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Trial Notes

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Trial

(1) SUMMARY TRIAL in magistrates' court??

Summary trial: could be:
o summary only offences;
o OR either-way offences (where (a) D has not elected trial in Crown Court &
(b) magistrates considered the case suitable for summary trial).
Summary trial takes place before either:
o (a) A 'bench' of 2 or 3 lay magistrates ('JP's, unpaid volunteers).
o OR (b) before a single District Judge.
o A justices' clerk ('court clerk'/'legal adviser') provides legal assistance to the bench with relevant law and procedure; takes no part in deciding a verdict; is not required to be present when a District Judge is residing.
Bench/District Judge = tribunal of fact and law. Hence will have to put 'put out of their mind' any inadmissible evidence.
CrimPR 24 contains procedural requirements.

SUMMARY OF PROCEDURAL STEPS:
-(1) Legal arguments
-(2) prosecution opening speech: Pros has right. summarises prosecution case,
concisely identifies relevant law, outlines the facts, indicates matters likely to be in dispute .
-(3) Defence identify matters in issue
-(4) Prosecution Evidence: Prosecution witnesses (XIC by prosecution; XX by defence;
Re-X by prosecution); undisputed prosecution evidence introduced by reading
Witness Statements and/or by Written Admissions; reading D's Record of Interview.
-(5) Conclusion of Prosecution Case
-(6) Submission of no case to answer: r24.3(3)(d): on D's application, or court's own initiative, court may acquit on prosecution that prosecution evidence is insufficient for any reasonable court properly to acquit.
-(7) Informed of Right to give evidence & adverse inferences: r24.3(3)(e): D must be informed of (i) right to give evidence and (ii) the potential effect of not doing so at all, or of refusing to answer a question while doing so.
-(8) Defence Evidence: Defendant and/or Defence Witnesses (XIC by defence; XX by prosecution; Re-X by defence); undisputed evidence introduced by reading Witness
Statements; and/or by Written Admissions.
-(9) Prosecution closing speech: only where (i) D is represented or (ii) whether or not represented, the D has introduced evidence other than from himself.
-(10) Defence closing speech
-(11) Legal Advice: to magistrates from Justices' Clerk/legal adviser (r14.15(2)(b)).
-(12) Magistrates/District Judge Retire to Consider Verdict
-(13) Verdict: If guilty, court must give sufficient reasons to explain decision (r24.3(5)).
The role of the justices' clerk/Legal Adviser [D22.80-81] ???There is a distinction between 'clerks' in the strict sense of the word and the 'legal advisers' who form part of the court staff.
The function of a clerk in court is the same whether he is a court legal adviser or the actual clerk to the justices, although a legal adviser may (and ought) to seek assistance from the clerk if a point of difficulty arises on which the adviser does not feel qualified to advise the magistrates.
Statutory functions of justices' clerk -s3 Courts Act 2003:
o Functions include: giving advice to any/all of the JPs about matters of law
(including procedure and practice), on questions arising in connection with the discharge of their functions, including questions arising when the clerk is not personally attending on them.
o The powers of a justices' clerk include: at any time when he thinks he should so do, bringing to the attention of any/all the JPs any point of law (including procedure and practice) that is or may be involved in any question so arising.
CrimPR 24.15, summary of duties of justices' legal adviser, INCLUDING:
o Drawing court's attention, before hearing begins, to:
-What the prosecution alleges;
-what is agreed;
-what is in disputed;
-what the parties have said about how they expect to present their cases;
o Whenever necessary, giving the court legal advice (and if necessary attending the members of the court outside the courtroom to give such advice, as long as the parties are informed of any advice given outside the courtroom);
o Assisting the court in the formulation of its reasons, and the recording of those reasons;
o Assisting the accused if he is unrepresented

Assisting the court by making a note of the substance of any oral evidence or representations; marking as inadmissible any parts of written statements introduce in evidence that are ruled admissible;
o Ensuring a record is kept of court's decisions and reasons for them

Making any announcement (other than of verdict or sentence)
CrimPD, list of matters on which the clerk or legal adviser may advise the magistrates a) Questions of law b) Questions of mixed law and fact c) Matters of procedure and practice d) The process to be followed at sentence and the matters to be taken into account, together with the range of penalties and ancillary orders available
(in accordance with the relevant sentencing guidelines)
e) Any relevant decisions of the superior courts or other guidelines;
f) The appropriate decision-making structure to be applied in any given case;
g) Other issues relevant to the matter before the court.
Legal adviser is also required to assist the court as to formulation and recording of reasons , where appropriate. ?Clerk may also ask questions of witnesses and the parties , in order to clarify the evidence any issues in the case;
They must ensure that every case is conducted justly

Before trial, justices' clerk must draw court's attention to:
-What the prosecution alleges;
-what is agreed;
-what is in dispute;
-what the parties have said about how they expect to present their cases;

Start of the Trial (D22.36)?

If a plea was not entered on an earlier occasion ? accused is asked to enter a plea.
If the accused entered a not guilty plea on earlier occasion ? justices clerk will ask the accused to confirm that plea.

(1) Legal arguments (pre trial hearings/rulings)????There is no requirement for legal arguments to take place before trial starts; but often makes good sense. Because prosecution will want to know what can be referred to in the prosecution opening speech.
Also, if the legal argument is such that losing the argument would leave the prosecution with insufficient evidence to continue (eg where a confession is challenged where that confession is the only worthwhile evidence in the case) ?
makes sense to deal with this at the start.
Exactly when a legal application is made = a matter for discretion of bench/District
Judge.
S8A MCA 1980 allows for pre-trial hearings i.e. hearings before any evidence is called at trial where accused has entered a not guilty plea (or before court considers whether to make a hospital order if accused may be unfit to plead).
o where court can make a ruling on admissibility of evidence/any other question of law.
A pre-trial hearing/ruling can ONLY be made if

(1) both parties have been given opportunity to make representations; AND
o (2) it appears to court to be in the interest of justice to make the ruling.
if the D is unrepresented, he must be given opportunity to apply for legal aid before any ruling is made.
A pre-trial ruling can be made on application of defence or prosecution, or of the court's own motion
S8B(2): Any ruling made at a pre-trial hearing is binding until the case is disposed of
(i.e. if accused is acquitted/convicted or prosecutor decides not to proceed or case is dismissed).
S8B(3): However, a pre-trial ruling can be can be varied or discharged (on application or of court's own initiative) IF:
o (1) in interests of justice &
o (2) parties have been given opp to be heard; & ??

o (3) A party can apply for discharge/vary of ruling ONLY if there has been a material change of circumstances since the ruling was made (or since a previous application to vary/discharge was made), eg new evidence, or if something was not drawn to the attention of the court when it made its ruling.
-[[BECAUSE: it will not be in the interests of justice to vary/discharge the ruling unless there is changed circumstances/fresh evidence, it is not sufficient that a different bench reaches a different conclusion on the same material].
o NB, there is also a common-law rule allowing variation/discharge of pre-trial ruling: though this will only be relevant in a case not covered by ss8A-8B
(which 'bite' only once the decision has been made that a summary trial will occur).
Magistrates have discretion re when to determine questions of admissibility of evidence (or other incidental issue) [[this material is repeated below under
'objections to prosecution evidence']]
o So they can rule on a s78 application (1) when it arises OR (2) hear all the evidence (including the disputed evidence relating to the legal argument)
before ruling on admissibility.
o However, delaying determination of a question of admissibility until after conclusion of prosecution evidence may be unfair to the defence ? the interests of justice may dictate that a ruling on admissibility is made early enough to allow D to know whether the evidence forms part of the case against him, to deal with it in cross-examination and in his evidence; and if appropriate, to make a submission of no case to answer;
Delay may not be desirable ESPECIALLY where the disputed evidence is a confession which forms the main evidence against a D.
o The accused will not be able to give evidence about alleged irregularities in the obtaining of a confession, unless he testifies in his own defence, which will expose him to XX about the general issues
Another reason against delay: And defence advocate, when deciding what defence evidence to call, ought to know what crucial evidence, such as a confession, is to be part of the prosecution case.

(2) prosecution opening speech:?[r24.3(3)(a)]
Prosecution has right to make an opening speech

summarises prosecution case,
o concisely identifies relevant law,
o outlines the facts,
o indicates matters likely to be in dispute.
CrimPR: the purpose is to briefly explain what the case is about; will not normally be necessary to present a detailed account of all the prosecution evidence that will be adduced. ?

L and B v DPP: case had been adjourned or a month after the main prosecution witness had given evidence; at the resumed hearing, the prosecutor was allowed to deliver a second speech to remind them of evidence which they were having difficulty remembering. Nothing wrong with this.

(3) Defence may be asked to identify matters in issue [rr24.3(3)(b)]?If the court feels it would assist them to understand the case and resolve any issue
-they can ask the defence (the defence rep; or D himself if unrepresented) to identify concisely what is in issue in the case (what is in dispute).
This can be helpful in summary trials, because unlike Crown Court there is no requirement for a defence statement.
CrimPR, the purpose of this: is to provide the court with 'focus as to what it is likely to be called upon to decide', so that the justices will be alert to those issues from the outset and can evaluate the prosecution evidence they hear accordingly.

NB, re opening speeches [D2.29]
-Makes point that the justices in most cases will already be aware of what has been declared to be in issue (from the Preparation for Trial Form and any summary of issues provided by justices' clerk).
-Hence a party who has nothing of substance to add should say so.
-If the accused refuses to identify the issues at the case management stage ? the court may limit the proceedings on the day of the trial ? court is empowered to limit the questioning of witnesses and the duration of any stage of the hearing.
-And if at trial there is any 'significant divergence' from the issues identified at case management ? court can exercise the power to impose sanctions.

(4) Prosecution Evidence:Prosecution witnesses (XIC by prosecution; XX by defence; Re-X by prosecution);
undisputed prosecution evidence introduced by reading Witness Statements and/or by Written Admissions; reading D's Record of Interview.

(a) calling prosecution witnesses (XIC by prosecution; XX by defence; re-X by prosecution)
-Where a prosecution witness attends court to give evidence, the prosecutor is obliged to call him to give evidence if the defence so requests, or at least tender him for XX.
-Which witnesses will be called for live evidence:
o When preparing its case, prosecution will decide what witnesses it intends to rely on to prove its case:
o This bundle of witness statements should be served on the defence prior to trial.
o Defence will then decide what witnesses need to be cross-examined.
o Defence will only need to cross-examine where there is a dispute as to the contents of their witness statement ? IF no dispute, the contents of statement can simply be read or admitted (below).
-Obligation for prosecution to call witnesses it has notified defence it intends to rely upon and whom defence have requested ?o Once the prosecution has notified defence of any witnesses it relies upon,
and the once the defence have requested the attendance of any of those witnesses in order to cross-examine them, the prosecution is obliged to call them.
o So the prosecution cannot simply abandon a witness mid-trial unless the defence agrees: because otherwise the prosecutor retains an unfettered discretion until the case starts and the outline of evidence is given in opening speech.
o If the prosecution decides they do not wish to adduce evidence from any witness of whom it had served a witness statement on the defence ? they must still call the witness and 'tender' him for XX: meaning he will go into witness box and not asked questions in chief, but the defence will still be able to XX him.
o EXCEPTION: where, after service of the statement but before trial, the prosecutor forms view that the witness is not capable of belief ? there is no obligation to call that witness. Prosecution will abandon that witness from its case. The defence can make its own arrangements to call that witness if it wishes to do in support of its case.
If the prosecution choose not to call a particular witness, and the court is satisfied that the interests of justice require he should give evidence and would be unfair to defence that he should not ? they should so rule (although the court cannot compel the prosecutor to call a witness).
o In an appropriate case, justices may call the witnesses themselves.
PROCEDURE: XIC; XX; re-X
o Adult witness will be called, go into witness box, either take the oath or affirm that the 'evidence which I shall give shall be the truth, the whole truth and nothing but the truth; and will identify him by name.
o Address of witness must not be taken unless is relevant to an issue in the case.
o Prosecution will then XIC (examination-in-chief), taking the witness through the prosecution evidence.
o Then XX by D's legal rep:
-If 2+ Ds, D1 legal rep cross-examines first, then D2's legal rep.
o Then prosecution can re-examine on any matters arising out of XX.
o The justices' clerk is entitled to ask questions of prosecution witnesses
(unlikely to happen when D is legally represented;
o but when a D is 'in person' (representing himself) ? Clerk must assist an unrepresented Defendant, then clerk should ask any questions he considers necessary in the D's interests.
o After completing their evidence, prosecution witnesses can remain in court to watch remainder of case; but prosecution witnesses cannot go into court to watch before giving evidence.

(b) Reading written witness statements (instead of calling the witness to give live evidence) ? S9 CJA (agreed statements) ???When the defence has no dispute with the content of a prosecution witness statement, and where defence agrees ? the prosecution can simply rely on the written witness statements of the witness. [[CJA, s9]]
If a party wishes to object to the admission of the written statement ? must serve notice of objection not more than 7 DAYS after service of the statement.
Egs of commonly agreed evidence: (1) doctors who have examined injuries; (2)
police officers who have attended scene of an alleged crime, arrested Ds and transported them to police station; (3) Scenes of Crime Officers who took fingerprints/photographs/other evidence; (4) witnesses such as CCTV operators and shop workers, who took/passed to the police video evidence.
Under CrimPR r24.5 ? court must read such statements ;
o and they must be read or summarised aloud IF: if any member of the public,
including any reporter, is present in court, UNLESS court directs otherwise.
Editing statements: The defence and prosecution can agree to edit a witness statement to avoid the need to call a witness: eg if a statement includes a part which defence consider prejudicial, and prosecution agrees not to rely on it, then the offending part can be edited, and just the remaining portion relied upon. Editing statements is common practice in both m' court and Crown Courts.
Can ALSO rely on a witness statement where a witness is unavailable to be called in person to give evidence (eg due to fear, illness, death, cannot be located). If so,
prosecution can apply to read wht witness statement under the hearsay provisions in CJA 2003 ss114-136.

(c) Written admissions (formal admissions/admitted facts)) ? s10 CJA
-Where facts are agreed by all parties ? they can be written down and presented to the court as admissions (s10 CJA 1967)
-Sometimes, instead of relying on witness statements, the prosecution and defence will agree a series of submissions (agreed facts) to cover the salient matters contained in those statements.
-Often admissions used as a convenient way of setting out agreed evidence without having to read out numerous witness statements.
-The magistrates/District Judge and clerk will be given a copy of the written admission.
-A written record of a jointly admitted fact must be made (unless court directs otherwise).
(d) Interviews
-Where a D has been interviewed at the police station, and has responded to all questions put to him ? that interview is recorded and from that recording a 'record of taped interview' (ROTI) is produced.
o The interview forms part of the prosecution evidence.
o It is usually presented to court as a written record of interview.
o Rare for a transcript of the whole interview to be shown in court; normally,
prosecution & defence agree an edited record of interview, containing the relevant Questions and answers, removing those not in issue.
o The bench and clerk will get a copy of the ROTI;
o and is usual practice for the prosecution to read the ROTI out in court.

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