General matters Flashcards
Breach of a suspended sentence
The court must activate the custodial sentence unless it would be unjust in all the circumstances to do so
NOTE: Sentences of less than 14 days cannot be suspended
Where an offence is committed during the operational period of a suspended
sentence, the court is required to activate the suspended term, in whole or in part, unless
it would be unjust to do so
Upon breach of a suspended sentence order (i.e. in the event of the commission of a further
offence during the operational period or failure to comply with the additional requirements
under the order), the court must order that the suspended sentence is to take effect with the
original term unaltered, or with the substitution of a lesser term, unless it would be unjust to
do so in all of the circumstances
the slip rule
where there has been an error of the court by an accidental slip or omission in a judgment or order, the same court who made the error can fix it instead of having to appeal the judgement. The defendant seeking the change can make an application to the court and the case can be reheard
= ‘Apply to the magistrates’ court for the conviction to be set aside’
notification for leave to appeal against a conviction
An application for leave to appeal against conviction following trial on indictment must be
served within 28 days of conviction
Following a mags conviction, an appeal to the crown court will..
be heard by a circuit judge/recorder and 2 lay justices
they have the power to dismiss the appeal
they may alter the sentence imposed by mags
the prosecution may call evidence not called in the first trial
jointly charged - an adult and a minor
if they are jointly charged and its an either way offence, the magistrates can either try to remit the minor to youth court for trial (MAY) or try them in the mags court if he pleads not guilty and the adult pleads guilty
if both plead not guilty, they MUST be tried together in the adults mags court (summary trial)
if the child is accused of aiding and abetting, and both enter a not guilty plea, the child could be remitted to youth court or they could be tried together in the mags
if they are both charged with offences that ‘arise out of the same circumstance’, the adult is being sent to the crown court, the mags can consider if it is in the INTERESTS OF JUSTICE the child could be sent to the crown as well
what counts as time served
General rule is that for a sentence of 12 months or more the defendant is released on licence after half custodial period served
Where a defendant has been remanded on bail and that bail was subject to a qualifying curfew (electronically monitored and for 9 hours daily) the court must direct that this is to count as part of the sentence. Each day spent subject to a qualifying curfew counts as 0.5 day towards custody
Any time spent remanded in custody shall count towards any immediate custodial sentence. The time spent on remand therefore is automatically credited towards the length of the custodial period
Newton hearing
A hearing in criminal proceedings required when the defendant pleads guilty to an offence(s) but there is disagreement with the prosecution as to the material facts on which the defendant should be sentenced. This can occur when the accused pleads guilty on a specific basis that the prosecution does not accept
eg a dispute not to the actual offence (theft) but the item or the amount
During a newton hearing, evidence is called by both parties and the judge (sitting without a jury) or the magistrates decide the basis on which they will pass sentence. The burden of proof lies with the prosecution to satisfy the court beyond reasonable doubt that their version of events is correct
what factors are relevant to the court when considering sentence - assessing seriousness
(i) Offence committed whilst on bail
(ii) Racial/religious aggravation
(iii) Victim is disabled
(iv) The defendant’s antecedents
mags sentencing powers
the magistrates can commit an either-way offence to the Crown Court for sentence if their sentencing powers are inadequate.
for two either-way offences their maximum sentencing powers would be 6 months imprisonment on each consecutively, making a total of 12 months’ imprisonment
EITHER WAY = ABH
majority verdicts
11-1
10-2
the minimum majority possible when there are 10 jurors is 9-1
a jury of 9 MUST be unanimous
what does the court consider when contemplating seriousness
(i) The seriousness of an offence is partly determined by the culpability of the offender.
(ii) The seriousness of an offence is partly determined by the harm caused or risk being caused by the offender.
(iii) Whether to take account of personal mitigation is a matter for the court
minimum sentence when its the 3rd offence
what happens if they plead guilty?
Crown Court shall impose a custodial term of at least three years except where the court is of the opinion that there are particular circumstances which relate to any of the offences or the offender which would make it unjust to do so
Where the offender pleads guilty in such a case, the court may not impose a sentence which would be less than 80% of the minimum sentences specified
Summary offences
ONLY IN MAGS COURT
Common Assault
most driving offences
indictable only offences
HAVE TO SEND TO CROWN COURT
The magistrates only need consider the ‘interests of justice’ test where an indictable offence is involved and they are deciding whether to send the youth to the Crown Court for trial with the adult
Murder
Manslaughter
Robbery
Rape
either way offences
Theft. Burglary. Possession of drugs. Possession with intent to supply drugs. Affray. Assault occasioning actual bodily harm
indication of sentence before plea
- it is binding on any judge who becomes responsible for the case.
- Defence counsel must have his client’s written consent to do so before seeking an indication of sentence prior to plea
- The Judge is not bound to give a prior indication of sentence even though a defendant requests it
- There should be a written basis of plea agreed between the prosecution and the defence
maximum sentencing powers of the youth court
so the maximum is 24 months/ 2 years
If a child or young person between 12 and 17 years old is sentenced in the youth court, they could be given a Detention and Training Order.
This can last between four months and two years.
time limit on when a trial should take place
NO TIME LIMIT ON WHICH PROCEEDINGS NEED TO START FOR ANY CASE
