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Contested cases - not guilty pleas

Setting a date for trial

1. See Court Stage – Magistrates - The Hearing which explains why trial dates may well be set at the first hearing of contested cases in the Magistrates Court in accordance with the Stop delaying justice initiative.

Witnesses

2. Outside court, 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.

3. If there is a dispute about certain facts and more than one defence witness will give evidence on that matter, you should object if they are present in court before giving evidence, as this would give them an unfair opportunity to avoid contradicting each other.

4. 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 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.

5. 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.

Defence representative

6. You should speak to the defendant's representative before the start of the case in order to:

7. If the defendant is unrepresented, you should conduct any negotiations 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

8. 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.

Several defendants

9. 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.3 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. 4

10. In such cases, the magistrates will ask you 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, 5 taking into account any submissions made by the prosecution and the defence.

11. The magistrates must consider whether it would be fair and just to each defendant to allow a joint trial. 6 Similar fact evidence may be a factor in determining to hear charges together. 7

12. You should apply for joint trial, or oppose 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

13. Where two or more offences are charged at the same time, the court should ask you and the defence 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. 8

14. 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, you should argue that they should be heard together.

The order of the proceedings

15. The order of evidence and speeches at summary trial where the defendant pleads not guilty is as follows: 9

Each stage is outlined in more detail below.

Prosecution opening statement

16. 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.

17. Any decision which could indicate that there is no case to answer should be brought to the attention of the court, and you should show that the facts in your case render the decision inapplicable.

18. There should be an agreed bundle of documents to which you should refer. If there are no agreed documents, you may nevertheless refer to documents which the defendants have agreed may be referred to before they are actually proved by the evidence of witnesses.

19. You should summarise at the end of the opening the matters which the court will need to decide. You should refer to the burden and standard of proof relating to any point. 10

Formal admissions

20. You should refer to any formal admissions under section 10 of the CJA 1967 in your opening statement.

21. 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. 11

22. 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 (e.g. on appeal).

Prosecution evidence

23. After opening your case, you should call your witnesses to give evidence. (More information on this can be found in the section on 'Oral Evidence in Court'). Either you or another inspector should make a note of the evidence, and you may refer to this when cross-examining.

Defence cross-examination of prosecution witnesses

24. The defence then has an opportunity to cross-examine your witnesses.

Prosecution re-examination

25. You may then re-examine your witnesses on matters arising from the cross-examination.

Start closed content End closed content

Close of prosecution case

27. You should indicate that your case is closed by informing the court that you have no further evidence.

28. 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. 12

Defence address/submission of no case

29. At the conclusion of your case, the defence may address the court, whether or not they then call evidence. They may submit that there is "no case to answer", and you are entitled to address the court before they make their decision. 13 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. 14 If the submission is rejected, the case proceeds.

Defence evidence

30. The defence call their witnesses to give evidence, and you will then have an opportunity to cross-examine them.

Evidence in rebuttal

31. At the conclusion of the defence evidence, you may call rebutting evidence if some matter arose which you could not have foreseen. 15 Rebutting evidence must strictly be confined to rebutting the accused's defence, and not be directed to bolstering up your 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.

Prosecution closing speech

32. The Criminal Procedure Rules 2012 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.16

Defence address

33. 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

34. 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. You may be allowed to address the court a second time even if the defendant does not wish to do so.

35. Where both parties address the court twice, you do so before the defendant: the defence invariably has the last word.

36. You may 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.

37. If you are allowed to reply generally, you should say why your version is more likely to be correct. Such an address should highlight any contradictions in the defence evidence.

Verdict

38. The magistrates then give their verdict. They may retire if they cannot decide immediately. They may either convict the defendant or dismiss the information.17

39. You should refer to the section on ‘Sentencing and costs’ for more information on the next stage of court proceedings.


Footnotes

  1. R v Bexley Justices, ex parte King [1980] RTR 49.
  2. See R v Skinner (1994) 99 Cr. App. R. 212, [1994] Crim LR 237; R v Arif [1993] TLR 339, 17 June, CA.
  3. Attorney General’s Guidelines on Disclosure Paragraph 57
  4. R v Cridland (1857) 21 JP 404.
  5. Chief Constable of Norfolk v Clayton [1983] 1 All ER 984.
  6. Chief Constable of Norfolk v Clayton [1983] 1 All ER 984.
  7. Chief Constable of Norfolk v Clayton [1983] 1 All ER 984.
  8. R v Shore (1988) 89 Cr. App. R. 32.
  9. Chief Constable of Norfolk v Clayton [1983] 1 All ER 984.
  10. Part 37.3 CPR 2011.
  11. See section on Rules of evidence
  12. Part 37. 6 CPR 2011.
  13. James v South Glamorgan County Council (1994) CR App R 321.
  14. R v Barking Justices, ex parte DPP [1994] TLR 596, 22 November.
  15. 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.
  16. R v Harris [1927] 2 KB 587, 594.
  17. Rule 37.3 Criminal Procedure Rules 2010.
  18. MCA 1980, s.9.
Updated 2012-12-13