Processes: First Appearance before the MC and Pre-Trial Procedures Flashcards
What is the role of the defence solicitor to prepare for pre-trial procedures?
The defence solicitor should:
- Obtain a representation order if the client is of limited means
- Take a statement from the client
- Obtain details of the prosecution’s case (disclosure - IDPC)
- Advise client on plea
-If either way offence, inform the client that the case may be held in either the Magistrates’ Court or the Crown Court (and that the client has a choice if they make a not-guilty plea) - Make a bail application
Pre-hearing administration - funding: How is funding reviewed before the first hearing?
A representation order provides a level of financial assistance for funding defence representation in the criminal courts.
Legal representative should apply for a representation order early on. Done on two forms: application form (CRM14) and a financial statement (CRM15).
N.B: If D already has a representation order granted at the Magistrates’ Court, it will be automatically extended to cover the Crown Court proceedings. If D does not have a rep order and the case goes to the Crown Court, they will automatically pass the merits test (as clearly matter is serious) but still need to pass the means test.
How is legal aid determined in the Magistrates’ Court?
Means test in the Magistrates’ Court: Initial test is based on income only (not capital or savings).
Merits test in the Magistrates’ Court: Also known as the ‘interests of justice’ test - satisfied if D can successfully argue that any of the following criteria listed on CRM14 are met:
- Likely that D will lose their liberty
- Likely that D will lose their livelihood
- Likely that D will suffer serious damage to their reputation
- It is in the interests of another person that D is represented
- Risk that D would be unable to present their own case or that they may not understand proceedings
- Case involves a substantial question of law
- Likely to require the tracing or interviewing of witnesses
- Case may involve expert cross-examination of witnesses
How is legal aid determined in the Crown Court?
Merits test in the Crown Court: The merits test is automatically passed for all Crown Court cases
Means test in the Crown Court: Means are determined based on the applicant’s income, capital and equity and D may be required to make income or capital-based contributions depending on their means. Must be proven within 14 days of transfer to the Crown Court.
→ Lower threshold: Income below this figure will mean that D is eligible for a representation order without any contribution;
→ Upper threshold: Income above that figure will mean that D is not eligible for a representation order
→ Income between these thresholds: D is eligible for representation but will have to make income-based contributions equal to 90% of their disposable income
What are the costs consequences for conviction on the defendant?
Once a trial is complete, a convicted D may be obliged to make further contributions out of capital if income contributions have not covered the costs. Specified sum (currently £30k) will be deducted from D’s capital liability.
Disposable capital to pay: Total costs of representation - [total income contribution (already paid] + specified sum]
What are the consequences for acquittal?
If D is acquitted, the state bears the cost of the case and D’s income contributions are refunded in full and with interest. D will not have capital costs levied against them unless trial judge considers there are exceptional reasons for requiring D to pay.
Pre-hearing administration - Disclosure Review: How is disclosure reviewed before the first appearance?
Initial Disclosure of the Prosecution Case (IDPC):
CPS (or other prosecutor) will complete this document and this should be served on the defence ASAP after charge and by 9am on the day of the first hearing of an either way / summary offence.
Information disclosed should be such as to enable an ‘effective’ hearing. Will include a case summary, key witness statements, record of the police interview, and any previous convictions.
N.B: pre-hearing disclosure rules here do not apply for indictable-only offences - the full process of disclosure will take place in the Crown Court.
What must the court do after reviewing the IDPC?
Court’s position from IDPC: Court must be in a position to:
- Take a plea;
- Determine the appropriate trial venue;
- Identify the actual case issues;
- Conclude the case (up to and including sentence) or give directions to allow it to be concluded at the next hearing.
When is a GAP hearing scheduled?
GAP (Guilty Anticipated Plea) Hearing: Scheduled for hearing within 14 days of charge and is intended to resolve the case at the one hearing (including sentence).
When is an NGAP hearing scheduled?
NGAP (Not Guilty Anticipated Plea) Hearing: Scheduled for hearing 28 days after charge to allow time to prepare effectively. The case should, if possible, be prepared for trial.
What is the general procedural overview for first appearance at the Magistrates’ Court?
The first hearing for all cases, including indictable only cases, will take place in the Magistrates’ Court. The timing of the first appearance depends on the type of offence charge, defendant’s anticipated plea and whether the defendant is on bail.
What is the general procedure if D has no bail?
D has no bail: Must appear in a ‘remand court’ asap, normally the local court on the next day. D will be given initial prosecution disclosure and asked to enter a plea. Court will be likely to adjourn for further information (such as sentencing reports).
What is the general procedure if the first appearance is for a summary / either way offence?
Court will either schedule the case to a GAP (Guilty Anticipated Plea) or a NGAP (Not Guilty Anticipated Plea) court. Court will base this anticipation on appraisal of the case by the police and the prosecution during the pre-charge investigations.
What is the general procedure if the first appearance is for an indictable-only offence?
No allocation hearing for indictable-only offences. The offence will be sent to the Crown Court forthwith at the first appearance.
Court may review the matter of bail but beyond that they will simply adjourn the matter. Further hearings will take place in the Crown Court. A date for a Plea and Trial Preparation Hearing in the Crown Court will be set and standard directions are issued for particular steps to be completed in the Crown Court, such as service of case papers by the Crown Prosecution Service and the filing of defence statements.
What offences are classed as ‘either-way’ offences?
Assault occasioning ABH
GBH: OAPA s.20
Criminal damage over £5000
Theft - including shoplifting
Burglary
Fraud
Explain the specific procedure at first appearance for an either-way offence
Procedure for an either-way offence at first appearance
Stage 1: “Plea before venue” PBV (either-way offence):
D is charged with an either-way offence. First hearing will deal with ‘plea before venue’, where D indicates whether they are guilty or not guilty and the move directly to ‘allocation’.
N.B: Impact of early guilty plea at first appearance - ⅓ reduction in defendant’s sentence
Stage 2: ‘Allocation’ (either-way offence):
Allocation - the court decides in an either-way offence whether the case is better dealt with at the Magistrates’ Court or the Crown Court. Magistrates can hear representations from both the prosecution and the defence. If the case ends up being allocated to the Magistrates’ Court, steps will be taken to set a date for trial and issue directions.
Explain the mini-procedure at allocation (Stage 2 for an either-way offence)
Procedure at allocation stage (mini-procedure within the first appearance): ss19-20 Magistrates’ Court Act 1980
1) Prosecution informs MC of the facts and if D has any previous convictions
2) MC considers representations from the prosecution and defence
3) MC considers if they have adequate sentencing powers: they consult the allocation guidelines and sentencing guidelines. They consider the max sentence the offence could have as put forward by the prosecution
4) If CC is more appropriate, case is sent to CC.
5) If MC, D is given a choice to go to CC or stay in MC (elective choice)
6) D can request an indication of sentence if tried in MC. If after indication D pleads guilty, court is bound.
What do magistrates consider in their allocation decision?
Considerations for magistrates’ allocation decision (MCA s19):
→ whether their sentencing powers are sufficient;
→ representations of the parties;
→ any allocation guidance issued;
→ any relevant previous convictions
N.B: If D is convicted, magistrates could always commit D to the Crown Court to deal with sentencing if that is more appropriate.
What are the magistrates’ sentencing powers?
Magistrates’ sentencing powers:
Maximum sentence to impose is 12 months for a single either way offence.
What happens if magistrates accept jurisdiction of the case?
If magistrates accept jurisdiction for an either-way offence…
Defendant has a choice of jurisdiction (MC or CC).
What information must be given to the defendant?
Information to assist with defendant’s choice of jurisdiction:
D should be informed of the decision to accept jurisdiction and should be warned that the magistrates retain the power to commit D to the Crown Court for sentence if it becomes apparent that their sentencing powers are inadequate. D then has the chance to elect a summary or a Crown Court trial.
What is the significance of indication of sentence given to the defendant?
Indication of sentence (binding): D can ask the magistrates to indicate whether, if they were to be convicted in their court, the magistrates would impose a custodial or non-custodial sentence. Indication is at the discretion of the magistrates.
They are not required to give an indication but if they indicate custody is not likely and the defendant pleads guilty at this point, they are bound by what they have indicated.
What happens if the defendant is absent?
Absent Defendant: D should be present at a plea before venue to indicate their plea in person. However, the court can proceed in D’s absence if they are legally represented or the court considers that it is not practicable to proceed with D present due to their disorderly conduct. Legal rep then indicates D’s plea. Same applies for allocation decision.
Why may a case be adjourned?
Adjournment of case: May be required for the court to consider bail or require D to make an application for it.
