3. The law, procedure and processes involved in pre-trial considerations

Question 1

What is the allocation of offences between the magistrates and the crown?

Answer 1

Summary only: Magistrates court only - proceed to trial or sentence depending on the plea.

Either Way: Crown court or Magistrates - proceed to plea before venue and allocation.

Indictable Only: Crown court only. Send the case forthwith to the Crown Court.

Question 2

What are the circumstances in which a defendant’s plea is taken?

Answer 2

It is dependent on the classification of offence.

• Summary: court will take the defendant’s plea to the charge(s).
• Either way: court will ask D to indicate a plea to the charge(s).
• Indictable only: court will ask the defendant whether they intend to plead guilty to the charge(s).

Question 3

Do all defendants appear at the magistrates?

Answer 3

YES

All cases will start in the magistrates, regardless of the classification of offence.

Question 4

What is Plea Before Venue? (PBV)

Answer 4

For either-way offences, designed to allow the defendant to indicate their intended plea.

The procedure that follow will be dependent on the plea indicated by the defendant.

Question 5

What is a IDPC?

Answer 5

The intial details of the prosecution case on the defence, prior to their first appearance to enable a plea to be indicated.

Question 6

What is the procedure on the Defendant entering plea?

Answer 6

The charge must be writtend own and read to the defendant.

The court must explain to the defendant:
- The allegation, unless self explanatory.
- That the offence is one that can be tried in magistrates or crown.
- That the court is about the ask if D intends to plea guilty.
- If the answer is yes - court must treat as guilty plea and sentence or commit to CC for sentence.
- If the answer is no/or no answer - court must decide whether to allocate case to MC or CC for trial. (D can req CC if allocated to MC)

Court must then asked whether D intends to plead guilty.

Question 7

Upon being asked to indicate plea, what three options does D have?

Answer 7

• Indicate a guilty plea
• Indicate a non-guilty plea
• Remain silent (do not give an indication of plea)

They DO NOT have to indicate a plea.

Question 8

What happens where D indicates an intention to plea guilty?

Answer 8

Magistrates will treat as a guilty plea and will proceed as if D has been convicted of a summary offence.

They will proceedings to sentencing; they may:

• sentence D in the MC
• commit D to be sentenced in CC if consider sentencing powers to be inadequate

Question 9

What happens where D indicates an intention to plea not guilty/or not plea?

Answer 9

The magistrates will proceed to the allocation hearing.

Question 10

What is an allocation hearing?

Answer 10

The formal process whereby the magistrates determinew hether D is to be tried in the MC or sent to CC for trial.

Question 11

What are the advantages of trial in the CC?

Answer 11

• Lower likelihood of conviction compared to MC as the juries are seemingly more sympathetic.
• Questions of the law - in the CC the judge is the Law and the jury Fact.
• The delay with the CC route allow the defence a longer time to prepare their defence and gather evidence.

Question 12

What are the advantages of trial in the MC?

Answer 12

• More limited sentencing powers.
• More favourable appeal routes.
• Summary trials are listed faster, as well as the trial itself.
• Summary trials are less formal, may be less stressful.
• CC trials will garner more publicity - MC is better if public perception is important.
• Trial in MC is much cheaper.
• No requrement to serve defence statment, more the defendant’s case can be hidden from prosecution.

Question 13

What is the process on the decision as to allocation (MCA s19)

Answer 13

Before making their decision:
- Court gives P opportunity to inform court of D’s previous convictions.
- Court then gives P and D opportunity to make representations on the more suitable trial.

Court then takes the statutory factors into account when making decision.

Question 14

What statutory factors will the court take into account?

Answer 14

• Whether the sentence which a MC would have the power to impose would be adequate.
• Any representation made by P or D.
• Allocation guideline issued by the sentencing council.

Question 15

What is the special rule in s 19(4)?

Answer 15

Where D is charged with two or more offences, which can be joined or arise out of the same or connected circumstances then the MC will consider their sentencing powers in light of the maximum aggregate sentence.

Question 16

What is the allocation guideline?

Answer 16

Provides that in general either way offences should be tried summarily, except:

• Where the outcome would clearly be a sentence in excess of the court’s powers.
• For reasons of unusual legal, procedural or factual complexity.

Question 17

What happens at the end of an allocation hearing?

Answer 17

The magistrates must determine the outcome of hearing and have two options available to them:

• Decline summary jurisdiction and deem trial on indictment to be more suitable
• Accept summary jurisdiction and deem summary trial to be more suitable

Question 18

What happens if trial on indictment is deemed to be more suitable? (MCA s21)

Answer 18

Court will inform D of this and send them to CC.

A date will be set for D’s first apperance before the CC at PTPH.

If the magistrates have declined jurisdiction, D has NO RIGHT TO ELECT trial in MC.

Question 19

What happens if summary trial is deemed to be more suitable? (MCA s20)

Answer 19

Court will explain to D that:
- Appears MC is more suitable
- That they can either consent to be so tried, or if they wish be tried on indictment
- If summarily tried and convivted, they may be commited to CC for sentence.

Question 20

What is an indication of sentence?

Answer 20

D can request.

Is where the magistratse identify whether a custodial sentence or non-custodial sentence would be more likely to be imposed if D were tried summarily and plead guilty.

Question 21

Is the court obliged to give an indication of sentence?

Answer 21

NO

However where it does it must ask D whether they wish to reconsider their plea based on the indication; if they do the court asks them whether they would plea guilty or not should the offence proceed to trial

Question 22

What do the special rules is s20A provide?

Answer 22

• No court is bound by the indication of sentence provided by MC
• No sentence may be challenged or be subject of appeal on the grounds that it is not consistent with the indication of sentence.
• No court may impose a custodial sentence on D unless such sentence was indicated in the indication of sentence

ONLY APPLIES WHERE D HAS INDICATED INTENT TO PLEAD GUILTY

Question 23

What is the 3 stage breakdown of the allocation process?

Answer 23

• Plea before venue: D indicates their plea.
• Allocation hearing: Magistrates make their determination as to suiability.
• Defendant’s choice: if magistrates accept summary jurisdiction, D must decide whether to consent to summary trial or elect trial on indictment.

Question 24

What circumstance can a case be sent to the CC without allocation?

Answer 24

• Where an eitherway offence is sent to CC, without an allocation hearing under s 50A of Crime and Disorder Act (CDA).
• Where an indictable only offence is sent to CC forthwish under s 51 CDA.

Question 25

How does sending without allocation work for notices in serious or complex fraud cases (s 50A(2))?

Answer 25

Where the prosecution are of the opinion that the evidence of the offence charged is:

• sufficient for the person charged to be put on trial for the offence
• reveals a case of fraud of such seriousness or complexity that it is appropriate that the case should without delay been taken over by CC.

Question 26

How does sending without allocation work for notices in certain cases involving children (s 50A(2))?

Answer 26

Where the DPP is of the opinion:

• the evidence of the offence is suggicient for the charged to be put on the trial for the offence
• a child would be called witness at trial; and
• for the purpose of avoiding prejudice to welfare of the child, the case should without delay been taken over by CC.

Question 27

How does s51 CDA work?

Answer 27

Must related to INDICTABLE ONLY offences.

Must be sent to CC forthwith.

Magistrates must set a PTPH within 28 days of sending.

Question 28

What does forthwith mean?

Answer 28

Describes the MC sending to CC without delay.

Question 29

What is the time limit for the magistrates to set a date for the PTPH?

Answer 29

28 Days

Question 30

Can the magistrates send a related offence without allocation?

Answer 30

Yes under s51 CDA.

Where the mags have previously sent D to CC for trial, and D appears before the mags again for an either way or summary offence, they may sent these subsequent offences to CC without allocation.

Question 31

What is a related offence?

Answer 31

• An either way offence is related if the charge could be joined on the indictment as the charge for the indictable only offence.
• A summary offence is related if it arises out of circumstances which are the same as, or connected with those giving rise to the indictable only offence AND is punishable with imprisonment, or involves disqualifiction from driving.

Question 32

Are related adult offenders sent without allocation?

Answer 32

Yes, where there are 2 adult offenders charged with an indictable only offence and adult 1 has been sent to CC, the mags MUST also send adult 2 without allocation where:

• Adult 2 is jointly charged with A1 for an either way offence,
• The either way offence is related to the indictable only offence for which A1 has already been sent; and
• A1 and A2 appear together on the same occasion.

Question 33

What happens with joint adult offenders if A2 appears subsequently to A1?

Answer 33

The mags MAY send A2 to CC without allocation.