Criminal Practice - Procedures Flashcards
Types of offences
What are the main summary only offences?
What are the main either-way offences?
What are the main indictable-only offences?
(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.”
Sentencing Powers
What is usually the maximum sentence for a summary offence?
What is the maximum sentence for either-way offences?
Six months’ imprisonment.
Six months’ imprisonment, or twelve months for two or more either-way offences.
Although defendants charged with indictable-only offences make their first appearance at the Magistrates’ Court, the magistrates will….
Immediately send the case to the Crown Court under s.51 of the Crime and Disorder Act (CDA) 1998.
First Hearings before the Magistrates’ Court
For either-way offences, what do the magistrates do after the defendant indicates a not guilty plea?
The magistrates decide whether to keep the case or send it to the Crown Court for trial.
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?
The defendant then has the right to elect trial at the Crown Court or to consent to summary trial.
First Hearings before the Magistrates’ Court
What is low-value shop theft and how are such cases dealt with?
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.
First Hearings before the Magistrates’ Court
How are criminal damage cases dealt with?
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.
Magistrates Court: Public Funding
A defendant wishing to apply for criminal legal aid in the magistrates’ court must satisfy two tests:
- The interests of justice test
- The means test
Magistrates Court: Interests of Justice test for Public Funding
What are the five factors taken into account for the interests of justice test?
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.
Magistrates Court: Interests of Justice test for Public Funding
In deciding whether the defendant will lose their liberty, what factors will the court consider?
- 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.
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?
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.
Magistrates Court: Interests of Justice test for Public Funding
When is the “livelihood” factor relevant?
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.
Interests of Justice test for Magistrates Court.
When is “serious damage to reputation” relevant?
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).
Interests of Justice test for Magistrates Court.
Give five examples where “substantial question of law” is relevant
(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.
When is it in someone else’s interest that a defendant is represented?
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.
Means test for Magistrates Court.
Which defendants automatically receive criminal legal aid without needing to satisfy the means test?
(a) Applicants who receive income support, income-based allowance, guaranteed state pension credit, universal credit.
(b) Applicants under the age of 18.
For all other applicants, CRM15 must be completed, enabling the intial means test to be applied. What is the initial means test?
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.
What is the full means test?
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.
What are the defendant’s rights of appeal in relation to legal aid?
- 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)
What is the scope of a representation order in the magistrates’ court?
- 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.
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?
Yes.
Public funding of representation: Crown Court
How do public funding applications differ between the magistrates’ and the Crown Court?
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.
Public funding of representation: Crown Court
What is the difference between legal costs and the costs of representation?
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.
Public funding of representation: Crown Court
For the applicants subject to a contribution order, how much are they required to contribute?
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.
First Hearings before Magistrates’ Court
Provide a procedural overview for a defendant charged with a summary offence.
(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.
First Hearings before Magistrates’ Court
Provide a procedural overview for a defendant charged with an either-way.
(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)
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
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.
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
- Greater chance of acquittal statistically.
- Better procedure for challenging admissibility of prosecution evidence.
- More time to prepare for trial.
Plea Before Venue and Allocation Procedure
What are the four factors in favour of electing the Magistrates’?
- 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
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….
…commit the defendant to the Crown Court for sentence, where the offence is more serious than it appeared at allocation.
Plea Before Venue and Allocation Procedure
If the client admits guilt to their solicitor, what can and can’t the solicitor do?
Professional Conduct
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.
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…
…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.
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
(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.
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
- Prosecution informs court of facts and defendant’s convictions.
- Magistrates consider representations from both sides as to suitable venue.
- Magistrates decides on the adequacy of their sentencing powers.
- 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. - Defendant can request an indication of sentence.
- Court will ask the defendant to elect the venue.