Key Protocols Flashcards
What offences are summary-only?
- Assault
- Battery
- Simple criminal damage where the value is £5,000 or less is treated as summary only.
An attempt to commit simple criminal damage £5,000 or less is treated as summary only.
Attempt to commit a summary only offence
- Assault and battery cannot be the object of a criminal attempt (as summary only offences).
What offences are either-way?
- Theft- s 1 Theft Act 1968
- Burglary- s 9(1)(a) or s 9(1)(b) Theft Act 1968
- Fraud:
- by false representation
- by abuse of position
- by failing to disclose
- Assault occasioning actual bodily harm- s 47 Offences Against the Person Act (OAPA) 1861
- Wounding or inflicting grievous bodily harm- s 20 OAPA 1861
- Simple criminal damage where the value exceeds £5,000
- Simple arson
Attempts to commit either-way offences will be triable either way.
What offences are indictable-only?
- Robbery- s 8 Theft Act 1968
- Wounding or causing grievous bodily harm with intent- s 18 OAPA 1861
- Aggravated burglary- s 10 Theft Act 1968
- Aggravated arson
- Aggravated criminal damage
- Murder- where a verdict of voluntary manslaughter can be a possible outcome
- Involuntary manslaughter:
- unlawful act manslaughter
- manslaughter by gross negligence
Attempts to commit indictable only offences will be triable only on indictment.
What kind of offence is criminal damage?
Criminal damage is an important exception to the rule that all offences fall into one, and only one, of the three classifications of offences.
Criminal damage can be:
- a summary only; or
- an either-way offence.
Section 22 Magistrates’ Court Act (MCA) 1980 states that the value of the damage determines the classification of the offence. However, this does not apply where criminal damage is caused by fire – arson is always an either-way offence.
The relevant sum is £5,000. Where the value of the damage is £5,000 or below, the offence is summary only. Above £5,000 and the offence is triable either-way.
The value of the damage is the cost of replacement where the property was destroyed. Where the property was damaged it is the cost of repair or replacement, whichever is the less.
The offence(s) are categorised as summary only. The maximum sentence for criminal damage when tried as a summary only offence is three months’ imprisonment or a fine at level 4 on the standard scale. The defendant cannot be committed for sentence.
The offence(s) are triable either way. If they are tried in a magistrates’ court then the maximum sentence is twelve months’ imprisonment or a fine at level 5 on the standard scale. The defendant can be committed for sentence. The maximum sentence on indictment is ten years’ imprisonment.
Where the value of the damage is uncertain, i.e. it is not known whether or not it exceeds £5,000, the defendant is asked if they consent to be tried summarily. If so, that will take place and the maximum sentence will be limited to three months or a level 4 fine. If the defendant does not consent then the offence(s) will be treated as either-way and the higher sentencing powers will apply on conviction.
What kind of offence is shop lifting?
Low value shoplifting, where the value does not exceed £200, is now said to be a summary only offence.
When read fully, however, the statute still allows an adult defendant to elect trial in the Crown Court. You should therefore continue to treat shoplifting as a theft which is an either-way offence.
Note: ‘shoplifting’ is not an offence in any event. Where a person has allegedly shoplifted, they are properly charged with theft.
In reality the only difference that the supposed reclassification of the offence makes is that a magistrate’s court cannot decline jurisdiction at the mode of trial hearing.
What happens when the accused is asked to enter a plea?
(a) If they plead guilty, the court moves to sentence.
(b) If they plead not guilty, there is a trial and the court comes to a verdict.
(i) If the verdict is guilty, the defendant must be sentenced.
(ii) If they are not guilty, the defendant is acquitted of the charge and is free to go.
Where do each of the courts appeal to?
i. The Court of Appeal (Criminal Division) hears appeals from the Crown Court in its capacity as a trial court.
· The Supreme Court hears appeals from the Court of Appeal (Criminal Division) on points of law of general public importance.
b. The Crown Court (in its capacity as an appeal court). Hears appeals from the magistrates’ court and Youth Courts.
i. The High Court can hear appeals by way of case stated and judicial review cases from the Crown Court (in its capacity as an appeal court).
c. High Court (Queens Bench Division)- hears appeals by way of case stated and judicial review from the magistrates’ court.
2)The Youth Court- All defendants under the age of 18 have their first hearing before a court here unless they are jointly charged with an adult. Trial of all youths (under 18) defendants unless they are sent to the Crown Court for trial. There are two potential places a case might go from here:
a. The Crown Court (in its capacity as an appeal court). Hears appeals from the magistrates’ court and Youth Courts.
i. The High Court can hear appeals by way of case stated and judicial review cases from the Crown Court (in its capacity as an appeal court).
b. High Court (Queens Bench Division)- hears appeals by way of case stated and judicial review.
What are indictable offences?
Where a statute refers to an offence as ‘indictable’ this means that the offence is capable of being tried on indictment and, therefore, covers both either-way and indictable only offences. The magistrates’ court is a court of summary jurisdiction. Therefore, a summary only offence can only be dealt with by a magistrates’ court.
Is funding needed for police station advice?
Police station advice
All suspects are entitled to free legal advice at the police station regardless of their means.
This is accessed through the Defence Solicitor Call Centre (‘DSCC’) but is limited to telephone only advice for non-imprisonable offences.
The practitioner who attends must be an accredited representative. Throughout the Police and Criminal Evidence Act 1984 (PACE), any reference to a solicitor means ‘a solicitor who holds a practising certificate or an accredited or probationary representative included on the register maintained by the Legal Aid Agency (LAA) (Code of Practice C 6.12).
Many accredited representatives will be trainees, paralegals or ex-police officers. Any reference to solicitors at the police station should be taken to include accredited representatives. Solicitors must also complete the accreditation process in order to attend at the police station under a LAA contract.
If funding needed for representation in court?
- Once your client has been charged you need to arrange funding for their court appearance.
- If they are not paying privately then the cost of their defence may be covered by public funding through the Legal Aid Agency.
- In order to obtain a ‘representation order’ a defendant must pass two tests:
- the means test; and
- the merits test (the ‘interests of justice’ test).
- Both tests must be passed in order to secure public funding.
What is the general criteria for the means test?
Some defendants are ‘passported’ meaning they automatically pass the means test and do not have to complete the Financial Statement for Legal Aid in Criminal Proceedings (CRM 15) form:
- defendants under 18 years of age; and/or
- those on specified welfare benefits such as Universal Credit and income-based jobseeker’s allowance.
All other defendants have to demonstrate their eligibility but the means test differs depending on whether the case is tried in the magistrates’ court or Crown Court.
What is the criteria for the means test at a Magistrate’s Court?
An initial assessment works out their weighted gross annual income i.e. the applicant’s gross annual income is generally added to any partner’s (unless the partner is the complainant, a prosecution witness or a co-defendant in conflict with the applicant). A weighting is applied to take into account the number of people living in the household. Once this figure is calculated the applicant will:
- Be eligible for public funding- if below the lower threshold i.e. at present if the weighted gross annual income is £12,475 or less
- Be ineligible for public funding- if above the upper threshold i.e. at present, if the weighted gross annual income is £22,325 or more
- Be required to undertake a full means test (form CRM15)- if in between the lower and upper thresholds i.e. at present, more than £12,475 and less than £22, 325. The full means test will establish the applicant’s annual household disposable income- if it is below the threshold the applicant will be funded (at present if the annual household disposable income threshold is £3,398 or less).
The applicant can apply for an eligibility review if they have failed the means test or hardship review if for example they have unusually high outgoings or defence costs.
What is the criteria for the means test at a Crown Court?
- The applicant is assessed on their income and capital, including any equity in properties owned by the applicant.
- After a combined capital and equity allowance of £30,000, applicants can be required to contribute any balance towards their defence costs.
- The outcome of the assessment may require defendants to pay:
- all
- some; or
- none of the costs of defending their case.
- If a contribution towards their defence costs are required, it can come from income (payable throughout the case) and/or capital (payable at the end, if any income contributions have not covered the defence costs).
In relation to the applicant’s annual household disposable income, the applicant will be:
- ineligible for public funding- if above the eligibility threshold i.e. £37,500 or more at present.
- eligible for public funding without any contribution- if below the threshold i.e. £3, 398 or less at present.
- eligible for public funding with a contribution- if in between the thresholds i.e. between £3,399 and £37,499.99 at present. The income based-contribution is 90 percent of disposable income for a maximum of six months in instalments and subject to a maximum based on the type of offence (refunded with interest if the defendant is acquitted).
The applicant can apply for an eligibility review if they have failed the means test or a hardship review if subject to a contribution order e.g. if the applicant suspects an error or circumstances have changed.
What is the criteria for the merits test?
In order to pass the merits test the defendant must complete a form (CRM14- Application for Legal Aid in Criminal proceedings) in order to demonstrate that it is in the interests of justice for them to be legally represented.
A defendant will automatically pass the interests of justice test if:
- charged with an indictable-only offence; or
- an either-way offence is later sent to the Crown Court.
The interests of justice test requires the defendant to provide information in support all or some of the 10 propositions in the application form. The purpose of the 10 propositions is to evaluate whether the matter is so serious or complicated that the defendant could not conduct their own defence.
The 10 propositions
I will lose my liberty
I have been given a sentence that is suspended or non-custodial. If I break this, the court may be able to deal with me for the original offence.
It is likely I will lose my livelihood
It is likely I will suffer serious damage to my reputation
A substantial question of law may be involved
I may not be able to understand the court proceedings or present my own case
Witnesses may need to be traced or interviewed on my behalf
The proceedings may involve expert cross examination of a prosecution witness
It is in the interests of another person that I am represented
Any other reasons
I will lose my liberty
To determine whether a defendant is likely to receive a custodial sentence reference must be made to the aggravating and mitigating factors in the sentencing guidelines. It is not enough that the offence is imprisonable.
The term ‘likely’ has been argued as meaning a ‘real and practical one’.
I have been given a sentence that is suspended or non-custodial. If I break this, the court may be able to deal with me for the original offence.
All details of any suspended or non-custodial sentence should be provided in this section. If a defendant is not complying with the terms of a non-custodial sentence, then this will mean that a sentencing court may be of the view that they should not be given the benefit of a community-based sentence if convicted of this offence. If a defendant has received a suspended sentence which is not over, then the court should activate the suspended sentence once they are convicted of the new offence.
