Court Procedure and Witnesses Flashcards
Plea of Guilty by Post
The procedure for a defendant to plead guilty by post is provided by the Magistrates’ Courts Act 1980 and applies to proceedings for summary offences started by way of summons (or requisition) in the magistrates’ court (s. 12(1)), or in the youth court for persons aged 16 or 17 (s. 12(2)). The summons (or requisition) is served on the defendant together with a ‘statement of facts’ and a prescribed form of explanation. This allows the defendant an opportunity to plead guilty and put forward any mitigation in his/her absence. The magistrates’ designated officer informs the prosecution of any written guilty plea.
Plea of Guilty by Post - KEYNOTE
This section is most commonly used for driving offences, and provision is made for a printout from the DVLA to be admissible as evidence of previous convictions for traffic offences without the need to give an accused notice of intention to refer to these previous convictions (Road Traffic Offenders Act 1988, s. 13).
Mode of Trial
The classification of the offence determines in which court the trial takes place; generally, summary offences in the magistrates’ court and indictable offences in the Crown Court.
In the case of an either-way offence the magistrates must determine whether a person who has attained the age of 18 should be tried summarily in the magistrates’ court or be sent to the Crown Court to be tried (ss. 17A to 21 of the Magistrates’ Courts Act 1980).
Pre-trial Hearings
In the magistrates’ court there is a system of pre-trial hearings. These are known as an ‘Early First Hearing’ where a guilty plea is anticipated or an ‘Early Administrative Hearing’ where a not guilty plea is expected. Section 8A of the Magistrates’ Courts Act 1980 provides that at a pre-trial hearing, once a not guilty plea has been entered, the court may make rulings on any question as to the admissibility of evidence and any other question of law relating to criminal cases to be tried in the magistrates’ court.
These rulings are binding and will continue to be so until the case is disposed of by the accused being acquitted, the prosecutor deciding not to proceed with the case, or the information is dismissed (s. 8B).
Summary Trial
Summary trials take place in the magistrates’ court before at least two lay justices or a single District or Deputy District Judge (Magistrates’ Courts).
The prosecution and defence may conduct their own case in person or be represented by counsel or solicitor (s. 122(1) of the Magistrates’ Courts Act 1980).
Where there is a ‘guilty’ plea in the magistrates’ court, the hearing starts with the prosecution stating the facts of the case and introducing the offender’s relevant previous convictions. The defence then put any mitigation to the court before sentence is passed.
Where there is a ‘not guilty’ plea the prosecutor may summarise the prosecution case, concisely identifying the relevant law, outlining the facts and indicating the matters likely to be in dispute. To help the members of the court to understand the case and resolve any issue in it, the court may then invite the defence concisely to identify what is in issue (Criminal Procedure Rules 2020, r. 24.3). The prosecution will then present their case to the court. Following this the defence may then call their evidence and finally address the court in a closing speech.
Trial on Indictment
Trials on indictment take place in the Crown Court before a judge of the High Court, circuit judge, a recorder or a qualifying judge advocate.
The prosecution must appear by legal representative, but the accused may still conduct his/her own case and may be allowed a friend to accompany him/her as an adviser, though such an adviser may not question witnesses or address the court (McKenzie v McKenzie [1971] P 33).
Where there is a ‘guilty plea’, which must be entered personally by the accused (R v Ellis (1973) 57 Cr App R 571), the only evidence which the prosecution needs to call is details of the accused’s antecedents and criminal record. Occasionally, where there is disagreement about the precise facts of the offence, the prosecution may be required to call evidence to support their version of the facts; known as Newton hearings (R v Newton (1983) 77 Cr App R 13).
Where there is a ‘not guilty’ plea, the prosecution are required to satisfy the jury beyond reasonable doubt that the accused committed the offence. Where the prosecution fail to provide sufficient evidence as to any element of the offence, the accused is entitled to be acquitted. This acquittal would take place on the direction of the judge, at the end of the prosecution case, following a defence submission of ‘no case to answer’. The prosecutor has the right to make representations if a submission of no case to answer is made (DPP v Berry [2019] EWHC 825 (Admin)).
Where an accused fails to appear in the magistrates’ court in answer to bail the court may:
- issue a warrant for the accused’s arrest under s. 7 of the Bail Act 1976 (see para. 1.10.9);
- appoint a later time when the accused has to appear in accordance with s. 129(3) of the Magistrates’ Courts Act 1980;
proceed in the accused’s absence under s. 11(1) of the Magistrates’ Courts Act 1980.
Defendant’s Non-appearance
Where the accused’s appearance was by way of summons, the court must be satisfied that the summons was served in the prescribed manner before commencing in the accused’s absence (s. 11(2)).
Where an accused is under 18 years of age the court may proceed in his/her absence (s. 11(1)(a)), and if the accused has attained the age of 18 the court shall proceed in his/her absence unless it appears to the court to be contrary to the interests of justice do so p. 45↵(s. 11(1)(b)). The court is not required to inquire into the reasons for the accused’s failure to appear (s. 11(6)). On occasions where a person is deliberately absent, and indifferent to the consequences of their absence, the court may proceed without the accused being present (R v Allad [2014] EWCA Crim 421).
Attendance of Witnesses at Court
The prosecution or defence can apply for a summons, warrant or order requiring a witness to attend a magistrates’ court (s. 97 or 97A of the Magistrates’ Courts Act 1980, or para. 4 of sch. 3 to the Crime and Disorder Act 1998) or the Crown Court (s. 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965). Where appropriate, such an application can be used as a pre-emptive measure to secure the attendance of witnesses.
The procedure for the service of a witness summons is contained in the Magistrates’ Courts (Amendment) Rules 2019 (SI 2019/1367), r. 99(1)(a), (d) or (f) (see para. 1.4.3).
In R v Popat [2008] EWCA Crim 1921 it was held that a witness summons did not have to be served in accordance with the Rules if the date of the court hearing was actually brought to the attention of the witness.
In looking at witnesses, it is crucial to consider two related questions:
- whether there are any restrictions to a witness being called to provide testimony. This question is frequently one of whether a witness is competent;
- whether a witness may be compelled or made to provide testimony. This is a question of whether a witness is compellable.
Competence in its simplest interpretation is whether in law a witness is allowed to be a witness. For a witness to be compellable two aspects must be considered:
- the witness must be competent; and
- the law requires the witness to give evidence even if the witness would rather not do so.
R v McEwan [2011]
It was held that where the accused pleads guilty, they are competent for the prosecution even if they suggest in their evidence that they were not a participant in the offence, unless the plea is set aside.
Evidence on Behalf of the Prosecution
The competence of the accused to give evidence on behalf of the prosecution is dealt with under s. 53 of the Youth Justice and Criminal Evidence Act 1999, which states:
(4) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings). (5) In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).
The 1999 Act provides that should the prosecution wish to use the testimony of an accused against a co-accused, they must first make that person competent to be able to give that evidence.
Evidence on Behalf of the Defence
The Criminal Evidence Act 1898 sets out the position of whether an accused person is competent and compellable for the defence. Section 1 of the 1898 Act states:
(1) A person charged in criminal proceedings shall not be called as a witness in the proceedings except upon his own application.
(4) Every person charged in criminal proceedings who is called as a witness in the proceedings shall, unless otherwise ordered by the court, give his evidence from the witness-box or other place from which the other witnesses give their evidence.
Accused’s Spouse or Civil Partner
A person charged in any proceedings is not compellable by virtue of subs. (2) or (2A) to give evidence (s. 80(4)).
The Marriage (Same Sex Couples) Act 2013 extended marriage to same-sex couples and the Partnership (Opposite-sex Couples) Regulations 2019 extended civil partnership to opposite-sex couples.
There is no requirement to tell a wife that she was not a compellable witness against her husband before interviewing her about a crime of which her husband was suspected. A statement obtained from the wife in such circumstances could be admitted in evidence even though the wife refused to give evidence against her husband, provided it did not lead to an injustice (R v L [2008] EWCA Crim 973). However, the prosecution’s hand is likely to be strengthened if it were shown that she was told that there was no obligation for her to make a statement (R v Horsnell [2012] EWCA Crim 227).
A person who is no longer married or in a civil partnership with the accused is compellable to give evidence as if they had never been married or been in a civil partnership (Police and Criminal Evidence Act 1984, s. 80(5) and (5A)). The person must have been divorced, or where it was a voidable marriage this must have been annulled.
Cohabitees are not afforded the same concessions as a spouse or civil partner and are both competent and compellable to give evidence (see R v Pearce [2001] EWCA Crim 2834 and R v Suski [2016] EWCA Crim 24).
Child Witnesses
Children acting as witnesses in criminal proceedings may be sworn for the purpose of giving evidence on oath if they have attained the age of 14 (s. 55(2) of the Youth Justice and Criminal Evidence Act 1999). This statutory provision requires that no witness under the age of 14 is to be sworn.
Witnesses of 14 or over are only eligible to be sworn if they understand the solemnity of a criminal trial and that by taking the oath they are responsible for telling the truth. The witness shall, if he/she is able to give intelligible testimony, be presumed to have sufficient appreciation of those matters if no evidence tending to show the contrary is adduced (s. 55(3)). Whether a witness is able to give intelligible testimony may be determined by expert evidence (s. 55(6)), or where the court consider the witness is able to understand questions put to him/her and give answers to them which can be understood (s. 55(8)).
The 1999 Act provides that a person of any age who is competent to give evidence, but by virtue of s. 55(2) is not permitted to be sworn, may give unsworn evidence (s. 56(1) and (2)). A child under the age of four years could still be a competent witness as long as he/she displays such competence throughout the whole of his/her evidence (R v P [2006] EWCA Crim 3).
Issues of Age
A birth certificate is usually accepted as evidence of age. A statement from a person present at the birth may be useful in difficult cases. If a certificate of birth is produced to prove age, evidence must also be provided to positively identify the person as the person named in the certificate (R v Rogers (1914) 10 Cr App R 276).
In R v Viazani (1867) 31 JP 260, it was held that where the statement of an accused as to his/her age is in conflict with his/her appearance the statement of the accused may be disregarded.
Witnesses with a Disorder or Disability of the Mind
As with child witnesses, the law in relation to witnesses with a disorder or disability of the mind is contained in s. 55 of the Youth Justice and Criminal Evidence Act 1999.
In determining whether such a witness is competent to give intelligible testimony, expert evidence is allowed, or the court may consider whether the witness is able to understand questions put to him/her and give answers to them which can be understood.
Clearly, there is no inherent reason why a person suffering from a disorder or disability of the mind would not make a reliable witness. In R v Barratt [1996] Crim LR 495, a witness was suffering from a psychiatric condition and the court considered that her evidence was as reliable as that of any other witness save for certain aspects affected by her condition. The videotaped interview of a witness suffering from Alzheimer’s disease was admitted in evidence where she was deemed unfit to attend trial (R v Ali Sed [2004] EWCA Crim 1294).
A ‘witness anonymity order’ may only be granted on the application of the prosecutor or defendant if the following three conditions, contained in s. 88, are satisfied:
- Condition A: the order is necessary to protect the safety of the witness, or another person, or the prevention of serious damage to property or to prevent real harm to the public interest;
- Condition B: having regard to all the circumstances, the taking of these measures would be consistent with the defendant receiving a fair trial; and
- Condition C: it is in the interests of justice that the witness ought to testify and the witness would not testify without the order being made, and there would be real harm to the public interest if the witness were to testify without the proposed order being made.
Criminal Justice Act 1988
Section 32(1) of the Criminal Justice Act 1988 provides that a witness outside the United Kingdom (other than the accused) may give evidence through a live television link. This provision applies to trials on indictment, proceedings in the youth court, appeals from the youth court and Crown Court, and in extradition proceedings.
Requests for assistance to hear witnesses outside their jurisdiction can be made by judicial authorities and designated prosecuting authorities under s. 7 of the Crime (International Co-operation) Act 2003.
There is no presumption in favour of using a television link under any of the legislative provisions, and its use has to be justified for displacing the general rule that a witness should give evidence in the presence of the defendant (R (On the Application of DPP) v Redbridge Youth Court [2001] EWHC 209 (Admin)).
A court has no inherent power to permit evidence to be given by telephone, even with the consent of the parties (R v Hampson [2012] EWCA Crim 1807).
Criminal Justice Act 2003
Section 51 of the Criminal Justice Act 2003 provides that witnesses, other than the accused, may give evidence through a ‘live link’ from another location in the United Kingdom, rather than from just overseas. ‘Live link’ means a closed circuit television link, but could apply to any technology with the same effect such as video conferencing facilities or the internet (s. 56(2)).
A court may only authorise the use of a live link if it is satisfied that it is in the interests of the efficient or effective administration of justice for the person to give his/her evidence in this manner (s. 51(4)).
SECTION 51 CJA
This section requires the court, before authorising the use of a live link, to consider several factors in relation to the witness, including his/her availability, the importance of the evidence, and any impact there might be on the effective testing of the witness’s evidence (s. 51(7)).
The Youth Justice and Criminal Evidence Act 1999 provides that both prosecution and defence witnesses are eligible for special measures, and the categories of eligibility include:
- all witnesses under the age of 18 at the time of the hearing or video recording (s. 16(1)(a));
- vulnerable witnesses who are affected by a mental disorder, impairment of intelligence and social functioning (s. 16(2)(a));
- vulnerable witnesses who are affected by physical disability or disorder (s. 16(2)(b));
- witnesses in fear or distress about testifying (s.17(2));
- any witness to a ‘relevant offence’, currently defined to include homicide offences and other offences involving a firearm or knife (s. 17(5)–(7), sch. 1A);
- adult victims of domestic violence who are vulnerable or intimidated;
- adult complainants of sexual offences (as defined by s. 62 of the 1999 Act), human trafficking offences (s. 59A of the Sexual Offences Act 2003 or s. 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004), indecent photographs of children offences (s. 1 of the Protection of Children Act 1978 (take, permit to be taken or publish etc. such a photograph), s. 160 of the Criminal Justice Act 1988 (possession of such a photograph)), slavery and trafficking offences (ss. 1 and 2 of the Modern Slavery Act 2015), and an offence of domestic abuse under the Domestic Abuse Act 2021.
Eligible Witnesses
While the primary rule is that all witnesses under the age of 18, regardless of the nature of the offence charged, are eligible for their evidence to be given by video interview and the use of live link, this does not prohibit a child witness who wishes to testify in court (ss. 21 and 22).
Regulation 2 of the Special Measures for Child Witnesses (Sexual Offences) Regulations 2013 (SI 2013/2971) amended the 1999 Act so that a complainant of a relevant offence whose age is uncertain will be presumed to be under the age of 18 if there are reasons to believe that person is under the age of 18. The effect is that a complainant to whom the presumption applies will be eligible for ‘special measures’ under s. 16. This provision also applies to a victim of human trafficking who is believed to be under 18 (s. 51 of the Modern Slavery Act 2015).
In relation to the category ‘any witness to a “relevant offence” involving a firearm, offensive weapon or knife’, the ‘relevant offence’ is an offence specified in sch. 1A to the 1999 Act that includes murder, manslaughter, wounding, assault etc. All witnesses involved in such cases, including police officers, are automatically eligible for a special measures direction unless they decline (s. 17(5)).
Generally, special measures directions in the case of vulnerable and intimidated witnesses apply to proceedings in relation to anti-social behaviour injunctions (s. 16 of the Anti-social Behaviour, Crime and Policing Act 2014) and criminal behaviour orders (s. 31 of the 2014 Act).
