Chapter 5: Summary trial Chapter 5: Summary trial procedure (pp 247ff) Part 37.3(3) of the Criminal Procedure Rules now sets out the order of events in a summary trial as follows: In the following sequence (c) the prosecutor may summarise the prosecution case, identifying the relevant law and facts; the prosecutor must introduce the evidence on which the prosecution case relies; at the conclusion of the prosecution case, on the defendant s application or on its own initiative, the court may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but must not do so unless the prosecutor has had an opportunity to make representations; (d) the justices legal adviser or the court must explain, in terms the defendant can understand (with help, if necessary) the right to give evidence, and the potential effect of not doing so at all, or of refusing to answer a question while doing so; (e) (f) (g) the defendant may introduce evidence; a party may introduce further evidence if it is then admissible (for example, because it is in rebuttal of evidence already introduced); the prosecutor may make final representations in support of the prosecution case, where the defendant is represented by a legal representative, or whether represented or not, the defendant has introduced evidence other than his or her own; and (h) the defendant may make final representations in support of the defence case. Thus, the sequence of events in a summary trial is:
1. The prosecutor may make an opening speech. 2. The prosecution evidence is then called. 3. The defence may make a submission of no case to answer. Unless the magistrates are minded to rule that there is a case to answer, they must give the prosecution a chance to respond to the defence submission before making their decision. The magistrates may indicate that they are minded to dismiss the case at this stage without the defence inviting them to do so, but the prosecution must be given the opportunity to make representations first. 4. The court (usually through the clerk) must inform the defendant that he has the right to give evidence and must warn the defendant of the risk of adverse inferences being drawn (under s 35 of the Criminal Justice and Public order act 1994) if he does not testify (or refuses to answer questions while testifying). 5. The defendant may then testify and call any supporting witnesses. 6. Either party may call further evidence, for example evidence in rebuttal. It is submitted that, since the defence will have just called their evidence, it is likely to be the prosecution who seek to make use of this provision. It is also suggested that the calling of rebuttal evidence should be regarded as an exceptional course of action. 7. The prosecution may make a closing speech (unless the defendant is unrepresented and called no witnesses other than his own testimony). 8. The defence may make a closing speech (thus, the defence will always have the last word before the magistrates decide their verdict). Under r. 37.3(4), where a party wants to introduce evidence or make representations after their opportunity to do so under r. 37.3(3), the court may refuse to receive any such evidence or representations. Rule 37.3(4) preserves the principle of finality by providing that the court must not receive any such evidence or representations after it has announced its verdict. Under r. 37.3(5), if the court convicts the defendant, it must give sufficient reasons to explain its decision. The same applies where the court makes a hospital order instead of convicting the defendant. Rule 37.3(6), if the court acquits the defendant, it may (but is not required to) give an explanation of its decision. Rule 37.4(2) says that a witness waiting to give evidence must wait outside the courtroom unless he or she is an expert witness. Under r. 37.4(3), before giving evidence a witness must either take an oath or affirm (i.e. promise, rather swear, to tell the truth). Rule 37.4(4) goes on to stipulate that: In the following sequence (c) the party who calls a witness must ask questions in examination-in-chief; every other party may ask questions in cross-examination; the party who called the witness may ask questions in re-examination.
Rule 37.5 deals with evidence being adduced in the form of a written statement of a witness. The party introducing the statement must read or summarise aloud those parts that are relevant to the issues in the case. Rule 37.6 applies where a party introduces in evidence a fact admitted by another party, or parties jointly admit a fact (e.g. under s 10 of the Criminal Justice Act 1967). Unless the court otherwise directs, a written record must be made of the admission. Rule 37.7 deals with cases where the defendant pleads guilty. Provided that the court is satisfied that the plea represents a clear acknowledgement of guilt, it may convict the defendant without receiving evidence. Rule 37.9 applies where the defendant seeks to withdraw a guilty plea: (2) The defendant must apply to do so as soon as practicable after becoming aware of the reasons for doing so; and before sentence. (3) Unless the court otherwise directs, the application must be in writing and the defendant must serve it on the court officer; and the prosecutor. (4) The application must explain why it would be unjust not to allow the defendant to withdraw the guilty plea; identify any witness that the defendant wants to call, and any other proposed evidence; and (c) say whether the defendant waives legal professional privilege, giving any relevant name and date. Rule 37.10 applies where the court convicts the defendant (i.e. where the defendant either pleads guilty or is found guilty after a trial). Rule 37.10 describes what must take place at the sentencing hearing:
(3) The prosecutor must (c) (d) summarise the prosecution case, if the sentencing court has not heard evidence; identify any offence to be taken into consideration in sentencing; provide information relevant to sentence, including any statement of the effect of the offence on the victim, the victim s family or others; and where it is likely to assist the court, identify any other matter relevant to sentence, including (iii aggravating and mitigating factors, the legislation applicable, and )any sentencing guidelines, or guideline cases. (5) Where the defendant pleads guilty but wants to be sentenced on a different basis to that disclosed by the prosecution case (c) the defendant must set out that basis in writing, identifying what is in dispute; the court may invite the parties to make representations about whether the dispute is material to sentence; and if the court decides that it is a material dispute, the court must invite such further representations or evidence as it may require, and decide the dispute. (7) Before the court passes sentence the court must give the defendant an opportunity to make representations and introduce evidence relevant to sentence, and where the defendant is under 18, give the defendant s parents, guardian or other supporting adult, if present, such an opportunity as well; and the justices legal adviser or the court must elicit any further information relevant to sentence that the court may require. (8) If the court requires more information, it may exercise its power to adjourn the hearing for not more than 3 weeks at a time, if the defendant will be in custody; or
4 weeks at a time. (9) When the court has taken into account all the evidence, information and any report available, the court must (c) as a general rule, pass sentence there and then; when passing sentence, explain the reasons for deciding on that sentence, unless neither the defendant nor any member of the public is present; when passing sentence, explain to the defendant its effect, the consequences of failing to comply with any order or pay any fine, and any power that the court has to vary or review the sentence, unless the defendant is absent, or the defendant s ill-health or disorderly conduct makes such an explanation impracticable; (d) (e) give any such explanation in terms the defendant, if present, can understand (with help, if necessary); and consider exercising any power it has to make a costs or other order. (10) Despite the general rule the court must adjourn the hearing if the defendant is absent, the case started with a summons or requisition, and either the court considers passing a custodial sentence, or the court considers imposing a disqualification (unless it has already adjourned the hearing to give the defendant an opportunity to attend); the court may exercise any power it has to commit the defendant to the Crown Court for sentence (and in some cases it must do so), or defer sentence for up to 6 months. Although r 37.10(5)(c) appears to suggest that, where the difference in versions put forward by the parties is significant (in that it would make a difference to the sentence passed), the court has a choice of hearing further representations or evidence, it is submitted that magistrates should follow the procedure laid down by R v Newton (1982) 77 Cr App R 13, and (if they are unwilling simply to accept the defence version of events) hear evidence (i.e. hold a Newton hearing) and then make findings of fact and sentence accordingly.
Rule 37.14 deals with the role of the justices legal adviser or court clerk: (1) A justices legal adviser must attend, unless the court includes a District Judge (Magistrates Courts); and otherwise directs. (2) A justices legal adviser must before the hearing begins, by reference to what is provided for the court under rule 37.12 draw the court s attention to (iii) (iv) what the prosecutor alleges, what the parties say is agreed, what the parties say is in dispute, and what the parties say about how each expects to present the case, especially where that may affect its duration and timetabling; whenever necessary, give the court legal advice and if necessary, attend the members of the court outside the courtroom to give such advice, but inform the parties of any such advice given outside the courtroom; and (c) assist the court, where appropriate, in the formulation of its reasons and the recording of those reasons. (3) A justices legal adviser must assist an unrepresented defendant; assist the court by (iii) (iv) making a note of the substance of any oral evidence or representations, to help the court recall that information, if the court rules inadmissible part of a written statement introduced in evidence, marking that statement in such a way as to make that clear, ensuring that an adequate record is kept of the court s decisions and the reasons for them, and making any announcement, other than of the verdict or sentence.
Chapter 5.3: The contents of the charge/information (pp 249-251) See update to Chapter 2.2.3 for details of Part 7 of the Criminal Procedure Rules. Chapter 5.7.1: Trial in absence of defendant (pp 254-256) In Drinkwater v Solihull Magistrates Court [2012] EWHC 765 (Admin), Beatson J (at [35]) said: In the House of Lords [in Jones [2002] UKHL 5], Lord Bingham stated (at [6]) that the discretion to proceed in the absence of a defendant is "to be exercised with great caution and with close regard to the overall fairness of the proceedings" and that "a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond". He also stated (at [13]) that "the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution" and "if the absence of a defendant is attributable to involuntary illness or incapacity it would very rarely, if ever, be right to exercise the discretion in favour of commencing the trial, at any rate unless the defendant is represented and asks that the trial should begin". In Armouchi [2007] EWCA Crim 3019 at [10], Hughes LJ stated that proceeding in the absence of a defendant "is a step which ought normally to be taken only if it is unavoidable". This does need to be seen in the context of s 11 of the Magistrates Courts Act 1980. This provides that, if the accused 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, but that the court shall not proceed in the absence of the accused if it considers that there is an acceptable reason for his failure to appear. In Killick v West London Magistrates Court [2012] EWHC 3864 (Admin), Sharp J summarised the relevant principles thus: 1. The overriding principle is that the court should not proceed to hear a case in the defendant's absence without satisfying itself that the claim for an adjournment may properly be rejected and that no unfairness will thereby be done 2. The discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution. Where a defendant to a criminal charge wishes to resist it and is shown by medical evidence to be unfit to attend court to do so, either as a result of involuntary illness or
incapacity, it would be very rarely, if indeed ever, right for the court to exercise its discretion in favour of commencing the trial, or to proceed to hear the case in his absence, at any rate unless the defendant is represented and asks that the trial should begin 3. If a court asked for an adjournment on medical grounds, suspects the grounds to be spurious or believes them to be inadequate, the court should ordinarily express its doubts and thereby give the defendant an opportunity to resolve those doubts 4. A court considering an application to adjourn will need carefully to distinguish between genuine reasons for the defendant not being present and those reasons which are spuriously advanced or designed to frustrate the process. However, if the court comes to the conclusion that either of the latter is the case, it should say so. It cannot simply be inferred that a court has come to that conclusion unless that is clearly stated by the magistrates 5. If a conclusion is open to the court reasonably on the material before it either to the effect that an excuse given is spurious or there is a truly compelling and exceptional reason for proceeding notwithstanding a good excuse for non-attendance, the court has the power to do so. This however will be an exceptional case Chapter 5.9.2: Summary trial pre-trial rulings (pp 264-265) In R (CPS) v Gloucester Justices [2008] EWHC 1488 (Admin); (2008) 172 JP 506, MacKay J, construing s 8B of the Magistrates Courts Act 1980 (variation of pre-trial rulings) said (at [10] and [12]): It appears therefore, on a strict reading of this section, that where the court acts of its own motion to vary a previous ruling, the grounds for discharge or variation are simply the interests of justice, and where an application is made by a party, there is an additional requirement for proof of material change of circumstances. I for my part find it difficult, indeed impossible, to accept that it can be in the interests of justice for the same court to feel free, in effect, to annul or discharge its own earlier ruling without there being some compelling reason, such as changed circumstances or fresh evidence, so to do. I would not regard it as being in the interests of justice for one bench to set aside a previous bench's ruling previously because on the same material it thought it would reach a different conclusion. Chapter 5.10.3.2: Defects in the charge requiring amendment (pp 268-270)
In Williams v DPP [2009] EWHC 2354 (Admin), the accused was suspected of drink-driving. At the police station, he failed to give an adequate breath sample and was asked for a blood or urine sample. He refused to give a blood sample, on the basis that he was scared of needles, and failed to provide a urine sample. However, he was charged with failure to provide a breath specimen. On the day of the trial (some 9 months later), the magistrates acceded to an application by the CPS to amend the charge to allege failure to provide a urine sample. The Divisional Court ruled that this amendment would have been permissible but for the fact that the magistrates also allowed a further adjournment of four months. This decision may be contrasted with R (Thornhill) v Uxbridge Magistrates Court [2008] EWHC 508 (Admin), where the opposite view was taken. However, in Williams, Thomas LJ noted (at [19]) that CPS did not appear and were not represented in Thornhill, and so it is of limited value as an authority; in any event, the question whether the offence arises out of the same or substantially the same facts is a factual question. On this basis, it is submitted that Thornhill should not be followed. Chapter 5.10.9: Summary trial: submissions of no case to answer (pp 277-280) In R (CPS) v Norwich Magistrates' Court [2011] EWHC 82 (Admin), the prosecution opened the case (a charge of assault) by stating that identification was not in dispute (the section of the case management form completed by the defence raised the issue of self-defence). At the close of the prosecution case, the defence made a submission of no case based on the lack of adequate identification. The prosecution sought to call additional evidence, but the magistrates refused to allow this. The Divisional Court said that the decision of the magistrates was wrong. Richards LJ said (at [22]):... if the defence was going to take a positive point on identification, it was incumbent on it to flag the point at an early stage, not to wait until the close of the prosecution case before raising it for the first time in a submission of no case. It should have been expressed during the case management process and included in terms in the trial information form. That is all the more obvious in the environment in which the parties now operate by reference to the Criminal Procedure Rules and the overriding objective. Even if there had been an omission to deal with it at that earlier stage, it ought to have been raised very clearly when the prosecuting advocate opened the case by telling the magistrates that there was no issue over identification. It was not appropriate, as it seems to me, simply to sit tight and to raise it at the end of the prosecution case by way of a submission of no case. His Lordship concluded, at [25], that the decision to refuse the prosecution application to re-open ran counter to the overriding objective of the Criminal Procedure Rules, was plainly contrary to the interests of justice and lacked any reasonable basis.
Chapter 5.10.12: Speeches in a summary trial (pp 282-283) Under r. 37.3 of the Criminal Procedure Rules, the prosecutor may make final representations in support of the prosecution case if the accused is represented or (whether represented or not) the accused has called evidence other than his or her own testimony. The accused may then make final representations in support of the defence case. Chapter 5.10.17: Summary trial special measures directions (pp 286-287): See the update to Chapter 11.9 for discussion of the Coroners and Justice Act 2009, reversing the effect of R v Davis [2008] UKHL 36. Chapter 5.11: The role of the clerk/court legal adviser (pp 288-293) In Cooper v Wrexham Magistrates Court [2010] EWHC 2226 (Admin), the clerk's intervention in the retiring room meant that he was effectively participating in the decision-making process: "what happened had every appearance... that what the magistrates' court clerk had to say about facts changed the mind of the magistrates in other than open court, which is where a trial should be conducted, with the result that the magistrates changed their decision which they had reached, which was theirs alone to come to" (per Langstaff J, at [11]). The case is an important reminder of the need to follow closely part V.55 of the Consolidated Criminal Practice Direction. Chapter 5.12: Summary trial: the decision of the justices viewing the scene (p 293) M v DPP [2009] EWHC 752; [2009] 2 Cr App R 12, per Leveson LJ (at [31]): What is critical before any court embarks upon any view is that there is absolute clarity about precisely what is to happen on such a view, about who is to stand in what position, about what (if
any) objects should be placed in a specific position and about who will do what. None of this should happen at the scene of a view, which should be conducted without discussion for the very reasons identified in this case, namely that otherwise not all involved can participate. Chapter 5.12.2: Summary trial setting aside conviction or sentence under s 142 of the MCA 1980 (pp 294-296) In Holme v Liverpool City Justices [2004] EWHC 3131 (Admin); (2005) 169 JP 306, the accused pleaded guilty to dangerous driving, a pedestrian having sustained serious injuries. A community sentence was imposed. The magistrates agreed to a request from CPS to reopen the case under s. 142, on the basis that the original counsel for the prosecution had not addressed the extent of the pedestrian s injuries and that the difference between the sentence imposed and the custodial sentence that would probably have been imposed had the court known all the facts offended the principles of justice. On appeal to the Divisional Court, Collins J (at [30]) said that:... the power under s 142 is to be used in a relatively limited situation, namely one which is akin to mistake or, as the court says, the slip rule. But there is no reason, on the face of it, to limit it further. It seems to me that if a court has been misled into imposing a particular sentence, and it is discovered that it has been so misled, then the sentence may properly be said to have been imposed because of a mistake; the mistake being the failure of the court to appreciate a relevant fact. That may well give power to the court to exercise the jurisdiction conferred by s. 142, but it does not indicate that that power should necessarily be used. His Lordship went on (at [33]) to say that the sort of case which is appropriate for use of the power under s. 142 is one where the mistake is quickly identified and it is accepted on all sides that a mistake had been made. At [42] [43], his Lordship said that it was possible to envisage circumstances in which the failure of the court to be aware of factors which would be relevant to sentence could properly mean that it would be appropriate to resort to s 142, but: it would only be in very rare circumstances that it would be appropriate to resort to s 142 to consider an increase in sentence, particularly if that increase... brought the possibility of custody as opposed to another form of disposal.
The facts of the instant case, said the court, did not come anywhere near justifying such a use of s 142. In Zykin v CPS [2009] EWHC 1469 (Admin); (2009) 173 JP 361, Bean J said (at [16]) that s 142 does not confer a wide and general power on a magistrates' court to reopen a previous decision on the grounds that it is in the interests of justice to do so ; rather, it is a power to be used in a relatively limited situation, namely one which is akin to mistake or the slip rule. In R (Blick) v Doncaster Magistrates' Court [2008] EWHC 2698 (Admin); (2008) 172 JP 651, notice of the trial date had been sent to the defendant's last known address. In the meantime she had moved address but had not informed the magistrates' court of her change of address. She was convicted in her absence. The refusal by the magistrates court to re-open the case was quashed by the Divisional Court because the magistrates court had been wrong to take the question of whether the claimant had acted with all due diligence as the primary test of whether or not to make the order under s 142(2) and had also erred in taking account of the cost to the public purse. Section 142 was considered again in R (Williamson) v City of Westminster Magistrates Court [2012] EWHC 1444 (Admin). The defendant pleaded guilty in the magistrates court but subsequently said that he did so on the basis of incompetent advice from his solicitor. Burnett J (at [31]) said: The purpose of s 142 as originally enacted was to enable the Magistrates' Court itself to correct mistakes in limited circumstances to avoid the need for parties to appeal to the Crown Court, or to the High Court by way of case stated, or to bring judicial review proceedings. In our judgment the introduction of the s 142 power was designed to deal with an obvious mischief: namely the waste of time, energy and resources in correcting clear mistakes made in Magistrates' Courts by using appellate or review proceedings. The removal of the short time limit in 1996 is consistent with that approach. It is the common experience of courts in all jurisdictions that mistakes and slips are often not picked up immediately. The power conferred with regard to sentence explicitly refers to replacing a sentence imposed which was invalid. That might be regarded as correcting a classic 'mistake'. It could be contended that it would be in the interests of justice to substitute a new sentence on the grounds that the one originally imposed was manifestly excessive. However, the sentencing provisions, whether in their original or new form in section 142, cannot be read as conferring a power to substitute a new sentence in the same way as an appellate court might do so. So far as the jurisdiction relating to convictions is concerned, the amendment enables the Magistrates' Court to exercise the power in circumstances beyond those originally envisaged. But the power remains rooted in the concept of correcting mistakes and errors. It is not a power equivalent to an appeal to the Crown Court or the High Court, nor is it a general power of review. It would be possible to construct an argument that because a Magistrates' Court made an error of law, and thus reached a wrong decision, it would be in the interests of justice for the matter to be remitted under s 142 for a rehearing. However, such an interpretation would have the effect of neutering appeals by way of case stated. It would have the effect of conferring a similar power on the bench considering a s 142 application as possessed by the High Court. His Lordship referred to R v Croydon Crown Court, ex parte DPP [1997] 2 Cr App R 411, where McCowan LJ had said (at p. 417) that, It would be wholly wrong... for it to be possible to employ s.
142(2) as a method of a defendant obtaining a re-hearing as a substitute for an appeal to the Crown Court which he cannot pursue because he has unequivocally pleaded guilty. Burnett J went on (at [36]) to say: We accept that there may be circumstances in which s 142(2) could be used to allow an unequivocal guilty plea to be set aside. Examples which spring to mind include cases in which a guilty plea had been entered to an offence unknown to the law. Surprising though it may seem, such errors do occur in particular in connection with repealed legislation. That would fall comfortably within the language of mistake. They may include cases where a jurisdictional bar was not appreciated by the defendant relating, for example, to a time limit or the identity of a prosecutor. There may be cases in which the proceedings were, in truth, a nullity. We would not exclude the possibility that s 142(2) would be apt to deal with a case in which circumstances developed after a guilty plea and sentence which led the prosecution to conclude that the conviction should not be sustained. The court went on to hold that the circumstances relied upon by the claimant, even if they were established as being correct, did not bring the case within the ambit of the power found in s 142(2). Chapter 5.13.4: Section 6 of the PCC(S)A 2000 ( pp 304-305) In R v Ayhan [2011] EWCA Crim 3184, the defendant was committed for sentence in respect of three offences, one of which was triable either-way and two of which were summary-only. The memorandum of conviction stated that all three committals were under s 3 of the PCC(S)A 2000. However, s 3 applies only to either-way offences. In fact, the summary offences had been committed under s 6. The Court of Appeal held that the essential question was not what power the memorandum of conviction recorded that the committing justices had used, but the power that they had actually used. The correct approach was to examine the question of whether the magistrates' court was vested with the necessary jurisdiction. If it was, then an omission or inaccuracy from the memorandum of conviction about the statutory powers which were available to be exercised or which were exercised, did not affect the validity of the committal. Provided the power of the magistrates' court to commit for sentence had been properly exercised in respect of one or more either-way offences in accordance with s 3 of the Act, a mistake in recording the statutory basis for committal for summary-only offences did not invalidate a committal. In any event, the Crown Court had to abide by the sentencing powers available to the magistrates' court in relation to the summary-only offences. The Court of Appeal considered the effect of s 6 in relation to breaches of suspended sentences in R v Morgan [2012] EWCA Crim 1939. Irwin J, giving the judgement of the Court of Appeal, said (at [13] and [14]):
If a defendant who is subject to a suspended sentence of imprisonment, breaches that sentence by committing a further offence, which is triable either way, and admits his guilt of that further offence, the magistrates have two matters to address: a fresh offence and an admitted breach of a Crown Court suspended sentence. It is important for the magistrates to keep in mind that those are discrete, separate matters. It will normally be the case that magistrates will feel that the Crown Court should deal with a breach where the Crown Court has imposed a suspended sentence. It should be noted that magistrate have the power to deal with such a breach themselves (see Schedule 12, para 11(2) of the Criminal Justice Act 2003). However, as we have said, the Magistrates' Court will very often conclude that a breach of a Crown Court suspended sentence should be committed to the Crown Court. What then of the substantive offence that constitutes the breach? Good sentencing practice requires that all matters should normally be dealt with together, perhaps particularly so, where the relevant breach of a suspended sentence is a fresh offence. In this case the committal of the breach is in conformity with Schedule 12 of the 2003 Act but the underlying power to commit is that laid down in s 6(1) of the Powers of Criminal Courts (Sentencing) Act 2000, the committal being under or consistent with para 11(2) of Schedule 12, which is one of the enactments recited in s 6(4) of the 2000 Act. Thus the breach is, without more, committed by way of s 6(1). His Lordship went on hold (at [22]) that, by virtue of s 7(2), the Crown Court is not limited to the sentencing powers of the Magistrates' Court when dealing with the breach of the suspended sentence. His Lordship also considered the powers of the Crown Court in relation to the offence which constituted the breach of the suspended sentence and gave this practical advice (at [26]):... any Magistrates' Court is likely to commit an offender who has breached a Crown Court suspended sentence by the commission of a further offence. If, at the same time, the Magistrates' Court were to consider that the gravity of the substantive offence which constitutes the breach, and/or the gravity of that offence taken with any other associated matters, was such as to satisfy the test in s 3(2), then those offences should be committed pursuant to s 3 rather than s 6. In R v Bateman [2012] EWCA Crim 2158, Moore-Bick LJ said (at [18]-[20]): Section 7 deals with the sentencing power of the Crown Court in relation to offences in respect of which a person has been committed under s 6, i.e. associated offences. By definition, therefore, it has no application to offences in respect of which a person has been committed under ss 3 to 4A. Nor does it have any application in the case where a person is committed to the Crown Court to be dealt with for an offence in respect of which a suspended sentence had previously been imposed by that court. The magistrates' power to commit a person to the Crown Court to enable it to consider the
activation of a suspended sentence arises under para 11 of Sch 12, not under s 6(1) of the Act, which simply describes the circumstances in which the powers of committal under subs (2) and (3) arise. In such cases the "relevant offence" to which s 6(1) refers is the offence in respect of which the suspended sentence was imposed. Section 7(1) limits the power of the Crown Court in cases where a person is committed under s 6 to dealing with him "in any way in which the magistrates' court could deal with him if it had just convicted him of the offence." Those words not only limit the scope of the Crown Court's powers; they also provide part of the key to the interpretation of s 7(2), to which we shall come in a moment. Their importance for present purposes, however, is that they give effect to what can be seen as an important aspect of the legislative scheme of ss 3 to 7, namely, that an offender committed to the Crown Court in respect of one or more associated offences simply for reasons of good sentencing practice should not for that reason be exposed to a greater penalty than could have been imposed on him by the magistrates' court unless the magistrates themselves have reached the conclusion that their powers of sentence are insufficient. In those circumstances it would be surprising if Parliament had intended to give the Crown Court unlimited sentencing powers (and thereby to expose the offender to a greater penalty than could have been imposed on him by the magistrates' court) only in cases where he was committed for breach of a suspended sentence. When considering the proper interpretation of s 7(2) two things must be borne in mind. The first is that both subs (1) and subs (2) are concerned with committals under section 6, that is, with the committal of a person to the Crown Court to be dealt with in respect of an associated offence. The second is that subs (2) must be read in the context of subs (1), to which it provides an exception. Committal of a person to the Crown Court to be dealt with for a breach of a suspended sentence imposed by that court involves the exercise of the magistrates' powers under para 11(2) of Sch 12, not of their powers under s 6 of the Act. It follows, therefore, that when subs (2) speaks of the committal of a person under s 6 to be dealt with by the Crown Court in respect of a suspended sentence it must be referring to a suspended sentence previously imposed by the magistrates' court. That is reinforced by the words that follow, which enable the Crown Court to exercise the powers under paras 8 and 9 of Sch 12 which could otherwise have been exercised by the magistrates themselves. In those circumstances the opening words of subs (2) dis-apply the provisions of s 7(1) which would otherwise enable the Crown Court to deal with the offender in any way in which the magistrates' court could deal with him if it had just convicted him of the offence. The two parts of s 7(2) therefore complement each other and implement the overall legislative purpose of ss 6 and 7 by ensuring that on committal to the Crown Court under s 6 a person is not exposed to a more severe penalty than could have been imposed on him by the magistrates. Chapter 5.15: Speedy summary justice - summary trial case management (pp 306-307) In Drinkwater v Solihull Magistrates Court [2012] EWHC 765 (Admin), Sir John Thomas P said:
[47] It is self-evident that proceedings in the Magistrates' Courts ought to be simple, speedy and summary. That requires close attention to the Criminal Procedure Rules and active case management before and during the trial.... [50] In setting the timetable, the court should scrutinise the reasons why it is said a witness is necessary and the time examination and cross-examination would take. It is also important in setting a timetable to have regard to the nature of the issues and the fact that the trial is a summary trial; any estimate of more than a day in the Magistrates' Courts should be scrutinised with the utmost rigour. Parties must realise that a summary trial requires a proportionate approach. If a timetable for the trial is not set, it is difficult to have any real confidence that the estimate is accurate. [51] At the commencement of the trial, the Magistrates' Court should check with the parties that the timetable and the estimates remain valid. If there is any variation which lengthens the estimate, the court should make every effort to see if the trial can still be accommodated that day by sitting late or otherwise. [52] Once the trial has started, the court must actively manage the trial, keeping an eye on progress in relation to the timetable. It is essential in a Magistrates' Court, just as the Crown Court, that the court has in mind the observations of Judge LJ, as he then was, made as long ago as 2004 in Jisl [2004] EWCA Crim 696 at paragraph 114-115.... [54] The consequences of the failure of setting a timetable and actively managing a case in the Magistrates' Courts can be much more serious in a particular case than in the Crown Court. In the Crown Court if a trial does not conclude within the estimate, the case will continue on the following day, although this undoubtedly has a serious impact on other cases as was pointed out in Jisl. In the Magistrates' Court, it is often not possible for a case to continue the following day. Although, where a case does not conclude within the estimate, every effort must be made to see if the trial can continue the following day, there are obvious practical difficulties, particularly given the commitments of the Magistrates and other business that has been scheduled for succeeding days. The practice has thus developed of adjourning a case that has not concluded for a period of two to three weeks, as we are told that that is the sort of time which is needed to find a time at which the availability of a courtroom, staff and, more importantly, the Magistrates, can be secured. A delay in the middle of a case for a period of two to three weeks is plainly inimical to the principles of speedy and summary justice. It is for these reasons and those given in Jisl essential that the closest attention is paid to timetabling, that the case is actively managed and concluded within the estimate.