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FLK 2 - Criminal Practice > 2. First Hearings, Plea Before Venue, Allocation and Bail > Flashcards

2. First Hearings, Plea Before Venue, Allocation and Bail Flashcards

1
Q

As defendants have a general right to bail, what two things are required to remand a defendant in custody?

A
  1. Exception to the right to bail must apply, and
  2. Real prospect of custodial sentence being imposed
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2
Q

What are the exceptions to the right to bail for indictable and either-way imprisonable offences?

A

Substantial grounds for believing: D will fail to surrender + commit further offences OR interfere with witnesses to a case/obstruct the course of justice.

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3
Q

Only whom can hear a bail application for a murder charge?

A

Crown Court Judge

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4
Q

What must be shown in order for a defendant charged with murder to secure bail?

A

No significant risk that they defendant would commit an offence likely to cause physical or mental injury to another person

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5
Q

How often must a court consider bail?

A

At each hearing

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6
Q

However, only how many times many a defendant make a further application on the same facts and submissions?

A

One additional time if 1st hearing

For subsequent hearings must be raised on new legal or factual argument regarding bail.

Magistrates’ Court

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7
Q

Thereafter, what is required for a defendant to make an additional bail application?

A

Change of circumstance, relating the the case generally or defendant

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8
Q

What is allowed to happen if a defendant breaches their bail conditions?

A

They can be arrested without a warrant

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9
Q

What happens at the first court hearing in the Magistrates where the offence is (1) summary only, (2) either way, or (3) indictable only?

A
  1. Summary: D pleads guilty or not guilty
  2. Either way: Court proceeds to plea before venue process
  3. Indictable: Matter is sent immediately to the Crown Court for trial
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10
Q

For summary only offence, what happens if the defendant’s plea is (1) guilty and (2) not guilty?

A

Guilty: Court proceeds immediately to sentencing
Not guilty: Court will set a trial date for six to eight weeks later

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11
Q

Whose decision alone is the plea, and who must never instruct this?

A

The defendant’s alone, and the solicitor should never tell D how to plead

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12
Q

What is the two part test for a representation order, i.e. to receive legal aid?

A
  1. Means test
  2. Interests of justice test
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13
Q

Net income (after deductions and adjustments) over what amount will not satisfy the means test for criminal legal aid?

A

£3,398

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14
Q

What is plea before venue?

A

Procedure where defendant appears at the Magistrates Court charged with an either way offence

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15
Q

What are five advantages of electing for the Magistrates Court?

A
  1. Limited sentencing powers
  2. Faster trial proceedings (less formal)
  3. Less stringent disclosure requirements
  4. Small contribution to costs
  5. Defence costs are less if funding privately.
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16
Q

What are the four advantages of electing for the Crown Court?

A
  1. Higher rates of acquittal
  2. More effective process for challenging admissibility of evidence
  3. Longer delay before trial, making gathering evidence more practical ands more time to prepare
  4. Trial by jury (fairer)
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17
Q

If the defendant at a plea before venue pleads not guilty or gives no indication, what must the Magistrates decide, and what two factors will they consider in doing so?

A

Whether the offence can be dealt with in the Magistrates Court, or if the Crown Court is more appropriate, considering:

  1. D’s previous convictions
  2. Whether the court’s sentencing powers are adequate to deal with the conduct alleged
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18
Q

When deciding their plea, the defendant can request an indication as to what?

A

Whether the sentence would be custodial or non-custodial if they were to be tried summarily and plead guilty (but the court is under no obligation to provide this indication).

known as indication of sentence

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19
Q

When an indication is given what are the rules on the court being bound by it?

A

If D maintains guilty plea - court is bound.
If D maintains non-guilty plea - court is not bound.

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20
Q

What two standard case management directions are given in Magistrates Court?

A
  1. Prosecution must serve its evidence within 28 days
  2. Defence must serve a defence statement (if they are serving one) within 14 days, and notify which prosecution witness are to attending within 7 days
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21
Q

One of what five things will trigger the requirement for a preliminary hearing to be held within 14 days of an indictable only matter being sent to the Crown Court?

A
  1. Trial likely to last more than 4 weeks
  2. Case management problems to address
  3. Early trial date is needed
  4. Defendant is a minor
  5. Likely to be an early guilty plea
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22
Q

Within what time of the case being sent from Magistrates does plea and trial preparation hearing take place in the Crown Court?

A

28 days

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23
Q

In the Crown Court, within what time limit must prosecution complete disclosure, and what is this extended to if defendant is on bail?

A

50 days. 70 days if D on bail.

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24
Q

What is the prosecution also under an ongoing duty to disclose?

A

Any unused material which might reasonably be considered capable of undermining the case for the prosecution or assisting the defence

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25
Q

After the prosecution has made disclosure, how long does the defence have to serve a defence case statement on the prosecution and the court?

A

28 days

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26
Q

Track for summary only offences?

A

least serious + only triable in Magistrates’ court

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27
Q

Track for either-way offences?

A

can be tried in either Magistrates’ Court OR Crown Court – depends on seriousness of offence.

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28
Q

Track for indictable only offences?

A

most serious + only Crown Court.

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29
Q

What is procedural review? IDPC

A

The prosecution are required to serve ‘initial details of the prosecution case’.

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30
Q

What does and IDPC include for summary and either way offences?

A

summary of offence + D criminal record + statements/exhibits + any expert evidence.

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31
Q

When must the prosecution serve the IDPC and to who?

A

Who: Mags court + defendant (if not requested then made available to D)
When: by the day of the 1st hearing

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32
Q

What is the prosecution limited by when submitting information in their IDPC which has not been made available to the defence?

A

The court will not allow it until the defendant has had sufficient time to consider it.

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33
Q

What is the role of the defence solicitor at the hearing?

A
  • review IDPC and strength of evidence
  • interview client and review evidence
  • advise client on plea (possible reduction of sentence of early guilty plea) and plea venue.
  • advise client on bail
  • make any representation orders needed.
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34
Q

What is the procedure on D entering plea for summary only offences?

A

GP: Mags will sentence immediately or adjourn for any pre-sentence reports required
NGP: Mags will adjourn and set a date for trial.

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35
Q

What is the procedure on D entering plea for indictable only offences?

A

GP: court must make arrangements for the Crown Court to take the defendant’s plea ASAP.
NGP: Court must make arrangements for a case management hearing the crown court.

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36
Q

What is the procedure on D entering plea for either-way offences?

A

Mags decides if offence is more suitable for Mags or Crown court.

GP: if Mags sentencing powers are sufficient D will be sentenced. If not, D will be committed to CC for sentencing.
NGP: Mags will proceed to ‘Allocation Hearing’ to determine factors before allocating venue.

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37
Q

What is an ‘Allocation Hearing’?

A

Where D has indicated a NGP to an either-way offence the Mags court must make a decision if the offence is more suitable for summary trial in the Mags Court OR trial on indictment in the Crown Court.

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38
Q

What is the allocation hearing procedure?

A

Mags court decides if they have sufficient powers to deal with the case.

If inadequate: case goes to Crown Court
If sufficient: D will be given a choice of trial venue.

39
Q

What do the magistrates court allocation on?

A

Magistrates decide on allocation based on facts and D’s previous convictions informed by the prosecution.

40
Q

What will the Magistrates consider for allocation, if the have sufficient powers to deal with a case?

A
  • adequacy of sentencing powers
  • suitability of case for summary trial OR indictable
  • allocation guidelines issues by sentencing council
41
Q

In an allocation hearing procedure, if a trail on indictment is more suitable where does the case go?

A

Crown Court

42
Q

What is the procedure in an allocation hearing procedure if the course decides the offence is more suitable for summary trial?

A

Defendant must be told that:
- the case is more suitable for summary trial
- they can consent to tried summarily or choose to be tried on indictment
- if they choose summary trial and convicted can be committed to CC.

43
Q

Can a defendant appeal after an indication of sentence?

A

Any sentence given shall not be subject to challenge or appeal on the basis that it is not consistent with the prior indication of sentence.

44
Q

In an indication of sentence if a defendant maintains their NGP what must the court do?

A

Ask D if they consent to a summary trial
If yes: summary trial in Mags court.
If no: trial on indictment in CC.

45
Q

When will an either-way offence be sent to the Crown Court without allocation?

A

Case involving:
- complex fraud
- child witnesses
- relation to indictable only offence with same defendant going to CC
- relation to indictable only offence jointly charged with another defendant going to CC.

46
Q

What are the two types of bail?

A

unconditional + conditional

47
Q

What is unconditional bail and consequences of failure?

A

Imposes an obligation on D to attend court at a future specified date and time.

If D fails to attend court a warrant of arrest will be issued.

48
Q

What is conditional bail?

A

Imposes an obligation on D to attend court at a future specified date and time but with conditions as to their conduct until that date.

49
Q

When will conditions be added to bail?

A

If the Magistrates believe that grounds exist for imposing bail conditions or remanding D in custody.

50
Q

What are examples of ‘necessary’ reasons for conditions to be imposed on bail?

A
  • prevent absconding
  • preventing further offences while on bail
  • preventing interferences with witnesses or obstruction of the course of justice
  • for D’s own protection or if under 18 welfare.
  • ensuring D’s availability to assist with enquiries or reports
  • ensuring D attends appointment with their LR before next hearing.
51
Q

In application for bail what do the Justices’ Clerk provide details of?

A

case history + previous bail hearing decisions with reasonings

52
Q

In application for bail what do the Prosecution provide details of?

A
  1. current allegation
  2. previous convictions, if any
  3. results of any drug tests
  4. bail representations
53
Q

In application for bail what do the Defence provide details of?

A
  1. their version of allegation
  2. D’s circumstances
  3. bail representations
54
Q

In the procedures for applying for bail, what is the rule on formal evidence?

A

There is no requirement for formal evidence to be given.

55
Q

What are the statutory factors the court must account for when deciding if there are ‘substantial grounds’ for refusing bail?

A

nature & seriousness of offence + D’s character / antecedents / associations / community ties + bail record + evidence.

56
Q

When is there no right to bail?

A
  1. D in CC waiting to be sentences
  2. D in CC waiting for appeal against conviction/sentence
  3. unless exceptional circumstances, D charged/previously convicted with the most serious offences (e.g. murder).
57
Q

When will statutory exceptions to refuse right to bail and remand a defendant a custody not apply in bail proceedings?

A
  • D has attained age of 18
  • D has not been convicted of an offence in thosee proceedings
  • no real prospect that D will be sentenced to a custodial sentence.
58
Q

What will the court consider regarding a bail application?

A
  • if right to bail applies
  • if no real prospect of a custodial sentence being imposed
  • if any statutory exceptions to the right to bail
59
Q

What are the rights to appeal against decision on bail?

A

Defendant: if bail refused appeal to CC (24 hours notice of intention to appeal)
Prosecution: appeal bail charged/convicted to D.

60
Q

What is absconding?

A

An offence of D failing to surrender, unless there is a reasonable cause.

61
Q

What are the penalties for absconding?

A

Mags can impose fine £5000 and sentence of up to three months.

CC can impose unlimited fine and a sentence of up to one year.

62
Q

When can a police officer have the power to arrest D for breach of bail?

A

If they have reasonable grounds to believe that the defendant:
- not likely to surrender bail; OR
- has broken any conditions of bail; OR
- is likely to break any conditions of their bail.

63
Q

If D is arrested for breach of bail condition what is the procedure?

A

Brought before Mags court within 24 hours of arrest or they must be released.

Mags court will decide to either remand them in custody or release them on bail.

64
Q

Where a D is charged of two offences one summary only and one either-way, where will the case be allocated?

A

The allocation of both offences will be based on the the allocation of the either-way offence.

65
Q

What are examples of bail conditions that can be imposed and the grounds aimed at overcoming?

A

security/surety –> absconding
curfew/residence –> committing offences on bail
restriction on entering areas –> interfering with witnesses

66
Q

What reason might the defendant want to appear at court?

A

To clear their name.

67
Q

What is surety?

A

A promise to secure the defendant’s attendance at court.

68
Q

What are the elements for a surety?

A
  • Approved by police
  • Full name, DOB, and height
  • Surety must show they can cover sum of money
69
Q

What is the difference between security and surety?

A

Security is money paid over to the solicitor’s to hold on behalf of the defendant

Surety is a promise to secure attendance at court.

70
Q

What are the elements of committing ‘low-value shop theft’ a summary offence?

A
  • stolen goods that do not exceed £200
  • tried summarily unless adult enters NGP
  • D can elect crown court
71
Q

What would an early guilty plea do for the defendant?

A

Give them a less harsh sentence with credit of up to 2 months to reduce sentence.

72
Q

What are the elements of committing ‘Criminal damage’ as a summary offence rather than the usual either-way offence?

A

if property damaged is less than £5000 it will be tried summarily.

unless damaged cause by fire.

73
Q

When will an applicant for legal aid automatically pass the means test?

A

If under 18 or receive:
* Income Support (IS)
* income-based Jobseeker’s Allowance (JSA)
* Universal Credit (UC)
* State Pension Guarantee Credit
* income-based Employment and Support Allowance (ESA)

74
Q

What does the means test take into account to determine financial eligibility?

A
  • income
  • family circumstances, such as number of children
  • essential living costs, such as mortgage or rent
75
Q

When will an applicant for legal aid automatically pass the interests of justice test?

A
  • Under 18
  • cases committed, sent or transferred to Crown Court for trial
  • voluntary bills of indictment
  • retrials
  • committals for sentence
76
Q

If a legal aid application is refused because applicant does not satsify the means test, can they appeal the decision?

A

No but can apply for a review on the grounds of hardship

77
Q

If a legal aid application is refused because applicant does not satsify the IoJ test, can they appeal the decision?

A

They can appeal the refusal by by resubmitting the application with further evidence or by requesting an appeal.

78
Q

What must an applicant satisfy in order to be granted legal aid?

A
  • financial eligibility - through means test
  • Interest of justice test
79
Q

When is an IDPC not provided?

A

for an indictable only offence

80
Q

Where do all cases involving an adult defendant begin?

A

Magistrates’ Court

81
Q

D is charged with an indictable only offence - during first appearance at Magistrates’ Court, what is the rule on ‘no case to answer’?

A

No opportunity for a submisison of no case to answer.

82
Q

D is charged with an indictable only offence - during first appearance at Magistrates’ Court, what is the rule on IDPC?

A

The prosecution are not required to provide initial details of their case

83
Q

D is charged with an indictable only offence - during first appearance at Magistrates’ Court, what is the rule on indicating plea?

A

No plea indicated

84
Q

D is charged with an indictable only offence - during first appearance at Magistrates’ Court, what is the rule on representation order?

A

Subject to satisfying the means test, Mags court will:
* grant representation order
* and order it to extend through to the Crown Court proceedings as well.

85
Q

If D is granted legal aid by a RO, does he have to make a contribution towards his defence costs?

A

Mags: not required to contribute to their defence costs
Crown Court: legal aid may be subject to the defendant paying a contribution towards their legal aid costs.

86
Q

In detemring the IoJ test, what factors must the court had regard to?

A
  • whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law
  • whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual
87
Q

What happens if a defendant does not indicate a plea when charged for an either-way offence?

A

treated as if indicated a not guilty plea and the court will move to determine allocation.

88
Q

Is a defendant obliged to indicate a plea?

A

No

89
Q

In relation to plea before venue, what happens if D indicates a guily plea for an either-way offence?

A
  • prosecution will outline the facts of the case to the magistrates AND
  • D’s solicitor is likely to be asked to give a plea in mitigation on D’s behalf.
90
Q

What is a plea in mitigation?

A

an opportunity for D’s solicitor to provide information that will help the defendant when the Court is deciding on the appropriate sentence after the plead “guilty”

91
Q

Is a defence solicitor allowed to disclose information on previous convictions of D?

A

may disclose the existence of these convictions to the court and / or the prosecutor but only with Louis’ express authority.

92
Q

When must a solicitor cease to act and what are they obliged to say?

A

If D does not give express authority to disclose information, and that information will mislead the court, solcitor must cease to act.

No obligation to tell the court why.

93
Q

Who can grant bail for murder and when?

A
  • only a Crown Court judge
  • must not do so unless they are of the opinion that there is no significant risk of the defendant committing, while on bail, an offence likely to cause physical or mental injury to another.
94
Q

When can D appeal bail refusal and what is required?

A
  • right to appeal the refusal of bail to a Crown Court judge in chambers
  • required to obtain a full argument certificate from the magistrates’ court.

FLK 2 - Criminal Practice (6 decks)

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