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Evidence At Trial And Types Of Evidence Notes

BPTC Law Notes > BPTC Criminal Litigation Notes

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A more recent version of these Evidence At Trial And Types Of Evidence notes – written by City Law School students – is available here.

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At Trial (1) Arraignment What is it?


Arraignment consists of 3 parts:


Calling D by name;


Reading out the indictment to him;


Asking for his plea

* Each count should be read separately.


* D can plead as follows per s6 CLA 1967:

1. Guilty a. Goodyear - Whilst Counsel must give appropriate advice to D, the decision on plea is D's alone. No one can put improper pressure on D to plea any way (whether it be the Judge or Counsel). b. D should not plead G unless he says he is guilty in whatever way. c.

Indications on Sentence i. Judge doesn't have to give indication of sentence. If he chooses to do so, this does not amount to improper pressure. ii. Judge is bound by this maximum. If D thereafter pleads NG, the indication ceases to have effect. iii. D's advocate should not seek an indication without written, signed authority from the defendant that he wished to seek an indication. iv. The advocate remained personally responsible for ensuring that his client fully appreciated that

v. D should not plead guilty unless he was guilty; vi. Any sentence remained subject to the entitlement of the AttorneyGeneral to refer the sentence as unduly lenient; vii. The indication reflected the situation at the time it was given only; viii. The indication only related to matters about which an indication was sought.

2. Not Guilty a. NG to the Offence Charged, but G of lesser Offence i.

If this is not accepted by P, then a NG plea is entered, and the G plea is a nullity and withdrawn. A plea of guilty only ranks as a wrong when sentenced, not when recorded.

b. Accepting Lesser Pleas i. If P asks Judge's opinion, they are bound by it. If they don't, Judge nevertheless has a power to adjourn for reconsideration - Will go to local Chief Crown Prosecutor, then to DPP, then to AG respectively. ii. Judge can always change his mind on accepting the plea once he hears the background, and direct a trial continues. c.

Jury find D NG of Offence Charged, but G of alternative offence i.

A jury may find D guilty of an alternative offence not on the indictment where, in accordance with s6(3) Criminal Law Act 1967:

1. D is tried on indictment for any offence except treason or murder;

2. the jury find him not guilty of the offence charged in the indictment;

3. the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the Crown Court

ii. A summary only offence (including one to which section 40 applies) may

fall within this definition and be sentenced by the Crown Court. The court is restricted to the powers of sentencing of the magistrates court. iii. Although charges of wounding, assault occasioning actual bodily harm

and racially aggravated assault occasioning actual bodily harm and racially aggravated common assault would be the most obvious that might lead to consideration of an alternative verdict of common assault, it is also important to consider cases involving sexual offences and harassment with violence. d. A plea of not guilty in addition to any demurrer or special plea; i. There are three special pleas:

1. Autrefois Acquit

2. Autrefois Convict



3. Mute of Malice a.

The Court may order NG to be entered on his behalf

(2) Change of plea NG to G A defendant who has pleaded not guilty can, at any time before the jury return their verdict, ask through their Counsel that the 'indictment be put again' (or charge sheet in the Magistrates' Court).

G to NG

1. This is significantly more difficult!

2. A defendant who pleads guilty can

at any time before they are sentenced, seek leave to change their plea from guilty to not guilty.

3. Where a defendant has been Usually though, a defendant changes their represented properly (ie proper mind on the day of trial either for tactical advice given, no undue pressure reasons or because they were hoping that exerted on them and their plea is the witnesses wouldn't turn up but now clearly unequivocal) a court should they have. reject the application to vacate their guilty plea and allow them Strictly speaking you need the leave of the to enter a fresh NG plea. Judge/Magistrates to have the

4. In practice then, though it's always indictment/charge sheet put again though a matter of the court deciding by asking that it be put again, that is whether it would be unjust for the sufficient and the court will always say yes. guilty plea to remain as is, the two most common scenarios in which the rarely exercised discretion will properly be applied is where either.

5. D can show that P has no evidence of an essential ingredient of the offence, or

6. D was improperly placed under undue pressure to plead guilty by his legal team. So usually, counsel/solicitor will withdraw!
D will waive legal privilege and give evidence of what was said in his conference.

(3) Unfitness to Plead


If D is "unfit to plead", it depends upon R v Pritchard:

1. Does D understand and plead to the indictment?

2. Would D be able to exercise his right to challenge the jurors?

3. Would he understand the evidence given during trial?

4. Could D instruct his legal advisors and give evidence?


This is usually raised by defence but can be raised by P or Judge if no D lawyer.


Under s4(4) Criminal Procedure (Insanity) Act 1964 the issue should be raised "as soon as it arises" - ideally before arraignment, but can be during the trial too! At this point, court has a discretion to postpone the issue if it is expedient and in D's interests e.g. where no case to answer will likely succeed.


If D is found unfit to plead, then "Special Procedure" is followed .




s4A CPIA - Jury must be satisfied that D did or made the omission charged against him.


But no mental element will be taken into account - So no mental defences (e.g.: Diminished Responsibility, or loss of control are relevant in murder). But selfdefence, mistake, or accident - P will have to negative BARD.

s5 CPIA If D is found guilty, Court is limited to:


Hospital Order with or without Restriction Order (without limit of time) - This is mandatory in murder cases;


Supervision Order;


Absolute Discharge.

If D is silent during arraignment, a finding must be made as to whether he is:


Mute of Malice - Deliberately silent.


Mute by Visitation of God - Silent for reasons beyond his control.

This is determined by Jury, and P must prove on BARD.


If Mute of Malice, court must enter plea of NG on his behalf.

* If Mute by visitation of god, must consider whether he is fit to plead! V RARE!

Calling Witnesses Witness Summons Summons can either be for live evidence or to produce a document. Hearings should be on notice. It should be served on potential Witness with at least 14 days notice to make representations. If W fails to attend without a "just excuse" the court can issue a warrant for W's arrest.

* The test for W summons is: a. That W is likely to be able to give/produce the material evidence (live or document); and

b. That it is in the interests of justice to issue a summons.

* The summons will require the person to attend court, and give the evidence. It may also make an order to attend or produce documents prior to the hearing

* s2C CP(AoW)A 1965. The W Summons will not be effective if the summonsee convinces the court he was not served with notice of the application to issue the summons, was neither present or represented at the hearing, and cannot give material evidence.

* The Summons must identify with reasonable particularity the thing to be produced, and it must be admissible. It is not proper (and will be set aside) to make the recipient make judgments on relevance and weight.

* Similarly, the evidence must be admissible and material (i.e relevant)

* May object on grounds of PII immunity.

Calling Witnesses - Competence & Compellability What is the difference?


W is competent if he may lawfully required to give evidence.


W is compellable if he may lawfully be required to give evidence.


Competent witnesses are generally compellable.

The Test of Competence


s53 YJCEA 1999 - All persons (whatever their age) are competent to give evidence in criminal proceedings. UNLESS:



W is not able to:


Understand questions put to him as W; and


Give answers which can be understood.

Defendant charged in the proceedings is not competent to give evidence for the prosecution. NB: if D pleads guilty, he is no longer charged, and is thus competent!



s1 CEA 1898 - A person charged in proceedings shall not be called as W except upon his own application.


A person who has pleaded G is not charged, so is competent and compellable for a codefendant.

(2) Spouse/CP


s80(2) PACE - Spouse/CP is compellable by the defence.


s80(2A) PACE - Spouse/CP of D is compellable by any other defendant but only in relation to a "specified offence" with which that other person is JOINTLY charged with D1; OR the prosecution in relation to a specified offence. This is defined as: a.

Assault on, or injury or threat or injury to spouse/CP or person under 16;


Sexual Offence of someone under age;


Inchoate of the above.


BUT can't be compelled if charged in any proceedings. (I.E Spouse is a defendant)


Only applies to current spouse. Ex-spouse can be compellable as if never married. Doesn't apply to polygamous spouses! No application to unmarried partner.


There is no power to prevent marriage of prisoner on remand and Pros W, even though renders no-compellable W per R (CPS) v Registrar-General.


This poses no bar to interviewing the W!! So can still use W's statement against H even if she declines to give oral evidence.


Judge should warn W she doesn't have to give evidence, but if she does she will be treated like any other W.


P has a duty to disclose to D that W informed P outside court she doesn't wish to give evidence, her statement to police was inaccurate, and inform court, so that she could be warned she need not give evidence. The logic is that a spouse should not be compelled to act against the interests of their partner, unless that partner is committing domestic offences (e.g. domestic violence, or abusing children). At that point, P can compel spouse to attend even if they don't want to. If they refuse to, they will be arrested. If they refuse to answer questions, they will be in contempt of court.

(3) Mentally Ill/Drunk etc


No W is competent when:


Mentally ill;


Drunk and the like.

(4) Deaf & Dumb


Person who is deaf and dumb may be competent if he can - some how - understand and communicate! E.G.: W is sworn through signs. Translated by sworn interpreter interpreted through signs.

(5) Children & YP


Child under 14 is not permitted to give sworn evidence (s55(2) YJCEA), BUT a child may still give evidence.


But age is irrelevant to competency - See above test of ability to understand and answer Qs.


If competent, the jury may convict on the basis of a single child witness, whatever his age per R v B [2011].


Different oath for Youth Courts, and YP in other courts - s28 CYPA 1963.


Wards of Court / Children-in-care


PD28A - If police wish to interview a child subject to ongoing family proceedings, they require FC's consent if that may lead to child disclosing confidential information in those proceedings which would not otherwise be available for the police.


If the child is a ward of court, leave of that court may be required. Notice must be given to the parents, carers, and in care proceedings to the LA and Guardian. Although applications without notice may be done, if certain parties shouldn't know (e.g.: proceedings against father).


Police don't need court's consent in complaints by or against such a child:


1. Serious offences against a child (e.g. rape) where immediate medical examinations are required; or

2. Where child is interviewed as a suspect.

The FC should be notified at the earliest opportunity.

(6) Others


There are also rules for diplomats, sovereigns and bankers, but these are most unlikely to be examined.

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