2. English Legal System Procedure for disclosure in criminal cases and summary trial

3. Aims The aims of this lecture are to: 1.To introduce the form of disclosure for criminal cases; 2.To revise the way that proceedings are started in the Magistrates’ Courts; 3.To look a the possibility of summoning witnesses in a criminal trial; 4.To look at the structure the sentencing powers in the Magistrates’ courts.

4. Outcomes By the end of this lecture you should be able to: 1.Describe the different methods of disclosure in the Magistrates’ and Crown courts; 2.Describe the procedural aspects of starting a case in the Magistrates’ Courts; 3.Describe how and in what situations witnesses may be summoned for trial; 4.Describe the conduct of a summary trial in the Magistrates’ Courts and the sentencing powers which these courts possess.

5. What is Disclosure? The duty of the prosecutor to disclose the evidence which is at its disposal to the defence Rationale – why do we have disclosure?

6. The sources for the Law relating to Disclosure Common law Duty to provide advance information – the material that they intend to rely on at court Duty to supply to the defence any material of relevance upon which they do not intend to rely The Criminal Procedure and Investigations Act 1996 (CIPA)

7. The Scheme of the CIPA 1996 The police officer investigating an offence has a statutory duty to make records and store material The prosecution must inform the defence of material upon which they do not intend to rely (“primary disclosure”) The defence must then inform the prosecution of the case on which they intend to rely at trial Defence disclosure gives rise to the prosecution’s duty to make secondary disclosure

8. Primary Disclosure The test for primary disclosure is a subjective test It is what in the prosecutor’s opinion is evidence which ‘might undermine the case for the prosecution against the accused’ Primary prosecution must, under s.13, take place as soon as is ‘reasonably practicable’ The test is wide and includes material other than that which fundamentally undermines the case for the prosecution Vasiliou [2000] Crim LR 845 – previous convictions of Prosecution witnesses

9. Defence Disclosure This is provided for in s.5 of the Act It will take the form of a Defence case statement It should set out any alibi and also the general nature of the defence and reasons for disputing the prosecution’s evidence Specific particulars of the alibi must be given Tactical decision by the defence

10. Secondary Disclosure An objective test for secondary disclosure by the prosecution S.7 of CIPA requires the prosecution to disclose material that ‘might reasonably be expected to assist the accused’s defence as disclosed by the defence case statement’

11. What happens after Secondary Disclosure? S.8 applications by the defence The Duty of the Prosecutor to keep disclosure under review

12. Public Interest Immunity Recognised since the end of the 19 th century that there may be circumstances in which the public interest outweighs the defence right to disclosure – for example in relation to police informants The Court decides whether this is the case and NOT the Prosecution This is still the case under the statutory regime – the Prosecution is required under the Code of Practice to list whether something is potentially sensitive material

13. Consequences if the Defence do not disclose If the defence fail to make disclosure, then the prosecution do not have to make secondary disclosure Under s.11 deficiencies in the Defence disclosure may be commented on by the court and adverse inferences may be drawn The circumstances may be summarised as: 1)Failure to disclose; 2)Out of time; 3)Inconsistency within the statement; 4)Inconsistency between statement and defence; 5)Failure to give details of an alibi; 6)Alibi witness is called at trial who was not mentioned in the statement.

14. Lucas [1981] QB 720 If the judge decides to allow a jury to draw an inference in a trial on indictment then there may be a need for a Lucas Direction The judge would need to direct the jury to consider whether: 1.The lie was deliberate; 2.It relates to a material issue; 3.The motive for the lie is a realisation of guilt and a fear of the truth.

15. Disclosure in summary trial The scheme examined above is what happens in trial on indictment In summary proceedings the prosecution have the duty to make primary disclosure The defence do not have to serve a statement (s.6) Tactical question as to whether they should or should not

16. Summary Trial Summary Trial is hugely important in this country – c.97% of cases start and finish in the Magistrate's Courts By virtue of s.2 (3) and (4) of the MCA 1980 a Magistrates’ Court has the jurisdiction to try an offence triable either way regardless of where it was alleged to have been committed 2 exceptions – Jurisdiction of English Courts, and with either way offence the accused must consent

17. The Bench of Magistrates Who are the Magistrates? To try an information summarily there must be at least two justices The maximum that may sit is three The normal composition is three The Court Clerk – professionally qualified lawyer

18. The District Judge Formerly a Stipendiary Magistrate Sits in busy courts up and down the country Can sit alone

19. The Information Forms the essence of the charge to which the accused pleads guilty or not guilty at the start of a summary trial Three Ways in which the information is brought before the court: 1.The prosecutor puts the allegation in writing; 2.The prosecutor makes the allegation orally to the court; 3.The allegation is recorded on a charge-sheet at the police station.

20. Time Limit on Laying an Information The information must be laid within six months of the commission of the offence – if it is a summary only offence It must contain therefore: 1.The date of the offence; 2.The date the information was laid.

21. When can the Magistrates proceed in absence of D? S.12 MCA allows the accused to plead guilty by post If the accused has not indicated this intention, then we look at ss.11 and 13 for the options available to the bench

22. Limitations on Magistrates in absence of D A custodial sentence may not be passed in the absence of D Nor may they disqualify him from driving unless the case had been adjourned previously and he has failed to turn up

23. If the prosecution do not turn up, the Magistrates may: 1.Adjourn the matter; 2.Dismiss the Information.

24. Legal Representation Both barristers and solicitors have rights of audience in the Magistrates’ Courts Litigants in person McKenzie Friends

25. The Course of a Summary Trial 1.The Plea The Clerk puts the information to the Defendant D can plead guilty or not guilty If silent a plea of not guilty is entered on his behalf

26. 2. The Prosecution Case If D pleads not guilty, the prosecution have the right to an opening speech Calls witnesses – examination-in-chief, cross-examination and then re- examination

27. Summoning witnesses If P or D wish to summon a witness that they think might not otherwise attend they should apply to the Magistrates under s.97 MCA for a summons If W does not then attend and various other tests are complied with, then a warrant may be issued for W’s arrest

28. The Prosecution’s Case The Prosecution have to prove every element of the offence charged The burden of proof is on the prosecution The standard of proof is ‘beyond all reasonable doubt’

29. What if they don’t do it? 3. Submission of No Case to Answer When is it appropriate? Essential element of the offence missed P evidence discredited thoroughly XC P evidence so manifestly unreliable that no reasonable tribunal could safely convict

30. 4. The Defence Case The defence may call evidence D competent, but not compellable After evidence the advocate for D has right to a closing speech – P do not have such a right

31. Sentencing Powers in Magistrates Not more than six months for any one offence triable summarily and/or a fine of £5,000 Up to twelve months for two offences triable either way The Magistrates will hear whether the defendant has a criminal record to help them pass sentence in the case S.3 PCC(S)A 2000

32. Summary of lecture You should now be able to do the following: 1.Describe the procedure for disclosure in the Magistrates’ and Crown Courts; 2.Identify the sanctions which are available to the court if the orders for disclosure are not complied with; 3.Describe in what circumstances witnesses will be summoned to the court to give evidence in the trial; 4.Outline the basic course of a summary trial in the Magistrates’ Courts; 5.State what the sentencing powers of the Magistrates are.

33. Further reading See Slapper, G. and Kelly, D., The English Legal System (London: Cavendish Press, 2004, 7 th edition) Zander, M., Cases and Materials on the English Legal System (London, Butterworths, 2003, 9 th edition)