8. Summary trial procedure Flashcards
What are pre-trial rulings?
At a pre-trial hearing (at a hearing that takes place before the court begings to hear evidence from the prosecution or consider whether to exercise its power under the Mental Health Act 1983 s 37(3) to make a hospital order without conviction), the magistrates may decide any question as to the admissibility of evidence and any other question of law relating to the case. Such rulings may only be made if the parties have been given an opportunity to make representations and it appears to the court to be in the interests of justice to do so. If the accused is unrepresented, they must be given the chance to apply for legal aid. These rulings can be made on the court’s own motion or on application.
How binding are pre-trial rulings?
It is binding until the case is disposed of (acquitted or convicted or the prosecution is not proceeding or it is dismissed).
However, on its own motion or on application the court may discharge or vary a pre-trial ruling provided it appears to the court that it is in the interests of justice to do so and the court has given the parties an opportunity to be heard. Can only apply to do so if there has been a material change in circumstances since the ruling or since a previous application if one has been made; it is not sufficient that a different bench reaches a different conclusion on the same material.
Any appeals can only be made via case stated, once there has been a final determination of the proceedings.
What source contains the rules for no case to answer in the magistrates’ court?
CrimPR 24.3(3)(d):
at the conclusion of the prosecution case, on the defendant’s application or on its own initiative, the court—
(i)may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but
(ii)must not do so unless the prosecutor has had an opportunity to make representations.
What can happen when the prosecutor is absent?
Where the prosecutor is absent, the court may, if it has received evidence, deal with the case as if the prosecutor were present and, in any other case, enquire into the reasons for the prosecutor’s absence and, if satisfied there is no good reason, exercise its power to dismiss the allegation
What should happen where a defendant is not present?
Generally, must proceed in absence unless:
- Defendant is under 18 (at which point, the obligation to proceed transform into a ‘may’ discretion)
- And is subject to the court is satisfied that:
1. Any summons/requisition was served a reasonable time before the hearing
2. In a case which has been adjourned, the defendant had reasonable notice of where and when it would resume
the court:
1. Must exercise its power to issue a warrant if it passes a custodial sentence;’ and
2. May exercise its power to issue a warrant in any other case, if the general rule of proceeding in absence does not apply
In what circumstances and in what terms is a warrant for arrest granted?
Where the offence is punishable with imprisonment or the court, having convicted the accused, proposed to impose a disqualification AND the accused has had sufficient notice.
Where the accused appears to be evading summons or requisition, and the offence is indictable, the prosecution can start proceedings again by seeking an arrest warrant.
Either:
(a) Not backed for bail
(b) Backed for bail under its discretion (this means a person may thereafter be bailed by the police to attend court on a specified date. Could be appropriate where there is some suggestion the accused has a good reason but there is no (or insufficient) evidence to support this, thus making it inappropriate to simply extend bail under MCA 1980 s129.) a warning letter could be used instead
If the accused is already on bail, an arrest warrant may be issued under the bail act.
What can the court do is one or both of the parties are absent/witnesses fail to attend?
The case may be adjourned, setting a date or, unless the accused is on remand, leave the time and place to be determined. Trial can only be resumed once the court is satisfied that the parties have had adequate notice. If the accused was not present, it will therefore be necessary to send an adjournment notice.
Can a trial proceed in the defendant’s absence?
If the general rule applies (i.e. D is not under 18 and had sufficient notice), then yes, as if they had entered a not guilty plea. The court must give full reasons if it does not do so.
Should not proceed where there is an acceptable reason for the failure to appear. Court is not obliged to investigate where no reason is offered. Court should take into account any reasons for the absence that are put forward, the reliability of the information given, the date when the reasons became known, and what the accused did thereafter.
An accused can ask for the conviction to be reopened under s142, for example if the absence was involuntary. Being excluded from the building by security or being arrested are involuntary absences.
If proceeding, the prosecution then should prove the case to the normal criminal standard, either by calling live witnesses or reading their s9 statements (not required to have positive consent from the defence, only an absence of an objection).
If case is proved, then court can proceed to sentence or may adjourn.
Is delay a factor in whether the magistrates’ court can decide not to proceed to try a case?
Yes, even where proceedings are commenced within time, if there has been delay amounting to an abuse of process.
Where delay is deliberate, it is likely to amount to an abuse of process.
Where the delay is not deliberate, the defence may nonetheless apply for the magistrates to exercise their discretion not to proceed if:
(i) There has been inordinate or unconscionable delay due to the prosecution’s inefficiency, and
(j) Prejudice to the defence is either proved or to be inferred.
If the delay is attributable to the accused, it is unlikely to succeed.
What is the trial procedure following a not guilty plea?
- The justice’s legal adviser or the court must ask the defendant to confirm that plea
- The prosecutor may summarise the prosecution case, concisely identifying the relevant law, outlining the facts, and indicating matters in dispute (the opening speech)
- Court may invite defendant to identify what is in issue
- Prosecutor must introduce the evidence on which the prosecution relies
- At the conclusion of the prosecution’s case:
a. The court may acquit at half time, only after the prosecutor has made representations - The JLA must explain to the defendant the right to give evidence and the potential effect of not doing so
- The defendant may introduce evidence
- A party may introduce further evidence if it is then admissible (i.e. if it is in rebuttal)
- The prosecutor may make final representations where the defendant is represented by a legal representative or the defendant has introduced evidence other than his or her own
- The defendant may make final representations in support of the defence case
- Where a party wishes to introduce evidence or make representations after their opportunity to do so, the court may refuse to receive those representations and must not receive any after announcing the verdict
- If the court convicts the defendant or makes a hospital order, it must give sufficient reasons to explain its decision
- If it acquits, it may give an explanation of its decision and exercise any power it has to make either a behaviour order or a costs order
Can the prosecution be forced to call any witnesses?
Yes, if they are in attendance and the defence so requests. Must at least tender them for cross-examination.
If they give a witness statement, then generally they must call them if it forms part of their case (unless they are incapable of belief). Should remind the defence of them though.
Prosecutor otherwise remains having an unfettered discretion until the case starts. If the prosecution choose not to call a particular witness, the court cannot compel unless the court si satisfied the prosecution are conducting a case in a way that the accused cannot obtain a fair trial, at which point it may dismiss the charges.
The justices may call witnesses themselves, though it will rarely be appropriate to do so.
“…the starting point is that the prosecution is only obliged to call those witnesses whose statements have been served as witnesses on whom the prosecution intends to rely.”
“Nor is the prosecution obliged to call a witness where it is anticipated, with good reason, that their evidence will be untruthful. The position is different where the witness’s evidence is capable of belief; in that case, it is the prosecutor’s duty to call the witness even though their evidence may be inconsistent with the case the prosecution seeks to prove…The prosecution has a wide discretion, however, in deciding whether or not a witness is capable of belief.”
May a written statement be tendered as evidence?
Yes, under s9 CJA 1967.
Can formal admissions be introduced into a summary trial?
Yes, under s10. A written record must be made unless the court directs otherwise.
The difference between s9 statements and s10 is… the account of a witness whose statement is adduced under s. 9 is treated no differently than if that account had been given by witnesses from the witness box. In either case, the tribunal of fact is entitled to accept or reject the witness’s account as it sees fit, and then by contrast, where an admission is made pursuant to s. 10, that is conclusive of the matter stated and it is not open to the court to reject that fact.
When should magistrates decide objections to prosecution evidence?
Up to their discretion. However, it may be unfair to wait until after the prosecution case as the accused may have to give evidence about the circumstances, meaning that he becomes exposes to cross-examination. Plus, defence is entitled to know whether crucial evidence is to be party of the case so regard should be had to this.
How should a decision on admissibility under s78 be determined by magistrates?
Has a discretion to hear evidence but not obliged to and so may rule on the matter following submissions. Remains a matter for the mags on when they decide to rule.
How should a decision on admissibility under s76 be determined by magistrates?
Should not admit unless satisfied that it was not obtained by oppression or by words or conduct likely to render a confession unreliable.
It follows that the magistrates are obliged to hear evidence about the obtaining of the confession.
When can the court receive additional evidence or representations after the closing speech?
Only the most exceptional circumstances
How is the justices legal adviser also known?
As the authorised court officer
What are the functions of the justices’ legal adviser?
(a) to give advice to justices of the peace about matters of law (including procedure and practice) on questions arising in connection with the discharge of their functions, including questions arising when the person is not personally attending on them
(b) to bring to the attention of justices of the peace, at any time when the person thinks appropriate, any point of law (including procedure and practice) that is or may be involved in any question so arising.
Give legal advice about questions of law or of mixed law and fact, practice and procedure, relevant judicial decisions, the process, and the range of penalties within the guideline.
Must be done in open court or, if done in private, the parties told what the advice was and given the opportunity to make representations.
Adviser may ask questions of a party or witness to clarify representations and evidence
Should help unrepresented defendants.
Justice must assist the court with the formulation and recording of reasons and may make announcements on the court’s behalf (other than announcement of an allocation or sending decision, indication of likely sentence, or a verdict, or sentence)
Must be impartial.
and assisting the court by making a note of the substance of any oral evidence or representations, marking as inadmissible any parts of written statements introduced in evidence that are ruled inadmissible;
What are submissions of no case to answer?
A submission that the prosecution evidence is insufficient for any reasonable court properly to convict. May do so following an application from the defence or on their own initiative but, in either case, the prosecutor but be given an opportunity to make representations. Happens at close of prosecution evidence.
It is whether any bench might convict, not just whether they would.
No obligation on justices to give reasons for rejecting.
Can the credibility of prosecution witnesses be taken into account when considering whether there is no case to answer?
The test to be applied is set out in Galbraith – whether, taking the evidence at its highest, a jury properly directed could not properly convict on it. Thus, questions of credibility should, except in the clearest of cases, not normally be taken into account.
Some justices may nonetheless take the pragmatic view that it would be inappropriate to hear the defence if the prosecution evidence is so unconvincing they will not be able to convict on it in any event. However, does not change the above general principle.
What should happen when the justices are provisionally minded to uphold the submission of no case to answer?
Should first invite submissions by prosecution so that the prosecutor has an opportunity to address the court to show why the case should not be dismissed. Important right.
Does not apply where they are not minded to uphold this submission.
When must the court (magistrates) give reasons on a verdict?
When convicting or making a hospital order.
Does not need to give reasons when acquitting but can.
In what detail must the reasons the magistrates give be in?
Sufficient reasons. Can be simple sentences. Must take care when doing so.
If a party wishes to obtain more detailed reasons, they can ask the magistrates to state a case.
Can the magistrates find an accused guilty of a lesser offence not charged?
Not like a jury. Generally no.
However, the exceptions are:
1. Certain driving offences, to find them guilty of a lesser driving offence (i.e. convicting on careless drive when charged with dangerous driving, even where dangerous driving is the only count before the court).
- Equally, an accused charged with aggravated vehicle taking may be instead convicted of the lesser offence of vehicle taking
How should the magistrates approach convicting on alternative offences?
To not convict on both of them if the accused pleads not guilty to both.
