UNIT 2 - First Hearings Before the Magistrates’ Court, Plea Before Venue, Allocation and Bail Flashcards
A man is due to appear in the magistrates’ court charged with an offence of assault occasioning actual bodily harm. It is alleged that he headbutted the victim causing the victim a fractured nose following a neighbour dispute. The man intends to plead guilty. The man is currently the subject of a suspended sentence of imprisonment for an offence of theft. The man is currently unemployed and in receipt of universal credit. The man is widowed and the sole carer for his three young children.
Will the man be entitled to receive publicly funded legal representation at court?
A) Yes, because it will be in the interests of his children that he is represented as he is their sole carer and he automatically satisfies the means test.
B) Yes, because it will be in the interests of justice as it is likely that he will lose his liberty and he automatically satisfies the means test.
C) Yes, because he will lose his liberty if he is convicted, subject to him satisfying the means test by completing a means form.
D) No, because it will not be in the interests of the victim that he is represented as he is pleading guilty, so the man will not need to cross-examine the victim.
E) No, because he will not necessarily lose his liberty if he is convicted, although he does automatically satisfy the means test.
CORRECT ANSWER B - The man is ‘likely’ to lose his liberty because of the seriousness of the offence itself and also because he is subject to a suspended sentence of imprisonment which is likely to be activated when he pleads guilty to the present offence. The man automatically satisfies the means test as he is in receipt of universal credit. Option A is wrong because although ‘It is in someone else’s interests that I am represented’ is capable of being a reason to grant legal aid under the interests of justice test, this should not be used to argue that legal representation is in the general interests of the defendant’s family. Option C is wrong, because although it is (highly) likely the man will lose his liberty, it is not certain that he will and moreover, he will not need to complete a means form as he automatically satisfies the means test as he is in receipt of universal credit. Option D is not the best answer, because although it is correct to say that it will not be in the interests of the victim that he is represented as he is pleading guilty, so the man will not need to cross- examine the victim, the interests of justice test is still satisfied (see option B). Option E is not the best answer, because although he will not necessarily lose his liberty if he is convicted, it is still ‘likely’ that he will.
A woman is to appear in the magistrates’ court charged with an offence of criminal damage by arson. It is alleged that she set fire to her ex-partner’s garden shed following a breakdown of their relationship. £2,000 worth of damage was caused. The woman will plead guilty to this offence.
Which of the following best describes what will happen when she appears in court?
A) The woman will plead guilty and the magistrates will then sentence her since the value of the property damaged is under £5,000.
B) The woman will be expected to enter her plea and the magistrates will then have to decide on allocation as this is an either-way offence.
C) The woman will plead guilty and the court will then adjourn the case for the preparation of a pre-sentence report.
D) The woman will not be asked to indicate her plea as arson is an offence that can only be tried on indictment so her case will be immediately sent to the Crown Court.
E) The woman will be expected to indicate her plea and she will either be sentenced by the magistrates’ court or committed to the Crown Court for sentence.
CORRECT ANSWER E - Criminal damage of property under £5,000 is treated as a summary-only offence, unless the damage was caused by fire (Magistrates’ Court Act
1980, s 22(1)), in which case it is an either-way offence. For these reasons, options A and
D are wrong. Option B is wrong because although it is an either-way offence, an allocation hearing will only take place where a defendant indicates a not guilty plea (see Chapter 6). Option C is not the best answer, because although the court may adjourn the case for a pre-sentence report, it will not definitely do this and it may even commit the woman to the Crown Court if in light of all the other circumstances the magistrates’ court decides that its sentencing powers are inadequate.
A man has been charged with robbery. It is alleged that he stole a jacket valued at £75 from his victim and assaulted him at the same time, in order to steal the jacket. The victim suffered no physical injuries as a result of the robbery. The man intends to plead not guilty to this allegation.
Where will the man’s trial take place?
A) The trial may take place in either the magistrates’ court or the Crown Court depending on whether or not the magistrates accept jurisdiction to deal with the case.
B) The trial is likely to take place in the magistrates’ court as the item stolen is valued at under £200 and because the man suffered no physical injury.
C) The trial will take place in the Crown Court as this is an offence that is only triable on indictment.
D) The trial may take place in either the magistrates’ court or the Crown Court depending on whether or not the man consents to summary trial or elects trial on indictment.
E) The trial must take place in the magistrates’ court as the item stolen is valued at under £200 and because the victim suffered no physical injury.
CORRECT ANSWER C - Robbery is an offence that can only be tried on indictment regardless of the value of the goods that were stolen or whether or not the victim suffered any physical harm. Options B and E are therefore wrong. Option A is wrong because the magistrates will not be required to decide whether or not they accept jurisdiction to deal with the case and Option D is wrong because the man will not get a choice on where his trial will take place.
A defendant has been jointly charged with an offence of affray. At his first court appearance in the magistrates’ court his solicitor advises him on plea and trial venue before his case is called on. The defendant intends to indicate a not guilty plea and decides to consent to summary trial if he is given the choice.
Which of the following best describes whether the defendant’s trial will take place in the magistrates’ court?
A) If both defendants consent to summary trial, the trial must take place in the magistrates’ court.
B) If the defendant consents to summary trial, the trial is likely to take place in the magistrates’ court regardless of the other defendant’s decision.
C) If the magistrates decide the offence to be more suitable for summary trial and both defendants consent to summary, the trial will take place in the magistrates’ court.
D) If the defendant consents to summary trial, the trial is likely to take place in the magistrates’ court even if the other defendant elects trial on indictment.
E) If the magistrates decide the offence to be more suitable for trial on indictment and the other defendant also consents to summary trial, the trial will take place in the magistrates’ court.
CORRECT ANSWER C - CrimPR, r 9.2(6)(a) provides that where the court is dealing with two or more defendants charged with the same offence, if one of the defendants elects trial in the Crown Court, all of the defendants will be sent to the Crown Court for their joint trial regardless of the other defendant(s)’s decision on venue. The trial will therefore only take place in the magistrates’ court if the magistrates decide the offence to be more suitable for summary trial and both defendants consent to summary trial. Option A is not the best answer because it fails to deal first with the magistrates accepting jurisdiction. Options B and D are wrong because both defendants have to consent to summary trial. Option E is wrong because if the magistrates decide the offence to be more suitable for trial on indictment, the case must be sent to the Crown Court for trial and the defendants will not get a choice.
A man has been charged with an offence of rape and sexual assault in relation to the same complainant. Both are alleged to have occurred within a few days of each other. The man intends to plead not guilty to both charges and wants to know which court or courts will deal with these cases.
Which of the following best describes the advice the man should be given?
A) Both cases are likely to be tried in the Crown Court as rape is triable only on indictment.
B) The rape charge will be dealt with in the Crown Court and the sexual assault charge may be dealt with in the Crown Court if the magistrates decide their powers of punishment are inadequate to deal with it.
C) The rape charge will be dealt with in the Crown Court and the sexual assault charge will only be dealt with in the Crown Court if the man elects trial on indictment.
D) Both cases will be tried in the Crown Court as both charges relate to indictable offences.
E) Both cases will be tried in the Crown Court as the sexual assault charge is related to the rape charge.
CORRECT ANSWER E - The either-way offence (sexual assault) relates to an offence triable only on indictment (rape) because they are alleged to have taken place over
a similar time period and both relate to the same complainant (CDA 1998, s 50A(3)
(a)). Consequently, the sexual assault charge will be sent to the Crown Court without an allocation hearing by virtue of s 50A CDA 1998. So, option A is wrong because both cases will be tried in the Crown Court, as opposed to being likely to be tried there. Options B and C are wrong because there will be no allocation hearing. Option D is not the best answer because although both offences are indictable offences, the reason they will be both dealt with in the Crown Court is because the either-way offence is related to the offence that can only be tried on indictment.
A woman appears in the magistrates’ court charged with an offence of assault occasioning actual bodily harm and an offence of theft. At the plea before venue hearing she indicates a not guilty plea to the assault matter and a guilty plea in relation to the theft matter.
The magistrates accept jurisdiction to deal with the assault, but the woman elects trial on indictment.
Which court will sentence the woman for the offence of theft?
A) The magistrates’ court will sentence the woman for the offence of theft as they have already accepted jurisdiction to deal with the assault matter.
B) The magistrates’ court will have a choice to either sentence the woman for the offence of theft or to commit her to the Crown Court to be sentenced there.
C) The woman will be able to choose which court she is sentenced by.
D) The Crown Court will sentence the woman after her trial for the assault matter has been concluded.
E) The Crown Court will sentence the woman before her trial for the assault matter takes place.
CORRECT ANSWER B - In this situation, the magistrates have a choice as to what to do with the offence to which the defendant has pleaded guilty. They may either sentence the defendant themselves or commit the defendant to the Crown Court for sentence. This will often depend on whether the two offences are linked or not. If they are not, the magistrates’ court may be more likely to sentence the offender, whereas if they are linked, the magistrates may be more likely to send them both up to the Crown Court to be dealt with. Option A is therefore wrong as accepting jurisdiction to deal with the assault matter will not necessarily have any bearing on their decision to sentence for the theft. Option C is wrong, because a defendant will never be able to choose which court sentences her for an either-way offence. This decision will always be for the magistrates’ court to take. Options D and E are wrong because although the theft offence could be committed to the Crown Court for sentence, this will not necessarily be the case.
A solicitor is representing a defendant at his first appearance in court. The defendant has been charged with inflicting grievous bodily harm. It is alleged he punched the victim, fracturing his jaw. The defendant claims he was acting in self-defence. The defendant
does not know the victim. The defendant has no previous convictions for violence. His last conviction was 18 months ago when he received a sentence of imprisonment of six months, suspended for two years, for burglary. The defendant has three previous convictions
for failing to surrender to custody for a range of dishonesty offences. The defendant is presently of no fixed abode.
Which of the following best explains the ground on which the prosecution is likely to object to bail being granted to the defendant?
A) There are substantial grounds to believe that the defendant will fail to surrender to custody.
B) The defendant may commit an offence whilst on bail given his antecedent history.
C) The nature and seriousness of the offence with which the defendant has been charged.
D) There are substantial grounds to believe the defendant will interfere with a key prosecution witness.
E) The defendant’s character, antecedents, associations and community ties.
CORRECT ANSWER A - This is the only ground on these facts for refusal of bail given that
the defendant is presently subject to a suspended sentence of imprisonment which is likely to be activated if he is convicted. Moreover, he appears to have poor community ties as we are told
he is of no fixed abode and he also has a number of previous convictions for absconding. All of the other options are either not grounds for refusing bail or do not apply to these facts. To refuse bail on the ground of committing further offences, there must be ‘substantial grounds to believe’ that he will commit offences whilst on bail. The fact that he ‘may’ is not sufficient and in any event, there is no evidence that he has committed offences whilst on bail in the past, so option
B is not the best answer. Option C is wrong because it is not a ground for refusal of bail at all; it is a factor for the court to take into account when considering the grounds, as is option E. Option D is not the best answer because there are no substantial grounds to believe that the client will interfere with a prosecution witness. We are told that the defendant does not know the victim, nor is there any suggestion that he has made threats to interfere with this witness or has ever done so in the past (see Bail Act 1976, Sch 1).
A solicitor attends the cells in the magistrates’ court to speak to his client who has been remanded in custody on his first appearance in court. The defendant’s case has been sent to the Crown Court for a plea and trial preparation hearing (PTPH), and the defendant wants to know whether he can make a further bail application in the magistrates’ court.
Can the defendant make a further bail application in the magistrates’ court?
A) Yes, because he is entitled to make a further bail application relying on the same facts and arguments as before.
B) Yes, because he is entitled to make a further bail application but only if he can refer to ‘new argument’.
C) Yes, because he is entitled to make two full bail applications before the magistrates’ court.
D) No, because his case has now been sent to the Crown Court and so his best option is to appeal against the bail decision to the Crown Court.
E) No, because his case has now been transferred to the Crown Court and so he can now only apply for bail at the PTPH.
CORRECT ANSWER D - At the first hearing after the hearing at which the magistrates refused to grant bail, the defendant’s solicitor is allowed to make a full application for bail using any argument as to fact or law, even if they used the same arguments in the first unsuccessful bail application. However, options A and C would not be available because we are told that the defendant’s case has now been sent to the Crown Court and so the magistrates’ court will no longer have jurisdiction to hear a further bail application. Option B is wrong because the requirement for new argument only applies after two full bail applications have been made (Bail Act 1976, Sch 1, Pt IIA). Although option E is technically correct, it will be much quicker to make a bail appeal before a judge in chambers in the Crown Court rather than waiting some time for the PTPH in the Crown Court.
A man has been charged with an offence of burglary and bailed to attend the magistrates’ court in two weeks’ time. The police attach a bail condition which requires the man to report to his local police station on a daily basis between the hours of 5 pm and 7 pm. The man obtains employment which requires him to work away from home and he forgets to report to his local police station between the allotted times on two consecutive days.
What will happen to the man as a result of breaching his bail condition?
A) The man is likely to be arrested for breaching his bail condition, but he has a reasonable excuse for breaching it if he can provide evidence of his present employment status.
B) The man is likely to be arrested for breaching his bail condition and bailed to attend the magistrates’ court to answer for this breach.
C) The man is likely to be arrested for breaching his bail condition and will be detained in police custody and must then be brought before the magistrates’ court within 24 hours although he does not commit an offence by breaching this condition.
D) The man will be given a formal warning for breaching his bail condition and any further breach will result in his arrest and production before the magistrates’ court to answer the breach.
E) The man will be arrested for breaching his bail condition and will be detained in police custody and must then be brought before the magistrates’ court within 24 hours. He also commits an offence by breaching this condition.
CORRECT ANSWER C - Although breaching a bail condition (whether imposed by
the police or the court) does not amount to a criminal offence, it will almost certainly result in his arrest and he will then be detained in police custody and must be brought before the magistrates’ court within 24 hours. The magistrates’ court will then decide whether to remand the man in custody, or whether to grant bail with or without conditions pending his next substantive hearing.
Option A is wrong because this would not amount to a reasonable excuse. Option B
is wrong because the man would be unlikely to be bailed as a result of breaching this condition. The police will usually let the magistrates’ court decide what to do in such circumstances. Option D is wrong because breach of bail is not something that would trigger the issuing of a formal warning. Option E is wrong because breaching this type of a bail condition does not amount to a criminal offence.
A woman is charged with an offence of common assault and intends to plead guilty as soon as possible. She admitted her involvement to the police when she was arrested and was released on bail after being charged.
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Which ONE of the following principles will apply at her first appearance before the magistrates’ court?
A) Initial details of the prosecution case should be available to her before she enters a plea.
B) There is a presumption that her plea will not be entered on her first appearance as the matter may be sent for trial in the Crown Court
C) When she enters her guilty plea, sentencing should be adjourned to take place on another day
D) The prosecution must supply a summary of the circumstances of the offence, and the defendant’s criminal record, if any but no other details will be available at the first hearing.
E) There will be no plea before venue and allocation hearing because she will enter her guilty plea on her first appearance
CORRECT ANSWER A - initial details of the prosecution case (IDPC) should be available to her before she enters a plea.
B is wrong as the presumption is that a plea will be entered on the first appearance. Also, there is no possibility of the case being sent for trial in the Crown Court as the charge relates to common assault which is a summary only offence.
C is wrong as the expectation is that sentence should take place on the same day unless a more detailed pre-sentence report is required.
D is wrong because the fact pattern states that the woman was released on bail and was not, therefore, in police custody immediately before the first hearing in the magistrates’ court. The prosecution therefore are required to provide a summary of the circumstances of the offence, and the defendant’s criminal record, if any but also additional detail, including any account given by the defendant in interview, any written witness statement or exhibit that the prosecutor has and considers material to plea and, if available, a victim impact statement.
E is wrong because although it is correct that there will be no plea before venue and allocation hearing, this is not because she will enter a guilty plea. Plea before venue and allocation relate only to either-way offences. The woman is charged with common assault : a summary only offence.
Paul, aged 22 years is charged with an offence of murder. It is alleged that the victim, was stabbed and killed during a street fight. Paul denies this allegation and claims that he was elsewhere at the relevant time. Paul was remanded in police custody after being charged.
Which THREE of the following statements are correct?
A) Paul’s first appearance will be before the magistrates’ court even though murder is an indictable only offence.
B) The prosecution are not required to provide initial details of their case to Paul in the magistrates’ court and he will not indicate his plea
C) Paul cannot make a submission of no case to answer in the magistrates’ court.
D) A through legal representation order cannot be granted in the magistrates’ court.
E) Paul will be remanded in custody until his trial as bail can never be granted to a defendant charged with murder.
CORRECT ANSWERA A, B & C - All cases involving an adult defendant begin in the magistrates’ court, albeit that there is usually only one brief appearance in the magistrates’ court for an indictable only offence before it is sent up to the Crown Court under s51 Crime & Disorder Act 1998. No plea is indicated, no IDPC is provided and there is no opportunity to make a submission of no case to answer.
Option D is wrong because a representation order for an offence triable only on indictment (subject to satisfying the means test) will usually be granted and be ordered to extend through to the Crown Court proceedings as well, although do note that legal aid in any event is granted by the Legal Aid Agency and not the magistrates court. Option E is wrong because, although bail will only be granted in exceptional circumstances when the charge is murder, and can only be granted by a Crown Court judge (not by the magistrates’ court), there is no absolute bar on the grant of bail when the defendant is charged with murder.
TRUE OR FALSE:
If a defendant is granted legal aid by a Representation Order, he cannot be ordered to make a contribution towards his defence costs.
FALSE - if a defendant qualifies for legal aid in the magistrates’ court, they will not be required to contribute to their defence costs, in the Crown Court, legal aid may be subject to the defendant paying a contribution towards their legal aid costs.
Which ONE of the following statements is correct?
A) A person attending voluntarily at the police station is not entitled to free legal advice but they will become entitled to such advice if they are subsequently arrested.
B) A person who intends to plead guilty cannot meet the interests of justice test for a representation order and so will be ineligible for legal aid.
C) If a defendant is pleading not guilty and wants to challenge the evidence of a witness who identified the defendant as their attacker, this is a factor the court will consider in applying the interests of justice test for legal aid.
D) If a defendant, charged with theft, elects to be tried in the Crown Court, their solicitor will need to submit a new application for a representation order to cover the proceedings in the Crown Court.
E) A defendant charged with an offence triable only on indictment is automatically entitled to legal aid as long as they meet the test of financial eligibility.
CORRECT ANSWER C - In determining the interests of justice test, the court will have regard to a range of factors, including whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law and whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual. Dealing with disputed identification evidence will raise both these factors.
Option A is wrong because all persons attending at the police station (whether under arrest, or attending voluntarily) are entitled to free legal advice, regardless of their means.
Option B is wrong because a person who intends to plead guilty can meet the interests of justice test, by relying on the factor that they are likely to lose their liberty or livelihood or suffer serious damage to their reputation.
Option D is wrong because theft is an either- way offence. If the magistrates decline jurisdiction or the defendant elects trial in the Crown Court, the representation order will extend automatically to cover the proceedings in the Crown Court : there is no need to submit a new application.
Option E is wrong because, although the interests of justice test usually is met in indictable only offences, the test must still be considered : it is not automatically met.
Vlad is charged with theft from his employer which is an either-way offence (please note, this is not a case of low-value shop theft).
Which THREE of the following statements are correct in relation to the plea before venue procedure?
A) After checking Vlad has received initial disclosure of the prosecution case, the court’s legal adviser will tell Vlad that he may indicate to the court how he would plead if the matter were to proceed to trial.
B) Vlad is under no obligation to indicate his plea and if he does not do so, he will be treated as if he indicated a not guilty plea.
C) If Vlad does not indicate his plea, he will be sent for trial in the Crown Court because the magistrates will have no jurisdiction to deal with the matter.
D) If Vlad indicates a guilty plea, the prosecution will outline the facts of the case to the magistrates and Vlad’s solicitor is likely to be asked to give a plea in mitigation on Vlad’s behalf.
E) If Vlad indicates a guilty plea he will be treated as having been tried summarily and convicted and the magistrates will be required to sentence him.
CORRECT ANSWER A, B & D - Option C is wrong because if Vlad does not indicate his plea, he will be treated as if he had indicated a not guilty plea and the court will move to determine allocation. If the magistrates are prepared to accept jurisdiction, the matter can remain in the magistrates’ court unless Vlad elects to be tried in the Crown Court.
Option E is also wrong. If Vlad indicates a guilty plea, he will be treated as if he has been tried summarily and convicted but, after listening to the prosecution’s outline of the facts and the defence plea in mitigation, the magistrates must then decide if their sentencing powers are sufficient to deal with the case, or if Vlad should be sentenced by a Crown Court judge who has greater sentencing powers. If they decide their sentencing power are not sufficient, Vlad will be committed to the Crown Court for sentence, where the judge’s powers are greater (the maximum sentence for theft in the Crown Court is seven years’ imprisonment.)
Anastasia is charged with assault occasioning actual bodily harm, contrary to s47 of the Offences Against the Person Act 1861. The prosecution allege that Anastasia assaulted a bus driver by putting her arm around the side of bus’ security screen and grabbing the lapel of the bus driver’s jacket. Anastasia denies the offence saying she merely banged on the security screen to attract the driver’s attention. Anastasia has one previous conviction for common assault.
In relation to the Allocation hearing in the magistrates’ court, which FOUR of the following statements are correct?
A) Anastasia can choose to be tried by either the Crown Court or the magistrates’ court and her choice will be binding.
B) Anastasia may be tried by the magistrates’ court if the magistrates first accept jurisdiction and she then consents to the trial taking place in the magistrates’ court.
C) The magistrates should accept jurisdiction to try Anastasia’s case summarily unless the court concludes that its sentencing powers will be insufficient.
D) The magistrates’ decision as to whether its sentencing powers will be sufficient will be taken in light of the facts alleged by the prosecution, taking into account all aspects of the case, including those advanced by the defence.
E) The prosecution should draw the court’s attention to Anastasia’s previous conviction before allocation is determined.
CORRECT ANSWERS B,C,D & E - The other four options are correct and reflect the provisions of the Allocation Guidelines.
Anastasia is charged with an either-way offence so the plea before venue procedure will result in her indicating a not guilty plea. The magistrates will then proceed to deal with Allocation and Anastasia will not have a choice of venue for her trial unless the magistrates are first prepared to accept jurisdiction. If the magistrates decide that they do not have adequate sentencing powers to deal with the case, Anastasia will have no choice and will be tried by the Crown Court
