#19566 - 10. Criminal Litigation 2023 2024 Summary Trial Procedure - BPC Criminal Litigation (formerly BPTC) 2024/2025

• Where the accused has entered a not-guilty plea, a pre-trial hearing takes place before the court begins to hear evidence. This is where the Mags’ may decide questions as to the admissibility of evidence and other questions of law. Such rulings will be made where the parties have been given the opportunity to make representations and it is in the interest of justice to make the ruling.

• If the accused is unrepresented, they must be given the chance to apply for legal aid.

• The ruling is binding until thes case against the accused is disposed of e.g acquitted, convicted or prosecutor does not proceed. But it may be discharged or varied if it is in the interests of justice to do so and the court has given the parties the opportunity to be heard. A party can apply for it to be discharged or varied only where there has been a material change in circumstances.

  • It is not sufficient that a different bench would have reached a different conclusion, there must be a compelling reason to vary/discharge the ruling.

• There is no provision for appeals, however, an error of law 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.

Where the prosecutor is absent:

• If the court has received evidence, it can deal with the case as if the prosecutor were present; and in any other case it can enquire into the reasons for the prosecutor’s absence and if satisfied there is no good reason, exercise its power to dismiss the allegation.

Proceeding to trial where the defendant is absent:

Rule:

• The court must proceed as if they were present and had pleaded not guilty (unless a plea already has taken place):

  • Unless D is under 18;

  • The court must be satisfied that any summons or requisition was served on D a reasonable time before the hearing, or in a case which has been adjourned, D had reasonable notice of where and when it would resume.

  • This is subject to restrictions on passing sentence in D’s absence.

• The court must exercise its power to issue a warrant for D’s arrest and detention if it passes a custodial sentence and may exercise this power in any other case.

Commentary:

• Where the prosecutor appears but the accused does not, and the accused is 18, the court must proceed unless it appears to the court to be contrary to the interests of justice to do so. The general rule is that the court will proceed as if the accused pleaded not guilty. If the court does not proceed it must give reasons for not doing so.

• The burden is still on the prosecution to prove the case to the normal criminal standard.

• The court shall not proceed if it considers that there is an acceptable reason for his failure to appear, but the court is not required to inquire into the reasons when deciding. When they decide not to proceed the court must state their reasons.

• An example of an involuntary absence includes D being excluded from the court building by security staff because of disorderly behaviour.

Failure of parties or witnesses to appear:

• If 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.

• The court may either set a date, and must do so when the accused is remanded, or leave the time and place to be determined.

• 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.

Discretion not to proceed on account of delay:

• Even where proceedings were commenced within time, a Mags’ court has 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.

• Where the delay is deliberate, it is likely to amount to an abuse of process.

• Where deliberate delay cannot be shown, the defence may nonetheless apply for the Mags’ to exercise their discretion not to proceed if:

  • There has been inordinate or unconscionable delay due to the prosecution’s inefficiency, and

  • Prejudice to the defence from the delay is either proved or to be inferred.

• If delay was in part attributable to the accused’s own conduct, an application to stay is unlikely to succeed.

Witnesses whom the prosecution must call:

• If a prosecution witness attends, they must be called or at least tendered for XX.

• If a bundle of witness statements is served, the prosecution must call these witnesses.

• If the prosecution chooses not to call a particular witness, the court can compel them to do so.

• If they are conducting their case in a way that the accused cannot obtain a fair trial, the court has the power to dismiss the case as an abuse of process.

• The justice may call witnesses themselves.

Written evidence at summary trial (s.9 CJA 1967):

• Statement must contain the name and, if under 18, the age of the witness, must be signed and contain a statement of truth.

• A copy must be served. If the other party puts in a counter notice within 5 days of service, it may not be used.

• The court may still require the maker of the statement to attend to give oral evidence.

• It will either be read in full to the court, or at the court’s discretion, parts of it may be summarised.

Formal admissions (s.10 CJA 1967):

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

• Formal admissions become conclusive evidence of the fact admitted and can be made at any time during the trial.

PACE:

S.78:

• Where the defence object to proposed prosecution evidence, the mags’ can deal with it at any stage, this is for their discretion. However, a delay may be unfair to the defence.

• The court has discretion to hear evidence but is not obliged to do so.

• In most cases, it is generally better for the magistrate to hear all the prosecution evidence before considering an application to exclude under s.78.

S.76:

• The court is obliged to hear evidence about the confession.

• 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 confessional unreliable.

Closing speeches:

• The prosecution may make a closing speech 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 closing speech, they will always have the last word.

Role of the legal adviser:

• The legal adviser is authorised:

  • To give advice to the mags’ about matters of law on questions arising in connection with the mags’ function; and

  • To bring attention to the mags’, at any time appropriate, any point of law that is or may be involved in any question so arising.

  • To ask questions of a party or a witness on the court’s behalf to clarify representations or evidence.

  • Where a party is unrepresented, to assist that party to understand what the court...