First Hearings Before the Magistrates Court Flashcards
Who makes their first court appearance before the magistrates court?
- All defendants over the age of 18 no matter what the offence. If it is an indictable only offence, the magistrates will immediately send the case to the crown court (s 51 Crime and Disorder Act 1998).
- Defendants aged 17 and under will appear before the youth court.
Give three examples of either-way offences.
Theft, fraud and assault occasioning ABH.
Explain how low value shop theft is treated in respect of being heard in the magistrates court.
It will be heard in the magistrates court if the theft is less than £200 (being the combined value of all of the items stolen). It will be treated as a summary only offence unless D pleas not guilty. If they plead not guilty they can elect trial in the crown court.
True or False: A defendant who pleads guilty for low value theft can be committed to the crown court for sentencing.
False.
A defendant can only have their case heard/ sentenced at the crown court if they either plead not guilty and chose to be tried in the crown court, or commit theft for a value of over £200.
What is the requirement of criminal damage for it to be classed as a summary offence (and therefore enabling it to be tried in the magistrates court)?
The damage must be for a value of less than £5,000 provided the damage was not caused by fire.
Explain the right to legal aid for defendants without sufficient means.
Under article 6(3) of the ECHR, D’s without sufficient means to pay for legal assistance should receive this free from charge when this is in the interests of justice.
How is the right to legal aid for a client exercised?
- D’s solicitor will make an application on client’s behalf for the case to receive public funding from the Legal Aid Agency (LAA).
- In order to a firm to be able to do this, they must have a contract with the LAA to represent defendants in criminal proceedings. This is known as a general criminal contract.
Briefly explain the duty solicitor scheme.
- Operates in magistrates court the same way as it does in the police station. There will be a rota of solicitors under the scheme who are on call attend magistrates court and represent defendants who do not have their own solicitor but require legal advice and/or representation.
- They will then claim their costs from the LAA under the Advocacy Assistance (Court Duty Solicitor) Scheme.
Explain the two tests a defendant needs to satisfy to receive criminal legal aid in the magistrates court.
1) Interests of justice test - D must show it is in the interests of justice they receive public funding; and
2) Means test - D must demonstrate their finances at the time make them unable to pay for the cost of legal representation.
List the factors considered when determining whether it is in the interests of justice for the defendant to receive legal aid (ie the interests of justice test).
- if any matter is decided against the individual in proceedings, would they likely los their liberty, livelihood or suffer serious damage to their reputation;
- does the matter involve consideration of a substantial question of law;
- would D be able to understand proceedings/ state their own case.
- would proceedings involve tracing, interviewing or expert cross-examination of witnesses on behalf of the D;
- is it in interests of another person that D be represented
List the examples where substantial question of law may arise in regards to a defendant’s case.
a) where there is disputed identification evidence and court needs to apply turnbull guidelines;
b) where there is possibility the court may draw adverse inferences;
c) if prosecution or defence are seeking to persuade the court to admit hearsay evidence;
d) if defence are seeking to use sections 76 or 78 of PACE 1984 to argue that a confession made by D should be excluded;
e) prosecution want to use evidence of D’s previous convictions under s101 CJA , or use bad character evidence of any other person (s100 CJA) at trial.
Give examples of what may give rise to a D not understanding court proceedings/ be able to present their own case.
- disability (mental or physical);
- poor knowledge of English;
- age (D is particularly young or old);
- vulnerability (D who is emotionally immature or otherwise vulnerable)
Which two types of defendant will receive criminal legal aid automatically without needing to satisfy the means test.
A) applicants who receive income support, job-seekers allowance, guaranteed state pension credit, income based employment and support allowances or universal credit;
B) D’s under the age of 18.
For defendants not automatically qualifying for legal aid without satisfying the means test, what form do they fill out and how is the means test calculated/ conducted?
A form CRM15 needs to be filled out. The means test will be done by caulcating the defendants disposable income through deducting the following items from their gross annual income:
- tax and national insurance;
- annual housing costs;
- annual childcare costs;
- annual maintenance to former partners/ any children;
- adjusted annual living allowance.
Can an applicant appeal the outcome of the means test?
No, however they can make a hardship application but will need to show they cannot fund their own defence. This is done by completing form CRM16.
