Thursday 14 December 2006

After a seasonal Christmas quiz we turned to an examination favourite, the mode of trial hearing.

Where a person aged 18 or over is charged with an offence triable either way, s18(2) MAGISTRATES’ COURTS ACT 1980 requires that before any evidence is called, mode of trial proceedings must first be held to determine whether the accused will be tried summarily or on indictment. So this hearing is simply to decide on the venue for the trial, not the guilt or innocence of the accused.

The procedure is governed by ss 17A, 17B and 17C MAGISTRATES’ COURTS ACT 1980 (as amended by the CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996) and ss 18-21 of the 1980 Act, and in summary, is as follows.

The clerk confirms that Part 21 CRPR (it’s all to do with advanced disclosure, and comes later) have been complied with, and then reads the charge to the accused who is then asked to indicate how he would answer the following hypothetical question:

“If the offence were to proceed to trial, would he plead guilty or not guilty?”

Before being asked the question, the court will explain to the accused in ordinary language that if he indicates a guilty plea, the magistrates’ will proceed to sentence him and deal with him as if he has been found guilty and therefore there will be no trial and no evidence will be called.

Where the accused pleads guilty the case proceeds as a summary trial and the magistrates can either sentence the accused or commit him for sentence to the Crown Court where the conditions laid down by s38 MAGISTRATES’ COURTS ACT 1980 are satisfied.

Where the accused indicates that he intends to plead not guilty, the court will proceed to deal with mode of trial under s18(1) of the 1980 Act.

1. The prosecution and defence make representations as to which mode of trial (summary or on indictment) would be the more appropriate.


2. The magistrates consider which mode of trial is best suited to the case, bearing in mind:

• representations made by the prosecution and defence;


• the nature of the case;


• circumstances which may make the case one of a serious character;


• whether the sentence which could be imposed by a Magistrates’ Court would be adequate; and


• any other circumstances which make the case more suitable for one method of trial rather than the other.

1. If the magistrates decide that the offence is suitable for summary trial, the clerk tells the accused of the court’s view. He must then tell the accused that, if he consents, he can be tried by the magistrates but that he is able to elect trial by jury instead. The accused must also be told that if he is tried by the magistrates and found guilty, information about his character and antecedents will be obtained, and that if; because of these, the magistrates consider that their powers of punishment are inadequate, they may commit him to the Crown Court for sentence. NB This procedure is mandatory; failure to follow it amounts to procedural ultra vires and any conviction made in subsequent summary proceedings is liable to be quashed: R v Kent Justices ex parte Machin [1952]; R v Horseferry Road Justices ex parte Constable [1981].


2. The clerk then puts the accused to his election by asking the accused whether he wishes to be tried by the magistrates or before a jury. Only if the accused consents may the magistrates proceed to summary trial; otherwise s20 requires them to send the matter to the Crown Court. Note that if there is more than one accused. then where the magistrates put the accused persons to their election as to summary trial or trial on indictment the election of one does not bind the other(s). So if; for example, two accused are charged with (for example) theft (an offence triable either way), and the magistrates are prepared to try their case and thus they are put to their election, one may accept summary trial and the other trial on indictment. Consequently they will have separate trials, even though on the facts a court would not be prepared to agree that they be tried separately: this is the effect of the judgment of the House of Lords in R v Brentwood Justices ex parte Nicholls [1992].


3. If the magistrates consider trial on indictment is more appropriate, their decision is communicated to the accused and committal proceedings follow (probably at an adjourned hearing).

The accused should normally be present during mode of trial proceedings but the court may proceed in his absence if:

• his disorderly conduct makes it impracticable to continue in his presence; and


• there is a good reason for continuing in his absence;


• he is legally represented and consent to the proceedings continuing in his absence is indicated. In such cases, consent to summary trial, if offered, may be given by the accused’s solicitor or counsel.

The transfer of cases of SERIOUS AND COMPLEX FRAUD to the Crown Court without committal proceedings was provided for by a particular form of transfer proceedings introduced by the CRIMINAL JUSTICE ACT 1987. This allowed for such cases to be sent straight to the Crown Court on the basis that the DPP, or the Serious Fraud Office, or certain others, were satisfied that there was a case to answer. Section 53 CRIMINAL JUSTICE ACT 1991 extends the notice of transfer system procedure to offences of SEXUAL ASSAULT AND VIOLENCE INVOLVING CHILD WITNESSES. These include offences under the SEXUAL OFFENCES ACT 1956: s1 CHILDREN AND YOUNG PERSONS ACT 1933 and the PROTECTION OF CHILDREN ACT 1978. Where the system applies, the DPP is authorised to serve a notice of transfer provided three conditions can be satisfied:

• the evidence in relation to the offence is sufficient for the accused to be committed for trial;


• the child, whether as the victim or as a witness, will be called to give evidence at the trial; and


• out of respect for the welfare of the child, the case should proceed without delay to the Crown Court.

In practice, in the general run of cases, when the magistrates consider mode of trial, they also have regard to a number of cases which are known as “GUIDELINE CASES”. These are cases in which the Court of Appeal has given general guidelines as to the appropriate sentence for certain classes of offence. The magistrates are bound to consider whether the sentence which could be imposed by them would be adequate in all the circumstances and therefore the effect of the guideline cases has been of considerable importance in assisting the magistrates to determine the appropriate venue for trial. Here are two, with the latter one likely to appear in the case study:

R v Hardman [1982]. The Lord Chief Justice, Lord Lane, said in this case that breaking and entering of dwelling houses at night should not be tried in the magistrates’ court and he indicated that even for a person of good character, should they be convicted of entering occupied domestic premises an immediate prison sentence of 18 months was certainly not either excessive nor wrong in principle such as to found good grounds of appeal. As a result of this decision it is rare indeed to find a Magistrates’ Court deciding that a burglary of domestic premises at night is suitable for summary trial.

R v Barrick [1985]: the Court of Appeal dealt with theft from employers. As with the above, an immediate custodial sentence of 18 months – 3 years is not excessive.

Section 22 Magistrates' Courts Act 1980 produces an oddity in respect of criminal damage. Where the accused is charged with an offence contrary to s1(1) CRIMINAL DAMAGE ACT 1971, unless the offence involves damage or attempted damage by fire, the magistrates are required to hear prosecution and defence representations about the value of goods involved in the offence. Where the value of goods is considered to be less than £5,000, the magistrates treat the matter as a summary offence and the accused has no right to trial on indictment. Where the value is over £5,000, the offence is treated as triable either way and there is a mode of trial hearing.

Section 25(2) MAGISTRATES’ COURTS ACT 1980 provides that where mode of trial proceedings result in a decision for summary trial and the accused pleads not guilty, the magistrates may at any stage before the close of the prosecution case discontinue the trial and proceed to hold committal proceedings.

Such a procedure should be adopted where the prosecution case discloses that the circumstances of the offence are more serious than the magistrates at first realised, with the result that they no longer consider their sentencing powers adequate should there be a conviction.

Similarly under s25(3) the magistrates may at any stage of committal proceedings decide that the case is less serious than they originally decided and allow the accused the opportunity of summary trial. Here the magistrates must ask for mode of trial representations from the prosecution and defence and the accused must be informed of the availability of committal for sentence. Naturally any subsequent summary trial requires the accused’s consent.

Whether the accused has either pleaded guilty or has been found guilty after electing summary trial the magistrates are limited as to the sentence they may impose in respect of an offence triable either way:

If the offence is triable either way by virtue of its being listed in Schedule 1 MAGISTRATES’ COURTS ACT 1980, they may impose a fine of up to £5,000 and/or pass a sentence of up to six months’ imprisonment.

If the offence is triable either way because of a provision in the statute creating it, the maximum term of imprisonment which magistrates can impose is the lower of either six months or the maximum laid down in that statute. The maximum fine which can be imposed in these circumstances is the greater of either £5,000 or the maximum laid down by the statute (in the case of statutes passed after 1977 the maximum is as stated in the statute).

If sentence is passed in respect of two or more offences triable either way, such sentences may be imposed to run consecutively, but the total term of imprisonment must not exceed twelve months.

We covered this earlier.

Magistrates should not agree to summary trial of offences triable either way unless they are of the view that their limited sentencing powers are adequate in the event of a conviction. However, when making the decision to offer summary trial, the magistrates have knowledge only of what is alleged in the information and what has emerged during advocates’ representations as to mode of trial. In particular, the magistrates will not know about the character and antecedents of the defendant (this expression largely relates to previous convictions but also includes home, social and employment records).

Thus, having convicted an accused, the magistrates, who are then told of the defendant’s character and antecedents, may form the view that their limited sentencing powers are insufficient. In such a case s38(2a) MAGISTRATES’ COURTS ACT 1980 provides for committal of the defendant to the Crown Court for sentence, provided that he has attained the age of 18.

Under s42(1) POWERS OF CRIMINAL COURTS Act 1973, the Crown Court, when sentencing an offender committed for sentence under s38 of the 1980 Act, may impose any sentence which it could have imposed had he been convicted on indictment (this will often include the statutory maximum term of imprisonment for the particular offence, although in practice sentence will not be so severe).

The committal under s38 of the 1980 Act may be in custody or on bail, but the granting of bail at this point is comparatively rare as the fact of committal for sentence usually indicates the magistrates’ view that a substantial custodial sentence is warranted, and there is no right to bail because the accused has been convicted.

In addition to s38 of the 1980 Act, magistrates have the power to commit an offender to the Crown Court for sentence:

• on conviction for any imprisonable offence committed during the operational period of a suspended sentence of imprisonment imposed by the Crown Court; or


• on conviction for any offence committed during the period of a probation order or conditional discharge made by the Crown Court; or


• on conviction for any indictable offence while the offender is on licence having been released from prison on parole.

Section 56 CRIMINAL JUSTICE ACT 1967 supplements the above powers by providing that where the magistrates commit an offender for sentence in respect of an indictable offence, they may also commit him to be dealt with by the Crown Court for:

• any offence of which they have convicted the offender;


• breach of a suspended sentence of imprisonment passed by their own or any other Magistrates’ Court;


• breach of probation or conditional discharge order made by their own court or, with its permission, by any other Magistrates’

Under these provisions, the Crown Court does not deal with the offences for which there is a s56 committal as if there had been a conviction on indictment; it may only impose any sentence which the magistrates could have imposed had they dealt with the offence(s). The purpose of s56 is not to impose a more severe punishment on the offender, but simply to enable all his outstanding offences to be dealt with by one court.

Section 41 CRIMINAL JUSTICE ACT 1988 enables the Magistrates’ Court to commit for trial certain summary offences which arise out of the same facts or are connected with the offence which is being committed for trial at the Crown Court. Thus, for example, if a defendant is charged with theft of a motor vehicle and it is alleged that at the same time the defendant is driving whilst disqualified then it is possible for the court, in committing the theft for trial at the Crown Court, for the offence of driving whilst disqualified to be committed also. It is thus possible for one court to deal with the defendant for the purposes of sentence. However, if an accused pleads not guilty to the summary matter then the matter is sent back to the Magistrates’ Court for trial. There is, however, a proviso to this, namely that the summary offence is punishable with imprisonment or involves an obligatory or discretionary disqualification from driving and that the offence arises out of the circumstances which appear to be the same or connected with those giving rise to one or other of the either way offences.

Note that s41 Criminal Justice Act 2003 alters the above procedure radically. It is yet to come into force, and it is unlikely to do so before the examination. However, if it does I shall provide details for you.

On occasions the examiner will ask about the relative merits of trial in each court. Here are a few considerations for your client:

ON INDICTMENT

The jury: despite inconclusive evidence, most defence lawyers believe that the jury provides a better chance of acquittal, especially in cases turning on contested police evidence, or where magistrates are believed to be case-hardened (e.g. shoplifting).

The judge is legally qualified and is better suited to dealing with points of law and evidence.

The separation of function between judge and jury make arguments on admissibility of evidence much more effective. It is difficult for magistrates to ignore what they have heard when deciding the issue of the defendant’s guilt.

Directions are given by the judge to the jury in open court and thus are in themselves appealable whereas one does not know what matters the magistrates are taking into account since they do not give reasons.

Appeal to the Court of Appeal is sometimes seen as preferable to a mere rehearing by the Crown Court Judge on appeal from the magistrates.

The committal stage is sometimes seen as providing an extra “bite at the cherry” of getting a case dismissed.

Counsel may be assigned on legal aid whereas in the Magistrates’ Court any legal aid granted will extend only to a solicitor.

Marginal factors such as that the defendant may use the inevitable delay before trial to obtain some mitigating matters in the event of conviction, for example get a job, marry, become pregnant. Also despite clear evidence of guilt, there is always a possibility of a jury returning a “sympathy verdict”, or they may entirely disregard the apparently clear legal merits of the situation.

SUMMARY TRIAL

The delay of Crown Court proceedings - especially if the defendant is nervous or has been refused bail. However, delays of a number of months are now commonplace in some Petty Sessional Divisions because of shortage of court staff and in certain localities, subject to the number of cases committed to the Crown Court, it is possible to have Crown Court trials heard sooner than those which are tried in the Magistrates’ Court.

Costs in the Crown Court are considerably greater and even if the defendant is legally aided there may well be a contribution order or an eventual order for prosecution costs, so financial considerations cannot entirely be ignored.

Publicity. Whilst this is to some extent a local matter it is often likelier that there will be reporters in the Crown Court. This is an important factor where disgrace is more important than the penalty, for example a vicar convicted of shoplifting.

Ordeal. This is much greater for a nervous defendant in the formal atmosphere of the Crown Court.

There is no need to warn the prosecution of an alibi defence in the Magistrates’ Court but the prosecution may obtain an adjournment to check it.

Sentence is likely to be more severe in the Crown Court, especially after a long trial where the defendant is eventually disbelieved by the jury.

In the Magistrates’ Court an accused will usually have engaged a firm of solicitors to act on his behalf and will know the firm’s advocates and allied staff and the solicitor will be fully conversant with the facts. At the Crown Court, briefs delivered to counsel are often returned at a very late stage and there is thus no guarantee that the barrister selected by the solicitor will ultimately conduct the case, therefore the full facts might not be put to the court.

This was the last class before the holidays, so I shall take the opportunity to wish you all a very Merry Christmas ad a prosperous New Year. See you all again on Thursday 4 January 2007.

Thursday 7 December 2006

We were looking at when a summons may be issued.

(5) By s127 MAGISTRATES’ COURTS ACT 1980, the court may not try an information for a summary offence unless the information was laid within six months of the date of commission of that offence.

(6) An information may be amended at any stage of the hearing and no objection should be allowed to any defect in either substance or form, provided that the variation between the evidence and the information is slight and causes no injustice to the defendant. The provision is found in s123 MAGISTRATES’ COURTS ACT 1980. If, however, the variation is substantial then the court can allow an amendment but s123(2) MAGISTRATES’ COURTS ACT 1980 provides that a court should allow an adjournment if the variation takes the defence by surprise.

R v Sandwell Justices ex parte West Midlands Passenger Transport Board [1979] the court allowed a case to proceed where the information simply related to a defective tyre on the wrong wheel of a vehicle. In essence the vehicle had a defective tyre but the information simply placed it on the wrong corner of the vehicle, and there was no question of the defendant being misled, as the correct tyre was brought by the defendants into court.

Wright v Nicholson [1970] an information stated that an offence had occurred on a particular date. The defendant produced an alibi in relation to that date but was convicted by the Magistrates’ Court notwithstanding the prosecution’s error in the information. The conviction was of committing the offence “on a date in August”, despite the specific date in the information. On appeal the conviction was quashed because the variation was too substantial to permit a just trial.

The fundamental principle in deciding whether an amendment to an information should be allowed is found in R v Newcastle Up Tyne Justices ex parte John Bryce (Contractors) Ltd [1976]. The court held here that the court should seek to do justice between the parties.

(7) If an information is worded in such a way that it charges a person with an offence unknown to the law then it cannot subsequently be cured by an amendment. The same applies if an information is duplicitous, e.g. where a person is summoned to appear before the magistrates’ court on an information laid in relation to five separate incidents of indecent assault occurring in 1990.

DPP v McCabe [1992] the Divisional Court approved a single information alleging theft of 76 library books from South Glamorgan libraries, despite the fact that the books could have come from 32 libraries over more than a year. This decision seems to be in conflict with the analogous R v Bally Singh [1953], a case we shall cover later.

In the vast majority of cases brought before the Magistrates’ Court the police or a Crown prosecutor or a person authorised for and on behalf of the Crown Prosecution Service may lay an information before a justices’ clerk or a clerk to the justices. If the proceedings are started by the police the information should be laid by the Chief Constable or some person authorised on his behalf Commonly this is one of the senior officers in the prosecution department. A magistrate must then decide whether to issue a summons. A summons must not be issued if:

1. the offence alleged in the information is not known to the law; or


2. the information was laid out of time; or


3. any necessary consent to the prosecution (e.g. from the DPP or the Attorney General) has not been obtained; or


4. the court lacks jurisdiction.

Additionally the magistrate (or magistrates’ clerk) has discretion not to issue a summons if.

1. the prosecution appears vexatious or frivolous; or


2. the prosecution evidence is clearly inadequate (but note that the magistrate is under no duty to involve himself in a preliminary inquiry into the strength of the prosecution case).

A summons should set out the following:

(1) name and address of the accused;
(2) address of the court where he is to appear;
(3) day and time of his appearance;
(4) contents of the information(s) he is to answer;
(5) name and address of the informant; and
(6) signature of the magistrate/magistrates’ clerk who issued it .

Service of a summons may be effected by:

(1) personal service; or
(2) posting it to the accused’s last known or usual address.

Where post is used, the court must, before proceeding, be satisfied either that the summons came to the notice of the accused or that in the case of summary offences only it was sent by registered letter or recorded delivery service.

If the accused fails to appear in answer to a summons alleging a summary offence the count may:

• adjourn the proceedings – s10 MAGISTRATES’ COURTS ACT 1980;


• try the case in his absence – s11 MAGISTRATES’ COURTS ACT 1980; or


• adjourn and issue a warrant for the arrest of the accused – s13 MAGISTRATES’ COURTS ACT 1980.

Ss 10 and 11 are dealt with below.

A warrant for arrest may be issued only if:

1. the summons was served a reasonable time before the hearing; and


2. the information has been substantiated on oath (unless originally given on oath);


3. either the accused is a juvenile or the alleged offence is punishable with imprisonment or the magistrates have convicted the accused in his absence and propose to disqualify him from driving, and, in all cases, service is proved to the satisfaction of the court.

In the case of indictable offences a warrant may be issued provided that the information is in writing and substantiated on oath.

Instead of issuing a summons a magistrate (but not a clerk) may issue a warrant for arrest provided:

1. the information is in writing and substantiated on oath (or was originally given on oath); and


2. either the accused is a juvenile or his address cannot be sufficiently established for service of a summons or the offence alleged is punishable by imprisonment – s1(3)-(4) MAGISTRATES’ COURTS ACT 1980.

Under s11(1) MAGISTRATES’ COURTS ACT 1980 if the accused fails to appear at the time and place fixed for summary trial, then, at their discretion, the magistrates may proceed in his absence. Local practice in this respect varies greatly. A plea of not guilty is entered on the accused’s behalf and the prosecution then calls its evidence. Normally a finding of guilty follows but the magistrates must acquit should the prosecution case as presented be inadequate to found a conviction.

Where proceedings begin by the laying of an information and the issue of a summons, the magistrates may not hear a case in the accused’s absence unless they are satisfied that the summons was served on him a reasonable time before the hearing date or that he has previously appeared in answer to the summons when the case was adjourned.

Section 14 MAGISTRATES’ COURTS ACT 1980 assists the accused who is completely unaware of the existence of a summons (e.g. because it was sent to the wrong address) by providing that where a summons has been issued and the accused is tried in his absence, he may deliver to the magistrates’ clerk a statutory declaration of his ignorance until after the date of the commencement of the trial of the summons or proceedings. Such a declaration should be delivered within 21 days of the gaining of knowledge of the proceedings and has the effect of rendering the summons and resulting proceedings void. The information remains valid and this allows the prosecution process to restart.

If the absence of the accused is explained by medical evidence of unfitness to attend court, then the court must act judicially when exercising its discretion under s11 MCA 1980.

An accused person summoned to appear before a Magistrates’ Court to answer an information alleging a summary offence may be offered the opportunity to plead guilty by post – s308 CRIMINAL JUSTICE ACT 2003.

The MAGISTRATES’ COURTS (PROCEDURE) ACT 1998 revised the “pleading guilty by post” procedure. The Act allows the police to prepare witness statements (rather than just a statement of facts) and to serve them along with the summons. These witness statements are admissible as evidence unless the defendant objects. If the defendant fails to plead guilty by post or to attend court to plead not guilty, and so fails to object to the use of the witness statements as evidence, the court can proceed to try the defendant in his absence, the prosecution case being based upon the witness statements already served on the defendant.

As the system is used most commonly for driving offences, the Act makes provision for a printout from the Driver and Vehicle Licensing Agency to be admissible as evidence of previous convictions for traffic offences without the need to give the defendant advance notice of intention to refer to these previous convictions.

It should be noted that:

• at any time before trial the accused is entitled to withdraw his guilty plea; and


• the magistrates have a discretion not to accept a guilty plea under s12 (this might be used where a statement of mitigating factors disclosed matters which could amount to a defence).

s12A (following the amendments imported by the CJPOA 1994) provides that, where a defendant has pleaded guilty by post but then attends court, the court may, with his consent, proceed as though he were absent.

s11(3) MAGISTRATES’ COURTS ACT 1980 prohibits a court passing:

• a sentence of imprisonment, or ordering a suspended sentence to be activated;


• any sentence which requires the accused’s consent, i.e. community service or probation;


• imposing a conditional discharge which requires explanation;


• imposing disqualification unless the accused was present on an earlier occasion.

Where matters are triable either way, the MAGISTRATES’ COURTS (ADVANCE INFORMATION) RULES 1985 provide that the prosecution is obliged to serve a notice on the accused, as soon as practical after charge or service of the summons. explaining the entitlement to advance information. The rules relating to advance disclosure in offences triable either way and summary trials are covered later.

Where the plea is either one of ‘not guilty’ or it is unknown, the first appearance in the magistrates' court is known as an “early administrative hearing”. It relates only to summary offences, and takes place before a single justice or a clerk. The hearing does nothing more than decide upon eligibility for legal representation and the issue of bail.

Where there is expected to be a ‘guilty’ plea it is known as a first he\ring and takes place before a full bench, with a view to dealing with the case there and then.

PROCEDURE AT TRIAL – GUILTY PLEA.

• the prosecution outlines the facts of the case


• the defence make a plea in mitigation


• the court then proceeds to consider the sentence and may adjourn the proceedings to obtain pre-sentence reports where the offence is punishable with imprisonment.

PROCEDURE AT TRIAL – NOT-GUILTY PLEA.

(a) the Crown Prosecutor makes an opening speech;
(b) examination, cross-examination and re-examination of prosecution witnesses.
(c) The defence may submit that there is no case to answer because:

1. the prosecution have failed to establish an essential element of the alleged offence; or


2. the prosecution evidence has been so discredited by cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. If this is successful, the accused is found not guilty, otherwise the trial proceeds.

(d) the defence solicitor may make an opening speech, but, as he is normally allowed only one speech, it is usual practice to reserve this to the end of the defence case so that he may have the advantage of the “last word” .
(e) examination, cross-examination and re-examination of defence witnesses. The accused is competent but not compellable to give evidence. If he does he must be the first defence witness as to fact. Evidence from the accused must be received from the witness box – R v Farnham Justices ex parte Andrew Gibson [1991].
(f) Although the prosecution has no right to a closing speech (and the defence lose any right to a closing speech by making an opening speech), either party may, at the court’s discretion, be given a second speech. If so, the other party must be given a second speech and the defence must be allowed the final speech.
(g) The court’s decision, of guilty or not guilty, usually follows a retirement to consider the verdict.
(h) Under s142 MAGISTRATES COURTS ACT 1980, within 28 days of a conviction the magistrates may have “second thoughts” about the correctness of their decision and direct that the case be reheard before different magistrates. I have never heard of this in practice.

SENTENCING ON SUMMARY CONVICTION. As well as the general restrictions put on courts in passing particular sentences, extra restrictions apply when magistrates are imposing sentences in respect of summary offences.

Section 31(1) MAGISTRATES’ COURTS ACT 1980 limits the magistrates’ powers to the imposition of:

• a maximum period of six months’ imprisonment in respect of any one offence, whether summary or triable either way.


• If the defendant is found guilty of two or more summary offences on the same occasion the magistrates remain restricted to a maximum sentence of six months’ imprisonment.


• Likewise if the defendant is found guilty of one summary and one either way offence, the maximum sentence is one of six months’ imprisonment.


• If the defendant is found guilty of two or more offences triable either way on one occasion the maximum is raised to twelve months’ imprisonment.

The maximum fine (generally) in a magistrates' court is £5,000. we will consider sentencing later in more depth.

We now turn to an examiner’s favourite, namely mode of trial proceedings in respect of either-way offences.

Where a person aged 18 or over is charged with an offence triable either way, s18(2) MAGISTRATES’ COURTS ACT 1980 requires that before any evidence is called, mode of trial proceedings must first be held to determine whether the accused will be tried summarily or on indictment.

The procedure is governed by ss 17A, 17B and 17C MAGISTRATES’ COURTS ACT 1980 (as amended by the CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996) and ss 18-21 of the 1980 Act.

We will look at it next week.

Thursday 30 November 2006

We began this week with a continuing look at bail; a popular examination topic in the case study section. Bail is the release of a person subject to a duty to surrender to custody in the future.

The powers available to the custody officer to grant bail are determined by whether the suspect has been charged or not. We covered the non-charged person previously.

Where the suspect has been charged at the police station otherwise than on a warrant already ‘backed for bail’, the custody officer must decide whether to keep the suspect in custody until he can be brought before the Magistrates’ Court at the next sitting or whether to release the suspect either unconditionally or on bail: s38(1) POLICE AND CRIMINAL EVIDENCE ACT 1984 (as amended by s28 CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994).

This requires that the custody officer should release the suspect unless he has a reasonable belief that one or more of the grounds provided by s28(2) applies:

(a) the name and address of the suspect cannot be ascertained or the custody officer has reasonable grounds for doubting whether the name and address furnished by the suspect is his real name and address; or
(b) the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer bail; or
(c) in the case of a person arrested for an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from committing an offence; or
(d) where the suspect is charged with a non-imprisonable offence, the custody officer has reasonable grounds for believing that the suspect’s detention is necessary to prevent him from causing physical injury to any other person or from causing loss or damage to property; or
(e) the custody officer has reasonable grounds for believing that the detention of the suspect is necessary to prevent him from interfering with the investigation of offences or of a particular offence; or
(f) the custody officer has reasonable grounds for believing that the detention of the suspect is necessary for his own protection.

Where the custody officer decides that bail is appropriate, the suspect can be released either unconditionally or with conditions. Under s27 CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994, the officer has wide powers to impose conditions which are similar to those available to a court under s3 BAIL ACT 1976. The only limitation is that the police cannot require the suspect to live in a bail hostel.

Section 54 CRIME AND DISORDER ACT 1998 extends the power of the police to require a person to give security before being released on bail, removing the restriction only allowing them to do so if there is a reason to believe that the person is unlikely to remain in Great Britain. The rules are the same as for security from a court (see below).

Commonly imposed conditions:

 require the suspect to live at a specified address
 to observe a curfew
 regularly report to a police station
 surrender of a passport

Conditional bail is granted to overcome any objection to unconditional bail and the custody officer must be able to justify the conditions and note them in the suspect’s custody record.

The question of bail arises in a criminal prosecution where the court adjourns the proceedings for the case to be heard at a later date, or, when the case is partly heard and is adjourned for the lunch period, or overnight or for a longer period.

Bail granted in criminal proceedings is governed by the provisions of s4 BAIL ACT 1976 which gives the suspect a prima facie right to bail:

(a) at all stages of the prosecution until conviction;
(b) after conviction, where the court adjourns the case for reports;
(c) in a number of other circumstances, including for example, where the accused is before the magistrates’ in breach of a probation order.

Where the accused is charged with an offence punishable with imprisonment, the accused’s prima facie right may be suspended where one or more of the following conditions contained in Part 1, Schedule 1, Bail Act 1976 applies:

(a) the court is satisfied that there are substantial grounds for believing that if released on bail he would:

(i) fail to surrender to custody; or
(ii) commit an offence while on bail; or
(iii) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or some other person;

(b) the court is satisfied that he should be kept in custody for his own protection, or, if he is a juvenile, for his own welfare;
(c) he is already serving a custodial sentence for some other reason;
(d) the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by 1976 Act for want of time since the commencement of the proceedings against him;
(e) having been released on bail in connection with the proceedings for the same offence, he has been arrested for absconding;
(f) where the case has been adjourned for enquiries or a report, it appears to the court that it would be impracticable to complete the enquiries or make the report without keeping the defendant in custody.

In addition to the powers outlined above, Schedule, Paragraph 2A BAIL ACT 1976, as amended by s26 CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994, a defendant need not be granted bail where:

(a) the offence with which he is charged is an indictable offence or an offence triable either way; and
(b) it appears to the court that he was on bail in criminal proceedings at the date of the offence.

The CRIME AND DISORDER ACT 1998 has introduced a further restriction on an accused’s right to bail where he is charged with murder, or attempted murder, or manslaughter, rape or attempted rape. Where the suspect has a previous conviction for one or more of these offences, bail may only be granted where there are “exceptional circumstances” for doing so: s25 CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994, as amended by s56 of the 1998 Act.

Finally, the Criminal Justice Act 2003 creates a presumption that bail will be refused if the defendant fails to appear without good reason, or tests positive for a Class A drug & refuses to be assessed or refuses to address his addicition.

Where the accused is charged with an offence which is not punishable with imprisonment, for example, careless driving, the court is required to apply the conditions laid down in Part II, Schedule 1, 1976 Act.

A defendant need not be granted bail where:

(1) it appears to the court that having been previously granted bail in criminal proceedings, he has failed to surrender to custody in accordance with his obligations under the grant of bail and the court believes, in view of that failure, the defendant if released on bail would fail to surrender to custody;
(2) the court is satisfied that he should be kept in custody for his own protection or, if he is a child or young person, for his own welfare;
(3) he is already in custody in pursuance of any sentence of any court;
(4) having been released on bail in connection with proceedings for the present offence, he has already arrested for absconding.

In practice, bail is rarely refused where the accused is charged with a non- impressionable offence.

It is the duty of the court to consider whether bail is applicable. When considering the issue of bail, the 1976 Act grants the court an inquisitorial function, and, in theory, is required to enquire into the matter of bail in every case. In practice, where the prosecution does not object to bail being granted, the court is unlikely to formally consider the matter. During the early stages of the case, the Crown Prosecution Service will normally indicate that they propose to make an application to adjourn the case either to provide advanced disclosure or to prepare the committal papers.

Where the issues of bail is considered, the procedure will be as follows:

(1) The prosecution will put their observations to the court either through the Crown Prosecutor or by the police officer in charge of the investigation. The precise grounds of their objection to bail under the 1976 Act will be outlined to the court and where the accused has previous convictions, a copy will he handed to the court and to the defence lawyer. A police officer will give evidence and answer questions from the witness box. As the ordinary rules of evidence do not apply, evidence of the accused’s criminal record will become known to the magistrates, and, evidence may be heard by the court which, at trial, would offend the rule against the admission of hearsay or be ruled as inadmissible on the basis that it is mere speculation or opinion evidence.
(2) The defence is entitled to cross-examine the prosecution, although the witness may refuse to answer any question which may prejudice any police investigation of any criminal offence.
(3) The defence advocate may then address the court on the issue of bail. This should include a detailed consideration of the prosecution’s objections to bail and put forward reasons as to why the accused should be granted bail, including the accused’s willingness to accept any conditions that the court may impose.
(4) The court will then consider the application, taking into account the matters outlined in Paragraph 9, Part I, Schedule 1 to the 1976 Act. These matters include:

(a) The nature and seriousness of the offence and the probable method of dealing with the defendant for it

Whilst bail can be granted to a person accused of committing a serious offence such as robbery, common sense suggests that the more serious the offence the less likely it will be that the accused will surrender to custody or observe the conditions laid down in the granting of bail. Note the restrictions on the granting of bail to an accused, charged with rape, attempted rape, murder, attempted murder and manslaughter under s25 CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994, as amended by s56 CRIME AND DISORDER ACT 1998.

(b) The accused’s character, antecedents, associations and community ties

“Character” has a broad meaning in bail applications to include the accused’s previous convictions.

“Antecedents” includes the type of person with whom the accused socialises, lives with etc.

“Community ties” relates to how strongly the accused identifies with his local community, including whether he has family ties; regular work; house; mortgage; and how long he has lived in the area.

(c) The accused’s record if previously granted bail

It will be a strong argument in favour of granting bail where the accused has previously responded to bail. The presumption in favour of bail will be rebutted where the accused has previously committed offences whilst on ball.

(d) The strength of the evidence against the accused

At an early stage in the proceedings, it will be difficult to assess the strength of the evidence against the accused. ‘Whilst the prosecution will try to convince the court about the strength of their case, it is unlikely that the final results of the police investigation will be disclosed. The prosecution is unlikely to disclose the names of their witnesses and any forensic evidence will probably not be available at this stage. The defence will seek to undermine the prosecution case by submitting that the prosecution evidence against the accused is not strong and, by submitting, that, at trial, they will seek, for example, to have ruled inadmissible evidence of the accused’s confession or the exclusion of identification evidence.

The magistrates normally retire to consider the issue of bail and returning to court to announce their decision. A record must be made of the decision and, if bail is refused, the reason for the refusal must be recorded, and a copy given to the defendant.

It is quite common for the court to release an accused on bail subject that he complies with conditions specified by the court. By s3(6) BAIL ACT 1976 a defendant may be required by the court to comply with such requirements as appear to the court to be necessary to secure that he.

(a) surrenders to custody;
(b) does not commit an offence while on bail;
(c) does not interfere with witnesses or otherwise obstruct the course of justice;
(d) makes himself available for the purpose of enabling enquiries or a report to be made to assist the court in dealing with him for the offence.

The conditions imposed on a grant of bail will either be:
(1) sureties;
(2) security by the accused;
(3) miscellaneous conditions.

(1) Sureties

One of the most common conditions imposed by the courts is to require that a defendant should provide a surety. A surety is a person who agrees to pay all, or, part of a specified sum of money, if the defendant should fail to surrender to custody. The money is not called for in advance, but may be forfeited should the person bailed fail to surrender to custody. A surety will not be acceptable unless he is well known the defendant. Part of the surety’s obligation is to ensure that the defendant surrenders to custody.

In deciding the amount to be paid by the surety, the court will have regard to:

(a) the surety’s financial resources; and
(b) his character and any previous convictions; and
(c) his proximity whether in point of residence, or relationship to the person for whom he is to be a surety.

s55 CRIME AND DISORDER ACT 1998 amends s120 MAGISTRATES’ COURTS ACT 1980, and introduces a reformed procedure to determine whether the court should order the immediate and automatic forfeiture of a recognisance where the defendant fails to answer to bail. After declaring the recognisance to be forfeited, the court must issue a summons to the surety to appear before the court to explain why he should not pay the sum. The court may then exercise its discretion whether to order all, part of the sum should be paid.

(2) Security

Traditionally, a security has been required if it appeared to the court that it was unlikely that the accused would not remain in Great Britain and therefore not surrender to bail. In the event of the accused not surrendering to custody the deposited security was likely to be forfeited.

s54(1) CRIME AND DISORDER ACT 1998 amends s3(5) BAIL ACT 1976 by extending the practice of requiring a security from the accused or someone on his behalf whether or not he is likely to abscond within or outside Great Britain. The court is required to take note of the means of the defendant or the person giving the security.

In practice, securities are not taken.

(3) Other conditions

The court has wide powers to impose conditions of the accused to ensure that he answers to bail. Frequently imposed conditions include: the requirement that the accused lives at a specified address; that he submits to a specified curfew; and that he reports to a specified police station at certain times; that he surrenders his passport; and that he will not contact certain individuals, which usually relates to prosecution witnesses. s54(2) CRIME AND DISORDER ACT 1998 enables a court granting bail under s3(6) BAIL ACT 1976, to impose a condition that the accused should attend an interview with a legal adviser.

Until 1981 it was possible to make bail applications on each occasion when the person remanded in custody was produced to the court.

R v Nottingham justices, ex parte Davies [1980] decided that magistrates need not consider a full bail application after the initial remand unless there were new considerations relevant to bail which were not brought to the court’s attention at a previous hearing (a change of circumstance). Because a first bail application was made at short notice on brief instructions it was the court’s practice to permit an application at the first hearing and one further full ball application to the court thereafter. The position has now been changed by s154 CRIMINAL JUSTICE ACT 1988. This Act inserts into Part 11, Schedule 1 BAIL ACT 1976 an additional three clauses. It provides that if the court decides not to grant a defendant bail, it is the court’s duty to consider, at each subsequent hearing while the person is in custody, whether he ought to be granted bail. Section 154(2) states that at the first hearing after that at which the court decides not to grant the defendant bail he may support an application for bail with any argument as to fact or law that he desires (whether or not he has advanced that argument previously). Thereafter the court need not hear arguments as to fact or law to which it was referred previously. Thus the position now is that at the first and second hearings the defendant is entitled to make application for bail but thereafter he must show a change in circumstance to enable him to make a further bail application should the court remand in custody on the second occasion.

A change in circumstances sufficient to merit a further bail application need not be a major change.

R v Blyth juvenile Court ex parte G [1991] the Divisional Court held that, in the case of an 11 year old charged with murder, the fact that she had been moved from secure to non-secure local authority accommodation and then to a detention centre 46 miles away from her home (and the family of the victim) constituted a sufficient difference from the situation at the date of the previous bail application to entertain a further application. In practice parliamentary draftsmen appear to have overlooked the possibility that defendants may first appear before the court either on a warrant of further detention or an application by the Crown Prosecution Service for a remand for a period of up to three days in police cells to enable investigation and interrogation into further offences. If the police indicate that they wish a warrant of further detention then normally there will be no difficulty since a warrant of further detention does not come within the provisions of s154 CRIMINAL JUSTICE ACT 1988. If, however, the defendant has been charged with an offence then the provisions of s154 apply. A defendant may in practice not seek to make a ball application because if released he would simply be re-arrested by the police for offences which they are enquiring into. It is common, therefore, for the defence lawyers to agree a period in police custody. The provisions of s154 may therefore apply and the only application the person would thereafter get would be the automatic right under s154 of a second hearing which will in effect be his one and only application for ball. It is the practice in some courts for any application made by a duty solicitor or where a person is produced to the court at short notice to disregard that bail application for the purposes of s154. One should be most careful to ensure that one knows the court’s practice, as the consequences to any defendant can be profound.

A person refused bail (i.e. remanded in custody) must normally be brought before the court at intervals of not more than eight clear days. If the accused consents, he can be remanded in custody for a period of 28 days, although then his case will be further adjourned in his absence on a weekly basis. Section 128A MCA 1980 provides for remands in custody for more than eight days where the accused has already been remanded in custody by the Magistrates’ Court for the same offence, and the accused is before the court - but only if after giving the parties the opportunity to make representations, it has set a date on which it expects the next stage in the proceedings to occur (other than a further remand hearing), and only:

(1) for a period ending not later than that date; or
(2) for a period of 28 days, whichever is the less.

A remand for such a period does not affect the right of the accused to apply for bail during that period. Further, where a court is considering exercising the power conferred by s128A, it must have regard to the total length of time which the accused would spend in custody if it were to exercise the power. In the case of this extended period of remand in custody under s128A there is no question of the accused’s consent being necessary.

Under the CRIMINAL JUSTICE ACT 1982 the Crown Court has the power to hear a further application from a defendant who has been refused bail by a Magistrates’ Court. If, as will usually be the case, legal aid has been granted for the Magistrates’ Court proceedings this will also cover an application to a Crown Court judge in chambers. This is known as “Judge in Chambers” bail applications.

Where the magistrates have considered a full application the application is made on a simple printed form accompanied by the magistrates’ full hearing certificate to the Crown Court judge. The full hearing certificate is normally the form indicating that the defendant has exercised all his rights of making bail applications. Applications to the Crown Court judges for bail are usually heard swiftly; however, 24 hours’ notice is required to the Crown Prosecution Service and in practice very few cases are heard within 48 hours (although it is possible). The defendant has no right to be present at the hearing of his application which may be as fully argued as before the magistrates. If a Crown Court judge grants bail there are usually conditions attached to that bail. A problem subsequently may arise; s3(8) provides that where a court has granted bail in criminal proceedings that court or, where that court has committed a person on bail to the Crown Court for trial or to be sentenced or otherwise dealt with, that court or the Crown Court may on application:

(1) by or on behalf of the person to whom bail was granted, or
(2) by the prosecutor or a constable, vary the conditions of bail, or impose conditions in respect of bail which has been granted unconditionally.

Following s18 Criminal Justice Act 2003 the prosecution can now appeal to a judge of the Crown Court against the decision of the magistrates’ court to grant bail where for any offence punishable by imprisonment.

Under s7 BAIL ACT there can either be an immediate warrant or alternatively a warrant backed for bail where the defendant fails to appear. Absconding is punishable by up to three months’ imprisonment or a £5,000 fine, or by twelve months’ imprisonment or limitless fine by Crown Court. The offence is created by s6 BAIL ACT which provides that if a person who has been released on bail in criminal proceedings fails without reasonable excuse to surrender to custody he shall be -guilty of an offence.

We then turned to a rather large subject, that of trials. Over the coming weeks we shall be considering every aspect of a trial in both the magistrates’ court & Crown Court.

Summary offences may be tried only in a magistrates’ court. Offences which are triable either way can be tried in a Magistrates’ Court in circumstances which we shall cover later. In either case, the procedure used in a summary trial is the same and is largely provided for by the MAGISTRATES’ COURTS ACT 1980.

Magistrates’ Courts have jurisdiction to try summary offences committed within their respective counties (usually trial takes place in the Magistrates’ Court for the petty sessional area in which the alleged offence occurred). Additionally a Magistrates’ Court has jurisdiction over summary offences committed outside its county:

1. under the MAGISTRATES’ COURTS ACT 1980 s2(6), where in addition to an offence (either summary or triable either way) alleged to have been committed in the court’s county the accused is charged with any other summary offence wherever committed;
2. under the MAGISTRATES’ COURTS ACT 1980 s2(2), where it is “necessary or expedient” that a person charged be tried ‘jointly or in the same place as” another person; and
3. under s3 MAGISTRATES’ COURTS ACT 1980, offences committed within 300 yards of a county border and continuing offences begun in one county and completed in another may be treated as having been committed in either of the relevant counties. A similar rule applies to offences against persons or property committed in a moving vehicle which at the time crossed a county boundary.

Where an offence is triable either way, the Magistrates’ Court is not limited by its county boundary. It is not uncommon to find the Crown Prosecution Service recharging defendants before a different court from that which originally heard the matter, to ensure that all matters come before one court. In effect, therefore, in relation to matters which are triable either way the prosecution has a choice of courts.

An information achieves two distinct and viral purposes:

1. it is the charge to which the accused pleads at the commencement of a summary trial; and


2. it is the procedural device which leads to the issue of a summons in those instances where the accused’s first appearance before the court is secured by summons.

The information may arise in three ways:

1. by the prosecutor delivering a signed written allegation against the accused to the court;


2. by personal appearance before a magistrate or magistrates’ clerk, who then reduces the oral allegation to writing; and


3. by the allegation being written down on a charge sheet at a police station and being read over to the accused, who is then given a copy (the charge sheet is then delivered to the Magistrates’ Court).

Following the laying of an information, the court decides whether or not to issue a summons requiring the accused to attend at the court. Although often an automatic process, this procedure is nevertheless judicial in nature: R v Gateshead Justices ex parte Tesco Stores Ltd [1981].

The following rules govern the contents of the information:

1. An information must not allege more than one offence, but it may allege in the alternative different ways of committing that offence.


2. Reasonable particulars of the nature of the charge must be disclosed, but it is not required that every legal element of the alleged offence be disclosed. If a statutory offence is charged, reference must be made to the statute and section covered.


3. Two or more persons may be charged with joint commission of an offence.


4. Where two or more information’s are laid against one accused or where two or more persons are individually charged in separate information’s, such information’s may nevertheless be heard together.

We will continue with this next week.