Criminal Practice WS2 (PBV and Classification)

Question 1

Where are all criminal cases initially heard?

Answer 1

In the magistrates court.

Question 2

When can a defendant have a choice as to whether they want to be heard in the Magistrates or Crown court?

Answer 2

If the defendant has been charged with:

1) Either way offence
2) Pleads not guilty
3) Magistrates court accepts jurisdiction of the offence

In the above situations they will offer the defendant a choice on whether they wish for their trial to be heard in the magistrates court or the crown court.

Question 3

What are indictable offences and how do they differ from indictable ‘only’ offences?

Answer 3

Indictable offence = can be heard in the Magistrates court OR Crown court, i.e. ‘either way’.

Indictable only offence = can ONLY be heard in the the crown court (i.e. tried by a trial on indictment before a jury)

Question 4

What are indictable only offences?

Answer 4

They are the most serious types of offences - and must be trailed before a jury in the Crown Court - S51(1) Crime and Disorder Act CDA 1998.

Examples are: ‘aggravated forms of offences’ has to be ‘aggravated burglary’ not just ‘bulgary’
* Robbery (s8 TA 1968)
* Wounding or causing GBH with intent (s18 OAPA 1861)
* Aggravated burglary (s10 TA 1968)
* Aggravated arson
* Aggravated criminal damage
* Murder (where a verdict of voluntary manslaughter can be a possible outcome, Involuntary manslaughter, Unlawful act manslaughter, Manslaughter by gross negligence)
* Rape
* Blackmail
* Kidnap and conspiracy

Question 5

What happens when the offence is indictable only - what is the first hearing court process?

Answer 5

1) The defendant will make an first brief appearance before the magistrates court at ‘sending hearing’
2) Magistrates court will determine at the hearing whether
* An indictable only offence is charged
* And if there are other related offences which should also be sent to the Crown Court

If they establish that it is indictable only:
* Immediately send the case to the Crown Court for a plea and trial preparation hearing, and trial before jury
* CC will deal with the bail and legal aid and then the Defendant is sent to the Crown Court where they will enter a plea
* The hearing at the crown court is 3/4 weeks later depending on the defendant’s bail status.

(s51 Crime and Disorder Act 1998).

Question 6

What courts can either way offences be held?

Answer 6

They are a less serious offence and can be dealt with by either

1) A summary trial at the Magistrates court

2) Trial on indictment at the Crown Court.

Tiral on indictment (before the jury)

Question 7

Explain how the classification of theft can be summary or either way?

Answer 7

Summary:
- If the value property stolen does not exceed £200 (s22A Magistrates Court Act 1980)
- aggregate value = i.e. multiple instances of theft must be below £200.
- they have pleaded NOT guilty

Right to elect either Crown Court or Magistrates Court
- if the defendant pleads not guilty to the theft charge

Question 8

What happens at the first hearing where the offence is ‘either way’?

Why does it matter whether they plead guilty/not guilt?

Answer 8

The defendant will have a ‘plea before venue’ hearing at the magistrates court where they will enter a plea.

If the defendant pleads NOT guilty..The magistrates court may:
- Refuse jurisdiction (i.e. depending on sentencing powers)
- Accept jurisdiction, but then offer the defendant a right to elect on whether they want to appear at Crown Court or Magistrates Court

If the defendant pleads guilty:
- Sentence the defendant
- If they consider their sentencing powers to be inadequate, they will commit the defendant to the Crown Court for sentence.

Question 9

In theft, what if the amount of stolen goods exceeds £200?

Answer 9

As this has exceeded the £200 threshold, the offence would be treated on an ‘either way basis’ this means that

If the defendant pleads NOT guilty they can:
1) choose magistrates court
2) choose crown court

But tried and convicted in magistrates court, he could be committed to the Crown Court for sentencing.

Question 10

Explain why simple criminal Damage under £5000 is ‘summary only’?

Answer 10

Summary ONLY
- if the value of the property damaged is below £5000
- it is ‘simple criminal damage’
- court will aggregate the value of damage in deciding whether the cost or replacement or repair of the items will be below £5000 (whichever is less will be considered)

They do not have the right to elect between magistrates court or crown court.

Question 11

Can any criminal damage cases be heard at either magistrates court or crown court, can the defendant elect which one?

Answer 11

Yes, but only if:
- Damage is above £5000
- Damage is by arson (fire)
- Damage to a memorial (building or structure erected or installed in land, garden to have a commemorative purpose).

Question 12

Can Burglary offences be trialed at either court?

What is the 3 strike rule?

Answer 12

Yes.

Except in the ‘3 strike rule’ it must be at Crown Court:

1) Where the ulterior offence (i.e. theft, assault or criminal damage) intended or committed whilst the building or part of a building is indictable only

2) Where the burglary was in a dwelling and any person in the dwelling was subjected to violence or threat of violence

3) Where the defendant is charged with burglary of a dwelling (domestic house), defendant has two previous and separate convictions for domestic burglary, the defendant is aged over 18 on the date of the third offence and those previous convictions occurred after 30 November 1999.

Question 13

What happens where the offence is a ‘summary offence’?

Answer 13

The case must be dealt with in the magistrates court (summary trial).

Question 14

If a defendant is accused of an either way offence and has not pleaded guilty at the ‘plea before hearing’ what is meant by the magistrates court can :

1) Refuse jurisdiction 2) Accept jurisdiction

Answer 14

In deciding whether to accept or refuse jurisdiction, the magistrates court will assess the following (s19 and s20 Magistrates Court 1980)

1) Oral representations - the court will consider oral representations made by the prosecution and defence advocates (s19(2)(b).

2) The court will consider whether the magistrates have the adquate sentencing powers to deal with the offence in question.

Magistrates may pass a maximium sentence of:
6 months imprisonment - either way offence
12 months imprisonment - if the defendant is convicted of two or more offences.

If the overall seriousness of the offence, by reference to the Magistrates Court Sentencing Guidelines merits a more serious sentence - magistrates should send the defendant to Crown Court for sentence.

Question 15

What are the allocation guidelines issued by the sentencing council?

Answer 15

The Allocation Guidelines provide that
* Either way offences should be tried summarily unless…
* The outcome would clearly be a sentence in excess of the court’s powers or for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court

Question 16

What are initial details of the prosecution case (IDPC) and when must this be provided?

Answer 16

Pre-trial disclosure of evidence

Only provided for summary only or either way offences (even if defendant decides to go for either magistrates or crown).

The disclosure must be sufficient to assist the court in order to identify real issues and to give appropriate issues for an ‘effective trial’, this will allow the court and the defendant to take an informed view of plea, venue of trial, case management and sentencing at the first hearing.

Question 17

Is the IDPC required for indictable only offences?

Answer 17

No.

Although Prosecution is still likely to provide it. When the magistrates court sends the case to the Crown Court, they will make standard directions as to when the prosecution must serve the relevant evidence on the defence.

Question 18

What must be included in the IDPC if the defendant was in police custody?

Answer 18

1) Summary of the circumstances
2) The defendant criminal record if any

Question 19

What must be included in the IDPC if the defendant was not in police custody?

Answer 19

If the defendant was not in police custody:

• Summary of circumstances of the offence.

Account given by Defendant in interview

• Any written statements and exhibits that are available and material to the plea and/or mode of trial or sentence.
• Victim impact statements, or victims family or others
• D’s criminal record.

Question 20

What requirements of IDPC is required when defendant is released on bail and no guilty plea is anticipated?

Answer 20

It must be sufficient to allow the court to identify the real issues and giving directions including further materials:
- statements and exhibits that the prosecution has identified as being of importance for the purpose of plea or initial case management, including any CCTV that would be relied upon

• any forensic evidence
• details of witness availability
• medical or expert evidence that the prosecution is likely to adduce in relation to the victim or the defendant
• any information as to special measures, bad character or gossip where applicable

Question 21

When should the IDPC be served? How should the prosecution served it?

Answer 21

• Must be served on the magistrates as soon as practicable, and no later than beginning of the day of the first hearing.
• If D wishes to receive IDPC before first hearing, they must request it
• If D does not request the IDPC, the prosecutor must make them available to D at or before the beginning of the day of the first hearing.

Where the prosecution fails to provide information in their IDPC, the court will not allow it to be introduced into evidence unless the court first allows D sufficient time to consider it.

Question 22

What does the court do when a defendant has been charged with a summary only offence? What is the progression of the case.

Answer 22

The court must read the charge out to them and ask them if they

1) plead guilty
2) plead not guilty

Guilty plea= magistrates will proceed to sentence the defendant

Non-guilty plea = magistrates court will normally adjourn and set a date for trial.

Question 23

What does the court do when the person has been charged with an ‘either way offence’

Answer 23

The magistrates court will ask the defendant if they wish to plea guilty or not guilty

1) Guilty plea - magistrates will consider if their sentencing powers are sufficient.
- they will charge them if they are
- if not they will send to the crown court

2) Non-guilty plea - magistrates must determine where the defendants case will be tried, i.e. in the magistrates court or crown court at an ‘allocation hearing’ A full consideration of plea before venue.

Question 24

What does the court say to the person who has been charged with an indictable only offence?

Answer 24

Where the defendant has been charged with an indictable only offence, the magistrates do not have jurisdiction to try case or sentence the defendant.

The following process happens:

1) Defendant will be identified and the charge / allegation will be read to them

2) The court must explain the allegation, unless it is self-explanatory and must explain that their case will be sent to the crown court due to the nature of the offence

3) The court must permit the prosecution and defence to make any necessary representation regarding the power to send the case to the Crown Court or any ancillary matters such as bail. Given that any case being sent to the crown court will be adjourned, a consideration of bail at this stage is vital

4) Court must ask whether the defendant intends to plead guilty in the crown court

Plead guilty = court must make arrangements for the crown court to take defendant’s plea as soon as possible

Non-guilty plea = the court must make arrangements for the case management hearing in the crown court.

Question 25

Is the defendant entitled to free legal advice at the police station?

How are solicitors paid?

Answer 25

Yes. All suspects are entitled to free legal advice at the police station regardless of their means. This is in the interests of justice.

• Work done by a solicitor at the police station will be claimed as a ‘fixed fee’ under the Police Station Advice and Assistance Scheme.

*The solicitors who attends must be an accredited representative, trainee solicitors can attend the police station and charge for this work as long as they are accredited.

*Solicitors must also complete the accreditation process in order to attend at the police station under a LAA contract (general criminal contact). Most solicitors will be members of duty solicitors schemes for a given police station. These solicitors have their names on a rota, and they may be called out to attend the police station if they are on ‘duty’ and the person who has been arrested doesn’t have their own solicitor.

*Similarly, solicitors will claim for attending magistrates court (LAA under the Advocacy Assistance (Court Duty Solicitor) Scheme.

Question 26

How can a client apply for a representation order (free legal funding)?

What are the two tests?

Answer 26

Once your client has been charged, you need to arrange funding for their court appearance.

In order to obtain a representation order, a defendant must pass two tests:
1) Means test.
2) Merits test (interests of justice test).

Both tests must be passed to secure public funding.

Question 27

How is the means test calculated?

Answer 27

Calculate whether the defendant has the means….££

To calculate the applicants DISPOSABLE income – tax & national insurance, annual housing costs, childcare costs, annual maintenance to former partners and any children, an adjusted annual living allowance.

Question 28

What if the defendant isn’t eligible via the means test but they genuinely can’t afford funding their own defence?

Answer 28

If the applicant cannot genuinely fund their own defence – they can argue of the grounds of hardship by completing an application for review on the grounds of hardship CRM16.

Question 29

Explain the means test and the threshold to be eligible/eligible for funding in the magistrates court?

Answer 29

The court will means test the applicant’s income by adjusting this i.e., weighting this depending on whether they have a partner or children.

If an applicant’s adjusted annual income:
* Less than £12,475: they will qualify for legal aid.
* More than £22,325: they will **not **qualify for legal aid.

Is between £12,475 and £22,325:
* the court will carry out a full means test.
* this calculates an applicant’s disposable income
* by deducting expenditure on things such as tax and national insurance, housing costs etc. from an individual’s income.
* If the applicant’s disposable income does not exceed £3,398 they will qualify for legal aid.

Question 30

Explain how the means test is calculated for cases in the Crown Court?

Answer 30

The applicant is assessed on their INCOME and CAPITAL (savings) including any EQUITY in properties owned by the applicant.

After a combined capital and equity allowance of £30,000, applicants can be required to contribute some balance towards their defence costs.

The outcome of the assessment may require defendants to pay:
1) All
2) Some
3) None of the costs of defending their case.

If a contribution towards their defence costs are required, it can come from income (payable throughout the case) and/or capital (payable at the end, if any income contributions have not covered the defence costs).

Question 31

Explain what the relevant threshold is for the means test in the crown court?

Answer 31

In relation to the applicant’s annual household disposable income, the applicant will be:

Not eligible for public funding:
* If above the eligibility threshold (£37,500 or more).

Eligible for public funding without any contribution-
* If below the threshold (£3,398 or less).

Eligible for public funding with a contribution
* if in between the thresholds (£3,399-£37,499.99) - the income-based contribution is 90% of disposable income for a maximum of 6 months in instalments and subject to a maximum based on the type of offence (refunded with interest if the defendant is acquitted).

Question 32

What is the merits test (interest of justice test)?

Answer 32

*In order to pass the merits test, the defendant must complete a form (CRM14-Application for Legal Aid in Criminal Proceedings) in order to demonstrate that it is in the interests of justice for them to be legally represented.

1) I will lose my liberty
2) I have been given a sentence that is suspended or non-custodial-if I break this, the court may be able to deal with me for the original offence.
3) It is likely I will lose my livelihood.
4) It is likely I will suffer serious damage to my reputation.
5) A substantial question of law may be involved.
6) I may not be able to understand the court proceedings or present my own case.
7) Witnesses may need to be traced or interviewed on my behalf.
8) The proceedings may involve expert cross examination of a prosecution witness.
9) It is in the interests of another person that I am represented.
10) Any other reasons.

Question 33

When will the merits test automatically be passed?

Answer 33

A defendant will automatically pass the interests of justice test if:

• Charged with an indictable-only offence
• An either-way offence is later sent to the Crown Court.
• defendants under the age of 18

Question 34

When will the means test automatically pass? What is the concept of passporting?

Answer 34

The means test is automatically passed when:

• they are under the age of 18
• they receive welfare benefits, income support, universal credit, jobseeker allowance etc.
• will check NINO of defendants

Question 35

What is meant by ‘I will lose my liberty’?

Answer 35

*To determine whether a defendant is likely to receive a custodial sentence, a solicitor will refer to the aggravating and mitigating factors in the sentencing guidelines.

*Solicitor will find out the likely sentence for the offence their client can be charged with, taking into account previous convictions of the defendant, factual allegations made by the prosecution which can aggravate the seriousness of the offence.

*It is not enough that the offence is imprisonable.

*The term ‘likely’ has been argue as meaning a ‘real and practical one.’

Question 36

What is meant by ‘I have been given a sentence that is suspended or non-custodial-if I break this, the court may be able to deal with me for the original offence’?

Answer 36

If the defendant is currently serving a suspended sentence, there is a statutory presumption his sentence will be activated and so will go to prison if he commits a further offence during the period of suspension (CJA 2003, Sch 12, para 8).

Therefore, he will likely lose his liberty if convicted.

Question 37

What is meant by I’t is likely I will lose my livelihood’?

Answer 37

Defendant intends to plead not guilty and is in employment, conviction is likely to lead to the loss of that employment.

It will always apply to any defendant in employment, who is likely to face a prison sentence if convicted, but can also be relevant for other defendants who are not likely to receive a prison sentence but have particular jobs which may be lost in the event of conviction.

Examples:
- a defendant may be a bus driver charged with a road traffic offence (dangerous driving) which will result in their disqualification from driving if they are convicted.

• A teacher charged with common assault (since an offence of violence will preclude the defendant from working with children in the future)
• Defendant who is in a position of trust at work who may lose their job if convicted of an offence involving dishonesty (such as an employee of a bank accused of theft).

Question 38

What is meant by It is likely I will suffer serious damage to my reputation?

(only relevant where the defendant intends to plead not guilty)

Answer 38

The key term is serious clearly, a conviction to a person who is currently ‘of good character’, is going to affect their reputation in terms of future or current job prospects, they will lose reputation for honesty or trustworthiness.

Two factors considered:
1) D’s current reputation (e.g. vicar, local councilor, school governor)
2) Nature and seriousness of offence will cause serious damage (must be serious).

(If D intends to plead guilty, the factor is unlikely to be relevant)
WILL ONLY APPLY TO DEFENDANTS WITH NO PREVIOUS CONVICTIONS.

Question 39

What is meant by ‘a substantial question of law may be involved’

(only relevant where the defendant intends to plead not guilty)

Answer 39

Either a prosecution evidence is in dispute or the defendant wishes to bring evidence with the CPS might argue is inadmissible. For example

1)There is disputed identification evidence and the court needs to apply the Turnbull guidelines to such evidence

2)There is a possibility that the court may draw adverse inferences under ss34, 36 or 37 of the CJPOA 1994 and from the defendant’s refusal to answer questions at the police station

3)If either prosecution or the defence are seeking to persuade the court to admit hearsay evidence under s114 of the CJA 2003

4)If the defence are seeking to use ss76 or 78 of PACE 1984 to argue that a confession made (or allegedly made) by the defendant should be excluded.

5)If the prosecution want to adduce at trial evidence of the defendant’s previous convictions under s101 of CJA 2003 or either party is seeking to adduce bad character evidence of any other person under s100 of the same Act.

Question 40

What is meant by ‘I may not be able to understand the court proceedings or present my own case’

(only relevant where the defendant intends to plead not guilty)

Answer 40

1) mental or physical disability 2) Poor english
3) Particularly young or old
4) Otherwise vulnerable

The requirement for an interpreter will not only be sufficient to satisfy this factor-it must be proven D cannot present their own case.

Disability alone is insufficient-it must be proven the disability has an impact on D’s ability to understand proceedings and present their case.

Question 41

What is meant by ‘It is in the interests of another person that I am represented’

(only relevant where the defendant intends to plead not guilty)

Answer 41

This will generally be a witnesses or the complainant’s interest.
- Not the defendant’s family.

This factor will apply when it would be inappropriate for a defendant to represent himself because he would need to cross-examine prosecution witnesses in person.

E.g., if the defendant has been charged with a sexual or violent offence, or if the victim was a child.

Question 42

What is meant by ‘the proceedings may involve expert cross examination of a prosecution witness’

(only relevant where the defendant intends to plead not guilty)

Answer 42

Relevant if a witness needs to be cross-examined:
- To determine a question of law or
- To decide on the admissibility of a particular piece of evidence or  If the evidence given by the witness is complex or technical.

E.g., if the defendant’s solicitor is attempting to persuade the court to exclude a confession his client made when interviewed, it will be necessary to cross-examine any police officers who are giving evidence for the prosecution to establish that the Codes of Practice issued under PACE 1984 were breached.

E.g., if the prosecution seeks to rely on expert evidence of a forensic scientist, for instance.

Question 43

What is meant by ‘any other reasons’ in the merits test.

(only relevant where the defendant intends to plead not guilty)

Answer 43

Any other reasons

*Include in this section any information that you feel makes it necessary for the defendant to receive representation which you have not included earlier.

*I am pleading not guilty, and the matter will proceed to trial.

*The matter is likely to be sent to the Crown Court.

*There are child witnesses or vulnerable witnesses.

Generally, other reasons may be taken into account as part of the interests of justice test beyond the statutory factors.

Question 44

When is the merits test NOT automatically satisfied?

Answer 44

Not automatically satisfies for appeals to the Crown Court against conviction or sentence.

Question 45

Upon being indicated to ask whether the defendant wants to plead guilty what can they do?

Answer 45

1) They can plead guilty
2) They can plead not guilty
3) Remain silent (treated as not pleading guilty).

They are NOT OBLIGED to indicate plea, it is their choice to do so if they wish.

Question 46

What happens if the defendant pleads guilty?

Answer 46

Magistrates court will proceed to the sentencing stage of proceedings - immediately or adjourn the case for pre-sentence reports.

Question 47

What happens when magistrates court adjourns the case for reports or commit the defendant to the crown court for sentence?

Answer 47

They should consider whether the defendant should be held in
1) Remand
2) Bail

at the time of the plea before venue.

Question 48

What happens if the defendant pleads not guilty?

Answer 48

An allocation hearing happens.

An allocation hearing is a formal process whereby the magistrates determine whether the defendant is to be tried at the magistrates court or sent to the corwn court for trial.

Question 49

How can a solicitor advise their client on the trial venue?

Answer 49

Advise of the pros and cons of which court - Crown court vs Magistrates court.

Question 50

What are the PROs of Crown Court?

Answer 50

Statistically greater chance of an acquittal at a Crown Court.
- Juries are perceived to be more sympathetic to defendants than “case-hardened” magistrates.

Disputes over the admissibility of evidence benefit the defendant vs the process in the magistrates’ court:
- In the Crown Court, questions of law & fact are determined by different people i.e., the Judge and Jury respectively, therefore disputes over legal questions, e.g., the admissibility of evidence, will be heard without the jury.
- The jury will be sent out of the room, and the judge will conduct a “voir dire”. The jury will thus be unaware of evidence e.g., a previous conviction, unless it is deemed admissible.
- By contrast, at the magistrates’ court, the magistrate determines questions of law AND fact, which means he will necessarily know about the evidence due to him having to consider its admissibility. Thus, even if the evidence is deemed inadmissible, the magistrate will still know about it and this may be in the back of his mind when making his decision.

A Crown Court Judge will likely have a more sophisticated understanding of the law than a magistrate:
- There is no requirement to hold a legal qualification to be a magistrate. Thus, if the case raises particularly difficult areas of law, it is often advisable for it to be heard in the Crown Court.

Question 51

What are PROS of Magistrates court?

Answer 51

Limited Sentencing Powers:
- The max sentence magistrates can pass is 6 months imprisonment for one offence. The sentencing powers of a Crown Court judge are much greater.
- However: magistrates retain the power to commit the defendant to the Crown Court for sentence if, during or after the trial, facts emerge that make the offence more serious than it appeared at the allocation hearing and so render the magistrates’ sentencing powers inadequate.

Prosecution Costs
- If a defendant loses i.e., he is convicted, he will likely be ordered to make a contribution to the CPS’s costs.
- These costs are likely to be higher in the Crown Court vs the Magistrates’ Court as additional preparation work is ordinarily necessary for a Crown Court trial.

Defence Costs
- Defence costs will be significantly cheaper for a defendant in the magistrates’ court than in the Crown Court.
- If the defendant is funded by legal aid, he will not be required to contribute towards his defence costs in the magistrates’ court. However, in the Crown Court he will be means tested and may have to make contributions towards costs during proceedings or at the end of his case.
- If the defendant is acquitted, they can claim back fees they have paid for legal representation if they have previously submitted an application for legal aid which has been rejected due to “financial ineligibility”.
 However, these will only be reimbursed at Legal Aid Rates (in both the Crown Court and the Magistrates’ Court).

The case will take less time to get to trial
- This may be an important consideration if a defendant has a reason for the case to be concluded quickly e.g., if the defendant has been offered employment in another part of the country or overseas.
- This factor is especially important for a defendant who is denied bail and is remanded in custody.

Stress
- Hearings at the magistrates’ court are generally less intimidating than Crown Court trials, requiring less formality (e.g., no wigs and gowns in the magistrates’ court).

Question 52

Best reason to go to the crown court?

Answer 52

If the evidence is not good at all, a more sympathetic jury trial may benefit the defendant. So crown court can be advised.

Question 53

Best reason to go to magistrates court?

Answer 53

If your client is especially vulnerable or nervous then the magistrates’ court is likely to be the better choice of venue

Question 54

What is an allocation hearing and what is the statutory procedure?

Answer 54

Formal process under ss19-20 MCA 1980 to determine which hearing venue is most suitable.

Question 55

What is the process under s19 of the Magistrates Court Act?

Answer 55

Before making their decision, the court shall

Firstly
S19(2)(a) - Give prosecution opportunity to inform the court of the defendant’s previous convictions (if any) given that relevant convictions will likely affect sentence

S19(2)(b) - give the prosecution and the defendant an opportunity to make presentations/submission as to whether a summary trial (magistrates court) or trial on indicament (crown court) is more suitable.

Following this, the magistrates will consider a number of statutory factors in making their decision

S19(3)(a) whether the sentence which a magistrates court would have the power to impose for the offence would be adequate

S19(3)(b) any representation made by the prosecution or the defendant

S19(3)(b) the allocation guideline issued by the Sentencing Council

Question 56

What is meant by adequacy of the magistrates sentencing powers under s19(3) MCA 1980?

Answer 56

Sentencing guidelines will provide an indication as to the starting point and category range of the sentence based upon the severity of the offence, the culpability of the defendant and any aggravating and mitigating circumstances and potential reduction for guilty plea.

Question 57

How must the defendant be warned regarding the decision of a sentence in the magistrates court summary trial under s19(3) MCA?

Answer 57

The defendant must be warned that even if a decision is made that summary trial (magistrates trial) is suitable, all sentencing options remain open and if the defendant consents to a summary trial and is alter convicted or the defendant pleads guilty - Defendant may be committed to the Crown Court for a sentence.

Question 58

What is the rule under s19(4)? Clue: 2 ore more connected offences

Answer 58

Where a defendant is charged with 2 or more offences and those offences can either be joined in the same indictment or arise out of the same or connected circumstances (e.g. multiple thefts from the same victim) are adequate in light of the maximum aggregate sentence..THE MAGISTRATES court would have the power to impose for all the offences taken together.

Question 59

What do the allocation guidelines say? About usual/unusual legal or factual complications?

Answer 59

The allocation guideline states that in cases with no factual or legal complications, the court must bear in mind its power to commit for sentence after trial (s14 SA 2020) even if it is likely sentence might exceed the magistrates courts powers.

If there are unusual legal, factual or procedural complexity - case should be tried in the Crown Court.

Question 60

What is the outcome of allocation?

Answer 60

At the end of the hearing the magistrates must determine the outcome of the hearing.

1) Decline magistrates hearing –> crown court more appropriate
2) Accept magistrates hearing

Question 61

What happens if the magistrates have declined jurisdiction at a specific court? What can the defendant do?

Answer 61

They can’t do anything - the defendant has no choice but to accept this decision.

The defendant does not have the right to elect summary trial.

Question 62

What happens if summary trial, i.e. magistrates court is most appropriate? What is the procedure under s 20 MCA 1980?

Answer 62

Procedure : under s20(2) the court will explain to the defendant that:

1) It appears to the court that summary trial is more suitable
2) That they can either consent to be tried, or if they wish be tried at the crown court
3) that if they are tried summarily and convicted by the court, they may be committed for sentence to the Crown Court.

At this stage the defendant may request an ‘indication of sentence’.

Question 63

Why is the indication of a sentence a key part of allocation proceedings? Is the court obliged to give this indication?

Answer 63

s20 4)The court is NOT obliged to give such an indication.

If it does give the indication of a sentence:

s20(5)court must ask the defendant whether they wish to reconsider their intended plea based upon the indication of sentence;

s20(6) If the defendant says that they wish to reconsider their plea - the court will ask them again : do you want to plead guilty or not guilty if the offence were to proceed to trial.

Question 64

What is an indication of sentence?

Answer 64

An indication sentence is where the magistrates identify whether a custodial sentence or non-custodial sentence would be more likely to be imposed if the defendant were to be tried summarily for the offence to plead guilty (MCA 1980).

Question 65

What happens if following the indication of sentence, the defendant changes their plea - and pleads guilty?

Answer 65

Magistrates will proceed as if the defendant pleaded guilty and shall convict them of the offence.

Question 66

What does s20A provide in relation to a guilty plea following the indication of sentence?

Answer 66

oNo court is bound by indication of sentence.
oNo sentence may be challenged or be subject to an appeal on the grounds it is not in line with the indication,
oNo court may impose a custodial sentence, unless such a sentence was indicated in the indication of sentence.

Question 67

What is the relevant section of the MCA 1980 regarding ‘defendant pleading guilty after their indication of sentence’

Answer 67

S20A of the MCA 1980

THIS ONLY APPLIES WHEN THE DEFENDANT CHANGES THEIR PLEA.

Question 68

What if the defendant does not reconsider their plea, and do not change their plea?

Answer 68

Section 20A does not apply here, the indication has no bearing if they are convicted and sentenced.

For example, if the magistrates indicate a non-custodial sentence, there is nothing to prevent the magistrates from imposing a custodial sentence if D did not change their plea as the provisions of s20A will not apply

Question 69

Explain the choice the defendant has under s20(9) when the magistrates court have accepted that the case is to be tried summarily.

Answer 69

The defendant must make a choice whether they want to 1) consent to be tried summarily or 2) still wish to go to crown court.

If they consent to be tried summarily
- magistrates will adjourn the case and set a date for summary trial
- The magistrates court will issue directions for case management

They instead elect a trial by jury at crown court
- Magistrates will adjourn the case and send the defendant to the crown court
- date will be set for the defendant’s first appearance before the crown court where their plea will be formally taken
- Magistrates court will complete their case management questionnaire

Question 70

Where can low-value shoplifting be heard?

Answer 70

*Stealing goods valued at £200 or less.

Although theft is an either-way offence, low value shoplifting is treated as summary-only.

*The maximum sentence is 6 months.
*The defendant still has the right to elect to be tried at the Crown Court (s22A(2) Magistrates’ Courts Act 1980).

Question 71

Where can criminal damage be heard?

Answer 71

*Although classed as either-way, the offence can be dealt with at the Crown Court only when the damage is:
o Above £5,000.
o Caused by fire (arson).

If £5,000 or less, the offence becomes summary only and must be dealt with in the magistrates’ court.
*When this is the case, the maximum penalty that can be imposed is 3 months’ imprisonment or a level 4 fine-this is an exception to the normal rule regarding magistrates’ powers.

Question 72

What are special cases under the Crime and Disorder Act 1998 (s50A)? Where can they be heard?

Answer 72

S50A Crime and Disorder Act 1998 provides that cases involving complex fraud or where children may be called as witnesses should be sent directly to the Crown Court, if notice has been given under:
o S51B (fraud).
o S51C (children).

*Although the offences themselves might be classed as either-way, these type of cases will be sent to the Crown Court without going through the plea before venue or allocation procedure.
*For all intent and purposes, they are indictable only.

Question 73

What is a ‘complex fraud cause’ and where can fraud causes be heard?

Answer 73

*To be a complex fraud, at least two of the following must be present:
o The amount is alleged to exceed £500,000.
o There is a significant international dimension.

The case requires specialised knowledge of financial, commercial, fiscal or regulatory matters such as the operation of markets, banking systems, trusts or tax regimes.
o There are numerous victims.
o There is substantial and significant fraud on a public body.
o The case is likely to be of widespread public concern or the alleged misconduct endangered the economic wellbeing of the UK, for example by undermining confidence in the financial markets.

Question 74

What is a plea before venue?

Answer 74

Process specific to either way offences, designed to allow the defendant to indicate/elect their intended plea.

Question 75

What is the role of the solicitor at the first hearing?

Answer 75

The solicitor’s role at this stage involves taking the following steps:

(a) obtaining funding from the LAA to pay for the work they will do on their client’s behalf
(unless the client is paying for their legal costs privately);

(b) obtaining details of the prosecution case from the CPS (for summary and either- way
offences);

(c) taking a statement from the client;

(d) advising the client on the strength of the prosecution evidence and the plea the client should enter (for summary and either- way offences); and

(e) in the case of an either- way offence where the client is indicating a not guilty plea,
informing the client that their case may be dealt with either by the magistrates’ court or
by the Crown Court, and advising the client about the advantages and disadvantages of each court

(f) making an application for bail, where necessary

Question 76

What is meant by ‘the witnesses may need to be traced or interviewed on my behalf’

(only relevant where the defendant intends to plead not guilty)

Answer 76

Relevant if the defendant wishes to call a witness in support of his case. Witnesses need to be traced and statements taken from them.

The defendant must, however, explain WHY he requires legal representation in order to trace the witness and take the statement.

Question 77

What is granting of the representation order?

Answer 77

If the LAA are satisfied that the interest of justice and means test is satisfied - magistrates court will grant the representation order which will then be sent to the defendant’s solicitors.

If the application is refused - they can appeal to magistrates court or resubmit another application.

Question 78

What are examples of either way offences?

Answer 78

*Theft (s1 Theft Act 1968)

*Burglary (s9(1)(a) or s9(1)(b) Theft Act 1968)

Fraud:
oBy false representation
oBy abuse of position
oBy failing to disclose.

Assault occasioning ABH (s47 OAPA 1861)

Wounding or inflicting GBH (s20 OAPA 1861)

*Simple criminal damage where the value exceeds £5000

*Simple arson

*ONES WITH STARS ARE IMPORTANT AS THERE WILL BE CERTAIN CONDITIONS AS TO WHERE THEY CAN BE HEARD