UNIT 10 - Summary Trial Procedure BSB 8 Flashcards
Pre-trial rulings
Which cases does MCA 1980, s. 8A apply to?
- Cases tried summarily where accused has entered NG plea
What is a pre-trial hearing?
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 (s. 8A(2)).
What is the point of a pre-trial hearing?
Where court can make a ruling on admissibility of evidence/any other question of law.
A pre-trial hearing/ruling can ONLY be made if:
- both parties have been given Opportunity to Make Representations; AND
- it appears to court to be in the Interest of Justice to make the ruling.
Pre-trial hearing: If the D is unrepresented
he or she must be given the chance to apply for legal aid (s. 8A(5))
A pre-trial ruling can be made on application of:
a) Defence or
b) Prosecution, or
c) Court’s own motion
Is a pre-trial ruling binding?
YES!
Under s. 8B(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.
case disposed = when the accused is acquitted or convicted, or the prosecutor decides not to proceed with the case, or the case is dismissed
Can the court discharge and vary a pre-trial ruling?
YES!
under s. 8B(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.
Can a party apply for pre-trial ruling to be discharged or varied?
YES!
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 (s. 8B(5)).
What should the court consider when considering discharging and/or varying a pre-trial ruling(OWN MOTION)?
- Case law suggests when done on is own motion 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
TO SUMMARISE:
ONLY IF there has been a material change in circumstance
- New evidence
- Something was not drawn to the attention of the court when it was made
Court considering discharging and/or varying a pre-trial ruling: re-deciding on the same facts/evidence
- Cranston J quoted from the judgment of Simon Brown LJ in Newham (at p. 946B):
‘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’
Trial in Absence of the Accused
If the accused fails to appear for the trial in the magistrates’ court, when may the court proceed in the accused’s absense;
o the case may (if the accused is under 18)
o 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)
Trial in Absence of the Accused
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 (or requisition, as the case may be) was served a reasonable time before the hearing or the accused appeared on a previous occasion to answer the charge
Power to Adjourn
If the one or both of 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
When it adjourns the case, the court may either:
(a) set the date for the hearing to resume; OR
(b) may leave the time and place to be determined (UNLESS the accused is remanded, in which case a date must be fixed).
The trial can resume only where the court is satisfied that the parties have had adequate notice; if the accused was not present when the case was adjourned =
it will therefore be necessary to send the accused an adjournment notice.
or, as it is expressed in Crim PR 24.12(3)(b)(ii), ‘reasonable notice’ of when and where the hearing would resume.
Trial in the Absence of the Accused: Powers and Procedure (MC)
The court MUST proceed in the absence of a
D who is 18+…
UNLESS contrary to the interests of justice to do so.
So if D is 18+, if the court is proceeding, the court will proceed as if the accused made what plea?
NG PLEA!!
the court will proceed as if the accused were present and, unless a plea was entered on an earlier occasion, had pleaded not guilty
+the court must give reasons if it does not do so
S11(7) If the court does NOT proceed in the
absence of an accused aged 18+ =
the court must give reasons, in open court, why it is not proceeding.
Who has the burden proof when accused does not attend the hearing?
The burden is then on the prosecution to prove the case to the normal criminal standard, whether by calling oral evidence or by reading statements served on the accused under the CJA 1967, s. 9 (such statements are admissible in the absence of objection from the defence — positive consent is not required
In the absence of the accused, can the court acquit the accused?
YES!
Should the prosecution evidence turn out to be insufficient,
What about if the case is proved (D is convicted) in his absence?
the court may either proceed immediately to sentence or, in certain circumstances, it may adjourn to give the accused notice to attend for sentencing
Determining Whether to Proceed to Trial in Accused’s Absence
s11(2A)
the court shall not proceed in D’s absence IF it considers there is an:
acceptable reason for his failure to appear
E.g. ilness, incapacity
Determining Whether to Proceed to Trial in Accused’s Absence:
Does the court need to enquire into the reasons for the failure to appear?
NO.
the court is not required to inquire into the reasons for the accused’s failure to appear before deciding whether to proceed in his or her absence.
Is the court required to state in open court its reasons for not proceeding in the absence of an accused who has attained the age of 18 and who fails to attend?
YES!
- Section 11(7) requires the court to do so.
What is the ‘default position’ where the accused is aware of the date of trial and no acceptable reason is offered for absence?
proceeding in the absence of an accused
What is the ‘default position’ where the accused is aware of the date of trial and no acceptable reason is offered for absence?
proceeding in the absence of an accused
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.
- An example of involuntary absence may be found in R (Davies) v Solihull Justices [2008] EWHC 1157 (Admin).
[CASE LAW]
o After his case had been called on, it was discovered that D had been excluded from the court building by the security staff because of disorderly behaviour.
o The justices ruled that D had, by virtue of his conduct, voluntarily absented himself from the hearing of his case, and that he should be tried in his absence.
o Underhill J ruled that D’s misbehaviour did not justify excluding him from his own trial.
o Moreover, the justices erred in treating him as being voluntarily absent, since he had wanted to be in court but was prevented by the exclusion.
o While it could be said that the exclusion was his own fault, that was not the same as it being his own choice; the position was no different than if he had committed an offence on the way to court and then been arrested (and so unable to attend court), as had happened in R (R) v Thames Youth Court [2002] EWHC 1670 (Admin).
o In that case, the district judge had formed the view that D had brought his arrest on himself and should therefore be regarded as having excluded himself deliberately from court.
o Pitchford J said (at [27]) that the district judge was wrong to take that approach.
Warrant for Arrest
If the court does not proceed in absence of D, and instead adjourns of further adjourns
the trial, court has option of issuing a warrant for his arrest.
- Under the MCA 1980, s. 13(1)
- 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 the trial (s. 13(2A)), UNLESS:
1) the current adjournment is a second or subsequent adjournment of the trial,
2) the accused was present on the last occasion when the trial was adjourned; AND
3) the date for the present hearing was fixed then
DELAY
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 trial, if there has been delay amounting to an abuse of the process of the court
Delay
What would make it likely for delay to amount to an abuse of process?
If the delay is deliberate
CASE: Brentford Justices, ex parte Wong, where the prosecutor deliberately delayed in effecting service of the summons in order to gain more time in which to decide whether or not to continue the case against the accused.
-Where deliberate delay in bringing the case to court cannot be shown, the defence may nonetheless 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, and
(ii) prejudice to the defence from the delay is either proved or to be inferred
If, however, the delay was in part attributable to the accused’s own conduct, an application to stay is unlikely to succeed.