5) 1st hearings before the magistrates' court

Question 1

General rule

Answer 1

All defendants no matter the charge who are 18+ will make their first court appearance before the magistrates’ court.

Question 2

Classification of offences - Triable only on indictment

Answer 2

Most serious offences. Only dealt with in the CROWN COURT. Despite their first hearing being in the magistrates the court will send it immediately to the crown court. E.g:
- Murder
- Manslaughter
- Causing GBH/wounding with intent
- Rape
- Robbery
- Aggravated burglary
- Blackmail
- Kidnap
- Conspiracy

Question 3

Classification of offences - Either-way offences

Answer 3

Could be tried in either the magistrates or the crown court. They will make their first appearance before the magistrates and if the defendant indicates a not guilty plea the magistrates will then decide whether to keep the case before them or send the case to the crown court for trial if it is too serious for them to deal with. If the magistrates do decide to keep the case before them the defendant then has the right to elect trial by judge and jury in the crown court or consent to summary trial.

Question 4

Classification of offences - Summary offence

Answer 4

Least serious. Only deal with in the magistrates’ court.

Question 5

Legal Aid

Answer 5

A defendant must satisfy 2 tests:
1) Interests of justice test - the defendant must show that it is in the interests of justice that they receive public fundings to cover the cost of their legal representation
2) The means test - the defendant must demonstrate that their finances are such that they are unable to pay for the cost of their legal representation

Question 6

Legal Aid - Interests of justice test - Factors to be taken into account

Answer 6

1) Whether the individual would be likely to lose their liberty or livelihood or suffer serious damage to their reputation if they are found guilty
2) Whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law
3) Whether the individual may be unable to understand the proceedings or to state their own case
4) Whether the proceedings may involve the tracing, interviewing or expert cross examination of witnesses on behalf of the individual
5) Whether it is in the interests of another person that the individual be represented

Question 7

Legal Aid - Interests of justice test - Factors to be taken into account - Lose liberty

Answer 7

Relevant if they are likely to receive a custodial sentence. The solicitor will effectively be presenting the prosecution case against their client ‘taken at its most serious’ in order to justify why their
client should receive public funding for their case. Make reference to aggravating factors and previous convictions. Also relevant if they will be refused bail

Question 8

Legal Aid - Interests of justice test - Factors to be taken into account - Lose livelihood

Answer 8

If the defendant intends to plead not guilty and is in employment and a conviction is likely to lead to the loss of that employment. Will also be relevant for other defendants who are not likely to receive a prison sentence but have particular types of job which may be lost in the event of conviction. For example, the defendant may be a bus driver charged with a road traffic offence which will result in their disqualification from driving if they are convicted.

Question 9

Legal Aid - Interests of justice test - Factors to be taken into account - Serious damage to reputation

Answer 9

Only if they’re pleading not guilty. Will occur when the disgrace of a conviction is more than the direct effect of the sentence received and will result in the defendant losing their reputation for honesty or trustworthiness. This will only apply to defendants who either have no previous convictions
or convictions for very minor offences. Will be relevant if they have a position of standing or respect in the community

Question 10

Legal Aid - Interests of justice test - Factors to be taken into account - Substantial question of law involved

Answer 10

Only if they’re pleading not guilty. This is relevant where either the prosecution evidence is in dispute, or the defendant wishes to adduce evidence which the CPS may argue is inadmissible.

Question 11

Legal Aid - Interests of justice test - Factors to be taken into account - Can’t understand the court proceedings or present case

Answer 11

Pleading guilty or not guilty. Reasons:
1) Mental or physical disability
2) Poor knowledge of English
3) Age
4) Vulnerability

Question 12

Legal Aid - Interests of justice test - Factors to be taken into account - Witnesses may need to be traced or interviewed

Answer 12

This will be relevant where a defendant wishes to call a witness in support of their case, such as a witness. Such witnesses will need to be traced and a statement taken from them. This may also be important if the defendant needs to call expert evidence

Question 13

Legal Aid - Interests of justice test - Factors to be taken into account - Cross-examination of a prosecution witness

Answer 13

This will be relevant if a witness needs to be cross-examined to determine a question of law or to decide on the admissibility of a particular piece of evidence, or if the evidence given by
the witness is complex or technical. Or if prosecution are calling an expert and their evidence is disputed

Question 14

Legal Aid - Interests of justice test - Factors to be taken into account - It is in someone else’s interests that I am represented

Answer 14

This factor will apply when it would be inappropriate for a defendant to represent themself
because they would then need to cross-examine prosecution witnesses in person.

Question 15

Legal Aid - Interests of justice test - Factors to be taken into account - Any other reasons

Answer 15

If the defendant intends to enter a not guilty plea

Question 16

Legal Aid - The means test - Defendants who will automatically satisfy the means test

Answer 16

1) Those who receive income support, income based jobseeker’s allowance, guaranteed state pension credit, income based employment and support allowance or universal credit
2) Under 18

Question 17

Legal Aid - The means test - Those who do not automatically qualify

Answer 17

The means test considers the applicant’s income and expenses but not the applicant’s capital. Purpose is to calculate the applicant’s disposable income. This is done by deducting the following from the applicant’s gross annual income:
1) Tax and national insurance
2) Annual housing costs
3) Annual childcare costs
4) Annual maintenance to former partners and any children
5) An adjusted annual living allowance

Question 18

If legal aid is refused on the basis of the means test

Answer 18

They do not have the right to appeal against a refusal. If, however, an applicant does not satisfy the means test but can demonstrate that they genuinely cannot fund their own defence, the applicant may ask that their entitlement to criminal legal aid be reviewed on the grounds of hardship

Question 19

If legal aid is refused on the basis of the interests of justice test

Answer 19

May appeal against this decision either by adding further details to their original Form CRM14 and
resubmitting this, or by requesting an appeal.

Question 20

Qualifying for legal aid in the magistrates

Answer 20

They will not be required to contribute to their defence costs

Question 21

Qualifying for legal aid in Crown Court

Answer 21

Legal aid may also be available but subject to the defendant paying a contribution towards their legal aid costs

Question 22

Procedural overview - What will happen at the first hearing? - Summary offences - Pleading guilty or not guilty

Answer 22

Usually required to enter a plea.

Question 23

Procedural overview - What will happen at the first hearing? - Summary offences - Pleading guilty

Answer 23

Prosecution will tell magistrates the facts of the case and if relevant hand in the defendant’s record of previous convictions. Defence solicitor will then give a plea in mitigation. Magistrates will either sentence the defendant straight away or adjourn the case if they want a pre-sentence report. They will need to decide bail if they are adjourning

Question 24

Procedural overview - What will happen at the first hearing? - Summary offences - Pleading guilty but disputes specific allegations

Answer 24

Magistrates will need to adjourn the case to hold a Newton Hearing which will be necessary to determine the factual basis upon which the defendant will be sentenced. Court will need to determine bail.

Question 25

Procedural overview - What will happen at the first hearing? - Summary offences - Pleading not guilty

Answer 25

The court will then fix a date for the defendant’s trial to take place and issue case management directions. Will need to decide bail

Question 26

Procedural overview - What will happen at the first hearing? - Either-way offences - Guilty plea

Answer 26

Magistrates will need to decide whether they should sentence the defendant or if the crown court should. Case may then be adjourned either for magistrates to obtain a pre-sentence report or for the sentencing hearing at the crown court to take place. Need to decide bail if adjourned

Question 27

Procedural overview - What will happen at the first hearing? - Either-way offences - Not guilty plea

Answer 27

Magistrates must determine whether the defendant is to be tried in magistrates or in crown court - plea before venue and allocation procedure. If the case is adjourned magistrates will need to determine whether the defendant should be released on bail or remanded in custody prior to the next hearing

Question 28

Procedural overview - What will happen at the first hearing? - Offences triable only on indictment

Answer 28

Sent straight to the crown court for either trial or sentence following a preliminary hearing in the magistrates’ court. Need to decide bail