4) Procedure in Mags Flashcards
When must P give initial details of case?
- 3 points
To court - As soon as Practicable
To D - If requested ASAP
In any event - at or b4 beginning of the day of 1st hearing
What does ‘Initial details’ of P’s case contain?
- In custody and not in custody - 7 points total
What must this info enable?
- 4 points
If accused in police custody:
- A summary of the circumstances of the offence
- The accused’s criminal record
If not in custody:
- Summary of circs of the offence
- Any account given by accused in interview
- Any written witness statements
* Which P. think relevant to: - Plea
- Where the case should be tried (CC or Mags)
- The accused crim record
- And statement of the effect of offence on V. or their family
Info should enable
- Sufficient to allow court and D. to take an informed view on:
- Plea; and
- Venue for trial
- If D. on bail and P. does not anticipate GP, sufficient to:
- Allow court to identify real issues; and
- Give appropriate directions for effective trial
Livelink
When can livelink be used?
Can D be sentenced over livelink?
Can be used;
- For prelim hearing
- Accused need to be able to see and hear, & be seen and heard by, the court
- Unsecure link (Skype etc.) can be used if hearing public
Can D be sentenced by livelink?
- Yes when:
- Accused attends prelim hearing over live link
- Accused pleads guilty; and
- Court proposes to sentence immediately
What are the TL’s for pretrial hearing when:
- D in custody
- D on bail?
- 2 points each
D. in custody
If indictable - Mags proceed at once with allocation
If summary - Mags should give directions forthwith
D. on bail
Anticipated G P - Listed for 1st heading 14 days after charge
Anticipated NG P - Listed 1st hearing 28 days after charge
s.50 hearings
What is a s.50 CDA hearing?
What can be the consequences for D?
When does it apply?
Who can carry it out?
S.50 hearing = asking if D. would like legal aid,
Applies - If D charged at police station
Consequences
- Hearing may be adorned to provide legal aid
- Justice may remand D. in custody or on bail whilst this is achieved
Who can carry them out?
- Can be by single justice
- Can be by justices clerk:
- Cannot remand in custody
- Cannot impose new bail conditions (unless both P & D. consent)
1) When must Mags conduct ‘prep for trial hearing’
2) When may court conduct further pre-trial case management hearing?
3) If D is present at hearing, what must court do?
1) Mags must conduct a ‘preparation for trial hearing’ unless:
- Sending to CC
- D enters a written guilty plea; or
- S.50 single justice procedure applies
2) Court may conduct further pre-trial case management hearing if:
- The court anticipates a guilty plea; or
- It is necessary in order to give directions for an effective trial; or
- Required to set ground rules for conduct of questions witnesses/ defendant
3) If D. is present, court must:
- Satisfy itself that D. understand credit with be received for GP
- Take a plea from D
- If no plea given, try and find out what is most likely
- Unless D. pleads guilty, satisfy itself that:
- They are aware they will have right to give evidence after P’s case
- If they do not attend trial, trial will continue in their absence
- If release on bail, fail to attend with lead to arrest and punishment
Pre-trial rulings s.8
1) What can be decided at s.8 hearing?
2) When can a decision be made?
3) How of s.8 hearing commenced?
4) Can a s.8 be varied?
5) Can a s.8 hearing be appealed?
1) What can be decided at s.8 hearing?
- Admissibility of evidence
- Q of law
2) When can a decision be made?
- Can only be made if:
- both parties have had an opportunity to be heard; and
- Is in the interest of justice
3) How is s.8 ruling commenced?
- Rulings may be made on application of P. or D. or on court initiative
4) Can a s.8 be varied?
- Court can discharge or vary ruling if in the interest of justice to do so (given both parties have an opportunity to be heard)
- Not enough that a different bench reaches a different conclusion on same facts
- Need change of circumstances
- Or different circumstances are brought to the attention of the court
5) Can a s.8 hearing be appealed?
- No provision for appeal against ruling under s.8
- Could form the basis of an appeal after trial concluded.
What 3 things should be carried out regarding case management?
Parties must identify ‘disputed issues’ (if NG P)
- If parties don’t, court must require them to
- The ‘live’ evidence should be confined to those issues
Timetable
- Courts directions must include a timetable
- Must be made when trial is fixed (unless short trial)
- Parties must warn the court if any problem are anticipated
Witnesses
- Court should scrutinise why a witness is necessary
- Especially so if a trial is going to become longer than a day.
What happens if D enters an ambiguous plea (Guilty, but an accident)?
- 3 points
- Court should clarify law, possible explain possible defense
- If plea cannot be clarified, not guilty plea should be entered
- If court sentences on ambiguous plea, good grounds for appeal
How do Mags and CC sentencing powers differ?
Mags sentencing power is limited (6 months & 12 aggregate)
- But mags can commit to CC for sentence
How do submissions differ between CC and Mags?
Submissions can be made in absence of jury on CC (i.e. admissibility of evidence)
- But different bench can hear pre-trial issue in Mags
How does disclosure of written WS’s differ between Mags and CC?
In a trail on indictment, D entitled to receive copies of the written statements of witnesses to be called
- But will generally, P always disclose all evidence they are going to rely on in summary trial
Defense statements
1) How do the provisions vary between Mags and CC?
2) What happens is D statement not served?
3) TL for DS in Mags?
4) What needs to be in a D statement?
1) How do the provisions vary between Mags and CC?
- In CC must be served after P serves their case
- In Mags not required, but D is required to ID real issues in case
2) What happens is D statement not served?
In CC, they must be served
In Mags - No DS means:
- Cannot make application for specific disclosure under s,8
- Court cannot make order for disclosure of unused material
3) TL for DS in Mags?
- 14 days, court can extend on application
4) What needs to be in a D statement?
- The nature of D’s defence
- The matter of fact D takes issue with
- Matter of fact which D intends to rely
- Any point of law D wishes to take
What must mags do to support their judgment?
- If mags convict, they need to give reasons
- Should be ‘sufficient to explain its decision’
- Not required to:
- State reasons in form of a judgment
- Give reasons in any elaborate form
What are the stages of determination of mode of trial?
1st stage - ‘Plea before venue’, D give intended plea
2nd stage - ‘Allocation’, Determine where case will be tried
What happens at PB4V stage?
- Three stages
1) Charge written down and read to D
2) Court explains that
- D can give an indication G P, or NG P
- If G P, will be treated as summary trial, but D still can be committed for sentence if Mags think:
- Powers are inadequate
- ‘dangerous offender’ provisions apply
3) Court as D to indicate plea
What happens if D enters GP at PB4V in mags?
Court moves onto sentence as if tried summarily
Can commit for sentence if Mags think:
- Powers are inadequate
- ‘dangerous offender’ provisions apply
What happens if NGP in Mags?
If triable either way - allocation hearing
What are the 5 ‘stages’ of allocation hearing?
- P & D make representations on which mode is most suitable
- Court decides which mode is most suitable
- If court thinks summary more appropriate, explain to D they can elect CC
- D may ask Mags to indicate if sentence would be custodial or not
- Court ask if D. consents to summary trial
What must the mags consider when determining allocation?
- If they have the power to impose adequate sentence
- The representations by P & D
- Including mitigating/ aggravating crics.
- Allocation guidelines issued by Sentencing Council
- If complex (facts, procedure or law) best in CC
- If sentence likely to be substatial fine - CC
- If clearly outside of Mags sentencing powers - CC
- Mics factors - Example was defence of insanity may be better tried in CC
If the Mags think summary trial more appropriate, what must they explain to D?
- 3 points
- The courts’ view, and
- D can either:
- Consent
- Elect to be tried on indictment
- If convicted on summary trial, may be sent to CC from sentence
What happens if D asks for indication of sentence?
- Mags do not need to indicate
- Can only indicate if custodial or not.
- If they do indicate, must ask if D wants to change pleas
- If D. changes plea - will be bound by indication (s.20A(1))
- If D. does not - will not be bound
When will court not be bound by indication of sentence?
- 3 points
- Mags required to commit if D is a dangerous offender
* CC are not bound by Mag’s indication - Where:
- D enters G P to either way-offence; and
- Is also being sent to CC for trial of related offence/s
- CC are freed from restriction for specified offences
* If mags stated that has power to commit under
Does D need to be present for allocation and PB4V?
GR - Yes
Exceptions
PB4V - Absence allowed if:
- If D. is represented; and
- Court thinks by reasons of D’s disorderly conduct, it would not be practicable to have D present; and
- Court think it should proceed in absence of accused
Allocation - 2 exception
1st: If by reason of disorderly conduct, not practicable to have D present
2nd: If D consent to legal rep consenting to mode and has good reason for absence
What happens if D not present for PB4V?
The legal rep will plead on their behalf
- If G P - sentence in absence
How does D’s being jointly charged effect allocation?
they must be tried in the same court
If D’s jointly charged, one chooses Mags and the other chooses CC, where are they tried?
Both in CC
Can P choose mode of trial in allocation hearing?
- 3 points
Generally, can only make representation re. appropriate venue
Can give Mags notice that they are required to send to CC when:
- Case involves fraud of a seriousness enough nature it should be in CC, or
- D is charged with and offence which:
a) Involved and assault/ threat of injury to a person
* or charged with other specific offence; and
b) a child will be called; and
c) For the welfare of the child, should be in CC
What is meant by ‘legitimate expectation of sentence?
- If D has ‘legitimate expectation’ sentencing will remain in Mags, cannot commit to CC
- Arises if D has been led to believe either impliedly/expressly
What are the 3 statutory powers mags have to commit D to CC for sentence?
1) When powers are inadequate
2) When D indicates GP for either way offence and he is being set for trial for ‘related offences’
* What related offences are is in another Q
3) When Mags can commit one offence, they may commit ‘other offences’
* What other offences can be committed is in another Q
Re. committing related offences, what constitutes a ‘related offence’?
When can CC extend sentencing powers of Mags?
‘Related offences’ = able to appear on same indictment, ie.
- Founded on same facts; or
- Be part of a series of offences of same/similar character
CC can only extend sentencing power of mags if:
- Mags stated their power were inadequate; or
- Offender in convicted by CC on a related offence
When offence is committed, what ‘other offences’ can be committed alongside it?
If indictable offence
- Can commit any other offence
If summary offence
- Any offence; or
- Punishable by imprisonment; or
- Mags have power to disqualify for driving (under ss. 34 - 36 RTOA 1998
- Any suspended sentence
Where is the court of first appearance?
All adults first appear at Mags
How does D get sent to CC?
- 2 points
If triable only on indictment, 1st appearance in Mags to send to CC
If triable either way, sent to CC if NG P, and allocation hearing results in a decision to do so
When Mags send to CC, can they also send ‘related matters’?
- 2 main points
For either way offence - Yes if they could be joined on same indictment, this is by being:
- Founded on same facts
- Part of a series of event of same/similar character
N.B. - If related to indictable only offence,
- there will be no question as to mode of trial, will get automatically sent.
For summary offence - Yes if they arises out of circs. which are ‘same as or connected with’ those that give rise to indictable offence.
- This is a higher test
- This is not put on the indictment, just dealt with by CC
- This does not apply to s.40 offence
- Dealt with in another Q
If D already been sent to CC then subsequently appears in front of Mags for related offence, can Mags send that related offence?
Mags may send to CC
If summary offence, can only be sent if punishable by imprisonment/ disqualification from driving
If one accused gets sent to CC, and another adult charged for related offence:
1) Must Mags send another adult charged with related offence to CC if appear at same occasion?
2) Must Mags send another adult charged with related offence to CC if appear at different occasion?
3) what if co-accused under 18?
1) Same occasion
- must send other adult to CC
2) Different occasion
- may send other adult to CC
3) Under 18
- Can send to CC if in the interests of justice to do so
Who can send via s.51?
A single justice can send D to CC
Is the presence of the D needed for sending?
It appears so, Mags can issue an arrest warrent
How can summary offence be sent to CC?
- Just quick Q
Under s.40
If related offence
When can offence be sent under s.40 CDA?
- Three points
1) The offence is:
- Common assault
- Includes battery
- Criminal damage under £5k
- Mags need to go through s.22 procedure to make sure value is
- Driving whilst disqualified
- TWOC
- Assault on prison officer
- Assault on training officer
2) Based on the same fact as indictable offense or forms a series of offences of similar character.
3) Facts or evidence relating to summary offence where disclosed to:
- Mags examination into the offence
- in material served to accused in the process of send indictable-only offence to CC
What is the max sentence CC can pass for offence sent by s.40?
What happens if D found guilty for the indictable offences which lead to the s.40 sending?
CC sentencing powers
- Same as mags.
NG finding on indictable offence
- s.40 sending remains valid.
1) When can summary only offence be sent with indictable as ‘relevant offence’?
- 2 points
2) Procedure once case is in CC
1) When can summary only offence be sent with indictable as ‘relevant offence’?
1. Related to offence(s) which are sent to trials; and
- ie. Arises out of circs. which are ‘same as or connected with’ those that give rise to indictable offence.
2. Punishable:
- with imprisonment: or
- disqualification from driving
2) Procedure once case is in CC
If CC convicts of indictable offence must:Ask D to enter plea
If GP - convict in same way as Mags
If NGP - send back to Mags for trial
Could try the case sitting as a DJ (judges don’t like to do this)
