In the latest instalment of a continuing series, we offer advice on the issues that face solicitor-advocates
You know the law inside and out, you know the case inside and out and you are ready for any challenges that may now come your way for your Crown Court trial. What should happen now?
Prior to entering the courtroom the defendant should have been told how to behave and to dress, appropriate to his character looking at the new bad character provisions. The jurors, on entering the courtroom, will immediately look at the defendant and at this stage they will not know the charge the defendant faces. First impressions count.
The trial preliminaries and directions have been raised before the judge (for example, bad character) as well as any jury questions. That is questions for the judge to raise to the jury panel prior to the jurors being called into the jury box. What are these?
Here is a scenario - the defendant has been accused of causing actual bodily harm to the complainant at the Pig and Whistle public house in New Town. Questions that may be raised would include:
On the jury panel entering the courtroom the judge should raise the questions and request that jury members, as they are being called to the box, must let the judge be aware if any of the questions are applicable to them. If the defendant has any questions about any particular juror this should be raised as the jurors are being sworn.
As the trial takes place, the jurors should be concentrating on the evidence before them. However, the likelihood is that, at least during part of the trial, their minds will wander - what are they doing in a courtroom? Why aren't they at work? Who's going to pay their expenses? What are they going to wear for this evening's date? Therefore, when you are on your feet you need to ensure you keep their interest.
Throughout the trial do not only look at the person you are examining or cross-examining, look at the jurors and see whether you still have their attention. If not, attract their attention and then make your point.
If you feel the jurors are loosing concentration is it because you are going round in circles. If so, cut it short. Ensure the jurors understand the point you are making. Be methodical but do not be robotic.
You will never know what the jurors are thinking but what you can do is to try to find out. While you are concentrating on the proceedings and thinking of your next move watch the jurors. Who is writing notes? Who is fidgeting? Who is day-dreaming? Who is focusing? So when you are on your feet you know whose attention to attract.
The closing speech will be the only time when the jurors are totally focusing on you, they may on the odd occasion look at the defendant, but their primary focus is you.
This is also the time that you should use whatever you have learnt throughout the trial to your advantage. Remember any jury questions that have been asked and the answers. This may make the jurors feel that you appreciate their position. Above all, avoid being condescending and using expressions such as 'in layman's terms'.
Be aware of the latest news stories. Can you relate the headlines to this case and use it to your advantage? If so, your case may become more believable than it was before.
Miscellaneous cases
In R v Mulkerrins and Sansom [1997] 8 Archbold News, 2, CA, the jury had been selected in breach of the balloting procedure prescribed by legislation. It was held that since no objection had been taken at the time, or as soon as practicable thereafter, section 18(1)(a) and (2) precluded the raising of this irregularity on appeal, and it made no difference that the defendant had been unrepresented (and therefore ignorant of the law's requirements) at the relevant time. There are obviously exceptions to any rule.
Where a juror falls asleep, it is for the judge to deal with the matter on the individual facts at the time it arises (See R v Tomar [1997] Crim LR 682, CA, which deals with a judge refusing to interfere where a single juror had fallen asleep for a short period during the summing up and no application had been made at the time).
In R v Andriamampandry (2003) 147 SJ 871, CA, a total of 17 notes were passed to the judge, mainly in open court. The judge did not read out two of the notes in their entirety.
However, the judge should at least have shown the notes to counsel if he did not feel the need to read the notes out. If counsel asks to see the notes it would be normal practice to permit this. If the note concerned an administrative matter, the judge may deal with it without reference to counsel; but in almost every other case, the judge should state in open court the nature and content of the communication and, if he considers it helpful to do so, seek the assistance of counsel.
As to a third note, which amounted to comment on the evidence, there had been no irregularity in the judge not reading it out, but rather referring it back to the jury with a request for clarification (which was never forthcoming). But again, if counsel asks to see such a note, it should normally be shown; the failure to read out in full three of the 17 notes had not, therefore, deprived the defendant of a significant line of evidence or argument and had had no effect on the safety of the verdict.
This column was prepared by the Solicitors' Association of Higher Court Advocates (SAHCA). Send questions to Hilary Riddle by e-mail: hilary@hradmin.co.uk.
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