6. Plea before vanue and Allocation between MC and CC

Question 1

Complex Fraud Criteria

Answer 1

At least two of the following are present:
- The amount is alleged to exceed £500,000
- There is a significant international dimension
- The case requires specialised knowledge of financial, commercial, fiscal or regulator matters such as the operation of market, banking systems, trusts or tac regimes
- There are numerous victims
- There is substantial and significant fraud on a public body
- The case is likely to be of widespread public concern or the alleged misconduct endangered the economic well-being of the United Kingdom, for example by undermining confidence in financial markets.

Question 2

When might an either-way offence go straight to the crown court?

Answer 2

1. serious or complex fraud cases where notice has been given by DPP
2. Notice in certain cases involving children

Question 3

When does the prosecution have to provide IDPC?

Answer 3

As soon as possible
- A defendant is entitled to receive IDPC (CrimPR, r 8.2) for all offences (ie summary only, either way and offences triable only on indictment)
- Solicitor will contact CPS prior to the first hearing to get information via a common platform

Question 4

What happens if CPS wants to ‘introduce’ information in a document the defence is entitled to, but has not been shown

Answer 4

the court must not allow the prosecutor to introduce the information unless the court allows the defendant sufficient time to consider it

Question 5

What is included in the IDPC?

Answer 5

1. where the defendant was in police custody for the offence charged immediately before the first hearing in the magistrates’ court:
   
   1. a summary of the circumstances of the offence; and
   2. the defendant’s criminal record, if any; or
2. in all other cases:
   
   1. a summary of the circumstances of the offence;
   2. any account given by the defendant in interview, whether contained in that summary or in another document;
   3. any written witness statement or exhibit that the prosecutor has available and considers material to plea, or to the allocation of the case for trial or to sentence;
   4. the defendant’s criminal record, if any; and
   5. if available, a victim impact statement.
3. If D released on bail prior to this hearing / CPS do not anticipate a guilty plea
   - should also include any information as to special measures, bad character or hearsay, where applicable
   - an indication of any medical or other expert evidence that the prosecution is likely to adduce in relation to a victim or the defendant
   - statements and exhibits that the prosecution has identified as being of importance for the
   purpose of plea or initial case management, including any relevant CCTV that would be
   relied upon at trial and any Streamlined Forensic Report;

Question 6

Factors in favour of electing for trial in the CC

Answer 6

1. greater chance of acquittal
2. better procedure for challenging admissibility of prosecution evidence
3. more time to prepare for trial

Question 7

Factors in favour of a trial in the MC

Answer 7

1. limited sentencing powers
2. faster and less stressful
3. higher prosecution costs if convicted
4. defence costs (wrt representation order)
5. no obligation to serve defence statement

Question 8

Costs implications if a suspect is convicted

Answer 8

The defendant may be ordered to make a contribution to the costs incurred by the CPS in bringing the case against them (these will probably be higher in the Crown Court)

Question 9

Professional Conduct: A client tells their solicitor they are guilty but that they intend to plead not guilty, what can the solicitor do?

Answer 9

S will need to advise client of benefits of entering a guilty plea and the limitations on the solicitor’s ability to continue representing their client if they plea not guilty
- at trial, S can cross-examine prosecution witnesses and put prosecution to proof of their case (if it does not mislead the court)
- Similarly, the solicitor would be able to make a submission of no case to answer at the end of the prosecution case and to ask the magistrates to dismiss the case, as again this would not involve misleading the court. Such a submission could be made if the prosecution failed to discharge their evidential burden to show that the defendant had a case to answer
- but S would not be able to continue acting if the submission was unsuccessful and D intends to give false evidence in the witness box
- S would need to withdraw from the case without telling the court why

Question 10

Is a defendant charged with an either-way offence under an obligation to indicate their plea at their pre-trial hearing in the magistrates?

Answer 10

No - but there may be implications if they intend to plead guilty, as earlier indication means a greater reduction in sentence

Question 11

Defendant charged with an either-way offence indicates a guilty plea at the pre-trial hearing before the MC: what happens next

Answer 11

• If the defendant indicates a guilty plea, the MC have to decide whether to sentence there or in CC
• The CPS representative will then outline the facts of the case to the magistrates and tell them about any previous convictions the defendant may have. The defendant’s solicitor will then give a plea in mitigation on the defendant’s behalf.
• At this point the magistrates will need to decide if their sentencing powers are sufficient to deal with the case, or if the defendant should be sentenced by a Crown Court judge who has greater sentencing powers.
• MC may pass to CC or retain but adjourn to get a pre-sentence report (either way, must decide where to remand D)

Question 12

Defendant charged with an either-way offence indicates a not guilty plea at the pre-trial hearing before the MC: when will the defendant be automatically sent to the CC for trial?

Answer 12

1. the defendant is being sent to the Crown Court for trial for a related offence;
2. the defendant is charged jointly with another adult defendant who is sent to the Crown Court for trial for a related offence;
3. the defendant is charged jointly, or charged with a related either-way offence, with a youth defendant who is sent to the Crown Court for trial.

Question 13

Defendant charged with an either-way offence indicates a not guilty plea at the pre-trial hearing before the MC: next steps

Answer 13

1. Decide whether the Defendant must automatically be sent to the CC
2. If not, MC must determine whether offence is suitable to summary trial or a trial on indictment (allocation decision)

Question 14

Is the allocation procedure done with any input from either of the parties?

Answer 14

Yes - CPS can inform court of facts of defendants previous convictions

Question 15

When can a defendant request an indication of sentence?

Answer 15

During the allocation stage, the defendant can ask if they are likely to get a custodial or non-custodial sentence if tried summarily and pleading guilty

Question 16

If a defendant requests an indication of their sentence - is the MC court bound by the indication that they give (if the case is retained by them) ***

Answer 16

1. If defendant changes their plea to guilty after the indication, they will ‘generally’ not be able to impose a custodial sentence unless one was indicated
2. if a defendant maintains their plea of not-guilty, this indication is not binding on any court

Question 17

Can the prosecution ever control the destination of an either-way offence?

Answer 17

Yes, the prosecution (not defence) can make an application before a summary trial begins to send an either-way offence allocated for summary trial to the Crown Court
- this will be granted if the court is satisfied the sentence they could impose would be inadequate

Question 18

If the magistrates elect that an either-way offence should be heard by way of a summary trial, does the defendant have any say?

Answer 18

Yes, the defendant must consent to the summary trial. If they do not, they will be sent to the Crown Court for trial.

Question 19

If a defendant is charged with multiple offences, will the pleas be dealt with in the same hearing?

Answer 19

Yes

Question 20

Defendant with multiple offences in the MC: defendant pleads not guilty for one offence and guilty for another

Answer 20

1. MC proceed with allocation for not guilty plea
2. If they accept jurisdiction for the not guilty plea, MC will either sentence D immediately for guilty offence or adjourn sentence until the end of the trial for the not guilty plea
3. If MC decline jurisdiction (or D elects for CC), MC will send offence to which defendant has entered as not guilty to CC for trial, but have a choice of either to sentence for the guilty plea or commit the defendant to the CC for sentencing for this as well

Question 21

Does the allocation procedure always apply to either-way offences? Explain

Answer 21

In certain circumstances, either- way offences will be sent straight to the Crown Court
1. Where notice, in serious or complex fraud cases, has been given by the DPP under s 51B of the 1998 Act.
2. Where a notice, in certain cases involving children, has been served under s 51C of the CDA 1998.
3. Where there is an either- way offence related to an offence triable only on indictment, or one covered by a notice under s 51B or s 51C of the CDA 1998, in respect of which the same defendant is being sent to the Crown Court.
4. Where there is an either- way offence related to an offence triable only on indictment, or one covered by a notice under s 51B or s 51C of the CDA 1998, in respect of which another defendant is being sent to the Crown Court (s 50A(3)(a)).

Question 22

the court is dealing with two or more defendants charged with the same offence, if one of the defendants elects trial in the Crown Court - where will the other one go?

Answer 22

The other will be sent to the Crown Court with them - regardless of their preference for venue

Question 23

Two defendants charged with the same offence - when will the trial take place in the MC?

Answer 23

If MC retain jurisdiction AND both consent to a summary trial

Question 24

Defendant charged with multiple offences : one either-way and one indictable only, where will the defendant go?

Answer 24

The defendant will be sent to the Crown Court for BOTH if they are both alleged to have occurred over a similar time period + in relation to the same victim
- no allocation procedure for the either-way