Summary trial procedure. Procedural steps in a summary trial. Flashcards
Start of the Trial
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.
The Prosecution Case
Opening Speech
Assuming the accused pleads not guilty, the prosecution representative has the right to make an opening speech.
The purpose of the prosecutor’s summary of the prosecution case is to explain briefly what the case is about.
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.
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’. The justices will, in most cases, already be aware of what has been declared to be in issue (from the PET form), so such an invitation may be unnecessary in most cases.
Witnesses whom the Prosecution Must Call
After the opening speech (if any), the prosecutor must call evidence.
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.
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.
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 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.
Formal Admissions
Written Evidence at Summary Trial: Criminal Justice Act 1967, s. 9
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 (Proof by written statement).
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. 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.
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. If, within five business days of service, any of them serves a counter-notice objecting to the statement being put in evidence, it may not be used. 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
(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. 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.
A s. 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.
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
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.
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.
(d) As a matter of good practice, where a statement is to be tendered under s. 9 in the course of summary proceedings but 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); instead, a fresh statement should be prepared that excludes any inadmissible or prejudicial material.
Criminal Justice Act 1967, s. 9
(1) In any criminal proceedings 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.
Objections to Prosecution Evidence
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 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.
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.
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.
It is submitted that, where a confession is the main evidence against the accused, so that without it there might not be a case to answer, the interests of justice dictate that admissibility should be determined as a preliminary issue.
The proper approach of magistrates is to proceed in accordance with the justice of the case. I recognise that in very many cases it would indeed be proper for magistrates to deal with the issue of admissibility of a confession before the close of the prosecution case. To give a very simple and perhaps extreme example, if the only evidence before magistrates is the evidence of a confession and nothing else, then as a matter of common justice, the magistrates ought to deal with the issue of the admissibility of that confession as a preliminary point, before the close of the prosecution case, so that the defendant can then decide whether to make a submission of no case to answer.
Police and Criminal Evidence Act 1984, s. 76
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 hear evidence on the obtaining of the confession.
Closing Speeches
(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.
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.
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.
Role of Justices’ Legal Adviser
The statutory functions of justices’ legal advisers are set out in the Courts Act 2003, s. 28(1), which empowers the Lord Chief Justice to authorise a person:
(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, and
(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.
CrimPR 2.12 (in force from 2 October 2023; sets out additional provisions (formerly contained in the CrimPD) about the role of the justices’ legal adviser when a magistrates’ court (including a youth court) comprises lay justices.
The adviser should provide the court with any legal advice that it needs to carry out its functions (whether the court asks for that advice or not), including advice about: questions of law, or of mixed law and fact;
matters of practice and procedure;
relevant judicial decisions that bind the court;
the process to be followed in order to reach a decision, and when sentencing;
the range of penalties and orders available when sentencing, and the matters to be taken into account, in accordance with any relevant sentencing guideline.
To provide this legal advice, the adviser must (if necessary) attend the members of the court outside the courtroom, and in that event, must inform the parties (if present) of any advice given in private. The adviser must allow the parties (if present) an opportunity to make representations to the court about that advice.
The adviser may ask questions of a party or witness on the court’s behalf to clarify representations and evidence. Where a party has no legal representative, the adviser should assist that party to understand what the court requires and why; to provide information required by the court to prepare for trial or to carry out its other functions; and (if necessary) to make representations to the court or to give evidence.
The adviser must, if necessary, assist the court with the formulation and recording of reasons for its decisions; and may make announcements on the court’s behalf (other than an announcement of an allocation or sending decision, an indication of likely sentence, or a verdict or sentence).
Rule 2.12(5) makes the important point that in performing these functions, the adviser must avoid the appearance of advocacy for a party; and must ‘adhere to the same principles that apply to courts of independence, impartiality, integrity, propriety, competence, diligence and ensuring fair treatment’.
CrimPR 24.14 provides a further summary of the duties of the justices’ legal adviser during the trial and/or sentencing hearing. 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).
Duties of Justices’ Legal Adviser with Regard to Questions of Law
The role of the justices’ legal adviser is to advise on law, practice and procedure (but not on questions of fact). Since the magistrates are the ultimate arbiters of both law and fact there is no obligation on them to adopt the adviser’s advice on law, but it is accepted practice that they should in fact do so.
If the justices’ legal adviser forms the view that the justices have reached a decision that is wrong, he or she has no power to ignore their order and treat it as a nullity
