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FLK2 - Criminal Practice > First hearings and bail > Flashcards

First hearings and bail Flashcards

1
Q

What are the three types of criminal offences?

A

Indictable only
Either-way
Summary only

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2
Q

What is an offence triable only by indictment?

A

The most serious form of criminal offence which must be dealt with by the Crown Court.

Offences include murder, manslaughter, GBH, rape, kidnap, aggravated burglary.

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3
Q

What is an either-way offence?

A

An offence which either be dealt with by the magistrates’ court or the Crown Court, depending on whether the magistrates decide they keep the case dependent on seriousness.

Offences include theft, sexual assault, fraud, intent to supply controlled drugs etc.

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4
Q

What is an offence that is triable by summary only?

A

The least serious form of criminal offence and generally only dealt with by the magistrates’ court.

Offences include common assault, most road traffic accidents, low value shoplifting under £200 and criminal damage under £5,000.

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5
Q

Which court do all defendants make their first appearance in?

A

The magistrates court, who will then retain the case or send the case on to the Crown Court where necessary.

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6
Q

Who should defendant solicitors make an application to for their client to receive public funding?

A

Legal Aid Agency

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7
Q

When do defendants have access to legal aid?

A

When defendants do not have sufficient means to pay and it is in the interest of justice to do so.

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8
Q

How can a solicitor’s work at the police station be charged?

A

Under a fixed fee under the Police Station Advice and Assistance Scheme.

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9
Q

What two types of assistance can defendants receive after they are charged?

A

The duty solicitor scheme
Application for representation order

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10
Q

What is the duty solicitor scheme in the magistrates’ court?

A

Where a duty solicitor will be on hand to advise any defendants who do not have their own solicitor.

They will claim their costs from the Legal Aid Agency under the Advocacy Assistance (Court Duty Solicitor) Scheme.

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11
Q

How can a defendant apply for a representation order?

A

Complete Form CRM14
Submit a financial statement
Satisfy the two part test

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12
Q

What is the two part test when applying for a representation order?

A

The interests of justice test

The means test

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13
Q

What is the interest of justice test when applying for a representation order?

A

Whether the individual would be likely to lose their liberty or livelihood or suffer serious damage to their reputation

Whether the determination of any matter arising in the proceedings may consider a substantial question of law

Whether the individual may be able to understand the proceedings or state their case

Whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual

Whether it is in the interests of another person that the individual is represented.

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14
Q

What is the means test when applying for a representation order?

A

The applicant receives income support, income-based benefits, guaranteed state pension credit, universal credit, income-based employment

Applicants under 18

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15
Q

Can an applicant appeal if they do not receive legal aid?

A

No, but where an applicant cannot genuinely fund their own defence the applicant may ask that their entitlement to legal aid be reviewed on the grounds of financial hardship on Form CRM16.

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16
Q

If granted, what does the representation order cover?

A

In summary only or retained either or cases which are retained, all magistrates proceedings are covered.

For either or cases which the magistrates decline jurisdiction, the order will extend to the Crown Court proceedings.

An indictable offence will cover proceedings in the Crown Court and magistrates court.

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17
Q

What is the process for a summary offence trial if a defendant pleads guilty?

A

A CPS representative will inform the magistrates of the facts of the case and hand in a copy of previous convictions

The defendant’s solicitor will give a plea in mitigation.

Magistrates will sentence or adjourn if they need any reports before sentencing, or if a Newton hearing needs to be held.

The magistrates will decide if the defendant will be released on bail until the next hearing (where needed)

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18
Q

What is the process for a summary offence if a defendant pleads not guilty?

A

The court will fix a date for the defendant’s trial to take place and issue case management directions for both prosecution and defence.

The magistrates will decide if the defendant will be released on bail.

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19
Q

What is the process for an either way offence if a defendant enters a guilty plea?

A

The magistrates need to determine if they should sentence the defendant or commit them to the Crown Court

The case may need to be adjourned to obtain a pre-sentence report or for the sentencing hearing at the Crown Court.

The magistrates will determine if bail will be granted prior to the next hearing.

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20
Q

What is the process for an either way offence if a defendant enters a not guilty plea?

A

The magistrates determine whether they should be tried in the magistrates court or Crown Court

If the case is to be adjourned, the magistrates will need to determine whether the defendant should be released on bail prior to the next hearing.

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21
Q

What is the process for an indictable only offence?

A

The case will be sent to the Crown Court for either trial or sentence following a preliminary hearing.

The magistrates will need to determine whether the defendant should be released on bail or remanded in custody prior to the next hearing.

22
Q

What is the defence solicitor’s role in the first hearing? (6)

A

Obtaining funding from the LAA

Obtaining details of the prosecution’s case from the CPS

Taking a statement from the client

Advising the client on the strength of the prosecution’s evidence and the plea they should enter (for summary and either way)

Inform the client that in an either way offence, where they plead not guilty, their case may be dealt with by the magistrates court or Crown Court, and such advantages or disadvantages

Making an application for bail

23
Q

What is IDPC and why is it important?

A

Initial details of the prosecution’s case

A defendant / defendant’s solicitor is entitled to receive it for all types of offences as soon as possible so they can receive timely advice on their plea.

24
Q

How can IDPC be accessed?

A

By calling the CPS who will in turn email it

By the Common Platform.

25
Q

What happens where the CPS wishes to introduce evidence that the defence is entitled to?

A

It must make it available for the defence.

The court must not allow the prosecutor to introduce that information until the defence have had sufficient time to consider it.

26
Q

What is included within IDPC?

A

Where the defendant was in police custody - summary of the circumstances of the offence and the defendant’s criminal record

Other cases - summary of the circumstances of the offence and any account given by the defendant in another document such as witness statement, criminal record or victim impact statement.

27
Q

In what cases does Criminal Practice DIrection 3A.12 expand the list of material which is expected to be served?

A

Where a defendant has been released on bail after being charged; and

Where the prosecution does not anticipate a guilty plea at the first hearing

28
Q

What extra material needs to be disclosed by the prosecution under Criminal Practice Direction 3A.12? (7)

A

Summary of circumstances of the offence
Any account given in interview
Statements and exhibits considered important
CCTV
Any streamlined forensic report
Medical or other evidence
Any information on special measures, bad character or hearsay

29
Q

What should be taken into account when considering a client’s plea?

A

The client’s response to the prosecution’s case

The strength of the prosecution’s case

Where it is necessary to obtain any further evidence in support of the defendant’s case

When charged with an either way offence, where they would elect to be tried if given a choice

30
Q

What are the factors in favour of electing to choose the Crown Court where possible?

A

Greater chance of acquittal

Better procedures for challenging admissibility of the prosecution’s evidence

More time to prepare the case for trial

31
Q

What are the factors in favour of electing to choose the magistrates’ court?

A

Limited sentencing powers - the maximum sentence they may impose is six months imprisonment

Quicker and less stressful

Prosecution costs would be lower if convicted

Defence costs will be lower in a magistrates court if funded privately

No obligation to provide a defence statement

32
Q

What should a solicitor do if their client says they are guilty and intends to enter a no guilty plea?

A

This raises professional conduct issues and conflicts with their duty not to mislead the court.

The solicitor will need to advise the client of the benefits of entering a guilty plea and the limitations on the solicitor’s ability to continue representing if they enter a not guilty plea.

33
Q

What limitations does a solicitor have in a trial when their client is guilty but has entered a not guilty plea?

A

They cannot assert any positive defences when cross-examining

The solicitor can still make a submission of no case to answer

34
Q

When should a solicitor withdraw from a case where their client is guilty but insists on a no guilty plea?

A

Where the no case to answer is unsuccessful and the defendant insists on entering the witness box to give evidence which the solicitor knew to be false.

35
Q

What is the plea process at the magistrates court for an either way offence?

A

The charge will be read out

The magistrates will check the IDPC has been received by the defendant’s solicitor

The legal adviser will tell the defendant they may indicate to the court how they would plead if the matter proceeded to trial

Ask the defendant to indicate a plea.

36
Q

When will the magistrates send a case to the Crown Court when they have entered a not guilty plea to an either way offence?

A

Where the defendant is sent to the Crown Court for a related offence

The defendant is charged with another adult defendant who is sent to the Crown Court for trial

The defendant is charged jointly, or charged with a related either way offence with a youth defendant who is sent to the Crown Court for trial

37
Q

How can a defendant be remanded before the next hearing?

A

In custody
Conditional bail
Unconditional bail

38
Q

How many hours can a defendant be remanded in custody?

A

No more than 8

39
Q

How many hours can a defendant be remanded in custody where there are successive remands?

A

The defendant needs to be brought before the court on every fourth remand, provided they have consented and they have legal representation.

40
Q

When can a court remand a defendant in custody for up to 28 days?

A

It has previously remanded them for the same offence

They are before the court

Where it can set a date to remand them to where the next stages of the proceedings are expected to take place

41
Q

What is the maximum period of remand in custody in the magistrates court for a summary offence?

A

56 days

42
Q

What is the maximum period of remand in custody in the magistrates court for an either way offence?

A

70 days, which is reduced to 56 if the allocation hearing takes place within 56 days

43
Q

What happens when a demand in custody time limit expires?

A

The defendant must be released on bail.

44
Q

What does section 128(7) of the Magistrates’ Court Act allow regarding remand?

A

It allows a magistrates court to remand a defendant to police custody for up to three days for enquiries related to other offences.

The defendant should be brought back to the magistrates’ court as soon as the need for enquiries has ceased.

45
Q

What happens to a defendant’s bail when they are committed to the Crown Court?

A

They may be remanded in custody or on bail
until their case comes before the Crown Court.

46
Q

How long can a defendant be remanded in custody after conviction before sentencing?

A

They may be remanded in custody for successive periods of no more than three weeks.

47
Q

What is the maximum period for which a defendant can be remanded on bail before sentencing?

A

A defendant may be remanded on bail for successive periods of not more than four weeks.

48
Q

What types of defendants does the law presume will be granted bail?

A

All defendants prior to conviction

Defendants who have been convicted if their case has been adjourned for the court to obtain reports before sentencing

Defendants who are appearing before the court for a breach of community sentence.

49
Q

What types of defendants do not fall within the presumption of those who will be granted bail?

A

It does not apply to those who have been committed to the Crown Court for sentencing

OR

Those who are appealing against a conviction or sentence

OR

Those charged, or previously charged, with specific offences

50
Q

What are the specific offences which do not apply to the presumption of bail?

A

Murder or attempted murder
Manslaughter
Rape or attempted rape
Various sexual offences

51
Q

What restriction is placed on those who do not fall within the presumption of bail?

A

FLK2 - Criminal Practice (7 decks)

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