Chap 4Procedure in MC,Allocation, and sending to CC for trial and sentence Flashcards
How will a case proceed through the system?
It will be by determined by whether its SOO, EWA or an indictable offence
Will all cases start in MC
Yes all cases start in MC, whatvever the classification
If person is charged so what happen next?
The police have charged a person with an offence they must bail him to MC or hold him in custody for the next available MC
What happens when D appears in MC first time charged with SOO or EWA
The P must provide initial details to the defence
Why should the P provide the initial details to the Defence
They do this prior to the plea before venue procedure, and to take initial instructions from client regarding plea
what are these initial details the P will pass to the D
The disclosure be a summary evidnce against the D and key witness statement that have been taken with prev convictions
The info is not designed to full case against the D, but provide suff info to assist the defence in advising on plea and other issues.
why do this, this so court can save time to plea guilty soon
By doing this,
If D pleads guilty at early stage to EWA or SOO in the MB, often the only material available to the P and the D will be the initial details
what is the first stage of proceedings in the MC?
The first step is when the D enters the plea
If the D has been charged with an indictable offence, does the plea happen in the MC?
No cannot enter plea in MC
The plea mostly in MC is either SOO or EWA
How many options does a D have when entering guity plea
They have 3 options when asked to enter his plea
1) Refuse plea.
2) Enter guilty plea- this is formal admission to the offence
3) not enter guilty plea
What is the one importing about a plea
It MUST be equivocal
This means when the D enters it there should be no doubt that he Is accepting his guilt
If he say guilty but at same time states something he is denying guilt the court must investigate this.
The court can does this by asking to clarify his plea
IF court not satisfied that the guilty plea is unequivocal it must enter not guilty plea on D behalf and hear evidence in trial to solve this issue,
Which offence only must be dealt from start to finish in the MC
All SOO , but simtomes a SOO can be dealt in CC if its connected if its connected to an EWA or indictable offense
Give some examples of SOO
Some examples include:
Driving without due care and attention
Common assault
Driving without insurance
Assault officer in execution of duty
IF D pleads guilut for SOO in court what happen?
The court will deal with sentence immediately
The court may adjourn to another day or put sentence another date, if sentence feels need more info before giving sentence
The normal way when deciding the sentence later, how would they get this info?
This is by PSR ( order for Pre sentence report) prep by probation officer
IF D pleads no guilty for SOO, then what happens
The case will be adjourned to a trial date
The purpose of adjournment is to allow the D and P prep their respective cases and warn their witness to attend court at trial
CMC is conducted immediately following non guilty plea
EWA give some examples
Assault ocassioniong to bodily harm
burglary
dangerous driving
Where usually EWA are dealt in
EWA can be dealt in MC or CC
What normally dictates the app court, is the “seriousness of the offence” and likely sentence should D be convicted.
What is the sentencing power of MC for EWA
The MC have limited sentencing power ( 6 months for a single EWA offence or 12 months in total for 2 or more EWA)
What happens if MC determines that dont have sufficient power
IF the MC determines that MC dont have sufficient sentencing power then the MC is not the right venue
What is the first procedure for EWA
It starts with a PBV
This means that the charge will be read to the D and he will be asked to indicate how he will plead
If no plea is indicated the MC will proceed as if a not guilty plea has been entered
Indication of Guilty plea
What happens if D pleads guilty what happens for the EWA?
The court hears the P case, and the D mitigation and decide if they can sentence themselves or must “commit the case to the CC for sentence”
IF the MC feels they have adequate power, they will either
1) sentence immediately
2) Adjourn for PSR
IF they feel suff power to sentence then they will commit the case to the CC
What happens if the D has been committed to the CC for sentence, where will he be bailed or remanded in custody
It will be in CC
normally a PSR will be ordered so that its ready for CC hearing
When the D appears in CC the case heard by single judge who will sentence the D as if he head been convicted or pleaded guilty in CC
Often a D will have been convicted/pleaded guilty to number of diff offences some of which should be committed to the CC for sentence and other which, if dealt alone would not go to CC
S.20 sentence code give court the power to ensure that all outstanding offences can be committed to the CC for sentencing
Once a decision to commit a EWA for a sentence made under S.14, “then s.20 allows for any convicted offence “( whether SOO or EWA also to be committed for sentence)
Rmbr that the offence don’t have to be related to be committed under S.20
The purpose of s.20 is t ensure, as far as possible, there is one sentencing exercise in one court for all of the outstanding matters against a Def
What happens if the D pleads no guilty or no plea for EWA
If the D does either then the MC will go through the allocation procedure
This procedure is designed to ascertain whether the offense is suitable to be dealt with the MC for trial or whether its serious it shld be sent to the CC for trial.
Main issue is the allocation procedure what will be the sentence the D is likely to receive if convicted aft trial
Allocation only takes places if there HAS BEEN A NOT GUILTY PLEA OR NO PLEA ENTERED
When is it likely that allocation will take place
this for the EWA, Allocation only takes places if there HAS BEEN A NOT GUILTY PLEA OR NO PLEA ENTERED
For allocation rmbr the P will address the court first
The P will have to decide prior to allocation what he considers to be the app venue in order to be in a position to make representations to the court.
The D will need to decide whether to elect CC trial or have the trial in MC
This allocation is designed to ensure that the MC can make an informed decision s about whether the case can be dealt with in the MC or whether its too serious and should go to the CC
The P will normally outline the what the P case is and make submission about where the case should be dealt with
The P will also give e the court a copy of the D previous convictions
The D then makes their submission if they wish , then the court will decide the appropriate venue
IF the P wants the case to be heard in CC but D wants the case to be heard in MC, then there will be a contested allocation hearing and both sides will have to make a submission as to the where the case should be dealt with
If the MC accepts jurisdiction during allocation whzt happens?
The D then given opp to ask for an indication of sentence, The court may ( but does not have to) give an indication of whether he would receive a custodial or non-custodial sentnec if he were to plead guilty
Giving an indication is their discretion
But rmbr if the D pleads guilty and the MC gives indication, the future court is bound by that indication . The only exception is weher the D is found to be a dangerous offender.
What happens after the D asks for an indication
The next stage us the D will be asked if he consents to Summary trial
At this stage the D has an absolute right to either consent to remain in the MC or elect to go to CC
The D must be advised at this stage merits of going to have trial in MC then CC or vice versa
One adv of having in CC might be that legal rulings are made by the judge in absence of jury
On other hand CC is generally slower, more exp and the sentencing power in CC is higher
What happens if MC declines jurisdiction during allocation
If mc declines jurisdication that is to say the court will be dealt in CC, the D cant stop this
What happens if the MC accepts jurisdiction ( the d consents to summary trial)
The case be adjourned for trial
CMC takes placed after allocation procedure is concluded and proper to adjournment for trial
If there are any particularly complex issues of law to be determined, ex: the admissibility of character or hearsay evidence, a further hearing might be listed before another bench often a DJ to consider the application
If the case is determined to go to CC after allocation, the D case shld be dealt with in CC , either because the MC has declined jurisdiction or because the D has elected CC trial, the case will be sent under s,51 of the CDA 1998
The next hearing will be in the CC and the case will follow the same procedure as indictable only offence
Rmbr where the D accepts jurisdiction then D asked for indication, if given or not given, then the D decides to consent to summary trial ( then the case be to summary trial)
This is how summary offences are dealt with, they may be sent to CC with an EWA
- often a D will face number of charges arising out of the same set of circumstances
- There is no problem if all or the offences are EWA they can be sent to CC at the same time.
What happens if the D has a mixture of EWA and SOO
IMP
Under the sending provision for EWA related to SOO only offences MUST also be sent to CC under S.51 of CDA 1998
IMP
But the caveat to sending to CC, is that it must fulfil the conditions of s.51 (11) namely that
1) its an offence which can carry a sentence of imprisonment and/or it is an offence that can lead to disqualification from driving
When EWA goes to CC, there will be indictment prepped setting out the charges
S,.40 under CJA 1988, provides that a small number of SOO to be tried on indictment
This means that the charge can go on indictment with the related EWA offence
The only SOO cthat can be tried on indictment under S,40 is
1) 5k criminal damage
2) taking a vehicle without consent
3) common assault
3) driving while disqualified
The consequence is that the D is charged with EQA and a connected SOO listed in s.40, the charges can be put on indictment and tried together before a jury
What are the three conditions that SOO can be tried on indictment there are three conditions that “must”be satisfied
- it must be related to EWA
-evidence of the offence must be included in the paper served on the defence and the court - the offence must be one of the offences listed in s.40(3)
What will happen if the summary offence cant go on indictment?
Nothing will happen in CC unless there is a conviction on or more of the EWA
If there is a conviction , the SOO is put to the D and he is asked to enter a plea
IF he pleads guilty he will be sentenced for all of the offences tgther
If plead no guilty then sent back to MC or the CC judge can sit as a DJ and hear the case against the D himself.
where a D charged for robbery and common assault where should the D be sent to ?
The MC should send bother charges alleged against the D to the CC . The robbery is indictable only and must be sent to the CC
The Common assault Is summary only.
The court must also send to the CC any EWA and SOO so long as they comply with the condition in s.51(11)- here since the both offence came from same facts
RMBR where the case was commenced by charge and requisition. which of the following statements most accurately reflects the Crown duty to provide info to D ?
The crown must:
1) serve case summary
2) any written was that are available and copy of D convictions any or before the date of the first hearing ( NOT WITHIN 24HRS before the date of the first hearing
If the case was not done by charge and requisition then the P need only to provide a summary of the circumstances of the offence and D criminal record before the first hearing
Rmbr that S.14 under s.14 is where the MC would commit the case to CC, this where they feel their sentence power not enough
S.18 is relaterd to EWA linked to other offences being sent for trial
Where D charged with Burglary and taking a vehicle a conveyance without consent. You represent the D at allocation hearing and advise her that given the prev convictions of burglary the court is likely to decline jurisdiction on the burglary.
What likely will happen to vechilce offence?
A count of taking without consent may be added to the indictment in the CC
TWOC is summary only offence, so normally triable in MC but where fall under ambit of s,40 CJA account may be added to the indictment and the offence try by jury .
Thus must be sent to CC ( as arise from same facts) and may be adduced to the indictment
If D charged from criminal offence for under 5k which is EWA becoming summary only, and the D wanted the case to be tried in CC can he do that?
No he cant since, its below 5k ,. The D loses right to elect trial in CC
The court does not have the power to send the case for trial on indictment
During allocation the D prev convictin will be show to the court, as such during conference, the Barrister job to ascertain in conference is to asceratin the D defence so that can use them in representation to the appropriate venue
Rmbr for EWA the D has the right to elect trial in the CC
So if he indicates not guilty plea before the pbv hearing the MC can hear representation about allocation from both the P and the Defence
IF D case was adjourned and he appears via the live link and wants to plead guilty can he do that?
The D can do that provided that the court is satisfied that its not contrary to the interest of justice for him to do so. He can do so from prison or from a police statin
If the D is 22 years old and is charged with theft, for total value of 150p.
Where will the case be tried?
Since the offence is a low value shoplifting ( not exceed 200p) the offence is triable only summary
However if the accused is 18 years or older they retain the right to elect the CC trial.
If the D is charged with criminal damage it must also be see if above 5k
If D1 (22) and D2(24) are jointly charged with burglary. the MC decide the case is suitable for summary trial. D1 ok with summary trial, D2 wants CC trial by jury
What approach would court take in deciding where the case shld be sent, shld it be taken to CC
If D1 elects for CC, then D2 must also be sent to CC
Where the court deals with two or more joibtly charged adult def on the same occasion, if D select
CC trial then the other must also be sent for trial
Dont matter if the MC dont accept jurisidication
Only if grounds embarrassment, D1 lets say more history, d2 normal guy then it will tried separately
If the D charged with theft and pleads guilty but don’t understand and says that she going to give it back.
What is the courts likely response to this
The court is likely to ask the d to clarify whether she has the necessary mens rea for the offence
rmbr that the plea has to be equivocal or ambigious.
If ambigious have to clarify with the D
BUT IF THE D SAYS SILENT THEN ONLY THE COURT SHOULD RECORD A GUILTY PLEA
Under what conditions can a summary-only offence be sent to the Crown Court under s51?
A summary-only offence can be sent to the Crown Court under s51 if it meets the conditions in s51(11), namely:
1) It is an offence that carries a sentence of imprisonment, and/or
2) It is an offence that can lead to disqualification from driving.
What is the main summary offences that can be tried on indictment under s.40 ?
A: This is criminal damage under 5k, taking a vehicle without consent, common assault and driving while disqualified
Mixed plea:
what happens if D pleads not guilty to some EWA charges and guilty to others and the not guilty charges are being sent to CC for trial
The charges/for trial will be sent to CC under s.51 of CDA and the EWA to which he has pleaded guilty can be committed for sentence under s.18
Rmbr s.14 power to commit for sentence
S.18, where the MC powers are insufficient, the court also has the “power to commit” under s.18
Rmbr THAT CRIMINAL DAMAGE START OUT AS EWA for the purpose of classification
But rmbr if the value of damage is less then 5k, criminal damage becomes a SOO
What are three exception to this where criminal damage remains triable
1) Criminal damage is caused by fire “arson”
2) criminal damage is charged in aggravated form, with an additional men’s rea that the D was reckless as to whether life was endangered or intended to endanger life
3) Where criminal damage, is caused to memorial, building
Take note that criminal damage only offence there will be no PBV and the D will not be able to elect trial in CC.
Case will be dealt with in MC from start to fin
Where criminal damage cant be ascertained to be above 5k then the court will inform the D that
1) he can consent to SOO
2) if he does, he will be dealt with summarily
3) the sentence for criminal damage is restricted in the MC to a maximum of 3 months
shoplifting under 200p - a hybrid of EWA
an offence of the theft from a shop where the value is less then 200p is now treated as if summary only
Despite it being summary only the D can still elect CC trial
Multiple low-value shop thefts charged together remain either-way offences if their total value exceeds £200. For example, five thefts of £50 each (total £250) would be either-way.
Indictable offence give some examples
murder, rape, manslaugter, robbery
This is the most serious offence and MUST ALWAYS go to CC for trial/sentence
Rmbr that all D charged with indictable offence make an initial appearance in the MC
Rmbr no plea taken at this stage
So long the P and defence are ready the case will be sent to CC under S.51
Indictable only cases will be allocated a date in the CC for “plea and trial preparation hearing” (PTPH) within 28 DAYS after the MC court hearing
Often a D charge with number of offences some may be indictable some EWA and some summary only
If all the offence are related, its preferred to keep them together then deal with them in the MC and some in the CC
As such with EWA s.51 provides that if D is sent to CC for an indictable offense, he shall be sent for EWA or SOO
