32. At the opening of proceedings, the name of the accused and the name of any person to whom a summons to a parent or guardian was sent under article 11 above shall be called out.
33.—(1) If the accused does not appear when his name is called out or within a reasonable time thereafter, the court shall adjourn and report to the court administration officer.
(2) Where the court administration officer receives such a report, he shall enquire into the matter and, after considering the court’s report and any representations of the prosecutor, decide whether the accused should be arrested with a view to his being brought before the court for his trial.
34. Where it appears necessary to him, the magistrate shall explain to the accused and to any parent or guardian of the accused who is present the function in relation to the proceedings of any member of the court and assessor who is sitting.
35. Subject to articles 36 and 37 below, when the accused appears before the court he shall be arraigned.
36. Where it appears to the court that any accused was or may have been under 17 years of age at the date when the offence with which the accused is charged is alleged to have been committed, it shall before arraignment obtain evidence of his age, in order to satisfy itself that the court is properly constituted in accordance with section 6 of the 1976 Act.
37.—(1) Before the accused is arraigned on any charge sheet, the magistrate or any person whom he authorises shall say to the accused words to the effect of—
“You have the right to elect to be tried by court-martial instead of by this court. Do you wish to elect court-martial trial?”
(2) Subject to paragraphs (3) and (4) below, if any accused elects court-martial trial, the court shall adjourn and report the election in writing to the court administration officer.
(3) If there is another charge-sheet against the accused before the court, the court shall, before adjourning under this paragraph, proceed with the other charge-sheet.
(4) Where two or more accused are jointly charged and one or more but not all of the accused elect court-martial trial, the court shall, before adjourning or complying with paragraph (3) above, explain to each accused who has not so elected the effect of article 17 above.
38.—(1) An accused, before pleading to a charge, may object to—
(a)the magistrate;
(b)any member of the court;
(c)any assessor;
(d)any interpreter.
(2) The accused may object to any interpreter appointed during the course of the trial.
(3) The magistrate shall consider any objection and if he upholds it the court shall—
(a)if the court is still properly constituted, proceed with the case; or
(b)if the court is not still properly constituted, adjourn and report to the court administration officer.
39.—(1) Before an accused is required to plead to a charge, the court may make an order or ruling on—
(a)any question as to the admissibility of evidence;
(b)any other question of law, practice or procedure relating to the case.
(2) If the court allows any application such that there is no charge remaining to which the accused can be required to plead, the proceedings shall be concluded.
40. Where—
(a)an accused is charged with more than one offence; or
(b)two or more accused are charged in the same charge sheet;
and the court rules that the fair trial of an accused may be prejudiced if the charges are not severed or for any other reason it is desirable that the charges are severed, it may—
(i)try only one or more charges;
(ii)try only one or more accused;
(iii)order that any charge or any accused be tried by a differently constituted court.
41.—(1) Where the trial proceeds, the accused shall be required to plead separately to each charge on which he is arraigned.
(2) Where the court is empowered to make a special finding in respect of an offence, the accused may plead guilty to the charge subject to the matters as would merit the special finding.
(3) Where the accused does not plead to the charge or does not plead to it intelligibly, the court shall enter a plea of not guilty.
42.—(1) If an accused pleads guilty to a charge, the court may, if it appears necessary to the magistrate and before the court decides to accept the plea, explain to the accused—
(a)the nature of the charge;
(b)the general effect of the plea; and
(c)the difference in procedure following pleas of guilty and not guilty.
(2) The court shall not accept a plea of guilty if, having regard to all the circumstances, it considers that it should not accept the plea.
(3) Where a plea of guilty is not accepted by the court, the court shall enter a plea of not guilty.
43.—(1) Where an accused pleads guilty to the first of two or more alternative charges, the court, if it accepts the plea, shall record a finding of guilty in respect of that charge and shall give the prosecutor leave to discontinue proceedings in respect of any alternative charge or charges.
(2) Where an accused pleads guilty to any other of two or more alternative charges, the court shall—
(a)if the prosecutor gives his consent—
(i)record a finding of guilty on any charge to which the accused has pleaded guilty,
(ii)record a finding of not guilty on any alternative charge placed before it on the charge sheet, and
(iii)give the prosecutor leave to discontinue proceedings in respect of any further alternative charge or charges; or
(b)if the prosecutor does not give the consent referred to in sub-paragraph (a) above, proceed as if the accused had pleaded not guilty to all the charges.
(3) If the court records a finding of guilty under paragraph (1) or (2)(a) above and subsequently allows the accused to change his plea under article 49 below, the court may reinstate and arraign the accused on any alternative charge which was discontinued.
44.—(1) Without prejudice to any other power of his in relation to the conduct of the proceedings, at any time after the opening of proceedings in respect of a charge the prosecutor may, with the leave of the court—
(a)amend, or substitute another charge or charges for, that charge;
(b)discontinue proceedings on that charge;
(c)prefer an additional charge against the accused.
(2) If in accordance with this article the prosecutor intends to seek the leave of the court to prefer an additional charge, he shall, unless the accused waives the requirement, serve notice of such intention on the accused before the application is made.
(3) Where notice is served on him in accordance with paragraph (2) above, the accused may apply for an adjournment of the trial.
(4) Where the court gives leave to discontinue proceedings on a charge, the court shall consider whether to give the direction provided for in section 83B(14) of the 1955 Act, as applied to Standing Civilian Courts by article 91 below and Schedule 4 to this Order.
45. If after the opening of proceedings it appears that, with due regard to the fairness to the accused, it is desirable in the interests of justice to amend a charge, the court may do so.
46.—(1) This article applies where—
(a)the court has accepted only a plea or pleas of guilty; or
(b)the court has accepted a plea or pleas of guilty and the prosecutor does not proceed to the trial of any charge to which an accused has pleaded not guilty.
(2) This article applies whether the charge sheet is in respect of one or more than one accused.
(3) After the court records a finding of guilty, the prosecutor shall address the court on the facts of the case.
47.—(1) This article applies where in respect of one charge sheet—
(a)the court has accepted a plea or pleas of guilty,
(b)a plea or pleas of not guilty have been entered, and
(c)the prosecutor proceeds to the trial of any charge on which a plea of not guilty has been entered.
(2) This article applies whether the charge sheet is in respect of one or more than one accused.
(3) Unless the magistrate directs otherwise, the trial of any charge on which a plea of not guilty has been entered shall proceed in accordance with this Order before the court considers any guilty plea.
(4) After the court has announced its finding on each charge in respect of which a plea of not guilty has been entered, the court shall consider any guilty plea.
(5) After the court records a finding of guilty in respect of each charge to which the accused has pleaded guilty, the prosecutor shall address the court on the facts of the case.
48.—(1) Where after the court has recorded a finding of guilty in respect of any charge there are disputed facts in the case, any issue of fact may be tried.
(2) Where an issue of fact is being tried in accordance with this article—
(a)the court may direct the prosecutor to call any witness to give evidence, and
(b)the prosecutor and the accused may, with the leave of the court, adduce evidence.
49.—(1) At any time before the court deliberates on its finding on a charge, an accused who has pleaded not guilty to a charge may, with the leave of the court, withdraw his plea and substitute a plea of guilty.
(2) At any time before the court closes to deliberate on its sentence on a charge, an accused who has pleaded guilty to the charge may, with the leave of the court, withdraw his plea and substitute a plea of not guilty.
(3) Where an accused changes his plea, the court shall proceed so far as is necessary as if the initial plea to that charge were the plea substituted.
50. Before calling the witnesses for the prosecution, the prosecutor may make an opening address.
51.—(1) If it appears to the magistrate that the interests of justice so require, the court may adjourn from time to time.
(2) The court shall not sit on Saturday, Sunday, Christmas Day or Good Friday unless in the opinion of the magistrate it is necessary to do so.
(3) The court shall sit at such times and for such periods each day as seems to the magistrate to be reasonable in the circumstances.
52. If at any time during a trial before the court deliberates on its finding it appears to the court that it should, in the interests of justice, view any place or thing, it may adjourn for that purpose.
53.—(1) Where, after the opening of proceedings, in the opinion of the court it is necessary in the interests of justice that that court should not continue with the trial, the court shall, subject to paragraph (3) below, conclude the trial and direct that the accused shall be tried afresh before a differently constituted court.
(2) Any direction made under paragraph (1) above shall be reported to the court administration officer with the charge sheet and the note of proceedings.
(3) Where under any provision of this Order the court has postponed deliberation on sentence after recording a finding of guilty in respect of an offence it may, before concluding the trial in accordance with this article, proceed to sentence in respect of that offence if it considers that it can properly do so.
54. If any member of the court or assessor is absent during any part of a trial at which he has been specified to sit, he shall take no further part in it.
55. Where the court ceases to be properly constituted, the proceedings shall be adjourned and there shall be sent to the court administration officer the charge sheet and the note of proceedings.
56.—(1) If after the opening of proceedings the prosecutor intends to adduce evidence additional to that referred to in the prosecution papers, he shall where practicable serve notice in writing of such intention together with the particulars of the additional evidence on the accused.
(2) Where notice and particulars are served on him in accordance with paragraph (1) above, or where evidence is adduced without such notice being given, the accused may apply to the court for an adjournment of the trial.
57.—(1) Expert evidence shall not be adduced at trial without the leave of the court unless the party proposing to rely on it has served on every other party and the court administration officer, not less than 14 days before the date appointed for the trial, a statement of the substance of the expert evidence.
(2) The statement referred to in paragraph (1) above shall be in writing unless every other party consents to its being made orally.
58.—(1) Any exhibit admitted in evidence shall be marked sequentially with either a number or a letter.
(2) The magistrate shall ensure that a list of exhibits is maintained.
(3) Each exhibit or a label attached to each exhibit shall be signed by the magistrate.
(4) Each exhibit shall be retained with the note of proceedings, unless in the opinion of the magistrate having regard to the nature of the exhibit or for other good reason it is not expedient to retain the exhibit with the note.
(5) Where an exhibit is not retained with the note of proceedings, the magistrate shall ensure that proper steps are taken for its safe custody.
59.—(1) Except for the accused and any expert or character witness, a witness as to fact shall not, except by leave of the court, be in court while not under examination.
(2) If while a witness is under examination a question arises as to the admissibility of a question or otherwise with regard to the evidence, the court may direct the witness to withdraw for the duration of the discussion.
(3) The court may direct any expert or character witness present in court to withdraw if the court considers in the interests of justice that his presence is undesirable.
60.—(1) Any application by the prosecutor or an accused for leave under section 32 of the Criminal Justice Act 1988(1) for evidence to be given by a witness through a live television link shall be made as soon as is practicable after the opening of proceedings.
(2) An application may not be made under paragraph (1) above without the leave of the court unless not less than 28 days before the date appointed for the trial the party making the application has served a notice in writing on every other party, the court administration officer and the magistrate stating—
(a)the grounds of the application;
(b)the name of the witness;
(c)where the witness is under the age of 18, the date of birth of the witness;
(d)the country and place where it is proposed the witness will be when giving evidence; and
(e)the name, occupation and relationship to the witness of any person proposed to accompany the witness and the grounds for believing that person should accompany the witness.
(3) Where the court gives leave for a witness under the age of 14 to give evidence through a live television link, the witness shall be accompanied by a person acceptable to the court and, unless the court otherwise directs, by no other person.
61.—(1) Any application by the prosecutor or an accused for leave under section 32A of the Criminal Justice Act 1988(2) for evidence to be given by a witness by means of a video recording shall be made as soon as is practicable after the opening of proceedings.
(2) An application may not be made under paragraph (1) above without the leave of the court unless not less than 28 days before the date appointed for the trial the party making the application has served a notice in writing together with a copy of the video recording to which the application relates on every other party, the court administration officer and the magistrate stating—
(a)the grounds of the application;
(b)where the witness is under the age of 18, the date of birth of the witness;
(c)the name of the witness;
(d)the date on which the video recording was made;
(e)that in the opinion of the applicant the witness is willing and able to attend court for cross-examination; and
(f)the circumstances in which the video recording was made.
62.—(1) The court may allow a request that the cross-examination or re-examination of a witness be postponed if it is satisfied that there is a good reason for such a request and that there is no injustice to the accused in doing so.
(2) The magistrate may question any witness.
(3) A member of the court sitting with the magistrate and an assessor may, with the magistrate’s permission, question any witness.
(4) If in the opinion of the court it is in the interests of justice to do so, the court may at any time—
(a)call any witness whom it has not already heard;
(b)recall a witness;
(c)permit the accused or the prosecutor to recall a witness.
63.—(1) At the close of the case for the prosecution the accused may submit, in respect of any charge, that the prosecution has failed to establish a prima facie case for him to answer.
(2) If the submission is allowed, the court shall find the accused not guilty of the charge to which the submission relates.
(3) If the submission is not allowed, the court shall proceed with the trial.
64. The court may at any time after the close of the case for the prosecution find the accused not guilty of a charge, provided that the prosecutor has been given the opportunity to address the court on such a finding.
65.—(1) After the close of the case for the prosecution, the magistrate shall satisfy himself that the accused understands—
(a)that he may give evidence in his defence if he wishes but he is not obliged to do so;
(b)the consequences of choosing to remain silent at trial;
(c)that if he chooses to give evidence, he will be liable to be cross-examined by the prosecutor and questioned by the court; and
(d)that he may call witnesses on his behalf.
(2) The accused may make an opening address outlining the case for the defence, but where two or more accused are represented by one legal adviser, only one such address may be made.
66. Except with the leave of the court, if the accused elects to give evidence he shall be called before any other witness for the defence.
67. With the leave of the court, the prosecutor may call or recall a witness to give evidence on any matter raised by the accused in his defence which the prosecutor could not—
(a)properly have dealt with before the accused disclosed his defence; or
(b)reasonably have foreseen.
68.—(1) Subject to paragraph (2) below, the prosecutor and the accused may each make a closing address to the court.
(2) Except with the leave of the court, neither the prosecutor nor the accused may make a closing address to the court if he has already made an opening address, but where one party is granted leave every other party may also make a closing address.
(3) Where two or more accused are represented by the same legal adviser, he may make only one closing address.
69. After any closing address, the court shall deliberate on its finding on each charge.
70.—(1) For the purposes of this Order a special finding is—
(a)where the particulars proved or admitted at the trial differ from those alleged in the charge but are sufficient to support a finding of guilty of the like offence as that charged, a finding of guilty subject to exceptions or variations specified in the finding; or
(b)a finding in accordance with section 98 of the 1955 Act (power to convict of an offence other than that charged) as applied in relation to Standing Civilian Courts by article 91 below and Schedule 4 to this Order.
(2) Before making a special finding, the court shall give the prosecutor and the accused the opportunity to address the court on such a finding.
71.—(1) Where the court has reached a finding on a charge, it shall be recorded in writing, dated and signed by the magistrate.
(2) Each finding shall be announced in open court.
72.—(1) Where the court has recorded a finding of guilty or a special finding on any charge, the accused may request the court to take into consideration any other offence against the 1955 Act committed by him of a similar nature to that of which he has been found guilty or in respect of which a special finding has been made and, upon such a request being made, the court may agree to take into consideration any such offence as to the court seems proper.
(2) A list of the offences which the accused admits having committed and which the court agrees to take into consideration shall be signed by the accused and attached to the note of proceedings.
1988 c. 33; section 32(1)–(3) applies to proceedings before Standing Civilian Courts by virtue of the Criminal Justice Act 1988 (Application to Service Courts) (Evidence) Order 1996 (S.I. 1996/2592) subject to the modifications specified therein.
Section 32A was inserted by the Criminal Justice Act 1991 (c. 53), section 54. Section 32A applies to proceedings before Standing Civilian Courts by virtue of the Criminal Justice Act 1988 (Application to Service Courts) (Evidence) Order 1996 subject to the modifications specified therein.