Speeches
As we have discussed in Chapter 3, effective speaking is very important to an advocate’s success and so spending time writing a good speech that gets your points across is worthwhile and can be beneficial when it comes to presenting your case in court.
As we will see, good speeches matter.7.5.1 Opening Speeches
An opening speech will describe details of the offence for the judge/jury the offence (criminal cases) or the nature of the claim (civil cases) and identify the agreed and disputed facts and any issues to be proved at trial. It is usual to use the trial bundles to refer to some of the documentary evidence during the opening speech.
In a criminal trial the prosecution will make an opening speech. However, if the defence is calling witnesses of fact (apart from the defendant) it also has a right to make an opening speech. The defence can set out its own case and draw the jury’s attention to weaknesses in the prosecution’s case. In civil proceedings the claimant is responsible for making the opening speech, but this is usually not required if the judge has read the file in full.
After the opening speech by the advocate representing the prosecution or claimant they will then call their witnesses and present their evidence. Questioning will follow the order of examination-in-chief, cross-examination and re-examination (see Chapter 3, section 3.6). The defence/defendant will call their evidence after the pros- ecution/claimant have called all their witnesses. This is sometimes referred to as the ‘half-way’ point of the trial. The defendant will then take their witnesses through the three stages of questioning.
7.5.2 ClosingSpeeches
The defence (criminal cases) and defendant (civil cases) will make the closing speech. The speech will focus on how the judge/jury should interpret the evidence that they have heard and also comment on the weight of the evidence that has been put before the court.
Where a defendant is unrepresented and did not call evidence, the prosecution in a criminal trial does not have an automatic right to a closing speech. After the prosecution closing speech, the defence has a right to summarise its case for the jury before the judge’s summing-up.
7.5.3 The Judge's Summing-Up (Jury Trials only)
The judge is responsible for the summing-up at the end of the trial. The judge will explain to the jury members their function and obligations and summarise the evidence both for and against a defendant. In R v Marr (1990) 90 Cr App R 154, Lord Lane explained the obligation of a judge to sum-up in a way that is fair to a defendant:
It is an inherent principle of our system of trial that however distasteful the offence, however repulsive the defendant, however laughable his defence, he is nevertheless entitled to have his case fairly presented to the jury by both counsel and the judge. Where the cards seem most heavily stacked against the defendant, the judge should be most scrupulous to ensure that nothing takes place which might exacerbate the defendant’s difficulties.
[156]
The trial judge should also remind the jury about the purpose for which a piece of evidence has been admitted (e.g. credibility or propensity). Certain types of evidence may require a warning to the jury to exercise caution in how they treat the evidence. Whilst these directions are usually given in the summing-up, judges can decide to give some or all of the directions much earlier in the trial (including before the evidence is called) and indeed this is encouraged by the Crown Court Compendium. The case of R vABCD [2010] EWCA Crim 1622 also encourages the use of written directions to assist the jury and this is set out in the Criminal Practice Direction PD VI 39K. Written directions should be discussed (and where possible agreed) between the judge and the advocates before being put to the jury.
This section includes a table of the most common judicial directions or warnings to the jury.
| Clarification for the Jury in Judge’s Summing-Up | Name of Judicial Warning/Direction | Nature of Judicial Warning/Direction |
| Burden and standard of proof | Woolmington v DPP Direction - see Woolmington v DPP [1935] AC 462 | That the burden is on the prosecution which has to make the jury ‘sure' of guilt through the evidence it presents including proving the issues in dispute and disproving the defence's case including any defences. Explain that the defendant does not have to prove anything. However, where the defence does bear a burden of proof explain this will be to the civil standard of proof |
| Pre-Trial silence (s. 34 ofthe Criminal Justice and Public Order Act 1994) | Condron Direction - see Condron and Condron v UK [2000] ECHR 191 | Remind the jury that the defendant has a right of silence and that there must still be a prima facie case against a defendant before he/she can be found guilty and the jury must be sure the defendant failed to mention a relevant fact and it was reasonable for the defendant to have mentioned the fact |
| Silence at trial (s. 35 of the Criminal Justice and Public Order Act 1994) | Cowan Direction - see R v Cowan [1995] EWCA Crim 8 | Remind the jury that a defendant has a right of silence as well as reminding it that the burden of proof at the trial remains with the prosecution and that the jury must be satisfied the prosecution has established a case to answer. The jury must also be satisfied that the silence at trial can only be attributed to the fact that the defendant has either no answer to the case against them or none that would stand up to cross-examination |
| Not drawing an adverse inference | McGarry Direction - see R v McGarry [1998] EWCA Crim 2364 | Where there have been serious breaches of Code C in relation to the questioning of a witness or where the defendant could not reasonably have been expected to mention a fact during questioning, the jury should be told that it cannot draw an adverse inference from the defendant's silence |
| Bad character evidence | Highton Direction - see R v Highton and Others [2005] EWCA Crim 1985 | Explain the purpose for which the bad character evidence has been admitted (credibility or propensity of the defendant or both) and that it may be relevant but warn against the prejudicial nature of the evidence |
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| Clarification for the Jury in Judge’s Summing-Up | Name of Judicial Warning/Direction | Nature of Judicial Warning/Direction |
| Good character direction | Vye/Hunter Direction - see R v Vye; R v Wise; R v Stephenson [1993] 97 Cr App R 134 and R v Hunter and Others [2015] EWCA Crim 631 | That the jury can take into account the fact that the defendant has no previous convictions in deciding whether it believes the defendant’s evidence (‘credibility limb’) and/or whether it makes it less likely that he/she committed the offence (‘propensity limb’) |
| Lies of the defendant | Lucas Direction - see R v Lucas [1981] QB 720 | This direction is only required where the lie is relied upon by the prosecution as evidence of the defendant’s guilt. In addition, four circumstances as set out in R v Burge and Pegg [1996] 1 Cr App R 163 must be established. If these circumstances apply then where the lie of the defendant has been shown by other evidence to be a deliberate lie and material to the issues or made out of realisation of guilt and fear of the truth, the jury can note the lie but must be reminded that there may be other reasons for the lie other than guilt (e.g. concealing other non-criminal behaviour that the defendant is ashamed of). Only if the jury is sure the defendant did not lie for an innocent reason can it use the lie as support for the prosecution’s case |
| An unreliable lying witness | Makanjuola Warning - see R v Makanjuola [1995] All ER 730 | This is a discretionary warning which a judge can decide to give and essentially warns the jury to be cautious about relying on the evidence it has heard from a particular witness and/or look for other evidence to support what the witness has said. If the jury is advised to look for supporting evidence the judge should identify which evidence is capable of supporting the witness’s evidence. This warning only occurs if there is some evidence to suggest that the witness is unreliable (e.g. a witness who has been discovered to have lied or has a motive to lie). Unlike a defendant’s noninnocent lie, a witness’s lie goes to credibility only. The direction can be custom-built in the case of a non-defendant’s lies (see Pitcher v R [2021] EWCA Crim 1013) |
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| Clarification for the Jury in Judge’s Summing-Up | Name of Judicial Warning/Direction | Nature of Judicial Warning/Direction |
| Unreliability of admissible hearsay evidence | Riat Direction - see Riat and Others v R [2012] EWCA Crim 1509 | Identify the source of the hearsay evidence and whether the hearsay evidence is disputed and why. Explain that if the prosecution is producing the hearsay evidence it bears the burden of proof still. Identify the limitations generally of hearsay evidence and if it is oral hearsay identify evidence that exists about the witness's credibility |
| Special measures | Section 32 Warning (Youth Justice and Criminal Evidence Act 1999) | Explain the purpose of presenting the evidence using special measures (e.g. to put a witness at ease) and that this should not prejudice the jury's view of the defendant's innocence or guilt or its view of the witness's evidence |
| Visual identification | Turnbull Warning - see R v Turnbull [1977] QB 224 | Take the jury through an assessment of the quality of the visual ID evidence, tell the jury of the need for special caution if the case depends wholly or substantially on the ID evidence. Explain why the warning is needed as a witness can be an honest and convincing witness but may be a mistaken witness and there is a need for caution to avoid an injustice occurring. Direct the jury to look carefully at the circumstances in which the identification was made and identify any discrepancies between the identification and the defendant's actual appearance |
For more details of these directions and others, refer to the Crown Court Compendium.
7.6