Either-way offences Flashcards
briefly, what is the standard procedure?
- PBV
- possibly allocation procedure
what happens during the PBV?
- Clerk reads charge
- Checks P has received IDPC
- Explains D if G plea MC can sentence or send to CC to sentence
- D requested to give plea
explain how a G and NG plea affects the standard procedure
o G plea treated as summary offence, but MC will send to CC to sentence if they have insufficient powers
o NG / no plea allocation procedure
explain the allocation procedure (7)
- P informs MC of facts + pre-cons
- MC consider: mode of trail representations; sentencing powers; allocation guidelines
- Possible outcomes:
o Trial on indictment more suitable case sent to CC forthwith
o Suitable for summary trial proceed with remaining steps - MC explain to D summary suitable, D can choose, if they choose summary and are convicted, can still be sent to CC for sentence.
- D can request indication of sentence
- If continuing with NG plea D decides summary or indictment trial
- If D chooses summary & P consider MC sentencing power inadequate, P can make an application. Must be made before any other issue is dealt with.
what is an indication of sentence? is this obligatory?
whether custodial/non-custodial sentence more likely is summarily tried
D can request this but it is at the court’s discretion
is an indication of sentence binding?
If D changes their plea, they cannot be given a custodial sentence unless this was indicated. In all other cases the indication is not binding.
what happens if there are co-Ds and one elects CC trial?
all Ds sent to CC
what are the factors in favour of an MC trial? (6)
o Limited sentencing power
o Quicker
o Less formalities
o Likely any costs order will be smaller
o No contribution if entitled to legal aid
o No obligation to serve a defence statement
what are the factors in favour of a CC trial? (4)
o Greater chance of acquittal
o Better admissibility procedures
o Legal aid more likely
o More time to prep
what is meant by ‘sending without allocation’?
certain cases must be sent to the CC forthwith (i.e. no mode of trial procedure)
what cases are sent without allocation? (4)
o s51B / s51C notice given
o D is charged an either-way offence which is related to an indictable-only or s51B/C case committed by themselves or another
o D or a co-D has/is being sent to CC for trial of a related offence
o if D has been jointly charged with J for the same either-way or related offence and J has been sent to the CC, D’s case must be too
explain s51B Crime and Disorder Act 1998 cases and conditions
DPP / Director Serious Fraud gives notice to MC of indictable serious/complex fraud case.
Conditions:
* Evidence is sufficient for trial
* Evidence reveals case should be taken to CC without delay
explain s51C cases and conditions
DPP gives notice to MC of certain child cases (i.e. abduction, false imprisonment).
Conditions:
* Evidence is sufficient for trial
* Child W
* Delay would prejudice a child
what happens if D is charged with more than one either-way offence and enters different pleas?
The NG plea is subject to the allocation procedure which determines where the G plea will be heard:
* NG plea in MC - G plea sentenced immediately or adj. until end of NG trial
* NG plea in CC - MC can sentence G plea or send to CC
what is the position as to mode of trial under the sentencing guidelines? Explain the effect of this.
Either-way offences should be tried summarily unless:
The outcome would clearly be in excess of the court’s powers; or
The case is unusually legal, procedural or factually complex
Therefore, MC might retain a case which could exceed the sentencing powers if it is not clear that the sentence will exceed their sentencing powers, because the MC can commit the case to the CC for sentence after the trial
what is the general position where D is charged with two offences of differing seriousness? give an example to explain the effect of this
If there are two offences of different seriousness, the lesser offence (generally) follows the more serious one i.e. ABH + robbery.
ABH would almost always follow robbery and so there would be no allocation procedure as the ABH would be a related offence.
