2. First hearings before magistrates' court, plea before venue, allocation and bail Flashcards
What are some examples of indictment only offences?
Murder
Manslaughter
Causing GBH
Wounding with intent
Rape
Robbery
Aggravated burglary
Blackmail
Kidnap
Conspiracy
What are some examples of either way offences?
Theft
Fraud
Most forms of burglary
Handling stolen goods
Inflicting GBH/ wounding
Sexual assault
Criminal damage over £5,000 or by fire (any value)
Dangerous driving
What are some examples of summary offences?
Shop theft under £200
Criminal damage under £5,000
Common assault
What are the two tests which must be satisfied in order to qualify for criminal Legal Aid?
Interests of justice test
Means test
What are the factors which are considered in the interests of justice test for Legal Aid?
Possibility of loss of liberty / livelihood
Involvement of a substantial question of law - e.g. possibility of court drawing adverse inferences, or disputed evidence
Individual’s understanding of the case
Tracing, interviewing or cross-examining of witnesses
In the interests of another person - NOTE that this should not be used to argue that legal representation is in general interests of defendant’s family
Which individuals automatically satisfy the means test for Legal Aid?
Under 18 or in receipt of benefits
What needs to be submitted if someone doesn’t automatically satisfy the means test for Legal Aid?
Submit a financial statement - purpose to calculate disposable income, disregarding capital amounts
What are the rights of appeal if someone is refused Legal Aid on the interests of justice grounds?
Either resubmit the application with further evidence, or request an appeal
If someone is refused Legal Aid on the grounds of failing to satisfy the means test, what right of appeal do they have?
No right of appeal, but can request a review on grounds of hardship
What is the difference between the availability of Legal Aid in the magistrates’ court and Crown Court?
In magistrates’ = either free or not available
In Crown Court = may be subject to the defendant paying a contribution towards their legal aid costs
What is the procedure for summary offences if guilty plea entered at first hearing?
- Representative from CPS will tell magistrate the facts of the case and if relevant give record of previous convictions
- Defence will give plea in mitigation
- Magistrate will either sentence straight away or adjourn if they want to obtain any reports before sentencing - also would adjourn if Newton hearing needed
- Will consider bail if adjourned
What is the procedure for summary offences if not guilty plea entered at first hearing?
- Court will fix a date for defendant’s trial to take place (and possibly date for pre-trial hearing to deal with admissibility of evidence if disputed)
- Will issue case management directions to be complied with based on completed PET (Preparation for Effective Trial) form
- Will consider bail if adjourned
What is the procedure for either-way offences if guilty plea entered at first hearing?
- Magistrate will determine whether they should sentence the defendant or commit to Crown Court
- Case may need to be adjourned for magistrates to obtain pre-sentence report before sentencing
What is the procedure for either-way offences if not guilty plea entered at first hearing?
- Magistrate determine venue - plea before venue and allocation procedure
- If case to be adjourned, magistrates will determine whether the defendant should be released on bail or remanded in custody prior to the next hearing
What is the procedure for first hearings before magistrates court for offences triable on indictment only?
Case will always be adjourned as defendant will be sent straight to Crown Court - magistrate determine bail / remand in custody
What is the role of the solicitor at / before the first hearing before the magistrates’ court?
- Obtaining LAA funding if relevant
- Obtaining details of prosecution case
- Taking statement from client
- Advising client on strength of prosecution evidence and recommended plea
- Informing about venue allocation
- Making application for bail
What is an IDPC (initial details of the prosecution case)?
Digital document that all defendants are entitled to receive
When should an IDPC be made available to a defendant?
Before they make their plea
What does an IDPC contain?
Summary of circumstances of the offence
Account given by defendant in interview
Defendant’s criminal record
Victim impact statement
Where a defendant has been released on bail after being charge, and guilty plea is not anticipated, what else should the prosecution include in the IDPC?
Summary of offence and account given in interview
Statements / exhibits prosecution identifies as being of importance for purpose of plea / initial case management
Indication of any expert evidence
Information as to special measures, bad character or hearsay
If there are co-defendants and one choose trial at Crown Court, where will to co-defendant go?
Crown Court
What are the factors in favour of electing trial at the Crown Court?
- Greater chance of acquittal
- Better procedure for challenging the admissibility of prosecution evidence
- More time to prepare the case for trial
What are the factors in favour of electing trial at the magistrates’ court?
- Limited sentencing powers
- Speed and stress
- Prosecution + defence costs
- No obligation to serve a defence statement
What is the maximum sentence available by the magistrates’ court?
6 months
(12 months for 2 offences)
What is “remand”?
An adjournment where the court will want to ensure the defendant attends the next hearing
What are the three ways that a defendant can be remanded?
- Remanded in custody
- Remanded on bail with conditions
- Remanded on unconditional bail
What is the basic rule regarding how long a defendant can be remanded in custody?
No more than 8 clear days at a time
If a defendant’s case is still in the magistrates’ court, if there are successive remands in custody how often does the defendant need to be brought before the court?
On every fourth remand
In what circumstances may the court remand a defendant in custody for up to 28 days?
- Previously remanded them in custody for the same offence, and
- They are before the court, and
- It can set a date to remand them to on which it expects next stage of proceedings to take place
What is the overall maximum period of remand in custody for an either-way offence?
70 days
What is the overall maximum period of remand in custody for a summary offence?
56 days
When does the presumption of bail not apply?
Defendants who have been committed to the Crown Court for sentence
Defendants appealing against conviction or sentence
For which offences listed in s 25 CJPOA will bail only be granted in exceptional circumstances?
Murder
Attempted murder
Manslaughter
Rape
Attempted rape
Which party has the burden of proof for s 25 offences that they should be granted?
Offender
What is the implication of the “no real prospect of custody” restriction on presumption of bail?
Magistrate does not have the power to demand the defendant in custody as they wont be in custody following conviction
When considering whether a defendant should be granted bail, what grounds for refusal are considered?
- Substantial grounds for believing defendant would fail to surrender to custody
- Substantial grounds for believing defendant would commit an offence while on bail
- Substantial grounds for believing defendant would interfere with witnesses/ obstruct the course of justice
When considering whether any of the grounds for not granting bail are satisfied, what are the factors that the court will take into account?
o Nature and seriousness of offence – and probable sentence defendant will receive
o Character, antecedents, associations and community ties of the defendant
o Defendant’s record in respect of previous grants of bail in criminal proceedings
o Strength of evidence against the defendant
What conditional bail options are available with the aim of overcoming absconding?
Sureties
Security
Reporting to police station
Residence
Surrender of passport
What conditional bail options are available with the aim of overcoming commission of an offence on bail?
Reporting to police station
Residence
Curfew
Non-communication with prosecution witnesses
Restriction on entering specified areas
What conditional bail options are available with the aim of preventing interference with a witness?
Non-communication with prosecution witnesses
Restriction on entering specified areas
If a magistrate refuses bail, what duty to they have at subsequent hearings?
Duty to consider the question of bail and presumption of bail still applies
If not granted bail by the magistrates’ court, how many further applications can the defendant make to the magistrates’ court?
One further full bail application
If refused, may only make further application if able to raise a new legal or factual argument
What further right to bail does a defendant have once they have unsuccessfully applied for bail to the magistrates’ court?
Right of appeal to Crown Court - no restrictions as to whether this is same or new facts
When can CPS appeal a decision to grant bail?
If defendant is charged with an imprisonable offence
What is the process for CPS appealing against bail granted?
- Oral notice given at end of hearing before defendant’s release from custody
- Notice confirmed in writing and served on defendant not more than 2 hours following oral notice
- Crown Court must hear appeal as soon as possible, not later than 2 business days subsequently
What happens if a defendant fails to surrender following bail?
Warrant issued for arrest
Guilty of offence of absconding
What happens if a defendant breaches a condition of bail (which isn’t attendance to court)?
Likely arrest and detention in police custody
Brought before magistrates’ within 24 hours to review conditions
Court will decide whether to remand in custody or on bail pending the next hearing
