An overview of the different stages of a ‘guilty plea’ 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. For guidance on how to address the court, see Magistrates’ court procedure:
Case called;
Charges put to the defendant. Where the charges relate to either way offences, the clerk 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 (the defendant enters a guilty plea);
Prosecution puts facts to the court (see below). Start with introductions (you will need the defence representative’s name!). You will normally draw the court’s attention to the Friskies schedule and prosecution costs;
Defence mitigation;
Pass up Friskies schedule and costs, if you have not already done so;
Sentence (The Sentencing Hearing). Sometimes sentencing is adjourned. Alternatively, the court may decide to refer the case to the Crown Court for sentence if it considers that its own powers of sentencing are inadequate).
The plea
When indicated by the clerk of the court to do so, you should rise and inform the court that you appear on behalf of HSE, the prosecutor. You should introduce any representative of the defence. Practice at magistrates’ courts varies; you may be expected to do this before or after the defendant has been asked to enter a plea.
The clerk will read out the summons and ask the defendant to plead. A representative of a corporation may enter a plea of guilty or not guilty.1 Such a representative must have a written statement, signed by the managing director or other person having the management of its affairs, appointing the representative to act for the corporation.2
Guilty plea before trial
Solicitors acting for defendants will often advise you that the defendant intends to plead guilty. If, within 7 days of the hearing, you have heard nothing from the defence in respect of the plea, it may be appropriate to enquire, as this may save time and costs if a defendant intends to enter a guilty plea. If the defence solicitors confirm in writing the intention to plead guilty, you should advise the clerk to the court. If the court normally requires the attendance of witnesses at first hearing, you will also
be able to cancel their attendance, unless the clerk intimates that the magistrates would wish to hear them.
Guilty plea at court
If the defendant pleads guilty, you are required to address the court only on the circumstances and the facts of the offence, including the extent and impact of any injuries, with a brief reference (where necessary) to the statutory requirements and to leading cases. You should draw the court’s attention to the Friskies schedule. Matters relevant to the defendant’s previous character and convictions should be put before the court. It is not the prosecution’s role to invite the court either to retain the case for sentencing or to commit it to the Crown Court. You may consider it appropriate to refer the court to the judgment in Howe3, in which the Court of Appeal expressed the view that “magistrates should always think carefully before accepting jurisdiction in health and safety at work cases, where it is arguable that the fine may exceed the limit of their jursidiction or where death or serious injury has resulted from the offence”.
You should refer to the section on sentencing for information on addressing the court in respect of sentence and costs.
There is a procedure for persons charged with certain offences which are only triable summarily to have a guilty plea heard in their absence if you consent,4 but this does not apply to health and safety cases.
Change of plea
If the defendant has pleaded guilty but later makes a statement which, if true, would be a defence to the charge, the court should then enter a plea of not guilty,5 and continue with a trial as if the defendant had pleaded not guilty.
The defendant has a right at any time to change a plea from one of "not guilty" to "guilty".
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 hearing6.
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 trial7.
Other pleas
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.
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.
Mitigation
When you have addressed the court, the defence will put forward their mitigation. Mitigation seeks to explain the circumstances leading to the commission of the offence in the most favourable light.
The defence view of the facts may not be in accordance with those which you have put forward. A defendant can dispute the factual basis upon which the case is put by the prosecution whilst still accepting that an offence has been committed (e.g. by denying the extent of the injuries caused to a witness or the length of time during which a dangerous state of affairs existed).
You should always listen carefully to the defence speech in mitigation and be prepared to correct any serious, relevant misstatements of the facts and issues in the case.
The court will sentence on the basis of the defendant's version of the facts, unless the defendant's story is manifestly false or wholly implausible8. Where there is a factual dispute that has no effect on sentence, the court can immediately sentence upon the defendant's version.
Newton hearings
If 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 points.9 Such hearings are referred to as "Newton hearings"10.
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. A Friskies schedule will have been served by the prosecution at the earliest opportunity. You should refer to the section on Sentencing and Costs for more information on Friskies schedules. The onus is on the defence to make it clear if they do not accept the facts put forward by the prosecution. Consequently, the defence should bear the costs of any adjournment.
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 are first required to call evidence in relation to the matters in dispute, and the defence will then call evidence to support their version of the facts. The burden of proof lies upon the prosecution, who must prove their assertions of fact beyond reasonable doubt11.
If the defendant declines to call evidence, the court is entitled to reject the mitigation and sentence on your version of events12.
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 appropriate13. 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 defendant14.
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 such circumstances where the defendant has raised a completely new issue.
Footnotes
MCA 1980, sch.3 and CJA 1925, s.33(6).
CJA 1925, s.33(6).
R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249 (at page 255)
MCA 1980, s.12.
R v Durham Quarter Sessions, ex parte Virgo [1952] 1 All ER 466.
S (an Infant) v Manchester City Recorder [1969] 2 All ER 1230.
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.
R v Broderick [1994] Crim LR 139.
Williams v Another (1983) 5 Cr. App. R. (S) 134.
R v Newton (1983) Crim LR 198.
R v Ahmed (1985) Crim LR 250 CA.
R v Mirza (1993) 14 Cr. App. R. (s) 64, [1992] Crim LR 600.
