Plea Before Hearing for Either-Way Offences and Allocation of Business between MC and CC Flashcards
What does the prosecution have an obligation to provide the defence after being charged?
Initial details of the prosecution case (IDPC)
- D is entitled to receive IDPC for all offences
- If CPS wishes to use something D is entitled to see, but hasn’t, court must not allow prosecutor to introduce this information unless D is allowed sufficient time to consider it
What will be included within the IDPC?
(a) where D was in police custody for the offence charged immediately before the first hearing in the magistrates’ court:
- (i) a summary of the circumstances of the offence; and
- (ii) the defendant’s criminal record, if any; or
(b) in all other cases:
- (i) a summary of the circumstances of the offence;
- (ii) any account given by the defendant in interview, whether contained in that summary or in another document;
- (iii) any written witness statement or exhibit that the prosecutor has available and considers material to plea, or to the allocation of the case for trial or to sentence;
- (iv) the defendant’s criminal record, if any; and
- (v) if available, a victim impact statement
Where D has been released on bail after charging and where P doesn’t expect a guilty plea at 1st hearing, what else would the prosecution be expected to make available (unless there was a good reason not to)?
(a) a summary of the circumstances of the offence and any account given by the defendant in interview;
(b) statements and exhibits that the prosecution has identified as being of importance for the purpose of plea or initial case management, including any relevant CCTV that would be relied upon at trial and any Streamlined Forensic Report;
(c) an indication of any medical or other expert evidence that the prosecution is likely to adduce in relation to a victim or the defendant;
(d) any information as to special measures, bad character or hearsay, where applicable
Following the IDPC, what will need to be considered when advising D on their plea?
Ultimately, it is D’s decision as to what plea to enter
Solicitor will discuss with D:
- D’s response to P case – discuss each witness statement and note points of dispute; check interview transcripts of D are accurate; if any admissions made at interview, are they correct (check with D)
- Strength of P’s case – if strong case, D could get credit for an early guilty plea when sentenced; solicitor should give their view of the strength of P’s case
- Is further evidence to support D’s case necessary
- If charged with either-way offence + pleading not guilty + MC considers case suitable for summary trial, should D choose MC or CC trial?
When deciding on trial venue, what factors weigh in favour of the Crown Court?
1) Greater chance of acquittal – MC might favour evidence of police officers, whereas jurors may question it if the evidence is disputed by D
- MC may also be prejudiced against a D with previous convictions
2) Better procedure for challenging admissibility of prosecution evidence
- In CC, where a dispute like this arises, the jury leaves the court room, and the judge conducts a mini trial to decide if the evidence should be admitted or not (known as voir dire); jury won’t hear it at all if inadmissible
- In MC, magistrates themselves decide whether to admit it or not, so it may influence their decision as to guilt either way; They now try to determine these issues at a pre-trial hearing in front of different magistrates
3) More time to prepare the case for trial – case will take longer to get to CC
When deciding on trial venue, what factors weigh in favour of the Magistrates’ Court?
Limited sentencing powers – MC can impose maximum of 6 months imprisonment for one either-way offence; however, they could still commit case to CC for sentencing after trial if the offence appears more serious now than it did pre-trial
Speed and stress – MC trials take place much sooner – important consideration for a D who has been remanded in custody prior to trial
- Formality of CC can be intimidating for a first-time offender
Prosecution costs – if convicted in either court, D will be likely be ordered to contribute towards CPS’ costs; these costs are higher for CC
Defence costs – with legal aid in CC, D may be liable for income contributions towards costs; funding privately is cheaper in MC
No obligation to serve defence statement – D pleading not guilty in CC is effectively obliged to serve on CC + prosecution, a statement which gives a lot more information on their defence case; no obligation in MC
What should the solicitor do if the client informs them they are guilty, but they wish to plead non-guilty?
1) Solicitor needs to tell them if they plead guilty, they will get a reduced sentence on entering an early guilty plea
2) If client insists on maintaining a not guilty plea, solicitor should advise they are limited in what they can do because of their overriding duty not to mislead the court.
2a) Solicitor could still:
- Cross-examine prosecution witnesses, but be mindful not to assert any positive defence they know is false
- Make a submission of no case to answer and ask MC to dismiss the case
- (i) They would be unable to continue to act for D if submission of no case to answer was unsuccessful and D intended on giving evidence in witness box which solicitor knew was false
- (ii) They would have to withdraw from the case ‘for professional reasons’ to maintain client confidentiality
When D attends the MC for a plea before venue hearing (for an either-way offence), what are the initial steps that will take place (before D is asked to give a plea)?
(a) The charge will be read out to D by the court’s legal adviser, who will also check that D’s solicitor has received IDPC.
(b) D will be told they can then indicate their plea
- D is under no obligation to indicate their plea.
- The legal adviser will also tell D that if they indicate a guilty plea, the MC may either sentence them or commit them to the CC to be sentenced if they consider their own sentencing powers to be inadequate.
(c) The legal adviser will then ask the defendant to indicate their plea
What happens if D indicates a guilty plea at the plea before venue hearing before MC?
D treated as if tried summarily and convicted
CPS outlines facts of case and informs magistrates of previous convictions
D’s solicitor gives a plea in mitigation on D’s behalf
MC determines if sentencing powers are sufficient and either:
- Sentences right away
- Adjourns for a pre-sentence report before sentencing D
- Commits D to CC for sentencing - They will be remanded or remain on bail till sentence; MC doesn’t usually change the position pre-initial hearing
What happens if D indicates a not guilty plea at the plea before venue hearing before MC?
1) If D enters a not guilty plea to an either-way offence in these circumstances, they will be sent to CC for trial right away if:
- (a) the defendant is sent to the CC for trial for a related offence;
- (b) the defendant is charged jointly with another adult defendant who is sent to the CC for trial for a related offence - If a joint D elects CC trial, all Ds sent there, regardless of D2’s decision on venue
- (c) the defendant is charged jointly, or charged with a related either- way offence, with a youth defendant who is sent to the CC for trial
2) In all other cases, MC decides on allocation (summary trial in MC or trial on indictment in CC)
If D enters a not guilty plea for an either-way offence before the MC, they may be sent immediately to CC in some instances or the MC will decide on allocation.
What does the allocation process involve?
1) P will inform the court of the facts and D’s previous convictions (if any)
2) Generally either- way offences should be tried summarily unless it is likely that the court’s sentencing powers will be insufficient
3) The court should assess the likely sentence in the light of the facts alleged by the prosecution case, considering all aspects of the case
4) If the court decides that the offence appears more suitable for trial on indictment, D is sent to CC
5) If MC think case is suitable for summary trial, D can request an indication of sentence (whether custodial or non-custodial is more likely if tried summarily + guilty) - D can then change their plea
- Indication of sentence is not binding, but if they indicate non-custodial + D changes plea based on this, this generally prevents the MC from then imposing a custodial sentence
6) If D maintains not-guilty plea after indication of sentence, they can then choose summary trial or trial on indictment in CC
7) D makes their choice and has summary trial or is sent to CC for trial
8) Finally, P can make an application for an either- way offence allocated for summary trial to be sent to the CC for trial
- Granted only if court is satisfied that the sentence which a MC would have power to impose for the offence would be inadequate.
- If application successful, the case will be sent to the CC for trial.
Can D enter different pleas if charged with multiple offences at once?
Yes, D may plead guilty to one and not guilty to another
- If MC accepts jurisdiction and D doesn’t choose CC trial, they may sentence right away for guilty plea offence and adjourn sentence for not guilty till end of trial
- If MC decline jurisdiction or D chooses CC trial, MC sends not guilty offence to CC for trial and can either sentence guilty plea offence or commit to CC for sentencing
In what situations will an either-way offence be sent right to CC for trial (without allocation hearing)?
1) Serious or complex fraud cases where DPP has given notice of evidence sufficient to put them on trial and it indicates a serious/complex fraud case
2) Cases involving children where child will be called as a witness and to avoid prejudice to the child’s welfare
3) Either way offences related to an offence triable only on indictment – D to CC for latter, so must be sent to CC for former
- If D alleged to have committed rape and sexual assault over a similar time period in relation to the same complainant, D sent to CC for rape and for SA because it is related offence
For what offences can the Magistrates’ Court commit the defendant to the Crown Court for sentencing?
For either-way offences only, where they feel their sentencing powers are insufficient
