Criminal Practice (First Hearing & Bail)

Question 1

What is the format for first hearings?

Answer 1

All adult defendants have their first hearing before a magistrate court, irrespective of offence. The case may proceed differently based on the type of offence.

Question 2

What happens at the first hearing for summary offences?

Answer 2

They can only be dealt with in the Magistrates Court, addressing plea, bail, and representation/legal aid, possibly proceeding to sentence.

Question 3

What happens at the first hearing for either way offences?

Answer 3

They can be dealt with in either court, focusing on plea, bail, and representation/legal aid, potentially proceeding to sentence.

Question 4

What happens at the first hearing for indictable only offences?

Answer 4

They can only be dealt with in the Crown Court. The defendant makes a brief appearance to address bail, legal aid, and indication of plea before being sent to the Crown Court.

Question 5

What are summary offences connected to indictable offences?

Answer 5

If charged with an indictable offence and connected summary offences, it must be sent to the Crown Court for trial.

Question 6

What is the timing for a defendant on bail?

Answer 6

The first hearing must be within 14 days of being charged if a guilty plea is anticipated, and 28 days if a not guilty plea is expected.

Question 7

What is the timing for a defendant detained in police custody?

Answer 7

The hearing must be brought before the next available court.

Question 8

What is the general rule for a defendant’s presence at the first hearing?

Answer 8

The defendant must be present; failure to attend after being bailed can lead to a warrant for arrest.

Question 9

What happens if a defendant does not show up?

Answer 9

The court may proceed without the defendant, except in certain cases like allocation of an either way offence or sending to the Crown Court.

Question 10

What is the duty of the prosecution regarding Initial Details of Prosecution Case (IDPC)?

Answer 10

The prosecution must serve initial details on the court officer as soon as practicable, no later than the beginning of the day of the first hearing.

Question 11

What must the prosecution provide if the defendant requests IDPC details?

Answer 11

The prosecution must serve them as soon as practicable, no later than the day of the first hearing.

Question 12

What is the remedy for failure to comply with IDPC?

Answer 12

Typically, failure to comply won’t lead to dismissal; the court may adjourn the hearing and/or award costs to the defence.

Question 13

What should initial details include?

Answer 13

They must include a summary of the offence, any defendant account in interview, written statements, victim impact statements, and the defendant’s criminal record.

Question 14

What happens at the first hearing for summary only offences?

Answer 14

Each party must assist in case management, establish the plea, and determine required information.

Question 15

What occurs if the defendant pleads guilty for a summary only?

Answer 15

The court will proceed to sentence, often immediately, or it may be adjourned.

Question 16

What happens if the defendant pleads not guilty to summary only offence?

Answer 16

The court sets a trial date and conducts case management, including completing the PET Form.

Question 17

What occurs at the first hearing for either way offences?

Answer 17

The defendant will indicate their plea; if guilty, sentencing follows; if not guilty, the court will allocate the case. The maximum sentence a Magistrate Court can impose for summary only offences is a total 6 months imprisonment.

Question 18

What happens if the court considers the plea before venue for an either-way offence?

Answer 18

The defendant is warned that pleading guilty may lead to sentencing by the court or committal to Crown Court for insufficient powers.

Question 19

What is the sentencing limit of magistrates for either-way offences?

Answer 19

6 month imprisonment in respect of any summary only or single either-way offence.

For two or more either-way offences, the magistrate can impose a maximum sentence of 12 months imprisonment.

If the court decide their powers are insufficient, the defendant will be committed for sentence in the Crown Court.

Question 20

Whta happens if D pleads not guilty for an either-way offence?

Answer 20

The court must commit to crown court if (i) the sentencing powers would be insufficient; or (ii) for a reason of unusual legal, procedural or factual complexity, the case should be committed.

If the Magistrates commit the case, the next appearance is in the Crown Court. The defendant has no right to elect a magistrates court trial.

Question 21

What is the indication of sentence process?

Answer 21

The defendant may ask for a sentence indication, which is not binding unless they change their plea to guilty. If they do, it must be confined to noting whether it would be custodial or non-custodial.

Question 22

What should defendants consider for trial election?

Answer 22

Defendants are asked if they consent to trial in Magistrate’s Court or prefer trial by jury in Crown Court.

Question 23

What are exceptions to election for low value shoplifting?

Answer 23

Low value shoplifting (goods valued at £200 or less) allows the defendant to elect for Crown Court trial despite being an either way offence.

Question 24

What is the election position for criminal damage?

Answer 24

If over £5,000 or caused by arson, can only be tried in the Crown Court.

If £5,000 or less, the offence must be dealt with in the Magistrates.

Question 25

What happens when multiple defendants are jointly charged with a summary only offence?

Answer 25

Those who plead guilty usually have their sentence adjourned until after the trial of those who plead not guilty.

Question 26

What is the procedure when defendants are jointly charged with either-way offences?

Answer 26

If any are sent to Crown Court, all defendants must be sent for trial, each entering their plea individually. If there’s a mixture of pleas, those who plead guilty will be sentenced after the trial of those who plead not guilty.

Question 27

What occurs if defendants are jointly charged with an indictable offence?

Answer 27

All defendants are sent to the Crown Court.

Question 28

What is the right to bail?

Answer 28

The court must presume that a defendant is entitled to bail and it is only if an objection is made out that bail can be refused. The right still applies after conviction when the case is adjourned for reports to assist sentencing.

Question 29

What are the grounds for objecting to bail?

Answer 29

Grounds include believing the defendant would (1) fail to attend; (2) commit further offences, or (3) interfere with justice.

Question 30

What happens if one defendant is charged with both summary only and either-way offences?

Answer 30

The court determines the mode of trial; if the either-way matter is sent to Crown Court, all matters are tried together.

Question 31

What are the stages of refusing bail grounds for indictable offences?

Answer 31

Stage 1: Does a **Big 3 **ground apply?
Stage 2: Yes? Are filter grounds satisifed?
Stage 3: No? Do specialist grounds apply?

Filter: Substantial/No Real Prospect

Question 32

What are the big three grounds (indictable)

These are used to object to bail

Answer 32

(1) Fail to attend a subsequent hearing;

(2) Commit further offences on bail; and/or

(3) Interfere with witnesses or otherwise obstruct the course of justice

If one of these apply, and the offence is inditable, ask filter question

Question 33

Does the substantial grounds filter apply

Only ask if one of the big three apply

Answer 33

(1) Substantial Grounds Filter - necessary to show that the fears of the behaviour happening have merit; and

(2) **No Real Prospect Filter **- bail should not be removed if the defendant is charged with an offence where there are no real prospects of the defendant receiving a custodial sentence.

If neither apply, ask whether any specialist grounds for objection

Question 34

Does an additional ground apply?

These act to refuse bail

Answer 34

(1) Remand in custody would be** for the defendant’s own protection**

(2) The court has** insufficient information to deal with the issue of bail**, so remands in custody for a short period for the production of evidence; or

(3)The defendant is already serving a sentence in custody

A big 3 isn’t necessary - these stand on their own.

Question 35

Does a specialist serious offences ground apply?

Answer 35

(1) Bail can be refused for serious cases with high penalties if….

(a) they have a previous conviction of murder, attempted murder, rape or serious sexual offences = No Bail unless exceptional circumstances

(b) if they are charged with the above, with no previous conviction, no bail unless **no signifiant risk **of D causing an offence likely to injure

A big 3 isn’t necessary - these stand on their own.

Question 36

Does a specialist risk ground apply?

Answer 36

(1) Offence against family/partner: No Bail if substantial grounds for believing D will commit an offence on bail by engaging in conduct to cause mental/physical injury

(2) Abuse of Drugs: No bail if D has class A drugs in their body, and the offence relates to the Class A drugs. Unless no significant risk of bail offence

Question 37

What are the grounds for objecting to bail for** non- imprisonable offences?

Answer 37

(1) D* has been convicted* and
(2) D breaches a condition of that bail, and are arrested under s.7 Bail Act; or
(3) has a conviction for ‘fail to surrender’ in their past

The big 3 grounds don’t apply. However, consider additional/specialist

Question 38

Does a specialist ground for** Bail Infringment** apply?

Answer 38

If D was on bail at the time of the alleged offence and…

(1) D committed an indictable offence = need not grant bail

(2) D committed a summary imprisonable offence = need not grant bail if there are substantial grounds for believing D may commit another offence

(3) D absconds whilst in bail for an indictable offence = bail need not be granted again

Question 39

What are the grounds for objecting to bail for** imprisonable summary only** offences?

Answer 39

(1) D, having been given bail, breaches a condition of that bail, are arrested under s.7 Bail Act; or

(2)** Has a conviction for ‘fail to surrender’** in their past (FTS)

The big 3 grounds don’t apply. However, consider additional/specialist

Question 40

What does the presumption of bail entail?

Answer 40

The court must presume the defendant is entitled to bail unless substantial objections are made.

Question 41

What happens if bail is denied?

Answer 41

The defendant can be remanded in custody or in the community, with the prosecution presenting objections.

Question 42

What factors are considered when objecting to bail?

Answer 42

Factors include the nature of the offence, defendant’s character, bail record, and evidence strength.

Question 43

What are common bail conditions?

Answer 43

Conditions may include residence at a given address, curfew, reporting to police, surety, security, and restrictions on movement.

Question 44

What happens if bail conditions are breached?

Answer 44

The defendant may be arrested, and breaching bail conditions can lead to tightened conditions or remand in custody.

Question 45

What is the procedure for applying for bail?

Answer 45

If denied bail by police, the defendant appears in court where the defence advocates for bail, and reasons must be given for refusal.

Question 46

How many attempts can a defendant on trial in the magistrates crown court make for bail?

Answer 46

One attempt at bail at first hearing and one application in the Crown Court

Question 47

How long are custody time limits?

Answer 47

• Trail in Magistrates Court: 56 Days
• Trial in Crown Court: 182 days (minus) any days spent in custody prior to going to Crown Court

The trial must commence before the custody time limit expires. I

Question 48

What are the onward remand rules?

Answer 48

• First appearance
• First remand must be no more than **8 clear days ** after first apperance
• D must be brought back to court every 28 days after the first appearance for remand onward to trial.

Question 49

What is the plea before venue process?

Answer 49

The court advises the defendant of the maximum sentence, allowing for a decision on whether to plead guilty or not guilty.

Question 50

What happens if a defendant pleads guilty at the plea before venue stage?

Answer 50

The case will proceed to sentencing in the Magistrates Court.

Question 51

What occurs if the defendant chooses a jury trial?

Answer 51

If the defendant opts for a jury trial, the case is transferred to the Crown Court.

Question 52

What must the prosecution disclose to the defence?

Answer 52

The prosecution must disclose all relevant material that might assist the defence.

Question 53

What is a case management hearing?

Answer 53

A hearing where both parties discuss the case’s progression, evidence, and any outstanding issues.

Question 54

How does a trial begin?

Answer 54

A trial begins with opening statements from both the prosecution and the defence.

Question 55

What is the role of the jury in a trial?

Answer 55

The jury listens to the evidence and determines the verdict based on the facts presented.

Question 56

What happens after the trial concludes?

Answer 56

The jury delivers a verdict, and if found guilty, the court proceeds to sentencing.

Question 57

How fast will a Crown Court hear a bail appeal?

Answer 57

No later than one business day after the appropriate notice is served (within 48 hours) excluding weekends.

Question 58

What is the sentencing process?

Answer 58

The judge considers various factors, including the severity of the crime, victim impact statements, and previous convictions.

Question 59

What is the maximum weighted annual income threshold for legal aid in the magistrates’ court?

Answer 59

£22,325

Question 60

When considering the merits of a legal aid representation order, what factors may lead to it being granted?

The interests of justice test

Answer 60

• Loss of liberty
• Risk of loss of livelihood and reputation.
• A substantial question of law may be involved.
• D may not understand the court proceedings or present their own case.
• D may need witnesses to be traced or interviewed on their behalf.
• The proceedings involve expert cross-examination

Question 61

When can a defendant use the free court duty solicitor?

Answer 61

Representation at court by a duty solicitor is free and not subject to a means or merits test.

Defendants need not be in custody as long as they have been charged in connection with an imprisonable offence

A duty solicitor may not represent someone in connection with a trial or for more than one hearing. However, representation at the first hearing is permitted.

Question 62

Will a minor (below 18) be subject to the means test for legal aid?

Answer 62

No. Some applicants are ‘passported’ and automatically satisfy the means test.

‘Passported’ applicants include those under 18, so there will be no assessment of income.

Question 63

Is breaching a bail condition an offence? What can the court do?

Answer 63

Where a defendant fails to comply with one of their bail conditions, the police have the power to arrest them and bring them before the court.

Breaching a bail condition is not a criminal offence and so does not attract a separate charge. W

Where the breach is proved or admitted, the court will reconsider bail and may remand the defendant in custody or impose further, more onerous, conditions.

Question 64

If the defendant fails to surrender when they are due in court, but they were in hospital, what happens/

Answer 64

The defendant will have a defence to the offence of failing to surrender to custody, if she can prove that she had a reasonable cause by being in hospital.

The burden is on the defence to raise and prove the defence

Question 65

What is the burden of proof for the defence of insanity?

Answer 65

A reverse burden.

D needs to prove on the** balance of probabilities** that he was insane at the time of the offence.

Question 66

What type of burden is the partial defence of loss of control?

Answer 66

Evidential burden on the Defendant

Question 67

What type of burden is the partial defence of diminished responsibility?

Answer 67

The legal burden of proving diminished responsibility rests with the defendant, there is not simply an evidential burden upon them.

The defence, however, only has to be proved on the balance of probabilities

Question 68

What does circumstantial evidence require?

Answer 68

Circumstantial evidence requires the court not only to accept the witness’s account, but also to draw an inference from the evidence.

Question 69

Why is forensic evidence of blood on clothing only circumstntial?

Answer 69

It requires the court to accept the evidence and draw the inference that the evidence means the man was in close proximity to the victim at the time of the crime.

It is not direct evidence.

Question 70

What burden dpes a defendant have when raising self defence?

Answer 70

If the defendant wishes to rely on self-defence the defence has the evidential burden to raise the issue of self-defence

Once that evidential burden is discharged, the prosecution will then have the legal burden of disproving self-defence beyond reasonable doubt

Question 71

What is the usual outcome of breaching a bail condition (whether imposed by the police or the court)?

Answer 71

Although breaching a bail condition does not amount to a criminal offence, it will almost certainly result in his arrest and he will then be detained in police custody and must be brought before the magistrates’ court within 24 hours.

The magistrates’ court will then decide whether to remand the man in custody, or grant bail with or without conditions pending his next substantive hearing.

Question 72

A taxi driver is punched int he face whilst driving

It was unprovoked

What factor is the court likely to consider an aggravating feature?

Answer 72

An offence committed against those who are providing a service to the public

This includes taxi drivers.

Question 73

D is remanded in custody by the Magistrate and the case is sent to the crown court.

Can he appeal the decision to refuse bail? To whom?

Answer 73

The defendant’s case has now been sent to the Crown Court and so the magistrate’s court will no longer have jurisdiction to hear a further bail application.

His best option is to appeal against the bail decision to the Crown Court.

Question 74

A boy, aged 14, has been charged with robbery. The boy does not suffer from any recognised medical condition but his mental age has been assessed as that of a 9-year-old and he is distressed at the prospect of having to testify at trial.

If the boy does not testify, will it be appropriate for an adverse inference to be drawn from his silence at trial?

Answer 74

Yes

This is because istress about testifying will not be sufficient to engage s 35(1)(b).

This exception provides a statutory exception to the drawing of such an adverse inference where ‘it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence’.

Question 75

Where can the custody officer authorise a boy aged 10 to be remanded following charge?

There is no local authority secure accommodation available.

Answer 75

The boy can only be remanded to other local authority accommodation because he is under the age of 12.

Had the boy been aged 12 or over, the boy could have be remanded at the police station, kept separate from adult suspects and not be detained in a cell unless it is not practicable to supervise him - often called a juvenile detention room.

Question 76

How long do people normally serve their sentence for?

Answer 76

A prisoner will generally be released after serving half their sentence

Question 77

Why might cooperation with the police at first interview be advisable if there is no defence to put forward?

Answer 77

Because, at sentencing, such a defendant is likely to be given credit by the court for their cooperation with the police at the first interview.

Question 78

What is operation of the evidential burden on the defence when raising the defence of alibi?

Answer 78

The woman can discharge her evidential burden, putting some evidence of her alibi defence before the court, by testifying at trial.

Question 79

Who must authorise an interview to proceed in the absence of the solicitor and make an entry in the custody record if the suspect changes their mind regarding legal advice?

Answer 79

Written authority can only be given by an officer not below the rank of inspector.

Question 80

Can two suspects appear in the same video identification procedure?

Answer 80

Yes

Where two suspects of roughly similar appearance are shown in the same images, they may be shown together with at least 12 other people

This means there must be at least 14 people shown (12 + the two suspects)

Question 81

Who must authorise the removal of an appropriate adult?

Answer 81

Such a removal can only be authorised by an officer not below the rank of superintendent

If such an officer is not available, an officer not below the rank of inspector

Question 82

What is the general rule where

• a suspended sentence order is imposed and
• a further offence is committed during the operational period of the order

in relation to sentence?

Answer 82

A custodial sentence to be imposed for the present offence (assuming it is imprisonable) and the suspended sentence will be activated to run fully and consecutively with this sentence.

However, the sentencing court does have some discretion to impose other sentences

Question 83

What type of offence is common assault?

Answer 83

Summary Only

Question 84

Your client is 40 years old and has been charged with common assault.

Where will proceedings be commenced and thereafter?

Answer 84

Assault is a summary only offence and is therefore only capable of being tried and sentenced in the Magistrates’ Court.

Any appeal will be made to the Crown Court.

Question 85

What type of offence is robbery?

Answer 85

Robbery is an indictable only offence

The matter will be dealt with in the Crown Court

Question 86

When is Case Management conducted?

Answer 86

A case management form will be completed at the first hearing in all cases when a not guilty plea has been entered, in order to identify the issues in the case and prepare the matter for effective trial.

Case management is not required in the same way if the client enters a guilty plea.

Question 87

Where the magistrates’ court has withheld bail, by when should the defendant appeal to the Crown Court by submitting a notice of application to appeal the decision on bail?

To whom?

Answer 87

As soon as practicable after the magistrates’ court decision.

The application should be submitted to the
* Crown Court
* Magistrates’ court; and
* The prosecutor.

Question 88

Who bears what burden in relation to no case to answer?

Answer 88

A submission of no case to answer is made at the end of the prosecution’s case and the prosecution bears an evidential burden.

Question 89

What happens if D fails to attend the magistrates court for trial and has no excuse.

Answer 89

It is likely that the defendant will be tried in his absence and if convicted, his sentence can be passed.

Question 90

What will happen if the jury is unable to reach a majority verdict?

Answer 90

The judge will discharge the jury and it will be for the prosecution to determine whether there will be a re-trial.

Question 91

When can the defence make an opening speech at the start of the defence case in the crown Court?

Answer 91

Only where the defence intends to call any witnesses of fact other than, or in addition to, the testimony of the defendant

Question 92

The jury retires but after two hours of deliberation, they still cannot reach a unanimous verdict in a complicated murder trial.

How will the judge direct the jury to proceed?

Answer 92

As the case has been lengthy and complicated, the judge may allow more time for the jury to deliberate and attempt to reach a unanimous verdict.

If the judge decides that they are willing to accept a majority verdict, the jurors are directed that they should continue to reach a unanimous verdict but, if they cannot, a majority verdict of at least 10:2 will be accepted.

Question 93

If someone has three previous convictions for domestic burglary since 1999, where is the case dealt with?

Answer 93

The court must send the case to the Crown Court since statute requires a minimum custodial sentence of three years unless there are exceptional circumstances.

Triable only on indictment

Question 94

If criminal damage is of a value more than £5,000 how is it treated?

Answer 94

If over £5,000 the offence is either way and the court will apply the Allocation Guideline

The magistratest may accept or decline jurisdiction, but if it accepts jurisdiction the D may choose a Crown Court trial.

Question 95

If the criminal damage is £5,000 or less, where must the case be tried?

Answer 95

Summarily - In the Magistrates, no right of election.

Question 96

If D damages a memorial, but the damage is less than £5,000 , where must he be tried?

Answer 96

Either-way, as criminal damage where the damage is to a memorial is triable either way regardless of the value.

Question 97

Where D appears before a magistrates charged with low value shoplifting (theft) less than £200, what classification is the offence and is there an anomoly to allocation?

Answer 97

The offence is classed as summary-only.

However, despite this classification, the defendant retains the choice to elect to have a trial by jury and if the defendant so chooses, the case must be sent to the Crown Court for trial.

Question 98

Does the presumption in favour of bail does not apply when a defendant is committed for sentence from the Magistrates’ Court to the Crown Court?

Answer 98

No

The presumption in favour of bail does not apply in cases where a defendant is committed for sentence from the Magistrates’ Court to the Crown Court