thus not bail!)

• Under s6 JA 1976, if it appears that a jury will be, or probably will be, incomplete, if the court thinks fit, it may require any persons in, or in the vicinity of the court to be summonsed without written notice for the number of days needed! This is known as "praying a tales" and is historical interest only!

• Police, members of the CPS, judges and Criminal Lawyers are not to be regarded as disqualified by reason of their occupation (R v Abroikov). As to whether they ought serve, the test is "whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased"?

  • CPS lawyer should not serve if the CPS is a prosecuting authority. But could serve in a case prosecuted by a different Government department.

  • CPS employee with any sufficient length of service, importance of role, or connection with the office bringing the prosecution (R v L [2011]).

  • Police officer should not be on the jury when cases from his police station are brought, and he came from the same local service background as the officer whose evidence in dispute even though he didn't know them! (R v Abroikov). Otherwise, presence of a police officer on jury is irrelevant, even if that officer investigates similar offences as the one in issue (eg: child sex offences in R v G.C. [2008]). But it would be if the officer knew that certain procedures had not been complied with relevant to a defence (R v Pouladian-Kari [2013]).

  • A prison officer from the same prison D was remanded at was considered to be biased in R v Wilson and Sprason.

  • Juror sitting next to a witness/D is not bias (R v Prime)

  • Judge should first attempt to resolve by warnings not to apply improper pressure (R v Smith v Mercieca [2005]).

  • A juror who knows a witness ordinarily should be asked to stand down, unless the witness will play no contested part in the determination of issues (R v I [2008]).

  • A juror who knows of D's previous convictions/bad character is not automatically barred, the question is whether it creates a real risk of bias or unfairness. (R v Barraclough [2000])

  • The journalistic opinion of failures of the jury system does not give rise to bias (R v Cornwall [2010]).

Challenging Jurors, and Discharging the Jury

• The fact a juror could have been challenged, but wasn't, is no grounds for appeal (R v Healey)

• The hearing of challenges can be in open court, in camera, or in chambers - s118(2) CJA 1988.

• The burden of proof is on the person making the challenge. (R v Savage [1824]) - The challenge is then dealt with via voire dire and witnesses may be called. Seldom if ever utilised! But can't be examined as to his discredit (previous convictions, his hostile opinions as to guilt of D)

There are three main ways a juror can be challenged:

1. Challenge for Cause by P (s29 JA 1825) or D (s12 JA 1974) - s12 JA 197

   • This can be the whole panel ("To the Array", or an individual juror ("To the Polls")

   • Challenge made after juror's name (or number) is called, but before Oath. (s12(3))

   • This is on the basis that the juror is disqualified/biased, or that the whole panel is not randomly selected.

   • An example of this - Whole jury was sworn in, but then one juror found not to speak proficient English, so discharged full jury! Remaining 11 resworn, and an additional person added. The 11 were not randomly selected, thus jury had to be discharged (R v M [2013]).

   • This can't be used to influence the religious, racial, ethnic, or gender mix of the jury.

2. Challenge by P to Stand By

   1. Rarely used, and doesn't require a reason to stand by. Used when individual juror is plainly unsuitable.

   2. The AG has issued guidelines on the use by P of the right to stand by!

   3. This can't be used to influence the religious, racial, ethnic, or gender mix of the jury.

3. D's Power to Object

   • D may object to any member of the jury after their name is called but before they are sworn in!

   • Though a challenge may be allowed as a matter of discretion after the Oath (R v Harrington).

Miscellaneous Removal Powers

• Removal by Judge in his Discretionary Power

  • The judge may remove a juror, in absence of a challenge, where the juror is not fit to serve on the jury - eg he is disabled, illiterate, or unable to concentrate due to serious illness, or recent death of relative.

  • The judge must remove those jurors who cannot speak English proficiently per s10 JA 1976.

  • This power can't be used to influence the religious, racial, ethnic, or gender mix of the jury.

• Historical Interest Only

  • Peremptory Challenges (without reason), was abolished by s118 CJA 1988.

Discharging the Jury

• Jurors can be discharged through the course of a trial to a minimum umber of 9 (so 3 can go!)

• The most common reason for discharge is illness, death of a recent relative etc, or later realising he knows a Witness in the case etc. Or Improper conduct (conducting investigations himself!)

• One misbehaving juror may lead to the entire panel being discharged, for example if he told everyone evidence he researched which the jury should not have heard. Or by accident, where a witness refers to inadmissible evidence before the jury. In this case, the test is whether by revealing this inadmissible material, it may result in an unsafe conviction (R v Lawson). If more than one interpretation, go with the safe option, and assume the most prejudicial option.

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