PART A - ESSAYS
Context of criminal trial and principles of criminal evidence
Criminal evidence law (governs fact-finding)
- Not an area of substantive law → adjectival law concerned with how the facts can be proved as is not
directly concerned with the elements of an offence
o Helps courts come to rational decision while upholding fairness at pre-trial and during trial
▪ Trade off between pursuit of truth and fairness in criminal trial
• Criminal Justice Act 2003 – thrust of government policy is to redress the
balance of the CJS and make it more advantageous for Ds (principles
originally flowed from case law but now they are in statute)
- Regulates material and how it is presented at trail
o Determines whether evidence is
▪ Relevant
▪ Admissible or excludable by rule/judicial decision
o Determines how trier of fact should be directed
Context of the Criminal Trial
Police and CPS
- Police = Investigate crime and collect evidence
- CPS = independent body from police
o After an arrest, they make decisions whether to charge based on a standardised national
policy with 2 part test
▪ Evidential test – is it more likely than not? (standard lower than BARD)
• objective assessment based on admissibility/reliability/witness-credibility
▪ Public interest test – is a prosecution in the public’s interest?
• seriousness of offence, level of culpability, age, harm to victim, impact on
society etc
Different courts
- if CPS decide to charge, 80-90% of cases end in guilty pleas thus do not go to trial
- if there is no guilty plea:
o minor crimes → Magistrate Court
▪ summary offences/minor either way offences
o serious offences → Crown Court
▪ high value either way offences/indictable offences
▪ only 10% cases
• 10% of 10% (1%) of total cases as 90% result in guilty plea
- for minors (10-17 year olds) committing crimes → Youth Court
o type of Magistrate Court
- for minors (10-17 year olds) charged with offences that would be punishable with 14 years
imprisonment if committed by an adult → Crown Court
Trial by Jury
= 12 members of public in Crown Court (Juries Act 1974 lays out who is eligible/ineligible)
Positives
- randomly selected (cross section of society - representative)
o least racist part of CJS (in comparison to institutional racism in police/legal profession)
o any racist views stamped out by other jurors as unanimous decision must be reached
- tried by peers
o public confidence in administration of justice as public involvement from lay people
▪ acceptability of verdicts – ensures they keep their credibility
o judged on ordinary standards of behaviour – aware of severity of guilty plea so aims to
ensure that the correct people are punished
- transformative effect on individuals called to service
, o Professor Cheryl Thomas’ Jury Project found that there was a transformative effect on
individuals called to serve in jury
▪ Found that those doing jury service are more likely to vote in next election
▪ Jury services sparked changed in how people use media and how involved they are
in community groups
- don’t have to give reason and discussion is secret
o no undue pressure
Negatives
- expensive
o Court system has to pay wages and travel expenses of individual sitting on jury
- time consuming
o hearing before jury and then jury sworn in
- inconvenient for jury
o Thomas’ 2020 article found that 87% of those summoned would have opted out if they could
BUT 81% of people who did it said that they would do it again
- police officers can go on jury
o can influence decisions
- secret
Good or Bad depending on person
- secret discussion and no reason for decision needed
o criminal offence to discuss reasoning in the jury room
o Historical cases revealing that some jurors have resorted to strange methods of reaching a
verdict (used wigi board to contact deceased victim if defendant was guilty, coin flipping)
- jury equity
o Helps criminal law keep pace with public understanding and views of what should constitute
a criminal offence
o Once an acquittal is delivered it is relatively final as there is no right of appeal (there would
be with an erroneous guilty verdict)
o How much power should we place in lay people? – should they be able to ignore that
someone has broken a law?
- evidence law construed with jurors in mind - evidence rules preventing routine admissibility of bad
character evidence (eg previous convictions of individuals) → complex rules of evidence
o streamlined evidence – no distractions to prevent unfairly prejudicial effect
jury-less trials
23rd June 2020 – Lord Chancellor Robert Buckland told the Justice Select Committee that he was considering
legislation to allow trial by panel of judge and 2 lay magistrates for either way offences:
- Quicker and cheaper
- Cost effective way of reducing further backlog in future (current backlog of 41,000 in crown court)
o BUT legal community are concerned that once the jury has been eroded it would be easy for
the government to raise the threshold of cases that could be decided without a jury (should
not forget that they have a very important role)
English trial based on adversarial traditions
Principle of orality - centrepiece of adversarial system is oral trial (Lord Devlin)
- Legal profession view oral evidence as superior
o live testimony of own direct knowledge
▪ other evidence is still admissible
- cross examination – brings out truth
o arises after examination in chief – allows inconsistencies to come out
o ‘greatest legal engine ever invented for the discovery of truth’ (Wigmore)
- common law rules enhance principle
o prohibition of hearsay evidence (can only give evidence they have personal knowledge of)
o swear on oath
, - factfinder (jury) can analyse body language to assess truthfulness
o BUT Welborn says ordinary people can’t detect this because there is no evidence that lying is
accompanied by distinct body language
Party Control = sporting contest between the two sides where both sides must present best case to jury
- Evidence must be relevant and admissible
- Need equality of arms to retain fairness (state has more resources and adversarial theory of truth
finding supposes that adjudicators will infer truth by choosing most compelling evidence so such
deficit must be addressed)
o Burden of proof on prosecution (state) with high threshold of BARD
▪ Accused does not have to give evidence
o Prosecution disclosure of materials used at trial AND any unused evidence that may help D’s
case (s3 Criminal Procedure and Investigations Act 1996 – material that is in public interest
to disclose or be capable of undermining/assisting case)
▪ Ensures D are in position to answer case against them
▪ Parties are under a duty to ensure that justice is done - Prosecutor represents the
state and the state’s interest in getting the right/just result
• BUT now there is also defence disclosure (no longer such a heavy
protection on defence)
o Free legal aid and representation (funded by state)
▪ Gives D pre-trial advice
• BUT legal aid cuts → attempt to reduce adversarial deficit not so good in
practice as in theory
▪ Necessary for effective participation (can prepare case etc)
o Prosecutors have special ethical responsibilities that defence don’t
▪ Dual role as adversarial party and as minister of justice – must have prosecutorial
restraint therefore not persecute
Neutral judge – put questions to witnesses and comment on strength of evidence during summary
- Must not be seen by jury to ‘descend into the arena’
o Judge may only ask questions to witnesses when he seeks to clarify what may be a confusion
in evidence
o R v Roncoli – judge effectively cross-examined witness so the CA considered that the
impression the jury would have been left with was that he considered the defendant to have
no defence
- Active pre-trial case management
o Expressed through interventionalist style judging encouraged
o Good for vulnerable witnesses – judges can view in advance the questions an advocate will
ask them, placing limits or reconsidering them to protect witnesses
- Doubt over neutrality
o The role they play blurs distinction that they are there to decide on matters of law in
contrast to jury who decide on factual matters
▪ decisions regarding admissibility of evidence are considered by judge, meaning they
have to make factual judgements about reliability of evidence
Trial by jury is a key feature of our adversarial system (in comparison to judicial fact finding in inquisitorial
trials) even though it is not fundamentally a characteristic of adversarialism
NO jurisdiction is purely adversarial or inquisitorial as the 2 models are not diametrically opposed
→ the English trial process is based on adversarial tradition
- Consider managerialism as a 3rd style
o Prioritises economy/efficiency
o Co-operation between parties rather than adversarial battle
3 key features of criminal proceedings
Retributive justice as a structuring ideal
- Consequentialist theories of punishment
Context of criminal trial and principles of criminal evidence
Criminal evidence law (governs fact-finding)
- Not an area of substantive law → adjectival law concerned with how the facts can be proved as is not
directly concerned with the elements of an offence
o Helps courts come to rational decision while upholding fairness at pre-trial and during trial
▪ Trade off between pursuit of truth and fairness in criminal trial
• Criminal Justice Act 2003 – thrust of government policy is to redress the
balance of the CJS and make it more advantageous for Ds (principles
originally flowed from case law but now they are in statute)
- Regulates material and how it is presented at trail
o Determines whether evidence is
▪ Relevant
▪ Admissible or excludable by rule/judicial decision
o Determines how trier of fact should be directed
Context of the Criminal Trial
Police and CPS
- Police = Investigate crime and collect evidence
- CPS = independent body from police
o After an arrest, they make decisions whether to charge based on a standardised national
policy with 2 part test
▪ Evidential test – is it more likely than not? (standard lower than BARD)
• objective assessment based on admissibility/reliability/witness-credibility
▪ Public interest test – is a prosecution in the public’s interest?
• seriousness of offence, level of culpability, age, harm to victim, impact on
society etc
Different courts
- if CPS decide to charge, 80-90% of cases end in guilty pleas thus do not go to trial
- if there is no guilty plea:
o minor crimes → Magistrate Court
▪ summary offences/minor either way offences
o serious offences → Crown Court
▪ high value either way offences/indictable offences
▪ only 10% cases
• 10% of 10% (1%) of total cases as 90% result in guilty plea
- for minors (10-17 year olds) committing crimes → Youth Court
o type of Magistrate Court
- for minors (10-17 year olds) charged with offences that would be punishable with 14 years
imprisonment if committed by an adult → Crown Court
Trial by Jury
= 12 members of public in Crown Court (Juries Act 1974 lays out who is eligible/ineligible)
Positives
- randomly selected (cross section of society - representative)
o least racist part of CJS (in comparison to institutional racism in police/legal profession)
o any racist views stamped out by other jurors as unanimous decision must be reached
- tried by peers
o public confidence in administration of justice as public involvement from lay people
▪ acceptability of verdicts – ensures they keep their credibility
o judged on ordinary standards of behaviour – aware of severity of guilty plea so aims to
ensure that the correct people are punished
- transformative effect on individuals called to service
, o Professor Cheryl Thomas’ Jury Project found that there was a transformative effect on
individuals called to serve in jury
▪ Found that those doing jury service are more likely to vote in next election
▪ Jury services sparked changed in how people use media and how involved they are
in community groups
- don’t have to give reason and discussion is secret
o no undue pressure
Negatives
- expensive
o Court system has to pay wages and travel expenses of individual sitting on jury
- time consuming
o hearing before jury and then jury sworn in
- inconvenient for jury
o Thomas’ 2020 article found that 87% of those summoned would have opted out if they could
BUT 81% of people who did it said that they would do it again
- police officers can go on jury
o can influence decisions
- secret
Good or Bad depending on person
- secret discussion and no reason for decision needed
o criminal offence to discuss reasoning in the jury room
o Historical cases revealing that some jurors have resorted to strange methods of reaching a
verdict (used wigi board to contact deceased victim if defendant was guilty, coin flipping)
- jury equity
o Helps criminal law keep pace with public understanding and views of what should constitute
a criminal offence
o Once an acquittal is delivered it is relatively final as there is no right of appeal (there would
be with an erroneous guilty verdict)
o How much power should we place in lay people? – should they be able to ignore that
someone has broken a law?
- evidence law construed with jurors in mind - evidence rules preventing routine admissibility of bad
character evidence (eg previous convictions of individuals) → complex rules of evidence
o streamlined evidence – no distractions to prevent unfairly prejudicial effect
jury-less trials
23rd June 2020 – Lord Chancellor Robert Buckland told the Justice Select Committee that he was considering
legislation to allow trial by panel of judge and 2 lay magistrates for either way offences:
- Quicker and cheaper
- Cost effective way of reducing further backlog in future (current backlog of 41,000 in crown court)
o BUT legal community are concerned that once the jury has been eroded it would be easy for
the government to raise the threshold of cases that could be decided without a jury (should
not forget that they have a very important role)
English trial based on adversarial traditions
Principle of orality - centrepiece of adversarial system is oral trial (Lord Devlin)
- Legal profession view oral evidence as superior
o live testimony of own direct knowledge
▪ other evidence is still admissible
- cross examination – brings out truth
o arises after examination in chief – allows inconsistencies to come out
o ‘greatest legal engine ever invented for the discovery of truth’ (Wigmore)
- common law rules enhance principle
o prohibition of hearsay evidence (can only give evidence they have personal knowledge of)
o swear on oath
, - factfinder (jury) can analyse body language to assess truthfulness
o BUT Welborn says ordinary people can’t detect this because there is no evidence that lying is
accompanied by distinct body language
Party Control = sporting contest between the two sides where both sides must present best case to jury
- Evidence must be relevant and admissible
- Need equality of arms to retain fairness (state has more resources and adversarial theory of truth
finding supposes that adjudicators will infer truth by choosing most compelling evidence so such
deficit must be addressed)
o Burden of proof on prosecution (state) with high threshold of BARD
▪ Accused does not have to give evidence
o Prosecution disclosure of materials used at trial AND any unused evidence that may help D’s
case (s3 Criminal Procedure and Investigations Act 1996 – material that is in public interest
to disclose or be capable of undermining/assisting case)
▪ Ensures D are in position to answer case against them
▪ Parties are under a duty to ensure that justice is done - Prosecutor represents the
state and the state’s interest in getting the right/just result
• BUT now there is also defence disclosure (no longer such a heavy
protection on defence)
o Free legal aid and representation (funded by state)
▪ Gives D pre-trial advice
• BUT legal aid cuts → attempt to reduce adversarial deficit not so good in
practice as in theory
▪ Necessary for effective participation (can prepare case etc)
o Prosecutors have special ethical responsibilities that defence don’t
▪ Dual role as adversarial party and as minister of justice – must have prosecutorial
restraint therefore not persecute
Neutral judge – put questions to witnesses and comment on strength of evidence during summary
- Must not be seen by jury to ‘descend into the arena’
o Judge may only ask questions to witnesses when he seeks to clarify what may be a confusion
in evidence
o R v Roncoli – judge effectively cross-examined witness so the CA considered that the
impression the jury would have been left with was that he considered the defendant to have
no defence
- Active pre-trial case management
o Expressed through interventionalist style judging encouraged
o Good for vulnerable witnesses – judges can view in advance the questions an advocate will
ask them, placing limits or reconsidering them to protect witnesses
- Doubt over neutrality
o The role they play blurs distinction that they are there to decide on matters of law in
contrast to jury who decide on factual matters
▪ decisions regarding admissibility of evidence are considered by judge, meaning they
have to make factual judgements about reliability of evidence
Trial by jury is a key feature of our adversarial system (in comparison to judicial fact finding in inquisitorial
trials) even though it is not fundamentally a characteristic of adversarialism
NO jurisdiction is purely adversarial or inquisitorial as the 2 models are not diametrically opposed
→ the English trial process is based on adversarial tradition
- Consider managerialism as a 3rd style
o Prioritises economy/efficiency
o Co-operation between parties rather than adversarial battle
3 key features of criminal proceedings
Retributive justice as a structuring ideal
- Consequentialist theories of punishment
