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Criminal Justice (Mode Of Trial) Bill [H.L.]


 

These notes refer to the Criminal Justice (Mode of Trial) Bill [H.L.]
as introduced in the House of Lords on 18th November 1999 [HL Bill 3]

Criminal Justice (Mode Of Trial) Bill [H.L.]


EXPLANATORY NOTES

INTRODUCTION

1. These explanatory notes relate to the Criminal Justice (Mode of Trial) Bill [H.L.] as introduced in the House of Lords on 18th November 1999. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or a part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY AND BACKGROUND

3. Whether an offence is triable in a magistrates' court ('summarily') or in the Crown Court ('on indictment') depends on its classification in the Criminal Law Act 1977, which divides offences into summary offences, which are triable only by the magistrates, and indictable ones. The latter are subdivided into 'indictable only' offences (such as murder, manslaughter, or robbery) which must be tried on indictment, and the more numerous "offences triable either way", which may be tried either summarily or on indictment. The maximum term of imprisonment and fine which magistrates can impose on summary conviction of an offence triable either way cannot exceed six months and a fine of £5,000.

4. The Bill amends the procedure for determining the mode of trial for offences triable either way. At present, if the defendant does not indicate a guilty plea, the magistrates consider whether it would be more appropriate for the case to be tried in the Crown Court or the magistrates' courts. If they decide the latter, the defendant's consent to summary trial is required. By not consenting a defendant may elect to be tried in the Crown Court. The Bill removes the defendant's ability to elect for trial in the Crown Court. It provides that the decision as to where either-way cases are heard should rest with the magistrates, having regard to representations as to venue from the prosecutor and from the defence as well as other stated criteria. This new procedure was recommended by the Royal Commission on Criminal Justice in 1993 (Cm 2263) and the Review of Delay in the Criminal Justice System in 1997.

5. Sections 17A to 21 of the Magistrates' Courts Act 1980 ("the 1980 Act") set out the current standard method of determining the mode of trial when an adult is charged with an offence triable either way. Section 22 provides for a special procedure where the charge is one of criminal damage, and section 23 allows for proceedings under sections 19 to 22 to be carried out in the absence of the defendant provided certain conditions are satisfied. Sections 24 and 25 relate respectively to determining where juveniles are to be tried, and to changing the decision about mode of trial originally taken. The text of sections 18 to 25 is appended to these notes.

6. The National Mode of Trial Guidelines provide guidance to magistrates to help them decide whether or not to commit offences triable either way for trial in the Crown Court. They are not intended to impinge upon a magistrate's duty to consider each case individually and on its own particular facts.

THE BILL

7. The Bill inserts new sections to replace the relevant provisions of the 1980 Act. The inserted provisions re-enact some of the existing provisions omitting any requirement for the defendant's consent to summary trial; introduce new matters for the magistrates to consider when deciding mode of trial; and provide for a right of appeal.

COMMENTARY ON CLAUSES

Clause 1: Determination of mode of trial

8. Clause 1 substitutes new sections 19 to 22 for sections 19 to 22 of the 1980 Act. This commentary concentrates on those parts of the Bill which constitute amendments to the existing provisions.

9. Section 19 of the 1980 Act provides for the magistrates to consider whether, in the case of an offence triable either way, the defendant should be tried in the Crown Court or in the magistrates' court. In reaching their decision magistrates are required to consider any representations made by the defence and by the prosecution. Magistrates are already required to have regard to the nature of the case, the gravity of the offence, whether the punishment which they would have the power to impose for it on conviction would be adequate, and any other relevant circumstances (see existing section 19(3) and new section 19(3)(a),(b),(c) and (f)). The Bill requires magistrates to consider also:

  • The effect of conviction or punishment on the defendant's livelihood (new section 19(3)(d)) - magistrates to consider whether the defendant's livelihood would be substantially diminished as a result of conviction or as a result of the punishment which is likely to be imposed by the court on conviction.

  • The effect of conviction or punishment on the defendant's reputation (new section 19(3)(e)) - magistrates are to consider whether the defendant's reputation would be seriously damaged as a result of conviction or as a result of the punishment which is likely to be imposed by the court on conviction.

10. For the purpose of enabling the court to consider the effect of conviction or punishment on the defendant's reputation (new section 19(3)(e)) it will be possible for the court to be informed that the defendant has a previous conviction. The court is only to be so informed if it is necessary to rebut or explain anything said by the defendant, for example in circumstances where the defendant claims to be of previous good character (new section 19(4)). A magistrate who is informed of a defendant's previous conviction will not be permitted to participate in a summary trial, an inquiry into the information or an appeal in respect of the offence (new section 19(5)).

11. New section 20 sets out the procedure to be followed once a magistrates' court has reached a decision on the mode of trial and provides for a right of appeal. There is no longer a requirement that the defendant must consent to trial in the magistrates' courts.

  • New section 20(1) requires the court to inform the defendant of its decision on mode of trial.

  • New section 20(2) provides that subject to the outcome of any appeal (see commentary on new section 20(4) below), where the court decides that the defendant should be tried in the magistrates' courts (ie. summarily) then the defendant will be so tried.

  • New section 20(3) provides that where the court decides that the case should be tried in the Crown Court (ie. on indictment) the information will be inquired into by examining justices (ie. the committal proceedings prior to trial in the Crown Court).

  • Where the court decides that the case should be tried summarily the defendant may appeal to the Crown Court against that decision if, at the mode of trial hearing, he made representations that he ought to be tried on indictment (new section 20(4)). Details of the procedure governing this appeal will be contained in separate rules of court.

12. New section 21 replaces and re-enacts existing sections 19(4) and (5). It applies to offences triable either way prosecuted by the Attorney General, the Solicitor General or the Director of Public Prosecutions. At the prosecutor's request such offences are to be tried on indictment.

13. New section 22 (also existing section 22) provides for certain 'scheduled' criminal damage offences triable either way to be treated as if they were triable only summarily, if the value involved is small.

  • New section 22(1) identifies the cases, listed in the first column of Schedule 2 to the 1980 Act, coming within the scope of the section.

  • New section 22(2) requires the court to consider, before proceeding to determine the mode of trial, whether the value involved in relation to the offence exceeds the relevant sum, presently £5000 (new section 22(3)(a)). New section 22(3) also sets out the framework for the court to follow when considering whether the value involved in relation to an offence exceeds the relevant sum.

  • If the court is satisfied that the value exceeds £5000 then sections 19 to 21 apply and the court should proceed to determine the mode of trial applying those sections of the Bill (new section 22(4)).

  • In any other case, sections 19 to 21 shall not apply and the offence shall be treated as if it were triable only summarily (new section 22(5)). There is no longer any requirement, in cases where it is unclear whether the value involved does or does not exceed £5,000, to seek the defendant's consent to proceeding as if the offence were triable only summarily (existing sections 22(4) to (6)).

  • New sections 22(6) to (9) replace and re-enact existing sections 22(8), (9), (11) and (12).

Clause 2 : Amendments and repeals

14. Clause 2 introduces Schedules 1 and 2 which provide for minor and consequential amendments and repeals. These amendments include:

  • The procedure which is to apply where the mode of trial hearing is held in the absence of the defendant (Schedule 1, paragraphs 5 and 6 which amend sections 18(3) and 23 of the 1980 Act).

  • The application of the new criteria for determining the mode of trial where the court considers switching from an inquiry into the information to summary trial. There is also provision for a right of appeal (Schedule 1, paragraph 7 which amends section 25 of the 1980 Act).

  • Amendments ensuring that the limits placed on magistrates' courts as regards sentencing and committal to the Crown Court for sentence (see sections 33 and 133(2) of the 1980 Act) following a summary trial in pursuance of existing section 22(2), will also apply where the defendant pleads guilty or where the court switches to summary trial under new section 25(3) on the grounds that it is not satisfied that the value involved in relation to the offence exceeds £5,000. (Schedule 1, paragraphs 4, 9 and 10).

  • Removing the requirements of consent to summary trial for corporations and for persons who are at least 17 years old with whom they are jointly charged (Schedule 1, paragraph 12 which amends Schedule 3 to the 1980 Act).

  • Provides that magistrates may not sit in the Crown Court on the hearing of appeals against the magistrates' decisions on mode of trial (Schedule 1, paragraph 13 which amends section 74 of the Supreme Court Act 1981).

  • Provision for the Crown Court to determine the mode of trial in accordance with the new criteria, in a case where a person is sent for trial in respect of an indictable only offence and an offence triable either way but the indictment no longer includes the indictable only offence (Schedule 1, paragraphs 16 - 20 which amend Schedule 3 to the Crime and Disorder Act 1998).

FINANCIAL EFFECTS OF THE BILL

15. As a result of the provisions of this Bill a reduction of around 12,000 Crown Court trials per annum is estimated. These cases would instead be tried in the magistrates' courts. There would be some extra costs arising from the new right of appeal to the Crown Court. The resulting net saving is estimated at about £105 million.

EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER

16. The Bill has no public sector manpower implications.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

17. No Regulatory Impact Assessment has been prepared, as no costs fall within the private sector.

COMMENCEMENT

18. The Bill will come into force in accordance with commencement orders made by the Secretary of State.

EUROPEAN CONVENTION ON HUMAN RIGHTS

19. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before second reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). Lord Bassam of Brighton, Parliamentary Under-Secretary of State at the Home Office, has made the following statement:

    In my view the provisions of the Criminal Justice (Mode of Trial) Bill [H.L.] are compatible with the Convention rights.


APPENDIX

THE MAGISTRATES' COURTS ACT 1980 (Sections 18 - 25)

      18. Initial procedure on information against adult for offence triable either way.

(1)      Sections 19 to 23 below shall have effect where a person who has attained the age of 18 years appears or is brought before a magistrates' court on an information charging him with an offence triable either way and -

    (a) he indicates under section 17A above that (if the offence were to proceed to trial) he would plead not guilty, or

    (b) his representative indicates under section 17B above that (if the offence were to proceed to trial) he would plead not guilty.

(2) Without prejudice to section 11(1) above, everything that the court is required to do under sections 19 to 22 below must be done before any evidence is called and, subject to subsection (3) below and section 23 below, with the accused present in court.

(3) The Court may proceed in the absence of the accused in accordance with such of the provisions of sections 19 to 22 below as are applicable in the circumstances if the court considers that by reason of his disorderly conduct before the court it is not practicable for the proceedings to be conducted in his presence; and subsections (3) to (5) of section 23 below, so far as applicable, shall have effect in relation to proceedings conducted in the absence of the accused by virtue of this subsection (references in those subsections to the person representing the accused being for this purpose read as references to the person, if any, representing him).

(4) A magistrates' court proceeding under sections 19 to 23 below may adjourn the proceedings at any time, and on doing so on any occasion when the accused is present may remand the accused, and shall remand him if -

    (a) on the occasion on which he first appeared, or was brought, before the court to answer to the information he was in custody or, having been released on bail, surrendered to the custody of the court; or

    (b)     he has been remanded at any time in the course of proceedings

on the information;

and where the court remands the accused, the time fixed for the resumption of the proceedings shall be that at which he is required to appear or be brought before the court in pursuance of the remand or would be required to be brought before the court but for section 128(3A) below.

(5)          The functions of a magistrates' court under sections 19 to 23 below may be discharged by a single justice, but the foregoing provision shall not be taken to authorise the summary trial of an information by a magistrates' court composed of less than two justices.

19. Court to begin by considering which mode of trial appears more suitable.

(1)       The court shall consider whether, having regard to the matters mentioned in subsection (3) below and any representations made by the prosecutor or the accused, the offence appears to the court more suitable for summary trial or for trial on indictment.

(2)      Before so considering, the court -

    (a)     repealed;

    (b)     shall afford first the prosecutor and then the accused an opportunity to make representations as to which mode of trial would be more suitable.

(3)          The matters to which the court is to have regard under subsection (1) above are the nature of the case; whether the circumstances make the offence one of serious character; whether the punishment which a magistrates' court would have power to inflict for it would be adequate; and any other circumstances which appear to the court to make it more suitable for the offence to be tried in one way rather than the other.

(4)          If the prosecution is being carried on by the Attorney General, the Solicitor General, or the Director of Public Prosecutions and he applies for the offence to be tried on indictment, the preceding provisions of this section and sections 20 and 21 below shall not apply, and the court shall proceed to inquire into the information as examining justices. (5)          The power of the Director of Public Prosecutions under subsection (4) above to apply for an offence to be tried on indictment shall not be exercised except with the consent of the Attorney General.

     20. Procedure where summary trial appears more suitable.

(1) If, where the court has considered as required by section 19(1) above, it appears to the court that the offence is more suitable for summary trial, the following provisions of this section shall apply (unless excluded by section 23 below).

(2) The court shall explain to the accused in ordinary language-

    (a)     that it appears to the court more suitable for him to be tried summarily for the offence, and that he can either consent to be so tried or, if he wishes, be tried by a jury; and

    (b)     that if he is tried summarily and is convicted by the court, he may be committed for sentence to the Crown Court under section 38 below if the convicting court is of such opinion as is mentioned in subsection (2) of that section.

(3)     After explaining to the accused as provided by subsection (2) above the court shall ask him whether he consents to be tried summarily or wishes to be tried by a jury, and -

    (a)     if he consents to be tried summarily, shall proceed to the summary trial of the information;

    (b)     if he does not so consent, shall proceed to inquire into the information as examining justices.

21. Procedure where trial on indictment appears more suitable.

If, where the court has considered as required by section 19(1) above, it appears to the court that the offence is more suitable for trial on indictment, the court shall tell the accused that the court has decided that it is more suitable for him to be tried for the offence by a jury, and shall proceed to inquire into the information as examining justices.

22. Certain offences triable either way to be tried summarily if value involved is small.

(1)      If the offence charged by the information is one of those mentioned in the first column of Schedule 2 to this Act (in this section referred to as "scheduled offences") then, the court shall, before proceeding in accordance with section 19 above, consider whether, having regard to any representations made by the prosecutor or the accused, the value involved (as defined in subsection (10) below) appears to the court to exceed the relevant sum. For the purposes of this section the relevant sum is £5,000.

(2)      If, where subsection (1) above applies, it appears to the court clear that, for the offence charged, the value involved does not exceed the relevant sum, the court shall proceed as if the offence were triable only summarily, and sections 19 to 21 above shall not apply.

(3)      If, where subsection (1) above applies, it appears to the court clear that, for the offence charged, the value involved exceeds the relevant sum, the court shall thereupon proceed in accordance with section 19 above in the ordinary way without further regard to the provisions of this section.

(4)          If, where subsection (1) above applies, it appears to the court for any reason not clear whether, for the offence charged, the value involved does or does not exceed the relevant sum, the provisions of subsections (5) and (6) below shall apply.

(5)          The court shall cause the charge to be written down, if this has not already been done, and read to the accused, and shall explain to him in ordinary language -

    (a)     that he can, if he wishes, consent to be tried summarily for the offence and that if he consents to be so tried, he will definitely be tried in that way; and

    (b)     that if he is tried summarily and is convicted by the court, his liability to imprisonment or a fine will be limited as provided in section 33 below.

(6)          After explaining to the accused as provided by subsection (5) above the court shall ask him whether he consents to be tried summarily and -

    (a)      if he so consents, shall proceed in accordance with subsection (2) above as if that subsection applied;

    (b)      if he does not so consent, shall proceed in accordance with subsection (3) above as if that subsection applied.

(7)          Repealed.

(8)          Where a person is convicted by a magistrates' court of a scheduled offence, it shall not be open to him to appeal to the Crown Court against the conviction on the ground that the convicting court's decision as to the value involved was mistaken.

(9)          If, where subsection (1) above applies, the offence charged is one with which the accused is charged jointly with a person who has not attained the age of 18 years, the reference in that subsection to any representations made by the accused shall be read as including any representations made by the person under 18.

(10)          In this section "the value involved", in relation to any scheduled offence, means the value indicated in the second column of Schedule 2 to this Act, measured as indicated in the third column of that Schedule; and in that Schedule "the material time" means the time of the alleged offence.

(11)     Where

    (a) the accused is charged on the same occasion with two or more scheduled offences and it appears to the court that they constitute or form part of a series of two or more offences of the same or a similar character; or

    (b)     the offence charged consists in incitement to commit two or more scheduled offences,

    this section shall have effect as if any reference in it to the value involved were a reference to the aggregate of the values involved.

(12)          Subsection (8) of section 12A of the Theft Act 1968 (which determines when a vehicle is recovered) shall apply for the purposes of paragraph 3 of Schedule 2 to this Act as it applies for the purposes of that section.

23. Power of court, with consent of legally represented accused, to proceed in his absence.

     (1) Where -

    (a) the accused is represented by a legal representative who in his absence signifies to the court the accused's consent to the proceedings for determining how he is to be tried for the offence being conducted in his absence; and

    (b) the court is satisfied that there is good reason for proceeding in the absence of the accused,

    the following provisions of this section shall apply.

(2)     Subject to the following provisions of this section, the court may proceed in the absence of the accused in accordance with such of the provisions of sections 19 to 22 above as are applicable in the circumstances.

(3)     If, in a case where subsection (1) of section 22 above applies, it appears to the court as mentioned in subsection (4) of that section, subsections (5) and (6) of that section shall not apply and the court -

    (a)     if the accused's consent to be tried summarily has been or is signified by the person representing him, shall proceed in accordance with subsection (2) of that section as if that subsection applied; or

    (b)     if that consent has not been and is not so signified, shall proceed in accordance with subsection (3) of that section as if that subsection applied.

(4)      If, where the court has considered as required by section 19(1) above, it appears to the court that the offence is more suitable for summary trial then

    (a)      if the accused's consent to be tried summarily has been or is signified by the person representing him, section 20 above shall not apply, and the court shall proceed to the summary trial of the information; or

    (b)      if that consent has not been and is not so signified, section 20 above shall not apply and the court shall proceed to inquire into the information as examining justices and may adjourn the hearing without remanding the accused.

(5)     If, where the court has considered as required by section 19(1) above, it appears to the court that the offence is more suitable for trial on indictment, section 21 above shall not apply, and the court shall proceed to inquire into the information as examining justices and may adjourn the hearing without remanding the accused.

24. Summary trial of information against child or young person for indictable offence.

      (1) Where a person under the age of 18 years appears or is brought before a magistrates' court on an information charging him with an indictable offence other than homicide, he shall be tried summarily unless -

              (a) the offence is such as is mentioned in subsection (2) of section 53 of the Children and Young Persons Act 1933 (under which young persons convicted on indictment of certain grave crimes may be sentenced to be detained for long periods) and the court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of subsection (3) of that section; or

              (b) he is charged jointly with a person who has attained the age of 18 years and the court considers it necessary in the interests of justice to commit them both for trial;

and accordingly in a case falling within paragraph (a) or (b) of this subsection the court shall commit the accused for trial if either it is of opinion that there is sufficient evidence to put him on trial or it has power under section 6(2) above so to commit him without consideration of the evidence.

(1A) Where a magistrates' court -

    (a) commits a person under the age of 18 years for trial for an offence of homicide; or

    (b) in a case falling within subsection (1)(a) above, commits such a person for trial for an offence,

the court may also commit him for trial for any other indictable offence with which he is charged at the same time if the charges for both offences could be joined in the same indictment.

(2) Where, in a case falling within subsection (1)(b) above, a magistrates' court commits a person under the age of 18 years for trial for an offence with which he is charged jointly with a person who has attained that age, the court may also commit him for trial for any other indictable offence with which he is charged at the same time (whether jointly with the person who has attained that age or not) if the charges for both offences could be joined in the same indictment.

(3) If on trying a person summarily in pursuance of subsection (1) above the court finds him guilty, it may impose a fine of an amount not exceeding £1,000 or may exercise the same powers as it could have exercised if he had been found guilty of an offence for which, but for section 1(1) of the Criminal Justice Act 1982, it could have sentenced him to imprisonment for a term not exceeding -

    (a) the maximum term of imprisonment for the offence on conviction on indictment; or

    (b) six months,

    whichever is the less.

(4) In relation to a person under the age of 14 subsection (3) above shall have effect as if for the words £1,000 there were substituted the words £250.

25. Power to change from summary trial to committal proceedings, and vice versa.

(1) Subsections (2) to (4) below shall have effect where a person who has attained the age of 18 years appears or is brought before a magistrates' court on an information charging him with an offence triable either way.

(2) Where the court has (otherwise than in pursuance of section 22(2) above) begun to try the information summarily, the court may, at any time before the conclusion of the evidence for the prosecution, discontinue the summary trial and proceed to inquire into the information as examining justices and, on doing so, shall adjourn the hearing.

(3) Where the court has begun to inquire into the information as examining justices, then, if at any time during the inquiry it appears to the court, having regard to any representations made in the presence of the accused by the prosecutor, or made by the accused, and to the nature of the case, that the offence is after all more suitable for summary trial, the court may, after doing as provided in subsection (4) below, ask the accused whether he consents to be tried summarily and, if he so consents, may subject to subsection (3A) below proceed to try the information summarily.

(3A)     Where the prosecution is being carried on by the Attorney General or      the Solicitor General, the court shall not exercise the power conferred by subsection (3) above without his consent and, where the prosecution is being carried on by the Director of Public Prosecutions, shall not exercise that power if the Attorney General directs that it should not be exercised.

(4)     Before asking the accused under subsection (3) above whether he consents to be tried summarily, the court shall in ordinary language -

         (a)     explain to him that it appears to the court more suitable for him to be tried summarily for the offence, but that this can only be done if he consents to be so tried; and

         (b)     unless it has already done so, explain to him, as provided in section 20(2)(b) above, about the court's power to commit to the Crown Court for sentence.

(5) Where a person under the age of 18 years appears or is brought before a magistrates' court on an information charging him with an indictable offence other than homicide, and the court-

    (a)          has begun to try the information summarily on the footing that the case does not fall within paragraph (a) or (b) of section 24(1) above and must therefore be tried summarily, as required by the said section 24(1); or

    (b)          has begun inquire into the case as examining justices on the footing that the case does so fall,

subsection (6) or (7) below, as the case may be, shall have effect.

(6)     If, in a case falling within subsection (5)(a) above, it appears to the court at any time before the conclusion of the evidence for the prosecution that the case is after all one which under the said section 24(1) ought not to be tried summarily, the court may discontinue the summary trial and proceed to inquire into the information as examining justices and, on doing so, shall adjourn the hearing.

(7)     If, in a case falling within subsection (5)(b) above, it appears to the court at any time during the inquiry that the case is after all one which under the said section 24(1) ought to be tried summarily, the court may proceed to try the information summarily.

(8) If the court adjourns the hearing under subsection (2) or (6) above it may (if it thinks fit) do so without remanding the accused.

 
 
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Prepared: 19 November 1999