A criminal trial is the process by which a court determines whether a defendant is guilty or not guilty of the offences charged. The prosecution must prove the defendant's guilt beyond reasonable doubt. The trial follows a structured sequence of stages, from opening speeches to verdict. Understanding this sequence is essential because the order matters - evidence can only be adduced at the right stage.
The procedure differs slightly depending on the type of offence. Summary offences are tried in the magistrates' court. Either-way offences can be tried in either court depending on the mode of trial decision. Indictable-only offences must be tried in the Crown Court. The basic structure of the trial is similar in both courts, but Crown Court trials are more formal and involve a jury.
For the SQE, focus mainly on Crown Court trial procedure because it is more detailed and more likely to be examined. The key stages - opening, evidence, cross-examination, submissions, closing speeches, summing up, and verdict - apply to both courts but are most clearly defined in the Crown Court context.
The prosecution opens the trial with an opening speech. This tells the jury what the case is about, what the prosecution allege happened, and what evidence they will call. The advocate must not argue the case at this stage - they simply outline the evidence the jury will hear. The defence does not make an opening speech unless the defence is going to call evidence.
The prosecution opening speech must be a factual outline of what the jury can expect to hear. The advocate must not express a personal opinion on the evidence or argue that the defendant is guilty. That is for the closing speech after all the evidence has been heard. If the advocate goes too far, the judge will intervene.
After the opening speech, the prosecution calls its witnesses. Each witness gives their evidence-in-chief, which means answering questions from the prosecuting advocate. The purpose of evidence-in-chief is to elicit the witness's account of what happened. The advocate uses open questions (questions that do not suggest the answer) to allow the witness to tell their story in their own words.
After a prosecution witness has given their evidence-in-chief, the defence advocate cross-examines them. Cross-examination is the defence's opportunity to challenge the witness's account, test their reliability, and suggest alternative versions of events. Leading questions (questions that suggest the answer) are permitted in cross-examination. This is the most important part of the trial from the defence perspective.
After cross-examination, the prosecution may re-examine the witness, but only on matters that arose during cross-examination. Re-examination is not an opportunity to go over the same ground as evidence-in-chief. The advocate may also ask the court's permission to ask about new matters raised in cross-examination that need clarification. The judge has discretion to allow or refuse this.
A leading question is one that suggests the answer within the question itself. For example: "You were at the pub that night, weren't you?" Leading questions are generally NOT permitted in evidence-in-chief because they put words into the witness's mouth. However, leading questions ARE permitted in cross-examination, because the purpose of cross-examination is to challenge the witness, not to let them tell their story.
A non-leading or open question allows the witness to answer in their own words. For example: "What did you see on the night of 5 March?" Open questions are required in evidence-in-chief so that the witness gives their own account. They are also used in re-examination. Open questions typically start with "what", "when", "where", "how", or "tell the court".
| Stage | Type of Question | Purpose |
|---|---|---|
| Evidence-in-chief | Open (non-leading) | Elicit the witness's account |
| Cross-examination | Leading permitted | Challenge and test the witness |
| Re-examination | Open (non-leading) | Clarify matters from cross-examination |
Leading questions ARE allowed in evidence-in-chief for introductory matters that are not in dispute (such as the witness's name and occupation) and for hostile witnesses. If a witness becomes hostile, the advocate can apply to the court to treat them as hostile and then use leading questions to challenge their evidence.
After the prosecution has closed its case, the defence can make a submission that there is no case for the defendant to answer. This is a legal argument that even if the jury accepted all the prosecution evidence at face value, it would not be sufficient to prove the defendant's guilt. If the judge agrees, the defendant is acquitted without having to present any defence. This is governed by the Galbraith test.
A judge may properly withdraw a case from the jury where there is no evidence that the crime has been committed by the defendant, or where the evidence is so tenuous, weak, or contradictory that no reasonable jury could properly convict on it. In the second situation, the judge is saying that the evidence, taken at its highest, is still insufficient.
The Galbraith test has a high threshold. Judges are reluctant to take cases away from the jury unless the prosecution case is clearly insufficient. Even weak or unreliable evidence will usually be left to the jury to assess. The judge's role is not to decide the case, but to ensure there is enough evidence for the jury to properly consider.
If the submission of no case to answer fails, the defence must decide whether to call evidence. The defendant has a right to silence and does not have to call any evidence at all. The defence can simply invite the jury to acquit on the basis that the prosecution has not proved its case. Alternatively, the defence can call witnesses, including the defendant, to give evidence.
Unlike the prosecution, the defence does not usually make an opening speech at the start of the trial. However, if the defence is going to call evidence, the defence advocate may make an opening speech before calling their first witness. This is brief and tells the jury what the defence case is and what evidence will be called. If the defence does not call any evidence, there is no defence speech at this stage.
After all the evidence has been heard, both sides make closing speeches to the jury. The defence closes first, then the prosecution closes last. The prosecution has the right to the last word because they bear the burden of proof. Closing speeches are where advocates argue their case - highlighting the strengths of their own evidence and the weaknesses of the other side's case.
A closing speech should summarise the key evidence, identify the issues the jury must decide, and explain why the advocate's case should prevail. The prosecution will remind the jury of the burden and standard of proof. The defence will highlight gaps in the prosecution case and any inconsistencies in the evidence. Neither side should misstate the evidence or make submissions not based on the evidence.
After closing speeches, the judge sums up the case for the jury. The summing up is NOT an opportunity for the judge to give an opinion on the evidence. Instead, the judge reminds the jury of the key evidence, identifies the issues they must decide, and explains the relevant law. The judge must summarise both the prosecution and defence cases fairly and impartially.
As part of the summing up, the judge gives the jury directions on the law. This includes the burden and standard of proof, the elements of the offence, any defences that are in issue, and how to approach particular types of evidence (such as identification evidence or expert evidence). The jury must apply the law as the judge directs - they do not decide what the law is.
After the summing up, the jury retires to consider its verdict. In the Crown Court, the verdict must be unanimous in most cases. If the jury cannot reach a unanimous verdict after a reasonable time, the judge may accept a majority verdict (at least 10-2 in a jury of 12). The possible verdicts are: guilty, not guilty, and (in limited circumstances) not guilty by reason of insanity.
A majority verdict can only be accepted if the jury has been deliberating for at least 2 hours and 10 minutes (2 hours for juries of 11). The judge must first try to encourage a unanimous verdict before accepting a majority. If the jury cannot agree even on a majority, the judge may discharge them and order a retrial.
In the Crown Court, the judge is addressed as "Your Honour" or "My Lord / My Lady" depending on the judge's rank. Circuit judges are "Your Honour". High Court judges and recorders are "Your Honour" unless they are sitting as High Court judges, in which case they are "My Lord / My Lady". Magistrates are addressed as "Your Worships". Solicitors and barristers are addressed as "My learned friend" or "My learned colleague".
In the Crown Court, barristers wear a wig and gown, and solicitor advocates also wear a gown (with or without a wig depending on their rights of audience). In the magistrates' court, the dress code is more relaxed - solicitors typically wear a suit without a gown. If you are appearing in court, always check what is expected and dress professionally.
At every stage in criminal proceedings all persons are competent to give evidence unless the court is satisfied that they are unable to understand questions put to them and give answers which can be understood.
Under s.53 CJA 2003, ALL persons are competent to give evidence regardless of their age or mental capacity. The only exception is if the person is unable to understand questions put to them and give answers that can be understood. This is a very low threshold. A witness does not need to understand every word or be perfectly articulate - they just need to be able to communicate sufficiently.
Children are competent to give evidence under s.53. There is no minimum age limit for giving evidence. A young child who can understand simple questions and give simple answers can be a competent witness. The court may need to use special measures (such as a live link or an intermediary) to help a child witness give their evidence. The competence of a child witness is determined by the judge.
Competence is not about reliability - it is about whether the witness can understand questions and give understandable answers. Even if a witness is confused or their evidence is unreliable, they are still competent to give evidence. Reliability goes to the weight of the evidence, not its admissibility. The jury can decide how much credit to give to an unreliable witness.
Compellability is different from competence. A competent witness may or may not be compellable. A compellable witness is one who can be required to give evidence and can face sanctions (such as being found in contempt of court) if they refuse. Most witnesses are compellable, but there are important exceptions, particularly for the defendant and their spouse or civil partner.
The defendant is competent but NOT compellable for the prosecution. The prosecution cannot force the defendant to give evidence. This is a fundamental protection arising from the right to silence and the privilege against self-incrimination. However, the defendant is compellable for the defence - they cannot refuse to give evidence on their own behalf if their own legal team wants them to (though in practice, the defence would never force a defendant to give evidence).
The rules on spousal compellability depend on whether the spouse is being called for the prosecution or the defence, and whether the offence involves violence against the spouse. Under s.80 CJA 2003, the spouse or civil partner of the defendant is generally compellable for the defence but not for the prosecution. However, there are exceptions where the spouse is compellable for the prosecution.
| Situation | Compellable for Prosecution? | Compellable for Defence? |
|---|---|---|
| General rule | No | Yes |
| Sexual offence against the spouse | Yes | Yes |
| Violent offence against the spouse | Yes | Yes |
| Offence against a child under 16 | Yes | Yes |
| Attempted offence in the above categories | Yes | Yes |
| Conspiracy or incitement in the above categories | Yes | Yes |
The compellability rules for former spouses and civil partners are different. A former spouse is competent and compellable to give evidence for both the prosecution and the defence. The protection only applies to a person who is the spouse or civil partner of the defendant at the time they are required to give evidence.
Special measures are arrangements put in place to help vulnerable or intimidated witnesses give their evidence. They are governed by the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999). The aim is to enable witnesses who might otherwise be unable to participate effectively to give their best evidence. Special measures are available for both prosecution and defence witnesses.
Under the YJCEA 1999, eligible witnesses include: child witnesses (under 18), witnesses whose quality of evidence is likely to be diminished because they have a mental disorder, a physical disability, or a learning difficulty, and intimidated witnesses (those whose quality of evidence is likely to be diminished because of fear or distress). The court must consider whether special measures would improve the quality of the witness's evidence.
Screens can be used to prevent the witness from seeing the defendant while giving evidence. The defendant can still hear the evidence and the witness's voice. Screens are commonly used for child witnesses and for witnesses who are afraid of the defendant. The court must be satisfied that the quality of the witness's evidence would be diminished by fear or distress at having to see the defendant.
A live link allows the witness to give evidence from outside the courtroom via a televised video link. The witness can see and hear the courtroom, and the court can see and hear the witness. Live link is commonly used for child witnesses and vulnerable adult witnesses. The defendant can see the witness giving evidence unless the court directs otherwise.
An intermediary is a person who helps a witness to understand questions that are put to them and to communicate their answers. Intermediaries are particularly useful for child witnesses and witnesses with communication difficulties. The intermediary does not give evidence themselves - they simply facilitate communication between the court and the witness.
Special measures are not just for prosecution witnesses. A defence witness can also apply for special measures if they are eligible. The court applies the same test: whether the quality of the witness's evidence is likely to be diminished and whether the special measure would improve it. This is important if your defence relies on a vulnerable witness.
A solicitor has an overriding duty to the court which overrides their duty to their client. This means that a solicitor must not knowingly mislead the court, must disclose all relevant legal authorities, and must draw the court's attention to relevant points of law even if they are against the client's interests. This duty is fundamental to the administration of justice and is set out in the SRA Code of Conduct.
If you know or suspect that your client is going to give perjured evidence (lie under oath), you face a difficult situation. You cannot assist the client to give false evidence. You must advise the client strongly against giving perjured evidence and explain the consequences (including the offence of perverting the course of justice). If the client insists, you may have to withdraw from the case and, in extreme circumstances, disclose to the court that you can no longer act.
A solicitor must not act where there is a conflict of interest between the solicitor's duty to the client and their duty to the court. If a conflict arises during a case, the solicitor must consider whether they can continue to act. The solicitor must not allow the client's interests to override their duty to the court. If the conflict cannot be resolved, the solicitor must withdraw from the case.
If your client tells you they intend to lie in court: (1) Advise them firmly against it, (2) Explain that perjury and perverting the course of justice are serious offences, (3) Ask them to reconsider, (4) If they insist, you cannot continue to represent them if you know they will commit perjury, (5) Consider whether you need to seek the court's permission to withdraw. You do NOT disclose what your client told you in confidence.
Good cross-examination is about asking short, focused questions that advance your case. Each question should have a purpose. Avoid asking "why" questions in cross-examination because they give the witness too much room to explain. Put your case to the witness so they have an opportunity to respond. End on a strong point. The best cross-examination is brief and controlled.
A hostile witness is one who is called by your side but gives evidence that is unfavourable to your case. Before you can treat a witness as hostile, you need the court's permission (leave). The court will grant leave if it is satisfied that the witness has shown hostility. Once leave is granted, you can use leading questions to challenge the witness's evidence. Be careful - there is a high threshold for treating a witness as hostile.
Never ask a question in cross-examination unless you know (or can reasonably predict) the answer. If you ask an open question, you give the witness control. If you ask a leading question, you stay in control. Cross-examination is your chance to tell your client's story through the prosecution witnesses - use it wisely.
Throughout the trial, the prosecution bears the burden of proving the defendant's guilt beyond reasonable doubt. This is the "golden thread" that runs through English criminal law, as described by Viscount Sankey in Woolmington v DPP (1935). The defendant does not have to prove anything. The jury must be reminded of this in the judge's summing up.