Magistrates' Courts Rules (Northern Ireland) 1984

Made: 26th June 1984

Coming into operation: 3rd September 1984

The Lord Chancellor[^f00001] in exercise of the powers conferred on him by Article 13 of the Magistrates' Courts (Northern Ireland) Order 1981[^f00002] hereby, on the advice of the Magistrates' Courts Rules Committee and after consultation with the Lord Chief Justice, hereby makes the following Rules:

PART I — Citation, Interpretation and Commencement, Etc.

Citation

1

These Rules may be cited as the Magistrates' Courts Rules (Northern Ireland) 1984.

Interpretation

2

• (1) In these Rules “the Order” means the Magistrates' Courts (Northern Ireland) Order 1981.

• (2) Any reference in these Rules to members of the Royal Ulster Constabulary shall include a reference to members of the Royal Ulster Constabulary Reserve on duty with the Royal Ulster Constabulary.

• (3) In these Rules:—

• (a) “chief clerk” has the meaning assigned to it by Article 2(2) of the County Courts (Northern Ireland) Order 1980[^f00003]; and

• (b) “scheduled offence” has the meaning assigned to it by section 30(1) of the Northern Ireland (Emergency Provisions) Act 1978[^f00004].

• (4) Any reference in these Rules to a Form by number is a reference to that Form so numbered in Schedule 1.

Commencement

3

These Rules shall come into force on 3rd September 1984.

Revocation of existing rules

4

The following Rules are hereby revoked as from the coming into force of these Rules:—

• the Magistrates' Courts Rules (Northern Ireland) 1974[^f00005];

• the Magistrates' Courts (Emergency Provisions) Rules (Northern Ireland) 1976[^f00006];

• the Magistrates' Courts (Amendment) Rules (Northern Ireland) 1976[^f00007];

• the Magistrates' Courts (Amendment No. 2) Rules (Northern Ireland) 1976[^f00008];

• the Magistrates' Courts (Extra-territorial Offences) Rules (Northern Ireland) 1976[^f00009];

• the Magistrates' Courts (Amendment No. 3) Rules (Northern Ireland) 1976[^f00010];

• the Magistrates' Courts (Amendment) Rules (Northern Ireland) 1977[^f00011];

• the Magistrates' Courts (Amendment No. 2) Rules (Northern Ireland) 1977[^f00012];

• the Magistrates' Courts (Amendment) Rules (Northern Ireland) 1978[^f00013];

• the Magistrates' Courts (Amendment) Rules (Northern Ireland) 1979[^f00014];

• the Magistrates' Courts (Attachment of Earnings) Rules (Northern Ireland) 1980[^f00015];

• the Magistrates' Courts (Amendment) Rules (Northern Ireland) 1980[^f00016];

• the Magistrates' Courts (Criminal Justice) (Amendment) Rules (Northern Ireland) 1980[^f00017];

• the Magistrates' Courts (Amendment No. 2) Rules (Northern Ireland) 1980[^f00018];

• the Magistrates' Courts (Amendment No. 3) Rules (Northern Ireland) 1980[^f00019].

• the Magistrates' Courts (Amendment No. 4) Rules (Northern Ireland) 1980[^f00020].

Saving for the Magistrates' Courts (Children and Young Persons) Rules (Northern Ireland) 1969

5

Subject to the Children and Young Persons Act (Northern Ireland) 1968[^f00021], nothing in these Rules shall affect the operation of the Magistrates' Courts (Children and Young Persons) Rules (Northern Ireland) 1969[^f00022].

PART II — Documents

Wording, etc., of documents

6

• (1) Every complaint, summons, warrant or other document made or issued for the purpose of, or in connection with, any proceedings before a magistrates' court for an offence shall be sufficient if it describes the specific offence with which the accused is charged, or of which he is convicted, in ordinary language avoiding as far as possible the use of technical terms, and gives such particulars as may be necessary for giving reasonable information as to the nature of the charge.

• (2) Every complaint, summons, warrant or other document in proceedings upon complaint in a civil matter shall be sufficient if it describes the cause of complaint in ordinary language without necessarily stating all the facts upon which the complaint is founded and gives such particulars as may be necessary for giving reasonable information as to the nature of the complaint.

• (3) If the offence charged or cause of complaint is one created by or under any statutory provision, the description of the offence or cause of complaint shall contain a reference to the section of the Act, or, as the case may be, the rule, order, regulation, bye-law or other instrument giving rise to the offence or the cause of complaint unless such reference appears elsewhere on the face of any summons or warrant issued in respect thereof.

• (4) Subject to the foregoing paragraphs, the forms set out in Schedule 1 or forms to the like effect shall, where appropriate, be used in connection with proceedings to which the Rules relate.

Form of complaint

7

• (1) A complaint may be made by the complainant in person or by his solicitor or by any other person authorised in that behalf.

• (2) Subject to any enactment, where it is intended that a summons only shall issue to require the attendance of any person, the complaint may be made either upon or without oath, and either in writing or not, as the justice of the peace receiving the complaint thinks fit.

• (3) Where a complaint is in writing it shall be signed by the person making it and by the justice receiving it.

• (4) Where it is intended that a warrant shall issue for the arrest of any person, the complaint shall be in writing and on oath of the complainant or of his solicitor or of any other person authorised in that behalf.

• (5) Any person against whom a complaint has been made in writing or his counsel or solicitor shall be entitled on request to receive from the clerk of petty sessions a copy of such complaint.

• (6) The original complaint shall be deposited with and, except as provided by Rule 28(2), Rule 42(1) or Rule 155(1), retained by the clerk of petty sessions.

• (7) In describing the property mentioned in any complaint—

• (a) where the property belongs to or is in the possession of partners, trustees, joint tenants, coparceners, or tenants in common, it is sufficient to refer to such property as that of any such persons who are named and of another or others, as the case may be, without naming them; or

• (b) where the property is that of a local or public authority, commissioners, directors, trustees, a body corporate or persons known by any other general designation it shall be sufficient to refer to it as the property of such persons without naming them individually.

• (8) It shall not be necessary in a complaint to specify or negative an exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence or cause of complaint contained in the statutory provision giving rise to the offence or on which the complaint is founded.

Form of summons

8

• (1) Every summons shall be signed by the person who issues it.

• (2) No summons shall be signed in blank.

• (3) Where there is more than one defendant a separate summons shall be issued in respect of each defendant.

• (4) Every summons shall state shortly the offence or cause of complaint and shall state the time and place at which the person summoned is required to appear.

• (5) A single summons may be issued against a person in respect of several complaints but the summons shall state each offence or cause of complaint separately and shall have effect (except for the purposes of an order made under section 116 of the Judicature (Northern Ireland) Act 1978)[^f00023] as several summonses, each issued in respect of one complaint.

• (6) The name and address of the complainant and the name and, where possible, the usual or last-known address of the person summoned shall be stated in the summons

Preparation of summons

9

• (1) Subject to paragraph (2), the complainant or, where the summons is a witness summons, the person applying for the issue of the summons shall be responsible for the preparation of any necessary summons.

• (2) Where the complainant or the person applying for the issue of a witness summons is not a solicitor or a member of the Royal Ulster Constabulary the justice of the peace receiving the complaint or granting the application may direct the clerk of petty sessions to assist in the preparation of a summons.

• (3) References in this Rule to a summons include any copy thereof for service.

Plea of guilty by post

10

• (1) Where it is intended to make the procedure of pleading guilty by post under Article 24(1)(i) of the Order available to a defendant the summons shall be accompanied by Forms 3, 4 and 6.

• (2) Notice in writing of the service of such a summons shall be given by or on behalf of the complainant to the clerk of petty sessions pursuant to Article 24(1) of the Order and shall be in Form 5.

• (3) Where the defendant elects to enter a plea of guilty in writing pursuant to Article 24(2) of the Order he shall do so in Form 6.

• (4) Where a person has been convicted upon his written plea of guilty and the Court decides to adjourn the hearing before passing sentence, the clerk of petty sessions shall give to the defendant notice in writing of the time and place of the adjourned hearing and shall specify the reason for the adjournment.

Service of summons

11

• (1) In cases of offences prosecuted by a member of the Royal Ulster Constabulary, the summons shall, subject to Rule 12, be served by another member thereof.

• (2) In other cases, the summons shall, subject to Rule 12, be served by—

• (a) the summons server of the petty sessions district in which the proceedings are brought or in which the defendant or witness resides; or

• (b) any person who has received permission from a resident magistrate or other justice of the peace' or from the clerk of petty sessions to serve the summons;

and any such permission shall be endorsed on the original summons and signed by the person giving it.

• (3) In no case shall a summons be served by the complainant, or a director, partner or employee of the complainant.

• (4) Subject to Rule 13 every summons shall be served upon the person to whom it is directed by delivering to him a copy of such summons, or, where he is a child or young person within the meaning of Part IV of the Children and Young Persons' Act (Northern Ireland) 1968 on a parent of such child or young person summoned in connection with proceedings against such child or young person or where the summons alleges a summary offence or is issued upon complaint in a civil matter or is a witness summons, by leaving it for him with some person apparently over the age of sixteen years at his usual or last known place of abode? or at his place of business.

• (5) In the case of a corporate body, a summons shall be served by delivering a copy to the secretary or clerk of the body or by leaving a copy for him with some person apparently over the age of sixteen years at its registered or principal office or at any place of business maintained by such body in Northern Ireland, or by sending a copy by registered post or by the recorded delivery service (using the advice of delivery form) in ah envelope addressed to such corporate body at such office or place of business.

Notwithstanding anything in paragraph (2), in a case where service is effected by registered post or by the recorded delivery service, the envelope containing the copy summons may be posted by any person other than the complainant.

• (6) Every summons shall be served a reasonable time before the hearing of the complaint.

• (7) In every case the person who serves a summons shall endorse on the original the date, place and manner of service and, unless service shall be proved by affidavit, shall attend at the hearing of the complaint to depose, if necessary, to such service and, in the case of service upon a corporate body by registered post or by the recorded delivery service under paragraph (5), shall attach to the affidavit or produce to the court the certificate of posting and, subject to Rule 13(2)(a), the relevant advice of delivery issued by the Post Office.

• (8) Nothing in this Rule shall affect the provisions of any statutory provision dealing with the time and manner of service and the person who may serve summonses in particular cases.

Service of a summons in England and Wales or Scotland

12

• (1) A summons requiring a person in England and Wales or Scotland charged with an offence to appear before a magistrates' court in Northern Ireland may, subject to paragraph (4), be served by any member of a home police force within the meaning of the Police Act 1969[^f00024] or by a person employed by the chief officer of police or the police authority for the area in which the summons is to be served who is authorised by the chief officer of police to serve summonses.

• (2) Service of the summons may be proved by an affidavit in Form 109 sworn in England and Wales before a justice of the peace or clerk to the justices or in Scotland before a sheriff, justice of the peace or sheriff clerk.

• (3) The summons shall be served by delivering a copy to the person charged at least 14 days before the date of the hearing.

• (4) Where the summons is to be served on a corporate body in England and Wales or Scotland, paragraph (5) of Rule 11 shall have effect as if the words “in Northern Ireland” were omitted.

• (5) Paragraphs (4) and (6) of Rule 11 shall not apply to the service of a summons under this Rule.

Postal service of summonses other than for offences prosecuted by the Royal Ulster Constabulary

13

• (1) Where a resident magistrate or the clerk of petty sessions is satisfied that it is not reasonably practicable to serve a summons to which paragraph (2) of Rule 11 applies in accordance with that Rule, the resident magistrate or clerk of petty sessions may permit the summons server to serve the summons by post in accordance with paragraph (2)(a).

• (2) The summons server of the petty sessions district in which the proceedings are brought shall—

• (a) send by registered post or by the first-class postal recorded delivery service (using the advice of delivery form, save where the resident magistrate in exceptional circumstances dispenses with this requirement) a copy of the summons in an envelope addressed to the person to be served at his usual or last-known place of abode or at his place of business; and

• (b) endorse on the original summons the name of the summons server, the date on which it was posted and the serial number on the envelope and on the Post Office receipt of postage.

• (3) Evidence (either oral or by affidavit) of such service shall be given at the hearing of the complaint by the summons server who shall produce to the court or, as the case may be, attach to the affidavit the following documents:—

• (a) the original summons endorsed by him with the particulars referred to in paragraph (2)((b);

• (b) the Post Office receipt of postage;

• (c) subject to paragraph (2)(a), the relevant Post Office advice of delivery.

• (4) Subject to paragraph (2)(a), a summons proved to have been posted and delivered as aforesaid shall, unless the contrary is shown, be deemed to have been served on the person to whom the envelope containing it was addressed at the time stated in the Post Office advice of delivery.

• (5) Nothing in this Rule shall derogate from the provisions of any enactment within the meaning of section 1 of the Interpretation Act (Northern Ireland) 1954[^f00025] (other than Rule 11) under which proof of personal service of a summons upon the person to be served is required.

• (6) Where the summons server informs the clerk of petty sessions that the envelope containing a copy of a summons, postal service of which has been permitted under paragraph (1), has been returned by the Post Office on the ground that delivery of the envelope was not accepted by anyone at the address of the person to be served, the clerk shall forthwith give notice thereof in writing to the complainant named in the summons or to his solicitor and transmit to the complainant or, as the case may be, his solicitor the documents listed in paragraph (8)(a), (b), (c) and (d).

• (7) The complainant or his solicitor may thereupon either verbally or in writing request a resident magistrate to grant permission for the summons to be served by ordinary post.

• (8) A resident magistrate may grant such permission upon production of—

• (a) the original summons endorsed under paragraph (2)(b);

• (b) the Post Office receipt of postage;

• (c) the copy of the summons enclosed in the envelope containing it returned by the Post Office as undelivered;

• (d) the form of advice of the Post Office that the envelope containing such copy could not be delivered according to the practice of the Post Office as to delivery by registered post or, as the case may be, by the recorded delivery service because delivery of the envelope was not accepted by anyone at the address of the person to be served;

• (e) a certificate in Form 117 signed by the complainant or his solicitor or other person authorised to do so on his behalf that, having regard to the reason given by the Post Office for non-delivery of the envelope containing the copy summons addressed to the person to be served stated in the form of advice referred to in sub-paragraph (d), to the best of his knowledge or belief a copy of the summons if sent by ordinary post to the person to be served at the address stated in the summons will, for the reason stated by the complainant in the certificate, come to the notice of that person a reasonable time before the date on which he is summoned to appear before the court;

and shall endorse such permission on the original summons.

• (9) Where such permission is granted the summons server shall—

• (a) send the copy of the summons by ordinary post in an envelope addressed to the person to be served at his usual or last known place of abode or at his place of business; and

• (b) endorse on the original summons the place and date of posting of such copy to the person to be served.

• (10) Subject to paragraph (11) the summons server shall attend at the hearing of the complaint stated in the summons to depose as to compliance with this Rule.

• (11) Where proof of such compliance is given on affidavit in accordance with Article 126 of the Order the documents referred to in paragraph (9)(a) to (e) shall be attached to the affidavit.

• (12) The copy of the summons posted in accordance with this Rule shall, unless the contrary is proved, be deemed to have been served at the time at which the envelope containing it would have been delivered in the ordinary course of post.

• (13) In this Rule a reference to the summons server includes any person who has under Rule 11(2)(b) received the permission of a resident magistrate, justice of the peace or clerk of petty sessions to serve a summons.

Form of warrant or order

14

• (1) Subject to paragraph (2), a warrant or form of order issued to give effect to the order of a magistrates' court shall be signed by the resident magistrate or justice of the peace who made the order or by the clerk of petty sessions.

• (2) A warrant to arrest or warrant to search must be signed by a resident magistrate or justice of the peace.

• (3) No warrant shall be signed in blank.

• (4) Every warrant shall state shortly the offence charged in the complaint or the grounds on which the warrant is issued.

• (5) A warrant shall name in full or otherwise describe the person against whom it is issued.

Separate warrants to be issued for each sentence imposed

15

• (1) Subject to paragraphs (2) and (3), where a magistrates' court imposes more than one sentence upon a person convicted of more than one offence a separate warrant of distress or commitment shall be issued for the purpose of giving effect to each sentence.

• (2) Where the court in imposing more than one sentence of imprisonment upon any person orders that the sentences are to run concurrently—

• (a) a warrant of commitment need not, unless under special circumstances the governor of the prison to which such person is committed otherwise requests, be issued in respect of a sentence which will expire before or on the expiration of any such sentence in respect of which a warrant of commitment has been issued; and

• (b) where only one warrant of commitment is issued under this paragraph the clerk of petty sessions shall send to the said governor, together with the warrant, particulars of the sentences which are not specified in the warrant.

• (3) Where the court orders a person convicted of more than one offence at the same time to be sent for a period of detention in a young offenders centre or to a training school or commits a child or young person to a remand home in accordance with section 74 of the Children and Young Persons Act (Northern Ireland) 1968 only one warrant need be issued for the purpose of giving effect to such order and the clerk of petty sessions shall send particulars of any conviction and order not specified in the warrant to the person in charge of the young offenders centre, training school or remand home, as the case may be.

• (4) Where a sentence of imprisonment is imposed to run concurrently with or consecutively to another sentence of imprisonment, the fact shall be stated on the warrant of commitment.

• (5) Where a sentence of imprisonment is imposed to run concurrently with or consecutively to a period for which a person is ordered to be returned to prison under Article 3 of the Treatment of Offenders (Northern Ireland) Order 1976[^f00026] the fact shall be stated on the warrant of commitment.

• (6) Where the court makes an order for the return of a person to prison under that Article a warrant of commitment shall in every case be issued in pursuance of the order.

Endorsement of warrants of commitment as to release on bail

16

• (1) Where a magistrates' court commits an accused for trial in custody in accordance with Article 37 of the Order or remands an accused in custody in accordance with Article 47 of the Order it may certify its consent to bail either on a separate form or by endorsement on the warrant of commitment and the certificate of such consent may be signed on behalf of the court by the clerk of petty sessions.

• (2) The certificate, in addition to specifying the amount of the recognizance to be entered into by the accused, shall also specify the amount of the recognizance to be entered into by any surety required by the court under Article 136 of the Order or the amount of any sum of money or valuable security to be deposited under Article 137 of the Order in lieu of sureties.

• (3) Where an accused is remanded in custody or is committed for trial in custody and is subsequently granted bail before the expiration of the period for which he was originally remanded or before the sitting of the court to which he is committed for trial, upon an application by or on behalf of the accused to the court, the court shall issue a warrant for his discharge from prison to take effect from the completion of the necessary recognizance.

Binding over complainant to prosecute or give evidence upon issue of warrant

17

• (1) When a resident magistrate or justice of the peace issues a warrant for the arrest of any person he may bind the person making the complaint by recognizance to appear at the court where such person is to be tried to prosecute or to give evidence, as the case may be.

• (2) The recognizance may either be in a separate form or at the foot of the complaint.

Withdrawal of warrants

18

A resident magistrate or justice of the peace who orders the withdrawal of a warrant under Article 158 of the Order shall endorse his reasons for such withdrawal upon the warrant.

The Order Book

19

• (1) In every proceeding (other than one to which Part VI of the Order applies) the clerk of petty sessions shall enter the particulars of the proceeding and the substance of the decision upon it in a book to be known as the “Order Book” and such particulars may, subject to any directions given by the Lord Chancellor or a resident magistrate, be entered by reference to any other proceedings, particulars of which have previously been fully so entered.

• (2) Subject to paragraph (3) such entry shall be signed by the resident magistrate or justice of the peace who determined the proceeding and after Such signature shall be deemed a conviction or order, as the case may be.

• (3) Where a page of the Order Book contains more than one consecutive complete entry relating to proceedings determined by the same resident magistrate or justice of the peace on the same date, it shall be sufficient compliance with paragraph (2) as regards each such entry if he signs at the end of the last such entry.

• (4) Where a resident magistrate or justice of the peace has made a conviction or order out of petty sessions he shall, if an Order Book is not signed, Sign and forward a certificate of the proceedings to the clerk of petty sessions, which certificate when signed shall be deemed a conviction or order, as the case may be.

• (5) Upon receipt of the certificate referred to in paragraph (4) the clerk of petty sessions shall enter the particulars on the certificate in the Order Book and submit the entry to the resident magistrate or justice of the peace who signed the certificate for his signature. If the resident magistrate or justice of the peace does not for any reason sign the entry in the Order Book the clerk shall make a special entry to that effect in the Order Book opposite to the entry relating to the proceedings and shall preserve the original certificate as a record of the proceedings.

• (6) Where a justice of the peace hears and determines out of petty sessions any charge against an adult for an offence specified in Part II of Schedule 1 to the Order, the fact that the person charged has consented to be dealt with in accordance with Article 18(3) of the Order shall be entered in the Order Book as part of the order.

• (7) Where at the hearing of a complaint charging a summary offence or where at the summary trial of an indictable offence the accused pleads guilty, the court shall cause the plea to be entered in the Order Book as part of the order.

• (8) Where a court—

• (a) tries summarily any offence for which the accused appearing in person is entitled in accordance with Article 29 of the Order to claim to be tried by a jury; or

• (b) deals summarily under Article 45 of the Order with any person charged with an indictable offence specified in Schedule 2 to the Order upon his consent to be so dealt with;

the court shall cause to be entered in the Order Book as part of the order his election to be tried summarily or as the case may be.

• (9) Where a magistrates' court adjourns a case under Article 50 or Article 51 of the Order the court shall explain to the accused the reasons for the adjournment and shall cause a note of those reasons to be entered in the Order Book as part of the order.

• (10) Where an application is made to a magistrates' court for the grant of a civil aid certificate or a criminal aid certificate, the court shall cause a note of the grant or refusal thereof to be entered in the Order Book.

• (11) Where the sitting of a magistrates' court is adjourned by a clerk of petty sessions under Article 161(5) of the Order he shall make a note of such adjournment in the Order Book.

• (12) No erasure shall be made of the particulars entered upon the Order Book.

• (13) Every interlineation or other alteration in the Order Book shall be initialled by the resident magistrate or justice of the peace signing the entry of the conviction or order.

Certificate of conviction or order

20

• (1) At the request of any person with a bona fide interest in any proceedings a resident magistrate, justice of the peace or clerk of petty sessions shall grant a certificate of the conviction or order made in such proceedings.

• (2) The certificate shall be signed by the resident magistrate or justice of the peace who made the conviction or order or by any justice of the peace for the same petty sessions district or by the clerk of petty Sessions.

• (3) A certificate under this Rule shall be prima facie evidence of the conviction or order and, except where it is proved that such a certificate purporting to be signed by a resident magistrate or justice of the peace or clerk of petty sessions was not in fact so signed, the certificate shall operate as a valid form of conviction or order for any purpose whatsoever.

Documents taken by or made before resident magistrates or justices of the peace sitting out of petty sessions

21

Every complaint, deposition, recognizance or other document taken by or made before a resident magistrate or justice of the peace sitting out of petty sessions shall as soon as practicable be forwarded or delivered to the clerk of petty sessions for the district in which the resident magistrate or justice of the peace was sitting or acting.

Signing of documents on behalf of clerk of petty sessions

22

Where these Rules provide that a document shall or may be signed by the clerk of petty sessions or that an affidavit or statutory declaration may be sworn or made before or recognizance may be taken by the clerk of petty sessions, that document may be signed by, or, as the case may be, that affidavit or declaration may be sworn or made before or that recognizance may be taken by a person holding a rank not lower than executive officer, grade two duly authorised by the clerk of petty sessions or by a resident magistrate to do so.

PART III — Criminal Proceedings

A. SUMMARY TRIAL

Order of proceedings on the hearing of a complaint charging a summary offence

23

• (1) The procedure for hearing a complaint charging a summary offence shall be as follows:—

• (a) the substance of the complaint shall be stated to the accused and, if necessary, explained to him before a plea is taken;

• (b) where the accused pleads guilty to the complaint the court shall, if it sees no reason to the contrary, convict or make an order against him accordingly but before making such conviction or order the court shall allow the prosecutor or his counsel or solicitor and then the accused or his counsel or solicitor to address the court;

• (c) where the accused does not plead guilty, the prosecutor or his counsel or solicitor shall call the evidence for the prosecution and before doing so may address the court;

• (d) at the conclusion of the evidence for the prosecution, the accused or his counsel or solicitor may address the court, whether or not he afterward calls evidence;

• (e) at the conclusion of the evidence, if any, for the defence, the prosecutor or his counsel or solicitor may, with the leave of the court, call evidence to rebut that evidence;

• (f) at the conclusion of the evidence, if any, for the defence and the evidence, if any, in rebuttal as aforesaid, the accused or his counsel or solicitor may address the court—

• (i) if he has not previously done so; or

• (ii) with the leave of the court, if the accused and any other witness have been called on the part of the accused;

• (g) if the court convicts the accused he or his counsel or solicitor may address the court in mitigation of sentence:

Provided always that, notwithstanding anything in the previous provisions of this Rule, the court may permit or invite the accused or the prosecutor or his counsel or solicitor to make a submission on a point of law arising at any stage of the proceedings and in that event the court shall permit the prosecutor or the accused or his counsel or solicitor, as the case may be, to reply.

• (2) Where the court convicts the accused, the prosecutor shall, subject to paragraph (4), hand to the court and, where the accused appears in person or by counsel or solicitor, to the accused or his counsel or solicitor a written statement of any previous conviction of the accused.

• (3) The court—

• (a) where the accused appears in person or by counsel or solicitor, shall ask the accused or his counsel or solicitor if he agrees with the statement and, if he does so agree; or

• (b) where the accused does not appear in person or by counsel or solicitor,

shall not in making any order upon the conviction make any oral reference to any previous conviction of the accused which it has not taken into consideration in making such order and which in the opinion of the court is not relevant to the order so made.

• (4) Where a written statement such as is referred to in paragraph (2) is not available and the court considers it expedient so to do, it may ask the prosecutor to refer orally only to any previous conviction to which he considers the court ought to have regard because of its date or nature or it may adjourn proceedings in accordance with Article 50 of the Order to enable paragraph (2) to be complied with.

• (5) The failure of the prosecutor to comply or adequately to comply with the provisions of paragraphs (2) to (4) shall not affect the validity of any conviction of or of any sentence passed on the accused.

• (6) A notice of intention to cite previous convictions in Form 7 shall be served on the defendant not less than seven days before the date fixed for hearing.

B. RIGHT TO CLAIM TRIAL BY JURY FOR CERTAIN SUMMARY OFFENCES

Procedure in relation to certain offences to which Article 29 of the Order applies

24

• (1) Where the accused appearing in person is charged with an offence (other than a scheduled offence) to which paragraph (1) of Article 29 of the Order applies, after the substance of the complaint is stated to the accused and before he pleads thereto, the court shall, subject to paragraphs (2) and (3)—

• (a) address the accused as follows:—

For the offence with which you are charged you may be tried summarily but you have a right to claim to be tried by jury

• (b) if desirable, give to the accused any information as to the court to which he may be committed for trial and any explanation as to the meaning of being tried summarily;

• (c) address the accused as follows:—

Instead of being tried summarily do you wish to claim your right to be tried by a jury?

• (2) Where the accused appearing in person is charged with an offence to which Article 29(4) of the Order applies, after the substance of the complaint is stated to the accused and before he pleads thereto, the court shall—

• (a) address the accused as follows:—

For the offence with which you are charged you may be tried summarily but if you have previously been convicted of a like offence, but not otherwise, you may have the right to be tried by a jury.

• (b) if desirable, give to the accused any information as to the court to which he may be committed for trial and any explanation as to the meaning of being tried summarily;

• (c) address the accused as follows:—

If you have the right to be tried by a jury, do you wish to claim it or do you wish to be tried summarily?

• (d) if the accused in answer to the last question claims to be tried by a jury, inquire into the record of the accused for the purpose of verifying his claim but such inquiry shall be confined to matters necessary for such verification.

• (3) Where the accused appearing in person is charged with a scheduled offence to which paragraph (1) of Article 29 of the Order applies, after the substance of the complaint is stated to the accused and before he pleads thereto, the court shall—

• (a) address the accused as follows:—

For the offence with which you are charged you may be tried summarily but you have a right to claim to be tried at the Crown Court sitting in Belfast without a jury.

• (b) if desirable, give to the accused any explanation as to the meaning of being tried by a court without a jury;

• (c) address the accused as follows:—

Instead of being tried summarily do you wish to claim your right to be tried at the Crown Court sitting in Belfast without a jury?

• (4) It shall be sufficient compliance with this Rule requiring the court to address the accused for the presiding resident magistrate to cause the accused to be addressed in the appropriate manner by an official of the court.

C. PRELIMINARY INVESTIGATIONS

Service of statement of complaint before preliminary investigation

25

• (1) The prosecutor shall a reasonable time before the day fixed for the taking of a deposition in a preliminary investigation (other than a deposition relating to the arrest or, where directed by the court, the remand of the accused), cause to be served on the accused a written statement setting out each complaint in numerical order (in these Rules referred to as “the statement of complaint”) and shall at the same time serve a copy thereof on the clerk of petty sessions.

• (2) The statement of complaint shall be served on the accused in the same manner as a summons upon complaint for an indictable offence is required to be served under Rule 11.

Proceedings at a preliminary investigation

26

• (1) At a preliminary investigation evidence relating to the arrest of the defendant shall be given and a deposition thereof shall be taken.

• (2) Unless the court otherwise directs, a deposition solely relating to an application for the remand of the accused is not required.

• (3) A magistrates' court conducting a preliminary investigation shall cause the charge to be read to the accused and shall, if necessary, explain its nature in ordinary language.

• (4) Where there is more than one charge and the court is satisfied that the accused can read and will not be prejudiced, the court may instead of causing each charge to be read to the accused, draw the attention of the accused to the statement of complaint and then—

• (a) the clerk shall make public the nature of the charges by reading aloud and in full at least one charge in each category of the offence charged;

• (b) each of the other charges relating to the same category of offence may then be put to the accused by referring to the number of the charge and adding such other particulars as, without a full reading, may enable the accused to understand the charge and follow it on the statement of complaint.

The presiding resident magistrate or justice of the peace may at any time cause any charge to be read or read again to the accused.

• (5) Before any evidence is taken the prosecutor or his counsel or solicitor may address the court.

• (6) The court shall cause the evidence of each witness, including the evidence of the accused, to be put into writing.

• (7) After the examination of each witness the court shall cause his deposition to be read to him in the presence and hearing of the accused and shall cause the witness to sign the deposition.

• (8) The presiding resident magistrate or justice of the peace shall sign the deposition.

• (9) After the evidence for the prosecution has been given, the charge shall, unless the court has decided not to commit the accused for trial, be again read to the accused or, as the case may be, be drawn to the attention of the accused by reference to the charges as numbered in the statement of complaint, and the court shall inform him that he has the right, if he so desires, to give evidence on his own behalf and call witnesses.

• (10) Next the court shall address the accused to the following effect:—

You are not obliged to say anything in answer to the charge(s) unless you desire to do so, but whatever you say will be taken down in writing and may be given in evidence upon your trial. Do you wish to say anything in answer to the charge(s)?

• (11) Whatever the accused says in answer to the charge or charges shall be taken down in writing, read over to him and signed by the presiding resident magistrate or justice of the peace and, if the accused wishes, by him.

• (12) Immediately after complying with the requirements of this Rule relating to the statement of the accused, and whether or not the accused has made a statement, the court shall ask him whether he wishes to give evidence himself and call witnesses and shall, before doing so, explain that he is not obliged to give evidence or to call witnesses and that anyone giving evidence is liable to be cross-examined.

• (13) If the accused in answer to the question states that he wishes to give evidence or to call witnesses, or both to give evidence and to call witnesses, the court shall proceed to take the evidence of the accused if the accused wishes to give evidence himself, and of any witnesses called by the accused who are able to give any relevant evidence on behalf of the accused.

• (14) Where the accused is represented by counsel or a solicitor, his counsel or solicitor shall be heard on his behalf, at his discretion, and may, if the accused gives evidence himself and calls witnesses, be heard on his behalf both before and after such evidence is taken.

• (15) The court may, notwithstanding anything in this Rule, permit or invite the accused or the prosecutor or counsel or the solicitor for the accused or for the prosecutor to make a submission on a point of law arising at any stage of the proceedings but, where it does so, it shall permit the prosecutor or the accused or counsel or the solicitor for the prosecutor or for the accused to reply.

• (16) Nothing in this Rule shall prevent the prosecutor in any case from giving in evidence at the trial any admission or confession or other statement of the accused made at any time which is by law admissible as evidence against the accused.

• (17) Where the court commits the accused for trial upon a charge other than a charge specified in the statement of complaint, the court shall cause that charge to be put into writing and read to the accused and inform him that he is so committed.

• (18) It shall be sufficient compliance with the provisions of this Rule requiring the court to address the accused (whether in reading the charge, asking any questions, giving information, administering a warning or otherwise) for the presiding resident magistrate or justice of the peace to cause the accused to be addressed in the appropriate manner by an official of the court.

• (19) Any reference to an accused shall, where the accused is a corporation, be construed as a reference to the representative of the corporation within the meaning of Schedule 4 to the Order.

Procedure for binding witnesses and prosecutor over to attend trial

27

• (1) The court shall bind over a witness as required by Article 39 of the Order as soon as practicable after his deposition has been taken.

• (2) Every recognizance under Article 39 of the Order shall be acknowledged and signed by the person entering into the recognizance and signed by the presiding resident magistrate or justice of the peace.

• (3) The recognizance may be on a separate form or at the foot of the deposition at the discretion of the court.

Documents and exhibits to be sent to the court of trial

28

• (1) The clerk of the petty sessions district in which a person has been committed for trial shall, unless the court committing the accused orders otherwise, forward to the chief clerk for the county court division in which is located the place of trial, together with the documents and exhibits specified in paragraph (2), any documents or exhibits produced before the court by a witness whom it has bound over, or directed to be treated as bound over, to attend the trial conditionally.

• (2) Within seven days after the close of a preliminary investigation at which any person is committed for trial, and in any case before the date on which he is to be arraigned, the clerk of petty sessions shall send to the chief clerk for the county court division in which is located the place of trial the following original documents—

• (a) the complaint, if it is in writing;

• (b) the statement of complaint;

• (c) where the charge or charges upon which the accused is committed for trial differ from the charge or charges in the complaint or complaints set out in the statement of complaint first read or put to the accused under Rule 26(2) or (3), a statement of the charges upon which the accused was committed for trial;

• (d) the depositions;

• (e) any formal admission of facts made under section 2 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968[^f00027] for the purpose of the investigation;

• (f) the recognizances of the prosecutor and witnesses (if separate from depositions);

• (g) all statements made by the accused before the magistrates' court;

• (h) if the accused is committed for trial on bail, the recognizance of the accused;

• (i) any recognizance entered into by any person as surety for the accused;

• (j) a certificate of the names, addresses and occupations of the witnesses who have been, or are treated as having been, bound over to attend the trial conditionally;

• (k) such of the documents and exhibits produced in evidence before the court as have been retained by him; and

• (l) a statement of the dates on which the defendant was remanded before completion of the preliminary investigation.

• (3) Paragraph (2) of this Rule shall apply to the committal for trial of persons under Article 40 of the Order as if paragraphs (a) to (g) and (j) and (k) were omitted.

Supply of depositions and complaint to accused

29

The person having custody of the depositions on which any person has been committed for trial shall, as soon as practicable after application is made to him by or on behalf of the accused, supply to the accused one copy of the depositions and, if the complaint is in writing, of the complaint.

Adjourned preliminary investigation

30

Where a preliminary investigation is adjourned under Article 36 of the Order and the adjourned investigation is held before a magistrates' court acting for the petty sessions district in which the place to which the investigation is adjourned is situated, the complaint and any depositions and recognizances already taken in the matter shall be transmitted to the clerk of petty sessions for that district and be brought before such court.

D. PRELIMINARY INQUIRIES

Interpretation of Rules 32 to 42

31

• (1) In Rules 32 to 42—

• (a) “extra-territorial offence” has the meaning assigned to it by section 1(3) of the Criminal Jurisdiction Act 1975[^f00028];

• (b) “the Act of 1975” means the Criminal Jurisdiction Act 1975;

• (c) “the Act of 1978” means the Northern Ireland (Emergency Provisions) Act 1978[^f00029].

• (2) The following provisions shall apply to a preliminary inquiry:—

• (a) Rule 27; and

• (b) Rules 29 and 30 in any case where depositions are taken.

Service on clerk of petty sessions of notice of intention by prosecutor to request court to hold preliminary inquiry

32

• (1) A notice under Article 32(1)(a) of the Order of intention by the complainant or prosecutor on his behalf to request a magistrates' court to hold a preliminary inquiry shall, except in relation to proceedings to which section 1 of the Act of 1978 applies or proceedings for an extra-territorial offence, be in Form 20.

• (2) In relation to proceedings to which section 1 of the Act of 1978 applies the notice referred to in paragraph (1) of this Rule shall be in Form 21.

• (3) In relation to proceedings for an extra-territorial offence the notice referred to in paragraph (1) shall be in Form 22.

• (4) The list of witnesses referred to in Forms 20, 21 and 22 giving the number of pages in each written statement of evidence shall be in Form 23.

• (5) The statement of complaint referred to in Article 32(1)(i) of the Order shall be in Form 15 and the list of exhibits referred to in Article 32(1)(b)(ii) of the Order shall be in Form 24.

• (6) Where the statement of complaint relates to more than one charge, it shall set out each charge in numerical order.

• (7) The notice, lists and copies of the documents referred to in Article 32(1) of the Order and in paragraph (4) of this Rule shall be furnished to the clerk of petty sessions in accordance with Article 32(1) of the Order—

• (a) by serving them upon him personally at his office or upon a responsible member of his staff thereat; or

• (b) by enclosing them in an envelope and sending it addressed to him at his office by registered post or by the recorded delivery service.

Service on accused of copy of notice and of documents referred to in Article 32(1) of the Order

33

The copy of the said notice, lists and documents referred to in Article 32(1) of the Order and in paragraph (4) of this Rule shall be served on the accused in the same manner as a summons upon complaint for an indictable offence is required to be served under paragraphs (1), (2), (4), (5) and (6) of Rule 11 and proof of such service shall be given in accordance with paragraph (7) of that Rule.

Objection to preliminary inquiry

34

• (1) Without prejudice to Article 32(4) of the Order, the court shall, except in relation to proceedings for an extra-territorial offence, ascertain that the accused or each of them has received a copy of the notice and of the documents required to be served on him under Article 32(1) thereof and Rule 33 and unless the accused is or, if there is more than one accused before the court, all of the accused are legally represented, shall explain generally the purpose of a preliminary inquiry and of a preliminary investigation and the difference in procedure between such inquiry and such investigation.

• (2) In relation to proceedings for an extra-territorial offence the court shall, without prejudice to Article 32(4) of the Order, ascertain that the accused or each of them has received a copy of the notice and of the documents required to be served on him under Article 32(1) thereof and Rule 33 and unless the accused is or, if there is more than one accused before the court, all of the accused are legally represented, shall explain generally the purpose of a preliminary inquiry.

• (3) Except in relation to proceedings to which section 1 of the Act of 1978 applies, or proceedings for an extra-territorial offence, after the charge or charges as set out in the complaint or complaints is or are read aloud and, if necessary, explained in ordinary language the court shall then ascertain that the accused understands, or all of them understand, the nature of the complaint or complaints and ask him or each of them separately whether he objects to a preliminary inquiry into the charge or any of the charges against him.

• (4) In relation to proceedings to which section 1 of the Act of 1978 applies after the charge or charges as set out in the complaint or complaints is or are read aloud and, if necessary, explained in ordinary language the court shall ask the accused or each of them if he has any submission to make that the holding of a preliminary inquiry would be contrary to the interest of justice and the court shall consider any such submission before deciding to hold a preliminary inquiry.

• (5) In relation to proceedings for an extra-territorial offence after the charge or charges as set out in the complaint or complaints is or are read aloud and, if necessary, explained in ordinary language the court shall then ascertain that the accused understands, or all of them understand, the nature of the complaint or complaints.

• (6) Where there is more than one charge against an accused, instead of all the charges being read to that accused, if the court is satisfied that the accused is able to read and will not be prejudiced, the court may proceed as follows:—

• (a) the clerk shall make public the nature of the charges by reading aloud and in full at least one charge in each category of the offence charged;

• (b) each of the other charges relating to the same category of offence may then be put to the accused by referring to the number of the charge and adding such other particulars as, without a full reading, may enable the accused to understand the charge and follow it on the copy of the statement of complaint.

The presiding resident magistrate or justice of the peace may at any time cause any charge to be read or read again to the accused.

• (7) Where two or more persons are charged together with an offence (other than an offence to which section 1 of the Act of 1978 applies or an extra-territorial offence) and one or more than one of them or his or their legal representative objects to a preliminary inquiry into that offence, he shall be asked, or each of them separately shall be asked, whether he objects to a preliminary inquiry into that offence in respect of any person or persons who do not so object and if he objects to such inquiry to explain the grounds for such objection.

• (8) In order to consider the grounds for such objection and in order to be satisfied in accordance with Article 31(3) of the Order that the interests of any person charged with an offence together with another or others would not be unduly or unreasonably prejudiced by conducting a preliminary inquiry into that charge in respect of that other or others, the court shall read the statements of the evidence relevant to that particular charge and hear any submission by or on behalf of the other or others so charged.

• (9) In relation to proceedings to which section 1 of the Act of 1978 applies where two or more persons are charged together with an offence and one or more than one of them of his or their legal representative successfully objects to a preliminary inquiry into that offence, he shall be asked, or each of them separately shall be asked, whether he objects to a preliminary inquiry into that offence in respect of any person or persons who do not so object and if he objects to such inquiry to explain the grounds for such objection.

• (10) In relation to proceedings to which section 1 of the Act of 1978 applies in order to consider the grounds or such objection the court shall read the statements of the evidence relevant to that particular charge and hear any submission by or on behalf of the other or others so charged.

Conduct of preliminary inquiry

35

• (1) The court in proceeding to conduct a preliminary inquiry may require the prosecutor to make an opening statement on behalf of the prosecution for the purpose of presenting the written statements of the witnesses upon whose evidence the complaint or complaints are based before the court further proceeds in accordance with Article 34(1) of the Order to consider such statements and any exhibits or to read aloud the contents of such statements or purport thereof or before proceeding to consider any submissions (other than submissions under Rule 34) made by the prosecutor or by or on behalf of the accused.

• (2) Where at any stage of the inquiry a written statement is admitted in evidence in accordance with Article 33 of the Order the name and address of the maker of the statement shall be read aloud unless the court in the interests of justice otherwise directs.

• (3) Where a person is required under Article 34(2) of the Order to give evidence for the prosecution on oath and such evidence is recorded as a written deposition, the court shall where any accused is not legally represented explain to that accused that he has the right to cross-examine the witness and that the prosecutor may re-examine him.

• (4) After the court has considered the written statements and admitted as evidence such of them (in whole or in part) as it considers proper and any depositions of witnesses for the prosecution, the charge or charges shall, unless the court has decided not to commit the accused for trial, be again read to the accused or, as the case may be, be drawn to the attention of the accused by reference to the charges as numbered in the statement of complaint and the court shall inform the accused that he has the right, if he so desires, to give evidence on his own behalf and to require the attendance of witnesses and to call witnesses and to tender any written statement of a witness which complies with Article 33 of the Order.

• (5) Next the court shall address the accused to the following effect—

You are not obliged to say anything in answer to the charge(s) unless you desire to do so, but whatever you say will be taken down in writing and may be given in evidence at your trial. Do you wish to say anything in answer to the charge(s)?

• (6) Whatever the accused says in answer to the charge or charges shall be taken down in writing on Form 25, read over to him and signed by the presiding resident magistrate or justice of the peace and, if the accused so wishes, by him.

• (7) Immediately after complying with the requirements of this Rule relating to the statement of the accused, and whether or not the accused has made a statement, the court shall ask him whether he wishes to give evidence himself, require the attendance of witnesses and call witnesses and shall before doing so explain that he is not obliged to give evidence or to call witnesses and that anyone giving evidence is liable to be cross-examined.

• (8) The court shall also ask the accused whether he wishes instead of calling witnesses to tender any written statement of evidence on his behalf which complies with Article 33 of the Order.

• (9) If the accused in answer thereto states that he wishes to give evidence or to call witnesses, or both give evidence and call witnesses, the court shall proceed to take the evidence of the accused on oath if the accused wishes to give evidence himself and to record it as a deposition and to take the evidence on oath of any witness called by the accused who is able to give relevant evidence on behalf of the accused and that evidence shall also be recorded as a deposition.

• (10) Where the accused is legally represented, his counsel or solicitor may, if the accused gives evidence himself and calls witnesses, be heard on his behalf both before and after such evidence is taken.

• (11) Where the court commits the accused for trial upon a charge other than a charge specified in the statement of complaint, the court shall cause that charge to be put into writing and read to him and inform him that he is so committed.

Modification of Rules where accused is a corporation

36

Any reference in these Rules to an accused shall where the accused is a corporation be construed as a reference to the representative of the corporation within the meaning of Schedule 4 to the Order.

Court may address accused through court official

37

It shall be sufficient compliance with the provisions of these Rules relating to a preliminary inquiry requiring the court to address the accused (whether in reading the charge, any written statement, asking any questions, giving information, administering a warning or otherwise) for the presiding resident magistrate or justice of the peace to cause the accused to be addressed in the appropriate manner by an official of the court.

Proof by formal admission

38

Where under section 2 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 a fact is admitted orally in court by or on behalf of the complainant or any accused for the purpose of a preliminary inquiry the court shall cause the admission to be written down and signed by or on behalf of the party making the admission.

Written statement of evidence to be in prescribed form and exhibits to be properly identified

39

• (1) Written statements of the evidence of a witness tendered in evidence to a magistrates' court at a preliminary inquiry shall be in Form 26.

• (2) Where such statement refers to any document or object as an exhibit, that document or object shall, wherever possible, be identified by means of a label or other mark of identification signed by the maker of the statement and before the court treats any document or object referred to as an exhibit in such a written statement as an exhibit produced and identified in court by the maker of the statement, the court shall be satisfied that the document or object is sufficiently described in the statement for it to be identified.

Procedure where court decides not to admit statement or part thereof as evidence

40

Where the court decides not to admit as evidence any written statement or part thereof tendered in evidence at the preliminary inquiry into any charge against the accused, the presiding resident magistrate or justice of the peace shall announce such decision forthwith and shall thereupon delete such statement or part thereof, and shall write or cause to be written upon such statement or, as the case may be, against that part the words “This statement is not admitted as evidence” or alternatively “The part of this statement herewith deleted is not admitted as evidence” and in either case he shall subscribe his name thereto.

Authentication of statements, depositions or admissions

41

The clerk of petty sessions shall authenticate by certificate in Form 27 the written statements admitted in evidence, the depositions and any formal admission made for the purpose of the inquiry.

Documents and exhibits referred to, etc., at preliminary inquiry to be sent to the court of trial

42

• (1) Within seven days after the close of a preliminary inquiry at which any person is committed for trial, and in any case before the date on which he is to be arraigned, the clerk of petty sessions shall send to the chief clerk for the county court division in which is located the place of trial the following original documents—

• (a) the complaint if it is in writing;

• (b) the statement of complaint;

• (c) where the charge or charges upon which the accused is committed for trial differ from the charge or charges in the complaint or complaints set out in the statement of complaint first read or put to the accused under Rule 34(3), (4) or (5), a statement of the charges upon which the accused was committed for trial;

• (d) the written statements admitted in evidence at and any depositions taken at the preliminary inquiry;

• (e) any formal admission of facts made under section 2 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 for the purpose of the inquiry;

• (f) the certificate in Form 27 of the clerk of petty sessions authenticating those statements; depositions or such admissions;

• (g) the recognizances of the prosecutor and witnesses (if separate from depositions);

• (h) all statements made by the accused before the magistrates' court;

• (i) if the accused is committed for trial on bail, the recognizance of the accused;

• (j) any recognizance entered into by any person as surety for the accused;

• (k) a certificate of the names, addresses and occupations of the witnesses who have been, or are treated as having been, bound over to attend the trial conditionally;

• (l) subject to paragraph (2), a list in Form 24 of the exhibits,' documentary or otherwise, produced or referred to in evidence at the inquiry;

• (m) every exhibit lodged in court;

• (n) any other relevant document; and

• (o) a statement of the dates on which the defendant was remanded before completion of the preliminary inquiry.

• (2) Where during the course of a preliminary inquiry the list of exhibits in Form 24 is altered by the addition or omission of any exhibit the clerk of petty sessions shall forward such list with any alterations initialled by him.

• (3) Paragraph (1) shall apply to the committal for trial of persons under Article 40 of the Order as if paragraphs (a) to (h) and ([) and (m) were omitted.

• (4) Where after a preliminary inquiry the accused is not committed for trial the written statement of the evidence of the witnesses tendered at the inquiry shall be preserved for a period of three years by the clerk of petty sessions.

• (5) The court may direct that the written statements required to be read aloud under Article 37(6) of the Order shall be so read by the clerk of petty sessions or other court official.

E. INDICTABLE OFFENCES DEALT WITH SUMMARILY

Conditions to be complied with before preliminary investigation or inquiry

43

Where an adult is charged with an indictable offence specified in Schedule 2 to the Order, a justice of the peace (other than a resident magistrate) shall not proceed to conduct a preliminary investigation or preliminary inquiry unless he is informed that—

• (a) the prosecutor will not in any event consent to summary trial of the charge under Article 45 of the Order; or

• (b) a resident magistrate has decided that it is not expedient to deal with the charge summarily.

Written notice under Article 45 (1) of the Order

44

• (1) The written notice to be given to the accused under Article 45(1) of the Order may be served on him together with or contained in a summons alleging the offence or, if he is arrested; given to him as soon as practicable after he is formally charged with the offence after arrest.

• (2) Where the prosecutor informs the court that he does not object to the charge being dealt with summarily, the court shall not deal summarily with any offence specified in Schedule 2 to the Order until the expiration of twenty-four hours after the notice under Article 45(1) of the Order is given to the accused, unless a written waiver such as is referred to in the said Article 45(1) of the Order waiving the requirement of the twenty-four hours' notice under the said Article 45(1) has been signed by the accused and handed to the court and the court is satisfied in accordance with Rule 45(4) and (5) that the accused understands that he has the right to be tried by a jury and appreciates the meaning of such right; or, in relation to a scheduled offence, the court is satisfied in accordance with Rule 45(6) and (7) that the accused understands that he has a right to be tried at the Crown Court sitting in Belfast without a jury, or, if the Attorney General certifies that the offence is not to be treated as a scheduled offence, at the Crown Court with a jury, and appreciates the meaning of such right.

• (3) Where the prosecutor informs a resident magistrate or a justice of the peace having jurisdiction to conduct a preliminary investigation or preliminary inquiry that the proceedings against the accused are to be taken on indictment, nothing in this Rule or Rule 43 shall operate so as to require proof that the said notice has been given to the accused.

Procedure where court decides to deal with an indictable offence summarily under Article 45 of the Order

45

• (1) The procedure shall, until the resident magistrate assumes the power to deal with the offence summarily, be the same in all respects as if the offence were to be dealt with throughout as an indictable offence.

• (2) The evidence of any witness (other than a witness whose written statement has been admitted in evidence at a preliminary inquiry under Article 33 of the Order) taken before the resident magistrate assumed such power need not be taken again, but every such witness shall, if the accused or the prosecutor or his counsel or solicitor so require, be recalled for the purpose of cross-examination.

• (3) From and after the time when the resident magistrate assumes the power to deal with the offences summarily (subject to the remaining provisions of this Rule) the procedure before and powers exercisable by the resident magistrate shall be the same as in the hearing of a complaint charging a summary offence.

• (4) Except where the offence is a scheduled offence, the resident magistrate shall, after deciding that it is expedient to deal with the case summarily, cause the charge to be read to the accused and, if he considers it desirable, explain the meaning of the case being dealt with summarily and of committing an accused for trial by a jury at the Crown Court. Such explanation shall include a statement as to the Crown Court at which the accused may be tried.

• (5) Except where the offence is a scheduled offence, the resident magistrate shall next address the accused as follows:—

Do you wish to be tried by a jury, or do you consent to the case being dealt with summarily?

and if the accused consents to be dealt with summarily, the resident magistrate shall ask him "Do you plead guilty or not guilty?".

• (6) Where the offence is a scheduled offence, the resident magistrate shall, after deciding that it is expedient to deal with the case summarily, cause the charge to be read to the accused and, if he considers it desirable, explain the meaning of the case being dealt with summarily and of committing the accused for trial at the Crown Court sitting in Belfast without a jury or at the Crown Court with a jury. Such explanation shall include a statement as to the authority of the Attorney General to certify that the offence is not to be treated as a scheduled offence and the effect of such certification; and a statement as to the Crown Court at which the accused may be tried if trial is to be with a jury.

• (7) Where the offence is a scheduled offence, the resident magistrate shall next address the accused as follows:—

Do you wish to be tried at the Crown Court sitting in Belfast without a jury or, if the Attorney General certifies that the offence is not to be treated as a scheduled offence, at the Crown Court with a jury, or do you consent to the case being dealt with summarily?

and if the accused consents to be dealt with summarily, the resident magistrate shall ask him "Do you plead guilty or not guilty?".

• (8) The resident magistrate may instead of giving the explanation required by paragraph (4) or (6) or addressing the accused, as would otherwise be required by paragraph (5) or (7), cause such explanation to be given or the accused to be addressed in open court in the appropriate manner by an official of the court and that course shall be sufficient compliance with this Rule.

Conviction of offence other than that charged where indictable offence dealt with summarily

46

Where a resident magistrate in exercise of the power conferred by Article 46(3) of the Order, having dealt summarily with a charge for an indictable offence, convicts the accused of an offence in the alternative to that charged, an entry to that effect shall be made in the Order Book and specifying the alternative offence of which he was convicted.

Preservation of depositions where indictable offence is dealt with summarily

47

The clerk of petty sessions for the district in which a person charged with an indictable offence has been tried summarily under Article 45 of the Order by a resident magistrate shall preserve for a period of at least three years such depositions as have been taken.

F. DEPOSITIONS OF SICK OR DYING PERSONS

Taking of depositions under Article 28 or 41 of the Order

48

• (1) Where an application for the taking of the deposition of a person under Article 28 or Article 41 of the Order is granted by a resident magistrate or justice of the peace, such resident magistrate or justice of the peace shall cause to be served in such manner as he may direct on the accused and the prosecutor a notice in writing specifying where and when the deposition is to be taken.

• (2) Where a person in prison custody has received a notice under paragraph (1) the governor of the prison in which the person is confined shall cause him to be conveyed to the place mentioned in the notice for the purpose of being present at the taking of the deposition and sub-section (3) of section 16 of the Prison Act (Northern Ireland) 1953[^f00030] shall apply to a person who is so conveyed as though the Secretary of State had made a direction under sub-section (1) of that section.

• (3) The resident magistrate or justice of the peace taking the deposition shall sign it and attach thereto a statement of his reason for taking it and of the day when and the place where it was taken and of the names of the persons, if any, present at the taking thereof.

• (4) The resident magistrate or justice of the peace taking the deposition shall cause it to be transmitted with his statement under paragraph (3)—

• (a) if the deposition is taken under Article 41 of the Order and relates to an offence for which the accused is already committed for trial, to the chief clerk for the county court division in which is located the place of trial; or

• (b) in any other case, to the clerk of the court before which proceedings are pending in respect of the offence.

G. REMANDS

Remand for inquiry into physical or mental condition

49

On exercising the powers conferred by Article 51 of the Order in remanding a person for a report on his mental or physical condition a magistrates' court shall—

• (a) where the person is remanded in custody, send to the place to which he is committed; and

• (b) where the person is released on bail, send to the hospital or place at which, or the person by whom, he is to be examined,

a statement of the reasons for which the court is of opinion that an inquiry ought to be made into his physical or mental condition, and any information before the court about his physical or mental condition.

Remand on bail under Article 47(4) of the Order for longer than eight or, as the case may be, fourteen days where sureties have not entered recognizances

50

Where the court, with a view to a person's being remanded on bail under Article 47(4) of the Order for a period exceeding eight days or, where Article 47(3) of the Order applies, fourteen days, has fixed the amount of the recognizances to be taken for that purpose but commits that person to custody because the recognizances of the sureties have not yet been taken, the warrant of commitment shall direct that such person be brought before the court at the end of the period or at such earlier time as may be specified in the warrant, unless in the meantime the sureties have entered into their recognizances.

Accused to be told of his right to apply to High Court or Crown Court for bail

51

• (1) Where a magistrates' court remands a person in custody it shall inform him of his right (where such right exists) to apply for bail to the High Court.

• (2) Where a magistrates' court commits a person for trial in custody it shall inform him of his right (where such right exists) to apply for bail to the Crown Court or the High Court.

H. FORMAL ADMISSIONS

Formal admissions under section 2 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968

52

Without prejudice to Rule 38 where under section 2 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 a fact is admitted orally in court by or on behalf of the prosecutor or the accused for the purposes of any criminal proceedings before a magistrates' court, the court shall cause the admission to be written down and signed by or on behalf of the party making the admission.

PART IV — Debt and Ejectment Proceedings

A. RULES APPLICABLE TO BOTH DEBT AND EJECTMENT PROCEEDINGS

Definitions

53

In these Rules the following expressions have the meanings hereby assigned to them:—

• “debt proceedings” or “ejectment proceedings”, where necessary, include proceedings for the enforcement of orders made in such proceedings;

• “formal order” refers to the document issued by the court and includes a decree, a dismiss, an order under Article 107 of the Judgments Enforcement (Northern Ireland) Order 1981[^f00031] and an attachment of earnings order under Article 99 of the said Order;

• “process” includes an application for a duplicate of an order, and (save as expressly excepted by Rules 58 and 60) art enforcement or committal process under Articles 106 to 110 of the said Order of 1981.

Time of issue of process

54

A process shall be deemed to have been issued when it has been stamped, signed, and handed or sent by post to a summons server or to such other person as may be authorised to serve it, or to the clerk of petty sessions of the petty sessions district in which a proceeding is brought for delivery to a summons server or when service is effected in accordance with Rule 60.

Signature on process

55

Every process and every copy thereof for service shall be signed by the plaintiff or by his solicitor or firm of solicitors, or in the name of such solicitor by some person duly authorised to sign.

Times of hearing of processes

56

Processes shall be issued for hearing at such sittings of the court of summary jurisdiction as may from time to time be directed by the resident magistrate acting for the petty sessions district for which the court in which a proceeding is brought acts.

Costs of process to be stated

57

• (1) The amount of the costs of a process payable by the defendant if the claim is paid or, if possession of the premises the recovery of which is sought is surrendered before entry day as provided by Rule 66, shall be stated on the face of the process. If the amount of the claim is paid or if possession is surrendered and such costs are so paid before entry day the proceeding shall be stayed.

• (2) The amount of the costs payable where the claim is paid or possession is surrendered or both, as the case may be, before entry day in accordance with this Rule shall be either fifty per centum of the solicitor's costs in column (2) in Table 1 of Schedule 2 or of the solicitor's costs in column (1) in Table 1 of Schedule 3, as appropriate, together with the plaintiff's outlay properly incurred to date of settlement.

• (3) Where proceedings for arrears of rent or for sums due under Article 69 of the Order are joined with a claim for the recovery of the premises, the appropriate Table is that applicable to ejectment proceedings.

Modes of service of process

58

• (1) Except where otherwise provided by these Rules service of a process shall be effected—

• (a) by delivering to the defendant personally a true copy thereof; or

• (b) subject to paragraph (2), by leaving a true copy thereof for the defendant at his usual or last known place of abode or at his place of business with some person apparently over the age of sixteen years.

• (2) Sub-paragraph (b) of paragraph (1) shall not apply to the service of an enforcement process or a committal process.

• (3) Without prejudice to paragraph (1), a process in ejectment proceedings may be served on the tenant and on any person in actual possession or occupation of the land or premises.

• (4) If for any reason service of a process issued in ejectment proceedings cannot be effected in accordance with paragraph (1) or (3), such process may be deemed to be served, if a true copy thereof is affixed to some conspicuous part of the premises.

• (5) The provisions of this Rule shall be in addition to and not in derogation of the provisions of any enactment authorising the service of documents in any proceedings upon any person or body.

Persons entitled to serve processes

59

• (1) Subject to paragraph (2) and to Rules 60 and 130(2) no person other than a summons server for the petty sessions district in which proceedings are brought or in which the defendant resides shall have authority to serve a process.

• (2) Where in any such district a summons server is absent or unable to carry out his duties through illness or other cause, or when the office of summons server is vacant, a process may be served by some other person, if permission for such other person to serve the process has been given by a resident magistrate or by the clerk of petty sessions and has been endorsed or signed by him on the original process.

• (3) Nothing in this Rule shall affect the provisions of section 60 of the Miscellaneous Transferred Excise Duties Act (Northern Ireland) 1972[^f00032].

Special mode of service

60

• (1) Notwithstanding anything in Rules 58 and 59 where—

• (a) it is made to appear to a resident magistrate or clerk of petty sessions that a process cannot be served because the defendant is evading service or admission cannot be gained to his residence or business premises or it is not reasonably practicable to serve the process otherwise, he may give permission by an endorsement signed by him on the original process for service to be effected by registered post or by the recorded delivery service or in such other manner as may seem to him appropriate or sufficient and such service shall be deemed to be sufficient service; or

• (b) a solicitor represents that he is authorised to accept service of a process on behalf of any defendant, such service may be effected by the delivery by any person of a copy of the process to that solicitor provided that the solicitor endorses and signs on the original a memorandum stating that he is so authorised as aforesaid and that he accepts service accordingly.

• (2) This Rule shall not apply to the service of an enforcement process or a committal process.

Time for service

61

In all cases service of a process shall be effected at least ten days before the date of hearing.

Summons server's Process Book

62

• (1) A summons server shall keep a book (called a Process Book) in which he shall enter the names of the parties to any process handed to him for service, with the date on which he receives it and the date and place of service and the manner in which he has served it.

• (2) In any case in which a process has not been duly served, the summons server shall enter the cause of non-service in the Process Book.

• (3) The summons server shall endorse upon the original of each process he has served the date, place and manner of service, and sign the endorsement.

• (4) The summons server shall lodge his Process Book with the clerk of petty sessions and, except where the court allows proof of the service of a process by affidavit in accordance with Article 126 of the Order or where a resident magistrate otherwise directs, shall attend at each sitting of a court of summary jurisdiction for the hearing of processes served by him and produce his Process Book or give evidence as to service, as may be directed by the court.

• (5) In the case of the death, illness, or unavoidable absence of a summons server from a sitting of a court at which he would otherwise be required to attend, his Process Book, if produced to the court and verified on oath as to his handwriting by some credible person, shall be prima facie evidence of any matter entered therein.

Person other than summons server to prove service

63

In any case where a process is served by a person other than a summons server, except as provided by Rule 60(1)(b), that person shall endorse upon the original the date, place and manner of service and affix his signature thereto, and shall also, unless proof of service is given by affidavit in accordance with Article 126 of the Order, attend the sitting of the court at which the process is to be heard, and give such evidence as to the date, place and manner of service as the court may require.

Service deemed good

64

A resident magistrate may in any case declare the service of a process however effected sufficient.

Process Register and extract therefrom

65

• (1) The clerk of petty sessions shall keep a register (to be called the Process Register) in which he shall make the entries relating to each proceeding as specified by the headings to the columns in the register.

• (2) Separate Process Registers shall be kept for debt and ejectment proceedings and are referred to in these Rules as “the Debt Process Register” or “the Ejectment Process Register”, respectively.

• (3) The Process Register shall be signed at the foot of each page by the resident magistrate who had adjudicated upon the proceedings entered thereon, but in case any page contains records of proceedings heard on more than one date or by more than one resident magistrate, it shall be signed by the appropriate resident magistrate at the last entry on each date, or at the last entry of any proceedings heard by him.

• (4) Any person who satisfies a resident magistrate or a clerk of petty sessions that he has a bona fide interest in the matter may obtain from the clerk of petty sessions, upon payment of the prescribed fee, a memorandum of a proceeding entered in the Process Register.

Entry of process

66

• (1) When it is desired to enter or re-enter a process for hearing, the plaintiff or his solicitor shall lodge the original with the clerk of petty sessions on or before the entry day and details of such process shall be entered into the Process Register and where the hearing is adjourned or after the court has made an order in favour of the plaintiff the process shall be returned to the plaintiff or his solicitor.

• (2) For the purposes of Rule 57 and of this Rule the entry day shall be the fourth day before the hearing; but when such day is a Saturday, Sunday or a public holiday, the entry shall be made on the previous week-day other than Saturday.

Re-entry of process where hearing adjourned.

67

• (1) Where the hearing of a debt or ejectment proceeding is adjourned the court shall not continue with the proceeding until the process is re-entered in accordance with Rule 66.

• (2) Where the court in the absence of the defendant or his solicitor adjourns the proceedings, the plaintiff or his solicitor shall notify the defendant or his solicitor of the fact that the process has been re-entered and of the time and place of the adjourned hearing.

Striking out of proceeding

68

The entry of the words “Struck Out” in the Process Register shall be a sufficient record of the striking out of a proceeding under Article 73(3) of the Order.

Withdrawal of proceeding

69

Where the court acting under Article 73(4) of the Order allows a proceeding to be withdrawn the word “Withdrawn” shall be entered in the appropriate column of the Process Register.

Order on consent where defendant appears

70

• (1) In a proceeding in which a defendant appears and admits that the amount stated in the process is due by him, or agrees to surrender possession of the premises sought to be recovered by the plaintiff and to pay any rent or arrears of rent which may be due to the plaintiff, the court may without hearing evidence make an order against him for the amount or for recovery of possession with costs and in doing so may postpone the issue of the decree in accordance with Article 116 of the Order for such period and upon such terms as it thinks fit.

• (2) Where the plaintiff does not appear before the court in person an order shall be made under this Rule only where the plaintiff's solicitor or counsel is present and applies for it to be made.

Order on written consent

71

If a defendant in the presence of a solicitor or his apprentice or clerk has signed a document consenting to an order, other than a committal order, being made against him, the court may make such order with costs upon such proof of the defendant's signature to the consent as the court may require.

Undefended proceedings

72

For the purposes of these Rules a claim in debt or ejectment proceedings shall be treated as undefended where—

• (a) the defendant fails to appear and the court, after proof of service of the process, makes an order against him; or

• (b) where an order is made on the consent of the defendant; or

• (c) the court so directs.

Order where more than one defendant

73

• (1) In a proceeding in which two or more persons are named as defendants in a process, the court may make an order for payment of the amount claimed or for the recovery of possession of premises sought to be recovered against one or more of these persons, and strike out, dismiss, or allow to be withdrawn the proceeding against the remainder.