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The hearing

Magistrates

Before the hearing

  1. Solicitors for the defence will often advise you that the defendant intends to plead guilty. If, within 7 days of the hearing, you have heard nothing from the defence in respect of the plea, it may be appropriate to enquire; it will save time and costs if a defendant intends to enter a guilty plea. If the defence confirms in writing the intention to plead guilty, you should advise the clerk to the court. Whilst the court would not normally require the attendance of witnesses at the first hearing, if this is the case, you should cancel their attendance unless instructed not to do so by the clerk.

The order of the proceedings

  1. An overview of the usual stages of a first hearing in the magistrates’ court is set out below. The stages are in the order that is normally followed, although individual courts may vary in their practice. When indicated by the clerk of the court to do so, you should stand, inform the court that you appear on behalf of HSE, the prosecutor, and introduce the defence representative. As practice at magistrates’ courts varies, you may be expected to do this before or after the defendant has been asked to enter a plea. For guidance on how to address the court, see Magistrates’ court procedure:
    • Case called;
    • Charges put to the defendant. Where the charges relate to either way offences, the clerk will explain to the defendant that if s/he pleads guilty, the magistrates may be able to deal with the case but that they may decide to send the matter to the Crown Court if they consider that greater sentencing powers are needed;
    • Plea (see below);

The plea

  1. The clerk will read out the summons and ask the defendant to enter a plea. A representative of a corporation may enter a plea of guilty or not guilty on its behalf 1. Such a representative must have a written statement, signed by the managing director or other person having the management of the corporation’s affairs, appointing the representative to act for it. 2

Guilty plea

  1. Where the defendant enters a guilty plea, the court may adjourn the case, refer the case to the Crown Court for sentence if it considers that its own powers of sentencing are inadequate (see Committal for sentence), or proceed to sentencing. The principal stages of a sentencing hearing are usually as follows:

    • Prosecution outlines the facts of the case to the court. You will normally draw the court’s attention to the Friskies schedule and prosecution costs;
    • Defence mitigation;
    • Sentence and costs.
  2. For guidance on the sentencing hearing, you should refer to the Sentencing and costs section.
  3. There is a procedure for persons charged with summary offences to plead guilty by post and have the case heard in their absence3 provided particular information and documents have been served on the accused with the summons. As most health and safety offences are not summary-only, and given the need to follow the required procedure on service of the summons, this provision will not apply in prosecutions brought by HSE.

Change of plea

  1. If the defendant has pleaded guilty but later makes a statement (for example, during mitigation) which, if true, would be a defence to the charge, the court should then enter a plea of not guilty4, and continue with a trial as if the defendant had pleaded not guilty.
  2. The defendant has a right at any time to change a plea from one of ‘not guilty’ to ‘guilty’.
  3. Where a defendant has pleaded guilty, the court has a discretion to allow a change to a plea of not guilty at any stage of the proceedings up to and including sentence, although this discretion should be exercised sparingly, and rarely where the original plea was unequivocal and the defendant was represented at the earlier hearing. 5
  4. The defendant must apply to change a guilty plea as soon as practicable after s/he becomes aware of the grounds for making the application, and s/he may do so only before final disposal of the case.6
  5. Where a change to a not guilty plea is allowed, the magistrates must also allow the defendant to consider whether to re-elect mode of trial.7

Other pleas

  1. Rarely, a defendant may refuse to plead when asked, either directly ("I withhold my plea") or indirectly (by staying silent). If this is the case, the magistrates will enter a plea of not guilty on the defendant’s behalf and proceed accordingly.
  2. If a guilty plea is ambiguous or equivocal, it is the duty of the prosecutor to point this out to the court. If, after further prompting from the court, the defendant still enters an ambiguous guilty plea, the court will enter a not guilty plea on the defendant’s behalf.

Newton hearings

  1. If, following a guilty plea, the factual dispute between prosecution and defence versions is so different that it affects the appropriate sentence in the case, the court must hear evidence on the disputed points8. Such hearings are referred to as " Newton hearings"9.
  2. If this arises, and you have not been informed in advance by the defence that the guilty plea is being put forward on the basis of a different factual situation, you may need to request an adjournment. A Friskies schedule will have been served by the prosecution at the outset of proceedings. You should refer to the section Factors relevant to sentence for more information on Friskies schedules. The onus is on the defence to make it clear if it does not accept the facts put forward by the prosecution. Consequently, the defence should bear the costs of any adjournment.
  3. The Newton hearing is similar in form to a mini-trial and a solicitor agent or lawyer from Legal Adviser’s Office should normally be appointed to conduct the hearing on behalf of the prosecution. The prosecution is first required to call evidence in relation to the matters in dispute, and the defence will then call evidence to support its version of the facts. The burden of proof lies upon the prosecution, which must prove its assertions of fact beyond reasonable doubt10.
  4. If the defendant declines to call evidence, the court is entitled to reject the mitigation and sentence on your version of events11.
  5. Where the defence raises an extraneous issue in mitigation which you are not in a position to refute because it is wholly within the knowledge of the defendant (for example, the defendant’s state of mind when the offence was committed), this issue will not usually be in conflict with the prosecution evidence, and a Newton hearing is therefore not appropriate12. In such a situation, the defence may choose to support their assertion by calling evidence on oath. The burden of satisfying the court in such a case lies upon the defendant.13
  6. You are not bound to challenge such evidence, but you may do so, either by cross-examining the defence witnesses or by calling your own evidence. You may want to request an adjournment in circumstances where the defendant has raised a completely new issue.
  7. Where the magistrates’ court holds a Newton hearing in respect of an either way offence and makes a decision upon it before committing the case to the Crown Court for sentence, the Crown Court has the power to hold a further Newton hearing if it is in the interests of fairness and justice to do so.14

Footnotes

  1. Magistrates’ Courts Act (‘MCA’) 1980, s.46/sch.3 and CJA 1925, s.33(6).
  2. Criminal Justice Act (‘CJA’) 1925, s.33(6).
  3. MCA 1980, s.12.
  4. R v Durham Quarter Sessions, ex parte Virgo [1952] 1 All ER 466.
  5. S (an Infant) v Manchester City Recorder [1971] AC 481, HL.
  6. Rule 37.6 Criminal Procedure Rules 2005. Unless the court directs otherwise, the application must be in writing and include the information set out in the Rule. The defendant must serve the application on the court and prosecutor.
  7. R v Bow Street Magistrates' Court, ex parte Welcombe [1992] TLR 228 7 May, DC; R v Finch (1993) 14 Cr. App. R. (S) 291, CA.
  8. Williams v Another (1983) 5 Cr. App. R. (S) 134.
  9. R v Newton (1983) Crim LR 198.
  10. R v Ahmed (1985) Crim LR 250 CA.
  11. R v Mirza (1993) 14 Cr. App. R. (S) 64.
  12. R v Odey (1985) Crim LR 55.
  13. R v Mirza (1993) 14 Cr. App. R. (S) 64.
  14. Gillan v Director of Public Prosecutions [2007] EWHC 380 (Admin), DC.