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Crim > 4. Procedure in MC, allocation for trial and sending to the CC for trial and sentence > Flashcards

4. Procedure in MC, allocation for trial and sending to the CC for trial and sentence Flashcards

1
Q

when should initial details of prosecution case
(IDPC) be disclosed?

A

as soon as practicable and no later than the beginning of the day of the first hearing

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2
Q

when do IDPC have to be supplied to the accused?

A

do not have to be supplied unless accused requests them. If accused requests them must serve as soon as practicable and in any event no later than the beginning of the day of the first hearing.

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3
Q

if accused was in police custody before first MC hearing what does IDPC consist of?

A
  • summary of circs of offence
  • accused’s criminal record
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4
Q

1.

if the accused was not in custody immediately before first MC hearing what should IDPC consist of?

A
  • summary of circs of offence
  • any account given by accused in interview
  • any written WS that are available
  • Accused criminal record
  • available statement of effect of offence on victims/family
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5
Q

what happens if the pros fail to comply with IDPC requirements?

A
  • no specific sanction
  • mags can adjourn hearing
  • can impose costs sanction
  • will not be allowed to introduce evidence not served on accused unless court first allows D sufficient time to consider it
  • court cannot dismiss charges because of non-compliance with IDPC
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6
Q

1.

in what proceedings can court allow attendance via live link?

A
  • preliminary hearings
  • hearings before mags/crown after D has entered a plea
  • sentencing hearings
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7
Q

when will court allow live link?

A

only when it is satisfied it is in the interests of justice for person to take part via live link AND parties have been given opportunity to make representations

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8
Q

when deciding whether to allow live link what must the court consider?

A
  • need for person to attend
  • views of that person
  • suitability of facilities
  • whether they’d be able to take part effectovely
  • importance of evidence (witness)
  • arrangements for public to see / hear
  • whether it would inhibit any part from testing witness’s evidence effectively
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9
Q

courts should exercise their statutory and other powers to conduct hearings by live link when?

A

where it is lawful and in the interests of justice to do so and they MUST comply with guidance

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10
Q

example of when live link less likely to be in ints of justice?

A

where Pre and post court conferences are desirable and may not be able to take place effectively by live link

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11
Q

what should the court consider when deciding whether to sentence over live link?

A
  • potential penalty
  • whether explanations can be given satisfactorily
  • preferences of anyone who has a VPS to be read
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12
Q

when can a single justice preside over a hearing?

A

where accused has been charged with offence at police station

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12
Q

when can court proceed to sentence via live link?

A

where they plead guilty over live link court can proceed to sentence as long as it is in ints of justice for this to happen.

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13
Q

if D wants legal aid….

A

if they do - arrangements for app must be made and (where appropriate) legal aid obtained.

hearing should be adjourned if necessary.

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14
Q

can a justice’s clerk conduct hearings?

A

early administrative hearing can but they cannot remand in custody or (unless they have consent of prosecutor and accused) remand on bail with additional charges.

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15
Q

1.

when must a magistrates court conduct a preparation for trial hearing?

A

always. Unless accused is sent to CC for trial or enters guilty plea)

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16
Q

when can MC conduct further pre-trial hearings (PTH)?

A
  • Anticipates guilty plea
  • Necessary to give directions for an effective trial
  • Hearing required to set ground rules for questioning witness or D
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17
Q

if the accused is present at PTH what must court do?

A
  • accused understands G plea credit
  • take plea from accused (if can’t get indication)
  • if they plead NG satisfy itself that accused understands at trial:
    • they have right to give ev
    • the trial can take place in absence if they do not attend
    • FTA trial is an offence punishable by imprisonment
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18
Q

what is a pre-trial hearing?

A

hearing before court hears prosecution evidence at trial

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19
Q

when will court make a pre-trial ruling?

A

only if parties have had opp to be heard and it is in interests of justice to make the ruling

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20
Q

pre - trial rulings are made on application of { }…

A

on application from pros / def OR on courts own motion

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20
Q

how long is a pre-trial ruling binding for?

A

until the case against the accused is disposed of

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21
Q

when is a case classed as disposed of?

A

The case is disposed of if the accused is acquitted or convicted, or the prosecutor decides not to proceed with the case, or the case is dismissed

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22
Q

when can the court vary/discharge a pre-trial ruling?

A

if it is in ints of justice to do so and parties have had opp to be heard

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23
Q

1.

when can a party apply for the discharge/vary of a pre-trial ruling?

A

if there has been a material change of circs since the ruling was made or if there has been a previous application since original was made

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24
Q

can different bench reach diff conc on same evidence

A

no, case law seems to show that discharge/vary of order by court must arise as a result of fresh material or a change of circumstances, or circumstances brought to the attention of court that were not raised in the first instance.

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25
Q

what must the parties identify if accused pleads NG?

A

disputed issues and tell the court what they are.

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26
Q

1.

live evidence should be confined to….

A

issues in dispute. therefore, only witnesses who are needed in relation to genuinely disputed, relevant issues should be required to attend

court should ask why witness is needed and time for X and EIC

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27
Q

when accused pleads NG court directions must…

A

include timetable for case progression - and parties required to warn court promptly if any problems are anticipated.

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28
Q

1.

what is an ambiguous plea?

A

If an accused purports to enter a plea of guilty but, either at the time of pleading or subsequently in mitigation, qualifies it with words that suggest the accused may have a defence

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29
Q

what must court do when plea is ambiguous?

A

court must not proceed to sentence.

court should explain relevant law and ascertain whether accused genuinely intends to plead guilty.

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30
Q

1.

if an ambiguous plea cannot be clarified what should happen?

A

the court should order a not guilty plea to be entered on the accused’s behalf

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31
Q

what if court sentences on ambiguous plea?

A

good ground of appeal for accused.

Since the defect in the plea will have rendered the original proceedings a mistrial, the Court of Appeal will have the options either of setting the conviction and sentence aside and ordering a retrial or quashing conviction

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32
Q

if COA order a retrial after an appeal on basis of ambiguous plea what will they direct?

A

either that NG plea entered or that accused be re-arraigned

33
Q

1.

advantages of summary trial?

A
  • limit on sentence (nullified by Commital)
  • shorter and less formal and cheaper
34
Q

advantages of CC trial?

A
  • legal arguments in absence of jur
  • defence entitled to receive copies of written statements of the witnesses to be called by prosecution (although this is usually done in MC)
35
Q

what does a defence statement contain?

A
  • nature of defence
  • particular defences to be relied on
  • facts/matters they take issue with and why
  • particulars of the matters of fact on which accused intends to rely for purposes of defence and
  • points of law which accused wants tot take with authorities
36
Q

when must defence statement be served?

A

once the prosecution has served their case - Must give a defence statement to court and prosecutor

37
Q

in which cases are defence statements needed?

A
  • they are required in the CC
  • they are not required in cases tried summarily.
38
Q

1.

in cases tried summarily when can defence statement be served?

A

once the pros have complied with their duty to disclose unused material (given to pros and court).

39
Q

what is time limit for serving defence statement?(MC)

A

if they choose to serve defence statement - must be done within 14 days from date of prosecutor complying or purportying to comply with the initial duty of disclosure.

time limit can be extended.

40
Q

what happens if no defence statement is served (summary)?

A

cannot make an application for specific disclosure and cannot make any orders for disclosure of unused pros material.

41
Q

do the mags court have to give reasons for their decisions?

A

if it convicts accused or makes hosp order - must give sufficient reasons to explain its decision

Do not have to give reasons when acquitting but it can.

can request more detailed reasons.

42
Q

when is a plea before venue hearing needed?

A

Where adult charged with either-way offence and appears in mags must be complied with before any evidence is called for purposes of a summary trial or the case is sent for Crown Court trial

43
Q

what happens during an allocation hearing?

A
  • pros & def make reps about whether offence suitable for summary trial (can adduce pre-cons)
  • court will then decide if suitable for summ
  • if it is - explain to accused that they can consent or elect CC and explain about Commit for sentence
  • accused can then ask for indication of sentence
  • if accused pleads G - sentence
  • if no indication - ask whether consent to summary trial
  • if not suitable - court sends to CC for trial under s.51 CDA 1998
44
Q

what happens at plea before venue hearing?

A
  • charge read to accused
  • explain about indication and committal for sentence
  • ask for indication of plea
  • if G indicated - court proceeds as if had pleaded G at summ trial - go to sentencing
  • if NG indicated - allocation (mode of trial) hearing must take place
  • if no indication treat as a NG plea
45
Q

1.

what does the court consider when deciding whether a case is suitable for summary trial?

A
  • whether sentencing powers sufficient (if more than one offence - look at totality)
  • sentence calculated after credit for G plea and mitigation considered
  • reps made by pros & def
  • allocation guidelines
46
Q

how does an indication of sentence work?

A
  • court does not have to give one
  • if they do - must ask accused whether they want to reconsider plea on basis of indication
  • if they dont - must ask or a fresh indication (PBV phase repeated). ]
  • indication is binding if they do change plea
47
Q

does the accused have to e present at plea before venue hearing?

A

generally yes.
However, can take place in absence if:
* accused is represented and
* as a result of disorderly conduct, it is not practicable for them to be present and
* court ocnsiders it should proceed in absence of accused.

48
Q

when can an allocation hearing take place in the absence of accused?

A
  • if it considers that, by reason of disorderly conduct before the court, it is not practicable for the proceedings to be conducted in the presence of the accused
  • accused represented AND consents to mode of trial being conducted in their absence AND court satisfied there is good reason.
49
Q

JRCA 2022 s.9 says court can proceed in absence for PBV and allocation when……

A

accused does not appear and any of 4 conditions met:
1. legal rep is at hearing and accused consents
2. legal rep is present and no acceptable reason for accused’s absence
3. satisfied that notice was given to accused a reasonable time before hearing and no acceptable reason
4. accused has appeared on prev occassion and no acceptable reason this time
5. accused present but by reason of the accused’s disorderly conduct before the court, it is not practicable

And court satisfied not contrary to interests of justice.

50
Q

what is meant by legitimate expectation?

A

if D led to believe MC will sentence (either express/implied) offender should not then be committed.

51
Q

binding effect of indication of sentence …

A
  • cannot impose a sentence which was not indicated.
  • power to commit for sentence if dangerous offender provisions apply is not ousted by indictaed of sentence
  • power to commit where D is being sent to CC for other offences is not ousted by indication.
52
Q

what is the max sentence mags can impose fo summary conviction of eitherway offence ?

A

6 months and/or unlimited fine

53
Q

1.

cases that are of unusual legal, procedural or factual complexity should be….

A

tried in crown court.

54
Q

when is commital for sentence suitable?

A

when MC is of opinion that the offence or the combination of the offence and one or more offences associated with it was so serious that the Crown Court should, in the court’s opinion, have the power to deal with the offender in any way it could deal with him if he had been convicted on indictment

55
Q

1.

how does allocation work where there are co-accused?

A
  • if one is sent to CC/elects CC other must also be sent
56
Q

who can veto a summary trial?

A

court or accused
not the prosecution

57
Q

when can the prosecution influence the allocation decision?

A
  • serious fraud and complex and CC should take over without delay
  • cases where child will be called as a witness and CC should take over without delay

pros serve notice and mags then required to send case to CC instead of conducting PBV hearing.

58
Q

in what cases is allocation preceded by consideration of value?

A

criminal damage & aiding/abetting/attempting criminal damage

59
Q

how is value determined in criminal damage cases?

A

if beyond repair - value is costs of purchasing replacement on current market

if repairable - cost of repairs or replacement (whichever is cheapest)

60
Q

1.

how does value in crim damage cases affect allocation?

A

under 5k - summary only
over 5k - Either-way
unclear value - accused asked whether they consent to summary trial.

61
Q

what is the maximum penalty upon conviction of summary crim damage?

A

3 months or a fine of £2500

no power to commit for sentence

62
Q

1.

procedure for determining crim damage value includes?

A
  • representations from parties
  • no obligation for ev
63
Q

determining value of 2 or more crim damage charges is done by?

A
  • calculating aggregate value involved in offence if it appears that they form part of a series of two or more offences of the same or similar nature
64
Q

what is low value shoplifting?

A

shoplifting where the value of the stolen goods does not exceed £200

65
Q

how is low value shoplifting categorised?

A

summary only

only applies if aggregate value does not exceed £200.

66
Q

what is the special provision for low value shoplifting?

A

an accused over 18 charged with low value shop lifting ALWAYS has the choice to elect CC trial.

67
Q

can low value shoplifting be included as a charge on the indictment?

A

not unless D elects CC trial.

68
Q

Committal for sentence under s.14 SA 2020 applies when?

A

MC considers sentencing powers are inadequate

69
Q

Committal for sentence under s.18 SA 2020 applies when?

A

when accused has indicated G plea to EW offence and is also sent for trial for one or more related offences

  • related offence = could be joined and Must be founded on same facts or part of a series of offences
70
Q

committal for sentence under s.20 applies when?

A
  • s.20 gives a power that can supplement when court commits under ss.14-19 SA 2020 (primary committal powers)
  • under s.20 when MC exercise primary committal power in respect of EW offence they may also commit offender to crown in respect of any other offence for which they stand convicted (summary or indictable) that mags have jurisdiction to deal with.
71
Q

examples of when a committal under s.20 might happen?

A

To take the example of a magistrates’ court which has decided to commit an offender under s. 14, for one either way offence, a committal under s. 20 might (for instance) relate to:

(a) another, less serious, either way offence of which the magistrates have convicted the offender on the same occasion; (s.14 inappropriate because mags powers adequate)

(b) a summary offence of which they have convicted the offender on the same occasion. (s.14 not appropriate as does not extend to summ only offences)

72
Q

where do adults make their first appearance?

A

all adults make first appearance in mags court

73
Q

s.51 CDA 1998 gives the MC the power to what?

A

where these provisions apply MC must send accused to CC for trial of offence.

provisions apply where:
indictable only
or EW and allocation decides trial on indictment
or where pros notice is given.

74
Q

what does it mean for an offence to be related for purposes of s.51 CDA?

A

EW - related if could be joined on indictment (founded on same facts/form series)
Summary - related if arises out of circumstances that are the ‘same as or connected with’ those giving rise to the indictable offence.

75
Q

sending to CC where co-accused is under 18?

A

where adult is sent to CC ofr trial, court shall if it considers it necessary in the interests of justice to do so send child to CC for trial.

75
Q

provisions in s.51 CDA for related EW & summ offences?

A

where court sends for trial under s.51 it **must **also send to CC for trial for any either way or summary offence (only those punishable by imprisonment/disqualification) which is related.

if adult has already been sent and then subsequently appears before MC for related offence court MAY send related offence to CC.

76
Q

where a summary offence is sent to CC for trial….

A

that offence is regarded as having been adjourned by the magistrates’ court without fixing the time and place for its resumption

77
Q

when can a count for a summary only offence be included on a crown court indictment and sent for trial?

A
  • where it is a specified summary offence under s.40 (Common assault inc battery, Assaulting a prisoner custody officer / secure training centre officer, Taking a motor vehicle without owner’s consent, Driving while disqualified, Criminal damage where less than 5k)
  • AND summary offence is either founded on the same facts as the indictable offence or forms with it a series of offences of the same or similar character.

these offences are dealt with by the jury in the same way as indictable offence but crown is limited to sentencing powers of mags

78
Q

Where summary only offence not on the list s.40 CJA but is punishable by imprisonment or disqualification……

A

is sent to crown with an indictable offence, it will not appear on indictment. when trial is over (and if accused convicted on indictment) - accused will be asked to enter a plea in relation to summary only.

79
Q

how does the CC deal with summary only offences?

A

in any way in which a magistrates’ court could have done

80
Q

if an offender enters a NG plea to a summary only in CC what happens?

A

powers of CC cease in respetc of summary offence.

Crim (27 decks)

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