Procedure in the magistrates’ courts. Preliminary hearings, entering plea in magistrates, ambiguous pleas Flashcards
Remands in Custody in the Absence of Accused
To avoid the necessity for an accused to be brought before the court in custody when it is apparent that no effective progress in the case will be possible at the hearing to which the accused would otherwise be brought, a remand in custody may take place in the absence of the accused under the MCA 1980, s. 128(3A) to (3E). A remand in absence may take place only if the accused:
(a) has consented (at an earlier hearing) to not being present at future remands
(b) has a legal representative acting in the case, although the representative need not be present in court
(c) has not been remanded in absence on more than two consecutive occasions prior to the present application for remand in absence
(d) has not withdrawn consent
Remand on Bail
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.
Preparation for Trial Hearings
Pre-Trial Hearings
The CDA 1998, s. 50, makes provision for pre-trial hearings. It provides that where the accused has been charged with an offence at a police station, the magistrates’ court before which the accused appears for the first time in relation to that charge may consist of a single justice.
At a hearing under s. 50, the accused is asked whether he or she wishes to be provided with legal aid; if the accused does so wish, the necessary arrangements for an application must be made and, where appropriate, legal aid obtained and, if necessary, the hearing may be adjourned for this purpose under s. 50(4A)(a).
On adjourning the hearing, the magistrate may remand the accused in custody or on bail.
Under s. 50(4), an early administrative hearing may be conducted by a justices’ clerk (or an assistant clerk who has been specifically authorised by the justices’ clerk for that purpose), but the clerk is not empowered to remand the accused in custody or, without the consent of the prosecutor and the accused, to remand the accused on bail on conditions other than those (if any) previously imposed.
Section 50(1) makes it clear that s. 50 applies only where the accused was charged at the police station, and so does not apply where the accused is granted police bail and is then charged by the CPS using the written charge and requisition procedure.
However, there is nothing to prevent magistrates’ courts operating a system of early administrative hearings in all cases where a not guilty plea is expected.
Preparation for Trial Hearings
A magistrates’ court must conduct a ‘preparation for trial hearing’ (unless the accused is sent for trial in the Crown Court or enters a written guilty plea, or the single justice procedure applies).
The court may conduct one or more further pre-trial case management hearings if
(i) the court anticipates a guilty plea; or
(ii) it is necessary to conduct such a hearing in order to give directions for an effective trial; or
(iii) such a hearing is required to set ground rules for the conduct of the questioning of a witness or defendant.
At a preparation for trial hearing, ‘the court must give directions for an effective trial’.
Under r. 3.16(3), if the accused is present, the court must:
(a) satisfy itself that the accused understands that credit will be received for a guilty plea;
(b) take a plea from the accused (or, if no plea can be taken, find out whether the accused is likely to plead guilty or not guilty); and
(c) unless the accused pleads guilty, satisfy itself that the accused understands that, at the trial,
(i) he or she will have the right to give evidence after the court has heard the prosecution case;
(ii) if the accused does not attend, the trial is likely to take place in his or her absence; and
(iii) if released on bail, failure to attend court when required to do so is an offence which may lead to arrest and punishment, and that bail may be withdrawn.
The court is also required to ascertain the name and date of birth of the accused unless previously provided.
These hearings will usually take place in public.
Pre-trial Rulings
The MCA 1980, s. 8A applies to cases that are to be tried summarily where the accused has entered a not guilty plea.
For these purposes, a pre-trial hearing is a hearing that takes place before the court begins to hear evidence from the prosecution at the trial (or, in those cases where fitness to plead is an issue, before the court considers whether to exercise its power under the Mental Health Act 1983, s. 37(3), to make a hospital order without convicting the accused.
At a pre-trial hearing, 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 be made only if the court has given the parties an opportunity to be heard and it appears to the court that it is in the interests of justice to make the ruling (s. 8A(3)(b) and (c)). If the accused is unrepresented, he or she must be given the chance to apply for legal aid.
Pre-trial rulings may be made on the application of the defence or prosecution, or of the court’s own motion.
Under s. 8 B (1), a pre-trial ruling is binding until the case against the accused (or, where there is more than one, against each of them) is disposed of.
The case is disposed of if the accused is acquitted or convicted, or the prosecutor decides not to proceed with the case, or the case is dismissed.
However, under s. 8 B (3), the court may (on application by a party or of its own motion) 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.
A party can apply for the ruling to be discharged or varied only if there has been a material change of circumstances since the ruling was made or, if there has been a previous application under s. 8B, since that application was made.
Considering the power of the magistrates’ court to vary the pre-trial ruling of its own motion, made the point that it is difficult to accept that it could be in the interests of justice for the court to annul or discharge its own ruling without a compelling reason to do so, such as changed circumstances or fresh evidence; it is not sufficient that a different bench reaches a different conclusion on the same material.
‘Once a decision has been made after proper inquiry and consideration of all relevant factors, it cannot be reversed merely by re-examining the case afresh on the same material’.
Review of a decision ‘will be permissible if a change of circumstances has occurred since the original decision was taken’ or ‘if circumstances are brought to the attention of the court which, although existing when the original decision was taken, were not then drawn to the attention of the court.
It is ‘necessary for the efficacious administration of justice to take a strict approach to the power of a lower court to revisit and revoke an order earlier made by itself’ but that ‘there must be some power to do so in the interests of justice ; that power arises where there is ‘a change of relevant circumstances’ but ‘cases in which an earlier existing circumstance, not drawn to the attention of the court at the first hearing, would justify the court in later overturning its first decision would be most infrequent’.
Cranston J assumed (having heard no argument to the contrary) that the common-law rule remains, but would be relevant only to those cases where ss. 8A and 8B do not apply (those sections ‘bite’ only once the decision has been made that a summary trial will occur).
There is no provision for appeals against rulings under s. 8A. However, an error of law in such a ruling could form the basis of an appeal by way of case stated once there has been a final determination of the proceedings in the magistrates’ court
Essential Case Management:
Applying the Criminal Procedure Rules
Where the accused pleads not guilty, the parties must, from the start, identify the disputed issues and tell the court what they are; if the parties do not supply this information, the court must require them to do so.
The ‘live’ evidence at the trial should be confined to those issues, and so only witnesses ‘who are really needed in relation to genuinely disputed, relevant issues should be required to attend …
Moreover, the court s directions must include a timetable for the progress of the case, and the parties are required to warn the court ‘promptly’ if any problems (e.g., relating to witnesses) are anticipated.
‘in any case in the magistrates’ court where a trial is likely to be other than a short one, it should be the ordinary practice for a timetable for the conduct of a trial to be set at the time the trial date is fixed and the estimate made …
in setting the timetable:
…. the court should scrutinise the reasons why it is said a witness is necessary and the time examination and cross-examination would take. It is also important in setting a timetable to have regard to the nature of the issues and the fact that the trial is a summary trial; any estimate of more than a day in the Magistrates Courts should be scrutinised with the utmost rigour. Parties must realise that a summary trial requires a proportionate approach. If a timetable for the trial is not set, it is difficult to have any real confidence that the estimate is accurate.
‘Stop Delaying Justice!’, the aim of which is that ‘all contested trials in the magistrates’ court will be fully case managed in the first hearing and disposed of, by way of trial or otherwise, at the second’. His lordship noted that ‘such a course might be adopted if the initial or advanced disclosure contains all of the likely available evidence of note’ and the ‘prosecution evidence is not challenged and the only evidence, if any, will be that of the defendant’. However, his lordship emphasised that the ‘real issue’ is the ‘fairness of the proceedings to all parties’.
Ambiguous Pleas
If an accused purports to enter a plea of guilty but, either at the time of pleading or subsequently in mitigation, qualifies it with words that suggest the accused may have a defence (e.g., ‘Guilty, but it was an accident’ or ‘Guilty, but I was going to give it back’), then the court must not proceed to sentence on the basis of the plea but should explain the relevant law and seek to ascertain whether the accused genuinely intends to plead guilty.
For example, in Atkinson the Court of Appeal held that guilty pleas to assault where D also asserted that she had acted in self-defence were not ambiguous where the judge had clarified any ambiguity with her counsel before accepting the pleas.
If the plea cannot be clarified, the court should order a not guilty plea to be entered on the accused’s behalf ‘if [the accused] stands mute of malice or will not answer directly to the indictment, the court may order a plea of not guilty to be entered’).
Should the court proceed to sentence on a plea which is imperfect, unfinished or otherwise ambiguous, the accused will have a good ground of appeal. Since the defect in the plea will have rendered the original proceedings a mistrial, the Court of Appeal will have the options either of setting the conviction and sentence aside and ordering a retrial or of simply quashing the conviction.
If the former course is chosen (i.e. there is to be a retrial), the court may either then and there direct that a not guilty plea be entered or order that the accused be re-arraigned in the court below.
