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:
Additionally the magistrate (or magistrates’ clerk) has discretion not to issue a summons if.
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:
Ss 10 and 11 are dealt with below.
A warrant for arrest may be issued only if:
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:
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:
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:
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.
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:
(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:
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.
(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:
- the offence alleged in the information is not known to the law; or
- the information was laid out of time; or
- any necessary consent to the prosecution (e.g. from the DPP or the Attorney General) has not been obtained; or
- the court lacks jurisdiction.
Additionally the magistrate (or magistrates’ clerk) has discretion not to issue a summons if.
- the prosecution appears vexatious or frivolous; or
- 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:
- the summons was served a reasonable time before the hearing; and
- the information has been substantiated on oath (unless originally given on oath);
- 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:
- the information is in writing and substantiated on oath (or was originally given on oath); and
- 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:
- the prosecution have failed to establish an essential element of the alleged offence; or
- 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.
(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.
posted by John Robotham at 4:01 AM
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