2. Bail Applications at Court, First Hearings Before the Magistrates, Plea Before Venue, and Case Management and Pre-Trial Hearings

Question 1

As defendants have a general right to bail, what two things are required to remand a defendant in custody?

Answer 1

1. Exception to the right to bail must apply, and
2. Real prospect of custodial sentence being imposed if the defendant is convicted

Question 2

What are six of the exceptions to the right to bail?

Answer 2

1. Substantial grounds for believing D will fail to surrender, commit further offences, or interfere with witnesses
2. D charged with offence triable in Crown Court
3. Custody for their own protection
4. Already serving a sentence
5. Insufficient information to make a decision on bail
6. D has failed to surrender in the same proceedings previously

Question 3

In deciding whether substantial grounds are made out, what will the court consider?

Answer 3

Note: all factors below can be advantageous and disadvantageous
* The nature and seriousness of the offence
* The defendant’s character, previous convictions, associations, and community ties
* The defendant’s record on complying with bail obligations
The strength of the evidence (the stronger the evidence, the less likely bail will be granted*)
*The risk that the defendant might engage in conduct that would, or would be likely to, cause physical or mental injury to another.

Question 4

Only whom can hear a bail application for a murder charge?

Answer 4

Crown Court Judge

Question 5

When can a court attach conditions to bail?

Answer 5

The court can attach conditions to bail if they are:
a. relevant,
b. proportionate and
c. enforceable.

Question 6

What must be shown in order for a defendant charged with murder to secure bail?

Answer 6

No significant risk that they defendant would commit an offence likely to cause physical or mental injury to another person

Question 7

How often must a court consider bail?

Answer 7

At each hearing

Question 8

However, only how many times many a defendant make a further application on the same facts and submissions?

Answer 8

One additional time

Question 9

Thereafter, what is required for a defendant to make an additional bail application?

Answer 9

Change of circumstance, relating the the case generally or defendant

Question 10

What is allowed to happen if a defendant breaches their bail conditions?

Answer 10

They can be arrested without a warrant or the court can impose more stringent conditions

Question 11

Overview on Defence Solicitor’s tasks

Answer 11

Question 12

What happens at the first court hearing in the Magistrates where the offence is (1) summary only, (2) either way, or (3) indictable only?

Answer 12

1. Summary: D pleads guilty or not guilty
2. Either way: Court proceeds to plea before venue process
3. Indictable: Matter is sent immediately to the Crown Court for trial

Question 13

For summary only offence, what happens if the defendant’s plea is (1) guilty and (2) not guilty?

Answer 13

Guilty: Court proceeds immediately to sentencing
Not guilty: Court will set a trial date for six to eight weeks later

Question 14

Whose decision alone is the plea, and who must never instruct this? What are the professional conduct rules a solicitor has to keep in mind at this stage.

Answer 14

• The defendant’s alone, and the solicitor should never tell D how to plead
• A solicitor has both a duty to advance their client’s best interests and a duty not to mislead the court. If these two duties conflict with each other, a solicitor must give the client careful advice on their chosen course of action.

Question 15

What is a representation order and what is the two part test for a representation order, i.e. to receive legal aid?

Answer 15

Unless a defendant is privately funded, the defence solicitor attending court to represent a defendant needs to apply for a representation order, which is an order authorizing payment of legal aid for a defendant

1. Means test
2. Interests of justice test

Question 16

Net income (after deductions and adjustments) over what amount will not satisfy the means test for criminal legal aid?

Answer 16

£3,398

Question 17

What is plea before venue?

Answer 17

Procedure where defendant appears at the Magistrates Court charged with an either way offence

Question 18

What are the three advantages of electing for the Magistrates Court?

Answer 18

1. Limited sentencing powers
2. Relative speed and low cost
3. Less stringent disclosure requirements

Question 19

What are the three advantages of electing for the Crown Court?

Answer 19

1. Higher rates of acquittal
2. More effective process for challenging admissibility of evidence (in absence of the jury)
3. Longer delay before trial, making gathering evidence more practical

Question 20

If the defendant at a plea before venue pleads not guilty or gives no indication, what must the Magistrates decide, and what two factors will they consider in doing so?

Answer 20

Whether the offence can be dealt with in the Magistrates Court, or if the Crown Court is more appropriate, considering:

1. D’s previous convictions
2. Whether the court’s sentencing powers are adequate to deal with the conduct alleged

Question 21

When deciding their plea, the defendant can request an indication as to what, and what is this known as?

Answer 21

Whether the sentence would be custodial or non-custodial if they were to plead guilty (but the court is under no obligation to provide this indication).

A Goodyear indication.

Question 22

If an indication is given, and the defendant then pleads guilty, is the court bound to follow what they said?

Answer 22

Yes

Question 23

If an indication is given, and the defendant maintains their not-guilty plea, is the court bound to follow what they said?

Answer 23

No

Question 24

What two standard case management directions are given in Magistrates Court?

Answer 24

1. Prosecution must serve its evidence within 28 days
2. Defence must serve a defence statement (if they are serving one) within 14 days, and notify which prosecution witnesses the defence requires to attend trial within 7 days

Question 25

One of what five things will trigger the requirement for a preliminary hearing to be held within 14 days of an indictable only matter being sent to the Crown Court?

Answer 25

1. Trial likely to last more than 4 weeks
2. Case management problems to address
3. Early trial date is needed
4. Defendant is a minor
5. Likely to be an early guilty plea

Question 26

Within what time of the case being sent from Magistrates does plea and trial preparation hearing take place in the Crown Court?

Answer 26

28 days after the case was sent from the Magistrates Court.

Question 27

In the Crown Court, within what time limit must prosecution complete disclosure, and what is this extended to if defendant is on bail?

Answer 27

50 days. 70 days if D on bail.

Question 28

What must the prosecution disclose?

Answer 28

The prosecution must disclose all evidence they intend to rely on at trial.

Question 29

What is the prosecution also under an ongoing duty to disclose?

Answer 29

Any unused material which might reasonably be considered capable of undermining the case for the prosecution or assisting the defence

Question 30

What is a defence case statement?

Answer 30

• A defence case statement is a written statement which has to be provided to both the prosecution and the court.
• The statement sets out the nature of the defence, including what facts of the prosecution case are disputed, what alternative facts the defence alleges, what points of law the defence wishes to raise, and details of any alibi witness, if relevant.

Question 31

After the prosecution has made disclosure, how long does the defence have to serve a defence case statement on the prosecution and the Crown Court?

Answer 31

28 days

Question 32

What happens if the statement of defence is not served on time?

Answer 32

If the defence fails to serve an adequate
defence case statement on time that reflects the defence intended to put forward at trial, an adverse inference may be drawn.