8. Summary Trial Procedure Flashcards
when can the mags have a trial in the absence of accused?
if they fail to appear and are under 18:
* court MAY proceed in absence
if they fail to appear and are 18 or over and it is not contrary to ints of justice:
* court MUST proceed in absence
if court decides not to proceed in absence what must they do?
- give reasons
- set a date for the hearing to resume or leave it to be determined
- if adjourned and accused not present - they will need to be sent an adjournment notice
if the prosecution was issued by requisition or summons what must court be satisfied of?
Must be satisfied that it was served on accused a reasonable time before the hearing
what plea is entered if accused does not appear and they continue in absence?
Not guilty.
unless D has served notice of G plea or court tries case under single justice procedure.
how does a trial go on if the accused is absent?
- prosecution still have burden to noraml criminal standard
- if pros do not prove - court must acquit accused
- if it is proved - can either go straight to sentence or adjourn for accused to attend
what happens if the prosecutor is absent?
if court has received evidene - deal with case as if pros were present
if not - enquire as to why they are absent and if there is no good reason - dismiss allegation
if court passes a custodial sentence where D is absent?
MUST issue a warrant for their arrest
when can the court issue an arrest warrant upon adjournment?
only if offence is punishable by imprisonment or court having convicted accused proposes to impose disqualification.
what will a deliberate delay be classed as?
abuse of process
if court passes any other sentence in absence of accused it….
MAY issue warrant for arrest
do the MC have discretion not to proceed on account of a delay?
Yes. Even if proceedings are commenced in time court can refuse to try a case if there has been a delay amounting to an abuse of process.
if a delay is not deliberate can court still exercise discretion?
yes defence can ask court to not proceed if:
* there has been an inordinate or unconscionable delay due to pros inefficiency AND
* prejudice to defence because of delay can be proved or inferred.
1.
which CrimPR rule governs procedure on a plea of NG?
24.3
procedure on not guilty plea being entered is as follows:
- pros summarise case, id law, outline facts / matters in dispute
- if needed, defence may be invited to ID what is in issue
- pros then introduce ev on which they rely
- might be a submission of no case to answer at close of pros case
- if not, justices legal adviser or court explains D’s right to give ev and effect of not doing so
- D introduces any evidence
- pros close speech (only where D is represented or D has introduced ev other than their own).
- defence close speech
when can the court not receive evidence?
when the party has had their opportunity already the court:
- may refuse to receive it and
- must not receive any such evidence or reps after it has announced its verdict.
how is plea taken at the start of a summary trial?
if plea has not ever been entered - accused is asked to enter one
if NG plea was entered on prev occasion - accused is asked to confirm that plea
when can the prosecution make an opening speech?
if accused pleads NG
1.
what is the purpose of prosecution opening speech?
- explain what case is about
- remind court of evidence which has already been given (only if defence have a right to reply).
which witnesses are the prosecution required to call?
- all witnesses whose statements have been served (if pros serves bundle)
- all witnesses that attend court and defence request.
what can the court do if the prosecution do not call a witness?
- court cannot compel them to call that witness however if the prosecution are conducting the case so accused cannot obtain fair trial - court can dismiss case as abuse of process.
- justices can also call witnesses themselves
what are formal admissions?
a party wishing to tender a WS as evidence rather than call the maker can have the statement read out under s.9 CJA 1967.
where a party introduces a formal admission of fact….
a written record must be made of the admission unless court says otherwise
how is a s.9 statement treated?
treated no differently than if that account had been given by witnesses from the witness box, the tribunal of fact is entitled to accept or reject the witness’s account as it sees fit
how is a s.10 admission treated?
that is conclusive of the matter stated and it is not open to the court to reject that fact.
when can a WS be admissible as evidence under s.9 CJA 1967?
when the following conditions are satisfied:
1. statement signed by person who made
2. statement has declaration on
3. before hearing, copy is served on each of parties to proceedings AND
4. no one within the relevant period serves a notice objecting to the evidence.
relevant period =
* such number as prescribed by CrimPR rules but not less than 7 days from service of copy
* if none prescribed - 7 days from service of copy.
can a party whos WS would be admissible under s.9 be called?
yes.
by either:
* the party who copy of statement was served on or
* court on own motion
what does s.10 CJA 1967 provide for?
any fact of which oral evidence may be given in any criminal proceedings to be admitted and for the admission to form conclusive evidence in proceedings.
1.
what are the requirements for an admission under s.10?
- may be made before or at proceedings
- if not made in court - must be in writing
- if made in writing - signed
- if made on behalf of D - made by counsel or sol
- if made before trial by D - must be approved by sol/counsel before or at proceedings
can s.10 admissions be withdrawn?
yes with the leave of the court in the current or any subsequent proceedings
how can mags deal with an objection to prosecution evidence?
- the stage at which they rule is in their discretion
- however, where a confession is the main pros evidence it is interests of justice to decide its admiss as a prelim issue.
when ruling on s.76 PACE objection does the court have to hear evidence?
yes. court is obliged to hear evidence about obtaining of confession.
s.76 PACE test for court to be satisfied of?
court shall not admit the confession unless satisfied that it was not obtained by oppression or by words or conduct likely to render a confession unreliable.
1.
when ruling on s.78 PACE objection does the court have to hear evidence?
court has discretion to hear evidence on issue of admissibility but does not have to.
when should MC generally consider application under s.78?
it is generally better for the magistrates to hear all the prosecution evidence (including the disputed evidence) before considering an application to exclude evidence
1.
what is the role of a justices’ legal adviser in the courts act?
- give advice about matters of law inc procedure and practice
- to bring to their attention point of law
11 roles
what is further roles do justices’ legal adviser have when the bench is lay magistrates?
- legal advice about:
- questions of law
- practice & procedure
- binding judicial decisions
- process to be followed when sentencing & reaching decision
- penalites and orders available when sentencing
- ask party / witness questions
- assist unrepresented parties
- assist to record reasons for court decisions
- make notes of party representations
- identify evidence that is inadmissible
how are the parties involved when a adviser is giving legal advice?
- parties must be informed of advice given
- must be allowed to make reps to court about that advice
Galbraith test for submission of no case to answer?
whether the prosecution evidence is so tenuous that, even taken at its highest, a jury properly directed could not properly convict on it.
(credibility questions not normally taken into account by justices)
what is the basis of a submission of no case to answer ?
pros evidence insufficient for any reasonable court to convict.
when do prosecution have right to reply submission of no case to answer?
when justices are provisionally minded to uphold submission of no case to answer - pros should be given opportunity to address court
pros have no right to reply if court rules there IS a case to answer and this is indicated to prosecutor
when can MC acquit on basis of no case to answer?
on application by defence or
own initiative
can magistrate justices find someone guilty of a lesser offence?
no, they are restricted to reaching a decision on the charge before them - even if jury would be allowed to return an alternative verdict.
when can magistrates find someone guilty of a lesser offence
- careless driving instead of dangerous driving
- taking without consent instead of aggravated vehicle taking
what should the MC do when faced with alternative offences?
if accused is charged with alternative offences and pleads NG to both - mags should not convict of both
