Discussion on Burden of Proof in Magistrates Court

[some bloke]

Moderator Note - Split from https://www.railforums.co.uk/threads/merseyrail-bylaw-section-18-2-advice-needed.250744/

Interesting, thanks.

Merseyrail booking offices are generally single staffed so if the staff go to the toilet they close briefly. I wonder if they're required to log this? If not, then any statement that it was open must surely not pass the "beyond reasonable doubt" test, even if it was?

The problem may be the need for a defendant to prove the exception on the balance of probabilities.

To my mind, the overall need for the prosecution to prove the case beyond reasonable doubt is so fundamental that it should trump that, but perhaps the issue has been clarified including in the courts.

 

[Bletchleyite]

The problem may be the need for a defendant to prove the exception on the balance of probabilities.

The test for a criminal prosecution is "beyond reasonable doubt", is it not?

If there is, in the view of the Magistrate, reasonable doubt that the booking office was open, then presumably that offence cannot be prosecuted.

 

[island]

The test for a criminal prosecution is "beyond reasonable doubt", is it not?

If there is, in the view of the Magistrate, reasonable doubt that the booking office was open, then presumably that offence cannot be prosecuted.

Under section 101 of the Magistrates Court Act 1980, the burden of proving an exemption, exception, proviso, excuse etc. in a criminal case lies on the defendant.

 

[some bloke]

Under section 101 of the Magistrates Court Act 1980, the burden of proving an exemption, exception, proviso, excuse etc. in a criminal case lies on the defendant.

However, there is a potential conflict with the fundamental principle of "reasonable doubt".

Just because someone can't prove the exception on the balance of probabilities doesn't mean there isn't, overall, reasonable doubt.

It wouldn't be in the interests of justice for magistrates or judges to convict someone when they believed there was reasonable doubt, simply because the court thought the defence had only shown the likelihood of the exception being valid was 49% rather than 51%.

It seems to me the only sensible conclusion would be "we don't accept the exception as proved, but the evidence is enough to introduce reasonable doubt". It also seems to me that where magistrates think there is reasonable doubt overall, they are likely to - rightly or wrongly - simply fit their conclusion about proving the exception to fit that belief.

 

[AlterEgo]

The problem may be the need for a defendant to prove the exception on the balance of probabilities.

To my mind, the overall need for the prosecution to prove the case beyond reasonable doubt is so fundamental that it should trump that, but perhaps the issue has been clarified including in the courts.

On the balance of probabilities, the fact that he was let through the barrier by staff is a solid indication the staff validated it at least believed the ticket office at Manor Road was closed.

 

[some bloke]

On the balance of probabilities, the fact that he was let through the barrier by staff is a solid indication the staff validated it at least believed the ticket office at Manor Road was closed.

Yes, that's useful evidence, though it might be argued that they were giving him the benefit of the doubt rather than firmly believing it was closed.

== Doublepost prevention - post automatically merged: 28 Jun 2023 ==

We might also think it would be abuse of process to charge him on the basis that the ticket office was open, after staff let him through on the basis of his claim that it was closed.

== Doublepost prevention - post automatically merged: 28 Jun 2023 ==

Anyway, despite the mention of the byelaw, their main concern seems to have been a perceived attempt to avoid going to the ticket office at Liverpool, so that seems to be a key issue to address.

 

[island]

However, there is a potential conflict with the fundamental principle of "reasonable doubt".

Just because someone can't prove the exception on the balance of probabilities doesn't mean there isn't, overall, reasonable doubt.

It wouldn't be in the interests of justice for magistrates or judges to convict someone when they believed there was reasonable doubt, simply because the court thought the defence had only shown the likelihood of the exception being valid was 49% rather than 51%.

What if it was 48%? 47? 40? 30? Where's the cutoff?

It seems to me the only sensible conclusion would be "we don't accept the exception as proved, but the evidence is enough to introduce reasonable doubt".

That may be the conclusion you would come to but it is by no means "the only sensible conclusion".

It also seems to me that where magistrates think there is reasonable doubt overall, they are likely to - rightly or wrongly - simply fit their conclusion about proving the exception to fit that belief.

The magistrates may indeed do that, but they usually give reasons for their decisions (and must do so for guilty verdicts).

On the balance of probabilities, the fact that he was let through the barrier by staff is a solid indication the staff validated it at least believed the ticket office at Manor Road was closed

I don't agree. There are several other equally or more plausible reasons for the staff to let someone through the barrier, for example them deciding to exercise their discretion in favour of someone who passed the attitude test. And even if the staff believed the booking office was closed, the defendant still needs to prove it was closed on the balance of probabilities.

So we circle back to the question I asked in the very first instance:

Does he have evidence that there were no ticket facilities in operation at the start of his journey?

I think we should wait for the answer to that question before determining how to proceed.

 

[some bloke]

Where's the cutoff?

The point is that there is a fundamental principle that a case should be proved beyond reasonable doubt. There is a potential conflict with the principle of the defence having to prove an exception.

So the question is how to resolve that conflict. Convicting someone where the court thinks there is reasonable doubt about guilt, just because a threshold for proving a particular exception is not reached, is clearly undesirable. It is not necessary to prove the exception in order to introduce reasonable doubt.

I don't want to distract too much from practical advice - it's just that hopefully magistrates will not take too strict a view on proof that the ticket office was closed.

I suggested above asking the company for evidence about the ticket office being open.

 

[Bletchleyite]

Under section 101 of the Magistrates Court Act 1980, the burden of proving an exemption, exception, proviso, excuse etc. in a criminal case lies on the defendant.

Thanks for that.

I've suddenly become even more opposed to private prosecutions than before; my understanding was that "beyond reasonable doubt" at least provided some protection against abuse of process.

 

[island]

The point is that there is a fundamental principle that a case should be proved beyond reasonable doubt. There is a potential conflict with the principle of the defence having to prove an exception.

So the question is how to resolve that conflict. Convicting someone where the court thinks there is reasonable doubt about guilt, just because a threshold for proving a particular exception is not reached, is clearly undesirable. It is not necessary to prove the exception in order to introduce reasonable doubt.

The relevant law doesn't refer to "fundamental principles" and I regret to say your above expression of magistrates court processes doesn't correspond to reality.

The prosecution must make the magistrates sure that the ingredients of the offence occurred. (The term "sure" has replaced the concept of "beyond reasonable doubt" and is sometimes referred to as "the 99% test".) These ingredients are, in this case:

• That the defendant
• was asked to hand over his ticket
• by an authorised person
• and did not do so.

If the prosecution has made the court sure of these four factors, the defendant may attempt to prove that it is more likely than not one of the exceptions applied. ("More likely than not" has replaced the concept of "balance of probabilities" and is sometimes referred to as "the 51% test".) These exceptions are:

• That there were no working ticketing facilities available at his starting station
• There there was a notice at his starting station permitting travel without a valid ticket; or
• That an authorised person gave him permission to travel without a valid ticket.

If relying on one of these exceptions, the defendant does not have to make the court sure of any of these three things, but he has to show it is more likely than not at least one of them applies. Easy ways of doing so would include producing photographs of the defective/closed ticketing facilities or notice, or calling the authorised person in question as a witness.

The prosecution does not have to make the court sure that there were working ticketing facilities, or that there were no notices, nor do they have to call every authorised person as a witness to say they didn't give permission to the defendant; the latter two would be all but impossible.

If the prosecution has proved the above four points and the defendant's only defence is one of the three exceptions, and they have not met the threshold of "more likely than not", the court must convict. Any other verdict would be wrong and illegal.

I don't want to distract too much from practical advice - it's just that hopefully magistrates will not take too strict a view on proof that the ticket office was closed.

With due respect, the best way not to distract too much from practical advice is to not post your personal views as though they were facts.

I've asked the moderators to split this side discussion to a new thread so that we can focus on practical help for the OP.

 

[furlong]

My understanding is similar to what island has carefully set out in the last message.

 

[Kilopylae]

The prosecution must make the magistrates sure that the ingredients of the offence occurred. (The term "sure" has replaced the concept of "beyond reasonable doubt" and is sometimes referred to as "the 99% test".)

(I hope the moderators will move this post of mine to the side thread).

Being pedantic, "satisfied beyond a reasonable doubt" means the same as "being sure"; the language used in jury instructions has changed but the concept remains unchanged. It is still the case that magistrates (or juries) should exclude fanciful possibilities and act only on plausible ones - it doesn't matter the word "reasonable" is no longer used in jury instructions.

 

[Llanigraham]

It does strike me that it would be useful for some members of this Forum to spend a few days on the public benches at a Magistrate Court just to find out exactly how they work. They may find it quite enlightening.

 

[island]

It does strike me that it would be useful for some members of this Forum to spend a few days on the public benches at a Magistrate Court just to find out exactly how they work. They may find it quite enlightening.

I have, and it is.

 

[tspaul26]

The relevant law doesn't refer to "fundamental principles" and I regret to say your above expression of magistrates court processes doesn't correspond to reality.

The prosecution must make the magistrates sure that the ingredients of the offence occurred. (The term "sure" has replaced the concept of "beyond reasonable doubt" and is sometimes referred to as "the 99% test".) These ingredients are, in this case:

• That the defendant
• was asked to hand over his ticket
• by an authorised person
• and did not do so.

If the prosecution has made the court sure of these four factors, the defendant may attempt to prove that it is more likely than not one of the exceptions applied. ("More likely than not" has replaced the concept of "balance of probabilities" and is sometimes referred to as "the 51% test".) These exceptions are:

• That there were no working ticketing facilities available at his starting station
• There there was a notice at his starting station permitting travel without a valid ticket; or
• That an authorised person gave him permission to travel without a valid ticket.

If relying on one of these exceptions, the defendant does not have to make the court sure of any of these three things, but he has to show it is more likely than not at least one of them applies. Easy ways of doing so would include producing photographs of the defective/closed ticketing facilities or notice, or calling the authorised person in question as a witness.

The prosecution does not have to make the court sure that there were working ticketing facilities, or that there were no notices, nor do they have to call every authorised person as a witness to say they didn't give permission to the defendant; the latter two would be all but impossible.

If the prosecution has proved the above four points and the defendant's only defence is one of the three exceptions, and they have not met the threshold of "more likely than not", the court must convict. Any other verdict would be wrong and illegal.

With due respect, the best way not to distract too much from practical advice is to not post your personal views as though they were facts.

I've asked the moderators to split this side discussion to a new thread so that we can focus on practical help for the OP.

I would endorse this summary.

The key point is that in order for a criminal offence to have occurred, three things are required:

1. Actus reus - the act which constitutes the offence
2. Mens rea - the relevant state of mind required to constitute the offence (this is not required for strict liability offences)
3. The absence of a relevant defence

The burden of proof is on the Crown to prove that (a) the offence was committed (insofar as it encompasses items 1. and 2. above) and (b) that the accused is the one who committed it.

The standard of proof on the Crown is ‘beyond a reasonable doubt’ i.e. the tribunal of fact must be sure on 1., 2. and (b).

The starting presumption is that a relevant defence does not apply. The burden of proof is therefore on the accused to prove that a relevant defence (item 3. above) is engaged and the standard of proof is ‘on the balance of probabilities’ i.e. it must be more likely than not.

== Doublepost prevention - post automatically merged: 28 Jun 2023 ==

It does strike me that it would be useful for some members of this Forum to spend a few days on the public benches at a Magistrate Court just to find out exactly how they work. They may find it quite enlightening.

People often prefer not to know how the sausage is made, I find!

 

[Enthusiast]

The point is that there is a fundamental principle that a case should be proved beyond reasonable doubt. There is a potential conflict with the principle of the defence having to prove an exception.

So the question is how to resolve that conflict. Convicting someone where the court thinks there is reasonable doubt about guilt, just because a threshold for proving a particular exception is not reached, is clearly undesirable. It is not necessary to prove the exception in order to introduce reasonable doubt.

I don't want to distract too much from practical advice - it's just that hopefully magistrates will not take too strict a view on proof that the ticket office was closed.

I suggested above asking the company for evidence about the ticket office being open.

As explained above, you somewhat misunderstand the requirements - particularly the passage I have emphasised. Perhaps it would be easier to consider a simpler example.

Section 172 of the Road Traffic Act requires a person (usually the Registered Keeper, at least initially) to provide the details of the person driving a vehicle suspected of being used to commit an offence. This is often speeding, when the vehicle has been detected by a camera device and it was not stopped at the time. To prove their case, the prosecution must show, so that the Magistrates are sure ("beyond reasonable doubt"), that the request was properly served and that no satisfactory reply was received. If they do this successfully, without any input from the defendant, he will be convicted. However, there is a "statutory defence" (i.e. an "exception") to the charge which says this:

A person shall not be guilty of an offence.....if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.

To take advantage of this exception or defence, the defendant must satisfy the court "on the balance of probabilities" (i.e. more likely than not) that he did not know and, despite exercising reasonable diligence, could not find out who the driver was. This will involve him giving evidence to the court showing why he did not know who was driving and what he had done to try to find out.

After hearing from both sides, the Magistrates must decide firstly, whether the prosecution has proved its case so that they are sure (and obviously if they haven't then the defendant will be acquitted). But if they have, the Magistrates then go on to consider, as a separate exercise, whether the defendant has satisfactorily proved the exception that is provided under the law, convincing the Magistrates, to the lower standard of proof, that it is more likely than not to be true.

These two aspects of the trial process are entirely separate. Deliberation on one does not jeopardise consideration of the other and there is no conflict. The general rule is that anything the prosecution has to prove must be "beyond reasonable doubt" and anything the defence has to prove is to the lower standard of "on the balance of probabilities."

Is this of any help?

 

[AdamWW]

People often prefer not to know how the sausage is made, I find!

Or they don't realise they can visit the sausage factory or know how to do so

 

[some bloke]

The problem may be the need for a defendant to prove the exception on the balance of probabilities.

To my mind, the overall need for the prosecution to prove the case beyond reasonable doubt is so fundamental that it should trump that, but perhaps the issue has been clarified including in the courts.

"Chapter 6

Burdens of Proof and the Presumption of Innocence​

Paul Roberts
Published: September 2022

...

Hunt conceded the possibility of implied burdens on the defence, but cautioned against inferring them. Such ‘reverse onus clauses’ must now be tested for compatibility with HRA 1998, precipitating a large, complex, and contentious jurisprudence (including five visits to the House of Lords). Whether express or implied, a statutory reverse onus clause might be ‘read down’, pursuant to HRA 1998 s.3, to a merely evidential burden of production if it would otherwise be incompatible with ECHR Article 6(2). Leading authorities, including Sheldrake, prescribe detailed criteria for assessing compatibility."

Burdens of Proof and the Presumption of Innocence | Roberts & Zuckerman's Criminal Evidence | Oxford Academic
https://academic.oup.com/book/44627/chapter-abstract/378632051?redirectedFrom=fulltext

 

[tspaul26]

"Chapter 6

Burdens of Proof and the Presumption of Innocence​

Paul Roberts
Published: September 2022

...

Hunt conceded the possibility of implied burdens on the defence, but cautioned against inferring them. Such ‘reverse onus clauses’ must now be tested for compatibility with HRA 1998, precipitating a large, complex, and contentious jurisprudence (including five visits to the House of Lords). Whether express or implied, a statutory reverse onus clause might be ‘read down’, pursuant to HRA 1998 s.3, to a merely evidential burden of production if it would otherwise be incompatible with ECHR Article 6(2). Leading authorities, including Sheldrake, prescribe detailed criteria for assessing compatibility."

Burdens of Proof and the Presumption of Innocence | Roberts & Zuckerman's Criminal Evidence | Oxford Academic
https://academic.oup.com/book/44627/chapter-abstract/378632051?redirectedFrom=fulltext

And?

You have included a partial quotation from the abstract.

What point are you trying to make?

 

[some bloke]

"Chapter 6..."

"The point was addressed even more directly by Sir Anthony May in DPP v Wright [2009] EWHC 105 (Admin), a case involving allegations under the Hunting Act 2004:

“…….we are disinclined to accede readily to a submission that it is proportionate to bypass article 6(2) for summary offences in magistrates’ courts because they are relatively trivial. Chipping away at a fundamental principle of the criminal law has obvious dangers.”

In circumstances where reverse legal burdens continue to be struck down by the courts, these are significant judicial pronouncements. At the very least, they render the lawfulness of the reverse burden in s.451(2) open to doubt. Defendants facing charges under s.451 (or, for that matter, other offences under the Act) should therefore consider deploying Convention based arguments to this effect."

https://www.2harecourt.com/2018/05/15/defending-directors-hidden-gems-companies-act-2006/

 

[tspaul26]

"The point was addressed even more directly by Sir Anthony May in DPP v Wright [2009] EWHC 105 (Admin), a case involving allegations under the Hunting Act 2004:

“…….we are disinclined to accede readily to a submission that it is proportionate to bypass article 6(2) for summary offences in magistrates’ courts because they are relatively trivial. Chipping away at a fundamental principle of the criminal law has obvious dangers.”

In circumstances where reverse legal burdens continue to be struck down by the courts, these are significant judicial pronouncements. At the very least, they render the lawfulness of the reverse burden in s.451(2) open to doubt. Defendants facing charges under s.451 (or, for that matter, other offences under the Act) should therefore consider deploying Convention based arguments to this effect."

https://www.2harecourt.com/2018/05/15/defending-directors-hidden-gems-companies-act-2006/

So?

What point are you trying to make?

 

[some bloke]

I hope it is clear and of interest to some that the courts have struck down some reverse-burden provisions.

There seems a significant misunderstanding in this thread. I am talking basically about issues, not making a load of false statements about "magistrates' court processes".

your above expression of magistrates court processes doesn't correspond to reality.

I am talking about issues, because I am interested in the kinds of things which the higher courts may say. I indicated that at the start.

The problem may be the need for a defendant to prove the exception on the balance of probabilities.

To my mind, the overall need for the prosecution to prove the case beyond reasonable doubt is so fundamental that it should trump that, but perhaps the issue has been clarified including in the courts.

Only the higher courts can clarify such issues. My interest was largely stimulated by the idea that there could be challenges to the lawfulness of reverse burden provisions, which a bit of reading confirmed.

If posters cannot point to instances where I have unambiguously misrepresented magistrates' court processes, there is no basis for the claims to remain on this thread. While informative, I cannot see what the detailed descriptions of these processes achieve for this thread apart from giving a false impression of, and distracting from, what I have written.

I also ask where I am supposed to have presented opinion as fact.

I am happy to correct anything specific which someone can point to as an unambiguous error or unclear statement.

 

[tspaul26]

I hope it is clear and of interest to some that the courts have struck down some reverse-burden provisions.

The courts have done no such thing.

Find an example in the law reports. Just one.

If posters cannot point to instances where I have unambiguously misrepresented magistrates'court processes, there is no basis for the claims to remain on this thread. While informative, I cannot see that the detailed descriptions of these processes achieve for this thread apart from giving a false impression of, and distraing from, what I have written.

If this thread is about the evidential and legal burden of proof in criminal causes then magistrates’ court practice is highly relevant, especially given the statutory context of such practice to which you have been referred.

I am happy to correct anything specific which someone can point to as an unambiguous error or unclear statement.

You can start by clarifying what points you were trying to make with the quoted abstract and article you posted earlier in this thread.

You still haven’t done so despite requests.

== Doublepost prevention - post automatically merged: 2 Jul 2023 ==

I hope it is clear and of interest to some that the courts have struck down some reverse-burden provisions.

I am happy to correct anything specific which someone can point to as an unambiguous error or unclear statement.

This statement is an “unambiguous error”. Would you care to correct it?

 

[some bloke]

The courts have done no such thing.

I'm sorry - are you saying they did not in DPP v Wright?

If this thread is about the evidential and legal burden of proof in criminal causes then magistrates’ court practice is highly relevant, especially given the statutory context of such practice to which you have been referred.

Yes, that would be fine - but the context here is of unspecified claims that my points are errors about those processes. That does distract.

You can start by clarifying what points you were trying to make with the quoted abstract and article you posted earlier in this thread.

I thought they spoke for themselves. Their accounts can be the basis for discussion.

== Doublepost prevention - post automatically merged: 2 Jul 2023 ==

I did have some faith that they were accurate.

 

[island]

sorry - are you saying they did not in DPP v Wright?

Paragraphs 49 and 90 of the judgement make it very clear that it is of no assistance to you here.

 

[tspaul26]

I'm sorry - are you saying they did not in DPP v Wright?

That is correct: the court did not ‘strike down’ anything in Wright.

Have you actually read the report?

Yes, that would be fine - but the context here is of unspecified claims that my points are errors about those processes. That does distract.

With the greatest respect, your position (at least as far as I have been able to distil it) is that any burden of proof on the accused in a criminal cause is unlawful?

If that is the starting point then it is a fundamental error which inherently colours your dismissal of actual court practice i.e. the greater includes the former.

I thought they spoke for themselves. Their accounts can be the basis for discussion.

I did have some faith that they were accurate.

In order to enable such discussion, you must state what point you say arises on the basis of these academical writings and by what authority.

Simply quoting from the materials with no context or explanation is simply inadequate.

My question to you is: even if we concede that both documents are “accurate” (whatever that might mean), then so what?

 

[some bloke]

Have you actually read the report?

No - I've tried to get hold of it.

With the greatest respect, your position (at least as far as I have been able to distil it) is that any burden of proof on the accused in a criminal cause is unlawful?

No. I wrote above of an example where a 51% threshold was just not met, which would, if we add "where other factors are balanced" seem to introduce a lot of doubt.

My initial instinct (apart from perhaps one mention I made of the issue on this forum six months ago) is as stated in my first post above. As I said, I was interested in what courts have decided. I can see the issue is complex; my understanding is that no clear solution has been found to a problem which may arise in a variety of relevant circumstances. It would seem, for example, sensible to consider the difficulty someone might have obtaining evidence.

In order to enable such discussion, you must state what point you say arises on the basis of these academical writings and by what authority.

Simply quoting from the materials with no context or explanation is simply inadequate.

I think you are ignoring the context of the previous comments in the thread, including yours. A context where the actual issues are ignored and dubious accusations made is not conducive to trust that one's own words will be considered properly, or a proper discussion forthcoming. I also believe readers have been confused by the direction of the thread, making the context for new points difficult to understand. And I only began thinking about this a few days ago.

even if we concede that both documents are “accurate” (whatever that might mean), then so what?

If there is scope for defendants to make arguments on human rights grounds, that would seem significant. I also think there can be some value in considering these kinds of issues, even if only educational.

I also think that there may be a problem, which I have not seen any authors refer to, for magistrates themselves if they think there is much doubt about whether the person is guilty of what the offence is designed to cover - which is linked to the issue of whether in particular cases an exception can be viewed as implying part of the essential elements of the offence.

 

[tspaul26]

No - I've tried to get hold of it.

In other words, your comments as to what the case may or may not decide come from a position of ignorance.

No. I wrote above of an example where a 51% threshold was just not met, which would, if we add "where other factors are balanced" seem to introduce a lot of doubt.

My initial instinct (apart from perhaps one mention I made of the issue on this forum six months ago) is as stated in my first post above. As I said, I was interested in what courts have decided. I can see the issue is complex; my understanding is that no clear solution has been found to a problem which may arise in a variety of relevant circumstances. It would seem, for example, sensible to consider the difficulty someone might have obtaining evidence.

The courts have decided this point and the burden of proof on the prosecution need not be absolute. That much is clear from the case law.

Your initial instinct is, ultimately, wrong.

I think you are ignoring the context of the previous comments in the thread, including yours. A context where the actual issues are ignored and dubious accusations made is not conducive to trust that one's own words will be considered properly, or a proper discussion forthcoming. I also believe readers have been confused by the direction of the thread, making the context for new points difficult to understand. And I only began thinking about this a few days ago.

No, I have asked you (more than once) to explain what proposition you say is established by the materials to which you have referred.

You continue to fail to do so which I can only infer is a wilful failure by this point.

If there is scope for defendants to make arguments on human rights grounds, that would seem significant. I also think there can be some value in considering these kinds of issues, even if only educational.

I also think that there may be a problem, which I have not seen any authors refer to, for magistrates themselves if they think there is much doubt about whether the person is guilty of what the offence is designed to cover - which is linked to the issue of whether in particular cases an exception can be viewed as implying part of the essential elements of the offence.

There is nothing novel in any of this and it has received significant curial consideration going back for several decades.

I once again ask you to set out what point you say is established by the materials to which you have referred and by what authority (the “so what?”).

 

[Llanigraham]

I also think that there may be a problem, which I have not seen any authors refer to, for magistrates themselves if they think there is much doubt about whether the person is guilty of what the offence is designed to cover - which is linked to the issue of whether in particular cases an exception can be viewed as implying part of the essential elements of the offence.

If Magistrates have any doubt about anything they have the right to ask for an explanation, be that from their Clerk, from the Prosecutor or from the Defence. That can be done in the Court or they can "withdraw" and ask the questions of those people in private.

Sorry but your comments do show that you have little understanding of Magistrate Court proceedings and I suggest, again, that you need to attend Court and see what actually goes on.