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Criminal Litigation > Preliminary Hearings > Flashcards

Preliminary Hearings Flashcards

1
Q

When must the prosecutor provide ‘initial details’ of their case?

A

As soon as practicable, and in any event no later than the beginning of the day of the first hearing.

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2
Q

Do initial details have to be automatically supplied to the accused?

A

No. If the accused requestst them, they should be served as soon as practicable. If the accused does not request them, they may be made available to D at, or before, the beginning of the day of the first hearing.

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3
Q

Where D was in custody immediately prior to the first hearing, what constitutes ‘initial details’?

A

A summary of the circumstances of the offence

Their criminal record

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4
Q

Where D was not in custody prior to the first hearing, initial details comprise:

A

Summary of the circumstances

Any account given by them in interview

Any written witness statements material to plea, venue or sentence;

Criminal record

Any available statement of the effect of the offence on victims or their family or on others.

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5
Q

When can an accused in custody appear via live link?

A

Preliminary hearings

Sentencing hearings

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6
Q

Where D pleads guilty in a preliminary hearing via a live link, can the court immediately turn to sentencing via live link?

A

Yes, only if it is not contrary to the interests of justice for this to take place.

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7
Q

Where D is charged with an indictable offence and is in custody, what should the mags do at the first hearing?

A

Proceed with allocation of the case for trial (if either-way). If so required, send D to Crown Court for trial.

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8
Q

Where D is charged with a summary offence and is in custody, what should the mags do at first hearing?

A

Give such directions as are necessary, either on a guilty plea to prepare for sentencing or for a trial.

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9
Q

Where D is on bail, when must the first hearing be listed for?

A

14 days after the charge where P aniticpates a guilty plea likely to be sentenced in the mags.

28 days after charge where P anticipates ‘not guilty’ plea or likely sending/committal to Crown Court.

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10
Q

After what plea should the mags consider if a pre-sentence report is necessary?

A

Guilty.

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11
Q

When SHOULD the Mags request a pre-sentence report for the use by the Crown Court?

A

If they consider there is a realistic alternative to a custodial sentence;

the accused may satisfy the criteria for classification as a dangerous offender; or

There is some other appropriate reason for doing so.

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12
Q

What provision does section 50 CDA 1998 make for pre-trial hearings?

Where does section 50 apply?

A

First hearing in Mags for the charge may consist of a single justice.

They are asked if they want legal aid. Adjournment may be necessary for this purpose.

D may be remanded in custody or put on bail.

Section 50 only applies where the accused was charged at the police station.

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13
Q

The Mags must conduct a prepration for trial hearing, unless:

A

D is sent for trial in CC; or

D enters written guilty plea; or

Single justice procedure applies.

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14
Q

The court may conduct one or more further pre-trial case management hearings if :

A

Court anticipates guilty plea;

Necessary to conduct such a hearing to give directions for effective trial;

Required to set ground rules for the conduct of the questioning of a witness or defendant.

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15
Q

If the accused is present at a preparation for trial hearing, the court must:

A

Satisfy itself that D understands credit for guilty plea;

Take a plea, or find out what they are likely to plea;

Unless guilty plea, ensure D understands they will have right to give evidence after prosecution case / trial likely occur in D’s absence / if on bail, failure to attend is an offence and bail may be withdrawn.

Must also ascertain name/DoB/nationality of D.

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16
Q

Are pre-trial rulings binding?

A

Generally yes, until D is acquitted or convicted.

However, the court may discharge or vary rulings, provided it appears to the court that it is in the interests of justice to do so, and parties have had opportunity to be heard.

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17
Q

If the parties do not identify the disputes when D pleads not guilty, the court will…

A

…require them to do so.

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18
Q

What should the court do if D gives an ambiguous plea?

A

Explain the law and ascertain whether D genuinely intends to plead guilty. If they cannot figure this out, they should accept a not guilty plea.

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19
Q

What advantages does D have re sentencing in Mags?

A

Limit on sentence (however, can just commit to CC for sentence)

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20
Q

What is the advantage of the Crown Court re admissibility of evidence?

A

Submissions can be made in the absence of the jury. However, a bench of mags can rule on admissibility pre-trial, and this will bind future benches.

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21
Q

What is the advantage of trial on indictment re witness statements?

A

D entitled to copies of witness statements that the prosecution will use.

However, it is good practice to do this in the Mags as well.

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22
Q

General Advantage of Mags:

A

Shorter
Less Formal
Cheaper

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23
Q

What must a defence statement include, as per section 6A CPIA 1996?

A

Nature of their defence, including particualr defences they wish to rely on;

Matters of the fact they take issue with the prosecution on, and why;

Particulars of matters of fact which D intends to rely on for the purpose of the defence;

Any points of law, with authorities relied on.

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24
Q

If D does not provide a defence statement in s8, they cannot:

A

Apply for specific disclosure;

court cannot order disclosure of unused prosecution material.

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25
Q

When must D serve their defence statement in a summary trial?

A

14 days from the date on which the prosecutor complies or purports to comply with the initial duty of disclosure.

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26
Q

Must the Magistrates’ court give reasons to explain their findiing of guilt?

A

Yes.

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27
Q

The standard procedure for plea before venue is as follows:

A

The charge is written down and read to D;

The court explains that D may indicate their plea, then the court will consider the adequacy of their sentencing powers if guilty.

The court asks D to indicate whether their plea would be G or NG if they proceeded tp trial;

If D indicates a guilty plea, the court proceedgs as if D had pleaded guilty at summary trial, so moves to sentencing.

If D indicates not guilty, an allocation hearing must take place.

28
Q

If D fails to give an indication as to plea in a PBV hearing, what will the court regard this as?

A

A not guilty plea.

29
Q

The standard procedure for allocation is as follows:

A

Both parties can make representations as to which venue is more suitable. (previous convictions relevant re sentencing);

Court then considers:

  • Does mags have the sentencing powers;
  • representations;
  • Allocation guidelines

If summary more appropriate:

  • Tell D they can consent or elect for CC
  • If Mags convict, they may still send up to CC for sentencing.

D can then request whether sentence would likely be custodial or not, if he pled guilty to a summary trial. Mags does not have to do so, but can then ask D if he wants to reconsider his plea. (indications are never binding)

If D then pleads guilty, proceed to sentencing (pre-sentence report etc).

If no indication, or D does not reconsider the plea, ask if d consents to summary trial.

30
Q

PBV can take place in the absence of the accused if:

A

Legal representative present; and

Court considers that it is not practicable to conduct the hearing in D’s presence; and

Court considers they should proceed.

D can also consent to PBV in their absence + court agrees that their is good reason to do so.

31
Q

If a court indicates a non-custodial sentence, and then D pleads guilty, can the court then impose a custodial sentence?

A

Generally, no.

However, they can do so where the criteria for extending sentences for dangerous offenders is met. A non-custodial indication does not oust the power to commit for sentence.

32
Q

The Allocation Guidelines state that either-way offenes should be tried summarily unless either:

A

The outcome would clearly be a sentence in excess of the court’s powers for the offences; or

For legal/procedural/factual reasons, the case should be tried in the CC.

33
Q

If Mags are uncertain of the adequacy of their sentencing powers, they should..

A

…err on the side of offering the accused the option of summary trial.

34
Q

Must co-accused be sent to the same court for trial?

A

Yes, even if one of the offences would otherwise be suitable for summary trial.

35
Q

Can the prosecution veto a summary trial allocation?

A

No. Best they can do is make representations.

36
Q

What are scheduled offences?

A

Cases where the allocation procedure is preceded by consideration of the value involved in the offence.

D may be deprived of the right to elect to trial by indictment.

37
Q

List the scheduled offences.

A

Offences of damaging or destroy property contrary to s1 CDA 1971, except those committed b fire (and aiding/abetting/encouraging them);

Also, offences committed with intent/recklessness to endangering life are not covered.

38
Q

If two or more scheduled offences have an aggregate value of over £5000, does D retain the right to elect trial by indictment?1

A

Yes, even if individually each offence is under £5000 in value.

39
Q

Can an adult offender elect to try low-value shoplifting at the Crown Court?

A

Yes, even though it is triable only summarily.

40
Q

What is the principle of legitimate expectation, re sentencing?

A

If D has been led to believe that the Mags will pass sentence, D should not subsequently be committed for sentence.

41
Q

Where the Mags has committed an offender for sentence pursuant to s4(2) PCCSA, the CC can exceed the sentencing powers of the Mags in respect of the either-way offence only if either:

A

(a) the mags stated that they considered their sentencing powers were inadequate to deal with the offender for that offence; or
(b) the offender is convicted by the CC of one or more of the related offences.

42
Q

Section 6 PCCSA gives a power to:

A

Commit for sentence, to be used to supplement a committal under the provisions listed in s6(4).

43
Q

Section 3 PCCSA applies where:

A

Mags has convicted for an EWO and takes the view that its sentencing powers are inadequate.

44
Q

Section 4 PCCSA applies where:

A

D indicates guilty to EWO and is sent to trial for related offences.

The mags may commit D to CC for sentence in respect of the EWO guilty plea.

45
Q

Under s51(3) CDA, where the court sends to trial trial under s51, it must also:

A

Send D to CC for trial for any EW or summary offences which D is charged with and which appeat the court to be related to the offence being sent to the Crown Court.

46
Q

Can summary offences be heard in Crown Court?

A

Yes. Section 40 CJA lists certain specified summary offences which, when disclosed by evidence on basis of which D is sent to trial for an indictable offence, and both are founded on same facts, the count for summary offence may be included on the indictment.

Section 51(6) CDA also requires mags to send to CC for any summary offece which is related to the indictable/EWO offences sent to CC.

47
Q

Where a count for a summary offence is included in an indictment by virtue of section 40(1), what is the maximum penalty?

A

That which could have been imposed for the offence by a magistrates’ court.

48
Q

The summary offences to which CJA section 40 applies are:

A

Common assault

Assaulting a prison custody officer or secure training centre custody officer

TWOC

Driving while disqualified

Criminal damage under the relevant sum

49
Q

Can D apple for charges in the CC to be dismissed?

A

Yes, under CDA sch 3 para 2(1).

The judge must dismiss any charge if it appears that the evidence against D would not be sufficient to ensure a proper conviction.

50
Q

Pre-trial rulings are binding until…

A

…the case is disposed of. (acquittal/conviction/not proceeded with/dismissed).

51
Q

Can a mags vary the pre-trial ruling of their own motion without further reason?

A

No. It is difficult to accept that this would be in the interests of justice.

52
Q

When can a summary offence which is not a scheduled offence under s40 CJA go up to crown court?

A

Where it carries imprisonment/disqualification. However, it will not be tried on indictment. Instead:

  • The CC will deal with the offence on the indictment;
  • D will enter plea for the summary offence;
  • If Guilty, sentence together.
  • If Not Guilty:
    1. the pros may dismiss it;
    2. The judge may try it as a magistrate;
    3. the judge may send it back to Mags
53
Q

List seven advantages of the Mags

A

Lesser sentencing powers

Less formal

Cheaper

Can appeal w/o leave

Quicker

No need to submit defence statement

Reasons for conviction must be given

54
Q

List three disadvantages of the Mags

A

Magistrates are harsher re conviction rates

No separation of tribunal of fact and law

Can still commit to CC for sentence

55
Q

List five advantages of Crown Court

A

Jury trials - sympathy

Admissibility issues can be properly raised

Get copies of Witness statements (although this is good practice in Mags)

Lower conviction rate

More time to prepare

56
Q

List seven disadvantages of Crown Court

A

More formal

More expensive

Greater sentencing powers

Juries don’t give reasons for verdict

Need leave to appeal

Must provide a defence statement

Longer waits and longer trials

57
Q

TRUE or FALSE. You can apply to dismiss charges prior to arraignment.

A

TRUE

58
Q

TRUE or FALSE. You can apply to dismiss charges both orally or in writing.

A

TRUE.

59
Q

On what basis will a charge be dismissed?

A

On the basis that the evidence is not sufficient to ensure a proper conviction.

60
Q

Can Driving Whilst Disqualified be tried alongside an indictable offence?

A

Yes - it is a section 40 offence.

61
Q

TRUE or FALSE. Section 40 offences can be tried with indictable only offences.

A

TRUE.

62
Q

How do we decide if offences are sufficiently linked?

A

Founded on same facts/evidence;

Series of offences are same/similar character;

Evidence of the offence is disclosed with evidence of indictable offence.

63
Q

Is the court bound by their indication of sentence if the accused decides to continue their not guilty plea?

A

No.

64
Q

TRUE or FALSE. The accused must be present in the courtroom for allocation to be determined.

A

FALSE.

65
Q

True or false. An application for charges to be dismissed can be made either in writing or orally. The application can be made not more than 28 days after the evidence upon which the case is based is served but before arraignment.

A

TRUE.

66
Q

What happens where an application to dismiss is raised at PTPH?

A

If the intention to make an application to dismiss is raised at the PTPH the accused will not be arraigned and a timetable will be set for service of the written application.

67
Q

Does a defendant need a legal representative in order to be allocated?

A

No.

Criminal Litigation (18 decks)

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