First Hearings - Either-Way Offences Flashcards
What is a defendant asked at first hearing when offence is triable either way?
To indicate their plea
What is the defendant supplied with at first hearing?
A copy of the initial details by the prosecutor
How is the D asked to indicate plea at first hearing?
Charge is written down and read out to D – D can then respond
What are the 3 options for indicating plea?
1) Guilty
2) Not guilty
3) No indication
What happens if D gives no indication?
This is treated as a not guilty indication
What is the first hearing referred to as?
A plea before venue
Before a D can indicate plea, what must they be warned about?
That they can be sentenced by the Magistrates court or committed to Crown Court for sentencing
What is an equivocal plea?
Saying you are guilty but relying on a defence / denying an element of the offence
GBH – Guilty, but I was acting in self defence
Theft – Guilty, but I was going to give it back
What will an equivocal guilty plea be treated as?
Not guilty
What happens once a D pleads guilty?
The Courts will proceed to sentencing.
The Magistrates will either sentence or commit to Crown Court for sentencing
If powers are sufficient by Magistrates, what happens when it is time for sentencing?
May be passed immediately, or adjourned for preparation of pre-sentence report
If a case is adjourned for preparation of a PSR, what must the court ensure?
That it does not create expectation that offender will be sentenced in magistrates’ if there is possibility of committal.
When would a Magistrates’ Court order a PSR for use by Crown Court?
- Realistic alternative to custodial sentence; or
- D may be a dangerous offender; or
- There is some other appropriate reason for doing so
What is allocation in not guilty plea?
When the court moves on to consider where the trial will be held.
How does a court decide on allocation?
Using the allocation guideline
What does the allocation guideline say on either way offences?
Should be tried summarily unless:
1) Sentencing powers insufficient
a. Keeping in mind they have power to commit to sentence
2) Reasons of unusual legal, procedural or factual complexity
What is sentencing maximum of Magistrates court?
- 6 months for single either-way offence
- 12 months for more than one either-way offences
So even though Magistrates can trial but then commit sentencing to Crown Court, when could they reject trial altogether in the absence of legal / factual complexity?
If the offence was clearly so serious that only Crown Court should have power to deal with it
What is done at allocation hearing?
Court will take into account submissions of the parties, and then decide on allocation. Prosecution, then Defendant
What does the prosecution do at allocation hearing?
- Open with facts
- Outline D’s offending history
- Submissions as to where trial should be in light of guidelines
- Will look at nature and seriousness, and mitigating / aggravating factors
What does the defence do at allocation hearing?
- Make submissions to venue
- Agree with prosecution on things they agree with
- If they disagree on prosecution that case should be held at Crown Court, they will need to make full persuasive submissions
What happens if Magistrates’ Court allocates case to Crown Court?
The next appearance will be there. The D has no right to elect Magistrates.
What happens if Magistrates’ Court retains jurisdiction?
D can consent to having it at Magistrates, or elect to trial by jury.
Can a case tried summarily be committed to Crown Court for sentencing?
Yes, it can.
Can D ask for an indication of sentence if they were to plead guilty?
Yes, they can
What happens if the D asks for an indication of sentence if they were to plead guilty?
Court has discretion. They can also decline to give an indication.
What could an indication of sentence include?
Only whether it would be custodial or non-custodial.
What happens if they ask for indication, and one is given?
They can change their plea, and the process will be as if they pleaded guilty from the start.
Is an indication binding?
If non-custodial sentence is indicated, it will be binding on any later magistrates’ court.
What is election of court?
The Magistrates’ will ask for consent to magistrates’ trial, or whether they wish to elect to trial by a jury in Crown Court.
D will be told that even if summary trial, court will have power to commit them to Crown Court for sentencing.
What is a D’s legal representative advice on elect trial on indictment?
- Acquittal rate higher in Crown Court
- Separate tribunals of law can be advantageous
- Crown Court doesn’t mean harsher sentence
What is advice on consent to summary trial?
- Less formal
- Less waiting time
- Quicker trial
- D does not need to serve defence statement
- Less expensive
- Magistrates need to provide reasons – a jury doesn’t
- Less sentencing power than Crown (although they can commit to Crown Court for sentencing)
What is first step in election of Crown Court?
Court will complete Case Management Questionnaire
What is the exception to the rule that summary is a Magistrates, either way is either and indictable is only at Crown?
If it’s a ‘special case’
What is the meaning of special case?
Certain offences, although either-way, may only be tried summarily based on the case
What are 4 main special cases in election of court?
- Low value shoplifting
- Criminal damage
- Complex Fraud
- Where Children are witnesses
When can low-value shoplifting be dealt with at Crown Court?
Only if more than £200
When can criminal damage be dealt with the Crown Court?
Only if over £5,000; or
Caused by fire
What constitutes complex fraud?
If two of the following are present:
1) Amount exceeds £500,000
2) Significant international dimension
3) Case requires specialised knowledge
4) Numerous victims
5) Substantial and significant fraud on public body
6) Likely to be of widespread public concern and endanger economic well-being of UK
