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Aims
• The aims of this lecture are to:
1. To introduce the form of disclosure for criminal cases;
2. To revise the way that proceedings are started in the Magistrates’ Courts;
3. To look a the possibility of summoning witnesses in a criminal trial;
4. To look at the structure the sentencing powers in the Magistrates’ courts.
Outcomes
By the end of this lecture you should be able to:
1. Describe the different methods of disclosure in the Magistrates’ and Crown courts;
2. Describe the procedural aspects of starting a case in the Magistrates’ Courts;
3. Describe how and in what situations witnesses may be summoned for trial;
4. Describe the conduct of a summary trial in the Magistrates’ Courts and the sentencing powers which these courts possess.
What is Disclosure?
• The duty of the prosecutor to disclose the evidence which is at its disposal to the defence
• Rationale – why do we have disclosure?
The sources for the Law relating to Disclosure
• Common law
• Duty to provide advance information – the material that they intend to rely on at court
• Duty to supply to the defence any material of relevance upon which they do not intend to rely
• The Criminal Procedure and Investigations Act 1996 (CIPA)
The Scheme of the CIPA 1996
• The police officer investigating an offence has a statutory duty to make records and store material
• The prosecution must inform the defence of material upon which they do not intend to rely (“primary disclosure”)
• The defence must then inform the prosecution of the case on which they intend to rely at trial
• Defence disclosure gives rise to the prosecution’s duty to make secondary disclosure
Primary Disclosure
• The test for primary disclosure is a subjective test
• It is what in the prosecutor’s opinion is evidence which ‘might undermine the case for the prosecution against the accused’
• Primary prosecution must, under s.13, take place as soon as is ‘reasonably practicable’
• The test is wide and includes material other than that which fundamentally undermines the case for the prosecution
• Vasiliou [2000] Crim LR 845 – previous convictions of Prosecution witnesses
Defence Disclosure
• This is provided for in s.5 of the Act
• It will take the form of a Defence case statement
• It should set out any alibi and also the general nature of the defence and reasons for disputing the prosecution’s evidence
• Specific particulars of the alibi must be given
• Tactical decision by the defence
Secondary Disclosure
• An objective test for secondary disclosure by the prosecution
• S.7 of CIPA requires the prosecution to disclose material that ‘might reasonably be expected to assist the accused’s defence as disclosed by the defence case statement’
What happens after Secondary Disclosure?
• S.8 applications by the defence
• The Duty of the Prosecutor to keep disclosure under review
Public Interest Immunity
• Recognised since the end of the 19th century that there may be circumstances in which the public interest outweighs the defence right to disclosure – for example in relation to police informants
• The Court decides whether this is the case and NOT the Prosecution
• This is still the case under the statutory regime – the Prosecution is required under the Code of Practice to list whether something is potentially sensitive material
Consequences if the Defence do not disclose
• If the defence fail to make disclosure, then the prosecution do not have to make secondary disclosure
• Under s.11 deficiencies in the Defence disclosure may be commented on by the court and adverse inferences may be drawn
• The circumstances may be summarised as:
1) Failure to disclose;2) Out of time;3) Inconsistency within the statement;4) Inconsistency between statement and defence;5) Failure to give details of an alibi;6) Alibi witness is called at trial who was not mentioned in the statement.
Lucas [1981] QB 720
• If the judge decides to allow a jury to draw an inference in a trial on indictment then there may be a need for a Lucas Direction
• The judge would need to direct the jury to consider whether:
1. The lie was deliberate;2. It relates to a material issue;3. The motive for the lie is a realisation of guilt and a
fear of the truth.
Disclosure in summary trial
• The scheme examined above is what happens in trial on indictment
• In summary proceedings the prosecution have the duty to make primary disclosure
• The defence do not have to serve a statement (s.6)
• Tactical question as to whether they should or should not
Summary Trial
• Summary Trial is hugely important in this country – c.97% of cases start and finish in the Magistrate's Courts
• By virtue of s.2 (3) and (4) of the MCA 1980 a Magistrates’ Court has the jurisdiction to try an offence triable either way regardless of where it was alleged to have been committed
• 2 exceptions – Jurisdiction of English Courts, and with either way offence the accused must consent
The Bench of Magistrates
• Who are the Magistrates?
• To try an information summarily there must be at least two justices
• The maximum that may sit is three
• The normal composition is three
• The Court Clerk – professionally qualified lawyer
The District Judge
• Formerly a Stipendiary Magistrate
• Sits in busy courts up and down the country
• Can sit alone
The Information
• Forms the essence of the charge to which the accused pleads guilty or not guilty at the start of a summary trial
• Three Ways in which the information is brought before the court:
1. The prosecutor puts the allegation in writing; 2. The prosecutor makes the allegation orally to the court;3. The allegation is recorded on a charge-sheet at the
police station.
Time Limit on Laying an Information
• The information must be laid within six months of the commission of the offence – if it is a summary only offence
• It must contain therefore:
1. The date of the offence;
2. The date the information was laid.
When can the Magistrates proceed in absence of D?
• S.12 MCA allows the accused to plead guilty by post
• If the accused has not indicated this intention, then we look at ss.11 and 13 for the options available to the bench
Limitations on Magistrates in absence of D
• A custodial sentence may not be passed in the absence of D
• Nor may they disqualify him from driving unless the case had been adjourned previously and he has failed to turn up
• If the prosecution do not turn up, the Magistrates may:
1. Adjourn the matter;
2. Dismiss the Information.
Legal Representation
• Both barristers and solicitors have rights of audience in the Magistrates’ Courts
• Litigants in person
• McKenzie Friends
The Course of a Summary Trial
1. The PleaThe Clerk puts the information to the
Defendant
D can plead guilty or not guilty
If silent a plea of not guilty is entered on his behalf
2. The Prosecution Case
If D pleads not guilty, the prosecution have the right to an opening speech
Calls witnesses – examination-in-chief, cross-examination and then re-examination
Summoning witnesses
• If P or D wish to summon a witness that they think might not otherwise attend they should apply to the Magistrates under s.97 MCA for a summons
• If W does not then attend and various other tests are complied with, then a warrant may be issued for W’s arrest
The Prosecution’s Case
• The Prosecution have to prove every element of the offence charged
• The burden of proof is on the prosecution
• The standard of proof is ‘beyond all reasonable doubt’
What if they don’t do it?
3. Submission of No Case to AnswerWhen is it appropriate?
• Essential element of the offence missed• P evidence discredited thoroughly XC• P evidence so manifestly unreliable that
no reasonable tribunal could safely convict
4. The Defence Case
• The defence may call evidence
• D competent, but not compellable
• After evidence the advocate for D has right to a closing speech – P do not have such a right
Sentencing Powers in Magistrates
• Not more than six months for any one offence triable summarily and/or a fine of £5,000
• Up to twelve months for two offences triable either way
• The Magistrates will hear whether the defendant has a criminal record to help them pass sentence in the case
• S.3 PCC(S)A 2000
Summary of lecture
• You should now be able to do the following:
1. Describe the procedure for disclosure in the Magistrates’ and Crown Courts;
2. Identify the sanctions which are available to the court if the orders for disclosure are not complied with;
3. Describe in what circumstances witnesses will be summoned to the court to give evidence in the trial;
4. Outline the basic course of a summary trial in the Magistrates’ Courts;
5. State what the sentencing powers of the Magistrates are.