Essential Magistrates' Courts Law [1 ed.] 9781910979822, 9781909976689

Citation preview

Emma Arbuthnot, Senior District Judge for England and Wales John Bache, Chairman, Magistrates Association Duncan Webster, Chairman, Magistrates’ Leadership Executive

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The framework of summary justice has changed comprehensively in the past decade in terms of evidence, procedure, guidelines, sentencing, training and the fair but efficient expedition of cases. This book sets out these developments as well as inescapable aspects of case management.

Gathers core information in one place Sets out key processes in a manageable and readable way

MAGISTRATES’ COURTS LAW

In this concise and valuable book the authors distil their vast expertise for the benefit of all those needing quick and targeted points of reference on key aspects of magistrates’ court law, whether as newcomers, justices, legal advisers, or criminal practitioners. Hugely informed and presented in an accessible format, it explains the central law, practice and procedure of these courts.

Essential

“

A must-read for any judge, magistrate or lawyer practising in the magistrates’ courts … We thoroughly recommend it

Essential WATERSIDE PRESS

Putting justice into words

GBP £19.95/USD $29.95/AUD $29.95

www.WatersidePress.co.uk

Riddle & Zara

MAGISTRATES’ COURTS LAW

Essential

MAGISTRATES’ COURTS LAW Howard Riddle CBE and Judge Robert Zara

WATERSIDE PRESS

Essential Magistrates’ Courts Law

Howard Riddle CBE and Judge Robert Zara

WATERSIDE PRESS

Essential Magistrates’ Courts Law Howard Riddle CBE and Judge Robert Zara ISBN 978-1-909976-68-9 (Paperback) ISBN 978-1-910979-81-5 (Epub E-book) ISBN 978-1-910979-82-2 (Adobe E-book) Copyright © 2019 This work is the copyright of Howard Riddle and Robert Zara. All intellectual property and associated rights are hereby asserted and reserved by the authors in full compliance with UK, European and international law. No part of this book may be copied, reproduced, stored in any retrieval system or transmitted in any form or by any means, including in hard copy or via the internet, without the prior written permission of the publishers to whom all such rights have been assigned worldwide. Cover design © 2019 Waterside Press by www.gibgob.com Main UK distributor Gardners Books, 1 Whittle Drive, Eastbourne, East Sussex, BN23 6QH Tel: +44 (0)1323 521777; [email protected]; www.gardners.com North American distribution Ingram Book Company, One Ingram Blvd, La Vergne, TN 37086, USA. Tel: (+1) 615 793 5000; [email protected] Cataloguing-In-Publication Data A catalogue record for this book can be obtained from the British Library. e-book Essential Magistrates’ Courts Law is available as an ebook and also to subscribers of Ebrary, Ebsco, Myilibrary and Dawsonera. Published 2019 by Waterside Press Ltd Sherfield Gables Sherfield on Loddon, Hook Hampshire RG27 0JG. Telephone +44(0)1256 882250 Online catalogue WatersidePress.co.uk Email [email protected]

Table of Contents

Copyright and publication details  ii About the authors  viii Acknowledgements  ix Preface.............................................................................................................11 Introduction................................................................................................. 13 1 History of Justices of the Peace in England and Wales........................ 15 2 A Brief Overview........................................................................................... 19 3 Applications...................................................................................................23 Search warrants  23 Warrants for arrest  25 Mental Health Act  26 Witness summonses and warrants  26 Issue of summons to institute proceedings  27 Utility warrants  28 Noise nuisance  29 Statutory declaration  29 Extension of police bail  30 Applications relating to hearsay and bad character  30 Criminal behaviour orders  31 Closure orders  32 Domestic violence protection orders  33 4 The First Appearance...................................................................................35 Open justice  36 iii

Essential Magistrates’ Courts Law The information or written charge  37 Paperwork  38 Absence of defendant  40 Presence through lawyer  43 Defendant present  43 Either-way offences  44 Summary offences  47 No indication  47 The allocation decision  48 Youths in an adult magistrates’ court  49 Mental disorder  50 Perceived advantages and disadvantages of summary trial  54 Sending to the Crown Court  57 Managing for trial  61 Disclosure  64 Bail  67 The dock  70 Firearms in court  72 Costs at first hearing  72 5 Youths, Vulnerable Witnesses and Defendants......................................75 Introduction  75 Eligibility  75 Applications  76 Special measures  77 6 The Trial..........................................................................................................83 The overriding objective  83 Abuse of process arguments  83 Application to adjourn on day of trial  86 Additional editorial comment on disclosure not provided by the day of trial  87 Consequences if a trial proceeds in the absence of the defendant or prosecution witness  89 iv

Howard Riddle and Robert Zara Procedure  90 Evidence  91 Excluding evidence  93 Competence  93 Hearsay  94 Confession  103 Expert evidence  104 Good character  106 Bad character  107 Identification  110 Inferences from silence  113 A defendant’s lies  116 A word about CCTV  116 Taking the oath or making an affirmation  117 Memory refreshing  117 Leading questions  118 No case to answer  119 Burden and standard of proof, verdict and reasons  120 Co-defendants  120 7 Common Offences...................................................................................... 123 Fail to surrender to bail  123 Assault  125 Drink Drive  130 Theft and related offences  137 Public order offences  142 Knives and offensive weapons  148 Drive while disqualified  153 8 Common defences........................................................................................155 Introduction  155 Self-defence  155 Prevention of Crime  158 Reasonableness and lawful excuse  159 Duress  160 v

Essential Magistrates’ Courts Law Human rights  161 Intoxication  162 Execution of duty  163 Misbehaviour in court  164 9 Sentencing.................................................................................................... 167 The purposes of sentencing  167 General principles  168 Using the guidelines  168 Does prison work?  171 Imprisonment  173 Sending to the Crown Court for sentence  176 Indications of sentence and implied promises  177 Suspended Sentences  177 Community penalties  179 Fines  182 Absolute and Conditional Discharges  183 Prevalence  183 Previous convictions  184 Reduction in sentence for a guilty plea  184 Deferred sentence  186 Compensation, victim surcharge, prosecution costs and ancillary orders  186 Newton hearings  189 Role of the defence advocate  189 Role of the prosecutor  189 Duty to give reasons for sentence and credit for remand in custody or electronically monitored bail  190 Reopening sentence  191 A Sentencing Code  191 10 Twenty-first Century Developments...................................................... 193 Technology  193 Constitutional changes and the independence of the judiciary  195 vi

Howard Riddle and Robert Zara Procedural changes  196 Unrepresented defendants  208 Austerity  210 Criminal Justice Terms and Abbreviations  215 Appendix 1: A typical domestic violence case  230 Appendix 2: Adjournments: The Lord Chief Justice’s Practice Direction, April 2019  237 Index  247

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About the authors

The authors are leading exponents of law, procedure and practice in the magistrates’ courts of England and Wales, with unparalleled practical experience and involvement in the system of summary justice. Howard Riddle was Senior District Judge (Chief Magistrate) for England and Wales from 2010–2016 and is a law tutor and former practitioner in a legal aid firm of solicitors in East London. He was awarded the CBE in 2018 for services to the administration of justice. Judge Robert Zara is a former solicitor who also worked in a law centre in Coventry before setting-up his own high street legal aid practice. From 2006–2009 he was the designated judge in charge of the Community Justice Court in Birmingham; and among other related involvements has also served for some years as a tutor for the Judicial College.

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Acknowledgements

We are fortunate in our former colleagues, and would like to thank those judges and magistrates who have given encouragement as we prepared this book. The chief magistrate, Senior District Judge Emma Arbuthnot; the chairman of the Magistrates’ Leadership Executive, Duncan Webster JP; judges Debbie Wright and Margot Coleman; as well as Simon Clements and Barry Hughes from the Crown Prosecution Service, offered not only encouragement but practical support and helpful suggestions on the text. Particular thanks must go to Nadia Manzoor, a former legal adviser with Her Majesty’s Courts and Tribunals Service and researcher for the chief magistrate; Sian Jones, a former justices’ clerk whose knowledge of magisterial law is second to none; Alexia Fetherstonhaugh JP, and John Bache JP, chairman of the Magistrates Association. Despite many other commitments these four waded through all or much of our transcript, making invaluable comments. The improvements are theirs: the mistakes are ours alone. We acknowledge the role played by the Judicial College in legal training. We were fortunate enough to be Judicial College course tutors and lecturers when many of the changes to the law covered by this book were introduced. This gave us the opportunity to discuss and debate the significance of those changes with colleagues. They were stimulating times. More recently, law students at BPP University have demonstrated that there is no shortage of talent and commitment among the next generation of lawyers. The challenge is to steer at least some of those new lawyers into criminal defence work, when legal aid funding is inadequate. Proper remuneration is urgently required. ix

Essential Magistrates’ Courts Law

We are fortunate in our publisher. Bryan Gibson of Waterside Press brings decades of experience of magistrates’ courts and publishing. He too has improved the book. Howard Riddle CBE Robert Zara September 2019

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Preface

Howard Riddle CBE and Robert Zara, in this remarkably concise work, have effectively produced a must-read for any judge, magistrate or lawyer practising in the magistrates’ courts. This book will become the reference book to carry to court, with footnotes adding personal details to the narrative. The book can be read on any number of levels. It has a brief history of the magistrates’ courts and the magistracy. It follows the chronology of a case going through the court including the commencement of proceedings (whether by requisition or arrest), bail, the all-important case management at the first hearing, the relevant Criminal Procedure Rules, right through the trial to sentence if convicted. This is followed by a review of the current reforms, the worrying loss of magistrates and the increased emphasis of Her Majesty’s Courts and Tribunals Service (HMCTS) on video-link hearings. The detail is such that even those experienced in the law and procedure of the magistrates’ courts will discover something that they do not know. Whether it is that there is no rule that every defendant in the magistrates’ courts has two bail applications by right or the complicated rules for sending summary matters to the Crown Court, experts or the less experienced have a lot to learn from this excellent book. In his time as Senior District Judge (Chief Magistrate) Howard Riddle, now an academic, was involved in or led all the developments in the magistrates’ courts. He had spent almost 20 years as a criminal lawyer before his appointment as a Metropolitan stipendiary magistrate. Robert Zara also had a successful career in private practice and his encyclopaedic

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Essential Magistrates’ Courts Law

knowledge of the law led to his nickname of ‘The Professor’ during his time on the bench. Both are exceptional lawyers. We thoroughly recommend this book to all new judges, deputies and magistrates. Emma Arbuthnot, Senior District Judge (Chief Magistrate) for England and Wales John Bache, Chairman, Magistrates Association Duncan Webster, Chairman, Magistrates’ Leadership Executive

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Introduction

There has been a revolution in summary justice. It has been quiet, unsung, and unobserved by many. The changes have required all those who appear in magistrates’ courts, including magistrates and legal professionals, to change their approach. When we started as defence advocates in legal aid practices, the law was rarely mentioned in a magistrates’ court. There were no abuse of process arguments, no disclosure, and no case management. The prosecution evidence was rarely provided before the day of trial. We never disclosed our defence until the last moment. Cases destined for the Crown Court remained before the magistrates for weeks or months before committal or discharge. Those in custody often applied for bail every week. There were no duty solicitors and no Crown prosecutors to help the court. When we attended police stations for our clients we were as often as not refused access (and in any event this work was not covered by legal aid). On the rare occasions when a legal point was raised, the court clerk (now the legal adviser1) would refer to a comparatively slim volume and all present would gratefully accept the advice given. The magistrates had very wide discretion, and different practices arose in different courts across the country. Gradually, this all changed. More and more criminal law was enacted by Parliament, through the Bail Act 1976, the Police and Criminal Evidence Act 1984, the Criminal Procedure and Investigation Act 1996 and indeed many other statutes. At the same time, case law proliferated. The new statutes needed to be interpreted by the higher courts, and even old practices came under increasing scrutiny. This was all to the good. It increased fairness and improved the quality of justice.

1. See Criminal Justice Terms and Abbreviations at the end of the book for a explanation of this term.

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Essential Magistrates’ Courts Law

However, the justice system became far more complicated. The reference books each expanded from a few hundred pages to several thousand. For adjournments alone there were dozens of cases that in theory at least needed to be considered. This was difficult enough for us when we became stipendiary magistrates (later district judges (magistrates’ courts). It was probably worse for defence and prosecution advocates and advisers. It must have been even tougher for lay magistrates. It is perhaps no surprise that cases were more often adjourned than concluded. All this has changed. The procedure in a magistrates’ court has been simplified and set out clearly in the Criminal Procedure Rules and in Practice Directions. These rules are law and should make it vanishingly rare for courts to need to consider pre-existing case law. They provide a comparatively short code which can be learned and implemented by all those who appear in magistrates’ courts. Similarly, practitioners and magistrates need to understand the essential principles of sentencing, but now have comprehensive guidelines to assist in reaching a lawful and appropriate sentence. Case management, once disparaged, is today an essential function for all at the first hearing, unless a plea of guilty is entered. This book aims to provide the essential law that all magistrates and legal practitioners need to know and apply on points that arise in court almost every day. Magistrates’ courts are busy and fast moving. There may be thirty or more cases listed in a morning. Such time as there is to stop and check the law needs to be reserved for unusual points. Know the basic law or risk a serious mistake. The recent changes mean that for the first time it is possible to cover the essential law in a comparatively slim, and we hope readable, volume. Unusual points not covered by this book will arise regularly. For these, a good legal adviser and the excellent reference books remain indispensable. We are unashamed apologists for the quality of summary justice. Simple, speedy justice, following the new rules and modern-day practices, is quality justice.

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CHAPTER ONE

History of Justices of the Peace in England and Wales

Those who sit in a magistrates’ court, lay justices and professional district judges (magistrates’ courts), are all justices of the peace for England and Wales.1 The Statute of Westminster 1361 seems to be the first time the term “justice of the peace” (JP) appears in statute. The statute states that: “in every Shire of England shall be assigned for the keeping of the peace one Lord, and with him three or four of the most worthy in the Shire, with some learned in the law; and they shall have power to restrain the offenders, rioters, and all other barrators, and to pursue, take, and chastise them according to their trespass or offence; and to cause them to be imprisoned and duly punished according to the laws and customs of the realm, and according to what shall seem best to them to do by their discretions and good deliberation …”

In 1388 the number of JPs assigned to each county was increased from four to six, and the sheriff was empowered to pay four shillings a day to each of them for a maximum of 12 days a year. (This was about 16 times greater than the labourer’s daily wage.) For most of their history, justices of the peace have been entitled to be paid. However, while prices rose steadily, wages remained the same, and four shillings per day came to represent a much more modest figure. The practice of paying the justices gradually fell into disuse and was formally abolished in 1854.2 1. Sections 9 and 25 Courts Act 2003. 2. A full and scholarly History of the Justices of the Peace by Sir Thomas Skryme was published by Barry Rose in 1991 and is hard to improve upon. An earlier and perhaps more readable book, The English Magistracy, by Frank Milton, was published by Oxford University Press in 1967.

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Essential Magistrates’ Courts Law

By the 18th century corruption had become scandalous. Excesses in London led to the replacement of the justices in the metropolis for most purposes by a body of professional magistrates. For almost 200 years summary justice in metropolitan London was presided over exclusively by paid stipendiary magistrates, recruited from the bar. The first female stipendiaries, and the first solicitor stipendiaries, were appointed after the second world war. In the rest of the country, including the City of London, summary justice was presided over almost exclusively by lay magistrates, unpaid, and including many distinguished people, with some “learned in the law”. The first female lay magistrates were appointed shortly after the first world war. The tenure of an early chief magistrate, John Fielding (the “blind beak”), coincided with a particularly virulent crime wave. He set up and expanded the organization which was later to become famous as the Bow Street Runners. This rudimentary police force scored conspicuous victories in the battles against the gangs and street robbers that had become commonplace in the town. By the time Sir John died in 1780 the court had become much more like a modern court, with regular sittings. Magistrates were in attendance daily, one until nine o’clock at night. In 1792 reformers succeeded in passing a law by which 24 magistrates were to be paid £400 a year each, sitting at the seven new police offices (which later became police courts). In 1829 Sir Robert Peel formed his new police force. The Metropolitan Police Courts Act of 1839 transformed the police offices into police courts, a title they retained until the 1940s. From 1760 onwards, the Industrial Revolution resulted in a huge influx of people into the new manufacturing areas. As a result, a small number of stipendiary magistrates were appointed in a piecemeal way across the country, particularly in industrialised areas. Outside metropolitan London summary justice remained firmly in the hands of the lay magistracy. Both lay magistrates and professional magistrates (now known as district judges (magistrates’ courts)) have their champions. However, the overwhelming view is that the system needs both. As far back as 1949, when the Justice of the Peace Bill was passing through

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History of Justices of the Peace in England and Wales

Parliament, no-one proposed to abolish the stipendiaries and only one peer came out wholeheartedly against lay magistrates. In recent years the number of professional judges in what was metropolitan London has fallen, while significant numbers of unpaid justices of the peace have been appointed. Outside London the reverse process has taken place. In England and Wales in 2019, there were about 140 full-time district judges (and a similar number of part-time deputy district judges) and about 15,000 lay magistrates. The legal system of England and Wales is unique in these islands, and indeed in the larger criminal jurisdictions of the world, in the central position held by the lay magistracy. We would say that this has almost constitutional significance. It means that nobody in our jurisdiction can be convicted of, and remain convicted of, a criminal offence unless lay people (juries or lay magistrates) agree. For example, if a district judge (magistrates’ courts) sitting alone convicts a defendant, there is an automatic right of appeal to the Crown Court. On appeal the circuit judge could agree with the district judge, but if the two lay magistrates who also sit on the appeal disagree, then the appeal is successful, and the defendant is acquitted. Magistrates bring the community into the court and can be seen as ambassadors for the law in the community. Today, the jurisdiction of justices of the peace is far greater than that covered by this book. JPs (lay and/or professional) now sit in the unified family court, the youth court and on appeal to the Crown Court. Some also sit as tribunal members, independent prison adjudicators, recorders (part-time Crown Court judges), deputy coroners, as members of courts martial and judges in the sovereign base in Cyprus, for example. JPs also sit on the Criminal Procedure Rules Committee, the Sentencing Council (both described later in this book), the Judges’ Council and other committees and working groups in the criminal and family justice systems.

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Essential Magistrates’ Courts Law

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CHAPTER TWO

A Brief Overview

All criminal prosecutions have a first hearing in a magistrates’ court. Most cases remain in a magistrates’ court until either acquittal or conviction and sentence. The more serious cases are sent to the Crown Court for trial by jury or to be sentenced by a Crown Court judge. Proceedings are initiated in a number of ways: charge at a police station; charge and requisition by post or personal service; or summons by post or personal service. Most prosecutions are brought on behalf of the Crown by the police and/or the Crown Prosecution Service. However, some are initiated by local authorities. A smaller number are prosecuted by interested groups such as the RSPCA. Yet others are brought by private individuals. Many cases, usually the less serious ones, can be heard without the defendant being required to attend court. In most motoring cases, for example, the defendant is requisitioned and can plead guilty by post or (increasingly) online and be sentenced in absence. Such cases can often be proved (or dismissed) in the absence of the defendant, who nevertheless always has the opportunity to attend and defend the case with or without a lawyer. Cases are adjudicated by magistrates or by a district judge. There is no jury. Magistrates are carefully selected and trained members of the public. They are rarely lawyers. They are unpaid. District judges are also carefully selected by the independent Judicial Appointments Commission. District judges (magistrates’ courts) (DJ(MC)s) are qualified lawyers and are paid according to a judicial pay scale. Some magistrates and some district judges wear a gown, but many do not. Save on ceremonial occasions wigs are not worn (except by the DJ(MC) in Hull, 19

Essential Magistrates’ Courts Law

for historical reasons). Magistrates and judges are addressed as “Sir” or “Madam”. Sometimes they are addressed as “Your Worships”. All take the judicial oath and the oath of allegiance1 — to try without fear or favour, according to the law — before sitting for the first time. Magistrates are advised on the law by a legal adviser, who is a qualified lawyer. District judges more usually have the benefit of a court associate, who will not be expected to advise on the law. Busy courts normally have an usher or a list caller who is responsible for ensuring that cases are called into court in an orderly way and that witnesses are brought into court and take the oath or affirm.2 In most magistrates’ courts there is a dock and it is usual for a defendant to sit in the dock (see Chapter Four). Ideally there is a custody officer or security officer, particularly if the defendant has been produced from the cells, having been refused bail at the police station or at an earlier court hearing. In courtrooms where there is no dock a defendant will sit at the side or at the back. Some courts permit the defendant to sit next to or behind his or her lawyer. Defendants can choose to be represented by a qualified lawyer, a barrister, a solicitor or a certificated legal executive. Sometimes public funding is available for representation, but often it is not. As a result, there are many unrepresented defendants in a magistrates’ court. It is expected that such defendants will receive some advice and assistance from the court, particularly from the court’s legal adviser. At the first hearing advice and representation may be available from an independent duty solicitor, but many cases — particularly the less serious cases — fall outside the duty solicitor scheme. That is a shame, because duty solicitors are all experienced and accredited criminal lawyers and are invaluable to the court and the defendant. Prosecutors usually sit in the front row on the advocates’ benches. A Crown Prosecution Service representative may be a full-time member of staff or an agent, usually but not necessarily a qualified lawyer. Other cases can be prosecuted by a police officer or by a lawyer or an accredited agent of the private prosecutor. Defence lawyers will sit on the advocates’ 1. See Criminal Justice Terms and Abbreviations at the end of the book. 2. Ibid.

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A Brief Overview

benches, usually in the front row although there is no specific rule, and some prefer to sit in a row behind. The National Probation Service plays an important part in the criminal justice system and will often have a representative in court or somewhere in the court building. This is to assist in preparing a pre-sentence report for sentencing. Open justice requires that members of the public and accredited members of the press are able to observe court proceedings. Larger courts have a public gallery while others have seating at the back or the side of the court. The court usher or list caller can help to ensure that the public and the press are properly accommodated. (There has been some criticism that arrangements for the Single justice procedure— see that section in Chapter Ten, Twenty-first Century Developments — make it impossible for the press and public to observe. However, in our experience, arrangements can be made for public interest in a case to be accommodated.) What happens at the first hearing is dealt with in Chapter Four. Adults charged with some of the most serious offences — for example, murder, rape, robbery, grievous bodily harm with intent, riot and conspiracy — can be tried only at a Crown Court and are usually sent there at the first hearing. Many offences are either-way offences. This means that they may be tried either at a magistrates’ court or at the Crown Court. Many offences of dishonesty, drugs offences, and assault occasioning actual bodily harm (ABH) are either-way offences. Normally they should be tried summarily unless the outcome would clearly be a sentence that exceeds the powers of a magistrates’ court (six months’ imprisonment) or in any case if the defendant chooses to be tried by a jury. The vast majority of offences are summary only. Summary offences can be tried only in a magistrates’ court (unless linked with an indictable offence, see later) and are either non-imprisonable or carry a maximum sentence of six months’ imprisonment or less. At the first hearing, cases are either sentenced (or adjourned for presentence reports) on a plea of guilty, or sent for trial (or sentence) to the Crown Court, or case managed to trial at a later date in the magistrates’ court. Bail will be considered (see Chapter Four). Any decision taken by a magistrates’ court on bail, or to convict, or on sentence can be appealed 21

Essential Magistrates’ Courts Law

to the Crown Court. Acquittals cannot be appealed in this way. In each appeal case the Crown Court has an unfettered discretion (although on sentence within the powers of a magistrates’ court) to uphold, reverse or vary the decision of the magistrates. In rare cases a decision of a magistrates’ court can be appealed to the High Court.3 The law is determined by Parliament as set out in statute, or in secondary legislation. Key provisions as to practice and procedure are now set out in the Criminal Procedure Rules and the Criminal Practice Directions. Sentencing guidelines cover most offences. The law is often illuminated by decisions of the higher courts. This book aims to cover the main provisions that apply on a daily basis in a magistrates’ court. For more detailed, or less common, law or for the full Criminal Procedure Rules and Sentencing Guidelines the reference books must be consulted.

3. A short description of the appellate role of the higher courts is contained in the section on Criminal Justice Terms and Abbreviations at the end of the book.

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CHAPTER THREE

Applications

Applications to a magistrate, or to a magistrates’ court, can be made under many different statutory provisions and can be classified in various ways. Many relate to the civil jurisdiction of the court, which is both wider and more important than is often realised. For the purposes of this chapter we want to focus on those applications which are most likely to result in an application for judicial review in the High Court. Some of the applications covered, such as search warrants, can be dealt with by a single magistrate sitting in private; others are dealt with in open court, but often at very short notice.

Search warrants By far the most significant such application is for a search warrant. The main statutory power is to be found in the Police and Criminal Evidence Act 1984 (PACE) and some of its provisions (particularly ss.15 and 16) apply to warrants issued under any enactment. The Criminal Procedure Rules (CPR) (Pt 47) apply to search warrants issued under s.8 PACE (indictable offences) and s.2 Criminal Justice Act 1987 (serious fraud), or to warrants to search for and seize articles under any other power. In practice, most applications to magistrates will be brought under the provisions of s.23 Misuse of Drugs Act 1971 (controlled drugs), s.26 Theft Act 1968 (stolen goods) or s.46 Firearms Act 1968 (firearms). In addition to the requirements of the CPR, Code B under PACE provides guidance which should be followed by the officer making the application.

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Essential Magistrates’ Courts Law

Applications under s.8 require the magistrate to have reasonable grounds for believing that (a) an indictable offence has been committed (not just contemplated); (b) there is material on the premises which is likely to be of substantial value to the investigation of the offence; (c) the material is likely to be relevant evidence; and that (d) it does not consist of items subject to privilege or special procedure material.

Warrants issued under s.8 may relate to specific identifiable premises (which can include vehicles and tents) or to “all premises” occupied or controlled by a person specified in the application. An “all premises” warrant can only be issued if the magistrate is satisfied that, because of the nature of the indictable offence in question, there are reasonable grounds for believing that it is necessary to search premises which are not specified in order to find the material sought. Additionally, the magistrate must be satisfied that it is not reasonably practicable to specify in the application all the premises which the suspect occupies or controls and which may need to be searched. No warrant under s.8 may be issued unless the magistrate is satisfied that there are reasonable grounds to believe that either it is not practicable to communicate with anyone entitled to grant entry to the premises, or to communicate with anyone entitled to grant access to the evidence, or that entry will not be granted without a warrant or that the purpose of the search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry. The police must identify which of these provisions applies in each case. In practice, the forms of application now in use by police officers are designed to ensure compliance with the requirements of the statute, the Rules and Code B. If correctly and fully completed, the written application should contain all the information that the magistrate needs in order to be satisfied that grounds exist for the granting of the warrant. CPR 47.25 provides for a hearing in private of an application for a warrant in the presence of the applicant and (perhaps unnecessarily) in the absence of any person affected by the warrant. The applicant may attend 24

Applications

the hearing by live link or telephone. The applicant must confirm on oath or affirmation that the application discloses all material information, including any circumstances that might reasonably be considered capable of undermining any of the grounds of the application. If the court requires the applicant to answer a question about the application, the answer must be on oath or affirmation and the court must arrange for a record of the gist of the question and reply. There is space on the form provided for this purpose. A draft warrant should be prepared by the applicant, but it is the responsibility of the court to ensure its accuracy. Warrants have been declared unlawful where they were too vague and general and failed properly to identify the items to which they related. Applications under the Misuse of Drugs Act, the Theft Act and the Firearms Act need to be considered individually. Under the Firearms Act, there are two grounds for the issue of a warrant: either that a relevant offence has been, is being, or is about to be committed, or that in connection to a firearm or ammunition there is a danger to public safety. If the magistrate is satisfied that reasonable grounds to suspect that either state of affairs exists, the warrant may be issued. Under the Theft Act, the test is simpler; the magistrate must be satisfied that there is reasonable cause to believe that stolen goods are to be found on the premises in question. Under the Misuse of Drugs Act the magistrate must have reasonable grounds to suspect the presence of controlled drugs on the premises to be searched.

Warrants for arrest The power under s.1 Magistrates’ Courts Act 19801 to issue a warrant for the arrest of a person suspected of having committed a criminal offence is of limited use in practice, given the wide-ranging powers of arrest available to the police. It is limited to indictable or imprisonable offences, or to cases where the suspect’s address cannot be established. It is rare to 1. All references to the Magistrates’ Courts Act (or MCA) in this book are to the 1980 Act.

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Essential Magistrates’ Courts Law

encounter a free-standing application under s.1; where a defendant fails to attend court there is a power to issue a warrant for  his or her arrest under s.7 Bail Act 1976, or, if the defendant was not on bail, under s.13 Magistrates’ Courts Act, but such warrants are issued in open court, rather than under the private procedure contemplated by s.1. The s.1 procedure requires a written information to be laid by an authorised prosecutor. There is a discretion as to whether to issue a warrant or a summons, or to refuse the application altogether.

Mental Health Act S.135 Mental Health Act 1983 provides a power to issue a warrant for the arrest of a “person believed to be suffering from mental disorder”. Applications are made by approved mental health professionals. The grounds are couched in somewhat dated language, which derives from earlier legislation and is set out below: “(a) has been, or is being, ill-treated, neglected or kept otherwise than under proper control, in any place within the jurisdiction of the justice, or (b) being unable to care for himself, is living alone in any such place”.

The information must be laid on oath by the mental health professional, but the warrant, if granted, authorises arrest by a constable. It authorises entry to the premises by force if necessary. On arrest, the patient must be taken to a place of safety.

Witness summonses and warrants Most such applications will be dealt with as part of case management, but circumstances may arise which lead to a free-standing application. The CPR Part 17 sets out the procedure to be followed. The statutory power is to be found in s.97 Magistrates’ Courts Act, and the test for issuing a 26

Applications

summons is simple: the magistrate must be satisfied that the proposed witness “is likely to be able to give material evidence … and it is in the interests of justice to issue a summons”. The sanction if a witness fails to attend court in response to a summons is to issue a warrant for his or her arrest and delivery to court, but the effectiveness of this as a sanction depends on there being enough time and resources (i.e. police officers) to execute the warrant on the day the witness’ evidence is scheduled. For a witness warrant to be granted, there must be evidence on oath of the matters mentioned above and a probability that a summons would not be effective. The court has the right to refuse to issue a summons if the application is not made as soon as reasonably practicable after the entry of the not guilty plea (the power is only available if there is to be a trial). An unusual situation arose in the case of R (Howe) v South Durham Magistrates’ Court [2004] EWHC 362 (Admin). The CPS applied for a witness summons against a solicitor acting for a defendant charged with driving while disqualified with a view to proving that the defendant was the same person as had been represented by the solicitor at a hearing at which he had been disqualified. The Divisional Court upheld the issue of a summons, ruling that the oral evidence of the solicitor and an attendance note of the previous hearing would not necessarily infringe legal professional privilege. In his judgment, Rose LJ noted that such applications were very rare and that this was welcome.

Issue of summons to institute proceedings A summons from the court to a defendant requiring him to attend court on a given date was the usual way of commencing a criminal prosecution in less serious cases such as road traffic offences. This procedure is less common than it was, and will become limited to private prosecutions once s.29(4) Criminal Justice Act 2003 is brought into force. The police will institute most serious cases by way of charge (with or without bail); alternatively, authorised prosecutors such as police forces and the Crown Prosecution Service can issue a requisition which includes a written charge and which requires the defendant to attend court on a 27

Essential Magistrates’ Courts Law

given date. The difference between a summons and a requisition is that the court is not involved in any way in the issue of a requisition. Decisions as to the issue of a summons will usually be taken by a legal adviser; only in controversial cases is the decision likely to be put before a magistrate. The decision as to whether to issue a summons is a judicial one, but the magistrate is not required to consider the evidence. The information must allege an offence known to the law, must be within any relevant time limits, the court must have jurisdiction and the informant must have any necessary authority to prosecute. There is a duty of candour on the part of the applicant. A magistrate may decline to issue a summons if there is information which suggests that it would be wrong to do so, but is under no duty to investigate the circumstances.

Utility warrants Under the Rights of Entry (Gas and Electricity Boards) Act 1954 utility companies can apply for a warrant of entry to premises for the purposes of reading a meter, installing a pre-payment meter, or disconnecting the supply. There is a statutory three-stage test: is admission reasonably required, has admission been requested and been refused; and has the requisite notice of the application been given. In addition, since the Human Rights Act, courts have required that occupiers must be given notice of the application and allowed to attend. In practice, it is rare for consumers or occupiers of premises to attend court and oppose the application. Most reputable suppliers are aware of the need to have regard to the possible vulnerability of their customers and will comply with codes of practice issued by their trade body. By 2020, the non-statutory procedure for a court hearing is due to be replaced by a procedure similar to the single justice procedure.

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Applications

Noise nuisance Section 78 Clean Neighbourhoods and Environment Act 2005 contains a power to issue a warrant enabling a local authority representative to enter premises, using reasonable force if necessary, to silence an intruder alarm that has been sounding continuously for more than 20 minutes, or intermittently for more than an hour. By its nature, this is the sort of application likely to be made to a magistrate at home outside normal court sitting hours. S.77 gives the local authority the right in these circumstances to enter premises without a warrant, but not to use force for the purpose.

Statutory declaration Sections 14 and 16E Magistrates’ Courts Act offer a simple way for a defendant to set aside a conviction in circumstances where he was not aware of the proceedings until after the trial, having been convicted in his or her absence. The procedure is for the defendant to make a statutory declaration pursuant to the Statutory Declarations Act 1835, which may be witnessed by a magistrate, to that effect, whereupon the original summons or requisition is treated as void and the conviction quashed. No oath is required, but it is conventional to require the declarant to read aloud the wording of the declaration, including this phrase: “I make this declaration conscientiously believing the same to be true”. Witnessing a defendant’s signature to such a declaration does not involve any inquiry as to its truth. Fresh proceedings may of course then follow. Rule 24.17 requires the court to begin the summary procedure immediately following the making of the declaration, including taking the plea. Surprisingly, often the defendant then pleads guilty.

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Essential Magistrates’ Courts Law

Extension of police bail Following the amendments to PACE introduced by the Policing and Crime Act 2017, there are now limitations on the ability of the police to bail suspected persons indefinitely before charge. In most cases, the maximum period of police bail is now initially limited to 28 days. Where these limitations apply, application must be made to a magistrate sitting in private for an extension of the bail period. Initially, such applications are to be dealt with on the papers, but there is provision for an oral hearing if the magistrate considers that one is required in the interests of justice, or where the effect of granting the extension requested would be to extend the overall bail period to more than a year. Where an oral hearing does take place, there is provision to exclude the bailed person and his or her legal representative. There is also power to authorise the police not to disclose sensitive information to the suspect or his or her legal representative.

Applications relating to hearsay and bad character Applications before trial to adduce evidence of the defendant’s bad character or to allow hearsay evidence to be adduced are governed by CPR Parts 20 and 21 respectively. In both cases the party wishing to adduce the evidence (usually the prosecution) must serve notice on the court and the defendant. In both cases, there is an obligation on the defendant to take action if he objects to the introduction of the evidence in question. He must apply to the court to determine his or her objection; the court will then decide whether to hold a hearing, which may be in public or private, or determine the application without a hearing. There are provisions for notices and objections to be served within specified time limits, and provisions allowing the court to extend time, even after time limits have expired. The court may also dispense with the requirement of notice and allow applications to be made orally. For the law relating to such applications, please refer to the relevant sections in Chapter Six. 30

Applications

Criminal behaviour orders Although a criminal behaviour order (CBO) can only be made following conviction, it is not a sentence and courts should only make such orders where the criteria set out in the legislation (Anti-social Behaviour Crime and Policing Act 2014) are met. The procedure for applications is governed by Part 31 CPR; there has to be an application by the prosecution, which must consult the Youth Offending Team if the defendant is under 18. The application must be made as soon as practicable “without waiting for the verdict”. Equally, a defendant who wishes to oppose the making of an order is required to respond to the prosecution notice as soon as practicable, again without waiting for the verdict. Although an agreed order could be made as part of the sentencing hearing, an opposed application will require a separate hearing. There is no requirement for the same bench that conducted the trial to also conduct the CBO hearing. There are two conditions in s.22 which need to be met before a CBO can be made. They are: (3) The first condition is that the court is satisfied, beyond reasonable doubt, that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person. (4) The second condition is that the court considers that making the order will help in preventing the offender from engaging in such behaviour.

It will be noted that the second condition is worded differently to the equivalent provision in the Crime and Disorder Act 1998 which introduced criminal anti-social behaviour orders. It is no longer necessary for the prosecution to prove that an order was necessary to protect the public, merely that it will be helpful. The content of an order may include both positive and negative requirements. Any prohibitions or restrictions should not, where practicable, interfere with the defendant’s employment or education.

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Essential Magistrates’ Courts Law

Closure orders A closure notice can be issued by a police officer of at least the rank of inspector, or by a local authority, to prevent access to premises believed to be a source of nuisance or disorder. Where such a notice has been issued and not cancelled, an application must be made to a magistrates’ court for a closure order. There is an obligation to hear such applications within 48 hours of service of the closure notice: only Christmas Day is excluded in calculating when the period of 48 hours expires, so such applications must be dealt with as a matter of urgency. The criteria for making an order are set out in s.80(5) Anti-social Behaviour Crime and Policing Act 2014: (5)  The court may make a closure order if it is satisfied — (a)    that a person has engaged, or (if the order is not made) is likely to engage, in disorderly, offensive or criminal behaviour on the premises, or (b)  that the use of the premises has resulted, or (if the order is not made) is likely to result, in serious nuisance to members of the public, or (c)  that there has been, or (if the order is not made) is likely to be, disorder near those premises associated with the use of those premises.

In one case, R (Qin) v Metropolitan Police Commissioner [2017] EWHC 2750 (Admin) the Divisional Court considered an application for judicial review arising from a district judge’s refusal to make closure orders on procedural grounds. The premises concerned were massage parlours which the police believed were being used as brothels. It was accepted that the police had not complied with the statutory requirement to notify certain persons with an interest in the premises of their intention to issue the closure notices. The district judge found that the test under s.80(5) was not met and declined to make closure orders. Although the judicial review dealt primarily with the judge’s decisions on the issue of costs and compensation, the Divisional Court did comment that magistrates’ 32

Applications

courts should not generally consider the validity of a closure notice when considering an application for a closure order; validity would be relevant as a defence in the case of prosecution for breach of the order.

Domestic violence protection orders The structure of these orders is comparable to that described above for closure notices. A police officer (of at least the rank of superintendent) can authorise the issue of a domestic violence protection notice (DVPN) if certain grounds are met. Once the DVPN has been issued the police must make application to the magistrates’ court for a domestic violence protection order (DVPO). The DVPN can include provisions requiring the recipient to leave the family home and not to molest the person for whose benefit the DVPN is issued. The magistrates’ court must consider the application within 48 hours of service of the DVPN, but in addition to Christmas Day, Good Friday, Sundays and other bank holidays are disregarded in calculating when the 48-hour period expires. There is power to adjourn the application, but if so, the DVPN remains in force until the application has been determined. There are two conditions which must be met before making an order. The first is that the court must be satisfied on the balance of probabilities that the alleged perpetrator has been violent or has threatened violence towards an associated person as defined in the Act (Crime and Security Act 2010). The second is that the court thinks that making the order is necessary to protect the alleged victim from violence or a threat of violence by the alleged perpetrator. The court must consider the welfare of any child who may be affected by the making of an order, and must take account of the opinions of the alleged victim and of anyone else living in the premises concerned (where the proposed order includes a provision requiring the alleged perpetrator to leave or stay away from the premises). However, the court does not need the consent of the alleged victim. Despite the existence of these powers, many police officers routinely refer victims of domestic violence to the family courts where they may

33

Essential Magistrates’ Courts Law

apply for a non-molestation order under the provisions of the Family Law Act 1996, breach of which is a criminal offence.

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CHAPTER FOUR

The First Appearance

The first appearance of a defendant in a magistrates’ court is in many ways the most important. It is expected that a case will have only one hearing before being concluded or sent to the Crown Court,1 unless there is a contested summary trial, in which case a second hearing is required. There will however be many applications to adjourn. As one retiring Metropolitan stipendiary magistrate told newer colleagues: “In your time you will hear many applications to adjourn. If you turn them all down, you will not have gone far wrong.” Of course, there will be exceptions. The case is likely to be in a mixed list including some cases that will be sent to the Crown Court, some where the defendant will plead guilty and be sentenced, and some where the defendant will plead not guilty and case management will be needed. In a well-run court, cases where the defendant is expected to plead guilty will be listed together, while those where a plea of not guilty is anticipated will be listed in another court. This is so that prosecution lawyers of the appropriate level of experience can be assigned to the anticipated not guilty (or NGAP) court or the anticipated guilty (or GAP) court. Defendants are not always predictable, and resources sometimes dictate that the proper arrangements cannot be made. The court will be presided over by magistrates (usually three) or by a single district judge (magistrates’ courts). Two magistrates have the same powers as three magistrates, and a single magistrate can exercise many, but not all, of the powers of the full court.

1. There are separate provisions for youths, that is those under 18, which are dealt with below at page 49.

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Essential Magistrates’ Courts Law

Open justice Magistrates’ courts generally abide by the principles of open justice: courts are open to the public and the proceedings may be reported by the press. There are exceptions: the public are not allowed into youth courts, nor are they present during proceedings under the Single justice procedure (see Chapter Ten). Many of the applications considered in Chapter Three are heard in private. There are powers to restrict the press from identifying young people involved in proceedings, whether as defendants or witnesses, and also from identifying the alleged victims of certain sexual offences. The power to restrict publication of details which would identify a young defendant differs slightly, depending on whether the proceedings take place in the youth court or in the adult court. In the youth court, the starting position is that anything which might lead to the identification of the young person may not be published, but only while the young person remains under 18. However, there are powers to lift the restriction following conviction. In the adult court, it is for the court to make an order restricting publication of any identifying details: such orders are made as a matter of course where a young person appears in an adult court. Applications are sometimes made by the press, usually following conviction in a high-profile case, for these reporting restriction to be lifted. In considering such applications, the court has a duty to consider the welfare of the young person concerned, but must also have regard to the public interest. The age of the accused and the seriousness of the crime are also relevant factors. An application of a different kind is sometimes made at the first hearing by a defendant who seeks leave to withhold his or her or her identifying details (particularly their address). The defendant will seek an order under s.11 Contempt of Court Act 1981 to prohibit publication of that information. Such applications are sometimes made where police officers are prosecuted, it being argued that publication of their addresses would put them and their families at risk. The decision involves balancing competing rights to privacy and family life under Article 8 of the European 36

The First Appearance

Convention on Human Rights with the right to freedom of expression under Article 10. The threshold for making such an order is a high one.

The information or written charge A case starts with a summons or written charge. An allegation of an offence in an information or charge must contain a statement of the offence that describes it in ordinary language and identifies the underlying legislation. It must also contain such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.2 An obvious, though sometimes overlooked, step is for all parties to consider the information or charge carefully before the hearing. Many courts produce a computer-generated list of the cases in court for each court session. It is helpful but can be a false friend when considering the exact wording of the information or charge. Sometimes the wording on the list does not correspond exactly to the actual information or charge (for some reason this is particularly common with s.4 Public Order Act offences). 1. Is the offence correctly stated? Frequent errors include failure to include the words “by beating” in an allegation of common assault by battery; referring to “without reasonable excuse” instead of “without reasonable cause” in Bail Act offences; and the correct wording of a s.4 Public Order Act offence. 2. With historic offences it should be checked that the offence is charged under the legislation in force at the time. 3. Is the information bad for duplicity (that is, alleges more than one offence3)? For example, in a drink drive case, does the information specify whether the prosecution relies on the sample of breath, or blood, or urine, as these are three separate offences

2. Criminal Procedure Rules Part 7.3. 3. There are exceptions, for example for continuing offences.

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Essential Magistrates’ Courts Law

(indeed s.5 Road Traffic Act 1988 creates no fewer than nine separate offences, and the correct one must be specified).4 4. Has the information been laid in time? Generally, there is no time limit for indictable offences, and a six months’ time limit for summary only offences. Care should be taken as there are exceptions. If the information is laid out of time, then the court has no jurisdiction and the defendant must be discharged. This arises in practice when the Crown wishes to change the charge from an indictable offence such as robbery or from an eitherway offence such as causing actual bodily harm to a summary offence, thus depriving the defendant of the opportunity to be tried by a jury. If this happens, the court must consider whether the information for “the same misdoing” was laid in time. If it was, then a change can be made even after the six-months’ time limit. If not, then a magistrates’ court may not try the information.5 5. Is the offence indictable-only, summary, or either-way? This is crucial as to what happens at the first hearing. It affects whether the case is sent to the Crown Court, and if so how, time limits, and in some cases bail. The Sentencing Guidelines, and all the major reference books, show the classification of each particular offence. 6. Is the offence imprisonable, or likely to lead to a custodial sentence on conviction? This is relevant to the law on bail.

Paperwork There has always been a tension between the amount of material that the defence and the court would want the prosecution to provide, and the ability of the prosecution to provide that material. The more information that is made available, the easier it is for defence lawyers to advise 4. R v Bolton Justices ex parte Khan [1999] CLR 912. 5. Section 127 MCA 1980; John Dougall v CPS [2018] EWHC 1367 (Admin); R v Scunthorpe Justices, ex parte McPhee and Gallagher [1998] EWHC 228 (Admin).

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The First Appearance

their client on plea and allocation (including the defendant's choice of summary trial or jury trial), and the better able is the court to case manage and to sentence. Various arrangements have been attempted over the years. The position is now governed by the Criminal Procedure Rules and the Criminal Practice Directions. Cases and guidance that precede the current rules, and that still appear in some leading texts, should be treated with caution or even ignored. The prosecutor must serve initial details of the prosecution case on the court officer as soon as practicable, and in any event no later than the beginning of the day of the first hearing. Those initial details must also be served upon a defendant who requests them. Initial details of the prosecution case must in all cases include a summary of the circumstances of the offence and the defendant’s criminal record, if any. Unless the defendant is in police custody, the details must also include any account given by the defendant in interview and any available statement of the effect of the offence on a victim. Also, when a defendant is not in police custody, the initial details must include “any written witness statement or exhibit that the prosecutor then has available and considers material to plea, or to the allocation of the case for trial, or to sentence.”6 It is important to pause here and consider this last passage with care. The requirement is limited to those witness statements that the prosecutor then (our emphasis) has available and considers material. As we will see later, other material may well be necessary for effective case management, but failure to provide that will not (and we suggest should not) preclude the court from taking a plea at the first hearing and case managing as far as practicable.7 What happens if the basic requirements of initial details of the prosecution case are not provided in accordance with CPR 8.3? It is clear that the prosecutor cannot introduce information contained in a document listed in rule 8.3 unless it has been served or made available to the defendant.8 Otherwise, the rules are silent. As Gross LJ said with disclosure of unused material in Petrie,9 this is unfinished business and 6. 7. 8. 9.

Criminal Procedure Rules 8.3. Criminal Practice Directions Part 3A.14. CPR 8.4. DPP v Petrie [2015] EWHC 48 (Admin).

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Essential Magistrates’ Courts Law

requires resolution. It seems to us that there are the following possibilities. Firstly, the prosecutor who is unable to comply with even the bare minima of initial details may consider the rules mandatory and therefore decide that there is no alternative but to withdraw the allegation. In due course a new information or a new charge could be preferred, provided it is in time. Withdrawal, it is submitted, is not tantamount to an acquittal. Secondly, the court could grant an adjournment. There are two problems with this. The first, probably not fatal, is the apparently mandatory terms of 8.2 and 8.3 CPR. The second is that the experience of many courts may suggest that the position will be no further advanced on the next occasion. The third possibility is that the defendant be permitted to enter a plea and for the court to proceed on such information as it has. This may be attractive where the defendant already knows the allegation from a police station interview, or where the charge itself is apparently simple and straightforward (as is often the case with theft from shops or possession of a small amount of cannabis, or many road traffic offences). However, in our view a defendant cannot be required to enter a plea in the absence of initial details unless he or she consents to this course.

Absence of defendant A defendant who has been detained by the police will be produced in person in court or by video link from the police station. If the defendant is in custody but not produced, then the court has no power to progress the case. If the defendant has been bailed by the police to attend court, then it is an offence not to attend at the appointed time (see Fail to surrender to bail under Common Offences, Chapter Seven). If the defendant has been summonsed to attend court, which is (or used to be) typically the case for non-imprisonable matters and motoring cases, then there is no obligation to attend and no offence is committed by failing to attend. In recent years the prosecution has increasingly used its powers to requisition the attendance of the defendant. A defendant who fails to answer 40

The First Appearance

a requisition or summons is not thereby committing an offence under the Bail Act, although a warrant can be issued for his or her arrest. The result is that potentially a significant delay is built into the process. There was widespread concern among those consulted during the Magistrates’ Courts Disclosure Review 10 at the delay between the arrest or interview of a suspect, and the issuing of proceedings by way of summons or charge. In short, an unnecessarily lengthy investigation can mean that evidence is stale when it comes to court. This can lead to injustice. Similarly, it is often unjust to victims, witnesses and eventual defendants, for whom an early resolution is normally desirable. In some cases, a protracted investigation is unavoidable. There may be a number of lines of enquiry to follow. There may be a need for detailed and lengthy forensic science investigation. However, this is rarely the case with trials which are to take place in a magistrates’ court. There are some exceptions. For example, in an excess alcohol case a blood analysis may be needed. In some cases, DNA evidence needs to be analysed, and that can take time. However, those consulted during the disclosure review were concerned that delay had become routine and accepted. They pointed not only to the potential injustice for suspects and witnesses, but also to the inefficiency and extra cost for the prosecution. Generally, investigation that cannot be done immediately is not done at all. The effect of bailing a defendant for a lengthy time is for the investigation to lose impetus; for evidence to become mislaid; and for witnesses to move on. As a result of complaints, particularly that some high-profile people were on police bail for an unconscionable time, the law was changed in 2017.11 There are now strict limits on how long a person can be on police bail without the agreement of a magistrates’ court. Some say that rather than justify their long-standing practice to the courts in this way, police are releasing suspects “under investigation”. This has the potential for long delays in an investigation, without the protection to the public and complainants of bail conditions (for example in a rape case a condition not to contact the complainant). If this is so, it is unfortunate. Any

10. Magistrates’ Court Disclosure Review, Judiciary of England and Wales, 2014. 11. Policing and Crime Act 2017.

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Essential Magistrates’ Courts Law

delay over 28 days should be justified to the court at the first hearing,12 and to the suspect every 28 days, but more often than not this recommendation is ignored. Where a defendant fails to attend the first hearing, the court must decide whether to proceed nonetheless.13 Generally, there is no power to do so where the offence is an either-way offence (as the defendant, unless unruly, usually must be present for the mode of trial procedure14) or for an indictable offence (as the defendant must be present when the case is sent for trial15). In those cases, the only option is to adjourn for the defendant’s attendance, and where appropriate issue a warrant for arrest and production at court. With summary cases the position is different. If prosecution statements have been served16 on the defendant and an appropriate warning given, then the matter can proceed there and then. More usually, the case is adjourned for service of those statements with a warning that if the defendant fails to attend then the case will proceed by way of the statements being read to the court.17 This has been the practice for many years in many non-imprisonable cases, but the same procedure can be — and increasingly is — used for other summary offences. The alternative (to adjourn without a hearing date and where lawful issue a warrant for the defendant’s arrest) is now seen as building-in unnecessary and expensive delay. If the defendant is eventually found not guilty then (unless there was a Bail Act offence) the matter can come to an end. If the defendant is convicted, then in most cases a penalty can be imposed in his or her absence and in due course appropriate enforcement measures taken. There is an automatic right to appeal.

12. See Disclosure Review, above, footnote 10, at para 81. 13. Criminal Procedure Rules 3.9 (2 (a). CPR 24, 12. Section 11 Magistrates’ Courts Act, as amended. 14. MCA 1980, s.17A and 18 (2). See also MCA s.23 and Presence through lawyer, next section. 15. Section 51 (1) CDA 1998. 16. See CPR 24.12 (3). 17. Arguably this also applies to low value shoplifting. Although a defendant must be given the opportunity to elect trial by jury (s.22A (2) MCA), it may be said that he must take that opportunity by attending court. Perhaps the safest course in those circumstances is for the court to adjourn for s.9 proof, warning the defendant that failure to attend means that he will be tried in absence in the magistrates’ court.

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The First Appearance

Presence through lawyer There are some circumstances where an absent defendant represented by a lawyer is deemed not to be absent.18 However, where the defendant has been bailed (as opposed to summonsed) he is obliged to attend in person to avoid prosecution for a Bail Act offence. For mode of trial proceedings, the actual presence of the defendant is required save in exceptional circumstances.19 It is almost certain that the defendant must be personally before the court for the case to be sent to the Crown Court.

Defendant present In most cases, of course, the defendant in a criminal case does attend court. The next passages in this chapter assume that to be the case. Where the defendant was bailed, then ideally he or she will have instructed a solicitor who has taken advantage of the arrangements to obtain a summary of the prosecution evidence (or better still the prosecution statements) and disclosure (see later in this chapter). Unfortunately, expectations are not always realised. Many defendants do not instruct a lawyer before the hearing. When they do, the lawyer may take no action until legal aid is granted. Alternatively, the solicitor’s request to the CPS may have gone unanswered. As a result, the defence often have to do their best to prepare at court with the information provided on the day. The bench should show tolerance and understanding of the difficulties faced by the defence in these circumstances. Nevertheless, that tolerance and understanding should not extend to adjourning the hearing. Save in rare cases, the court must progress as best it can on the information available. This can cause friction with defendants and their lawyers. Some lawyers believe strongly that they ought to be entitled to see the evidence before advising on plea. In fact, the entitlement is confined to the initial 18. S.122 MCA 1980. 19. S.18(3) MCA 1980 where it is impractical for the defendant to be present because he is disorderly or s.23 MCA where the defendant is represented by a lawyer who confirms that the defendant consents to mode of trial being conducted in absence and there is good reason for proceeding in absence (for example sickness or perhaps absence on business abroad).

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Essential Magistrates’ Courts Law

details as set out in the section on Paperwork, above (those statements the prosecution then has available and considers material).20 Where the statements are not available, pleas should be entered on the basis of any summary provided and the defendant’s instructions. There will be occasions where a defendant genuinely cannot say whether he is guilty or not before seeing the evidence. He or she may have no memory of events, or the law may be complicated. In those circumstances the appropriate course is to plead (or, in the case of an indictable-only offence, indicate) not guilty. For the effect on discount for a guilty plea, see Chapter Nine. Indictable-only offences must be sent to the Crown Court and the assumption is that this will happen at the first hearing. Indictable-only offences include (among many other offences) murder, rape, robbery, grievous bodily harm with intent, blackmail, causing death by dangerous driving, arson with intent to endanger life, some domestic burglaries, some firearms offences and conspiracies. The defendant must be asked whether he or she intends to plead guilty at the Crown Court.21 The Plea and Trial Preparation form must be completed.22

Either-way offences Either-way offences may be tried in the Crown Court or in a magistrates’ court. Such offences include (among many others) ABH, affray, possession of offensive weapons or knives, most burglaries, most thefts, handling stolen goods, fraud, almost all drug offences, causing death by careless driving, many sexual assaults, possession of indecent photographs of children and arson.23 Criminal damage and low-value shoplifting are special categories. Criminal damage is classified as an either-way offence. However, only where the damage of the offence or series of offences is valued at over 20. 21. 22. 23.

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CPR 8.3. CPR 3.2 and CPD 3A.1. CPD 5A.2. Schedule 1 to the Magistrates’ Courts Act lists many either-way offences. In other cases, the statute creating the offence will indicate separate maximum penalties for trial on indictment or summary trial. The Sentencing Guidelines provide a ready reference, as do the main reference books (for example Blackstone’s and Edwards).

The First Appearance

£5,000 (or the damage is by fire, that is arson) can the case be tried at the Crown Court. There is a special procedure for criminal damage cases that includes provision for the procedure where the value is not clear.24 Where the case is tried summarily because the value is, or is deemed to be, £5,000 or less, then the maximum penalty is three months’ imprisonment and/or a level 4 fine. Low-value shoplifting is stealing goods valued at £200 or less from a shop or any other premises, stall, vehicle or other place where the goods were being offered for sale as part of a trade or business.25 This offence is triable only summarily, but, rather curiously, before the trial begins the defendant must be given the opportunity to elect trial in the Crown Court. In our experience it is not uncommon for a person summonsed for low-value shoplifting not to attend court at the first hearing. Our view is that rather than issue a warrant for arrest, it is good practice to set the matter down for summary trial by way of s.9 MCA proof, and giving notice to the defendant that the trial will take place then unless he or she attends and takes the opportunity to elect jury trial. However, there is as yet no authority on whether this clearly constitutes giving the person the opportunity afforded by the law. If the case proceeds to conviction a penalty can ordinarily be imposed in absence and enforced in the usual way. Where the case to be tried is decided by an allocation process, usually at the first hearing in a magistrates’ court. The allocation process is complicated. The statutory provisions on mode of trial are set out in sections 17A to 17C, 18-21 and 23 of the Magistrates’ Courts Act. It used to be thought that these provisions were directory rather than mandatory, particularly where a defendant is legally represented, but this is not the case.26 Courts must rely on the legal adviser to follow the correct procedure, which is helpfully and appropriately set out in the Criminal Procedure Rules on allocation.27

24. CPR 9.10 (2), MCA 1980 s.17D, 22, 33 and Schedule 2. 25. MCA s.22A. 26. R (Rahmdezfouli) v Wood Green Court [2014] 1 All ER 567; Westminster City Council v Owadally [2017] EWHC 1092 (Admin). 27. CPR Part 9.

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Bearing in mind that the statutory process must be followed in court, the key points are these: • There are separate provisions for youths, see below page 49. • For any either-way offence (except criminal damage of a value of not more than £5,000) the defendant who intends to plead not guilty and wants trial on indictment will be tried at the Crown Court, either by a decision of the magistrates or by defence election. • The charge shall be read to the accused, and after an explanation of the process, the accused is asked whether he or she would plead guilty. • If the indication is guilty the court proceeds with the sentencing process, which is dealt with in Chapter Nine 28 and includes the power to commit to the Crown Court. • If not, the court decides whether to allocate to the Crown Court or retain jurisdiction. • The defendant may then ask for an indication of sentence, and if so there is a process to follow. • Even if the court retains jurisdiction, the defendant can require Crown Court trial, in which case the case is sent to the appropriate Crown Court (normally there are agreed arrangements as to which is the appropriate Crown Court). • Where the court on the same occasion deals with two or more adult defendants charged jointly, then if one elects jury trial, any co-defendant on a joint or related charge who does not plead guilty must also be sent to the Crown Court. • If the case is sent to the Crown Court, bail and some limited case management will be conducted. • If the case is to be tried at a magistrates’ court, full Managing for trial will take place (see page 61).

28. See also CPR 24.11.

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Summary offences Summary offences include almost all non-imprisonable offences or offences where the maximum penalty is six months’ imprisonment or less. There are hundreds, perhaps thousands, of such offences. Many of them are motoring matters. Other common offences to come before the courts are common assault, assaulting a police officer, taking a conveyance, drink driving, some public order offences, and harassment.

No indication The Magistrates’ Courts Act and the Criminal Procedure Rules recognise that a defendant cannot be required to give an indication of plea. If none is forthcoming, then the court will proceed on the assumption of a contested trial. Similarly, with an either-way offence, unless the defendant consents to summary trial, the case will be sent to the Crown Court. Some defendants respond “no indication” when asked. This is unhelpful and discouraged, even if it is on advice from the advocate. The CPR refer to “if the defendant does not answer, then …”, rather than “no indication”. It is not clear why the no indication approach is taken. Later in the same process the defendant will be asked to plead guilty or not guilty (if the case is to be tried summarily) or indicate likely plea if the case is sent to the Crown Court. There may be a misunderstanding that making no indication preserves credit for a later guilty plea. In fact, maximum credit is reserved for those who plead guilty at the first stage of the proceedings.29 There is an exception where further information, assistance or advice was necessary, but this does not apply where a defendant merely delays a guilty plea in order to assess the strength of the prosecution evidence.30

29. Reduction in Sentence for a Guilty Plea. Sentencing Guidelines Part 4 D1. 30. Sentencing Guidelines Part 4 F1.

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The allocation decision As mentioned above, the statutory procedure must be followed, as must the rules. Clear guidance on the underlying approach is given in the Sentencing Council’s Allocation Guideline.31 In general, either-way offences should be tried summarily unless: • The outcome would clearly be a sentence in excess of the court’s powers, taking into account mitigation. • An exception applies for cases involving very large fines in cases triable either-way. Here an authorised DJ(MC) must take the allocation decision and follow CPD XIII Annex 3. • For reasons of unusual legal, procedural or factual complexity the case should be tried in the Crown Court. This exception may apply in cases where a very substantial fine is the likely outcome. Other circumstances where this exception applies are rare. • When the court accepts summary jurisdiction, it must warn the defendant that all sentencing options remain open, including committal to the Crown Court. Before the allocation decision is taken the parties can make representations, and the definitive sentencing guidelines should be referred to and taken into account. The court should bear in mind its power to commit for sentence after a trial and may retain jurisdiction notwithstanding that the sentence may exceed its powers. There is ordinarily no statutory restriction on committing an either-way offence for sentence following conviction. This applies even where the defendant is the subject of a Crown Court suspended sentence. There is no requirement that the offence seems more serious than when first accepted for summary trial. This seems only fair. Many defendants, with good reason, prefer summary trial, and should not lightly be deprived of this opportunity. 31. Sentencing Guidelines Part 24 Allocation: Definitive Guideline.

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There has long been a misconception about the court’s powers to commit after summary conviction (and this misconception is addressed in the Leveson Review, see page 57 post and Criminal Justice Terms and Abbreviations at the end of this book). Of course, some either-way offences, such as serious drug or serious sexual assault cases, are obviously suitable only for trial on indictment.

Youths in an adult magistrates’ court Where a youth (child or young person) appears in an adult magistrates’ court it would be wise for all concerned to consider the sentencing guidelines for children and young people effective from June 2017. These include allocation guidelines and two helpful flowcharts: one for a child or young person and adult charged as co-defendants when the adult is charged with an indictable-only offence; and the other when a child or young person and adult are charged as co-defendants where the adult is charged with an either-way offence. This is a specialist and complex area. The proper venue for the trial of any child or young person (that is someone aged 17 or under) is normally the youth court. There are exceptions. A child or young person must always appear in the Crown Court for trial if charged with homicide; charged with a firearms offence subject to a mandatory minimum sentence of three years (and is over 16 years of age at the time of the offence); or if notice has been given to the court in a serious or complex fraud or child case. In addition, a case should be sent to the Crown Court for trial if the offence charged is a specified offence32 and the dangerous offender provisions seem likely to apply. Similarly, under the grave crimes33 provisions a youth should be sent to the Crown Court if there is a real prospect that a sentence substantially in excess of two years’ detention will be imposed. (Courts should however remember that if a youth court convicts a youth of a 32. As listed in the Criminal Justice Act 2003, schedule 15. 33. Section 91(1) Powers of Criminal Courts (Sentencing) Act 2000. Broadly speaking these are offences punishable with 14 years’ imprisonment or more for an adult; sexual assault; and firearms offences.

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grave crime, there are now provisions whereby the case can be sent to the Crown Court for sentence.) Where a youth is charged jointly with an adult who is to be tried in a magistrates’ court, then the youth must be tried in that court also. No doubt special provisions for the trial will be made to take account of age and vulnerability. If the youth pleads guilty or is found guilty, then normally the case should be sent to the youth court for sentence, although there are exceptions. In all other cases the proper venue for the trial of a youth charged jointly with an adult is the youth court. If the adult is sent for trial to the Crown Court, the magistrates should conclude that the child or young person must be tried separately in the youth court unless it is in the interests of justice for there to be a joint trial. The sentencing guideline gives examples of factors that should be considered when deciding whether to send the child or young person to the Crown Court, rather than having a trial in the youth court. Age and lack of maturity are factors but perhaps the most common in practice is where separate trials would cause injustice to witnesses, or to the case as a whole.

Mental disorder Many defendants in magistrates’ courts suffer from mental disorder, and magistrates and district judges need to know not just about the legal implications but also about the support services that may be available. For those defendants who appear for the first time in custody, the police should already have arranged for “appropriate clinical attention”, which may in some cases lead to a transfer to hospital.34 However, larger city courthouses may also offer a facility for defendants suffering from mental disorder to be seen by a community psychiatric nurse. It is essential that this assessment is carried out before the defendant is produced to the court. Sometimes it leads to a psychiatrist being called and the defendant is then admitted to hospital under the Mental Health Act 1983 without 34. PACE Codes of Conduct, Code C, para.9.5.

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appearing before the court. The proceedings can then be adjourned in his or her absence for an appropriate period. Such an adjournment will be pursuant to the court’s power under s.10(1) MCA; it is not a remand, and questions of bail or custody do not arise. It is sensible to fix a further date for the next appearance, taking account of any representations by prosecution and defence solicitors. Note the requirement to find out the likely plea.35 Despite the availability of diversion schemes like the one mentioned above, it is not uncommon for a defendant to appear before the court (whether on bail or in custody) in circumstances where there are clear grounds to suspect mental illness or disorder. In such circumstances, the court may feel that a psychiatric report is required, either because of the possibility of making a hospital order under s.37(3) Mental Health Act without convicting the defendant, or because (and this will be very rare) the court requires a psychiatric report to help the court determine a question of intent or insanity. The decision to order a report may be taken on the court’s own initiative.36 Where the court does order a report, it must give clear instructions to the practitioner as to the content of the report and the issues to be addressed.37 It must be remembered that fitness to plead can never be an issue in a magistrates’ court: fitness to participate in the trial process will be the issue. There is however an important practical problem which should not be ignored. Where the court orders a report, the fee payable to the doctor who prepares it is prescribed by the regulations.38 It can be difficult to find doctors willing to do the work at these rates. A higher rate may be payable where the report is commissioned by the defence solicitor, subject to prior authority having been granted by the Legal Aid Agency. It may therefore be more effective to allow the defence solicitor to commission the report, although this may involve delay. In cases (and this is not uncommon) where the purpose of the report is to persuade the CPS 35. 36. 37. 38.

CPR 3.9 2(b). CPR 3.28. CPR 3.28(3). Costs in Criminal Cases (General) Regulations 1986. Under Regulation 25, where a consultant prepares the report the fee is £74.80, rising to a maximum of £298.25 where more than two hours work is necessary; for a more junior doctor the basic fee is only £52.80, rising to a maximum of £211 (as of January 2019).

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that it would not be in the public interest to proceed with the prosecution, defence solicitors may in any event take the initiative and apply for an adjournment for this purpose. This is not a purpose contemplated by the CPR, but it would seem sensible to apply the provisions of CPR 3.28 in connection with identifying the issue to be addressed by the report and setting a timetable for its delivery. Again, note the requirement under CPR 3.9 2(b) to either take a plea or find out the likely plea. It is good practice in such cases to set the case down for a final hearing at this stage, even though it is not known whether that hearing will be a trial or a hearing under s.37(3). Particular problems can arise where the charge concerns an either-way offence. Where a medical report has indicated that the defendant is not fit to participate in the trial process, he or she will be unable to consent to summary trial. In that situation, the court should decline jurisdiction and send the case to the Crown Court, where the issue of the defendant’s fitness to plead can be determined. In rare cases, where there is agreement about the facts and the need for a hospital order, and the report is available at the first hearing, the magistrates’ court can proceed under s.37(3) without the need to hold any form of trial: R v Lincoln (Kesteven) Justices (ex p O’Connor) [1983] 1 WLR 355. Where the offence is summary only, questions of consent do not arise. A not guilty plea can be entered on the defendant’s behalf and the case can be listed for a final hearing in the normal way, pending preparation of any report. At the final hearing, the case can either proceed as a normal trial or as a finding of fact hearing under s.37(3). Proving the case against the defendant may be difficult if the offence requires proof of mens rea (the mental state required for the particular offence). Alternatively, insanity is available as a defence in a summary trial.39 In the Stratford case, the Divisional Court offered guidance to magistrates’ courts faced with these issues. Before embarking on a trial where insanity may be raised as a defence and where an order under s.37(3) is a possibility, the court should invite submissions on the procedure to adopt. Careful

39. R (Singh) v Stratford Magistrates’ Court [2007] 4 All ER 407.

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consideration should be given to any reason advanced as to why the issue of insanity should be tried, taking into account the interests of justice. Where the issue of mental disorder arises later in the proceedings, a magistrates’ court dealing with an imprisonable offence has the power to adjourn a trial for a medical report in a case where it is satisfied that the defendant did the act in question.40 Although the section does not say so explicitly, it “contemplates a s.37(3) case, in which the possibility of a hospital or guardianship order without conviction is being considered” (per Hughes LJ in the Stratford Magistrates case). It follows that a court could consider a s.37(3) order even in a case where mental disorder had not been raised as a preliminary issue but came up in the course of the trial. The power to make a hospital order following conviction is available only for imprisonable offences.41 Evidence, oral or written, is required from two doctors, at least one of whom must be registered under s.12 of the Act, and the court must be satisfied that the defendant is suffering from a mental disorder of a kind which makes it appropriate for him or her to be detained in hospital for treatment and that a hospital order is the most suitable form of disposal. An order can only be made where the medical evidence establishes that a hospital bed will be made available for the defendant within 28 days of the order being made. There is however no obligation on the hospital to keep the patient detained for six months, which is the duration of the order. Only a Crown Court can impose a restriction order, which imposes limitations on the power of the hospital to discharge a patient. Although a hospital order is an alternative to a sentence of imprisonment, no victim surcharge is payable (but compensation may be ordered). In addition to the power to make a hospital order, courts may instead make a guardianship order, putting the defendant under the guardianship of the local authority. Such orders are very rare, mainly because of the unwillingness of local authorities to take on this responsibility.

40. s.11 Powers of Criminal Courts (Sentencing) Act 2000. 41. s.37(1) Mental Health Act 1983.

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Perceived advantages and disadvantages of summary trial What are the advantages and disadvantages of summary trial? From a defendant’s point of view there are several advantages of summary trial. • If convicted, there is an unfettered right to an appeal by way of rehearing in the Crown Court. This effectively means that a defendant who consents to summary trial has the possibility of two fair trials, and only needs one acquittal. There is no unfettered right to a rehearing of a jury conviction. • A magistrates’ court must give reasons when convicting. These need not be detailed but should be sufficient to explain how and why the decision was reached. If those reasons are insufficient, for example by suggesting the bench applied the wrong test, then an appeal can be lodged at the High Court. A jury gives no reasons. • There is also a power to reopen conviction in the interests of justice.42 This is sparingly used but can in some circumstances provide a quick and convenient solution to an obvious miscarriage of justice. No similar process applies in the Crown Court. • A summary trial usually takes place many months earlier than had the same case been sent to the Crown Court. For an innocent defendant (and perhaps many guilty defendants) this means that the strain of waiting for trial is much reduced. It also means that the restrictions placed on liberty by being on bail, or even more so in custody, are for a reduced time. • Many people find the comparative formality and length of a jury trial to be more intimidating, and therefore more stressful, than trial in a magistrates’ court. In some cases this can affect the quality of evidence of a witness, including the defendant. 42. Section 142 Magistrates’ Courts Act. In Houston v DPP [2015] EWHC 4144 (Admin) the Divisional Court considered that s.142 MCA can be used only as a slip rule to correct a mistake. However, Andrews J in Rathor v Southampton Magistrates’ Court [2018] EWHC 3278 (Admin), in a non-binding comment (obiter), prefers earlier decisions where the wider test of “interests of justice” is applied. We respectfully agree with her.

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• Summary trial is cheaper than trial on indictment.43 This affects not only the public purse, but the defendant who pays privately and indeed the defendant who is represented under a legal aid certificate but is convicted and ordered to pay costs. Despite these advantages, many defendants who are given the choice elect to be tried by a jury. • Many criminal lawyers are convinced that a trial in the Crown Court provides a better opportunity, in our adversarial system, to test the evidence. • The acquittal rate in the Crown Court is higher than the acquittal rate in magistrates’ courts.44 • Delay causes some prosecution witnesses to withdraw cooperation. • The delay suits some defendants and can assist the defence. It gives more time to prepare that defence. Delay affects the memory of even the most honest witness which can create a doubt about reliability and therefore a doubt about guilt. Even if found guilty or pleading guilty the defendant has had more opportunity to prepare mitigation: “since this offence the defendant has found work and is supporting a new-born child”. Where custody is likely, that gives a greater opportunity for the defendant to put his or her affairs in order before sentence. Finally, some people simply prefer to put off the evil day. • There is a perception among some people that there is less prejudice towards black or ethnic minority defendants from a jury than from magistrates. There is little evidence to support this perception and indeed such evidence as there is suggests that 43. The National Audit Office estimated in 2016 that a Crown Court trial costs on average £1,900 a day, while a magistrates’ court trial costs £1,150 a day. As a trial in a magistrates’ court is typically quicker than the same trial in the Crown Court, there is a significant cost saving for summary trial. In 1999 The Independent newspaper reported that a Crown Court trial cost ten times more than a magistrates’ court trial. 44. The conviction rate in the Crown Court is 80% and in the magistrates’ courts 84% according to CPS key performance measures 2017-18. There are different ways of measuring this.

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black and ethnic minority defendants are treated in the same way as white defendants both by juries and magistrates45. There are different views on whether the sentence for a comparatively less serious offence would be more lenient in the Crown Court than for the same offence as dealt with by magistrates. For some time, there was a widespread misconception that a defendant convicted of an either-way offence in a magistrates’ court could not then be sent for sentence to the Crown Court for a greater sentence than the magistrates could impose (usually six months’ imprisonment). However, that misconception has been firmly dispelled by the Leveson Review.46 The Sentencing Guidelines Council definitive guideline on allocation makes the same point: “There is ordinarily no statutory restriction on committing an either-way case for sentence following conviction.”47 The fact that in many cases where magistrates have declined jurisdiction the sentence later imposed at the Crown Court was within the magistrates’ powers has led to an argument that magistrates are more punitive than Crown Court judges. However, this does not take sufficient account of several factors. Circumstances can and do often change between sending to the Crown Court and sentence there. A plea of guilty may be entered on a less serious basis than was indicated before the magistrates. Magistrates are encouraged to commit for sentence where they would have imposed a community order if breach of that order would result in a prison sentence longer than they have power to impose. Some benches may take the safe option.

45. An extensive analysis of ethnicity and jury trials in England and Wales, covering all jury verdicts against all defendants in the Crown Court over an eight-year period from 2006 to 2014, found that Black, Asian and Minority Ethnic (BAME) defendants are not disproportionately convicted by juries. See the summary by Professor Cheryl Thomas in the Criminal Law Review [2017] p.860. There has been no similar research on convictions in magistrates’ courts. However, an extensive piece of research by the Sentencing Advisory Panel on sentencing for shop thefts found ethnicity was not a factor that affected sentencing (Sentencing in Cases of Theft from Shops, Martin Speed and John Burrows for the SAP, August 2006 https://www.lccsa.org.uk/assets/documents/ consultation/researchreport-theft0806.pdf ). 46. Review of Efficiency in Criminal Proceedings by Sir Brian Leveson, PQBD, Judiciary of England and Wales, January 2015, p23. 47. Sentencing Council Guideline Part 24 Allocation SG-599.

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In fact, magistrates rarely sentence towards the top end of their own limited powers. Moreover, extensive research on sentencing for theft from shops showed that judges impose longer sentences for offences of similar severity than magistrates.48 Sentencing guidelines must be followed (although there remains considerable latitude). Most important of all, although an aggrieved defendant in a magistrates’ court has an unfettered right of appeal, this is rarely used.

Sending to the Crown Court General

Indictable cases must be sent to the Crown Court. In addition, the Crown may serve a notice in a fraud case, or some specified cases where there is a child witness, requiring the case to be sent forthwith to the Crown Court. With either-way offences “there is no doubt that the decision on allocation is critical and has far-reaching consequences”.49 There is evidence, referred to in the Leveson Review,50 that magistrates’ courts are declining jurisdiction too readily. Between a quarter and a third of cases where summary jurisdiction has been declined result in sentences within the sentencing powers of the magistrates’ courts. “Magistrates’ Courts must be encouraged to be far more robust in their application of the allocation guideline which mandates that either-way offences should be tried summarily unless it is likely that the court’s 48. Sentencing in Cases of Theft from Shops, Martin Speed and John Burrows for Sentencing Advisory Panel, August 2006 https://www.lccsa.org.uk/assets/documents/consultation/researchreporttheft0806.pdf. See tables 6.3; and A27-A34. Note that only 3% of such cases are sentenced in the Crown Court, and there are only 138 such cases (of which 62 or just under half resulted in custodial sentences) in the tables just referred to. While insufficient numbers to draw a firm conclusion, it is hard to argue that a Crown Court judge deals with theft from shops more leniently than do magistrates, who impose custody in 19% of such cases. The research is interesting in other ways. The average offender had 42 previous convictions, was white, male and aged over 28. 49. Review of Efficiency in Criminal Proceedings, Sir Brian Leveson PQBD, Judiciary of England and Wales, January 2015 para 76 (Leveson Review). 50. Review of Efficiency in Criminal Proceedings, Sir Brian Leveson, Judiciary of England and Wales January 2015.

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It is reported in the review that defence teams frequently do not engage in the allocation decision. Wherever possible, the defence and the prosecution should assist the court by advancing the reasons why the case could be tried in a magistrates’ court. It should in each case be possible to identify from the sentencing guidelines whether the likely sentence is clearly in excess of the magistrates’ powers, even with mitigation, and that likely sentence could form part of the magistrates’ reasons in refusing jurisdiction. The following five thoughts should assist magistrates and practitioners: • In general, either-way offences should be tried summarily unless the exceptions in the allocation guideline apply. • A defendant should not lightly be deprived of the advantages of summary trial. • If convicted by magistrates, a defendant can always be sent to the Crown Court for sentence, if the warning was given at the allocation stage. • If the court offers summary trial for an either-way offence, the defendant can nevertheless always choose jury trial. • If in doubt, or the decision is marginal, the court should accept jurisdiction. Linked cases

Where a defendant faces a number of charges, at least one of which is to be sent for trial, the question arises as to where other charges faced by the same defendant should be tried. For example, he may be charged 51. Ibid, para 78.

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with robbery (indictable-only), possession of an offensive weapon used in the robbery (either-way), driving whilst disqualified during the getaway (summary imprisonable) and driving without insurance (a summary non-imprisonable offence). In this example the robbery must be sent to the Crown Court. The court must then consider whether the other offences are related offences. The test for an either-way offence (here the offensive weapon) is whether it could be joined on the same indictment.52 Note that it is “could be joined”, not “must be joined”. Offences could be joined on the same indictment if they are founded on the same facts or form part of a series of offences of the same or similar character.53 For the summary offence the first question is whether the offence is listed under s.40 CJA 1988 (driving whilst disqualified is one of the offences listed under s.40) or is imprisonable or carries disqualification from driving. If not, the offence cannot be sent and must remain on file at the magistrates’ court until Crown Court proceedings are concluded (or sentenced by the magistrates if there is a guilty plea, but that is not usually good practice). If it passes that test, the next question is whether the summary offence arises out of circumstances that are the same as or connected with those of the indictable offence (here the robbery). In this example, all four offences would be sent to the Crown Court. The driving disqualified would be sent for trial as it is a s.40 listed offence. The no insurance (summary, non-imprisonable, but carrying discretionary disqualification) would be sent for plea only, as it is not a s.40 offence. However, any offence of driving without a valid MoT certificate, which does not carry disqualification, could not be sent. Clearly this is tricky. Co-defendants

Where one defendant is sent to the Crown Court for trial, any adult co-defendant appearing on the same occasion must also be sent if the offences are indictable (in this context either-way) and appear to the court to be related, and may be sent if appearing on a later occasion. “Related” carries the same meaning as in the previous section on linked 52. See the Crime and Disorder Act 1998, section 51. 53. CPR 3.21 (4).

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cases. Courts should ask informally if any of the co-defendants is electing Crown Court trial, as this simplifies the proceedings. Co-defendant youths

The proper venue for the trial of any child or young person (that is, someone under 18) is normally the youth court. It is the court that is best designed to meet their specific needs. Trial in an adult magistrates’ court, while not ideal, can be adapted for a child and is less of a problem than when an adult co-defendant is sent for trial in the Crown Court, and allocation must consider whether the youth should also be sent. For a youth, a trial in the Crown Court with the inevitably greater formality and greatly increased number of people involved (including a jury and the public) preferably should be reserved for the most serious cases.54 Subject to statutory restrictions (see below), that remains the case where a youth is jointly charged with an adult. If the adult is sent for trial to the Crown Court, the magistrates should nevertheless conclude that the youth must be tried separately in a youth court unless it is in the interests of justice for the youth and the adult to be tried jointly. Examples of factors that should be considered when deciding venue include: • Whether separate trials will cause injustice to witnesses or to the case as a whole; • The age of the youth: the younger the youth, the greater the desirability that the child or young person be tried in a youth court; • The age gap between the youth and the adult; a substantial gap in age militates in favour of a separate trial in the youth court; • The maturity of the child; • The relative culpability and alleged role of the youth; • Previous convictions, if any, of the youth.

54. R on the application of H, A and O v Southampton Magistrates’ Court [2004] EWHC 2912 (Admin), adopted in the guideline on Sentencing Children and Young People, see page 61.

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The court and practitioners should bear in mind that the youth court now has power to commit for sentence; in appropriate cases this will permit those who have been tried separately to be sentenced together.55 The court should decide allocation for the adult first. If the adult is sent for trial, then it may be helpful to follow the flow chart set out in the Sentencing Council Guideline on Sentencing Children and Young People. Cases of homicide, firearms offences with a mandatory minimum sentence of three years’ imprisonment, cases where the prosecution has served a notice in serious fraud or child case, or where the dangerousness criteria appear to have been met, must be sent to the Crown Court. If not, the grave crimes provisions must be considered before moving on to pleas. It will be seen that this is a complicated and sensitive process. Ideally the court will have set aside time for proper consideration to be given to all matters. It is helpful if the bench, legal adviser, and advocates all have expertise in youth court work. All should refresh their memory from the Sentencing Council Guideline on Sentencing Children and Young People, Part 27. See also the section on Youths in an adult magistrates’ court, above.

Managing for trial The main case management tool is the Preparation for Effective Trial (PET) form, which is prescribed by the Criminal Practice Direction. It is divided into five parts and is available both in paper form and as an electronic version. CPR 3.27 sets out what the court must do at a case management hearing. The form in effect acts as an aide-memoire to ensure compliance with Rule 3.27, but contains much else which will be of value in managing the case. Parts 1 and 4 of the form are to be completed by the prosecutor and the defendant (or his or her solicitor); the prosecutor also completes part 2 and the defendant part 3. The court records its directions in parts 4 and 5. Where it has been possible to identify an anticipated not guilty 55. The above passages are based on the Sentencing Council’s guideline on Sentencing Children and Young People, effective from June 2017.

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plea in advance, the prosecution should complete their sections of the form before the hearing, so that on arrival at court the defendant or his or her solicitor can complete their sections and the court can consider its directions. In other cases, it will be necessary for both the prosecution and defence lawyers to complete the form at court. This may cause delay, but it is unavoidable. Minutes spent on completing the form may save hours at trial. Where there are co-defendants, one form must be completed for each defendant. Part 1 of the form is reasonably self-explanatory, although rarely completed fully. The relevance of obtaining a phone number or email address for the defendant is that it enables the court to send out a reminder to the defendant in advance of the trial date. The form does not prompt the court to obtain the defendant’s nationality, although this is now mandatory. Part 2 is completed solely by the prosecutor. Where the answers given to question 4.4 indicate an intention to rely on hearsay or bad character evidence, it may be possible for the court to consider such an application orally and determine it immediately. The reference in question 4.5 is probably now otiose, as the deployment of Clickshare in courtrooms is now complete and the problems caused by incompatible media should be a thing of the past. Part 3 is completed by the defendant or their representative. Questions 6(a) and (b) echo the provisions of Rule 3.27, although other requirements in the rule (e.g. the need to explain trial procedure to a defendant and the consequences of failing to surrender to bail) are not explicitly covered by the form. The answers given to Question 8 are of great importance in narrowing down the issues in the case. Some defence lawyers will be concerned about what use may be made of the answers given. In principle they can be used by the prosecution to prove elements of the case against the defendant, but this is subject to the discretion of the court to refuse to admit the evidence under s.78 of PACE. The law on this issue was considered by the Administrative Court in the case of Valiati v DPP [2018] EWHC 2908 (Admin), which involved appeals by way of case stated in respect of two convicted defendants. Mr Valiati was charged with a domestic assault. On the form he answered “Yes” 62

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to the question about his or her presence at the scene, and to the question about being correctly identified. In answer to Question 8.2 (“What are the disputed issues of fact or law for trial?”) he answered “I do not remember any of these incidents. I put the prosecution to proof.” There was no application by the prosecution to admit the contents of the PET form as hearsay evidence pursuant to s.118 Criminal Justice Act 2003. At the trial, the complainant did not attend and the only witness to give live evidence was an independent witness who was never asked to identify the defendant. The magistrates drew an inference from the refusal of the defendant to testify and noted the admission of presence on the PET form. The Divisional Court noted the failure to follow the procedure set out in the CPD in respect of applications under s.118 and quashed the conviction. In the second case a youth (referred to as M) was charged with assault and theft of a mobile phone. Her PET form also answered “Yes” to the question about presence at the scene but indicated several issues of fact as being in dispute. In the event, the prosecution failed to serve the record of interview and the police officers failed to attend the trial. The only evidence called by the prosecution was from the two complainants. There was no formal identification evidence. After rejecting a submission of no case to answer, the magistrates referred themselves to the PET form to “confirm” their decision and went on to convict the defendant. Again, there had been no application under s.118. The Administrative Court again quashed the conviction. Returning to the PET form itself, Question 9 invites the provision of a written admission under s.9 Criminal Justice Act 1967 (see section on Criminal Justice Terms and Abbreviations). This enables prosecution and defence advocates to agree matters that are not in dispute and its use should be encouraged. Part 4 of the form provides a witness template to be completed initially by the advocates but with time required for each witness to be determined by the court. Part 5 is for the court to complete and includes (at paragraph 13.5) provision for the issue of a witness summons. It also includes a draft direction prohibiting cross-examination by the defendant in person, which will be relevant in most domestic abuse cases. Finally, 63

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the form records the date and time allocated to the trial. This information will have to be obtained from the court’s legal adviser (or court associate if a district judge is sitting), but we take the view that everything else needs to be conducted by the bench. It is the bench who should scrutinise the answers to the form and decide what directions are required. Case management is a judicial function.

Disclosure Disclosure concerns unused material in the hands of the prosecutor that tends to support the defence or undermine the prosecution. Disclosure is a vital part of preparation for trial, both in the magistrates’ courts and in the Crown Court. All parties must be familiar with their obligations, in particular under the Criminal Procedure and Investigations Act 1996 (CPIA) as amended and the code issued under that Act.56 It is hugely important, yet hugely misunderstood. There are three key points to remember. • Disclosure involves unused material, that is material on which the Crown does not rely. If it is part of the prosecution case, such as statements or exhibits, then it is not part of disclosure. CCTV is no different from any other material collected during an investigation. In some courts, initial details of the prosecution case is still referred to as advance disclosure. This is wrong. It is confusing. • The material to be disclosed must be in the hands of the prosecution. Often the defence ask for disclosure of material not in the hands of the prosecutor. This may be because the material belongs to third parties (which is the case with much of the material asked for in drink drive cases). It may be in phones or CCTV not seized by the police. It may be medical or school records. There are separate rules for third-party disclosure, 56. Criminal Practice Directions Part 15.

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which require a witness summons.57 The case of McGillicuddy and Wood 58 makes it clear that there is no power to order disclosure by the Crown of third-party material. Any court ordering the prosecution disclosure of CCTV, unless there has been an application under s.8 CPIA in compliance with the rules,59 is almost certainly making a mistake. • And finally, only material that tends to support the defence or undermine the prosecution is disclosable. In the first instance it is for the prosecution to decide whether that test is met. It is a key aim of Transforming Summary Justice60 that disclosure be provided at or before the first hearing. If that does not happen, then the court must nevertheless proceed. Where a defendant pleads not guilty a trial date should be set. It is good practice to then order disclosure (without specifying any individual item and in particular not CCTV — the court cannot know if the CCTV fulfils the test, and so stores up later problems if it does not). In a magistrates’ court this will be a streamlined disclosure certificate (SDC) in one of two forms depending on whether there is material to disclose or not. If the prosecution does not disclose an item the defence wants, then the route for the defence to follow is to make an application under section 8 CPIA, which includes providing a full defence case, and then persuading the magistrates why the material sought is likely to meet the appropriate test. The procedure is set out in the Criminal Procedure Rules.61 If disclosure is not made in a timely way, there is an obligation on both parties to raise this with the court well before any contested trial. Raising it on the day may be too late.62 Why is an apparently simple system such a problem? Tomes and reports have been written on the subject. Firstly, the decision on disclosure is taken by the prosecution and the disclosure officer is a police officer. Too often the SDC is not provided by the police at the first hearing. Even 57. 58. 59. 60. 61. 62.

CPR 17.5, 17.6 and 17.7. DPP v McGillicuddy and Wood [2006] EWHC 32 (Admin). CPR 15.5. https://www.cps.gov.uk. Publications. Transforming Summary Justice, 1 September 2015. Criminal Procedure Rules Part 15 Disclosure. See: The Lord Chief Justice’s Practice Direction: April 2019 “Application to adjourn on day of trial”, Appendix 2; and DPP v Petrie [2015] EWHC 48 (Admin).

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where it is, the process is not trusted by the defence. Secondly, electronic material is available on a scale that was unimaginable when the disclosure legislation was introduced. CCTV is widespread and mobile phones are ubiquitous. There are simply not the resources to examine all the material that might be relevant. Thirdly, the simple test set out above is not always applied. Fourthly, investigations into even relatively simple matters take too long. This can mean that when the defence want to obtain material, months after the event, it has already been destroyed. (Incidentally, when we were in private practice as defence lawyers, usually it was considered negligent to ask the police to obtain evidence. If the police undertook those enquiries it could strengthen the case against our clients. That approach appears to have disappeared, perhaps because the defence too is underfunded.) There is an obligation on the court not to order disclosure inappropriately. It became clear to the authors of the Review of Disclosure in Magistrates’ Courts 63 that at least in 2014 many benches were ordering disclosure inappropriately. The most common situations reported involved CCTV, or drink drive cases. The law has been reviewed in the cases of McGillicuddy and Wood 64 and DPP v Manchester and Salford Magistrates’ Court.65 In short, the Crown cannot be ordered to serve material not in its hands, for example engineers' reports and other material in the hands of the manufacturer of the Lion Intoximeter breath-testing machine used by police. In any event there must be a proper evidential basis for the disclosure of such material. It is hard to see in what circumstances a request for information about the workings of a Lion Intoxilyzer 6000 UK breathalyser device could succeed. Where an inappropriate order has been made, and not complied with, the non-compliance does not amount to an abuse of process. The court should not order specific disclosure unless a proper application has been made under s.8 CPIA. At the time of writing, disclosure is again under the spotlight. It remains a real problem. Although experience suggests that disclosure is not often of value to the defence in summary trials, from time-to-time it .

63. Magistrates’ Courts Disclosure Review, Judiciary of England and Wales, 2014. 64. DPP v McGillicuddy and Wood [2006] EWHC 32 (Admin). 65. [2017] EWHC 3719 (Admin).

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can be devastating to the Crown’s case. CCTV, mobile phone messages and other social media can be game changers. It is essential that police and prosecutors provide proper disclosure, that defence lawyers do not ask for material to which they are not entitled, and that the bench does not order disclosure inappropriately. It is hoped that technology will be developed to address the problem.

Bail The Bail Act 1976 has been amended many times, and the law on bail has become unnecessarily complicated. Long chapters — even books — have been written on the topic of bail. This section can do no more than refer to the situations most commonly encountered in a magistrates’ court. The underlying idea is straightforward enough. It is wrong for a person to spend time in prison if innocent of the crime charged, or guilty but not going to receive a prison sentence. The strength of the evidence is obviously a factor, as that will affect the likelihood of conviction. The seriousness of the allegation is also a factor as that is likely to affect the sentence that would be imposed on conviction. Decisions on bail can be among the most difficult that a court can take. Magistrates cannot grant bail to a person accused of murder, even if that person arrives at court on bail or having been summonsed (it has happened!). There are restrictions on granting bail where a defendant is charged with attempted murder, rape, attempted rape, a serious sexual offence, manslaughter or an offence carrying life imprisonment as its maximum sentence. In all other cases there is a presumption that the defendant will be granted bail until convicted and sentenced (or committed for sentence). The presumption means that a defendant will be granted bail unless the court finds that there are substantial grounds to believe that one of the exceptions to the right to bail is made out. Even if there are substantial grounds, bail may be granted, with or without conditions. Moreover, conditions may not be imposed on bail unless they are necessary.

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The Bail Act sets out the grounds for refusing bail. These vary according to whether the offence is indictable, or a summary imprisonable offence, or a non-imprisonable offence. There are two grounds that potentially apply to any offence, whether imprisonable or not. Defendants may be refused bail for their own protection, or if already in custody. While it might be unusual to refuse bail to a person charged with a non-imprisonable offence, it could happen for their own protection if they are, for example, a suicide risk that is better managed in custody than in the community. There are other exceptions to the right to bail for summary nonimprisonable offences, apart from the two exceptions mentioned above (own protection or already in custody). However, it is vanishingly rare for those other exceptions to apply and as they only apply post-conviction it is better to sentence there and then rather than remand a defendant in custody. When an adjournment is unavoidable it is best for the defendant to be released and reminded of the court’s power to sentence in absence on the next occasion. With imprisonable cases the first question is whether there is a real prospect of a custodial sentence. If not, then generally the defendant cannot be remanded in custody, unless the court is satisfied that there are substantial grounds for believing that the defendant would, if released on bail, commit an offence involving physical or mental injury to a family member. In other cases, the three principal grounds for withholding bail are: substantial grounds for believing that the defendant would: (a) fail to surrender to custody, or (b) commit an offence while on bail, or (c) interfere with witnesses or otherwise obstruct the course of justice. There are other exceptions, for example with a defendant who is already on bail, or has absconded in the present proceedings, or is involved in the abuse of drugs. In addition, there is a useful provision that a defendant need not be granted bail if it has not been practicable to obtain sufficient information for the purposes of taking the decision on bail (the usual practice in such cases is to adjourn the case overnight). Before deciding that there are substantial grounds to believe that an exception to the right to bail is made out, the court will need to consider 68

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relevant factors. These include the nature and seriousness of the offence; the probable method of dealing with the offender; previous convictions; associations and community ties; bail record in the past; the strength of the evidence; and the risk of conduct likely to cause physical or mental injury to anyone else. These factors should not be confused with the grounds. For example, it is not a ground in itself that the offence is serious or that the defendant has previous convictions. These are simply factors in assessing the risk. It is good practice for a court that refuses bail to state clearly the grounds and factors on which it relies. There is a form that has been developed for this purpose, but that can become a tick-box exercise and in our view the court should individually and clearly announce the factors behind its decision. These factors are not, however, assessed according to the usual rules of evidence. It is the current usual practice for the factors to be put to the bench by the prosecutor and for the defence also to rely on submissions. The test is not whether the magistrates are sure, but whether there are substantial grounds for believing that the exception to the right to bail exists. It is a common misunderstanding that the defendant has a right to two applications for bail in a magistrates’ court. There is an unfettered right to apply for bail at the first hearing. If bail is refused, the defence can appeal or make one other application as of right at a later hearing in the Crown Court or in a magistrates’ court. This is because it is generally recognised that the defence may not be able to present their best argument for bail at the first hearing. However, if no bail application is made at the first hearing, then only one application can be made as of right in a magistrates’ court. Another common misunderstanding is that once bail has been refused, a further application can only be made if there has been “a change of circumstances”. In fact, the test is whether there are new arguments that can be put before the bench. So, for example, a defendant may fail to disclose to his or her advocate before the first application that he is the sole carer for a small child. At a later hearing this is not a change of circumstance but it is a new argument. Renewed applications are also common where sureties or securities become available or where time has passed (maybe 69

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28 days) or so that the defendant has spent longer remanded in custody than would be likely on conviction. In addition, there are custody time limits. Generally, this means that a defendant in summary proceedings must be granted bail after 56 days. Where a defendant is granted bail, conditions should only be imposed if there is a real (and not a fanciful) risk and the condition is necessary for preventing that risk. It could be argued that conditions on bail to ensure attendance at court are now less necessary for cases to be tried summarily than used to be the case. This is because changes to the law in 2008 mean that where a defendant fails to attend, without an acceptable explanation, the case should proceed to trial and sentence in absence. The same does not apply for cases to be heard in the Crown Court. Common bail conditions include: to live and sleep at a specified address (the address must first be checked by the prosecution); a surety or security; an electronically monitored curfew; a condition not to enter a certain area; a prohibition on contacting directly or indirectly named people; to surrender their passport; to comply with drug assessments; to attend meetings with the probation service for the preparation of a report. Other conditions can apply. Generally, there is no prescribed wording to the conditions: what is necessary is that they be clear, precise and understood by the defendant. Conditions can be imposed for non-imprisonable offences, where necessary.

The dock There is no law on when the dock in a magistrates’ court should be used. The decision is for the bench on the day. However, we include this section because the topic should be considered by presiding justices in advance. It is important that the bench has a policy it can defend against complaints of discrimination. Some courtrooms have no dock. That means all defendants in that courtroom are treated equally and a problem arises only when someone is remanded in custody or sentenced to a custodial term. The usual

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solution, not always without difficulty, is for the bench to retire before announcing its decision while security is arranged. Where there is a dock, debate centres on which defendants should go into it. Some think it is demeaning for a person to be in the dock and it should be avoided wherever possible. Others think it is the obvious and natural place for a defendant and should be used in all cases. Problems of perceived discrimination can arise when some defendants are in the dock and others in the same court session are not. A policy that used to be prevalent was to distinguish between those appearing on non-imprisonable allegations and those for imprisonable offences. However, this would mean that a man charged with racially abusing a woman at a bus stop (s.5 Public Order Act) would not be in the dock whereas she, who was searched by police and found in possession of a cannabis cigarette, would be. This would not look right. Another policy was that those answering bail would go in the dock, while those summonsed by post would not. However, the prosecution has been known to issue a postal charge and requisition for murder66 while those accused of shop theft are often charged and bailed. In the dock for minor theft and out of it for homicide? Yet another policy, still common, is for youths to be outside the dock and adults inside. This can lead to a youth of 17 charged with murder being outside the dock while his 18-year-old girlfriend charged with perverting the course of justice by giving him a false alibi is in it. Finally, some say that those in custody should be in the dock, while those on bail should not be. This leaves the police to decide who should be in the dock for the first hearing. If the dock is unfair for some is it not unfair for all? Our view is that everybody must be treated equally. That means every defendant in the dock as it is impractical to arrange security for all defendants otherwise. (Incidentally, we believe that those jurisdictions that permit even the most dangerous criminals to sit with their lawyers have either armed security or use leg shackles, neither of which is acceptable here. Even handcuffs are rarely used in England and Wales, 66. CPS v E7, Westminster Magistrates’ Court, 10 September 2014.

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and cannot be applied without the prior authority of the bench, after an application in open court.)

Firearms in court Except in an emergency, armed police officers may not be deployed in any magistrates’ court in England and Wales, except Westminster and Belmarsh (and even there only on the authority of the chief magistrate and the senior presiding judge). This applies to firearms and Tasers but not CS spray or PAVA incapacitant spray.67 Where there is serious concern about security the following may be considered: use of video-link; increased unarmed security at court; or an application to transfer the case to Westminster Magistrates’ Court or a local designated Crown Court coupled with an application for the authorisation of police officers within the court precincts.

Costs at first hearing Where a guilty plea is anticipated in a magistrates’ court then a streamlined file can be prepared. Where the anticipated plea is not guilty, then a more substantial file must be prepared. Among other things, an anticipated plea of not guilty will require a disclosure schedule and clear identification by the officer with conduct of the case of any available material that undermines the prosecution case or assists the defence. The cost difference, in terms of police resources, between a streamlined file and a full file is very significant in the context of a summary trial. This is believed to be a major factor in undermining previous attempts to ensure full case management at an early stage. In our view, it is appropriate to differentiate between the costs awarded to the prosecution depending on whether a streamlined file or a full file has been produced. Whether it is fair or appropriate in any particular case 67. CPD 1 General matters 3M, also referred to at CPD 14.

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to award the higher amount will remain at the discretion of the court. The bench may decide, for example, that a guilty plea was clearly indicated at an earlier stage and the preparation of a full file was unnecessary. For costs after trial see page 91 and page 187.

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CHAPTER FIVE

Youths, Vulnerable Witnesses and Defendants

Introduction The Youth Justice and Criminal Evidence Act 1999 introduced a number of measures designed to make it easier for young or vulnerable witnesses to testify in court. In their original form, these provisions did not extend to defendants, and s.19, which deals with special measures directions, explicitly limits their scope to “a witness in the proceedings other than the accused”. Subsequently, provisions have been introduced allowing young or vulnerable defendants to give evidence over a live link or via an intermediary, although to date only the provisions relating to live link have been brought into force. Nevertheless, courts (including magistrates’ courts) have both an obligation and an inherent jurisdiction to do what is necessary to ensure a fair trial. The starting point is now to be found in paragraph 3.9(3) CPR: “the court must take every reasonable step … to facilitate the participation of any person, including the defendant”. The statutory scheme under the 1999 Act is no longer to be seen as a definitive guide to what special measures may be deployed in a particular case.

Eligibility For practical purposes, all the special measures discussed below are available both to witnesses (whether for the prosecution or defence) and to defendants, although some details may differ. Eligibility for special 75

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measures under the statutory scheme is complex. The first group (young and vulnerable witnesses) comprises witnesses under 18 at the date of the hearing (i.e. the case management hearing, not the trial date), who are automatically eligible for assistance. Witnesses who suffer from mental disorder or who have a significant impairment of intelligence and social functioning, or who have a physical disorder, are also eligible, but only if the court considers that the quality of the evidence to be given by the witness is likely to be diminished by reason of that disability. In reaching that decision, the court must consider any views expressed by the witness, a provision often overlooked in practice. The second category comprises witnesses suffering from fear or distress. In deciding if a witness falls into this category, the court must consider a number of factors set out in s.17, including the nature and alleged circumstances of the offence, the social and cultural background of the witness, and any behaviour towards the witness on the part of the accused or his or her family or associates. In addition, the court must again consider any views expressed by the witness. It is not uncommon for a supposedly vulnerable witness to prefer to give evidence openly, rather than from behind a screen or via a live link. Additionally, complainants in sexual offences and under the Modern Slavery Act 2015 are granted automatic eligibility, unless they inform the court that they do not wish to be eligible. Finally, witnesses in cases involving knives or firearms are also granted automatic eligibility, subject to the same proviso.

Applications The nature of the special measures available under the statutory scheme differs according to the category in which the witness belongs. Witnesses in the first category (young and vulnerable witnesses) are eligible for all available special measures; those in the second category may not be granted the use of an intermediary or other aid to communication. The rules require that any application is made within 28 days after the entry of a not guilty plea. Applications are made on notice and are normally considered on paper without a hearing. They may also be made orally 76

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at the case management hearing, and the preparation for effective trial form prompts the court to consider making special measures directions at that hearing. Very few applications for special measures are contested, but there is provision for a directions hearing to consider any opposed applications.

Special measures Video-recorded evidence-in-chief

It is now common practice for police to record interviews with young witnesses and to seek to play the recording as the witness’ evidence-inchief at the trial. Young witnesses are of course automatically eligible for special measures and such interviews are admissible, although the witness must also be available at court for cross-examination (usually via a live link). S.21 imposes a “primary rule” by virtue of which the court must direct that any relevant recording is admitted in this way, along with a direction for any other evidence from the witness to be given via a live link. There is provision to disapply the rule where the witness notifies the court that he or she does not want to give their evidence in this way and the court is satisfied that the quality of that evidence will not thereby be diminished. In reaching that decision the court must take into account the age and maturity of the witness and other relevant factors. Where no video-recording is available, then of course it cannot be admitted into evidence. Even where one is available, its admissibility may be subject to challenge on other grounds. Police officers and social workers are required to conduct interviews in accordance with a manual of guidance entitled Achieving Best Evidence and such interviews are therefore known as ABE interviews. Sadly, it is by no means uncommon for ABE interviews to fall short of the standard required. In those circumstances, the court may direct exclusion of all or part of the interview if, in the opinion of the court, the interests of justice so require. In reaching that decision the court must consider whether any prejudice caused to the defendant by showing the part in question is outweighed by the desirability of showing the whole interview. Ideally (and this is what is 77

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prescribed by the Criminal Practice Direction) there should be prior agreement between the parties as to any editing required and the court should be provided with an edited copy of the recording. In practice this rarely happens in magistrates’ courts and magistrates or district judges may be invited simply to disregard passages in an interview which should have been omitted. Witnesses are entitled to refresh their memories before being cross-examined on the contents of a recorded interview, but do not need to be present when the video is played to the court. Equally, the defendant is entitled to study the video and discuss its contents with his or her solicitor in private. There is now no bar on supplementary questions in chief; leave is only required where the topic in question has been dealt with during the recorded interview. Live link evidence

Most courtrooms now have equipment installed allowing a witness to be seen and heard over a telecommunications link, enabling the witness to give evidence from either a separate room in the courthouse or a remote location. A direction enabling this method of giving evidence is standard in cases where the evidence-in-chief is given in the form of a video-recording, but is also used in many other situations. Although s.23 envisages that the witness must be both visible and audible to the bench, to legal representatives on both sides and to any interpreter assisting the witness, there is no statutory requirement that the defendant (or members of the public) should also be able to see the witness (or vice-versa). It is interesting that paragraph 18A.2 of the Criminal Practice Directions implies otherwise, while expressly allowing the live link screen to be shielded from the view of the defendant and public. A witness giving evidence in this way may be accompanied by a supporter chosen by the witness, although the supporter must not be a party to the proceedings or have detailed knowledge of the evidence in the case. Court ushers are often asked to perform this role: their familiarity with the technology involved is often of great assistance.

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Screens

This is perhaps the special measure most commonly used in magistrates’ courts. The witness gives evidence from behind or alongside a screen positioned between him and the defendant, but allowing the bench and the legal representatives to see him. Intermediaries

Although the statutory scheme does not yet encompass the provision of intermediaries for defendants, it is probably more common to encounter applications for the use of an intermediary in the case of a defendant than for a witness, particularly in youth courts. The role of the intermediary is to facilitate communication with witnesses and defendants who have communication needs. Intermediaries are professionals and are accredited by the Witness Intermediary Scheme (WIS). When appointed to assist a witness, they are known as registered intermediaries and are paid by the party calling the witness at rates specified by the Ministry of Justice. In the case of a defendant, the Legal Aid Agency may grant prior authority to fund a pre-trial assessment, and will also cover the costs of pre-trial conferences, but its guidance makes it clear that the cost of the intermediary’s attendance at court for the trial must be met by HMCTS. Intermediaries acting for defendants are known as non-registered intermediaries and are unaccredited, although in practice they will usually be accredited under the WIS. In cases where the Legal Aid Agency refuses prior authority the court may exercise its inherent powers to direct the appointment of an intermediary, either to assist the defendant when giving evidence, or for the entire course of the trial, although this will be extremely rare. In all cases involving an intermediary, it will be necessary to hold a ground rules hearing (see below). There is a national shortage of intermediaries and a defendant’s communication needs may not be fully-recognised until late in the pre-trial process, making it impossible to obtain the services of an intermediary. In those circumstances, the court must adapt the trial process to address the defendant’s communication needs: R v Cox [2012] EWCA Crim 549. Even where there has been a direction to appoint an intermediary which proves to be ineffective, the trial will not automatically be unfair. 79

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Communication aids and interpreters

As with intermediaries, communication aids (e.g. sign boards or electronic communication devices) are only available to witnesses in the first category of eligibility (young and vulnerable witnesses), but it would be a breach of a defendant’s Article 6 rights to deny the use of such a device to a defendant who needed one in order to communicate. The use of an interpreter is not classified as a special measure under the statutory scheme, nor is there much guidance (save in respect of the Welsh language) to be found in the CPR or the CPD. Nevertheless, it is an important aspect of the court’s duty to ensure a fair trial. Rule 3.9 CPR makes it clear that it is the responsibility of the court to provide an interpreter (or intermediary where the defendant has a speech impediment) for the defendant but is silent about interpreters for witnesses. In practice, the court provides interpreters for defence witnesses and the prosecution arranges interpreters for its witnesses, although the PET form (at paragraph 13.6) suggests that it is the responsibility of the defendant to arrange interpreters for his or her witnesses. Evidence in private

This special measure is perhaps used less often in magistrates’ courts than it should be. It applies in cases involving a sexual offence under Part 1 of the Sexual Offences Act 2003, offences under the Modern Slavery Act 2015 and also to any offence where there are grounds to believe that a person other than the defendant has sought or will seek to intimidate the witness. In such cases the principle of open justice is disapplied and the witness may give evidence in private, although a nominated representative of the press must be allowed to attend. Witness anonymity orders

Sections 86 to 90 of the Coroners and Justice Act 2009 provide a statutory scheme allowing for a witness to give evidence anonymously. This scheme has been described (by the then Lord Chief Justice) as “the special measure of last practicable resort”. There is detailed guidance in the CPD Part 18 as to the procedure to be adopted, but applications for such orders in magistrates’ courts are very rare. 80

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Ground rules hearings

Although not a special measure as such, ground rules hearings are an integral part of the intermediary process and also have a part to play in other cases where a vulnerable witness or defendant is to give evidence. There is detailed guidance in the CPD Part 3 and also on the website www.theadvocatesgateway.org. Among other matters, the guidance makes it clear that traditional cross-examination is not always appropriate or permissible where the witness is young or otherwise vulnerable and may fail to understand questions, become distressed or acquiesce to leading questions. Where an intermediary is involved, guidance as to the form of questions will be available, usually from the pre-trial assessment. In addition to modifying the way cross-examination takes place, it may be necessary to alter the court’s timetable to accommodate the needs of the defendant or witness, e.g. by taking frequent breaks. In sexual cases, the guidance requires the use of body maps.

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CHAPTER SIX

The Trial

The overriding objective The overriding objective is that criminal cases be dealt with justly. That includes acquitting the innocent and convicting the guilty. However, a criminal trial is not a search for the truth. In England and Wales there is an adversarial process that involves the prosecution having to prove its case so that the court is sure. If there is a reasonable doubt, the only permissible verdict is not guilty. Among other matters dealt with in the overriding objective (CPR 1.1) are: dealing fairly with the prosecution and the defence; recognising the rights of the defendant, especially under Article 6 of the European Convention on Human Rights (ECHR); respecting the interests of witnesses and victims; and dealing with the case efficiently and expeditiously.

Abuse of process arguments The court has power to stay proceedings as an abuse of process. The effect of a stay is to permanently stop the proceedings. There are two main categories: where the accused cannot receive a fair trial; and where it would be unfair for the accused to be tried. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect 83

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the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will offend the court’s sense of justice and propriety or will undermine public confidence in the criminal justice system and bring it into disrepute.1 A considerable body of case law has built up over the past 30 years or so and as a result abuse of process arguments can be complicated. It is therefore to be expected that where abuse of process is argued then an appropriate allowance of time will be included in the timetable set at the case management stage. Ideally, the competing arguments will be provided in writing in advance (this is a requirement in the Crown Court). There are arguments as to whether the jurisdiction of magistrates is confined strictly to matters directly affecting the fairness of the trial. There is a strong (in our view conclusive) argument that the wider supervisory jurisdiction is the province of the High Court. Thus, where there is a second limb argument, that it would be unfair to try the defendant, that should be decided by the Divisional Court. There are arguments the other way, and in our experience, it is not uncommon for the defence to want to argue second limb in a magistrates’ court. In our view the judgment of the then Senior Presiding Judge in DPP v Petrie [2015] EWHC 48 (Admin) is conclusive of this argument: the wider supervisory responsibility for upholding the rule of law is vested in the High Court rather than the magistrates’ courts. Petrie is an invaluable authority when disclosure failures are raised as an abuse of process. There is a presumption that the trial should go ahead unless there is a compelling reason to stay proceedings. It has been emphasised on many occasions that a stay should be imposed only in exceptional circumstances. For example, even when there is an unjustifiable delay, a stay should be the exception rather than the rule. It is even more rare for a stay to be justified in the absence of any fault on the part of the prosecution. Arguments often involve the effect of delay on the fairness of trial. Evidence can be lost, and memories can diminish significantly. It has been said that in the Crown Court the proper time for the defence to make such an application is after all the evidence has been called. We think 1. Warren v Attorney-General for Jersey [2012] 1 AC 22.

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there is a strong argument that the same should apply to summary trial, particularly where such proceedings are likely to be short. Admittedly then the argument becomes superfluous because if the bench considers that the defendant cannot have a fair trial it is hard to imagine the circumstances when they would convict. It is recognised that the trial process itself is equipped to deal with the bulk of complaints on which applications for a stay are founded. It has been pointed out that it is commonplace in criminal trials for a defendant to rely on “holes” in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination. As for missing CCTV: “If, in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify a safe conviction, then the trial should proceed, leaving the defendant to seek to persuade the jury or justices not to convict because evidence which might otherwise have been available was not put before the court through no fault of his. Often the absence of a video film more fingerprints or DNA material is likely to hamper the prosecution as much of the defence.”2

In short, there will be occasions when it is appropriate for a magistrates’ court to stay proceedings as an abuse of process. This will apply only to arguments that the defendant cannot have a fair trial: the second limb is the province of the High Court. It is to be expected that legal argument will be provided in writing before the hearing, in sufficient time for the prosecution to respond. Even so, the bench may decide that argument should take place after the evidence has been heard. It will be rare and exceptional for a magistrates’ court to decide that the defendant cannot have a fair trial. It will be rare for a trial to be adjourned for argument to take place, either in the magistrates’ court or the High Court. Before taking either of these courses, magistrates should ensure that they have received proper advice on the law from the advocates and from their legal adviser.

2. Brooke LJ in R (Ebrahim) v Feltham Magistrates’ Court [2001] EWHC (Admin) 130.

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Application to adjourn on day of trial Applications to adjourn on the day of trial are, always have been, and perhaps always will be, very common. In fact, they should be rare. Granting an adjournment in these circumstances should be even more rare. Of course, there are exceptions. The most common will be where the defendant or a key prosecution witness has been unavoidably prevented from attending trial and proof of that is provided. For example, the defendant may not be produced from custody. A key witness may have been taken to hospital overnight. There may have been a transport problem such as a rail strike preventing a key person attending court. Refusing an adjournment often seems unfair. In fact, it is almost always more unfair to grant the adjournment. If the problem is for the defence, then the defendant may nevertheless be acquitted and if not can always have a retrial by way of a rehearing on appeal to the Crown Court. It is more difficult if the problem is for the prosecution. Here there is no automatic right of appeal, but the position is dealt with in the Lord Chief Justice’s Practice Direction issued in April 2019.3 If the trial proceeds in the absence of a key prosecution witness, and it later turns out that the witness was unavoidably prevented from attending court, then an application can be made to reverse the decision to proceed. Because applications to adjourn are so frequent, there have been many Divisional Court cases dealing with the proper procedure on considering adjournments. Some of those have been superseded by changes in the law, particularly changes to section 11 Magistrates Courts Act (trial in absence of the defendant). Unfortunately, some quite recent Divisional Court cases misstate the law. Fortunately, the whole procedure has now been reviewed by the Practice Direction on adjournments, which we reproduce in full in Appendix 2 to this book. It is difficult to overstate the importance of this Practice Direction. As the Lord Chief Justice says in his accompanying message: “This direction consolidates and codifies in one place the important principles established by case law in this area [trial management]. It is essential reading 3. [2019] EWCA Crim 495. See para 24C.8.

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for all those who sit on the bench, provide legal advice or appear in the magistrates’ courts.” Key points are these: • In making or resisting an application for an adjournment, legal practitioners should rely only on the Practice Direction. This codifies earlier case law which should not be quoted save as is referred to in the CPD itself. • As the starting point is that the trial should proceed, a consequence of doing so without adjournment may be that the prosecutor is unable to prove the prosecution case, or that the defendant is unable to explore an issue. That may be a just consequence of inadequate preparation. • If a defendant has attained the age of 18 years, the court shall proceed in his or her absence unless it appears to the court to be contrary to the interests of justice to do so: section 11 of the Magistrates’ Courts Act 1980. In marked contrast to the position in the Crown Court, in magistrates’ courts proceeding in the absence of a defendant is the default position where the defendant is aware of the date of trial and no acceptable reason is offered for that absence. The court is not obliged to investigate if no reason is offered, but if a reason is given it should be considered with care. • Disclosure is not a trial issue. It should have been resolved by the parties complying with their statutory obligations and with the rules in advance of the trial.

Additional editorial comment on disclosure not provided by the day of trial The CPD applies. Nothing in this comment detracts from the Practice Direction, which represents the law. As stated in the CPD: “Disclosure is not a trial issue. It should have been resolved by the parties complying with their statutory obligations and with the rules in advance of the trial.”

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Despite this, it is a common experience that the disclosure provisions have not been dealt with by the day of trial. Although accurate and reliable statistics are not available, this failure appears to account for many cases where the trial is ineffective or “cracked”. The question has been raised as to who should apply for an adjournment on the day of trial if the prosecution has not complied with its disclosure obligations. The first point for consideration is whether the Crown has indeed failed to comply. In some cases, it is reported that initial disclosure was provided but there was then a late section 8 application (see page 65) and that the fault, if any, therefore lies with the defence. However, if the failure is clearly at the door of the prosecution, then it is the prosecution that must make the application for an adjournment to comply with its obligations. If that application for an adjournment is refused, the consequence is that the prosecution must offer no evidence. It would be against the professional code of conduct for prosecutors to proceed to trial having not complied with disclosure obligations. Generally, an abuse of process argument is neither necessary nor appropriate. A common situation is that the prosecution serves, on the day of trial, disclosure or a notice saying there is nothing to disclose. Here the bench should proceed in the interests of justice, applying common sense. Although the defence is entitled, in such circumstances, to make an application4 within 14 days, nevertheless it will often be appropriate for the court to expect the defence at that stage to set out its full defence case in order to trigger that application. In some situations, the application can be dealt with there and then. If in reality there is no obligation for further disclosure, then (unsatisfactory as late service may be) the interests of justice may well require the case to proceed. Similarly, where disclosure is made on the day of the hearing, it will often be possible without injustice for there to be a short adjournment on the day of trial for the defence to assimilate the new information, but for the trial itself nevertheless to proceed.

4. Under s.8 Criminal Procedure and Investigation Act 1996.

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On the other hand, there will be occasions when it is unreasonable to expect the defence to assimilate new information on the day of trial, or where the court orders disclosure on the day of trial, and the prosecution cannot comply. In those circumstances an adjournment may be appropriate. The key point, of course, is that this position should never have been reached. It is not simply a failing of the prosecution. The defence has an obligation to draw this failing to the attention of the court in advance, and it is the responsibility of the court to ensure that proper disclosure has been made sufficiently in advance of the trial.

Consequences if a trial proceeds in the absence of the defendant or prosecution witness The court must consider and apply the LCJ’s Practice Direction set out in full in Appendix 2. Where there is no, or no acceptable, reason for absence given at the time, it is highly likely that the case will proceed without the defendant or prosecution witness. In the case of an absent defendant there may nevertheless be an acquittal. If there is a conviction, there is an unfettered right of appeal by way of re-hearing to the Crown Court. If it turns out that the defendant had an acceptable reason for absence (perhaps had been detained in custody or at a hospital), and clear evidence of that can be provided, then an application can be made to re-open the case.5 If a prosecution witness fails to attend, the case may nevertheless proceed to conviction. If not, and there is an acquittal, there is no right to appeal to the Crown Court. However, that is not necessarily an end to the matter. A material mistake of fact leading to unfairness is available as a ground for seeking judicial review (see Administrative Court in Criminal Justice Terms and Abbreviations after Chapter Ten). There must be a mistake as to existing fact, which could include a mistake as to the 5. Section 142 Magistrates’ Courts Act. In Houston v DPP [2015} EWHC 4144 (Admin) the Divisional Court considered that s.142 MCA can be used only as a slip rule to correct a mistake. However, Andrews J in Rathor v Southampton Magistrates’ Court [2018] EWHC 3278 (Admin), in a non-binding comment (obiter) prefers earlier decisions where the wider test of “interests of justice” is applied. We respectfully agree with her.

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availability of evidence. The mistake must be established in the sense that it is uncontentious or objectively verifiable. The party making the complaint must not have been responsible for the mistake. The mistake must have played a material, although not necessarily decisive, part in the magistrates’ court’s reasoning. The 2018 case that decided this is an important decision.6 If properly used it means that where, for example, a court proceeds under the mistaken view that there was no acceptable reason for the absence of a witness, and there is later clear evidence of the mistake, then all parties should consent to a short uncontested judicial review.

Procedure The trial process must follow the Criminal Procedure Rules,7 the rules of evidence and the common law. In summary the procedure is as follows. Open justice applies. The press and public are entitled to attend. The plea of not guilty is confirmed. a. The prosecutor may summarise the prosecution case. b. The court may ask the defence to identify concisely what is in issue. c. The prosecutor must introduce the evidence on which the prosecution relies. d. At the end of the prosecution case the court may, on the defendant’s application or of its own motion, acquit on the ground that the prosecution case is insufficient for any reasonable court properly to convict (provided it has first heard any representations the prosecutor wishes to make). e. Assuming there is a case to answer, the justices’ legal adviser must explain, in terms the defendant can understand, the 6. R (Director of Public Prosecutions) v Sunderland Magistrates’ Court, R (Kharaghan) v City of London Magistrates’ Court [2018] EWHC 229 (Admin). 7. Criminal Procedure Rules Part 24 Trial and Sentence in a magistrates’ court.

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defendant’s right to give evidence and the potential effect of not doing so. f. The defendant may introduce evidence. g. The prosecutor may make final representations, but only if the defendant is represented or has called evidence other than his or her own. h. The defence may make final representations. i. If the bench convicts, it must give reasons. If the bench acquits it may make a costs order.8

Evidence Evidence is material that is relevant to an issue to be determined in the trial. There are three key concepts in deciding whether evidence is admissible. Is it relevant? Is it reliable? Is it fair to admit it? What is relevant is a matter of common sense depending on what is in issue in the trial. What is in dispute must be made clear before the trial begins. The bench will have seen the case management form. Immediately before the trial the legal adviser must summarise for the court the agreed and disputed issues, in court or as agreed by the parties.9 Apart from some introductory evidence to put the case in context, a summary trial must concentrate only on the disputed facts. Time should not be wasted on calling evidence about agreed (see later) or irrelevant facts. In some, admittedly rare, cases, calling evidence on irrelevant matters may lead to a conviction being overturned.10 Evidence given in person by a witness who speaks from his or her own observation or knowledge meets the reliability test because it can be challenged in court by cross-examination. However, a statement not made in oral evidence (hearsay evidence) is only admissible as evidence of any matter stated if one of a number of conditions is met. Hearsay evidence will be looked at in more detail below, but at its essence is reliability and 8. This is a slightly abridged version of CPR 24.3. In case of dispute refer to the full wording of the rule. 9. Criminal Practice Direction Part 24A.11. See also CPD VI Trial 24B. 10. Sandhu [1997] Crim LR 288.

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the weight that can be put on it. Some intrinsically reliable documentary evidence, such as routine business records or photos, is normally admissible. On the other hand, a disputed statement by a witness who chooses not to come to court because it is inconvenient would not be admissible. Fairness, or the interests of justice, underlies the admissibility of evidence that while in principle admissible is nevertheless unfair to the defendant. Examples include evidence that is illegally or unfairly obtained, or some bad character evidence. See Excluding evidence, below. The rules of evidence apply equally to defence and prosecution, except where otherwise stated, although as a matter of observation more latitude tends to be given to the defence. Some courts arrange hearings in advance of the trial to determine admissibility of hearsay and bad character evidence. If it is inadmissible the trial bench will not hear it. Other courts think it is difficult or impossible to determine hearsay or bad character out of context, so decisions are made during the trial process itself. The argument is that if magistrates consider evidence to be inadmissible, they will put it out of their mind while reaching a verdict.11 Before any trial begins, and preferably at the case management stage, undisputed evidence should be agreed. This can be done by agreeing that the witness’ statement can be read,12 or by way of an agreed fact.13 It is quite wrong to trouble a witness to come to court when his or her evidence is not in dispute. Instead the evidence should be agreed. Any inadmissible or contentious (but non-essential) assertion can be removed. These days, lawyers and the courts are expected to do everything possible to ensure the trial focuses only on facts in issue, that is disputed facts. The case management form should reflect any agreement. Witnesses to disputed facts will be required to come to court. The parties or the court of its own motion can arrange a witness summons compelling attendance. The witness should wait outside court until required to give evidence, to avoid any suggestion of tailoring evidence after what has gone before. Evidence from a witness who has been in 11. R (On the application of Robinson) v Sutton Coldfield Magistrates’ Court [2006] EWHC 307 (Admin). 12. Criminal Justice Act 1967, section 9. 13. Criminal Justice Act 1967, s.10.

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court (except an expert witness, where this is allowed and indeed encouraged) loses weight but is not inadmissible. The witness will take the oath or affirm.

Excluding evidence “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” Section 78 Police and Criminal Evidence Act 1984 (PACE).

This section is widely used. Consideration may need to be given to evidence obtained in breach of the PACE codes of practice and of the European Convention on Human Rights. Irregularity does not of itself render the evidence inadmissible. The test is in the section itself. As a result, these applications tend to be heard during the trial, often at the close of the prosecution case. However, the application can be made and considered at any time. Excluding a confession is considered later in this chapter.

Competence The general rule is that anyone is competent to be a witness. With children, the question is not age. It is whether the child can understand and answer the questions put. Measures can properly be used to help a witness with language or hearing problems. Spouses, including civil partners, are competent, but cannot be compelled to give evidence against their partner except when they or a child of under 16 are the alleged victim of violence.14 14. Police and Criminal Evidence Act s.80.

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There is no rule that the evidence of a child — even a very small child — is inadmissible, although special measures may apply (see later). However, a child under 14 will not take the oath or affirm. A witness of 14 or over is presumed to have appreciation of the responsibility to tell the truth under oath unless the contrary is proved.15

Hearsay There are three questions to ask. Is it hearsay? If so, is it admissible? (If it is not hearsay, but is relevant, then in principle it is admissible.) If it is admissible, is it fair to admit it? The starting point for hearsay is that it is a statement not made in oral evidence. So, it is second-hand, made other than by the witness giving live evidence during the trial. A statement for this purpose (it has other meanings elsewhere) is a statement of fact or opinion made by a person by whatever means.16 It includes Photofits, sketches, pictures and other items made by a person, as well as something said or written by another. It only applies to a statement made by a person, so evidence produced by a machine, such as CCTV or tape-recordings, is not hearsay. In any disputed hearsay application, there are also three questions to ask. The first step is to be clear as to what is the matter stated: what truth is the statement intended to establish? The second question is whether there is a statement of that matter in the communication. The third question is whether it was one of the purposes of the communication that a person should believe or act upon it.17 The hearsay rule only applies where the purpose (or one of the purposes) of the maker of the statement is to cause another person to believe or act on it.18 It is not the case that everything said or written by another person to the witness is hearsay. Many questions (for example a text message from another asking the defendant for drugs19), or private diaries not 15. 16. 17. 18. 19.

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Youth Justice and Criminal Evidence Act 1999, s.55(3). Criminal Justice Act s.115 (2). The test is best explained in R v Twist [2011] EWCA Crim 1143. See CJA 2003 s.115 (3) for exact wording. R v Twist [2011] EWCA Crim 1143.

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intended to be read by anyone other than the diarist, or comments not intended to be acted on or believed by the person to whom addressed (such as re-affirming something both parties know, or a joke or even an obvious exaggeration) are not covered by the hearsay rule. A little more complicated is where the words spoken are themselves an ingredient of the offence. If a person threatens to kill someone, the words spoken are original evidence of the offence of threats to kill (or other offences, or of the defence of duress), not hearsay. A statement made outside court may indicate a state of mind that is relevant and not hearsay, for example that a person was frightened. A defendant may say that he made a no comment interview because his or her solicitor told him to do so. That is not hearsay (but may be problematic for other reasons). When a witness says, perhaps unexpectedly, “X said …” there is no way of knowing whether it is hearsay. Some courts still adopt the perhaps lazy but pragmatic approach of asking a witness not to say what someone else told them, unless a formal hearsay application is made. Whether hearsay can be admitted in a criminal trial is governed by the Criminal Justice Act 2003.20 The Act made provision for hearsay evidence to be admissible in a wide variety of circumstances. In broad summary they are: by agreement between the parties; where the witness is unavailable; business documents; public documents; under the doctrine of res gestae (spontaneous utterances); or in the interests of justice, as a residual gateway if the others are not applicable. The intention was to put information before the fact finders that previously had often been kept from juries and magistrates. They were to be trusted to put such weight on the hearsay as was appropriate. Early legal authorities gave effect to that intention. However, there is a danger in hearsay evidence. It is second-hand and often second-best. It may be fabricated, mistaken or mis-recorded. As the maker of the original statement is not in court there is no possibility of cross-examination exposing those failings. Leading cases21 have explored these difficulties and emphasised that courts should exercise caution before admitting hearsay. Safeguards are in place, but if they 20. Section 114 onwards. 21. R v Horncastle [2009] UKSC 14 and [2014] ECHR 1394 R v Riat [2012] EWCA Crim 155.

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cannot guarantee a fair trial then otherwise admissible evidence can be excluded under s.78 PACE.22 There is generally no difficulty when all parties to the proceedings agree to the evidence being admitted. Agreed facts should be summarised for the bench before the trial begins.23 If hearsay evidence is not challenged it is assumed to be agreed, though care needs to be taken when the parties are unrepresented.24 Business records are also usually considered reliable and admission is therefore normally uncontroversial. A business document is one compiled by a person in the course of an occupation or by the holder of an office. The person who compiled the document must reasonably be supposed to have personal knowledge of the matters dealt with.25 Examples of business documents include hospital records; police custody records; and telephone records. The other gateways of admissibility are more complicated and more likely to be disputed. The most common situation in a magistrates’ court is where a witness is warned to attend but fails to do so. In most cases there will be no known or no good reason for the absence, so the witness statement cannot be used unless agreed (but see the interests of justice test later). If the identity of the missing person is identified to the satisfaction of the court, the statement may be admitted if the person is: dead; medically unfit to give evidence; abroad and it is not reasonably practicable to secure attendance; cannot be found despite all reasonable steps to locate him; or absent through fear.26 Where there is a contested prosecution application to admit the statement of a witness who is unavailable, the reasons for that unavailability will have to be proved to the usual criminal standard unless accepted by the defence. It is important to concentrate on what needs to be proved. 22. The Police and Criminal Evidence Act 1984, see Criminal Justice Terms and Abbreviations, at end of book. 23. CPD 24A.11 24. Williams v VOSA [2009] EWHC 849 (Admin). 25. Where this category is contested it is necessary to look with care at s.117 CJA 2003, including subsection 7 dealing with unreliable documents. 26. Anyone making, opposing, or determining an application for a missing witness should consult s.116 CJA 2003 and the case law on it in, say, Blackstone’s Criminal Practice.

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It is unfitness to give evidence, not unfitness to attend court, that must be proved, although if a witness is detained in hospital the test will normally be met. Whether a witness is unfit to give evidence is often a matter of common sense for the bench, based on the medical condition. There are special provisions to consider when the witness is said to have been incapable at the time of making the statement.27 Where the witness is abroad, the court must decide whether all reasonably practicable steps have been taken to secure attendance. What is reasonably practicable will require a fact-finding exercise based on what is reasonable for the prosecution to do in all the circumstances.28 Where the law allows, and where practicable, a video-link should be considered. Indeed, technology makes it easy for a witness to give evidence remotely in most cases, but the law may trail behind. There is an onus on the prosecution to keep track of its witnesses. Where a witness cannot be found, the adequacy of the efforts made to keep track and locate will need to be examined. In a magistrates’ court, fear is the most common reason advanced, particularly in domestic violence cases. Fear is widely construed. It does not need to be fear of the defendant and can include financial loss.29 All possible efforts must be made to reduce the fear and enable the witness to come to court or (where the law allows) to give evidence remotely. There is a wide range of measures to help the fearful witness, and ideally these will have been explored at the first hearing, when the case was set down for trial. Leave can only be given when a witness fails to give evidence through fear if it is in the interests of justice, and not unfair to any party. Where a witness attends court but fails to give (or continue to give) evidence, it is open to magistrates to satisfy themselves from the witness’s demeanour that fear is the reason for the failure.30 Proving that a witness is absent through fear is not easy,31 especially in the timeframe

27. CJA 2003, s.123. 28. See R v Gyima [2007] EWCA Crim 429 where the child witness was abroad and his parents were uncooperative. 29. CJA, s.116 (3). 30. R v Ashford and Tenterden JJ,ex parte Hilden [1993] QB 555. 31. Neill v North Antrim Magistrates’ Court [1992] 4 AER 846.

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usually allotted to a summary trial. The prosecution is usually best advised to take another approach, as set out in CPS guidelines. The absent witness provisions also apply to defence witnesses, but with underlying facts to be proved on a balance of probabilities, A statement not made in oral evidence may be admitted if the court is satisfied that it is in the interests of justice to admit it.32 Although this appears to be of broad application, it has been described by the Supreme Court as a limited residual power.33 Before admitting evidence under this provision, the court must have regard to nine factors set out in the section, plus any others it considers relevant. (“Having regard to” does not mean making a finding of fact on each factor, although in a contested application it may be wise to at least refer to those factors.) This gateway to admissibility should not be used where the Crown has failed to take all reasonably practicable steps to secure the attendance of a witness whose evidence is disputed. This would circumvent the safety provisions relating to absent witnesses, as mentioned above. The most common use in a magistrates’ court is where the evidence of a witness is necessary to establish an undisputed fact, that is nevertheless not admitted by the defence. In Adams,34 a witness had not been warned in a timely way, and so his statement would not be admissible under the absent witness provisions. His evidence was necessary to establish that drugs had been found on the defendant. However, this was not in dispute. The issue was whether the defendant intended to supply the drugs to others. So, the evidence was properly admissible. Where there is a good reason for the absence of a prosecution witness, the Crown will usually apply for an adjournment. This provides the defence with a dilemma. If they successfully oppose the adjournment, they may find that the trial proceeds with the absent witness’s statement admitted as hearsay. This happened in Sak 35 where a key witness was a doctor who could not arrange locum cover for his surgery. The Divisional Court said: 32. 33. 34. 35.

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CJA 2003 s.114 (1) (d). R v Horncastle [2009] UKSC 14 and [2014] ECHR 1394. [2007] EWCA Crim 3025. Sak v CPS [2007] EWHC 2886.

The Trial “The defence can no longer assume, as was the practice of the old days, that the prosecution’s unsuccessful application for an adjournment to secure the attendance of an important witness will necessarily mean that the case will not proceed. Such considerations should influence the approach of the defence when considering whether to oppose any such application.”

Similarly, in the case of a defendant charged with actual bodily harm on his wife.36 On the day of trial, it was confirmed that she was detained in hospital under the Mental Health Act. The decision of the court to refuse an adjournment was within their wide discretion, but the decision to refuse the hearsay application was plainly wrong. The defendant was, said the Divisional Court, able to challenge the evidence in her statement by giving evidence himself. Res gestae is a common law rule preserved by the Criminal Justice Act 2003, although it almost never troubled magistrates’ courts before the Act was introduced. Now it does, particularly in domestic violence cases where the alleged victim does not cooperate with the prosecution. Res gestae is a statement made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded.37 An example might be a 999 call where a person says she is scared because she has just been strangled by her boyfriend.38 The res gestae principle also applies where a statement relates to a physical sensation or a mental state. A doctor may give evidence that the patient was in pain, and a police officer may give evidence that a witness is terrified. It not infrequently happens that a witness gives evidence on oath that differs markedly from an earlier written statement. Where it is clear that the witness is hostile to the party calling him or her, the court can give permission for the witness to be asked about that previous statement.39 That may result in the witness acknowledging the truth of the earlier statement. If not, there is a procedure whereby the previous inconsistent 36. R (On the application of the CPS) v Uxbridge Magistrates’ Court [2007] EWHC 205. 37. CJA 2003, s.118 (1) 4. 38. Barnaby v DPP [2015] EWHC 232 (Admin). See also Ibrahim v CPS [2016] EWHC 1750 (Admin), and Morgan v DPP [2016] EWHC 3414 (Admin). 39. Criminal Procedure Act 1865, s.3. In effect this involves cross-examination and leading questions.

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statement can be proved and become evidence of the matters stated.40 This is a cumbersome and sometimes unfamiliar process. The advocate calling the witness will often have an idea that the witness may become hostile. If the opening questions referred to in the section on memory refreshing later in this chapter are used, this should quickly establish the position. When a hostile witness is central to the case (someone who appears to be deliberately avoiding telling the truth in court compared, e.g. with what he or she may have said in an earlier statement to investigators), the bench will have to assess the reliability of the original statement against the reliability of the evidence on oath. There is also a provision whereby a previous statement by the witness is admissible in certain circumstances if the witness is the complainant in the case.41 This allows, for example, a video-recording to stand as the witness’ evidence-in-chief. Similarly, a previous statement may be admissible if it describes a person, object or place. Thus, an earlier description of a vehicle, including the number plate, can be admitted in this way. The same section of the Criminal Justice Act can be used to admit a statement made when matters were fresh in the witness’ memory but are now forgotten and the witness cannot reasonably be expected to remember them well enough to give oral evidence about them. In addition, there are circumstances that lead to an earlier statement being admissible evidence when an advocate cross-examines a witness about a document that has been used to refresh memory. In short, giving evidence is not a memory test. There are a number of ways in which a witness’ earlier account can be used to refresh memory or become evidence of the truth of the matters stated in it. Surprisingly, these provisions are not used as often as they might be in a magistrates’ court save perhaps for a police officer being allowed by the court to refresh his or her memory from a notebook or other record made close to the time of the events in question.

40. CJA 2003, s.119. For an interesting case see R v Joyce and Joyce [2005] EWCA Crim 1785, where it was said that it would have been an affront to justice not to rely, if the jury thought fit, on the original statements when witnesses had retracted them in court. See also Griffiths v CPS [2018] EWHC 3062 (Admin). 41. CJA 2003, s.120.

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Fairness

As stated above, Parliament has set out in statute some safeguards to be applied before hearsay can be admitted in evidence. In addition, the scope of exceptions to the hearsay rule has been restricted by human rights considerations, in particular the right to a fair trial. Where the only evidence against a defendant is disputed hearsay, that cannot properly be challenged, it may be appropriate to exclude it under the provisions of the Police and Criminal Evidence Act 1984 (s.78), even though it is otherwise admissible. However, there is no rule that even sole and decisive hearsay evidence must be excluded.42 All in all, whether to admit the statement of an absent witness is a complicated balancing act. Ideally any application will be made on notice (see Applications relating to hearsay and bad character in Chapter Three). Although notice can be waived by the court, proper preparation should allow the parties and the court to consider the law carefully before a decision is reached. Magistrates have a discretion to refuse to allow evidence to be given on which the prosecution had proposed to rely. The test is whether it appears to the court that, having regard to all the circumstance, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.43 This can apply to any prosecution evidence, not just hearsay. It can cover identification, confessions and even documentary evidence. It is fairness to the trial that is important — evidence should not be excluded simply because the court disapproves of the way it was obtained. A challenge to exclude the evidence should be made at the earliest time, but there will be normally be no voir dire (the term used for a “trial within a trial”). Instead the magistrates trying the case will hear the challenged evidence and make a decision on it at the most appropriate time, usually at the end of the

42. See the debate engendered by Horncastle in the European Court of Human Rights as at Horncastle v UK (2015) 60 EHHR 1331 and Al-Khawaja and Taheri v UK (2012) 54 EHRR 807. 43. Police and Criminal Evidence Act (PACE) 1984, s.78.

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prosecution case, but sometimes after all evidence in the case has been heard.44 This is different to the practice in the Crown Court. There is a separate provision to exclude a confession that may have been made by oppression, or because something was said or done that makes the confession unreliable.45 This provision has been argued less frequently now that interviews are recorded, but still has a role where, for example, a vulnerable person does not have an appropriate person present at the time of the alleged confession. See section on Confession, below. The court also has the power to exclude prosecution or defence evidence if satisfied that it would unnecessarily waste time.46 This may include evidence of little probative value that will generate other evidence in rebuttal, or is irrelevant to the issues in the case. Here again, strong case management, identifying what is and what is not in dispute, should help to avoid the introduction of time-wasting material. Notice

There are rules requiring notice to be given of an intention to introduce and oppose hearsay evidence.47 Time limits apply. Wherever possible, the time limits should be adhered to, as this allows the matter to be considered properly by the court and the parties. The notice is itself a good discipline as it requires the identification of the evidence that is hearsay, the facts relied on, and an explanation as to why the evidence is admissible. The court can vary the requirement for notice or content of the notice, and that will be necessary when the need for the application only arises shortly before the trial. This is why every advocate needs to be fully acquainted with the provisions. (See also Chapter Three, Applications.)

44. 45. 46. 47.

Halawa v Federation Against Copyright Theft [1995] CLR 409. PACE 1984 s.76. See CJA 2003 s.126 for the exact wording. CPR 20.2 — 20.5.

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Confession A confession includes any statement wholly or partly adverse to the person who made it.48 It doesn’t have to be in words — a nodded acquiescence to an allegation may suffice. The confession can be made to anyone, not just a police officer. A confession made outside court (for example at the police station) is hearsay but is admissible if relevant and not excluded as oppressive or unreliable. An interview with police that contains no confession, but only exculpatory comments, is hearsay but is usually admitted by agreement between the parties. As stated above, a confession may be excluded as unreliable or obtained by oppression. Oppression includes torture, inhuman or degrading treatment, and the use or threat of violence.49 It is likely to apply only in those cases where a suspect has been subjected to misconduct of a deliberate and serious nature. Fortunately this is rare, but when it is argued the Crown must prove, so that the magistrates are sure, that oppression did not occur. Unless the magistrates are sure beyond reasonable doubt that there was no oppression likely to render the confession unreliable, then there is no discretion: the confession cannot be admitted. A threestep process is advocated.50 Firstly, identify the thing said or done that amounts to oppression. Secondly, ask whether what was said or done was likely in the circumstances to render the confession unreliable. Thirdly, has the prosecution proved beyond reasonable doubt that the confession was not obtained as a result of the oppression? Alternatively, the court has a discretion to exclude a confession where it would be unfair to admit it.51 This is more commonly raised and can be argued within the trial process itself — there is no need for a trial within a trial. The two arguments — oppression and unfairness — may well be argued together. There is nothing wrong in this and often it may be appropriate. In any argument about a disputed confession to police, the parties are likely to refer to the Codes of Conduct under PACE. Breach of the codes is not an automatic route to exclusion but may 48. 49. 50. 51.

PACE 1984 s.82. Section 76 Police and Criminal Evidence Act 1984. R v Barry [1991} 95 Cr App R 384. Section 78 Police and Criminal Evidence Act 1984.

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provide evidence of oppression, unreliability, or an adverse effect on the fairness of the proceedings. There is a considerable body of case law on this topic in the reference books. A confession is admissible against the person who made it unless excluded under the provisions of PACE. It is not evidence against a co-defendant, but there are provisions whereby it can be admitted as evidence for a co-defendant.52

Expert evidence Expert opinion evidence is admissible if: (1) it is relevant to a matter in issue in the proceedings; (2) it is needed to provide the court with information likely to be outside the court’s own knowledge and experience; and (3) the witness is competent to give that opinion.53 It is important to emphasise the importance of relevance. It is not unknown for a court to spend considerable time hearing interesting expert evidence that goes to a different question than the one in issue before the court. Nor is expert evidence necessary if made by a witness as a way of explaining events witnessed by him or her. So, for example, a non-expert can give evidence of a person’s apparent age or state of mind, or of the speed of a vehicle, or time that has passed. Whether a person is fit to drive does require expert evidence, although observable facts (“He was staggering, slurring his speech, fumbling for keys”) do not. In determining whether expert evidence is admissible, the court must be satisfied that there is a sufficiently reliable scientific basis for the evidence to be admitted. If there is, then it is for the magistrates to weigh the opinion of any opposing experts. The Criminal Practice Direction sets out a number of factors to be considered. A person may obtain expertise from study, personal research, or experience. In a magistrates’ court the expert in a traffic accident case is

52. PACE 1984, s.76A. 53. This, and some of the following passages, is taken from the Criminal Practice Direction Part 19.

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often a police officer or even a former police officer54 using experience sometimes coupled with study. Other experts may be qualified medical doctors, vets in animal cases, or scientists conducting a back-calculation in a drink driving case. It is important to examine carefully the factual assumptions behind an expert’s report. For example, in an excess alcohol case the expert’s opinion that at the relevant time the motorist would have been below the legal limit may be based on wrong information from the motorist as to what alcohol had been consumed, and when. The expert has a duty to give independent assistance by way of objective unbiased opinion on matters within his or her or her expertise. There must be a statement of understanding and declaration of truth in the terms set out in the Criminal Practice Direction. The Criminal Procedure Rules (Part 19) set out what must be contained in an expert report. The parties must consider, at an early stage, whether there is any useful purpose in the experts discussing matters before trial. This is to clarify the extent of agreement between them, the reasons for disagreement, and any further action to be taken. An expert report must be served on the other party and the court. Failure to comply with the CPR may result in the evidence not being admitted.55 An expert report may not be introduced in evidence if the expert does not give evidence in person, unless the other party agrees, or the court directs.56 We suggest that as the trial will deal only with matters in dispute the evidence should be called live unless it is an admitted fact under the rules57 — service of a s.9 CJA statement (see Criminal Justice Terms and Abbreviations at the end of the book) on a matter that is clearly in dispute will not suffice. The CPR require a party introducing expert evidence to give notice of anything that might reasonably be thought capable of undermining the reliability of the expert’s opinion. Examples are given. An expert will normally be allowed to remain in court while other evidence is given. 54. See R (On the Application of Doughty) v Ely Magistrates’ Court [2008] EWHC 522. 55. R v Ensor [2009] EWCA Crim 2519. 56. CPR 19.4 (b). 57. CPR 19.3 (2) (a).

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Good character Character can be relevant circumstantial evidence pointing either away from or towards guilt. “The law and practice in relation to character evidence has taken some dramatic turns during the twentieth and twenty-first century.”58 Fortunately for us, a high-powered Court of Appeal reviewed the law in Hunter. A defendant of absolute good character is someone who has no previous convictions or cautions. (The case also refers to no other reprehensible conduct alleged, admitted or proven, but this is rarely going to apply in a summary trial.) When considering verdict, the court should remind itself that a defendant of absolute good character is more likely to be truthful than one of bad character (this is known as the credibility direction) and that he or she is less likely to commit a crime, especially one of the nature with which he or she is charged (the propensity direction). Where the defendant has previous convictions that are old, minor and have no relevance to the current charge, the court may consider him to be of effective good character. Both limbs of the good character direction would still apply. It is the responsibility of the defendant’s lawyer to ensure that good character is drawn to the attention of the bench, usually by an admission by the Crown, cross-examination of the officer in the case, or the defendant giving evidence. Where the defendant is self-representing, the prosecutor should advise the court that there are no convictions or cautions. It may be wise for the legal adviser to discreetly check the position in the absence of the bench. The bench should not enquire, for fear of being given information it should not have! Advocates sometimes refer to Vye or Nye directions. This is a reference to old cases decided before the law on bad character changed in 2003 and complicated the position. However, Hunter specifically endorsed Vye and Nye, at least in the straightforward cases encountered in summary courts.

58. These are the opening words of Lady Justice Hallett in Hunter and Others v The Queen [2015] EWCA Crim 631.

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Bad character Before 2003, the law on bad character was so complicated that it was rarely applied in a magistrates’ court. Now, however, bad character applications are common. Bad character evidence can be circumstantial evidence pointing towards a person’s guilt. It may show a propensity to commit offences of the type currently before the court. It may be relevant to an issue between the prosecution and the defendant, for example whether dishonesty is made out in the instant case. A defendant in a shoplifting case may argue that he or she left the store, without paying, by oversight. It may be relevant to propensity either that they had no previous convictions or alternatively had many identical convictions. Bad character can also be relevant to untruthfulness. Where evidence of character is relevant and admissible under the CJA 2003, it may yet be excluded if unfair to admit it. Bad character is the commission of an offence or other reprehensible behaviour.59 In practical terms, magistrates’ courts will normally be concerned only with previous convictions or cautions, even though the definition goes wider than this. This is because summary trial is intended to be both simple and speedy, and satellite litigation around other reprehensible behaviour is discouraged. It is however worth remembering that bad character does not include misconduct which has to do with the alleged facts of the offence charged, nor with evidence of misconduct in connection with the investigation or prosecution of that offence. So, for example, in a case of driving whilst disqualified, the bench will inevitably be told that the defendant was disqualified from driving and will therefore know that he or she has a previous conviction (probably for a driving offence). Similarly, a court trying a person charged with assaulting a police officer in the execution of his or her duty is likely to learn that the defendant was being investigated for a criminal offence. This is not within the definition of bad character evidence. It is relevant and admissible.

59. Section 112 Criminal Justice Act 2003.

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Evidence of bad character is admissible if but only if it falls within one of the seven gateways set out in section 101 (1) (a-g) of the Criminal Justice Act 2003. These are as follows: (a) all parties to the proceedings agree to the evidence being admissible. (b) the evidence is produced by the defendant himself or herself. (The defendant may want to do this to show that although he or she has a minor conviction many years ago, they are still entitled to an effective good character direction. There are other tactical reasons why a defendant may want the bench to know of previous convictions.) (c) it is important explanatory evidence. Without it, the court would find it impossible or difficult properly to understand other evidence in the case. To be admissible in this way the value for understanding the case as a whole must be substantial. (d) it is relevant to an important matter in issue between the defendant and the prosecution. An important matter means a matter of substantial importance in the context of the case as a whole. Matters in issue include having a propensity to commit offences of the kind with which the defendant is charged; and propensity to be untruthful, where either of these circumstances is relevant to the case. This gateway, and gateway (g), are the most commonly encountered in a magistrates’ court, and will be discussed in more detail later. (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. This may occur where one defendant is suggesting that his or her codefendant is responsible for the offence charged — a “cut-throat defence”. (f ) it is evidence to correct a false impression given by the defendant. This might arise, for example, where a defendant with previous convictions for theft states in evidence or in interview that he or she has never been dishonest.

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(g) the defendant has made an attack on another person’s character. This includes not only witnesses at the trial but other people, whether alive or dead. Gateways (d) and (g) are the most commonly encountered in summary trials. The leading case on whether evidence of bad character establishes a propensity to commit offences is that of Hanson.60 Before admitting evidence of propensity, the court should ask: (a) Do the previous convictions show a propensity to commit offences of the kind charged? (b) If so, does the propensity make it more likely that the defendant committed the offence in the charge? In other words, is it relevant to the matter in issue? (c) Is it fair to admit the convictions? To answer these questions, the court may (or may not) need to know more about the previous offences. A simple list of convictions may not be enough. A summary of the facts behind the conviction may be necessary. This should be relatively easy for the Crown to produce. Alternatively, the matter in issue between the parties may be the defendant’s untruthfulness. This is not the same as dishonesty. The most common way of showing that a defendant has been untruthful in the past is to show that in an earlier case he pleaded not guilty but was convicted and so must have been disbelieved by the court, though even here there may be exceptions. As for gateway (g), it is far from uncommon for a defendant to make an attack on another person’s character. That can be done while being questioned under caution as well as at trial either by giving evidence or by asking questions in cross-examination. Evidence attacking the other person’s character includes evidence that the other person has committed an offence or has behaved in a reprehensible way. In an assault case, many defendants argue that they were acting in self-defence, which 60. R v Hanson and others [2005] EWCA 824.

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normally carries an imputation that they were attacked by the complainant. An assertion that a prosecution witness would not know the truth if it bit her on the nose is also an imputation of reprehensible behaviour. An unrepresented defendant may not recognise the risk and should be advised of it at case management or if it arises at trial (perhaps in the absence of the bench). The Criminal Procedure Rules Part 21 provide the process which an application or notice for the introduction of bad character evidence must follow (see also Chapter Three). There are time limits although the court may shorten or extend these. Often the question of whether bad character is relevant to propensity, truthfulness, or an attack on another person’s character, is clear at the first, case management, hearing. In many cases the issue can properly be dealt with there, even if the time limits have not been complied with. However, the court will not admit the bad character evidence if it is unfair to do so. This is a specific provision as far as sections 101(1)(d) and (g) are concerned, and argument is probably available for the other subsections under section 78 PACE 1984. Often a court will leave bad character decisions for the trial. There are good reasons for this. The defence may need time to prepare. Bad character evidence should not be used to bolster a weak case, and this may only become clear during the trial. After all, bad character evidence is at best weak circumstantial evidence. It has become reasonably clear during the lifetime of section 101 CJA, that juries and magistrates can and do deal fairly with the relevance of previous convictions. It is well recognised that magistrates who decide that bad character evidence is inadmissible can put this material out of consideration when reaching their verdict.61

Identification When we started as defence advocates, there was great concern about miscarriages of justice that involved identification evidence. It became 61. R (On the application of Robinson) v Sutton Coldfield Magistrates’ Court [2006] EWHC 307 (Admin).

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recognised that honest and sincere witnesses could be mistaken in their identification. Even those who were sure, and had a good view of the suspect, or even knew the suspect, could be wrong. Several steps have been taken to reduce the risk. Codes of conduct require an identification parade when there is a dispute. A description of the offender by the witness must be recorded before any identification parade. Some of the difficulties caused by not finding on the day of a parade volunteers who resemble the suspect, or nervousness by the witness or the suspect, or fear of the suspect being seen by a witness arriving at the police station for a parade, have been reduced by photographic or video parades. A warning about the risks of misidentification, known as the Turnbull direction, must be given to the magistrates (or jury) before they reach a verdict. The following passages are taken from Turnbull.62 References to a jury apply equally to magistrates. “First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition, he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words. Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Has the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original obser62. [1977] QB 224; [1976] 3 AER 549.

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Essential Magistrates’ Courts Law vation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given … Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. In our judgment, when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it; provided always, however, that an adequate warning has been given about the special need for caution … When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. This may be corroboration in the sense lawyers use that word; but it need not be so if its effect is to make the jury sure that there has been no mistaken identification: for example, X sees the accused snatch a woman’s handbag; he gets only a fleeting glance of the thief ’s face as he runs off but he does see him entering a nearby house. Later he picks out the accused on an identity parade. If there was no more evidence than this, the poor quality of the identification would require the judge to withdraw the case from the jury; but this would not be so if there

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So, in a case that relies on disputed identification evidence magistrates should remind themselves of the special need for caution. Where a case depends on identification that is poor and uncorroborated then the bench should accept a submission of no case to answer. A dock identification — where a witness identifies a person during a trial — is not generally permitted. There may (or may not) be an exception in minor motoring cases, where identity has been raised as an issue in advance, but, in any case, the weight of the evidence will be low, in the absence of corroboration from details and a description taken at the scene. Sometimes an unrepresented defendant will ask a witness whether he was the person involved. The dangers of such a course should be explained by the legal adviser, but if the defendant persists the question should be allowed. It is far from uncommon for a motorist to give police false details of a wholly innocent person, and in our experience the officer in court not infrequently confirms that the defendant was not the offending driver. When a witness identifies someone at an identification parade, that identification is admissible in evidence, even if the witness has subsequently forgotten it. It can be given by the inspector who conducted the parade.

Inferences from silence The circumstances in which a court may draw inferences from the defendant’s silence are set out in the Criminal Justice and Public Order Act 1994. Before that Act it was impermissible at common law to draw an adverse inference from a defendant’s failure to answer questions during the investigation, or failure to give evidence at trial. It remains the case that a person cannot be compelled to answer questions or give evidence. It is not an offence to fail to do so. While inferences may be drawn, a

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person cannot be found to have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal.63 The question as to whether an adverse inference can be drawn now arises most commonly when a defendant made no comment to questions asked at the police station. The court may draw such inferences from the failure of the accused to mention facts when questioned or charged as appear proper, but only in the following circumstances. Before being charged, an inference can be drawn only when the accused was being questioned under caution by a constable (that is a police officer of any rank) trying to discover whether or by whom the offence had been committed. In those circumstances an adverse inference can be drawn from a failure to mention any fact relied on in his or her defence in those proceedings.64 Alternatively, on being charged with the offence or officially informed that he might be prosecuted for it, an inference can be drawn from failure to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed.65 No adverse inference can be drawn from an interview at a police station (or other authorised place of detention) unless the accused had been allowed an opportunity to consult a solicitor before being questioned. An inference can be drawn from failure to mention facts in interview if the accused gives an effective waiver to the offer of legal advice. It is important to note that the failure to answer questions in interview does not of itself give rise to an adverse inference. The inference only arises if the defendant is asked relevant questions about the offence but fails to mention facts which in the circumstances existing at the time he could reasonably have been expected to mention. The inference only applies to facts relied upon as part of his or her defence. If, for example, no positive defence is put forward at trial, or if the facts are undisputed, then the inference does not apply. It is not uncommon for a suspect to produce at interview a pre-prepared statement and then refuse to answer further questions. An adverse 63. Criminal Justice and Public Order Act 1994, s.38. 64. Ibid, s.34(1)(a). 65. ibid, s.34 (1)(b)

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inference can be drawn only if that pre-prepared statement fails to mention a fact relied on in his or her defence at trial. Sometimes a defendant will say that he failed to mention facts on the advice of his or her solicitor. The giving of legal advice to remain silent does not of itself preclude the drawing of inferences. This is a difficult area, as it can lead to the waiver of privilege that attaches to a solicitor’s advice to a client; might mean that the solicitor is required to give evidence; and in those circumstances the defendant may need to be represented by another firm of solicitors. Where the accused could reasonably have been expected to mention a fact in interview, and did not do so, the court may draw such inference “as appears proper” including that the fact has been invented after the interview or that the suspect was unwilling to expose his or her account to scrutiny. Inferences can also be drawn if a suspect is arrested in possession of incriminating objects or substances,66 or when he or she was found at the location of the crime at or around the relevant time.67 An adverse inference may also be drawn where a defendant either refuses to give evidence at trial or refuses to answer certain questions.68 There is an exception where it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence, but in practice this is very rare. It is therefore essential that at the stage where a defendant has the opportunity to give evidence the bench or the legal adviser warn about the potential for adverse inferences if he fails to testify. The adverse inference that may be drawn from a failure to give evidence is that the accused “is guilty of the offence charged”. Nevertheless, it must be remembered that a conviction cannot be based solely on an adverse inference.

66. Ibid, s.36. 67. Ibid, s.37. 68. Ibid, s.35.

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A defendant’s lies The fact that a defendant has lied to the police or to the court is not of itself conclusive of guilt. However, it may support evidence of guilt. In such circumstances it is appropriate for the bench to remind itself, or be reminded, of the Lucas69 direction, as follows: (a) the lie must be deliberate and must relate to a material issue; (b) the bench must be satisfied that there is no innocent motive for the lie; (c) the lie must be established by evidence other than that of the witness who is to be corroborated.

A word about CCTV CCTV is real evidence, not hearsay. Like DNA or fingerprints, mobile phone footage and webcams, CCTV can be compelling. It can prove guilt or innocence. For obvious reasons, all parties would like to see any relevant CCTV at as early a stage as possible. It helps with pleas and with case management. However, CCTV must be treated in the same way as any other evidence. The first hearing cannot be adjourned for the parties to view it: a plea must be taken first. If the Crown relies on CCTV the defence must be given sufficient time before trial to view and consider it, though unfortunately this is often not done until the day of trial. If the prosecution has CCTV, and does not rely on it, they cannot be required to hand it over unless it undermines their case or assists the defence. Courts cannot order the production of CCTV except pursuant to an application under s.8 CPIA 1996 (see the section on Disclosure in Chapter Four). If the prosecution does not have CCTV in its possession, then manifestly it cannot be ordered to obtain it and hand it over. If they had it, but have lost it, or fail to produce it at trial then (in the absence of bad faith) this 69. [1981] QB 720.

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is not an abuse of process (see the section on Abuse of process arguments at the beginning of this chapter). So, all we can do is to encourage the prosecution to hand over CCTV at an early stage. Even though they are not obliged to do so, it helps them and everyone else. It is fairer.

Taking the oath or making an affirmation An adult witness will have the choice as to whether to take the oath on a holy book chosen by the witness, or to affirm. It is not appropriate to question the witness about this choice, save on rare facts. Where it later appears that the wrong holy book, or the wrong form of words, has been used, this does not necessarily render the evidence inadmissible, but may affect weight. The question is whether the taking of the oath appeared to the court and to the witness to be binding.70

Memory refreshing Witnesses for the prosecution and for the defence are entitled to refresh their memories from their statements before going into the witness box. Where this happens, the other party should be informed. Care should be taken to ensure that witnesses do not compare their accounts with other witnesses. When giving evidence, a witness may be given permission by the court71 to refresh memory from a document made or verified by the witness at an earlier time.72 This applies to a written document (such as a statement made to the police) or the transcript of an oral account (such as a tape-recorded interview). All witnesses, including the defendant, have this right at any stage of their evidence. There are two conditions. 70. R v Kemble [1990] 1 WLR 1111. 71. The statute does not require permission, but it has been decided that there is a residual discretion to refuse even if the conditions are met. It is suggested that courts should use this discretion sparingly. 72. Criminal Justice Act 2003, s.139.

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The witness must state in oral evidence that the document records his or her recollection of the matter at that earlier time. The court must determine that the witness’ recollection of the matter is likely to have been significantly better at that time than at the time of oral evidence.73 Practices vary. Some courts discourage the practice, despite the clear wording of the statute. Some wait until the witness stumbles, which is unnecessary.74 In our view it is usually best to establish the position at the outset, after the witness has been sworn and identified. “Did you make a statement about these events?” “Is this your statement?” “When was it made?” “Does it record your recollection of this matter at the time it was made?” (These questions do not offend against the rule on Leading questions, see the next section below.) If the statement was made well before the trial, it is probable that the court will conclude that the witness’ recollection is likely to have been significantly better at the time the statement was made. It is common sense that memories often fade over time and are not helped by the stress of court proceedings.75

Leading questions A party calling a witness may not normally ask leading questions during examination-in-chief. A leading question is one that suggests the answer sought. Such a question does not render the answer inadmissible but reduces the weight that can be attached to the answer. There is or should be no objection to leading questions about facts that are not in issue in the trial, such as background facts. In fact, leading questions are often helpful in taking a witness without delay to the contentious part of his or her evidence. It is in any event not always clear whether a question is a leading question and restraint is desirable before interrupting an experienced advocate. After all, if the bench thinks the lawyer’s 73. It is for the court to decide; R v Mangena [2009] EWCA Crim 2535. Many advocates ask the witness, but this is probably unwise! 74. R v Mangena [2009] EWCA 2535. 75. Professor John Spencer is quoted by Auld LJ (Review of the Criminal Courts, October 2001) as saying that the weakness of relying solely or mainly on oral testimony is that it requires us: “to accept two remarkable scientific propositions: first, that memory improves with time; and secondly, that stress enhances a person’s power of recall.”

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examination-in-chief was suggesting the answer to a crucial question to a witness, they may place little weight on the answer. The restriction applies to both prosecution and defence witnesses; but there is no such restriction on the opposing party when it comes to cross-examination and leading questions can be put, for example in order to challenge the witness’ account. There are also rare occasions when a party may be able to ask leading questions of a hostile witness (see page 100). Before this happens, everyone should carefully consider the law!

No case to answer At the conclusion of the prosecution case, on the defendant’s application or of its own initiative, the court may acquit on the ground that the prosecution evidence is insufficient for any reasonable tribunal to convict. This is the test as expressed by the CPR (although advocates often refer to the Galbraith test, which is essentially the same, but more complicated). There may be no case to answer if there is no evidence of an essential ingredient of the offence, or no evidence that the defendant committed the offence. Or it may be where there is evidence, but it is of a tenuous character. So, for example, in a case of dishonest handling of stolen property, there may be no evidence that the item in the charge was in fact stolen. Or the evidence identifying the defendant may have been shown by cross-examination to be inherently weak or vague. The prosecutor must be allowed to make representations before any decision is taken that there is no case to answer. There is no obligation to give reasons for rejecting a submission of no case, and it is normally best not to do so, at least unless challenged on appeal to the High Court. However, it is good practice to give reasons for upholding such a submission, as this is a terminating ruling. Ambush defences are not permitted. If a defendant refuses to identify the issues, he can derive no advantage from that. Similarly, if the defence is going to take a positive point on identification, it is incumbent on

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them to flag the point at an early stage. The remedy for an ambush point is to allow the prosecution to call additional evidence.76

Burden and standard of proof, verdict and reasons In every criminal case the prosecution must prove the defendant’s guilt; as it is often put the burden of doing so is on the Crown. Proof must also be to the requisite standard, so that the tribunal is sure (which is now preferred to “beyond reasonable doubt”, although the meaning is the same). This means that unless the magistrates are sure of guilt the only verdict that can be brought is not guilty. It is unhelpful to try to express the test in mathematical or percentage terms. “Sure” means sure. Although a unanimous verdict is preferable, a majority decision is permissible. If only two magistrates are sitting, and they disagree, then the case must be tried again, by a different bench. Magistrates must give reasons for convicting. These need not be very elaborate but should be sufficient to show a defendant why he or she was convicted.77 Reasons for an acquittal may be given. Reasons are normally given orally (and recorded by the legal adviser78): a written judgment is rare.

Co-defendants Where two or more defendants are tried together, the trial process has to be adapted to take this into account. The CPR are silent on the issue but over the years practice has developed which respects the competing rights of the various parties. The first point concerns the order in which the defendants should give their evidence and participate in cross-examination of witnesses. This is best done by agreement between the advocates but, if no agreement is possible, the court must decide. We suggest that: 76. R v Chorley Magistrates’ Court [2006] EWHC 1795 (Admin) and R v Norwich Magistrates’ Court [2011] EWHC 82 (Admin). 77. Criminal Procedure Rules 24.3 (5). 78. In accordance with CPD 24A.6.

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• the lead defendant should normally be the one charged with actual commission of the offence, where the co-defendant is charged as an accessory; • it should be the adult where the co-defendant is a youth; or • if nothing else distinguishes the defendants, then alphabetical order may be used. When the time comes for the defendants to give evidence, it is the custom that they should first be cross-examined by their co-defendants, leaving the prosecution to go last. In some cases there will be no questioning of one defendant by another but, in cases where each is accusing the other, the mutual cross-examination may well assist the prosecution in proving its case against both defendants (such cases are known as “cut-throat” defences). The rules about admissibility of such evidence, particularly confessions which implicate a co-defendant, are complex and care needs to be taken.

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CHAPTER SEVEN

Common Offences

Fail to surrender to bail It is an offence for a person who has been released on bail in criminal proceedings to fail without reasonable cause to surrender to custody.1 If that person does have reasonable cause to fail to surrender, he or she nevertheless commits an offence by failing to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time.2 When a person has been granted bail by a police officer to attend court and subsequently fails to surrender to custody, the decision whether to initiate proceedings under the Bail Act will be for the police/prosecutor and proceedings are commenced in the usual way. The offence in this form is a summary offence although alternative time limits for the commencement of proceedings have been provided. The offence should be dealt with on the first appearance after arrest, unless an adjournment is necessary, because it will be relevant in considering whether to grant bail again. Where a person has been granted bail by a court and subsequently fails to surrender to custody, on arrest that person should normally be brought as soon as appropriate before the court where the case is being heard. There is no requirement to lay an information within the time limit for a Bail Act offence where bail was granted by the court. Time 1. Bail Act 1976, s.6(1). 2. Ibid, s.6(2).

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limits for initiating proceedings are set out in section 6 of the Bail Act. Given that bail was granted by a court, it is more appropriate that the court itself should initiate the proceedings by its own motion although the prosecutor may invite the court to begin proceedings. Courts should not, without good reason, adjourn the disposal of Bail Act offences (failure to surrender) until the conclusion of the proceedings but should deal with defendants as soon as is practicable. Where proceedings are commenced by the police or prosecutor, the prosecutor will conduct the proceedings. Where the court initiates proceedings, with or without an invitation from the prosecutor, the court may expect the assistance of the prosecutor if required. Before the Bail Act allegation is put to a defendant, many courts ask for an explanation of the failure to surrender. In a busy court there may be a temptation to accept the explanation without adequate proof. Except in the clearest of cases (for example where an acceptable medical certificate is handed in) courts would be best advised to hear the explanation from the defendant on oath during a trial process. This rarely takes more than a few minutes and complies with the requirement for the courts to take appropriate action. A rigorous and consistent response when offenders fail to answer bail is needed.3 If it is proved that the defendant failed to surrender to custody at the appointed time, then the onus is on the defence to prove on the balance of probabilities that there was reasonable cause for that failure. Note that it is “reasonable cause” and not as is often stated “reasonable excuse”. There is a difference. “Reasonable cause” has a sense of being prevented from attending while “reasonable excuse” may have a broader meaning.4 There is a detailed guideline for sentencing a Bail Act offence, and this must be followed unless it is contrary to the interests of justice to do so. It is not an offence to breach bail conditions. Where a person is arrested for breaching conditions the defendant must be brought before the court within 24 hours. There is no power to adjourn.5

3. Sentencing Council Guideline Fail to Surrender to Bail. 4. See Bail in Criminal Proceedings, Corre and Wolchover, Blackstone Press, second edition 4.3.3.1. 5. R (DPP) v Havering Magistrates’ Court [2001] 3 All ER 997.

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Assault Common assault

Common though this offence may be, it is more complicated than it might appear at first sight. For a start, it is not one offence, but two (and that is without taking account of the racially aggravated version of the offence). Secondly, although it is now always charged as an offence contrary to s.39 Criminal Justice Act 1988, it is in fact an offence dating back to the common law which became a statutory offence in 1861. In this context “common” assault distinguishes it from more specific forms of assault, e.g. on police officers. The two separate crimes included in the overall offence are assault and battery. It is an assault to make another person think that you are going to use immediate and unlawful violence against him or her (although the victim need not actually be frightened by the threat). Battery is the actual application of unlawful force. In both cases the defendant must be proved to have acted deliberately or recklessly. The vast majority of cases involve battery, but this term is not in fact used in the charge: the correct wording is “assault by beating”. Police officers frequently charge batteries as simple assaults: this leads to the charge being amended to assault by beating at the first hearing. It is essential that the charge accurately reflects the actual wrongdoing alleged by the prosecution. The physical element

It is possible to communicate the threat of immediate unlawful violence by gestures, or by words, whether written or spoken, or even without words: silent telephone calls have been found to be capable of constituting an assault, where it could be shown that the recipient of the call was caused to be in fear of immediate and unlawful violence.6 In principle, any touching of another person without consent is a battery, though in practice the law will disregard inadvertent or unavoidable touching of the kind that happens, e.g. in a crowded underground train. No injury or pain need be caused, although in practice many prosecutions 6. Ireland [1998] AC 147.

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for common assault do involve quite significant injury. It is established that spitting may constitute a battery, as does the use of a dog or a vehicle as the means by which the force is applied. The mental element

The prosecution must prove that the defendant acted either intentionally or recklessly; it will often be the case that the court will be asked to infer the defendant’s state of mind from the surrounding circumstances, in the absence of a specific admission. Voluntary intoxication is not capable of providing a defence. Lawful and unlawful force

It will often be the case that the defendant admits the use or threat of force, but claims that it was justifiable. Frequently this will involve an assertion that the defendant was acting in self-defence (see Chapter Eight). Less often, the defence may be that the use of force was consensual. This may require some evidence of regulation. Amateur and professional boxing are lawful and can be distinguished from an unregulated fight. Similarly, tattooing and body-piercing are culturally (and legally) accepted, at least when carried out by professional practitioners (who must be registered with their local authority). However, in one modern case7 the Court of Appeal refused to accept that consent could validly be given to body modifications such as tongue-splitting or ear removal carried out by a tattooist and body-piercer without any medical qualifications (and without anaesthetic). Where the alleged assault is on a child, the defence of lawful chastisement may be put forward, but its scope has become much narrower in modern times. Sentencing

As the basic offence is summary only, the maximum penalty is six months’ imprisonment. However, in some circumstances a charge of common

7. BM [2018] EWCA Crim 560.

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assault may be added to an indictment, so that the Crown Court trying the more serious offence may also try the lesser offence. The racially or religiously aggravated offence

Where the offence is alleged to be racially or religiously aggravated, it should be charged as the aggravated offence under s.29 Crime and Disorder Act 1998: in some circumstances the prosecution may charge both offences as alternatives. The maximum penalty for the aggravated offence is two years’ imprisonment: such cases will usually be suitable to be tried in a magistrates’ court. Section 28 of the 1998 Act defines what is meant by racial or religious aggravation: it requires that the defendant, at around the time of committing the offence, demonstrated hostility based on the victim’s (presumed) membership of a racial or religious group. Alternatively, the prosecution must prove that the offence is motivated, partly or wholly, by hostility towards members of a racial or religious group. The question of what the court should do where the prosecution does lay alternative charges was considered in the case of Henderson v DPP [2016] 1 WLR 1990 where the defendant was originally convicted of racially aggravated offences; the deputy district judge having declined to enter verdicts on the basic offences. The matter came for sentence before a different district judge, who entered guilty verdicts on the basic offences but imposed no separate penalty for them. The defendant appealed by way of case stated and the Divisional Court determined that the original decision not to enter verdicts on the basic offences was correct. On an appeal to the Crown Court against conviction it would be open to the Crown Court to allow an appeal against the aggravated offence but to convict on the basic offence. The correct course for magistrates to adopt where they convicted on the aggravated offence was to adjourn the basic offence indefinitely. Assaults on emergency workers

By virtue of s.1 Assaults on Emergency Workers (Offences) Act 2018, an offence of common assault or battery committed against an emergency worker is an either-way offence with a maximum penalty of 12 months’ imprisonment. The maximum penalty for the summary offence is also 127

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increased to 12 months, but this is dependent on an overall increase in magistrates’ courts’ sentencing powers coming into force. Where the offence is dealt with summarily, the maximum penalty therefore remains unchanged. Emergency workers are defined in the Act as including police and prison officers, prisoner custody officers, fire and rescue officers, and National Health Service workers. They do not need to be paid employees, or even on duty, so long as the assault takes place when they are carrying out emergency functions. There does not have to be an emergency of any kind for the Act to apply. Assaulting a police officer in the execution of his or her duty

This is a separate statutory offence contrary to s.89 Police Act 1996. It is a summary only offence for which the maximum penalty is six months’ imprisonment. It encompasses the offence of common assault, but the prosecution must also prove that the officer was acting in the execution of his or her duty (see Chapter Eight). It is not open to a magistrates’ court to convict for common assault where the prosecution cannot prove that the officer was acting in the execution of his or her duty: if there is a doubt on that issue, the prosecution should charge common assault as an alternative charge. The court could then convict on the common assault charge but acquit the defendant on the Police Act charge. As the charges are alternatives, the court cannot convict on both (but could acquit on both). Although the prosecution does not have to prove that the defendant was aware that the victim was a police officer, nor it is necessary for the officer to be on duty as such or in uniform, nevertheless an honest mistake as to the circumstances may provide a defence. So, to give an example approved by the Administrative Court in the case of Wheeldon v CPS [2018] EWHC 249 (Admin), where a person grabbed from behind mistakenly believes his or her attacker is a robber, he may use reasonable force to resist the attack, and it does not matter that their assailant is in fact a police officer acting in the execution of his or her duty. Reasonable force does not extend to biting the officer in the arm: Dixon v CPS [2018] EWHC 3154 (Admin). 128

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In most cases of assaults on police officers, it will be open to the prosecution to charge the either-way offence under the 2018 Act (see Assaults on emergency workers earlier in this chapter); current CPS guidance is that the existing offence of assault on an officer in the execution of his or her duty has been superseded by the new offence. Assault with intent to resist arrest

This is an either-way offence under s.38 of the Offences Against the Person Act 1861. Again, it encompasses common assault, but the prosecution must additionally prove an intention to resist or prevent the lawful arrest of himself or of herself or of another person. The issue of whether the proposed arrest was in fact lawful will usually be the central issue at any trial. Again, an honest mistake by the defendant as to the circumstances may provide the defendant with a defence. However, this does not extend to a mistake as to law, so that a shoplifter who resisted arrest by a store detective because he mistakenly believed that only police officers could arrest for theft, would not have a defence. Assault occasioning actual bodily harm

This is also an either-way offence (contrary to s.47 Offences Against the Person Act 1861) which again encompasses common assault. Although a relatively minor injury might be thought to satisfy the definition, the CPS charging guidelines require a relatively serious injury or some other aggravating feature such as the use of a weapon or the vulnerability of the victim. As with common assault, there is a racially, etc. aggravated version of the offence, which carries a higher maximum sentence (seven years’ imprisonment instead of five) when sentenced at the Crown Court. Because common assault in a domestic setting is one of the most common contested trials in a magistrates’ court, we give an example in Appendix 1 to this book. There is also a racially, etc. aggravated version of the offence of wounding or inflicting grievous bodily harm contrary to s.20 Offences Against the Person Act 1861, but although this is an either-way offence, racial or religious aggravation is likely to make it too serious for summary trial.

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Drink Drive Introduction

If a person is convicted of drink-driving then a disqualification from driving of at least 12 months is almost always imposed, in addition to any other penalty. For many motorists, this is a severe punishment. Some, particularly those of substantial means, are keen to avoid the consequences of conviction by looking for technical defences, or loopholes. It is notorious (and has been commented on in the case law) that an industry has grown up to put forward unmeritorious defences. In fact, there are few legitimate loopholes. The law on drink-driving is no more complicated today than the law on many other offences. Of course, there are some who are not guilty. What is needed to prevent an injustice is clear-headed and strong case management at the first hearing, when a plea of not guilty is entered. In genuine cases, good case management can identify at an early stage the prosecutions that should proceed no further, so that the innocent defendant can be spared the time, trouble and expense (not to say worry) of a trial. Sections 4, 5 and 7 of the Road Traffic Act 1988 (as amended) relate to drink or drug driving. It is important at the case management stage, and in any event not later than the beginning of the trial, to ensure that the charge is correctly stated and not wrong for duplicity (that is, charges more than one offence). For example, s.5 creates nine different offences depending on whether breath, blood or urine was taken from the defendant.8 It is the policy of this book to cover only those offences that are most frequently placed before magistrates. Therefore, this section will deal only with driving with excess alcohol in breath; being in charge with excess alcohol in breath; drug driving; and failing to provide a specimen of breath. There is a common-law presumption that the breath testing machine is reliable. This was referred to by Lord Griffiths in Cracknell v Willis9 in the following terms: 8. Note from a Scottish case, Fenwick v Valentine [1994] SLT 485, a late amendment to the charge is likely to be permitted. 9. [1988] 1 RTR at p.20.

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Common Offences “I am myself hopeful that the good sense of the magistrates and that the realisation by the motoring public that approved breath testing machines are proving reliable will combine to ensure that few defendants will seek to challenge a breath analysis by spurious evidence of their consumption of alcohol. The magistrates will remember that the presumption in law is that the machine is reliable.” (Our emphasis.)

Driving above the limit

A person who drives or attempts to drive a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in his or her breath exceeds the prescribed limit, is guilty of an offence under s.5(1)a) of the Road Traffic Act 1988. Procedure

Generally, a drink drive prosecution begins with the arrest of the motorist for failing (or failing to provide) a preliminary breath test, usually described as the roadside breath test. A lawful arrest is not a requirement for a successful prosecution. However, what happened at or before the time of arrest may be relevant if the defendant is arguing that the procedure at the police station was so tainted by bad faith that it must be excluded from the evidence. What happened at the roadside may also be relevant admissible evidence if the defendant’s case is that he had not been drinking, or drinking very little, and therefore the reading from the police station device is inaccurate. The procedure to be followed is set out in s.7 of the Road Traffic Act 1988. In the course of an investigation into whether an offence of drinkdriving has been committed, a constable (in fact any police officer, but usually a police sergeant) may require the person to provide two specimens of breath (or blood or urine) for analysis by means of a device of a type approved by the Secretary of State (in the case of breath). The requirements must be made at a police station (which is almost always the case) or at a hospital (where blood is usually taken) or at or near the place where the relevant breath test was administered (where the constable must be in uniform unless there has been an accident). There are provisions as to what should happen if a reliable device is not available. This 131

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book will not be dealing with the provision of blood or urine samples. By s.7(7) of the RTA 1988: “a constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution.” This is a mandatory subsection. It applies not only where the motorist fails to provide a specimen, but also where a specimen is provided. The three questions about which there has been most litigation are: whether the device used was of a type approved by the secretary of state; whether the device is reliable; and whether the statutory warning in s.7 (7) was given. Most defences to drink drive charges are centred around a failure of procedure or an unreliable breath test reading. It is therefore worth exploring this issue in more detail here. Whether the device used to provide two specimens of breath is of a type approved by the secretary of state has been considered on many occasions. The question seems to have been resolved. If the device used has been approved by the secretary of state then sensible modifications do not need further approval.10 The approval of any particular type of device is not subject to a challenge in a criminal court.11 This means that any alleged defect does not go to type approval, although in some circumstances it could be relevant to the reliability of the device in question. The key procedural question is whether the statutory warning in s.7(7) has been given as set out above. If the defendant disputes that the warning was given, or says it was given in a language he or she does not understand, then often the best evidence is of the CCTV covering the breath test procedure that can now be found in most police stations. However, where CCTV was not available, has been destroyed, or for whatever reason has not been produced, then the trial should go ahead on the live evidence of the officer who says the warning was given, and the evidence of the defendant who says it was not.12

10. Breckon v DPP [2007] EWHC 2013. 11. Rose v DPP [2010] EWHC 462. 12. DPP v Petrie [2015] EWHC 48 (Admin).

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Unreliability

This is the defence that is most commonly encountered. The assumption that the breath testing machine is reliable is rebuttable. It can, for example, be rebutted by evidence from the defendant that he or she had not been drinking or had consumed too little alcohol to provide the reading given by the machine. Often this defence will require experts to show what the reading would have been on the defendant’s own account. Frequently the defence call other expert witnesses to cast doubt on the reliability of the machine. Evidence that the proportion of alcohol in a specimen of breath exceeded the legal limit can be given at trial by the production in court of the automatically produced printout and a certificate signed by the constable that the statement relates to a specimen provided by the accused at the date and time shown in the statement.13 The statement is real evidence and is admissible provided it has been properly produced under the provisions of s.116 RTOA. This means that the printout and appropriate certificate are sufficient to establish the facts stated in it without the necessity of anybody being called to give live evidence.14 However this is not the only way in which evidence of the breath analysis can be given.15 As already stated, the presumption that the machine is reliable is rebuttable. Nevertheless, unless the prosecution evidence, including evidence elicited by cross-examination, raises doubts about the reliability of the device, then the presumption will be sufficient to establish a case to answer. In the absence of evidence of malfunction, there is no need for the prosecution to provide direct evidence of calibration. The second-generation machines automatically check calibration and will show if an error has occurred. It will therefore be sufficient, or indeed not even necessary, for the officer conducting the procedure to state that the machine was working properly.16 In addition, there is a statutory assumption that the proportion of alcohol in the specimen of breath at the time of the offence, that is the 13. 14. 15. 16.

Road Traffic Offenders Act 1988, section 16. This section also sets out the conditions for service. Garner v DPP [1990] RTR 208, per Stocker LJ. See for example R (On the application of Oljide) v Stratford Magistrates’ Court 19 July 2018. Haggis v DPP [2003] EWHC 2481.

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time of driving, was not less than in the specimen provided for the evidential breath machine. Hip flask

As mentioned above, there is a statutory assumption that the proportion of alcohol in the specimen of breath at the time of the offence was not less than in the specimen provided for the evidential breath machine. However, this does not apply if the defendant proves that he or she had consumed alcohol after he or she ceased to drive, and that had they not done they would not have been above the limit. As the burden of proof is on the defendant (on the balance of probabilities) defence lawyers will want to call admissible evidence of post-driving consumption. It is also usually necessary to obtain expert evidence proving that the motorist would not have been over the limit had it not been for this later consumption. Drug driving

Prosecutions for this offence are now common. It has long been an offence to drive whilst unfit through drink or drugs. Impairment must be proved. Since 2015, it has been an offence for a person to drive, attempt to drive or be in charge of a motor vehicle with a specified controlled drug in the body. There are some 17 specified drugs (including some prescription drugs) each with a specified legal limit in blood. There is no need to prove impairment — the offence is to have drugs in excess of the legal limit in the body. It is a defence to show that the drug was used as prescribed. There is guidance on sentencing from the Sentencing Council. In charge

If a person is in charge of a motor vehicle after consuming so much alcohol that the proportion of it in his or her breath, blood or urine exceeds the prescribed limit, he or she is guilty of an offence. It is a defence for a person charged with this offence to prove that at the time he or she is alleged to have committed the offence the circumstances were such that there was no likelihood of his or her driving the vehicle while the proportion of alcohol in his or her breath, blood or urine remained likely 134

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to exceed the prescribed limit.17 This is commonly referred to as “the statutory defence”. Once again, we will deal in this section only with breath readings, and not with the less common cases where blood or urine is involved. Much of the law that relates to driving a motor vehicle on a road applies equally to the offence of being in charge. However, the meaning of “in charge” and of the statutory defence need to be explored further here. People are sometimes astonished at the breadth of the meaning of “in charge”. The test was considered by the Divisional Court in 198918 and this remains good law. In fact, there is no hard and fast all-embracing test. However, if the defendant was the owner of the vehicle then he or she would on the face of it be in charge of the vehicle, unless the vehicle had been put into the charge of somebody else. The same would apply if the defendant had recently driven the vehicle. No doubt because the test of being in charge is so wide, it is a defence for the defendant to prove that at the material time there was no likelihood of his or her driving while he or she remained over the limit. The leading case on this defence is Sheldrake.19 Both the Divisional Court and the House of Lords considered the defence in some detail. “Likelihood” does not mean probability. It means a real risk, a risk that ought not to be ignored. The intention of the accused not to drive is only one factor in deciding whether there is such a risk. As was stated in the Divisional Court: “a man’s intention may change, especially at night when influenced by alcohol.” Note that the prosecution is not required to prove that the defendant was likely to drive whilst over the limit: it is for the defendant to establish this defence on the balance of probabilities. Failure to provide a specimen of breath for the evidential breath testing machine

Note we are not talking here about the preliminary or roadside breath test. That is a separate offence. 17. Section 5(1)(b} and s.5(2) Road Traffic Act 1988. 18. DPP v Watkins [1989] 2 WLR 966, per Taylor LJ. In any case where there is an argument about whether the defendant was in charge it would be wise to consult this case. 19. Sheldrake v DPP [2004] UKHL 43.

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Under s.7(6) of the Road Traffic Act 1988 a person can be required to provide a specimen of breath in the course of an investigation into whether a person has committed an offence under s.4 or s.5 of the Act. A person who without reasonable excuse fails to provide a specimen when required to do so under s.7 is guilty of an offence. The offence can be committed even if the person who fails to provide a specimen was not in fact driving. All that is required is a lawful investigation. Nor does it matter that the person had been wrongly arrested, in the absence of bad faith. There is however a different and lesser penalty if it turns out that the person who refused or failed to provide the specimen was in fact not driving or attempting to drive. The lesser offence no longer carries mandatory disqualification. Note that the prosecution must prove a “failure” to provide a specimen, not a refusal. Once the failure has been proved, the question arises as to whether the motorist had a reasonable excuse. If this defence is put forward, then it is for the prosecution to disprove it. Medical evidence is normally required to establish a reasonable excuse,20 although there have been cases that have established that medical evidence is not always essential.21 Note that even where the motorist has a medical condition that would preclude the ability to give a sample, this will not result in an acquittal where there has been a deliberate failure or refusal not based on that medical condition, for example because the motorist was unaware of the condition. There is a long line of authorities on whether a motorist who declines to provide a specimen until consulting a solicitor is committing the offence.22 These cases have generally revolved around the question as to whether evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984 as unfair (see Fairness, Chapter Six). It has been decided23 that the only situation where section 78 may be engaged 20. See for example Grady v Pollard [1988] RTR 316, where it was held that making every effort to provide breath samples could not of itself amount to a reasonable excuse for failure. Evidence would normally be required from a doctor, although in some circumstances it could come from the motorist. 21. See for example DPP v Falzarano [2001] RTR 14. 22. See Crown Prosecution Service v Chalupa [2009] EWHC 3082 where the Divisional Court discusses the position in detail and refers to earlier cases. 23. Chalupa, above.

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is where the police refused to allow a suspect access to a solicitor who is ready and immediately available. Even in those circumstances the court is plainly entitled to refuse to exclude the evidence. In summary, it will be a very unusual set of circumstances where a defence succeeds on this basis. Religious belief is unlikely to arise as a factor in failing to provide a specimen of breath, and it is hard to imagine the circumstances in which such a belief would provide a defence. As with the other drink-driving offences, the statutory warning (section 7(7)) must be given before the request for a specimen. It may amount to a reasonable excuse if the defendant does not understand that warning.24 On the other hand a defendant who was too drunk to understand the procedure will not succeed with a defence of reasonable excuse.25

Theft and related offences Introduction

Whole textbooks could be, and have been, written on the law of theft but it is rare for points of law to arise in a magistrates’ court trial. It follows that we shall not attempt to provide a comprehensive statement of the law in this work. Most theft offences prosecuted in magistrates’ courts are offences of shoplifting, to which special procedural rules apply. In this section we also consider the related common offences of taking a motor vehicle without consent, handling stolen goods and going equipped to steal. Theft

There is a statutory definition of theft in s.1 Theft Act 1968: “A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it”. It is an either-way offence but low value shoplifting (where the total value of the goods in question does not exceed £200) is triable only summarily, unless the defendant elects trial by jury. Where two or more shoplifting 24. Beck v Seger [1979] CLR 257; Chief Constable of Avon and Somerset v Singh [1988] RTR 107. 25. Spalding v Paine [1985] CLR 673; DPP v Beech [1992] CLR 64.

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offences are charged at the same time, the aggregate value of all the goods is used for this purpose. In the context of cases coming before magistrates’ courts, points of law relating to the statutory definition are unlikely to be argued. Readers are referred to the standard textbooks for discussion as to what is meant by “appropriation” or, indeed, “property”. There are a number of provisions in the Theft Act further defining the elements in the statutory definition. The meaning of “dishonestly” for this purpose is discussed below. Perhaps the most important element for magistrates’ court purposes is “with the intention of permanently depriving the other”. So, a simple borrowing of an item will not normally amount to theft, but s.6 Theft Act 1968 sets out certain circumstances in which such a borrowing may be deemed to amount to an intention permanently to deprive the owner. This applies particularly where the borrowing “is for a period and in circumstances making it equivalent to an outright taking or disposal”. Two related situations which may involve consideration of the law are abandoned goods and theft by finding. Where goods are abandoned, they cannot be stolen, but determining whether goods have in fact been abandoned is not always straightforward. Goods left outside a charity shop or outside a house for collection by a charity are not abandoned. Equally, property that has been lost is not abandoned. If I leave my wallet on the train and a thief finds it, he or she will be guilty of theft if he or she takes it and does not hand it in to the appropriate authorities. Such a theft may be charged as “theft by finding” although the words “by finding” are merely explanatory. One situation which commonly arises in magistrates’ courts involves defendants arrested for shoplifting before they have left the shop. They may argue that the offence is not complete until they have passed the last point at which payment could be made: this is not the case, but the magistrates may be invited to conclude that there is evidence of dishonesty and intent permanently to deprive, for example where the defendant has concealed items in his or her clothing or has otherwise acted in a surreptitious manner. However, in the absence of any such evidence, the prosecution may be unable to prove dishonesty or the intention permanently to deprive, particularly in the case of a defendant of good 138

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character in possession of the funds necessary to purchase the goods in question. Taking without consent

This is an offence contrary to s.12 Theft Act 1968; the section refers to “any conveyance” but in practice is almost always used with reference to motor vehicles. There are in fact three offences covered by the section: taking the vehicle; driving it knowing it to have been taken without consent, or allowing oneself to be carried in the vehicle while knowing it to have been taken without consent. The charge should make clear what wrongdoing is actually being alleged. The offence is summary only but carries discretionary disqualification, even for the offence committed by being a passenger. The section was introduced into law because many prosecutions for theft of a motor vehicle were failing in circumstances where the defendant had simply taken the vehicle for a short journey, as a joyrider, frequently abandoning the vehicle afterwards. In those circumstances the prosecution would be unable to prove an intention permanently to deprive the owner of the vehicle. The defence most commonly put forward in such cases is that the defendant (whether as a driver or a passenger) did not know that the vehicle had been taken without consent in circumstances where he or she was not involved in the original taking (or the prosecution cannot prove that they were). In such cases magistrates will be invited to draw inferences as to the defendant’s knowledge from the surrounding circumstances (e.g. time of day, any damage to the vehicle, the character of the person purporting to be the owner or having permission, etc.). In such cases there may be an application to adduce previous relevant convictions as evidence of bad character. It is not possible to charge an attempt to commit this offence, but the offence of interference with a motor vehicle under s.9 Criminal Attempts Act 1981 encompasses the sort of activity that would otherwise amount to an attempt. Interference with a motor vehicle is a summary only offence with a maximum penalty of three months’ imprisonment: it does not carry penalty points or disqualification.

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Aggravated vehicle-taking

The aggravated form of the offence requires damage to the vehicle or other property, or injury caused in an accident, or dangerous driving. It is immaterial whether the defendant actually caused the damage or injury, or drove dangerously. All the prosecution has to prove is that the defendant is guilty of the basic offence and that at any time after the vehicle was unlawfully taken (whether by him or her or another) and before it was recovered, the vehicle was driven dangerously, or injury was caused owing to the driving of the vehicle, or that an accident occurred causing damage to other property or that damage was caused to the vehicle itself. However, there is a specific defence where the defendant proves (on the balance of probabilities26) that the dangerous driving, accident or damage referred to occurred before he committed the basic offence, or that he was neither in, nor in the immediate vicinity of, the vehicle at the time of the driving, accident or damage. This is an either-way offence except that where the total value of any damage caused does not exceed £5,000 the defendant cannot elect jury trial. Unusually, there is provision for a magistrates’ court that acquits a defendant of the aggravated offence to convict him for the basic offence. Disqualification from driving is mandatory. Going equipped to steal

This is an either-way offence created by s.25 Theft Act 1968. The defendant will be guilty if, “when not at his place of abode” he is found to have with him “any article for use in the course of or in connection with any burglary or theft”. In practice, this section is only used in the most obvious of cases, since the prosecution have to prove that the defendant did intend to use the article in question for a theft or burglary. It might be possible to draw an inference from possession of bolt-cutters (in the absence of a plausible excuse); other items which might be used in the course of theft may also have an innocent explanation.

26. R v Carr-Briant [1943] KB 607.

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Handling stolen goods

Whereas the maximum penalty for theft is seven years’ imprisonment, the maximum penalty for handling stolen goods is 14 years (making it potentially a “grave crime” in the youth court: see Criminal Justice Terms and Abbreviations at the end of the book). Nevertheless, it will frequently be suitable to be dealt with in a magistrates’ court. The offence includes not just receiving stolen goods but also retaining, removing, disposing or realising them for the benefit of another. The mental element is complex; the act in question must be both in the knowledge (or belief ) that the goods are stolen and dishonest. The issue that most usually arises in magistrates’ court trials for this offence is whether the prosecution can prove that the defendant knew or believed that the goods were indeed stolen. Sometimes the prosecution will seek to rely on surrounding circumstances, such as the goods being sold at much less than their true value, or something else which would normally arouse suspicion. Additionally, the prosecution can adduce in evidence the defendant’s previous convictions for theft or handling; this is by virtue of s.27(3) Theft Act 1968 and no application to admit bad character evidence is required. It should not be overlooked that the Crown must prove that the goods were indeed stolen, which normally requires a loser’s statement. Dishonesty

Dishonesty is an element in most (but not all) offences under the Theft Acts. The decision of the Supreme Court in the case of Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 made a major change to the law in this area. There is a partial definition of dishonesty in s.2 Theft Act 1968 which sets out certain circumstances in which appropriation of property is not to be regarded as dishonest. All of these circumstances depend on the defendant’s belief (e.g. as to the consent of the owner). It is not essential that the belief should be reasonable, but the reasonableness or otherwise of the belief may be relevant to credibility. In other circumstances, the court must determine dishonesty according to case law. The starting point where s.2 does not cover the issue is still the case of Ghosh [1982] QB 1053. This applies a test “according to the ordinary 141

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standards of reasonable and honest people”; if what was done was not dishonest according to those standards, then “that is the end of the matter and the prosecution fails”. As under the s.2 test, the defendant’s dishonesty is to be assessed by reference to the facts as he or she believed them to be.

Public order offences Introduction

Prosecutions under sections 4, 4A and 5 of the Public Order Act 1986 are part of the staple diet of magistrates’ courts. Sadly, the sections are not particularly well-drafted and there is often confusion (particularly when dealing with racially etc. aggravated versions of these offences) as to which section the charge relates. Threatening behaviour

This is the offence under s.4. There is no real alternative to reproducing the section in full: 4  Fear or provocation of violence (1) A person is guilty of an offence if he — (a) uses towards another person threatening, abusive or insulting words or behaviour, or (b) distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting, with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked. 142

Common Offences (2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is distributed or displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.

The offence in its basic form is summary only, carrying a maximum penalty of six months’ imprisonment. It will be seen from the convoluted form of words setting out the intent required for the offence, that there are in fact four different ways of committing the offence, in addition to the two different types of behaviour. In practice, most prosecutions are brought under sub-section (1)(a). Unfortunately, the police usually charge defendants without specifying which particular form of intent they are alleging, which leads to unduly lengthy charges being read to defendants who are then invited to confirm that they understand what has been read to them. It would be better if the charge were reviewed and amended as necessary by the CPS, but this rarely happens. In addition to the requirement for intent within the section itself, there is an additional requirement in s.6 Public Order Act 1986 to the effect that the defendant can only be convicted of the offence if he or she either intends his or her words or behaviour (or writing, etc. if charged under sub-section (2)) to be threatening, abusive or insulting, or is aware that they may be. Where the defendant is intoxicated, s.6(5) makes it clear that they cannot rely on that intoxication to show that they were not aware of something that they would otherwise have been aware of, unless the intoxication was not self-induced or was caused by medical treatment. As can be seen from the provision, the offence cannot be committed within a dwelling where the victim and the offender are both inside the dwelling: it is an offence of public disorder. The essential element which forms the main issue in many trials is the question of whether the violence that is said to have been threatened or provoked is both immediate and unlawful. While “immediate” does not mean “instantaneous”, there must be proximity of both time and causation.

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Disorderly behaviour

This is the offence under s.5 Public Order Act 1986. It is summary only, even in its racially, etc. aggravated form. The maximum penalty for the basic offence is a fine not exceeding level 3. Like the offence under s.4, it can be committed in two ways (by conduct or by writing) but thankfully the provisions about the mental element are much less complex, although still not wholly straightforward. Again, it is necessary to reproduce the section: 5  Harassment, alarm or distress (1) A person is guilty of an offence if he — (a) uses threatening or abusive words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible representation which is threatening or abusive, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. (2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling. (3) It is a defence for the accused to prove — (a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or (b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation 144

Common Offences displayed, would be heard or seen by a person outside that or any other dwelling, or (c) that his conduct was reasonable.

The first point to make is that the definition of the offence differs subtly from that under s.4 above, in that the word “insulting” (which was in the original text and which appears in s.4) has now been deleted.27 The second point is that while the prosecution has to prove that there was someone present who was able to hear or see the conduct in question, the prosecution does not have to prove that an alleged victim actually did see or hear it, much less that he or she was actually caused harassment, alarm or distress. It has been established28 that a police officer can be a person likely to be caused harassment, alarm or distress, but it will be a question of fact for the magistrates to decide whether in the particular circumstances of the case such an outcome was likely. The question of intention is dealt with by s.6, which provides that the defendant must either intend his or her words, behaviour or writing to be threatening or abusive, or is aware that they may be, or (where disorderly behaviour is alleged) intends or is aware that their behaviour may be disorderly. In the same way as under s.4, self-induced intoxication will not provide a defence. The question of reasonableness as a defence has been considered in a number of cases involving political protests. Article 10 of the ECHR (the right to freedom of expression) has been put forward as a justification for the use of language in such contexts that might cause offence. In the case of Abdul v DPP [2011] EWHC 247 (Admin) the court was dealing with protesters who attended a parade called to celebrate the homecoming of a regiment from a tour of duty in Afghanistan and Iraq. The protesters chanted slogans such as “British soldiers murderers”. Members of the public who were present responded angrily. The appellants were prosecuted under s.5 and convicted. The Administrative Court recognised that freedom of expression is an important right but decided that 27. By virtue of the Crime and Courts Act 2013. 28. DPP v Orum [1988] 3 All ER 449.

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prosecution was not disproportionate in circumstances where a threat to public order was established. Disorderly behaviour with intent

This is the offence under s.4A, which, as the section number indicates, was not in the original text of the 1986 Act but was added later.29 It is an imprisonable summary offence which has more in common with the offence under s.5 than the one under s.4. Again, we reproduce the words of the section: 4A  Intentional harassment, alarm or distress (1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he — (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.

It will be noted that the word “insulting” remains in the definition of the offence, but there is now a requirement for the prosecution to prove that the conduct did in fact cause the victim to suffer harassment, alarm or distress, not just that it was likely to do so. As with the offence under s.5, there is a specific defence where the defendant can prove that his or her conduct was reasonable. Racially, etc. aggravated offences

Where the basic offence under s.4, s.4A or s.5 is racially or religiously aggravated, the offence is more serious. The offences under s.4 and 4A 29. By the Criminal Justice and Public Order Act 1994

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are made either-way; for the s.5 offence the offence remains summary only but the maximum penalty rises from a fine at level 3 to one at level 4. The provision introducing the racially or religiously aggravated forms of the offence is s.31 Crime and Disorder Act 1998 and such offences will be charged by reference to that section. This leads in practice to much confusion as it will not always be clear from the wording of the charge which is the basic offence. Although a jury can acquit of the racially, etc. aggravated charge but convict on the basic offence, a magistrates’ court cannot do this. Accordingly, it is necessary, where the aggravated offence is tried in a magistrates’ court, for both offences (the basic offence and the aggravated offence) to be charged as alternatives. In those circumstances, where the court convicts the defendant on the aggravated offence, it should not convict of the basic offence, but instead should adjourn it indefinitely, even where the defendant had originally indicated a plea of guilty to the basic offence. This would enable the Crown Court on appeal to overturn the conviction on the aggravated offence but to convict on the basic offence.30 The magistrates can of course convict the defendant of the basic offence but acquit him on the aggravated offence. Section 28 of the 1998 Act defines what is meant by racial or religious aggravation: it requires the defendant, at around the time of committing the offence, to demonstrate hostility towards the victim of the offence based on the victim’s (presumed) membership of a racial or religious group. Alternatively, the prosecution must prove that the offence is motivated, partly or wholly, by hostility towards members of a racial or religious group. These dedicated provisions must be distinguished from more general ones under which comparable hostility always serves to increase the seriousness of offences in general.31

30. Henderson v DPP [2016] 1 WLR 1990. 31. See s.145 Criminal Justice Act 2003 and sentencing guidelines.

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Knives and offensive weapons Introduction

This section deals with the more common basic and aggravated offences relating to possession of a knife or bladed article, offensive weapons and corrosive substances. It does not deal with the complexities of firearms legislation. Possession of offensive weapon

This offence was created by s.1 Prevention of Crime Act 1953 and is triable either-way. It carries a mandatory minimum custodial sentence for defendants with a relevant previous conviction, although the court has a discretion not to impose it where the particular circumstances would make it unjust to do so. On conviction the court can and should make an order for forfeiture and destruction of the weapon. The prosecution has to prove that the defendant had the item with him in a public place; the defendant can escape conviction by proving “lawful authority or reasonable excuse”. An offensive weapon is defined in the Act as “any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him or by another”. Articles that are made for the purpose of causing injury are referred to as offensive weapons per se. In that case, and in the case of an article adapted for that purpose, there is no need to prove any intention to use the weapon to cause injury to another. Articles that have been held to be offensive weapons per se include flick knives, butterfly knives, knuckledusters, rice flails and sword sticks. Other items, such as kitchen knives, which are manufactured for a legitimate purpose, are not offensive per se and the prosecution will have to prove intent. Difficult questions can arise when an item has more than one function. In the case of DPP v Christof [2015] EWHC 4096 (Admin) the defendant was arrested for being drunk and disorderly. On arrival at the police station it was found that he was wearing a belt whose buckle could be removed and used as a knuckleduster. The district judge found that the buckle was not an offensive weapon per se and in fact not an offensive weapon at all. He reached that decision without actually examining 148

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the item, but was shown a photograph of it. The Administrative Court found that he had fallen into error by assuming that the absence of evidence as to any intention to use the item meant that the item could not be considered as an offensive weapon. They sent the case back to him so that he could examine the item and reach a decision as to whether its particular features meant that, notwithstanding that it was a knuckleduster, it was not in fact made or designed to cause injury to the person. Many cases that come before magistrates’ courts involve weapons that are found in motor vehicles, sometimes concealed under a seat. It will be a matter of fact for the magistrates to decide if the defendant did know that the item in question was there, mere forgetfulness being no bar to the offence being committed (although it may amount to a reasonable excuse). Where the weapon is offensive per se, or intention to use an item to cause injury has been proved, it is then open to the defendant to try to prove (on the balance of probabilities) lawful authority or reasonable excuse. Cases involving lawful authority rarely come before the courts. Reasonable excuse can include self-defence, but it will be necessary to show that the defendant anticipated imminent attack. Just carrying a weapon for self-defence on the off-chance of an attack will not suffice. In one recent case, a defendant argued that the butterfly knife that he was carrying was required for his work: Garry v CPS [2019] EWHC 636 (Admin). He accepted that it was an offensive weapon per se, but said that he used it in the course of his work as a plumber. In upholding the Crown Court’s dismissal of his appeal against conviction, the Administrative Court said that an innocent purpose for having an offensive weapon in a public place did not amount to a reasonable excuse. The defendant’s evidence that he carried the knife for work purposes had to be weighed against the fact that he was arrested on a Saturday afternoon and there was no evidence that he worked on Saturdays. The Offensive Weapons Act 2019 introduces a new offence of possession of an offensive weapon in private. Somewhat bizarrely, it does this not by way of amendment to s.1 of the 1953 Act but by way of an additional subsection (s.1A) inserted into s.141 Criminal Justice Act 1988 (which deals with the manufacture, sale or hire of offensive weapons, 149

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and which is not often prosecuted and is not therefore dealt with in this book). The new offence is summary only and there are defences relating to items of historical importance and possession by museums and educational institutions. Similarly, the 2019 Act introduces a new summary offence of possession of a flick knife by way of amendment to the Restriction of Offensive Weapons Act 1959 (which prohibits the manufacture, sale or hire of such knives). Again, there is a defence to enable museums and galleries to possess and display such items. Aggravated offences

Where the defendant does not just have an offensive weapon in a public place, but uses it unlawfully to threaten someone in such a way as to make a reasonable person exposed to the threat think that he was at risk of serious physical harm, then he will be guilty of the aggravated offence under s.1A Prevention of Crime Act 1953 (inserted by Legal Aid, Sentencing and Punishment of Offenders Act 2012). It is again an either-way offence with a maximum and a prescribed minimum custodial sentence identical in both cases to that for the basic offence. As with aggravated vehicle taking, a magistrates’ court trying a defendant for the aggravated offence may convict instead for the basic offence. In addition, mere possession of an offensive weapon or a bladed article on education premises is an either-way offence, punishable with a maximum penalty of four years’ imprisonment when tried at the Crown Court. There are the usual defences of good reason or lawful authority. Section 52 of the Offensive Weapons Act 2019 introduces a new eitherway offence of threatening with an offensive weapon (or a bladed article or a corrosive substance) in a private place. There must be an immediate risk of serious physical harm. Bladed article

In practical terms, this offence under s.139 Criminal Justice Act 1988 is much more widely used than the offensive weapon offences under the 1953 Act. It is also an either-way offence. There is a minimum custodial sentence for repeat offenders and again forfeiture and destruction 150

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provisions apply. The section is somewhat complex and it is convenient to reproduce it here: 139.— Offence of having article with blade or point in public place. (1)  Subject to subsections (4) and (5) below, any person who has an article to which this section applies with him in a public place shall be guilty of an offence. (2)  Subject to subsection (3) below, this section applies to any article which has a blade or is sharply pointed except a folding pocketknife. (3)  This section applies to a folding pocketknife if the cutting edge of its blade exceeds 3 inches. (4)  It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place. (5)  Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under this section to prove that he had the article with him — (a)  for use at work; (b)  for religious reasons; or (c)  as part of any national costume.

It will be seen that while the section uses some of the same language as s.1 Prevention of Crime Act (“has with him in a public place”) the defence is now “good reason or lawful authority” rather than “lawful authority or reasonable excuse”. This is deliberate, and intended to be narrower in scope. The exception for small folding pocket knives has not proved entirely straightforward. In the case of Sharma v DPP [2018] 3330 151

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(Admin) the court was concerned with a folding knife of a particular kind. When closed, the blade, which was less than three inches long, lay along the diagonal of a plastic card similar in size and shape to a credit card. There was an indentation in the plastic to accommodate the blade. When opened the blade was held in position by a number of tiny plastic studs which would have to be unfastened before the blade could be folded again. Unsurprisingly, the Administrative Court agreed that such a device could not come within the definition of a folding pocket knife. In another recent case, R v D [2019] EWCA (Crim) 45 the Court of Appeal held that a folding cut-throat razor was also outside the definition of a pocketknife, notwithstanding the absence of any locking mechanism. It has been established that a screwdriver is not a bladed article, but a (blunt) butter knife is. Aggravated offences

There are two aggravated offences under s.139A and s.139AA of the Criminal Justice Act 1988 as amended. The first is of possession of a bladed article or an offensive weapon on school premises. This is also an eitherway offence with provision for minimum custodial sentences for repeat offenders. The second offence is of using a bladed article to threaten, in very similar terms to the aggravated offence under s.1A Prevention of Crime Act 1953. Again, there is provision for a magistrates’ court to convict of the basic offence when acquitting for the aggravated offence. Corrosive substances

s.6 Offensive Weapons Act 2019 introduces a new offence of possession of a corrosive substance in a public place, subject to the defence of good reason or lawful authority. The offence is an either-way offence carrying a maximum sentence of four years’ imprisonment.

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Drive while disqualified This summary offence is invariably charged alongside the offence of using a motor vehicle without insurance, it being axiomatic that a disqualified driver cannot lawfully be insured to drive. The offence is created by s.103(1) Road Traffic Act 1988 and carries six months’ imprisonment or an unlimited fine, along with penalty points or a further period of disqualification. It is an absolute offence: the driver may not know that he or she is disqualified, but that will not amount to a defence (although it may be relevant mitigation). The offence only applies to those disqualified as the result of a conviction, so those drivers who are disqualified by virtue of their youth from holding a licence are not additionally prosecuted for this offence, although they will be guilty of a lesser offence (driving otherwise than in accordance with a licence). There is no offence of attempting to drive while disqualified. The main issue likely to arise in trials for this offence is the question of identity of the driver, or a dispute as to whether the disqualification was actually in force on the relevant date. The exact nature of the issue should be clarified on the PET form when the not guilty plea is entered: in some cases a trial may be avoided by a short adjournment for records of conviction to be obtained to clarify the issue. Because the offence inherently requires a previous conviction, no bad character application is necessary. In the case of Pattinson v DPP [2005] EWHC 2938 (Admin), the Administrative Court dealt with an appeal by way of case stated following the defendant’s conviction for driving while disqualified. He had denied being the driver of a vehicle stopped by the police (the officer had seen the driver get out of the driver’s seat and move into the rear seat). At trial the prosecution produced a certificate of conviction showing that the defendant was a disqualified driver. The offender on the certificate had an identical name, address and date of birth to the defendant. He chose not to give evidence and the magistrates found that he was the person named and convicted him. The Administrative Court upheld that decision; it would have been open to the magistrates to draw an adverse inference from the defendant’s failure to testify under s.35 Criminal Justice and 153

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Public Order Act 1994. There was no prescribed method by which the prosecution had to prove the fact of conviction. The case of Olakunori v DPP [1998] COD 443 involved a defendant with an unusual name. He admitted being the driver of a vehicle stopped by police; the issue was whether he was the same as a person with a similar name who had been disqualified previously. On arrest he gave a false name, having previously given a different false name before arrest. He also gave different dates of birth and addresses. The court heard evidence from a police officer who produced copies of the defendant’s birth certificate and passport, both with the surname Olakunori, which was also the surname of the person previously disqualified The magistrates rejected a submission of no case to answer; the defendant did not testify himself or call any evidence and was duly convicted. The Administrative Court dismissed his appeal; the justices were entitled to take into account the lies told by the defendant about his identity. Where the disqualification was imposed under s.36 Road Traffic Offenders Act 1988 (disqualification until test passed) it will, paradoxically, be lawful for the offender to drive, but only in accordance with the conditions imposed by his or her provisional licence. Breach of those conditions (e.g. not displaying ‘L’ plates) will amount to driving while disqualified. Where a defendant is disqualified by a court in his or her absence and subsequently makes a statutory declaration under s.14 Magistrates’ Courts Act which has the effect of making the proceedings void, he will still be guilty of driving while disqualified if he drives after the date of the conviction and before the time of making the statutory declaration.

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CHAPTER EIGHT

Common defences

Introduction Most trials in magistrates’ courts turn on disputed issues of fact which must of course be determined by the court on the basis of the evidence. Defences such as mistake, insanity and automatism can be deployed in a magistrates’ court but arise rarely and are outside the scope of this book. Although there is no obligation in a magistrates’ court to serve a defence statement, the PET form does require the defendant to specify what are the disputed issues of fact or law and additionally to indicate if the case is expected to involve a complex, novel or unusual point of law (at paragraph 8.5). Such a point of law is therefore unlikely to arise at trial without notice, and an ambush defence raising a point of law is contrary to the letter and spirit of the CPR and is unlikely to succeed. Accordingly, this chapter concentrates on those common defences which are most frequently encountered in magistrates’ court trials.

Self-defence In cases involving the use of force such as offences of assault, self-defence is both a defence and an element in the offence itself, since any assault must involve the threat or use of unlawful force, and self-defence may operate to make force lawful. However, self-defence may also apply in other circumstances, such as defence of property or possession of an 155

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offensive weapon. There is a very close connection with the statutory defence under s.3 Criminal Law Act 1967: “A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large” (see below). The question as to the exact degree of force that may be considered reasonable is now governed by statute: s.76 Criminal Justice and Immigration Act 2008. This sets out a detailed test, based on the common law, which must be applied to answer the question. The section applies to self-defence and to defence of property as well as to the statutory defence under s.3 Criminal Law Act 1967. The first step is a subjective one: what were the circumstances as the defendant believed them to be? In answering that question, subsection (4) provides that where the defendant claims to have held a particular belief as to the existence of any circumstances, then the reasonableness of that belief is relevant in deciding whether he or she did in fact genuinely hold such a belief. The fact that the belief is in fact mistaken, even unreasonably so, does not undermine the defendant’s right to rely on such a belief, except where the mistaken belief is attributable to self-induced intoxication. Where a mistaken belief arises from a psychiatric condition, the defendant may still be able to rely on it, but expert medical evidence is likely to be required. Having established the circumstances as believed by the defendant, the court must then go on to consider the objective question: was the degree of force used by the defendant reasonable? The law now draws a distinction between “householder” cases and other cases. A householder case is defined in the section as one in which the common law defence of self-defence is raised by a defendant who is lawfully in a dwelling (not necessarily his own) and believes that the victim is a trespasser (usually a burglar). In such cases the householder may not use grossly disproportionate force in self-defence with the implication that disproportionate force as such will not automatically be deemed unreasonable (as it would in a non-householder case). Lord Thomas CJ summed up the effect of s.76 in the case of Ray [2018] 1 Cr App Rep 4 (64):

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Common defences “The use of disproportionate force which is short of grossly disproportionate is not, on the wording of the section, of itself necessarily the use of reasonable force. The jury are in such a case, where the defendant is a householder, entitled to form the view, taking into account all the other circumstances (as the defendant believed them to be), that the degree of force used was either reasonable or not reasonable.”

In all other cases, the statutory test is based on the well-known dictum of Lord Morris of Borth-y-Gest in the case of Palmer v The Queen [1971] AC 814. The degree of force used by the defendant will not be considered reasonable if it was disproportionate in the circumstances, but in deciding that question the court must take account of the fact “that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action” (s.76(7)(a)). Furthermore, evidence that the defendant had only done what he honestly and instinctively thought was necessary for a legitimate purpose “constitutes strong evidence that only reasonable action was taken” (s.76(7)b)). The case of Oraki v DPP [2018] QB 86 established that the defence is available on a charge of obstructing a police officer in the execution of his duty. The situation in this case is one which will be familiar. Police officers in uniform stopped a car which was being driven by an uninsured driver. The officers intended to detain the car under s.165A Road Traffic Act 1988. The defendant’s mother, who had been his passenger, inserted the keys into the ignition. One of the officers put his hand on her arm to restrain her. She screamed and the defendant came and tried to pull the officer away. The defendant claimed that he was acting in the defence of another but was convicted by the magistrates. On appeal to the Crown Court, there was a ruling that self-defence was not available in these circumstances as a matter of law. The Crown Court found as a matter of fact that the defendant had a genuine but mistaken belief that his mother was in need of protection. The Crown Court took the view that if the defence were available, the defendant would have succeeded in his appeal. The Administrative Court ruled that the defence was indeed available. In his judgment, Singh LJ went further and expressed

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the view that the defence was not restricted to cases in which there was the use of force. The decision in Oraki was applied in the subsequent case of Kurt Wheeldon v CPS [2018] EWHC 249 (Admin). Again, the facts were familiar to those who work in magistrates’ courts. In this case the defendant was convicted of the offence of assaulting an officer in the execution of his duty. The incident arose after a football match, when police were trying to contain opposing groups of fans. The police tried to push the group of fans back onto a path; the defendant’s father fell to the ground. The defendant was also pushed, and raised his hands to an officer, swore at him and grabbed his vest. The defendant claimed that the officer had punched him and that he was therefore acting in self-defence. The magistrates did not accept that evidence; the defendant did not claim that he was acting in defence of his father. There was no question of a mistaken belief. Self-defence accordingly did not arise, but only because of the findings of fact; it was not excluded as a matter of law. A feature of self-defence which is often argued in magistrates’ court trials is the concept of the pre-emptive strike. This is well-established at common law; the defendant does not have to wait for an attacker to strike, but will need to demonstrate that the threat was imminent and that a mere threat of retaliatory force would not have sufficed. A corollary to this is the fact that there is no longer a duty to retreat; the possibility of retreat is now just one factor to be considered in assessing reasonableness (s.76(6A)).

Prevention of Crime This is the statutory defence under s.3 Criminal Law Act 1967 referred to above. It is often put forward in magistrates’ court trials in cases with a political dimension, e.g. as a defence to a charge of obstructing the highway carried out as a political protest. Those were the facts in the case of R (Ex p DPP) v Stratford Magistrates’ Court [2017] EWHC (Admin) 1794. The defendants had obstructed the passage of vehicles to a defence and security exhibition. They were charged with obstruction of the highway 158

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under s.137 Highways Act 1980. Their defence was that the exhibition promoted the sale of illegal weapons and they relied on s.3. The district judge allowed the defence to go forward and acquitted the defendants. On appeal, the Administrative Court took a different view. The defence was a justification for the use of force, not an excuse to use it. There was a difference between a protest against objectionable or even illegal conduct and the use of force to prevent an imminent or immediate crime. The judge had been wrong to conclude that the defence had been available: no crime could be said to have been committed on the highway. Most of the exhibition’s trade was entirely lawful and there was no evidence that the obstructed vehicles were involved in illegality. In dealing with this defence, it should be remembered that s.76 Criminal Justice and Immigration Act 2008 applies equally to it as it does to the use of force in self-defence (the force used must not be disproportionate).

Reasonableness and lawful excuse A number of offences have a statutory defence which requires the defendant to prove that his conduct was reasonable or had a lawful excuse: e.g. the offences under s.4A and 5 Public Order Act 1986, possession of an offensive weapon contrary to s.1 Prevention of Crime Act 1953 and the offence of criminal damage under s.1 Criminal Damage Act 1971. In addition, the question of reasonableness may arise where a defendant is seeking to justify his or her conduct by reference to Article 10 (freedom of expression), Article 11 (freedom of assembly) or Article 9 (freedom of religion) of the European Convention on Human Rights. In all these cases it will be for the defence to prove reasonableness or excuse on the balance of probabilities. One of the statutes to contain such a provision is s.137 of the Highways Act 1980, which reads: “If any person, without lawful authority or excuse, in any way obstructs the free passage along a highway, he is guilty of an offence …”. In the case of DPP v Ziegler and others [2019] EWHC 71 (Admin) the facts were essentially the same as in the case of R (ex p DPP) v Stratford Magistrates’ Court referred to above. Again, protesters 159

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obstructed the highway leading to an arms exhibition. On this occasion, they put forward the statutory defence and argued that their conduct had a lawful excuse, namely that they were exercising their rights under Articles 10 and 11. The district judge upheld the defendants’ submissions and dismissed the charges. In allowing an appeal against that decision, the Administrative Court found that the acts of obstruction in question were done in exercise of the rights in Articles 10 and 11 and were capable of giving rise to a lawful excuse. However, the Administrative Court found that the district judge erred in his overall assessment of proportionality. No fair balance had been struck between the right of the individuals to protest and the general interest of the community, including the rights of other members of the public to pass along the highway.

Duress There are two kinds of duress recognised as offering a defence: duress by threat and duress of circumstance. This defence is available for all offences which can be tried in a magistrates’ court but in practice arises most frequently in road traffic cases. It is generally accepted that the threat must be of imminent or immediate death or serious injury and be directed at the defendant or a member of his or her close family. It is not enough that the defendant genuinely believed that the threat would be carried out: the defence will only succeed if a person of reasonable firmness would have yielded to the threat (Howe [1987] AC 417). There is an important exclusion where the threat emanates from the defendant’s voluntary membership of a criminal organization or gang. In the case of Martin [1989] 1 All ER 652 the defendant pleaded guilty to driving while disqualified (which was then an either-way offence), the judge at the Crown Court having ruled that he could not put forward the defence of necessity. He had sought to argue that he had only driven because he genuinely believed that his wife would commit suicide if he did not do so. The Court of Appeal found that such a defence, which it termed “duress of circumstances” was available and should have been left to the jury (although the court expressed considerable scepticism 160

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as to the credibility of the defence on the evidence). In the case of R v Quayle [2005] EWCA Crim 1415, the Court of Appeal made it clear that those who grow cannabis for the purpose of relief of pain cannot rely on duress of circumstance. However, in the case of Pipe v DPP [2012] EWHC 1821 (Admin) the Administrative Court overturned a magistrates’ court decision not to allow necessity as a defence in a case where a motorist was speeding while transporting his partner’s child to hospital for treatment to a fractured leg. The magistrates had taken the view that it was necessary for the injury to be life-threatening before the defence was available: it was accepted that this was a misdirection as to the law and the conviction was quashed. There is a limited statutory defence under s.45 Modern Slavery Act 2015 for defendants who are compelled to commit an offence, where the compulsion is attributable to slavery or relevant exploitation. However, most serious offences are excluded. In this context it is also relevant to mention the position of the victims of trafficking who are often prosecuted for offences such as cannabis cultivation, benefit fraud and identity offences. In such cases, even where the defence of duress may not be available, the CPS is under a duty to investigate the circumstances and make a referral to the original investigating agency. The expectation is that the CPS will in appropriate cases exercise its discretion to discontinue the prosecution.

Human rights The rights granted by the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”; the European Convention on Human Rights is the description we have used elsewhere in this book) were incorporated into domestic law by the Human Rights Act 1998, thereby giving British citizens the means to enforce those rights in domestic courts rather than having to go to the European Court of Human Rights in Strasbourg. The Convention is not a creation of the European Union, and membership or otherwise of the EU does not of itself impact on the Human Rights Act. The Convention 161

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rights are set out in a number of articles and any restriction on them must be lawful, necessary and proportionate. The articles most often cited in argument in criminal cases are Article 6 (right to a fair trial), Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association). The case of DPP v Ziegler mentioned above is one case where Articles 10 and 11 were discussed in argument. Apart from political cases, Article 9 and 10 considerations may arise in public order cases. In the case of Hammond v DPP (2004) 168 JP 601 an evangelical preacher was preaching in a public place where he displayed a home-made sign bearing the words “Stop Immorality” “Stop Homosexuality” and “Stop Lesbianism”. A crowd gathered and there was some disorder. He refused a police request to stop displaying the sign. He was arrested to prevent a breach of the peace and prosecuted under s.5 Public Order Act for displaying a sign that was threatening, abusive or insulting (the term “insulting” has since been removed from the section). On an appeal against conviction by way of case stated his rights under Articles 9 and 10 were raised. The court recognised that the defendant’s Article 9 and 10 rights were engaged when considering whether the defendant’s conduct had been reasonable (a defence under the Act). However, given that the magistrates had found that the words used were insulting it was open to them to find the case proved and the appeal was dismissed.

Intoxication Many defendants who appear before magistrates’ courts stand accused of offences committed in an intoxicated state. Where the intoxication is involuntary, the defendant may be able to establish that he or she was incapable of forming the intention necessary for the offence in question. In drink-driving cases, involuntary intoxication may amount to a special reason allowing a court to exercise a discretion not to disqualify or endorse (see Chapter Nine).

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Where the intoxication is voluntary or self-induced, there is a distinction to be drawn between crimes of basic and specific intent. It is only in the latter category of cases that voluntary intoxication can provide a defence. The most important types of case in magistrates’ courts which require specific intent include theft, burglary (and all offences where dishonesty is an element) and criminal damage along with all offences of attempt. In these cases, even voluntary intoxication may provide a defence.

Execution of duty The issue as to whether a police officer is or is not acting in the execution of his duty arises in the case of offences of assaulting or obstructing a constable (s.89 Police Act 1996). The officer need not actually be on duty as such but must be acting lawfully. The defence of self-defence is available: see above. An officer who genuinely and reasonably believed that she was entitled to arrest an offender for breach of an injunction was found to have acted in the execution of her duty, even though the injunction proved subsequently to have been granted under a repealed provision and was therefore arguably invalid: Ahmed v CPS [2017] EWHC 1272 (Admin). Presumably the same would be true if the invalid document was a warrant that was defective for some reason unknown to the officer. There is no power to detain a person for questioning, save under arrest (or for the purposes of a search under s.1(2) Police and Criminal Evidence Act 1984). This principle was reiterated in the case of R v Iqbal [2011] 1 WLR 1541 where the defendant was present at Birmingham Magistrates’ Court to observe a case involving a man who was to become his codefendant on a drugs charges. Officers in that case saw the defendant, spoke to him and told him that he was wanted in connection with the case and handcuffed him. They did not arrest him but told him that he would be arrested by other officers for whose arrival he was told to wait. When the other officers arrived, he ran off and was caught after a short chase. He was charged with the offence of attempting to escape from lawful custody. In the course of his judgment, Lord Judge CJ said, with 163

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reference to s.29 Police and Criminal Evidence Act 1984: “This clear statutory provision, confirms, if confirmation were needed, that, without arrest, there is no broad power in the police to detain the citizen”. The defendant’s appeal against conviction for attempted escape was allowed. Many of the cases on lawful execution of duty involve defendants resisting attempts by officers to speak to them. Each case will turn on its own facts, but the cases distinguish between a mere touch on the arm (e.g. to gain attention, which will be lawful) and a more forceful laying of hands on the defendant by the officer, which will not: R (Shah) v Central Criminal Court [2013] EWHC 1747 (Admin). In this case the officer wished to talk to the defendant who was thought to be a relative of a victim of a serious assault. The defendant was not a suspect. He told the officer to take his hands off him, and began to walk off. The officer then took hold of him again in a way described as “both insistent and quite forceful” which led the defendant to resist with some violence, leading him to be charged with assaulting the officer in the execution of his duty. Although the defendant’s appeal to the Crown Court was unsuccessful, his application for judicial review of the decision was unopposed and the conviction was quashed. The distinction (if any) between execution of a constable’s duty under the Police Act and exercise his or her functions under the Assaults on Emergency Workers (Offences) Act is yet to be tested in the higher courts.

Misbehaviour in court Misbehaviour in court can take many forms, from a simple refusal to stand when the magistrates enter the courtroom, to throwing missiles at the bench. It can also include the unauthorised recording of proceedings. Except where the behaviour concerned amounts to a separate offence, and is prosecuted as such, the court’s powers are limited to those set out in the Contempt of Court Act 1981. In dealing with such behaviour, the court must follow the procedure set out in Part 48 CPR. Under s.12 of the 1981 Act, a magistrates’ court can deal with certain types of misbehaviour by imposing a fine not exceeding £2,500 or by 164

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committing the offender to custody for a period of up to one month. The section gives the court jurisdiction to deal with anyone who insults the justices, witnesses, officers of the court or solicitors or counsel having business in the court, either during the court hearing or in the course of their journeys to and from court. The section also covers anyone who interrupts the proceedings or otherwise misbehaves in court. In both cases the behaviour must be “wilful”, which has been interpreted to mean deliberate or reckless. Strangely, “insults” has been decided as not including threats, although threatening behaviour in the courtroom would probably be considered to be misbehaviour. When an incident occurs which may lead to the court exercising its powers, it must first give the offender an opportunity to consider his or her behaviour and apologise. The court must make the offender aware of its powers and give him the opportunity to take legal advice. It can order his temporary detention in the cells but must deal with the case the same day. If the offender does not admit his or her conduct, the court may hold an enquiry in which it will consider any representations from the offender. The court may include one or all of those magistrates that observed the conduct in question, unless to do so would be unfair to the offender. There is a requirement in CPR 48.8(4)(c) to arrange for the preparation of a written record of the proceedings. This requirement is widely ignored in practice and presumably would in any case not apply where the court accepted the offender’s explanation and imposed no penalty. It arises from Practice Direction (Committal for Contempt: Open Court) [2015] 1 WLR 2195. This requires all courts which make a finding of contempt to publish their findings and produce a written judgment setting out their reasons. It should be noted that there is no requirement, or indeed power, to add a victim surcharge when imposing custody under s.12: R v YaxleyLennon; Note [2018] EWCA Crim 1856 at paragraph 76. The unauthorised recording of proceedings in the courtroom, usually by means of mobile phones, is increasingly common. Nowadays it may even involve the proceedings being broadcast live on Facebook or some other social media site. Section 9 Contempt of Court Act 1981 makes it 165

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a contempt of court to use in court “any tape recorder or other instrument for recording sound” or to publish or use any such recording. No specific penalty is imposed under the section and it is not clear whether recording proceedings constitutes “misbehaviour” under s.12. However, the section does give the court power to forfeit the instrument, which may then be sold or otherwise disposed of in such manner as the court may direct. Rule 6.10 CPR makes it clear that this power can be exercised by the court on its own initiative. In addition, it is an offence contrary to s.41 Criminal Justice Act 1925 to take any photograph (which includes video) in court. The maximum penalty is a level three fine.

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CHAPTER NINE

Sentencing

The purposes of sentencing Section 142 of the Criminal Justice Act 2003 sets out the purposes of sentencing for an offender aged 18 or over (different principles apply to youths). The court must have regard to the following purposes: (a) The punishment of offenders, (b) The reduction of crime (including its reduction by deterrence), (c) The reform and rehabilitation of offenders, (d) The protection of the public, and (e) The making of reparation by offenders to persons affected by their offences. However, the 2003 Act does not indicate that any one purpose should be more important than any other and in practice they may all be relevant to a greater or lesser degree in any criminal case — the sentencer has the task of determining the manner in which they apply.1 It is not necessary for sentencers in a magistrates’ court to refer to the purposes of sentencing in any sentencing comments.

1. Sentencing Council guidelines: Overarching Principles: Seriousness.

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General principles Under section 125 (1) of the Coroners and Justice Act 2009, every court must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, unless the court is satisfied that it would be contrary to the interests of justice to do so. There are now guidelines covering most offences that are regularly dealt with in the courts. There are also guidelines of general application, and these are referred to again later in this chapter. Central to sentencing is the seriousness of the offence, which means the court must identify the harm of the offence and the culpability of the offender. The court must also identify mitigating and aggravating factors, and any applicable discount for a guilty plea. It is essential to know and understand Part 3 of the Sentencing Guidelines: Overarching Principles: Seriousness. Where a defendant has been notified of the hearing but fails to attend, he or she may be tried, convicted and in some cases sentenced in absence.

Using the guidelines Comprehensive sentencing guidelines have been issued by the Sentencing Council for England and Wales and its predecessor the Sentencing Guidelines Council. These guidelines have been painstakingly prepared since 1999 and have often involved considerable research and extensive consultation. As mentioned above, the guidelines must be followed. There are guidelines for specific offences and guidelines of general applicability. Of particular relevance to magistrates’ courts are the Magistrates’ Court Sentencing Guidelines. These supersede previous sentencing cases. We suggest that sentencing cases should only be provided to the magistrates where they illustrate or refine an existing guideline, or where there is no existing guideline for the type of offence about to be sentenced or allocated. The guidelines run to many hundreds of pages. They are available on the Sentencing Council website, on magistrates’ iPads and also in the supplement to Blackstone’s Criminal Practice and elsewhere. 168

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The offence guidelines start by stating whether the particular offence is indictable, either-way or summary. They then provide the maximum sentence. Typically, they then suggest factors that affect offence seriousness (culpability and harm). They then indicate common aggravating or mitigating factors including those related to culpability and harm. Next there is usually a starting point and range for each category. Magistrates, and practitioners in a magistrates’ court, will want to be familiar with the user guide at the beginning of the Magistrates’ Court Sentencing Guidelines. This sets out the proper approach to be taken in following the guidelines. It is emphasised that these guidelines are for first-time offenders. Previous convictions which aggravate the seriousness of the current offence may take the provisional sentence beyond the range, especially where there are significant other factors present. (Subsequent guidelines, such as those for assault, theft and burglary, and drugs take a different approach. The starting points apply to all offenders and previous convictions adjust the sentence within the range. See the section on Previous convictions, later.) The user guide also confirms that the lists in the guidelines aim to identify the most common aggravating and mitigating factors. They are not intended to be exhaustive. Sentencers should always consider whether there are any other factors that make the offence more or less serious. There is a great temptation for busy practitioners and busy courts to refer only to the tables in the guidelines. This is a mistake. It is always necessary to take account of the overarching principles in Part 3 of the guidelines. These consider seriousness. Four levels of criminal culpability are identified for sentencing purposes: intention; recklessness; knowledge of the risks; and negligence. Harm is considered in relation to individual victims, to the community, and other types of harm. The guideline addresses the assessment of culpability and harm. It then lists over 20 factors that indicate higher culpability and nine factors that indicate a more than usually serious degree of harm. There are also four factors indicating significantly lower culpability. These factors apply in every case where they occur. For example, an offence against those working in the public sector indicates a more than usually serious degree of harm, even if this is not referred to in the specific offence guidelines. Similarly, 169

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the commission of an offence while under the influence of alcohol or drugs is always a factor indicating higher culpability (even though some defendants put it forward as mitigation!) On the other hand, youth or age, where it affects the responsibility of the individual defendant, is always a factor indicating significantly lower culpability. The section in Part 3 on the sentencing thresholds is essential reading. Among other things it reminds us that the court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence (sometimes called the “custody threshold”). We are also reminded that a court must not pass a community sentence on an offender unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence (“the community sentence threshold”). These tests are sometimes abbreviated by stating that an offence is “so serious” that only a custodial sentence can be justified, or alternatively that an offence is “serious enough” to warrant a community sentence. The summary in Part 3 states: “It would not be feasible to provide a form of words or to devise any formula that would provide a general solution to the problem of where the custody threshold lies. Factors vary too widely between offences for this to be done. It is the task of guidelines for individual offences to provide more detailed guidance on what features within that offence point to a custodial sentence, and also to deal with issues such as sentence length, the appropriate requirements for a community sentence or the use of appropriate ancillary orders. Having assessed the seriousness of an individual offence, sentencers must consult the sentencing guidelines for an offence of that type for guidance on the factors that are likely to indicate whether a custodial sentence or other disposal is most likely to be appropriate.”

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Does prison work? This question polarises people. For many, prison is simply an expensive way of making bad people worse. Indeed, that was the slogan in a Conservative Party White Paper published in 1990. The theory is that imprisonment removes prisoners from their family and support, so making rehabilitation harder. Prisons are overcrowded and have little time for rehabilitative work. Prisoners mixing with other prisoners means that those leaving custody have learned new criminal skills and made new criminal contacts. There is overwhelming evidence that most prisoners, and particularly those serving short sentences, reoffend within a short period of their release. So, there was much criticism when in 1993 Michael Howard, then Home Secretary, announced to a party conference that prison works. Was he right? In 1993 the prison population of England and Wales stood at 42,000 at any given time. By 1997 it was over 60,000. By 2007 it reached over 80,000. Thereafter it rose to over 84,000 and has now levelled off. What happened to crime during this period? Using the British Crime Survey, which is considered to be a more accurate indicator of crime levels than police statistics, crime fell dramatically. In the four years that the prison population rose by about 50 per cent crime fell by 35- 50 per cent, depending how it is measured. It has continued to fall ever since (although there is recent evidence that the crime rate has now levelled off, and may even be increasing again), so that we now have the lowest crime figures since the survey began, almost 40 years ago. For some, this is clear evidence that prison works. However, many believe there are other factors at work, and that it is a mistake to correlate the higher prisoner numbers with the fall in crime. Once again there is a call for short prison sentences to be abolished. It is interesting to note that the number of children — that is people under 18 — in custody at any one time fell from about 3,000 to about 900 in the ten years from 2008, possibly partly as a result of guidelines for custody for young people. During that same period the number of children convicted of crimes fell from 280,000 to 70,000; drugs offences were down from 13,500 to 6,000; and public order offences down from 171

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24,000 to 5,000; robberies by children fell from 3,750 in 2014 to 2,400 in 2018. (The Times, Saturday 2 February 2019, in an article about violent crime increasing in 2018.) Our prisons are overcrowded. Little or no rehabilitation can be effected during a short prison sentence (although a few weeks in custody may temporarily, or even permanently, remove a drug habit). It is therefore unsurprising that there are frequent calls for short prison sentences to be abolished. About half of all sentenced admissions are for sentences shorter than six months. On the other hand, only a comparatively small proportion of the prison population on any given day is serving a short sentence. Most short sentences are for persistent offenders. In the case of a shoplifter the average number of previous convictions is 42. Persistent offenders re-offend, whether sent to prison or not. For a person to assault a partner, take a car, drive whilst disqualified, and cause an accident while driving with excess alcohol or drugs, and then assault a police officer without any risk of a custodial sentence, however frequent the offending, and whether or not complying with a previous community orders for similar offences, seems wrong to many people. It is also a fact that many magistrates have minimal confidence in the effectiveness of community penalties, particularly since changes to the administration of the probation service came into force in 2015.2 This is a complex, and in our view an interesting, topic but one where it is hard to draw clear conclusions. A wise tribunal will accept that the correlation between crime rates and imprisonment rates is unclear. The proper course is to adhere to the guidelines. Even so, the dilemma is greater in magistrates’ courts than in the Crown Court, because the guidelines for so many offences include both custody and community penalty in the range.

2. Much of this due to part-privatisation of that service which is in part being reversed by government. See our further comments under Austerity in Chapter Ten.

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Imprisonment The approach to the imposition of a custodial sentence should be as follows: 1. Has the custody threshold (see page 170 above) been passed? 2. Is it unavoidable that a sentence of imprisonment be imposed? 3. What is the shortest term commensurate with the seriousness of the offence? 4. Can the sentence be suspended? The guideline emphasises that the clear intention of the threshold test is to reserve prison as a punishment for the most serious offences. Furthermore, passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody can still be avoided in light of offender mitigation or where there is a suitable intervention in the community which provides sufficient restriction (by way of punishment) while addressing the rehabilitation of the offender to prevent further crime. Before imposing a custodial sentence, the court should obtain a presentence report, whether oral or written, unless the court considers a report to be unnecessary. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case. A custodial sentence may not be imposed on a person who is not legally represented (except as a result of his or her failure to apply for legal aid or because he or she is deemed ineligible on financial grounds) and who has not previously been sentenced to imprisonment.3 The approach to custodial sentences and the sentencing decision flowchart is discussed in more detail in the Sentencing Guidelines Part 2 Imposition of Community and Custodial Sentences. Before imposing a custodial (or indeed any) sentence, it is always necessary for a court to consider the guidelines (see below) and to be aware of the maximum sentence that may be imposed for the offence. For many summary offences the maximum penalty is a fine. For imprisonable 3. Powers of the Criminal Courts (Sentencing) Act 2000, s.83 (1).

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summary offences the maximum sentence is usually an unlimited fine and/or six months’ imprisonment. However, there are exceptions. For example, being in charge of a vehicle whilst unfit through drink or drugs carries a maximum level 4 fine and/or three months’ imprisonment. Similarly, vehicle interference carries a maximum penalty of a level 4 fine and/or three months’ imprisonment as does criminal damage (other than by fire) if the value does not exceed £5,000. Failure to surrender to bail carries a maximum penalty of three months’ imprisonment and/or a level 5 (unlimited) fine. So, there are many differences and perhaps even anomalies that can escape even the most experienced judge or magistrate: hence our advice to check the guidelines first. Courts should also be aware that some summary offences apparently carry a maximum sentence of 51 weeks’ imprisonment. This penalty was introduced at a time when “custody plus” and other new sentences were believed to be about to be introduced under the 2003 Criminal Justice Act. However, these provisions were never implemented and the maximum sentence that can be imposed for a summary offence, or indeed any offence sentenced in a magistrates’ court, is still six months’ imprisonment and/or a fine. This means that even when sentencing a number of summary offences together, the maximum penalty is six months’ imprisonment, less any appropriate discount for a plea of guilty (see below, and the guidelines). Even where there is one either-way offence that falls to be sentenced then the maximum penalty remains at six months’ imprisonment, unless the case is sent to the Crown Court for sentencing. Where two or more either-way offences fall to be sentenced, the maximum sentence in a magistrates’ court is 12 months’ imprisonment, comprised of six months consecutive for each of the either-way offences. Also, where a court implements a suspended sentence imposed on an earlier occasion in a magistrates’ court, then this can be consecutive (or concurrent) to any lawful sentence for the new offence. A consecutive sentence is one that runs after completion of the first sentence, so that a sentence of imprisonment of six months consecutive to another sentence of six months makes a total of 12 months’ imprisonment. If, on the other hand, the sentences are to run concurrently,

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then they run at the same time and make a total sentence of six months’ imprisonment. So, assume that a defendant is being sentenced for taking a vehicle without consent, driving whilst disqualified, driving whilst unfit through drink, failing to stop after an accident, careless driving, assaulting a police officer and driving without insurance. All are summary offences and the maximum sentence that can be imposed is a total of six months’ imprisonment. That can be made up of concurrent or consecutive sentences. The same will apply if the defendant is sentenced on the same occasion for other summary only offences committed earlier or later. The defendant might have been released on bail having been charged with driving whilst disqualified, perhaps on more than one occasion. It is not unknown for a defendant to be awaiting trial on a number of similar matters, possibly to be heard on separate occasions. If convicted on one occasion the defence advocate may well ask that all matters be listed together so that the client can plead guilty and be sentenced within the maximum range of six months’ imprisonment. Alternatively, a defendant may be convicted of dangerous driving, failing to stop after an accident, and assaulting the police officer who arrested him or her. Dangerous driving is an either-way offence. If magistrates sentence, then they have a maximum penalty of six months’ imprisonment. However, if they consider the dangerous driving to be too serious to be sentenced by them, then they can send all the offences to the Crown Court for sentencing there. Imprisonable summary offences can be sent along with connected either-way offences for sentencing. The Crown Court would be in a position to sentence to up to two years’ imprisonment for dangerous driving (the maximum for that offence) but confined to the maximum penalty of six months’ imprisonment for each of the summary offences. Another situation that might arise is that the defendant is convicted by magistrates of two either-way offences, say dangerous driving and causing actual bodily harm to the arresting officer. If sentenced by the magistrates, the two offences could each carry six months’ imprisonment but could run consecutively, making a total of 12 months’ imprisonment. It would instead be open to the them to send the case for sentence to 175

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the Crown Court where the maximum penalty would be seven years’ imprisonment (five years for actual bodily harm and two years’ imprisonment consecutive for dangerous driving). It is worth mentioning here that there is no restriction on magistrates sending either-way cases to the Crown Court for sentence, even where they have accepted jurisdiction, tried and convicted the defendant. There is a common misconception that having accepted a case for summary trial, the court is bound to sentence within the powers of a magistrates’ court. This mistaken belief is corrected by the Leveson Review and the Allocation Guidelines.

Sending to the Crown Court for sentence When dealing with either-way offences, where the offending is so serious that the court is of the opinion that the Crown Court should have the power to deal with the offender, the case should be committed to the Crown Court for sentence. There is ordinarily no statutory restriction on committing an either-way case for sentence following conviction.4 This power applies notwithstanding that a community order may be the appropriate sentence, as this will allow the Crown Court to deal with any breach of a community order, if that is the sentence passed. Committal for sentence does not apply to low-value theft from a shop (which is now designated a summary offence) or to criminal damage of £5,000 or less. It also does not apply if the defendant has been given an indication of sentence that rules out committal to the Crown Court, provided that indication was followed by a guilty plea within a reasonable time (see indications of sentence and implied promises, below). When a defendant is committed for sentence, it is generally possible to commit related summary offences for sentence at the same time, but magistrates should take care to apply the appropriate section of the Powers of Criminal Courts (Sentencing) Act 2000.

4. Sentencing Council: Allocation Guideline. See the section on The allocation decision in Chapter Four.

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Indications of sentence and implied promises Before entering a plea of guilty, a defendant is entitled to ask for an indication of sentence. There is no obligation on the court to give such an indication when asked. An indication is binding on the court if the defendant then pleads guilty within a reasonable time thereafter. However, it is not binding, and indeed should not be referred to, if the indication is not followed reasonably promptly by a guilty plea. It has in the past been held that when adjourning for pre-sentence reports a court fails to mention that all options are open, including committal to the Crown Court, then there is an implied promise that committal to the Crown Court will not take place. An implied promise does not arise when no reasonable tribunal would have excluded custody or committal for sentence (as the case may be). Presumably this would be the case where the implied promise would amount to a sentence falling outside the range required by guidelines. Where a court decides that the case is suitable to be dealt with in a magistrates’ court, this does not of itself imply that the case will be sentenced there. However, the court must warn the defendant that all sentencing options remain open and, if the defendant consents to summary trial and is convicted by the court or pleads guilty, the defendant may be committed to the Crown Court for sentence. These are complicated areas, and magistrates are well advised to seek advice before giving an indication of sentence or making an indication that could be taken as an implied promise.

Suspended Sentences If the court imposes a term of imprisonment of between 14 days and two years (subject to magistrates’ courts’ sentencing powers), it may suspend the sentence for between six months and two years (known as “the operational period”). The time for which a sentence is suspended should reflect the length of the sentence. An operational period of up to 12 months might normally be appropriate for a suspended sentence 177

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of up to six months’ imprisonment. Where the court imposes two or more sentences to be served consecutively, the court may suspend the sentence where the aggregate of the term is between 14 days and two years (subject to magistrates’ courts’ sentencing powers). When the court suspends a sentence, it may (but need not) impose one or more requirements for the offender to undertake in the community. The requirements are identical to those available for community orders. Where such requirements are imposed, the court has the power to review the offender’s compliance on a regular basis in the same way as applies to drug rehabilitation requirements.5 A custodial sentence that is suspended should be for the same term of imprisonment that would have applied if the sentence was to be served immediately. A suspended sentence must not be imposed as a more severe form of community order. A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. The approach we take is to imagine that immediately before passing sentence we were told that suspended sentences had just been abolished. Would we then impose the same length sentence to be served immediately as we planned to impose before learning of the change of the law? Factors indicating that it would not be appropriate to suspend a custodial sentence include: where an offender presents a risk/danger to the public; where appropriate punishment can only be achieved by immediate custody; or where there is a history of poor compliance with court orders. Factors indicating that it may be appropriate to suspend a custodial sentence include: a realistic prospect of rehabilitation; strong personal mitigation; or where immediate custody will result in a significant harmful impact upon others. One obvious situation where a suspended sentence may well be appropriate is where the offender is the sole carer for a young child. Offenders sometimes breach a suspended sentence, either by reoffending during the operational period or by failing to comply with the requirements imposed by the court. Where there is a further offence, 5. S.191 Criminal Justice Act 2003.

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the court must implement the period of imprisonment, unless it is unjust to do so. In the case of breach of post-sentence supervision, the level of compliance must be considered. This is not a straightforward exercise, and the court must follow the guidelines (Part 14 — Breach Offences).

Community penalties Community orders can fulfil all the purposes of sentencing. In particular, they can have the effect of restricting the offender’s liberty while providing punishment in the community, rehabilitation for the offender, and/ or ensuring that the offender engages in reparative activities. A community order must not be imposed unless the offence is “serious enough to warrant such a sentence”.6 Where an offender is being sentenced for a non-imprisonable offence, there is no power to make a community order. Sentencers must consider all available disposals at the time of sentence; even where the threshold for a community sentence has been passed (above and see earlier in the chapter), a fine or discharge may be an appropriate penalty in the circumstances. In particular, a Band D fine (see under Fines below) may be an appropriate alternative to a community order. The court must ensure that the restriction on the offender’s liberty is commensurate with the seriousness of the offence and that the requirements imposed are the most suitable for the offender. Sentences should not necessarily escalate from one community order range to the next on each sentencing occasion. The decision as to the appropriate range of community order should be based upon the seriousness of the new offence (which will take into account any previous convictions). Save in exceptional circumstances at least one requirement must be imposed for the purpose of punishment and/or a fine imposed in addition

6. Section 148 (1) Criminal Justice Act 2003.

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to the community order. It is a matter for the courts to decide which requirements amount to a punishment in each case.7 The seriousness of the offence should be the initial factor in determining which requirements to include in a community order. Offence-specific guidelines refer to three sentencing levels within the community order band based on offence seriousness (low, medium and high). The Sentencing Guidelines (Part 2) provide some non-exhaustive examples of requirements that might be appropriate in each of these three levels. There is a reminder that (as mentioned in the previous paragraph) at least one requirement must be imposed for the purpose of punishment and/ or a fine imposed in addition to the community order unless there are exceptional circumstances. This provision is often overlooked, particularly where a rehabilitative approach is taken. Failure to include a punishment element is wrong and can lead to criticism, particularly from victims. The effectiveness of community penalties does vary from area to area, depending on the resources allocated to local teams and the commitment of those local teams. A good quality programme that is effectively monitored inspires confidence in local magistrates, whereas low compliance causes disaffection. As a result, many magistrates take an active interest in the work of their local teams to assist them in deciding the appropriate penalty. The guideline sets out specific considerations in determining requirements and refers to the 13 requirements that may be imposed. Perhaps the most common of these are the unpaid work requirement (40–300 hours to be completed within 12 months) and the rehabilitation activity requirement which provides flexibility for responsible officers in managing an offender’s rehabilitation. The curfew requirement is also regularly used. Electronic monitoring of a curfew has been in place for some considerable time now, and most courts have confidence in the effectiveness of the monitoring equipment and the readiness of the supervisor to enforce compliance. On the other hand, the prohibited activity requirement is underused. Potentially this provides great flexibility as in appropriate cases an offender can be prohibited from (for example) 7. The above passages are taken almost verbatim from Part 2 of the Sentencing Guidelines. Imposition of Community and Custodial Sentences.

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entering licensed premises, attending football matches, and driving. It does however require consultation with the National Probation Service and the difficulties in monitoring and ensuring compliance are no doubt factors that militate against a recommendation for what could be a particularly useful order. It is worth mentioning here that disqualification from driving (though not strictly a community sentence) is a free-standing penalty. It need not be ancillary to any other sentence and there is no requirement that such a sentence be imposed only for driving offences. It can be an effective punishment. In many cases, a pre-sentence report will be pivotal in helping the court to decide whether to impose a community order and, if so, whether particular requirements or combinations of requirements are suitable for an individual offender. The report is prepared by a probation officer who is trained for the task and whose skills should be respected. However, there is no requirement for the bench to accept the recommendations of the report writer. A same-day report is preferred, except where certain programmes are considered. When adjourning the case for reports the court must make clear to the offender that all options remain open (if that is the case) including, in appropriate cases, committal for sentence to the Crown Court. If a report is called for after a contested trial, it is best practice for the convicting bench (or at least one of them) to return for sentence. Often this is impractical and there is no legal requirement for the convicting bench to sentence. As a result, magistrates are encouraged to produce a finding of fact sufficient for the sentencing exercise by a differently composed bench. If an offender fails without reasonable excuse to comply with any of the requirements of a community order, he or she must first be given a warning by the responsible officer. A further failure within the next 12 months must be referred to an enforcement officer who is under a duty to initiate proceedings where appropriate. If the breach is proved, then the court has no power to take “no action”. Either the order must be extended and/or made more severe, or it must be revoked, and the offender resentenced.

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Fines The most common penalty in a magistrates’ court is a fine. They used to be more common still, and some think they should be used more often today, particularly in place of a community order. Fines are usually a stand-alone penalty but may be imposed alongside a community order or a custodial sentence (though this is rare). The key factors in deciding a fine are the seriousness of the offence and the relevant weekly income of the offender. Relevant weekly income is take-home pay (that is, income less tax and national insurance). For low-income earners and those on benefits, there is a deemed amount (in 2019 that was £110). The Sentencing Guidelines indicate whether a fine is Band A, Band B, Band C, Band D, Band E or Band F. Bands D-F may be used as an alternative to a community order or a custodial sentence. Depending on the seriousness of the offence, the starting point for a fine may be from 50 per cent of the offenders’ relevant weekly income (Band A) through to 600 per cent of the offender’s relevant weekly income (Band F). The ranges go from 25 per cent to 700 per cent of relevant weekly income. An offender who pleads guilty, in circumstances where a fine is likely to be imposed, is expected to fill in a means form. Only the relevant weekly income is taken into account in imposing the fine. However, the form allows other financial details to be given to enable realistic collection and enforcement. It is a common misunderstanding that regular outgoings, or allowances for dependants, can be considered in calculating the fine. There are provisions for those whose only source of income is state benefit, or where no reliable information is provided. The Magistrates’ Court Sentencing Guidelines provide details on the approach to the assessment of fines. The aim is for the fine to have an equal impact on offenders with different financial circumstances. It should be a hardship but should not force the offender below a reasonable subsistence level. Normally a fine should be an amount that is capable of being paid within 12 months but there may be exceptions to this. A fine must not exceed the statutory limit. Where this is expressed in terms of a “level”, the maxima are: level 1, £200; level 2, £500; level 182

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3, £1000; level 4, £2500; level 5 unlimited. Criminal Practice Direction XIII gives directions on dealing with cases involving very large fines in a magistrates’ court. A fine is payable in full on the day on which it is imposed. The offender should always be asked for immediate payment when present in court and some payment on the day should be required wherever possible (assuming the courthouse has facilities for receiving fines). Where time to pay is allowed then it should be at a realistic rate taking into account the offender’s disposable income and a collection order should be imposed. This allows a greater administrative enforcement of fines.

Absolute and Conditional Discharges Sometimes, a court will decide that it is inexpedient to inflict punishment on an offender. This may be because of the triviality of the offence or some special factor relating to the offender. Rarely, it may decide to grant an absolute discharge. That is an end to the matter. More commonly, the court will grant a conditional discharge. In that case the discharge is conditional on the offender not committing any further offence during a specified period fixed by the court and not exceeding three years. If a conditional discharge is breached by the commission of another offence during the period of discharge, the court may sentence the offender in any way that it could have done had the person just been convicted of the original offence.

Prevalence Individual guidelines take into account national prevalence. It is wrong for magistrates to enhance a sentence because of their own view that a particular type of offence is prevalent in their area. To do that, it is essential that sentencers have supporting evidence from an external source (for example the local Criminal Justice Board) to justify claims that a particular crime is prevalent in their area and are satisfied that there is 183

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a compelling need to treat the offence more seriously than elsewhere. Enhanced sentences should be exceptional and in response to exceptional circumstances.8 See also mention of community impact statements under Role of the prosecutor later in this chapter.

Previous convictions Where relevant, previous convictions can and often do aggravate the seriousness of the offence. Guidelines issued by the Sentencing Guidelines Council, including the Magistrates’ Court Sentencing Guidelines, state that previous convictions which aggravate the seriousness of the current offence may take the provisional sentence beyond the range, especially where there are significant other aggravating factors present. However, guidelines issued by the Sentencing Council (such as those for assault, theft, fraud, burglary, drugs, dangerous dogs, sexual offences and environmental offences) take a different approach. For Sentencing Council guidelines, the starting points apply to all offences within the corresponding category and are applicable to all offenders, in all cases. Once the starting point is established, the court should consider further aggravating and mitigating factors and previous convictions so as to adjust the sentence within the range.

Reduction in sentence for a guilty plea Reduction in sentence for a guilty plea has proved controversial. The definitive guideline has been revisited twice. It must be followed. The purpose of the guideline is to encourage those who are going to plead guilty to do so as early in the court process as possible. Nothing in the guideline should be used to put pressure on the defendant to plead guilty. Although a guilty person is entitled not to admit the offence and put the prosecution to proof of its case, an acceptance of guilt: 8. Part 3 Sentencing Guidelines Overarching Principles: Seriousness at 1.38.

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(a) normally reduces the impact of the crime upon victims; (b) saves victims and witnesses from having to testify; and (c) is in the public interest in that it saves public time and money on investigations and trials. The guilty plea is independent of the offender’s personal mitigation. Admissions in interview and demonstrations of remorse are considered separately, and prior to any guilty plea reduction, as potential mitigation factors. The approach is to determine the appropriate sentence for the offence in accordance with any offence specific sentencing guideline; consider personal mitigation; and then determine the level of reduction for a guilty plea in accordance with the guideline. The reduction applies only to punitive elements of the sentence and has no impact on ancillary orders such as disqualification from driving. The amount of the reduction must be stated in open court. Where a guilty plea is indicated at the first stage of proceedings a reduction of one third should be made, regardless of the strength of the evidence. The first stage is normally the first hearing in a magistrates’ court. There is an exception when further information, assistance or advice is necessary before indicating plea. This might apply when the offence is technical or complicated in law. It may also apply where the defendant has no independent memory of the events. In considering whether this exception applies, sentencers should distinguish between cases in which it is necessary to receive advice and/or have sight of evidence in order to understand whether the defendant is in fact and in law guilty of the offence charged, and cases in which a defendant merely delays a guilty plea in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal. Pleas entered after the first stage receive a reduction on a sliding scale. The reduction in sentence for a guilty plea can be taken into account by, for example, reducing a custodial sentence to a community sentence. Similarly, reducing a custodial sentence to reflect a guilty plea may enable a magistrates’ court to retain jurisdiction over an either-way offence rather than committing the case for sentence to the Crown Court. Where 185

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many summary offences fall to be sentenced together, and which would normally justify a sentence of six months’ imprisonment, there must still be a modest reduction to the overall sentence to reflect the benefits derived from the guilty pleas. The approach of the Sentencing Guidelines Council was to establish guidelines for first-time offenders who plead not guilty. However, for guidelines issued by the later Sentencing Council, starting points and ranges apply to all offenders, whether they have pleaded guilty or been convicted after trial.

Deferred sentence A court may defer sentence for up to six months. This power is only appropriate in very limited circumstances. Deferment is relevant predominately in a small group of cases close to the community or custody threshold where, should the offender be prepared to adapt his or her behaviour in a way clearly specified, the court may be prepared to impose a lesser sentence. The purposes of deferment must be clear and the defendant must consent to deferment and to any requirements imposed as a condition of deferment.

Compensation, victim surcharge, prosecution costs and ancillary orders Compensation

The court must consider making a compensation order in any case where personal injury, loss or damage has resulted from the offence. It can either be a sentence in its own right or an ancillary order (meaning in addition to any of the sentences described earlier and see further below). The court must give reasons if it decides not to order compensation. There is no limit on the amount of compensation that may be imposed on an adult offender. Compensation may also be ordered for offences taken into consideration. Where the loss arises from a road traffic accident, 186

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a compensation order may only be made if there is a conviction for an offence under the Theft Act 1968. The victim’s expressed views on compensation must always be taken into account. Some victims, including some victims of domestic abuse, prefer not to receive compensation, and this should be respected. The court should consider two types of loss: • financial loss sustained as a result of the offence such as the cost of repairing damage or, in case of injury, any loss of earnings or medical expenses; • pain and suffering caused by the injury (including terror, shock or distress). Detailed guidelines on compensation can be found in the Magistrates’ Court Sentencing Guidelines. There is also a table of suggesting starting points for compensating physical and mental injuries commonly encountered in a magistrates’ court. These include the starting point of £500 for temporary mental anxiety (including terror, shock, distress), not medically verified. This is sometimes overlooked. Victim surcharge

When sentencing, the court must order the victim surcharge. For adults this ranges from between £15 and £120, according to the nature of the sentence. Details can be found in the Magistrates’ Court Sentencing Guidelines, and legal advisers normally have a chart available to advise on the appropriate amount. Compensation takes priority over the surcharge and can entirely replace it where means are limited. Money collected under the victim surcharge does not go to the individual victim of the crime being sentenced. It goes instead into a fund to provide support for victims generally. Prosecution costs

Where an offender is convicted of an offence, the court has a discretion to make such order as to costs as it considers just and reasonable.

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The Court of Appeal has given guidance.9 Courts should consider the sum which the prosecutor actually and reasonably incurred, and the offender’s means. Where the court wishes to impose costs in addition to a fine, compensation and/or the victim surcharge, but the offender has insufficient resources to pay the total amount, the order of priority is: compensation; victim surcharge; fine; costs. Ancillary orders

The Magistrates’ Court Sentencing Guidelines contain information on over 20 ancillary orders. These should be consulted as appropriate. Here we make only the following points. The court has the power to bind-over an individual to keep the peace. This is designed to prevent future misconduct and the court must be satisfied so that it is sure that a breach of the peace involving violence or imminent threat of violence has occurred, or that there is a real risk of violence in the future. It is sometimes suggested that this power is being misused as a way of avoiding a contested trial. The court has the power to deprive an offender of property used for the purpose of committing or facilitating the commission of an offence. Disqualification from driving for motoring offences can be obligatory (in the case of drink driving offences, or where the offender has incurred 12 penalty points within a three-year period). The period of disqualification may be reduced or avoided if there are special reasons, which can only be argued once. The grounds are narrow, and guidance has given by the Court of Appeal, summarised in the Magistrates’ Court Sentencing Guidelines. As mentioned in Chapter Eight, non-voluntary intoxication could amount to a special reason. As mentioned earlier, there is a general power to disqualify any person convicted of an offence from driving for such period as it thinks fit. This may be instead of or in addition to dealing with the offender in any other way. The power does not require the offence to be connected to the use of a vehicle. 9. R v Northallerton Magistrates’ Court, ex parte Dove, referred to in the Magistrates’ Court Sentencing Guidelines.

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Newton hearings Where there is a significant dispute about the facts following a plea of guilty, and the dispute affects the likely sentence, there may need to be a hearing to determine the facts. These hearings are called Newton hearings, after the case that determined the procedure to be followed. Often a such a hearing will involve the prosecution calling evidence about the facts in dispute, but occasionally only the defendant will be required to give evidence. The burden of proof is on the prosecution and the court must only sentence on facts of which it is sure.

Role of the defence advocate After conviction, or after a plea of guilty, the defendant or the defence lawyer should put before the court any facts or instructions that may reduce the sentence. Usually this is a speech, but occasionally evidence is called or written documents produced. The lawyer has a responsibility to assist the court if an unlawful sentence is passed, so that the sentence can be re-opened rather than appealed. The court is not obliged to accept the mitigation, but it is good practice for the court to tell the defence when mitigation is not accepted.

Role of the prosecutor It is sometimes asserted that the role of the prosecution advocate in sentencing is confined to putting the relevant facts and previous convictions before the court. This is untrue. The law is complicated, and the court is entitled to expect assistance from professional advocates to prevent an unlawful or inappropriate sentence being passed. The prosecutor should always be ready to assist the court by drawing attention to any statutory provisions that govern the court’s sentencing powers. It is the duty of the prosecution advocate (and indeed the defence) to ensure that the court does not, through inadvertence, impose a sentence that is outside 189

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its powers. The advocate for the prosecution should also be in a position to draw the court’s attention to any relevant sentencing guidelines. This includes reminding the court of any relevant ancillary orders. The prosecutor should also provide any victim personal statement and, where appropriate, the community impact statement. Sometimes the defendant or defence witnesses will be called, either for a Newton hearing (to establish disputed facts), or for general mitigation, or to show special reasons why a defendant should not be disqualified from driving. All these require the active participation of the prosecutor in exploring, or if appropriate challenging, the account. A victim personal statement gives victims a formal opportunity to say how a crime has affected them. Where the victim has chosen to make such a statement, the court should consider and take it into account prior to passing sentence. The Criminal Practice Direction VII provides guidance. A community impact statement is compiled by the police to justify claims that a particular crime is prevalent in their area so that the court can be satisfied that there is a compelling need to treat the offence more seriously than elsewhere. Prevalence can enhance a sentence, but this should be exceptional.

Duty to give reasons for sentence and credit for remand in custody or electronically monitored bail The court has a duty to give reasons for, and explain the effect of, the sentence. The idea is that the offender and any members of the public will understand what has happened and why. Written reasons are not necessary and ordinary untechnical language is best. This is not always easy, particularly when a custodial sentence has been imposed. Firstly, the court will not necessarily know when the defendant will be released. Secondly an offender who has just been sentenced to a term of imprisonment is unlikely to be listening. When imposing a custodial sentence, allowance must be made for time spent in custody while on remand. This is usually best calculated by the prison authorities. Similarly, where an offender has been the subject of 190

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an electronically monitored curfew for nine hours or more a day, a discount should be made to reflect the loss of liberty involved.

Reopening sentence A sentence can be varied or rescinded if it is in the interests of justice to do so.10 This should obviously occur where the sentence was wrong in law, or where the court has clearly been misled on the facts, but cannot be used simply for the parties to review a decision they do not like. The case should normally be relisted with all parties present.

A Sentencing Code It is clear that the current law of sentencing is, as the Law Commission explains,11 “inefficient and lacks transparency. The law is incredibly complex and difficult to understand even for experienced judges and lawyers. The law in this area is in urgent need of reform.” The Commission proposes to bring together existing legislation into a single Sentencing Code, whilst removing unnecessary provisions and updating the language. The proposals are well advanced and will undoubtedly make the law easier, simpler and clearer.

10. S.142 MCA 1980. 11. https://www.lawcom.gov.uk

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CHAPTER TEN

Twenty-first Century Developments

There have been many significant changes for summary justice in the first two decades of the 21st century. We have tried to cover those in this book. In the background there have been a number of consistent themes: austerity, technological change, a greater focus on the rights of not just defendants, but also victims and witnesses. There have also been constitutional changes which have increased the independence of the judiciary but with the loss of the wide discretion formerly accorded to magistrates. There has been greater emphasis on the importance of case management, and this has led to greater efficiency, with cases being heard with less delay and with fewer hearings than a decade ago, despite the cuts which have led to reduced numbers of courthouses, judges, magistrates and staff. This chapter aims to look in more detail at some of these changes and to put them in context of summary justice as a whole.

Technology At the time this book went to press HMCTS was approximately half-way through an ambitious £1.2 billion investment programme (the Reform programme) which commenced in 2016 and which seeks to support digital working in the criminal justice system. It also plans to reduce annual budget costs through greater efficiencies. To date, the main beneficiary in the criminal justice system has been the Crown Court, where the Digital Case System (DCS) has introduced paperless working, with prosecutors, defence advocates and the judge all having access to the case files online. In the magistrates’ courts, magistrates and district judges can access case 193

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papers on the digital Court Store either by HMCTS-supplied iPads (for magistrates) or on judicial laptops (for district judges). In addition, sentencing guidelines and pronouncement cards (formerly printed out for each bench) are available on the iPads or online. Defence lawyers do not have access to the Court Store, but are given free secure email addresses which must be used for communication with the Crown Prosecution Service. All magistrates’ courts now have wi-fi provided free to court users, enabling lawyers to send emails from their laptops while in court. A system called Digital Markup is now in use to enable case files to be updated instantly by the legal adviser in court, so that there is now no need for staff to try to decipher a legal adviser’s handwriting on a paper file before inputting the data. While this may have led to a reduction in the number of office staff required, and to an improvement in the speed of updating of criminal records, the effect on the speed of proceedings in court has been lamentable. In practice it can take several minutes for a legal adviser to update the record with the outcome of a case, and until this has been done, no further progress with the rest of the list can be achieved. Ultimately, the plan is for all these systems (DCS, Court Store and Digital Markup) to be replaced by a comprehensive programme called Common Platform. Some aspects of Common Platform are already in use: Transport for London and TV Licensing are using a system called Automated Track Case Management for bulk prosecutions under the single justice procedure. Papers are uploaded digitally and, where there is a guilty plea, sentenced by a single justice on the basis of the digital file, with the decision also being uploaded by the legal adviser. Other aspects of technology have now become well-established. Videolinks to prisons make it unnecessary for prisoners to have to travel long distances to court for brief formal hearings. Vulnerable witnesses can give their evidence over a video-link, either from a suite in the courthouse or from a remote location. And after many years in which rapid developments in technology often led to courts not being able to play CCTV evidence due to incompatible equipment, the nationwide deployment of Clickshare has meant that if the media in question can be played on a laptop, it can be viewed on screens in the courtroom. 194

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Although not without opposition from some court users, greater use of video-links is being made to enable hearings to take place with all participants joining by way of video (possibly with a link to the physical courtroom where the case is listed to enable open justice to be preserved). The senior judiciary’s position was set out in the document ‘Judicial Ways of Working — 2022’, which was published in March 2018. It reiterated a commitment to open justice but contemplated the possibility of Single justice procedure cases being dealt with by way of video hearings. Currently any contested SJP case must be referred to a normally-constituted court.

Constitutional changes and the independence of the judiciary Article 6 (1) of the European Convention on Human Rights provides that: “In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law”.

Relevant to the question of independence will be: (a) the manner of appointment and duration of office; (b) protection from external influences; and (c) the appearance of independence. Constitutional changes in 2005 meant that many of the responsibilities for the judiciary passed from the administration (in the form of the Lord Chancellor who was a government minister) to the Lord Chief Justice. There is now an independent Judicial Appointments Commission, which is responsible for selection of judges, both full-time and fee-paid. Magistrates are selected by local Advisory Committees, but appointed by the Lord Chief Justice. Disciplinary proceedings are the responsibility of the independent Judicial Conduct Investigation Office, which deals with complaints against all levels of the judiciary, including the magistracy. All appeals against decisions made by judges or magistrates are heard by a higher-level court. The Criminal Procedure Rules Committee and 195

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the Sentencing Council are chaired by judges and contain judges and magistrates from all levels of the judiciary. The Lord Chief Justice issues Criminal Practice Directions from time-to-time. Courts are required to follow the Criminal Procedure Rules, the Sentencing Guidelines and the Criminal Practice Directions, as well as binding decisions of the higher courts. It follows that the notion of judicial discretion has been substantially narrowed. However, this is generally welcomed, particularly by the public who prefer consistency to a wide discretion. Indeed, perceptions of widely varying approaches to cases leads to concerns about bias. Judicial discretion must not be confused with judicial independence. Judicial independence requires a judge to follow the law without fear or favour. There can be no outside interference on any individual case, which must be decided solely on the submissions and evidence heard in court. In particular, there can be no interference from the administration. However, a court dealing with an individual case must follow the law, rules, guidelines and LCJ guidance applicable to all criminal cases of the type with which the court is dealing. The steps taken in the past 15 or so years have increased judicial independence while at the same time reducing judicial discretion.

Procedural changes Since 2005, when the Criminal Procedure Rules were first promulgated, there have been many procedural changes. Some initiatives, like the Community Justice Courts, have not been more widely adopted.1 Others, like extended court hours, have to date only been used generally in emergencies, such as the riots in 2011. Committal proceedings, which used to take up a significant part of a magistrates’ court lists, were abolished in 2013. More recently, the single justice procedure has introduced a new way of delivering summary justice. Perhaps the most important

1. There is still a Community Justice Court in Liverpool, but now absorbed into the main magistrates’ court.

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such change has been an increased emphasis on case management as a tool for reducing delay and increasing efficiency. Case management

One aspect of a judge’s work that has completely changed in this century is case management. Not that long ago, magistrates had almost no role in case management. Now it is a primary responsibility of the court, following in particular the Criminal Procedure Rules, but also some of the case law that has recently developed. This role has not been universally popular with magistrates and judges, and even less so with some advocates. In the decade or so following the constitutional changes in 2005 there has been consistent pressure from the senior judiciary to improve the efficiency and effectiveness of the courts. The most important driver for change has been the work of the Criminal Procedure Rules Committee. This work continues, but there is now a comprehensive set of provisions to be followed by courts in managing cases. In addition, there was an early initiative from the then Senior Presiding Judge known as Criminal Justice: Simple Speedy Summary. Following that there was an initiative called Stop Delaying Justice! where some 20,000 district judges, magistrates and lawyers were trained on the Criminal Procedure Rules and in particular on the need to case manage and avoid adjournments. Thereafter there has been the Transforming Summary Justice initiative taken by the Crown Prosecution Service. The Better Case Management programme was launched in October 2015, with the aim of making case management more robust and reducing the number of hearings, including by introducing a uniform scheme for reduced sentences in the event of a guilty plea (which came into effect in June 2017). There have also been initiatives in the Crown Court. An important report is the Review of Efficiency in Criminal Proceedings by the Right Honourable Sir Brian Leveson, President of the Queen’s Bench Division, published in January 2015. Throughout the period, the Judicial College has ensured that training for district judges and magistrates has covered the essentials of case management. The key principles are as follows: 197

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1. Case management is the responsibility of all parties, including the court, the prosecution and the defence. 2. Case preparation should be front loaded under the principle “getting it right first time”. 3. At the first court hearing the plea should be taken and if that plea is not guilty then the case should be fully case managed for an effective trial at the second hearing. 4. Trials should concentrate only on those matters that are in issue. Those matters not in dispute should be agreed, as far as possible at the first hearing. 5. The case should be properly timetabled, including the time that will be taken for examination-in-chief and cross-examination. 6. Adjournments should be granted only as a matter of last resort. It has been important to the concept of judicial independence that all these initiatives (with the exception of Transforming Summary Justice – TSJ) have been judicially-led. Even TSJ has had a strong judicial input and strong judicial support. Judicial leadership has however meant that defence lawyers in particular have felt they have not been sufficiently consulted and their problems have not been sufficiently understood. The new approach represents a sea change from past practice and procedure. This is particularly resented by some of the more experienced lawyers who have built their careers following a process that is no longer in accordance with the rules. For example, when we were in private practice we would never have disclosed our defence before the trial — now lawyers are required to do so at the first hearing. The number of initiatives launched is indicative of the resistance to case management change. However, it is clear that the combined effect of all these programmes has, over a period of time, led to a far more robust approach to case management. Anecdotally, new judges and newer advocates tend to be more accepting of this process than those who have longer experience. Regional variations show that there is still a long way to go. For example, in two neighbouring court districts in the same county (Kent), one had an effective trial rate of 149 out of 288 (51.73 per cent), 198

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whereas the other had only 99 effective trials out of 294 (33.6 per cent),2 these figures dating from the last quarter of 2018. In the Leveson Review it is said that the trial date “should be seen as an immovable date” (paragraph 102). On an earlier occasion the then Lord Chief Justice compared a criminal trial to a football game, with the judge as a referee. At the appointed time the referee blows the whistle and the game begins. It is not adjourned because one of the star players is injured or has forgotten his kit. A particular problem, and still a leading cause of adjournments, has been the absent defendant. In the Crown Court the trial can only take place in the absence of the defendant after exercising great caution, and where the court is satisfied that absence is voluntary. The position is different in a magistrates’ court. Section 11 of the Magistrates’ Court Act 1980 (as amended in 2008) requires the court to proceed in the absence of the defendant unless the defendant has given an acceptable reason for absence. This change was possible because a convicted defendant has an unfettered right to appeal to the Crown Court where a rehearing can take place. (In fact, this right is exercised only in fewer than two per cent of all criminal trials in a magistrates’ court.) Trial in absence

We have discussed the law on trial in absence in Chapter Six. The law changed in a substantial way with amendments to s.11 MCA in 2008. Unfortunately, subsequent decisions of the higher courts failed to reflect the change and sometimes referred instead to the law as it applies to the Crown Court. The current position is comprehensively set out in the Lord Chief Justice’s Practice Direction in Appendix 2 of this book. Absence of the defendant used to be one of the most common reasons for adjourning a summary trial. Now it should be very rare, unless the defendant has given an acceptable reason for absence.

2. Figures taken from criminal courts listing transparency files, published with the quarterly criminal courts statistics by the Ministry of Justice.

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Identifying the issues

CPR 3.11 states that the court must establish, with the active assistance of the parties, what are the disputed issues. It must consider setting a timetable and may require a party to identify which witnesses that party wants to give evidence in person. Furthermore, the court may limit the examination, cross-examination or re-examination of a witness and the duration of any stage of the hearing. There is a case management form that must be completed by the parties and reviewed by the court. In the early days of this procedure there were objections from the defence. In some cases, it was argued that it is a breach of privilege to require the defence to set out their case, particularly as there is no statutory obligation to do so in a magistrates’ court. Case law has dispelled that argument, but a compromise has been reached. In brief, the case management form should not be used as evidence in the trial provided that the defence is acting within the spirit of the rules. It would be wrong to say that there is now complete agreement about the extent of the obligation to identify issues. The sanctions for failing to comply are to some extent unclear. However, an advocate has a professional duty to the court and in practice this duty is complied with, albeit sometimes reluctantly. Time-limiting advocates

As stated above, the court may limit the examination, cross-examination or re-examination of a witness (CPR 3.11). This approach was earlier elaborated on by the Court of Appeal in Jisl [2004] EWHC Crim 696: “The starting point is simple. Justice must be done. The defendant is entitled to a fair trial: and, which is sometimes overlooked, the prosecution is equally entitled to a reasonable opportunity to present the evidence against the defendant. It is not however a concomitant to the entitlement of a fair trial that either or both sides are further entitled to take as much time as they like, or for that matter, as long as counsel and solicitors or the defendants themselves think are appropriate. Resources are limited. The funding for courts and judges, the prosecuting and the vast majority defence lawyers is 200

Twenty-first Century Developments dependent on public money, for which there are many competing demands. Time itself is a resource. Every day unnecessarily used, while a trial meanders sluggishly to an eventual conclusion, represents another day’s stressful waiting for the remaining witnesses and jurors in that particular trial, and no less important, continuing and increased tension and worry for another defendant or defendants, some of whom are remanded in custody, and the witnesses in trials which are waiting their turn to be listed. It follows that the sensible use of time requires judicial management and control.”

Trial blitzes

Trial blitzes in magistrates’ courts have proved very effective in reducing delay. The first step is to identify areas where the delay is the greatest. Although the aim is for a trial within six weeks of the first appearance, typically trial blitzes concentrate on areas where the delay is 15 to 20 weeks or more. The next step is to identify a court centre that can accommodate three or four trial courts operating at the same time. In modern court centres this is normally possible. In some areas it has been necessary to use other court buildings, for example disused Crown Court centres or recently closed magistrates’ courts. Blitzes usually last from two to four weeks in each centre. As many outstanding cases as possible are listed in the blitz courts during the blitz period. Eight trials in each courtroom a day is not unusual. Then there is a hearing to thoroughly case manage the trials two or three weeks before the effective hearing date. This step is vital. It enables the court to ensure that trials concentrate only on relevant matters in dispute. In other words, the parties are required to agree evidence under section 10 of the Criminal Justice Act 1967 where it is not in dispute (see Chapter Six). This ensures that the average trial is likely to last no more than 90 minutes to two hours. At this case management stage, experience shows that a significant number of defendants plead guilty, perhaps having been given a Goodyear indication that they will not receive a custodial sentence (see Goodyear in Criminal Justice Terms and Abbreviations that follows this chapter). Similarly, a number of cases 201

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are discharged by the Crown Prosecution Service after taking a view that the evidential test is not met. At the blitz courtrooms, the courts act as a unit. The judges, magistrates and staff meet together before the hearings begin. Effective trials are allocated to start straightaway. Applications to adjourn are usually put before the experienced (or some might say robust) judge. There is an expectation that at least one senior Crown prosecutor and one senior police officer is available in court on each trial day to take key decisions. Almost all the trial blitzes resulted in all listed cases being concluded (with only a tiny number adjourned to another day) and a significant reduction in the trial waiting time (usually by at least half ). The blitz courts work by a combination of factors. Firstly, experience shows that on the day of trial many cases “crack”, that is either the Crown offers no evidence, or the defendant pleads guilty. In a traditional courtroom that can mean that a court is then left idle for the rest of the day. In a blitz court it is possible to over-list knowing that all cases will nevertheless find a trial court during the course of the day. It also enables courts to go part-heard if a witness fails to attend or for any other reason. The trial can recommence the next day or a few days later. We have also found that an esprit de corps builds up. The benches work well together. Judges and magistrates learn from each other (bearing in mind that once appointed a judge rarely sees another judge in action). Requisitions

As mentioned in Chapter Three, an authorised prosecutor can issue a requisition which includes a written charge and which requires the defendant to attend court on a specified date. This procedure was introduced by s.29 Criminal Justice Act 2003, and gradually on a piecemeal basis across England and Wales between 2007 and 2011. However, its use appears to have increased significantly in recent years, even before the restrictions on police bail introduced by the Policing and Crime Act 2017. To give one example, the proportion of defendants facing indictable-only offences who were summonsed or requisitioned to attend court rose from 7.5 per cent in 2014 to 20.9 per cent in 2017, and again to 30.7 per

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cent in 2018.3 The proportion brought to court in custody by the police remained constant at around 50 per cent, whereas the proportion arrested and bailed declined by a corresponding amount, from 40.4 per cent to 17.4 per cent between 2014 and 2018. Anecdotally, concern is being expressed that the process is building delay into criminal prosecutions. It is said that in some police areas there is a significant delay between the CPS advising prosecution and the police sending out the requisition. Although official statistics are not available,4 there is also anecdotal evidence that increasing numbers of defendants requisitioned to attend court are not doing so. Where this leads to a warrant being issued, it may take some time for the warrant to be executed, as police do not have the resources to deal with them immediately. When arrested, the defendant will not face a Bail Act charge and his or her record will not show their propensity to fail to surrender, something which causes concern to prosecutors. In addition, defendants who are requisitioned are not subject to bail conditions to protect witnesses and victims. New operational guidance has been issued to police by the National Police Chiefs’ Council urging greater use of pre-charge bail, particularly in cases involving domestic abuse,5 but it is too soon to assess whether this guidance will have any effect. Single justice procedure

In England and Wales lay magistrates usually sit as a bench of three. The single justice procedure allocates some types of work to a single magistrate. It applies only to adult defendants charged with a summary only non-imprisonable offence initiated by a written charge and a single justice procedure notice. These cases may be dealt with by a single magistrate on the papers or online without the attendance of the prosecutor or the defendant. Where the defendant pleads not guilty, or (we submit) where there is a need for open justice, the case should be transferred to 3. Criminal Justice Statistics 2018, overview tables, Table Q4.1 4. The Justice Select Committee recommended, in June 2019, that the MoJ begins publication of “failure to appear” rates in magistrates’ courts. 5. National Police Chiefs’ Council guidance 27 May 2019.

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a full magistrates’ court. The CPR Rule 24.9 sets out the procedure to be followed. The procedure achieves more than simply releasing two magistrates for other work. Typically, the single justice procedure deals with motoring cases or other minor process where the defendant has entered a written plea of guilty or has failed to enter a plea, meaning that the case must be proved by evidence at court. There is now scope for defendants to enter their plea online, and the numbers doing so are increasing.6 Because there are no defendants in attendance, and assuming that there are no members of the public interested in watching the proceedings, the single justice court can take place in a comparatively small room. Similarly, the hearings can take place at any reasonable time, so it is not unusual for a magistrate to start sitting at eight o’clock in the morning, work for couple of hours, and then go to his or her normal employment. Similarly, in the early evening. There is no need for a prosecutor to attend in person, as the evidence is submitted in statement form electronically in advance. The single justice reviews the evidence on a computer screen and considers any written representations from the defendant. This process is far from rubber-stamping. Cases are dismissed if the written or CCTV evidence does not support them. Care is taken to pass an appropriate sentence applying the guidelines. Concern has been expressed that the single justice procedure is an exception to the principle of open justice. This is true,7 and historically there has been little or no public interest in the cases now dealt with under this process. However, it does not mean that these cases must be heard in private. The court list should be published in advance, either in the courthouse or (in future) on-line, and is sent to news media organizations. Defendants can request an open-court hearing. If the justice or legal adviser considers that the case should be heard in public they must issue a summons requiring the defendant to attend. Finally, any member of the public can request the result of the hearing and all results are shared with the news media through a data-sharing agreement. 6. From 16 per cent to 23 per cent in the period between April and November 2018, according to the Lord Chief Justice’s written evidence to the Justice Select Committee. 7. CPR 24 (2) (4).

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The single justice procedure started as a trial in August 2014 and has proved satisfactory and been extended. Now courts are able to deal with a significant proportion of minor process cases using fewer resources than before. Case allocation

Summary trial is considerably cheaper than trial by jury. It is calculated that a day in the Crown Court costs £1,900 compared to a magistrates’ court cost of £1,150 a day. Also, cases in the magistrates’ courts are shorter, usually far shorter, than the same case in the Crown Court because there is no jury. The National Audit Office estimates at over £36 million annually the minimum additional cost of cases that could be tried summarily being sent instead to the Crown Court. Over the years there has been an increasing trend for trials to be allocated to magistrates’ courts rather than to the Crown Court. Receipt of either-way offences in the Crown Court fell 29 per cent between 2014 and 2017. Sometimes the decrease has involved re-designating offences that were originally indictable — for example drink-driving, taking a conveyance and even low-level criminal damage were all triable on indictment until the 1970s. The trend has been for magistrates’ courts to accept jurisdiction more frequently, and for defendants to consent to summary trial more frequently. The reasons for this are complicated. Increasing trust in the magistracy is one factor. Another is the advantage of knowing that, even if convicted, there is an unfettered right to appeal to a judge and two magistrates sitting in the Crown Court (although this option is only rarely used). There is growing support for magistrates’ courts to have increased sentencing powers.8 This does not mean that sentencing for summary offences should change — nobody is advocating that.9 Nor is it being suggested that a defendant who can today choose jury trial would lose that right. Instead it means that courts would offer summary trial to more defendants charged with an either-way offence and more defendants 8. See, for example, the evidence of the Senior Presiding Judge to the House of Commons Justice Committee in June 2016. 9. Although some newer summary offences have a maximum penalty of 12 months’ imprisonment.

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would be given the opportunity to be tried in a magistrates’ court. In Chapter Four we explain why some defendants would welcome this opportunity. Quite separate from this, it is time that Parliament looks again at whether some existing either-way offences should become summary only. With the exception of low-value theft from shops (where magistrates cannot decline jurisdiction but defendants can still elect jury trial) there has been no change to this category of offences for over 30 years. As a result, the either-way category is increasingly out-of-line with current thinking. It used to be said, apparently seriously, that a bishop charged with stealing two doughnuts should retain the right to jury trial, because of the effect of a conviction on their reputation. Nowadays, the bishop’s reputation would be damaged more by a conviction for common assault on his or her partner, or for racially-aggravated threatening behaviour, or for torturing an animal (all triable only in a magistrates’ court) than for stealing two doughnuts. Apart from low-value shop theft, there is a case for reducing the maximum sentence for possession of cannabis from five years’ imprisonment to six months, and for the offence (one of the most common in a magistrates’ court) to become summary only. Other possible candidates to become summary only are: assault with intent to resist arrest (if injury occurs ABH, an either-way offence with a maximum of five years’ imprisonment, could be charged). The level for criminal damage, fixed at £5,000 40 years ago, could be raised. There are other potential candidates for reducing the maximum sentence, and we say only that this should be looked at again. Extended court hours

Until the beginning of this century, a metropolitan stipendiary magistrate worked four days a week. The London courts sat from 10.30 am to 4 pm Mondays to Fridays, and from 10.30 to lunchtime on Saturdays. There was little pre-court reading. Now district judges (magistrates’ courts) work five days a week. Court hours are usually from 10 am until 5 pm and there is always at least an hour’s out of court work. In effect, judges are now working twice as many hours as they did 20 years ago. Hours are extended for lay magistrates too. 206

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There were riots in many towns and cities in 2011. After about three days of rioting, the police started arresting very large numbers of people. Overall, about 4,600 people were arrested for riot-related offences, and many of those appeared before the courts in custody over the course of a few days. The decision was taken to open magistrates’ courts in London, Manchester and Birmingham 24 hours a day, seven days a week, until the workload was disposed of. There was an element of public relations in this, to show the determination of the criminal justice system to deal with these cases effectively and efficiently. However, there is no doubt that very large numbers of prisoners appeared before the courts in a very short period of time, and their cases were heard. There have been other experiments that involved extending court hours. For example, Bow Street Magistrates’ Court sat overnight for a few weeks in about 2002. More recently a number of magistrates’ courts sat extended hours — typically from 8 am to 8 pm — and sometimes at weekends also. There is no legal prohibition on sitting on a Sunday. Subsequent evaluation of all these extended hours courts suggested that they were expensive and the effect on throughput minimal. The exception was the riot courts where judges and magistrates and members of staff showed dedication in sitting for long periods to deal with what was seen as clearly an emergency. There are obvious disadvantages to sitting long hours. It is hard for judges and magistrates to retain concentration over a significantly longer day. There is a real tendency for the system to slow down. Judges and magistrates may well need to take a break during a three-hour sitting that they would not take during a two-hour sitting. It is recognised that sitting still for long periods of time has a health implication. Even during the riots there was a concern that some police stations were not producing prisoners early in the day, so the courts were underused during ordinary hours, but were producing them later in the day so that there was a very considerable activity overnight. Save in extreme circumstances, sitting overnight should be avoided. It must also be remembered that at the moment morale is low among those working in the criminal justice system. Lawyers for the defence

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and for the Crown are understandably unwilling to give up what might otherwise be considered as family time save in emergencies. Extending opening hours for courts may be viable to ensure greater use of a court building, but only if there are sufficient judges, magistrates, court staff, CPS lawyers, defence lawyers, probation officers, security staff and so on to justify a shift system. In other words, a shortage of courthouses can be accommodated, but only if there are sufficient people to operate them. Delegated powers

As well as the use of the single justice procedure to delegate to a single justice the work that might formerly have been done by a bench of three magistrates, there has also been an increase in the powers and functions allocated to legal advisers. Although the title of Clerk to the Justices has now been abolished,10 the role of the justices’ legal adviser remains crucial to the efficient running of the magistrates’ courts. Among the powers of a suitably qualified legal adviser are: issuing of a summons, issuing a warrant of arrest under the Bail Act, dismissing a charge when no evidence is offered by the prosecution, extending or (with consent) varying bail conditions, and fixing or setting aside a date for a trial. The Criminal Procedure Rules Committee has consulted on new rules to clarify the extent of the powers currently exercised by legal advisers. Other jurisdictions (e.g. employment tribunals) have already delegated more decisions to staff and it would not be surprising to see something similar happen in magistrates’ courts.

Unrepresented defendants We believe that nearly all judges and magistrates prefer defendants to be legally represented. In magistrates’ courts, there has always been a significant proportion of unrepresented defendants. This is especially the case with motoring 10. By virtue of the provisions in the Schedule to the Courts and Tribunals ( Judiciary and Functions of Staff ) Act 2018

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matters, or offences that do not carry a custodial sentence. The position improved with the development of duty solicitor schemes from the late 1970s onwards. There is normally a duty solicitor available at court to assist defendants at the first, plea and case management, hearing and this is a great advantage for the court. It is not expensive (and indeed the earliest duty solicitors were unpaid). Those arrested and detained at a police station also have a virtually unfettered right to advice from a duty solicitor at the police station. However, duty solicitors are not able to represent a defendant in a contested trial (unless legal aid is granted). There are provisions for the court to appoint a lawyer to cross-examine a witness in certain situations, particularly in sexual assaults or domestic violence. The main reason why fewer defendants are represented is that legal aid eligibility has been reduced and this particularly affects those of moderate means. However, there may also be a trend towards people preferring to represent themselves. This may be encouraged by online advice. Many of our former colleagues have noticed an increase in “freemen of the land” who affect not to recognise the law of the country. Most unrepresented defendants are reasonable and will comply with the court process if it is properly explained to them. Now the Criminal Procedure Rules make provision for the court to check with a defendant at the beginning of a trial as to what are the matters in issue. This makes the process easier, but with unrepresented defendants inevitably means a greater move towards an inquisitorial trial as opposed to an adversarial trial. In other words, the court itself (preferably the legal adviser where there is one) plays a greater role in examining and cross-examining witnesses than we generally see in the adversarial system. Again, provided everybody understands and accepts this process, it is not difficult to manage. Freemen of the land, and others who reject the authority of the court, or are simply suspicious of those in authority, are more difficult to deal with. They tend to require more explanation and intervene in the proceedings inappropriately. Sometimes the only option left to the judge to avoid a trial being “hijacked” is to be firm with the defendant. This means insisting that he or she submits to the authority of the court, or 209

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the trial will proceed in absence. In the case of Mendes v DPP 11 a district judge sent an unruly defendant in an assault case to the cells and heard the prosecution case in his absence. When the time came for the defendant to give evidence, the cell staff refused to produce him because he would not relinquish his walking stick (which had been used in the assault with which he was charged). The judge decided to proceed in his absence and convicted him. The Divisional Court, presided over by the President of the Queen’s Bench Division, upheld the conviction. In his decision, Sir Brian Leveson expressly approved a passage from an earlier case in which Nicol J had said that “there does come a point at which a defendant’s (even an unrepresented defendant’s) disruption to the proceedings means that a judge has no choice but to exclude the person concerned from those proceedings”.

Austerity Between 2010 and 2018, the budget of HMCTS was cut by about 23 per cent in real terms.12 One method to save money (and help fund the Reform programme) which has been adopted by the Ministry of Justice is to close courthouses and sell them where possible. In that same period, 2010-2018, half the magistrates’ courts in the country have closed (162 of the 323 magistrates’ courts in England and Wales). It is a remarkable fact that these closures have not led to a significant increase in the time taken to complete a summary trial. Overall the workload has remained reasonably constant.13 Many factors have contributed to that. One is that larger courts have a clear advantage over small courthouses. Cases can far more easily be transferred between courtrooms in a single building than they can be transferred to a courthouse elsewhere. Similarly, large courtrooms can have facilities for video links, custody cases, probation officers, and specialist assistance of all types that are hard to replicate in a small courthouse with a single courtroom. 11. [2015] EWHC 1597 (Admin). 12. Institute for Government performance tracker. 13. There was a slight fall in new cases received by magistrates’ courts between 2010 and 2018. However, in 2019 many practitioners have spoken of a precipitous fall in workload.

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Nevertheless, it must be noted that there has been adverse criticism of court closures. Travelling time for defendants and witnesses and in many cases for lawyers has increased. The role of a magistrate operating in his or her local community has undoubtedly been weakened. Towns that have lost a courthouse have lost a facility that many of them appreciated. Among the less discussed effects of austerity has been the gradual removal of police officers from the court buildings. Having police officers waiting to give evidence in the courthouse was not seen as a productive use of police time, so measures were introduced in 201014 to allow police officers to give their evidence over a video-link from the police station. The test for making such a direction is whether “it would be in the interests of the efficient or effective administration of justice”. In making that decision, the court must consider all the circumstances of the case: arguably that could include the desirability of having a police presence at court. However, if the court refuses an application for a livelink direction, it must state its reasons in open court (which must be entered on the register). Another consequence of austerity has been reduced budgets for the agencies that serve the courts, such as the CPS and the probation service. Cuts to these agencies have a severe effect on other parts of the system, including the courts and defence lawyers, reducing efficiency and effectiveness. The House of Commons Justice Select Committee reported in Transforming Rehabilitation, June 2018, that sentencers lacked confidence in community alternatives to short custodial sentences. A year later the government response acknowledged the need to improve. Austerity has also had an effect on defence lawyers. Rates of pay for legal aid work generally have decreased in recent years and complex contracting schemes designed to cut the number of solicitors’ firms eligible to do legal aid work have led to fewer solicitors being able or willing to appear in magistrates’ courts. One result has been an increase in unrepresented defendants. The position would have been worse but for three factors. Firstly, crime has fallen. Although people do not believe it, the National Crime Survey 14. When s.51 Criminal Justice Act 2003 was brought into force for all purposes.

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shows that crime has perhaps halved since the mid-1990s, though there are signs that the fall has paused or even reversed. The workload of the courts has also fallen, though not so dramatically. Second, from about 2005 there have been initiatives led by the senior judiciary to make the courts more efficient. Third, though this is impossible to measure, there is a cadre of experienced lawyers, judges, magistrates and court staff, most of whom were recruited in better financial times, whose goodwill and dedication has helped the system deal with unprecedented change. Despite these positive factors, there is real concern about the future. Prisons are badly overcrowded and becoming a national disgrace.15 Ministers and others discourage the use of short prison sentences and urge community penalties instead. However, the faith of judges and magistrates in community penalties, already low, fell yet further following radical changes to the probation service in 2015, designed to save money.16 It has been even harder to collect fines on the day, as the facility to pay in cash at courts has been removed. Dramatic cuts in the number of CPS lawyers (and police officers) affect the preparation of trials, including disclosure. The remand courts have slowed, as waiting times for prisoners to be produced, or interpreters to be provided, or files to be produced, have visibly lengthened.17 Court closures take magistrates, who are unpaid, further from the communities they serve and damage the concept of local justice. From 2010 to 2019 the number of magistrates in England and Wales halved, from 30,000 to fewer than 15,000. No wonder many magistrates, the backbone of the criminal justice system, are disillusioned. However,

15. Almost all district judges (magistrates’ courts) serve as independent prison adjudicators, visiting prisons, and seeing the problems for themselves. The difficulties for prisoners and staff alike have been widely reported and are not exaggerated. 16. The House of Commons Justice Select Committee reported in 2019 that “we are unconvinced that the TR [Transforming Rehabilitation] model can ever deliver an effective or viable probation service.” The Committee noted that sentencers lacked confidence in community alternatives to short custodial sentences. Privatisation was then reversed and it is hoped that confidence will be restored. 17. A typical remand list before a stipendiary magistrate 25 years ago would contain well over 50 cases, all completed by 1 pm. Now the list has half as many cases and may not conclude until late-afternoon.

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if the money released from court closures helps to improve summary justice overall,18 court closures may come to be seen as a necessary evil. From our background, as former legal aid defence solicitors, there is special concern about legal aid rates. Commercial lawyers have always earned more than legal aid lawyers, but until about 20 years ago the difference was not enough to deter quality lawyers choosing legal aid out of dedication or interest. Now, newly qualified lawyers, saddled with student debt, find they will be paid more in their early years as a commercial lawyer than most partners in legal aid firms. Legal aid rates are lower than they were in the early-1990s. Those who entered the profession before then will mostly stay. They are essential to the proper running of the criminal justice system, particularly in magistrates’ courts. But where are the quality legal aid lawyers of the future? And from what cadre will judges, particularly district judges, of the future be drawn?

18. An ambitious £1.2 billion programme is underway to modernise the system, including upgrading technology and buildings. The vision is to “upgrade the best justice system in the world using technology and modern ways of working”: HMCTS Annual Report 2017-2018.

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Administrative Court

The Administrative Court is part of the Queen’s Bench Division of the High Court. It has a varied jurisdiction reviewing decisions made by people or bodies with a public law function. Cases may be heard by a single High Court judge or by a Divisional Court which consists of two or more judges. Among other responsibilities, the Administrative Court hears appeals by way of case stated or by way of judicial review of the decisions of a magistrates’ court. An application by way of case stated can be made by either the defence or the prosecution and takes the form of a question about the law or procedure which the aggrieved party asserts was wrongly decided. Typically, it may be based on an argument that there was no case to answer, or no evidence on which a conviction could be based. No evidence is heard. The appeal proceeds by way of legal submissions on the facts as agreed by the parties and the magistrates. This route can only be taken after the final determination of the case in a magistrates’ court. A defendant who appeals by way of case stated loses the right to appeal to the Crown Court. Judicial review aims to correct an error of law on the face of the record, excess of jurisdiction or breach of natural justice. It is also open to both defence and prosecution and save in exceptional circumstance should wait for final determination of the case by the magistrates. The normal route where it is alleged that there has been an error of law is case stated rather than judicial review. Advocates

Advocates are usually professionally qualified lawyers (barristers, solicitors or legal executives) instructed to represent the prosecution or defence. Some prosecution advocates are not legally qualified but are authorised

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to represent the prosecuting authority. All have a duty to the court which overrides their duty to the client. Appeal

Any sentence or conviction can be appealed to the Crown Court by a defendant. There are time limits on lodging an appeal, and a process to be followed. However, leave to appeal is not required. Appeals are heard in the Crown Court by a circuit judge (or a recorder — a part-time judge) sitting with two magistrates who were not involved with the original hearing. The appeal is heard afresh and the parties are at liberty to put new or different facts before the appeal court, which does not look at the reasons given by the magistrates’ court. Sentence can be confirmed, reduced, or increased. Conviction can be confirmed or overturned. In fact, very few decisions are appealed. This route of appeal is not open to the prosecution. There is also a rarely used right of appeal for either the defence or the prosecution to the High Court (see Administrative Court above). This is used when it is said that the decision of the magistrates was not open to them in law, or was manifestly unreasonable. An unsuccessful appeal to the High Court normally means that the time limit for appealing to the Crown Court is passed and that route of appeal is lost. In most circumstances the defence prefer to take the Crown Court route, and only appeal to the High Court if they remain aggrieved after that. This is a technical area and legal advice should be sought. Case law

The primary source of law is Parliament, through Acts of Parliament (statutes) and statutory instruments. Inevitably, those Acts fall to be interpreted in the courts by application to individual cases. To avoid different courts interpreting the law in different ways each time a similar situation arises, we have a system of precedent. This means that a magistrates’ court must follow the law as determined by the High Court, the Court of Appeal, or the Supreme Court. In the great majority of summary trials, it is unnecessary to cite case law. Where it is necessary, advocates are expected to advise their 216

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opponents of any case law on which they rely and are under a duty to draw the court’s attention to any decisions adverse to their case. Most of them do this. Two areas where case law is often referred to are the law on adjournments and the law on drink driving. As for adjournments, the law is now clearly and comprehensively set out in the Lord Chief Justice’s Criminal Practice Direction of April 2019. It is to this CPD that the court’s attention must be drawn, not any earlier cases. No doubt the higher courts will in the fullness of time interpret or illuminate the CPD, but until then great caution should be exercised with earlier cases. There are two common errors when referring to case law. One is when the law has changed since the case was decided. An example is s.11 MCA, which in 2008 changed the law on trials proceeding in the absence of the defendant. Unfortunately, this change was not always drawn to the attention of the courts, and therefore there are some comparatively recent but misleading High Court decisions (now overtaken by the 2019 CPD). The other is that precedent strictly only applies to the decision in the earlier case. It is easy to take out of context a comment made in the judgment as if it is binding on the magistrates. We again urge great caution with old case law, particularly in the field of drink driving. While some old cases establish principles that remain binding today, others do not. Caution

A caution is an out-of-court disposal of a criminal offence, administered by the police. There are restrictions on its use. It forms part of a person’s criminal record, and can only be applied if the person understands the consequences, has admitted the offence, and agrees to the caution. There are simple cautions and cautions with conditions attached. Magistrates may be informed of a person’s cautions as part of a bad character application or during sentencing. The term “caution” also applies to a warning that must be given to someone suspected of a crime. “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.” Minor deviations are permissible, provided the sense 217

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is preserved. There is a special caution when a person is asked to account for any object mark or substance found on him, or to account for his or her presence at the place of arrest. The position with cautions, and indeed interviews and detention, is covered by the codes of conduct that are found as an appendix to the Police and Criminal Evidence Act 1984. Criminal Justice Act 2003 (CJA 2003)

The Criminal Justice Act 2003 is one of the great reforming statutes of the past 50 years. It radically changed the landscape of the criminal courts and enacted many of the reforms recommended by Auld LJ in his Review of the Criminal Courts 2001. Criminal Practice Directions (CPDs)

The Lord Chief Justice’s Consolidated Criminal Practice Direction sits alongside the CPRs and adds to or illuminates them. Criminal Procedure Rules (CPRs)

The Criminal Procedure Rules govern the way criminal cases are managed and set out the procedure that must be followed. The Criminal Procedure Rules Committee is an advisory non-departmental public body. The committee is chaired by the Lord Chief Justice and consists of 17 people from different areas of the criminal justice system. The rules have built up since 2005, and now cover most areas of the work of the criminal courts. They must be followed. Crown Court

The Crown Court was established in 1972. It deals with appeals from the magistrates’ courts; committals for sentence from magistrates; jury trials; and sentencing of those convicted (including those who plead guilty) in the Crown Court. There are Crown Court centres right across England and Wales, the best-known being the Central Criminal Court, or Old Bailey. Full-time judges are known as circuit judges and part-time judges are recorders. High Court judges sometimes sit in the Crown Court, particularly in the most serious cases.

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Crown Prosecution Service (CPS)

The Crown Prosecution Service was formed in 1984. Its lawyers advise police on charging decisions and prosecute at all levels of the criminal justice system. The Director of Public Prosecutions (DPP) heads the CPS. Since 2010 there have been huge cuts in resources that have impacted on the ability of the CPS to perform all its functions to the standards it would like. Prosecutors must be fair, independent and fearless in the face of often unwarranted criticism of their decisions. They must follow the Code for Crown Prosecutors. Prosecution guidance can be accessed through the CPS website.1 “The Crown wins no victories and suffers no defeats.” Custody time limits

Regulations made under the Prosecution of Offences Act 1985 set time limits beyond which a defendant may no longer be remanded in custody. Briefly, the maximum time limit before starting a summary trial is 70 days for an either-way offence and 56 days for a summary offence. Once the custody time limit has expired a defendant is automatically entitled to bail with conditions, except that a surety or security cannot be required. There is provision for the time limit to be extended provided that the prosecution has acted with all due diligence and expedition, and that there is good and sufficient cause for doing so. The overriding purposes of the statutory provisions were said (by the then Lord Chief Justice in Manchester Crown Court ex parte McDonald 2): to be (a) to ensure that the periods for which unconvicted defendants are held in custody are as short as is reasonably and practically possible; (b) to oblige the prosecution to prepare cases for trial with due diligence and expedition; and (c) to give the court power to control any extension of the maximum period for which any defendant may be held awaiting trial. Divisional Court

See Administrative Court, above. 1. See cps.gov.uk. Where it is necessary, advocates are expected to advise their opponents of any case law on which they rely and are under a duty to draw the court’s attention to any decisions adverse to their case. 2. [1999] 1 WLR 841.

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Duty solicitors

Duty solicitors are experienced and approved independent criminal lawyers. They are not second best, and usually understand their local court very well indeed. They are paid (not particularly well) from the legal aid fund to advise and represent defendants at the first court appearance. There are rules as to who they can and who they cannot represent. For example, they cannot as duty solicitor represent a defendant at trial (but can if instructed otherwise than through the duty solicitor scheme). Duty solicitors are indispensable in advising defendants on plea and case management; assisting with legal aid; and representing on bail and sentencing. ECHR

The European Convention on Human Rights (ECHR) is an international treaty of the Council of Europe that goes back to the immediate post-war years and has nothing to do with the European Union! Rights include Article 6 (the right to a fair trial) and Article 10 (freedom of expression). The UK ratified the ECHR in 1951. The Human Rights Act 1998 gave further effect to the ECHR by giving citizens of this country the opportunity to enforce their rights in British Courts rather than take the matter to the European Court of Human Rights (ECtHR). In short, Convention rights are enshrined in UK law and enforceable here. See also Chapter Eight. Freemen of the land

People calling themselves “freemen of the land” appear in court from time-to-time. They tend not to use conventional names but might call themselves something like “Harry of the wild woods”. They usually do not accept statute law and challenge the authority of the court. There is no recorded case of their beliefs being accepted and acted upon by a court. They must be treated as any other defendant — courteously but in accordance with usual practice. For example, a person who refuses to accept the authority of the court by entering the dock and giving their correct name can be deemed absent and the case will proceed in absence (or a warrant may be issued for arrest).

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Indications of sentence (Goodyear indications) and discounts for guilty pleas

It is a well-recognised, and indeed obvious, fact that if a greater proportion of those who are guilty of an offence plead guilty at the first opportunity, then there would be savings to the system. The Sentencing Guidelines Council and later the Sentencing Council have considered on three separate occasions the question of discounts for guilty pleas. A defendant who indicates a plea of guilty at the first hearing is entitled to a discount of a third from the tariff sentence. If there is other mitigation, including genuine remorse, this can increase the discount yet further. Even if the defendant is deemed to have been caught “red-handed” the discount applies. The later in the proceedings that the plea is tendered, the smaller the discount. This has proved controversial. Many members of the public are dissatisfied that a defendant should receive such a discount. Some judges were reluctant to apply the full discount to “red-handed” cases. There has also been concern that defendants would be encouraged to plead guilty even when they were not guilty for fear of a longer sentence. There are strong assertions that the plea-bargaining system in the USA may lead to that result. Nevertheless, the discounts apply to encourage an early guilty plea for the good of the system as a whole. Separately from the discount, there is a process (the Goodyear indication) whereby a defendant can ask the bench what sentence he or she would receive on a plea of guilty. The rules are drawn in such a way as to minimise the risk that a defendant will wrongly plead guilty. It is impossible to measure how effective this system is. It appears to be used comparatively infrequently in magistrates’ courts. Nevertheless, personal experience suggests that many defendants plead not guilty because they are scared of a custodial sentence, and when they are told that they will not be sent to prison if they plead guilty, then some at least take that offer. Indictment

This is the term used in the Crown Court to describe the allegation against the defendant. It is an electronic or paper document containing

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one or more counts, to which the defendant is asked to plead guilty or not guilty, and on which the jury is asked to render its verdict. Legal advisers

Strictly speaking the formal new term here is “designated officer” meaning a qualified member of the court staff designated by the Lord Chief Justice (to whom advisers are solely responsible concerning all legal and judicial matters3). But “legal adviser” has stuck in everyday parlance. They are indispensable to the administration of justice, lawyers who advise magistrates on the law (but do not decide on or influence the bench on the facts of the case). Legal advisers sit with magistrates in court, usually just in front of them. They are the real experts on magisterial law. As the law becomes ever more complicated and as more defendants face trials on serious allegations without legal representation so it is impossible to overstate the value of the legal advisers in the court system. Even if all magistrates master the contents of this book, legal advisers will be necessary to advise on the many less common matters that arise daily. Leveson Review

In February 2015 the President of the Queen’s Bench Division of the High Court, the Right Honourable Sir Brian Leveson, published Review of Efficiency in Criminal Proceedings. The review was conducted against a background of decreasing public funding for HMCTS and criminal justice agencies. The purpose of the review was to demonstrate ways to streamline criminal cases within the existing law, and consistent with the interests of justice. The review is wide-ranging, and one chapter is devoted to allocation and another to magistrates’ courts. Magistrates Association (MA)

The Magistrates Association (MA) is the membership organization for magistrates in England and Wales. By virtue of its education and training functions it is a charitable organization and is funded by its members to 3. See the schedule to the Courts and Tribunals ( Judiciary and Functions of Staff ) Act 2018 where all such matters are set now out. The statute dispensed with formal use of the former title, role and office of justices’ clerk which used to attach to the most senior advisers.

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promote the magistracy. The MA was founded in 1920 and received its Royal Charter in 1962. It was established to “promote the sound administration of the law by educating and instructing magistrates and others in the law, the administration of justice, the treatment of offenders and the best methods of preventing crime; and promoting discussion on developments in the law and the administration of justice.” Magistrates’ Courts Act 1980 (MCA)

This is the central and to our minds the most important statute, or Act of Parliament, governing practice and procedure in magistrates’ courts. It has been amended many times, which means that some case law has been superseded by changes to the legislation. All references in this book to the Magistrates’ Courts Act or MCA are to the 1980 Act. Magistrates’ Leadership Executive (MLE)

The MLE was established in 2018 and is a leadership body for magistrates. It is part of a judicial governance structure and represents the magistracy within the wider judicial family. McKenzie friend

A McKenzie friend (named after a case involving McKenzie) is someone, usually non-qualified, who helps the defendant in court. There is no right of audience, so the friend should not address the court (except to ask permission to give advice) or ask questions. The friend is to provide support and give quiet advice. It is wise for the presiding justice or the legal adviser to explain the limits of the role before agreeing to allow the McKenzie Friend to sit with and assist the defendant. Oaths

On appointment to the bench, magistrates take the Oath of Allegiance: “I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to the law” and the Judicial Oath: “I will well and truly serve our Sovereign Lady Queen Elizabeth the Second, in the office of Justice of the Peace and I will do

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right to all manner of people after the laws and usages of the Realm without fear or favour, affection or ill-will.” Witnesses also take an oath before giving evidence. This might be: “I swear by Almighty God that the evidence I give will be the truth, the whole truth and nothing but the truth”, but will vary according to religious belief. Many witnesses now affirm (as a matter of preference), without religious reference. As always, a body of case law has built up. Police and Criminal Evidence Act 1984 (PACE)

PACE is an important codifying and reforming statute that governs investigatory powers including search, arrest, detention, interviewing suspects, identification procedures. The codes are admissible in evidence. Pre-sentence reports (PSRs)

PSRs are prepared by a probation officer to assist magistrates in determining sentence. Ideally these are produced on the day a defendant pleads guilty, but there may need to be an adjournment if a specialist programme if being considered. Probation Service

The National Probation Service has a long and honourable history dating back to the early 20th century. It is responsible for the provision and running of most community penalties, supervision of prisoners on release from custody (including short-term custody) and for the preparation of pre-sentence reports (above) for the courts. The service was part-privatised in 2015 and as a result has been described as losing the confidence of magistrates in some areas. Now that privatisation is being reversed, it is hoped that confidence will be restored. Rehabilitation of Offenders Act

The Rehabilitation of Offenders Act 1974 makes provision for when a criminal conviction becomes “spent” and need no longer be disclosed for most purposes, including applying for work. Spent offences can still be referred to in court (though some guidance advises against this). A

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referral order (which can only be imposed on a youth with no previous convictions who pleads guilty) is spent as soon as the order is completed. Requisition

Since 2003 it has been possible for a public prosecutor to initiate a prosecution by way of a written charge (as opposed to the person being charged in person at a police station). The written charge can either be sent to the proposed defendant with a single justice procedure notice (which does not necessarily require the accused to attend court) or with a requisition, which does require the accused to attend court in person. This procedure is now common. Res gestae

Res gestae is an old common law exception to the rule against hearsay. It has been preserved by s.118 CJA 2003, and is discussed in Chapter Six. There is no English translation in common use, so res gestae remains one of the few Latin legal phrases still encountered in our courts. Section 9 statement

A section 9 statement is a written statement including a perjury warning that has been signed by the person making it. If it conforms with the provisions of s.9 of the Criminal Justice Act 1967, it can be admitted as evidence in a trial. It is very common for uncontentious statements to be admitted in this way. Sentencing Council

The Sentencing Council is an independent non-governmental body formed in 2010 to replace the Sentencing Guidelines Council and the Sentencing Advisory Panel. The Lord Chief Justice is the president and a senior judge (so far, an appeal court judge) is the chairman. The council includes members of the judiciary from magistrates’ courts, the Crown Court, the High Court and the Court of Appeal. There are also non-judicial members, for example the DPP, a senior police officer, an academic and representatives from the probation service and Victim Support. The

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Sentencing Council establishes and revises sentencing guidelines that must be followed by the courts. Special reasons for not endorsing a driving licence or disqualifying from driving

Many motoring offences carry obligatory disqualification or endorsement. A driver may show special reasons not to be sentenced in this way. A special reason must be a mitigating or extenuating circumstance; must not in law amount to a defence to the charge; must be directly connected with the commission of the offence; and must be one which the court ought properly to take into consideration when imposing sentence. Examples include where the defendant drove a short distance in circumstances where he or she was unlikely to be brought into contact with other road users or where they committed an offence coping with a true emergency. Good character, or having an occupation (such as a doctor) where a licence is vital, cannot amount to special reasons. The defendant must prove special reasons on the balance of probabilities. Evidence is required, not mere assertions by the advocate. Even if special reasons are found, the court retains a discretion whether to disqualify or not. Special reasons should not be confused with mitigating circumstances for not imposing a penalty points disqualification (see Totting-up, below). Summary justice

A summary trial is simply one that takes place in a magistrates’ court. Summary justice is intended to be simple and speedy. Some people consider summary justice to be less just than jury trial. We do not share that view (see the section on perceived advantages and disadvantages of summary trial in Chapter Four). Supreme Court

In October 2009, the Supreme Court replaced the Appellate Committee of the House of Lords as the highest court in the United Kingdom. There are 12 Supreme Court justices from the legal systems of England and Wales, Scotland and Northern Ireland. The court hears appeals on 226

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arguable points of law of the greatest public importance, for the whole of the United Kingdom in civil cases, and for England, Wales and Northern Ireland in criminal cases.  It is rare for a case that originates in a magistrates’ court to create a point of law for consideration in the Supreme Court but it can happen. Time limits

Custody time limits restrict the time a defendant can be held in custody pending trial (see Custody time limits above). These limits are set by Parliament and can only be extended for good and sufficient cause and if the Crown has acted with all due diligence and expedition. For summary trial this period is generally 56 days. The CPR and some legislation set time limits for a variety of actions to be undertaken. Generally, these time limits can be extended. Most (although there are some exceptions) prosecutions for summary offences must be commenced within six months of the commission of the alleged offence. In some cases, notice of intended prosecution must be served within 14 days of the alleged offence. The time limits are set by Parliament and strictly applied (though what is meant by “commencement” is technical and may need careful consideration when the application of the time limit is called into question). However, there is no time limit for either-way or indictable offences. Some jury trials deal with events decades ago. Totting-up

The proper phrase is penalty points disqualification, but “totting-up” is still commonly used. Many motoring offences carry penalty points to be placed on the offender’s driving licence. Typically, the points range from three to six, but can be more. The points are listed in the Magistrates’ Court Sentencing Guidelines. Where two or more offences totalling 12 points took place within three years of each other, and there has been no intervening points disqualification, the court is required to consider disqualification for a minimum period of six months under the tottingup provisions. Simple in theory — difficult in practice!

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To avoid a penalty points disqualification the defendant must prove (by evidence) on the balance of probabilities that there are grounds for mitigating the normal consequences of conviction (also known as “mitigating circumstances”). The law expressly excludes circumstances alleged to make the offence less serious, and hardship other than exceptional hardship. If the court finds mitigating circumstances it is required to state its reasons in open court and these must be recorded on the court register kept by the legal adviser. That is because the same reasons cannot be used again. There are frequent complaints in the popular press that these provisions are being used too readily. Ushers and list callers

Courts used to have an usher and a list caller. Then the role was combined in many courthouses. Now one person may have the combined role for a number of courtrooms. These changes overlook the importance of ushers and list callers to the smooth running of the court. List callers make sure that cases are called promptly and when ready. A good list caller can reduce waiting time for magistrates and lawyers alike, and should be treated with respect. Wednesbury unreasonable

This is not a slur on the decent and law-abiding citizens of Wednesbury, but rather a reference to a case decided in 1948.4 It is a decision that is “so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it” according to Lord Diplock. In fact, the test has been softened somewhat and normally involves mistakenly applying the wrong legal test or taking into account factors that ought not to have been taken into account. Youth court

The youth court is a completely separate jurisdiction. It is not simply a magistrates’ court for youths: there are many different procedures. Only 4. Assoc Prov Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

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specially appointed trained magistrates and judges are permitted to sit in a youth court. The same should apply to advocates, but does not. This can lead to friction when an advocate experienced in the ways of the adult courts appears before the youth court. For example, the magistrates are encouraged to engage directly with the defendant, rather than through the advocate. Advocates must remember to call their client by a first name (not “Mr”). An entirely different sentencing regime is in place. Defendants aged under 18 on the day of their first court hearing should be sent to the youth court unless they have an adult co-defendant (see the section in Chapter Four on Allocation). Homicide and firearms offences must be sent to the Crown Court for trial, though there is a strong argument for a change in the law. Similarly, the most serious “grave crimes”— offences that could lead to a sentence of 14 years’ imprisonment or more for an adult — can be sent to the Crown Court. However, it is increasingly recognised that even rape and other serious offences are best tried in the youth court. These serious sexual offences must be referred to a specially trained judge at the first hearing,5 which requires the police and prosecution to alert the court as soon as a youth is charged with a relevant offence, to avoid delay. On conviction they can in certain circumstances then be sent to the Crown Court for sentence. The accredited press are allowed into youth court proceedings, but there are strict restrictions limiting what can be published. In particular, it is not permitted to identify the defendant or any child involved in the proceedings (unless the court orders otherwise in the interests of justice). Otherwise, only those directly involved in the case are allowed into court.

5. CPD XIII Annex 2.

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Essential Magistrates’ Courts Law APPENDIX 1

A typical domestic violence case

In reality there is no such thing as a typical case. Every case is different. However, in this example we go through the situations that often arise when magistrates are dealing with a summary offence. It is not the same in the Crown Court. We think this example shows how much has changed since the Criminal Justice Act 2003 and the introduction of the Criminal Procedure Rules. Background facts

On 9 May, police received a 999 call to go to 24 Acacia Avenue where the occupant has reported being attacked by her partner. On arrival, police find Ann in the kitchen. She is bleeding from the nose and has bruise marks to the face and arms. She is weeping and points at Ben, her husband, saying: “He did this”. Ben says: “Well, you started it.” The police have body cameras that record this exchange of words and the injuries and show that the kitchen is in a state of disarray. Ann is seen by the doctor who records her injuries and prescribes painkillers. Ben is arrested. In interview he declines to answer questions but provides a written prepared statement saying that his wife attacked him, and he was only defending himself. Ben has previous convictions. He is charged (in person, rather than with the less appropriate charge and requisition process) with common assault and bailed (with a condition not to contact his wife directly or indirectly) to appear at the local magistrates’ court in 28 days’ time. Before the first hearing

It is anticipated that Ben’s solicitors will contact the CPS as soon as they have instructions, to obtain the initial details of the prosecution case (IDPC) and disclosure of anything likely to undermine the prosecution 230

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case or assist the defence. For a variety of reasons, this often does not happen so that the first time the defence have IDPC is at court at the first hearing, and they may not have disclosure even then. On the morning of the first hearing it is expected that this case will be listed in the anticipated not guilty plea (NGAP) court (see p. 37), for case management. A single magistrate can case manage and decide bail, although it is usual for a bench of three magistrates to sit with a legal adviser. The magistrates should be supplied with the initial details of the prosecution case before going into court and will have discussed key points with their legal adviser who will check the charge (for example to ensure that the words “by beating” appear in it). The initial details of the prosecution case must include a summary of the circumstances of the offence; any account given by the defendant in interview; any written witness statement or exhibit that the prosecutor then has available and considers material to plea; the defendant’s criminal record, if any, and a victim personal statement if it is available (see CPR Part 8.3 and CPD VII Sentencing). It is far better for everybody if the prosecution has available all its statements. This helps to ensure that the case is properly case managed. However, if the statements are not available then the case must proceed to plea and case management on the initial details provided. Before the hearing, Ben will give his instructions to his solicitor. They are expected to complete the PET form fully together (see Chapter Four). The defendant may be reluctant to give instructions until he has seen all the prosecution statements. His solicitor will explain that there is no entitlement to the statements at this stage and the form must be completed on the information available. In court at first hearing

The legal adviser will ask the defendant to identify himself by giving his name, date of birth and nationality.1 The charge (amended to add the words “by beating” if appropriate) will be read to the defendant. Ben will be asked whether he pleads guilty or not guilty. In this situation it is 1. See CPR 3.27(5).

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assumed that he will plead not guilty. The magistrate or magistrates will then consider the PET form. Among other things, the form must disclose the matters in dispute. Here the defendant may simply have written “factual issues” or “self -defence”. While some benches will accept that, in our view more detail should be supplied at this stage. The bench will be vigilant to ensure that witnesses are not required to come to court if their evidence is not in dispute. In this case, it is almost certain that the doctor’s statement can be agreed or, failing that, that the injuries themselves can be agreed (after all they were seen by the police officers and recorded on the body cameras). Preferably, a set of agreed facts will be written out, perhaps by the parties and perhaps by the legal adviser. In this case many of the facts can be agreed, including the date, the place, the presence of Ann and Ben, what was said at the scene (if admissible), any injuries and what was said in interview. This not only spares witnesses; it also allows the court on the date of trial to concentrate simply on the matter or matters in issue. The prosecutor will consider whether to apply for a witness summons to compel Ann to attend the trial. The test is whether it is in the interests of justice (see Chapter Three). If the prosecutor declines to do so, the court may well issue a summons of its own motion. It will then be for the police to serve the summons or not, depending on their assessment of the situation. In this case there will almost certainly be a bad character application, and this should have been indicated by the prosecutor on the PET form served with the initial details of the prosecution case. The defendant’s previous convictions become evidence in the case because he has attacked the character of his wife by saying she attacked him. Generally speaking, all his convictions would be admissible, even if they are not for assaults on her or indeed not for offences of violence (see Chapter Six). It may be that the defence would require time to respond to any such application, although as the law is straightforward one would normally expect the application to be dealt with there and then: notice can be waived. If not, we would suggest that the appropriate time to consider the application is on the day of trial, but some courts prefer to have an interim

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hearing to consider bad character applications (and hearsay applications), though this is increasingly rare. The admissibility of the 999 call may also be considered at the first hearing. The extent to which it is admissible will depend on the contents of the call. However, frequently such emergency messages are admissible under the res gestae provisions preserved by section 118 Criminal Justice Act 2003 (see Chapter Six). With res gestae no notice provisions apply, although given the comparative complexity of the law it may be fair to give the defence the opportunity to prepare fully for such an application at trial. The business record provisions of section 117 CJA may also apply. It is usual in domestic violence cases to consider special measures, such as screens (see Chapter Five). In particular, it is good practice to advise the defendant that he will not be permitted personally to cross-examine his wife and that this must be undertaken on his behalf by a lawyer. The court will appoint a lawyer for the cross-examination, if appropriate. Bail will be considered. The defence lawyer will have checked with the prosecution that the Crown does not object to bail, but even assuming that to be the case, will have prepared to make an application for bail. Particularly in cases of violence, and particularly where the defendant has significant relevant convictions, the court will consider for itself whether there are substantial grounds to fear further violence against Ann (see section on bail in the context of family violence on page 68). There is a misunderstanding in some quarters that bail can only be refused if there has been a change in circumstances since the police granted bail. If Ben fails to attend this first hearing, and has provided no acceptable reason for absence, the law requires the court to assume a plea of not guilty. If, as here, a defence has been raised in the police interview, then the court will fix a date for trial calling those witnesses whose evidence can reasonably be considered to be in dispute. Had there been admissions of guilt in the interview, or had no defence been raised, then in our view the best approach would be to fix a hearing without the attendance of witnesses, whose statements should then be served on the defendant by way of section 9 CJA (see Criminal Justice Terms and Abbreviations). In either eventuality the defendant must be notified of the trial date by post (or indeed in person) at the address given to the police. If Ben then 233

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fails to attend on the day of trial, and again provides no acceptable reason for his absence, the law requires the court to proceed in absence. In our view, the law is clear that the case must proceed in this way. However, some courts consider it to be in the interests of justice simply to issue a warrant not backed for bail. We believe the better course is only to issue a warrant if there are concerns about the safety of Ann or, possibly, if the defendant gave no address. A trial date will be fixed. Where the defendant is present, the PET form will show which witnesses are required and will provide a timetable for each of them. If some actions remain to be undertaken, such as service of any further evidence or disclosure, then the court will probably give directions as to when this should be done. Proper case management at the first hearing can take considerable time, but almost always saves time in the long run by ensuring that the trial concentrates only on matters in dispute. The listing arrangements in the NGAP court should ensure that there is sufficient time for each case to be properly managed ready for trial. Between the first hearing and trial

The prosecution and the defence both have a duty to advise the court in advance if the case is not trial ready. For example, a direction may have been given for the provision of disclosure, and if that direction is not complied with by the date set then the court must be notified and a hearing may well be arranged to resolve the matter. Sometimes it is necessary to vacate the trial date. If an adjournment is applied for, and refused, then the trial must go ahead on the original date unless there are new arguments that were not put before the court when the application to adjourn was refused. The trial

If Ben has been notified of the trial date, and fails to attend, then unless he has given an acceptable reason for that failure the trial will take place (see the Lord Chief Justice’s Practice Direction, see Appendix 2). If Ann fails to attend then it is probable that the prosecution will apply for an adjournment to secure her attendance. If a witness summons has 234

Appendix: A typical domestic violence case

been issued and served on her, then it is likely that attempts will be made to locate her and bring her to court for the trial. If she cannot be located in the time available, then it is may be that the Crown will apply for her arrest and if so ask that an adjournment be granted for that purpose. If, on the other hand, no witness summons was applied for at the first hearing, or a witness summons was issued but the police decided not to serve it, then it is highly likely that the application to adjourn will be refused. This is why, in our opinion, the prosecution must decide at the first hearing whether to apply for a witness summons. It is too late to wait until the trial to see if she turns up and then apply if she doesn’t. If Ann does attend, then the trial will continue, following the procedure in Part 24 of the CPR (Chapter Six above). Ben will be asked to confirm his plea. The prosecution is likely to open the case by reading the agreed facts from the original case management hearing. This will include the date, time and place of the incident, any injuries agreed, and any other agreed evidence. The defence is likely to be asked at the outset to confirm what is in dispute. This allows the court to concentrate on the disputed evidence. Prosecution evidence will be called. It does happen that a witness such as Ann gives evidence that is inconsistent with her original statement. Here the provisions of section 119 CJA 2003 will need to be considered. It may be that her original statement is admitted as to the truth of its contents. If Ann does not attend, and the prosecution application for an adjournment is refused, then the Crown will need to decide whether it has sufficient evidence to proceed in any event. In this case, the likely decision is to proceed. There will be evidence of the 999 call, the injuries, Ben’s admissions that he hit her (albeit in self-defence), his previous convictions and the evidence from the police officers who attended the scene, including the body camera evidence. After the prosecution evidence has been called, the defence can make a submission that the prosecution evidence is insufficient for any reasonable court properly to convict. In the circumstances of this case, there will almost certainly be a case to answer. It is for the defendant to raise self-defence, and Ben must do so by giving evidence. Before he does so he will be advised by the legal adviser of his

235

Essential Magistrates’ Courts Law

right to give evidence and the potential effect of not doing so. He gives evidence, followed by any witnesses for the defence. Apart from any agreed admissions, the case management form itself does not normally form part of the prosecution evidence. (Technically it is admissible hearsay, but the higher courts have been clear that the form should not be admitted in the absence of a flagrant breach of the defendant’s duty to assist the court by identifying issues in advance.) If there is an ambush defence — something that was not raised in advance — then often it will be necessary for the Crown to call further evidence, and this may involve an adjournment. If, having heard Ben, the magistrates believe it is possible that he was acting in self-defence, then they will acquit. If they are sure he was not acting in self-defence then they will convict and give their reasons. If convicted then it is usual in a domestic violence case to ask the probation service to provide a report, and (unlike in most non-domestic violence cases) an adjournment may be necessary for the report.

236

Appendix APPENDIX 2

Adjournments: The Lord Chief Justice’s Practice Direction, April 2019

“Application to adjourn on day of trial General principles 24C.5 The court is entitled to expect that trials will start on time with all case management issues dealt with in advance of the trial date. Early engagement between the parties and communication with the court should mean that it is rare for applications to adjourn trials to be made on the day of trial, except in circumstances that could not have been foreseen. However, there will be occasions on which, on the day set for trial, the court is invited without prior warning to adjourn to another day in consequence of an event or events said to make it unjust to proceed as planned; and in some circumstances it may have been necessary to arrange to hear a contested application to adjourn a trial on the very date on which that trial is due to begin (though before making such arrangements the court should have kept in mind the need to make time available for other cases, too, where the time available for the trial will be abbreviated by the time required to hear the application to adjourn it). 24C.6 Section 10 of the Magistrates’ Courts Act 1980 confers a discretionary power to adjourn, and see also CrimPR 24.2(3). The following directions codify and restate procedural principles established in a long line of judgments of the senior courts, to some of which they refer. Therefore, these directions supersede those judgments and it is to these directions that magistrates’ courts must refer in the first instance.

237

Essential Magistrates’ Courts Law 24C.7 The starting point is that the trial should proceed. The basic approach was explained by Gross LJ in Director of Public Prosecutions v Petrie [2015] EWHC 48 (Admin): ‘…  successive initiatives  …  have repeatedly exhorted the magistracy and District Bench to case manage robustly and to resist the granting of adjournments. Although there are of course instances where the interests of justice require the grant of an adjournment, this should be a course of last rather than first resort — and after other alternatives have been considered. … It is essential that parties to proceedings in a magistrates’ court should proceed on the basis of a need to get matters right first time; any suggestion of a culture readily permitting an opportunity to correct failures of preparation should be firmly dispelled.’ 24C.8 A magistrates’ court may keep in mind that, if appropriate, the court’s decision may be re-opened (see CrimPR 24.18), and that avenues of appeal by way of rehearing or of review are open to the parties, including in a case in which it is later discovered that the court has acted on a material mistake of fact (see R (Director of Public Prosecutions) v Sunderland Magistrates’ Court, R (Kharaghan) v City of London Magistrates’ Court [2018] EWHC 229 (Admin)). The court should not be deterred from a prompt and robust determination therefore. Only if there are compelling reasons for doing so will the High Court interfere with the court’s exercise of its discretion. 24C.9 In general, the relevant principles relating to trial adjournment are these: • the court’s duty is to deal justly with the case, which includes doing justice between the parties. • the court must have regard to the need for expedition. Delay is generally inimical to the interests of justice and brings the criminal justice system into disrepute. Proceedings in a magistrates’ court should be simple and speedy. • applications for adjournments should be rigorously scrutinised and the court must have a clear reason for adjourning. To do this, the court must review the history of the case. • where the prosecutor asks for an adjournment the court must consider not only the interest of the defendant in getting the matter 238

Appendix

•

•

•

•

dealt with without delay but also the public interest in ensuring that criminal charges are adjudicated upon thoroughly, with the guilty convicted as well as the innocent acquitted. with a more serious charge the public interest that there be a trial will carry greater weight. It is, however, reasonable for the court to expect that parties should have given especially careful attention to the preparation of trials involving serious offences or where the trial has significant implications for victims or witnesses. where the defendant asks for an adjournment the court must consider whether he or she will be able to present the defence fully without and, if not, the extent to which his or her ability to do so is compromised. the court must consider the consequences of an adjournment and its impact on the ability of witnesses and defendants accurately to recall events. the impact of adjournment on other cases. The relisting of one case almost inevitably delays or displaces the hearing of others. The length of the hearing and the extent of delay in other cases will need to be considered.

The relevance of fault 24C.10 As the starting point is that the trial should proceed, a consequence of doing so without adjournment may be that the prosecutor is unable to prove the prosecution case, or that the defendant is unable to explore an issue. That may be a just consequence of inadequate preparation. Even in the absence of fault on the part of either party it may not be in the interests of justice to adjourn, notwithstanding that an imperfect trial may be the result. 24C.11 The reason why the adjournment is required should be examined and if it arises through the fault of the applicant for that adjournment then that weighs against its grant, carrying weight in accordance with the gravity of the fault. For the purposes of this paragraph, the prosecutor and those who investigated the case usually should be treated as one.

239

Essential Magistrates’ Courts Law 24C.12 If the applicant was at fault, was it serious? A fault will be serious if the relevant act or omission has been repeated, especially where it has caused a previous adjournment, or where there is no reasonable explanation for that act or omission. The more serious the default, the less willing the court will be to adjourn. 24C.13 Where a party has been at fault, did the other party, if aware of it, draw attention to that fault promptly and explicitly? CrimPR 1.2(1)(c) imposes a collective responsibility on participants promptly to draw attention to a significant failure to take a required procedural step. CrimPR 3.10(2)(d) requires each party promptly to inform the court and the other parties of anything that may affect the date or duration of the trial or significantly affect the progress of the case in any other way. If no such action has been taken by a party who could have done so then the court may look less favourably on any application by that same party to adjourn, and especially if that application reasonably might have been made before the trial date.

Length of adjournment 24C.14 Were an adjournment granted, for how long would it need to be? The shorter the necessary adjournment, the less objectionable it will be — although much will depend on the ability of the court to accommodate it without undue impact on other cases. Courts must make every effort to make the adjournment as short as possible, for example by using time vacated by another trial or by conducting the hearing at another courthouse. In some cases it may be possible to achieve a just outcome by a short adjournment to later on the same day. 24C.15 If the reason for the application to adjourn is that the applicant party seeks more time in which to raise or explore an issue, has that party reasonable grounds for its late identification despite the requirements of CrimPR 3.3(1) read with 3.2(2) (early identification of issues)? In the absence of such grounds, that failure will constitute a fault for the purposes of these directions.

240

Appendix

Particular grounds of applications to adjourn trials 24C.16 The following paragraphs identify some particular factors which may need to be taken into account in addition to those identified in paragraphs 24C.5–24C15.

Absence of defendant 24C.17 If a defendant has attained the age of 18 years, the court shall proceed in his absence unless it appears to the court to be contrary to the interests of justice to do so: section 11 of the Magistrates’ Courts Act 1980. In marked contrast to the position in the Crown Court, in magistrates’ courts proceeding in the absence of a defendant is the default position where the defendant is aware of the date of trial and no acceptable reason is offered for that absence. The court is not obliged to investigate if no reason is offered. In assessing where the interests of justice lie the court will take into account all factors, including such reasons for absence as may be offered; the reliability of the information supplied in support of those reasons; the date on which the reasons for absence became known to the defendant; and what action the defendant thereafter took in response. Where the defendant provides a medical note to excuse his or her non-attendance the court must consider 5C of these Practice Directions (issue of medical certificates) and give reasons if deciding to proceed notwithstanding. 24C.18 If the court does not proceed to trial in the absence of the defendant it is required by the 1980 Act to give its reasons, which must be specific to the case: section 11(7), and see also CrimPR 24.16(h). 24C.19 Where a defendant is under 18, there is no presumption that the court should proceed in absence. In deciding whether it is in the interests of justice to proceed the court should take into account: • that trial in absence can and sometimes does result in acquittal and that it is in nobody’s interests to delay an acquittal;

241

Essential Magistrates’ Courts Law • that if convicted the defendant can ask that the conviction be re-opened in the interests of justice, for example if absence was involuntary; • that if convicted the defendant has a right to a rehearing on appeal to the Crown Court; • the age, vulnerability, or experience of the defendant; • whether a parent or guardian is present, whether a parent or guardian ordinarily would be required to attend and whether such a person has attended a previous hearing; • the interests of any co-defendant in the case proceeding; • the interests of witnesses who have attended, including the age of any such witness; • the nature of the evidence and whether memories of relevant evidence are liable to fade; • how soon an adjourned trial can be accommodated in the court list. When proceeding in absence or adjourning the court must give its reasons.

Absence of witness 24C.20 Where the court is asked to adjourn because a witness has failed to attend, the court must: • rigorously investigate the steps taken to secure that witness’ attendance, the reasons given for absence and the likelihood of the witness attending should the case be adjourned; • consider the relevance of the witness to the case, and whether the witness’ statement can be agreed or admitted, in whole or part, as hearsay, including under section 114(1)(d) of the Criminal Justice Act 2003; • in the case of a defence witness, consider whether proper notice has been given of the intention to call that witness; • consider whether an absent witness can be heard later in the trial; • where other witnesses have attended and the court has determined that the absent witness is required, consider hearing those witnesses who are present and adjourning the case part-heard, provided the 242

Appendix next hearing can be held conveniently in a matter of days or weeks, not months, to avoid having to recall all the witnesses.

Failure to serve evidence in time 24C.21 It should rarely be the case that an application to adjourn based on a failure to serve evidence is made on the day of trial. The court is entitled to expect that evidence will have been served in good time and in accordance with the directions of the court. The court should consider whether the party who complains of the failure had drawn attention to it: CrimPR 1.2(1)(c) and 3.10(2)(d), and see paragraphs 24C.10–24C.13 above. 24C.22 The court must conduct a rigorous inquiry into the nature of the evidence and must consider whether any of what is sought has been served, and if so when; the volume and the significance of what is sought; and the time likely to be needed for its consideration. In particular, the court must satisfy itself that any material still sought is relevant and that the party seeking it has a right to it. In some circumstances a failure to serve evidence can be addressed by refusing to admit it instead of by adjourning the trial to allow it to be served: see R v Boardman [2015] EWCA Crim 175; [2015] 1 Cr. App. R. 33; [2015] Crim. L.R. 451.

Failure to comply with disclosure obligations 24C.23 The parties’ disclosure obligations arise from the Criminal Procedure and Investigations Act 1996. The procedure to comply with those duties is set out at CrimPR Part 15. Disclosure is not a trial issue. It should have been resolved by the parties complying with their statutory obligations and with the Rules in advance of the trial. 24C.24 Where a defendant complains of a prosecution failure to disclose material that ought to have been disclosed the court must first establish whether either party is applying for an adjournment as a result. If an adjournment is sought, the court should consider whether the matter can be resolved by the giving of disclosure immediately. If it cannot, the court should consider 243

Essential Magistrates’ Courts Law whether the parties have complied with their obligations under CrimPR 3.3 and under the provisions listed in paragraph 24C.1 above, and should consider the relevance of fault. 24C.25 If the prosecutor has complied or purported to comply with his or her initial disclosure obligations, no further material is disclosable and consequently no application to adjourn should be entertained unless the defendant has served a defence statement in accordance with section 6 of the Criminal Procedure and Investigations Act 1996 and CrimPR 15.4. 24C.26 If the defendant has served a defence statement and asks for further disclosure, in consequence of the prosecutor’s allegedly inadequate response or in consequence of a failure to respond at all, the court has no power to entertain an application for that further disclosure unless it is made pursuant to section 8 of the Criminal Procedure and Investigations Act 1996 and CrimPR 15.5. The court should consider hearing such an application immediately, provided that there is sufficient time available for the application itself and then for the defence to consider any material disclosed in consequence of it.

Managing trials within available court time 24C.27 Where there is a risk of a trials being adjourned for lack of court time the court or legal adviser must assess the priority to be assigned to each trial listed for hearing that day based on the needs of the parties, whether the case has been adjourned before and the seriousness of the offence; giving priority to any cases in which the defendant is in custody by reason only of a trial due to be heard that day. Where more than one court is sitting to deal with trials, liaison between courtrooms should occur to determine the potential for all listed trials to be heard through movement of cases. Where a case is moved from one courtroom to another and as a result is assigned to a different advocate, the court must allow the fresh advocate adequate time in which to prepare. Courts should always begin a trial by reviewing the need for witnesses and the timetable set during pre-trial case management. The court will be slow to adjourn a trial until it is clear that all other 244

Appendix trials assessed as having an equal or higher priority for hearing that day will be effective. 24C.28 The court is entitled to expect that parties will present their case within the time set during pre-trial case management. In entertaining additional applications for which no time has been allowed the court must keep in mind the expectation that the trial will be completed within the allocated time with minimal impact on other cases. 24C.29 While it is preferable to complete a trial on the date allocated, there will be occasions on which it is appropriate to adjourn part-heard, particularly where it is possible to hear the majority of witnesses. If necessary, future listings will be moved to accommodate the hearing.

Applications to vacate trials 24C.30 To make the best use of the court’s and the parties’ time it is expected that applications to vacate trials will be made promptly and in writing, in advance of the date of trial. Any application should be served on each other party at the same time as it is served on the court. As a general rule, such an application will be dealt with outside the courtroom under CrimPR 3.5. An application to vacate a trial will be considered in accordance with the same principles as those identified in paragraphs 24C.5–24C.26 of these Directions. 24C.31 Given the binding nature of any decision on an application to vacate and refix a trial, absent a change of circumstances, it is incumbent on the parties to provide full and accurate information to the court to enable it to assess where the interests of justice lie: see R (on the application of F and another) v Knowsley Magistrates’ Court [2006] EWHC 695 (Admin); R (Jones) v South East Surrey Local Justice Area [2010] EWHC 916 (Admin), (2010) 174 JP 342; DPP v Woods [2017] EWHC 1070 (Admin). Any application should, as a minimum, include (as should, as appropriate, any response): • the reason for the application;

245

Essential Magistrates’ Courts Law • a chronology of the case, recording the dates of compliance with any directions and of communication between the parties; • an assessment of the interests of justice, addressing the factors identified in these Practice Directions and indicating the likely effect should the court conclude that the trial should proceed on the date fixed; • any restrictions on the future availability of witnesses; • any likely changes to the number of witnesses or the way in which the evidence will be presented and any impact on the trial time estimate. 24C.32 On receipt of an application each other party should serve that party’s response on the court and on the applicant within 2 business days unless the court otherwise directs. Any request for the matter to be determined at a hearing should be served with the application to vacate the trial or with the response to that application, as the case may be, together with the reasons for that request, to enable the court to decide whether a hearing is needed.”

246

Index

A

assault 125

absence 234, 241

attendance at court

absent defendants 40, 199 abuse of process 83 acquittal 55

failure to attend 42 austerity 210

actual bodily harm. See assault

B

adjournment 86, 197, 237–246

bail 20, 40, 67

Administrative Court 215

arrest warrant 26

adversarial system 55, 83

bail conditions 70, 124

Advisory Committee 195

extension of bail 30

advocate 20, 63, 102, 215

failure to surrender to bail 123

defence advocates 189 affirmation 20, 25, 93, 117

no bail in murder 67 presumption of 67

age 50, 60, 77, 170

binding-over 188

aggravation 150, 152, 169

black or ethnic minority 55

aggravated vehicle-taking 140

bladed articles 150

agreed facts 92

blitzes 201

alcohol 170

blood analysis 41

allocation 45, 48, 57, 205

Bow Street Runners 16

ambush 236

burden of proof 120

ambush defence 119, 155 ancillary orders 185–188

C

apology 165

candour 28

appeal 22, 54, 86, 89, 205, 216

case law 216

application 23

case management 21, 46, 61, 102, 130, 193,

special measures 76 arrest 25, 224 resisting arrest 129

197, 231 case stated 62, 215 case to answer 90

247

Essential Magistrates’ Courts Law caution 217

Criminal Procedure Rules 22, 196–197,

CCTV 64, 116, 194

218

drink driving and 132

cross-examination 63, 91, 120

missing CCTV 85

Crown Court 21, 44, 46, 218

character bad character 30, 62, 107 good character 106

sending for sentence 176 sending for trial 57 Crown Prosecution Service 19, 197, 219

charge 27, 37

culpability 168

circuit judge 218

curfew 180

civil jurisdiction 23

custody

Clickshare 194

custody officer 20

closure order 32

custody threshold 170

codes of practice 23

custody time limit 70

common law 90

mandatory custody 148, 150

communication aids 80 community impact statement 190

D

Community Justice Courts 196

defence 155–166

community penalty 179 community psychiatric nurse 50

hip flask defence 134 defendant 75

compensation 186

unrepresented defendant 20, 208

complaints 195

young or vulnerable defendants 75

confessions 103 confidence 84, 224 public confidence 84

delay 41, 193, 201, 238 effect on witnesses 55 deprivation of property 188

consistency 196

destruction 148, 150

contempt 164

detention 224

corrosive substances 148, 152 costs 91, 186–187 first hearing 72

temporary detention 165 direction 61, 77 on the accused’s character 106

credibility 106, 141

Director of Public Prosecutions 219

crime reduction 167

disability 76

criminal behaviour order 31

disclosure 64, 234, 243

criminal damage 44 Criminal Practice Direction 22, 105, 183

adjournment for 88 streamlined disclosure 65 discretion 13, 15, 26, 99, 193

248

Index discrimination 71

right to give evidence 91

dishonesty 137, 141

strength of 67

disorder 32

video recorded evidence 77

disorderly behaviour 144, 146 public order 142

weight given to evidence 95 excess alcohol 41, 130

disqualification 181, 226

experts 104

district judge 16, 19

extended court hours 206

diversion scheme 51 Divisional Court 84, 215

F

dock 20, 70

facts 52, 59

dock identification 113

agreed facts 235

domestic violence 33, 230

disputed facts 91

drink driving 130

fairness 83, 91, 101, 165

drugs 25, 134, 170

fair trial 75, 200, 220

drug driving 134

hearsay and 94

due diligence 219

Fielding, John 16

duress 160

fines 182

duty solicitor 20, 209, 220

firearms 25, 76 firearms in court 72

E

fitness to participate 51

either-way offence 21, 44

forensics 41

electronic monitoring 180

forfeiture 148, 150, 166

emergency workers 127

freedom of expression 220

endorsement 226

freeman of the land 209, 220

escaping 163 European Convention 195, 220

G

evidence

grave crimes 61, 229

Achieving Best Evidence 77

ground rules 81

by an intermediary 75, 79

grounds 24

circumstantial evidence 110

guardianship order 53

DNA evidence 41

guidelines

evidence in private 80 exclusion of evidence 93

Magistrates’ Court Sentencing Guidelines 168

expert evidence 104 “no evidence” 88

249

Essential Magistrates’ Courts Law

H

issues 232

handling stolen goods. See theft harassment, alarm or distress 146

identifying the issues 200

harm 168

J

hearsay 30, 62, 91, 94

Judicial Appointments Commission 19, 195

notice of 102 High Court 54, 84

Judicial College 197

hip flask. See defence

Judicial Conduct Investigation Office 195

hospital 50 hospital order 53 householders 156 human rights 28, 37, 83, 145, 161 hearsay and 101

judicial review 23, 89, 215 jurisdiction 205, 228 excess of jurisdiction 215 inherent jurisdiction 75 jury trial 21, 54

I

justice

identification 110, 153, 224

interests of justice 30, 77, 87, 92, 95, 234

imprisonment 21, 173

justices of the peace 15

incapacitant spray 72

open justice 36

independence 195

simple, speedy justice 14, 238

indictment 221 indictable offence 57

K

indictable-only offence 44

knives 76, 148

information 37 inherent powers 79

on school premises 152

insanity 52

L

insults 142, 165

lawful

interference with a motor vehicle 139

lawful excuse 159

interpreters 80

lawfulness 163

interruption of proceedings 165

lawyers 43

interview

lay magistrates 16

failure to answer questions 114 intimidation 80

leading questions 118 legal

intoxication 126, 162

legal adviser 20, 91, 222

investigation 64, 224

legal aid 43, 209, 213, 220

“under investigation” 41

250

legal executive 20

Index legal representation 20 before custody 173

O oath 25, 26, 93, 117, 223

Leveson Review 199

judicial oath 20

lies 116

oath of allegiance 20

live-links 75, 78

objectives 83

Lord Chief Justice 195, 218, 225

obstruction 163

Lucas direction 116

M

highway of 158 offence statement of offence 37

maturity 50, 60, 77

open justice 90

means form 182

opinion 104

medical report 52

oppression 102–103

memory 55 refreshing memory 117 mental health 50 arrest warrant 26

P paperwork 38 Peel, Sir Robert 16

misbehaviour in court 164

persistent offenders 172

mistake 90

photography in court 166

honest mistake 129 mitigation 58, 169, 178, 189 mobile phones 165 mode of trial 42, 43, 45 co-defendants 46, 59, 120–121

N

place of safety 26 plea 47 discount for a guilty plea 44 online plea 204 point of law 155 police 19, 203 assault on police 128

National Probation Service 224

execution of duty 163

natural justice 215

Police and Criminal Evidence Act 1984

Newton hearing 189 no case to answer 119 “no comment” 114

23 police caution 217 police in court 211

noise 29

precedent 216

no separate penalty 127

prejudice 77

nuisance 29, 32

pre-sentence report 173, 177, 181, 224 press restrictions 36 prevalence of offending 183, 190

251

Essential Magistrates’ Courts Law prevention of crime 158

relevance 91

previous convictions 141, 169, 179, 184,

reliability 91

232 probation 224 probation service 21

religious aggravation 127 remand 219 credit for remand in custody 190

prohibited activity requirement 180

remorse 185

promise

re-offending 172

implied promises 177

re-opening cases 89

propensity 106

reparation 167, 179

proportionality 160

requirements

prosecution 19, 90

community requirements 178

prosecutor 189

requisition 19, 27, 202, 225

protection

res gestae 225, 233

protecting the public 167

restriction of liberty 179

protection order 33

restriction order 53

psychiatric report 51 public public confidence. See confidence public order. See disorder punishment 167

R

rights 83 right of entry 28

S screens 79, 233 search 224 secondary legislation 22

racial aggravation 127

security 72

reasonableness 145, 159

self-defence 126, 149, 155, 163, 232

reasonable doubt 83 reasonable excuse 149 use of force 156 Wednesbury unreasonable 228 reasons 54, 91, 120, 165, 186, 211, 241 special reasons 226

sentence committal for sentence youth court 61 common assault 126 deferment of sentence 186 indication of sentence 177, 221

recorder 218

pre-sentence report 21

records 25

purposes of sentencing 167

reform 167

reasons for sentence 190

rehabilitation 167, 172, 178, 180, 224

reopening sentence 191

related offences 59

sentence discount 174, 184

252

Index Sentencing Council 196, 225

threats 125

sentencing discount 221

time limit 102, 123, 216, 227

sentencing guidelines 22, 56, 168

custody time limit 219

seriousness 67, 69, 168, 180, 182

for laying an information 38

sexual offences 80

time-limiting advocates 200

shoplifting 44, 137

torture etc. 103

silence 113

totting-up 227

single justice 231

training 19

single justice procedure 196, 203

trial 234

slavery 76, 80, 161

“cracked” trial 88, 202

slip rule 89

Preparation for Effective Trial 61

special measures 75, 94, 233

trial in absence 89

special reasons 188

truth 94, 106, 107

spent convictions 224

Turnbull direction 111

statement 231 agreed statement 232

U

written statement 225

unpaid work 180

statutory declaration 29 stay of proceedings 83

V

suitability 179

venue 60

summary

verdict 120

summary offence 21, 47 summary trial 54

victim 36, 185 victim personal statement 190, 231

summons 19, 27, 40

Victim Support 225

support services 50

victim surcharge 165, 186, 187

suspended sentence 177

video-link 72, 194 evidence by police officers 211

T

violence 125, 143

taken into consideration 186

vulnerability 50

taking without consent 139 Taser 72

W

technology 193

warrant 203

theft 25, 137

arrest warrant 25

going equipped 140

noise nuisance 29

handling stolen goods 141

non-attendance at court 42

253

Essential Magistrates’ Courts Law search warrant 23 utility warrant 28 weapon offensive weapons 148 witnesses 117, 200 absent witness 98 anonymity 80 competence 93 distress 76 fear 76 hostile witness 99–100 summons/warrant 26 vulnerable witnesses 75, 194 Witness Intermediary Scheme 79 witness template 63

Y youth 49, 60, 75, 121 youth court 49, 228

254

Emma Arbuthnot, Senior District Judge for England and Wales John Bache, Chairman, Magistrates Association Duncan Webster, Chairman, Magistrates’ Leadership Executive

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