8. Summary trial procedure

Question 1

CrimPR rule 24.12

Answer 1

Procedure where a party is absent
24.12.—(1) This rule— (a) applies where a party is absent; but (b) does not apply where— (i) the defendant has served a notice of guilty plea under rule 24.8 (Written guilty plea: special rules), or (ii) the court tries a case under rule 24.9 (Single justice procedure: special rules). (2) Where the prosecutor is absent, the court may— (a) if it has received evidence, deal with the case as if the prosecutor were present; and (b) in any other case— (i) enquire into the reasons for the prosecutor’s absence, and (ii) if satisfied there is no good reason, exercise its power to dismiss the allegation. (3) Where the defendant is absent— (a) the general rule is that the court must proceed as if the defendant— (i) were present, and (ii) had pleaded not guilty (unless a plea already has been taken) and the court must give reasons if it does not do so; but (b) the general rule does not apply if the defendant is under 18; (c) the general rule is subject to the court being satisfied that— (i) any summons or requisition was served on the defendant a reasonable time before the hearing, or (ii) in a case in which the hearing has been adjourned, the defendant had reasonable notice of where and when it would resume; (d) the general rule is subject also to rule 24.11(10)(a) (restrictions on passing sentence in the defendant’s absence). (4) Where the defendant is absent, the court— (a) must exercise its power to issue a warrant for the defendant’s arrest and detention in the terms required by rule 13.3(3) (Terms of a warrant for detention or imprisonment), if it passes a custodial sentence; and (b) may exercise its power to issue a warrant for the defendant’s arrest in any other case, if it does not apply the general rule in paragraph (3)(a) of this rule about proceeding in the defendant’s absence.

Question 2

and in paragraphs D5.43

Answer 2

Trial in Absence of the Accused

D5.43

If the accused fails to appear for the trial in the magistrates’ court, the case may (if the accused is under 18) or must (if the accused has attained the age of 18 and it does not appear to the court to be contrary to the interests of justice to do so) proceed in the accused’s absence (MCA 1980, s. 11(1); see also CrimPR 24.12(3)). However, where the prosecution commenced by issue of a summons or requisition, it must be proved to the satisfaction of the court that either the summons (or requisition, as the case may be) was served a reasonable time before the hearing or the accused appeared on a previous occasion to answer the charge (MCA 1980, s. 11 (2)). Summary trial in the absence of the accused is considered in more detail at D22.14.

Question 3

, D22.12

Answer 3

Power to Adjourn

D22.12

If the one or both of the parties is absent, or witnesses fail to attend, the court must consider what action to take. If the trial does not proceed on the appointed day, the court may adjourn the case (under the MCA 1980, s. 10(1)). Under s. 10(2), the court may either set the date for the hearing to resume when it adjourns the case or, unless it also remands the accused (in which case a date must be fixed), leave the time and place to be determined. The trial can resume only where the court is satisfied that the parties have had adequate notice; if the accused was not present when the case was adjourned, it will therefore be necessary to send the accused an adjournment notice. For detailed discussion of adjournments, see D5.22 et seq.).

Question 4

, D22.14

Answer 4

D22.14

Trial in the Absence of the Accused: Powers and Procedure Under the MCA 1980, s. 11(1)(b), if, at the time and place appointed for the trial, the prosecutor appears but the accused does not, and the accused has attained the age of 18, the court must proceed in the absence of the accused ‘unless it appears to the court to be contrary to the interests of justice to do so’. Thus, where an adult accused is absent, the general rule is that the court will proceed as if he or she were present and, unless a plea was entered on an earlier occasion, had pleaded not guilty; the court must give reasons if it does not do so (CrimPR 24.12(3)(a)). Thus, where an adult accused is absent, assuming he is aged 18 or over, the general rule is that the court will proceed as if he or she were present and, unless a plea was entered on an earlier occasion, had pleaded not guilty; the court must give reasons if it does not do so (CrimPR 24.12(3)(a)). However, where proceedings were commenced by summons or by written charge and requisition then (unless the accused has appeared on a previous occasion in answer to the summons or requisition) it must be proved to the satisfaction of the court that the summons (or requisition) was served on the accused a reasonable time before the hearing (MCA 1980, s. 11(2); CrimPR 24.12(3)(c)(i)). Proof of service of a summons or requisition is governed by CrimPR part 4 (see D5.16).

Where the case has previously been adjourned (under the MCA 1980, s. 10(1)), it is necessary to satisfy the court that the accused has had ‘adequate notice’ of the adjournment date (MCA 1980, s. 10(2)) or, as it is expressed in CrimPR 24.12(3)(c)(ii), ‘reasonable notice’ of when and where the hearing would resume. If the accused does not appear and the conditions for proceeding in his or her absence are satisfied, a not guilty plea is entered on behalf of the accused (CrimPR 24.12(3)(a)(ii)). The burden is then on the prosecution to prove the case to the normal criminal standard, whether by calling oral evidence or by reading statements served on the accused under the CJA 1967, s. 9 (such statements are admissible in the absence of objection from the defence — positive consent is not required: see s. 9(2)(d)). Should the prosecution evidence turn out to be insufficient, the court is of course obliged to acquit the accused. Assuming, however, that the case is proved, the court may either proceed immediately to sentence or, in certain circumstances, it may adjourn to give the accused notice to attend for sentencing (MCA 1980, s. 10(3)).

Where a written charge is to be tried using the single justice procedure (see D22.33), s. 11 does not apply (s. 11(8)).

Question 5

,
D22.17

Answer 5

D22.17

Determining Whether to Proceed to Trial in Accused’s Absence Section 11(2A) makes it clear that ‘the court shall not proceed in the absence of the accused if it considers that there is an acceptable reason for his failure to appear’; however, s. 11(6) provides that the court is not required to inquire into the reasons for the accused’s failure to appear before deciding whether to proceed in his or her absence. Section 11(7) requires the court to state in open court its reasons for not proceeding in the absence of an accused who has attained the age of 18 and who fails to attend (see also CrimPR 24.12(3)(a)).

CrimPD VI, para. 24C.17 (see Supplement, PD-55), makes the point that, in ‘marked contrast to the position in the Crown Court’ (as to which, see D15.87 et seq.), in magistrates’ courts proceeding in the absence of an accused who fails to attend is the ‘default position’ where the accused is aware of the date of trial and no acceptable reason is offered for absence.

The court is ‘not obliged to investigate if no reason is offered’. In assessing where the interests of justice lie, the court will take into account all factors, including: (i) ‘such reasons for absence as may be offered’; (ii) the ‘reliability of the information supplied in support of those reasons’; (iii) the date on which the reasons for absence became known to the accused, and what action the accused took in response to those reasons. Paragraph 24C.17 adds that, where the accused provides a medical note to excuse non-attendance, the court must consider CrimPD I, paras. 5C.1 to 5C.6 (see D22.18), and ‘give reasons if deciding to proceed notwithstanding’.

An example of involuntary absence may be found in R (Davies) v Solihull Justices [2008] EWHC 1157 (Admin). After his case had been called on, it was discovered that the accused had been excluded from the court building by the security staff because of disorderly behaviour. The justices ruled that the accused had, by virtue of his conduct, voluntarily absented himself from the hearing of his case, and that he should be tried in his absence. Underhill J ruled that the accused’s misbehaviour did not justify excluding him from his own trial. Moreover, the justices erred in treating him as being voluntarily absent, since he had wanted to be in court but was prevented by the exclusion. While it could be said that the exclusion was his own fault, that was not the same as it being his own choice; the position was no different than if he had committed an offence on the way to court and then been arrested (and so unable to attend court), as had happened in R (R) v Thames Youth Court [2002] EWHC 1670 (Admin). In that case, the district judge had formed the view that the accused had brought his arrest on himself and should therefore be regarded as having excluded himself deliberately from court. Pitchford J said (at [27]) that the district judge was wrong to take that approach.

Question 6

and D22.19

Answer 6

D22.19

Warrant for Arrest Under the MCA 1980, s. 13(1), where the court, instead of proceeding in the absence of the accused, adjourns or further adjourns the trial, it has the option of issuing an arrest warrant, provided that the offence in question is punishable with imprisonment, or the court, having convicted the accused, proposes to impose a disqualification (s. 13(3) (adults) and s. 13(3A) (children and young people)). For this provision to apply, it must be proved to the satisfaction of the court that the summons or requisition was served on the accused within a reasonable time before the trial (s. 13(2A)), unless the current adjournment is a second or subsequent adjournment of the trial, the accused was present on the last occasion when the trial was adjourned and the date for the present hearing was fixed then (s. 13(2B)).

If the accused appears to be evading service of the summons or requisition, and the offence is an indictable one, it is open to the prosecution to start proceedings again by seeking an arrest warrant. The MCA 1980, s. 1(6), provides that: ‘Where the offence charged is an indictable offence, a warrant under this section may be issued at any time notwithstanding that a summons has, or a written charge and requisition have, previously been issued.’

If the accused is currently on bail and fails to attend court, an arrest warrant may, in any event, be issued under the BA 1976, s. 7(1).

Question 7

D21.21

Answer 7

Effect of Delay

D21.21

Even where proceedings were commenced within time, a magistrates’ court has a discretion to refuse to try a case, and so to acquit the accused without trial, if there has been delay amounting to an abuse of the process of the court (Brentford Justices, ex parte Wong [1981] QB 445). Delay as a possible abuse of process is dealt with fully at D3.66 et seq.

Where the delay is deliberate, it is likely to amount to an abuse of process, as in Brentford Justices, ex parte Wong, where the prosecutor deliberately delayed in effecting service of the summons in order to gain more time in which to decide whether or not to continue the case against the accused.

Where deliberate delay in bringing the case to court cannot be shown, 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 (ii) prejudice to the defence from the delay is either proved or to be inferred (per Lloyd LJ in Gateshead Justices, ex parte Smith (1985) 149 JP 681). If, however, the delay was in part attributable to the accused’s own conduct, an application to stay is unlikely to succeed.

Question 8

first sub-paragraph of
D22.36

Answer 8

Start of the Trial

D22.36

If a plea was not entered on an earlier occasion, the accused is asked to enter a plea. If the accused entered a not guilty plea on an earlier occasion, he or she will be asked to confirm that plea (CrimPR 24.3(1)).

CrimPD VI, para. 24A.11 (see Supplement, PD-53), states that, immediately prior to the commencement of the trial, the justices’ legal adviser must summarise for the court the agreed and disputed issues, together with the way in which the parties propose to present their cases. This will usually be based on the contents of the PET form that the parties are required to complete. If it is done by way of a ‘pre-court briefing’, it should be confirmed in court or agreed with the parties.

Question 9

, D22.37

Answer 9

Opening Speech

D22.37

Assuming the accused pleads not guilty, the prosecution representative has the right to make an opening speech (CrimPR 24.3(3)(a)). CrimPD VI, para. 24B.1 (see Supplement, PD-54), notes that the purpose of the prosecutor’s summary of the prosecution case is to explain briefly what the case is about (including any relevant legislation or case law relevant to the particular case) and that it will not usually be necessary, or helpful, to present a detailed account of all the prosecution evidence that will be adduced. In L and B v DPP [1998] 2 Cr App R 69, the case had been adjourned for a month after the main prosecution witnesses had given evidence. At the resumed hearing, the justices invited the prosecutor to deliver a second speech in order to remind them of evidence which they were having difficulty remembering. On appeal to the Divisional Court, the appellants contended that the prosecution should not have been allowed to address the justices again. The Divisional Court dismissed the appeal. There was nothing unfair in the prosecutor being asked to remind the court of evidence which had been given, subject to the safeguard that the defence should invariably be asked to address the court in reply, to correct any errors or draw attention to any differences of recollection.

Question 10

, D22.38,

Answer 10

D22.38

CrimPR 24.3(3)(b) states that, in order to help the members of the court to understand the case and resolve any issue in it, the court (immediately after the prosecution opening) may invite the accused ‘concisely to identify what is in issue’. CrimPD VI, para. 24B.2, notes that the purpose of this is to provide the court with ‘focus as to what it is likely to be called upon to decide’, so that the justices will be ‘alert to those issues from the outset and can evaluate the prosecution evidence that they hear accordingly’.

Question 11

D22.39

Answer 11

D22.39

CrimPD VI, para. 24B.3, makes the point that the justices will, in most cases, already be aware of what has been declared to be in issue (from the PET form and any summary of issues provided at the start of the trial; see D22.36). It follows that a party who has nothing of substance to add should say so. Paragraph 24B.4 contains an important warning that, if the accused refuses to identify the issues at the case management stage, ‘the court may limit the proceedings on the day of trial’ in accordance with CrimPR 3.11(d), which empowers the court to limit the questioning of witnesses and the duration of any stage of the hearing. Moreover, ‘any significant divergence from the issues identified at case management at this late stage may well result in the exercise of the court’s powers under CrimPR 3.5(6), the powers to impose sanctions’.

Question 12

, D22.40,

Answer 12

Witnesses whom the Prosecution Must Call

D22.40

After the opening speech (if any), the prosecutor must call evidence (CrimPR 24.3(3)(c)). Where a prosecution witness attends court to give evidence in a summary trial, the prosecutor is obliged to call that witness to give evidence if the defence so requests, or at least tender the witness for cross-examination (Wellingborough Magistrates’ Court, ex parte Francois (1994) 158 JP 813). If, as should happen, the prosecutor serves a bundle of witness statements on the defence prior to summary trial, the prosecution must call as witnesses all the people whose statements have been served, unless any of the exceptions which relate to Crown Court trials are applicable (see D16.20). Otherwise, the prosecutor retains an unfettered discretion until the case starts, and the outline of the evidence is given to the court in the opening speech. If the prosecution choose not to call a particular witness, the court cannot compel the prosecutor to call that witness. However, if the court is satisfied that the prosecution are so conducting the case that the accused cannot obtain a fair trial, the court has the power to dismiss the case as an abuse of process. Moreover, in an appropriate case, the justices may call the witness themselves (Haringey Justices, ex parte DPP [1996] QB 351, per Stuart-Smith LJ at pp. 359– 60); however, it is submitted that it will rarely be appropriate to do so, given the need for the justices to show impartiality in the proceedings.

Question 13

the first sub-paragraph of D22.41

Answer 13

Written Evidence at Summary Trial: Criminal Justice Act 1967, s. 9

D22.41

A party wishing to tender a written statement as evidence at a summary trial rather than calling the maker of the statement may make use of the provisions of the CJA 1967, s. 9 (see D22.42). CrimPR part 16 (see Supplement, R-152 et seq.) governs the use of witness statements under the CJA 1967, s. 9. The main points about s. 9 are that:

(a) The statement must (at the beginning) contain the name and (if under 18) the age of the maker (r. 16.2(a)). It must be signed by the maker, and must contain a declaration that it is true to the best of his or her knowledge and belief, and that it is made knowing that, if it is tendered in evidence, the maker might be prosecuted for wilfully stating in it anything he or she knew to be false or did not believe to be true (s. 9(2)(a) and (b); r. 16.2(b) and (d)). In Wood v DPP [2010] EWHC 1769 (Admin), Mitting J ruled that the fact that the declaration on the statement referred to two pages, when there were in fact three, did not render the statement inadmissible.
(b) A copy of the statement (together with a copy of any documentary exhibit it refers to) must be served on each of the other parties (s. 9(2)(c); r. 16.4(1)). If, within seven days of service, any of them serves a counter-notice objecting to the statement being put in evidence, it may not be used (s. 9(2)(d) and (2A); r. 16.4(4)). Even where the copy statement was served more than a week before the hearing and no objection to its being read was indicated, the court may, of its own volition or on the application of a party, require the maker of the statement to attend and give oral evidence (s. 9(4)(b)).
(c) Where a statement is admitted in evidence under s. 9, it is either read in full to the court or, at the court’s discretion, parts of it may be summarised (s. 9(6); CrimPR 24.5). Rule 24.5(2) requires that, where a written statement is tendered in accordance with s. 9, the court must read the statement, and (unless the court directs otherwise), if any members of the public, or reporters, are present, each relevant part of the statement must be read or summarised aloud.

As. 9 statement is not to be taken conclusively to be true, but is merely ‘admissible as evidence to the like extent as oral evidence to the like effect’ by the maker would be admissible (s. 9(1)). It follows that if the defence fail to serve a notice objecting to the admissibility of the statement, they are not precluded at trial from adducing evidence inconsistent with it (Lister v Quaife [1983] 2 All ER 29). However, if there are differences between the defence case and the contents of a proposed s. 9 statement, then a notice should be served objecting to the statement. In the event of failure to give such notice and defence witnesses then contradicting the statement, the prosecution should ask for an adjournment so that the maker of the statement can be called. The court ought not only to agree to the adjournment but should also consider ordering that the costs thrown away be paid by the defence whatever the eventual outcome of the case (Lister v Quaife at pp. 54H–55A). In any event, the prosecution should hesitate before making use of the s. 9 procedure in respect of evidence that is central to their case (per Stephen Brown J, at p. 55E).

(d) CrimPD V, para. 16A.5 (see Supplement, PD-37), notes that, where statements are to be tendered under s. 9 in the course of summary proceedings and the statement contains evidence which is inadmissible or prejudicial, that evidence should not be excised by means of striking out or bracketing (a method that would otherwise be permissible) and so there will be a need to prepare fresh statements excluding any inadmissible or prejudicial material.

Question 14

, D22.43-

Answer 14

Formal Admissions

D22.43

Where a party introduces into evidence a fact admitted by another party or the parties jointly admit a fact (e.g., where a formal admission is made — usually by the accused — under the CJA 1967, s. 10 (see F1.2)), a written record must, unless the court otherwise directs, be made of the admission (CrimPR 24.6).

Question 15

22.44,

Answer 15

Objections to Prosecution Evidence

D22.44

The procedure to be followed where the defence object, during the course of a summary trial, to proposed prosecution evidence (or have some other preliminary point of law to argue before the magistrates) raises the difficulty that the magistrates are the judges of both fact and law. Especially if the issue is one of admissibility of evidence, there is a danger that the magistrates will learn the nature of the evidence in the course of hearing arguments about its admissibility. Should they then rule it inadmissible, they may have difficulty in ignoring it when reaching a verdict. This problem is mitigated to some extent by the availability of pre-trial rulings (see D21.35) but these will not avail where issues of admissibility are raised for the first time during the course of trial itself.

The stage of the trial at which the magistrates rule upon a question of admissibility of evidence (or other incidental issue) is a matter for their discretion (per Lord Lane CJ’s judgment in F v Chief Constable of Kent [1982] Crim LR 682). However, delaying the determination of a question of admissibility of a confession until after the conclusion of the prosecution evidence may be unfair to the defence, in that the accused will not be able to give evidence about alleged irregularities in the obtaining of the confession unless he or she testifies (thus becoming exposed to cross-examination about the general issues). Moreover, in taking the decision what evidence to call, the defence advocate ought to know whether crucial evidence, such as a confession, is to be part of the case against the accused. These special considerations were recognised by Lord Lane in the following passage from his judgment in F v Chief Constable of Kent (quoted in Epping and Ongar Justices, ex parte Manby [1986] Crim LR 555 and A v DPP (2000) 164 JP 317, at [4]), where the admissibility of a confession was at issue:

It is impossible to lay down any general rule as to when magistrates should announce their decision on this type of point, and indeed when the point itself should be taken. Every case will be different. Some sort of preliminary point, for instance with regard to the admissibility of a document or something like that, can plainly, with the assistance of the clerk, be decided straight away. Other points … may require a decision at a later stage of the case, possibly after further argument. It may be that in some cases the defendant will be entitled to know what the decision of the justices with regard to the admissibility of a confession is at the close of the prosecution case in order to enable him to know what proper course he should take with regard to giving evidence and calling evidence and so on.

Question 16

D22.46,

Answer 16

Police and Criminal Evidence Act 1984, s. 78

D22.46

Whereas under the PACE 1984, s. 76 (see D22.47), the court is obliged to hear evidence about the obtaining of the confession (as the prosecution have to prove that the confession was not obtained in the manner forbidden by s. 76), where the admissibility of prosecution evidence falls to be considered under the general exclusionary power in s. 78, the court has a discretion to hear evidence on the issue of admissibility but is not obliged to do so (and so may rule on the matter following submissions on behalf of the parties). It remains a matter for the justices’ discretion when they determine admissibility. In Vel v Chief Constable of North Wales (1987) 151 JP 510, Lloyd LJ said that, in some cases, the justices should deal with an application to exclude evidence when it arises, but in other cases they may leave the decision until the end of the hearing. Nonetheless, his lordship said that it was impossible to lay down any general rule, other than that ‘the object should always be to secure a trial which is fair and just to both sides’. In Halawa v Federation Against Copyright Theft [1995] 1 Cr App R 21, the Divisional Court said that, in most cases, it is generally better for the magistrates to hear all the prosecution evidence (including the disputed evidence) before considering an application to exclude evidence under s. 78 (per Gibson LJ at p. 34). This does of course leave the justices with the very difficult (some might say impossible) task of putting from their minds prejudicial evidence that they have heard but then decide is inadmissible.

Question 17

the first sub-paragraph of D22.47 up to “…obtaining of the confession”;

Answer 17

Police and Criminal Evidence Act 1984, s. 76

D22.47

Where the defence object to the admissibility of a confession on the basis of the PACE 1984, s. 76, the terms of s. 76 require that the 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. It follows that magistrates (just like the Crown Court) are obliged to determine such an issue as soon as it is raised and, if necessary, hear evidence on the obtaining of the confession.

Question 18

D22.63,

Answer 18

Closing Speeches

D22.63

CrimPR 24.3(h) provides that (after the defence have adduced any evidence they wish and after any rebuttal evidence), the prosecutor ‘may make final representations in support of the prosecution case’ (i.e. a closing speech) if the accused is represented or (whether represented or not) the accused has called evidence other than his or her own testimony. Under r. 24.3(i), the accused may then ‘make final representations in support of the defence case’ (in other words, make a closing speech). Thus, if any prosecution representations are made, the accused is given the chance to reply, and so will always have the last word before the magistrates consider their verdict.

Rule 24.3(4), makes it clear that, if a party wishes to introduce evidence or make representations after the specified opportunity to do so under r. 24.3(3), the court is entitled to refuse to receive any such evidence or representations. It is submitted that the court should refuse to receive additional evidence or representations save in the most exceptional circumstances.

Question 19

D22.80-

Answer 19

Introduction

D22.80

The qualifications and appointment of justices’ clerks are described at D3.28. There is a distinction between ‘clerks’ in the strict sense of the word and the ‘legal advisers’ who form part of the court staff. The function of a clerk in court is the same whether he or she is a court legal adviser or the actual clerk to the justices, although a legal adviser may (and ought) to seek assistance from the clerk if a point of difficulty arises on which the adviser does not feel qualified to advise the magistrates.

Question 20

81

Answer 20

D22.81

The statutory functions of the clerk are set out in the Courts Act 2003, s. 28, which provides:

(4) The functions of a justices’ clerk include giving advice to any or all of the justices of the peace to whom he is clerk about matters of law (including procedure and practice) on questions arising in connection with the discharge of their functions, including questions arising when the clerk is not personally attending on them.
(5) The powers of a justices’ clerk include, at any time when he thinks he should do so, bringing to the attention of any or all of the justices of the peace to whom he is clerk any point of law (including procedure and practice) that is or may be involved in any question so arising.

CrimPR 24.15 (see Supplement, R-241) provides a further summary of the duties of the justices’ legal adviser. These include: drawing the court’s attention, before the hearing begins, to the prosecution allegations, what is agreed and what is in dispute, and what the parties have said about how they expect to present their cases; whenever necessary, giving the court legal advice (and, if necessary, attending the members of the court outside the courtroom to give such advice, so long as the parties are informed of any advice given outside the courtroom); assisting the court in the formulation of its reasons and the recording of those reasons; assisting the accused if unrepresented; 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; ensuring that a record is kept of the court’s decisions and the reasons for them, and making any announcement (other than of the verdict or sentence).

CrimPD VI, para. 24A.5 (see Supplement, PD-53), provides a list of matters on which the clerk or legal adviser may legitimately advise the magistrates:

(a) questions of law;
(b) questions of mixed law and fact;
(c) matters of practice and procedure;
(d) the process to be followed at sentence and the matters to be taken into account, together with the range of penalties and ancillary orders available, in accordance with the relevant sentencing guidelines;
(e) any relevant decisions of the superior courts or other guidelines;
(f) the appropriate decision-making structure to be applied in any given case; and
(g) other issues relevant to the matter before the court.

The justices’ legal adviser is also required to assist the court, where appropriate, as to the formulation of reasons and the recording of those reasons (para. 24A.6). The clerk may also ask questions of witnesses and the parties in order to clarify the evidence and any issues in the case, and must ensure that every case is conducted justly (para. 24A.13).

Question 21

D22.52-22.54

Answer 21

Submission of No Case to Answer

D22.52

Under CrimPR 24.3(d) the magistrates may acquit the accused on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict. They may do so following an application by the defence or on their own initiative but, in either case, the prosecutor must be given an opportunity to make representations. Thus, at the close of the prosecution evidence, the defence may submit that there is no case to answer (see D16.53 for the position in trial on indictment).

Rule 24.3(d) sets out the basis for the decision, namely that no reasonable court could properly convict. Thus, the decision depends not on whether the justices would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer. The submission should therefore succeed if a conviction would be perverse, in the sense that no reasonable bench could convict.

There is no obligation on justices to give reasons for rejecting a submission of no case to answer (Moran v DPP [2002] EWHC 89 (Admin), per Maurice Kay LJ at [16]).

Answer 22

Credibility of Prosecution Witnesses

D22.53

An important issue is the extent to which justices may have regard to the credibility of prosecution witnesses when considering a submission of no case to answer. In the Crown Court, the test to be applied by the judge when ruling on a submission of no case (set out in Galbraith [1981] 2 All ER 1060) is whether the prosecution evidence is so tenuous that, even taken at its highest, a jury properly directed could not properly convict on it. The requirement that the Crown Court judge should ‘take the prosecution evidence at its highest’ is intended to leave questions of credibility to the jury. In Barking and Dagenham Justices, ex parte DPP (1995) 159 JP 373, the Divisional Court said that questions of credibility should, except in the clearest of cases, not normally be taken into account by justices considering a submission of no case. Nonetheless, it is submitted that some justices may well take the pragmatic view that it would be inappropriate for them to go through the motions of hearing defence evidence if they have already formed the view that the prosecution evidence is so unconvincing that they will not be able to convict on it in any event. However, the general principle remains that, so long as the necessary minimum amount of prosecution evidence has been adduced so as to raise a case on which a reasonable tribunal could convict, the justices should allow the trial to run its course rather than acquitting on a submission.

Answer 23

Prosecution Right of Reply

D22.54

When the justices are provisionally minded to uphold the submission of no case to answer, they should first call on the prosecution to address them (Barking and Dagenham Justices, ex parte DPP (1995) 159 JP 373), so that the prosecutor has an opportunity to address the court to show why the case should not be dismissed. This means that the prosecution have the right to reply to the defence submission that there is no case to answer unless, having heard the defence submission, the magistrates decide to rule that there is a case to answer and indicate this fact to the prosecutor. The importance of the prosecutor’s right of reply was emphasised in DPP v LB [2019] EWHC 825 (Admin).

Question 24

D22.70-

Answer 24

D22.70

Duty to Give Reasons CrimPR 24.3(5) provides that the court, if it convicts the accused (or makes a hospital order instead of doing so), must give ‘sufficient reasons to explain its decision’. However, the justices are not required to state their reasons in the form of a judgment or to give reasons in any elaborate form (McKerry v Teesdale and Wear Valley Justices (2000) 164 JP 355, per Lord Bingham, at [23]). If a party wishes to obtain more detailed reasons, a request can be made to the magistrates to state a case. In R (McGowan) v Brent Justices [2001] EWHC Admin 814, the Divisional Court confirmed that McKerry v Teesdale and Wear Valley Justices is still good law following the coming into force of the HRA 1998. Tuckey LJ (at [18]), said that ‘the essence of the exercise in a criminal case such as this is to inform the defendant why he has been found guilty. That can usually be done in a few simple sentences.’ However, great care must be taken when formulating those reasons. For example, in JS (A Child) v DPP [2017] EWHC 1162 (Admin), [2017] 2 Cr App R 17 (214), the accused was charged with the offence of tampering with a motor vehicle. The magistrates convicted him, saying that the accused ‘did not say anything to persuade us that he did not tamper with the moped’ and they were therefore ‘sure’ that he was guilty. The conviction was quashed. The words used by the magistrates created the impression that they had convicted the accused because he had not proved his innocence (thus reversing the burden of proof).

If the court acquits the accused, it may (but is not required to) give an explanation of its decision (CrimPR 24.3(6)(a)).

Question 25

22.72 (first sentence only)

Answer 25

General

D22.73

The MCA 1980, s. 142(2) (see D22.79), enables an accused who was convicted in a magistrates’ court (whether as a result of a guilty plea or of a finding of guilty after a trial) to ask the magistrates to set the conviction aside. This application can be considered by the same magistrates who convicted the accused or by a different bench. If the conviction is set aside, the case is reheard by different magistrates from those who convicted.

Question 26

sections 9 and 10 Criminal Justice Act 1967.

Answer 26

9 Proof by written statement.

(1) In any criminal proceedings[F1, other than committal proceedings under sections 4 to 6 of the Magistrates’ Courts Act 1980,] a written statement by any person shall, if such of the conditions mentioned in the next following subsection as are applicable are satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by that person.
(2) The said conditions are—
(a) the statement purports to be signed by the person who made it;
(b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true;
(c) before the hearing at which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; and
(d) none of the other parties or their solicitors, [F2within the relevant period], serves a notice on the party so proposing objecting to the statement being tendered in evidence under this section:

Provided that the conditions mentioned in paragraphs (c) and (d) of this subsection shall not apply if the parties agree before or during the hearing that the statement shall be so tendered.

[F3(2A)For the purposes of subsection (2)(d), “the relevant period” is—

(a) such number of days, which may not be less than seven, from the service of the copy of the statement as may be prescribed by Criminal Procedure Rules, or
(b) if no such number is prescribed, seven days from the service of the copy of the statement.]

F4(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Notwithstanding that a written statement made by any person may be admissible as evidence by virtue of this section—
(a) the party by whom or on whose behalf a copy of the statement was served may call that person to give evidence; and
(b) the court may, of its own motion or on the application of any party to the proceedings, require that person to attend before the court and give evidence.
(5) An application under paragraph (b) of the last foregoing subsection to a court other than a magistrates’ court may be made before the hearing and on any such application the powers of the court shall be exercisable [F5by any of the following sitting alone—
(a) a puisne judge of the High Court;
(b) a Circuit judge;
(c) a District Judge (Magistrates’ Courts);
(d) a Recorder];

[F6(e)subject to subsection (5A), a qualifying judge advocate (within the meaning of the Senior Courts Act 1981).]

[F6(5A)Subsection (5)(e) applies only where the application in question is to the Crown Court.]

F7(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement.

F8(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Question 27

Galbraith.

Answer 27

10 Proof by formal admission.

(1) Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant, and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted.
(2) An admission under this section—
(a) may be made before or at the proceedings;
(b) if made otherwise than in court, shall be in writing;
(c) if made in writing by an individual, shall purport to be signed by the person making it and, if so made by a body corporate, shall purport to be signed by a director or manager, or the secretary or clerk, or some other similar officer of the body corporate;
(d) if made on behalf of a defendant who is an individual, shall be made by his counsel or solicitor;
(3) An admission under this section for the purpose of proceedings relating to any matter shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter (including any appeal or retrial).
(4) An admission under this section may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same matter.

Answer 28

General test[edit]

The general approach to be followed was described by Lord Lane CJ:

(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.
(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.
(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. …

There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.

— R v Galbraith (1981)[2]