6) Plea before venue and allocation Flashcards
Initial Details of Prosection Case
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,
Advising on plea
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
Advising on trial venue - When can you do this
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.
Advising on trial venue - Positives of crown court
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
Advising on trial venue - Negatives of Crown Court
1) Cost
2) Delay
3) Appeals - harder
4) Sentencing
Advising on trial venue - Positives of Magistrates
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
Professional conduct issues - If a client tells you they will plead not guilty but they are guilty
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
Procedure - Either-way offence - Pleads guilty
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
Procedure - Either-way offence - Pleads not guilty - Outline
1) Legal advisor - outlines procedure
2) Plea indicated
3) Court must make a decision on allocation - allocation hearing
4) Magistrates indicate if they accept jurisdiction or not
5) If magistrates accept jurisdiction then suspect can still elect crown court
6) Bail decided
Procedure - Either-way offence - Pleads not guilty - Legal advisor outlines procedure
Tell the suspect that they may indicate to the court how they would plead if the matter were to proceed to trial and that if they indicate a guilty plea they will then be treated as having pleaded guilty before the magistrates who may either sentence them or commit them to the crown court to be sentenced if they consider their own sentencing powers to be inadequate
Procedure - Either-way offence - Pleads not guilty - Indicate plea
Suspect will enter a plea.
Procedure - Either-way offence - Pleads not guilty - Court decides on allocation (allocation hearing)
Court needs to determine whether the case is more suitable for summary trial in the magistrates or trial on indictment in the crown court. Magistrates will decide using sentencing guidelines on the basis of the facts alleged by the prosecution and taking into account all aspects of the case, including representations made by the defence.
Procedure - Either-way offence - Pleads not guilty - Magistrates indicate decision
Magistrates will indicate if they will keep the case or if they are sending it to the Crown Court. Only if the magistrates accept jurisdiction will the suspect then be able to decide which court the trial should take place in.
What happens if an either way offence is linked to an indictment only offence
They will both be tried in the crown court
What if it is two defendants
if one indicates crown court they will be both be tried in the crown court
