👩🏽‍⚖️CLP 2: 1st hearings at MC, plea before venue, allocation, bail Flashcards

Question

# 1st Hearing When will a defendant be sent to crown court without allocation for an either way offence? | 4

Answer 1

1. Serious/complex fraud cases where notice given by DPP 2. Cases inc children, w notice under s51C CDA 1998 (for certain cases) 3. D being sent for related indictiable only offence 4. Co suspect being sent for a related indictable only offence

Answer 2

1. CPS give facts/prev convictions 2. 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) 3. If trial on indictment more suitable=Send to CC if 4. 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 5. D may request indication of sentence (custodial/non custodial) 6. 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 7. CONSENT: proceed to summary (Proscan apply to be sent to CC if MC sentencing inadequate) 8. DOENST CONSENT: send to CC

Answer 3

* 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

Answer 4

– 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

Answer 5

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

Answer 6

court must allow D sufficient time to consider it

Answer 7

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

Answer 8

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?

Answer 9

1. 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 2. Better procedure for challenging inadmissibility of evidence (voir dire in absence of jury but mag decide on law and fact) 3. More time to prep for trial (if case complex/large number of witnesses to interview)

Answer 10

1. Limited sentencing powers BUT may send to CC for sentence if facts emerge that render MC sentencing powers inadequate 2. Faster/less stressful (if denied bail/moving from area) 3. Prosecution costs lower 4. Defence costs ◊ Not required to contrib to legal aid in MC ◊ CC all apps subject to financial eligibility test ◊ Priv-MC a lot cheaper 5. No obligation to serve defence statement (on court/prosecution which will provide prosecution with more info)

Answer 11

Clients decision not solicitors but sol make aware of pros/cons and strength of case

Answer 12

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)

Answer 13

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

Answer 14

Burden on D to persuade court to grant bail

Answer 15

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

Answer 16

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: 1. Nature/seriousness of offence/probable sentence 2. Character (prev convictions) 3. Community ties/associations(nothing stopping absconding)(criminal gang member/witness known to D 4. Previous grants of bail (record of absconding?) 5. 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**

Answer 17

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

Answer 18

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

Answer 19

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

Answer 20

1. In custody 2. Conditional bail 3. Unconditional bail

Answer 21

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

Answer 22

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

Answer 23

◊ Prison ◊ remand centre ◊ Police custody for up to 3d for making enquiries (Entitled to same rights as when arrested)

Answer 24

for any period of time subject to Ds consent

Answer 25

Successive periods of no more than 3w OR 4w if remanded on bail

Answer 26

2 in MC and more if can raise new factual/legal argument Can appeal from MC to CC

Answer 27

1. Prevent absconding 2. Prevent further offence 3. Precent interference with witnesses/obstruction of justice 4. Ensure D makes themself available for obtaining medical/other reports 5. Ensure keeps solicitor appointments 6. For Ds protection (or welfare if under 18)

Answer 28

1. Sureties (someone else pays money to court) 2. Security (D pays money to court) 3. Reporting to police station 4. Residence at specified address 5. Surrender of passport (D has assets/crim connections outside UK)

Answer 29

* 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 to explain why they should not pay sum * Court unlikely to accept surety if crim record, live far from D or no financial means

Answer 30

1. Reporting to police station 2. Residence 3. Curfew 4. Non communication with prosecution witness 5. Restriction on entering specified areas

Answer 31

1. Non communication with prosecution witness 2. Restriction on entering specified areas

Answer 32

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)

Answer 33

1. CPS rep provide all info in it possession material to courts decision 2. CPS rep state objection to bail and apply for remand In custody, list prev convictions/grounds for objection, cite details of case 3. D sol app for bail, respond to pros grounds, suggest appropriate conditions 4. Magistrates may hear evidence from others in support of Ds bail app 5. Mag decide-if bail subject to surety, court will hear evidence on oath from surety to ensure theyre suitable 6. Certificate of full argument given to D (reasons for decision)

Answer 34

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

Answer 35

If charged with imprisonable offence, CPS can appeal before CC judge in chambers Must have objected to bail in beginning: 1. oral notice given at end of bail hearing 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

Answer 36

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

Answer 37

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)

Answer 38

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?