|A BRIEF GUIDE TO TRIAL PROCEDURE IN THE MAGISTRATES’ COURT|
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Every offence falls into one of three categories:
a. Summary trial Trials for most minor arrests arising from direct action will take place in a magistrates’ court. These courts hear over 90% of all cases in Britain, and the Crown Prosecution Service (CPS) will usually do their utmost, except in very serious cases, to keep ‘political’ cases out of Crown court, to the extent of not infrequently reducing charges to a level that can only be heard by magistrates. Most cases are heard by ‘lay’ - unqualified - magistrates. They are supposedly ordinary members of the community who are not paid for their services, and have little legal knowledge but are advised on law by the clerk of the court (a qualified lawyer). They usually sit in threes, or occasionally twos. Sometimes cases may be heard by a single ‘stipendiary’ magistrate, who is a qualified lawyer.
b. Trial on indictment There are few offences triable on indictment only which might be used against activists, with the exception perhaps of conspiracy (to commit an offence), which is in fact rarely used. It remains to be seen whether activists might be caught by the provisions of the Terrorism Bill if it passes into law.
c. Either way offences These include criminal damage over £5000, going equipped to commit criminal damage, and many other offences. The magistrates in front of whom you first appear have to decide whether the case is suitable for summary trial. If they decide it isn’t (ie that it’s too serious to be heard in a magistrates’ court), the case will be sent to Crown court. If they decide the case is suitable, the defendant can accept this or insist that the case goes to Crown court.
New proposals put forward by the government would take this right away from the defendant, and leave the decision entirely up to the magistrates. In making their decision, the magistrates would have to consider not only the seriousness of the alleged offence but also the effect a conviction would have on the defendant - ie would it harm his/her reputation, cause him/her to lose their job etc. This suggests that activists with long records would be sent to magistrates’ courts (where the conviction rate is far higher than in Crown court) on the basis that they had no reputation to defend, and so would have to put up with second class justice.
At the moment, however, the choice is still ours. Most people choose Crown court, on the basis that you’re more likely to get a sympathetic hearing from 12 ordinary people than from three probably very establishment magistrates. Factors to consider in making your choice include:
Before you make a decision, you are entitled to be given a summary of the prosecution case against you (‘advance disclosure’), which may influence what you decide to do. The worst thing you might do would be to plead not guilty, ask for the case to be heard in the Crown court, then change your mind and plead guilty, thereby being sentenced in the Crown court without having had the advantages of having a trial there. Bear in mind though that even if you choose to be heard in the magistrates’ court, the magistrates can if they wish send your case to the Crown court for sentencing if they feel their sentencing powers are insufficient, and the offence carries a maximum of more than six months imprisonment. This however is unlikely except in very serious cases.
a. First hearing (plea hearing)
When you’re charged and released on bail from the police station you will be given a date to attend court. This will usually be within just a few days, and often on the next day. If you are not sure by then how you wish to plead, you can ask for an adjournment. A good reason for this might be that you want to consult a solicitor and have not had enough time to do so. The court will usually allow an adjournment of one or possibly two weeks, especially if there has been very little time to prepare your case.
Not guilty pleas. If you plead not guilty your case will be adjourned for a pretrial review (see later). If you’re pleading not guilty and don’t want to go to the first hearing, you can try contacting the clerk of the court ahead of time and asking if a plea of not guilty can be entered in your absence - this will sometimes be accepted.
Guilty pleas If you’re pleading guilty, you have to appear in court, and will often be sentenced on the spot (see ‘sentencing’ below), unless it’s a serious offence in which case the magistrates may want you to return for sentencing. You might want to object to this as it’s just more hassle - try saying you can’t afford to come back again or are about to leave the country for some time.
Either way offences If you’re charged with an ‘either way’ offence there is a special procedure called ‘plea before venue’. If you plead not guilty, the magistrates will hear submissions from the prosecution and from you on whether your case should be dealt with in the magistrates’ court or not.. If they decide it can be dealt with in the magistrates’ court then you will be asked if you want it dealt with there or in the Crown court. If the magistrates decide or you ask for Crown court trial then the case will be adjourned for a committal hearing (not discussed here - contact us for more information).
If you plead guilty to an either way offence then you might be sentenced there and then but if the magistrates don’t think their sentencing powers are sufficient you could be sent to the Crown court for sentencing.
b. Pretrial review
This is the hearing where details of the trial are decided - it may be dispensed with in very minor cases. Each side will be asked how many witnesses they’ll be calling, and the court will decide how many days should be set aside for the trial. It’s also a chance to ask for documents you might not have got (for instance, you can in some circumstances ask for copies of all the prosecution witness statements) and to tell the court if you’re going to need special facilities for the trial, eg a video recorder or slide projector. A date will be set for the trial. Note that you don’t have to go along with whatever date they want - speak up if you can’t manage that date, and ask for it to be moved. It is important to ensure that you have available at a pre-trial review/plea and directions hearing details of the dates when you or your witnesses cannot attend court so that you can make sure any date fixed is convenient to both you and your witnesses.
a. Prosecution opening speech. The prosecutor will briefly outline the case against the defendant(s) and set out the evidence that will be called during the trial.
b. Prosecution witnesses Each person’s arresting officer will be called to testify that they arrested X at such and such a time and place, for whatever offence. They will describe the circumstances surrounding the arrest and should also bring up anything you may have said at the time of arrest or when charged with the offence. If they don’t, you may want to ask them what you said (they may have ‘forgotten’ though). If the police wish to refer to their notes (which they usually do) then they must ask for permission from the court to do so. They will usually be given permission provided the notes have been made as soon as practicable after the arrest and while the incident was still fresh in their mind (which of course they always claim is the case).
There may be other witnesses relevant to the case - for instance eyewitnesses to the alleged offence, a local council highways officer to prove that the road in question was a public highway (in highway obstruction cases), or someone from the company whose property was damaged to testify to the amount of damage done (in criminal damage cases) (but see section 9 statements below).
d. Prosecution re-examination of its witnesses The prosecution at this point has a chance to clarify any points with its witnesses which may have arisen as a result of the defence questioning. The magistrates are also entitled to ask questions to clarify any points which are not clear.
e. Submission of no case to answer This is optional, but at this point any or all of the defendants have the chance to make a submission that there is no case to answer - ie that the prosecution has failed to produce enough evidence to prove their case. If the magistrates agree to this, the case will be dismissed and you can ask for costs. This is unlikely! Often (in fact usually) the court charges straight on after the prosecution case without offering the defence the chance to make a submission, so you should be ready to leap to your feet at the appropriate moment and politely request a chance to be heard.
f. Defence witnesses Normally each side is permitted to make only one speech - the prosecution makes an opening speech, and the defence a closing speech. If however you want to say a few words outlining your case before you call your witnesses, you’ll probably get away with it. There are broadly four types of evidence that you might want to bring:
The defendant’s evidence If you (the defendant) have decided to give evidence yourself, you always go into the witness box before any witnesses you might be calling.
You don’t have to give evidence yourself but if you don’t, the court will warn you that it can take into account your failure to do so when it comes to make a decision on your guilt or innocence. Before you give evidence you’ll be asked to take the oath (put your hand on a religious book and swear to tell the truth). For those not of a religious persuasion, you’re allowed to affirm instead (reading a statement from a card promising to tell the truth) but the court doesn’t always tell you this.
If you do give evidence, you can either take the stand and make a statement (you’re not allowed to read a prepared statement but can usually get away with using short notes to remind yourself of what you want to say - tell the magistrates you’re nervous and worried about forgetting things if they try to stop you taking notes into the witness box), or you can be questioned by your co-defendants (or solicitor if you’re represented), or a combination of the two.
What often works well is to brief your co-defendants about what you want to come out in your evidence, and if you forget any of it when you’re making your statement, they can ask you appropriate questions afterwards. Magistrates always like you to confine yourself to the circumstances of the arrest but you can usually manage to bring in other issues by relating them to what happened on the day (eg “I was sitting on the road thinking about all the representatives from repressive regimes who would be attending the arms fair.”)
Witnesses to fact These are people who were there when you were arrested and saw what happened, or can provide some other factual information - for instance an alibi. Note that witnesses to fact are not allowed in the courtroom before their evidence is heard. If they’re in court during the early part of the trial, they won’t be allowed to testify. Note that you cannot ask leading questions (that is, questions which suggest the answer, such as “Isn’t it true that Officer Plod hit me over the head before he arrested me?”) of your own witnesses to fact.
Expert witnesses These are people who are expert in their field either by virtue of academic qualifications or because they’ve studied the subject extensively. Unlike witnesses to fact, who are allowed only to say what they saw/heard etc, expert witnesses are allowed to state their opinion on the issue. The prosecution is likely to object to most expert witnesses and you should have arguments ready as to why they’re relevant to your case. If you’re calling experts, you must give the prosecution a statement from them, outlining what they’re going to say, at least a week before the trial (ask a solicitor for the appropriate form). If you fail to do this, it’s likely your experts will be disallowed.
Character witnesses These are the last to be called. Basically their function is to say what a good upstanding member of the community you are, in order to try to influence the court in your favour. It might be worth calling a character witness but they must be of good character themselves (‘good character’ in this context meaning having no criminal convictions) and obviously the more respectable they look, the better. Be warned that if you produce a character witness, the prosecution then has the right to impugn your supposed good character - that is, to raise any previous convictions you might have, which otherwise can’t usually be mentioned until you’re convicted. If you have no criminal record, this isn’t a problem - the prosecution can’t raise anything other than convictions, whatever they might think of you! For those with criminal records, character witnesses are usually best avoided.
Section 9 statements If any of your witnesses can’t come to court in person, you can submit what’s called a ‘section 9’ statement from them (forms available from solicitors), to be read out in court. However, a section 9 statement can only be read with the consent of the prosecution, who may well not agree as it means they don’t have the chance to cross-examine the witness. Likewise, the prosecution can ask to use a section 9 statement for their witnesses - you don’t have to agree to this and can demand that the witness come to court. Whilst it’s your right to have all the prosecution witnesses present in court, the magistrates will not look kindly on you - and may penalise you with heavier court costs if convicted - if you insist on witnesses being there if you have no intention of challenging their evidence.
g. Cross-examination of defence witnesses
The prosecution can cross-examine each defence witness in turn. In terms of cross-examining you, the prosecution will usually want you to restate what happened at the time of your arrest (even if you’ve just said it all in your own evidence) to make absolutely certain the court is clear that you admit the offence (if you are admitting it, which you may not be in some cases). So, in a case of highway obstruction, for instance, you might be asked to confirm that you sat in the road, that you knew you were causing an obstruction, that you heard your arresting officer ask you to move, and that you failed to do so. Often it’s possible to get some relevant facts out along with your answers - for instance if asked if you knew you were obstructing the road, you might say that you knew (or hoped) that you were obstructing the passage of representatives of repressive regimes.
It is not unknown for prosecutors, for reasons known only to themselves, to use the cross examination to fish for information totally irrelevant to the case. At a recent arms fair trial one defendant was asked repeatedly to reveal with whom he travelled to the action, and pressed to give the names of the organisers. This is clearly an abuse of the process and if confronted with questions like this you’d be well advised to turn to the magistrates and ask sweetly if they could explain the relevance of such questions. If there are any questions you don’t want to answer you can refuse outright to do so, but the court is allowed to draw ‘adverse inferences’ from your silence.
h. Defence re-examination of its witnesses
After the prosecution has cross-examined your witnesses (if they wish to), the defence has the chance to ask further questions to clarify anything raised.
i. Defence closing speech
This is the chance for you each to sum up the legal or moral elements of your defence, to highlight the evidence pointing to your innocence, and to invite the magistrates to acquit you.
j. The decision
The magistrates may retire to make their decision. Coincidentally, this usually takes about the same time as it takes to have a cup of tea, so you probably won’t be waiting long. They’ll return to the court, ask you to stand up, and announce their verdict. If you’re acquitted, you should ask for your expenses to be met - travel to every court hearing, phone calls, photocopies, stamps, travel to meetings with legal advisers etc. It’s worth preparing a list of expenses before the trial just in case! If you’re convicted, the court will proceed to sentence you.
If convicted, and before sentencing, you should be given the chance, if you wish, to make a statement of mitigation - ie to tell the court why you should be treated leniently. This seems to be where people might say that they committed the offence because they were under a lot of pressure at work, their marriage was breaking down, they had financial problems, whatever. You can call character witnesses to testify to the effects a severe sentence would have on you. In political cases mitigation is less obviously relevant - some people use the opportunity to make a final statement about the issue, whilst others feel that it’s grovelling to the court and prefer not to say any more once convicted.
Before each defendant is sentenced, the prosecution will read out their previous convictions. These may affect the sentence imposed so in a joint trial people may well end up with different sentences for the same offence. Courts are required to give credit for a plea of guilty entered at the earliest opportunity (ie at the first hearing), and this should be reflected by a reduction of any fine (not compensation) or sentence by up to a third.
Sentencing options, in increasing order of severity, are:
a. Absolute discharge This is a conviction, but the magistrates decide to take no further action against you. It basically means that the court has found you are technically guilty but that there is no moral culpability.
b. Conditional discharge Given for a set period of up to two years. If you’re convicted of another offence within the period of the conditional discharge, you will be in breach of it and could be given a further sentence for the first offence at the same time as you’re sentenced for the second one.
c. Fine Used in 80% of magistrates’ court convictions. The amount should be linked to your ability to pay, but often defendants are all given the same regardless of their income. You’ll be asked what your income is. If you intend to pay the fine, this isn’t a problem, but if you intend not to pay, you might want to think twice before giving this information since it might mean that at a later date the money can be taken from your wages or dole. You do not have to provide this information, but what might happen if you don’t is that the magistrates get miffed, say they’ll have to assume you’ve got lots of money, and give you a bigger fine than they might otherwise have done.
d. Community service The court can sentence you to between 40 and 240 hours. If you do not consent to it you may well get prison instead. Before the court can impose a community service order they must obtain a pre-sentence report. This may require an adjournment.
e. Electronic tagging This was only brought in as a sentencing option at the end of 1999 and the proposals have not been fully implemented yet.
f. Prison Immediate imprisonment is uncommon for minor political offences, unless the defendant has a number of previous convictions. Courts should not sentence someone to prison who has not already served a sentence unless they are ‘of the opinion that no other method of dealing with him [sic] is appropriate’. In addition, courts should not pass a sentence of imprisonment on someone who has not previously been to prison unless they are legally represented, but this condition can be waived if you have refused legal representation. They should also not sentence anyone to prison without a pre-sentencing report unless they have previously served a prison sentence, although this will be waived if you refuse to co-operate with it.
The maximum sentence a magistrates’ court can impose is six months for one offence and twelve months for two or more offences (but note again that magistrates may send a convicted defendant to Crown court for sentencing if they feel that this is insufficient and the offence carries a possible sentence greater than six months).
Whatever your sentence, you will usually be ordered to pay court costs. On a guilty plea the usual figure is around £50. For a trial lasting a day in the magistrates’ court the costs could be between £100 and £200. You may also be ordered to pay compensation if you’ve been convicted of criminal damage or assault. Both costs and compensation are pursued in the same way as fines (see below).
a. Joint trials Having a joint trial doesn’t mean that everyone has to bring the same evidence or present the same defence. Each person has to be judged as an individual, and each person has to be given an individual verdict at the end. A joint trial offers the advantage that people can offer different defences, but you can all adopt each other’s defence so that you get lots of defences for the price of one - that is, each person, when they come to sum up, simply states that they wish to adopt the defences of all the other defendants, and then proceeds to make their own defence.
Each person can also question every other defendant’s witnesses so a witness (eg an expert on arms sales) only has to be called by one person for everyone to get the benefit of their evidence.
b. Order of defendants in joint trials
Usually defendants will be called in the order in which they are listed on the court schedule (which seems to be somewhat random). However, it is usually possible to persuade the prosecutor to bring the cases in an order which suits the defence. For instance, the first person listed may be someone who’s never been in court before and doesn’t want to go first, or the defence put together by the group may work best if people go in a particular order. A word with the prosecutor before the magistrates arrive is usually enough to sort this out - if not, appeal to the magistrates at the start of the trial.
c. Getting legal advice
Even if you decide not to have a lawyer to represent you at your trial, you could still instruct a solicitor to help you prepare your case and to represent you at the preliminary hearings, thus taking advantage of their knowledge of procedure, points of law and tactics. You could then ‘sack’ your solicitor (in the nicest possible way) just before the trial so that you can represent yourself. You may be able to get legal aid for your case, but even if the case is considered minor and would not entitle you to legal representation in court, a solicitor may still be able to advise you under the legal aid advice and assistance scheme.
d. McKenzie friends
Unrepresented defendants have the right to have a ‘McKenzie friend’ in court with them. This person can sit with the defendant, take notes, and offer quiet suggestions, but is not allowed to address the court. This right was established in a case called McKenzie v McKenzie, but since many courts are not familiar with the case, or with unrepresented defendants, it’s wise to have a copy of the judgement if you wish to have a McKenzie friend. Even if you’re confident about your defence, it can be very useful to have someone with you to take notes, leaving you free to concentrate on what’s going on. e.
e. Enforcement of fines
If you’re ordered to pay a fine or court costs, you’ll be asked how long you need to pay. This might be a specific time, say 28 days, or a rate, perhaps £5 a week. If you have no intention of paying, and are prepared to go to prison immediately, you could tell the court there and then that you won’t pay, but it’s extremely unlikely that you’d be sent to prison on the spot. More often than not they’ll give you a certain period to pay up, your protestations notwithstanding.
If you haven’t paid up by that time, the court will start enforcement proceedings against you. This process varies from court to court, but a typical process might include the following:
• The court sends you lots of letters telling you to pay up, and threatening dire consequences if you don’t.
• The fine/costs/compensation are transferred to your local court, who then start sending you more letters. Some will be in BIG RED WRITING. This stage can run and run. • Your local court sends the bailiffs to your home (they may inform you they’re doing this, but don’t count on it) to seize goods to the value of the amount you owe. Bailiffs do not have the right to force entry, but do have the right to push past you if you open the door, or to enter through an open door or window. They can only seize goods belonging to the debtor, otherwise they’re guilty of theft. You should tell everyone in the house, including visitors, not to open the door to anyone they don’t know, and to keep downstairs windows shut and doors locked. Alarming though all this sounds, bailiffs don’t usually try too hard to collect, and often content themselves with a single visit, after which they tell the court they couldn’t get into your house, and collect a nice fat fee. This fee may be added to the money you already owe the court.
• All else having failed, the court will eventually call you back to a ‘means enquiry’, to account for your nonpayment (they may summons you, or issue a warrant for your arrest). Alternatively - and not infrequently - the fine may fall into a judicial black hole and never resurface. Assuming the former, the court will once again ask you about your means; a good answer to this is that your means are irrelevant since you have no intention of paying the fine on grounds of conscience. If you’re lucky, the court will accept this and send you to prison there and then, but often they like to prolong the agony and give you more time to pay, or give you a suspended jail sentence, to be activated if you don’t pay within a given time. If this happens, a warrant for your arrest will be issued when that time expires. It’s possible the police could come to your home to arrest you and take you to prison, but nonpayment of fines is not a high priority so it’s more likely you’ll be noticed if you’re arrested again and held in custody at that point.
If you want to speed the process up, you could try handing yourself in at your local police station. Note that you can only be imprisoned if it can be shown that your nonpayment was wilful - that is, you deliberately refused to pay, rather than not paying because you had no money. If you intend to pay but can’t keep up with the payments, contact the court to arrange an alternative payment schedule, or you may find the bailiffs at your door.
The whole process of enforcement can take months, even years, which can be pretty frustrating for the determined nonpayer who just wants to get the whole thing out of the way. Sometimes it can be speeded up by contacting the court at an early stage, saying that you can’t pay the fine (don’t say you won’t pay it or they won’t co-operate!) and asking for a means enquiry.
The maximum amount of time you can be given for nonpayment of fines/costs/compensation (which are added together for these purposes) is:
Note that these are maximums; you may not get that amount of time. You only have to serve half of it.
For what it’s worth, here are some (admittedly biased) thoughts:
1. Representing yourself can involve a considerable amount of work, and many meetings with codefendants, even for fairly minor charges. However, your defence is only as complicated as you want to make it - you may wish to simply stand up and say that as far as you’re concerned, trying to stop repressive regimes from buying weapons (or whatever the case is), isn’t a crime, and leave it at that.
2. Many people are intimidated by the whole court scene, where you have to stand up and speak publicly in a very alien environment. Whilst for some people this may prove to be an insuperable obstacle, most people can work out ways of reducing the fear. You might visit the court beforehand to familiarise yourself with what goes on, have a McKenzie friend, write out everything you want to say, practise roleplaying the trial, or arrange with your codefendants to play a ‘bit part’ in the proceedings, at least until you feel more confident.
3. Representing yourself means that you usually have to show up to each court hearing (although sometimes they’ll let you miss the first hearing if you ask to plead not guilty by post), whereas if you are represented you may be excused attendance at some of the hearings. This could be a consideration if the court is a long way from your home.
1. In most political cases, the chances of acquittal, even with the best lawyer in the world, are at best slim. Given that, there’s little to lose, and much to be gained, by representing yourself (on the other hand, if you’re charged with a very serious offence which might lead to prison, you may well decide that this isn’t the time to represent yourself.)
2. Legal aid may not be granted for minor charges, so you might end up paying out a considerable sum to be represented.
3. Representing yourself in court can be very empowering. You’re an active participant in the process, rather than simply a spectator who’s not allowed to speak except to give evidence.
4. Courts often give unrepresented defendants more leeway to make ‘political’ defences. Solicitors are bound by professional rules which may limit what they’re able to say about wider political issues.
5. The trial can be seen as a continuation of the action. We did the action ourselves - why not speak for ourselves about why we did it?
We have obviously tried to be as accurate as possible. However, it would be impossible to include every point and issue in a short briefing like this. If you are in any doubt about a point, please ask us, and if we can’t answer your question we will try to refer you to someone who can.
Printed version: May 2000. Web version: July 2001.