2. Bail Applications at Court, First Hearings Before the Magistrates, Plea Before Venue, and Case Management and Pre-Trial Hearings Flashcards
what is adjournment of a case?
case being given a different/another date
what is remand of a defendant, and what are the three types?
when a defendant is sent away and told to come back another day.
- remand on unconditional bail (in the community)
- remand on conditional bail (in the community)
- remand into custody (kept in prison until trial date)
who applies for bail?
once a prosecution objection to bail has been raised, the defence must apply for bail.
when is a bail decision first made?
first hearing in the magistrates’ court (except in murder cases, where only a Crown Court Judge can grant bail)
what happens if D’s first application is unsuccessful?
- the case will be returned to court a week later where the issue of bail can be raised a second time without any restriction or qualification
- in principle, the same submissions can be made
- sometimes the same application is denied first, but allowed the second time in front of a different bench of magistrates (or a District Judge)
what can D do after two unsuccessful bail applications?
- msut obtain a ‘certificate of full argument’ from the magistrates
- if D wishes to, D can then appeal to the Crown Court
- appeals are heard 1 BD after an appeal notice is served
bail is a _____________ issue
ongoing
As defendants have a general right to bail (s4 Bail Act), what two things are required to remand a defendant in custody at a court hearing?
- Exception to the right to bail must apply, and
- Real prospect of custodial sentence being imposed
What are six of the exceptions to the s4 right to bail ie the grounds of objection to bail?
- Substantial grounds for believing D will FTS, COB, IWW, OCJ
- D charged with offence triable in Crown Court and was on bail at the time of commission
- Custody for their own protection
- Already serving a sentence
- Insufficient information to make a decision on bail
- D has failed to surrender in the same proceedings previously
test for whether the grounds should result in an exception to bail being granted
**‘substantial grounds for believing’*
What is failure to surrender (FTS)?
it is a criminal offence to fail, without reasonable cause, to surrender to custody (turn up to court)
what are the Para 9 factors used to support the grounds for objection?
- the nature and seriousness (likely disposal)
- the character of the defendant
- the strength of the evidence
- D’s antecedents
- community ties
- associations
- the defendant’s bail record in the past
why are the grounds of objection important?
the ultimate denial of bail MUST be on the basis of a legitimate ground of objection
example of how factors support the grounds
what are some common bail conditions?
- residence at a given address
- curfew
- reporting to a local police station at given times
- surety (promise to pay)
- security (putting up money or valuable items to be forfeited)
- restrictions on movement
- restrictions on contact (witnesses, victims) to prevent OCJ or COB
- electronic monitoring
- bail hostels
- surrender of passport
what are the two things that bail conditions must be?
necessary and proportionate
What happens if you breach a bail condition?
- it is NOT a criminal offence
- but you can be arrested
- and bail will be re-assessed
Only whom can hear a bail application for a murder charge?
Crown Court Judge
What must be shown in order for a defendant charged with murder to secure bail?
No significant risk that they defendant would commit an offence likely to cause physical or mental injury to another person
How often must a court consider bail?
At each hearing
However, only how many times many a defendant make a further application on the same facts and submissions?
One additional time
Thereafter, what is required for a defendant to make an additional bail application?
Change of circumstance, relating to the case generally or defendant
What is allowed to happen if a defendant breaches their bail conditions?
They can be arrested without a warrant
where do all first hearings take place?
magistrates’ court
what is the initial details of the prosecution case (IDPC)?
must comply with Criminal
Procedure Rules, Part 8.
at a minimum:
- summary of the prosecution case
- summary of the interview
- D’s previous convictions
if D has been charged on bail (more time until the court hearing), we would expect to see:
- witness statements
- forensic report
- photographs
when must the prosecution serve the IDPC on the court officer?
- as soon as practicable; and
- in any event, no later than the beginning of the day of the first hearing
if the defendant requests the IDPC, when must the prosecution serve the IDPC on the defendant?
- as soon as practicable; and
- in any event, no later than the beginning of the day of the first hearing
can the prosecution’s failure to serve the IDPC lead to a dismissal of charge or give rise to an abuse of process application?
ordinarily no
what will the court do if the prosecution fails to serve the IDPC?
usually adjourn a first hearing and/or award costs to the defence
when will a Preparation for Effective Trial (PET) form be required?
when the client is pleading not guilty and there will be a trial
PET is just a case management form
what is the exception to the rule that summary only offences never go to the Crown Court?
- D is charged with an offence that is to be tried in the Crown Court; and
- There is a summary only offence connected to the indictable offence, as follows:
must be sent for trial and included on an
indictment:
- common assault
- assaulting a prison or secure training centre officer
- taking a motor vehicle or other conveyance without authority
- driving a motor vehicle while disqualified
- criminal damage
must be sent for plea only:
- Any summary matter punishable by disqualification from driving or imprisonment
What happens at the first court hearing in the Magistrates where the offence is (1) summary only, (2) either way, or (3) indictable only?
- Summary: D pleads guilty or not guilty
- Either way: Court proceeds to PBV process
- Indictable: Matter is sent immediately to the Crown Court for trial
For summary only offence, what happens if the defendant’s plea is (1) guilty and (2) not guilty?
Guilty: Court proceeds immediately to sentencing
Not guilty: Court will set a trial date for six to eight weeks later
Whose decision alone is the plea, and who must never instruct this?
The defendant’s alone, and the solicitor should never tell D how to plead
What is the two part test for a representation order, i.e. to receive legal aid?
- Means test
- Interests of justice test
Net income (after deductions and adjustments) over what amount will not satisfy the means test for criminal legal aid?
£3,398
What is PBV?
Procedure where defendant appears at the Magistrates Court charged with an either way offence
What are the three advantages of electing for the Magistrates Court?
- Limited sentencing powers
- Relative speed and low cost
- Less stringent disclosure requirements
What are the three advantages of electing for the Crown Court?
- Higher rates of acquittal
- More effective process for challenging admissibility of evidence
- Longer delay before trial, making gathering evidence more practical
what is allocation?
when D indicates a not guilty plea, so the magistrates court will need to decide whether to:
- allocate the case to a magistrates’ court (accept jurisdiction); or
- send it to the Crown Court (decline jurisdiction).
when is allocation triggered?
- either-way offence
- D pleads not guilty
what questions are asked at allocation?
send/allocate to CC:
- if the outcome would clearly be a sentence in excess of MC powers (look at allocation guidelines and sentencing guidelines)
- if there areunusual legal, procedural of factually complex issues
what should the magistrates do if they have a borderline case at allocation?
- trial in magistrates
- commit for sentence if needed
if the magistrates’ retain/accept jurisdiction at allocation, what can D do if they would prefer a Crown Court trial?
D could elect a Crown Court trial
If the defendant at a PBV pleads not guilty or gives no indication, what must the Magistrates decide, and what two factors will they consider in doing so?
Whether the offence can be dealt with in the Magistrates Court, or if the Crown Court is more appropriate, considering:
- D’s previous convictions
- Whether the court’s sentencing powers are adequate to deal with the conduct alleged
When deciding their plea, the defendant can request an indication as to what, and what is this known as?
A Goodyear indication:
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).
If an indication is given, and the defendant changes their plea, is the court bound to follow what their indication?
Yes
If an indication is given, and the defendant maintains their not guilty plea, is the court bound to follow what they said?
No
What two standard case management directions are given in Magistrates Court?
- Prosecution must serve its evidence within 28 days
- Defence must serve a defence statement (if they are serving one) within 14 days, and notify which prosecution witness are to attending within 7 days
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?
- Trial likely to last more than 4 weeks
- Case management problems to address
- Early trial date is needed
- Defendant is a minor
- Likely to be an early guilty plea
Within what time of the case being sent from Magistrates does PTPH hearing take place in the Crown Court?
28 days
In the Crown Court, within what time limit must prosecution complete disclosure, and what is this extended to if defendant is on bail?
50 days. 70 days if D on bail.
What is the prosecution also under an ongoing duty to disclose?
Any unused material which might reasonably be considered capable of undermining the case for the prosecution or assisting the defence
After the prosecution has made disclosure, how long does the defence have to serve a defence case statement on the prosecution and the court?
28 days
