#19558 - 8. Criminal Litigation 2023 2024 Preliminary Hearings And Allocation - BPC Criminal Litigation (formerly BPTC) 2024/2025

• The prosecutor is required, as soon as practicable, and in any event, no later than the beginning of the day of the first hearing, to provide initial details of the prosecution case.

• Initial details are comprised of:

  • Where the accused was in police custody, a summary of the circumstances of the offence and the accused’s criminal record.

  • Where the accused was not in custody, a summary of the circumstances of the offence, any account given in interview, any witness statements, where available the material plea as to whether case should be tried in the Mags or CC, the accused’s criminal record, and the victim impact statement.

• If the prosecution fails to comply, it is open to the Mags to make a direction requiring the prosecution to comply. The court may adjourn the hearing but cannot dismiss the charge.

Remands:

• A remand in absence may take place if the accused:

  • Has consented (at an earlier hearing) to not being present at future remands;

  • Has a legal representative, though they need not be present in court;

  • Has not been remanded in absence on more than two consecutive occasions prior to the present application; and

  • Has not withdrawn consent.

• The accused may be remanded for more than eight clear days if the remand is on bail and both the accused and the prosecution agree to a longer period of remand.

Pre-Trial hearings:

• May consist of a single justice.

• The accused is asked whether they wish to be provided with legal aid, if so, the necessary arrangements must be made and legal aid obtained. The hearing may be adjourned for this purpose.

Preparation for trial hearings:

• A magistrates’ court must conduct a ‘preparation for trial hearing.’ The court may conduct one or more further case management hearings if:

  • The court anticipates a guilty plea;

  • It is necessary to conduct such a hearing in order to give directions for an effective trial; and

  • Such a hearing is required to set ground rules for the conduct of the questioning of a witness or defendant.

• The court must give directions for an effective trial.

• If the accused is present, the court must:

  • Satisfy itself that the accused understands credit for a guilty plea;

  • Take a plea;

  • Unless the accused pleads guilty, satisfy that the accused understands that, at the trial, they have the right to give evidence, that if they do not attend it may take place in their absence and if on bail, failure to attend court is an offence.

• Unless previously provided, the court is required to ascertain the name and DOB of the accused.

• These hearings will usually take place in public.

• Where there is a not guilty plea, the parties must identify the issues and tell the court. Evidence should be confined to those issues.

• A timetable for the trial should be set up.

Pre-trial rulings:

• Applies to cases that are to be tried summarily where the accused has entered a not-guilty plea.

• Mags may decide any question as to the admissibility of evidence and any other question of law. This may be raised by the defence, prosecution, or of the court’s own motion.

• Such rulings may be made only if the court has given the parties an opportunity to be heard and it appears to the court that it is in the interests of justice to make the ruling. The ruling is binding unless the case is disposed of.

• There is no provision for appeals unless there is an error of law, this may be appealed by way of case stated once there has been a final determination.

Proceeding to sentence:

• Where an accused attends the preliminary hearing over a live link and pleads guilty, the court can immediately proceed to sentencing the accused may continue to attend through the live link provided the court is satisfied that it is not contrary to the interests of justice for this to take place. The accused can give oral evidence over the live link only if the court is satisfied that it is not contrary to the interests of justice.

Ambiguous pleas:

• If the accused qualifies their plea, then the court should explain the relevant law and seek to ascertain whether the accused genuinely intends to plead guilty.

• If the plea cannot be clarified or the accused remains silent, a not-guilty plea should be entered on the accused’s behalf.

Accused’s decision whether to consent to summary trial:

• Trial on indictment:

  • Trial on indictment will mean that submissions on the admissibility on evidence can be made in the absence of the jury.

  • Defence are entitled to receive copies of the witness statements.

• Summary trial:

  • Shorter, less formal, and cheaper.

Failure to comply with the allocation procedure:

• Failing to comply with the statutory allocation procedure renders the proceedings a nullity where there is a real possibility that the prosecution or defence may suffer prejudice.

• If a guilty plea is not entered by the accused personally, that plea is to be regarded as a nullity.

• Once the case is sent to the CC and the prosecution's case is served, the accused must give a defence statement to the court and the prosecutor. It must include:

  • Nature of defence, including particular ones to be relied on;

  • Matters of fact on which the accused takes issue with the reasons why;

  • Matters of fact which the accused intends to rely on; and

  • Any points of law which the accused wishes to take, with any authorities relied upon.

• In cases tried summarily, there is no obligation to provide a defence statement. Where they choose to, this must be served within 14 days of initial prosecution disclosure. This can be extended by application of the accused. In the absence of a defence statement, the accused cannot make an application for specific disclosure.

• The justices have no power to find an accused not guilty as charged but guilty of a lesser offence unless:

  • Certain driving offences; or

  • An accused who is charged with aggravated vehicle taking may instead be convicted of the lesser offence of vehicle taking.

• If the court convicts, it must give sufficient reasons to explain its decision. This is not expected to be in the form of a judgment or in any elaborate form. If a party wishes to obtain more detailed reasons, it can make an application.

• If the court acquits the accused, it may give an explanation of its decision.

Plea before venue:

• This procedure must be complied with before any evidence is called for purposes of a summary trial, or the case is sent for Crown Court trial and should take place in the presence of the accused:

  • The charge is written down and read to the accused;

  • The court explains that the accused may indicate whether the plea would be guilty or not guilty if the offence were to proceed to trial. The court should explain that, if the accused indicates a plea of guilty, the proceedings will be treated as a summary trial at which a guilty plea has been tendered, and that the accused may be committed for sentence under the SA 2020, s. 14, if the court is of the opinion that its powers of punishment are inadequate or if the dangerous offender provisions apply;

  • The court asks the accused to indicate whether (if the offence were to proceed to trial) the plea would be guilty or not guilty;

  • If the accused indicates a guilty plea, the court proceeds as if the accused had pleaded guilty at summary trial and so moves on to the sentencing stage; but

  • If the accused indicates a not guilty plea, an allocation ('mode of trial') hearing must take place. If the accused fails to give an indication of intended plea, the court will regard this as an indication of an intention to plead not guilty and so will go on to determine allocation.

Absence of accused:

• The accused must generally be present and when allocation is determined. It may take place in the absence of the accused if:

  • The accused it represented;

  • The court considers that, by reason of the accused's disorderly conduct before the court, it is not practicable for proceedings to be conducted in the presence of the accused; and

  • The court considers that it should proceed in the absence of the accused.

• The court has the power to proceed with the plea before venue hearing or allocation in the absence of the accused where they do not appear at the hearing and any one of these four conditions is met:

  • A legal representative of the accused is present at the hearing and signifies the accused's consent to the court proceeding in the accused's absence;

  • A legal representative of the accused is present at the hearing, and the court does not consider that there is an acceptable reason for the accused's failure to attend;

  • It is proved to the satisfaction of the court that notice of the hearing was served on the accused within what appears to the court to be a reasonable time before the hearing, and the court does not consider that there is an acceptable reason for the accused's failure to attend; or

  • The accused has appeared on a previous occasion to answer the charge, and the court does not consider that there is an acceptable reason for the accused's failure to attend; and

• The court must be satisfied that it is not contrary in the interests of justice to proceed in the absence of the accused.

Allocation:

• Procedure:

  • Both the defence and prosecution will be offered the opportunities to make representation.

  • The prosecution must inform the Mags’ of any previous convictions.

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