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.