What will happen at my magistrates' court trial?
MAGISTRATES' COURT TRIAL GUIDE
"What follows will unravel some of the myths about trial. It will also prepare you for what to expect if you are going to court yourself, whether as the person accused of a crime or as a witness or as some other interested party."
Lawyers are very good at assuming that everyone knows what happens at trial. Of course, many lawyers spend every day in the criminal courts so the whole process becomes second nature and they hardly stop to think that for many, many people a courtroom is a strange and unfamiliar place.
For those that do think they know what happens during a criminal trial, many have based their knowledge on what they have seen in films and shows on TV/Netflix/Amazon etc. which often bear little resemblance to reality and also are often based on trials in the USA which are a little different to ours!
That’s right, in the criminal courts in England & Wales you never hear a gavel pounding on the bench, you never hear lawyers shouting “objection” or judges responding with “sustained” or “overruled.” You do not hear lawyers asking to “approach the bench” nor do you see them walking right up to witnesses in the middle of cross-examination and shouting in their faces. Before I finish here (I could go on) you do not hear witnesses take the oath and finish with the words, “so help me God.”
So what follows will unravel some of the myths about trial. It will also prepare you for what to expect if you are going to court yourself, whether as the person accused of a crime or as a witness or as some other interested party.
What will happen at my trial?
The trial is the process which determines whether or not the defendant (the accused) is guilty of a criminal offence. This means that trials will only take place when a defendant pleads Not Guilty. If a defendant pleads Guilty there will be no need for a trial and the case will go to sentence. For information on sentencing click here.
There are two parts to a criminal trial: the prosecution case and the defence case. First, the prosecution seeks to prove its case by presenting evidence to prove the charge against the defendant. At the end of the prosecution case the defence case starts: the defendant is then entitled to present evidence in support of his case if he chooses to do so.
What is the burden and standard of proof?
"the prosecution must prove its case against a defendant; it is not for the defendant to prove he is innocent but for the prosecution to prove he is guilty."
In a criminal case the prosecution must prove its case against a defendant; it is not for the defendant to prove he is innocent but for the prosecution to prove he is guilty. This is called the burden of proof and a defendant is innocent until proven guilty.
To prove that a defendant is guilty the prosecution must prove its case beyond reasonable doubt (often referred to as making the Magistrates or District Judge ‘satisfied so that they are sure’ of the defendant’s guilt). This is the standard of proof.
Is there a difference between Magistrates’ Court trial and Crown Court trial?
Yes, although both follow a very similar format. The fundamental difference is that in the Crown Court there is a jury and this alters some of the procedures. This is why there are separate guides on this website for Magistrates’ Court trial and Crown Court Trial. If you want to know about MAGISTRATES' COURT TRIAL trial read on. If you want to know about CROWN COURT TRIAL click here.
Unsure if you are going to the Magistrates’ Court or Crown Court for trial?
The first court appearance for every criminal case is at the Magistrates’ Court, but for the trial some cases remain in the Magistrates’ Court and some are sent to the Crown Court. If you are unsure whether you are going to the Magistrates’ Court or the Crown Court for your trial have a look at Which court will I go to?
Adults Only - Youth Courts are Different
What follows is all about adult courts (i.e. 18 and over) – for the vast majority of cases under 18s will have their first appearance and their trial at the Youth Court. The Youth Court trial process is very similar to the trial process at the Magistrates’ Court, although there are significant restrictions on who can go into court (the general public are not allowed to enter) and there are restrictions on reporting by the press in cases involving under 18s. The Youth Court is also less formal than the adult Magistrates’ Court and far less formal than the Crown Court. For more information about Youth Courts click here.
Who will hear my case in the Magistrates’ Court?
"Cases in the Magistrates’ Court are usually heard either by a District Judge sitting alone, or by a bench of three Magistrates"
Cases in the Magistrates’ Court are usually heard either by a District Judge sitting alone, or by a bench of three Magistrates (Magistrates are sometimes referred to as Justices or Justices of the Peace which is often shortened to JP’s). A District Judge sits full time and is a professional lawyer whereas Magistrates sit part-time and are not professional lawyers. For this reason they are often referred to as ‘lay’ Magistrates. They will receive training to carry out their roles as Magistrates and in court will get assistance from the court clerk who will advise them on the law but will not make decisions for them. At trial in the Magistrates’ Court the verdict of ‘guilty’ or ‘not guilty’ is decided by the Magistrates or District Judge. There are no juries in the Magistrates’ Court.
The middle magistrate on the bench is known as the chairman of the bench and is referred to in court as ‘sir’ or ‘madam’. According to the judiciary.gov.uk website there are about 23,000 magistrates in England & Wales and about about 140 district judges and 170 deputy [part-time] district judges. District Judges will often hear the more complex or serious cases in the Magistrates’ Court. A District Judge is referred to in court as ‘sir’ or ‘madam’.
In the Magistrates’ Court the legal representatives (mainly barristers and solicitors) wear suits. Wigs and gowns are only worn by lawyers in the Crown Court. Similarly, Magistrates and District Judges do not wear wigs and gowns.
AT The Trial
Confirmation of not guilty plea and legal issues
First of all, if the defendant has previously pleaded not guilty, the court clerk will ask him to confirm that plea. Before the prosecution opens the case the court will also deal with any legal arguments that need to be resolved. These might include applications to rely on a defendant’s or a prosecution witness’s previous convictions (known as a bad character application) or applications from the defence to exclude certain prosecution evidence as inadmissible (such as, for example, where a defendant was not cautioned before making a statement the prosecution wish to rely upon). There are a number of legal matters that might need to be resolved at this stage depending on the circumstances of the case.
In more complex cases, legal issues are sometimes argued and resolved at pre-trial hearings ordered specifically for that purpose. The decision as to when such legal arguments take place is made before the trial at an earlier case management hearing in the Magistrates’ Court. Once the preliminary legal matters are taken care of, the trial is ready to proceed.
Opening Speech by the Prosecution
The trial then starts with the prosecution opening its case to the Magistrates or District Judge. This opening speech informs the court of what the allegation is with a summary of what the evidence against the defendant is, including the areas of dispute and any relevant matters of law.
Statement of issues by the Defence
"Immediately after the prosecution opening speech, the Magistrates or District Judge may invite the defence representative (or defendant if he is unrepresented) to address them briefly, simply to help them understand what the defence is"
Immediately after the prosecution opening speech, the Magistrates or District Judge may invite the defence representative (or defendant if he is unrepresented) to address them briefly, simply to help them understand what the defence is and to clearly identify what the issues in the case are. For example, in an assault case the defence might be one of mistaken identity or it might be self-defence, so these would be the main issues for the court to focus on. Or in a theft case the defence might be a denial of taking the item, or it might be that the defendant accepts taking it but asserts the item was given to him (and therefore he has not behaved dishonestly). It obviously helps the Magistrates or District Judge to understand the case by knowing exactly what these issues are from the outset. Sometimes there will be no need for such an initial statement from the defence if the prosecutor has made it clear what the issues are or it is otherwise apparent. The final decision rests with the court.
Once the prosecution has opened the case it has to prove it with evidence. Evidence can be adduced in court in a number of ways: first, by calling witnesses; secondly, by reading the statements of witnesses (where the other side agree with the contents of the statement or where the court has allowed the statement to be read); thirdly, by agreeing the evidence with the other side and writing that evidence down as an agreed fact.
Prosecution Witnesses, Reading Witness Statements and Agreed Facts
"A prosecution witness will usually only be called to give evidence where the defendant disputes the version of events contained in that witness's written statement."
A prosecution witness will usually only be called to give evidence where the defendant disputes the version of events contained in that witness's written statement. For example, the witness may have given a statement to the police that the defendant punched him in the face. The defendant may deny that this ever happened. In these circumstances there is a clear dispute. The prosecution will therefore have to call the witness. The witness will give his version of events and then the defence will cross-examine the witness putting their version of events to him.
Where there is no dispute about the contents of a witness’s statement there is no need to call the witness to court. After all, it would be a complete waste of time and money to bring a witness to court to say something that everyone agreed with. So where the prosecution and the defence agree with the contents of a witness statement that statement can simply be read out to the court. Alternatively, the contents of that witness statement can simply be written down as an agreed fact (a written admission) which is read out and handed into the court during the trial.
An example of the type of prosecution evidence that is often agreed is medical evidence and evidence from police officers regarding a defendant’s arrest. For example, if the allegation was that the defendant had punched the victim in the face and broken his nose, there would be a statement from a doctor at the hospital to confirm the defendant attended A&E and had a broken nose. There would probably be no dispute about this (if the dispute simply concerned how the injury occurred), so in that event the defence would agree this evidence and the statement could simply be read out by the prosecution in court or the contents could be summarised as a agreed facts.
Prosecution Witnesses - Evidence in Chief
When a witness is called to give evidence, he will be asked to give his account of what happened. This is known as his ‘evidence in chief’. It is the witness’s opportunity to tell the court what happened.
A witness will start by entering the witness box and taking the oath or affirmation, i.e. “I swear by almighty God/I do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.” He/she will either read this or the court usher will take the witness through it. A witness will usually stand whilst giving evidence but the judge will allow them to sit down if there’s a good reason to do so.
Once they have taken the oath or affirmed, the legal representative for the prosecution will then ask the witness for their name. A witness will not be asked to reveal his home address unless it is relevant to the case. From this point on the witness will be taken through his account of what happened.
Witnesses (other than defendants) cannot sit in court before they are called to give their evidence. The exception to this rule is expert witnesses who can listen to the evidence before they are called upon to give their expert opinion. Once they have finished giving evidence witnesses can sit in the public galley and watch the rest of the case should they choose to do so. Prosecution witnesses have a private waiting room at court which they can use before giving evidence.
Leading the witness
It is important that the court hears the witness’s account of events, not an account that is moulded by the prosecution advocate who is asking the witness questions. For this reason the prosecution cannot ‘lead’ a witness through his evidence, i.e. the prosecution cannot ask questions constructed in such a way as to suggest the answer.
"If a witness has difficulty remembering what happened, the prosecution can ask the judge for permission (permission is often called ‘leave’ in the criminal courts) to allow the witness to refresh his memory from his witness statement"
A witness is not allowed to rely on his statement to guide him through his evidence. However, if a witness has difficulty remembering what happened, the prosecution can ask the judge for permission (permission is often called ‘leave’ in the criminal courts) to allow the witness to refresh his memory from his witness statement. The test the judge applies in deciding whether to allow this is whether the witness’s memory was ‘significantly better’ when he made his statement than it is now.
Once the prosecution witness has finished giving his account (i.e. completed his evidence in chief) the prosecution advocate will sit down and the defence advocate will stand up to cross-examine the witness.
Special Measures to Assist Witnesses
A number of witnesses will find the process of giving evidence a difficult experience. Witnesses may be fearful for a number of reasons. An obvious example of a category of witness who may find the process of giving evidence in court difficult is child witnesses. For this reason, there are a number of ‘special measures’ which the court can grant to help witnesses give evidence. Many such measures, such as the use of screens (so that the witness and defendant do not see each other) and live video link (where the witness can give evidence from a remote location and they appear on a TV monitor in court) are commonplace.
Other special measures which may be available include pre-recorded evidence in chief, pre-recorded cross-examination, clearing the public gallery so that the court sits in private, use of an intermediary to assist the witness giving evidence and other aids to communication.
You can read more about special measures below in the Magistrates' Court Trial Further Information section.
"The first aim of cross-examination of a prosecution witness is to test their evidence by putting the defendant’s version of events to the witness"
Prosecution Witnesses - Cross-examination
The first aim of cross-examination of a prosecution witness is to test their evidence by putting the defendant’s version of events to the witness. For example, if the prosecution witness has given evidence in chief that the defendant punched him in the face but the defendant denies this ever happened, the defence advocate will put the defendant’s version to the witness. This gives the prosecution witness the opportunity to respond to the defendant’s version of events and either agree or disagree with it. It also means that, by the end of the cross-examination, it should be clear what the defendant’s case is.
The defence will also want to demonstrate through cross-examination that the evidence given by the prosecution witness cannot be relied upon. For example, if a prosecution witness has given a different version of events previously to the version given in evidence to the court, their previous inconsistent statement can be put to them. Similarly, the defence are entitled to focus on the detail of the witness’s evidence to highlight inconsistencies and other matters; the defence can later argue in their closing speech that such inconsistencies etc. reveal the account given is not reliable.
It is no part of the cross-examination process to seek to bully or harass a witness and a judge would stop an advocate who engaged in such behaviour. In any event, shouting at a witness is not effective advocacy; it is far more likely to lose an advocate any sympathy for his or her client than gain it. The most effective cross-examinations are controlled and methodical; they are based on a careful analysis of the case and will often expose weaknesses in the evidence of a witness.
Restrictions on Cross-examination
In cases involving allegations of a sexual nature, complainants cannot be asked questions about their sexual history except with the leave (permission) of the court. There are also restrictions preventing litigants in person conducting a cross-examination in some cases (see just below). You can also find more in the Magistrates' Court Trial Further Information section.
If I am representing myself can I cross-examine a witness?
"If you are representing yourself (in which case you are known as a litigant in person or a defendant in person) there are some restrictions on who you can cross-examine"
If you are representing yourself (in which case you are known as a litigant in person or a defendant in person) there are some restrictions on who you can cross-examine.
If you are charged with a sexual offence you are not entitled to cross-examine the complainant yourself (i.e. you cannot cross-examine the person who has made the allegation against you). You are also not entitled to cross-examine in person a child witness in respect of certain offences. The court can also decide to prohibit a defendant in person from conducting a cross-examination.
Where defendants in person are not entitled to conduct their own cross-examination, they must find a legal representative to conduct the cross-examination on their own behalf; alternatively, the court will appoint a legal representative to do the cross-examination for them where it considers it is in the interests of justice to do so.
The justices’ legal adviser has a duty to assist an unrepresented defendant. (This is contained in Criminal Procedure Rule 24.15(3)(a). See the Magistrates' Court Trial Further Information section for more on the Criminal Procedure Rules)
Prosecution Witnesses – Re-examination
When cross-examination has concluded, the prosecution are entitled to re-examine the witness. Re-examination can only be used to ask further questions about matters arising out of cross-examination; as such, it is usually used to clarify any matters the defendant cross-examined the witness about.
Agreed Prosecution Evidence – Reading Witness Statements and Agreed Facts
After the prosecution has called its witnesses it can then adduce the agreed evidence. As mentioned above, when a witness’s evidence is agreed by the defence the prosecution will either read the statement of the witness out in court or, alternatively, they will write the relevant information from the witness statement down as an agreed fact. The agreed facts will be read out in court and also handed into the Magistrates/District Judge.
Defendant’s Record of Interview
The final piece of evidence the prosecution will adduce is the Record of Interview. Where the defendant has been interviewed by the police at a police station, this will have been audio recorded. The document containing the Record of Interview which is produced at court is generally a summary of the interview. It is rare for it to be a verbatim account of everything a defendant has said, although usually some of the answers are set out fully to avoid ambiguity.
The Record of Interview will be an agreed document between the prosecution and the defence (i.e. they will have edited it together before the trial and agreed a final version for the court). The prosecution will hand the agreed copy to the Magistrates/District Judge and may read it out.
Close of Prosecution case
When all the evidence has been adduced in support of the prosecution case the prosecution advocate will close the case by saying “that is the case for the prosecution” or “that is the case for the Crown.” This indicates that the prosecution have now presented all its evidence. Closing the case should not be confused with the closing speech. A closing speech comes right at the end of the trial after the defence case.