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Criminal Law and Practice > Pre-trial criminal litigation II (first hearing) > Flashcards

Pre-trial criminal litigation II (first hearing) Flashcards

1
Q

For which offences will adult Ds have their first hearing before a magistrates’?

A

All - all adult Ds have their first hearing before a magistrates’ court irrespective of the offence

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2
Q

Which courts can deal with each of the categories of offence?

A
  • Summary only = dealt with in magistrates’ only
  • Either-way = dealt with in magistrates’ or Crown
  • Indictable only = dealt with in Crown only
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3
Q

Where D is detained in police custody following charge, when must they have their first hearing?

A

Must be brought before the next available court

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4
Q

Where D is on police bail, when must they have their first hearing?

A
  • Guilty plea anticipated and likely to be sentenced in magistrates’ = within 14 days of being charged
  • Not guilty plea anticipated or case is likely to go to Crown Court for trial or sentence = within 28 days of being charged
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5
Q

Must D be present at the first hearing?

A

Yes

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6
Q

Is it possible for court to proceed with first hearing if D does not attend?

A

Not if hearing will deal with allocation of either-way offence / sending indictable case to Crown

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7
Q

What are the consequences of D failing to attend court when on police bail?

A

Offence under Bail Act and court can issue warrant for D’s arrest

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8
Q

Where D is summonsed to court (for non-imprisonable, minor, or road traffic offences), will non-appearance be an offence?

A

No

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9
Q

When can the first hearing go ahead and D be convicted where a D has been summonsed but does not attend?

I.e. when can first hearing proceed in D’s absence

A
  • Where prosecution has served statements and D has been warned of hearing
  • Penalty can be imposed in absentia also if convicted
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10
Q

What is the prosecution obliged to serve on the court officer and by when?

A

Initial details of the prosecution case (IDPC) - must be served on court officer ASAPracticable and no later than beginning of day of first hearing

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11
Q

Where D requests IDPC, by when must procesuctor serve them on D?

A

ASAPracticable and no later than beginning of day of first hearing

Solicitor would almost certainly request documents - CPS now uses electronic case files which can be sent to D reps via secure email

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12
Q

What is the usual remedy if prosecutor fails to supply initial details?

A

Court adjourns first hearing and/or awards costs to defence (will not dismiss charge/give rise to abuse of process)

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13
Q

What must IDPC contain? How is this different if D was in police custody immediately before first hearing?

A
  • Summary of circumstances of offence
  • Any account given by D in interview
  • Any written statements/exhibits available and material to plea
  • Victim impact statements
  • D’s criminal record

(Bold = if D was in police custody immediately before first hearing)

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14
Q

How sufficient must information provided in IDPC be?

A

Enough to allow court to make informed view on plea and venue for trial

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15
Q

What is the difference in what first hearings will deal with for summary/either-way and indictable-only offences?

A
  • Summary and either-way = deal with plea, bail, representation and legal aid (may also progress to sentence depending on offence)
  • Indictable-only = bail and legal aid (then sent to Crown weeks later where they enter plea)

Appearance for indictable-only offences in magistrates’ is brief

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16
Q

What is the exception for summary only offences going to Crown Court?

A

D is charged with offence to be tried in Crown and there is a summary offence connected to indictable offence

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17
Q

What summary offences will be sent for trial and included on indictment?

A
  • Common assault
  • Assaulting prison/secure training centre officer
  • Taking motor vehicle/other conveyance without authority
  • Driving motor vehicle while disqualified

I.e. can be included on indictment and jury will consider/return verdict

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18
Q

What happens to summary offences that are not sent to trial on indictment?

A

Only sent for plea…

  • D pleads guilty = deal with offence in way that would have been open to magistrates’
  • D pleads not guilty = Crown no further power to deal with offence, remitted to magistrates’
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19
Q

In furthering overriding objective, by when and until when must defence and prosecution be communicating with one another?

A

At first available opportunity - no later than beginning of day of first hearing in any event - after this, until conclusion of case

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20
Q

In their communication, what must defence and prosecution establish?

A
  • Whether D likely to plead guilty/not guilty
  • What is agreed/likely to be disputed
  • What information required by one party of another
  • Why, what is to be done, by whom and when

Should report on this communication to the court

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21
Q

SUMMARY-ONLY OFFENCES

What should initial details (IDPC) include at the very least?

A

A summary of circumstances of offence and D’s criminal record

Will include further documents if D is on bail

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22
Q

SUMMARY-ONLY OFFENCES

Where a guilty plea is entered and the magistrates’ proceeds to sentencing, when is a sentenced passed? What are the maximum sentences that can be imposed?

A
  • Often passed immediately but can be adjourned for further information
  • Max = 6 months imprisonment / unlimited fine
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23
Q

SUMMARY-ONLY OFFENCES

Where a not guilty plea is entered, what will the magistrates’ do?

A

Set trial date and do any necessary case management to ensure trial effective on that date

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24
Q

SUMMARY-ONLY OFFENCES

What is the Preparation for Effective Trial form (PET) and what will it include?

A
  • Case progression form completed as part as case management in magistrates’
  • Includes: D’s name and legal reps, witnesses party requires attendance of, estimated trial length, identified trial issues, advance warning of applications (hearsay etc.), whether prosecution statements can be read, special arrangements (wheelchair access etc.)

Setting out what the issue(s) at trial will be and which witnesses are required to give live evidence allows the court to actively manage the case; ensures that only those witnesses whom the defence want to challenge on their evidence come to court.

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25
Q

SUMMARY-ONLY OFFENCES

What are magistrates’ courts encouraged to scrutinise with the utmost vigour?

A

Any time estimate in excess of a day for summary trial

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26
Q

SUMMARY-ONLY OFFENCES

What are a magistrates’ standard directions?

A

Directions re how a party should prepare a case - must be complied with unless magistrates’ directs otherwise

Directions (standard or otherwise) usually concern issues pertaining to bad character evidence, hearsay evidence, special measures to protect witnesses when they are giving evidence, disclosure, expert evidence, editing transcripts of interviews and serving certificates of readiness for trial.

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27
Q

SUMMARY-ONLY OFFENCES

What is a case progression officer and a nominated person?

A
  • Case progression officer = magistrates’ person who monitors decisions made by the court
  • Nominated person = the person at the offices of both the CPS and defence advocates who are responsible for complying with directions
28
Q

SUMMARY-ONLY OFFENCES

What does a pre-trial hearing do where a case has been set down for summary trial? Must rulings be applied for?

A
  • Makes pre-trial rulings on matters like admissibility of evidence and fitness to plead
  • Rulings made on application of either party or of court’s own motion
29
Q

SUMMARY-ONLY OFFENCES

Until when is a pre-trial ruling binding? On what ground can a party apply to have a pre-trial ruling varied/discharged?

A
  • Until case disposed of by conviction/acquittal, prosecution case deciding not to proceed, or dismissal of case
  • Can apply to have pre-trial ruling varied/discharged only if there has been a material change of circumstances
30
Q

SUMMARY-ONLY OFFENCES

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

A

If it is in the interests of justice to do so and parties have been given opportunity to be heard

31
Q

SUMMARY-ONLY OFFENCES

What 3 conditions must be present for a guilty plea to be made by post in summary only cases?

A

Where:

  • Matter has been commenced by summons or requisition; and
  • Prosecutor has served summary of evidence on which prosecution is based; and
  • Prosecutor has served information relevant to sentence

D can complete necessary documentation and plead guilty in writing without the need to attend court at all - court can accept plea and pass sentence in D’s absence

Used for minor non-imprisonable offences such as speeding or driving without insurance

32
Q

EITHER-WAY OFFENCES

For an offence which is triable either-way, when will D be asked to indicate their plea?

A

At their first hearing - known as plea before venue

Cf indictable-only where first hearings deal with only bail and legal aid

33
Q

EITHER-WAY OFFENCES

For their plea at a first hearing, what happens if D gives no indication of guilty or not guilty?

A

This will be treated as not guilty

34
Q

EITHER-WAY OFFENCES

What must D be warned about pleading guilty?

2 potential outcomes

A

That they can be…

  1. Sentenced by the court; or
  2. Committed to Crown Court for sentencing
35
Q

EITHER-WAY OFFENCES

Why would D be committed to the Crown Court after a guilty plea in their first hearing at the Magistrates’?

A

If magistrates’ of opinion that sentencing powers are insufficient to deal with offence

36
Q

EITHER-WAY OFFENCES

What must a guilty plea be, what if it is not this?

A

Must be unequivocal i.e. free of any suggestion/statement that D is not guilty (because of defence/refuse to accept element of offence)

If equivocal = treated as a not guilty plea e.g. …

  • ‘Guilty, but I was acting in self-defence’ - to allegation of inflicting GBH’
  • ‘Guilty, but I was going to give it back’ - to allegation of theft’
37
Q

EITHER-WAY OFFENCES

Where are either-way offences sentenced?

A

In either court

38
Q

EITHER-WAY OFFENCES

What are the maximum sentences (of imprisonment) that magistrates’ can impose for:

  1. Any summary only or single either-way offence
  2. Two or more either-way offences
A
  1. Any summary only or single either-way offence = 6 months imprisonment
  2. Two or more either-way offences = 12 months imprisonment
39
Q

EITHER-WAY OFFENCES

Once the magistrates’ decides their sentencing powers are sufficient, what 2 things might happen?

A
  1. Sentence passed immediately
  2. Adjourned for preparation of pre-sentence report (PSR) [but commital to Crown remains option for magistrates’]
40
Q

EITHER-WAY OFFENCES

What is ‘commital for sentence’?

A

Court decides sentencing powers are insufficient (sentence exceeds max) and D is ‘committed’ for sentence to the Crown Court

41
Q

EITHER-WAY OFFENCES

Where does D make next appearance after a commital for sentence?

A

In Crown - where Crown Court judge can pass sentence up to Crown Court limit for offence

42
Q

EITHER-WAY OFFENCES

On commital for sentence, in what 3 circumstsnces should magistrates’ order a PSR for use by Crown Court?

A

If it considers that…

  1. There is a realistic alternative to custodial sentence
  2. D may be a dangerous offender
  3. There is some other appropriate reason for doing so
43
Q

EITHER-WAY OFFENCES

Where D indicates a not guilty plea, what will court consider and what must they follow?

A

Court considers where trial should be held (i.e. allocation) and follows allocation guideline

44
Q

EITHER-WAY OFFENCES

The allocation guideline indicates that either-way offences should be tried summarily unless what?

2 conditions

A
  1. Magistrates’ sentencing powers would be insufficient (outcome would clearly be sentence in excess of court’s powers for offence[s] after considering personal mitigation/reduction for guilty plea); or
  2. Case should be tried in Crown for reasons of unusual legal, procedural or factual complexity

Caveats to 1st - see following cards

45
Q

EITHER-WAY OFFENCES

What does the allocation guideline say about what magistrates can do with cases with no factual or legal complications? What is the ultimate consequence of this?

A
  • Magistrates’ may retain jurisdiction notwithstanding that likely sentence might exceed powers bearing in mind power to commit for sentence after trial
  • Means cases are likely to be retained in mags unless offence is clearly so serious that only Crown should have power to deal

I.e. can still trial in Magistrates’ and commit for sentence if needed

46
Q

EITHER-WAY OFFENCES

If answer to ‘would the outcome clearly be a sentence in excess of the magistrates’ court powers?’ is not yes/no, what should happen?

A

Trial in magistrates’ and commit for sentence if needed

47
Q

EITHER-WAY OFFENCES

At allocation, how will the court take into account submissions of the parties (re where trial should be)?

I.e. what will prosecution and defence do?

A
  • Prosecution opens with facts, outlines D’s offending history, and makes submissions as to where trial should be held as per allocation guideline
  • Defence makes submissions too - can agree with prosecution and will be no more than saying that (but if disagree must make full persuasive submissions)
48
Q

EITHER-WAY OFFENCES

When the prosecution is making submissions re allocation, what will they cover?

A
  • Nature/seriousness of offence
  • Aggravating/mitigating circumstances
  • Previous convictions
  • Procedural/factual complexity
49
Q

EITHER-WAY OFFENCES

If, after submissions, magistrates’ decides to retain jurisdiction, what must the court explain to D?

A
  • D can consent to be tried summarily or be tried by a jury
  • If D is tried summarily and convicted he can still be committed for sentence
50
Q

EITHER-WAY OFFENCES

What is meant by D asking for an ‘indication of sentence’? Must court provide it?

A
  • D can ask for an indication of the sentence they would receive if they were to plead guilty instead
  • At court’s discretion whether they give indication; can decline
51
Q

EITHER-WAY OFFENCES

In indication of sentence, what is the court limited to telling D? What will be binding on any later magistrates’?

A
  • Limited to telling D whether sentence would be custodial or non-custodial
  • If non-custodial sentence indicated, this will be binding on any later magistrates’
52
Q

EITHER-WAY OFFENCES

Once indication is given, can D change plea to guilty?

A

Yes - process then followed like they had pleaded guilty from outset

If they do not change plea, indication given is not binding

53
Q

EITHER-WAY OFFENCES

What is ‘election’?

I.e. if D does not ask for indication/indication refused/D sticks with not guilty plea after hearing indication

A

D is asked if they consent to being tried in magistrates’, or if they want to elect to be tried by a jury (so case transferred to Crown)

After court decides to retain jurisdiction

NB court can still commit to Crown even if they consent to being tried in magistrates’

54
Q

EITHER-WAY OFFENCES

Is election available for summary offences too?

A

No!!!

55
Q

EITHER-WAY OFFENCES

Why would a D elect trial on indictment in Crown?

A
  • Acquittal rate is higher
  • Separate tribunals of law/fact (e.g. exclude evidence)
  • Crown will not always sentence more harshly than magistrates’

NB more stressful and delay in trial are downsides

56
Q

EITHER-WAY OFFENCES

Why would a D consent to trial in magistrates’?

A
  • Less formal and waiting time before trial is shorter
  • Trial is quicker
  • Does not require defence statement from D
  • Less expensive
  • Magistrates’ have to give reasons for decision, juries do not
57
Q

EITHER-WAY OFFENCES

Is the fact that magistrates’ court has weaker sentencing powers than Crown a good reason to consent to be tried summarily?

A

No - magistrates’ can commit to Crown for sentence after trial!

58
Q

EITHER-WAY OFFENCES

What are the next steps once a D either consents to summary trial or elects Crown Court trial?

A
  • Consents to summary = progresses as if case were summary-only offence, sets trial date, any required case management conducted
  • Elects Crown Court = D makes next appearance at Crown, court complets case management questionnaire
59
Q

EITHER-WAY OFFENCES

What are the 3 ‘special cases’ which are an exception to the rule that either-way offences can be dealt with in either court?

A
  1. Low value shoplifting
  2. Criminal damages
  3. Cases involving complex fraud or where children may be called as witnesses

Special cases meaning that jurisdiction of some offences normally classed as either-way are made into summary-only or indictable-only

60
Q

EITHER-WAY OFFENCES

What is the rule on low value shoplifting?

A

Treated as summary only (even though theft is an either-way offence!)

Oddly D still has right to elect to be tried at Crown

61
Q

EITHER-WAY OFFENCES

When can criminal damage only be dealt with at Crown and only be dealt with at magistrates’?

A
  • Over £5,000 / caused by arson = Crown
  • £5,000 or less = magistrates’
62
Q

EITHER-WAY OFFENCES

What is the magistrates’ maximum penalty for criminal damage?

Exception to normal rule on magistrates’ sentencing powers

A

3 months’ imprisonment or level 4 fine

Rather than 6 months / unlimited

63
Q

EITHER-WAY OFFENCES

What is the rule on cases involving complex fraud or where children may be called as witnesses?

A

Should be sent directly to Crown Court without going through plea before venue/allocation procedure

64
Q

EITHER-WAY OFFENCES

What are the conditions (at least two of which are needed) for an offence to be complex fraud?

A
  • Amount alleged to exceed £500,000
  • Significant international dimension
  • Requires specialised knowledge of financial, commercial, fiscal or regulatory matters such as the operation of markets, banking systems, trusts or tax regimes
  • Numerous victims
  • 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 of the United Kingdom, for example by undermining confidence in financial markets
65
Q

Summary of plea before venue for either-way offences

A

D indicates unequivocal guilty plea = court sentences D unless of opinion they should be committed

D indicates not guilty plea…

  1. Allocation - court decides to accept or decline jurisdiction
  2. Indication of sentence - D able to ask for indication if they were to plead guilty instead
  3. Election - should court accept jurisdiction D can consent to being tried summarily or elect to be tried on indictment

Criminal Law and Practice (21 decks)

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