Contested cases - not guilty pleas
- Setting a date for trial
- Pre-hearing
- Witnesses
- Defence representative
- Evidence of the prosecution case
- Several defendants
- Several charges
- The Order of the Proceedings
- Prosecution opening statement
- Formal admissions
- Prosecution evidence
- Defence cross-examination of prosecution witnesses
- Prosecution re-examination
- Close of prosecution case
- Defence address/Submission of no case
- Defence evidence
- Evidence in rebuttal
- Prosecution closing speech
- Defence address
- Second address
- Verdict
The purpose of this guidance is to assist Inspectors who are involved in contested cases in the Magistrates Court. HSE will be represented by a lawyer who will be able to provide further advice on practice and procedure in such cases.
Setting a date for trial
1. See Court Stage – Magistrates - The Hearing[166] which explains why trial dates may well be set at the first hearing of contested cases in the Magistrates Court in accordance with the Criminal Procedure Rules.
Pre-hearing
2.If the defendant has indicated that they intend to plead not guilty then you should arrange legal representation as soon as possible in accordance with usual procedures.
3. You should then obtain up-to-date witness availability. The prosecution should also ensure that a Court trial preparation form has been completed and served. (See Operational Procedure: Stage 4 – Prepare for Court & Stage 5 – Appear in Court)
At the hearing
Witnesses
4. . Outside court, with the lawyer representing HSE, you should explain the procedure to witnesses and tell witnesses of fact (other than the defendant) to wait outside court until called1. Witnesses who remain in court may still give evidence, but it may be the subject of adverse comment.
5. If there is a dispute about certain facts and more than one defence witness will give evidence on that matter, an objection should be raised if they are present in court before giving evidence, as this would give them an unfair opportunity to avoid contradicting each other.
6. The Criminal Justice Act 2003 allows witnesses to take their statements into court for the purpose of refreshing their memory (see the section on Memory Refreshing[167] in Exceptions to the Hearsay Rule) and a copy of a witness's statement may be provided to him/her for this purpose before s/he gives evidence.
7. Witnesses of fact should be warned not to discuss their evidence with each other. A suggestion of collusion between witnesses, whilst not necessarily fatal to the case, could significantly weaken it2. You should not "coach" a witness of fact or seek to mould that witness's testimony in any way – see the section Attendance of witnesses[168].
Defence representative
8. Prior to the start of the trial the defendant's representative should be spoken to in order to:
- seek agreement on any outstanding matters, such as previous advice, convictions, photographs/drawings and costs;
- seek agreement on the facts which are not in dispute, to the extent you have not done so already;
- seek agreement on expert witnesses being present in court throughout the hearing (see the section Expert evidence – At court[169]);
- draw attention to any specific authorities on which the prosecution seek to rely, and find out if there are any authorities upon which the defence intends to rely; and
- find out whether there are any preliminary issues which may need to be dealt with before the case is opened.
9. If the defendant is unrepresented, any negotiations should be conducted through the justices' legal adviser in order to avoid any suggestion of undue pressure being brought to bear upon the defendant.
Evidence of the prosecution case
10. Both the defence and the justices' legal adviser should be given copies of all the evidence on which the prosecution is to rely together with any statutory provisions and authorities. This should be done in sufficient time to allow the defence to properly consider it before the trial 3. Some statements may have been served as part of the initial details of the prosecution case, but if initial details were provided in summary form it will be necessary to let the defence have a copy of the statements (or those not served as initial details) prior to trial. Statements may only be withheld to protect witnesses or to avoid interference with the interests of justice and any decision to do this should be discussed with the inspector's line manager or LAO. The defence should also be given details relating to the defendant's previous convictions and other matters relating to sentence to which the prosecution will refer if the defendant is convicted. This is in addition to complying with the prosecution's duties to disclose unused material which are set out in the section on Disclosure Stages[170].
Several defendants
11. Where more than one defendant is charged together in the same information as co-defendants, one or other may apply to be tried separately, and the court must decide whether this is appropriate.4 Where two or more defendants are charged on separate informations, but the facts are connected, the justices may, if they think fit, hear the informations together. 5
12. In such cases, the magistrates will ask the prosecution and the defence whether there is any objection to a joint trial. If either party does not consent, then the magistrates will determine how the defendants should be tried in the overall interests of justice, 6 taking into account any submissions made by the prosecution and the defence.
13. The magistrates must consider whether it would be fair and just to each defendant to allow a joint trial. 7 Similar fact evidence may be a factor in determining to hear charges together.8
14. There should be an application for a joint trial, (or opposition to separate trials), where the circumstances of each defendant's involvement are so inextricably linked, by time or other factors, with the others that the charges should be heard together to allow the magistrates to decide relative degrees of blame.
Several charges
15. Where two or more offences are charged at the same time, the court should ask the parties whether there is any objection to the charges being heard together. If either party does not consent, then the magistrates must decide what course is appropriate in the interests of justice. 9
16. The considerations are the same as for the joint trial of several defendants, namely whether it would be fair and just to hold a joint trial. Again, where the offences arise out of the same set of events, it should be argued that they should be heard together.
The order of the proceedings
17. The order of evidence and speeches at summary trial where the defendant pleads not guilty is as follows:10
- Prosecution opening statement
- Formal admissions
- Prosecution evidence
- Defence cross-examination of prosecution witnesses
- Prosecution re-examination
- Releasing witnesses
- Close of prosecution case
- Defence address/submission of no case
- Defence evidence
- Evidence in rebuttal
- Prosecution closing speech
- Defence address
- Second address
- Verdict
Each stage is outlined in more detail below.
Prosecution opening statement
18. Typically, it is good practice to begin by summarising the case in a single sentence, where possible. There should then be a short explanation of the key facts, usually in chronological order, which witnesses will be called to prove. Those parts of the statutory provisions which are relevant should be read to the court. Authorities which are essential to the case should be referred to, but not dealt with in detail.
19. There should be an agreed bundle of documents to which the prosecution refer. In the event that there are no agreed documents, it may nevertheless be possible to refer to documents which the defendants have agreed may be referred to before they are actually proved by the evidence of witnesses.
20. At the end of the opening the matters which the court will need to decide should be summarised, with reference to the burden and standard of proof relating to any point.11
Formal admissions
21. Reference to any formal admissions under section 10 of the CJA 1967 should be made in your opening statement.
22. Either party may make formal admissions at court and these need not be in writing. However, in a magistrates' court, any admissions made orally must be written down and signed. 12
23. An admission may be withdrawn with the leave of the court, either during the proceedings for which the admission was made or during any subsequent proceedings relating to the same matter (eg on appeal).
Prosecution evidence
24. After opening the case, the Prosecution will call its witnesses to give evidence. (More information on this can be found in the section on 'Oral Evidence in Court[171]'). If you are sat in court it is helpful to make a note of the evidence, as it may assist the advocate when it comes to cross-examination.
Defence cross-examination of prosecution witnesses
25. The defence then has an opportunity to cross-examine the prosecution witnesses.
Prosecution re-examination
26. Following the defence's cross examination, the Prosecution may re-examine witnesses on matters arising from the cross-examination.
Close of prosecution case
28. Once the Prosecution case is closed the court will be informed that there is no further evidence to be called.
29. It is exceptional for a prosecution witness to be heard after the close of the prosecution case. This may be allowed if the evidence was not available earlier for good reason and its omission has not caused the defendant to conduct the defence any differently. 13
Defence address/submission of no case
30. At the conclusion of the prosecution case, the defence may address the court upon whether there is "no case to answer". The prosecution will be entitled to address the court before it makes its decision. 14 Such a submission should only succeed where there is no evidence on an essential aspect of the case, or such evidence is so unreliable that no reasonable tribunal could safely convict on it. 15 If the submission is rejected, the case proceeds.
Defence evidence
31. The defence call their witnesses to give evidence, and the Prosecution will then have an opportunity to cross-examine them.
Evidence in rebuttal
32. At the conclusion of the defence evidence, a party may introduce further admissible evidence in rebuttal of evidence already produced. 16 Rebutting evidence must strictly be confined to rebutting the accused's defence, and not be directed to bolstering up the case. It is most unusual for evidence in rebuttal to be allowed. It will not be allowed to remedy poor preparation of the prosecution case, but may be permitted when an issue has been raised by the defence that they had not previously disclosed would be raised. It is also possible for the trial judge to call a witness not already called by either party if in his opinion it is necessary in the interests of justice to do so. 17
Prosecution closing speech
33. The Criminal Procedure Rules now provide for the prosecution to make final representations in support of its case where the defendant is legally represented; or whether represented or not the defendant has introduced evidence other than his/her own.18
Defence address
34. The defence may address the court if they have not already done so and make final representations in support of the defence case.
Second address
35. Either party may, with leave of the court, address the court a second time, and where the court grants leave to one party, it must not refuse leave to the other. It may be possible to address the court a second time even if the defendant does not wish to do so.
36. Where both parties address the court twice, the prosecution do so before the defendant: the defence invariably has the last word.
37. It is possible to address the court on a matter of law arising from the defence case as of right. Where issues of mixed fact and law are in issue, the leave of the court is required.
38. If it is agreed that a general reply is allowed, it should be submitted as to why the prosecution version is more likely to be correct. Such an address should highlight any contradictions in the defence evidence.
Verdict
39. The magistrates then give their verdict. They may retire if they cannot decide immediately. They may either convict the defendant or dismiss the information. 19
40. Please refer to the section on 'Sentencing and costs[172]' for more information on the next stage of court proceedings.
Footnotes
- R v Bexley Justices, ex parte King [1980] RTR 49. Back to reference of footnote 1
- See R v Skinner (1994) 99 Cr. App. R. 212, [1994] Crim LR 237; R v Arif [1993] TLR 339, 17 June, CA. Back to reference of footnote 2
- Part 16.4 Criminal Procedure Rules ('CPR') 2015. Back to reference of footnote 3
- R v Cridland (1857) 21 JP 404. Back to reference of footnote 4
- Chief Constable of Norfolk v Clayton [1983] 1 All ER 984. Back to reference of footnote 5
- Chief Constable of Norfolk v Clayton [1983] 1 All ER 984. Back to reference of footnote 6
- Chief Constable of Norfolk v Clayton [1983] 1 All ER 984. Back to reference of footnote 7
- R v Shore (1988) 89 Cr. App. R. 32. Back to reference of footnote 8
- Chief Constable of Norfolk v Clayton [1983] 1 All ER 984. Back to reference of footnote 9
- Part 24.3 CPR 2015. Back to reference of footnote 10
- See section on Rules of evidence[173]. Back to reference of footnote 11
- Part 24.6 CPR 2015. Back to reference of footnote 12
- James v South Glamorgan County Council (1994) CR App R 321. Back to reference of footnote 13
- R v Barking Justices, ex parte DPP [1994] TLR 596, 22 November. Back to reference of footnote 14
- Practice Note [1962] 1 All ER 448. The court has a discretion to allow oversight of purely formal evidence to be rectified: R v Pilcher (1974) 60 Cr App R 1; [1974] Crim LR 613 CA; Price v Humphries [1958] 2 All ER 725; but will not generally allow evidence to mend a deficiency which goes to the merits of the case: Middleton v Rowlett [1954] 2 All ER 277. Back to reference of footnote 15
- Part 24.3 CPR 2015. Back to reference of footnote 16
- R v Harris [1927] 2 KB 587, 594. Back to reference of footnote 17
- Rule 24.3 CPR 2015. Back to reference of footnote 18
- MCA 1980, s.9. Back to reference of footnote 19