Criminal Practice - First Appearance and Plea Before Venue Flashcards
1
Q
First Appearance
A
- All first appearances take place at the Magistrates’ Court (if over 18)
2
Q
Summary Only Offence
A
- Defendant pleads guilty or not guilty
- Guilty: court will proceed immediately to sentence unless pre-sentence report required
- Not guilty: court will set a trial date (in around 6-8 weeks)
3
Q
Either Way Offence
A
- Plea before venue process
4
Q
Indictable Only Offence
A
- Sent to Crown Court for trial
5
Q
Advising your client
A
Primary task is obtaining disclosure from the prosecution:
- Unless offence is indictable only solicitor will need to obtain disclosure to be able to progress matters at first appearance
- Disclosure can be sought in advance of first appearance if representation order already in place
Taking instructions on prosecution evidence
- Client to provide their account on the prosecution’s disclosure
Advising client:
- Whether they are guilty on their own account and on the strength of the evidence
- Advise on sentence - defendants receive credit for pleading guilty (if plead guilty at first opportunity the defendant receives a 1/3 credit)
- Court procedure
- What evidence defence needs to gather
- Bail
6
Q
Securing funding
A
Unless acting pro bono or client is privately funded solicitor will need to apply to the court dealing with the case for a representation order
Applying for a Representation Order:
- Interests of justice test
- Means test
7
Q
Interests of Justice Test
A
- Looks at how serious the offence is to the defendant charged
- Will defendant go to jail, lose their job or suffer serious reputational damage?
- Does the case require the determination of a substantial question of law?
- Will defendant understand proceedings if unrepresented?
- Will witnesses need to be traced?
- Is it in the interests of another person?
8
Q
Means Test
A
Does defendant have the means to pay for their own legal representation?
- If defendant is under 18 or in receipt claims benefits the means test is automatically satisfied
- Satisfied if income below £3,398 per annum after outgoings
- If income above £3,398 but below £37,500 after outgoings defendant entitled to limited legal aid
- If income above £37,500 after outgoings the defendant is not entitled to any legal aid
9
Q
Plea Before Venue
A
- For either way offences
- Tries to deal with the difficulty that the defendant should not be asked to plead before they know which court is hearing the case but some indication of plea required to know how to deal with case
- Charge read out to defendant, clerk of court informs defendant that they don’t have to indicate plea but if they opt to indicate they would plead guilty court would proceed to sentence
- If defendant indicates guilty the court will proceed to sentence
- If defendant indicates not guilty or does not give an indication the court proceeds to allocate the case to either the Magistrates’ Court or Crown Court
10
Q
Allocation
A
Magistrates’ Court decides whether to accept jurisdiction:
- If decline jurisdiction the case will go to Crown Court
- Court will consider defendant’s previous convictions, whether sentencing powers are adequate (MC can impose a max. 1 year sentence, 6 months for a single offence or 12 months for 2 or more either way offences) and representations made by defence and prosecution of mode of trial and adequacy of sentencing powers
If MC accepts, defendant can choose between MC and Crown Court:
- MC cheaper, quicker and lower sentencing powers
- Less of a burden on defence to disclose any information before trial in the MC
- Crown Court has greater benefits for a defendant intending to plead not guilty (more likely to be acquitted)
- Processes for challenging admissability of evidence much more effective in Crown Court as take place in absence of jury
Defendant accepts trial in MC:
- Matter could still be committed for sentence after trial in any event
Sentencing indication
- Defendant can ask the court for an indication whether the sentence would be custodial or non-custodial if they were to plead guilty and accept summary proceedings
- Court not obliged to give an indication
- If indiciation given and D changes plea to guilty the court is bound to follow this indication
- If indication given but D maintains not-guilty plea the court is not bound to follow the indication
11
Q
Theft: Hybrid Approach
A
- Theft with a value below £200
- Theft is usually an either way offence, however theft with a value below £200 is treated as summary only in that the Magistrates’ Court cannot decline jurisdiction
- However, it is treated as either way in that the defendant can elect for trial to be heard in Magistrates’ Court or Crown Court
12
Q
Indictable Only Offences
A
- Sent straight to Crown Court as Magistrates’ Court does not have jurisdiction
- No plea is entered
- Any other offences charged alongside indictable only offence will also be sent to Crown Court to be dealt with together
13
Q
Advantages of Magistrates’ Court
A
- Limited sentencing powers (6 months for a single offence or 12 monts for 2 or more either way offences)
- Speed and low cost
- Less stringent disclosure requirements on defence (no obligation to serve a defence case statement)
14
Q
Advantages of Crown Court
A
- Higher rates of acquittal
- More effective processes for challenging admissibility of evidence
- Longer delay before trial which makes gathering evidence more practical
15
Q
Sending without Allocation
A
- Sent to Crown Court without plea before venue
- If defendant or a co-defendant is charged with an indictable only offence alongside an either way offence (if appearing on both charges on the same occasion)
- Notice given by the prosecution to the court that the case involves serious or complex fraud or child witnesses whose welfare is best protected by Crown Court trial
- If D pleads guilty the hearing will be listed in the Crown Court as soon as possible
- If D pleads not guilty/does not answer the matter will be listed for a plea and case management hearing
