English Legal System

Procedure for disclosure in criminal cases and summary trial

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.

Further reading

• See Slapper, G. and Kelly, D., The English Legal System (London: Cavendish Press, 2004, 7th edition)

• Zander, M., Cases and Materials on the English Legal System (London, Butterworths, 2003, 9th edition)