First Hearing in the Magistrates' Court Flashcards

Question

re: either way offences when does sending take place without allocation?

Answer 1

MC must send the case to the CC forthwith where: o Notice has been given under s51B or s51C o D is charged with an either-way offence and related indictable-only or s51B/s51C offence (NB: if the either-way charge is being heard on a subsequent occasion, MC can use the mode of trial procedure) o D is charged with an either-way offence which relates to an indictable only or s51B/s51C case committed by another o D is/has been sent to CC for trial for a related offence o D is jointly charged with an adult D for a related offence which has been sent to the CC o D is either: jointly charged with a J for an either-way offence or D is charged with a related either-way offence and J has been sent to the CC for trial

Answer 2

MC must send the case to the CC forthwith where: o Notice has been given under s51B or s51C o D is charged with an either-way offence and related indictable-only or s51B/s51C offence (NB: if the either-way charge is being heard on a subsequent occasion, MC can use the mode of trial procedure) o D is charged with an either-way offence which relates to an indictable only or s51B/s51C case committed by another o D is/has been sent to CC for trial for a related offence o D is jointly charged with an adult D for a related offence which has been sent to the CC o D is either: jointly charged with a J for an either-way offence or D is charged with a related either-way offence and J has been sent to the CC for trial

Answer 3

DPP or Director of the Serious Fraud Office can give notice to the MC of an indictable offence for a serious or complex fraud case in certain situations

Answer 4

o The evidence is sufficient for S to be put on trial for the offence; and o The evidence reveals such a serious / complex case that it should be taken over by the CC without delay

Answer 5

DPP can give notice to the MC of some cases involving children (i.e. assault, abduction, false imprisonment, some sexual abuse cases) in certain situations

Answer 6

o The evidence is sufficient for S to be put on trial for the offence; and o A child will be called as a witness; o To avoid prejudice to the welfare of the child, the CC should take over without delay

Answer 7

1. plea before venue (PBV) 2. allocation

Answer 8

Justices’ clerk will: o Read the charge, check D has received the IDPC o Explain to D they may indicate how they would plea if the matter were to proceed to trial. If they plead G, the MC can sentence or commit them to CC for sentencing if their powers are insufficient o Ask D to indicate their plea

Answer 9

The NG plea is dealt with first. The outcome of the allocation procedure determines where the G pleas will be heard: o NG plea remaining with MC  sentence immediately for G plea or adj. sentencing to the end of the NG trial o NG plea sent to CC  MC can sentence G plea or send to CC for sentence

Answer 10

* The offences are treated as a summary offence 1. P will explain facts and pre-cons to the MC. 2. D will give a plea in mitigation. 3. MC considers whether it has sufficient sentencing powers, max sentences: o One either-way offence  6 months o 2 or more either-way offences  12 months 4. Insufficient power  committed to CC for sentence 5. Sufficient power  MC will either sentence immediately or adj. for pre-sentence report or Newton hearing before sentence * If adj. or committed to CC, D will either be bailed or remanded in custody

Answer 11

MC decide allocation (i.e. allocation procedure/hearing)

Answer 12

1. P inform MC of the facts and any pre-cons 2. MC will consider things 3. Case is more suitable for trial on indictment  must be sent to CC forthwith 4. Case is suitable for summary trial, MC must explain to things to D 5. D can request an indication of sentence 6. If D continues with NG plea, MC must ask D whether they consent to a summary trial or wish to be tried on indictment 7. If D does not consent to a summary trial / P makes a successful application for transfer, case is sent to CC forthwith

Answer 13

o Any representation as to the most suitable mode of trial o Whether the sentence they can impose is adequate (inc. where D is charged with 2 or more offences and the max sentence they can impose) o The Allocation Guideline (i.e. either-way offences should be tried summarily unless MC sentence is likely to be insufficient MC must consider both arguments and the relevant sentencing guidelines)

Answer 14

must be sent to CC forthwith

Answer 15

o The case appears more suitable for summary trial; o They can consent to this or choose to be tried on indictment; o If they choose summary trial and are convicted, they can be sent to CC for sentence

Answer 16

i.e. whether a custodial or non-custodial sentence is more likely if D were to be summarily tried and plead G o The court retains discretion to give an indication of sentence o If given, D should be asked if they wish to reconsider their plea.

Answer 17

If D changes plea at this stage  no court can impose a custodial sentence unless D was told this would be possible at the indication stage In all other cases, the indication of sentence is not binding on any other court and no sentence can be appealed on the indicated sentence

Answer 18

D must be warned that if they consent to summary trial, they may be committed to CC for sentence D consents  matter will proceed as a summary trial (may be sentenced in CC but rare)

Answer 19

If P believes MC has inadequate sentencing powers, P can make an application for the case to be sent to CC Application must be made before any other application/issue is dealt with

Answer 20

if there is more than 1 D charged with the same offence and one elects CC, all Ds will be sent to CC for trial

Answer 21

NB: only relevant if MC have concluded the matter can be tried summarily o Limited sentencing powers (however, MC can commit the case to CC for sentencing if it transpires the case is more serious i.e. pre-cons) o Generally quicker (important if D is denied bail or works overseas) o Potentially less stressful as less formalities (i.e. no gowns or wigs) o In either court D is likely to be awarded to pay towards C’s costs, amount is usually lower in MC o If entitled to legal aid, D won’t need to pay anything towards the cost of this o Private legal costs are also likely to be cheaper o No obligation to serve a defence statement

Answer 22

o Greater chance of acquittal o Better procedure for challenging admissibility of evidence (void dire hearing) o More time to prepare for trial o Greater chance of legal aid

Answer 23

* Applies to indictable-only & either-way offences sent to the CC forthwith

Answer 24

* MC will explain to D why the case must be sent to the CC * MC will set a date for the PTPH/PH (if PTPH standard directions will be given) * The CC & D will be sent a notice stating the offence(s) sent to CC for trial and the CC hearing the trial

Answer 25

* If D admits G but intends to enter an NG plea

Answer 26

the solicitor must explain: o Benefits of entering a G plea (i.e. reduction in sentence for early G plea); & o Limitations on solicitor’s ability to continue acting for them, i.e the solicitor:  Can  cross-examine P Ws; put P to proof on their case; and make a submission of no case to answer  Cannot  assert a positive defence they know to be false when cross-examining P’s witnesses; continue to act if the submission of no case fails and D insists on entering the witness box to give untrue evidence (the solicitor would need to withdraw for ‘professional reasons’)

Answer 27

cross-examine P Ws; put P to proof on their case; and make a submission of no case to answer

Answer 28

assert a positive defence they know to be false when cross-examining P’s witnesses; continue to act if the submission of no case fails and D insists on entering the witness box to give untrue evidence (the solicitor would need to withdraw for ‘professional reasons’)

Answer 29

* If the matter is adj. for any reason (inc. where the case is sent/committed to CC), the MC will decide whether D should be remanded on bail or in custody

Answer 30

* Presumption that all Ds have a right to unconditional bail (noting exceptions)

Answer 31

D has no right to bail: o Following conviction (unless the proceedings are adj. for a pre-sentence report to be prepared); o Where they have been committed to CC for sentence o When appealing

Answer 32

D’s right to bail is limited (i.e. it can only be granted in exceptional circumstances) where D is charged with or has a pre-con for: - murder, - attempted murder, - manslaughter, - rape, - attempted rape, - other sexual offences

Answer 33

the right to bail is limited only a CC judge can approve a bail application. Bail can only be granted if there is no significant risk of D committing an offence likely to cause physical or mental injury to another whilst on bail The judge must decide no later than 2 days after D was before the MC

Answer 34

this is only relevant if the presumption of bail applies

Answer 35

the presumption of bail applies, there is a real prospect of a custodial sentence and the exception applies In other words, bail cannot be refused if D is 18 or over, D hasn’t been convicted & there is no real prospect D will receive a custodial sentence

Answer 36

The court may remand D to custody where the court is satisfied: o There are substantial grounds to believe that if released on bail D would:  Fail to surrender to custody  Commit an offence whilst on bail  Interfere with Ws or otherwise obstruct the course of justice o D should be kept in custody for their own protection or, if J, their welfare o It has not been practicable to obtain sufficient information to take a decision o At the time of commission of the offence, D was already on bail o D was released on bail in connection with the current proceedings and has been arrested for failing to surrender/breach of bail conditions

Answer 37

Court must consider these factors when deciding if the ground is satisfied: o Nature and seriousness of offence o Likely sentence D will receive (inc. if D is already on suspended sentence) o Strength of evidence against them o D’s character (i.e. pre-cons), antecedents, associations and community ties o Previous grants of bail

Answer 38

 Antecedent = thing that exists which logically precedes another i.e. D has pre-cons for theft to support a drug habit and still has the drug habit. P could argue therefore she is likely to keep committed theft  Associations i.e. D is known to be part of a gang, D knows W and it is feared they may try to interfere with them  Community ties i.e. D is unemployed, no relatives in the area, has only live there for a short period of time or has no fixed above

Answer 39

D has pre-cons for failing to answer bail

Answer 40

* Very rare bail for a non-imprisonable offence to be refused.

Answer 41

o D should be kept in custody for their own protection or, if J, their welfare o D is already serving a custodial sentence o D has already been bailed in the proceedings & has been arrested for failure to surrender/breach of conditions and there are substantial grounds to believe D will fail to surrender, commit an office, interfere with W or obstruct the course of justice

Answer 42

o It has not been practicable to obtain sufficient information to take a decision o D was on bail on the date of the offence and there are substantial grounds to believe they would commit an offence on whilst on bail o Substantial grounds to believe D would commit an offence by causing physical or mental to another

Answer 43

o D is likely to fail to surrender, as they have failed to previously surrender o D has been bailed in the proceedings and arrested for absconding/breaching conditions and there are substantial grounds to believe D would commit an offence by causing physical or mental to another

Answer 44

the court must ask itself whether the risk could be alleviated by imposing conditions. If so, conditional bail should be granted (as opposed to remand to custody)

Answer 45

The bail conditions must be necessary to: o Prevent D from absconding; o Prevent D from committing further offences whilst on bail; o Prevent D from interfering with W or obstructing the course of justice; o Ensure D makes themselves available for reports; o Ensure D keeps an appointment with their solicitor o Ensure D’s own protection or, if J, their welfare

Answer 46

o Surety o Security o Reporting to the police station o Residence o Curfew o Non-communication with prosecution witness o Restriction on entering specified areas o Attending appointments with solicitor/probation o Surrender of passport

Answer 47

i.e. a person who agrees to pay a specified sum of money (a recognizance) if D fails to attend court. If D fails to attend, the court must declare an immediate forfeiture of recognisance and the surety will need to explain why they should not pay. Those unlikely to be allowed as a surety:  Someone with a criminal record, no financial means, lives far away  A solicitor can never be a surety for D

Answer 48

D pays a sum of money to the court. If they fail to attend, they forfeit the money.

Answer 49

D resides at a specific address and police visit

Answer 50

may include tag

Answer 51

covers direct and indirect

Answer 52

to prevent delay of case

Answer 53

only used in serious cases where D is known to have assets / contacts outside the UK

Answer 54

Electronic monitoring can only be imposed to monitor compliance with another bail conditions and where the court is satisfied that: o Without it, the person would not be granted bail; and o The necessary arrangements for EM are in place o (the requirements are greater for juveniles 12+)

Answer 55

* can be for any period of time, subject to D’s consent

Answer 56

D cannot be remanded in custody for more than 8 clear days at a time. D can be remanded for longer where either: 1. D consents and has legal rep, subject to conditions 2. The court can remand D for up to 28 days, subject to conditions

Answer 57

the case must still be with the MC and D must appear before the court at least once every fourth remand

Answer 58

The court can remand D for up to 28 days if: o The court has previously remanded them in custody for the same offence; o D is before the court; and o The court can set a date to remand them to on which it expects the next stage of the proceedings to take place

Answer 59

When remanded to custody, this is usually to a prison or remand centre but P can apply for D to be remanded to police custody for up to 3 days if this is necessary for them to make enquiries into other offences (i.e. D’s involvement is suspected and P wants to interview them)

Answer 60

o D must be brought before the MC as soon as enquiries have ceased o D will have the same rights as if they were detained pre-charge

Answer 61

Custody Time Limits (CTL) safeguard unconvicted defendants by preventing them from being held in pre-trial custody for an excessive period of time.

Answer 62

56 days before trial

Answer 63

70 days before trial (reduced to 56 days if the allocation hearing takes place within 56 days)

Answer 64

* P can apply to extend these limits. P will need to show that, on the balance of probabilities, there is good and sufficient cause and they have acted with due diligence and expedition

Answer 65

* P can make this application orally or in writing but a written notice of intention must be sent to the court and D not two days less that the hearing * Both parties have the right to appeal the outcome of the application to the CC

Answer 66

* D must be released on bail upon expiry of the custody limit

Answer 67

successive periods not more than 4 weeks

Answer 68

successive periods not more than 3 weeks

Answer 69

* D can be remanded in custody or on bail until the case is before the CC

Answer 70

i.e. P objects the granting of bail 1. P must provide D & the court with all information material to the decision 2. P will: state objection; apply for D to be remanded in custody; explain exception relied upon & factors and any relevant pre-cons. 3. D will: make an application for bail; respond to each ground raised by P; suggest any appropriate conditions if the court is not minded to grant bail 4. MC will make a decision (inc. any conditions). If there will be a surety, the court will hear evidence on oath from them to ensure they are suitable. 5. Record of decision is given to D plus if D is refused bail or granted conditional bail, a certificate of full argument (i.e. this states the reasons / conditions) 6. If P’s application fails, a record of reasons for bail is given to P on request

Answer 71

o May hear evidence from someone who supports D’s application (i.e. employer or someone to provide accommodation if D is of no fixed abode)

Answer 72

If bail is refused, the MC is under a duty to consider bail at any subsequent hearing if D is still in custody and the presumption in favour of bail applies o (NB: this does not mean D is permitted to make multiple applications)

Answer 73

3, but the third must be on the basis of new legal or factual argument

Answer 74

* 1st application  D permitted to make bail application * 2nd application  D can make an application at the next hearing using any argument as to facts or law (i.e. D can use the same arguments as 1st app) * 3rd (and subsequent) application(s)  D can only apply for bail if they can raise new legal or factual arguments as to why bail should be granted (i.e. a surety has become available or D has been offered employment)

Answer 75

Once the case has been sent to the CC, the MC does not have jurisdiction to hear bail applications.

Answer 76

* Once the case has been sent to the CC, the MC does not have jurisdiction to hear bail applications. If bail has been refused, D will either need to apply at the next CC hearing or appeal the MC decision (the latter is often quicker)

Answer 77

* D can appeal the MC’s decision to refuse bail / vary to conditions to the CC once they have the certificate of full judgment

Answer 78

o D can rely on the same and/or different facts as the previous applications

Answer 79

* Standard practice  appeal after all possible bail applications made

Answer 80

1. D must complete a notice of application as soon as practicable. This sets out: o The decision; charged offences; why bail should be granted; any new legal or factual arguments; any suggested bail conditions 2. This must be served on: MC, CC, CPs and any surety (affected or proposed) 3. P must inform CC and D if the appeal is opposed and why asap 4. CC should hear the appeal as soon as practicable and no later than 1 business day after it is served, unless the court directs otherwise 5. Appeal will be heard before CC judge in chambers who will consider notice, certificate, record of pre-cons, representations from parties 6. Judge can refuse or grant appeal (and make conditions). If made, the order will need to be sent to prison so D can be released from custody

Answer 81

* P can appeal the MC’s decision to grant bail to D who has been charged with an imprisonable offence and where there is ‘grave concern’

Answer 82

1. P must give oral notice at the end of the hearing in which bail was granted and before D is released from custody 2. This must be confirmed in writing & served on D within 2 hours of oral notice 3. CC judge must hear the appeal in chambers within 2 business days of service (same powers as above) 4. D will be remanded in custody until the appeal is heard

Answer 83

* Ds granted bail are under a duty to surrender to court for the next hearing.

Answer 84

If D fails to attend, MC will issue a warrant for their arrest which will either be: o Backed with bail  police will arrest D and then release them on bail; or o Not backed with bail  D is kept in police custody until they can be brought before the MC. If D is arrested on a Friday after court has finished sitting, a remand court is convened on Saturday (but not Sundays)

Answer 85

2 offences of failure to surrender (it says to custody but applies to court too): o D fails without reasonable cause to surrender; (i.e. 30 mins late to hearing) o D has a reasonable cause, but fails to surrender as soon as it was reasonably practicable for them to do so

Answer 86

If D fails to attend the hearing, the decision depends on who granted bail: o Police  CPS decide whether to charge D for failure to surrender o Court  court decide whether to start proceedings for failure to surrender

Answer 87

* The court can either sentence immediately for the failure to surrender or adj. sentencing until conclusion of the substantive proceedings o SC Guidelines state sentence should be imposed as soon as practicable

Answer 88

* Court may refuse bail in the substantive proceedings or impose conditions * Court may be persuaded to grant bail if there has been a genuine misunderstanding or D voluntarily surrendered to custody

Answer 89

* Breach of bail conditions (not inc. failure to surrender) is not a criminal offence

Answer 90

the police have power to arrest a D on bail they reasonably believe that D is not likely to surrender or has/is likely to, break their bail conditions

Answer 91

D is then brought before the MC within 24 hours. MC will then: o Determine if there has been a breach of conditions. If this is not admitted by D, the court will consider evidence (usually written from P and oral from D, but both can be orally) to decide. o If there has been a breach, MC will decide whether to remand D to custody or consider a bail application from D. MC may impose further conditions.

Answer 92

* Obtain funding from the LAA * Take a statement from the client * Obtain details of P’s case, consider any witness statements, listen to any interview transcript and discuss any admissions made with the client * Advise client on strength of P’s case, plea (i.e. credit for guilty plea, either-way offence may be dealt with in MC or CC) * Whether any further evidence is needed to support D’s case * Make a bail application