Binding Rulings – Magistrates’ Court
Introduction
(Section 8A of the Magistrates’ Court Act 1980) as inserted by <section 45> and <Schedule 3 of the Courts Act 2003> provide magistrates’ courts with the power to make binding rulings at a pre-trial hearing.
These provisions come into effect on the 1 April 2005.
What is a Binding Ruling?
(Section 8A of the Magistrates’ Court Act 1980) (the 1980 Act) empowers a magistrates’ court at a pre-trial hearing to make a binding ruling on:
- Any question as to the admissibility of evidence; or
- Any other question of law relating to the case concerned.
However, the magistrates’ court may only make a pre-trial ruling on one of the above matters if the court has given the parties an opportunity to make representations; and that if the defendant is unrepresented that he has been asked if he wants legal representation and if so whether or not to grant him that representation; and that it appears to the court in the interests of justice to make the ruling.
What is a Pre-trial Hearing?
Under (section 8A(1) of the 1980 Act), a hearing is a pre-trial hearing if it relates to an information which is to be tried summarily and to which the defendant has pleaded not guilty, and before the start of the trial.
(Section 8A(2) of the 1980 Act) defines the start of the trial as the start of a summary trial when the court begins to hear evidence from the prosecution at the trial, or to consider whether to exercise its powers to make a hospital order without convicting the accused.
Purpose
The purpose of binding rulings is to determine disputed evidential or legal issues at an early stage in the magistrates’ court proceedings. The provisions are intended to enable preparation for trial and to restrict the opportunity for either party to re-argue the same point at the trial hearings.
Making the Ruling
(Section 8A(6)) states that a ruling may be made on application by any party to the case or of the judge’s own motion. It should be noted that a binding ruling may be made at any stage prior to the commencement of the trial. However, in practice, it is anticipated that binding rulings are likely to be made at the case progression hearing (formally pre-trial hearings), if appropriate.
Guidance
What is likely to be covered by the Rulings?
Binding rulings can be made on:
- The admissibility of evidence; or
- Any other question of law.
Admissibility of evidence under section 8A(4)(a) falls into two groups:
- evidence which is excluded or admitted by a legal rule. This will include evidence excluded under the hearsay rule, admissions admitted under section 10 of the Criminal Justice Act 1967, admission of exhibits or schedules etc; and
- evidence that, while not offending against a legal rule, can be admitted or excluded as a matter of judicial discretion. Examples include confessions, exclusion of evidence under section 78 of the Police and Criminal Evidence Act 1984 and defence applications to exclude evidence of bad character.
Any other questions of law under section 8A(4)(b) is intended to resolve disputes on such matters as the form of the charge; the validity of the proceedings; applications for stay of proceedings for abuse of process; applications for special measures; compliance with disclosure obligations etc.
In our view a binding ruling should rarely be made where a ruling on the admissibility of evidence requires the attendance of witnesses. It is generally inconsistent with our witness care policy to require attendance at a pre-trial ruling and a subsequent trial. Prosecutors must assess whether there is substantial benefit to the case before agreeing to call witnesses at a pre-trial ruling. For example, it would be appropriate to consider a ruling to establish whether the court would give leave to admit important hearsay evidence under <section 116 (2)(e) Criminal Justice Act 2003 (unavailability through fear). It is probable that a police officer would need to attend to establish the “fear” element. The benefits of knowing that a particular piece of evidence is going to be admitted or not may substantially affect the course of the trial. It may even affect whether a trial is required at all. These benefits outweigh the risk that the police officer may be called to give evidence on two occasions. It is likely that this guidance will be revised and updated as we gain experience of the way in which binding rulings develop.
Applications to vary or Discharge Rulings
Once a ruling is made, by virtue of (section 8B(1)) the ruling is binding on the accused, or if there is more than one, against each of them until the case is disposed of. A case is disposed of when the accused is acquitted or convicted, the prosecutor decides not to proceed with the case or the information is dismissed.
(Section 8B(3)) provides that a magistrates’ court, not necessarily the same court (i.e. not the same magistrates) who made the ruling, has the power to vary or discharge the ruling of their own motion or upon application by any party.
However, the magistrates’ court can only vary or discharge a ruling where:
- there has been a material change of circumstances since the ruling was made, or since the last application to vary or discharge was made;
- the court has given the parties an opportunity to make representations; and
- it appears to the court that it is in the interests of justice to do so.
The court may discharge or vary a ruling of its own motion if it appears to be in the interests of justice pursuant to (section 8B(3)(c)), even though the matter only comes to its attention on application made by a party where there is no material change (R v Clayton [1998] 8 Archbold News 3, CA).
Any binding ruling is automatically discharged where the magistrates’ court commits or sends the accused for trial, or a count which is included in the indictment under (section 40 of the Criminal justice Act 1988).
(Section 8C of the 1980 Act) applies reporting restrictions in relation to binding rulings or applications to vary or discharge them. However, under section 8C (4) or (5) the magistrates’ court has the authority to lift or partially lift the reporting restrictions.
(Section 8D) creates a summary offence to publish material in contravention of the restrictions. A prosecution under this section requires the consent of the Attorney General.
Procedure
When reviewing a case, prosecutors will need to:
- Consider whether there are any issues where it would be desirable to seek a binding ruling in advance of the trial;
- Ensure that where such issues are identified, the advocate is fully instructed as to the nature and extent of the application;
- Try to anticipate defence applications for a binding ruling and advise the advocate upon the approach to such an application;
- Ensure that, where a binding ruling is made, the file is clearly and accurately endorsed; and
- An accurate record is made as to any reporting restrictions.
Rules of Court have not been issued for binding rulings. Such formal procedures as may be necessary to deal, for example, with applications to vary or discharge, will therefore need to be developed locally.
Useful Links
(Section 8A of the Magistrates’ Court Act 1980)
<section 45> of the Courts Act 2003
<Schedule 3 of the Courts Act 2003>
(Section 8A of the Magistrates’ Court Act 1980)
(section 8A(1) of the 1980 Act)
(Section 8A(2) of the 1980 Act)
(Section 8A(6))
<section 116 (2)(e) Criminal Justice Act 2003>
(section 8B(1))
(Section 8B(3))
(section 8B(3)(c))
(R v Clayton [1998] 8 Archbold News 3, CA).
(section 40 of the Criminal justice Act 1988).
(Section 8C of the 1980 Act)
(Section 8D)