Trial - overview

This element provides an overview of the procedural steps involved in summary and jury trials.

The criminal justice process

Trial is at the centre of the criminal justice process as highlighted below.

The criminal justice process begins with a person being arrested and brought before the magistrates' court or the
magistrates' court issues a written charge and requisition to secure their attendance.

They are asked to enter a plea:

(a) If they plead guilty, the court moves to sentence.

(b) If they plead not guilty, there is a trial and the court comes to a verdict.

If the verdict is guilty, the defendant must be sentenced. If they are not guilty, the defendant is acquitted of the
charge and is free to go.

A person who is sentenced following either a guilty plea or verdict may appeal.

Summary trial- trial in the magistrates' court

Trial in the magistrates' court is known as summary trial. Summary trials involve:

• 'summary only' offences (offences that can only be tried in the magistrates' court); or

• 'either-way' offences (offences that can be tried in either the magistrates' court or the Crown Court).

An either-way offence can be tried in the magistrates' court only where the defendant has not elected trial in the
Crown Court and where the magistrates considered the case suitable for summary trial (i.e. they did not decide
to send the case for trial to the Crown Court).

You can read more about mode of trial in separate elements.

The bench

All summary trials take place before a 'bench' of at least two, but usually three, lay magistrates (also known as
'justices of the peace') or before a single District Judge.

District Judges are professional lawyers. Rather than sitting as part of a bench of three, a District Judge usually
sits alone.

Lay magistrates are not professional lawyers; they are unpaid volunteers. They receive training to assist them
with the law and procedure in the court but also have a court legal adviser to help them.

The authorised court officer

Previously referred to as the justices' clerk, the court clerk or legal adviser.

The authorised court officer will provide assistance to justices of the peace with both the relevant law and
procedure when required during the summary trial process. The authorised court officer takes no part in
deciding upon the verdict in a summary trial. The authorised court officer must be present during a trial judged
by a bench of lay magistrates but is not required to be present in a summary trial presided over by a District
Judge.

Judges of fact and law

In a summary trial the magistrates or District Judge are the judges both of the fact and the law.
As such, any legal applications requiring them to rule certain evidence as inadmissible require, if successful, the
same magistrates/District Judge to ignore that material they have previously heard about.

This is just one reason why a defendant might be advised, in an appropriate either-way case, to elect trial before
judge and jury in the Crown Court.

Summary trial- procedural steps (CrimPR Part 24)

An overview of the procedural steps in a summary trial are described below:

• Legal arguments- These usually take place before the prosecution opening speech.

• Prosecution opening speech- Prosecution summarise the prosecution case, concisely identifying the relevant
law, outlining the facts and indicating the matters likely to be in dispute.

• Defence identify matters in issue- To help the District Judge/ Magistrates to understand the case and resolve
any issue in it, the court may invite the defendant concisely to identify what is in issue.

• Prosecution evidence- Prosecution witnesses (examination in chief (XIC) by prosecution, cross-examination

(XX) by defence, re-examination (Re-X) by prosecution); undisputed prosecution evidence introduced by
reading Witness Statement and/ or by Written Admissions; reading Defendant’s Record of Interview (if any).

• Conclusion of the prosecution case.

• Submission of no case to answer- CrimPR r.24.3(3)(d). On the defendant’s application or on its own
initiative, the court may acquit on the ground that the prosecution evidence is insufficient for any reasonable
court to properly convict.

• Right to give evidence & adverse inferences- CrimPR r.24.3(3)(e). Defendant must be informed of:

• the right to give evidence, and

• the potential effect of not doing so at all, or of refusing to answer a question while doing so.

• Defence evidence- Defendant and/ or Defence Witnesses (XIC by defence, XX by prosecution, Re-X by
defence); undisputed defence evidence introduced by reading Witness Statements and/ or by Written
Admissions.

• Prosecution closing speech- Only where:

• the defendant is represented, or

• whether or not represented, the defendant has introduced evidence other than in person.

• Defence closing speech.

•Legal advice - To Magistrates from the authorised court officer, CrimPR r.24.14(2)(b).

• Magistrates/ district judge retire to consider verdict.

• Verdict- If guilty verdict, court must give sufficient reasons to explain decision, CrimPR r.24.3(5).

Crown Court trial- trial on indictment, jury trials

Trials in the Crown Court take place before a judge and a jury, save for a few exceptional occasions (not dealt
with in this element) where trials by a judge alone can take place.

The judges who sit in the Crown Court are:

• Circuit Judges- referred to as 'Your Honour'. They wear a violet and black robe and a red tippet (sash) over
their left shoulder;
• Recorders- referred to as 'Your Honour'. Recorders are barristers or solicitors who sit as part-time judges.
They wear black robes; and

• High Court Judges- referred to as 'My Lord, My Lady'. Occasionally, the most serious Crown Court cases are
heard by High Court Judges who are distinguished by their red robes, hence often being referred to as 'red'
judges.

Crown Court trials are also referred to as 'trials on indictment' because the cases tried in the Crown Court are
'indictable' offences, namely either-way or indictable only offences.

The Crown Court tries the more serious offences in the criminal calendar.

These will often be the more serious either-way offences where the magistrates have considered that their
sentencing powers in the event of conviction would be insufficient and have sent the case for trial to the Crown
Court. These are offences such as Assault Occasioning Actual Bodily Harm or Grievous Bodily Harm, and
drugs offences such as Possession of Class A or B Drugs With Intent to Supply, or dishonesty offences such as
Theft, Burglary and Fraud, or certain sexual offences such as Sexual Assault.

The Crown Court is the only court where indictable only offences can be tried. These are offences such as
Murder, Attempted Murder, Manslaughter, Grievous Bodily Harm with Intent, Robbery, Rape and Kidnapping.

The Crown Court differs from a magistrates' court in that it has to incorporate space for a jury of 12 people.
Often in the Crown Court there will also be more space both for the public to watch cases and for the legal
representatives to sit. Invariably therefore a Crown Court is larger than a magistrates' court.

It is worth noting at this stage that the court clerk in the Crown Court is not the same as the authorised court
officer in the magistrates' court. Although they both carry out some similar administrative functions, the Crown
Court Clerk is not legally qualified and never gives legal advice. The Crown Court Clerk is responsible for
many of the duties relating to selecting and taking verdicts from the jury and also for arraigning defendants.

Crown Court trial – procedural steps (CrimPR Part 25)

An overview of the procedural steps in a Crown Court trial are as follows:

• Legal arguments- These usually take place before the prosecution opening speech.

• Jury selection and swearing in the jury.

• Judge’s preliminary instructions to the jury.

• Prosecution opening speech- Prosecution summarise the prosecution case, concisely outlining the facts and
the matters likely to be in dispute.

• Defence identify matters in issue- CrimPR 25.9(2)(c). To help the jury to understand the case and resolve
any issue in it, the judge may invite the Defendant concisely to identify what is in issue or, if the defendant
refuses, to give the jurors a copy of the defence statement.

• 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 Defendant’s Record of Interview (if any).

• Conclusion of the prosecution case.

• Submission of no case to answer- CrimPR r.25.9(2)(e); R v Galbraith . On the defendant’s application or

on its own initiative, the court may acquit on the ground that the prosecution evidence is insufficient for any
reasonable court properly to convict.

• Right to give evidence & adverse inferences- CrimPR r.25.9(2)(f). Judge must ask whether the defendant
intends to give evidence and, if not, must satisfy itself that it has been explained to the defendant, that the
defendant has the right to give evidence in person, but if the defendant fails to do so or refuses to answer a
question while giving evidence, the court may draw such inferences as seem proper.

• Defence opening speech- CrimPR r.25.9(2)(g). The defendant may summarise the defence case, if the
defendant intends to call at least one witness other than giving evidence in person about the facts of the case. In
practice such speeches are rare outside of murders and serious lengthy trials.

• Defence evidence- Defendant and/ or Defence Witnesses (XIC by defence, XX by prosecution, Re-X by
defence); undisputed defence evidence introduced by reading Witness Statements and/ or by Written
Admissions.

• Legal discussions- Between judge and legal representatives.

• Prosecution closing speech- CrimPR r25.9(2)(j). Only where (i) the defendant is represented, or (ii) whether
or not represented, the defendant has called at least one witness, other than the defendant in person, to give
evidence about the facts of the case, or (iii) the court so permits.

• Defence closing speech.

• Judge’s summing up.

• Jury bailiffs sworn & jury retire.

• Potential further directions during retirement- Majority Direction (after 2hrs 10 mins).

• Verdict.

Summary

This element provided an overview of the procedural steps in a summary and jury trial which can be
summarised in the two lists which follow.

There are some similarities in the court trial procedures such as legal arguments often taking place before the
prosecution opening speech.

Some differences were:

• the role of the court clerks (that don’t give legal advice in Crown Court trials); and

• the judges (who are the judges of law and facts in magistrates’ court trials).

Magistrates’ court trial procedure

Criminal Procedure Rules Part 24

• Legal arguments

• Prosecution opening speech

• Defence identify matters in issue

• Prosecution evidence

• Conclusion of the prosecution case

• Submission of no case to answer

• Right to give evidence & adverse inferences

• Defence evidence

• Prosecution closing speech

• Defence closing speech

• Legal advice

• Magistrates/ district judge retire to consider verdict

• Verdict

Crown Court Trial Procedure

Criminal Procedure Rules Part 25

• Legal arguments

• Jury selection and swearing in the jury

• Judge’s preliminary instructions to the jury

• Prosecution opening speech

• Defence identify matters in issue

• Prosecution evidence

• Conclusion of the prosecution case

• Submission of no case to answer

• Right to give evidence & adverse inferences

• Defence opening speech

• Defence evidence

• Legal discussions

• Prosecution closing speech

• Defence closing speech

• Judge’s summing up

• Jury bailiffs sworn & jury retire

• Potential further directions during retirement

• Verdict