Unit 8 Plea before Venue and Allocation – Preliminary Hearings in the Mags Flashcards
What constitutes the “initial details” of the prosecution case under CrimPR Part 8?
What constitutes ‘initial details’ of the prosecution case is defined by r. 8.3. Where, immediately before the first hearing in the magistrates’ court, the accused was in police custody for the offence charged, initial details comprise a ‘summary of the circumstances of the offence’, and the accused’s criminal record (if any).
If the accused is not in custody, initial details 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).
- Must be sufficient to make an informed view on plea, identify real issues and give appropriate directions for an effective trial
(SERVED AS SOON AS PRACTICABLE – LATEST BEGINNING OF THE DAY OF THE FIRST HEARING)
Can an accused appear in court from a live link?
Yes - an accused who is in custody may appear at preliminary hearings, and at sentencing hearings, via a ‘live link’ from prison or from a police station.
If the accused pleads guilty via live link, can the court continue to sentencing with the accused appearing virtually?
where an accused attends a preliminary hearing over a live link and pleads guilty to the offence, and the court proposes to proceed immediately to sentencing, the accused may continue to attend through the live link provided the court is satisfied that it is not contrary to the interests of justice for this to take place.
Can the accused give evidence at a sentencing hearing over live link?
Section 57D(3) provides that, where a preliminary hearing over a live link continues as a sentencing hearing, the offender can give oral evidence over the live link only if the court is satisfied that it is not contrary to the interests of justice.
Can an accused who has been charged with an offence at a police station appear before a first hearing bench of a single justice?
Yes. The CDA 1998, s. 50, makes provision for pre-trial hearings. It provides that where the accused has been charged with an offence at a police station, the magistrates’ court before which the accused appears for the first time in relation to that charge may consist of a single justice (s. 50(1)).
Can a first hearing be conducted by a justices clerk?
Yes. Under s. 50(4), an early administrative hearing may be conducted by a justices’ clerk (or an assistant clerk who has been specifically authorised by the justices’ clerk for that purpose), but the clerk is not empowered to remand the accused in custody or, without the consent of the prosecutor and the accused, to remand the accused on bail on conditions other than those (if any) previously imposed.
When does Section 50 CDA pre-trial hearing provisions apply?
Section 50(1) makes it clear that s. 50 applies only where the accused was charged at the police station, and so does not apply where the accused is granted police bail and is then charged by the CPS using the written charge and requisition procedure. However, there is nothing to prevent magistrates’ courts operating a system of early administrative hearings in all cases where a not guilty plea is expected.
The court may conduct one or more further pre-trial case management hearings if?
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 (r. 3.16(1)).
At a preparation for trial hearing, ‘the court must give directions for an effective trial’ (r. 3.16(2)). Under r. 3.16(3), 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.
What is the court required to ascertain from the accused at the ptph?
The court is also required to ascertain the name, date of birth and nationality of the accused (r. 3.16(5)).
Are ptph’s public or private?
These hearings will usually take place in public (r. 3.16(4)).
What is to be include in the Defence Statement?
- 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.
Must the defence always provide a defence statement?
In cases tried summarily there is no obligation on the defence to provide a defence statement. However, once the prosecutor has complied (or purported to comply) with the duty to disclose unused material, the accused may give the prosecutor and the court a defence statement
What is the effect of not disclosing a defence statement?
In the absence of a defence statement, the accused cannot make an application for Specific disclosure under s. 8, and the court cannot make any orders for disclosure of unused prosecution material.
To what standard are judges required to give reasons?
CrimPR 24.3(5) provides that the court, if it convicts the accused (or makes a hospital order instead of doing so), must give ‘sufficient reasons to explain its decision.’
However, the justices are not required to state their reasons in the form of a judgment or to give reasons in any elaborate form. If a party wishes to obtain more detailed reasons, a request can be made to the magistrates to state a case.
To what extent is an indication of sentence request by the accused, binding on the court?
Where an indication of sentence is given and the accused does not choose to plead guilty on the basis of it, the sentence indication is not binding on the magistrates who later try the case summarily, or on the Crown Court if the accused elects trial on indictment
For what reasons may it be accepted that the accused’s presence is not necessary at the pbv hearing?
a. the accused is represented by a legal representative; and
b. the court considers that, by reason of the accused’s disorderly conduct before the court, it is not practicable for proceedings under s. 17A to be conducted in the presence of the accused; and
c. the court considers that it should proceed in the absence of the accused.
What principle limits the discretion of the magistrates to commit for sentence?
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.
If the Magistrates court keeps a case, but later decides to commit for sentencing, does it require new information to do so?
An important consequence of this approach is that the magistrates’ court does not, in order to commit for sentence under s. 3, 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.
Explain the position of co-accused adults
Where the court is dealing on the same occasion with two or more accused who are charged jointly with an offence that can be tried in the Crown Court, the court must explain that, if one of them is sent to the Crown Court for trial, the other(s) must also be sent for trial in the Crown Court for the offence that is jointly charged and for any other offence which the court decides is related to that offence. This is so even if the court has, by then, decided that the case against the other accused is suitable for summary trial.
Can the prosecution influence the allocation decision?
summary trial may be vetoed either by the court or by the accused, but not by the prosecution. The most the prosecution can do is to make representations that trial on indictment would be more appropriate having regard to the gravity of the offence. However, where either
(a) Serious or complex fraud
(b) the accused is charged with a specified offence which involved assault on a child/child witnesses
then the prosecutor can serve a notice, under the CDA 1998, s. 51B or s. 51C respectively
The effect of such a notice is that the magistrates’ court is required, by s. 51(2)(c), to send the case forthwith to the Crown Court for trial instead of conducting a plea before venue hearing under s. 17A (s. 17A(10)).
What is the special procedure for criminal damages charges?
If the accused is charged with a ‘scheduled offence’, the allocation procedure must be preceded by consideration of the value involved in the offence (s. 22(1)). Depending on what that value is, the accused may be deprived of the right to elect trial on indictment, notwithstanding that the offence is otherwise triable either way.
What are scheduled offences?
Scheduled offences comprise:
(a) offences of damaging or destroying property contrary to s. 1 of the Criminal Damage Act 1971, excluding those committed by fire; and
(b) aiding, abetting, counselling or procuring such offences, or attempting or encouraging them
What are not scheduled offences?
(a) those committed by damaging or destroying property by fire; and
(b) those committed with intent to endanger life or being reckless as to the endangering of life It should also be noted that conspiracy to commit criminal damage is not a scheduled offence
How is the “value involved” considered for Criminal Damage?
If the accused is charged with an offence of criminal damage to which the provisions of the “Scheduled Offences” (MCA 1980, s. 22) apply, then the court must give the accused the opportunity to indicate plea (pursuant to s. 17A).
It must then consider, having regard to any representations made by the prosecution and defence, whether the ‘value involved’ in the offence exceeds the ‘relevant sum’, currently £5,000 (MCA 1980, s. 22(1)). If the property was allegedly destroyed or damaged beyond repair, the value involved is what it would probably have cost to purchase a replacement in the open market at the time of the offence; if the property was repairable, the value involved is the probable market cost of repairs or the probable market replacement cost, whichever is the less (sch. 2).
In calculating “value involved” for Criminal damage can the mags consider consequential losses?
The magistrates must focus on the value of the damage to the property itself; they should not concern themselves with any consequential losses which might have been sustained as a result of the damage.
What happens if the “value involved” is not above the relevant sum? (£5,000)
If it appears to the magistrates that the value involved clearly does not exceed the relevant sum, they must proceed as if the offence charged were triable only summarily (s. 22(2)). Consequently, the allocation provisions of the 1980 Act do not apply and the accused has no right to elect trial on indictment.
