Procedure in the magistrates’ courts, allocation for trial, trial/ sentence CC

Question 1

What are ‘initial details’?

Answer 1

Sufficient info to allow A + court, at first hearing, to take an informed view on plea, allocation, CM directions

NB: info required by Preparation for Effective Trial form must also be submitted at first hearing (where A pleads NG)

Question 2

If A in police custody immediately before first hearing - what initial details should P provide?

Answer 2

(1) summary of the circumstances of the offence,

and

(2) A’s criminal record (if any)

Question 3

If A is not in custody, what initial details should P provide?

Answer 3

(1) summary of the circumstances of the offence

(2) A’s criminal record (if any)

(3) any account given by A in interview

(4) any written WSs P has available which he considers material to plea, allocation (Mags or CC) or sentence;

(5) any victim statements

Question 4

What happens if P fails to provide initial details?

Answer 4

No specific sanction

• Mags will probably make direction (CrimPR 3.5) requiring P to comply + adjourn hearing for non-compliance (CrimPR 3.5(6)(a)).
• But court cannot dismiss charge(s) brought by P if P doesn’t comply w/ a request by A for initial details

Question 5

When must P provide Initial details of case to mags?

Answer 5

ASAP & no later than beginning of day of first hearing

• If A requests – P must also serve on A ASAP/no later than beginning of day of first hearing
• If A does not request – P must make them available to A at or before beginning of day of first hearing

Question 6

Can pre-trial hearings be held through live link?

Answer 6

Yes, where lawful + in the interests of justice to do so

• A in custody may appear at preliminary & sentencing hearings via ‘live link’ from prison or PS
• If A pleads G/indicates G plea + court proceeds immediately to sentencing = sentencing / oral evidence by A may also take place on live link unless contrary to the interests of justice

Question 7

When should Mags proceeding w/ allocation if an indictable offence and A in custody?

Answer 7

At first hearing, Mags should proceed at once w/ allocation & (if required) sending to CC

Question 8

If SO offence / EW offence allocated for summary trial & A in custody - what happens at first hearing?

Answer 8

At first hearing, Mags should proceed forthwith w/ giving necessary directions to prepare for trial or (on G plea) sentencing

Question 9

When’s the first hearing when A is on bail?

Answer 9

• If P anticipates (1) G plea (2) likely to be sentenced in Mags:

First hearing = 14 days after charge (or next available court date)

• If P anticipates either (1) NG plea or (2) G plea & likely to be committed to sentence to CC:

First hearing = 28 days after charge (or next available court date)

Question 10

When is a Pre-Sentence report necessary?

Answer 10

Where A pleads G/indicates G plea in Mags = court should consider necessity of PSR

• If (1) Mags considering committal to CC for sentence or (2) A has indicated intention to plead G in a matter to be sent to CC, Mags should request PSR for use by CC if:

(a) there is a realistic alternative to a custodial sentence
(b) A may satisfy dangerous offender criteria, or
(c) some other appropriate reason

Question 11

When does and Early administrative hearing happens/

Answer 11

Where A has been charged at a PS (CDA 1998, s 50)

Mags before which A first appears may:

(1) consist of single justice
(2) be conducted by a justice’s clerk — but (unlike judge) cannot remand A in custody or (w/o consent of P & A) remand A on bail on new/different conds

Question 12

What’s the procedure for Early administrative hearings?

Answer 12

Procedure: A asked whether wants legal aid

If yes, arrangements for application must be made;

• hearing may be adjourned

NB: does not apply if A charged by CPS under written charge & requisition

Question 13

Mags must conduct preparation for trial hearings unless?

Answer 13

(1) A sent for trial in CC
(2) A enters a written G plea, or
(3) early administrative hearing applies (charged w/ offence at PS)

Question 14

Where A is sent for trial in CC, Mags may conduct further pre-trial CM hearings if?

Answer 14

(i) court anticipates G plea

(ii) necessary to give directions for an effective trial, or

(iii) hearing required to set ground rules for conduct of Q’ing of a W or D

Question 15

At a ‘preparation for trial’ hearing, court must give directions for an effective trial. If A present, court must:

Answer 15

(a) ensure A understands that credit will be received for a G plea

(b) take plea from A (or find out likely plea)

(c) unless A pleads G, ensure A understands that at trial:

(i) he will have right to give evidence after P case
(ii) if he does not attend, trial likely to take place in absentia
(iii) if released on bail, FTS is an offence which may lead to arrest & punishment & bail may be withdrawn

Court should also take A’s name, DoB & nationality

NB: usually in public

Question 16

What’s a pre-trial ruling?

Answer 16

Is a hearing taking place before court begins to hear P evidence - where fitness to plead is an issue
- before court considers whether to make a hospital order w/o convicting A

Question 17

At pre-trial hearing, Mags may make pre-trial ruling (binding thru trial) on?

Answer 17

(1) any Q as to admissibility of evidence,

and

(2) any other Q of law relating to the case

Question 18

Pre-trial ruling can only be made if?

Answer 18

(1) court has given both parties an opportunity to be heard,

and

(2) in the interests of justice to make it

If A unrepresented = must be given a chance to apply for legal aid

• Rulings can be made on application of P/D, or on court’s own motion

Question 19

PTRs are binding until case against A(s) disposed of. However Mags may discharge/vary a pre-trial ruling if? (2)

Answer 19

(1) court has given both parties an opportunity to be heard,

and

(2) in the interests of justice to do so

Question 20

Can P/D apply for a discharge/vary a pre-trial ruling where there’s been a material change of circumstance?

Answer 20

Yes

• if material change of circumstances shown since ruling / previous app to discharge/vary made;
• on court’s own motion, but probably only in event of changed circs/fresh evidence (= i.e., in interests of justice to revise earlier ruling)
• NB Mags have similar power at common law as above but applies only where s 8A does not

Question 21

Can P/D appeal PTRs?

Answer 21

No provision for this, but:

• error of law could form basis of appeal by way of case stated after final determination of proceedings in Mags

Question 22

What’s the essential CM where A pleads NG?

Answer 22

• From start, parties must identify disputed issues & tell court
• If parties do not supply this info, court must require them to do so
• All ‘live’ evidence at trial should be confined to these issues

Question 23

Re: essential CM - What must court’s directions include?

Answer 23

MUST include a timetable for progress of case

Parties must warn court ‘promptly’ if problems anticipated

In setting timetable, any proposed estimate of more than a day in a summary trial should be carefully scrutinised

Ultimate goal = all contested Mags trials fully CM’ed at first hearing & disposed at second

• But must not compromise fairness of proceedings to all parties

Question 24

What’s an ambiguous plea? What’s the effect of this pleas?

Answer 24

Where A pleads G, but qualifies with words which suggest he may have a defence

E.g. “G but it was an accident”

Effect:

= court must not proceed to sentence on basis of plea, but explain relevant law & determine whether A genuinely intends to plead G

Plea cannot be clarified:
E.g. mute of malice or will not answer directly

= court must order NG plea to be entered on A’s behalf

NB sentencing on imperfect plea = good grounds for appeal

Question 25

When considering consent to summary trial, A should be aware of advantage of summary trial and of advantage of trial on indictment. What are the advantages for each?

Answer 25

Advantage of summary trial:

(1) Limit on sentence:

1 EW offence - 6 months
2x EW offences - 12 months
1x summary only, 1x EW
offence - 6 months
1x summary offence - 6 month+*

• Except where a different maximum sentence applies, e.g. low-value criminal damage
• However, largely nullified by power to commit to CC

Advantage of trial on indictment:

(1) Submissions on admissibility of evidence can be made in absence of jury, so jury do not find out about any matters that are ruled inadmissible

• However, a bench of magistrates may give a pre-trial ruling on admissibility of evidence which binds bench trying case

(2) Defence entitled to receive copies of WS to be called by P as part of process to transfer to CC

• However, as a matter of good practice P also provide all evidence upon which they propose to rely in a summary trial (incl. WSs)

Question 26

What’s a defence statement? What’s included?

Answer 26

DS = a written statement setting out basis of defence case, including:

(1) nature of defence
(2) matters of fact on which A takes issue with P & reasons why
(3) particulars of matters of fact on which A intends to rely for defence, and
(4) points of law which A wishes to take, w/ authorities relied upon

Question 27

What’s D disclosure obligation in a trial in CC and in summary trial?

Answer 27

Trial in CC
- A must give a DS to court & P, once case sent to CC & P case served

Summary trial
- No obligation to provide a DS, but if no DS:
(1) A cannot apply for specific disclosure,

and

(2) court cannot make orders for disclosure of unused P material

Question 28

During summary trial, A choses to serve a defence statement - what are the time limits?

Answer 28

Must be done within 14 days after P complies with initial duty of disclosure

• Court has power to extend time-limit on A’s application [if made within “”]

NB:
- Even if no DS, D must identify real issues in a case per OO
- Cases raising difficult issues of disclosure should be referred to a DJ

Question 29

Mags court are under duty to give reasons where convicts or acquits A during a summary trial. What are they?

Answer 29

If Mags convicts A:
- Must give sufficient reasons for explaining its decision

• Form of judgment not required – few sentences enough; but must be done carefully, lest conviction liable to be quashed
• If A wishes for more detail, can make request to Mags to state a case

If Mags acquits A
- May but not required to give an explanation

Question 30

What are the 2 stages in determining allocation in an EW offence?

Answer 30

(1) (‘plea before venue’) ascertain intended plea;

if NG

(2) determine whether case will be tried in Mags or CC

Question 31

What’s the plea before venue procedure?

Answer 31

Procedure must be complied w/ before evidence called for purposes of summary trial (ST) or case sent to CC:

(1) Charge written down & read to A

(2) Court explains A may indicate whether plea would be G or NG
- Must explain that, if A indicates G, A may be committed for sentence if court thinks powers of punishment inadequate or ‘dangerous offender’ provisions apply

(3) Court asks A to indicate whether plea would be G or NG (if offence were to proceed to trial)

(4) If G = court proceeds as if A had pleaded G at ST & moves onto sentencing stage

(5) If NG/no indication = allocation hearing must take place

Question 32

What’s the allocation procedure?

Answer 32

(1) P & D can make representations about suitability for ST / trial on indictment
- P may inform Mags of previous convictions (as affects appropriate sentence)

(2) Court makes decision on suitability, considering:

(i) adequacy of Mags’ sentencing powers
(ii) representations made by P and/or A, and
(iii) Sentencing Council allocation guidelines

Question 33

During allocation, A is allocated a summary trial - What’s the procedure?

Answer 33

(3) Court explains to A that:
(i) A can either consent to ST or elect for CC trial
(ii) if A tried summarily & convicted = Mags may commit A to CC for sentence if inadequate sentencing or dangerous offender

(4) A may at this stage request Mags to indicate whether, if A were to plead G on ST, sentence would be custodial or non-custodial
- Mags not obliged to give indication

• If gives indication = must ask A whether wishes to reconsider indicated plea;
• If yes, PBV stage repeated;

G plea = proceed to sentence (adjourning for PSRs if necessary); custodial sentence only if indicated

• If no (or yes, but NG plea offered again) = indication of sentence not binding on Mags/CC as case may be

(5) If court does not give indication / no above = A asked [again] whether he consents to ST

(6) Depending on A’s choice, court either proceeds to ST or sends to CC

Question 34

During allocation, A is allocated trial on indictment - What’s the procedure?

Answer 34

(3) Court explains to A that trial on indictment more appropriate

(4) Sends case to CC

NB: procedure modified in the case of low-value criminal damage & shoplifting

Question 35

Can PBV and allocation hearings take place in absentia of A?

Answer 35

Yes general rule if that A must be present

But PVB may take place in absentia if:

(1) A has legal representative (who can indicate plea on A’s behalf)

(2) not practicable for A to be present due to disorderly conduct, and

(3) court considers that it should proceed in absence of A

Allocation hearing may take place in absence if:

(1) not practicable for A to be present due to disorderly conduct,

or

(2) legal representative signifies that A consents to allocation being decided in his absence, & court satisfied there is good reason (e.g. illness);
- if decision = ST & legal rep signifies A’s consent, Mags may adjourn

Question 36

Mags discretion to commit for sentence is subject to ‘legitimate expectation’ - what does this mean?

Answer 36

if A has been led to believe that Mags will pass sentence = should not be committed to CC (decision to commit in breach of LE = liable to be quashed)

Question 37

What’s the binding effect of indication of sentence?

Answer 37

If court gives an indication = may not impose custodial sentence unless was indicated

Exception: If A committed to CC, CC can impose a custodial sentence when Mags indicated otherwise only if:

(1) offence = ‘specified offence’ (& A also being sent to CC for trial re: one/more related offences),

(2) A = ‘dangerous offender’,

and

(3) Mags, when committing, stated its power to commit under dangerous offender provisions

Question 38

Following an indication of NG, Mags must consider whether Mags’ sentencing powers adequate on conviction, looking at totality of allegations. Per the Sentencing Council allocation guidelines, what are the considerations of sending A to CC for trial and sentence?

Answer 38

1)Sending to CC for trial

EW offences should be tried summarily unless:

(a) total sentence would clearly be in excess of court’s powers (accounting for mitigation + G plea reduction), or

(b) unusual legal / procedural / factual complexity (rare; e.g. where likely sentence = very substantial fine)

• BUT if no factual / legal complications, court should bear in mind power to commit for sentence + may retain jurisdiction despite that likely sentence might exceed its powers
• Practical effect = any uncertainty as to adequacy of powers = err on side of ST

2) Committing to CC for sentence
- Does not need to possess new info than when initially accepted jurisdiction

• In borderline cases, should get PSR before decision

-Must take into account mitigation + G plea reduction, against ref of definitive sentencing guideline

Sufficiently serious cases should still be committed to CC for sentencing, even where a community order may be most appropriate (= CC can then deal with any breach)

Question 39

Following an indication of NG, Mags must consider whether Mags’ sentencing powers adequate on conviction, looking at totality of allegations. Per the Sentencing Council allocation guidelines, what are the considerations of allocation of co-As?

Answer 39

Allocation where there are co-As

• Court must explain that if one A goes for trial in CC, other must also be sent for that offence + all related offences (even if Mags decide case against other A appropriate for ST)

*Court can ask co-As Qs about intentions to elect CC trial, so can decide in what order to deal with them & not have to repeat procedure

Question 40

Can P influence on allocation decision? There’s an exception

Answer 40

ST may be vetoed by either court or A, but not P

Exception: P can serve a notice requiring Mags to send case to CC for trial instead of conducting PBV hearing if:

(1) case involves fraud of seriousness/complexity,

or

(2) A charged w/ an offence involving assault/injury/threat to person (or specified offence) & a child will be called as W

Question 41

Where A is charged with a scheduled offence’, the court must consider the value before allocation. What must the court consider?

Answer 41

Depending on value, A may lose right to elect trial on indictment

Relevant sum = £5K

Value*:
- Unrepairable = market cost of replacement
- Repairable = market cost of repairs / replacement (the lesser)

*Does not include consequential loss

Question 42

What must the court do when considering representations of parties regarding value for criminal damage charges?

Answer 42

What must court do?

• If value less than £5K
  o Mags must proceed to ST
  o If convicted, max penalty = 3m or £2500 fine; no power to commit for sentence
• If value more than £5K
  o Mags carries out usual allocation; usual sentencing powers
• If court uncertain = court must explain to A he can consent to ST (& that if convicted = sentencing powers are limited as above), and for whether he does so. Usual process then follows

Question 43

What are the court’s considerations re: value where A is charged with 2+ criminal damages charges forming part of a series of offences of a similar character?

Answer 43

Value = aggregate value involved

NB ‘charged on the same occasion’ = appearing at Mags court to answer charges on same occasion

Question 44

What constitute scheduled offence within the special procedure for criminal damage charges?

Answer 44

(a) damaging or destroying property (excl. by fire)

(b) aiding/abetting, attempting/encouraging such offences

• Not those committed w/ intent/recklessness to endanger life
• Not conspiracy to commit criminal damage

Question 45

What’s the special provision for low-value shoplifting? (general rule)

Answer 45

General rule: if value of goods £200 or less, triable only summarily

However – A retains right to elect CC trial (cf. criminal damage)

NB
▪ Cannot form sole basis of indictment, unless A elects for CC trial
– so if sent to CC for other related charges that are dropped, but did not elect for CC re: the shoplifting charge = must be brought back to Mags

▪ Low-value shoplifting charges (‘charged on same occasion’ etc.) can be aggregated; but cannot be aggregated with high-value shoplifting charges

Question 46

Re: committal for sentence -What’s the meaning of section 14 of the Sentencing Act 2020?

Answer 46

Where Mags convict A of EW offence(s) & takes view that sentencing powers inadequate = may commit A (in custody/on bail) to CC for sentencing

• CC can sentence A as if A convicted on indictment (= not limited to Mags’ sentencing powers)

Question 47

Re: committal for sentence -What’s the meaning of section 18 of the Sentencing Act 2020?

Answer 47

Where A indicates G plea to EW offence & is also sent to CC for related indictable offence(s) = Mags may commit A to CC for sentencing re: the EW offence

• CC is limited to Mags’ sentencing powers unless:
  a) Mags, when committing, stated belief that sentencing powers inadequate,

or

b) A is convicted by the CC of one/more of the related offence(s) sent for trial

NB ‘related’ = founded on same facts / form part of a series of offences of same/similar character (= charges could be joined in the same indictment if tried in CC)

Question 48

Re: committal for sentence -What’s the meaning of section 20 of the Sentencing Act 2020?

Answer 48

Committal powers supplementary to the primary powers (s. 14/18) . Also allows for committal:
a) For sentence re: breach of a conditional discharge imposed by CC

b) Where A commits a further offence during a period of suspended sentence imposed by CC

Question 49

When committing (under CDA 1998, s 51) indictable offences sent to CC. What’s the court of first appearance?

Answer 49

Always Mags

Mags must send cases ‘forthwith’ to CC under CDA 1998, s 51 if:
(1) Indictable-only

(2) EW offence – NG at PBV + allocation hearing results in CC

(3) P notice cases (i.e. serious fraud & child W)

Question 50

Where Mags sends A to CC for trial under s 51, they must also send A to CC for trial for any related offence(s). What are ‘related’ sentences?

Answer 50

For EW offences:

• if could be joined in same indictment (i.e. charges are founded on the same facts / or form (part of) a series of offences of the same or a similar character)

For summary offences:
- must be punishable with imprisonment / disqualification from driving

• if arises out of circumstances the same as / connected w/ those giving rise to the indictable offence
• Summary offence of FTS (s 6) NOT ‘related’ to main substantive offence — even though D was on bail for the substantive offence, the circs giving rise to each offence were different

NB: ‘Related’ cannot however be included on the indictment, and so can be sent to the CC for plea only

Question 51

If A already sent to CC for trial & subsequently charged w/ related EW / summary offence, can the court commit to CC?

Answer 51

Yes, they MAY

• so an allocation procedure takes place as normal

Question 52

When committing (under CDA 1998, s 51) indictable offences sent to CC, what’s the effect on co-As?

Answer 52

If one elects CC, or sent to CC for trial = Mags MAY send any other co-A for same/related offence to CC

• If a co-A is subsequently charged w/ a related EW / summary offence = court may commit to CC

Question 53

Under s.51 under CDA 1998, can the functions of mags be discharged by a single justice?

Answer 53

yes

Question 54

When A sent to CC under s 51, is the summary trial regarded as ‘adjourned’ in Mags w/o fixing time & place for resumption?

Answer 54

Yes

Question 55

If A does not appear in court for s 51 hearing (FTS on bail, or failure to answer summons/requisition), can Mags may issue an AW?

Answer 55

Yes, they may

Question 56

What’s the procedure for sending related summary only offences to the CC?

Answer 56

If A convicted on the indictment = CC must ask A to enter plea to summary offence(s)

G = CC may deal with A w/ Mags powers

NG = CC must remit matter to Mags (unless dismissed, on P’s instigation)

Question 57

Under CJA 1988, s 40, specified summary offences can be included in indictment if?

Answer 57

(1) A sent to CC for indictable offence

(2) summary offences disclosed by evidence sent re: an indictable-only offence, and

(3) summary offence is related to indictable offence (i.e. founded on same facts as the indictable offence / part of a series of offences of the same or similar character as the indictable offence)

Question 58

What specified summary offences can be included in indictment under CJA 1988, s 40?

Answer 58

(1) Common assault (/battery)

(2) Assaulting prisoner custody officer (or other custody officer)

(3) Taking a motor vehicle w/o consent
(4) Driving while disqualified, and

(5) Criminal damage less than £5K

Question 59

In sending related summary only offences to the CC - How is it dealt with? (CJA 1988, s 40)

Answer 59

Tried as an indictable offence – jury

• But if convicted, max sentencing power = Mags

Question 60

What’s the general thrust of the rules on related offences?

Answer 60

• produce one trial rather than many more for a number of reasons:
  a) avoids witnesses having to show up on different dates
  b) allows jury and judge to consider all evidence at once, etc