The hearing

Before the hearing

1. It is incumbent upon the parties to actively assist the Court in fulfilling its duty with regard to the overriding objective as stated in the Criminal Procedure Rules, which includes an early indication to the court as to whether a case will be contested 1.

2. Solicitors for the defence will often advise you that the defendant intends to plead guilty. If, within 7 days of the hearing, you have not heard anything from them in respect of the plea you should contact the defendant, or his representative to enquire how they intend to plead; it will save time and costs if a defendant intends to enter a guilty plea. If the defence confirm in writing their intention to plead guilty, you should advise the justices' legal adviser.

3. If you can't obtain any clear indication of a guilty plea then you must assume for these purposes that the case is denied. In accordance with the Criminal Procedure Rules contested cases in the Magistrates' court should be fully case managed at the first hearing and disposed of at the second hearing. Witness statements should be served with the initial details of the prosecution case 2. (see Initial details) as the court will require the parties to inform them who will be called at the subsequent trial (and why) and which witnesses can be agreed.

4. In contested cases in the Magistrates' court the court will look to set a trial date at the first hearing so you should be in possession of witness availability.

5. The Magistrates' court may also make directions in contested cases regarding, for example, hearsay and bad character evidence and will generally identify the issues in the case and seek to narrow them down. The parties will be expected to agree evidence unless it is really in dispute.

6. There will be a robust response from the court to applications to adjourn.

The order of the proceedings

7. An overview of the usual stages of a first hearing in the Magistrates' court is set out below. The stages are in the order that is normally followed, although individual courts may vary in their practice. When indicated by the justices' legal adviser to do so, you should stand, inform the court that you appear on behalf of HSE, the prosecutor, and introduce the defence representative. As practice at Magistrates' courts varies, you may be expected to do this before or after the defendant has been asked to enter a plea. For guidance on how to address the court, see Magistrates' court procedure:

The usual format is:

  • The case called on;
  • The charges are put to the defendant. Where the charges relate to either way offences, the justices' legal adviser will explain to the defendant that if s/he pleads guilty, the magistrates may be able to deal with the case but that they may decide to send the matter to the Crown Court if they consider that greater sentencing powers are needed;
  • Plea (see below);

The plea

8. The justices' legal adviser will read out the summons and ask the defendant to enter a plea. A representative of a corporation may enter a plea of guilty or not guilty on its behalf 3. Such a representative must have a written statement, signed by the managing director or other person having the management of the corporation's affairs, appointing the representative to act for it 4.

Guilty plea

9. Where the defendant enters a guilty plea, the court may adjourn the case, commit the case to the Crown Court for sentence if it considers that its own powers of sentencing are inadequate (see Committal for sentence), or proceed to sentencing. The principal stages of a sentencing hearing are usually as follows:

  • Prosecution outlines the facts of the case to the court. You will draw the court's attention to the prosecutions view on the application of the sentencing guideline and prosecution costs;
  • Defence mitigation;
  • Sentence and costs.

10. For guidance on the sentencing hearing, you should refer to the Sentencing and costs section.

11. There is a procedure for persons charged with summary offences to plead guilty by post and have the case heard in their absence 5 provided particular information and documents have been served on the accused with the summons. As most health and safety offences are not summary-only, and given the need to follow the required procedure on service of the summons, this provision will not apply in prosecutions brought by HSE.

Change of plea

12. If the defendant has pleaded guilty but later makes a statement (for example, during mitigation) which, if true, would be a defence to the charge, the court should then enter a plea of not guilty6, and continue with a trial as if the defendant had pleaded not guilty.

13. The defendant has a right at any time to change a plea from one of 'not guilty' to 'guilty'.

14. Where a defendant has pleaded guilty, the court has a discretion to allow a change to a plea of not guilty at any stage of the proceedings up to and including sentence, although this discretion should be exercised sparingly, and rarely where the original plea was unequivocal and the defendant was represented at the earlier hearing 7.

15. The defendant must apply to change a guilty plea as soon as practicable after s/he becomes aware of the grounds for making the application, and s/he may do so only before final disposal of the case 8.

16. Where a change to a not guilty plea is allowed, the magistrates must also allow the defendant to consider whether to re-elect mode of trial 9.

Other pleas

17. Rarely, a defendant may refuse to plead when asked, either directly ("I withhold my plea") or indirectly (by staying silent). If this is the case, the magistrates will enter a plea of not guilty on the defendant's behalf and proceed accordingly.

18. If a guilty plea is ambiguous or equivocal, it is the duty of the prosecutor to point this out to the court. If, after further prompting from the court, the defendant still enters an ambiguous guilty plea, the court will enter a not guilty plea on the defendant's behalf.

Newton hearings

19. If, following a guilty plea, the factual dispute between prosecution and defence versions is so different that it affects the appropriate sentence in the case, the court must hear evidence on the disputed points10. Such hearings are referred to as " Newton hearings" 11.

20. If this arises, and you have not been informed in advance by the defence that the guilty plea is being put forward on the basis of a different factual situation, you may need to request an adjournment. Sentencing information (formerly referred to as a 'Friskies schedule') will have been served by the prosecution at the outset of proceedings. You should refer to the section Preparing for the sentencing hearing for more information on Sentencing information. The onus is on the defence to make it clear if it does not accept the facts put forward by the prosecution. Consequently, the defence should bear the costs of any adjournment.

21. The Newton hearing is similar in form to a mini-trial and a solicitor agent or lawyer from Legal Adviser's Office should normally be appointed to conduct the hearing on behalf of the prosecution. The prosecution is first required to call evidence in relation to the matters in dispute, and the defence will then call evidence to support its version of the facts. The burden of proof lies upon the prosecution, which must prove its assertions of fact beyond reasonable doubt 12.

22. If the defendant declines to call evidence, the court is entitled to reject the mitigation and sentence on your version of events 13.

23. Where the defence raises an extraneous issue in mitigation which you are not in a position to refute because it is wholly within the knowledge of the defendant (for example, the defendant's state of mind when the offence was committed), this issue will not usually be in conflict with the prosecution evidence, and a Newton hearing is therefore not appropriate 14. In such a situation, the defence may choose to support their assertion by calling evidence on oath. The burden of satisfying the court in such a case lies upon the defendant 15.

24. You are not bound to challenge such evidence, but you may do so, either by cross-examining the defence witnesses or by calling your own evidence. You may want to request an adjournment in circumstances where the defendant has raised a completely new issue.

25. Where the magistrates' court holds a Newton hearing in respect of an either way offence and makes a decision upon it before committing the case to the Crown Court for sentence, the Crown Court has the power to hold a further Newton hearing if it is in the interests of fairness and justice to do so 16.

Not Guilty pleas

26. See Before the Hearing above regarding contested cases in the magistrates' courts and the effect of the Criminal Procedure Rules.

Footnotes

  1. Rule 3 of the Criminal Procedure Rules 2015 ('CPR 2015'). Back
  2. Rule 8 of CPR 2015. Back
  3. Magistrates' Courts Act ('MCA') 1980, s.46/sch.3 and CJA 1925, s.33(6). Back
  4. Criminal Justice Act ('CJA') 1925, s.33(6). Back
  5. MCA 1980, s.12. Back
  6. R v Durham Quarter Sessions, ex parte Virgo [1952] 1 All ER 466. Back
  7. S (an Infant) v Manchester City Recorder [1971] AC 481, HL. Back
  8. Rule  24.10 Criminal Procedure Rules 2015. Unless the court directs otherwise, the application must be in writing and include the information set out in the Rule. The defendant must serve the application on the court and prosecutor. Back
  9. R v Bow Street Magistrates' Court, ex parte Welcombe [1992] TLR 228 7 May, DC; R v Finch (1993) 14 Cr. App. R. (S) 291, CA. Back
  10. Williams v Another (1983) 5 Cr. App. R. (S) 134. Back
  11. R v Newton (1983) Crim LR 198. Back
  12. R v Ahmed (1985) Crim LR 250 CA. Back
  13. R v Mirza (1993) 14 Cr. App. R. (S) 64. Back
  14. R v Odey (1985) Crim LR 55. Back
  15. R v Mirza (1993) 14 Cr. App. R. (S) 64. Back
  16. Gillan v Director of Public Prosecutions [2007] EWHC 380 (Admin), DC. Back
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Updated 2024-11-01