8 The Trial
1. Public and oral hearings. According to the Constitution § 65 criminal cases must be heard in open court to as large an extent as possible. While it is true that judgments always are pronounced in open court, there are, however, several limitations to the principle, and a number of cases are heard in camera.
Firstly, certain groups of the public are excluded from the courts. These provisions cover children under the age of 18, anyone who disturbs the court or anyone who has been imprisoned or suffered other detention in the last 10 years (§ 32). These rules are seldom enforced.
Secondly, the usual groups of cases, such as those involving questions of national security or indecency, can be heard in camera (§ 29, stk. 2). A statute passed last in the last parliamentary session gave the victim of a sexual offence an unconditional right to testify in a closed session (§ 29, stk. 6).
Thirdly, the doors can be closed, when the accused is a minor or if open doors would cause anyone (including the suspect) unnecessary offence (§ 29, stk. 4). This rule is further extended by the witness protection rules in § 173, which will be considered later.
And finally, sessions taking place after the time when the indictment is handed to the court and before the trial are always closed (§ 844).
Those present during hearings in camera are bound to keep the proceeedings secret – even after the conclusion of the case (§ 31, stk. 2).
Alternatively, the court may allow public access, but prohibit publication of the names etc. of those involved (§ 31, stk. 3). Such an order is rapidly becoming the rule, rather than the exception. Most restrictions on reporting are automatically lifted once judgment has been given, but some information must never be disclosed in public and in particular this includes information about the deliberations of the jury (§ 895, stk 6), and about the identity of the lay members of the court and the victims of sexual offences (§§ 1017a & c).
The proceedings in court are not recorded verbatim, and the requirement is only that the record should contain a precis of the proceedings. Names of those involved and the pleas are recorded in full (§ 34 & 35), Of the evidence sufficient should be recorded to make it possible for an appellate court to hold a reasoned opinion of the basis for the decision (§ 876, stk. 2). Legal reasoning and speeches are, however, not recorded unless specially provided for by statute (§ 35, stk 3).
2. Jurisdiction. In Danish law, rules of jurisdiction apply both to the level of court, it’s composition (§§ 686-693, 925 & 925a) and to the venue for the trial (§§ 694-709).
As far as the venue is concerned, the trial should take place at the court in whose district the crime was committed, unless the accused confesses, in which case the case is heard at the court of his residence (§§ 694-695). It is possible to change the venue with leave of the courts right up until the beginning of the trial.
When an accused is to stand trial for more than one offence or when several persons are accused of one offence, the general rule is to join the trials (§ 705). contrary to English law, this also applies when the separate cases would belong to different levels of courts.
The rules on jurisdiction and consequently the composition of the court are a maze, and a number of recent changes have rendered them if not absolutely incomprehensible, then at least rather difficult to explain. The following applies only to public prosecutions.
The only simple rule applies to political cases i.e. treason, dissolution of associations and the banning of foreign books, which must be heard by the High Court and a jury, regardless of their merit.
Basically, all the remaining cases are divided according to prosecuting authority (§§ 687 & 688) into 4 classes:
– crown cases triable in the High Court with a jury,
– crown cases triable in Town Court by judge and lay judges,
– police prosecutions forwarded according to the rules applicable to crown cases triable in the Town Court, &
-proper police cases
– with prosecution plea of custodial sentence
– with prosecution plea of non-custodial sentence
Cases in categories 1 and 2 are distinguished by the severity of the sentence pleaded by the prosecution which, in category I, will be more than 4 years imprisonment or confinement in mental hospital or a security detention. However, this does not apply to severe theft, handling, obtaining by deception or tax evasion, and falsification of documents or fraudulent use of real documents.
It follows that while on principle there are no “triable either way”-offences, the prosecution does nevertheless to some extent decide the mode of trial. Normally they decide against the jury of the High Court; indeed sometimes charges have been dropped in order to get the trial within the jurisdiction of the Town Court. If by the end of the trial a Town Court considers a sentence above the appropriate limit the case has to be reheard before a High Court and jury.
The cases in category 3 were formerly crown cases, but as the case load increased, they were reduced to police prosecutions. In order to give the accused the same rights as before and in order to have the same police powers available (that was probably more important to the Ministry of Justice), they are still treated as crown cases and tried by a judge sitting with 2 lay judges.
The sanction in proper police cases used to be only fine or simple detention, and they were consequently tried by a single judge and according to a less stringent procedure, but prison tended to creep in as maximum penalty. Therefore, the law was changed so that whenever the prosecution requests a custodial sentence, even these cases have to be heard by a judge sitting with 2 lay judges (§ 688, stk 1, nr. 1). Apart from this they are still tried according to the old rules as are those police prosecutions, where the sentence in question is only a fine. As with the cases in category 3 this has preserved the status quo on police powers etc.
If the accused has admitted his guilt during a preliminary hearing then the case may be downgraded (see below) and normally tried by a summary procedure.
If the matter is maritime, then that must also be taken into consideration, but these cases are rare.
3 Downgrading of proceedings. Danish criminal procedure knows several types of downgraded proceedings. The most important are those, which allow the case to be finished without a formal trial. In all instances downgrading requires the consent of the accused and a confession of guilt.
In proper police cases the chief constable may at any stage, if he considers it appropriate, suggest that the case is finished by payment of a fine (§ 931). If the fine is paid, nothing else happens. If the offender is caught again the fine will count as a full antecedent. The system is very similar to the English system of ticket fines. In the case of parking offences, the sanction is deemed to be a fee, rather than a fine, and they are consequently collected through the civil courts.
All other casesr except those involving a possibility of confinement in mental hospital or security detention, can be dealt with by the judge during any preliminary hearing, provided the accused confesses his crime and this is corroborated by the available evidence and counsel for both sides consent (§ 925). The judge can refuse to accept this procedure when he thinks the confession or ether available evidence does not warrant a safe conviction. In proper police prosecutions, a confession is generally deemed to be sufficient evidence (§ 935, stk. 1). The vast majority of cases are handled this way.
If there is a possibility of confinement or security detention, then the confession can only lead to the downgrading of the trial from jury in the High Court to judge and lay judges in the Town Court (§ 925a), but there still has to be a full trial on indictment.
A last type of downgraded proceedings are of course the conditional waivers, which were dealt with earlier.
4. Trial on indictment. Cases that cannot be disposed of either summarily or out of court (by waiver or ticket fine etc. ) must be tried on indictment. Originally the Administration of Justice Act provided for some kind of committal proceedings to be held, but they fell into disuse, and were finally abolished in 1978.
The rules concerning the proceedings of the hearing vary according to the court of jurisdiction as outlined above. Accordingly, the Administration of Justice Act contains 3 different sets of rules on court hearings in the first instance. The rules for the High Court are the the most elaborate, albeit the least used and they are contained in §§ 831-911 of the act. The two sets of rules for the town courts are found in §§ 925-929 and §§ 930-939. The very small number of sections used for the latter rules may be explained by the fact that they consist mostly of references to the High Court rules.
In the following I take my starting point in the High Court, because the Administration of Justice Act does so, and because most English have sme experience with jury- trial. It must, however, be remembered that only a tiny fraction of cases are heard by a jury.
Proceedings in the High Court. Indictments are drawn up by the prosecution and not by the court, as happens in England, but the rules about the contents of the indictment (§§ 831, 926 and 930, stk. 1 respectively) are almost identical to English law. It is customary to combine the statement of offence and the particulars of the offence into one long sentence, but it is not essential. The indictment should ordinarily mention the statutory provision for the crime. In this context it may be worth noting that Danish law generally rejects the notion of crimes at common law (Criminal Law Act § 1).
As mentioned earlier the general rule is to join all charges against one defendant or all charges arising from one incident in one indictment (§ 705).
The rules on amendments to the indictment are different from English law, in that counts cannot be added, nor may any individual count be expanded without leave from the defendant. Secondary factual details can be corrected and the statement of offence may be changed to the same extent as the court may subsume the facts under another statutory provision.
Together with the indictment, a list of the evidence (and strictly speaking its purpose) must be submitted to the court and the defence (§§ 334-837). In like manner, the defence must hand over a list of its evidence to be called at the trial and any request that prosecution evidence must be produced in another way than proposed by the prosecution. Disputes on these questions are settled by the court. As opposed to the prosecution’s duty of complete pre-trial disclosure, the defence may withhold adverse evidence.
The court has ex officio power to dismiss the case for technical reasons and when the alleged facts do not constitute a crime known to the law or the offence has been time-barred &c. (§ 842).
On the day of the trial, the accused must appear before the court. He does indeed have a duty to appear during the proceedings, and a right to do so, except when he is disorderly or when it is necessary to protect a witness (§§ 846, 848 & 151, stk. 4).
The order of proceedings is left to the discretion of the chairman of the court unless there are statutory provisions to the contrary (§ 148). Amongst other things, he may decide that the hearing should deal separately with one or more of the counts in the indictment (§871, stk. 2). But rulings on the barring of evidence, objections from witnesses and the like are made by all members of the bench (§§ 871, stk. 1 & 881).
The arraignment in the High Court (§§ 864-867) is based on that of a British court, with the notable exception that the jury is present, while the accused pleads. It is noteworthy, that the pleas of the parties do not bind the court, but if during trial on appeal the prosecution joins the accused’s plea of not guilty it does limit the maximum sentence to that imposed by the court below.
The normal pleas are “guilty” and “not guilty”, but the accused may alternatively enter a plea that, for reasons of law, the court should not proceed with the trial.
Such a reason could be that the facts alleged in the indictment do not constitute any offence in law, which is roughly the equivalent of a plea of “no case to answer”, but is different in that it does not take the prosecution evidence into account. Another reason might be that the offence is time-barred. If the judges agree, they record an acquittal without referring the question to the jury ($ 869, stk. 2).
If the prosecutor appears without a right to prosecute, an acquittal must be entered on the record, but in this case, the acquittal is no bar to a new trial of the same matter. As with the writ of venire de novo one may say that a second trial does not constitute double jeopardy, as there never was any risk of the first indictment resulting in a lawful conviction. But in that case a dismissal would have seemed more sensible as a sanction. In English law the position is slightly illogical because a faulty indictment may be corrected during the trial, but if a defective indictment is used as a ground of appeal, it may lead to a quashing of the conviction and bar a new trial, except when a writ of venire de novo may issue.
Pleas of pardon, or previously convicted or acquitted are probably also admissible and must result in a dismissal, but there is no reference to them in either the Administration of Justice Act or in the text-books. More likely is a plea that parts of the charges were dropped at an earlier stage and that those charges cannot be considered by the court.
The act no longer specifies that the judges can convict on their own accord when the accused pleads guilty, but the court may curtail the hearing of evidence when the accused gives a detailed confession (§ 868, stk 2). The idea that the jury may refuse to convict on the basis of curtailed evidence seems not to have been entertained by any Danish author and is of course improbable. Unlike in England a late plea of guilty is unusual and as it may be retracted at any time before the jury retires, it is also unlikely to lead to any considerable shortening of the trial *12.
As mentioned earlier, the selection of jurors and peremptory challenges have been dealt with before the day of the trial, so the next step is that the jurors give a solemn declaration (instead of the oath) and choese their foreman (§ 867). The chairman must also remember to ask the jurors whether they are disqualified from hearing the case (§ 66, stk. 2). Following this, the prosecutor opens the case on behalf of both sides (§ 868), and consequently, the opening speech must be balanced in its view on the case.
Then follows the evidence, which I deal with separately in the next chapter.
When the evidence has been heard, the counsel have closing speeches and, if necessary, rejoinders. In their submissions, counsel should restrict themselves to commenting on the question of guilt, as they will be given opportunity to comment on the sentencing later. Finally, the accused should be allowed to render his opinion (§ 883).
Subsequently, the prosecution produces a draft of the questions to the jury for the judges and the defence counsel to consider. Having heard the opinion of the defence, final questions are settled by the court. In so doing, the court may substitute another punishable offence from the one mentioned in the indictment and divert from the contents of the indictment as regards details of fact, provided that the defendant has had ample opportunity to answer these points (§§ 884-885 cf. § 908). If necessary, counsel must be given an opportunity to comment on the changes in court.
Following this, the chairman of the court sums up. The summing up consists of 2 parts: a direction on the law and a resume of the evidence. The direction in law is supposedly binding on the jury, and consequently must be objective and can form the basis of an appeal, whereas the resume usually cannot. It is, however, rare that the summing up is structured into two nicely separated parts. If requested by any of the parties, specific statements on the law have to be recorded (§ 893). At the end of the summing up, the questions for the jury are read aloud, and thereafter the jury may retire.
Once they have retired, the members of the jury are not allowed intercourse with anyone apart from the chairman of the court, nor may any juror leave the jury room without his permission. If the jury desires it, the chairman of the court may be present in the jury room during their deliberations and answer questions from the jury. He may also raise his voice, if he thereby hinders the jury from making mistakes. Any such action must be recorded in the main. He must, however, leave before the jury starts voting (§ 895). Alternatively, either the jury or the judge may choose to return to the court room instead and deal with the matter there (§§ 898 and 895).
The primary decision for the jury is whether the accused committed the acts of which he has been accused. The questions must be phrased accordingly, and any question may only refer to one defendant, and if possible only one criminal offence. The question must contain the same references to law and fact as an indictment (§§ 887-888).
If he did commit them, the jury then decides whether, for any reason, he should be excused e.g. on grounds of reasonable self-defence, diminished responsibility, not yet having attained the age of criminal responsibility (15 years), or abandonment of attempt. As far as time-barring is concerned, the jury only decides upon the time at which the crime took place.
Thirdly the jury must decide whether any mitigating or aggravating circumstances set out in the law are applicable, making it possible to depart from the usual statutory minimum or maximum sentences.
Decisions which are unfavourable to the accused must be reached with not less than 8 votes or as it is commonly – but clumsily – put, with more than 7 votes (§ 897, stk. 2). This also applies when the jury through illness has been reduced from 12 to 11 members. Consequently, there can never be a retrial because the jury has failed to reach a verdict. The only exception to the rule is the question as to whether the accused was insane or mentally retarded, which may be decided with a simple majority (i.e. normally 7 votes), or if there is no majority for a particular answer, by the judges. If the jury disagrees as to which result is most favourable to the accused, it must hold a separate ballot about that (§ 216, stk. 2).
Once back in the courtroom, the foreman will read the questions and the answers aloud. He must not reveal the number of votes with which the result was reached, not even when the verdict was unanimous.
The court must always accept a verdict of not guilty, but it does not always have to accept a verdict of guilty. It may refuse to convict if either the proven facts do not constitute an offence in law or if it finds the evidence insufficient to convict (§§ 909 & 904. In the first instance, it should acquit whereas in the latter the court must direct a retrial. If the second jury convicts, but the new judges are equally unsatisfied, an acquittal should be recorded. These rules are normally referred to as “the second safeguard”.
If a verdict of guilty is returned, the court and the jury will hear pleadings on sentence. Thereafter, the court will admit it for judgment. The same applies when a verdict of diminished responsibility has been returned, and a hospital order or the like is feasible.
Sentencing is done by the judges and the jury together, each group having the same number of votes. The voting is done according to a complicated pattern described in § 906a. Danish law regards sentencing as a matter of substantive criminal law, and in accordance with this tradition it will not be dealt with here.
The form of the final judgment will be treated below in a chapter on the rulings of the court.
Procedure in Town Court cases in classes & 3. The procedure in crown cases triable in the Town Courts and police prosecutions forwarded according to the rules applied to crown cases in the Town Courts are generally the same as those for the High Court, but of course with the changes necessitated by the absence of a jury.
Indictments must comply with the rules used in the High Court, but there is no mandatory requirement for a formal opening of the case (§ 928). The court may, if necessary, require the prosecution to present it with an opening statement in writing (§ 927b). That might happen in a serious fraud case. Equally, the court may ask for the main points in closing speeches to be set out in writing.
Evidence rules are the same as in the High Court. Normally the Town Court determines both the question of guilt and the sentence in one round, but it may also hear submissions on the question of guilt separately (§ 928a).
Procedure in Town Court cases in class 4. Generally these cases are concerned with offences from outside the Criminal Law Act i.e. motoring offences, breaches of environmental laws etc. The large majority of these cases are dealt with by a ticket fine (5 931), but some do end up in court.
The standards for the indictment are lower and, provided the accused is present, an indictment can be dictated to the record of the court, whereupon the case may be heard (§ 930).
If the accused has been summoned, but does not turn up, the court may hear the case in his absence. He may also send someone else to testify on his behalf, provided they have a letter of attorney (§934). If the accused admits his guilt, this is normally deemed to be sufficient evidence (§ 936).
And finally, the sentence may fall to a mere caution, if the judge considers that reasonable.