First Hearings Flashcards
What is the general rule on presence of the accused at a first hearing?
The accused must be present. There are 2 exceptions to this rule.
What are the two exceptions to the general rule that the accused must be present at the first hearing?
- Plea before venue
2. Determination of mode of trial
What is a plea before venue hearing?
Operates where the accused is legally represented and the court considers that due to the DISORDERLY CONDUCT of the accused, it is NOT PRACTICABLE FOR PROCEEDINGS TO BE CONDUCTED IN THEIR PRESENCE.
Determination of mode of trial
This is where the accused is legally represented, the representative indicates that the accused consents to the mode of trial proceedings being conducted in their absence and the court is satisfied that there is a good reason for the accused not being present.
The prosecution are obliged to serve initial details (CrimPR Part 8). If the accused was in police custody immediately before the first hearing, what must the details comprise?
- a summary of the CIRCUMSTANCES OF THE OFFENCE
2. the accused’s CRIMINAL RECORD
If the accused was not in police custody immediately before the first hearing, what must the initial details of the prosecution case include?
- a summary of the CIRCUMSTANCES OF THE OFFENCE
- any ACCOUNT GIVEN BY THE ACCUSED in interview
- any WRITTEN STATEMENTS/EXHIBITS that are available and material to the plea/mode of trial or sentence
- VICTIM’S IMPACT STATEMENTS
- the accused’s criminal record
When would the defendant be asked to enter or indicate a plea to charge at first hearing?
At a first hearing for a summary only or an either-way offence, the defendant will be asked to enter or indicate their plea to a charge. The defendant can either plea/indicate:
- guilty
- not guilty
- on an either-way offence, give no indication
What does it mean that a guilty plea must be unequivocal?
Unequivocal = free from any suggestion or statement that the defendant is not guilty
Equivocal pleas are treated as….
Not guilty
What happens if no indication is given to an either-way offence
It is treated as a not guilty indication
What happens if D pleads guilty for a summary only offence?
The court will proceed to sentence. If there is any dispute as to the factual basis upon which D will be sentenced the court may hold a Newton Hearing
If D pleads not guilty to a summary only offence then…
The court will set a trial date and do necessary case management
If the magistrares are of the opinion that their sentencing powers are insufficient to deal with the offence then….
the magistrates will commit the case to the Crown Court for sentence under s.3 Powers of the Criminal Courts (Sentencing) Act 2000
If a defendant indicates a not guilty plea for an either-way offence at the Magistrates’ then…
the Magistrates proceed to consider where the trial will be held (allocation)
What does allocation for an either-way offence at the Magistrates’ Court consist of?
- Prosecution open the facts and outline D’s offending history. Prosecution make submissions as to where the trial should be held.
- Defence make submissions as to venue.
If the Magistrates decide to allocate to the Crown Court, the matter is sent pursuant to s.51 Crime and Disorder Act 1998
What do the allocation guidelines generally indicate?
That either-way offences should be tried summarily unless:
- the court’s sentencing powers would be insufficient
- for reasons of unusual legal, procedural or factual complexity the case should be tried in the Crown Court.
What is the most important consideration for the magistrates court when deciding whether to accept jurisdiction?
Whether their sentencing powers are adequate to deal with the offence.
If the Magistrates decide to retain jurisdiction, the court will explain to the defendant that…
- the court has decided that summary trial is more suitable
- D can consent to be tried summarily or be tried by jury
- If D is tried summarily and is convicted, D may still be committed to the Crown Court for sentence
Is D able to ask for an indication of sentence?
Yes but the Magistrates will only indicate the TYPE of sentence (custodial or non-custodial) and they can refuse.
What happens at the first hearing in the Magistrates’ Court for an indictable offence?
D has a brief first hearing in a Magistrates’ Court. The Mags have no jurisdiction to deal with an indictable offence and so no plea or indication is taken. D is sent forthwith under s.51 Crime and Disorder Act 1998 to the Crown Court where they will enter a plea.
s.51(5) Crime and Disorder Act 1998
If one defendant is sent for trial to the Crown Court, the co-defendant is also sent.
Related summary matters that MUST be sent for trial and included on an indictment (s.40 CJA 1988)
Common assault
Assaulting a prison or secure training centre officer
Taking a motor vehicle or other conveyance without authority
Driving a motor vehicle while disqualified
Criminal Damage
What are summary matters that CANNOT be sent for plea or trial despite being related to the more serious offence?
Any one not included in s.40 Criminal Justice Act 1988 and not punishable by disqualification from driving or imprisonment
What happens if a summary only matter (s.40 CJA 1988) is tried on indictment?
It is tried as though it were an indictable offence. But if the accused is convicted, the maximum penalty that may be imposed is that which could have been imposed by a magistrates’ court
s.6 Powers of Criminal Courts (Sentencing) Act 2000
lesser offences committed can be any offence at all to be committed for setnence, it does not have to be imprisonable
Power for magistrates to commit for trial
s.51 Crime and Disorder Act
s.3 PCC(S)A - power for mags to commit for sentence
primary committal
where the mags deem their sentencing powers inadequate
s.4 PCC(S)A - power for mags to commit for sentence
where it is a triable either-way offence and their powers are sufficient but for the sake of sending everything together they commit to the Crown Court
s.6 PCC(S)A - power for mags to commit for sentence
s.6 allows magistrates who are exercising their power under s.3 to also commit any other offence of which D is convicted whether it is summary or indictable
s.40 CJA
if the offences are listed in s.40 they can be sent for trial (even though summary only) with other matters that are going to the Crown Court.
If there is a summary only offence not on s.40 and is not punishable by imprisonment or disqualification it will…
stay in the magistrates’ court but will be dealt with after the main trial in the Crown Court
Does CrimPR Part 8 (disclosure of initial details of prosecution case) apply in every case?
Yes
When must the prosecutor disclose the initial details of their case?
As soon as practicable and no later than the beginning of the day of the first hearing
Can an accused in custody appear at preliminary hearings via live link from prison or police station?
Yes
If the accused is charged with an either-way offence and is in custody what should the magistrates do at once?
Allocation
Once the accused pleads guilty, what must the parties do from the start?
Identify the disputed issues and tell the court what they are. If parties do not supply this information the court must require them to do so. Live evidence at trial should be confined to those issues.
Once the case is sent to the Crown Court and the Prosecution case is served, what comes next?
The accused must give a defence statement to the court and the prosecutor (s.5 CPIA 1996)
What is a defence statement?
A written statement setting out the basis on which the case will be defended.
What must the defence statement include? (s.6A CPIA 1996)
- the nature of the accused’s defence, including any particular defences upon which the accused intends to rely
- the matters of fact on which the accused take issue with the prosecution, and why
- particulars of the matters of fact on which the accused intends to rely for the purposes of defence
- any points of law which the accused wishes to take, with any authorities relied upon
What is defence disclosure?
The duty to reveal the case which will be presented at trial.
Where is the accused’s intended plea taken?
Plea before venue
Where the accused has indicated an intention to plead not guilty to an either way offence (or has failed to give an indication), what must the court proceed to?
ALLOCATION
What does the court have regard to in deciding which mode of trial is more suitable?
- Whether the sentence a mags’ court would have the power to impose would be adequate
- representations made by the prosecution or the accused
- allocation guidance issued by the sentencing council
A summary trial of an either way offence is possible only if….
the Magistrates and the accused both agree to a summary trial
If the magistrates decline jurisdiction…
the case will be sent to the Crown Court
Must the accused generally be present at a plea before venue?
Yes (s.17A(2) MCA 1980)
The allocation guidance says either-way offences should be tried summarily unless either:
- the outcome would clearly be a sentence in excess of the court’s powers
- for reasons of unusual, legal, procedural or factual complexity the case should be tried in the Crown Court
Who can veto summary trial?
The court or the accused (NOT THE PROSECUTION)
What is the most the prosecution can do to influence allocation?
Make representations that trial on indictment would be more appropriate having regard to the gravity of the offence.
Are the magistrates required to have regard to representations of the parties when considering the value involved in criminal damage offences?
Yes - but this does not entail an obligation to hear evidence.
Special provision for low-value shoplifting
Low-value shoplifting = where the value of stolen goods does not exceed £200
Low-value shoplifting is triable summary only. However, where an accused is 18+ the court must give the accused the opportunity to elect trial in the Crown Court. If D elects CC, it must be sent.
Committal for sentence under s.3 PCC(S)A 2000
Magistrates’ Court has convicted an offender of one or more either-way offences and the court takes the view that its SENTENCING POWERS ARE INADEQUATE
What provision?
Where the accused has indicated a guilty plea to an either way offence and is sent for trial for one or more related offences, the mags may commit the offender to the Crown Court for sentence in respect of the either-way offence to which they pleaded guilty.
The two offences must be related, founded on the same facts, or part of a series of offences of the same or a similar character.
Committal for sentence under s.4 PCC(S)A 2000
s.51(3) CDA 1998
provides that, where the court sends an adult for trial under s.51(1) it must also send the accused to the CC for trial for any either way or summary offence with which the accused is charged and which appears to the court to be related to the offence being sent to the CC under s.51(1) (provided that the offence is a summary offence, it is punishable with imprisonment or disqualification from driving)
Where there are co-accused and one accused elects Crown Court trial…what happens…
the magistrates’ court must send any other accused charged with the same offence or related offence to the Crown Court for trial, even if the offence(s) in question would otherwise be suitable for summary trial
What happens if the accused does not appear in court for the s.51 hearing?
The court may issue an arrest warrant.
What does s.40 CJA 1988 provide?
Where certain summary offences (including assault, driving while disqualified, taking a motor vehicle without the owner’s consent and criminal damage where the value does not exceed £5000) are disclosed by the evidence on the basis of which an accused has been sent for trial in respect of an indictable offence, and the summary offence is either founded on the same facts as the indictable offence or forms with it a series of offences of the same or similar character, then the prosecutor MAY INCLUDE A COUNT FOR THE SUMMARY OFFENCES ON THE INDICTMENT.
Summary offences that appear in s.40 CJA 1988
- Common assault
- Assaulting a prisoner custody officer or a secure training centre custody officer
- Taking a motor vehicle without the owner’s consent
- Driving while disqualified
- Criminal damage where the value is the relevant sum or less
s.51 Crime and Disorder Act
Power for mags to commit for trial
