First Hearings before the Magistrates' Court Flashcards
How are offences classified and how does this affect in which court they will be dealt with?
1) Offences triable only on indictment
- Most serious offences and must be dealt with by CC
- First appearance before MC, then immediately sent to CC
2) Offences triable either-way
- Can be dealt with either by MC or CC
- If D pleads not guilty, MC decides if it is too serious for them to deal with
- If MC do deal with it, D has the right to trial by judge and jury in CC or consent to summary trial
3) Offences triable only summarily
- Least serious offences and only dealt with by MC
- Common assault, most road traffic offences
What are some offences that are worth noting in relation to classification?
1) Low value shoplifting (value of stolen goods is £200 or less) is summary only, but D can plead not guilty and elects trial in CC
2) Criminal damage of property under £5000 is summary only, unless caused by fire or to a memorial, then its either way
- If by fire or to a memorial, the value is immaterial and will always be treated as either way
- Memorial is a building, structure or garden with a commemorative purpose
3) Robbery is an offence that can only be tried on indictment, regardless of value of goods stolen or whether V suffered physical harm
Are there any restrictions on access to free legal advice at the police station?
All persons attending the police station (under arrest or voluntarily) are entitled to free legal advice, regardless of their means
How does someone who requires criminal legal aid apply for this?
They will need to obtain a representation order, by satisfying two tests:
- (a) the interests of justice test – the defendant must show that it is in the interests of justice that they receive public funding to cover the cost of their legal representation; and
- (b) the means test – the defendant must demonstrate that their finances are such that they are unable to pay for the cost of their legal representation
D must submit Form CRM14 and Form CRM15 (financial statement if they don’t automatically satisfy means test) + supporting evidence
There are various factors considered to decide if D satisfies the interests of justice test.
Outline these factors
(a) whether the individual would, if any matter arising in the proceedings is decided against them, be likely to lose their liberty or livelihood or suffer serious damage to their reputation;
(b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law;
(c) whether the individual may be unable to understand the proceedings or to state their own case;
(d) whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual;
(e) whether it is in the interests of another person that the individual be represented
Any other reasons – common to state D wishes to plead not guilty here, as they will be more likely to need legal representation as a result
Explain the ‘liberty, livelihood and reputation’ elements of the interests of justice test
Liberty - Consider prosecution case taken at its most serious to justify public funding
- Previous convictions may be relevant if they would increase the sentence
Livelihood – consider if conviction would lead to loss of employment (bus driver disqualified if convicted of dangerous driving)
Reputation – conviction will disgrace someone with good standing or respect
Explain the ‘substantial question of law’ element of the interests of justice test
There would be a substantial question:
- If there is a possibility of adverse inferences being drawn
- If prosecution or defence are trying to admit hearsay evidence
- If defence argue a confession made by D should be excluded
Explain why D might not be able to understand the proceedings or state their case in relation to the interests of justice test
May apply where D intends to plead guilty or not guilty
D might not understand due to:
- Mental or physical disability
- Poor knowledge of English
- Age
- Vulnerability
Explain the ‘tracing, interviewing or expert cross-examination’ of witnesses elements of the interests of justice test
Tracing witness or expert - Relevant if D wishes to trace a witness to support a defence or they need expert evidence
- D will have to explain why they require legal representation to trace or interview such witnesses
Cross-examining a prosecution witness – might cross-examine interviewing officer to try to exclude a confession by D as an example
- Only a legal expert could do a cross-examination like this
Explain the ‘representation is in the interests of another’ element of the interests of justice test
Relevant where it’s inappropriate for D to cross-examine themselves (V in sexual or violent offence) or a child witness
Cannot be used to say legal representation is in the general interests of D’s family or the court
What types of defendants will automatically satisfy the means test?
(a) applicants who receive income support, income-based jobseeker’s allowance, guaranteed state pension credit, income-based employment and support allowance or universal credit; and
- For working tax credits, D will need to complete the form
(b) applicants who are under the age of 18
- Juvenile defendants must only satisfy the interests of justice test
What does the means test entail for those who don’t automatically qualify?
1) Those who don’t automatically satisfy this test must complete Form CRM15, with relevant evidence like payslips, bank statements etc
- Upon receipt of the form, an initial means test looking at income and expenses (not capital) is checked
2) A full means test then calculates D’s disposable income, which is their gross annual income minus the following:
- (a) tax and national insurance
- (b) annual housing costs
- (c) annual childcare costs
- (d) annual maintenance to former partners and any children; and
- (e) an adjusted annual living allowance
Capital is not considered when assessing eligibility, so pending inheritance would make no difference
What is the key difference in terms of costs, when qualifying for legal aid in Magistrates’ Court and when qualifying in the Crown Court?
If D qualifies for legal aid in MC, it is free entirely (no contribution from D)
If D qualifies for legal aid in CC, it may be subject to a contribution from D towards the legal aid costs
Can the interests of justice and means tests be appealed?
1) D can appeal a refusal on interests of justice test by:
- Adding more details to original Form CRM14 and resubmitting
- Requesting an appeal
2) No right of appeal against refusal on means test, but they can ask for a review on grounds of hardship (Form CRM16)
What is the scope of the representation order, if D successfully qualifies for criminal legal aid?
1) Summary only matter or either way in MC
- RO covers all work done by solicitor in connection with those proceedings and may extend to an appeal to CC against conviction and/or sentence
2) Either way in CC
- RO will extend automatically to cover the CC proceedings
3) Triable only on indictment
- RO will cover proceedings in MC + CC
What is the typical procedure at the first hearing for each type of offence?
1) Summary offences
- D usually required to enter a plea
- If pleading guilty, CPS tells MC the facts and D’s solicitor will give a plea in mitigation and either sentence or adjourn if they want to obtain any reports first (pre-sentence report from Probation Service)
- If pleading not guilty, MC fixes a date for trial
- If adjourned, decision made on bail
2) Either way
- If pleading guilty, MC decides if they should sentence D or commit to CC due to insufficient sentencing power - May be adjourned for report or if committed to CC
- If pleading not guilty, MC decides if D is to be tried in MC or CC - Called plea before venue and allocation procedure
- If adjourned, decision made on bail
3) Offences triable only on indictment
- D sent straight to CC and case adjourned – decision made on bail
What is the role of the defence solicitor at this first hearing?
(a) obtaining funding from the LAA to pay for the work they will do on their client’s behalf (unless the client is paying for their legal costs privately);
(b) obtaining details of the prosecution case from the CPS (for summary and either-way offences);
(c) taking a statement from the client;
(d) advising the client on the strength of the prosecution evidence and the plea the client should enter (for summary and either-way offences); and
(e) in the case of an either-way offence where the client is indicating a not guilty plea, informing the client that their case may be dealt with either by the MC or CC and advising the client about the advantages and disadvantages of each court; and
(f) making an application for bail, where necessary
For an either-way offence, what is the maximum time the man can spend in custody between his first appearance in the magistrates’ court and the start of his trial (for a summary trial in MC)?
56 days
70 days is the relevant time limit from first appearance to the start of the summary trial for an either-way offence where the decision to proceed to summary trial is not taken within 56 days
What is the maximum is the period of custody when a case is sent for trial to the Crown Court from the time when the accused is sent for trial and the start of the trial in the Crown Court?
182 days
