Unit 4 Procedure in the magistrates' courts, allocation for trial, and sending to the Crown Court for trial or sentence

Question 1

What are ‘initial details’? What information do they have to contain?

Answer 1

They’re a statement prepared by the prosecution setting out their case. The purpose is to provide the court with the info it needs to determine allocation and to give appropriate directions for an effective trial. Consequently, they must provide enough info to achieve this aim.

If the accused was in police custody immediately before the first hearing in the magistrates’ court they comprise:

• A summary of the circumstances of the offence
• the accused’s criminal record (if any)

If the accused was not in custody they comprise:

• A summary of the circumstances of the offence;
• Any account given by the accused in interview (set out either in the summary or in a separate document);
• Any written witness statements (including exhibits) that the prosecutor has available at that stage and which the prosecutor considers to be material to plea, or to whether the case should be tried in a magistrates’ court or the Crown Court, or to sentence;
• The accused’s criminal record (if any);
• And any available statement of the effect of the offence on victims or their family (or on others)

N.B. the point of initial details is to give the court the info it needs to determine whether the mags’ sentencing powers would be sufficient upon conviction. This will affect allocation. If there are previous convictions the sentence is likely to be higher.

Question 2

When does the prosecutor have to provide initial details to the court by?

Answer 2

ASAP and no later than the beginning of the day of the first hearing

Question 3

Does the prosecutor have to provide initial details to the accused?

Answer 3

• If D requests them -> asap and no later than beginning of first day of hearing
• If D does not request them -> at or before the beginning of the day of the first hearing (i.e. no ‘asap’ requirement)

Question 4

What happens if the prosecution fails to comply with the rules pertaining to initial details (e.g. does not submit them/provides insufficient info)?

Answer 4

• No sanction specified anywhere
• Mags could order an adjournment
• Failure is likely to result in an adjournment

Question 5

Can the court permit a person to attend a pre-trial hearing (after plea) or a sentencing hearing via live audio or video link?

Answer 5

Yes - court can allow this if it’s in the interests of justice to allow it

Will need to consider a variety of factors in deciding this (e.g. suitability of the facilities). N.B. it is ‘rarely appropriate for a youth to be sentenced over a live link’

Question 6

If the accused pleads guilty via live link, can the court immediately continue to sentencing with the accused appearing virtually?

Answer 6

Yes - provided the court is satisfied that it is not contrary to the interests of justice for this to take place

Question 7

What do the mags have to do at the first hearing if the accused is in custody?

Answer 7

• If it’s an indictable or an EW offence -> proceed at once with allocation
• If it’s a summary offence or an EW that has already been allocated -> give directions either for sentencing (if G plea has been entered) or for trial

Question 8

If the accused is on bail, when does the first hearing have to be listed?

Answer 8

If P anticipated a G plea that is likely to be sentenced in mags -> 14 days after charge (or the next available court date thereafter)

All other cases - 28 days after charge (or the next available court date thereafter)

Question 9

After A has been charged, what will happen next?

Answer 9

If A enters a written guilty plea, the court will move on to sentencing straight away.

If no written guilty plea is entered, the question is: was A charged at a police station?

• If yes -> single justice procedure for pre-trial hearing applies
• If no -> the mags will conduct a preparation for trial hearing (PTPH)

My comment: one way to think about this is that the procedure is expedited if A is charged at the police station

Question 10

What rules govern pre-trial hearings where the accused has been charged at the police station?

Answer 10

Single justice procedure

• First hearing may be conducted by a single justice in mags
• A will be asked at this hearing if they want legal aid
• Early administrative hearing may be conducted by a justices clerk or assistant clerk specifically authorised

Question 11

What happens at a preparation for trial hearing (also called a ‘plea and trial preparation hearing’, i.e. PTPH)?

Answer 11

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

• (a) satisfy itself that the accused understands that credit will be received for a guilty plea;
• (b) take a plea from the accused (or, if no plea can be taken, find out whether the accused is likely to plead guilty or not guilty); and
• (c) unless the accused pleads guilty, satisfy itself that the accused understands that, at the trial, (i) he or she will have the right to give evidence after the court has heard the prosecution case; (ii) if the accused does not attend, the trial is likely to take place in his or her absence; and (iii) if released on bail, failure to attend court when required to do so is an offence which may lead to arrest and punishment, and that bail may be withdrawn.
• (d) ascertain the name, date of birth and nationality of the accused.

Question 12

Can the court hold only one preparation for pre-trial hearing (PTPH)?

Answer 12

No, the court can hold any number of such hearings for the following purposes:

i. the court anticipates a guilty plea; or
ii. it is necessary to conduct such a hearing in order to give directions for an effective trial; or
iii. such a hearing is required to set ground rules for the conduct of the questioning of a witness or defendant

Question 13

Are PTPHs public or private?

Answer 13

Usually public

Question 14

What conditions must be satisfied before the mags can make pre-trial rulings?

Answer 14

• Can only be made if the court (1) has given the parties an opportunity to be heard and (2) it appears to the court that it is in the interests of justice to make the ruling
• A must have been given a chance to apply for legal aid

Question 15

What kinds of questions can the mags decide in a pre-trial ruling?

Answer 15

Any question as to the admissibility of evidence and any other question of law relating to the case

Question 16

Are pre-trial rulings binding?

Answer 16

Yes, until the case is disposed of

Question 17

On what basis can pre-trial rulings be varied or discharged?

Answer 17

A party can apply for a discharge or variation, but ONLY if there has been a material change of circumstances since the ruling was made or since the last application to vary was made

The power to vary these rulings (especially of the court’s own motion) is applied in narrow circumstances. In particular, it is not enough that a different bench comes to a different conclusion.

Question 18

Is it possible to appeal pre-trial rulings?

Answer 18

• No specific procedure
• BUT an error of law in such a ruling could form the basis of an appeal by way of case stated once there has been a final determination of the proceedings in the magistrates’ court

Question 19

What happens if the accused enters an ambiguous guilty plea (e.g. ‘guilty, but it was an accident’)?

Answer 19

• Court must seek to clarify the plea
• If, after the court has explained the law, A continues to plead G the court goes ahead with G plea (even if it sounds like A might have a defence)
• If the plea cannot be clarified, the court must enter a NG plea

Question 20

What happens if a court proceeds to sentence on the basis of a plea which is imperfect, unfinished or ambiguous?

Answer 20

• A will have a good ground of appeal to the CA
• CA will have the option of setting the conviction and sentence aside and ordering a retrial or of simply quashing the conviction

Question 21

What are some potential advantages of selecting trial on indictment and how much of an advantage are they really?

Answer 21

(1) Submissions on the admissibility of evidence can be made in the absence of the jury in a trial on indictment - but a bench of magistrates may give a pre-trial ruling on the admissibility of evidence and that ruling binds the bench that tries the case (we saw this above under ‘pre-trial rulings’)

(2) In the CC, the defence are entitled to receive copies of the written statements of the witnesses to be called by the prosecution as part of the process whereby the case is transferred to the Crown Court. However, as a matter of good practice, the prosecution also provide to the defence all the evidence upon which they propose to rely in a summary trial

I.e. Blackstone’s takes the view that there’s no real advantage to selecting trial on indictment (better to go for Mags bc shorter + cheaper)

Question 22

What are some potential advantages of selecting summary trial and how much of an advantage are they really?

Answer 22

(1) Mags have limited sentencing powers - this advantage is nullified by the power of the magistrates to commit the accused to be sentenced in the CC

(2) Summary trial is shorter and less formal than trial on indictment, and is therefore also cheaper (likely to be particularly relevant if the accused is not legally aided)

Question 23

In relation to the defence statement, what difference does it make whether A’s case is heard in the CC or the mags?

Answer 23

A is ONLY under a duty to give a defence statement to the court and the prosecutor in the CC. In the mags, this is voluntary. But if A chooses to provide one in the mags, then the statement needs to contain the same info in both courts.

Question 24

What is the benefit of voluntarily providing a defence statement in the mags?

Answer 24

In the absence of a defence statement, the accused cannot make an application for specific disclosure and the court cannot make any orders for disclosure of unused prosecution material

Question 25

What information must be contained in a defence statement?

Answer 25

It’s a written statement setting out the basis on which the case will be defended. It must therefore cover:

• the nature of the accused’s defence, including any particular defences upon which the accused intends to rely;
• the matters of fact on which the accused takes issue with the prosecution, with the reasons why;
• particulars of the matters of fact on which the accused intends to rely for the purposes of defence; and
• any points of law which the accused wishes to take, with any authorities relied upon
• particulars of any alibi able to assist (name, addresses + DoBs of alibi Ws so far as known. If unknown, any info that might help to ID/locate)

Question 26

If A chooses to provide a defence statement in the mags what is the time limit for doing so?

Answer 26

14 days from the date on which the prosecutor complies or purports to comply with the initial duty of disclosure. The court has power to extend this time-limit on the application of the accused.

Question 27

Even though the defence is not under a duty to provide a defence statement in the mags, what duty are they under?

Answer 27

They must nonetheless identify the real issues in a case in accordance with the overriding objective

Question 28

If the mags convict A, do they have to give a reasoned judgment?

Answer 28

No, but they do have to give ‘sufficient reasons to explain their decision’

A can request more detailed reasons

Question 29

Are the mags required to give their reasons if they acquit A?

Answer 29

No - they can do so, but they’re not obliged to

Question 30

When does ‘plea before venue’ take place and does A attend?

Answer 30

It’s the first thing that happens and A should be present

Question 31

Describe what an allocation hearing is like.

Answer 31

The only time such a hearing takes place is where A has pleaded not guilty to an EW offence (if A has pleaded G, then the case is dealt with as if A had pleaded G to a summary offence and the court would have proceeded to sentence). Obviously such hearings only ever take place in the mags.

(1) The court will reach a view on whether it thinks that summary trial or trial on indictment is more suitable.

• It does this on the basis of representations made by P and D, allocation guidelines and with a view to the sentencing powers that it has

(2) If mags consider trial on indictment more appropriate, that is the end of the matter and A is sent to the CC

(3) If mags consider summary trial to be more appropriate, they will tell A and tell A that they can consent or choose trial on indictment.

• At this point, A may request mags to give an indication of whether if A were to plead G, A would get a custodial sentence
• Mags can do so or refuse
• If they do so, they must ask A if A wishes to enter a different plea (i.e. G)
• If A now pleads G, mags will proceed to sentence (will be bound by their indication)

(4) If no G plea, A asked if they consent to summary trial.

• If A does not consent -> case sent to CC

Upshot: A can only be tried summarily if both the mags and A consent to this (either can veto the decision)

Question 32

What factors must the mags take into account in determining whether - in their view - the case is suitable of summary trial?

Answer 32

• Most important consideration: are their sentencing powers adequate?
• Default position: EW offences should be tried summarily
• Reasons to depart from default: (a) outcome would clearly be a sentence in excess of their sentencing powers (when in doubt the case should be tried summarily); (b) case is unusually legally or factually complex

Question 33

Under what circumstances can a plea before venue or an allocation hearing take place in A’s absence?

Answer 33

General rule: A must be present

5 exceptions:

• (i) a legal representative of the accused is present at the hearing and signifies the accused’s consent to the court proceeding in the accused’s absence;
• (ii) a legal representative of the accused is present at the hearing, and the court does not consider that there is an acceptable reason for the accused’s failure to attend;
• (iii) it is proved to the satisfaction of the court that notice of the hearing was served on the accused within what appears to the court to be a reasonable time before the hearing, and the court does not consider that there is an acceptable reason for the accused’s failure to attend; or
• (iv) the accused has appeared on a previous occasion to answer the charge, and the court does not consider that there is an acceptable reason for the accused’s failure to attend; and
• (v) A’s disorderly conduct means that it is not practicable for A to attend the hearing and the court considers that it is not contrary to the interests of justice to proceed in the absence of the accused

Really these can be summarised as follows: (1) consent, (2) failure to attend without acceptable reason, (3) disorderly conduct

Question 34

What principle limits the discretion of the magistrates to commit for sentence?

Answer 34

The discretion of the magistrates to commit for sentence is subject to the general principle of ‘legitimate expectation.’

If the offender has been led to believe, whether expressly or by implication, that the magistrates will pass sentence, the offender should not subsequently be committed for sentence, whether by the same or a differently constituted bench.

Other than this the mags’ power to commit for sentence is unlimited - it is not necessary that new info has emerged between allocation and sentencing that explains why they now think that the case should go to CC for sentencing

Question 35

What influence does the prosecution have over the decision where the case should be allocated?

Answer 35

General rule: In principle, all they can do is make representations (whereas A and the mags can each veto the decision to leave it in the mags).

Exceptions: In 2 circumstances the prosecutor can serve a notice which has the effect that the case must be sent forthwith to the CC -

(1) Where case involves fraud of such seriousness or complexity that it is appropriate that the management of the case should without delay be taken over by the Crown Court (fraud)

(2) Where the accused is charged with an offence which involves an assault on, or injury or a threat of injury to, a person or is charged with certain other specified offences and a child will be called as a witness at the trial and, for the purpose of avoiding any prejudice to the welfare of the child, the case should be taken over and proceeded with without delay by the Crown Court (child witnesses)

Question 36

What is special about allocation of criminal damage cases?

Answer 36

We know that if the value is more than £5,000 then it’s an EW offence. If it’s £5,000 or less then it’s triable summarily only. Obviously, the court will therefore have to determine the value before determining the mode of trial.

An issue arises where the court is not sure if the sum in questions exceeds £5,000. If it is sure, then allocation works like in any other EW or summary offence. Solution: if it is not sure, then the court must offer summary trial to A, who can consent to this format. Importantly, if A consents then the offence is treated like a summary offence in all respects, including that A cannot be committed for sentencing to the CC. So it’s not like saying ‘we’re treating it like an EW offence and you’ve just to be tried summarily’. Instead, it amounts to treating it like a summary only offence in every respect.

Question 37

What is the maximum custodial sentence for a criminal damage case the trial of which takes place in the mags because it is clearly worth less than £5,000 of because the mags are unsure and A consented to summary trial when the option was put to him? What is the maximum custodial sentence where the damage caused was clearly in excess of £5,000, but A is being tried summarily?

Answer 37

1. Value below £5,000 or unclear -> max 3 months
2. Value clearly in excess of £5,000 -> 12 months (like any other EW offence)

Question 38

What guidance do we have on determining the value of the damage in criminal damage cases?

Answer 38

• If property destroyed beyond repair = value is cost of buying replacement in market
• Repairable = Probable cost of repairs
• Court must focus on damage to property and disregard any consequential losses

Question 39

What is special about low value shoplifting? What counts as ‘low value’?

Answer 39

• Low-value = no more than £200
• Triable only summarily, BUT the court must give A the opportunity of electing Crown Court trial for the offence; if the accused elects to be so tried, the magistrates’ court must send the case to the Crown Court for trial
• Where the accused is ‘charged on the same occasion’ with two or more offences of low-value shoplifting, the value of the offences is aggregated, and this rule applies only if the total value does not exceed £200
• N.B. only multiple low-value shoplifting offences can be aggregated (i.e. you can’t add a low-value and a non-low-value one)

My comment: this offence was newly created in 2014. My understanding is that before then shoplifting (low value or otherwise) was not a separate offence at all. It was just ‘theft’ which is obviously EW. The point of this new rule is therefore - contrary to what it might look like on its face - not to turn a summary only offence into an EW offence, but rather to turn an EW offence into a summary offence. The ability to continue to choose trial in the CC seems to be a nod to the historical roots of the offence.

Question 40

If the Magistrates court keeps a case, but later decides to commit for sentencing, does it require new information to do so?

Answer 40

The magistrates’ court does not, in order to commit for sentence have to be in possession of new information making the offence appear more serious than it did when the court initially accepted jurisdiction at the allocation hearing.

Question 41

In what circumstances can the mags commit an accused for sentencing? What are the CC’s powers in relation to sentencing where A is so committed?

Answer 41

Overarching point: only ever in respect of EW offences (obviously).

(1) If it’s confronted with one or more EW offences and it takes the view that the seriousness of the offence(s) is such that its sentencing powers are inadequate -> CC can sentence as if A had been tried on indictment (obviously)

(2) If A has pleaded G to an EW offence but is also sent to the CC for trial of a different but related offence, the mags can also commit him for sentence of the EW offence -> if mags also considered that their sentencing powers for the EW offence were inadequate then CC can sentence as if there had been a trial on indictment of the EW offence, but if the mags didn’t so consider then CC is limited to mags’ powers of sentencing in respect of the EW offence

Important to remember: the CC’s powers only exceed the mags’ powers, if the mags considered their powers to be inadequate

Question 42

When MAY a case be sent to the CC and when does it HAVE to be sent to the CC?

Answer 42

MUST

1. When the offence is indictable only
2. When allocation has resulted in choice of CC (for either-way offences)
3. Where notice has been given under s. 51B (serious fraud cases) - realistically this will only apply to EW offences
4. Where notice has been given under s. 51C (child witness cases) - realistically this will only apply to EW offences
5. If the EW/summary offence is related to an indictable offence. The test for whether the offence is related is narrower for summary offences than for EW offences.

• Summary: must arise out of circumstances that are the ‘same as or connected with’ those giving rise to the indictable offence
• EW: could the charge for the either way offence be joined in the same indictment as the charge for the indictable offence? This will require consideration, inter alia, of whether the charges are founded on the same facts, or form (part of) a series of offences of the same or a similar character).

A related summary offence can only be sent to the CC if it is punishable by imprisonment or by disqualification from driving.

6. Co-Ds: Where there are co-Ds and one elects CC trial, the mags must send any other As charged with the same or related offences along to the CC as well.

MAY

• Where in principle the rules for related offences or co-Ds are satisfied BUT the co-D or related offence is not dealt with at the same first hearing as the indictable offence the mags are not obliged to send that charge to the CC. Instead, they now have a power to send it along.

N.B. cases can also go to the CC by virtue of a ‘voluntary bill of indictment’

Question 43

Can an accused be sent to the CC even though they are absent at the allocation hearing?

Answer 43

The case on this question is relatively complicated, but the answer seems to be ‘yes’.

Question 44

What is the status of a case that has been committed by the mags to the CC?

Answer 44

It’s treated as having been adjourned in the mags without fixing a date for resumption

Question 45

How many justices do you need in the mags to commit a case to the CC?

Answer 45

Only one

Question 46

When can a summary only offence be included on the indictment and why does this matter?

Answer 46

Can be added to the indictment if:

(1) Needs to be a specified offence:

• common assault
• assaulting a prisoner custody officer
• assaulting a secure training centre custody officer
• assaulting secure college custody officer
• taking motor vehicle or other conveyance without authority
• driving a motor vehicle while disqualified
• criminal damage up to £5,000

(2) A must have been sent to the CC for trial on indictment for an indictable offence

(3) The specified summary offence must be related to the indictable offence

(4) The specified summary offence was disclosed by the evidence on the basis of which an accused has been sent for trial in respect of an indictable offence

Significance

• If the summary offence is included on the indictment, then it is tried exactly like an indictable offence - BUT the sentencing powers are limited to those available to the mags
• If it is NOT included - the trial cannot take place in the CC. If A pleads NG, the case will be sent back to the mags. If A pleads G, the CC can sentence but again subject to the same limitations as the mags.

Question 47

Classification of Theft?

Answer 47

Triable Either Way

Question 48

Classification of Burglary?

Answer 48

Triable Either Way

Question 49

Classification of Fraud?

Answer 49

Triable Either Way

Question 50

Classification of Sexual Assault?

Answer 50

Triable Either Way

Question 51

Classification of ABH?

Answer 51

Triable Either Way

Question 52

Classification of Possession of a Controlled Drug?

Answer 52

Triable Either Way

Question 53

Classification of Possession with intent to supply a controlled Drug?

Answer 53

Triable Either Way

Question 54

Classification of Wounding or inflicting GBH (s20 OAPA, ie without intent)?

Answer 54

Triable Either Way – Aggravating factors are an indication that it should be sent to the Crown Court

Question 55

Classification of Wounding or causing GBH with intent (s18 OAPA)?

Answer 55

Indictable only

Question 56

Classification of Robbery?

Answer 56

Indictable only

Question 57

Classification of Rape?

Answer 57

Indictable only