Crim PR Flashcards
- First hearings
All adult defendants have their first hearing before a magistrates’ court irrespective of the offence that they are charged with. Exactly what happens at the first hearing depends on the classification of offence which the defendant is charged with.
- Pleas
At a first hearing for a summary only or an either-way offence the defendant will be asked to enter their plea to a charge.
- Initial details
The prosecution is obliged to serve ‘initial details’ as set out in Criminal Procedure Rules, Part 8 which includes a summary of the circumstances of the offence and the defendant’s criminal record and sometimes other documents. The information supplied must be sufficient at the first hearing to allow the court to take an informed view.
- Summary only offences in the Crown Court exceptions
also charged if the summary- only offence:
(a) is punishable with imprisonment or disqualification from driving; and
(b) appears to the court to be related to the either- way offence (CDA 1998, s 51)
- Timing of first hearing
- Where the defendant is on bail, the first hearing must be within:
· 14 days of being charged- if the prosecutor anticipates a guilty plea which is likely to be sentenced in a magistrates’ court;
· 28 days of being charged- where it is anticipated that the defendant will plead not guilty, or the case is likely to go to the Crown Court for either trial or sentence. - If a defendant was detained in police custody following charge they must be brought before the next available court.
- Defendant’s presence at first hearing
- The defendant must be present at the first hearing. If the defendant was bailed by the police to attend court and fails to attend, the court can issue a warrant for the defendant’s arrest. Failure to surrender to bail at the appointed time is an offence under the Bail Act 1976.
- When the defendant does not attend as required then the court will consider whether it can proceed with the hearing anyway.
- This will not usually be possible if the hearing will deal with allocation of an either-way offence or sending an indictable (either-way or indictable only) case to the Crown Court.
- If the defendant has been summonsed to court (typically used for non-imprisonable, minor or road traffic offences) the defendant does not commit any offence for non-appearance. Provided the prosecution has served the statements and the defendant has been warned of the hearing, then the case can proceed in the absence of the defendant. If convicted, then the penalty can also be imposed in absentia.
- Initial details of the prosecution case (IDPC)
- The prosecution is obliged to serve the initial details on the court officer as soon as practicable and in any event, no later than the beginning of the day of the first hearing.
- Where a defendant requests those details, the prosecutor must serve them on the defendant as soon as practicable and, in any event, no later than the beginning of the day of the first hearing.
- A solicitor would almost certainly request the documents. The Crown Prosecution Service now uses electronic case files. These can be sent to defence representatives via secure email.
- Ordinarily, the failure to supply initial details does not constitute a ground upon which a court may dismiss a charge or give rise to an abuse of process application. The usual remedy is for the court to adjourn a first hearing and/or award costs to the defence for the prosecution’s failure to serve.
- Initial details – content
- Initial details must include:
· a summary of the circumstances of the offence;
· any account given by the defendant in interview;
· any written statements and exhibits that are available and material to plea and/or mode of trial or sentence;
· victim impact statements; and
· the defendant’s criminal record. - The rules prescribe that where the defendant was in police custody immediately before the first hearing, initial details need only comprise:
· a summary of the circumstances of the offence; and
· the defendant’s criminal record.
- Summary and either-way offences first hearings?
· The first hearing will be the hearing that deals with matters such as:
* plea;
* bail;
* representation and legal aid.
o Depending on the type of offence it might progress to sentence.
Indictable-only first hearings?
· The magistrates’ court has no jurisdiction to deal with an indictable only offence and so a defendant charged with an indictable only offence makes only a brief first appearance in a magistrates’ court.
· The court will deal with bail and legal aid then the defendant is sent to the Crown Court where they will enter a plea. The hearing at the Crown Court is three or four weeks later depending on the defendant’s bail status.
In what circumstances are either-way offences summary only?
- Special cases:
· Low value shoplifting- while theft is an either-way offence, low value shoplifting valued at £200 or less is treated as summary only (although D still has the right to elect trial in the Crown Court).
· Criminal damage- while an either-way offence, simple criminal damage to the value of £5,000 or below, is summary only.
· Complex fraud cases or where children may be called as witnesses- while these offences might be classed as either-way, they will be sent to the Crown Court without allocation.
- Plea before venue
the defendant will be asked to indicate their plea to a charge - either-way offences
- D indicates an unequivocal guilty plea for eitheer-way offence
the court will sentence the defendant unless of the opinion that it is necessary to commit the defendant to Crown Court for sentence.
- D indicates a not guilty plea for either-way offence?
· Allocation- the court will decide whether to allocate the case to a magistrates’ court (accept jurisdiction) or send it to the Crown Court (decline jurisdiction).
· Indication of sentence- the defendant is able to ask for an indication if they were to plead guilty instead and the court has the discretion as to whether they will give it.
· Election- If the court decides to accept jurisdiction D can consent to being tried in a magistrates’ court or elect to be tried by a jury in the Crown Court. It is one of the duties of the defendant’s legal representative to advise the defendant on whether to consent to summary trial or to elect trial.
* The court conducts any case management that is required.
What can D do at Plea before Venue?
o The defendant can:
· indicate guilty;
· indicate not guilty; or
· give no indication.
* Where no indication is given, it is treated as a not guilty indication.
What must D be warned of before indicating their plea?
o Before they indicate their plea, the defendant must be warned that if they plead guilty, they can be:
· sentenced by the court; or
· committed to the Crown Court for sentence under s 14 Sentencing Act 2020 if a magistrates’ court is of the opinion that its sentencing powers are insufficient to deal with the offence.
magistrates’ court sentencing powers?
. A magistrates’ court does not have power to impose more than 6 months imprisonment in respect of any summary only or either-way offence (s 224 Sentencing Act 2020).
o For two or more either-way offences, the maximum sentence in the magistrates’ court is 12 months imprisonment.
What happens if the Magistrates’ court decides their sentencing powers are sufficient after D entered guilty plea?
sentence may be passed immediately or adjourned for the preparation of a pre-sentence report (‘PSR’). The sentencing process is considered in more detail in another element.
o Where the court adjourns sentence for the preparation of a PSR, it must be careful not to create an expectation that the offender will be sentenced in a magistrates’ court if there is a possibility of committal for sentence.
o The court should make it clear that all sentencing options, including committal to the Crown Court for sentence, remain open.
What happens if the Magistrates’ court decides their sentencing powers are not sufficient after D entered guilty plea?
o If the court decides that its powers are insufficient either because the sentence exceeds their maximum, or because the defendant should be made subject to a sentence of a kind that they cannot pass, then the defendant will be committed for sentence to the Crown Court.
o A magistrates’ court should order a PSR for use by the Crown Court if it considers that:
· there is a realistic alternative to a custodial sentence; or
· the defendant may be a dangerous offender; or
· there is some other appropriate reason for doing so.
o The defendant will make their next appearance at the Crown Court to be sentenced by a Crown Court Judge who will be able to pass a sentence of anything up to the Crown Court limit for the offence.
ss 19 and 20 of the Magistrates’ Courts Act
1980
allocation
o If a defendant indicates a not guilty plea then the court moves on to consider where the trial will be held.
Presumption is that an either-way offence should be treated summarily unless it exceeds their sentencing powers - allocation guideline courts must take into account
- Allocation hearing
- The prosecution
- Opens with the facts.
- Outlines the defendant’s offending history (if any).
- Makes submissions as to where the trial should be held consistent with the allocation guidelines.
The submissions will cover the nature and seriousness of the offence including any particular aggravating and mitigating features. - The defence
- Can make submissions as to venue.
- Where they agree with the prosecution it may be no more than saying that.
- However, if the prosecution submits that the case should be heard in the Crown Court and the defence disagree, they will need to make fuller, more persuasive submissions at this point.
The court must then decide whether to allocate the case to a magistrates’ court (accept jurisdiction) or send it to the Crown Court.
If they decide to allocate it to the Crown Court, the matter is sent pursuant to s 51 Crime and Disorder Act 1998 and the defendant will make their next appearance at the Crown Court. The defendant has no right to elect a magistrates’ court trial in these circumstances.
If the court decides to retain jurisdiction (s 20 Magistrates’ Courts Act 1980), there are further steps in this process.
o The court will explain to the defendant that:
· The court has decided that summary trial is more suitable.
· The defendant can consent to be tried summarily or, if D so wishes, be tried by a jury.
· If D is tried summarily and is convicted, D may still be committed to the Crown Court for sentence.
- Election
o If the defendant does not ask for an indication, or if the court refuses to give one, or if having heard the indication the defendant sticks with their not guilty plea, the court asks the defendant:
· if they consent to being tried in a magistrates’ court, meaning the case will be adjourned; or
· if they want to elect to be tried by a jury meaning the case will be transferred to the Crown Court.
o The defendant will be told that even if they consent to summary trial, the court still has the power to commit them to the Crown Court for sentence.
- Advice on election
o It is one of the duties of the defendant’s legal representative to advise the defendant on whether to consent to summary trial or to elect trial.
Procedure after election?
- D consents to summary trial
o If the defendant consents to summary trial then the court:
· progresses as if the case were a summary only offence
· sets a trial date
· conducts any case management that is required. - D elects Crown Court trial
o If the defendant elects trial at the Crown Court then:
· the matter is sent pursuant to s 51 Crime and Disorder Act 1998;
· the defendant will make their next appearance at the Crown Court.
· the court will complete the ‘Case sent to the Crown Court for trial – case management questionnaire’.
When are pre-trial matters considered?
- Pre-trial matters will be considered either (i) at a first hearing; (ii) at a hearing on a date after the first hearing and before the trial date (for example a PTPH); or (iii) on the day of trial itself, before the trial starts:
- Magistrates’ court- in simple cases, many if not all pre-trial matters can be resolved at the first hearing.
- Crown Court- there will be at least one hearing, the PTPH, to deal with pre-trial matters. In complex cases, the Crown Court may hold a preliminary hearing soon after the first hearing to ensure the PTPH is effective.
PTPH stages
(i) ‘plea’; and (ii) either ‘sentence’ or ‘trial preparation’:
* At plea stage, the indictment is put to the defendant and they enter a plea of guilty or not guilty to each count on the indictment, this is known as arraignment.
* At the end of the trial preparation stage, the parties should know the trial date, the timetable for any further preparatory work to be completed and whether the case needs to be listed in court again before trial.
- What are ‘pre-trial matters’?
- ‘Pre-trial matters’ are all those matters that can be resolved pre-trial, as the name would suggest. The term covers a wide range of issues including, for example, selecting a trial date, applying for a witness summons or resolving legal arguments.
- Pre-trial matters in the magistrates’ court
- Where a trial takes place in the magistrates’ court the parties will be expected to deal with case management issues at the first hearing. There is a magistrates’ court case management form that the court will expect parties to complete before the first hearing commences.
- At the first hearing the court will give directions for:
· service of documents between the parties (should any be needed)
· either resolve there and then any matters of law (rarely) or set out a timetable as to when they will be resolved either at a pre-trial hearing or on the morning of trial. - The court will also set a trial date.
- If the magistrates’ court holds a pre-trial hearing to for example, decide the admissibility of a piece of evidence, that ruling is binding on the magistrates’ court that hears the trial (whether composed of the same lay justices/District Judge, or not, unless one party applies for the ruling to be discharged or varied).
- How is the evidence served on the defence in the mags?
- Where the magistrates’ court sends the case for trial to the Crown Court:
- It must set a date for a Plea and Trial Preparation Hearing (PTPH) within 28 days of the sending.
- The magistrates’ court will complete a ’sending sheet’- a notice specifying the offences for which the defendant is being sent and the Crown Court where the defendant will be tried. This notice should be sent to the defendant and the Crown Court. There is no prescribed form for such a notice.
- Evidence must be served within:
· 50 days (if the defendant is in custody); or - Accelerated because you must have your trial within 6 months if you are in custody
· 70 days (if the defendant is on bail) - of the date on which the defendant has been sent for trial in the Crown Court.
- Evidence is uploaded on to the Crown Court Digital Case System: i.e. copies of the documents containing the evidence on which a charge is based.
- Draft indictment must be served by the prosecutor on the Crown Court officer not more than 20 business days after serving prosecution evidence.
- Plea and trial preparation hearing (PTPH)
- The PTPH is the main, and often only, pre-trial Crown Court hearing.
For those cases sent to the Crown Court where a preliminary hearing is not required, the
first hearing in the Crown Court will be the PTPH. The purpose of the PTPH is to enable the
defendant to enter their plea and, if the defendant is pleading not guilty, to enable the judge
to give further case management directions for the CPS and the defendant’s solicitor to
comply with prior to trial.
Where a case has been sent for trial and no preliminary hearing is held, the PTPH should take
place within 20 business days after sending.
- Unfit to plead?
- If the judge has determined that the defendant is unfit to plead (a judge can make that determination after hearing medical evidence), then no plea is taken.
- The court will have to hold a trial with a jury to determine whether the defendant committed the act (i.e. the actus reus of the offence, but not mens rea) and so the ‘trial preparation’ stage of the hearing will need to take place.
- Please note that a defendant who is found unfit to plead and a jury finds they have committed the act can only be made subject to:
· an absolute discharge
· supervision order; or
· a hospital order.
- Plea stage of PTPH
- If the defence want to make an application to dismiss the charges, they must do so before a plea is taken.
- At the plea stage, the indictment is put to the defendant and they enter a plea of guilty or not guilty to each count on the indictment, this is known as arraignment.
- If the defendant pleads guilty to the sole count on the indictment / all of the counts on a multi-count indictment: the case moves to sentence.
- If the defendant pleads not guilty to the sole count on the indictment / all of the counts on a multi-count indictment: the court proceeds to the ‘trial preparation’ of the hearing.
- Where a defendant enters at least one guilty plea and at least one not guilty plea on an indictment consisting of two or more counts: the prosecution will need to consider how it wishes to proceed, the result being either that the court moves to sentence or if there is to be a trial the ‘trial preparation’ stage needs to take place.
- Trial preparation stage of PTPH
- Standardised directions will apply for dealing with matters such as:
· Special measures. Directions will apply for any special measures (such as live link and screens) sought by witnesses.
· Bad character. Directions will apply for any bad character applications by the prosecution and defence and timetables set for the service of bad character applications and responses.
· Witness summons. If a witness summons is required, details must be given and the application can be made at the PTPH or a timetable given for making the application.
· Agreed facts and issues. The defence must set out what factual matters are agreed so that they can be drafted as admissions for use at trial.
· Disputed facts and issues. The defence must set out those matters where there is a dispute with the prosecution case so that the issues for the trial are clear.
· Defence statement. The defence must serve a defence statement at stage 2 which sets out the defence case.
· Disclosure. If there are issues relating to advance disclosure of unused material, this can be dealt with or the standard directions will deal with this.
· Defendant’s interview. A timetable will apply for the prosecution and defence to agree an edited interview record for use at trial.
· Hearsay. Directions will apply on the service of applications to rely on hearsay evidence.
· Admissibility and legal issues. All issues relating to the admissibility of evidence and other legal issues should be notified. Directions will be given or apply on when these applications will be made (e.g. at or before trial) and on the service of any documents in support, such as skeleton arguments. - At the end of the hearing the parties should know the trial date, the timetable for any further preparatory work to be completed and whether the case needs to be listed in court again before trial (although this may only become apparent at some later stage). Where a party fails to comply with any directions, they may be required to come to court and explain their failure to do so. The expectation is that no further hearings will be required, either because there are no further issues to resolve before trial or because they can be dealt with on the day the trial is listed.
- Special measures- types
· The use of screens (the witness will be screened from the defendant and the public gallery) (s.23 YJCEA)
· Live TV link (where the witness sits in a room away from the courtroom) (s.24)
· Giving evidence in private (public gallery cleared) (s.25)
· Removing wigs and gowns by barristers and judges (s.26)
· Video recording of evidence in chief (s.27)
· Pre-recording cross-examination and re-examination (s.28 – partially in force)
· Questioning of a witness through an intermediary (s.29)
· Aids to communication (s.30)
· Witness Anonymity Orders (Coroners and Justice Act 2009 Part 3 Chapter 2)
· Automatic anonymity of complainants in sex cases (Sexual Offences (Amendment) Act 1992)
· Prohibition of cross-examination by defendants in person of complainants in sex cases and of child witnesses in certain cases involving violent and sexual offences (YJCEA ss.34 to 38)
· Restricting the reporting of witnesses’ identity (YJCEA s.46)
- Special measures- eligibility
· All witnesses aged under 18 at the time of trial (or video recording) are automatically eligible (s.16 YJCEA).
· Witnesses who have a mental disorder, or a significant impairment of intelligence and social functioning, or a physical disability/disorder are eligible where the court considers that due to any such matter the quality of their evidence is likely to be diminished (s.16 YJCEA).
· Witnesses who are in fear or distress about giving evidence and the court is satisfied that the quality of their evidence will be diminished because of this (s.17 YJCEA).
· All adult complainants of sexual offences (s.17 YJCEA).
· All adult complainants in certain offences under the Modern Slavery Act 2015(including forced labour and human trafficking).
· All witnesses in a case involving a ‘relevant offence’, namely serious offences, including offences of homicide or involving firearms or knives (s.17 and Sch 1A YJCEA).
Chnage plea from not guilty to guilty
- A defendant who has pleaded not guilty can, at any time before the jury return their verdict, ask through their Counsel that the ‘indictment be put again’ (or charge sheet in the magistrates’ court). The clerk will read the indictment and the defendant can plead guilty. This usually happens before trial but from time to time a defendant might decide midway through a trial that they want to end the process by pleading guilty. It is rare, but it can and does (occasionally) happen. Usually though, defendants change their minds on the day of trial either for tactical reasons or because they were hoping that prosecution witnesses would not attend to give evidence, but realise they now have. Strictly speaking, you need the leave of the judge/magistrates to have the indictment/charge sheet put again, but asking that it be put again is sufficient. If the trial is taking place in the Crown Court and the jury have already been put in charge of the case, they should be directed to return a formal verdict of guilty.
Chnage plea from guilty to not guilty
- Defendants who plead guilty can, at any time before they are sentenced, apply to the court for leave to change their plea from guilty to not guilty, but judges should exercise their discretion judicially and sparingly, although even where the plea was unequivocal the discretion to allow it to be changed still exists.
- Where a defendant has been represented properly a court would invariably reject the application to vacate their guilty plea and allow them to enter a fresh not guilty plea.
- Represented properly means:
· proper advice has been given to the defendant;
· no undue pressure has been exerted on the defendant; and
· the defendant’s plea was clearly unequivocal. - An application of this nature will frequently feature a defendant waiving privilege (considered in another element) to establish matters such as the nature of the advice they acted upon.
- In practice, then, although it is always a matter for the court, the two most common scenarios in which the rarely exercised discretion will properly be applied are where either:
· The defence can show that the prosecution has no evidence of an essential ingredient of the offence; or
· The defendant was improperly placed under undue pressure to plead guilty or was materially misadvised by D’s legal team. - Both of those scenarios are likely to result in criticism of Counsel who appeared when the defendant pleaded guilty and perhaps the solicitor too. It is therefore usual practice that Counsel or both Counsel and the solicitor withdraw from the case and the defendant seeks fresh representation. Where that happens, defendants may want to give evidence of their conference with Counsel or seek that Counsel explain how and why they advised the defendant to plead guilty. Both require the defendant to waive legal privilege.
- Used materials
relied upon at trial
unused
not relied upon at trial
- A disclosure officer
is responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor’s request. In Crown Court cases the disclosure officer prepares an MG6C which individually lists the items of unused material. In magistrates’ court cases where a Not Guilty plea is anticipated the unused material is listed on a streamlined disclosure certificate.
- The duration of the duty to retain material
varies depending on whether proceedings are commenced, whether the defendant is convicted, what sentence the defendant received or whether an appeal against conviction is in progress.
disclosure test
where there is in existence prosecution material which might help the defence then it should be disclosed
Time limit for disclosure
· The prosecution will serve initial details of the prosecution case (used material) no later than the beginning of the day of the first hearing
When does disclosure of unused material arise?
- Disclosure of unused material by the prosecution arises in the magistrates’ court only when a defendant pleads not guilty and the case is adjourned for summary trial and in the Crown Court when a defendant is sent for trial.
- The four stages of disclosure
o The general scheme of disclosure falls into four stages:
the investigation stage- the duty to record and retain material during the investigation;
the initial duty of disclosure on the prosecution;
defence disclosure; and
the continuing duty on the prosecution to keep disclosure under review.
- The investigation stage of disclosure?
- The duty to retain and record relevant material
o Under the Disclosure Code of Practice, during a criminal investigation all material (including information) which may be relevant to the investigation must be recorded in a durable or retrievable form and retained.
o Every investigation will have:
· an officer in charge of the investigation- who is responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material;
· an investigator- namely any police officer conducting the investigation; and
· a disclosure officer- who is responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor’s request.
o In routine cases all these functions may be carried out by the same person, although in complex cases the roles will be individually assigned.
· The investigator- must follow all reasonable lines of enquiry, whether these point towards or away from the suspect and the investigator must be ‘fair and objective’.
· Disclosure officers- must inspect, view, listen to or search all relevant material that has been retained by the investigator and must provide a personal declaration that this has been done. Where there is doubt as to whether any material is disclosable, the disclosure officer must seek the advice and assistance of the prosecutor.
o All material which may be relevant to a criminal investigation must be retained. This includes, in particular:
· crime reports
· records from tapes or telephone messages (such as 999 calls) containing the description of an alleged offender
· witness statements (and drafts if they differ from the final version)
· exhibits
· interview records
· experts’ reports and communications between the police and experts for the purposes of criminal proceedings
· records of first descriptions of suspects and any material casting doubt on the reliability of a witness.
o In addition, the duty to retain relevant material includes information provided by an accused person which indicates an explanation for the offence charged and any material which casts doubt on the reliability of a confession.
o The duty to retain material lasts at least until a decision is taken whether to institute proceedings against a suspect for a criminal offence.
o Once proceedings are commenced, all material must be retained until the accused is acquitted or convicted, or the prosecutor decides not to continue with the case.
o Where the defendant is convicted, the material must be retained at least until the defendant is released from custody (or discharged from hospital) or, in cases which did not result in a custodial sentence or a hospital order, until six months from the date of conviction.
o In cases where an appeal against conviction is in progress all material that may be relevant must be retained until the appeal is concluded. Where material comes to light after proceedings have concluded which throws doubt upon the safety of the conviction, the prosecutor must consider disclosure of the material. - Provision of unused material to prosecutor
o The Disclosure Code of Practice sets out a procedure for the Prosecutor to be notified by the disclosure officer of every item of Unused Material.
· In Crown Court cases the disclosure officer prepares a schedule known as an MG6C which individually lists the items of unused material.
· In magistrates’ court cases where a Not Guilty plea is anticipated the unused material is listed on a streamlined disclosure certificate.
o In cases involving sensitive material (ie material the disclosure of which the disclosure officer believes would give rise to a real risk of serious prejudice to an important public interest) the sensitive material is listed in a separate schedule or, in exceptional circumstances where its existence is so sensitive that it cannot be listed, it is revealed to the prosecutor separately. This may form the subject of a Public Interest Immunity Application at a later stage.
Sensitive material exampled – MI5 nuclear codes
o Disclosure Officers must certify that to the best of their knowledge and belief they have complied with their duties under the Disclosure Code of Practice.
This will include ensuring that all relevant unused material is clearly listed and brought to the attention of the prosecutor so that full and proper disclosure can be made in accordance with the test set out on the next page.
It is worth noting that the disclosure officer should exercise judgement and be directed by the prosecutor as to what is likely to be the most relevant and important material for disclosure.
o The prosecutor’s initial duty of disclosure
‘s 3(1) The prosecutor must:
* disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, or
* give to the accused a written statement that there is no material of a description mentioned in paragraph (a).’
The duty of disclosure relates to ‘prosecution material’ – this is defined in s.3(2)as material:
* ‘(a) which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, or
* which, in pursuance of [the Disclosure Code of Practice], he has inspected in connection with the case for the prosecution against the accused.’
o The A-G’s Guidelines add further detail to the disclosure test, namely that in deciding whether or not material should be disclosed under s.3 CPIA, prosecutors should consider, amongst other things:
the use that might be made of the material in cross-examination;
its capacity to support submissions that could lead to:
the exclusion of evidence;
(ii) a stay of proceedings as an abuse of process, where the material is required to allow a proper application to be made;
(iii) a court or tribunal finding that any public authority had acted incompatibly with the accused’s rights under the ECHR.
its capacity to suggest an explanation or partial explanation of the accused’s actions;
the capacity of the material to have a bearing on scientific or medical evidence in the case (including relating to the defendant’s mental or physical health, intellectual capacity, or to any ill treatment which the accused may have suffered in custody).
o As such, when considering if unused material must be disclosed, prosecutors must take into account all those circumstances in which such material might reasonably be capable of supporting the defence case or undermining the prosecution case.
initial disclosure must include
sufficient information to allow the defendant and the court at this first hearing to take an informed view:
on plea;
on venue for trial (for either-way offences);
for the purposes of case management;
for the purposes of sentencing (including committal for sentence for either-way offences).
o Concerning the disclosure of unused material by the prosecution, this statutory duty under the CPIA (the initial duty of disclosure) arises:
· in the magistrates’ court only when a defendant pleads not guilty and the case is adjourned for summary trial; and
· in the Crown Court when a defendant is sent for trial or where a Voluntary Bill of Indictment has been preferred against a defendant (s.1 CPIA).
- Summary trial - disclosure
at the first hearing in the magistrates’ court, where a defendant pleads not guilty and the case is adjourned for summary trial:
· if there is any further prosecution evidence still to be served the court will give a date by which this must be done.
· if the prosecution has not complied with its initial disclosure of unused material at this stage, a date will be given for this to be completed.
* In any event, prosecutors should serve initial disclosure in sufficient time to ensure that the trial date is effective.
- Crown Court trial - disclosure
o If the case is sent to the Crown Court for trial, a Plea and Trial Preparation Hearing (PTPH) will take place usually 28 days after sending. The prosecution should serve sufficient evidence in advance of or at the PTPH to enable the court to case manage effectively without the need for a further case management hearing, unless the case falls within certain exceptional categories such as murder or cases involving children where a further hearing will be envisaged. At the PTPH, if there is more prosecution evidence still to serve and/or if initial disclosure has not been complied with, dates will be given by when this must be done.
o Once the prosecution has complied (or purported to comply) with its initial duty of disclosure, this does not bring to an end the prosecution’s duty in this regard because the prosecution is under a continuing duty to review disclosure throughout the criminal proceedings.
REMEMBER IT LASTS THROUGHOUT THE WHOLE CRIM PROCEEDINGS
o Following initial disclosure by the prosecution, there is a duty on the defence (mandatory in the Crown Court and optional in the magistrates’ court) to provide a defence statement which sets out the accused’s defence to the allegation. This defence statement will allow the prosecution to review disclosure in light of what it is told about the nature of the defence.
defence statement
written statement which sets out the nature of the accused’s defence with reasonable clarity
- A defendant must serve a defence statement in the Crown Court but not in a magistrates’ court.
- Consequences of failing to disclose in the Crown Court are:
· The jury may draw such adverse inferences as appear proper
· The prosecution or co-defendant may comment on such a failure
- Consequences of failing to disclose in the Crown Court or a magistrates’ court are:
· The defendant will not be able to make an application for specific disclosure
· The prosecution will not have the opportunity to review disclosure in light of the issues
- Defence witnesses
in the Crown Court and magistrates’ court, the defendant must disclose to the court and the prosecutor a notice indicating if D intends to call any witnesses at trial (other than D) and if so, identifying the witness by name, address and date of birth or any information to locate and identify the witness.
- Time limits for the defence statement and Notice of Intention to Call Defence Witnesses:
- A defendant must do so within 28 days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so) in the Crown Court; or
- A defendant must do so within 10 business days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so) in a magistrates’ court.
- Defence statement- contents
a defence statement must contain:
‘6A Contents of defence statement
For the purposes of this Part a defence statement is a written statement—
* setting out the nature of the accused’s defence, including any particular defences on which he intends to rely,
* indicating the matters of fact on which he takes issue with the prosecution,
* setting out, in the case of each such matter, why he takes issue with the prosecution, and
* setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence, and
* indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose.
o A defence statement that discloses an alibi must give particulars of it, including:
the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given;
any information in the accused’s possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.’
- Defence statement- time limits
- Crown Court
o A defence statement is compulsory only in the Crown Court and must be served on the prosecution and the court (CrimPR r.15.4(2)) within 28 days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so).
o This time limit can be extended but only if the application to extend is made within the time limit and only if the court is satisfied that it would not be reasonable to require the defendant to give a defence statement within 28 days. - Magistrates’ court
o In the magistrates’ court a defence statement is not compulsory, but if a defendant chooses to serve a defence statement in such a case standard directions in the magistrates’ court provide that the defendant must do so within 10 business days of the prosecution complying (or purporting to comply) with the initial duty of disclosure. It is worth noting here that although there is no obligation to serve a defence statement in the magistrates’ court, failure to do so will mean that the defence will be unable to make an application for specific disclosure.
- The defence statement sets out, in accordance with CPIA s.6A:
o the nature of the accused’s defence (alibi);
o those matters of fact on which D takes issue with the prosecution (that D attacked the complainant Stephen Holmes/correctness of the identification);
o why D takes issue (because D was not present);
o any points of law D wishes to take including authority in support (breach of Code D on Identification/s.78 PACE);
o particulars of alibi witness (D’s mother’s name, address and date of birth).
- Disclosure failure by the defence
o A number of consequences may follow, where a defendant in the Crown Court:
fails to serve a defence statement
fails to do so within the required time limits
serves a defence statement which is deficient in its content (such as not adequately setting out the defence relied on at trial or not including an alibi witness called at trial)
relies on a defence at trial which is different to that contained in the defence statement
fails to give notice of defence witnesses.
o Under s.11 CPIA the jury may draw such adverse inferences as appear proper against the defendant for such a failure although a defendant cannot be convicted solely or mainly on the basis of such an adverse inference.
o In addition, the prosecution or co-defendant may comment on such failure without the leave of the court, other than where it relates to a point of law where leave is required.
o Section 6E(2) CPIA provides that a judge can warn the defendant at the PTPH or other pre-trial hearing that failure to comply with the relevant provisions may lead to comment being made or adverse inferences being drawn.
o Similarly, the A-G’s Guidelines state that ‘Prosecutors should challenge the lack of, or inadequate, defence statements in writing, copying the document to the court and the defence and seeking directions from the court to require the provision of an adequate statement from the defence.’ (para 33).
o Section 11 CPIA contains the only sanctions available to the court for failure by the defence to comply with its duties of disclosure. Accordingly, for example, it is not open to the court to prevent a defendant calling an alibi witness D has failed to include in a defence statement. The appropriate sanction here is comment/adverse inference.
o However, if the choice is made to serve a defence statement in the magistrates’ court, an adverse inference could be drawn for the same reasons as in the Crown Court, such as for serving it out of time or for putting forward a different defence at trial to that contained in the defence statement.
o In the magistrates’ court, no adverse inference can be drawn against a defendant for failing to serve a defence statement because there is no duty to do so under the CPIA.
o If a defence statement is not served in the magistrates’ court or the Crown Court the defendant will not be able to make an application for specific disclosure under s.8 CPIA.
o Moreover, failure to serve a defence statement in either the magistrates’ court or the Crown Court will mean that the prosecution will not have the opportunity to review disclosure in light of the issues that would otherwise have been set out within them.
- the continuing duty of disclosure by the prosecution
it lasts until the defendant is convicted, acquitted or the prosecutor decides not to proceed with the case.
- applications for specific disclosure
defence can make an application to the court where it has reasonable cause to believe that there is prosecution material which should have been disclosed, as long as a defence statement has been served and the prosecution have either provided further disclosure or notice of no further disclosure.
- failure to disclose by the prosecution
can lead to abuse of process applications, quashed convictions, wasted costs orders, refusal to extend custody time limits, exclusion of evidence.
- third party disclosure
if there is material held by third parties that might be considered capable of undermining the prosecution case or of assisting the case for the accused, then prosecutors should take appropriate steps to obtain it. Where material is requested from a third party but access or disclosure is refused, the prosecution can consider seeking a summons for production of the material.
- public interest immunity
the prosecution must make this application if it does not wish to disclose material, believing that to do so would give rise to a real risk of serious prejudice to an important public interest.
- Applications for specific disclosure
o Under s.8 CPIA the defence can make an application to the court where it has reasonable cause to believe that there is prosecution material which should have been disclosed under s.7A(5) CPIA (namely disclosure following service of the Defence Statement) but which has not been disclosed.
o This is commonly known as a ‘section 8 application’ or an ‘application for specific disclosure’.
o To make an application for specific disclosure, the defendant must have served a defence statement (in the magistrates’ court or the Crown Court) and the prosecutor must have either provided further disclosure in light of that Defence Statement or notified the defendant there is no further disclosure to be made (s.7A(5) CPIA).
Note that failure to serve a defence statement (even in the magistrates’ court where there is no statutory obligation to do so) will mean that an application for specific disclosure cannot be made.
o As such the defence statement must set out the issues clearly as a prerequisite to applying under s.8 for specific disclosure. The procedure is governed by CrimPR r.15.5 – the defendant must serve the application on the court and the prosecution. The application must describe the material the defendant wants to be disclosed and explain why there is reasonable cause to believe:
that the prosecutor has the material; and
that it is material that should be disclosed under the CPIA.
o The defendant should ask for a hearing if one is required and explain why it is needed. The prosecution has 10 business days to respond in writing to any such application.
o It is worth noting that applications of this nature should be seen as a last resort. Discussion and co-operation between the parties outside court is encouraged in order to ensure that the court is asked to make a ruling only when strictly necessary.
What should D do in response of * Disclosure failure by the prosecution?
· The defence could bring an application to stay the indictment on the ground that to continue the case would be an abuse of process of the court.
· It could result in a conviction being quashed on appeal due to being unsafe.
· It would be likely to result in delay and the imposition of wasted costs for unnecessary hearings or a refusal to extend custody time limits.
· It could also potentially result in the exclusion of evidence in the case due to unfairness.
o Prior to making any such formal application the defence should write to the prosecution specifying the material which they seek and make a formal application for specific disclosure. Particularly in large and complex cases, legal representatives are encouraged to cooperate.
First hearings: summary only offences - procedure?
person being arrested and brought before the magistrates’ court. In the alternative, the magistrates’ court issues a written charge and requisition to secure their attendance.
* They are asked to enter a plea:
If they plead guilty, the court moves to sentence.
If they plead not guilty, there is a trial and the court comes to a verdict.
If the verdict is guilty, the defendant must be sentenced.
If they are not guilty, the defendant is acquitted of the charge and is free to go.
* A person who is sentenced following either a guilty plea or verdict may appeal.
- If the defendant pleads guilty the court will proceed to sentence. Sentence will often be passed immediately but can be adjourned for further information. The
- If the defendant pleads not guilty then the court will set a trial date and do any necessary case management to ensure that the trial is effective on that date. This includes completing the case progression form ‘Preparation for Effective Trial form’ (‘PET’):
the defendant’s and legal representative’s contact details;
names, numbers, types of witness and which party requires their attendance at court;
the estimated length of trial;
identification of trial issues;
advance warning whether any applications are to be made (e.g. special
measures, bad character and hearsay);
whether any prosecution statements can be read;
whether any special arrangements need to be made
(e.g. interpreter, wheelchair access, hearing loop system) for anyone attending the trial, and that the defendant advocate has advised D of credit for early guilty plea and
that trial will go ahead in D’s absence if D fails to attend on the trial date. - Setting out what the issue(s) at trial will be and which witnesses are required to give live evidence allows the court to actively manage the case, by ensuring that only those witnesses whom the defence want to challenge on their evidence come to court.
- The court should set a timetable for the trial and an estimate of how long the trial will take. Magistrates’ courts are encouraged to scrutinise with the utmost vigour any time estimate in excess of a day for a summary trial.
- Most courts have standard directions about how the parties should prepare the case. These standard directions must be complied with unless the magistrates direct otherwise.
- Directions (standard or otherwise) usually concern issues pertaining to bad character evidence, hearsay evidence, special measures to protect witnesses when they are giving evidence, disclosure, expert evidence, editing transcripts of interviews and serving certificates of readiness for trial. The magistrates’ court also has a case progression officer to monitor directions made by the court. In addition, both CPS and defence advocates must indicate a nominated person in their respective offices who will be responsible for complying with the directions.
- Funding overview
o Defendants in criminal proceedings can either fund their defence privately or make an application to the Legal Aid Agency for public funding.
o The availability of public funding has decreased sharply over the last decade and litigants in person are more common now than they once were.
o An application for funding must be made on the prescribed form which asks for a number of personal details, including a detailed breakdown of income and expenses. Evidence is almost always required to substantiate the financial information that a defendant states on the form. A designated official at the magistrates’ court considers applications. The official uses a two-stage test based on whether it is in the interests of justice and considering the defendant’s means. Both parts must be satisfied for public funding to be granted. Section 17 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 sets out the criteria that comprise the ‘interests of justice’. Factors such as the likelihood of a defendant losing their liberty or being unable to understand proceedings must be taken into account. The means test requires a defendant’s means to be below a prescribed amount which varies from time to time.
o Defendants are not able to make an oral application directly to a judge or lay magistrates save for particular circumstances:
a An application can be made to the lay magistrates where legal aid has been refused by the designated official.
An application can be to a Crown Court judge where a person is charged with contempt of court, where a person is in breach of a court order and there is no time to instruct a solicitor or where a defendant is brought to court on a warrant for their arrest.
* These three circumstances share the characteristics that they arise with some urgency and it allows the court to appoint counsel to represent an individual immediately
- What are the classification of offences?
a)Summary only offences;
b)’Either-way’ offences (also known as ‘indictable’ offences, in other words, capable of being tried on indictment); and
c) ‘Indictable only’ offences.
- Duty to not mislead the court
o CCS 1.4 states that, ‘You must not mislead or attempt to mislead your client, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client).
o If your client insists on a course of action which would or could lead to you misleading the court then you would have to stop acting for him.
o CCS 2.1 You do not misuse or tamper with evidence or attempt to.
o CCS 2.2 You do not seek to influence the substance of evidence, including generating false evidence or persuading witnesses to change their evidence.
o CCS 1.4 You must not call a witness whose evidence you know is untrue.
o CCS 2.7 you must draw to the court’s attention relevant cases and statutory provisions or procedural irregularities of which you are aware and which are likely to have material effect on the outcome of proceedings
- The guilty client…
D entering a not guilty plea is NOT in itself misleading the court. The defendant is perfectly within their rights to sit back and wait for the prosecution to do just that. It may well be that the prosecution is unable to prove a vital element of the offence with which the defendant is charged. Provided the defendant does nothing to actually maintain their innocence your position as their solicitor is not in jeopardy.
You are not misleading the court as you are not allowing them to put forward false evidence. If, however, you conducted the case in any way as to suggest they had not committed the crime then you would be misleading the court; for example, by suggesting to a prosecution witness that they were mistaken in their identification of the defendant (when clearly they were not…)
Funding - police station advice
o All suspects are entitled to free legal advice at the police station regardless of their means.
- Public funding for representation at court
o Entitled to legal aid (free legal advice) if they plead guilty at first appearance and it is an imprisonable offence
o Once your client has been charged you need to arrange funding for their court appearance.
o If they are not paying privately then the cost of their defence may be covered by public funding through the Legal Aid Agency.
o In order to obtain a ‘representation order’ a defendant must pass two tests:
the means test; and
the merits test (the ‘interests of justice’ test)
- The means test
o Some defendants are ‘passported’ meaning they automatically pass the means test and do not have to complete the Financial Statement for Legal Aid in Criminal Proceedings (CRM 15) form:
defendants under 18 years of age; and/or
those on specified welfare benefits such as Universal Credit and income-based jobseeker’s allowance.
* All other defendants have to demonstrate their eligibility but the means test differs depending on whether the case is tried in the magistrates’ court or Crown Court.
- The means test- magistrates’ court
o An initial assessment works out their weighted gross annual income i.e. the applicant’s gross annual income is generally added to any partner’s (unless the partner is the complainant, a prosecution witness or a co-defendant in conflict with the applicant). A weighting is applied to take into account the number of people living in the household. Once this figure is calculated the applicant will:
Be eligible for public funding- if below the lower threshold i.e. at present if the weighted gross annual income is £12,475 or less
Be ineligible for public funding- if above the upper threshold i.e. at present, if the weighted gross annual income is £22,325 or more
Be required to undertake a full means test (form CRM15)- if in between the lower and upper thresholds i.e. at present, more than £12,475 and less than £22, 325. The full means test will establish the applicant’s annual household disposable income- if it is below the threshold the applicant will be funded (at present if the annual household disposable income threshold is £3,398 or less).
The applicant can apply for an eligibility review if they have failed the means test or hardship review if for example they have unusually high outgoings or defence costs.
- The means test- Crown Court
o The applicant is assessed on their income and capital, including any equity in properties owned by the applicant.
o After a combined capital and equity allowance of £30,000, applicants can be required to contribute any balance towards their defence costs.
o The outcome of the assessment may require defendants to pay:
All
some; or
none of the costs of defending their case.
o If a contribution towards their defence costs are required, it can come from income (payable throughout the case) and/or capital (payable at the end, if any income contributions have not covered the defence costs).
o In relation to the applicant’s annual household disposable income, the applicant will be:
ineligible for public funding- if above the eligibility threshold i.e. £37,500 or more at present.
eligible for public funding without any contribution- if below the threshold i.e. £3, 398 or less at present.
eligible for public funding with a contribution- if in between the thresholds i.e. between £3,399 and £37,499.99 at present. The income based-contribution is 90 percent of disposable income for a maximum of six months in instalments and subject to a maximum based on the type of offence (refunded with interest if the defendant is acquitted).
o The applicant can apply for an eligibility review if they have failed the means test or a hardship review if subject to a contribution order e.g. if the applicant suspects an error or circumstances have changed.
- The merits test
o In order to pass the merits test the defendant must complete a form (CRM14- Application for Legal Aid in Criminal proceedings) in order to demonstrate that it is in the interests of justice for them to be legally represented.
o defendant will automatically pass the interests of justice test if:
charged with an indictable-only offence;
or an either-way offence is later sent to the Crown Court.
o The interests of justice test requires the defendant to provide information in support all or some of the 10 propositions in the application form. The purpose of the 10 propositions is to evaluate whether the matter is so serious or complicated that the defendant could not conduct their own defence.
- The 10 propositions
o 1. I will lose my liberty
o 2. 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.
o 3. It is likely I will lose my livelihood
o 4. It is likely I will suffer serious damage to my reputation
o 5. A substantial question of law may be involved
o 6. I may not be able to understand the court proceedings or present my own case
o 7.Witnesses may need to be traced or interviewed on my behalf
o 8. The proceedings may involve expert cross examination of a prosecution witness
o 9. It is in the interests of another person that I am represented
o 10. Any other reasons
- When the representation order is granted
o Once a representation order is granted, a solicitor can start working on preparing the case in the magistrates’ court and in due course, will be able to claim for:
Preparation, including taking instructions, interviewing witnesses, assessing the prosecution case, advising on plea and mode of trial, preparing and perusing documents, dealing with letters and telephone calls which are not routine, preparing for advocacy, instructing counsel in the Crown Court, instructing expert witnesses, conferences, consultations, views, and work done in connection with advice on appeal or case stated.
Advocacy, including applications for bail and other applications before the court.
Routine letters and telephone calls.
- Fails means or merits tests
o If the defendant:
Fails the means test- there is no right of appeal but they can submit another form if their circumstances have changed.
Fails the merits test in the magistrates’ court- they can submit another application and if unsuccessful, can appeal to the magistrates’ court.
If the defendant fails either or both tests they may consult with the duty solicitor, provided they are charged with an imprisonable offence. However, the duty solicitor can only represent them on one occasion – usually the first hearing at court.
Defendants can instruct a solicitor privately if they do not qualify for public funding.
Alternatively, the defendant would have to represent themselves with the assistance and support of the court.
Summary only offences
Assault
* Battery
* Simple criminal damage where the value is £5,000 or less is treated as summary only.
An attempt to commit simple criminal damage £5,000 or less is treated as summary only.
Attempt to commit a summary only offence
* Assault and battery cannot be the object of a criminal attempt (as summary only offences).
Either-way offences
Theft- s 1 Theft Act 1968
* Burglary- s 9(1)(a) or s 9(1)(b) Theft Act 1968
* Fraud:
- by false representation
- by abuse of position
- by failing to disclose
* Assault occasioning actual bodily harm- s 47 Offences Against the Person Act (OAPA) 1861
* Wounding or inflicting grievous bodily harm- s 20 OAPA 1861
* Simple criminal damage where the value exceeds £5,000
* Simple arson
Attempts to commit either-way offences will be triable either way.
Indictable only offences (key authorities)
- Robbery- s 8 Theft Act 1968
- Wounding or causing grievous bodily harm with intent- s 18 OAPA 1861
- Aggravated burglary- s 10 Theft Act 1968
- Aggravated arson
- Aggravated criminal damage
- Murder- where a verdict of voluntary manslaughter can be a possible outcome
- Involuntary manslaughter:
- unlawful act manslaughter
- manslaughter by gross negligence
Attempts to commit indictable only offences will be triable only on indictment.
The scope of a representation order
The representation order granted to a defendant for a summary- only matter, or an either-
way matter which is dealt with by the magistrates’ court, will cover all the work done by
the solicitor in connection with those proceedings in the magistrates’ court, and may be
extended to cover an appeal to the Crown Court against conviction and/ or sentence. If, for
an either- way matter, the magistrates decline jurisdiction or the defendant elects trial in the
Crown Court (see Chapter 6), the representation order will extend automatically to cover the
proceedings in the Crown Court. A representation order granted in respect of an offence that
is triable only on indictment will cover proceedings in both the magistrates’ court and the
Crown Court.
The role of the defence solicitor at the first hearing
The solicitor’s role at this stage involves taking the following steps:
(a) obtaining funding from the LAA to pay for the work they will do on their client’s behalf
(unless the client is paying for their legal costs privately);
(b) obtaining details of the prosecution case from the CPS (for summary and either- way
offences);
(c) taking a statement from the client;
(d) advising the client on the strength of the prosecution evidence and the plea the client
should enter (for summary and either- way offences); and
(e) in the case of an either- way offence where the client is indicating a not guilty plea,
informing the client that their case may be dealt with either by the magistrates’ court or
by the Crown Court, and advising the client about the advantages and disadvantages of
each court; and
(f) making an application for bail, where necessary
Advising a client on plea
After the solicitor has obtained details of the prosecution case, the defendant’s solicitor will
then need to take further instructions from their client. The following matters will have to be
discussed:
(a) The client’s response to the prosecution case. Each prosecution witness statement needs
to be discussed with the client and an accurate note taken of any points of dispute. This
note should then be added to the client’s statement. The solicitor should also listen to
the record of the audibly recorded interview to check that the transcript which has been
provided is accurate. If the client made any admissions when interviewed, the solicitor
needs to take instructions from the client – are the admissions correct, or did the client
make admissions because of the manner in which the interview was conducted or just to
get out of the police station as quickly as possible? Does the client come across well on
the audio recording (in which case, should the solicitor ask for the interview to be played
out at trial rather than the transcript being read out)? Are there grounds on which an
application may be made to the court to exclude the interview record from being used in
evidence at trial? (See Chapter 9.)
(b) The strength of the prosecution case. Whilst it is the client’s decision as to the plea they
will enter, if the prosecution case is overwhelming, the solicitor should inform the client of
this and remind the client that they will be given credit for entering an early guilty plea
when they are subsequently sentenced
(c) Whether it is necessary to obtain any further evidence in support of the defendant’s case.
For example, in light of the prosecution evidence which has been disclosed, the client
may recall the identity of other witnesses who could give evidence on their behalf.
(d) 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 (see below).
The ultimate decision the client will need to take once the CPS has disclosed details of its
case is what plea to enter. This is the client’s decision, not the solicitor’s. As mentioned in
(b) above, 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.
Advising a client trial venue
If the magistrates consider that an either- way case is suitable for summary trial, the defendant
will then have a choice as to whether they want the trial to take place in the magistrates’ court
or the Crown Court. The defendant’s solicitor must advise them about the factors in favour of
each venue.
