1
Q
What is a Crown Court trial also called?
A
A trial on indictment.
2
Q
Name two key physical/structural differences between a Crown Court and a magistrates’ court.
A
- Crown Court has space for a jury of 12.
- It is larger, with more room for the public and legal representatives.
3
Q
What is the difference between a Crown Court Clerk and a magistrates’ court legal adviser?
A
Crown Court Clerk: not legally qualified and gives no legal advice.
Responsible for jury selection, arraigning defendants, and taking verdicts.
4
Q
Who sits as judges in the Crown Court?
(how to call them + robes)
A
- Circuit Judges – “Your Honour,” violet & black robe with red tippet.
- Recorders – “Your Honour,” part-time judges, black robes.
- High Court Judges – “My Lord / My Lady,” red robes (“red judges”).
5
Q
What are the roles of the judge and jury in the Crown Court?
A
- Judge: arbiter of law; rules on admissibility; directs jury on law; may direct acquittal but not guilt.
- Jury: arbiter of facts; decides guilt; must follow judge’s directions on law; can draw inferences from evidence or silence.
6
Q
1st half of crown court criminal process?
A
1️⃣ Legal arguments
2️⃣ Jury selection & swearing in
3️⃣ Judge’s preliminary instructions
4️⃣ Prosecution opening speech
5️⃣ Defence identify matters in issue
6️⃣ Prosecution evidence
7️⃣ Conclusion of prosecution case
8️⃣ Submission of no case to answer
7
Q
When are legal arguments usually heard in Crown Court trials?
A
Often pre-trial before the trial judge, but may occur on the first days of trial.
Can be heard before or after the jury are sworn.
8
Q
(1: Legal Arguments)
What is a voir dire in this context?
A
A hearing (in absence of jury) to resolve factual disputes relevant to legal arguments.
9
Q
(1: Legal Arguments)
What are common types of legal arguments before a Crown Court jury trial?
A
- Bad character applications
- Hearsay applications
- Applications under s.76 or s.78 PACE 1984
- Abuse of process applications
10
Q
How is a jury selected in the Crown Court?
A
- About 16 panel members enter court; 12 chosen at random.
- Before taking the oath/affirmation, the defendant may object to any juror.
(Contrast US: here have no detailed voire dire questioning process to get eliminate/select jurors)
11
Q
Judge’s Preliminary Instructions
What instructions does the judge give the jury at the start of the trial?
A
- Decide only on evidence heard in court.
- Do not discuss case with others.
- Matters of law are for the judge — jury will leave when legal issues arise.
12
Q
Prosecution Opening Speech
What should the prosecution opening speech include and avoid?
A
- Focus on facts, issues, and why D is guilty.
- Identify charges.
- Avoid emotive or prejudicial language.
13
Q
What happens after the prosecution’s opening speech?
A
Judge may invite defence to clarify what issues are in dispute to help the jury focus on relevant matters.
14
Q
Prosecution Evidence
How is prosecution evidence presented?
A
- Prosecution calls witnesses requested by defence.
- Examination-in-chief by prosecution, cross-examination by defence.
- Agreed statements may be read if undisputed.
15
Q
Prosecution Evidence
What does the judge tell the jury when agreed statements are read?
A
That this is an agreed form of evidence, read instead of live testimony.
16
Q
Prosecution Evidence
How is the defendant’s police interview handled?
A
- Record of Taped Interview (ROTI) read in edited form.
- If D made no comment interview → prosecution may read agreed written admissions summarising silence, allowing jury to draw inferences.
17
Q
What happens at the end of the prosecution’s evidence?
A
The prosecution case formally closes — the “Crown’s case is concluded.”
18
Q
Submission of No Case to Answer
What must the judge do before granting such a submission?
A
Allow the prosecution an opportunity to make representations.
19
Q
Second half of trial process in crown court ?
A
9️⃣ Right to give evidence & adverse inferences (s 35 CJPOA 1994)
🔟 Defence opening speech
1️⃣1️⃣ Defence evidence
1️⃣2️⃣ Legal discussions (jury sent out)
1️⃣3️⃣ Closing speeches (prosecution → defence)
1️⃣4️⃣ Judge’s summing up (law & facts)
1️⃣5️⃣ Jury bailiffs sworn & jury retire (deliberation; majority possible after 2h10m)
1️⃣6️⃣ Verdict (guilty / not guilty / possible alternative offence)
20
Q
When does the issue of the defendant giving evidence arise?
A
After the prosecution has closed its case, the judge asks in front of the jury if the defendant will give evidence.
21
Q
Defendant’s Right to Give Evidence & Adverse Inferences
What happens if the defendant says yes / no ?
A
Yes: The defence case proceeds with the defendant’s evidence
No: The judge must confirm that the defendant has been advised that:
- They have a right to give evidence; and
- If they choose not to, or refuse to answer questions, the jury may draw adverse inferences.
22
Q
Defendant’s Right to Give Evidence & Adverse Inferences
What statute governs adverse inferences from silence?
A
s 35 Criminal Justice and Public Order Act 1994.
23
Q
Defendant’s Right to Give Evidence & Adverse Inferences
What if the defendant has not been advised of consequences of not giving evidence?
A
The trial will be adjourned briefly so that advice can be given.
D still however makes final decision as to whether to testify (but should be recorded in writing that they were properly advised.)
24
Q
When can the defence make an opening speech?
A
Only if the defence intends to call one or more factual witnesses other than the defendant.
Factual = meaning not someone just as to character for eg
25
# Defence opening speech
Is a defence opening speech common?
Rarely used, though permitted.
If used, should contain: a summary of the defence case and the evidence to be called.
26
# Defence evidence
What happens if the defendant chooses to give evidence?
* The defence advocate calls the defendant.
* Examination-in-chief → cross-examination by prosecution (and co-defendants if any) → possible re-examination.
27
# Defence evidence
How are other defence witnesses treated?
The same order: examination-in-chief, cross-examination, re-examination.
28
# Defence evidence
What if the defendant is not represented?
The judge ensures fairness, possibly calling witnesses directly or allowing assistance.
29
When do legal discussions usually occur?
After the defence case closes and before closing speeches.
These cover any legal directions the judge must give - eg defences, burden of proof, evidential matters...
During this time - jury is sent out !! This allows judge and advocates to discuss legal matters privately... ensures summing-up is accurate and reduces appeals !
30
Who delivers closing speeches and in what order?
1️⃣ Prosecution first, then
2️⃣ Defence (always last).
31
When is the prosecution *entitled* to a closing speech?
When:
* The defendant is legally represented; or
* The defence calls a factual witness (other than the defendant); or
* The court otherwise permits it.
32
What should each closing speech do?
Summarise evidence, highlight key issues, and persuade the jury — without introducing new evidence.
33
What are the two parts of the judge’s summing up?
1️⃣ Law: directions on legal principles (burden/standard of proof, ingredients of offences, defences, route to verdict).
2️⃣ Facts: summary of prosecution and defence cases, issues, and evidence.
34
What should the judge include in the summing up?
* Burden & standard of proof (prosecution must prove beyond reasonable doubt).
* Ingredients of offence & defences.
* Route to verdict.
* Legal directions relevant to case (e.g. identification, hearsay).
* Instructions on electing a foreman and unanimity.
* Separate directions for multiple counts/defendants.
35
# Judge summing up
How detailed must the judge’s factual summary be?
Enough to remind the jury of the key issues and evidence — not every point raised.
36
What should advocates do if they spot an error during judge summing up?
Raise it immediately at the end of the summing up so it can be corrected.
37
What happens before the jury retires?
* The judge reminds the jury that only unanimous verdicts are acceptable at first.
* Jury bailiffs (ushers) take an oath to keep the jury secluded and free from outside influence.
38
What is the role of a jury bailiff?
To keep the jury together and prevent improper communication, except for passing written notes to the judge.
39
Can the judge give directions during deliberation?
Yes, if the jury asks questions via note passed through the bailiff.
40
When may a majority verdict be considered?
Only after at least 2 hours of deliberation. Textbook answer: 2h 10 min (to include time of getting to room, electing foreman, etc.)
## Footnote
(in practice is apparenly longer)
41
What is the minimum acceptable majority?
For 12 jurors → 10–2 or 11–1.
42
# Majority verdicts
What determines whether the court gives a majority direction?
The complexity and length of the case — judge decides what’s reasonable.
43
What happens once the jury reaches a verdict?
They notify the jury bailiff, who informs the court. The jury re-enters the courtroom.
44
# Verdict
What does the court clerk ask if no majority direction was given?
“Have you reached a verdict on which you are all agreed?”
Verdict then delivered by foreman.
45
Can the jury convict of an alternative, lesser offence?
Yes — if it is included in the greater count (e.g. s 20 OAPA 1861 instead of s 18).
46
What does the judge usually do after verdict?
Thanks the jury for their public service.
47
What are the four preliminary issues relating to witnesses?
The four preliminary issues are:
* Competence: Whether a person is legally permitted to give evidence in court.
* Compellability: Whether a person can be required to give evidence.
* Expert evidence: When opinion evidence may be given by a specialist with relevant expertise.
* Privilege: When a witness may lawfully refuse to answer questions or disclose information (self-incrimination or legal professional privilege).
48
Explain the rules of competence for different categories of witnesses.
* **General rule**: Almost everyone is competent to give evidence.
* **Defendant**: Not competent for the prosecution; competent to testify for themselves or for a co-defendant once proceedings are complete.
* **Children / persons with disorder or disability**: Competent if they can **(1)** understand questions and **(2)** give comprehensible answers—age is irrelevant.
* **Spouses / civil partners:** Competent to give evidence for any party.
* **Deaf or speech-impaired witnesses**: Competent if they understand the solemnity of an oath or affirmation and can communicate (e.g., by interpreter, sign language, or writing).
49
When can witnesses be compelled to give evidence, and what are the main exceptions?
**General rule**: Most witnesses are compellable, but key exceptions exist.
**Defendant**: Cannot be compelled to testify for the prosecution or for themselves.
**Children / persons with disorder or disability**: If competent, they are also compellable.
**Spouses / civil partners**:
* Always compellable for the defence (i.e., for their partner).
* Compellable for the prosecution only in limited cases under PACE s.80, involving:
a) Assault, injury, or threat to the spouse/partner (domestic violence);
b) Assault, injury, or threat to a child under 16;
c) Sexual offences against a person under 16; or
d) Attempts, conspiracy, aiding, or abetting such offences.
Some rare exemptions also exist for diplomats, sovereigns, and bankers.
## Footnote
The rationale for spouses here is to protect marital relationships, except in cases of domestic or child abuse.
50
What is the general rule about opinion evidence?
General rule: Witnesses are expected to give evidence of facts, not opinions. Interpretation of facts is for the advocates and jury.
Exceptions:
* A witness may give an opinion if it relates to commonplace perceptions (e.g., drunkenness, age, gender, handwriting, or voice recognition).
* An expert witness may give opinions on matters requiring specialized knowledge, such as medicine, psychology, or forensic science.
51
When is expert evidence required, and how should it be formulated?
Experts:
* Must have proven expertise through study or experience.
* Are expected to act neutrally and objectively, not as partisan witnesses.
* Multiple experts should meet to clarify agreed and disputed issues.
* Should not express opinions on the final issue (e.g., “Was the defendant guilty?”), but on component facts (e.g., speed from skid marks).
Jury: Not bound to accept expert evidence; they may prefer other evidence **unless** the expert’s view and all other evidence leads to that as the only reasonable conclusion.
52
What are the main forms of privilege available to witnesses?
There are two main types:
1. Privilege against self-incrimination
2. Legal professional privilege — which divides into litigation privilege and advice privilege.
53
What is privilege against self-incrimination, and who can claim it?
* A witness (other than the defendant) may refuse to answer questions or produce documents if doing so would expose them to criminal liability.
* It cannot be claimed to protect another person (even a spouse) or to avoid civil liability.
* The privilege only protects the witness’s own testimony—it does not prevent investigators from obtaining the same information through other means.
## Footnote
(For defendants, this common law right was replaced by the Criminal Evidence Act 1898 and is now governed by the rules on adverse inferences.)
54
Explain the two types of legal professional privilege and who controls them.
**Definition**: Legal professional privilege protects confidential communications between lawyer and client.
**Two forms**:
* Litigation privilege — covers communications with lawyers and third parties made during or in contemplation of legal proceedings.
* Advice privilege — covers confidential communications between lawyer and client for the purpose of giving or receiving legal advice, even outside litigation.
**Scope**: Direct lawyer–client communications are always privileged; third-party materials are only privileged in litigation contexts.
**Waiver**: Only the client (not the lawyer) can waive privilege, and it cannot be partially waived.
55
What must witnesses do before giving evidence?
They must either take an oath or make an affirmation. Both have the same legal effect.
For wording of this oath: it must be binding on the witness’s conscience, not necessarily match their exact religious form. (so muslim witness who was sworn on new testament -- that was considered fine, and an effective oath.)
56
When can evidence be received unsworn?
For children or people of unsound mind who cannot appreciate the solemnity of an oath but understand the duty to tell the truth.
57
What happens if a witness refuses to take an oath or affirmation?
They may be punished for contempt of court.
58
What is the general rule for questioning in examination in chief?
Questions should be non-leading — the witness must tell the story in their own words.
Are only allowed to be leading where on undisputed matters or where the witness has been declared hostile.
59
# Examination in chief
When may a witness refresh their memory from a statement?
When the earlier written account gives a significantly better recollection than memory alone.
How should it be done? The witness can read the statement privately, then give evidence from refreshed memory — not by reading it aloud.
The other side can then cross-examine on that part of statement used to referesh memory, and if new material is raised, the full statement may be shown to the jury for context.
60
When may a witness be treated as hostile?
When the judge believes the witness is not desirous of telling the truth, for example when retracting an earlier statement (common in domestic violence cases.)
How does it change examination?
* The party calling them may cross-examine and use their previous statement as evidence of its truth.
61
What is the general rule about previous consistent statements?
They are normally inadmissible — repetition doesn’t make a statement more reliable.
However do have key exceptions, as to where previous consistent statements may be admitted:
* Immediate reaction to a crime (res gestae)
* Response to police accusation
* Early complaint by a victim
* To rebut an allegation of recent fabrication
62
What is a res gestae statement?
A spontaneous statement made during or immediately after an incident, before there was time to invent or distort it.
Is admissible because it’s seen as instinctive and trustworthy — made under the stress of the event.
63
Are a suspect’s responses to police accusations admissible?
Yes — both confessions and denials are admissible.
For denial: may show the defendant’s overall conduct or consistency but cannot prove the truth of the denial.
64
Why can an early complaint by a victim be admissible?
The quicker the complaint is made, the more reliable it may be — and it can show consistency or prove the truth of what was said.
65
What can a witness do if accused of recently making up evidence?
They can show they made an earlier statement to the same effect, proving the story is not newly invented.
66
# Cross-examination
Are leading questions allowed in cross-examination?
Yes — they are the norm, since cross-examination is adversarial.
67
# Cross-examination
What principle requires an advocate to challenge a witness’s account directly if it’s disputed?
The rule from Browne v Dunn — if you don’t “put” your case to a witness, it’s treated as accepted.
68
# Cross-examination
Should witnesses be asked to comment on another witness’s truthfulness?
No — questions like “Are you saying X is lying?” are improper; such arguments belong in closing speeches.
69
When can a witness’s earlier inconsistent statement be used in cross-examination?
When their evidence in court materially contradicts or adds to the earlier statement.
(have to accept tho that will often have minor discrepancies because witnesses may get flustered, forget a bit.)
70
# Cross-examination
What is the evidential use of an earlier inconsistent statement?
It can be used both to challenge credibility and as evidence of the truth of what was said earlier.
71
Can cross-examination be aggressive?
It may be robust but must never be gratuitously upsetting or abusive; the judge controls its limits.
72
What are the restrictions on questioning complainants in sexual offence cases?
Quite strictly guarded - what is and is not allowed to be asked.
Questions about sexual behaviour or promiscuity are **not allowed** without the court’s permission.
73
# Cross-examination
What is the rule of finality on collateral matters?
Once a witness answers a question on a side issue (e.g. credibility), their answer is final — no further evidence may be called on it.
* However, exception here: evidence of bias or partiality of a witness may still be admitted even if denied.
## Footnote
Example:
If a witness to a bank robbery is asked in cross-examination whether they once lied on a mortgage application and they say “no,” the defence cannot then introduce evidence of the mortgage application. The matter is collateral to the main issues, so the answer stands as final.
74
When may re-examination occur?
After cross-examination, to clarify or explain new matters raised that weren’t covered in examination-in-chief.
Same rules as in examination in chief apply here, so no leading questions unless on undisputed matters; and witnesses may refresh memory if needed.
75
# Summary card
What are the main stages and key principles in witness examination?
1️⃣ Oath/Affirmation – all witnesses must swear or affirm.
2️⃣ Examination-in-Chief – non-leading; may refresh memory; hostile witnesses can be cross-examined.
3️⃣ Cross-Examination – leading allowed; must challenge opposing case; limited by fairness and relevance.
4️⃣ Re-Examination – clarifies new matters; no leading.
5️⃣ Key doctrines: res gestae, recent complaint, recent fabrication, finality on collateral issues.
76
What is a summary trial, and when does it take place?
A summary trial is a trial in the magistrates’ court. It happens only when the defendant pleads not guilty and their guilt must be determined by hearing evidence.
✅ Applies to:
1. Summary-only offences (only triable in magistrates’ court); and
2. Either-way offences where magistrates retain jurisdiction after allocation.
Trial process follows general criminal law principles (burdens of proof, evidence rules, inferences, etc.).
77
Who decides the verdict and law in a summary trial?
👩⚖️ Lay magistrates (“justices of the peace”) — usually 3, unpaid volunteers trained in law and procedure; or
👨⚖️ District Judge (Magistrates’ Courts) — a legally qualified professional judge sitting alone.
Both are judges of fact and law.
## Footnote
Note: A legal adviser (authorised court officer) assists lay magistrates on law and procedure but takes no part in verdict or sentencing.
78
What is the usual sequence of a summary trial?
1. Legal arguments (e.g. admissibility under s.78 PACE).
2. Prosecution opening speech – outlines case and issues.
3. Defence identify matters in issue (CrimPR r.24.3(3)(b)).
4. Prosecution evidence – witnesses, s.9 CJA 1967 statements, or admissions under s.10.
5. Submission of no case to answer – court may acquit if evidence insufficient.
6. Defendant’s right to give evidence – warned of adverse inferences.
7. Defence evidence – live witnesses or written statements.
8. Prosecution closing speech (only if D represented or called evidence other than own).
9. Defence closing speech (always allowed).
10. Legal advice from the legal adviser in open court (if lay bench).
11. Magistrates retire to consider verdict.
12. Verdict delivered in open court.
79
How is the verdict decided and delivered in a summary trial?
* Verdict given in open court.
* If three magistrates, majority decision prevails.
* If two magistrates (only having 2) disagree, case is adjourned for rehearing before a new bench.
* If guilty, magistrates/District Judge must give reasons explaining their decision.
80
When is prosecution allowed to make a closing speech (in summary trial)?
Only allowed to make one where:
1. D is represented, or
2. If D has introduced evidence other than their own
So - not allowed to make on if unrepresented, and doesn't introduce any other evidence than their own in the witness box.
81
How is the provision of legal advice given in summary trial?
Authorised court officer - only present for when its lay magistrates (won't be present when it's a District judge.)
Before retiring to consider their verdict, the legal adviser will advise lay magistrates in open court on any matters of law that are required (this allows both P and D to make any representations / hear what is being said.) (SO can't give extra advice in private.)
Criminal Litigation
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Decks in class (9)
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