👩🏽⚖️CLP 2: 1st hearings at MC, plea before venue, allocation, bail Flashcards
What are the key principles of CJSSS (Criminal Justice: Simple, Speedy, Summary)
- Presumption plea will be entered into at first hearing
- Guilty pleas sentenced in MC-sentence expected to take place same day
- NG pleas-trial date fixed within 6-8w
- CPS should provide sufficient info at 1st heating to ensure its effective
Legal aid: sol claiming for work done at police station
□ Sol claims fixed fee under Police Station Advice and Assistance Scheme (adjusted for most serious/time consuming cases)
□ Non sols (trainees) can attend/charge IF accredited or probationary police station representatives
□ Can be on rota as duty solicitor for ppl at station that don’t have own sol
Legal aid: sol claiming for work done after charge
Can be on rota as court duty solicitor-claim costs from LLA under Advocacy Assistance (Court Duty Solicitor) Scheme
Form for applying for a legal aid representation order?
Form CRM 14-App for Legal Aid in Crim Proceedings
Legal aid: 2 tests
- Interests of justice test
- Means tests
Legal aid: 10 factors for interests of justice test
- It is likely that I will lose my liberty if any matter in the proceedings is decided against me.
- I have been given a sentence that is suspended or non- custodial. If I break this, the court may be able to deal with me for the original offence
- It is likely that I will lose my livelihood.
- Suffer serious damage to reputation
- Proceedings involve consideration of substantial question of law
- Unable to understand proceedings/state own case
- Witnesses may need to be traced or interviewed on my behalf.
- Proceedings involve expert cross-examination of a prosecution witnesses
- In interest of another that D represented
- Any other reasons
LA interests of justice: what could trigger ‘it’s likely I will lose my liberty if any matter in the proceedings is decided against me’?
- Likely custodial sentence if convicted
Culpability and harm
Aggravating factors - OR Likely refused bail
LA interests of justice: what could trigger “ I have been given a sentence that is suspended or non- custodial. If I break this, the court may be able to deal with me for the original offence”
Committed offence during:
– Suspended sentence
– Generic community order
– Conditional discharge
LA interests of justice: what could trigger “It is likely that I will lose my livelihood”
– If have type of job where will loose (ie. Bus driver with road traffic offence)
– As direct result of conviction/sentence/other matter (eg. A bail condition the prosecution is seeking)
– Imprisonment
– Non custodial sentence (eg. Office worker with generic community order with exclusion requirement inc location of their office)
LA interests of justice: what could trigger “Suffer serious damage to reputation”
– Client with no prev convictions and position of respect in community
– Client with prev convictions, not normally relevant unless prev convictions v minor (eg. Careless driving)
LA interests of justice: what could trigger “Proceedings involve consideration of substantial question of law”?
Prosecution evidence in dispute/D wants to admit evidence CPS may argue is inadmissible
Eg:
-Disputed identification evidence (R vTurnball)
-Adverse inferences
-Either side seeking to admit hearsay & bad character
-D seeking to exclude confession
-S76 and S78 PACE 1984
-P seeking to adduce Ds prev convictions or either party seeing to adduce bad character of another
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LA interests of justice: what could trigger “Unable to understand proceedings/state own case”
- Mental/physical disability (add medical evidence)
- Poor knowledge of English
- Age
- Vulnerability
- Length and complexity of case
LA interests of justice: what to include for “Witnesses may need to be traced or interviewed on my behalf.”
Inc on form:
– Relevant issue witness can address
– Whether witness known to client
– How evidence may be relevant to an issue in case
– Why legal rep is necessary to trace/interview them
LA interests of justice: what to include for “Proceedings involve expert cross-examination of a prosecution witnesses”
– Explain why cant trace/interview themselves
– Cross examination to determine q of law/decide on admissibility of evidence/evidence is complex or technical
– Inc:
Which issue
Which prosecution witness
Nature and extent of questioning
LA interests of justice: what could trigger “In interest of another that D represented”
Would need to cross examine prosecution witness in person (sexual/violent offence, child abuse or prosecution witness is a child/otherwise vulnerable )
NOT that its in interests of Ds family/the court
LA interests of justice: what could ‘any other reasons’ include?
– Skilful examination of defence witnesses
– Expert cross examination of co defendant or their witnesses
– NG plea at CC trial (need more legal advice than pleading guilty)
LA: when is the means test not needed because someone will automatically qualify?
-Income support, income- based jobseeker’s allowance, guaranteed state pension credit, income- based employment and support allowance or universal credit;
-Under 18.
LA: explain means test
a. App review on grounds of hardship (Form CRM16)
b. OR form CM15 and ev of finances
1. Adjusted income: inc income and expenses (NOT capital to see if need to do full means test)
Under £12,475=eligible
£12,475-£22,325=full means test
Over £22,325=MC not eligible, CC full means test
If over, full means test:
2. Full means test-calculate disposable income: gross annual income LESS:
(a) tax and NI
(b) annual housing, childcare maintenance to former partners and children
(e) an adjusted annual living allowance.
MC-entitled if annual disposable income is £3398 or less
CC- if disposable income is more than £3,398 and less than £37,500, may mean client can afford to make some contribution to costs
Is there a right of appeal against a legal aid application?
No
LA: what will be sent to the solicitor?
Representation order
□ If moves from MC>CC, RO will automatically extend
□ Indictment-will cover both
□ Either way where D failed MC means test and sent to CC, funding wont start until day after sending hearing and will only cover CC work
□ At conclusion of case, defence solicitor will claim coss incurred under representation order from LAA
Duty of CPS and defence at first hearing
CPS should make sufficient disclosure at 1st hearing to enable D to enter plea, defence should b ready to do so (may not due to funding issues/no disclosure=case will be adjourned)
What happens at the beginning of the first hearing
Court legal adviser reads out charge, informs D of plea before venue procedure, warns of possibility of committal for sentence and asks D to indicate plea
1st hearing procedure for summary offences
GUILTY plea
-CPS rep will tell mag facts/hand record of prev convictions
-Defence sol give plea in mitigation
-Mag will sentence or adjourn to obtain reports before sentence
GUILTY but disputes CPS facts
-Mag will adjourn and have sep Newton hearing to determine facts for sentencing
NOT GUILTY plea
-Court will fix date for trial, issue case management directions for defence and prosecution
-Will determine if released on bail/remand in custody
1st hearing procedure for either way offence
1.Charge read out by courts legal adviser (will also check Ds sol received IDPC)
2.Legal adviser tells D
-they may indicate how they’d plead if matter proceeded to trial but theres no obligation to
-if indicate guilty plea, will be treated as having pleaded guilty
3. Ask D to indicate plea
a. GUILTY
1. Treated as having been tried summarily and convicted
2. CPS rep outline facts/ prev convictions
3. Mag decide if sentencing powers sufficient
4.. YES-sentence/adjourn for pre-sentence report OR for newton hearing
5. If NO-commit to CC for sentence (Remand/bail (probs wont alter prev position)
B. NOT GUILTY/no plea indicated: decide on allocation
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When will a defendant be sent to crown court without allocation?
- Serious/complex fraud cases where notice given by DPP
- Cases inc children, w notice under s51C CDA 1998
- D being sent for related offence
- Co suspect being sent
Procedure for deciding on allocation at 1st hearing
- CPS give facts/prev convictions
- Mag consider:
-Reps made as to if sum/trial on indictment more suitable
-adequate sentencing power
-Allocation Guideline issued by Sentencing Council (either way- summarily unless sentencing powers insufficient) - If trial on indictment more suitable=Send to CC if
- If Summary trial more suitable, explain to D that:
-This is the case and they can consent or choose trial on indictment
- If consent and convicted, may be sent to CC for sentence - D may request indication of sentence (custodial/non custodial)
- Where no indication of sentence and D doesn’t reconsider indication of plea/plead guilty, court must ask if D consents to summary or wants to be tried on indictment
- CONSENT: proceed to summary (Proscan apply to be sent to CC if MC sentencing inadequate)
- DOENST CONSENT: send to CC
What is an indication of sentence (Goodyear indication) at a PTPH
- An advance indication of the likely sentence they would receive if they were to enter a guilty plea at that stage
- Court wont give unless requested and doesn’t have to give
- If judge gives and D enters guilty plea, indication binding
- If dont change plea to guilty as a result, indication of sentence not binding
What happens if a D enters different pleas at a plea before venue hearing?
– Sentence immediatley for NG offence or adjourn sentence until end of NG offences trial
Where one case sent to CC, magistrates can decide to sentence themselves or commit to CC for sentence of first offence
How to access IDPC
Defence sol contact CPS before 1st hearing with Unique Reference Number on charge sheet:
□ CPS will email via Criminal Justice Secure Mail account
□ OR accessed on Common Platform
OR for clients seen in court, phone centralised CPS number and CPS will email
What happens where CPS wants to introduce info on doc defence entitled to but hasn’t been made available
court must allow D sufficient time to consider it
What does IDPC include?
Where D was in custody right before 1st hearing:
□ Summary of circumstances of offence
□ Ds criminal record
All other cases:
□ Summary of circumstances of offence
□ Account given by D in interview
□ Witness statements/exhibits prosecutor has available and considers material to plea/allocation of case for trial/sentence
□ Crim record
□ Victim impact statement if available
Where D on bail and pros doesn’t anticipate guilty plea, unless good reason not too, also:
□ Statements and exhibits pros identified as important for plea/initial case management (ie. CCTV/Streamlined Forensic Report)
□ Medical/other expert evidence
□Info as to special measures, bad character, hearsay
What should a defence solicitor do when they’ve received IDPC?
Take further instructions and discuss:
-Clients response to pros case, pros witnesses, points of dispute (add to statement), check interview transcript accurate, admissions-correct? Can interview be excluded?
-Strength of prosecution case
-Need to obtain further evidence?
Advantages of crown court trial
- Higher chance of acquittal
◊ Unbias of jury to police officers compared to mag who know them
◊ Unbias of jury if have prev convictions in front of same magistrates - Better procedure for challenging inadmissibility of evidence (voir dire in absence of jury but mag decide on law and fact)
- More time to prep for trial (if case complex/large number of witnesses to interview)
Advantages of magistrates court trial
- Limited sentencing powers BUT may send to CC for sentence if facts emerge that render MC sentencing powers inadequate
- Faster/less stressful (if denied bail/moving from area)
- Prosecution costs lower
- Defence costs
◊ Not required to contrib to legal aid in MC
◊ CC all apps subject to financial eligibility test
◊ Priv-MC a lot cheaper - No obligation to serve defence statement (on court/prosecution which will provide prosecution with more info)
Who decides what plea to enter?
Clients decision not solicitors but sol make aware of pros/cons and strength of case
What to do if a client tells you theyre guilty
If pleads NG, duty to act in best interests conflicts with overriding duty to not mislead the court
Advise on:
1. benefit of guilty plea (reduced sentence)
2. limitations of sol being able to continue representing if enter NG plea (can still represent but limited in what can do, can cross examine witnesses/put prosecution to proof of case, as mag to dismiss but cant assert positive defence known to be false and must withdraw if client insisted on entering witness box)
In general who does/doesnt the presumption of bail apply to?
YES
1. All Ds before conviction
2. Convicted if case adjourned to obtain reports pre sentencing
3. Ds before court for breach of community sentence
NO
1. Committed to CC for sentence
2. Are appealing against conviction/sentence
3. Only granted in exceptional circumstances for (attempted) murder, ms, (attempted) rape, other serious sexual offences
What happens if the presumption of bail doesnt apply
Burden on D to persuade court to grant bail
When can bail be granted for muder cases?
Only CC judje may grant bail, must decide within 48h to grant, and cant unless thinks theres no significant risk of D committing an offence likely to cause physical/mental injury to another
Exceptions to the right to bail: Indictable only and either way imprisonable offences
NO bail if:
1. Substantial grounds for believing D would:
a. Fail to surrender to custody
b. Offend on bail
c. Interfere with witness/obstruct course of justice (for self/another)
To see if ground exists, court will take into acc:
} Nature/seriousness of offence/probable sentence
} Character (prev convictions)
} Community ties/associations(nothing stopping absconding)(criminal gang member/witness known to D
} Previous grants of bail (record of absconding?)
} Strength of ev against
2. D should be in custody for own protection (or welfare if a child)
3. Not been practicable to obtain sufficient info for taking decisions for bail duty to time
4. Having been granted bail, been arrested
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Exceptions to the right to bail: Summary only imprisonable offences
Bail can be refused on grounds of:
1. Prev failure to surrender
2. Commission of further offences (if the instant offence was committed on bail)
3. Fear of further offences causing another to suffer/fear physical or mental injuty
4. Ds own protection (welfare if kid)
5. Ds serving custody
6. Fear of faliure to surrender, offend, interfere with witness, obstruct justice (if arrested for breach in repsect of instant offence)
7. Lack of sufficient info
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Exceptions to the right to bail: Non-imprisonable offences
Cps probs wouldn’t oppose bail
Court can only oppose IF:
1.D failed to answer in prev criminal proceedings and court thinks they’d fail to surrender again
2.For own protection (welfare if under 18)
3. Currently serving custodial sentence for sep offence
4. Failed to answer/broke conditions of prev bail in these proceedings and reasonable grounds to believe would fail to surrender, commit offence, interfere with witness, obstruct course of justice
When CANT the exceptions to the right to bail apply?
Court cant remand in custody before case dealt with where no real prospect of custody:
1. D attained 18
2. Not been convicted of offence in these proceedings
3. Appears there’s no real prospect of custodial sentence
3 ways to be remanded
- In custody
- Conditional bail
- Unconditional bail
How long can a D be remanded in custody for at a time after charge before conviction?
8 clear days
Bring before court evert 4th (if consent and have legal rep)
BUT court can remand for 28d if prev remanded for same offence, bought before court, can set end date where next stage of proceedings will occur
Max period of remand in custody MC before conviction
Either way-70d (Unless allocation hearing takes place within 56d then-46d)
Summary-56d
◊ Pros can apply to extend if show on balance of probabilities theres good and sufficient cause to do this and its has acted with due diligence and expedition
Where can a defendant be remanded in custody?
◊ Prison
◊ remand centre
◊ Police custody for up to 3d for making enquiries (Entitled to same rights as when arrested)
Max period of remand on bail
for any period of time subject to Ds consent
How long can you be remanded for after conviction and before sentence?
Successive periods of no more than 3w
OR 4w if remanded on bail
How many bail applications can be made
2 in MC and more if can raise new factual/legal argument
Can appeal from MC to CC
How can the prosecution appeal a bail decision
i) Oral notice at end of hearing AND before D released from custody
ii) Confirm in writing 2h after telling court
iii) CC must hear as soon as possible and no later than 2 business days after notice served
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For conditional bail, what must the conditions be necessary to do?
- Prevent absconding
- Prevent further offence
- Precent interference with witnesses/obstruction of justice
- Ensure D makes themself available for obtaining medical/other reports
- Ensure keeps solicitor appointments
- For Ds protection (or welfare if under 18)
What 5 conditions on bail could prevent absconding?
- Sureties (someone else pays money to court)
- Security (D pays money to court)
- Reporting to police station
- Residence at specified address
- Surrender of passport (D has assets/crim connections outside UK)
What is sureties
- Someone else pays sum of money to court and must make sure D attends court
- If D absconds, money not paid back and surety must appear before court yo explain why they should not pay sum
- Court unlikely to accept surety if crim record, live far from D or no financial means
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What bail conditions will prevent committing further offences on bail
- Reporting to police station
- Residence
- Curfew
- Non communication with prosecution witness
- Restriction on entering specified areas
2
What bail conditions will prevent interfering with a witness
- Non communication with prosecution witness
- Restriction on entering specified areas
When will electronic monitoring be used?
Only to monitor compliance with another bail condition
AND only if court satisfied that:
◊ Wouldn’t be granted bail without it
◊ Necessary arrangements of electronic monitoring in place
◊ Age 12 and over (stricter requirements than adults)
Procedure for applying for bail
- CPS rep provide all info in it possession material to courts decision
- CPS rep state objection to bail and apply for remand In custody, list prev convictions/grounds for objection, cite details of case
- D sol app for bail, respond to pros grounds, suggest appropriate conditions
- Magistrates may hear evidence from others in support of Ds bail app
- Mag decide-if bail subject to surety, court will hear evidence on oath from surety to ensure theyre suitable
- Certificate of full argument given to D (reasons for decision)
How many bail applications can be made
MC: 2
Cant make another unless able to raise new legal or factual argument
How does the defendant appeal against a bail decision
Refused by MC-can appeal to CC if issued certificate of full argument
Best wait till made 2 full applications to max number of apps
Complete notice of application as soon as practicable after mag courts decision (sent to CC, MC, CPS)
If prosecution oppose, notify CC and defence of reasons immediately
Have hearing as soon as practicable and no later than the business day after it was served
Will be before CC judge in chambers, they must have
◊ Notice of application
◊ Certificate of full argument
◊ Record of prev convictions
How does the prosecution appeal against a bail decision
If charged with imprisonable offence, CPS can appeal before CC judge in chambers
3 sets of deadlines (must have objected to bail in beginning):
1. oral notice must be given at end of hearing bail granted and before D released
2. Notice confirmed in writing and served on D 2h after telling court
3. CC must hear as soon as possible and no later than 2 business days after notice served
What happens if a D fails to surrender?
Arrest warrant will be issued
a. Backed with bail: police will release after arrest
b. OR not backed with bail: will be kept in custody
Will be kept in police custody until can be bought before court
□ May hold remand court on sat if arrested on fri
Offences related to failing to surrender and consequences
a. Absconding s6(1)-failing, without reasonable cause, to surrender to custody
b. Offence under s6(2) Bail Act-failing to surrender with reasonable cause
UNLESS surrendered to custody as soon as reasonably practicable for them to do so
□ May be sentenced immediately or at conclusion of substantive proceedings
□May refuse further bail/grant with more harsh conditions (wont get if had to be arrested)
Police powers of arrest for breaching bail?
Police may arrest if reasonably believe that person:
a. Isnt likely to surrender to bail
b. Has broken/is likely to break bail conditions
Must be bought before MC within 24h wholl decide:
1. Determine if breach of bail condition (oral evidence from police/witness statements from prosecution
2. remanded in custody OR bail (possibly with more stringent conditions) pending next hearing?
