First Hearing before the Magistrates Court and Allocation Flashcards

1
Q

what are the 3 ways that proceedings can be started against D?

A
  1. charge by the police / CPS = either after police bail or detained pending the hearing (if latter, hearing must be held 24 hours after)
  2. by summons = prosecutor serves information on magistrates alleging offence, then court issues a summons or arrest warrant by post ‘laying information’ to bring criminal proceedings
  3. after a written requisition = written charge and requisition containing the alleged offence and a requirement to attend court - CPS serves this on D and on magistrates
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2
Q

what is the time limit to charge the accused?

A
  • summary only offence = magistrates cannot try unless charge was made within 6 months of the offence
  • indictable offence = no time limit
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3
Q

when does the first hearing take place?

A
  • if D was detained in police custody following charge = the next available court date - 24 hours
  • prosecution anticipates guilty plea = within 14 days of being charged
  • prosecution anticipates not guilty plea = within 28 days of being charged
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4
Q

should D be present at the first hearing?

A
  • D MUST BE PRESENT AT FIRST HEARING (video link is allowed)

if D does not attend:

  • summary only offence = the court will consider if it can proceed with the hearing anyway
  • indictable offence = court CANNOT proceed without D
  • If D was on police bail and does not attend court = court can issue a warrant for D arrest and if D does not surrender, this is an offence
  • if D was summoned to court (for non-imprisonable offences typically) = D does not commit an offence for not appearing and first hearing can proceed and D can be convicted in abstentia
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5
Q

what are the Initial details of prosecution case (IDPC), when must they be available, what do they contain?

A
  • P must supply the court officer and D (if D requests) with IDPC as soon as possible and no later than the beginning of the day of the first hearing (before the first hearing)
  • if prosecution does not give initial details = NOT a ground to dismiss the charge or apply for abuse of process - the court will adjourn the first haring and/or award costs to D
  • contents = info must be sufficient to allow the court to take an informed view on plea and venue for trial, and to give directions if a not guilty plea is anticipated
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6
Q

if a not guilty plea is anticipated, what document must be completed before the first hearing

A

WHERE THERE IS TO BE TRIAL IN MC:
P and D must both complete the Preparation for Effective Trail (PET form) based on the information supplied in P’s IDPC if a not guilty plea is anticipated to help the court in case management

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7
Q

what are the contents of the IDPC?

A

WHERE D WAS NOT IN POLICE CUSTODY IMMEDIATELY BEFORE THE HEARING

  • summary of circumstances of the offence
  • any account given by D in an interview
  • any written statements and exhibits that are available and material to the plea/mode of trial/sentence
  • victim impact statements
  • D’s criminal record

WHERE D WAS IN CUSTODY IMMEDIATELY BEFORE THE HEARING = only:

  • summary of circumstances of the offence
  • D’s criminal record
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8
Q

what happens at first hearing for summary only offences?

A

1) D enters plea:

  • guilty plea (must be unequivocal) = proceed to sentencing
  • not guilty plea = court issues direction for trial at a later date, conducts pre-trial hearing, PET form

2) bail considerations

3) representation order and legal aid

4) sentencing if D pleads guilty

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9
Q

if D is charged with an indictable offence and a connected summary only offence, what happens at the first hearing?

A

the related summary matter MUST be sent to CC for TRIAL on indictment if the summary offence is:

  • common assault
  • criminal damage
  • Taking a vehicle without authority or driving a vehicle whole disqualified

if the related summary offence is not the above but is imprisonable =

  • the summary matter must be sent to the crown court for PLEA only
  • when the trial on indictment for the indictable offence is over, D will be asked to enter a plea for the summary only offence
  • if D pleads guilty, CC can deal with the offence with Magistrates powers
  • if D pleads not guilty, CC cannot deal with the offence and remits the issue to the magistrates court
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10
Q

if D is charged with an indictable only offence and an either way offence which arise from the same facts, what happens at the first hearing?

A

S50A Crime and Disorder Act 1998

  • Magistrates will send both cases to the Crown Court for trial where the 2 offences are linked
  • D CANNOT plead in MC but can indicate his plea
  • no plea before venue or allocation will happen at MC
  • if D indicates it will plead guilty = MC will request the preparation of a pre-sentence report for use in CC
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11
Q

what happens at first hearing if D is charged with an indictable only offence? (4)

A
  1. bail consideration
  2. legal aid and representation order
  3. D makes an INDICATION of plea (to get max reduction in sentence) but no plea is actually taken
  4. case is then sent to Crown Court for Trial
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12
Q

what happens at first hearing if D is charged with an either way offence? (5)

A
  1. plea before venue
  2. bail consideration
  3. representation order and legal aid
  4. sentencing if D indicates guilty plea or adjourn for sentencing for the pre-sentencing report or commit to CC for sentencing
  5. allocation (if D pleads not guilty)
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13
Q

what happens at the plea before venue if D is charged with an either way offence?

A
  • magistrates asks D to indicate whether they will be pleading guilty or not guilty
  • before indicating the plea, D must be warned that if D pleads guilty, they can be sentenced by the Magistrates or committed to the Crown court for sentencing
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14
Q

what are D’s options at a plea before venue if D is charged with an either way offence?

A
  1. indicate guilty plea (must be unequivocal) = sentencing takes place
  2. indicate not guilty plea = allocation takes place
  3. not indicate a plea at all = court proceeds as if D indicated not guilty so allocation takes place
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15
Q

what happens after D indicates a guilty plea at a plea before venue when charged with an either way offence?

A

MC will consider if its sentencing powers are sufficient to sentence D

  • if yes = MC can sentence D at the first hearing OR adjourn for sentencing after the pre-sentence report is prepared
  • if no = MC can commit D for sentence to the Crown Court
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16
Q

what are the magistrates sentencing powers?

A

SUMMARY OFFENCES = Max 6 months imprisonment for any number of summary only offences

EITHER WAY OFFENCES =

  • Max 6 months imprisonment for 1 offence
  • Max 12 months imprisonment for 2 or more either way offences where the sentences run consecutively

(these are all subject to the statutory maximums for those offences)

17
Q

what is allocation and where does it occur?

A

At the first hearing before the magistrates court where D pleads not guilty for either way offence at the plea before venue, the magistrates will consider and decide in which court the trial will be held:

  • summary trial in the MC (accepts jurisdiction)
  • jury trial on indictment in the CC
18
Q

what is the procedure for allocation at the first hearing?

A
  • magistrates will hear representations from the prosecution and the defence
  • P will state the facts and D’s offending history and prior convictions, and make submissions on where trial should be held considering the seriousness of the offence and aggravating / mitigating factors)
  • D will make submissions as to venue and state if they agree with P’s submissions
  • magistrates will then decide whether to accept jurisdiction or send to crown court (considering allocation and sentencing guidelines)
19
Q

how does the magistrates court decide on allocation and what does it consider? (3 points)

A
  • allocation guidelines state that either way offences must generally be tried summarily unless:
  1. the magistrates court’s sentencing powers would be insufficient and the outcome would clearly be a sentence in excess of the MC’s powers for the offences considering mitigation (refer to sentencing guidelines)
  2. the case is factually, legally, or procedurally complex (e.g., several Ds, fraud cases)
  • allocation guidelines also state that where there are no factual or legal complexities or where the case is borderline and the sentence is likely to be slightly in excess of the MC’s powers = the MC must bear in mind its power to commit to the CC for sentence after trial so it may retain jurisdiction
  • s19 Magistrates Court Act 1980 = in deciding on allocation, the MC must consider whether its sentencing powers are adequate for the likely sentence, any representations made by P or D, and the allocation guidelines
20
Q

what can magistrates decide after an allocation?

A

(1) accept jurisdiction for summary trial = court will tell D:

  • it thinks summary trial is more suitable
  • D can either consent to be tried in magistrates or elect to be tried in CC on indictment
  • if D is convicted in summary trial, it can be sent to CC for sentencing

+

D can request an indication for sentence and elect a Crown Court trial

(2) allocate to CC = D cannot elect magistrates court instead

21
Q

what is an indication of sentence?

A

After the MC allocates the either way case to the MC, D can ask the MC for an indication of whether the magistrates will impose a custodial or non-custodial sentence if D pleads guilty

magistrates has DISCRETION on whether to give indication

if magistrates gives an indication of a non-custodial sentence and:

  • D changes their plea to guilty = this is binding on future magistrates
  • D does not change their plea to guilty = this will not be binding on future magistrates and D can be given a custodial sentence
22
Q

what is election?

A
  • Where magistrates retains jurisdiction to try an either way offence, D can elect to be tried by the CC on indictment
  • D’s lawyers must advise D on whether to consent to summary trial or elect jury trial
  • no need to make representations for this - D can simply choose
23
Q

what are the advantages (3) and disadvantages (6) of summary trial vs trial on indictment which you must advise D when considering electing trial in the crown court?

A

reasons to elect trial on indictment =

  • acquittal rate is higher in CC
  • separate tribunals of fact and law can be advantageous when D wants evidence omitted (factual issues can be decided in a voir dire without the jury)
  • sentence may not be judged more harshly in CC

reasons to consent to summary trial =

  • less formal
  • cheaper
  • trial is faster and waiting time to trial is shorter
  • D not required to serve a defence statement
  • magistrates must provide reasons for decision but juries do not
  • magistrates have less sentencing power than CC (although mag can send to CC for sentencing)
24
Q

how is low value shoplifting treated for purposes of allocation?

A
  • low value shoplifting = 200 value or less
  • treated as summary only offence even though theft is either way
  • but D can still elect CC trial
25
Q

what happens in cases where children are called as witnesses?

A

should be sent directly to CC (without allocation and plea before venue)

26
Q

how are criminal damage cases treated for the purpose of allocation? (2 cases)

A
  • value over 5000 or caused by arson = can only be dealt with by the Crown Court (but classed as either way)
  • value 5000 or less = summary only and can only be dealt with by the magistrates court (max penalty is 3 months prison or level 4 fine(
27
Q

how are complex fraud cases treated for purposes of allocation?

A

should be sent directly to CC without allocation and plea before venue

complex fraud = at least 2 of the following might be present

  • amount is alleged exceeds £500,000
  • international dimension
  • case requires special knowledge
  • numerous victims
  • substantial fraud on a public body
  • public concern