Drink & Drug Driving in the Magistrates’ Court – Going to trial
Drink driving, drug driving and failing to provide a specimen are all known as ‘summary only offences’. This means that they can only be tried in the Magistrates’ Court. A Magistrates’ Court will consist of 3 lay Magistrates, or a District Judge sitting alone. There are no gowns, wigs or juries in the Magistrates’ Court – it is a much more relaxed and informal environment than what you can expect in higher courts (such as the Crown Court or High Court). An in-depth understanding of trial process in the Magistrates’ Court can significantly increase your chances of winning.
The trial process
At the start of the trial, the Crown has the option to give an opening speech. In practice, the Crown will very rarely make an opening speech. This is because the Magistrates and District Judges are familiar with the type of cases that normally appear before them and they will also have had an opportunity to read the case summary before the trial began. Should the Crown decide to make an opening speech, it is normally very brief and will outline the relevant law and facts.
The Crown will then start to present its evidence. One by one, they will call their witnesses to give evidence. In most cases that our team defend, the witnesses are officers and forensic scientists involved in the case. The witness will normally be present in court and will physically go into the witness box. On occasion, however, a witness may give evidence via ‘live link’, which means that they will not be physically present in court, but will be present in court via a video link. ‘Live link’ helps to reduce the costs associated with bringing prosecution witnesses to court.
Please be aware that, unless otherwise directed by the court, the CPS will be expected to make a ‘link link’ application prior to trial. If the CPS fail to make the application (as is often the case), its witnesses may be prevented from giving evidence at trial
When the Crown call a witness to give evidence, that particular witness will start by giving their ‘evidence in chief’. This is where the Crown’s representative – a barrister or solicitor – will ask a series of questions to the witness so that they have the opportunity to tell their story. In a drink/drug driving or failing to provide a specimen case, the majority of witnesses are normally police officers. On occasion, there may be lay witnesses giving evidence of a purely factual nature, for example “I saw the defendant driving the car from the car park to Smithdown Road”.
There are strict rules in relation to the questions that can be asked of a witness during evidence in chief. The key principle is that leading questions are prohibited (unless both sides agree that a witness can be lead on a certain point). This means that a witness cannot be asked a question that implies the answer. To give an example, a leading question would be “Officer, you completed the form MGDDA during the breathalyser procedure, didn’t you?” This type of question is not allowed. Instead, the question should be phrased “Officer, explain to the court what happened during the breathalyser procedure”.
Once the witness has given their evidence in chief, it is the turn for your representative to cross examine that witness. The rules for cross examination are much more relaxed than the rules for evidence in chief. For the most part, any type of question, including leading questions, are allowed. The purpose of cross examination is to undermine the evidence given by, and the credibility of, a witness. If a witness says something during their evidence in court that differs from something that they have written in their previous witness statement, then this will be exposed in cross examination. This is known as a previous inconsistent statement.
M.A.J. Law will frequently find fault with evidence presented by witnesses whilst in court, even if the prosecution’s ‘evidence on paper’ appears to be accurate. The general rule is that you should always push a case to trial (assuming there are sufficient grounds to do so). If you plead guilty prior to a trial, you may be letting the CPS “off the hook”. Many cases are dismissed because CPS witnesses failure to turn up for trial, this includes police officers.
This process of examination in chief followed by cross examination will continue until the crown has called all of its witnesses. On occasion, there may a witness on behalf of the Crown that is giving evidence that is not contentious (i.e. the Defence do not take issue with that witness’ evidence). In these circumstances, their witness statement will simply be read to the court and the witness will not be cross examined.
Any witness waiting to give evidence must wait outside of the court room until they are called. They should not be able to hear the evidence in the case. The only exception is if a witness is a party to the case or if the witness is an expert.
Once the Crown has called all of its witnesses, it is then the turn of the Defence to present its case. The Crown would not give a closing speech at this stage.
The Trial Process – the defence case
Before calling any witnesses, the Defence can make a submission of no case to answer (known also as a half time submission). This would be done if Crown’s case is particularly weak, or has failed to prove an essential element of the offence (such as whether the defendant was the driver). It must be shown by the Defence that the Crown’s case, taken at its strongest, is insufficient for any reasonable court properly to convict. The Crown would then have the opportunity to respond to such a submission.
If a half time submission is not made, or if it is made unsuccessfully, the Defence will proceed to call its witnesses. One by one, the Defence witnesses will go into the witness box to give evidence. It is the same procedure as before, only this time the Defence representative asks questions during examination in chief and the Crown’s representative asks questions during cross examination. Defence witnesses usually include;
- The defendant
- An expert witness
- Friends or family of the defendant (who witnessed consumption, for example)
- Witnesses to corroborate the defendant’s account
As a Defendant, you have the option as to whether you wish to give evidence. There is no requirement for you to give evidence. The Court has the right to draw an adverse inference if you do not give evidence (i.e. that you have something to hide), but an adverse inference would normally only be drawn if a substantive defence was being raised and you did not give evidence.
…any damage caused by an adverse inference may be less than the damaged caused by the defendant giving evidence.
An example of a substantive defence would be to argue that you were not the driver of the vehicle. If you are merely raising a technical defence, for example that the breathalyser procedure was conducted incorrectly, then it is quite normal in many circumstances that you would not give evidence as your evidence would be unlikely to add much weight to the proceedings.
Once all defence witnesses have been called, the Crown has the opportunity to give a closing speech. Once the Crown has made a closing speech, if any, your representative in court would then close their case.
Once the closing speeches have been given, a lay bench would retire to consider its verdict before giving judgment. District Judges may retire to consider their verdict, but normally they would give their judgment as soon as the closing speeches conclude.
If the decision is that you are not guilty, the matter will end there and you are free to leave court. If you are convicted, the court will then move on to sentencing.
During a sentencing exercise, the Crown will give details of your character and previous convictions (if any). A pre-sentence report would then be placed before the court (if it exists) – usually only required in the more serious cases, such as breath readings in excess of 90 microgrammes. Your representative would then make a plea in mitigation, which is an argument trying to persuade the court to give you a more lenient sentence. The court would then pass sentence which would take effect immediately.