6) Plea before venue and allocation

Question 1

IDPC

Answer 1

It is vital for the defendant’s solicitor to see all the prosecution evidence as soon as possible after the defendant has been charged, so that they may give timely advice to the defendant on their plea,

Question 2

Advising on plea

Answer 2

The following matters will need to be discussed:
1) The client’s response to the prosecution case
2) The strength of the prosecution case - as part of the duty to act in the best interests of the client, the solicitor should give
the client their view of the strength of the evidence against them. It is also appropriate for the
solicitor to advise the client that, when it comes to sentencing, the client will receive a reduced
sentence for entering an early guilty plea.
3) Whether it is necessary to obtain any further evidence in support of the defendant’s
case.
4) Where the client has been charged with an either-way offence and is pleading not guilty,
if given the choice, whether they should elect to be tried in the magistrates’ court, or
before a judge and jury in the Crown Court

Question 3

Advising on trial venue

Answer 3

Even if the magistrates accept jurisdiction to try the case a defendant facing an either-way offence still has the right to elect trial bu jury.

Question 4

Advising on trial venue - Positives of crown court

Answer 4

1) A trial by your equals
2) Conviction rate is lower - jurors are more sympathetic
3) Better procedure for challenging admissibility of prosecution evidence - when a dispute over the admissibility of a piece of prosecution evidence arises, the jury will be asked to leave the court room and the judge will conduct a mini-trial to decide whether or not the evidence should be admitted (voir dire) Only if the judge decides that the evidence is admissible will the jury ever hear about it. If the judge rules the evidence to be inadmissible, the evidence will not be placed before the jury. in magistrates they decide fact and law so they will need to decide if it is admissible they would then have to set aside their knowledge of the existence if it was inadmissible

Question 5

Advising on trial venue - Negatives of Crown Court

Answer 5

1) Cost
2) Delay
3) Appeals - harder
4) Sentencing

Question 6

Advising on trial venue - Positives of Magistrates

Answer 6

1) Limited sentencing powers - 6 months. However the magistrates retain the power to commit the defendant to the Crown Court for sentence
2) Speed
3) Prosecution costs - if a defendant is convicted in either court they are likely to be ordered to make a contribution towards their costs. These costs are going to be lower in the magistrates
4) Defence costs - if granted legal aid in the magistrates court a defendant is not required to contribute towards his defence costs

Question 7

Professional conduct issues - If a client tells you they will plead not guilty but they are guilty

Answer 7

The solicitor will need to advise the client of the benefits if the client is to enter a guilty plea. They will also need to explain the limitations on the solicitor if they continue representing them due to duty not to mislead the court. If client wanted to give evidence the solicitor would have to withdraw and sate it is for professional reasons

Question 8

Procedure - Either-way offence - Pleads guilty

Answer 8

1) Court legal adviser reads out charge, informs defendant of the plea before venue procedure, warns of the possibility of committal for sentence and asks defendant to indicate their plea
2) Guilty plea indicated
3) Prosecution will outline facts of the case and tell Magistrates about previous convictions
4) Defendant’s solicitor will give a plea in mitigation on the defendant’s behalf
5) Magistrates decide if their sentencing powers are adequate – (not allocation hearing)
6) If they’re not the defendant is committed to the Crown Court for sentencing – Magistrates will need to decide bail as case is adjourned
7) Magistrates will also have to adjourn if the defendant pleads guilty but disputes the specific factual allegations made by the prosecution – a separate hearing (Newton Hearing) will be held to determine factual basis upon which the defendant will be sentenced
8) If they are they are sentenced in the Magistrates then they will either be sentenced straight away or case will be adjourned – bail

Question 9

Procedure - Either-way offence - Pleads not guilty

Answer 9

1) Magistrates will need to decide if the offence is suitable for summary trial or trial on indictment
2) If the magistrates think the case is more suitable for trial on indictment then defendant will get a choice of court and they may request and indication of sentence. Magistrates will decide bail