Pre-trial considerations First Hearings Flashcards
Where do all criminal cases start?
In the Magistrates Court
When must the prosecution provide the defendant with the initial details of the case against them?
Before or on the day of the first hearing
Summary only offences
Trial: MC
Sentence: MC
Maximum sentencing powers for MC (one or more summary only offences) = 6 months
Either-way offences
These offences are capable of being dealt with by Magistrates, but may be better dealt with by Crown Court
- Magistrates can accept or decline jurisdiction
- Defendants have the right to elect trial in the Crown Court
When does a Plea Before Venue take place?
When a defendant is appearing before the Magistrates for an either-way offence
- D asked to indicate whether they are pleading guilty or not guilty
- If they plead guilty - magistrates move straight onto sentencing (either at first hearing, or hearing is adjourned and sentencing takes place at a later date)
Sentencing powers of Magistrates for either-way offences
There is a presumption that the Magistrates will sentencing the offender, unless the sentencing powers are insufficient
- Either-way offences (one or more) can be sentenced up to 12 months in Magistrates Court
What happens if a defendant indicates a not-guilty plea to an either-way offence
The court needs to determine where the trial should take place.
Allocation: the magistrates consider the nature and seriousness of the offence
- allocation is only relevant to either-way offences where the defendant pleads NOT GUILTY
Test for allocation / procedure
(s19 MCA 1980)
The magistrates take into account nature and seriousness of offence and magistrates sentencing powers
- Magistrates hear representations from both prosecution and defence
Prosecution
1. Open with facts
2. Outline defendant’s offending history (previous convictions)
3. Make submissions as to where trial should be held consist with allocation/sentencing guidelines (nature / seriousness / aggravating / mitigating factors)
Defence
1. Can make submissions as to venue
Where should either-way offences be held as a general rule?
Either-way offences should be tried summarily, UNLESS
- Magistrates sentencing powers are insufficient (mitigating / aggravating factors, etc…)
- For reasons of unusual legal / factual / procedural complexity –> so serious it should be held in CC
Either of these reasons mean that the magistrates can decline jurisdiction
- If the case is border line - the magistrates should accept jurisdiction
What are the allocation guidelines?
When considering where an either-way offence is held, the magistrates consider:
- - if a sentence clearly in excess of sentencing powers is likely; or
- there are complex issues - procedural / legal / factual
What can the defendant do if the magistrates consider the case is suitable to be tried by the magistrates?
The defendant has the option to ask for indication of sentence if they were to plead guilty
- Court has discretion as to whether to give indication. This is confined to whether sentence is custodial or non-custodial
What is the defendant’s option to elect a Crown Court trial (advising a client on this)
Defendant charged with an either-way offence can elect for the trial to be held in the Crown Court
Advantages:
- separation of judge and jury can be advantageous
- higher rate of acquittal - although this cannot be guaranteed
- the Crown Court does not always sentence more harshly than the magistrates’
Disadvantages:
- time / costs / sentencing powers / delays
- trial is quicker and less expensive in the magistrates’ court
- advise the defendant that if they choose to stay in the Magistrates’ Court, D can appeal conviction as of right to the Crown Court
Bail
- (s4 Bail Act) There is a general right to bail (except if the defendant is charged with murder)
Unless there is a substantial right to believe (grounds of objection / statutory exceptions to right to bail):
- failure to surrender
- commit an offence on bail
- interfere with witnesses
- obstruct the course of justice
And there is a real prospect of custodial sentence
Failure to surrender
This is a criminal offence and punishable by maximum of 12 months imprisonment
Breach of bail conditions
This is not a crime but it is an arrestable offence
- the court would reconsider bail and may impose more onerous conditions
- the court has the authority to remand a defendant in custody (go to prison until trial begins)
Factors to consider when considering the grounds to object bail
Paragraph 9 factors:
- Nature and seriousness of the offence
- Character of the defendant
- Strength of evidence
- D’s antecedents
- Community ties
- Associations
- Defendant’s bail record in the past
These are not grounds, but help the court to determine if grounds are made out
Question for the court is: how likely the defendant is to come to court to be sentenced
Bail conditions
The court can attach bail conditions which are relevant, proportionate and enforceable
Conditions which are relevant to risk of failure to surrender
- Residence
- Report to police station
- Surety or guarantee
- Surrender of passport (if D has family members abroad)
Conditions which are relevant to commission of further offence
- Curfew (note - relevant if offence charged with was committed during the night)
- Staying away from certain areas / people / area or premises
What is dealt with at the first hearing for summary and either-way offences?
Plea, bail, representation and legal aid (may progress to sentencing depending on the offence)
What is dealt with at the first hearing for indictable only offences?
Bail and legal aid
- then sent to the Crown Court to enter plea
- appearance in Magistrates’ Court for indictable offence is brief
What is the exception for a summary offence going to the Crown Court?
D is charged with an offence to be tried in Crown Court and there is a summary offence connected to the indictable offence
Summary only offences: what should initial details (IDPC) include at the very least?
A summary of circumstances of offence and D’s criminal record
Summary only offences: what is the Preparation for Effective Trial form (PET) and what will it include?
- Case progression form completed as part of case management in magistrates’
- Includes: D’s name and legal representatives, witness party requires attendance of, estimated trial length, identifiable trial issues, advance warning of applications
- Time estimates for a summary trial should be only one day
What is a pre-trial ruling?
It refers to a court decision made before the trial begins, often during pre-trial hearings, concerning legal issues or admissibility of evidence
- The purpose is to streamline the trial process, resolve legal disputes and ensure the trial progresses fairly
- They are binding until the case is disposed of by conviction/acquittal or dismissal of the case
- Can apply to have a ruling varied/discharged only if there has been a material change of circumstances
Either-way offences: for an offence triable either-way, when is D asked to indicate their plea?
At their first hearing - known as plea before venue
Either way offence: what must a defendant be warned about pleading guilty?
That they can be:
1. Sentenced by the court; or
2. Committed to Crown Court for sentencing (if the magistrates believe that their sentencing powers are insufficient) - known as ‘committal for sentence’
What must a guilty plea be?
It must be unequivocal
Either-way offence: After D has been committed for sentence, where is D’s next appeareance?
Committal for sentence = sent to Crown Court for sentencing
- next appearance is in the Crown Court, where the judge can pass sentence up to Crown Court limit for the offence
Allocation hearing - indication of sentence
The defendant can ask for an indication of sentence if they were to plead guilty instead
- The court has discretion as to whether to give indication (can decline)
Indication as to whether:
- sentence is custodial or non-custodial
Once indication is given, D can change plea to guilty
- where a non-custodial sentence is given, that indication is binding on any later magistrates’ court
Either-way offences: ‘election’
- D asked whether they consent to being tried in Magistrates’ Court; or
- Whether they want to elect to be tried by a jury
Either-way offences: what are the next steps once D either consents to summary trial or elects Crown Court trial?
- Consents to summary = progresses, sets trial date, any required case management conducted
- Elects Crown Court = D makes next appearance at the Crown court, completes case management questionnaire
Exceptions to the rule that either-way offences can be dealt with in either court
- Low value shoplifting (stealing goods valued at £200 or less)
- this is treated as summary only and max sentence of 6 months
- D still has right to elect to be tried in Crown Court - Criminal damage. This can be dealt with in Crown Court ONLY when the damage is:
- over £5000 or caused by fire;
- if £5000 or less, it is summary only and must be dealt with in Magistrates Court. Max penalty is 3 months imprisonment - Cases involving complex fraud or where children may be called as witnesses
- should be sent directly to the Crown Court without going through plea before venue / allocation procedure
What is a representation order?
Public funding for representation at court
- legal representation may be covered by Legal Ad
To obtain a representation order, D must pass two test:
- means test;
- merits test
Allocation of business between magistrates’ court and Crown Court - sending without allocation under s50A and s51 Crime and Disorder Act
s50A CDA provides that cases involving complex fraud or where children may be called as witnesses should be sent directly to the Crown Court, if notice is given under:
- s51B - fraud
- s51C - children
What is a complex fraud case?
To be a complex fraud case, at least two of the following must be present:
- amount alleged to exceed £500,000
- significant international dimension
- case requires special knowledge of financial, commercial, fiscal, regulatory matters
- numerous victims
- substantial and significant fraud on public body
- widespread public concern
Cases of complex fraud - sent directly without allocation to the Crown Court (under s51B notice)
