MID-TRIAL LEGAL MATTERS
Legal Applications – Submissions of No Case to Answer
At the close of the prosecution case the defence are entitled to make an application to the court to bring the case to an end called a ‘submission of no case to answer’. This is often referred to be lawyers as a ‘half- time submission’ with reference to the fact that it occurs at the midway point of the trial (i.e. the end of the prosecution case and before the start of the defence case).
The Criminal Procedure Rules govern the procedure in criminal cases (you can read more about these in the Further Information section) and Criminal Procedure Rules Part 24.3(3)(c) sets out the procedure as follows:
'... at the conclusion of the prosecution case, on the defendant’s application or on its own initiative, the court— (i) may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but (ii) must not do so unless the prosecutor has had an opportunity to make representations.'
"if the prosecution evidence has come out in such a way that the prosecution case is so weak that there is no point continuing with it, then a submission of no case to answer will succeed"
This means that where the prosecution case is weak, either because there is no evidence to prove the prosecution case or, although there is some evidence, that evidence is insufficient to support a conviction, the court may find the defendant not guilty. This may happen, for example, because the evidence given by a prosecution witness was so inconsistent as to be incapable of being relied upon, or because a prosecution witness’s evidence was vague or otherwise unconvincing. A more extreme example would be where a prosecution witness accepted lying to the court on an important issue, thus fatally weakening the prosecution case.
So if the prosecution evidence has come out in such a way that the prosecution case is so weak that there is no point continuing with it, then a submission of no case to answer will succeed. The defence representative will make the submission and the prosecution representative will respond. If the application succeeds, the defendant will be found not guilty and, so long as he/she faces no other charges before the court, will be free to leave.
If the submission of no case to answer does not succeed or there is no submission made, then the defence case will start. You can read more about submissions of no case to answer in the Further Information section below.
Choosing to give evidence
It is now time for the defendant to present his case to the court. The defendant will have to decide whether he wishes to give evidence. The decision is an important one. If he chooses to give evidence he will take the oath/affirm in exactly the same way as the prosecution witnesses did, “that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.” He will be taken through his account by his legal representative if he has one (his evidence-in-chief) and he will then be cross-examined by the prosecution representative. If there is more than one defendant in the trial he can also be cross-examined by the legal representatives for those defendants before he is cross-examined by the prosecution.
If he chooses not to give evidence he will not give evidence in chief and cannot be cross-examined by the prosecution. Not being cross-examined may be an advantage on the one hand because the prosecution representative is denied the opportunity to put directly to the defendant any matters to test his reliability. It is also worth bearing in mind that the defendant is perfectly entitled not to give evidence. After all, the burden of proof is on the prosecution; the defendant is entitled to remain silent and let the prosecution prove its case if it has one. However, on the other hand the problem is that if the defendant does not give evidence the Magistrates/District Judge are usually entitled to draw an adverse inference against him for this failure, i.e. hold it against him in deciding if he is guilty of the offence. It is this adverse inference which the defendant will be warned about.
The Criminal Procedure Rules, Part 24.3(3)(d) sets out the procedure in this way:
the justices’ legal adviser or the court must explain, in terms the defendant can understand (with help, if necessary)— (i) the 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.
This means that after the close of the prosecution case and before the start of the defence case, the court clerk will inform the defendant (or expect his legal representative to confirm the defendant has been advised) that the time has been reached at which he can give evidence, but if he chooses not to do so (or gives evidence but refuses to answer a relevant question) an adverse inference can be drawn from his failure to do so.
The adverse inference which can be drawn is that the defendant is guilty, i.e. he is remaining silent because he has no explanation and is therefore guilty of the offence he is charged with. Even where such an adverse inference is drawn against a defendant, this cannot be the only or main reason for finding him guilty.
You can read more about the Criminal Procedure Rules in the Crown Court Trial Further Information section where you can also read about section 35 of the Criminal Justice and Public Order Act 1994 which contains this adverse inference rule.
THE DEFENCE CASE
Defendant’s Evidence – Evidence in Chief, Cross-Examination and Re-Examination
"It is now the defendant’s opportunity to explain to the court his side of the story"
Assuming the defendant decides to give evidence he will take the oath/affirm and give his account. It is now the defendant’s opportunity to explain to the court his side of the story. This works in exactly the same way as with prosecution witnesses. He gives his evidence in chief and is then cross-examined by the prosecution advocate. If there is another defendant in the case (a co-defendant) the co-defendant’s legal representative may cross-examine, should he wish to do so, before the prosecution.
Prosecution cross-examination of a defendant in a criminal trial serves the same purpose as cross-examination by the defence of a prosecution witness, namely to test the defendant’s evidence by putting the prosecution’s case to him as well as any matters that demonstrate unreliability.
The prosecutor is likely to analyse closely the defendant’s case and exploit any inconsistencies in it, including any differences between what a defendant said (if anything) when he was questioned by the police and what he is saying now in his evidence at court.
After cross-examination, the defence representative is entitled to re-examine the defendant in relation to any matters that arise during cross-examination.
See 'A warning to the defendant' above for what happens if a defendant chooses not to give evidence.
"If the prosecution wish to put a defendant’s previous convictions or past misconduct to him, they must make what is known as a ‘bad character’ application"
If the prosecution wish to put a defendant’s previous convictions or past misconduct to him, they must make what is known as a ‘bad character’ application. There must be a good reason for the application. Common examples are applications which rely on previous convictions which show a ‘propensity’ to commit certain types of offences, to behave dishonestly or to be untruthful. Other examples which may arise in the course of a case are where a defendant (either himself or through his legal representative) makes an attack on the character of a prosecution witness – this can result in the defendant’s own bad character being revealed, or when a defendant creates a false impression, such as by telling the court he is “peace loving” when in fact he has convictions for violence; in this situation the prosecution would apply to adduce his previous convictions to counter the false impression given.
Most bad character applications are dealt with at the start of the trial before the case has been opened by the prosecution. The defence are also entitled to make bad character applications to rely on previous convictions or other misconduct of prosecution witnesses if they can show these are relevant in the circumstances of the case.
You can read more about bad character applications in the Crown Court Trial Further Information section below.
Defence Witnesses – Evidence in Chief, Cross-Examination and Re-Examination
After the defendant has given evidence (if he chooses to do so) he is entitled to call witnesses.
His witnesses will be taken through their accounts in chief, they will be cross-examined and then, if the defence representative feels it necessary, re-examined.
Agreed Defence Evidence – Reading Statements and Agreed Facts
Just as with agreed prosecution evidence, if defence evidence is agreed by the prosecution the statement can be read out to the court or it can be placed into a document as an agreed fact.
If a defendant is of good character (i.e. he has no previous convictions) he will often want to adduce character evidence before the court, i.e. testimonials from friends and colleagues attesting to his general honesty and trustworthiness. Often the prosecution will accept this evidence and allow it to be read to the court. Even so, for presentation purposes a defendant may wish to call one or more character witnesses, simply because to do so may have more impact than reading a testimonial out to the court.
Close of Defence Case
When all of the evidence has been adduced for the defendant, the defence will close its case by saying “that is the case for the defence” or similar. It is now time for closing speeches.
In a case involving more than one defendant, each defence case is taken consecutively, so the first defendant would give evidence (if he chooses to do so) followed by calling any witnesses and adducing other agreed evidence. He would then close his case. The second defendant would then give evidence (if he wished) followed by calling his witnesses and any other evidence. He would then close his case, and so on ...
After a defendant has given evidence in chief, co-defendants are entitled to cross-examine him (should they wish to) before cross-examination by the prosecution takes place.
Prosecution Closing Speech
The prosecution are only entitled to make a closing speech in the Magistrates’ Court if the defendant has a legal representative or (whether represented or not) he has introduced evidence other than his own, i.e. he has called witnesses or relied on other evidence during the trial process. If, therefore, a defendant had no legal representative and had just given evidence himself about what had occurred, the prosecution would not be entitled to make a closing speech.
The prosecution closing speech is about taking the individual strands of the case and tying them together into a convincing argument as to why the defendant is guilty of the offence he is accused of.
Defence Closing Speech
"The defence are always entitled to make a closing speech in the Magistrates’ Court"
The defence are always entitled to make a closing speech in the Magistrates’ Court. They will, of course, be seeking to persuade the Magistrates or District Judge that the correct verdict should be one of Not Guilty.
The burden of proof is on the prosecution to prove a defendant’s guilt to a high standard, namely ‘beyond reasonable doubt’ (often referred to in court as the requirement to be ‘satisfied so you are sure’ of the defendant’s guilt). As such, it is the job of the defence to highlight those areas of evidence which reveal weaknesses in the prosecution case so that the verdict is 'Not Guilty'.
If the case is being heard by a bench of lay Magistrates, after closing speeches the court clerk (also known as the justices’ clerk or the legal adviser) will give legal advice to the Magistrates. The focus of this will usually be what the elements of the offence are which must be proved against the defendant for him to be found guilty. The burden and standard of proof are also vital matters for the Magistrates to be aware of. ny other relevant legal issues (e.g. bad character evidence or adverse inferences from failure to give evidence) will also be dealt with at this time. The prosecution and defence representatives can make representations on matters of law if required at this stage.
If the judge is a District Judge, as a professional judge he/she will not require legal advice from the court clerk (for more information see 'Who will hear my case in the Magistrates’ Court?' above). However, the District Judge will invite any representations from the prosecution and defence legal representatives at this stage.
The Magistrates/District Judge will then retire. If the Magistrates call on the court clerk for any further assistance they may do so, but for the sake of transparency the court clerk should inform the legal representatives in court of any advice which has been given. This enables the legal representatives to make representations about that advice if they disagree with it. The clerk only gives legal and procedural advice and takes no part in the verdict.
"A defendant who is found guilty will be sentenced. Sentencing can take place either immediately or at a later stage if further information is required"
If the verdict is guilty, the Magistrates/District Judge must give reasons for their decision. These reasons can be brief or detailed depending on the issues in and complexity of the case.
If the verdict is not guilty, the Magistrates/District Judge are not required to give reasons.
A defendant who is found not guilty (acquitted) will be free to leave the court if he is not facing other charges. Even if he faces no other charges but he was produced from the cells, he will have to go back to the cells before release to deal with the release paperwork and collect his belongings.
A defendant who is found guilty will be sentenced. Sentencing can take place either immediately or at a later stage if further information is required. In very general terms, when cases are in the lower category of seriousness the sentence will often be imposed immediately (e.g. a fine or conditional discharge) but where the case carries a potential sentence of imprisonment there will often be an adjournment for a pre-sentence report. In such a situation a date will be fixed for sentence on a later occasion and, in the meantime, the defendant will either be remanded on bail (with or without conditions) or in custody.
For more information on the sentencing process click here.
For more information about appealing against a conviction click here.