Chapter 4: First Hearings Before the Magistrates

Question 1

Who will have their 1st court appearance in the Magistrates’ Court?

Answer 1

Any person aged 18 or over and charged with a criminal offence.

Question 2

What is the process of the first hearing for a summary only offence?

Answer 2

1. Asked to provide their name and date of birth
2. Defendant pleads guilty or not guilty
3. If the defendant pleads guilty, the court will proceed immediately to sentence unless pre-sentence reports are required.
4. If the defendant pleads not guilty, a date for trial will be set around 6-8 weeks later, and orders regarding disclosure will be made

Question 3

What is the process of the 1st hearing for an either way offence?

Answer 3

The court proceeds to the plea before venue process

Question 4

What is the process for the 1st hearing for indictable only offences?

Answer 4

Matter is sent immediately to the Crown Court for trial.

Question 5

What tasks does a defence solicitor need to fulfil at this stage of proceedings?

Answer 5

1. Obtain disclosure from the prosecution
2. Take instructions from defendant
3. Advise the defendant
4. Apply for a representation order
5. Make an application for bail

Question 6

What must the defence solicitor obtain from the prosecution?

Answer 6

Must obtain from the prosecution sufficient disclosure to be able to progress matters at first appearance.

Question 7

When can disclosure be sought in advance of the first appearance?

Answer 7

If a representation order is already in place

Question 8

For an indictable only offence, why is only very little information disclosed at first appearance?

Answer 8

Because the matter must be sent directly to the Crown Court

Question 9

For summary only and either way offences, what is the amount of disclosure from the prosecution dependent on?

Answer 9

Amount of disclosure available is determined by whether the defendant was in custody prior to first appearance at court (and therefore produced more quickly than if he had been remanded on police bail.)

Question 10

What will the prosecution provide when the defence solicitor is obtaining disclosure?

Answer 10

Provides a summary of the offence + a list of the defendant’s previous convictions if the defendant is produced from custody.

The prosecution may also provide:
- an outline of the interview,
- witness statements,
- exhibits, or
- victim’s impact statement if the defendant appears on bail.

Question 11

What does the solicitor need to do when taking instructions from the client?

Answer 11

Needs to take detailed instructions from the defendant on their response to the prosecution’s disclosure, including the defendant’s comments on the prosecution’s witness statements.

Whilst there may not be time to take a full statement from the defendant at court, the defence solicitor must seek to get a clear account from the defendant on their account + get their views on the prosecution evidence.

Question 12

What professional conduct issues are relevant when taking instructions from the client?

Answer 12

A solicitor has both a duty to advance their client’s best interests + a duty not to mislead the court.

If these 2 duties conflict with each other, a solicitor must give the client careful advice on their chosen course of action.

If the conflict cannot be resolved, the solicitor will have to withdraw from the case.

Question 13

What advice will the defence solicitor need to provide?

Answer 13

1. Strength of the evidence against the defendant and the likelihood of conviction
2. Likely sentence if convicted, including credit for an early guilty plea,
3. The steps needed to prepare the defendant’s case (such as obtaining further evidence), and
4. Court procedure, particularly on advantages and disadvantages of Magistrates’ Court or Crown Court trial for defendants intending to plead not guilty to either way offences

Question 14

What is important to remember re decision on plea?

Answer 14

It is for the defendant only + a solicitor must never tell their client how to plead.

Defence solicitor should advise on the strength of the evidence, which includes warning the defendant where the evidence is strong.

Solicitor should also advise on credit for an early guilty plea.

However, decision on plea remains the defendant’s alone.

Question 15

What does the defence solicitor need to do if the defendant is not privately funded?

Answer 15

Unless a defendant is privately funded, the defence solicitor attending court to represent a defendant needs to apply for a representation order.

These applications are submitted to the court dealing with the case

Question 16

What is needed for a representation order to be awarded?

Answer 16

Defendant must satisfy 2 requirements:

1. Interests of justice test, and
2. Means test

Question 17

What factors will be considered under the interests of justice test?

Answer 17

1. Whether the defendant is likely to lose their liberty or livelihood or suffer serious reputational damage
2. Whether the case requires the determination of a substantial question of law
3. If the defendant is unable to understand the proceedings or state their own case
4. If the case may involve tracing witnesses, interviewing them, or expertly cross-examining them
5. If it is in the interest of another person

Question 18

What is relevant to the ‘whether the defendant is likely to lose their liberty/livelihood/suffer serious reputational damage’ factor?

Answer 18

• The seriousness and nature of the offence.
• The previous good character and standing of the defendant
• If the defendant is subject to a suspended sentence or community order, this could also be considered, as it makes a custodial sentence more likely

Question 19

What is included in ‘determination of a substantial question of law’ for factors considered in the ‘interests of justice’ test?

Answer 19

If the case will involve challenging identification evidence, hearsay evidence, bad character evidence, or inferences from silence, e.g., a representation order is more likely to be granted.

Question 20

When may it be in the interest of another person for the defendant to have a representation order awarded?

Answer 20

This is a relevant consideration when the case may involve cross-examination of a complainant in a sexual or violent offence, for example.

Question 21

What is the means test for a representation order to be granted?

Answer 21

Means test is automatically satisfied if the defendant is:
- under 18,
- in receipt of income support,
- income-based Job Seeker’s Allowance,
- state pension, or
- income-related support allowances or benefits.

All other defendants need to prove (by producing relevant documentation) that their means are sufficiently low to qualify for legal aid.

Currently, the threshold is £3,398 of annual disposable income.
- If a defendant’s adjusted income is £3,398 or less, they pass the means test + qualify for legal aid.