Criminal part 2 Flashcards
D5.22
At any stage before the case is sent to the Crown Court for trial or before (or during) a summary trial, a magistrates’ court may adjourn the proceedings (see the MCA 1980, ss. 10 and 18, and D5.29).
D5.27
It is possible to challenge the grant or refusal of an adjournment by way of judicial review (see D29.25 et seq.). However, the Divisional Court will be ‘particularly slow’ to interfere with a decision to refuse an adjournment, given the discretionary nature of that decision (per Clarke J in R (CPS) v Uxbridge Magistrates [2007] EWHC 205 (Admin), at [5]).
In DPP v Petrie [2015] EWHC 48 (Admin), Gross LJ said (at [21]) that the grant or refusal of an adjournment ‘is a paradigm example of a discretionary case management decision where an appeal ought only to succeed on well-recognised but limited grounds (for example, error of principle, error of law or where the decision can properly be characterised as plainly wrong)’. An example of such a case is Pari-Jones v CPS [2018] EWHC 3482 (Admin), where the magistrates’ court had refused an adjournment despite the fact that neither D nor her solicitor could attend court because of bad weather. Andrews J, remitting the case for retrial, said (at [12]) that it was ‘self-evident that if the magistrates had taken into account all the relevant considerations and if they had balanced [D’s] right to a fair trial with the lack of fault caused by the weather conditions, the fact that she had already attended court previously, and all the other relevant considerations, they could not have refused this adjournment’. A similar approach was taken in R (Parashar) v Sunderland Magistrates’ Court [2019] EWHC 514 (Admin), where it was held that ‘the decision to fix a date for a trial at which the prosecution expert could attend and the defence expert (whose report had been served in good time) could not was clearly wrong’ (per Bean LJ, at [46]). His lordship noted that if the trial had proceeded on that basis, D’s ability to present his defence ‘would have been seriously compromised and the trial would inevitably have been unfair’. Simler J concurred, saying (at [49]):
To insist on a trial date on which the prosecution expert was available but the defence expert was not was wrong and would have led to an unfair trial. There is a high public interest in summary trials taking place quickly and on the day set for trial, and in adjournments not being granted absent compelling reasons. But it is also necessary as a matter of fairness and in the interests of justice, where a defence request to vacate a trial date is made, to consider whether, if it is not granted, the defendant will be able fully to present his defence, and if he will not be able to do so, the degree to which the defence will be compromised.
D5.29 and 5.30
Statutory Provisions on Power to Adjourn The power to adjourn is contained in the MCA 1980, ss. 10(1) and 18(4).
Magistrates’ Courts Act 1980, ss. 10 and 18
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(1) A magistrates’ court may at any time, whether before or after beginning to try an information, adjourn the trial, and may do so, notwithstanding anything in this Act, when composed of a single justice.
(2) The court may when adjourning either fix the time and place at which the trial is to be resumed, or, unless it remands the accused, leave the time and place to be determined later by the court.
…
(4) On adjourning the trial of an information the court may remand the accused and, where the accused has attained the age of 18 years, shall do so if the offence is triable either way and—
(a) on the occasion on which the accused first appeared, or was brought, before the court to answer to the information he was in custody or, having been released on bail, surrendered to the custody of the court; or
(b) the accused has been remanded at any time in the course of proceedings on the information; and, where the court remands the accused, the time fixed for the resumption of the trial shall be that at which he is required to appear or be brought before the court in pursuance of the remand or would be required to be brought before the court but for section 128(3A) below.
18. —
(1) Sections 19 to 23 below shall have effect where a person who has attained the age of 18 years appears or is brought before a magistrates’ court on an information charging him with an offence triable either way and—
(a) he indicates under section 17A above that (if the offence were to proceed to trial) he would plead not guilty, or
(b) his representative indicates under section 17B above that (if the offence were to proceed to trial) he would plead not guilty.
…
(4) A magistrates’ court proceeding under sections 19 to 23 below may adjourn the proceedings at any time, and on doing so on any occasion when the accused is present may remand the accused, and shall remand him if—
(a) on the occasion on which he first appeared, or was brought, before the court to answer to the information he was in custody or, having been released on bail, surrendered to the custody of the court; or
(b) he has been remanded at any time in the course of proceedings on the information; and where the court remands the accused, the time fixed for the resumption of the proceedings shall be that at which he is required to appear or be brought before the court in pursuance of the remand or would be required to be brought before the court but for section 128(3A) below.
D5.30
Remanding the Accused on Adjournments The MCA 1980, s. 128(1), provides that, whenever a magistrates’ court has power to remand a person, it may either remand in custody or remand on bail, in accordance with the BA 1976. Accordingly, the references in ss. 10 and 18 to ‘remanding’ an accused mean either a remand in custody (i.e. committing the accused to custody to be brought before the court at the end of the period of remand or at such earlier time as the court may require), or a remand on bail in accordance with the provisions of the BA 1976 (i.e. directing the accused to appear before the court at the end of the period of the remand or, if bail is made continuous, directing that the accused appear at every time to which the proceedings may be adjourned) (MCA 1980, s. 128(1) and (4)).
Section 18 governs adjournments until allocation (mode of trial) has been determined. Section 10 applies to appearances for summary offences up until conviction, and to appearances for either-way offences from after mode of trial has been determined in favour of summary trial to conviction. Sections 10(4) and 18(4) provide (in almost identical terms) that, on adjourning proceedings for an either-way offence, the court must remand the accused (on bail or in custody) unless the accused: (a) first appeared in answer to a summons or requisition (as opposed to being brought before the court in custody or appearing in answer to police bail); and (b) has not been remanded at an earlier hearing.
It follows that the magistrates may, at their discretion, adjourn without remanding the accused: (a) at all appearances for summary offences up to conviction; and (b) at appearances for either-way offences up to either a determination for trial on indictment or summary conviction, provided the accused initially appeared in answer to a summons or requisition and has not subsequently been remanded. In R (Iqbal) v Canterbury Crown Court [2020] EWHC 452 (Admin), Carr J (at [48]), having noted that the Court had been informed that defence solicitors currently advise their clients that, if they are released under investigation and then receive a postal requisition, they would not be remanded in custody if they comply (and have in the past complied) with their attendance requirements, unless there is a material change in circumstances, said that if this was indeed a practice, ‘there is no proper or principled basis for it. The full history and background will be taken into account by a court … but there can never be any guarantee of bail once a defendant is charged.’ Nonetheless, it is submitted that, where a defendant appears in court in response to a written charge and requisition, the question of bail arises only if the magistrates’ court chooses to remand the defendant rather than simply adjourning the case; in such a case, the question of remanding the accused is likely to arise only if there appears to be a good reason for considering a remand in custody.
Where a case is simply adjourned, there is no need to fix the date for the next hearing at the time of adjourning, whereas if there is a remand the adjournment date must be fixed forthwith and is the date to which the accused is remanded. An accused who is not remanded and who then fails to appear on the date to which the case is adjourned commits no offence, but it may be possible either for an arrest warrant to be issued or for the proceedings to be conducted in the absence of the accused. An accused who has been remanded on bail and who then fails without reasonable cause to surrender to custody commits an offence under the BA 1976.
first sub-paragraph of D5.31
The maximum period for which a magistrates’ court may remand an accused in custody is ‘eight clear days’ (MCA 1980, s. 128(6)).
the first sub-paragraph of D5.32,
Further Remands A person who is brought before the court after an earlier remand may be remanded again (MCA 1980, s. 128(3)). Thus, there may be several remand hearings before the case is sent to the Crown Court or the commencement of summary trial. The only limitation on the number of remands is the general discretion of magistrates to refuse an adjournment if it would be against the interests of justice (e.g., because they consider that the party requesting the adjournment should have been ready to proceed on the present occasion). By s. 130, a court remanding an accused in custody may order that, for subsequent remands, the accused be brought up before a different magistrates’ court nearer to the prison where the accused is to be confined while on remand. That alternate court then enjoys the same powers in relation to remand that the original court would otherwise have.
D5.36
Under the MCA 1980, s. 128(6)(a), the accused may be remanded for a period greater than eight clear days if the remand is on bail and both the accused and the prosecution agree to a longer period of remand.
D5.20
CrimPR Part 8 (see Supplement, R8.1 et seq.) applies in every case (r. 8.1(1)). Rule 8.2(1)(a) requires the prosecutor, as soon as practicable (and, in any event, no later than the beginning of the day of the first hearing), to provide to the court ‘initial details’ of the prosecution case. These initial details of the prosecution case do not have to be supplied automatically to the accused; rather, r. 8.2(2) provides that, if the accused requests the initial details, the prosecutor must serve them as soon as practicable (and, in any event, no later than the beginning of the day of the first hearing); if the accused does not request those details, the prosecutor must make them available to the accused at, or before, the beginning of the day of the first hearing (r. 8.2(3)).
What constitutes ‘initial details’ of the prosecution case is defined by r. 8.3. Where, immediately before the first hearing in the magistrates’ court, the accused was in police custody for the offence charged, initial details comprise a ‘summary of the circumstances of the offence’, and the accused’s criminal record (if any). If the accused is not in custody, initial details comprise: a summary of the circumstances of the offence; any account given by the accused in interview (set out either in the summary or in a separate document); any written witness statements (including exhibits) that the prosecutor has available at that stage and which the prosecutor considers to be material to plea, or to whether the case should be tried in a magistrates’ court or the Crown Court, or to sentence; the accused’s criminal record (if any); and any available statement of the effect of the offence on victims or their family (or on others).
It is submitted that the reference to a magistrates’ court in Part 8 should be taken to include youth courts, and so these provisions apply equally to cases in the youth court where the accused is under the age of 18.
CrimPD I, para. 3A.4, states that the information supplied pursuant to CrimPR 8.3 must be sufficient to allow the accused and the court, at the first hearing, to take an informed view on plea and (where applicable) venue for trial. Paragraph 3A.12 makes the point that, if the accused is on bail and the prosecutor does not anticipate a guilty plea at the first hearing in a magistrates’ court, the initial details of the prosecution case that are provided for that first hearing must be sufficient to assist the court to identify the real issues and to give appropriate directions for an effective trial (regardless of whether the trial is to be heard in the magistrates’ court or the Crown Court). Moreover, by virtue of para. 3A.13, as well as the material required by CrimPR Part 8, the information required by the Preparation for Effective Trial form must be available to be submitted at the first hearing, and the parties must complete that form.
D5.38 (first para)
The CDA 1998, ss. 57A, 57B, 57D and 57E, enable the court to direct that an accused who is in custody may appear at preliminary hearings, and at sentencing hearings, via a ‘live link’ from prison or from a police station. Under s. 57A(2), the accused is to be treated as present in court when attending via a live link (defined, by s. 57A(3), so as to require that that the accused be able to see and hear, and to be seen and heard by, the court during the hearing). CrimPR 3.2(4) (see Supplement, R3.2) strongly encourages the use of live links; moreover, CrimPD I, para. 3N.1 (see Supplement, CPD.3N), says that where it is ‘lawful and in the interests of justice to do so, courts should exercise their statutory and other powers to conduct hearings by live link or telephone’. Paragraph 3N.4 emphasises that all participants must be able to hear and, in the case of a live link, see each other clearly, and notes that, if a hearing is open to the public, use of media such as Skype or Facetime, which are not generally considered secure from interception, may not be objectionable (as the information is in the public domain anyway). Paragraph 3N.8 states that, in principle, nothing prohibits the conduct of a pre-trial hearing by live link or telephone with each participant, including the member(s) of the court, in a different location (sometimes described as a ‘virtual hearing’), so long as the hearing can be witnessed by the public (e.g. by public attendance at a venue from which the participants can all be seen and heard (if by live link), or heard (if by telephone)).
D5.41
Under the CDA 1998, s. 57D, where an accused attends a preliminary hearing over a live link (pursuant to s. 57B or 57C) and pleads guilty to the offence (or, if it is an either-way offence, indicates a guilty plea and so is deemed to have pleaded guilty under the ‘plea before venue’ procedure), and the court proposes to proceed immediately to sentencing, the accused may continue to attend through the live link provided the court is satisfied that it is not contrary to the interests of justice for this to take place (s. 57D(2)). Section 57D(3) provides that, where a preliminary hearing over a live link continues as a sentencing hearing, the offender can give oral evidence over the live link only if the court is satisfied that it is not contrary to the interests of justice.
