27.3 Trial Procedure in the Magistrates' Court and Crown Court

FLK2 trial questions are less about theatre and more about sequence, role, and what you may lawfully say. The same offence can be tried in the magistrates' court or the Crown Court, but the fact-finder, the formality, and the addresses change. A newly qualified solicitor is expected to know who speaks when, when a case can be stopped, how to question a witness without leading on disputed facts, and when the defendant's own character helps the defence.

Burden and standards of proof at trial

At trial the legal burden of the offence remains on the prosecution. Closing speeches and summing-up return to the same direction: the court must be sure. If the case is tried by magistrates, they are both tribunal of fact and tribunal of law. In the Crown Court the judge rules on law and admissibility; the jury decides facts.

Keep the trial consequences of the burden in view. The prosecution opens because it has something to prove. The defence need not call evidence. If the defendant does give evidence, that does not reverse the burden. Reverse burdens (insanity; some statutory exceptions) are left to the defendant on the balance of probabilities and must be identified in the legal directions. Evidential burdens are about whether an issue is live. If there is no evidence capable of raising self-defence, the tribunal should not be left a self-defence route to acquittal.

Stages of a criminal trial, including no case to answer

The skeleton is the same in both courts, with jury-specific steps in the Crown Court.

The submission of no case to answer is tested against R v Galbraith. First, if there is no evidence that the crime alleged has been committed by the defendant, the case must stop. Second, if there is some evidence but it is of a tenuous character — for example inherently weak or vague — the court asks whether, taken at its highest, a jury properly directed could properly convict. If they could not, the case stops. If they could, the case continues even though the evidence is thin. Magistrates apply the same logic to themselves as fact-finders, taking the prosecution evidence at its highest and not generally choosing between competing inferences at this stage. Identification cases are a frequent Galbraith setting: a poor, unsupported Turnbull identification should not be left to the jury.

Modes of address and courtroom etiquette

Courtesy is part of competence. Using the wrong form of address is not a ground of appeal on its own, but it marks a solicitor as unsafe, and FLK2 expects the conventions.

Stand when the court enters or leaves. Do not talk over a witness. Do not argue with the bench; make submissions. If the judge is ruling, stop. Mobile phones off. In the Crown Court, robes follow local practice for solicitors with higher rights; in the magistrates' court, professional business dress is the norm. Never put a proposition to the court that you know to be false. Never cite a case you have not checked. If you undertake to the court to file a document or to produce a client, you must do it.

Leading and non-leading questions

A leading question suggests the answer or assumes a contested fact. "The man who hit you was the defendant, wasn't he?" is leading. "What did you see?" is not.

Examination-in-chief and re-examination must be non-leading on disputed matters. Narrow exceptions exist: introductory formalities (name, occupation), truly undisputed facts, and a witness declared hostile with the court's leave. A hostile witness is not merely unfavourable; they are not desirous of telling the truth at the instance of the party calling them.

Cross-examination may lead. The cross-examiner may put the defendant's case, challenge credibility, and put previous inconsistent statements. You must put the nature of the defence case to the witness so that the witness has a fair chance to comment. Re-examination is confined to matters arising in cross-examination and is again non-leading. A solicitor who leads in chief on the identification of the attacker is both storing up an objection and training the witness.

Competence and compellability

Competence is about who may give evidence. Compellability is about who can be required to.

Section 53 of the Youth Justice and Criminal Evidence Act 1999 starts from a simple rule: all persons are competent. A person is not competent if they cannot understand questions put to them as a witness and cannot give answers that can be understood. There is no minimum age. A young child or a person with a learning disability may be competent with an intermediary and simplified questions. If they cannot take the oath, they may give unsworn evidence if they understand the duty to tell the truth.

The defendant is competent to give evidence for the defence and is not competent as a prosecution witness. The defendant is not compellable. That is why section 35 inferences exist: the court cannot force the defendant into the box, but it may, with safeguards, comment on the choice to stay out of it.

A spouse or civil partner is competent for both sides. They are generally compellable for the defence. They are compellable for the prosecution only in a closed list of offences under section 80 of PACE: specified assaults on the spouse or civil partner, or on a child under 16, and specified sexual offences against a child under 16. A co-accused is not a spouse. Former spouses after divorce are treated as ordinary witnesses.

Special measures

Special measures under the Youth Justice and Criminal Evidence Act 1999 are designed so that eligible witnesses can give their best evidence. Eligibility and the measure are separate questions. The court must consider which measure or combination will maximise the quality of the evidence.

Eligible witnesses include those under 18, those whose quality of evidence is likely to be diminished by mental disorder, significant impairment of intelligence and social functioning, or physical disability, and those eligible on grounds of fear or distress. Complainants of sexual offences and certain modern-slavery and domestic-abuse complainants are treated as eligible. Defendants have a more limited set of measures, including live link in defined circumstances; do not assume that every tool available to a prosecution witness is available to the accused.

The statutory menu includes screens, live link, evidence in private, removal of wigs and gowns, video-recorded examination-in-chief, video-recorded cross-examination and re-examination, intermediaries, and communication aids. For child witnesses in need of special protection, the primary rule is video-recorded evidence-in-chief plus live-link cross-examination unless that is not in the interests of justice. Special measures do not make a witness competent. They help a competent witness communicate.

Relevance of the defendant's good character

From September 2026 the FLK expressly tests the relevance of the defendant's good character. This is trial law, not a sentencing plea.

A defendant of good character is entitled to a direction with two limbs (R v Vye; R v Hunter). First, credibility: if the defendant has given evidence, or if a mixed statement is relied on, good character supports the likelihood that they are telling the truth. Second, propensity: a person of good character is less likely to have committed this offence. The propensity limb can apply even if the defendant does not testify.

Absolute good character means no convictions and no other admitted reprehensible behaviour. Effective good character covers old, minor, or unrelated convictions where the judge decides that a good-character direction, sometimes modified, is still fair. The judge has a residual discretion not to give a direction that would be an insult to common sense, for example where the defendant has admitted other serious misconduct in the trial. If bad-character evidence has gone in through a section 101 gateway, the full good-character direction is not appropriate. Good character is relevant; it is not a defence. The jury is never told that good character equals innocence.

Solicitor's duty to the court

The SRA Code of Conduct for Solicitors sits above loyalty to the client once they collide. You must not mislead or attempt to mislead the court, waste the court's time, or put forward a case on evidence you know to be untrue. Independence and honesty are not optional extras in a criminal trial.

If the client maintains a not-guilty plea, you test the prosecution and require it to prove the case. If the client has admitted guilt to you but still wishes to plead not guilty, you may continue to act on that limited basis: the prosecution must prove its case, and you may cross-examine on weaknesses. You must not call the client to give evidence you know is false, assert an alibi you know is invented, or accuse another person of the crime contrary to the admission. If the client insists on giving false evidence, you withdraw, without explaining the privileged reason in open court. Duty to the court also covers disclosure obligations and not using privileged information from an opponent that has arrived by obvious mistake. A trial advocate who wins by misleading the bench has not won within professional rules, and the resulting conviction is vulnerable.