Opening the Case
We have been looking at the burden and standard of proof. Before turning to how that is applied, and how evidence is actually given, it is important to consider the structure of cases so that the context in which the evidential rules operate can be understood.
In both civil and criminal cases there is an opening at the start of the case. There is however some difference as to how that operates in practice. In each case the aim of an opening is to explain what the case is about so that the issues which have to be determined will seem tolerably clear.
Criminal cases can of course be in front of magistrates (whether a lay bench of magistrates who are not qualified as lawyers, or a district judge who is a qualified lawyer - on an appeal to the Crown Court it will be a judge and two magistrates who may be hearing an appeal against conviction by the magistrates which will essentially operate as a rehearing of the original trial). They can also be in the Crown Court before a jury with a judge presiding. In either case counsel for the prosecution, or whoever is prosecuting, has to open the case. They will explain what the case is about, making it clear that what they say is not evidence and the case is to be judged on the evidence actually heard. The opening (if to a jury) will also make clear that rulings on law come from the judge (so that if there is any difference between the statement of the legal position between what prosecuting counsel says and what the judge says it is what the judge says that counts) and that the jury are to determine questions of fact. This will be an oral (i.e. spoken) opening.
Whilst the principle is the same in civil courts, the practice can be somewhat different. In a civil case which is taking place with a jury then in practical terms the opening may well be very similar to that in a criminal case (obviously adapted to whatever the issues are in the particular piece of litigation). However very few civil trials take place with a jury, only cases such as fraud, defamation (libel or slander), false imprisonment and malicious prosecution, and even they can sometimes take place without a jury (for those who are interested see section 69 of the Supreme Court Act 1981). Where there is no jury the judge is making all the decisions of fact and law, and it is much easier for him to make decisions about how the case should proceed. There is a much greater emphasis on written submissions. The judge may direct that both sides put in written openings and just deliver brief supplementary oral submissions. Different courts have different practices, as do different judges, but sometimes counsel on both sides of the dispute will be called upon to make a brief opening statement. In any event the primary obligation is on the claimant to outline the facts, the claim and the issues.
Whatever the nature of the case an opening should be clear, as brief as the circumstances reasonably permit, and give an accurate indication of the background to the case and those matters which will fall for decision. Then the evidence can be considered in an appropriate context.