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Crown Court Trials Notes

BPTC Law Notes > BPTC Criminal Litigation Notes

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A more recent version of these Crown Court Trials notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Criminal Litigation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

CROWN COURT TRIALS Abuse of Process Once indictment against Defendant signed, little Defence can do to prevent case going ahead. If Defence believe that the prosecution is grossly unfair, can ask Judge to intervene and stay the prosecution (order that it shall not continue without leave of Crown Court or COA) 2 bases:

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Where Defendant cannot receive a fair trial, and

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Where it would be unfair to try Defendant.

Examples:

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lengthy delay + prejudice to Defendant,

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failing to secure/destroying evidence,

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going back on promise made to Defendant, and

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Abuse of Executive power.

Representations by Prosecution and Defence on application for stay generally refer to Art.6 and overriding objective of Crim PR to deal with cases "justly" Delay

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where trial would be oppressive as a result of delay + some prejudice to Defendant caused by delay.

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No right to trial within a reasonable time, proceedings should only be stayed if fair trial no longer possible or no longer fair to try Defendant due to compelling reason.

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Stay never appropriate if lesser remedy would save Defendant's Art.6 rights.

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Bell v DPP - Relevant factors:
* length of delay,
* Prosecution's reasons to justify the delay,
* Defendant's efforts to assert his rights, and
* prejudice caused to Defendant.

Failure to Obtain Evidence

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Consider:
* the relevant duty (to obtain the evidence)
* whether failed by not obtaining or not retaining the evidence
* whether caused serious prejudice which rendered fair trial impossible
* whether the failure was a result of bad faith or serious fault.

Breach of Promise made to Defendant

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Where police/Prosecution promise Defendant that he will not be prosecuted.

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Question: Whether, in light of assurance, it is fair to try Defendant

Abuse of Executive Power

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Where prosecution of Defendant would bring justice into disrepute.

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Essentially where Prosecution/Exec bring about offence - therefore unfair to prosecute Defendant.

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Requires connection between alleged wrongdoing and trial

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Includes entrapment - ie. where police create the (circumstances of) offence

Procedure

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Consolidated Criminal Practice Direction, para IV.36

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Written notice must be given to Court and parties at least 14 days before trial, setting out grounds of application

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Skeleton arguments must be served by both Prosecution and Defence prior to hearing

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Court may:
* decide application before trial, or
* decide application at the conclusion of evidence.

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If genuine grounds for application - should determine pre-trial. Judge Only Trials

Jury Tampering Perceived Danger Before Trial

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"jury tampering" - actual or threatened harm, intimidation or bribery of a jury/juror/their family/friends/property.

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Where there is perceived to be a danger of jury tampering, the Prosecution may apply for the trial to be conducted without a jury.

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Court must be satisfied that:
* there is evidence of a real and present danger that jury tampering will take place,
* there is so substantial a risk of jury tampering that it is necessary in the interests of justice for the trial to be conducted without a jury, notwithstanding any steps which might reasonably be taken to prevent the risk.

After Jury Dismissed due to Tampering

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Where jury discharged during trial due to jury tampering, Prosecution can apply for case to continue without a jury.

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After discharging jury, must hear representations from Prosecution and Defence as to how trial should continue

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May continue trial without jury or order retrial without jury.
* Should normally continue trial himself
* Unless: independent and informed observer would conclude that there was a real possibility of bias.

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Must be satisfied that risk of tampering is such as to make trial without a jury necessary in the interests of justice, notwithstanding any steps which could be taken to prevent the risk.

Where Court orders case to proceed without a jury, Judge acts as jury and must give reasons if convicts Defendant. Sample Counts

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s17 Domestic Crime, Violence and Victims Act 2004 - Procedure which allows jury to try sample count(s) and Judge to try remaining counts.

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Application by Prosecution - Judge acceded if:
* number of counts in indictment such that a trial of them all by the jury would be impracticable,
* each count to be tried by the jury can be regarded as a sample of the counts to be tried by the judge, and
* it is in the interests of justice.

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If jury convict Defendant of sample counts, Judge tries remaining counts in light of this verdict and passes sentence in accordance with Defendant's overall culpability. The Jury

Who can serve?

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s1 Juries Act 1974 - Everyone on the electoral roll who is not mentally disordered or disqualified because of previous convictions

"Bias"

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Abdroikov [2007] - 2 cases quashed; one had a CPS juror (prosecution by CPS) and one had a serving police officer juror in same area as police Witnesses in case.
* Question: would a fair-minded and impartial observer conclude that there was a real possibility of bias? (Question of fact in each case)

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Allan - Test: Apparent bias
* Any potential juror who knows Witnesses who are to give evidence, should step down "unless it can be said with certainty that the evidence of the Witnesses who are known will play no contested part in the determination of the matter"

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Fact that a police juror might favour police evidence is not automatically "bias" - consider whether evidence challenged, or whether forms important part of Prosecution case.

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ECtHR - Where important conflicts over police evidence and police juror who knows the officers, there is nothing which can be down to sufficiently reduce the possibility of bias.
* Otherwise violation of Art.6.1 - not impartial tribunal

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Possibility that prison officer juror may know of Defendant's bad character cannot, by itself, lead to bias.

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Can be no objection to CPS juror in case prosecuted by someone else

Disqualification by Previous Convictions

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Sch.1, part 2 Juries Act 1974 - Cannot serve as a juror if:
* presently on bail in criminal proceedings,
* have, at any time, been sentenced in UK to custody of 5 years+
* have, in past 10 years, in UK, served a custodial sentence/received a suspended sentence of imprisonment or detention
* have, in past 10 years, in England or Wales, received a community order.

Excusal from and Deferral of Jury Service

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s9(2) - A person summoned for jury service may seek excusal if can show a "good reason"

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s9A(1) - A person summoned can seek deferral of the summons.

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Discretion exercised by Jury Central Summoning Bureau - generally prefer deferral to excusal

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s9B - Person may be excused from jury service if not capable of acting effectively as a juror because of physical disability.

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Person summoned can also apply to the court to be excused - ie. where comes into problems during trial, should:
* raise with trial judge, and
* if sufficient reason shown,
* judge decides whether to:
# adjourn until juror can return, or
# continue with a reduced number of jurors.

Empanelling the Jury

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A number of potential jurors come into courtroom

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Clerk reads out names of 12 of them, randomly selected.

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12 jurors go into box

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Clerk explains to Defendant that the list of names about to be called out will form the jury which will try the case,

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also informs Defendant of right to challenge jurors before they are sworn.

Challenging Potential Jurors

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Potential jurors only go through basic police check to ensure not disqualified, Prosecution and Defence see names but not much more information.

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2 main types of challenge:
* by Prosecution - "standby"
* by Defendant - "challenge for cause"

Standby

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Right of Prosecution - does not have to give any reason for the challenge.

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As juror starts to take oath - Prosecution counsel says "stand by"

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Judge then explains to juror that he cannot sit on this jury but may be required to sit on another one.

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Appropriate where:
* terrorism case - more detailed check of jurors - unsuitable jurors can be stood by
* potential juror is manifestly unsuitable - Defence agree should not sit
# eg. a person who cannot read words on oath card - unsuitable for case involving a lot of written evidence.

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Judge also has power to stand a juror by.
* Use very rarely, cannot use:
# on defence's request - to secure racially balanced jury
# to interfere with jury composition by selecting juror's outside court's catchment area - in order to minimise risk of intimidation

Challenge for Cause

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Only available to Defence

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Use where suspected a juror might be biased.

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No questions may be asked of juror unless Defence have established a prima facie case that the juror is biased.

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Defence says "challenge" before juror takes oath

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If simple case - Defence explain objection and Judge will dismiss juror

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If complicated case - rest of jury in waiting sent out, Defence explains challenge and, if necessary, questions the challenged juror

Adverse Publicity

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Where issue of adverse publicity is central to case, should only question all jurors on whether read/heard it in the most exceptional circumstances
* Jury expected to follow directions received from trial judge and return a verdict based solely on evidence in court.

Replacement of Juror after Standby/Successful Challenge

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Dismissed juror replaced by another member of the jury in waiting

Discharge of Jurors (during trial) Individual Jurors

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s16 JA - Up to 3 (of 12) jurors may be discharged during the course of trial because of illness or other "necessity"

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What constitutes "necessity" - matter for trial judge.

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If more than 3 jurors have to be discharged - trial abandoned, fresh trial to take place.

Whole Jury

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When whole jury discharged, Defendant not regarded as acquitted and so can be retried.

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Entire jury may be discharged if:
* Hears inadmissible evidence which is prejudicial to Defendant
# not automatic - matter for trial judge
# Question: Whether a direction to ignore would be sufficient or whether, even with direction, real possibility of bias
* Jury cannot agree on verdict,
* Individual juror has to be discharged and real risk he has contaminated the rest of the jury
# where a juror has personal knowledge of something and has communicated this to the rest of the jury - whole jury must be discharged
* members of jury misbehave + real danger of prejudice to Defendant

The Test

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Discretion of trial judge - must decide whether the interests of justice require the discharge of the jury

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If Judge considers there are real grounds for doubting the ability of the jury to bring an objective judgment to bear on the issues, should discharge.

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Must consider what has happened, directions which can be given to counterbalance it.

Co-Defendant Changes Plea

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Where a co-Defendant changes plea to G during course of trial, jury should be discharged and fresh jury for trial of other Defendant only if "possible to point to a particular unfairness which could be seen to result from A continuing to be tried by the same jury"

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Must discharge where Co-Defendant's G plea carries inference of other Defendant's guilt, unless:
* co-Defendant's G-plea is admissible in evidence against Defendant,
* directions can be given to nullify its effect, or
* there is some other good reason not to discharge the jury.

Start of the Trial

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Once Jury empanelled, Clerk reads out the indictment and tells Jury Defendant has pleaded NG.

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Then tells them: "It is your charge to say, having heard the evidence, whether he be guilty or not" Proceedings in Defendant's Absence

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