Criminal Practice 3: First Hearing Flashcards
What happens for each type of offence in the first hearing (general)?
Summary only
- D pleads guilty or not guilty
- if guilty court proceeds to immediate sentence unless pre-sentence report needed
- if not-guilty date for trial set (6-8 weeks) and disclosure order will be make
Either Way
- court proceeds to plea before venue process
Indictable Only
- immediately sent to Crown Court
What is the role of solicitor at first hearing (general) ?
- Obtaining disclosure from prosecution
- can be sought pre hearing if representation order is in place - Taking instructions from the client
- on response to prosecutions disclosure (including comment on witness statements) - Advising client
What must solicitor advise client on during first hearing?
- the strength of the evidence against the defendant and likelihood of conviction
- the likely sentence if convicted, including credit for an early guilty plea
- steps needed to prepare the defendant’s case (such as obtaining further evidence); and
- court procedure, particular on advantages and disadvantages of Magistrates vs Crown court trail for D intending to plead not guilty on either way offence
IMPORTANT
- should not say how to plead only advise on above
What is a representation order and how is it applied for?
Must be applied for unless D is privately funded.
General Test to be satisfied:
- interest of justice test; and
- means test
What is considered when deciding on the interest of justice test for representation order satisfied?
Whether D is likely to lose their liberty or livelihood, or suffer serious repetitional damage
- look at seriousness and nature of offence
- previous good character
Whether the case requires the determination of a substantial question of law
- more likely if case involves challenging identification evidence, hearsay evidence, bad character evidence or inference of silence
If D is unable to understand the proceedings or state their own case
- look at age, language skills/English skills
If the case may involve tracing witness, interviewing them or expert cross-examining them
If it is in the interest of another person
- eg cross examination of complainant
What is considered when deciding on the means test for representation order satisfied?
Automatically satisfied if:
- under 18
- receive income support, job seekers allowance, state pension or income related support allowance or benefits
Otherwise:
- D needs to prove (by relevant documentation) that their means are sufficiently low to qualify for legal aid
- current threshold is £3,398 PA disposable income
What happens (step by step) in a plea before venue?
- Charges read out
- clerk explains D may indicate plea and if they plead guilty court will proceed to sentencing
- clerk asks D if they would plead (guilty/not guilty)
- If D indicates guilt then court proceeds to sentence
- if D indicates not guilty or does not give indication court proceeds to allocation
What are the advantages of the Magistrates and Crown court for defendant?
Magistrates
- limited sentencing power (6 months imprisonment for one offence)
- speed and low cost of process
- less stringent disclosure requirements on defence
Crown Court
- higher rate of acquittals
- for effective process for challenging admissibility of evidence
- longer delay before trial (more practical to gather evidence)
What does the magistrates court consider when deciding how to allocate a case?
- D’s previous convictions
- if their sentencing powers are adequate
- representations by the defence and prosecution on mode of trial and the adequacy of sentencing powers
If court accepts jurisdiction decision will be put to the defendant
What does it mean for a D to ask for a sentencing indication at first hearing?
When deciding whether to accept summary trail (so in magistrates) or go to crown court D can ask for indication whether sentence would be custodial or non-custodial if they were to plead guilty and accept summary proceedings.
Court not required to give indication
If court does give indication and D changes to guilty plea then court is bound to follow indication.
What is the hybrid approach to allocation in first hearing and when does it apply?
Only for theft up to value of £200
- Magistrates Court cannot define jurisdiction
- D can still elect Crown Court trial
When might an either way offence be sent to Crown Court without plea before venue?
- D or co-defendant is charged with an indictable only offence alongside the either way offence (if appearing on both charges on same occasion must be sent to Crown Court)
- Notice is given by procecution to court that:
- this is serious or complex fraud case; or - that the case involves child witness whose welfare is best protected by crown court
