Summary trial procedure (W14)

Question 1

D21.35 - Pre-trial rulings

Answer 1

• MCA 1980, s.8A applies to cases that are to be tried summarily where the accused enters a NG plea.
• 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 opportunity to be heard and it appears to the court that it is in the interests of justice to make the ruling.
• If the accused is unrepresented, they must be given the chance to apply for legal aid.
• A pre-trial ruling can be made on application of the defence or prosecution, or of the court’s own motion.
• A pre-trial ruling is binding until the case against the accused is disposed of.
• However, the court may on application by a party or of its own motion discharge or vary a pre-trial ruling provided it appears to be in the interests of justice to do so, and the court has given the parties opportunity to be heard.
• A party can apply for the ruling to be discharged or varied only if there has been a material change in circumstances since the ruling was made, or if there has already been an application to discharge/vary, since that application was made.
• There is no provision for appeals against pre-trial rulings. However, an error in 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.

Question 2

CrimPR 24.12 - Evidence of a witness in person

Answer 2

(1) This rule applies where a party wants to introduce evidence by calling a witness to give that evidence in person.

(2) Unless the court otherwise directs—
(a) a witness waiting to give evidence must not wait inside the courtroom, unless that witness is—
(i) a party, or
(ii) an expert witness;
(b) a witness who gives evidence in the courtroom must do so from the place provided for that purpose; and
(c) a witness’ address must not be announced unless it is relevant to an issue in the case.

(3) Before the witness gives evidence—
(a) the party who introduces the witness’ evidence must explain how that evidence is admissible, unless it is only evidence of fact within the witness’ direct knowledge; and
(b) the witness must take an oath or affirm, unless other legislation otherwise provides.

(4) In the following sequence—
(a) the party who calls a witness must ask questions in examination-in-chief;
(b) every other party may ask questions in cross-examination; and
(c) the party who called the witness may ask questions in re-examination.

(5) If other legislation so permits, at any time while giving evidence a witness may refer to a record of that witness’ recollection of events.

(6) The justices’ legal adviser or the court may—
(a) ask a witness questions; and in particular
(b) where the defendant is not represented, ask any question necessary in the defendant’s interests.

Question 3

D5.43 - Trial in absence of the accused

Answer 3

• 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))
• 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 was served a reasonable time before the hearing or the accused appeared on a previous occasion to answer the charge.

Question 4

D22.12 - Power to adjourn

Answer 4

• If one or both 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 s.10(1) MCA 1980.
• The court may either set the date for the hearing to resume or unless it also remands the accused (in which case a date must be fixed), leave the time and place to be determined.
• Trial can resume only when the court is satisfied that the parties have had adequate notice; if the accused was not present when the trial was adjourned, it will be necessary to send the accused an adjournment notice.

Question 5

D22.14 - Trial in the absence of the accused: powers and procedure

Answer 5

• Under the MCA 1980 s.11, if at the time and place appointed for 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.’
• The general rule therefore is where an adult defendant is absent, the trial will proceed in their absence, in the assumption that they pleaded not guilty (unless a plea has already been entered); the court must give reasons if it does not do so.
• Where the case has previously been adjourned, it is necessary to satisfy the court that the accused has had ‘adequate notice’ of the adjournment date (MCA 1980, s.10(2)) or ‘reasonable notice’ of when and where the hearing would resume.
• Assuming that the case is proved by the prosecution in the absence of the accused, the court may either proceed immediately to sentence or adjourn to give the accused notice to attend for sentencing.
• Where a written charge is to be tried using the single justice procedure, s.11 does not apply.

Question 6

D22.17 - Determining whether to proceed to trial in accused’s absence

Answer 6

• s.11 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, the court is not required to inquire into the reasons for the accused’s failure to appear before deciding whether or not to proceed.
• the court must state in open court their reasons for not proceeding in the absence of an accused over the age of 18
• 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.

Question 7

D22.19 - Warrant for arrest

Answer 7

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

Question 8

D21.21 - Effect of delay

Answer 8

• 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 a trial, if there has been delay amounting to an abuse of process of the court.
• Where the delay is deliberate, it is likely to amount to an abuse of process.
• Where deliberate delay cannot be shown, the defence may still 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, (ii) prejudice to the defence from the delay is either proved or to be inferred.
• If the delay was in part attributable to the accused’s own conduct, an application to stay is unlikely to succeed.

Question 9

D22.36 - Start of the trial

Answer 9

• If the plea was not entered on an earlier occasion, the accused is asked to enter a plea. If the accused enters a NG plea on an earlier occasion, they will be asked to confirm that plea.
• Immediately prior to the commencement of the trial, the authorised court officer must summarise for the court the agreed and disputed issues, together with the way in which the parties propose to present their cases.

Question 10

D22.37 - Prosecution opening speech

Answer 10

• Assuming the accused pleads NG, 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 (including any relevant legislation or case law) but it will not usually be necessary to give a detailed account of prosecution evidence to be adduced.

Question 11

D22.38 and 39 - Court may invite the accused to identify what is in issue

Answer 11

• In order to help 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 to ‘concisely identify what is in issue.’
• The justices will, in most cases, already be aware of what has been declared to be in issue. It follows that a party who has nothing of substance to add should say so.
• If the accused refuses to identify the issues at the case management stage, ‘the court may limit the proceedings on the day of trial’ and ‘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 to impose sanctions.

Question 12

D22.40 - Witnesses whom the prosecution must call

Answer 12

• After the opening speech, 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 the prosecution serves a bundle of witness statements on the defence prior to the summary trial, the prosecution must call as witnesses all the people whose statements have been served.
• Otherwise, the prosecution 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 prosecution to do so.
• However, the court retains the power to stop the trial as an abuse of process.
• Justices may also call witnesses themselves, although this is rare as the justices must show impartiality in proceedings.

Question 13

D22.41 - Written evidence at summary trial: CJA 1967, s.9

Answer 13

A party wishing to tender a written statement as evidence at a summary trial rather than calling the maker of the statement may use the provisions of the CJA 1967, s.9.

Question 14

D22.43 - Formal admissions

Answer 14

Where a party introduces into evidence a fact admitted by another party or the parties jointly admit a fact under s.10 CJA 1967 a written record must, unless the court otherwise directs, be made of the admission.

Question 15

D22.44 - Objections to prosecution evidence

Answer 15

• The stage of the trial at which the magistrates rule upon a question of admissibility of evidence 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.
• It is suggested 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.

Question 16

D22.46 - PACE 1984 s.78

Answer 16

• 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 may rule on the matter following submissions on behalf of the parties.
• In some cases, the justices should deal with an application to exclude evidence when it arises, but in other cases it should wait until the end of the hearing.
• ‘the object should always be to secure a trial which is fair and just to both sides.’

Question 17

D22.47 - PACE 1984 s.76

Answer 17

Magistrates, just like the Crown Court, are required to hear evidence on the obtaining of the confession.

Question 18

D22.63 - Closing speeches

Answer 18

• 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’ 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 their own closing speech.
• If a party wishes to introduce evidence or make representations after the specified opportunity to do so, the court is entitled to refuse to receive any such evidence or representations. The court should refuse save in the most exceptional circumstances.

Question 19

D22.80 - Role of authorised court officers

Answer 19

• An ‘authorised court officer’ replaces the word ‘justices clerk’
• ‘Justices’ legal adviser’ is now referred to as an ‘authorised court officer’

Question 20

D22.81 - Statutory functions of authorised court officers

Answer 20

Courts Act 2003, s.28(1):

(a) to give advice to the 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 the 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.

Question 21

D22.81 - Duties of authorised court officers

Answer 21

• 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
• assisting the court in the formulation of its reasons and the recording of those reasons
• assisting the accused if unrepresented
• assisting the court by making a note of the substance of any oral evidence or representations
• marking as inadmissible any parts of written statements in evidence that are ruled inadmissible
• ensuring that a record is kept of the court’s decisions and the reasons for them
• making any announcement, other than of verdict or sentence.

Question 22

D22.81 - Matters on which the authorised court officer may legitimately advise the magistrates

Answer 22

(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; and
(g) other issues relevant to the matter before the court.

• The authorised court officer is also required to assist the court, where appropriate, as to the formulation of reasons and the recording of those reasons.
• The court officer 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.

Question 23

D22.52 - Submission of no case to answer

Answer 23

• 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 have opportunity to make representations.
• So at the close of the prosecution case, the defence can make a submission of no case to answer.
• The question is whether a reasonable tribunal might convict. If a reasonable tribunal could convict on the evidence, there is a case to answer.
• There is no obligation on justices to give reasons for rejecting a submission of no case to answer.

Question 24

D22.53 - Credibility of prosecution witnesses

Answer 24

• An important issue when considering a submission of no case to answer is the extent to which justices may have regard to the credibility of prosecution witnesses.
• In the Crown Court, the test to be applied by the judge is whether the evidence is so tenuous that, even taken at its highest, a jury properly directed could not properly convict on it.
• 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.

Question 25

D22.54 - Prosecution right of reply

Answer 25

When the justices are minded to uphold the submission of no case to answer, they should first call on the prosecution to address them.

Question 26

D22.70 - Duty to give reasons

Answer 26

• The court, if it convicts the accused, must give ‘sufficient reasons to explain its decision’
• However, justices are not required to state their reasons in the form of a judgment or to give reasons in any elaborate form.
• If a party wishes to obtain more detailed reasons, a request can be made to the magistrates to state a case.
• If the court acquits the accused, it may, but is not required to, give an explanation of its decision.

Question 27

D22.71 - Guilty of a lesser offence

Answer 27

• The justices are restricted to reaching a decision of guilty or NG on the charge actually before them. They have no power to find an accused NG as charged but guilty of a lesser offence.
• There are a number of exceptions to this rule:
• s.24 RTOA 1988 enables magistrates, whenever trying certain driving offences, to find the accused NG of the offence charged, but guilty of another specified driving offence.
• s. 12A(5) TA 1968 provides that an accused who is charged with aggravated vehicle taking may instead be convicted of the lesser offence of vehicle taking.

Question 28

D22.72 - Alternative offences

Answer 28

• If the accused is charged with alternative offences at the outset and pleads NG to both, the magistrates should not convict of both offences.
• The court should instead give no verdict on the lesser offence and adjourn the lesser charge, so that it can be brought back if appropriate if the accused appeals a conviction for the more serious offence.