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.
Summary of Procedural Steps (Summary Trial)
(1) Legal arguments
(2) Prosecution Opening Speech: Pros has right. summarises prosecution case, concisely
identifies relevant law, outlines the facts, indicates matters likely to be in dispute
(3) Defence Identify Matters in Issue
(4) Prosecution Evidence: Prosecution witnesses (XIC by prosecution; XX by defence; Re-X by prosecution); undisputed prosecution evidence introduced by reading Witness Statements and/or by Written Admissions; reading D’s Record of Interview.
(5) Conclusion of Prosecution Case
(6) Submission of No Case to Answer: r24.3(3)(d): on D’s application, or court’s own initiative, court may acquit on prosecution that prosecution evidence is insufficient for any reasonable court properly to acquit.
(7) Informed of Right to Give Evidence & Adverse Inferences: r24.3(3)(e): D must be
informed of
(i) right to give evidence and
(ii) the potential effect of not doing so at all, or of refusing to answer a question while doing so.
(8) Defence Evidence: Defendant and/or Defence Witnesses (XIC by defence; XX by
prosecution; Re-X by defence); undisputed evidence introduced by reading Witness
Statements; and/or by Written Admissions.
(9) Prosecution Closing Speech: only where (i) D is represented or (ii) whether or not represented, the D has introduced evidence other than from himself.
(10) Defence Closing Speech
(11) Legal Advice
(12) Magistrates/District Judge Retires to Consider Verdict
`
(13) Verdict
Summary of Procedural Steps (Summary Trial)
Legal arguments
->
Prosecution Opening Speech
->
Defence Identify Matters in Issue
->
Prosecution Evidence
->
Conclusion of Prosecution Case
->
SNCTA
->
Informed of Right to Give Evidence &
->
Adverse Inferences
->
Defence Evidence
->
Prosecution Closing Speech
->
Defence Closing Speech
->
Legal Advice
->
Magistrates/DJ Retire to Consider
->
Verdict
P’s Opening speech
Assuming the accused pleads not guilty, the prosecution representative has the right to make an opening speech
Ps opening speech content
- Summarises Prosecution case,
- Identifying relevant law,
- Outlines the facts,
- Indicates matters likely to be in dispute.
P’s opening speech [INFO]
CrimPR: the purpose is to briefly explain what the case is about; will not normally be
necessary to present a detailed account of all the prosecution evidence that will be adduced.
L and B v DPP: case had been adjourned or a month after the main prosecution witness had given evidence; at the resumed hearing, the prosecutor was allowed to deliver a second speech to remind them of evidence which they were having difficulty remembering. Nothing wrong with this.
When may the defence be asked to Identify Matters in Issue?
remember - MAY
If the court feels it would assist them to understand the case and resolve any issue
CrimPR, the purpose of this: is to provide the court with ‘focus as to what it is likely to be
called upon to decide’, so that the justices will be alert to those issues from the outset and
can evaluate the prosecution evidence they hear accordingly.
ALSO NOTE: This can be helpful in summary trials, because unlike Crown Court there is
no requirement for a defence statement.
- Paragraph 24B.4 contains an important warning that, if the accused refuses to identify the issues at the case management stage =
- Paragraph 24B.4 contains an important warning that, if the accused refuses to identify the issues at the case management stage,
-
P’s evidence:
Having opened its case the Prosecution will presents its evidence to the court.
. Evidence can be presented by:
A. Calling Prosecution witnesses
B. Reading Agreed Statements under s9 CJA 88 (Undisputed P evidence/successful
application to read w/s under hearsay provisions)
C. Reading Written Admissions under s10 CJA 88 (i.e. facts agreed by prosecution +
defence)
D. Record of Taped Interview
Calling Prosecution Witnesses (XIC by prosecution; XX by defence; re-X by prosecution)
When is P obliged to call their witness to give evidence?
IF D REQUESTS!
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
P’s witness: WS prior to hearing
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 (see D16.20).
So the prosecution cannot simply abandon a witness mid-trial unless the defence agrees: because otherwise the prosecutor retains an
unfettered discretion until the case starts and the outline of evidence is given in opening speech.
If the prosecution choose not to call a particular witness, the court cannot compel the prosecutor to call that witness.
- , 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.
- In an appropriate case, justices may call the witnesses themselves.(this is rare)
Reading [Written] Witness Statements (instead of “calling” the witness to give Live
Evidence) - S9 CJA (Agreed Statements)
When the defence has:
a. No dispute with the content of a prosecution Witness statement, and
b. where Defence Agrees
= the Prosecution can simply rely on the written witness statements of the
witness
Formal Admissions
s10 CJA 88 (i.e. facts agreed by prosecution + defence)
Where a party introduces into evidence a fact admitted by another party or the parties jointly admit a fact (e.g., where a formal admission is made — usually by the accused, a written record must, unless the court otherwise directs, be made of the admission
Formal Admissions
s10 CJA 88 (i.e. facts agreed by prosecution + defence)
[CASE LAW]
WS under s.9 = NO DIFF to a witness coming to court
- In Drummond [2020] EWCA Crim 267, the Court of Appeal considered the difference between statements being read by consent (under the CJA 1967, s. 9) and formal admissions (under s. 10), observing (at [58]) that:
… the account of a witness whose statement is adduced under s. 9 is treated no differently than if that account had been given by witnesses from the witness box. In either case, the tribunal of fact is entitled to accept or reject the witness’s account as it sees fit, and then by contrast, where an admission is made pursuant to s. 10, that is conclusive of the matter stated and it is not open to the court to reject that fact.
Who can make formal admissions and which courts?
by either:
i) the prosecution or the defence, by solicitor or counsel
ii) both in CC and MC
NOTE ABOUT SYLLABUS:
The syllabus also states that students should be familiar with (and be able to refer to by section number) s.10 CJA 1967
OBJECTIONS to Prosecution Evidence (Questions of Admissibility)
i) . 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.
ii) Should they then rule it inadmissible, they may have difficulty in ignoring it when reaching a verdict
how is this issue normally dealt with?
PRE-TRIAL RULING
Issues of admissibility of P’s evidence may be RAISED for FIRST TIME during the TRIAL itself; which was not dealt with in pre-trial ruling
Magistrates have DISCRETION re when to determine Questions of Admissibility of
Evidence (or other incidental issue)
DELAYING determination of a question of admissibility until after conclusion of Prosecution evidence may be unfair to the defence
the interests of justice it may dictate that a ruling on admissibility is made early enough to allow D to know whether the evidence forms part of the case against him, to deal with it in cross-examination and in his evidence; and if appropriate, to make a submission of no case to answer
COURT to consider when to deal with issue according to what the issue is: if prelim issue, may need to be dealt with at the start
S78= COURT HAS DISCRETION…
S76 = COURT IS OBLIGED …
to hear evidence on the issue of admissibility
S76 PACE
Evidence about the obtaining of the confession
the court is OBLIGED to hear evidence about the obtaining of the confession (as prosecution must prove the confession was not obtained in the manner forbidden in s76)
Where defence objects to admissibility of a confession under s76
s76 requires 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”
Where defence objects to admissibility of a confession under s76, when should the court hear this evidence?
Obliged (like CC) to determine such an issue as soon as it is raised, and, if necessary, hear evidence on the obtaining of the confession.
s78 PACE
evidence on issue of admissibility
the court has a discretion to hear evidence on the issue of admissibility, but is not obliged to do so (and thus may rule on the matter following submissions).
Up to justices’ discretion when they determine admissibility.
(Evidence about the obtaining of the confession)
Lloyd LJ said that, in some cases, the justices should deal with an application to exclude evidence when it arises, but in other cases they may leave the decision until the end of the hearing.
When should the court hear the case [notes]
There is no general rule: other than the object should always be to secure a trial which is fair and just to both sides.
1) Halawa v Federation Against Copyright Theft: it is generally better for magistrates to hear all the prosecution evidence (including the disputed evidence) before considering s78 application to exclude.
2) But leaves justices with difficult task of ‘putting out of their minds’ prejudicial evidence they have heard but then decide is inadmissible
Closing speeches
- When last D has closed his case, the bench will listen to closing speeches.
After defence had adduced any evidence they wish, and after any rebuttal evidence, Prosecution ONLY entitled to make a closing speech WHERE
i) D is REPRESENTED;
OR
ii) D introduced EVIDENCE OTHER THAN FROM HIMSELF (whether or not represented) -
Can prosecution make a closing speech when: an unrepresented D who does not rely on any evidence other than what he says himself in the witness box.
NO!
What can the court do when 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
Authorised court officer (previously justices’ clerk)
Person authorised under section 28 of the Courts Act 2003 (previously ‘justices’ legal adviser’)
Functions of authorised court officers
- 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
- 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.
Crim PR 24.14 provides a further summary of the duties of authorised court officers. These include:
- drawing the court’s attention, before the hearing begins:
i) What the prosecution alleges;
ii) what is agreed;
iii) what is in dispute;
iv) 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).
Crim PD VI, para. 24A.5 (see Supplement, CPD.24A), provides a list of matters on which the authorised court officer may legitimately advise the magistrates:
(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 in any given case; and
(g) other issues relevant to the matter before the court
SUBMISSION OF NO CASE TO ANSWER
After the conclusion of Prosecution Case, on:
- D’s application; OR
- Court’s own initiative,
the court:
a) MAY acquit on the ground that the Prosecution Evidence is INSUFFIENT for any reasonable court properly to CONVICT;
BUT
b) MUST not do so unless the Prosecutor has had Opportunity to Make Representations
What is no case to answer?
prosecution evidence is insufficient for any reasonable court properly to convict
What is the test for no case to answer:
The test is taken from the case of R v Galbraith
If there is no evidence =
that the alleged crime has been committed then there is no difficulty, judge will stop the case;
The test is taken from the case of R v Galbraith:
is whether the prosecution evidence is so tenuous that, even taken at its highest, a jury properly directed could not properly convict on it.
The test is taken from the case of R v Galbraith (extra notes)
Difficulty arises where is some evidence, but is of a tenuous character, e.g. because of inherent weakness or vagueness, or because is inconsistent with other evidence
Where judge comes to conclusion that the Prosecution Evidence, when taken at its highest, is such a jury properly directed could not properly convict upon it = it is his duty, upon a submission being made, to stop the case (i.e. he MUST stop the case).
Where, however, the Prosecution Evidence is such that its strength or weakness depends on the view to be taken of a witness’s Credibility/Reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to conclusion that D is guilty = the judge should allow the matter to be tried by the jury/bench. - so GENERALLY, where relates to credibility of a witness, court should not normally grant the submission of no case to answer except in the clearest of cases (Barking & Dagenham Justices, ex p DPP).
does P have right to make representations if a submission of no case to answer is made?
YES, THIS IS IMPORTANT
Does the justices have to give reasons for rejecting a submission of no case to answer?
No – this is not an obligation!
- When the justices are provisionally minded to uphold the submission of no case to answer, they should first call on the prosecution to address them
- so that the prosecutor has an opportunity to address the court to show why the case should not be dismissed.
- This means that the prosecution have the right to reply to the defence submission that there is no case to answer unless, having heard the defence submission, the magistrates decide to rule that there is a case to answer and indicate this fact to the prosecutor.
Course of trial: Court’s duty to give reasons
If it’s a guilty verdict, does the court have duty to give reasons?
YES
- Crim PR 24.3(5) (see Supplement, R24.3) provides that the court, if it convicts the accused (or makes a hospital order instead of doing so), must give ‘sufficient reasons to explain its decision’.
- This does not require reasons in the form of a judgment, or reasons in any elaborate form. Can normally be done in a few simple sentences.
If it’s a not guilty verdict, does the court have duty to give reasons?
NO
Course of trial: Court’s duty to give reasons
Guilty verdict: what should the court ensure D understand
- Why he has been convicted and usually the reasons can given in a simple and straightforward manner.
Care must be taken when formulating reasons
in JS (A Child) v DPP, magistrates reasons for conviction said the ‘accused did not say anything to persuade us that he did not tamper with the moped’
= conviction quashed, because this created the impression that they had convicted the accused because he had not proved his innocence (thus reversing the burden of proof)
Guilty of a Lesser Offence: does MC have power to find D guilty of a lesser offence
NO!
The justices are restricted to reaching a decision of guilty or not guilty on the charge actually before them.
there are exceptions to this rule
uilty of a Lesser Offence: MC power to find D guilty of a lesser offence: exceptions
1) Certain driving offences: s24 Road Traffic Offenders Act 1988, permits MC to find D not guilty of the offence charged but guilty of an alternative offence
E.g. Convicting for “Careless driving” when D charged with “Dangerous Driving”; being “in charge of a vehicle when unfit to drive through drink/drugs” instead of “driving when so unfit”).
2) Theft Act 1968, s12A(5): provides that on a charge of “Aggravated Vehicle Taking”, an alternative of “TWOC” may be entered.
Eg Of course, the Prosecution can choose to charge the D with Alternative Offences; o E.g. ABH and Common Assault
Guilty of a Lesser Offence: MC power to find D guilty of a lesser offence (notes)
- If the court convicted the D on the more serious offence = no verdict would be entered on the alternative. The alternative offence would simply be adjourned generally.
- If the D successfully appealed against the conviction on the more serious offence, the court could, in due course, bring the alternative lesser offence back to court
