FIRST HEARINGS BEFORE THE MAGISTRATES

Question 1

WHERE ALL PROSECUTIONS BEGIN

Answer 1

1. Any person aged 18 or over and charged with a criminal offence has their first court appearance in the Magistrates’ Court.
2. The process of the first hearing varies, depending on whether the defendant is charged with a summary only, either way, or indictable only offence.
3. However, all defendants will be asked to provide their name and date of birth.
4. For summary only offences (such as assault or battery),
   the defendant pleads guilty or not guilty.
5. If the defendant pleads guilty, the court will proceed immediately to sentence unless pre-sentence reports are required.
6. If the defendant pleads not guilty, a date for trial will be
   set around six to eight weeks hence, and orders regarding disclosure will be made.
7. For either way offences (such as theft or criminal damage), the court proceeds to the plea before venue process.
8. For indictable only offences (such as rape, robbery, or murder), the matter is sent immediately to the Crown Court for trial.

Question 2

5

ROLE OFTHE DEFENCE SOLICITOR

Answer 2

1. Obtaining Disclosure from the Prosecution
2. Taking Instructions from the Client
3. Advising the Client
4. APPLYING FOR A REPRESENTATION ORDER
5. Making an application for Bail

Question 3

Obtaining Disclosure from the Prosecution

Answer 3

1. The defence solicitor must obtain from the prosecution suffcient disclosure to be able to progress matters at first appearance (that is, the defendant’s first appearance at the Magistrates’ Court).
2. Disclosure can be sought in advance of the first appearance if a representation orderis already in place.

Question 4

2

Taking Instructions from the Client

Answer 4

1. The defence solicitor needs to take detailed instructions from the defendant on their response to the prosecution’s disclosure, including the defendant’s comments on the prosecution’s witness statements and other evidence.
2. A solicitor has both a duty to advance their client’s best inter-ests and a duty not to mislead the court. If these two duties confict with each other, a solicitor must give the client careful advice on their chosen course of action. If the conflict cannot be resolved, the solicitor will have to withdraw from the case

Question 5

5

Advising the Client

Answer 5

1. The strength of the evidence against the defendant and
   the likelihood of conviction;
2. The likely sentence if convicted, including credit for an early guilty plea
3. The steps needed to prepare the defendant’s case (such
   as obtaining further evidence)
4. Court procedure, particularly on advantages and disadvantages of Magistrates’ Court or Crown Court trial for defendants intending to plead not guilty to either way offences
5. It is important to remember that the decision on plea is for the defendant only and a solicitor must never tell their client how to plead. A defence solicitor should
   advise on the strength of the evidence, which includes warning the defendant where the evidence is strong. A solicitor should also advise on whether the credit defendants are entitled to an early guilty plea, compared to conviction following trial. However, the decision on plea remains the defendant’s alone.

Question 6

APPLYING FOR A REPRESENTATION ORDER

Answer 6

1. Unless a defendant is privately funded, the defence solicitor attending court to represent a defendant needs to apply for a representation order.
2. The defendant must satisfy two
   requirements for an order to be awarded:
   *The interests of justice test; and
   *The means test.

Question 7

5

Factors for Interests ofJustice Test

Answer 7

1. Whether the defendant is likely to lose their liberty or livelihood or suffer serious reputational damage
2. Whether the case requires the determination of a substantial question of law
   If the case will involve challenging identifcation evidence, hearsay evidence, bad character evidence, or inferences from silence, for example, a representation order is more likely to be granted.
3. If the defendant is unable to understand the proceedings or state their own case
   The vulnerability of the defendant, because of age or due to poor grasp of English, for example, would be relevant.
4. If the case may involve tracing witnesses, interviewing them, or expertly cross-examining them
5. If it is in the interest of another person

Question 8

3

Means Test

Answer 8

1. If the defendant is under age 18, or is in receipt of income support, income-based Job Seeker’s Allowance, a state pension, or income-related support allowances or benefits, then the means test is automatically satisfied.
2. All other defendants need to prove (by producing relevant documentation) that their means are sufficiently low to qualify for legal aid.
3. Currently, the threshold is £3,398 of annual disposable income (after all deductions and adjustments have been made).