First hearings Flashcards
Where do all adult defendants have their first hearing?
All adult defendants will have their first hearing before the Magistrates’ court irrespective of the offence they have been charged with
Which courts for which offences?
Summary only: dealt with in the magistrates court
either-way: dealt with only in the magistrates court or the crown court
Indictable only: can be dealt with in the crown court
Timing of the first hearing: on bail
Prosecutor anticipates a guilty plea which is likely to be sentenced in the MC: within 14 days of being charged
Anticipated defendant will plead not guilty or the case is likely to go to the Crown court for trial or sentence: within 28 days of being charged
Timing of first hearing: detained in police custody
Must be brought before the first available court
Does the defendant need to be present at the first hearing?
Yes they usually need to be present.
exception: they are summonsed to court (usually for a non-imprisonable offence) - not an offence to not show up. If the case can proceed in absence it will do so. Penalty can also be imposed in absentia.
Remember: fail to surrender to bail at the appointed time is an offence under the bail act 1976.
When must the initial details of the prosecution case be served?
Prosecution is obliged to serve the initial details on the court officer as soon as practicable and no later the beginning of the day of the first hearing.
If defendant requests those details the prosecutor must serve them on the defendant as soon as practicable and no later than the beginning of the day of the first hearing.
What happens if if there IDPC are not supplied in time?
It does not constitute a ground upon which a court may dismiss a charge or give rise to an abuse of process application.
Usual remedy is for the court to adjourn a first hearing and/or award costs to the defence for the prosecution’s failure to serve.
What is in the IDPC?
- summary of the circumstances of the offence
- any account given by the defendant in interview
- any written statements and exhibits that are available and material to plea and/or mode of trial or sentence
- victim impact statements; and
- the defendant’s criminal record
Must be sufficient at the first hearing to allow the court to take an informed view on plea and venue for trial.
Where no guilty plea is anticipated they should be sufficient to assist the court in identifying the real issues and in giving directions
IDPC: where the defendant was in police custody?
Before the first hearing the IDPC only needs to contain:
- summary of the circumstances of the offence
- the defendant’s criminal record
First hearings: summary and either-way
Will be the hearing that deals with matters such as:
- plea
- bail
- representation and legal aid
In some cases it might progress to sentence.
First hearings: indictable only
MC has no jurisdiction to deal with an indictable only offence and so a defendant charged with an indictable only offence makes only a brief first appearance in a magistrates court.
Court will deal with bail and legal aid and defendant will indicated their plea on the Crown Court sending form.
Defendant is then sent to the crown court where they will enter a plea. The hearing at the CC is three or four weeks later (depending on bail status).
Exception to summary offences only in MC
Where the defendant is charged with an offence that is to be tried in the Crown court and there is a summary only offence which is connected to the indictable offence.
Must be sent for trial and included on indictment:
- common assault
- assaulting a prisoner or secure training centre officer
- taking a motor vehicle or other conveyance without authority
- driving a motor vehicle while disqualified
- criminal damage
Plea before venue
Part of the first hearing when the offence is triable either way.
Charge is written down and read out to defendant.
Defendant can either:
- indicate guilty
- indicate not guilty
- give no indication
Where no indication is given, it is treated as a not guilty indication.
Warning before indicating plea
Before plea is indicated, the defendant must be warned that if they plead guilty, they can be:
- sentenced by the court; or
- committed to the crown court for sentencing if the court is under the impression its sentencing powers are insufficient to deal with the offence
Either-way: guilty plea
If the defendant indicates a guilty plea the court will treat that as a formal plea of guilty and proceed to sentence.
Either-way offence can be sentenced in either a magistrates’ court or the crown court and the MC must consider whether its sentencing powers would be sufficient in the circumstances given.
If powers are sufficient then sentence may be passed immediately or adjourned for prep of a pre-sentence report.
MC sentencing powers
MC court does not have the power to impose more than six months imprisonment in respect of any summary only or single either-way offence.
For two or more either-way offences the maximum is 12 months imprisonment
Committal for sentence
If powers are insufficient defendant will be committed for sentence to crown court.
MC should order a pre-sentence report for use by the CC if it considers that:
- there is a realistic alternative to a custodial sentence
- defendant may be a dangerous offender
- some other appropriate reason for doing so
either way: not guilty plea
The court will consider where the trial will be held.
Court must take into account the allocation guideline which indicates that either-way offences should generally be tried summarily unless:
- court’s sentencing powers would be insufficient
- for reasons of unusual legal, procedural or factual complexity
Usually cases will stay in the MC unless clearly so serious that only the crown court should have the power to deal with the defendant
Allocation hearing: the prosecution
- opens with the facts
- outlines the defendant’s offending history
- makes submissions as to where the trial should be held consistent with the allocation guidelines
Submissions will cover the nature and seriousness of the offence including any particular aggravating and mitigating features
Allocation hearing: defence
- can make submissions as to venue
- where they agree with the prosecution it may be no more than saying that
- if disagree will need to make fuller and more persuasive submissions at this point.
Allocation hearing outcomes
- Allocate to the CC
- matter is sent to CC
- defendant will make their next appearance at the CC - Decides to retain jurisdiction
Court will explain to defendant:
- the court has decided a summary trial is more suitable
- defendant can consent to be tried summarily or be tried by a jury
- if D is tried summarily and convicted, D may still be committed to the CC for sentence
Indication of sentence
Defendant can ask for an indication of sentence if they were to plead guilty instead.
- court has discretion as to whether they will give an indication
- court can decline to give an indication
- if they do give an indication it must be confined to telling the defendant whether the sentence would be custodial or non-custodial
- if defendant changes their plea to guilty and the process followed will be as if they had pleaded guilty from the outset
- where a non-custodial sentence is indicated, that indication will be binding on any later magistrates
Note: if defendant does not change their plea to guilty, then the indication given will not bind any later court.
Election for CC
If MC decides to retain jurisdiction of the case, the defendant can either choose to:
- consent to being tried in the MC
- elect to be tried in the CC
Note: defendant should be told that even if they consent to summary trial, the court still has the power to commit them to the CC for sentence.
Advice to client on election
Trial on indictment:
- acquittal rate is higher in the CC
- separate tribunals of law and fact in the CC can be useful. Voir dire allows judge to hear arguments to exclude evidence in absence of the jury
- not always the case that a CC judge will sentence more harshly than a MC
Summary:
proceedings are:
- less formal
- waiting time is shorter
- trial is faster
- defendant is not required to serve a defence statement
- less expensive than the CC
- MC have to provide reasons for their decision whereas juries do not give reasons
- MC has less sentencing powers (but can still commit to CC for sentence)
