#16104 - Trial - BPC Criminal Litigation (formerly BPTC) 2024/2025

Trial

(1) SUMMARY TRIAL in magistrates’ court

• Summary trial: could be:

  • summary only offences;

  • OR either-way offences (where (a) D has not elected trial in Crown Court & (b) magistrates considered the case suitable for summary trial).

• Summary trial takes place before either:

  • (a) A ‘bench’ of 2 or 3 lay magistrates (‘JP’s, unpaid volunteers).

  • OR (b) before a single District Judge.

  • A justices’ clerk (‘court clerk’/’legal adviser’) provides legal assistance to the bench with relevant law and procedure; takes no part in deciding a verdict; is not required to be present when a District Judge is residing.

• Bench/District Judge = tribunal of fact and law. Hence will have to put ‘put out of their mind’ any inadmissible evidence.

• CrimPR 24 contains procedural requirements.

SUMMARY OF PROCEDURAL STEPS:

• (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: to magistrates from Justices’ Clerk/legal adviser (r14.15(2)(b)).

• (12) Magistrates/District Judge Retire to Consider Verdict

• (13) Verdict: If guilty, court must give sufficient reasons to explain decision (r24.3(5)).

The role of the justices’ clerk/Legal Adviser [D22.80-81]

• There is a distinction between ‘clerks’ in the strict sense of the word and the ‘legal advisers’ who form part of the court staff.

• The function of a clerk in court is the same whether he is a court legal adviser or the actual clerk to the justices, although a legal adviser may (and ought) to seek assistance from the clerk if a point of difficulty arises on which the adviser does not feel qualified to advise the magistrates.

• Statutory functions of justices’ clerk –s3 Courts Act 2003:

  • Functions include: giving advice to any/all of the JPs about matters of law (including procedure and practice), on questions arising in connection with the discharge of their functions, including questions arising when the clerk is not personally attending on them.

  • The powers of a justices’ clerk include: at any time when he thinks he should so do, bringing to the attention of any/all the JPs any point of law (including procedure and practice) that is or may be involved in any question so arising.

• CrimPR 24.15, summary of duties of justices’ legal adviser, INCLUDING:

  • Drawing court’s attention, before hearing begins, to:

    • What the prosecution alleges;

    • what is agreed;

    • what is in disputed;

    • 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, as 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 he is unrepresented

  • Assisting the court by making a note of the substance of any oral evidence or representations; marking as inadmissible any parts of written statements introduce in evidence that are ruled admissible;

  • Ensuring a record is kept of court’s decisions and reasons for them

  • Making any announcement (other than of verdict or sentence)

• CrimPD, list of matters on which the clerk or legal adviser may advise the magistrates

  1. Questions of law

  2. Questions of mixed law and fact

  3. Matters of procedure and practice

  4. 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)

  5. Any relevant decisions of the superior courts or other guidelines;

  6. The appropriate decision-making structure to be applied in any given case;

  7. Other issues relevant to the matter before the court.

• Legal adviser is also required to assist the court as to formulation and recording of reasons , where appropriate.

• Clerk may also ask questions of witnesses and the parties, in order to clarify the evidence any issues in the case;

• They must ensure that every case is conducted justly

Before trial, justices’ clerk must draw court’s attention to:

• What the prosecution alleges;

• what is agreed;

• what is in dispute;

• what the parties have said about how they expect to present their cases;

Start of the Trial (D22.36)

• If a plea was not entered on an earlier occasion accused is asked to enter a plea.

• If the accused entered a not guilty plea on earlier occasion justices clerk will ask the accused to confirm that plea.

(1) Legal arguments (pre trial hearings/rulings)

• There is no requirement for legal arguments to take place before trial starts; but often makes good sense. Because prosecution will want to know what can be referred to in the prosecution opening speech.

• Also, if the legal argument is such that losing the argument would leave the prosecution with insufficient evidence to continue (eg where a confession is challenged where that confession is the only worthwhile evidence in the case) makes sense to deal with this at the start.

• Exactly when a legal application is made = a matter for discretion of bench/District Judge.

• S8A MCA 1980 allows for pre-trial hearings i.e. hearings before any evidence is called at trial where accused has entered a not guilty plea (or before court considers whether to make a hospital order if accused may be unfit to plead).

  • 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

  • (1) both parties have been given opportunity to make representations; AND

  • (2) it appears to court to be in the interest of justice to make the ruling.

• if the D is unrepresented, he must be given opportunity to apply for legal aid before any ruling is made.

• A pre-trial ruling can be made on application of defence or prosecution, or of the court’s own motion

• S8B(2): Any ruling made at a pre-trial hearing is binding until the case is disposed of (i.e. if accused is acquitted/convicted or prosecutor decides not to proceed or case is dismissed).

• S8B(3): However, a pre-trial ruling can be can be varied or discharged (on application or of court’s own initiative) IF:

  • (1) in interests of justice &

  • (2) parties have been given opp to be heard; &

  • (3) A party can apply for discharge/vary of ruling ONLY if there has been a material change of circumstances since the ruling was made (or since a previous application to vary/discharge was made), eg new evidence, or if something was not drawn to the attention of the court when it made its ruling.

    • [[BECAUSE: it will not be in the interests of justice to vary/discharge the ruling unless there is changed circumstances/fresh evidence, it is not sufficient that a different bench reaches a different conclusion on the same material].

  • NB, there is also a common-law rule allowing variation/discharge of pre-trial ruling: though this will only be relevant in a case not covered by ss8A-8B (which ‘bite’ only once the decision has been made that a summary trial will occur).

• Magistrates have discretion re when to determine questions of admissibility of evidence (or other incidental issue) [[this material is repeated below under ‘objections to prosecution evidence’]]

  • So they can rule on a s78 application (1) when it arises OR (2) hear all the evidence (including the disputed evidence relating to the legal argument) before ruling on admissibility.

  • However, delaying determination of a question of admissibility until after conclusion of prosecution evidence may be unfair to the defence the interests of justice 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;

• Delay may not be desirable ESPECIALLY where the disputed evidence is a confession which forms the main evidence against a D.

  • The accused will not be able to give evidence about alleged irregularities in the obtaining of a confession, unless he testifies in his own defence, which will expose him to XX about the general issues

• Another reason against delay: And defence advocate, when deciding what defence evidence to call, ought to know what crucial evidence, such as a confession, is to be part of the prosecution case.

(2) prosecution...