Unit 2 – First Hearing Before Magistrates

Question 1

Do all defendants aged 18 or over first appear before magistrates (even if triable only on indictment?)

Answer 1

YES. If triable on indictment, the magistartes sent the case to the crown court.

Question 2

What is an offence triable only on indictment?

Answer 2

• Most serious form of criminal offence
• Must be dealt with by the Crown Court.
• D will make their first appearance before the magistrates’ court and then the magistrates will immediately send the case to the Crown Court under s 51 CDA 1998.
• E.g., murder, manslaughter, casing grievous bodily harm/wounding with intent, rape, robbery, aggravated burglary, blackmail, kidnap and conspiracy.

Question 3

What is an either-way offence?

Answer 3

• Can be dealt with either by magistrates’ court or by Crown Court.
• D makes their first appearance before magistrates’ court and if D indicates a ‘not guilty’ plea, the magistrates will then decide whether to keep the case before the magistrates or send it to the Crown Court (if it is too serious for them to deal with, or if it is ‘clearly in excess of their powers, or has complex legal issues). This process is called ‘allocation’.
• If magistrates do decide to keep the case, D has the right to elect trial by a judge and jury in the Crown Court or consent to a summary trial.
• E.g., theft, fraud, most forms of burglary, handling stolen goods, going equipped to steal, inflicting grievous bodily harm/wounding, assault occasioning actual bodily harm, sexual assault, affray, threats to kill, criminal damage, dangerous driving, possession of an offensive weapon, possession/ possession with intent to supply and supply of controlled drugs.

Question 4

What is a summary offence?

Answer 4

• Least serious offences.
• General rule = summary offences may only be dealt with by the magistrates’ court.
• E.g., common assault, ss 4 and 5 Public Order Act 1984, taking a vehicle without consent and most road traffic offences.

Question 5

How is work done at the police station charged?

Answer 5

• All persons attending at the police station (whether under arrest or attending voluntarily) are entitled to free legal advice, regardless of their means.
• Work done by a solicitor at police station will be claimed as a fixed fee under Police Station Advice and Assistance Scheme.
• One fixed payment for every police station case (regardless of how many attendances and how long the solicitor was there for) – special provision may be made for cases which are more serious/time consuming.
• Non-solicitors (e.g., trainees) can attend the police station and charge for this work as long as they are either accredited or probationary police station representatives.
• Solicitor duty schemes = where solicitors are entered on a rota and are called to attend police station if they are on duty and the person who has been arrested does not have their own solicitor.

Question 6

How is work done after the client is charged charged?

Answer 6

1. The duty solicitor scheme

• Operates in magistrates’ court (similar to process in police station).
• Solicitors who are members of a court duty scheme are put on a rota and advise any defendants who do not have their own solicitor but who require legal advice/representation.
• Duty solicitor then claims their costs in attending court from the LAA under the Advocacy Assistance (Court Duty Solicitor) scheme.

2. Applying for a representation order

A defendant who wishes to apply for criminal legal aid in the magistrates’ court must satisfy two tests:

(a) Interests of justice test – D must show that it is in the interests of justice that they receive public funding to cover the cost of their legal representation; and

(b) The means test – D must demonstrate that their finances are such that they are unable to pay for the cost of their legal representation.

Process (of applying for legal aid) = D must submit Form CRM 14 – application for legal aid in criminal proceedings.

 Where D does not automatically satisfy the means test, they must also submit a financial statement (Form CRM15), with supporting evidence.

Question 7

What are the conisderations of the interests of justice test? (for an application for legal adi)

Answer 7

(a) LIBERTY – Whether the individual would, if any matter arising in the proceedings is decided against them, be likely to lose their liberty or livelihood or suffer serious damage to their reputation;

(b) QUESTION OF LAW – Whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law;

(c) UNABLE TO UNDERSTAND CASE – Whether the individual may be unable to understand the proceedings or to state their own case;

(d) EXPERT CROSS EXAMINATION –Whether the proceedings may involve the tracing or expert cross-examination or witnesses on behalf of the individual; and

(e) INTERESTS OF ANOTHER PERSON –Whether it is in the interests of another person that the individual be represented.

Question 8

How can defendant appeal against an application for legal aid if it is refused?

Answer 8

1) Adding further details to their original form CRM14

2) Requesting an appeal

Question 9

Which defendants receieve criminal legal aid automatically? (i.e., without needing to satisfy the means test, as long as they satisfy the interest of justice test)

Answer 9

(a) Applicants who receive income support, income-based jobseeker’s allowance, guaranteed state pension credit, income-based employment and support allowance or universal credit; and

(b) Applicants who are under the age of 18.

Question 10

What do other applicants need to supply the court for the means test?

Answer 10

• Other applicants must complete Form CRM 15 and need to supply the court the necessary evidence to substantiate their financial details. E.g., pay slips, tax returns, bank statements, other tax forms, mortgage statements.
• After receipt of CRM15 – means test applied. Means test considers applicant’s income and expenses, but not applicant’s capital.

Question 11

How is the applicants’ disposable income calculated on the means test?

Answer 11

• Means test calculates applicant’s disposable income by deducting the following items from the applicant’s gross annual income:

(a) Tax and national insurance
(b) Annual housing costs
(c) Annual childcare costs
(d) Annual maintenance to former partners and children and
(e) An adjusted living allowance.

• Applicant does not have the right to appeal against a refusal of legal aid because of a failure to satisfy the means test.

 Application for review = Where an applicant does not satisfy the means test but can demonstrate that they cannot fund their own defence, the applicant may ask that their entitlement to criminal legal aid be reviewed on the grounds of hardship

Question 12

Procedural overview of what happens at first hearing (SUMMARY OFFENCE)

Answer 12

If D:

1) Pleads guilty = court will proceed to sentence, or adjourn to sentence later ;

2) Pleads not guilty = court will make directions and adjourn for trial ; or

3) Refuses to plead = Court will enter “not guilty” plea on D’s behalf.

Question 13

If D pleads guilty for a summary offence …

Answer 13

• If D pleads guilty, a representative from CPS tells magistrates’ the facts of the case and if relevant, hands them previous convictions.
• If D is legally represented, their solicitor gives a plea in mitigation.
• Magistrates either sentence D straight away or adjourn the case if they want to obtain any reports before sentencing.

Question 14

If D pleads guilty but disputes specific factual allegations made by CPS .. (summary offence)

Answer 14

• Magistrates adjourn the case.
• Newton hearing will be necessary to determine factual basis upon which the defendant will be sentenced.

Question 15

If D pleads not guilty (summary offence)..

Answer 15

• Court fixes a date for the defendant’s trial to take place and issues case management directions with which both the prosecution and defence must comply before trial.

Question 16

For either way offences, the decision of where D should be tried is dealt with at the first hearing – initial hearing is divided into 2 parts…

Answer 16

1) Plea before venue

2) Allocation

Question 17

What happens at the plea before venue?

Answer 17

1) Any indiciation of a guilty plea MUST be made by D personally & not their counsel.

If D:

Pleads guilty = Magistrates proceed to sentence or adjourn to decide whether they have adequate sentencing powers

No indication = Magistartes proceed to allocation

Plead not guilty = magistartes proceed to allocation

Question 18

What happens at allocation?

Answer 18

1) Magistartes decide whether they accept jurisdiction

2) If they do accept, D can decide where the trial should take place (i.e., magistrates / crown court)

Question 19

At the plea before venue for an offence triable only on indictment what happens?

Answer 19

case adjourned & magistrates decide whether to release D on bail or keep them remanded in custody.

Case sent straight to crown court for trial (or sentence if guilty plea)

Question 20

Whose decision is the client’s plea?

Answer 20

The clients’ own. Solicitor should merely advise on the strenght of the case against them & advise they will get credit for entering an early plea.

Question 21

Factors in favour of CROWN court

Answer 21

1) Greater chance of acquittal
2) Better procedure for challenging admissibility of prosecution evidence
3) More time to prepare case for trial

Question 22

Factors in favour of MAGISTRATES’ court

Answer 22

1) Limited sentencing powers – maximum is 12 months imprisonment for an either-way offence

2) Speed / Stress – quicker & less formal

3) Prosecution & defence costs cheaper

4) No obligation to serve defence statement –if D pleads not guilty in crown court, they have to serve a defence statement, which they do not have to do in the magistartes.

Question 23

What is the situation where the client wants to plead not guilty but has told the solicitor they are guilty?

Answer 23

– If client insists on maintaining a not guilty plea (where they’ve already admitted to guilt to solicitor), the solicitor may still represent them at trial, however, solicitor is limited in what they can do on client’s behalf because of their overall duty not to mislead the court.

Question 24

If this is the case, what can the solicitor do / not do?

Answer 24

Actions they can take:

1) Solicitor would be able to cross-examine prosecution witnesses & put the prosecution to proof of their case (this is not misleading the courts, however, in cross-examination, solicitor needs to not assert any positive defence that they know the be false).

2) Solicitor able to make a submission of no case to answer at the end of the prosecution case and to ask the magistrates to dismiss the case.

Actions they cannot take:

1) Solicitor would not be able to continue acting for client where the submission of no case to answer was unsuccessful and D then insisted on entering the witness box to give evidence which the solicitor knew to be false. Solicitor would then need to withdraw.

2) Solicitor still owes a duty of confidentiality so would need to retire due to ‘professional reasons’.

Question 25

Solicitor has an overriding duty not to mislead the court.

Question 26

IDPC (initial details of prosecution case) – is the defendant entitled to receive them?

Answer 26

Yes.

Question 27

Overview on indicating a guilty plea …

Answer 27

• Any indication of a guilty plea must be made personally by D.
• Magistrates then consider whether they have adequate sentencing powers to try the case.
• Maximum for an either-way in magistrates court = 6 months imprisonment and up to a total of 12 months’ imprisonment for two or more either-way offences.
• Magistrates then either sentence D straight away or adjourn the case for a pre-sentence report before sentencing the defendant (will also adjourn where a newton hearing is necessary).
• If magistrates’ powers are insufficient, they’ll commit D to the Crown Court for sentence, pursuant to s 3 Powers of Criminal Courts (Sentencing) Act 2000.

Question 28

What are the magistrates’ sentencing powers?

Answer 28

• Maximum for an either-way in magistrates court = 6 months imprisonment and up to a total of 12 months’ imprisonment for two or more either-way offences.

Question 29

On a guilty plea, are the magistrates likely to alter the position as to bail / custody?

Answer 29

• Magistrates highly unlikely to alter the position as to bail/custody.
• E.g., when D who has been on bail enters a guilty plea, they’re very likely to grant them bail (even where they anticipate D to receive a custodial sentence at Crown Court) and vice versa (remanding in custody).
  .

Question 30

For an either-way offence where D pleads not guilty, when is D’s case automatically sent to crown court?

Answer 30

(a) The defendant is sent to the Crown Court for trial for a related offence;

(b) D is charged jointly with another adult defendant who is sent to the Crown Court for trial for a related offence;

(c) D is charged jointly or charged with a related either-way offence, with a youth defendant who is sent to the Crown Court for trial.

In all other cases where a not guilty plea is indicated (or where D refuses to enter a plea – as they’re entitled to), the court must determine whether the offence appears more suitable for summary trial or trial on indictment, i..e, does it remain in magistrates or go to crown court?

Question 31

In the magistrates’ court can D request an indication of whether a custodial or non-custodial sentence would be more likely if they were to be summarily tried and plead guilty?

Answer 31

YES.
 No court can impose a custodial sentence for the offence unless such a sentence was given in the indication of sentence to D.

 Note that indication of sentence is not binding and no sentence can be challenged or be the subject of an appeal on the ground it was inconsistent with the indication.

The courts only give one if it is requested.

Question 32

Is the court required to give an indication of sentence?

Answer 32

No. Cannot give one unless it is requested – once it is given, the court then asks whether D wants to reconsider the earlier indication of plea.

Question 33

Where the magistrates accepts jurisdicton, what happens (either-way offence)?

Answer 33

D either consents to trial in magistrates or requests trial in crown court.

KEY NOTE – Where court is dealing with two or more defendant charged with the same offence, if one of the defendants elect trial in crown court, all of the defendants will be sent to the crown court for their joint trial regardless of the other defendants decision on venue.

Question 34

When does the magistrates send the case to crown court without allocations?

Answer 34

Situations where either-way offence is sent straight to Crown Court (under s 50A of CDA 1998)

(a) Complex/serious cases where notice has been given by DPP under s 51B 1998 Act. E.g., fraud.

(b) Cases involving children, e.g., a child will be called as a witness or include child cruelty, sexual offences, kidnapping, false imprisonment and child abduction. Notice served under s 51C of the CDA 1998.

(c) Where an either-way offence is related to an offence triable only on indictment.

(d) Where another defendant related to the case is being sent to crown court.

Question 35

What is the scope of the representation order?

Answer 35

Summary only matter / Either-way matter (dealt with at magistrates’’ court)

 Will cover all work done by solicitor in connection with those proceedings in the magistrates’ court, and may be extended to cover an appeal to the Crown Court against conviction and/or sentence.

Either- Way (dealt with in Crown Court)

 Will cover any work done in proceedings in the Crown Court (if magistrates send it there / D elects to have it tried in the CC, then it extends automatically).

Triable only on indictment

 Covers proceedings in both magistrates’ court and crown court.

Note – for either-way offences, where D has failed the magistrates’ court means test and the case is subsequently committed to the Crown Court, funding will only cover work done in Crown Court and only if the defendant passes the means eligibility test in the Crown Court.

Claiming costs = defence solicitor claims costs incurred under the representation order from the Legal Aid Agency.