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Court Procedure

OG Status: Fully open

Magistrates

The Right to Conduct Proceedings

  1. The right to conduct proceedings in England and Wales is conferred on you by the HSWA 1974, section 39(1), and by your certificate of appointment, otherwise known as your warrant card. 1 Production of your warrant card should be sufficient to prove this. You should ensure that your warrant is available in court. 2
  2. Unless the court otherwise directs, you have the right to have a colleague take notes, quietly proffer advice or prompt. 3 You should not undertake prosecutions on behalf of any other enforcing authority.
  3. An inspector conducting a prosecution should not also give evidence. If it appears likely that you will need to give evidence you should ensure that another inspector conducts the case. It is unlikely that this will be necessary in the case of a guilty plea where you are only called to clarify facts.

Addressing the Bench

  1. A District Judge or chairperson of a bench is addressed as "Sir" or "Madam" and not as "Your Worship". The clerk to the court should be referred to as "Your Learned Clerk" when addressing the bench and, when spoken to directly, as Mr or Ms X. Both the bench and the clerk of the court should be treated with deference and courtesy.

Presentation

  1. You should stand when addressing the court and when spoken to by the court. You should sit if your opponent rises to speak at any point. You should introduce yourself at the beginning of any hearing and inform the court that you appear to prosecute. You should then introduce any legal representative of the defence.
  2. You should speak distinctly and slowly. Technical matters should be explained simply. The clerk and magistrates are likely to take notes and you should ensure that you allow them enough time to do so. If a point which you are making or the reply to a question is important you may suggest that a note is made of the matter.

Bias

  1. A magistrate should not adjudicate on a case if:
    • a statutory disqualification applies;
    • the magistrate has a direct pecuniary interest in the outcome of proceedings; 4
    • there is any actual bias; 5
    • having regard to the relevant circumstances, there is a real danger of bias, in the sense that the magistrate might unfairly regard with favour or disfavour the case of a party to the issue under consideration. 6
  2. This test of bias applies in all cases, whether concerned with magistrates, or members of other tribunals, with jurors or with arbitrators. 7 However, in HSE prosecutions it may need particular consideration if the defendant is a large local employer and a magistrate in the case may, for example, be an employee or local councillor.
  3. A magistrate who knows there could be an objection to his or her sitting on the case should take the initiative and withdraw, or at least bring the matter to the attention of the parties. 8 Any objection to a magistrate sitting should be made before the merits of the case are gone into.

Proceedings

  1. The hearing of an information in England and Wales must be in open court 9 and similarly the decision must be given in open court. Magistrates have an inherent power to regulate the procedure in their courts in the interest of justice and expeditious trial.
  2. In general neither the court nor the justices' clerk should take an active part in the proceedings, except to clear up ambiguities in the evidence. 10 The court should only exercise its discretion to allow the clerk to examine witnesses where there are reasonable grounds for thinking that this is in the interests of justice, for example, where an unrepresented party is not competent; but not if the party concerned is legally represented, or where an unrepresented party is competent and desires to examine witnesses. After a witness has given evidence in chief and has been cross-examined, the magistrates may ask questions in order to clarify issues.
  3. The court may visit the place at which the alleged offence has occurred. 11 Such a viewing is part of the evidence, and witnesses who demonstrate what occurred should be recalled for examination when the hearing resumes in court.

Attendance at Court

  1. Unless a definite time is fixed for the hearing you should be at court at the commencement of the sitting. If you do not appear at the appointed time the court may dismiss the case. It is always advisable to arrive no later than thirty minutes before the hearing.
  2. Check from the court list which court the case will be in and inform the usher that you will be appearing on behalf of the prosecution. You should note your opponent's name. If you are expecting witnesses to attend you should provide the usher with a list of their names.

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Non-attendance by: defendant / prosecutor / witness

Non-attendance by the defendant at the trial

  1. If the defendant is an individual who fails to appear 12 the court may:
    • proceed in the defendant's absence; 13 or
    • adjourn and, if the Information has been "substantiated on oath" 14, issue an arrest warrant if the offence is punishable with imprisonment. 15
  2. If the defendant is a corporation, the court may proceed in its absence 16 or adjourn.
  3. You should decide whether or not to make an application to proceed in the defendant's absence. You should not make an application to proceed if you are aware of any possible legitimate reason for the non-attendance (eg. illness). The court will examine the history of the case to determine whether it is in the interests of justice to proceed. 17
  4. Where the defendant does not appear, and the court decides to proceed or to issue a warrant, you will need to prove service of the summons. It may be advisable to request an adjournment so that you may serve the summons personally. You can then, if required, give evidence of service of the summons. However if the court is satisfied that a defendant who had previously appeared in answer to a summons was aware of the trial date, formal proof of service of the summons is not required. 18
  5. If the court proceeds you must either call witnesses or prove service of statements under section 9 of the CJA 1967
  6. A conviction will be set aside if the defendant declares within 21 days of first becoming aware of the case that s/he was unaware of the proceedings at the time of conviction. 19

Non- attendance by the prosecutor

  1. If the prosecutor fails to appear the Information may be dismissed, 20 but this should not happen if you are known to be on your way. 21 You should contact the court if you are likely to be late.

Non attendance by a witness at the trial

  1. If a voluntary witness fails to attend at the hearing of the summons, you should discuss with the solicitor agent or counsel presenting the case whether to request an adjournment and make an application for a witness summons. If an application for a witness summons is made, the court will need to be satisfied that the witness promised to attend.

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Footnotes

  1. For proceedings under the Employers' Liability (Compulsory Insurance) Act 1969, the Food and Environment Protection Act 1985, and the Control of Pesticides Regulations 1986, you have the right to conduct proceedings only as the informant; other inspectors may be able to conduct but only with the permission of the court which cannot be assumed. Therefore, if you are the inspector who is to conduct the case, you should lay the information; investigating inspectors should not lay the information as they may have to give evidence.
  2. Campbell v Wallsend Slipway and Engineering Co Ltd [1977] Crim LR 351.
  3. McKenzie v McKenzie [1970] 3 All ER 1034; R v Leicester City Justices, ex parteBarrow [1991] 3 AllER 935, CA.
  4. R v Rand (1866) LR 1 QB 230; R v Gough [1993] 2 All ER 724, HL.
  5. R v Gough [1993] 2 All ER 724, HL.
  6. R v Gough [1993] 2 All ER 724, HL. In R v Crewe and Nantwich Magistrates' Court, ex parte Roof IT Steel Structures [1993] COD 388, DC, convictions for health and safety offences were quashed where the chairman of the bench was a local councillor and member of a committee which had been in an antagonistic dispute with the defendant company over numerous local matters.
  7. R v Gough [1993] 2 All ER 724, HL. The same test presumably also applies to judges in the Crown Court. Where the question concerns the bias of a magistrates' clerk, the reviewing court should go on to consider whether the clerk was invited to give the magistrates advice and, if so, whether it should infer that there was a real danger of the clerk's bias having affected the views of the magistrates adversely to the applicant.
  8. R v Altrincham Justices, ex parte Pennington [1975] 2 All ER 78.
  9. MCA 1980, s.121(4).
  10. Simms v Moore [1970] 2 WLR 1099, [1970] 3 All ER 1.
  11. Karamat v R [1956] 1 All ER 415.
  12. A party represented by Counsel or a Solicitor is not regarded as having failed to appear: MCA 1980, s.122.
  13. MCA 1980, s.11, as amended by CJPOA 1994, sch.10.
  14. Substantiated on oath - i.e. where someone (inspector) swears to the fact that the information has been properly served.
  15. MCA 1980, ss.11 and 13, as amended by CJA 1991, sch.8 and CJPOA 1994, sch.5.
  16. MCA 1980, sch.3, para.3(2).
  17. R v Bolton Justices, ex parte Merna [1991] Crim LR 848, DC.
  18. MCA 1980, s.11(2).
  19. MCA 1980, s.14.
  20. MCA 1980, s.15(1). This power must be exercised in accordance with the principles of natural justice, so that the QBD has held that a case should not have been dismissed where the prosecutor was absent due to a mistake by the court's listing office: R v Dudley Justices, ex parte DPP [1992] TLR 310, 15 June; R v Barnet Magistrates' Court, ex parte DPP [1994] TLR 203, 8 April.
  21. R v Hendon Justices, ex parte DPP [1993] 1 All ER 411; R v Sutton Justices, ex parte DPP [1992] 2 All ER 129.