Unit 2 First Hearings Before the Magistrates’ Court, Plea Before Venue, Allocation and Bail

Question 1

First Hearings Before the Magistrates’ Court

Answer 1

All over 18 defendants no matter the charge will make their first court appearance before the magistrate’s court.

Defendants aged 17 and under will usually be dealt with in the youth court.

Question 2

Classification of offences

Answer 2

• those triable only on indictment
  Most serious form.
  Must be dealt with by the Crown Court.
  Murder, manslaughter, causing grievous bodily harm/ wounding with intent, rape, robbery, aggravated burglary, blackmail, kidnap and conspiracy.
• those triable either way
  Can be dealt with either by the magistrates’ court or by the Crown Court.
  Theft, fraud, most forms of burglary, handling stolen goods, going equipped to steal, inflicting grievous bodily harm/ wounding, assault occasioning actual bodily harm, sexual assault, affray, threats to kill, criminal damage, dangerous driving, possession of an offensive weapon, possession/ possession with intent to supply and supply of controlled drugs.
• those triable only summarily
  Least serious and as a general rule may only be dealt with by the magistrates’ court.
  Common assault, ss 4 and 5 of the Public Order Act 1984, taking a vehicle without consent and most road traffic offences.

Question 3

Classification of offences - Either- way offences

Answer 3

First appearance before the magistrates’ court, and if the defendant indicates a not guilty plea, the magistrates will then decide whether to keep the case before them or send the case to the Crown Court for trial.

If the magistrates do decide to keep the case before them, the defendant then has the right to elect trial by a judge and jury in the Crown Court or consent to summary trial.

Low value shoplifting not exceeding £200 summary unless plead not guilty than can elect crown court.

Criminal damage is an either- way offence, where the value of the property damaged is less than £5,000 this will also be treated as a summary offence unless the damage was caused by fire or caused to a memorial.

Question 4

Public funding available to a defendant

Answer 4

Defence solicitors will normally make applications on behalf of their client for the client’s case to receive public funding from the Legal Aid Agency (LAA).

Human right.

To obtain funding, firm must have a ‘general criminal contract’ with the LAA to represent defendants in criminal proceedings.

Question 5

Public funding available to a defendant - Work done at the police station

Answer 5

All persons attending at the police station (whether under arrest or attending voluntarily) are entitled to free legal advice, regardless of their means.

One fixed payment no matter how long attend or how many attendees (special provision for cases that are the most serious type or are very time-consuming).

Non- solicitors (such as trainees) can attend the police station and charge for this work as long as they are either accredited or probationary police station representatives.

Most criminal defence solicitors will be members of duty solicitor schemes for a given police station.

Question 6

Public funding available to a defendant - Work done after the client is charged

Answer 6

The duty solicitor scheme operates in the magistrates’ court.

Solicitors who are members of a court duty scheme will have their names on a rota. Sol given day when it is their turn to attend court as the duty solicitor.

Claim their costs in attending court from the legal aid agency under the Advocacy Assistance (Court Duty Solicitor) Scheme.

Question 7

Public funding available to a defendant - Applying for a representation order

Answer 7

D who wants legal aid in mags must satisfy 2 tests:

(a) the interests of justice test – the defendant must show that it is in the interests of justice that they receive public funding to cover the cost of their legal representation; and

(b) the means test – the defendant must demonstrate that their finances are such that they are unable to pay for the cost of their legal representation.

D submits online app.
Unless the defendant automatically satisfies the means test, they must also submit a financial statement, together with any supporting evidence.

Question 8

Public funding available to a defendant - Applying for a representation order - The interests of justice test

Answer 8

Factors taken into account:
(a) whether the individual would, if any matter arising in the proceedings is decided against them, be likely to lose their liberty or livelihood or suffer serious damage to their reputation;
(b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law;
(c) whether the individual may be unable to understand the proceedings or to state their own case;
(d) whether the proceedings may involve the tracing, interviewing or expert cross- examination of witnesses on behalf of the individual; and
(e) whether it is in the interests of another person that the individual be represented.

Factors repeated on form CRM14. Tick boxers and any other reasons box…

Likely to lose livelihood relevant if intends to plead guilty.

Likely to lose liberty relevant if likely to be refused bail.

Likely to be given a sentence that is suspended - if break this the court may be able to deal with me for the original offence.

Other factors applicable where the D intends to plead not guilty.

–
Can request appeal or add further details to original form.

Question 9

Public funding available to a defendant - Applying for a representation order - The means test

Answer 9

Will receive criminal legal aid automatically without needing to satisfy the means test:
(a) applicants who receive income support, income- based jobseeker’s allowance, guaranteed state pension credit, income- based employment and support allowance or universal credit; and
(b) applicants who are under the age of 18.

Test done by calculating applications disposable income.

No right to appeal against a refusal of legal aid because of a failure to satisfy the means test.
Can be reviewed on grounds of hardship if genuinely cannot fund.

Mags - Not required to contribute in any way.
Crown - may need to contribute.

Question 10

Public funding available to a defendant - Applying for a representation order - scope

Answer 10

For a summary- only matter, or an either-way matter which is dealt with by the magistrates’ court - cover all the work done by the solicitor in connection with those proceedings in the magistrates’ court, and may be extended to cover an appeal to the Crown Court.

For either way in Crown - covered.

For triable only on indictment - covers both mags and crown court.

For either- way offences, where a defendant has failed the magistrates’ court means test and the case is subsequently committed to the Crown Court, funding will not start until the day after the sending hearing and will only cover work done in the Crown Court, and only if the defendant passes the means eligibility test in the Crown Court.

Question 11

What will happen at the first hearing

Answer 11

(a) the classification of the offence
(b) the plea the defendant enters in respect of summary or either- way offences;
(c) the level of detail provided by the CPS of the prosecution case; and
(d) whether public/ private funding has been secured.

Rare occasions where not in position to enter plea e.g. funding issues or prosecution not been able to disclose evidence - case adjourned.

Question 12

What will happen at the first hearing - specifics for different classifications of offences

Answer 12

• Summary offences
  If plead guilty - CPS says facts, Ds previous convictions, please in mitigation on behalf of D then mags sentence of adjourn to get reports.
  If plead guilty but dispute facts - Newton hearing
  If plead not guilty - court fix date for trial. Issue case management directions.
• Either- way offences
  If plead guilty - mags determine whether they should sentence or send to crown. May then need to adjourn for pre sentence report.
  If plead not guilty - mags determine which court.
• Offences triable only on indictment
  Sent straight to the Crown Court for either trial or sentence following a preliminary hearing in the magistrates’ court.

Question 13

The role of the defence solicitor at the first hearing

Answer 13

(a) obtaining funding from the LAA to pay for the work they will do on their client’s behalf (unless the client is paying for their legal costs privately);

(b) obtaining details of the prosecution case from the CPS (for summary and either- way offences);

(c) taking a statement from the client;

(d) advising the client on the strength of the prosecution evidence and the plea the client should enter (for summary and either- way offences); and

(e) in the case of an either- way offence where the client is indicating a not guilty plea, informing the client that their case may be dealt with either by the magistrates’ court or by the Crown Court, and advising the client about the advantages and disadvantages of each court; and

(f) making an application for bail, where necessary.

Question 14

Plea Before Venue and Allocation of Business Between the Magistrates’ Court and Crown Court - Prosecution obligation to provide IDPC

Answer 14

IDPC(initial details of prosecutions case) includes the following:
(a) where the defendant was in police custody for the offence charged immediately before the first hearing in the magistrates’ court:
(i) a summary of the circumstances of the offence; and
(ii) the defendant’s criminal record, if any; or
(b) in all other cases:
(i) a summary of the circumstances of the offence;
(ii) any account given by the defendant in interview, whether contained in that summary or in another document;
(iii) any written witness statement or exhibit that the prosecutor has available and considers material to plea, or to the allocation of the case for trial or to sentence;
(iv) the defendant’s criminal record, if any; and
(v) if available, a victim impact statement.

In practice digital format on CMS. If see D for first time in court may need to ring CPS for it.

Entitled to more if on bail and not anticipating a guilty plea at first hearing e.g. CCTV, Ds interview evidence.

Question 15

Advising a client on plea

Answer 15

Following matters discussed:
(a) The client’s response to the prosecution case.
(b) The strength of the prosecution case.
(c) Whether it is necessary to obtain any further evidence in support of the defendant’s case
(d) Where the client has been charged with an either- way offence and is pleading not guilty, if given the choice, whether they should elect to be tried in the magistrates’ court, or before a judge and jury in the Crown Court

What plea to make once cps disclosed details.

Question 16

Advising on trial venue

Answer 16

• Factors in favour of the Crown Court
• Greater chance of acquittal (jury)
• Better procedure for challenging admissibility of prosecution evidence
  Mags decide both matters of law and fact. In crown jury sent out for voirdire (mini trial)
• More time to prepare the case for trial
• Factors in favour of the magistrates’ court
• Limited sentencing powers
  Max 12 months for 2 or more either way offences, 6 months for one, but can commit to crown for sentencing
• Speed and stress
• Prosecution costs
• Defence costs
  If fund privately cheaper. Don’t have to contribute to costs if get legal aid.
• No obligation to serve defence statement

Question 17

Advising a client on plea - Professional conduct

Answer 17

Where client tells sol they are guilty but intend a not guilty plea.

Conflict between duty not to mislead the court and clients best interest.

Benefits - tell client reduction in sentence for guilty plea.

Limitations - advise that sol may still represent them but is limited on what they can do because of duty to not mislead court.
Sol should be able to make a submission of no case to answer if prosecution failed to discharge evidential burden.
Sol could not act if no case to answer was unsuccessful and D insisted on giving evidence sol knew to be false. Have to withdraw.

Question 18

Procedure on defendant indicating plea (for either- way offences)

Answer 18

(a) The charge will be read out to the defendant by the court’s legal adviser, who will also check that the defendant’s solicitor has received IDPC.
(b) The legal adviser will then tell the defendant that they may indicate to the court how they would plead if the matter were to proceed to trial (the defendant is under no obligation to indicate their plea). The legal adviser will also tell the defendant that if they indicate a guilty plea, they will then be treated as having pleaded guilty before the magistrates, who may either sentence them or commit them to the Crown Court to be sentenced if they consider their own sentencing powers to be inadequate.
(c) The legal adviser will then ask the defendant to indicate their plea.

Question 19

Procedure on defendant indicating plea (for either- way offences) - guilty plea

Answer 19

If guilty plea treated as having been tried summarily and convicted.
CPS outlines facts and previous convictions.
Ds sol give plea in mitigation.

Mags will decide if they can sentence or if crown court.
Max 6 months or 12 months for 2 or more either way offences.

Mags - sentence or adjourn for pre sentence report.

Crown - if been in custody previously likely to stay that way, same for bail even if likely to get a custodial sentence

Question 20

Procedure ss 19– 20 and s 22A Magistrates’ Courts Act 1980

Answer 20

If not guilty plea to an either way offence, sent to crown court if:
(a) the defendant is sent to the Crown Court for trial for a related offence;
(b) the defendant is charged jointly with another adult defendant who is sent to the Crown Court for trial for a related offence;
(c) the defendant is charged jointly, or charged with a related either- way offence, with a youth defendant who is sent to the Crown Court for trial.

Question 21

Procedure ss 19– 20 and s 22A Magistrates’ Courts Act 1980 - allocation

Answer 21

If plead not guilty or refuse to enter plea, mags make decision as to allocation.

Prosecution can inform court of Ds previous convictions.

If trial on indictment more suitable sent to crown.

If suitable for summary trial - D can request an indiction of sentence (custodial or non custodial) and as a result may reconsider plea. Don’t have to follow request.
If plead guilty then tried summarily.
If do not change plea, indication not binding.
Ask D if they consent to summary trial - yes then mags - no then crown.

Question 22

Sending without allocation – s 50A Crime and Disorder Act 1998

Answer 22

In certain circumstances, either- way offences will be sent straight to the Crown Court:
(a) Where notice, in serious or complex fraud cases, has been given by the DPP under s 51B.
(b) Where a notice, in certain cases involving children, has been served under s 51C. Where a child will be called as a witness.
The offences to which this procedure applies include assault or threat of injury to a person, child cruelty, certain sexual offences, kidnapping, false imprisonment and child abduction.
(c) Where there is an either- way offence related to an offence triable only on indictment, or one covered by a notice under s 51B or s 51C, in respect of which the same defendant is being sent to the Crown Court.
However, where the defendant appears on the related either- way charge on a subsequent occasion, the court may send them for trial.
(d) Where there is an either- way offence related to an offence triable only on indictment, or one covered by a notice under s 51B or s 51C of the CDA 1998, in respect of which another defendant is being sent to the Crown Court.

Question 23

Remands

Answer 23

A defendant may be remanded in one of three ways:
(a) a remand in custody;
(b) a remand on bail with conditions attached to that bail; or
(c) a remand on unconditional bail.

Question 24

Remands before conviction

Answer 24

• Custody

Basic rule is that a defendant may not be remanded in custody for more than 8 clear days at a time.

If Ds case in mags D needs to be brought before court every 4th remand (if consent and legal rep).

Court may remand a defendant in custody for up to 28 days if:
(a) it has previously remanded them in custody for the same offence; and
(b) they are before the court; and
(c) it can set a date to remand them to on which it expects the next stage of the proceedings to take place.

• Bail
  Can be on bail for any period of time subject to Ds consent.

Question 25

Remands before conviction - custody - time limits

Answer 25

Overall maximum period of remand in custody in the magistrates’ court is 70 days before trial for an either- way offence and 56 days before trial for a summary- only offence.

If the case involves an either-way offence and the allocation hearing takes place within 56 days, the custody time limit for the either- way offence is reduced to 56 days.

Prosecution may apply to the court to extend the custody time limit - need to show on the balance of probabilities that there is good and sufficient cause to do this and that it has acted with due diligence and expedition.
App may be made orally or in writing, although a written notice of intention must be served on the court and the defendant not less than 2 days before the hearing in the mags.
D and prosecution has a right of appeal to the Crown Court.

Question 26

Remands before conviction - custody - where kept

Answer 26

Prison or remand centre.

Mags can remand D to police custody for up to 3 days if necessary to make enquiries in relation to other offences.

Question 27

Remands after conviction

Answer 27

Defendant may be remanded in custody before sentence (usually for the preparation of pre- sentence reports) for successive periods of not more than 3 weeks.

If the defendant is remanded on bail, this may be for successive periods of not more than 4 weeks.

Question 28

The right to bail

Answer 28

Presumption that bail will be granted to the following types of defendants:
(a) all defendants prior to conviction;
(b) defendants who have been convicted if their case has been adjourned for the court to obtain reports before sentencing; and
(c) defendants who are appearing before the court for breach of a community sentence.

Presumption to right to bail does not apply to Ds:
(a) who have been committed to the Crown Court for sentence; or
(b) who are appealing against conviction or sentence.
(c) charged with a specified offence (murder, attempted murder, manslaughter, rape, attempted rape, serious sexual offences).

Only crown can grant bail for murder and must make decision within 48 hours.

Question 29

The right to bail - exceptions

Answer 29

• ‘No real prospect of custody’ restriction
  Restriction in the below exceptions applying
• Offences triable only on indictment and either- way imprisonable offences

Substantial grounds for believing D would:
(a) fail to surrender to custody, or
(b) commit an offence while on bail, or
(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

Can take into account:
(a) the nature and seriousness of the offence (and the probable sentence);
(b) the character, antecedents, associations and community ties of the defendant;
(c) the defendant’s record in respect of previous grants of bail in criminal proceedings; and
(d) the strength of the evidence against the defendant.

• Summary- only imprisonable offences
  Can only be refused if:
  (a) the defendant has previously failed to surrender;
  (b) if the instant offence was committed on bail;
  (c) fear of commission of offences likely to cause another person to suffer or fear physical or mental injury;
  (d) defendant’s own protection (or welfare if a youth);
  (e) defendant serving custody;
  (f) fear of failure to surrender, commission of offences, interference with witnesses or obstruction of justice (if the defendant has been arrested for breach of bail in respect of the instant offence); and
  (g) lack of sufficient information.
• Non-imprisonable offences
  Rare.
  Only if:
  (a) failed to answer previous bail
  (b) own protection or if under 18 welfare
  (c) the defendant is currently serving a custodial sentence in respect of a separate offence; or
  (d) the defendant was granted bail at an earlier hearing in the same proceedings, but has been arrested either for failing to answer his bail or for breaking any conditions of his bail.

Question 30

Conditional bail

Answer 30

To prevent absconding:
* Security (sum of money)
* Sureties (other person gives sum of money)
* Surrender of passport

To prevent absconding and committing offences on bail:
* Reporting to police station
* Residence at specified address

To prevent committing offences on bail:
* Curfew

To prevent committing offences and interfering with witnesses:
* Non-communication with prosecution witnesses
* Restriction on entering specified areas

• Attending appointments with sol or probation service

Conditional bail used where substantial grounds exist that will commit offence etc if conditions remove grounds = conditional bail.
If not = remanded in custody.

Electric monitoring can be imposed to monitor compliance with another bail condition e.g curfew, exclusion zone.

Question 31

Procedure for applying for bail

Answer 31

(a) The CPS representative must, as soon as practicable, provide the defendant’s solicitor, and the court, with all of the information in its possession which is material to what the court must decide

(b) The CPS representative will state its objection to bail and apply to the magistrates for the defendant to be remanded in custody.
Can use past convictions, cases etc.

(c) The defendant’s solicitor will then make an application for bail on their client’s behalf. May suggest appropriate conditions.

(d) The magistrates may hear evidence from other persons in support of the defendant’s application for bail, such as a prospective employer or a person who is prepared to provide the defendant with accommodation.

(e) The magistrates will then decide whether to remand the defendant in custody or on bail.

Question 32

Further applications for bail

Answer 32

If bail is refused, the magistrates are under a duty to consider the question of bail at any subsequent hearing if the defendant is still in custody and the presumption in favour of bail still applies.

At first hearing after Ds sol can make full app, after that court need not hear arguments again.

Question 33

Appeals against decisions on bail - by D

Answer 33

May appeal against this decision to the Crown Court provided the magistrates have issued the certificate of full argument.

Ds sol must complete notice of application as soon as practicable after decision. Sent to mags and crown and CPS.

If the prosecution oppose the appeal, they must notify the Crown Court and the defence at once of the reasons why they are opposing the appeal.

Appeal should be heard as soon as practicable and no later than the business day after it was served, although note that the Crown Court can vary these time limits.

Question 34

Appeals against decisions on bail - by prosecution

Answer 34

Right to appeal decision in crown if mags made decision.

Oral notice must be given by the prosecutor at the end of the hearing during which the court granted bail; and before the defendant is released from custody.

This notice must be confirmed in writing and served on the defendant not more than 2 hours after telling the court of the decision to appeal.

Crown Court must hear the appeal as soon as possible and in any event not later than 2 business days after the appeal notice was served (and this takes place as a re-hearing).

Should only appeal in cases of grave concern, not just because they disagree.

Question 35

Failing to surrender (absconding)

Answer 35

Under a duty to surrender to the court at the time and place appointed for the next hearing.

If fail to attend mags issue warrant for arrest. Can be backed with bail or not.

2 offences under bail act 76:
(a) If the defendant fails without reasonable cause to surrender to custody, they will be guilty of the offence of absconding.
(b) If the defendant did have a reasonable cause for failing to surrender, they will still be guilty of an offence unless they surrendered to custody as soon as it was reasonably practicable for them to do so.

Question 36

Breaching bail conditions

Answer 36

Not a criminal offence but likely to have their bail reviewed by the magistrates.

Police have power to arrest a person on bail if reasonably believe:
(a) is not likely to surrender to bail; or
(b) has broken, or is likely to break, their bail conditions.
Must be brought before court mags within 24 hours.