First hearings: summary and either-way

Question 1

Where should all adult defendant’s have their first hearing?

Answer 1

In the Magistrates court regardless of the offence.

Question 2

If the defendant is on bail when should the first hearing be?

Answer 2

Within 14 days of being charged if the prosecutor anticipates a guilty plea which is likely to be sentenced in a magistrates court.

Within 28 days of being charged where it is anticipated the defendant will plead not guilty or the case is likely to go to the Crown Court for sentence or trial.

Question 3

If the defendant is detained in police custody following charge when should their first hearing be?

Answer 3

Before the next available court.

Question 4

Must a defendant be present at the first hearing?

Answer 4

Yes and if the defendant is on bail and fails to attend court, the court can issue a warrant for he defendant’s arrest?

Question 5

Can the court continue the first hearing without the presence of the defendant?

Answer 5

Usually the court cannot proceed without the defendant’s presence if the hearing is allocation of a TEW offence or sending an indictable case to the Crown Court.

However, if the defendant has been summoned to court (typically used for non-imprisonable minor or road traffic offences) the defendant does not commit any offence for non-appearance.

Question 6

What is the IDPC?

Answer 6

Initial details of the prosecution case?

Question 7

When must the prosecution serve the IDPC on the court and defendant if requested.

Answer 7

Prosecution is obliged to serve the IDPC on the court officer as soon as practicable, and in any event, no later then the beginning of the day of the first hearing.

Question 8

What is The Common Platform?

Answer 8

The CPS now use electronic case files which are uploaded onto The Common Platform (The Magistrates Court online system).

The solicitor would then request access to the Common Platform.

Question 9

What would happen if the prosecution failed to serve the IDPC?

Answer 9

Would usually result in the court adjourning the first hearing and/or award costs to the defence for the prosecution’s failure to serve.

Question 10

What content should be included in the IDPC?

Answer 10

*Summary of the circumstances of the offence.

*Any account given by the D in interview.

*Any written statements or exhibits that might be available and material to plea and/or mode of trial or sentence

*Victim impact statements

*D’s criminal record.

Question 11

Where the defendant was in police custody immediately before the first hearing, what information must be included in the IDPC?

Answer 11

A summary of the circumstances of the offence and the defendant’s criminal record.

Question 12

What will the first hearing consist of for a summary or TEW offence?

Answer 12

Plea;
Bail;
Representation and legal aid

Depending on the type of offence it might progress to sentence.

Question 13

What will a first hearing consist of for a indictable only offence?

Answer 13

The Mags have no jurisdiction for an indictable only offence so the D will only make a short appearance.

*Court will deal with bail and legal aid, and the defendant will indicate their plea on the Crown Court sending form.

*D is sent to the CC where they will enter a plea.

*Hearing at CC is three or four weeks later depending on the D’s bail status.

Question 14

Can summary offences ever be sent to the CC?

Answer 14

They will never go to the CC unless the summary offence is connected to the indictable offence.

Question 15

When must a related summary offence be sent for trial at the Crown Court and included on the indictment?

Answer 15

*common assault

*assault against a prison or secure training centre officer

*taking a motor vehicle or other conveyance without authority

*driving a motor vehicle while disqualified.

*criminal damage.

Question 16

When must a summary matter be sent for plea only at the Crown Court?

Answer 16

Any summary offence not listed but that is punishable by disqualification from driving or imprisonment.

When the trial for the indictable offence is over, the accused will be asked to enter a plea in relation to the summary only offence.

If D pleads guilty, the Crown Court may deal with the offence in any way that would have been open to a magistrates court.

If D pleads not guilty, the Crown Court has no further power to deal with the offence. If there is to be a trial it is remitted to a magistrates court.

Question 17

In relation to summary only offences each party must assist the court in furthering the overriding objective what does this include?

Answer 17

*communication between the prosecutor and defendant at the first available opportunity and in any event, no later than the beginning of the day of the first hearing, and after that, communication between the parties and the court officer until the conclusion of the case.

*establishing among other things -

• whether the defendant is likely to plead guilty or not guilty
• what is agreed and what is likely to be disputed
• what information is required by one party of another
• reporting on that communication to the court.

Question 18

If the defendant pleads guilty to a summary offence what happens next?

Answer 18

The court will proceed to sentencing.

Question 19

If the defendant indicates a not guilty plea of a summary offence what will the court do next?

Answer 19

The court will set a trial date and do any necessary case management to ensure that the trial is effective on that date.

Question 20

What information does the Preparation for Effective Trial Form include?

Answer 20

*The D’s and legal representatives contact details;

*Names, numbers and type of witness and which party requires their attendance at court;

*estimated length of trial;

*identification of trial issues;

*advance warning whether any applications are to be made in relation to matters such as special measures, hearsay and bad character evidence.

*whether any prosecution statement can be read.

*whether any special arrangements need to be made for people attending the trial.

*That the defendant advocate has advised D of credit for early guilty plea and that trial will go ahead in D’s absence if D fails to attend on the trial date.

Question 21

What are standard directions?

Answer 21

Most courts have standard directions about how the parties should prepare the case.

These standard directions must be complied with unless the magistrates direct otherwise.

Directions usually concern issues pertaining to things such as bad character evidence and special measures.

Question 22

How do the magistrates court ensure cases are progressing?

Answer 22

*Magistrates court has a case progression officer to monitor directions made by the court.

*Both CPS and defence advocates must indicate a nominated person in their respective offices who will be responsible for complying with the directions.

Question 23

What are pre-trial hearings?

Answer 23

For a summary trial, the court can conduct pre-trial hearings at which pre-trial rulings can be made.

Question 24

What will pre-trial hearings include?

Answer 24

Cover matters such as the admissibility of evidence and fitness to plead.

Rulings can be made on the application of the defence or prosecution, or of the courts own motion.

Question 25

When is a pre-trial ruling binding until?

Answer 25

Until the case is disposed of by:

*conviction or acquittal
*a prosecution decision not to proceed
*the dismissal of the case

Question 26

Can the court discharge or vary a pre-trial ruling?

Answer 26

Yes, if it is in the interests of justice to do so and the parties have been given an opportunity to be heard.

Question 27

Can a party apply to have a pre-trial ruling varied or discharged?

Answer 27

Yes, but only if there has been a material change of circumstances.

Question 28

Can a defendant plead guilty by post of a summary offence?

Answer 28

Yes, only where:

*the matter has been commenced by summons or requisition; and

*the prosecutor has served a summary of the evidence on which the prosecution case is based

*the prosecutor has served information relevant to sentence.

The defendant can complete the necessary documentation and plead guilty in writing without the need to attend court at all.
The court may accept such a guilty plea and pass sentence in the defendant’s absence.

Question 29

What is a `plea before venue’ for a TEW offence?

Answer 29

The D will be asked to indicate their plea. They will be supplied with the IDPC and the charge is written down and read out to the defendant.

The defendant can:

*indicate guilty;
*indicate not guilty; or
*give no indication

Where no indication is given, it is treated as a not guilty indication.

Question 30

What warnings must the defendant be given before they indicate their plea in relation to TEW offence?

Answer 30

D must be warned that if they plead guilty, they can be:

*sentenced by the court.

*Committed to the CC for sentence if the magistrates court is of the opinion that its sentencing powers are insufficient to deal with the offence.

Question 31

What is the sentencing powers of the magistrates court?

Answer 31

*Mags court doesn’t have power to impose more than 6 months imprisonment in respect of EW or summary only offences.

*For two or more EW offences in the mags court, the maximum sentence is 12 months imprisonment.

Question 32

If the magistrates court adjourns for the preparation of a pre-sentence report (PSR) what must it ensure?

Answer 32

Where the court adjourns sentence for the preparation of a PSR, it must be careful not to create an expectation that the offender will be sentenced in the magistrates court if there is a possibility of committal for sentence.

Question 33

When can the magistrates court commit the case to sentencing at the CC?

Answer 33

A magistrates court should order a PSR for use by the Crown Court if it considers that:

*There is no realistic alternative to a custodial sentence; or

*The defendant may be a dangerous offender; or

*There is some other appropriate reason for doing so.

Question 34

If the D indicates a not guilty plea what must the court consider?

Answer 34

They must consider allocation (where the trial is to be heard).

Question 35

What must the court take into consideration when allocating the case?

Answer 35

The allocation guidelines.

Question 36

What do the allocation guidelines state?

Answer 36

That an EW offence should generally be tried summarily unless:

*the courts sentencing powers would be insufficient; or

*for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court.

Question 37

What do the prosecution do at the allocation hearing?

Answer 37

*They open with the facts

*They outline the D’s offending history.

*They make submissions as to where the trial should be held consistent with sentencing guidelines.

The submissions will cover the nature and seriousness of the offence including any aggravating and mitigating factors.

Question 38

What do the defence do at the allocation hearing?

Answer 38

*Can make submissions as to venue.

*Where they agree with the prosecution it may be no more than saying that.

*However, if the prosecution submits that the case should be heard in the CC and the defence disagree, they will need to make fuller, more persuasive submissions at this point.

Question 39

What happens if the court decide to allocate the case to the CC?

Answer 39

The D will make their next appearance there and has no right to elect trial by the mags court.

Question 40

What happens if the court decides to retain jurisdiction?

Answer 40

The court will need to explain to the D that:

• The court has decided that a summary trial is more suitable
• The defendant can consent to be tried summarily or be tried by a jury
• If D is tried summarily and is convicted, they may still be committed to the Crown Court for sentence.

Question 41

Can the D ask for an indication of sentence if they were to plead guilty? If so, must the court provide one?

Answer 41

The D is able to ask for an indication of sentence if they were to plead guilty instead.

Court has discretion as to whether to give indication.

Question 42

If the court decide to give an indication of sentence what are they confined to?

Answer 42

Stating if it would be custodial or non-custodial.

Question 43

If the court indicates a non-custodial sentence, would tat be binding on a later magistrates court?

Answer 43

Yes.

Question 44

What is election?

Answer 44

If the D does not ask for an indication, or the court refuses to give one, or if having heard the indication the defendant does not change their not guilty plea, the court asks the defendant:

*if they consent to being tried in a magistrates court, meaning the case will be adjourned; or

*if they want to elect to be tried by a jury meaning the case will be transferred to the CC.

Question 45

If the defendant chooses not to change their guilty plea after indication will it bind later courts?

Answer 45

No.

Question 46

What is normally the advice given to clients on election?

Answer 46

Quite often the advice will be to elect trial on indictment in the CC because:

The acquittal rate is higher in the Crown Court; and

The separate tribunals of law and fact in the Crown Court can be advantageous to the defendant. Voir dire procedures allow the judge to hear arguments to exclude evidence in the absence of the jury.

Not always the case a Crown Court judge will sentence more harshly than a magistrates court.

Question 47

What are the advantages of a MC trial?

Answer 47

*Are less formal

*The waiting time before the trial date is much shorter

*The trial itself is much quicker

*Do not require a defendant to serve a defence statement

*Are less expensive than the Crown Court

*Magistrates have to provide reasons for their decision

*Magistrates have less sentencing powers than those of the Crown Court. However, may commit to the CC for sentence.

Question 48

What are the next steps if the D consents to a summary trial?

Answer 48

• Progresses as if the case were a summary only offence
• Sets a trial date
• Conducts any case management that is required.

Question 49

What are the next steps if the D elects a CC trial?

Answer 49

*The matter is sent to the CC

*The D will make their next appearance in the CC

*The court will complete the `Case sent to the CC for trial – case management questionnaire’.

Question 50

What are the exceptions to the rule that EW can be heard at the MC or CC?

Answer 50

Low-value shop lifting

Criminal damage

special cases involving children or fraud

Question 51

What is low value shoplifting and why is it an exception?

Answer 51

*Stealing goods valued at £500 or less

*Although theft is a an either-way offence low value shoplifting is treated as summary only.

*The maximum sentence is 6 months.

*The defendant still has the right to elect to be tried at the crown court.

Question 52

What is the criminal damage exception?

Answer 52

Although classed as EW, the offence can be dealt with at the CC only when the damage is:

*Over £5000; or

*Caused by fire (arson).

If £5000 or less, the offence becomes summary only and must be dealt with in the magistrates’ court. When this is the case, the maximum penalty that can be imposed is 3 months’ imprisonment or a level 4 fine. This is an exception to the normal rule regarding magistrates’ powers.

Question 53

What is the procedure for `special cases’?

Answer 53

Cases involving complex fraud or where children may be called as witnesses should be sent directly to the CC, if notice has been given.
Although the offences themselves might be classed as EW, these type of cases will be sent to the CC without going through the plea before venue or allocation procedure.

Question 54

What are the requirements for a complex fraud case?

Answer 54

To be complex fraud, at least two of the following must be present:

• the amount is alleged to exceed £500,000
• there is a significant international dimension
• the case requires specialised knowledge of financial, commercial, fiscal or regulatory matters such as the operation of markets, banking systems, trusts or tax regimes
• there are numerous victims
• there is substantial and significant fraud on a public body
• the case is likely to be of widespread public concern or the alleged misconduct endangered the economic well-being the UK, for example by undermining confidence in financial markets.