Criminal 2 - First hearing before mags Flashcards
Only on indictment?
Crown court
Max sentencing
6 months for either-way offence
Aged 17 or under?
Youth court
CJSSS
speed up proceedings
Common presumption plea entered on first hearing
Guilty should take place on same day
Not guilty - trial date within six to eight weeks.
CPS should provide sufficient information at first hearing
Classifications
Indictment
Crown.
Appear at mags but send to crown.
GBH, wounding with intent, rape, robbery aggravated burglary, blackmail, kidnap and conspiracy
Either way -
in both.
Mags decide
D has right to elect,
Theft, fraud, burglary, ABH, sexual assault, affray, threats to kill, criminal damage, dangerous driving, offensive weapon, possession, possession with intent to supply/
Low value shop theft-
below £200
summary-only
If multiple aggregate must be below £200.
Criminal damage
below £5,000 - summary offence - unless by fire
Summary -
only in mags.
Common assault, s4 and 5 public order, taking a vehicle without consent and most road traffic offences.
Public funding
Solicitors make application on behalf from Legal Aid Agency.
Work done claimed under fixed fee under Police Station Advice and Assistance Scheme.
One fixed payment for each no matter of time (unless exceptional circumstances)
Non-solicitors can attend and charge as long as accredited or probationary police station representatives.
Duty on rota.
Claim from LAA (courts of attending court).
Applying for representation order-
D submits only application (CRM14), financial statement (CRM15) with supporting evidence.
a) interests of justice
-likely to lose livelihood or suffer serious damage to reputation
(only where no record for reputation)
-substantial question of law
Disputed ID evidence
Adverse inferences
Hearsay evidence
S76 or 78 that confession should be excluded
adduce at trial previous convictions
-not able to understand
age, vulnerability etc..
-may involve tracing, interviewing or expert cross-examination of witnesses
must explain why e.g. cross-examination of interviewing officer if trying to exclude confession.
Prosecution relying on expert
Cross-examining weak ID evidence
-in interest of another person
sexual or violent, inappropriate to cross-examine victim. Or child.
Any other reasons -
e.g. demanding community sentence.
Defence witness requires skilful examination in chief.
When pleading not guilty.
Statutory presumption that breaking suspended sentence will lead to re-activation.
Means test -
Automatically;
-income support, income-based jobseekers, guaranteed state pension credit, income-based employment and support allowance or UC.
-under 18
If do not must complete form CRM15.
Pay slips, tax returns, bank statements, rental/tenancy agreements.
Deduct from gross income
Tax and NI
Annual housing costs
Annual childcare costs
Annual maintenance to former partners and children
Adjusted annual living allowance.
No right to appeal.
Complete form CRM16 on grounds of hardship.
Crown - contribution
Mags - no contribution to cost.
Cover all work, may be extended to appeal.
If for either-way mags decline extend automatically to Crown.
Granted on indictment - extend to both courts.
Either-way
failed mag means test, funding not start until day after sending hearing and only cover work done in Crown upon passing Crown means eligibility test.
Procedure depends on?
classification of offence
plea enters
level of detail provided by CPS
public/private funding been secured.
Aims of CJSSS means CPS should dislocate.
If adjourned as funding not secured or not enough evidence consider bail or remanded in custody.
Summary -
Plea
Guilty -
facts of case, and relevant convictions. Solicitor then mitigate, sentence or adjourn if waiting for Pre-Sentence Report.
Or adjourn if disputes facts but pleads guilty. (Newton hearing)
Not guilty -
Fix date for trial, issue case management directions. Both must comply.
Either-way -
Plea
Guilty -
whether sentencing powers are insufficient.
Pre-sentence or whether commit to crown for sentence hearing
Not guilty -
whether D to be tried in Mags or Crown (plea before venue and allocation procedure).
Adjourned consider bail or remand.
Indictment -
Straight to Crown after preliminary.
Always adjourned
Bail remand.
Role of solicitor at first hearing
Obtain funding from LAA to pay for work on behalf
Obtain details of case from CPS
take statement from client
Advise client on strength of evidence and plea should enter
Informing of court allocation
Making application for bail.
Plea before venue and allocation of business between magistrates court and crown court
-
Prosecution obligation
D solicitor must see all evidence as soon as possible after defendant charged.
IDPC for all offences.
Unique reference number
Digital case management system
Phone centralised CPS number on the day
Cannot induce evidence without first allowing sufficient time to defence to consider.
IDPC includes -
where in custody
summary of circumstances
criminal records
In all other cases
summary
account given
written witness statement
criminal record
victim impact statement.
Expected to served when released on bail after being charged and expect not guilty.
Should make available unless good reason not to;
-summary of circumstances
-account by D
-statements and exhibits prosecution identified as being of importance
indication of any medical or other expert evidence that prosecution likely to adduce
special measures - bad character, hearsay.
Advising on plea and venue
Each prosecution witness statement needs to be discussed with client.
Accurate note on points of dispute added to client statement.
Check audible recording
If admission why done so.
Grounds to exclude
Should audio be played out (may be incirminating).
Strength of prosecution case
Necessary to obtain further evidence which has been disclosed
Whether they should elect mag or crown.
Still ultimately client decision.
Advising on venue
In favour of crown -
Greater chance of aquital (juries more sympathetic)
Better procedure for challenging admissibility - voir dire in crown.
As mags decide law and fact not the same
Different mags may be used to combat this.
More time to prepare -
if complex
In favours of mags -
Limited sentencing powers -
However retain power to send to crown if facts emerge that makes offence more serious.
Speed and stress -
takes sooner.
Less formal
Prosecution costs -
likely to be ordered to contribute towards CPS (either mag or crown) Higher in crown
Defence costs -
Crown - financial eligibility test
Disposable under £37,500.
Liable for contributions in crown.
No obligation to serve defence statement -
serve on both crown and prosecution a defence form in crown.
Professional conduct
Not guilty when told guilty.
Cannot assert positive defence known to be false
Can still submit no case to answer.
But if D enters witness box and lies, cannot act.
Procedure on indicating plea
Either-way
- charge read out to D by legal adviser, who will check solicitor received IDPC.
-legal adviser tell D they may indicate to court how they would plead if went to trial. (no obligation to indicate).
Ask to indicate plea.
Indicating guilty plea-
Treated as being tried summarily and convicted.
CPS outline fact and previous convictions.
Mitigation
Powers sufficient?
6 months max
12 for two either-way offences max.
Look at SG.
Send to crown as if had been at trial at crown if outside powers.
Remanded in custody or bail.
Not alter position normally.
In custody before likely to still be in custody.
When must send to crown for not guilty plea (ss19-20 and 22AA MGCA 1980) -
D sent to crown for related offence
D charged jointly with adult who is sent to Crown
D is charged jointly or charged with relevant either-way offence with a youth who is sent to crown.
Procedure for allocation
- Prosecution informs court of facts and previous convictions
-Mags consider
Representations made by D or P as to what court
Whether sentencing powers sufficient
MCSG guidelines
Two or more offences. Aggregate sentencing powers.
If crown send to crown
If summary -
Explain
appears suitable
they can consent to either
if consent to summary may be sent to Crown
Indication of sentencing -
Non-custodial or custodial if to be tried summarily.
No court impose unless indicated
Cannot challenge or appeal.
May but need not give indication.
Ask whether they want to reconsider.
Plead guilty treated as being tied summarily.
Generally indication of non-custodial prevent court from custodial.
If stays with not guilty. Indication of sentence not binding.
D consents to summary trial or on indictment.
If D consents to summary shall proceed to summary.
Prosecution can apply for crown court. Only granted if sentencing powers inadequate.
Different pleas
Pleas for different offences.
Proceed with not guilty (allocation)
If accept jurisidiction will then sentence for guilty or adjourn.
Decline jurisdiction
Send not guilty to crown
Either sentence for guilty or commit to crown.
Sending without allocation
Sent straight to crown;
-Notice in serious or complex fraud cases given by DPP under s51B.
Involving children under 51C notice
- assault, child cruelty, sexual offences, kidnapping, false imprisonment and child abduction.
Either way offence related to offence triable only on indictment or one covert by notice under S51B or S51C
If appears later on subsequent occasion, court may send to trial
Where either-way offence related to an offence triable only on indictment or covered by notice under S51 or 51C, in respect of which another D is being sent to Crown Court.
