Trial Procedure — SQE1 FLK2 Criminal Law and Practice

A man is tried in the Crown Court for possessing a bladed article. He is represented by counsel, he gives evidence himself, and he calls his employer as a second defence witness. The defence case closes late on the third day. He has been reading about criminal trials, and he tells his solicitor two things. The defence always speaks first. And the Crown must have the final word. He is wrong twice.

The prosecution closes first, and the defence has the last word before the judge sums up. Bearing the burden of proof carries no right of reply at all. This is Trial Procedure, and here order is everything. Keep that man in mind, because we are going to run his trial from the top.

Here is the route. The stages of a Crown Court trial, in order. Then the opening speech, and what may not be said in it. Then examination, cross-examination and re-examination. Then no case to answer. Then the defence case, the speeches, the summing up and the verdict. Then who may give evidence and who can be made to. And finally, special measures and your duty to the court.

Start with where you are. Summary offences are tried in the magistrates' court. Indictable-only offences must be tried in the Crown Court. Either-way offences go wherever the mode of trial decision sends them. The Crown Court version is the formal one, and the examined one.

So learn the sequence, because evidence can only be adduced at the right stage. Arraignment and plea. Prosecution opening speech. Prosecution evidence in chief. Defence cross-examination. Prosecution re-examination if needed. Close of the prosecution case.

Then, if the defence makes one, the submission of no case to answer. If that fails, the defence case. Then closing speeches, the summing up, and the verdict. Eleven steps, and the order is examinable in itself.

The prosecution opens. The advocate tells the jury what the case is about, what the prosecution say happened, and what evidence they will call. And that is all. She must not argue the case, give her own opinion of the evidence, or say the defendant is guilty. That is what closing speeches are for.

Then the witnesses. Each prosecution witness gives evidence in chief, answering questions from the advocate who called them. The purpose is their own account in their own words, so the questions must be open. What did you see. When. Where. How.

Cross-examination follows, conducted by the defence. This is where the account is challenged, the reliability tested and an alternative version put. Leading questions are permitted here, and from the defence side it is the most important part of the trial.

Re-examination comes last, by the side that called the witness, and it is narrow. Only on matters that arose in cross-examination. It is not a second run at evidence in chief, and open questions are required again.

So what is a leading question? One that suggests its own answer. You were at the pub that night, weren't you. Barred in evidence in chief, because it puts words in the witness's mouth. Allowed in cross-examination, where the point is to challenge, not to let the witness narrate.

Two exceptions in evidence in chief. Introductory matters not in dispute, such as a witness's name and occupation. And hostile witnesses. If your own witness turns against your case, you apply for leave to treat them as hostile under s.3 of the Criminal Procedure Act 1865. The threshold is high.

Now the moment the defence waits for. When the prosecution closes its case, the defence may submit there is no case to answer. The argument is that even taking the prosecution evidence at face value, it could not prove guilt. If the judge agrees, the defendant is acquitted without calling a thing.

The test is R v Galbraith, and it has two limbs. Where there is no evidence on an essential element, the judge must stop the case. That is mandatory. Where there is evidence but it is so tenuous, weak or contradictory that no reasonable jury could properly convict, the judge may stop it.

Hold on to two things about limb two. The judge takes the prosecution evidence at its highest, even evidence the defence calls nonsense. And the question is what a reasonable jury could do, not what it would do.

Sufficiency is the judge's province. Reliability is the jury's. Which is why the threshold is high, and why weak evidence is usually left to the jury to assess.

If the submission fails, the defence decides whether to call evidence at all. It does not have to. The defendant has a right to silence, and the defence may invite the jury to acquit because the prosecution has not proved its case.

But if it does call witnesses, order matters. Under s.79 PACE 1984, where two or more witnesses to the facts are called and the defendant is among them, the defendant goes first, unless the court directs otherwise. That stops him trimming his account after hearing his own witnesses.

And the defence opening speech. Unlike the prosecution, the defence usually makes none. Under r.25.9(2) of the Criminal Procedure Rules it may open only where it intends to call at least one witness other than the defendant. That witness must speak in person to the facts.

Be precise about that. A defendant who gives evidence alone does not earn the right to open. Nor does one who calls only a character witness. Our man called his employer, a witness besides himself, so his counsel could open, briefly, before that first defence witness.

Now the closing speeches, and back to where we began. The prosecution closes first. The defence closes last, before the summing up. Bearing the burden of proof gives no right of reply, and the closing order reverses the opening order.

The two rights are also not equal. The defendant may always make a closing speech. The prosecutor may close only where the defendant has a legal representative, or has called at least one witness other than himself about the facts, or the court permits it.

Our man is represented and his employer was called, so the prosecutor may close. She still goes first. And closing speeches are argument. Summarise the evidence, identify the issues, say why your case prevails.

Then the judge sums up. Directions on the law come first. The burden and standard of proof, the elements of the offence, any defence in issue, and how to approach particular kinds of evidence. The jury must apply the law as the judge gives it.

The judge also reminds the jury of the evidence, summarising both cases fairly. A judge may comment on it, and even express a view. But the comment must be fair, the facts must be left to the jury as their exclusive province, and they must be told they may reject that view.

What is forbidden is usurping the jury. The judge must never direct them how to resolve a conflict of evidence, and never which verdict to return. That line is where the questions get set.

The summing up also carries the golden thread. The prosecution bears the burden of proving guilt beyond reasonable doubt, and the defendant has to prove nothing. That is Viscount Sankey in Woolmington v DPP, and the jury must be reminded of it.

Then the verdict, which in the Crown Court must be unanimous in most cases. If the jury cannot agree after a reasonable time, the judge may accept a majority under s.17 of the Juries Act 1974. In a jury of twelve, ten to two, or eleven to one.

Where the jury has fallen below twelve, ten to one, or nine to one. The statutory minimum deliberation period is two hours. In practice the judge will not take a majority until at least two hours and ten minutes have passed, per the Practice Direction.

The judge must first try to encourage a unanimous verdict. If the jury cannot agree even on a majority, they may be discharged and a retrial ordered. A discharge is not an acquittal. The defendant may be tried again before a fresh jury.

One more thing a jury may do. Under s.6(3) of the Criminal Law Act 1967, a count may include, expressly or by implication, an allegation of another indictable offence. Where it does, the jury may convict of that other offence instead. And following R v Coutts, the judge should leave an obviously viable lesser alternative whether or not either party wants it.

Now, who may give evidence at all. That is competence, and s.53 of the Youth Justice and Criminal Evidence Act 1999 answers it. All persons are competent, unless the court is satisfied they cannot understand questions put to them and give answers which can be understood.

A very low threshold, whatever the witness's age or capacity. There is no minimum age. A young child who can follow a simple question and answer it is competent, and the judge decides.

One age rule to carry. Under s.55 a witness may be sworn only if aged fourteen or over. A competent witness under fourteen gives evidence unsworn, under s.56, and a conviction may lawfully rest on it.

Compellability is a different question. A compellable witness can be required to give evidence, and can be in contempt if they refuse. Most witnesses are compellable. The exceptions that matter are the defendant, and the defendant's spouse or civil partner.

The defendant is competent but not compellable, by anybody. Under s.1(1) of the Criminal Evidence Act 1898, a person charged shall not be called as a witness except upon his own application. Not by the prosecution, not by a co-defendant, not by his own counsel.

For the Crown it is stronger still. Under s.53(4) a person charged is not even competent for the prosecution, so the Crown can never call him. What presses on the decision is the adverse inference under s.35 of the Criminal Justice and Public Order Act 1994. Pressure, not compulsion.

The spouse next, under s.80 PACE 1984. A current spouse or civil partner is competent for the prosecution, but compellable for it only in a closed list. An assault on, or injury or threat of injury to, the spouse. Or to a person then under 16. Or a sexual offence against a person then under 16.

Attempts, conspiracy and aiding and abetting in those categories count too. Outside the list no gateway opens, so the wife of a man accused of assaulting her adult sister cannot be compelled. She stays compellable for his defence. A former spouse is compellable for both sides.

Special measures now, under the 1999 Act, and eligibility comes in two halves. Under s.16(1)(a) every witness under 18 at the time of the hearing is automatically eligible. Nothing has to be proved about the quality of their evidence, so it is no answer that the child seems articulate.

Under s.16(2) an adult is eligible where the quality of their evidence is likely to be diminished by a mental disorder. Or by a significant impairment of intelligence and social functioning, or by a physical disability. Under s.17 an intimidated witness qualifies where fear or distress about testifying would diminish that quality.

Eligibility is only the gate. Under s.19 the court then decides whether a measure would improve the quality of the evidence, and which. Screens. Live link. Clearing the public gallery. Video-recorded evidence in chief, and under s.28 video-recorded cross-examination. Intermediaries. Communication aids. Defence witnesses may apply too.

For a child witness the live link is not merely available, it is presumed. The primary rule in s.21 requires any relevant video-recorded interview to stand as the child's evidence in chief, with anything else given by live link. It yields only if that would not maximise quality, or the witness opts out.

But the accused is excluded from the statutory scheme, because ss.16 and 17 apply to witnesses other than the accused. Separate provision exists, notably the s.33A live link for certain vulnerable defendants.

And one absolute prohibition. Under s.34 a person charged with a sexual offence may not cross-examine the complainant in person. Under s.38 the court invites him to appoint a representative, and if he refuses the court may appoint an advocate to test the evidence for him.

Finally, your own position in that courtroom. A solicitor's duty to the court overrides the duty to the client. Never knowingly mislead the court. Disclose relevant legal authorities even when they are against your client. That is the SRA Code of Conduct.

Which produces the hardest situation in the topic. Your client tells you he intends to lie on oath. Advise him firmly against it. Explain that perjury and perverting the course of justice are serious offences. If he insists, you cannot continue, and you may need permission to withdraw.

But note what you do not do. You do not tell the court what he told you in confidence. You withdraw. The duty stops you assisting a lie, not your client.

One last scenario, because it comes up. A defendant who absconds part way through. In R v Jones the House of Lords confirmed a discretion to continue in his absence, to be exercised with great caution. Counsel should ordinarily remain and keep testing the prosecution case.

A word on how SQE1 tests this. You will not be asked to recall a case name or a rule number. You get a scenario, five answers, and one instruction: pick the best. Most of this topic is rules rather than cases, and only a handful of names are worth carrying.

If you keep only three pegs. Woolmington v DPP, the golden thread, where the prosecution proves guilt and the defendant proves nothing. R v Galbraith, the two limbs, where the judge takes the prosecution case at its highest. And r.25.9(2), which puts the prosecution first and the defence last.

Four traps. One: the opening speech is an outline, not an argument. The prosecutor may not give her opinion of the evidence or say the defendant is guilty. That belongs to the closing speech, once the jury has heard it all.

Two: competence is about understanding, not reliability. A witness who is confused, or whose account turns out to be worthless, is still a competent witness. Reliability goes to weight, and weight is for the jury.

Three: the protection for a spouse ends with the marriage. A former spouse or civil partner is competent and compellable for both sides. The protection covers only someone who is the spouse at the time they are required to give evidence.

Four: special measures are not a prosecution privilege. A defence witness can apply on exactly the same test. But the accused himself sits outside the statutory scheme, so an application for statutory screens for the defendant is misconceived, however sympathetic the facts.

Quick check. A man is tried for handling stolen goods. The only evidence that he knew the goods were stolen comes from a single witness. In cross-examination that witness accepts he had been drinking heavily, that he has given three different accounts of the conversation he overheard, and that he cannot say which is true. The prosecution closes with nothing else on that issue, and defence counsel invites the judge to stop the case.

On what basis may the judge properly withdraw the case from the jury? Three candidates. One: because the evidence is so weak that no properly directed jury could convict. Two: because the judge is not satisfied that the witness told the truth. Three: because the judge is left with a reasonable doubt about guilt. Pause here if you want a moment.

The answer is one. That is the second limb of Galbraith. Knowledge that the goods were stolen is an essential element. The only evidence of it comes from a witness with three irreconcilable accounts who cannot say which is right, and nothing else supports it. Taken at its highest, that is not enough.

Why the others fail. Option two asks the judge to decide whether a witness is telling the truth, which is the jury's function. Option three substitutes the judge's own doubt for the test. The submission goes to the sufficiency of the evidence, not to where the judge would find the facts.

Five things to take away. One: learn the running order, because the stage decides what may be done. Two: open questions in evidence in chief, leading questions in cross-examination, and open questions again in re-examination, limited to what cross-examination raised.

Three: on a submission of no case, the judge takes the prosecution evidence at its highest and asks what a reasonable jury could do, not what it would do. Four: our man had it backwards. The prosecution closes first, the defence has the last word, and the burden of proof carries no right of reply.

Five: the defendant is competent but compellable by nobody, and a current spouse is compellable for the Crown only in the listed cases. Next time, Sentencing.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.