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Criminal lit > 4: Procedure in Mags > Flashcards

4: Procedure in Mags Flashcards

1
Q

DISCLOSURE OF INITIAL DETAILS – PROS

When must the “initial details” of pros case be given?

A

The pros MUST ASAP, but no later than beginning first day of hearing, provide to court “initial details” of pros case. Initial details do not have to be supplied automatically to D.

If D requests = pros MUST serve ASAP (latest beginning fist day of hearing).

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2
Q

DISCLOSURE OF INITIAL DETAILS – PROS

“initial details”

If D doesn’t request = pros MUST

A

make available at/before beginning day of first hearing.

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3
Q

DISCLOSURE OF INITIAL DETAILS – PROS

Where immediately before first hearing in Mags, D was in police custody, initial details =

A
  1. Summary of circumstances of offence;
  2. Any account given by D in interview (set in summary or separate doc)
  3. Any written witness statements + exhibits pros has which he considers material;
  4. D’s criminal record’ and
  5. Any statement of offence on victims or their family.

This includes YCs too.

Info MUST be sufficient to allow D + court to take informed view on plea + venue for trial.

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4
Q

DISCLOSURE OF INITIAL DETAILS – PROS

If D on bail + pros doesn’t anticipate guilty plea, initial details =

A

MUST be sufficient to assist court to identify the real issues + give appropriate directions for effective trial.

The Preparation for Effective Trial form MUST be available at first hearing + completed.

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5
Q

STARTING PROS IN MAGS

Pre-trial Hearings:

Television Link

D who is in custody may appear:

A
  1. Preliminary hearings; and
  2. Sentencing hearings

Via live link from prison/police station.

Where “lawful + in interests of justice”, courts should conduct hearings by live link or telephone.

All participants MUST see/hear SENTENCE

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6
Q

STARTING PROS IN MAGS

Pre-trial Hearings:

Television Link

When D attends prelim hearing over live link + pleads/indicates guilty + court proceeds to sentence, D MAY continue to attend through link provided if: TEST

A

Court = satisfied not contrary to interests of justice.

Where prelim hearing over live link goes to sentencing hearing, D may give oral evidence if not contrary interests of justice.

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7
Q

PRE-TRIAL HEARING = If D charged = indictable offence + in custody, Mags should

DO WHAT?

A

at first hearing proceed with allocation + if required send D to CC. If offence = summary or EW + allocated for summary trial = Mags should give directions necessary.

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8
Q

PRE-TRIAL HEARING

wHEN MUST IT OCCUR IN:

Indictable and in custody =

Summary =

A

Indictable and in custody = First Hearing

Summary = Directions required

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9
Q

If D on bail

If D on bail, case must be listed for first hearing

HOW MANY DAYS AFTER CHARGE?

A

14 dys after charge (or next available date) if pros anticipates guilty plea likely in Mags. Where not guilty is anticipated + it goes to CC, case MUST be linked for first hearing 28 dys after charge (or next available).

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10
Q

Guilty plea

Where D pleads/indicates guilty in Mags, court should consider if pre-sentence report = necessary.

Pre-sentence report = necessary where:

A
  1. Mags considers committal; or
  2. D indicated guilty plea + will be sent to CC.
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11
Q

Early admin Hearing = MAY be conducted by Justices’ clerk, but cant:

A
  1. Remand D in custody; or
  2. Without consent of Pros + D, remand D on bail on conditions other than previously imposed.

EAH applies where D charged at police station. Does NOT apply where D granted police bail + charged by CPS using written charge + requisition.

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12
Q

PREP for trial Hearings = Mags MUST conduct =

A

“prep for trial hearings” (unless D sent to CC or enters written guilty plea or single justice procedure applies). MUST give directions for trial.

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13
Q

PREP for trial Hearings =

Court MAY conduct one + pre-trial case management hearings if:

A
  1. Anticipates guilty plea; or
  2. Directions; or
  3. Set ground rules for questioning witnesses
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14
Q

PREP for trial Hearings

If D present, court must:

A
  1. Satisfy D understands credit received for guilty plea
  2. Takes plea from D; and
  3. Unless D pleads guilty, satisfy D understand at trial:
    1. His right to give evidence after pros
    2. If he doesn’t attend, trial takes place in absence and
    3. If release on bail, failure to attend court may lead to arrest + punishment + bail may be withdrawn.

Court MUST obtain from D:

  1. Name
  2. DOB
  3. Nationality

These hearings = take place in public.

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15
Q

When MAY a pre-trial ruling take place?

A

Where D tried summarily + pleaded not guilty, a pre-trial hearing may take place.

Court MAY if in interests of justice make ruling on evidence admissibility + other question of law. Court MUST give parties an opp to be heard + in interests of justice to make ruling. If D = unrepresented, he must be given opp to apply for legal aid.

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16
Q

Pre-trial rulings

Is this ruling binding?

How can it be varied/discharged?

A

Any ruling = binding, inc Mags who try case. An app can be made for pre-trial ruling = varied/discharged. Such app may be made if:

  1. material change of circumstances since original ruling made.
  2. Court gave parties opp to be heard.

Must be “compelling reason”.

Power to make rulings @ pre-trial hearings applies to summary cases where D enters not guilty plea.

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17
Q

Case management

Where D pleads not guilty, parties MUST identify issues + tell court. If they don’t, court MUST

A

require them to do so. The ‘live’ evidence at trial should be confined to those issues. Court’s directions MUST include timetable for process + parties required to warn court promptly” if problems anticipated.

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18
Q

Plea before venue

Advantages summary trial:

A
  • Limited Mags powers (6 months imprisonment, aggregate 12 months)
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19
Q

Plea before venue

Advantages trial on indict

A
  • Submissions on admissibility can be made in absence of jury. But bench of mags may give pre-trial ruling on admissibility evidence + binds the bench.
  • Def entitled to receive copies of written statement of witnesses called by pros when case = CC. But good practice means pros provides to def all evidence it proposes to rely in summary trial = D in Mags should be in same position as CC in regards obtaining copies of pros W/S
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20
Q

ARRAIGNMENT + PLEAS

Ambiguous pleas =

A

If D enters guilty plea, but if at time or subsequently, he qualifies it with words suggesting he has a defence, court MUST NOT proceed to sentence, but:

  1. Explain relevant law; and
  2. Ascertain if he genuinely intends to plead guilty
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21
Q

ARRAIGNMENT + PLEAS

If plea cant be clarified, court MUST

+ FAILURE?

A

If plea cant be clarified, court MUST order not guilty plea to be entered on D’s behalf.

FAILURE = grounds for appeal as defect renders proceedings a mistrial, CA can set aside conviction + sentence and order retrial or quash conviction. If CA set aside, court may direct not guilty plea entered and order D be re-arraigned.

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22
Q

When MUST there be a PBV?:

A

Whenever person is:

  1. 18;
  2. Appears before Mags
  3. Charged with EW offence

There MUST be a PBV.

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23
Q

ALLOCATION – EW OFFENCE

Where A charged EW offence:

A
  1. “plea before venue” – ascertains intended plea
  2. Determine if tried in Mags or CC
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24
Q

ALLOCATION – EW OFFENCE

pbv PROCEDURE

A
  1. Charge written down + read to D;
  2. Court explains if D indicates guilty, D may be sent to CC
  3. Court asks for indication
  4. D indicates guilty = held guilty at summary trial, court moves to sentencing
  5. D indicates not guilty, an “allocation” hearing must take place.
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25
Q

ALLOCATION

Where D indicates not guilty to EW offence – court MUST proceed to determine allocation. STEPS:

A
  1. Pros + def make reps whether offence suitable for summary/indictment. Pros given opp of informing Mags of previous convictions.
  2. Court considers allocation, considering:
    1. Power to impose for offence would be adequate
    2. Any representations; and
    3. Allocation guidelines issued
  3. If summary trial appropriate – court explains to D:
    1. D can consent to be tried summarily or elect to be tried on indictment in CC; and
    2. If D tried summarily + convicted = Mags may commit D to CC for sentence if opinion greater punishment should be inflicted than they have power.
  4. D may request Mags indicate if D tried summarily + plead guilty, the sentence would be custodial/non-custodial
    1. Mags not obliged to give such indication
    2. If court gives indication, it MUST ask D whether he wishes to reconsider indication of plea
    3. If D wants to, court MUST ask for fresh indication of intended plea, so PBV repeated
  5. If D indicated intention to plead guilty after indication of sentence = this is regarded as guilty plea and Mags will sentence, can adjourn for pre-sentence report. Custodial sentence only allowed if court indicated it. When indication given, + D doesn’t plead guilty, the sentence indication Is not binding later.
  6. If court doesn’t give indication -) D asked if consent to summary.
  7. Depending on choice, court proceeds summary or send CC
  8. If Mags thinks indictable more appropriate, it tells D and sends to CC.

Summary of EW only possible if both agree.

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26
Q

Presence of D.

PBV = PBV may take place absence of D if:

A
  1. D represented by legal rep; and
  2. Court considers due to D’s disorderly conduct it is not practicable; and
  3. Court considers it should proceed in absence of D

Then rep asked to indicate plea. If indication = guilty, court proceeds as it pleaded guilty.

27
Q

Presence of D.

Allocation = May take place absence of D if:

A
  1. Court considers due to D’s disorderly conduct, it is not practicable.
  2. May determine allocation where legal representative present + signals D consents to allocation hearing before conducted, + good reason for proceedings to be conducted.

Court MAY use live tv link.

28
Q

Presence of D.

Reasons for committal = LEGITIMATE EXPECTATION =

A

LEGITIMATE EXPECTATION = Where led to believe Mags will pass sentence, sending to CC = decision will be quashed.

29
Q

CONDUCT

Binding effect of Indication of sentence = Where court gives indication of sentence + D indicated guilty plea, no court may -)

A

cus sentence unless sentence indicated.

30
Q

CONDUCT

Indication not guilty:

Mags decision – If D = not guilty, court MUST offer D

A

opp to consent to summary.

31
Q

CONDUCT

QUESTION: whether Mags sentencing powers = “adequate”. D charged more 1 offence = Mags MUST :

A

look @ totality of allegations, not in isolation. Max penalty = 6 months imprison, aggregate 12/unlim fine.

32
Q

Allocation guidelines – EW should be summary unless:

A
  1. Sentence would exceed Mags power
  2. Case is legally/procedurally/factually complex

Court MAY retain juris even where powers are inadequate. Mays don’t have to have new info to commit to CC. But should obtain pre-sentence report before deciding to commit to CC for sent.

33
Q

ALLOCATION OF CO-ACCUSED = charged jointly, if one sent to CC, all must:

A

be sent even if norm = sum trial.

34
Q

Pros influence on allocation = summary may be voted by:

A

court or D, NOT pros.

35
Q

Pros influence on allocation = summary may be voted by court or D, NOT pros. BUT, Pros May make reps. But where:

x

Pros can serve notice that Mags is required to send case to CC instead of conducting PBV.

A
  1. Case involves fraud; or
  2. D charged with offence involving assault + child is witness, to avoid prejudice,
36
Q

CRIMINAL DAMAGE CHARGES

If D charged with

X

consideration of value of offence MUST be before

Y

A

If D charged with “Scheduled Offence”, consideration of value of offence MUST be before allocation procedure.

37
Q

CRIMINAL DAMAGE CHARGES

Schedule offences involve:

A
  1. Offences damaging/destroying property
  2. Aiding, abetting, counselling or procuring offences, attempting/encouraging
38
Q

CRIMINAL DAMAGE CHARGES

NOT schedule offences:

A
  1. Those committed by damaging or destroying property by fire; and
  2. Those committed with intent to endanger life or reckless
39
Q

CRIMINAL DAMAGE CHARGES

VALUE involved =

A

“relevant sum” = £5,000.

If value doesn’t exceed relevant sum = MUST proceed as if offence triable only summarily.

If Exceeds = MUST determine allocation normally

Unclear = MUST explain to D he may consent to summary trial + if given, summary trial will occur.

Where D at PBC indicates guilty, court MUST consider if value exceeds £5,000. Where value is below £5,000 or unclear, there is NO POWER to commit to CC unless there is another offence.

40
Q

CRIMINAL DAMAGE CHARGES

What happens if it exceeds the relevant sun?

Or

If it is unclear

A

If Exceeds = MUST determine allocation normally

Unclear = MUST explain to D he may consent to summary trial + if given, summary trial will occur.

Where D at PBC indicates guilty, court MUST consider if value exceeds £5,000. Where value is below £5,000 or unclear, there is NO POWER to commit to CC unless there is another offence.

41
Q

Two or more crim damage = IF:

X

Relevant consideration is the aggregate value involved.

A
  1. D charged on same occasion
  2. With 2 or more schedule offences; and
  3. Appears they constitute or form part of serious of same or similar character

Relevant consideration is the aggregate value involved.

E.G D retains right to trial on indictment if value exceeds relevant sum (£5,000), even if individual value less. “charged on one occasion” 2 or more schedule offences = charged at police station or appear before mags.

42
Q

CRIMINAL DAMAGE CHARGES

What is crim damage peanlty??

A

Where crim damage following guilty plea + conviction following sum offence for crim damage, + value NOT exceed £5,000, max penalty = 3 months imprisonment/ fine of £2,500.

Where D tried summarily where value exceeds relevant sum, but sum trial offered, penalty (6 months imprisonment/fine), and can send to CC!

43
Q

CRIMINAL DAMAGE CHARGES

Determining value =

A

Court MUST observe representations of parties. DOESN’T entrail obligation to hear evidence. If UNSURE = D can elect trial on indictment.

44
Q

LOW VALUE SHOPLIFTING

What court tries it?

A

Low value shoplifting = shoplifting NOT exceeding £200 = triable only summarily. BUT – where D 18, court MUST give D opp of electing CC trial. If he elects, he MUST be sent to CC. Unlike crim damage, in low-value shoplifting, D remains right to elect CC trial

45
Q

SENDING TO CC

First appearance =

A

Mags

46
Q

SENDING TO CC

Triable only in CC offence = MUST be sent

A

CC

If triable EW, D sent to CC only if D indicates not guilty @ PBV hearing + allocation hearing favours CC.

47
Q

SENDING TO CC

Court of first appearance:

A

Whether EW or indictment offence = D’s first appearance = Mags.

48
Q

Committal under s3 PCC(S)(A) 2000 –

TEST

A

Where Mags convicted** D for **EW offence + due to seriousness of offence, Mags sentencing powers are inadequate. The Mags MAY commit D to CC for sentence. CC can pass sentence as if convicted on indictment, so limitation on Mags powers don’t apply.

49
Q

Committal under s4(PCC(S)A) 2000 =

TEST

A

D sent for trial, where D indicated guilty plea to EW offence + sent for trial for one or more related offences, the Mags MAY commit D to CC for sentence of EW offence he has pleaded guilty.

Offence is related = if charges could be joined in same indictment if both charges tried in CC. The 2 charges MUST be found on same facts OR be MUST be series of offences of same/similar character. Where Mags commit D to sentence, the CC can exceed Mags power if:

  1. Mags stated their power is inadequate; or
  2. D convicted by CC

D4 is for either way offences sent for TRIAL. IT IS FOR TRIAL. S6 is for sentencing. This is only for RELATED offences. S6 is for UNRELATED offences.

50
Q

Committal under s6 PCC(S)(A) 2000 =

test

A

Power to commit for sentence for related or unrelated, EW or summary offences for SENTENCE not for trial. Under s6, Mags may commit D to CC summary offences which could not otherwise be committed for sentence. E.G. the CC sentences for everything. S6 is for convenience.

S3 = primary power of committal from Mags to CC

S4 = can send related matters from Mags to CC

S6 = can send unrelated matters from Mags to CC

51
Q

SENDING CASES TO CC UNDER S51 CDO

Where D @ Mags, court MUST sent D to CC if:

A
  1. Offence triable on indictment
  2. Offence EW offence + allocation hearing = decision trial on indictment (mags rejected jurisdiction or D elected CC).
  3. Where notice has been given in serious fraud cases or child witness cases.
52
Q

SENDING CASES TO CC UNDER S51 CDO

Sending either-way offence: Mags will send where:

A
  1. Allocation hearing = D not consented to summary trial
  2. Allocation hearing = Mags decided trial on indictment more suitable
  3. Allocation hearing = Mags thinks sum trial suitable, D consented to sum, BUT pros makes successful app that offence be tried instead in CC. Can only grant app if mag satisfied their powers inadequate.
53
Q

Related EW + Summary offences

When sent for trial, MUST send D to CC for

A

any EW/sum offence D charged + is related to offence being sent to CC (provided its punishable with imprisonment).

EW office is related to indictable offence IF “could be joined on same indictment”.

54
Q

Related EW + Summary offences

Summ offence is related to indictable if

A

arises of circumstances that are “same as or connected”” indict.

TEST: narrower for sum than EW.

55
Q

Related EW + Summary offences

If D charged with indictable only offence, D sent to CC as EW offence sent for trial automatically alongside indictable only. If A already sent -) CC for trial + then:

A

appears before Mags charged related EW/sum offence, court MAY send D to CC. DISCRETIONARY = PBV + allocation hearing for EW offence.

56
Q

CO-ACCUSED

ADULTS

WHERE DO THEY APPEAR?

A

ADULTS = Appears together + charged jointly with related EW offence,

Mags MUST send = CC for EW offence.

If 2Ds appear later, jointly charged EW offence related to first offence, Mags MAY send D2 for trial on EW. Where they send D2, MUST send any related EW/sum offence he charged. Summ offence MUST be punishable with imprisonment/ or disqualification from driving.

D1 elects CC, Mags MUST send D2 (same/related offence).

57
Q

In UNDER 18S, where must the court send the Adult and juvilnell where:

Jointly charged

+

indictable offence

A

UNDER 18 – Where court sends A to CC + juvenile jointly charged with indictable offence, court shall if “in interests of justice” send juvenile = CC. Where it does so, it MAY send D to CC for any related indictable/sum offence

58
Q

If D doesn’t appear before Mags, Mags MAY issue arrest warrant where:

A
  1. D fails answer summons/requisition; or
  2. Fails to answer bail, whether granted by police/mags.
59
Q

Summary offences MAY be included on indictment where s40 CJA:

A
  1. D sent for trial for indictable offence; and
  2. Summary offence:
    1. Founded on same facts/evidence as count charging indictable offence; or
    2. Is part of a series of offences of same or similar chara as indict
  3. Facts/evidence of sum offence disclosed

Where count for sum offence included in indictment = tried as if indictable offence, but if convicted, max penalty = max imposed by Mags.

60
Q

Relevant sum offence =

A
  1. Common assault
    1. Includes battery, but common assault is NOT a lesser alternative to assault;
  2. Taking motor vehicle without consent;
  3. Criminal damage where not more than £5,000

Crim damage is not a sum offence, even when value is below £5,001. Only where doesn’t exceed £5,000 court proceeds as if offence were summary.

61
Q

SUMM OFFENCES IN CC

Specified summary offence =

A
  1. Common assault
  2. Driving while disqualified
  3. Taking motor vehicle without consent
  4. Criminal damage not exceeding £5,000
62
Q

SUMM OFFENCES IN CC

Where specified sum offence disclosed on basis D sent for trial on indictable offence + sum offence founded on same facts as indict or same or similar character, pros MAY include court for sum offence on indictment + if pleads not guilty, charge will be

A

Crown Court

63
Q

SUMM OFFENCES IN CC

Where D sent CC on indictable only/EW offence, MUST send

A

D to CC for sum offence related, provided sum offence = punishable with imprisonment or involves disqualification from driving.

64
Q

SUMM OFFENCES IN CC

If D convicted on indictment, CC MUST, send

A

for trial, ask D enter plea to sum offence. If guilty = CC MAY deal with D in way Mags could have. If not guilty, powers of CC cease in respect of sum offence.

Criminal lit (28 decks)

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