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
