Criminal Litigation - Plea Before Venue and Allocation (6) Flashcards
What is an overview of the plea before venue and allocation procedure?
Plea Before Venue and Allocation: Defendants charged with either-way offences must indicate their plea before the magistrates court, following which the magistrates will determine whether to retain or remit the case.
(1) IDPC: Prosecution must disclose its initial case (evidence) to the Defendant (Crim PR 8.2).
(2) Either-Way: Includes: s47 ABH; s20 GBH; Simple Arson; Fraud; Burglary; Theft.
How does automatic allocation work for specified offences?
Automatic Allocation: Certain either-way (and summary) offences are remitted to the Crown Court before plea.
Specified Offences: The following offences are remitted if the following grounds are met (ss50-51 CDA 1998).
(1) Serious/Complex Fraud: Serious and complex fraud may be automatically remitted on notice of the Director of Public Prosecutions (usually >£500,000).
(2) Child Abuse: Cases involving assault, threat, cruelty, sexual abuse, or abduction of children may be remitted on notice of the DPP in the interests of the child’s welfare.
(3) Domestic Burglary: Domestic burglary cases are tried on indictment if:
GBH: Offence involved commission or intent to commit GBH.
Violence: Offence involved use or threat of violence upon a person in the dwelling.
Third Strike: Offence would be the defendant’s third conviction for domestic burglary.
How does automatic allocation work for joint offences?
Automatic Allocation: Certain either-way (and summary) offences are remitted to the Crown Court before plea.
Joint Offences: Defendants will be remitted if charged jointly with an adult or child who has been remitted to the Crown Court, including by the co-defendant’s choice following an allocation procedure.
How does automatic allocation work for related offences?
Automatic Allocation: Certain either-way (and summary) offences are remitted to the Crown Court before plea.
Related Offences: Defendants will be remitted for an either-way offence if already being remitted for a related offence punishable by imprisonment or disqualification from driving (i.e. charged with simple assault and GBH from the same event).
Following IDPC, provided they are not automatically remitted, the client should be advised on their plea.
What advice should be given on plea?
Plea Advice: Plea advice will depend on the strength of evidence and effect of early plea.
(1) Evidence: Clients must consider the strength of evidence against them, and evidence in their favour.
(2) Early Plea: Defendants can receive up to a ⅓ reduction in their sentence for an early plea (see sentencing).
Following IDPC, provided they are not automatically remitted, the client should be advised on their plea.
What advice should be given on choice of venue?
Venue Advice: If the Defendant pleads not guilty, and the Magistrates elect to retain jurisdiction, the Defendant can choose whether to have their case heard in the Magistrates or the Crown Court. There are advantages and disadvantages to each:
Acquittal
MC:
Lower rates of acquittal (magistrates hardened).
CC:
Higher rates of acquittal (juries sympathetic).
Challenging Evidence
MC:
Worse (magistrates rule on law and fact, so would see inadmissible evidence).
CC:
Better (Judge rules on admissibility, Jury will not see it if excluded).
Preparation
MC:
Less preparation time.
CC:
More preparation time.
Sentencing Powers
MC:
Lower powers (6 months for one offence, 12 months for consecutive). But can remit to CC.
CC:
Higher powers (whatever the maximum sentence for a given offence is).
Cost
MC:
Generally cheaper (less preparation, legal aid is comprehensive).
CC:
More expensive (more preparation, legal aid not necessarily comprehensive).
Formality
MC:
Less formal.
CC:
More formal (wigs, gowns etc).
Speed
MC:
Generally quicker (time to trial and length).
CC:
Generally slower (longer preparation, longer trials).
Defence Statement
MC:
Defence statement is discretional (less information provided to prosecution).
CC:
Defence statement is mandatory (more information provided to prosecution).
Legal Expertise
MC:
Magistrates have less understanding of the law.
CC:
Judges are generally experts in a given area of law.
What should be done if a client intends to plead not guilty, but admits guilt to the solicitor, conduct issues arise?
Client Admits Guilt: If a client intends to plead not guilty, but admits guilt to the solicitor, conduct issues arise.
(1) Limited Role: The solicitor can put the prosecution to case, but cannot put forward a positive case or allow the Defendant to give false evidence. They must inform the client as such.
(2) Refusal: The solicitor must withdraw for ‘professional reasons’ if they cannot proceed, but should ensure they first advise the Defendant on the merits of pleading guilty. They cannot disclose guilt without express consent.
What is the plea before venue and allocation procedure?
Plea Before Venue and Allocation: The Plea Before Venue and Allocation is the process of the Defendant indicating whether they plead guilty or not guilty, and then the Magistrates determining whether to remit or retain the case.
(1) Invitation: The court reads the charge, ensures IDPC is disclosed, and then invites the Defendant to plea.
(2) Plea: Plea is not mandatory - but silence is taken as ‘not guilty’.
What happens if the client pleads guilty at the plea before venue allocation hearing?
Guilty Plea: The Defendant is treated as having been tried summarily and is convicted following a guilty plea.
(1) Prosecution Facts: The prosecution will give facts of the case and relevant previous conviction details.
Newton Hearing: If the Defendant disputes these facts, the court can either: a) accept the defence facts; or b) host a Newton Hearing to determine which facts to sentence on.
(2) Plea in Mitigation: The defence will offer a plea in mitigation.
(3) Sentence: The Magistrates can sentence (immediately or pending a pre-sentence report), or remit to Crown Court for sentence if they deem that their own powers are insufficient.
Sufficient Powers: Charge warrants no more than 6 months imprisonment.
Insufficient Powers: Charge warrants more than 6 months imprisonment.
>Insufficient means sentence would be clearly in excess of court’s powers, accounting for mitigation and early plea reductions.
(4) Bail: Suspects are granted the same bail or remand conditions as the police granted them, if not sentenced immediately (R v Rafferty).
What happens if the client pleads not guilty at the plea before venue allocation hearing?
Not Guilty Plea: If the Defendant does not plead guilty, the court must determine allocation. The procedure is as such:
(1) Prosecution Facts: The prosecution will offer facts of charge and relevant previous convictions.
(2) Suitability Representations: Both advocates will make submissions as to the most suitable venue.
(3) Allocation Guidelines: Either-way offences should be retained unless sentencing powers are insufficient, with respect to the maximum aggregate sentence of all charges being tried (Sentencing Guidelines).
(4) Allocation: The court can remit the case to the Crown Court, which is final. Alternatively, they can retain jurisdiction of the case - the Defendant may then choose their venue.
>If they choose magistrates’ court, sentencing may still be later remitted to the Crown Court after judgment.
(5) Goodyear Indication: The Defendant can request an indication of their likely sentence if they were to now change their plea to guilty (provided the case is retained).
Effect: Courts must indicate whether a sentence would be ‘custodial’ or ‘non-custodial’.
Change in Plea: If the Defendant changes plea immediately, this indication is binding. If they do not, it is no longer binding.
(6) Election: The effect of election (where permitted) has a number of consequences.
Appeal: The prosecution can appeal to the Crown Court on the basis sentencing would be insufficient.
Joint-Defendants: If the Crown Court is elected (or automatically allocated), both the Defendant and any co-defendants are remitted to the Crown Court.
What happens if the client pleads multiple pleas at the plea before venue allocation hearing?
Multiple Pleas: The Defendant may be asked to indicate pleas on multiple charges.
(1) Not Guilty: Allocation occurs in respect of the not guilty pleas.
(2) Guilty: Magistrates will sentence for the guilty pleas, or remit to Crown Court if powers are insufficient.
