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FLK2 - Criminal Practice > First Hearing in the Magistrates' Court > Flashcards

First Hearing in the Magistrates' Court Flashcards

1
Q

when will the 1st hearing be in the MC?

A
  • Where D is aged 18 or over, the 1st hearing is always in the MC
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2
Q

re: classification of offences

how are act classified?

A
  • Acts are categorised by statute.
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3
Q

re: classification of offences

what is the position re indictable offences?

A
  • NB: where an Act refers to ‘indictable offences’ without further qualification, this includes indictable-only offences and triable either way offences
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4
Q

re: classification of offences

give examples of indictable only offences

A

Indictable-only offences  the most serious offences inc. murder, rape, manslaughter, s18 GBH, robbery, blackmail, kidnap.

Trial will be in the CC.

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5
Q

re: classification of offences

give examples of either-way offences

A

can be dealt with by MC or CC

inc. burglary, handling stolen goods, s20 GBH, ABH, sexual assault, threats to kill, dangerous driving, possession of a weapon or controlled drugs

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6
Q

re: classification of offences

give examples of summary offences

A

dealt with in the MC

inc. common assault, s4&5 Public Order Act 1984, taking a vehicle without consent

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7
Q

re: classification of offences

what is low-level shop lifting

A

the aggregate value of charged shoplifting offences doesn’t exceed £200

o If the value exceeds this amount, the offence(s) will be either-way and D can be sent to the CC for sentencing (so sentence could be longer than 6m)

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8
Q

re: classification of offences - low-level shoplifting

what type of offence is this?

A

Summary offence that will be heard in the MC unless adult D enters a NG plea, then D can elect a CC trial

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9
Q

re: classification of offences - low-level shoplifting

what happens if D pleads G in MC?

A
  • D pleads G in the MC > case cannot be sent to MC for sentence
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10
Q

re: classification of offences - criminal damage

what type of offence is this?

A

Summary offence so long as the damage is less than £5k

HOWEVER, if the damage (of any value) is caused by fire or to a memorial, then this will be an either way offence

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11
Q

re: classification of offences - criminal damage

what is the definition of memorial?

A

o A building/structure/other thing erected/installed on land; or
o A garden/other thing planted or grown for a commemorative purpose in relation to any living or deceased person or animal

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12
Q

re: Initial Details of the Prosecution Case

what is D’s entitlement?

A

All Ds are entitled to IDPC.

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13
Q

re: Initial Details of the Prosecution Case

what does this include?

A

If D was in police custody immediately before the hearing:
 Summary of circumstances of the offence; and
 D’s pre-cons (if any)

In all other cases, the above plus:
 D’s account given in interview (can be in the summary or another doc)
 Any w/s P has available which is material to plea, allocation or sentence
 Any available victim impact statements

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14
Q

re: Initial Details of the Prosecution Case

in addition to this, what should P also provide and in what circumstances?

A
  • If D has been released on post-charge bail and P expects a NG plea, unless there is good reason, before the 1st hearing P should also provide:
    o Statements and exhibits important for plea and initial case management inc. CCTV, streamlined forensic report that would be relied on at trial
    o Indication of any medical / expert evidence P is likely to adduce
    o Any information on special measures, bad character or hearsay
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15
Q

re: Initial Details of the Prosecution Case

when will P be prevented from introducing information?

A
  • If P tries to introduce info D is entitled to but has not been disclosed, the court cannot allow P to introduce it until D has had time suffice time to consider it
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16
Q

re: Initial Details of the Prosecution Case

what is the deadline for providing this?

A
  • IDPC must be provided no later than the day of the hearing, but P should provide this information asap to allow D to receive advice as to plea
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17
Q

re: Initial Details of the Prosecution Case

why might D seek an adjournment?

A

if P has delayed providing the IDPC and D hasn’t been able to get advice from a solicitor

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18
Q

re: Initial Details of the Prosecution Case

how does D’s solicitor obtain this?

A
  • D’s solicitor should contact P before the 1st hearing and provide the URN on the charge sheet
  • P will email IDPC via CJSM or make it available on the common platform
  • If the solicitor is seeing the client for the first time on the day of the hearing, they will need to call the CPS central number
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19
Q

re: summary offences

what happens if D pleads G?

A
  1. P tells MC facts and any pre-cons
  2. D gives plea in mitigation
  3. MC will either: sentence immediately or adjourn (i.e. to obtain necessary reports or to hold a Newton Hearing)
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20
Q

re: summary offences

what happens if D pleads NG?

A

MC fixes a date for trial (6 – 8 week’s time) and issues CMD

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21
Q

re: summary offences

explain the position regarding related summary offences (indictable-only)

A

Must be sent to the CC if it is related to an indictable-only offence and either:
o Summary offence is punishable by imprisonment; or
o Summary offence involves obligatory/discretionary driving disqualification

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22
Q

re: summary offences

explain the position regarding related summary offences (either-way)

A

If the MC is sending an either-way offence to the CC for trial, the MC may send a related summary offence to the CC in two instances:

  1. The summary offence is either:
    o common assault; taking a conveyance without consent; driving disqualified; or criminal damage; and
    o The summary offence is founded on the same facts as the either-way offence or is part of a series of similar offences
  2. The summary offence is:
    o Punishable by imprisonment or disqualification from driving; and
    o Appears to the court to be related to the either-way offence
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23
Q

re: summary offences

what happens if D is convicted on the either-way offence and pleads G to summary offence?

A

CC can sentence summary offence but powers are limited to those of MC

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24
Q

re: summary offences

what happens if D is acquitted of either-way offence or pleads NG to summary offence?

A

case must be remitted back to the MC for trial

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25
Q

re: either way offences

when does sending take place without allocation?

A

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

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26
Q

re: either way offences

when must MC send the case to the CC?

A

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

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27
Q

re: either way offences

what is a s51B notice?

A

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

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28
Q

re: either way offences

what are the s51B notice requirements?

A

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

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29
Q

re: either way offences

what is a s51C notice?

A

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

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30
Q

re: either way offences

what are the s51C notice requirements?

A

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

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31
Q

re: either way offences

give a summary of what happens where the allocation procedure does take place?

A
  1. plea before venue (PBV)
  2. allocation
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32
Q

re: either way offences

what happens at the PBV?

A

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

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33
Q

re: either way offences

what happens if D has been charged with more than 1 either-way offence and they indicate a different plea for each?

A

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

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34
Q

re: either way offences

what happens if D enters G plea to the offence(s) at the PBV?

A
  • 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
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35
Q

re: either way offences

what happens if D enters NG plea / no indication of plea at PBV?

A

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

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36
Q

re: either way offences

explain the allocation procedure

A
  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
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37
Q

re: either way offences - allocation procedure

explain step 2 ‘MC will consider…’

A

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)

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38
Q

re: either way offences - allocation procedure

what happens if MC decide the case is more suitable for CC?

A

must be sent to CC forthwith

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39
Q

re: either way offences - allocation procedure

explain step 4 ‘Case is suitable for summary trial, MC must explain to D…’

A

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

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40
Q

re: either way offences - allocation procedure

explain step 5 ‘D can request an indication of sentence’

A

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.

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41
Q

re: either way offences - allocation procedure

what is the effect of indication of sentence is given?

A

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

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42
Q

re: either way offences - allocation procedure

explain step 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’

A

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)

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43
Q

re: either way offences - allocation procedure

what happens of D consents to a summary trial and MC disputes this? when must the application be made?

A

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

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44
Q

re: either way offences - allocation procedure

what happens if there are co-Ds and one chooses CC?

A

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

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45
Q

re: either way offences

what factors are in favour of an MC trial?

A

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

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46
Q

re: either way offences

what factors are in favour of a CC trial?

A

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

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47
Q

re: indictable-only offences

when will there be a sending hearing?

A
  • Applies to indictable-only & either-way offences sent to the CC forthwith
48
Q

re: indictable-only offences

what happens at the sending hearing?

A
  • 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
49
Q

what professional conduct issues might arise?

A
  • If D admits G but intends to enter an NG plea
50
Q

what must the solicitor do if if D admits G but intends to enter an NG plea?

A

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’)

51
Q

if the client has admitted guilt but wants to please NG, what can the solicitor do?

A

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

52
Q

if the client has admitted guilt but wants to please NG, what can the solicitor not do?

A

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’)

53
Q

re: bail

when is bail decided upon?

A
  • 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
54
Q

re: bail

is there a right to bail?

A
  • Presumption that all Ds have a right to unconditional bail (noting exceptions)
55
Q

re: bail

who has no right to bail?

A

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

56
Q

re: bail

when is the right to bail limited?

A

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

57
Q

re: bail

explain bail in relation to murder

A

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

58
Q

re: bail

when are the statutory exceptions to the right to bail relevant?

A

this is only relevant if the presumption of bail applies

59
Q

re: bail

in summary, when can bail be refused?

A

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

60
Q

re: bail - indictable-only and either-way offences

what are the statutory exceptions?

A

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

61
Q

re: bail - indictable-only and either-way offences

what factors will the court consider when deciding whether they can rely on a statutory exception?

A

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

62
Q

re: bail - indictable-only and either-way offences

explain ‘D’s character (i.e. pre-cons), antecedents, associations and community ties’

A

 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

63
Q

re: bail - indictable-only and either-way offences

explain ‘Previous grants of bail’

A

D has pre-cons for failing to answer bail

64
Q

re: bail - Non-imprisonable Offences

what is the position regarding the likelihood of bail?

A
  • Very rare bail for a non-imprisonable offence to be refused.
65
Q

re: bail - Imprisonable Summary-only Offences & Non-imprisonable Offences

what statutory exceptions apply to both of these categories of offences?

A

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

66
Q

re: bail - Imprisonable Summary-only Offences

what statutory exceptions apply to these offences only?

A

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

67
Q

re: bail - Non-imprisonable Offences

what statutory exceptions apply to these offences only?

A

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

68
Q

re: bail

what must the court ask itself if statutory exception is satisfied?

A

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)

69
Q

re: bail

what must bail conditions do?

A

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

70
Q

re: bail

what are the possible conditions?

A

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

71
Q

re: bail

explain ‘surety’

A

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

72
Q

re: bail

explain ‘security’

A

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

73
Q

re: bail

explain ‘residence’

A

D resides at a specific address and police visit

74
Q

re: bail

explain ‘curfew’

A

may include tag

75
Q

re: bail

explain ‘communication with witnesses’

A

covers direct and indirect

76
Q

re: bail

explain ‘Attending appointments with solicitor/probation’

A

to prevent delay of case

77
Q

re: bail

explain ‘surrender of passport’

A

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

78
Q

re: bail

when is electronic monitoring used? what is the test?

A

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+)

79
Q

re: bail - time limits

what is the time limit when remanded on bail before conviction?

A
  • can be for any period of time, subject to D’s consent
80
Q

re: bail - time limits (MC - pre-conviction)

what is the time limit when remanded to custody before conviction?

A

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

81
Q

re: bail - time limits (MC - pre-conviction)

what are the conditions re ‘D consents and has legal rep’?

A

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

82
Q

re: bail - time limits (MC - pre-conviction)

what are the conditions re ‘The court can remand D for up to 28 days’?

A

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

83
Q

re: bail - time limits (MC - pre-conviction)

where is D usually remanded and when might this be different?

A

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)

84
Q

re: bail - time limits (MC - pre-conviction)

where D is remanded to police custody for 3 days, what must happen?

A

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

85
Q

re: bail - time limits (MC - pre-conviction)

what is the purpose of custody time limits?

A

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

86
Q

re: bail - time limits (MC - pre-conviction)

what is the CTL for summary offences?

A

56 days before trial

87
Q

re: bail - time limits (MC - pre-conviction)

what is the CTL for either-way offences?

A

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

88
Q

re: bail - time limits (MC - pre-conviction)

when can CTL be extended?

A
  • 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
89
Q

re: bail - time limits (MC - pre-conviction)

how can CTL be extended?

A
  • 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
90
Q

re: bail - time limits (MC - pre-conviction)

what happens on expiry of CTL?

A
  • D must be released on bail upon expiry of the custody limit
91
Q

re: bail (MC)

how long can D be remanded on bail after conviction?

A

successive periods not more than 4 weeks

92
Q

re: bail (MC)

how long can D be remanded to custody after conviction?

A

successive periods not more than 3 weeks

93
Q

re: bail

where can D be remanded and for what time when the case is sent to the CC?

A
  • D can be remanded in custody or on bail until the case is before the CC
94
Q

re: bail

what is the procedure for a contested bail application?

A

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

  1. 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.
  2. 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)
  3. If P’s application fails, a record of reasons for bail is given to P on request
95
Q

re: bail

will evidence be heard in a contested bail application?

A

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)

96
Q

re: bail

what is the duty if bail is refused?

A

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)

97
Q

re: bail

how many bail applications is D permitted to make?

A

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

98
Q

re: bail

explain the bail applications D can make

A
  • 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)
99
Q

re: bail - applications

what happens once the case is sent to the CC?

A

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

100
Q

re: bail - applications

if bail was refused in the MC and the case has been sent to the CC, what can D do?

A
  • 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)

101
Q

re: bail - appeals

when can D appeal MC’s bail refusal?

A
  • D can appeal the MC’s decision to refuse bail / vary to conditions to the CC once they have the certificate of full judgment
102
Q

re: bail - appeals (D)

what can be the basis of the appeal?

A

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

103
Q

re: bail - appeals (D)

what is standard practice?

A
  • Standard practice  appeal after all possible bail applications made
104
Q

re: bail - appeals (D)

explain the process

A
  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
105
Q

re: bail - appeals (P)

when can P appeal MC’s decision to grant bail?

A
  • 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’
106
Q

re: bail - appeals (P)

what is the process?

A
  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
107
Q

re: bail

when D is granted bail, what duty are they under?

A
  • Ds granted bail are under a duty to surrender to court for the next hearing.
108
Q

re: bail - absconding

what happens if D fails to surrender to court?

A

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)

109
Q

re: bail - absconding

what are the two offences of failing to surrender?

A

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

110
Q

re: bail - absconding

if D fails to surrender, who decides the next steps?

A

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

111
Q

re: bail - absconding

when can the court sentence for failure to surrender? what is the guidance?

A
  • 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
112
Q

re: bail - absconding

is bail likely to be granted for the remainder of the proceedings?

A
  • 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
113
Q

re: bail - breach of conditions

what is the effect of a breach?

A
  • Breach of bail conditions (not inc. failure to surrender) is not a criminal offence
114
Q

re: bail - breach of conditions

what powers do police have?

A

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

115
Q

re: bail - breach of conditions

if D is arrested for breach of conditions, what happens?

A

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.

116
Q

what is the role of the defence solicitor at the 1st hearing?

A
  • 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

FLK2 - Criminal Practice (11 decks)

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