Unit 8 Summary Trial Procedure

Question 1

Will a magistrates court proceed in D’s absence in a summary trial?

Answer 1

General rule: the court must proceed as if the defendant were present and had pleaded not guilty (unless a plea already has been taken)

The general rule is subject to the court being satisfied that:

• (1) any summons/requisition was served on D reasonable time before hearing
• (2) if hearing adjourned, D had reasonable notice of where/when would resume

Exception:

• D is U18 (then court is not obliged to proceed in D’s absence)
• If D is an adult, it must not be contrary to the interests of justice to proceed in his absence

Question 2

Why does it matter whether it is in the interests of justice to proceed in D’s absence? What factors will the court consider in answering this question?

Answer 2

It matters in the case of adult Ds. If it is contrary to the interests of justice to proceed in Ds absence, then the court will depart from the general rule that it will proceed in Ds absence.

Factors to consider:

• (1) reasons for absence
• (2) reliability of supporting info/evidence
• (3) date on which the reasons for absence became known to A, and what action A took in response to those reasons

Question 3

Will the court proceed in D’s absence if D has a good reason for being absent?

Answer 3

No, but the court will not be required to inquire into the reasons before deciding

Examples of involuntary absence (i.e. should not proceed):

(1) excluded from court building due to disorderly behaviour

(2) commit offence and arrested on way to court

Question 4

In what circumstances must the court state its reasons either for or against deciding to proceeding in D’s absence?

Answer 4

If D is 18+ → court must state reasons for not proceeding in absence

If D provides a medical note → court must state reasons for proceeding in absence

Question 5

What can the court do if it decides not to proceed in Ds absence?

Answer 5

Three options:

(1) simply adjourn or

(2) may issue AW, but only if certain requirements are satisfied:

• (a) offence is punishable w/ imprisonment or
• (b) the court, having convicted D, proposes to impose a disqualification and the summons or requisition was served on the accused within a reasonable time before the 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

(3) If the offence is indictable, then the prosecution can also choose 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.

Question 6

What can the court do if D, P or Ws are absent?

Answer 6

The court has a discretion to adjourn.

If it adjourns the normal rules apply: i.e. it may either set a date for the hearing or leave it TBG (unless A is remanded in custody, in which case a date has to be set).

Question 7

What must the court do if it passes a custodial sentence when the Defendant fails to show for trial?

Answer 7

The court must exercise its power to issue a warrant for the defendant’s arrest and detention if it passes a custodial sentence.

Question 8

What power does the court have if the proceedings have been delayed?

Answer 8

This is only really relevant where the delay is (or is at least claimed to have been) caused by P.

• If there has been deliberate delay by P, this is likely an abuse of process and the Mags may exercise their discretion to refuse to try the case (and acquit D).
• D may also apply for the mags to exercise this discretion if (1) inordinate/unconscionable delay due to P’s inefficiency, and (2) prejudice to D from delay is proved/to be inferred

Obviously, if the delay partly attributable to D’s conduct, application unlikely to succeed

Question 9

Can the prosecution make an opening speech as of right? What is the purpose of the opening speech?

Answer 9

• Yes
• Purpose = explain briefly (not in detail) what case about (incl. relevant legislation or case law)
• N.B. if the hearing was adjourned for a long time, a second open speech to remind the court is ok

Question 10

Outline the steps of the trial in mags.

Answer 10

This is an example. Obviously there may be more/fewer Ds.

(1) Prosecution Case

• D1 NG plea
• D2 NG plea
• Issues summarised by legal advisor
• P opening speech
• Court may ask D to ‘concisely identify what is in issue’ at this stage
• P calls evidence (including witnesses) in any order P deems fit
• D1 cross-examines P’s witnesses
• D2 cross-examines P’s witnesses
• Submission of no case to answer
• P response to submission

(2) Defence Case

• D1 EIC
• D2 is cross-examined by D1
• P cross-examines D1
• D1 calls alibi witness
• D2 cross-examines alibi witness
• P cross-examines alibi witness
• D2 EIC
• D1 cross-examines D2
• P cross-examines D2
• P closing speech
• D1 closing speech
• D2 closing speech

Verdict

Question 11

What happens if D either (1) fails to identify matters in issue or (2) significantly diverges from those issues identified during the case management stage?

Answer 11

The Mags have the power to:

• Limit duration of any stage of proceedings
• Limit Q-ing of Ws
• Impose sanctions upon D

Question 12

Can P choose not to call evidence?

Answer 12

No

Question 13

When is P obliged to call a W?

Answer 13

In principle, P has an unfettered discretion until case starts to determine outline of evidence to be given, subject to two restrictions:

(1) If P W attends court to give evidence, P obliged to call that W to give evidence if D requests (or at least tender W for CE)

(2) If P serves bundle of WSs on D prior to trial, P must call as Ws all people whose statements have been served

Question 14

What can the court do if P refuses to call a W (and what can it not do)?

Answer 14

It CANNOT compel P to call the W, but it can (if it considers that D cannot obtain a fair trial):

• (1) dismiss case as an AoP or,
• (2) in appropriate cases, call W themselves (very rare)

Question 15

What types of written evidence are there and what statutory provisions govern them? What is the difference between them?

Answer 15

(1) Written statements -> Criminal Justice Act 1967, s. 9

(2) Formal (written) admissions -> Criminal Justice Act 1967, s. 10

Difference between them: 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.

Question 16

Which rules are contained in Criminal Justice Act 1967, s. 10

Answer 16

Those governing formal (written) admissions

Question 17

Which rules are contained in Criminal Justice Act 1967, s. 9

Answer 17

Those governing written statements

Question 18

What must happen immediately prior to the commencement of a summary trial?

Answer 18

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. This will usually be based on the contents of the PET form that the parties are required to complete. If it is done by way of a ‘pre- court briefing’, it should be confirmed in court or agreed with the parties.

Question 19

In which circumstances does P have a right to make a closing speech in the magistrates?

Answer 19

If:

(1) A is represented or

(2) A (represented or not) has called evidence other than own testimony

Question 20

At what stage of trial do the magistrates rule on the inadmissibility of evidence?

Answer 20

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.

Question 21

Is the court obliged to hear evidence when considering the admissibility of evidence under s78?

Answer 21

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 so may rule on the matter following submissions on behalf of the parties). It remains a matter for the justices’ discretion when they determine admissibility.

Question 22

Must the court hear evidence when considering the admissibility of a confession under s 76?

Answer 22

Yes

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. (as the prosecution have to prove that the confession was not obtained in the manner forbidden by s. 76)

Question 23

What is the role of the justice’s clerk/legal advisor? Are their roles different in any way?

Answer 23

Role:

(1) Advise on matters of law

(2) Power to, at any time, bring any point of law to attention of justices

Their roles are the same, but the legal advisor should seek assistance from the clerk if a point of difficulty arises on which doesn’t feel qualified.

Question 24

What are the duties of the justice’s clerk/legal advisor?

Answer 24

(1) draw court’s attention (before hearing) to what is agreed / in dispute, and how parties plan to present their cases

(2) giving court legal advice when necessary

(3) assisting court in formulation and recording of reasons

(4) assisting A if unrepresented

(5) assisting court by noting substance of any oral evidence or representations, marking as inadmissible those which are ruled as such

(6) ensuring a record is kept of court’s decisions and reasons

(7) making any announcement other than verdict/sentence

N.B. The clerk may also ask Qs of Ws and the parties in order to clarify evidence and any issues, and must ensure that every case is conducted justly

Question 25

List the matters in respect of which a court officer/clerk may legitimately advise a magistrate.

Answer 25

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;

g. other issues relevant to the matter before the court.

Question 26

Can the magistrates find A NG as charged, but G of lesser offence?

Answer 26

No - unlike a jury they can’t generally do this

Exceptions:

(1) Careless rather than dangerous driving

(2) Vehicle taking rather than aggravated vehicle taking

Question 27

Can the court dismiss a case on the basis that there is ‘no case to answer’ of its own initiative?

Answer 27

Yes - ‘no case to answer’ can be raised by the defence (after the close of P’s evidence) but also at the court’s initiative

Question 28

Can the court decide that there is ‘no case to answer’ without giving P an opportunity to make representations?

Answer 28

No

Question 29

What is the test for determining whether there is “no case to answer”?

Answer 29

Test: no reasonable court could properly convict.

Question 30

Do justices have to give reasons for rejecting a submission of ‘no case to answer’?

Answer 30

No

Question 31

Should the justices take the credibility of P’s Ws into account in determining whether there is ‘no case to answer’?

Answer 31

No

N.B. in the CC the Galbraith test applies which states that the judge must take P’s evidence ‘at its highest’

Question 32

When (and to what extent) do magistrates have to give reasons for the conclusion that they reach?

Answer 32

• Must give ‘sufficient’ reasons if they convict, but no need to give a formal judgment
• A party can request more elaborate reasons
• No duty to give reasons upon acquittal (but they can choose to do so)

Question 33

Can the magistrates convict A of two alternative offences?

Answer 33

No