Procedures and processes in criminal litigation - Trial proc...

Learning Outcomes

This article covers trial procedure in magistrates’ and Crown Court, including:

• The correct order of trial stages in magistrates’ and Crown Court and roles/responsibilities of participants
• Burdens and standards of proof, evidential versus legal burdens, and reverse burdens
• Making and opposing submissions of no case to answer and applying the Galbraith test
• Rules and technique for examination-in-chief, cross‑examination, and re‑examination, including leading questions
• Competence and compellability of defendants, co‑defendants, spouses/civil partners, children, and vulnerable adults
• Identifying eligible witnesses and obtaining special measures (screens, live link, intermediaries, pre‑recorded evidence)
• Courtroom etiquette and correct modes of address; professional conduct duties and avoiding misleading the court
• Managing vulnerability and intimidation issues and conflicts of interest during trial
• Applications to admit or exclude hearsay, confessions, and bad character evidence
• Advising on verdict outcomes, sentencing steps, and appeal routes, with practical application to realistic scenarios
• Applying the rules to realistic factual problems through worked examples and practical scenarios

SQE2 Syllabus

For SQE2, you are required to understand trial procedure in both magistrates' and Crown Court contexts, including their similarities and differences, with a focus on the following syllabus points:

• the sequential stages of trial and the different orders of proceedings applicable to magistrates' and Crown Court
• the prosecution and defence burdens and standards of proof, including the allocation of evidential and legal burdens, and exceptions where the burden reverses
• the timing, basis, and effect of submissions of no case to answer—including judicial tests and statutory limitations
• the mechanics and rules of witness examination, including examination-in-chief, cross-examination, and re-examination, and the practical distinctions between leading and non-leading questions
• the legal concepts of competence and compellability for various categories of witnesses—especially defendants, co-defendants, spouses/civil partners, children, and vulnerable adults
• the identification of eligible witnesses and the appropriate use of special measures (e.g. screens, live links, intermediaries, pre-recorded evidence), including the process for application and judicial considerations
• protocols for courtroom conduct, professional standards, and correct modes of address for all court participants
• the duties of solicitors to the court, client, and justice—including rules around misleading the court, handling client confessions, professional conflicts, and withdrawal from acting
• the management and announcement of verdicts, sentencing procedure, and implications of verdict outcomes—guilty, not guilty, or retrials

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Who must deliver the first speech in a criminal trial in the Crown Court, and what is its purpose?
2. What is a submission of no case to answer, and at what point in the trial can one be made?
3. What is the distinction between competence and compellability when calling witnesses at trial?
4. What are special measures, and how can they affect a witness’s evidence in court?

Introduction

Criminal trials in England and Wales are defined by their rigorous structure, safeguarding the rights of each party and ensuring that proceedings are fair, just, and transparent. Whether a case is heard in the magistrates’ court—primarily for summary-only and certain either-way offences—or in the Crown Court for more serious or complex indictable or either-way offences, solicitors must exercise a clear understanding of procedural law, evidential requirements, witness management, and the ethics of professional conduct.

Criminal advocacy not only requires the technical knowledge of trial stages and the rules of evidence, but also demands an ability to manage procedural issues as they arise, ensuring that the adversarial process operates in a manner that upholds the administration of justice while maintaining fidelity to a solicitor’s duties under the SRA Code of Conduct.

Trial Procedure Overview

Types of Court and Their Jurisdiction

In England and Wales, criminal cases are initially heard in the magistrates’ court, progressing to the Crown Court in serious or complex cases. The categorisation of criminal offences—as summary only, either-way or indictable only—determines the trial venue and procedural pathways.

Key Term: magistrates’ court
A lower criminal court, usually comprising three lay magistrates or a district judge, dealing with most summary and either-way offences.

Key Term: Crown Court
The higher criminal court where cases are heard by a judge and jury, reserved for indictable only or serious either-way offences.

Indictable only offences, such as murder, manslaughter, and robbery, must be tried in the Crown Court. Either-way offences—including theft, burglary, and assault occasioning actual bodily harm—pass through an allocation process to determine their venue, guided by statutory criteria and sentencing guidelines. Summary only offences, including common assault and low-value criminal damage, are reserved for the magistrates’ court.

Classification Recap

• Summary-only offences: Minor offences, heard exclusively in magistrates' court.
• Either-way offences: More serious; may be heard in magistrates’ or Crown Court, depending on factual seriousness, defendant's preference, and court’s sentencing powers.
• Indictable-only offences: Most serious; tried only in the Crown Court.

Sentencing powers vary considerably. Magistrates typically may not impose more than 12 months' imprisonment for multiple either-way offences (six months for a single offence), whereas the Crown Court has very broad sentencing powers.

Stages of a Criminal Trial

For both courts, trial proceedings are highly structured, but the order and roles differ due to the court’s constitution and procedural requirements.

Order of Proceedings in the Magistrates’ Court

• Prosecution opening speech: The prosecutor succinctly sets out the prosecution case, legal elements of the offence, and relevant evidence. The defence does not have a right to make an opening speech unless the magistrates permit it, typically if the defence anticipates substantive factual disputes or complex issues.

• Presentation of prosecution evidence: The prosecution calls each witness in turn. The witness undergoes examination-in-chief by the prosecution, cross-examination by the defence, and may be re-examined on issues arising from cross-examination.

• Submission of no case to answer: Following the close of the prosecution case, the defence may make a submission that there is no case to answer (see full details below).

• Defence evidence: Where the no case submission fails or is not made, the defence opens its case and may call the defendant and any supporting witnesses, each undergoing the same examination sequence as prosecution witnesses.

• Legal arguments and closing speeches: The defence gives a closing speech. The prosecution may make a closing speech only if the defendant is legally represented and has adduced evidence beyond their own (the rules are different than in the Crown Court).

• Magistrates retire to consider verdict: The bench will retire in open court to deliberate. Their reasons for the verdict must be sufficiently stated, particularly in cases where the prosecution evidence is not straightforward.

• Delivery of verdict and sentencing: The bench announces its decision. If guilty, sentencing may take place immediately or after reports. If not guilty, the defendant is discharged.

Order of Proceedings in the Crown Court

• Empanelling the jury: A panel of 12 jurors is sworn to determine questions of fact. Jurors are selected at random and must satisfy eligibility criteria.

• Arraignment (plea): Although often completed at an earlier Plea and Trial Preparation Hearing (PTPH), if not already done, the indictment is read, and the defendant enters a plea to each count.

• Prosecution opening speech: The prosecuting advocate addresses the jury, explaining the legal ingredients of the charged offence(s), their intended evidential route to proof, and reminding the jury of the burden and standard of proof.

• Prosecution evidence: Each witness is called for examination-in-chief, cross-examined, and possibly re-examined. If factual disputes arise regarding admissibility, a voir dire (trial within a trial) may be held in the absence of the jury.

• Submission of no case to answer: At the close of the prosecution evidence, the defence may make a formal submission that the prosecution's case is insufficient for a conviction.

• Defence case: If the submission is unsuccessful, the defence may (if witnesses other than the accused are to be called) make an opening speech, then call the defendant and supporting witnesses as with the prosecution evidence.

• Closing speeches: The order is always prosecution first, then defence.

• Judicial summing up: The trial judge then sums up the evidence and directs the jury on the law, burden and standard of proof, defences, and provides guidance (including Turnbull warnings on eyewitness identification, adverse inference directions, etc.).

• Jury retire and reach a verdict: The jury deliberates privately, aiming for unanimity, but a majority verdict may be accepted if not possible after a set time.

• Verdict and sentencing: The foreperson announces the verdict in open court. If guilty, sentencing may follow immediately or after further reports.

Key Term: submission of no case to answer
A legal argument by the defence, at the end of the prosecution case, that the evidence adduced is insufficient for any reasonable tribunal properly directed to convict—if successful, this results in acquittal.

Key Term: opening speech
An address at the start of a party’s case (always the prosecution in criminal trials, the defence only in Crown Court when calling witnesses other than the accused), outlining the evidence expected to be adduced and the party’s legal theory.

Key Term: closing speech
The final address, made to persuade the tribunal of fact (magistrates or jury) to accept the advocate's interpretation of the evidence and return the desired verdict.

Key Features and Distinctions Between Courts

• In the magistrates’ court, the magistrates (or judge) decide both questions of law and fact. In the Crown Court, the judge determines law and procedure, while the jury decides factual issues and guilt.

• Jury verdicts in the Crown Court must be unanimous, unless the judge directs (after a minimum period of deliberation) that a majority of 11:1 or 10:2 is acceptable if unanimity cannot be reached.

• In both courts, proceedings must ensure compliance with the rules of evidence, fairness, and the principles of open justice.

Burden and Standard of Proof

In criminal proceedings, foundational concepts are the presumption of innocence and the prosecution's legal obligation to prove guilt:

• Legal burden: The prosecution must prove, beyond reasonable doubt, every element of the offence charged. If a reasonable doubt exists, the defendant must be acquitted ("so that you are sure"—as directed by the judge or magistrates).

• Evidential burden: Where the defendant relies on a defence, the evidential burden is to adduce sufficient evidence to put the issue before the court. However, the prosecution usually retains the legal burden of disproving any defence, except in rare cases where a reverse burden is imposed (e.g. diminished responsibility).

• Reverse burden: Only in exceptional circumstances does the legal burden fall on the defence (for instance, proving insanity or diminished responsibility) and then to the civil standard ("on the balance of probabilities").

Key Term: burden of proof
The responsibility on a party to prove a fact or issue: in criminal cases, ordinarily the prosecution’s duty to prove the defendant’s guilt.

Key Term: standard of proof
The threshold of certainty needed to prove a case: in criminal law, "beyond reasonable doubt" for the prosecution.

Worked Example 1.1

A defendant is charged with murder and raises the partial defence of diminished responsibility. Who bears the legal burden of proof, and to what standard?

Answer:
The defendant bears the legal (and evidential) burden of proving diminished responsibility, on the balance of probabilities. For all other issues—including the basic ingredients of the offence and any denial of involvement—the prosecution must prove the case beyond reasonable doubt.

Submission of No Case to Answer

The defence may (and often should) consider at the close of the prosecution evidence whether the prosecution has met the threshold for a possible conviction as set down in R v Galbraith [1981]:

• If there is no evidence on which a tribunal properly directed could convict, the case must be withdrawn from the jury/magistrates, and a verdict of not guilty entered.

• If there is some evidence, but it is so weak or tenuous that no reasonable tribunal could convict, the case should again be dismissed.

• However, where there is evidence on which a tribunal could properly convict—even if it might be weak or unreliable—the decision must be left for the jury or magistrates.

On a successful submission, the defendant is acquitted then and there. Judges are under a duty to direct an acquittal where this test is met.

Key Term: submission of no case to answer
A procedural application made by the defence at the end of the prosecution's case, arguing that the evidence is insufficient as a matter of law to permit a conviction.

Submissions of no case to answer cannot usually be made until the close of the prosecution case, except for certain serious offences (e.g. murder, manslaughter) where specific statutory provisions may require hearing all evidence (including any defence case) before making the submission.

Worked Example 1.2

After the prosecution closes in a trial for theft, the only evidence is a single eyewitness who admits to being heavily intoxicated and unable to see clearly. Should the defence make a submission of no case to answer?

Answer:
The defence should consider making a submission of no case to answer. The judge or magistrates must assess whether, taking the prosecution evidence at its highest, a reasonable tribunal could convict. If the sole witness's evidence is so unreliable or inconsistent that it could not properly support a conviction, the case should be dismissed.

The Defence Case

If the submission of no case to answer is not successful, the defence will then present its case. Defence evidence is not mandatory—the defendant is not obliged to call any witnesses, or to give evidence themselves.

• If the defendant gives evidence, they are the first defence witness to be called.
• The advocate’s closing speech must not directly mislead the court or call evidence the advocate knows to be untrue.

Where the defendant elects not to give evidence, the judge (or magistrates) may comment and the jury (or magistrates) may draw such inferences as appear proper, having explained the consequences of failing to give evidence (Criminal Justice and Public Order Act 1994, s.35), but cannot convict on inference alone.

Adverse inferences may also be drawn where the defendant failed to provide an account at interview or on charge and later relies on that account at trial, subject to safeguards.

Witness Evidence: Examination, Competence, Compellability

The oral evidence of witnesses underpins the trial process. There are strict rules about how witnesses are questioned and who may (or must) give evidence.

• Examination-in-chief: The party calling the witness asks open and non-leading questions to elicit the facts. Leading questions may only be asked on non-contentious matters or with leave where a witness is declared hostile.

• Cross-examination: The opposing party seeks to test and challenge the evidence, and may ask leading questions.

• Re-examination: The calling party may clarify matters arising from cross-examination only; new facts may not be introduced.

Key Term: examination-in-chief
The questioning of a party's own witness to elicit favourable and admissible evidence, ordinarily without leading questions.

Key Term: cross-examination
The questioning of an opposing party's witness, often with leading questions, to test their evidence and credibility.

Key Term: re-examination
Limited questioning by the calling party after cross-examination, to clarify points arising from cross-examination.

Leading and Non-Leading Questions

• Leading questions (suggesting the answer) are generally not permitted in examination-in-chief or re-examination unless on undisputed matters, or the witness is declared hostile.
• Non-leading questions are open and neutral, used to elicit information without suggestion.

Competence and compellability underpin the right and obligation of witnesses to give evidence:

Key Term: competence
The ability in law of a person to lawfully give evidence as a witness: all persons are presumed competent unless unable to understand questions or communicate intelligible answers.

Key Term: compellability
The ability in law of a person to be required by the court to give evidence, subject to exceptions.

Key distinctions:

• Defendants are never compellable for the prosecution.
• Co-defendants are not compellable for or against each other unless acquitted or pleading guilty and tried separately.
• Spouses and civil partners are generally competent but not compellable for the prosecution except for specified offences (e.g. offences against the spouse, children under 16, or sexual offences involving children).

Children are presumed competent, but competence may be challenged if they cannot understand or communicate answers, assessed by the court on the balance of probabilities, with expert evidence where necessary.

Special Measures

The Youth Justice and Criminal Evidence Act 1999 introduced a flexible regime permitting the court to order special measures for eligible witnesses to maximise the quality of their evidence, particularly where the witness is under 18, has a mental or physical disorder, significant impairment, or is intimidated.

Key Term: special measures
Adjustments made by the court to assist vulnerable or intimidated witnesses to give their best evidence in criminal proceedings.

Types of special measures include:

• Screens in court to prevent the witness from seeing the defendant
• Live link enabling evidence from outside the courtroom
• Evidence in private (excluding members of the public)
• Removal of wigs and gowns for advocates and the judge (Crown Court only)
• Video-recorded evidence-in-chief, and, where directed, cross-examination/re-examination by video
• Examination of the witness through an intermediary where communication needs demand
• Use of communication aids

Eligibility and application require careful attention to the effect on the fairness of the trial for the defendant and whether measures are likely to improve the quality of the evidence.

Child witnesses in sexual offence cases typically have special measures applied as standard (e.g., video evidence-in-chief). Defendants themselves have restricted access to special measures—usually only the right to give evidence by live link if required by their circumstances.

The judge will direct the jury not to treat a witness' use of special measures as reflecting adversely on their credibility or the defendant’s guilt.

Worked Example 1.3

A 13-year-old witness with significant learning difficulties is called in a case of sexual assault. What special measures are likely, and how would the court assess competence?

Answer:
The court must first determine whether the witness is competent. If satisfied they can understand questions and give intelligible answers, the court may direct special measures are appropriate—likely including evidence by live link, use of an intermediary for communication support, and permitting evidence to be given in private where needed for intimidation or vulnerability.

Mode of Address and Courtroom Etiquette

The trial setting demands adherence to standards of language and behaviour rooted in tradition and designed to maintain order and respect for the judicial process.

• Magistrates: Address as “Sir,” “Madam,” or collectively, “Your Worships.”
• District Judge (MC): “Sir” or “Madam.”
• Crown Court Judge: “Your Honour.”
• High Court Judge: “My Lord” or “My Lady.”
• Use “my friend” or “my learned friend” when referring to the other advocate, depending on whether they are a solicitor or barrister.

Always stand for the entry and exit of the judge/magistrates, do not interrupt, and avoid gestures or conduct that could be disruptive or disrespectful. Courtroom dress is formal, particularly in the Crown Court, with wigs and gowns for counsel and judges, except where special measures are in force removing such formality for particular witnesses.

Key Term: courtroom etiquette
The expected standards of conduct and language that maintain decorum, respect, and fairness in criminal courts.

No eating, drinking, or use of mobile devices is allowed. Switch off or silence all electronic devices. Private conversations should be discreet and not audible. The advocate’s presentation must be clear, structured, and courteous.

Professional Duties and Conduct

Solicitors are bound by the SRA Principles and must always:

• Uphold the rule of law and the proper administration of justice, not misleading the court (even inadvertently)
• Act in good faith and with honesty—never assert as fact what is known to be untrue, nor knowingly allow false or misleading evidence to be adduced
• Safeguard client confidentiality, while recognising that duty to the court may sometimes override

If a client confides a private admission of guilt but decides to plead not guilty, the solicitor may continue to act (placing the prosecution to strict proof) provided the solicitor does not mislead the court or allow false evidence to be called. The solicitor may not actively assert a case, or call evidence, known to be false.

If the solicitor finds they will be placed in a position where they must mislead the court, or their duties are otherwise irreconcilably in conflict, they must withdraw from acting and explain to the court (in the most neutral terms, such as “for professional reasons”) without breaching the client’s confidences.

Key Term: solicitor’s duty to the court
The overriding ethical obligation of a solicitor, as an officer of the court, to act with honesty and integrity and to assist the court in achieving justice, even where this conflicts with the client’s interests.

Key Term: conflict of interest
A situation where a solicitor’s duty to one client or to the court comes into conflict with their duty to another client or their own interests, which must be managed in accordance with professional rules.

Advocates must not make representations or submissions to the court that are not properly arguable, nor be complicit in misleading the court or wasting its time. Solicitors are also responsible for ensuring they act free from any prohibited conflict, and must not act for co-defendants if there is a real risk of divergent interests or of breaching confidences.

Verdict and Sentencing

The final stage of trial is the announcement of the verdict. In the magistrates’ court, the magistrates or district judge will announce sufficient reasons for the decision, following deliberation. In the Crown Court:

• The judge will sum up and direct the jury to retire.
• The jury’s verdict must be unanimous unless a majority direction is given after a required minimum time period.
• The foreperson announces the verdict in open court; if guilty, the judge passes sentence or adjourns for reports; if not guilty, the defendant is discharged.

There is no requirement to give reasons for a jury verdict. Sentencing procedure involves careful consideration of statutory guidelines, aggravating or mitigating features, reports, and, where necessary, a Newton hearing (a fact-finding hearing where the defendant pleads guilty but disputes critical prosecution evidence).

If reports are required before sentence, bail may be granted unless there is a real prospect of a custodial sentence or a risk of absconding or offending.

Special Issues

Vulnerable and Intimidated Witnesses

The treatment of children, witnesses with cognitive or communication difficulties, or those experiencing fear or distress, has developed significantly. Special measures can be applied to facilitate their effective participation and credible testimony, provided they do not prejudice the fairness of the proceedings.

The court must carefully weigh the ability of a witness to give a complete and reliable account, the effect of any intimidation, and available support mechanisms. Solicitors must be prepared to make and respond to applications for special measures, and to work alongside intermediaries and support staff to ensure fairness.

Submission of No Case to Answer for Certain Offences

For offences such as murder, manslaughter, and specified road traffic offences (e.g., causing death by careless or dangerous driving), statute or the interests of justice may require that all the evidence—including defence evidence—is heard before a submission of no case to answer may be considered. Practitioners must be aware of the procedural rules relevant to any specific charge.

Key Point Checklist

This article has covered the following key knowledge points:

• The procedure for criminal trials in the magistrates’ and Crown Court, including the full order of events, is highly structured but differs between the courts according to their constitution and powers.
• The prosecution always bears the legal burden of proving guilt beyond reasonable doubt, unless statute reverses this for specific defences, which are then proven by the defence to the civil standard.
• A submission of no case to answer allows the defence to argue that, as a matter of law, the prosecution’s evidence is insufficient for any reasonable tribunal to convict; if successful, the defendant must be acquitted.
• Witnesses give evidence through examination-in-chief, cross-examination, and re-examination, with sharp rules distinguishing leading and non-leading questions, and the proper use established for each type of examination.
• Competence and compellability rules vary according to the status of the witness (e.g., defendant, co-defendant, spouse/civil partner, child, vulnerable adult).
• Special measures are court-ordered adaptations designed to help vulnerable or intimidated witnesses give best evidence, such as screens, live link, intermediaries, and private hearings.
• Correct courtroom etiquette, including modes of address and appropriate conduct, is essential at all levels of criminal court.
• Solicitors hold an overriding duty to the court not to mislead it, which can supersede the duty to the client in cases of conflict, especially where false evidence is at risk of being called.
• The tribunal of fact (magistrates or jury) announces the verdict: guilty verdicts are followed by sentencing, which may involve immediate disposition or adjournment for reports, and appeal pathways differ by court of first instance.
• Where witness or defendant vulnerability is an issue, courts have extensive powers to manage proceedings and protect the integrity of the evidence.

Key Terms and Concepts

• magistrates’ court
• Crown Court
• submission of no case to answer
• opening speech
• closing speech
• burden of proof
• standard of proof
• examination-in-chief
• cross-examination
• re-examination
• competence
• compellability
• special measures
• courtroom etiquette
• solicitor’s duty to the court
• conflict of interest