Criminal Practice - Procedures

Question 1

Types of offences

What are the main summary only offences?
What are the main either-way offences?
What are the main indictable-only offences?

Answer 1

(A) Summary offences:
- Minor criminal damage.
- Common assault and battery

(B) Either-way:

• Theft.
• Fraud.
• ABH
• GBH.
• Burglary (but see footnote)

(C)

• Murder/Attempted Murder
• Manslaughter
• Rape/Attempted Rape
• Robbery
• Possession of a firearm

Burglary is indictable-only if:

• The offence committed or intended is indictable only;
• The burglary was in a dwelling and any person in the dwelling was subjected to violence or threat of violence;
  or
• The burglary was a domestic burglary, the accused is 18+ and at the date of the offence had previously been convicted on two separate occasions of domestic burglary committed after 30 November 1999 (section 314 Sentencing Act 2020 ). This is sometimes referred to as the “three strike rule.”

Question 2

Sentencing Powers

What is usually the maximum sentence for a summary offence?
What is the maximum sentence for either-way offences?

Answer 2

Six months’ imprisonment.
Six months’ imprisonment, or twelve months for two or more either-way offences.

Question 3

Although defendants charged with indictable-only offences make their first appearance at the Magistrates’ Court, the magistrates will….

Answer 3

Immediately send the case to the Crown Court under s.51 of the Crime and Disorder Act (CDA) 1998.

Question 4

First Hearings before the Magistrates’ Court

For either-way offences, what do the magistrates do after the defendant indicates a not guilty plea?

Answer 4

The magistrates decide whether to keep the case or send it to the Crown Court for trial.

Question 5

First Hearings before the Magistrates’ Court - Either-way offences

If the magistrates decide, after a not guilty plea, to keep the case, what happens next?

Answer 5

The defendant then has the right to elect trial at the Crown Court or to consent to summary trial.

Question 6

First Hearings before the Magistrates’ Court

What is low-value shop theft and how are such cases dealt with?

Answer 6

Low-value shoplifting of below £200.

• Treated as summary-only offences, unless an adult defendant enters a plea of not guilty. In that case, they will be given the opportunity to elect trial in the Crown Court.

Question 7

First Hearings before the Magistrates’ Court

How are criminal damage cases dealt with?

Answer 7

Criminal damage is an either-way offence, unless the value of property damaged is below £5000 = summary-only offence.

This exception does not apply to arson which is an either-way offence, irrespective of the value damaged.

Question 8

Magistrates Court: Public Funding

A defendant wishing to apply for criminal legal aid in the magistrates’ court must satisfy two tests:

Answer 8

1. The interests of justice test
2. The means test

Question 9

Magistrates Court: Interests of Justice test for Public Funding

What are the five factors taken into account for the interests of justice test?

Answer 9

Whether:
(a) D is likely to lose their liberty, livelihood or suffer serious damage to reputation, if they lose the case.
(b) There may be a substantial question of law.
(c) The defendant may be unable to understand proceedings or state their own case.
(d) There may be tracing, interviewing, expert-cross examination on behalf of the defendant.
(e) It is in the interests of another person.

Question 10

Magistrates Court: Interests of Justice test for Public Funding

In deciding whether the defendant will lose their liberty, what factors will the court consider?

Answer 10

• Whether the offence is serious.
• Whether the defendant has a bad criminal record (as this will be an aggravating factor in sentencing).
• Whether the defendant will be refused bail, and thus remanded in custody.

Question 11

Magistrates Court: Interests of Justice test for Public Funding

If the defendant is subject to a suspended sentence, how will this affect their prospects of satisfying the interests of justice test?

Answer 11

There is a statutory presumption that a defendant who is convicted of a further offence during the period of suspension will have their earlier sentence activated, and will go to prison. Therefore they are likely to lose their liberty.

Question 12

Magistrates Court: Interests of Justice test for Public Funding

When is the “livelihood” factor relevant?

Answer 12

The defendant intends to plead not guilty, is in employment, and the conviction is likely to lead to conviction.

This factor will always apply where there is a likely prison sentence if convicted.

Otherwise, it is also relevant where particular types of jobs are lost in the event of conviction, e.g. a bus driver charged with a road traffic offence.

Question 13

Interests of Justice test for Magistrates Court.

When is “serious damage to reputation” relevant?

Answer 13

Only for defendants who either have no previous convitions or convictions for very minor offences. It applies to defendants with a position of standing/respect in the community. (e.g. vicar, local councillor, school governor).

Question 14

Interests of Justice test for Magistrates Court.

Give five examples where “substantial question of law” is relevant

Answer 14

(a) Disputed ID evidence and the Turnbull guidelines.
(b) Possiblity of adverse inferences being drawn.
(c) Hearsay evidence.
(d) Defence seek to use s.76 or s.78 of PACE.
(e) Prosecution wants to adduce evidence of defendant’s previous convictions, or either party seeks to adduce bad character evidence of other persons.

Question 15

When is it in someone else’s interest that a defendant is represented?

Answer 15

If the defendant would need to cross-examine a prosecution witness in person, where it would be inappropriate to do so. E.g.sexual or violent offence; child witness.

Question 16

Means test for Magistrates Court.

Which defendants automatically receive criminal legal aid without needing to satisfy the means test?

Answer 16

(a) Applicants who receive income support, income-based allowance, guaranteed state pension credit, universal credit.

(b) Applicants under the age of 18.

Question 17

For all other applicants, CRM15 must be completed, enabling the intial means test to be applied. What is the initial means test?

Answer 17

This test takes the applicant’s gross annual income, weighted against the applicant’s family unit size. Eligibility is determined by the following: Weighted gross annual income from:

£0 - 12,475 = Eligible
£12,475 - 22,325 = FULL MEANS TEST required.
< £22,325 = Ineligible.

Question 18

What is the full means test?

Answer 18

This works out the applicant’s disposable income. It’s calculated by deducting living costs from the client’s gross annual income (not weighted).

Where the annual disposable income exceeds £3398, the applicant will be ineligible.

Question 19

What are the defendant’s rights of appeal in relation to legal aid?

Answer 19

• If refused under the interests of justice test, they may appeal by adding to and resubmitting their CRM14, or requesting an appeal.
• If refused under the means test there is no right of appeal. The defendant may ask that their application is reviewed on grounds of hardship (CRM16)

Question 20

What is the scope of a representation order in the magistrates’ court?

Answer 20

• It covers all the solicitor’s work in the magistrates’ court.
• It may extend to appeal to the Crown Court.
• For either-ways, where the magistrates declines jurisdiction or the defendent elects Crown Court for trial, the Crown Court proceedings will be covered.

Question 21

Public funding of representation: Crown Court

Would a representation order granted in respect of an indictable-only offence cover both the Crown Court and the Magistrates’ court proceedings?

Answer 21

Yes.

Question 22

Public funding of representation: Crown Court

How do public funding applications differ between the magistrates’ and the Crown Court?

Answer 22

Firstly, the interests of justice test is automatically satisfied.

The means test is significantly different: While the magistrates’ court focuses entirely on the applicant’s income, the Crown Court includes an assessment of the defendant’s capital assets which will determine whether the defendant is required to contribute to their defence legal costs.

Question 23

Public funding of representation: Crown Court

What is the difference between legal costs and the costs of representation?

Answer 23

Legal costs are the expenses associated with the whole legal process, including representation, court fees, expert witnesses.

The costs of representation specifically refer to the fees charged by solicitors, barristers, or other legal professionals for providing legal advice/ representation in court.

Question 24

Public funding of representation: Crown Court

For the applicants subject to a contribution order, how much are they required to contribute?

Answer 24

90% of disposable income for a maximum of 6 instalments.
If your income contributions do not cover your defence costs, payment from capital is required, if you have capital >£30,000.

If you are not guilty, contributions you have made will be returned to you with interest.

Question 25

First Hearings before Magistrates’ Court

Provide a procedural overview for a defendant charged with a summary offence.

Answer 25

(1) The defendant is usually required to enter a plea.
(2) Where the defendant pleads guilty:

• a CPS representative tells the magistratates the facts, and if relevant, the defendant’s previous convictions.
• The magistrates either sentence immediately or adjourns (e.g. for reports or Newton hearing)

(3) Where the defendant pleads not guilty:

• The court fixes a date for trial and issues case management directions.

Question 26

First Hearings before Magistrates’ Court

Provide a procedural overview for a defendant charged with an either-way.

Answer 26

(1) The defendant enters a plea. (Plea before venue)
(2) If the defendant pleads guilty, the magistrates decide whether they should sentence, or commit to the Crown Court for sentence.

(3) If the defendant pleads not guilty, the magistrates decide whether they have jurisdiction or whether they should send to Crown Court (allocation procedure 1 )
(4) If the Magistrates decide they have jurisdiction, the defendant can consent, or elect trial at Crown Court. (allocation procedure 2)

Question 27

Plea Before Venue and Allocation Procedure

After obtaining details of the prosecution case, the solicitor must discuss with the client:

Advising a client on plea and trial venue

Answer 27

a) Client’s response to the prosecution case.
b) Strength of the prosecution case and if appropriate, reminding the client of credit for entering an early guilty plea.
c) Whether it is necessary to obtain further evidence.
d) For either-way offences where the client will give a not guilty plea, whether they should elect trial at Magistrates’ or Crown Court.

Question 28

Plea Before Venue and Allocation Procedure

What are the three factors in favour of electing Crown Court?

Advising on trial venue for either-way offences

Answer 28

• Greater chance of acquittal statistically.
• Better procedure for challenging admissibility of prosecution evidence.
• More time to prepare for trial.

Question 29

Plea Before Venue and Allocation Procedure

What are the four factors in favour of electing the Magistrates’?

Answer 29

• Limited sentencing power
• Speed and stress.
• Costs (if granted legal aid, they will not be required to contribute toward defence or prosecution costs)
• No obligation to serve a defence statement

Question 30

Plea Before Venue and Allocation Procedure

If the defendant is tried before the magistrates’ for an either-way offence, the magistrates retain the power to….

Answer 30

…commit the defendant to the Crown Court for sentence, where the offence is more serious than it appeared at allocation.

Question 31

Plea Before Venue and Allocation Procedure

If the client admits guilt to their solicitor, what can and can’t the solicitor do?

Professional Conduct

Answer 31

Can:

• cross-examine prosecution witness
• can put the prosecution to proof of their case.
• make a submission of no case to answer.

Cannot:
- assert any positive defence.
- Continue to act after a submission of no case to answer fails and the defendant insists on giving evidence in the witness box.
- Cannot give reason for withdrawing.

Question 32

Plea Before Venue: Guilty Plea

If the defendant enters a guilty plea, they are treated as…

The CPS will then outline…

The magistrates will then decide…

Answer 32

…having been tried summarily and convicted.
…the facts of the case and any previous convictions.
…if their sentencing powers are sufficient or whether they need to be sentenced by the Crown Court.

If magistrates decide they have jurisdiction, they will either sentence immediately or adjourn for pre-sentence reports. Adjournment would also be required where a Newton Hearing is necessary.

Question 33

Plea Before Venue: Not Guilty Plea

After the defendant enters a not guilty plea, there are three circumstances when the court must send the defendant to the Crown Court for trial:

Circumstances in which the court is required to send to Crown

Answer 33

(a) Defendant sent to Crown for trial for related offence.
(b) Defendant charged jointly with another defendant who is sent to Crown for trial for a related offence.
(c) Defendant charged jointly, or for a related either-way offence, with a youth defendant who is sent to Crown for trial.

All other cases require allocation procedure.

Question 34

Plea Before Venue: Not Guilty Plea

Unless the court is required to send the either-way offence to the Crown Court, the allocation procedure takes place. What are the six steps?

Include the three things that the Magistrates must explain to the defendant if they decide that their sentencing powers are adequate.

Allocation Procedure

IMPORTANT

Answer 34

1. Prosecution informs court of facts and defendant’s convictions.
2. Magistrates consider representations from both sides as to suitable venue.
3. Magistrates decides on the adequacy of their sentencing powers.
4. If adequate, Magistrates explain to the defendant:
   - The case appears suitable.
   - The defendant can elect either court for trial.
   - Consent to summary trial does not prevent sentencing at Crown Court.
5. Defendant can request an indication of sentence.
6. Court will ask the defendant to elect the venue.

Question 35

Plea Before Venue: Not Guilty Plea

What do the magistrates consider when determining the adequacy of their sentencing powers?

What about if there are two or more offences?

Allocation Procedure

Answer 35

1. Representations made by the prosecution or defence as to which court is suitable.
2. Sentencing Guidelines

If there are two or more offences, court considers maximum aggregate sentence they can impose.

(if the charges could be joined in same indictment or arise out of same)

Question 36

Plea Before Venue: Not Guilty Plea

The procedure includes the possibility that the defendant requests an indication of sentence, i.e. an indication of whether…

If the court does give an indication, is this binding?

Allocation Procedure: Indication of sentence

Answer 36

…a custodial or non-custodial sentence would be more likely if they were to be tried summarily and plead guilty.

Only if they indicate a non-custodial sentence and the defendant changes their plea to guilty in light of that indication.

Question 37

What do the magistrates do if the defendant is charged with two either-way offences, one of which he pleads guilty to, the other a non guilty plea?

Answer 37

• proceed with allocation for the not guilty plea.
• If the magistrates accept jurisdiction, they can sentence immediately for the offence plead guilty, or at the end of trial of the other offence.
• If the magistrates decline jurisdiction, they still have a choice as to what to do about the offence plead guilty.

Question 38

Remand before conviction

The basic rule is that a defendant may not be remanded in custody for more than…

If the defendant’s case is in the magistrates’ court and there are successive remands in custody, the defendant must be…

Answer 38

…8 clear days at a time.
…brought before the court on every fourth remand, provided they have consented and have legal representation.

Question 39

Remand before conviction

The magistrates’ court may remand a defendant in custody for up to 28 days if:

3 conditions

Answer 39

• it has previously remanded them in custody for the same offence;
• they are before the court;
• it can set a date to remand them to, on which it expects the next stage of proceedings to take place.

Question 40

Remands before conviction: Custody Time Limits

The overall maximum period of remand in custody (the Custody Time Limit) in the magistrates’ court is…

Answer 40

Summary: 56 days before trial.
Either-way: 70 days before trial.

Question 41

Remands before conviction: Custody Time Limits

If it is an either-way offence and the allocation hearing takes place within 56 days…

Answer 41

…the overall maximum period of custody before trial is reduced to 56 days.

Question 42

Bail

Under s.4 of the Bail Act 1976, there is a presumption that bail will be granted to the following types of defendants (unless an exception applies):

3 types

Answer 42

• all defendants prior to conviction.
• convicted defendants whose case is adjourned for pre-sentence reports.
• defendants appearing before the court for breach of community sentence.

Question 43

The presumption of bail does not apply to defendants:

Answer 43

• committed to Crown Court for sentence.
• appealing against conviction or sentence.
• those convicted of the most serious types of offences.

Question 44

The specified serious offences for which the presumption of bail is disapplied are:

-

Answer 44

• Murder/attempted murder
• Manslaughter
• Rape/attempted rape
• A number of sexual offences.

Question 45

If a defendant is charged with murder and makes an application for bail, it will not be granted unless…

Answer 45

The Crown Court is of the opinion that there is no significant risk of the defendant committing an offence likely to cause physical or mental injury to another, while on bail.

Question 46

Exceptions to the right of bail

The exceptions to the right of bail are, themselves restricted from being applied where:

All three conditions must be satisfied

Answer 46

(a) defendant has attained age of 18;
(b) defendant has not been convicted of an offence in those proceedings; and
(c) There is no real prospect that the defendant will be sentenced to a custodial sentence in the proceedings.

In such cases, the magistrates’ court do not have the power to remand

Question 47

The prosecution can apply to extend the custody time limit. What must they show for their application to be successful?

Answer 47

• On the balance of probabilities, there is good and sufficient cause.
• they have acted with due diligence and expedition.

Written notice of intention must be served on the court and defendant not less than two days before the hearing in the magistrates’ court.

The defendant has a right of appeal to the Crown Court in case of a successful application, and the prosecution has the same if the magistrates refuse the application.

Question 48

Exceptions to the right of bail: Indictable and Either-way imprisonable

The most common ground upon which the CPS objects to bail is Para 2(1) Sch.1 Bail Act 1976: The defendant need not be granted bail if: there are substantial grounds for believing that the defendant, if released on bail, would…

3 independent reasons

Answer 48

There are substantial grounds for believing that the defendant, if released on bail, would:
(a) fail to surrender to custody;
(b) commit an offence while on bail; or
(c) interfere with witnesses or otherwise obstruct the course of justice

Question 49

Exceptions to the right of bail: Indictable and Either-way

Additionally to para 2(1), the defendant need not be granted bail if:

3 circumstances

Answer 49

• Defendant should be kept in custody for their own protection (or own welfare if a child).
• Not practicable to obtain sufficient information to take the decision required.
• Having previously been released on bail in, or in connection with, the proceedings, the defendant has been arrested.

Question 50

Exceptions to the right of bail: Indictable and Either-way bail

Para.2(1) is a high threshold. The court must have substantial grounds for believing the defendant would fail to surrender, commit an offence while on bail or obstruct the course of justice.

What four factors must the court take into account in deciding this?

Bail Act 1976, Para 9 factors

Answer 50

(a) Nature and seriousness of offence
(b) Character, antecedents, associations and community ties of defendant.
(c) Defendant’s record in respect of previous grants of bail in criminal proceedings.
(d) Strength of evidence against defendant.

Question 51

Exceptions to the right of bail: Indictable and Either-way bail

“Defendant’s character and antecedents” is a reference to…

“Associations” is a reference to…

Would absence of community ties be a factor for or against the defendant?

Bail Act 1976, Para 9 factors

Answer 51

…Defendant’s previous convictions.
…criminal gang membership
Against. E.g. no fixed abode, no relatives to contact.

Question 52

Exceptions to the right of bail: Summary-only imprisonable offences

What are the seven grounds to refuse bail for summary-only imprisonable offences?

Similar but not identical grounds to indictable.

Answer 52

(a) failure to surrender, where defendant has previously failed to do so.
(b) commission of further offences, where offence in question was committed on bail.
(c) commission of offences likely to cause another to suffer or fear physical or mental injury.
(d) defendant’s own protection.
(e) defendant is serving custody;
(f) failure to surrender, commission of offences, interference with witnesses/ obstruction of justice, where defendant has been arrested for breach of bail.
(g) lack of sufficient information.

Question 53

Exceptions to the right of bail: Non-imprisonable offences

Only very limited circumstances:

4 circumstances

Answer 53

(a) failed to answer bail in previous criminal proceedings and the court believes that the defendant would fail again to surrender.
(b) own protection
(c) currently serving a custodial sentence for a separate offence.
(d) arrested for failing to surrender/breaking conditions in the same proceedings, and there are substantial grounds for believing that the defendant would:

• fail again to surrender;
• commit an offence; or
• interfere with witnesses/obstruct the coures of justice.

Question 54

Provide the term for the following conditions:

(1) The court puts a person under an obligation to ensure the defendant attends court by ordering a recognisance of money.
(2) Defendant required to deposit a sum of money with the court.
(3) Court requires defendant to remain at place of residence between certain times.

Answer 54

(1) Surety

Question 55

Further applications for bail

If bail is refused, the magistrates remain under a duty to….

Answer 55

…consider the question of bail at any subsequent hearing, if defendant is still in custody and presumption in favour of bail still applies.

Question 56

Further applications for bail

After the court refuses bail, the next hearing on bail permits the solicitor to…

At any subsequent hearing, the court will not…

Answer 56

…make a full application using any arguments as to facts or law.*

…hear arguments as to fact or law which it has previously heard.

*(even if they repeat the arguments that were unsuccessful in the first application)

Question 57

Remands after conviction

Following conviction, a defendant may be remanded in custody before sentence for multiple consecutive periods, each not exceeding…

Answer 57

3 weeks.

Question 58

Remands before conviction

The prosecution can apply to extend the custody time limit. What must they show for their application to be successful?

Answer 58

• On the balance of probabilities, there is good and sufficient cause.
• they have acted with due diligence and expedition.

Written notice of intention must be served on the court and defendant not less than two days before the hearing in the magistrates’ court.

The defendant has a right of appeal to the Crown Court in case of a successful application, and the prosecution has the same if the magistrates refuse the application.

Question 59

Appeals against decisions on bail: By defendant

Defendant who is refused bail by magistrates may appeal against this decision to… provided the magistrates have issued the…

To appeal, a notice of application must be sent to….. and served on the CPS at least….

The judge considering the application will require three things:

Answer 59

…the Crown Court, provided the magistrates have issued the “certificate of full argument”

Notice of application must be sent to both Crown Court and Magistrates, and served on the CPS at least 24 hours before the hearing.

(a) Notice of application
(b) Certificate of full argument.
(c) Record of previous convictions

Tactically better for defendant’s solicitor to appeal to Crown only after making two full applications before Magistrates.

Question 60

Appeals against decisions on bail: By prosecution

If magistrates grant bail to a defendant charged with an imprisonable offence, the CPS have a right to appeal to a Crown Court judge. What are the three sets of deadlines to follow?

Answer 60

1. Oral notice given at end of hearing in which court granted bail and before defendant is released from custody.
2. Notice confirmed in writing and served on defendant not more than 2 hours after oral notice.
3. Crown Court must hear ASAP, and not later than 2 business days after appeal notice was served.

Only used in cases of grave concern, as it means defendant will be remanded for two more days

Question 61

Failing to surrender

If a defendant fails to surrender, the magistrates will…

The defendant will then be kept…

Answer 61

…issue a warrant for their arrest.
…in police custody until next hearing.

If arrested on Saturday afternoon, they will be kept in custody until Monday morning as no remand courts sit on Sunday.

Question 62

Failing to surrender

What are the two offences of failing to surrender?

What are the consequences for such failures?

Answer 62

(1) Absconding = failure without reasonable excuse.
(2) Failure to surrender with reasonable excuse, but without surrendering within reasonably practicable time.

The magistrates are likely to impose penalty, refuse bail in the proceedings or attach stringent conditions to bail.

Question 63

Breaching bail conditions

(1) Is this a criminal offence?
(2) When can a police officer arrest a person bailed to attend court? (2 reasons)

(3) If so arrested, what happens to the defendant?

Answer 63

(1) No.
(2) When the officer reasonably believes the person:
(a) is not likely to surrender to bail;
(b) has broken, or is likely to break, bail conditions.

(3) Defendant is detained and brought to Magistrates within 24 hours.

But likely to have bail reviewed by magistrates.

Question 64

Breaching bail conditions

What is the two step approach of the Magistrates’ Court when the police have arrested the person on reasonable suspicions about their court bail?

Answer 64

1. Determine whether a breach occurred.
2. Determine whether defendant should be remanded in custody or bail, until next hearing.

Question 65

Case Management: Magistrates’ Court

Case management directions are given by the court at the defendant’s plea of not guilty (or after plea before venue for either-way). How many weeks do they give the parties to prepare the case for trial? What about when expert evidence is required?

2 different situations

Answer 65

8 weeks. 14 weeks where there is expert evidence.

Question 66

Case Management: Magistrates’ Court

What is the purpose of a witness summons? When will it be issued and by whom?

Answer 66

• Require the witness to attend trial.
• Issued if negative or no response received to defendant’s solicitor’s request that they attend. Court issues it at the request of the solicitor.

Magistrates will grant if: satisfied that witness can give material evidence in proceedings; interests of justice for summons to be issued.

Question 67

Case Management: Magistrates’ Court

(1) What must the defendant do if they intend to call a witness to give evidence?

(2) What is the relevant time limit?

(3) What is the requirement in relation to serving the CPS with copies of the witness statements?

Defence witness obligations

Answer 67

(1) Serve a notice on the CPS, setting out the names, addresses and D.O.Bs of the witnesses to be called.

(2) The notice must be served 28 days after CPS has complied with their obligation to disclose unused material.

(3) No requirement, unless expert witness.

Also applies to Crown Court.

Question 68

Case Management: Magistrates’ Court

If the defendant’s solicitor wishes to call an expert to give evidence at trial, are they required to serve a copy of the expert’s report on CPS in advance of trial?

Disclosure obligations

Answer 68

Yes.

Question 69

Case Management: Magistrates’ Court

Not all witnesses need to attend court. A written witness statement is admissible at trial provided that (4 conditions):

The statement may only contain matters which…
Such witness statements should only be used for…

Section 9 Witness Statements

Answer 69

(a) It is signed and dated
(b) Contains a declaration of truth
(c) copy has been served before hearing on other parties.
(d) None of the other parties objected within seven days.

…would have been admissible if given in oral evidence.
…evidence which is not in dispute.

Question 70

Case Management: Magistrates’ Court

Any evidence obtained which will subsequently be relied upon as part of the prosecution case at trial will be supplied to… as part of the …

Obtaining unused material from the CPS

Answer 70

…defendant’s solicitor, as part of the initial details of the prosecution case (IDPC)

Question 71

Case Management: Crown Court - Plea and Trial Preparation Hearing (PTPH)

Where an adult defendant is charged with an indictable-only offence, their case will be sent straight to the Crown Court. Apart from charging the defendant with that offence, what else must the magistrates determine?

The Magistrates’ Sending Hearing

Answer 71

Whether there are related offences that should also be sent to the Crown Court.

Question 72

Case Management: Crown Court - Plea and Trial Preparation Hearing (PTPH)

When will the Magistrates send an either-way or summary-only offence to the Crown Court?

The Magistrates’ Sending Hearing

Answer 72

i. It is an either-way or summary offence that appears to the court to be related to the indictable-only offence; and
ii. If it is a summary offence, it is punishable with imprisonment, or involves disqualification from driving.

s.51 of the CDA 1998.

Question 73

Case Management: Crown Court - Plea and Trial Preparation Hearing (PTPH)

After determining the defendant is charged with an indictable-only offence, the magistrates set the date for the…. or the … where necessary. Unless the latter is scheduled, the magistrates will also give a set of …. that the CPS and defendant’s solicitor must comply to before…

The Magistrates’ Sending Hearing

Answer 73

PTPH or preliminary hearing.
Standard case management directions, to be complied with before the PTPH takes place.

Question 74

Case Management: Crown Court - Plea and Trial Preparation Hearing (PTPH)

A defendant sent for trial in respect of an either-way may also be charged with another offence that is summary-only. Which (1) 4 summary-only offences could be tried at the Crown Court, and (2) under what circumstances?

Additionally, any summary-only offence can be sent to the Crown Court for trial if they meet the following two criteria:

Either-way offences

Answer 74

(1) Summary-only offences that can be sent to Crown

• Common assault
• Taking a conveyance without consent
• Driving while disqualified
• Criminal damage

(2) The summary-only offence must be:
- founded on the same facts as the either-way; or
- part of a series of offences of the same or similar character.

(3) a. punishable with imprisonment or disqualification from driving
b. related to the either-way offence.

(3) is identical to summary-only offences that are related to an indictable only.

Question 75

Case Management: Crown Court - Plea and Trial Preparation Hearing (PTPH)

A preliminary hearing takes place in limited (5) circumstances:

Preliminary Hearings in the Crown Court

Answer 75

(a) Case management issues to be resolved by Crown Court;
(b) Trial likely to exceed 4 weeks;
(c) Desirable to set early trial date;
(d) Defendant under 18; or
(e) Likely to be a guilty plea and defendant could be sentenced at the preliminary hearing.

Question 76

Case Management: Crown Court - Plea and Trial Preparation Hearing (PTPH)

The first hearing at the Crown Court is generally the… which takes place within…

The purpose is to enable the defendant to…

Answer 76

PTPH; 20 business days after sending.
Purpose: enable defendant to enter their plea.

(unless there was a preliminary hearing)

If pleading not guilty, just gives further case management directions at the PTPH to be complied with prior to trial.

The court will also fix a date for trial/place case in the warned list (list of cases not yet listed).

Question 77

Case Management: Crown Court - Plea and Trial Preparation Hearing (PTPH)

(1) At the start of the PTPH, the defendant will be arraigned, meaning:

(2) What does it mean for the jury if the defendant pleads guilty to some but not all counts?

(3) If the defendant agrees with CPS to plead guilty to certain counts if the CPS does not proceed with other counts, what will the CPS do in respect of those other counts and what will the judge do?

(4) What does it mean if the CPS asks that a count “lie on the court file”?

The arraignment

Answer 77

(1) The counts on the indictment are put to the defendant.

(2) Jury will not be told about those which were plead guilty.

(3) CPS will offer no evidence in respect of those other counts. Judge will order verdict of not guilty to those counts.

(4) It means that if the defendant pleads guilty to the more serious counts, the CPS will agree to the remaining counts being left on the file, in theory allowing the case to be reopened in future (with leave of the court).

Question 78

Case Management: Crown Court - Plea and Trial Preparation Hearing (PTPH)

If defendant pleads guilty, when will the judge adjourn for sentencing?

Guilty Plea

2 conditions

Answer 78

• pre-sentence reports
• defendant disputes specific factual allegations (Newton Hearing)

Question 79

Case Management: Crown Court - Plea and Trial Preparation Hearing (PTPH)

Is the judge obliged or permitted to give an indication of the likely sentence if they were to plead guilty?

Is this indication binding?

Indication of sentence “Goodyear Indication”

Answer 79

Permitted. Defendant must specifically ask for it.
Indication is binding.

Question 80

Case Management: Crown Court - Plea and Trial Preparation Hearing (PTPH)

(1) Is the defendant entitled to change a guilty plea to not guilty plea?

(2) Can they change to guilty during trial?

Change of Plea

Answer 80

(1) Yes, but at the discretion of the court and at any time before the jury return their verdict.

(2) Yes, if the judge made a ruling on a point of law or admissibility which deprives the defendant of a defence on which they wanted to rely.

Question 81

Case Management: Disclosure and unused material

(1) In both the magistrates court and the Crown Court, the CPS is required to serve on the defendant…

(2) Additionally, CPS is required to retain… and in the event of a not guilty plea, the CPS must disclose any such material to the defendant if it… (the section 3 test)

(3) The duty of disclosure on the CPS is ongoing, meaning the CPS must apply the section 3 test to…

(4) If the defendant’s solicitor considers that disclosure (whether to be used or unused material) from the CPS is incomplete, and the CPS refuse to supply the missing items, the solicitor may apply to court for specific disclosure. However, such application may only be made if…

Answer 81

(1) …all evidence on which it wishes to rely at trial.
…unused material.
(2) …might reasonably be considered capable of undermining the case for the prosecution or assisting the accused’s case.

(3) …any further material it receives after making initial disclosure.

(4) …the defendant has provided a defence statement.

Question 82

Case Management: Unused material

Can the CPS withhold unused material?

Answer 82

Yes it may withhold sensitive information.

e.g. national security/intelligence; identity of undercover police; covert police techniques; material relating to child witness

Question 83

What if the sensitive information satisfies the s.3 test: “might reasonably be considered to undermine the case of the prosecution…”?

Answer 83

CPS must show that the sensitive material is protected by “public interest immunity”.

Decision of the court, upon application from CPS. Often such application is made without notice to the other party i.e. ex parte)

Question 84

Case Management: Defence Disclosure

Once CPS made its initial disclosure of unused material, onus switches to defendant’s solicitor.

(1) When should the defendant serve a defence statement on the CPS for (a) the Magistrates and (b) Crown Court?

(2) Is it obligatory to serve a defence statement?

Answer 84

(1) 10 days for Magistrates. 20 days for Crown Court.

(2) It is not obligatory to serve in the Magistrates. It is effectively obligatory in the Crown Court.

In the Magistrates, the defendant should only serve one where they think the CPS will disclose additional information that would assist the case. Extremely rarely used.

In Crown court, failure to provide defence statement could result in adverse inferences (see later)

Question 85

Case Management: Crown Court - Disclosure

The court may draw adverse inferences from the following faults in disclosure: (five faults)

Adverse Inferences

Answer 85

1. failing to provide defence statement
2. late service of defence statement
3. incomplete defence statement
4. inconsistent defence statement (to the defence at trial)
5. failing to update defence statement