Classifying Offences, pB4V, Allocation

Question 1

Which court must deal with offences triable only on indictment?

Answer 1

Crown court (even if first appearance is at MC).

Question 2

Examples of offences triable only on indictment?

Answer 2

Murder, Manslaughter, GBH/wounding with intent.

Question 3

Which court must deal with offences triable either way?

Answer 3

Either MC or CrC.

Question 4

What happens if a magistrates decide to keep an EW case for trial?

Answer 4

Defendant has the right to elect trial by jury in Crown Court or consent to summary trial in Magistrates’ Court.

Question 5

Examples of offences triable either way?

Answer 5

Theft, fraud, most forms of burglary, handling stolen goods, going equipped to steal, inflicting grievous bodily harm/wounding, assault occasioning actual bodily harm.

Question 6

Which court must deal with offences triable only summarily?

Answer 6

Magistrates’ Court.

Question 7

Examples of offences triable only summarily?

Answer 7

Low value shop theft (s 22A MCA 1980) £200 or under, criminal damage under £5k, common assault, ss 4 and 5 of the Public Order Act 1984.

Question 8

What does Article 6(3) of the ECHR state?

Answer 8

Defendants without sufficient means should receive legal assistance free of charge when in the interests of justice.

Question 9

Who is entitled to free legal advice at the police station?

Answer 9

All persons at the police station, whether under arrest or attending voluntarily.

Question 10

What will a representation order cover if the magistrates decline jurisdiction for an either-way matter?

Answer 10

The representation order will extend automatically to cover the proceedings in the Crown Court.

Question 11

Events at the first hearing in MC depend on what?

Answer 11

It is determined by the classification of the offence, the plea entered, details provided by the CPS, and funding status.

Question 12

What is the presumption at the first hearing?

Answer 12

A plea will be entered.

Question 13

What happens if a defendant pleads guilty?

Answer 13

CPS will present facts, and the magistrates may either sentence or adjourn the case.

Question 14

What happens if a defendant pleads not guilty?

Answer 14

The court will fix a trial date and issue case management directions.

Question 15

What is the process for either-way offences if the defendant pleads guilty?

Answer 15

Magistrates will decide whether to sentence or commit to Crown Court.

Question 16

What happens if a defendant is charged with an offence triable only on indictment?

Answer 16

They are sent straight to Crown Court for trial or sentence after a preliminary hearing in MC.

Question 17

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

Answer 17

Obtain funding from LAA, obtain details of the prosecution case, take a statement from the client, and advise on the strength of CPS case and plea, advise on dis/advantages of CC/MC for NGP to EW offences, make application to bail if necessary.

Question 18

What is the prosecution’s obligation regarding IDPC?

Answer 18

The prosecution must provide initial details of the prosecution case (IDPC) to the defendant’s solicitor as soon as possible after the defendant has been charged.

Question 19

What does IDPC include for a defendant in police custody?

Answer 19

A summary of the circumstances of the offence and the defendant’s criminal record, if any.

In all other cases, summary of circumstances and any account of D given in interview, written WS prosecutor has and is material to the plea or allocation, Ds crim record and any victim impact statement.

Question 20

What is the procedure for obtaining IDPC?

Answer 20

The defence solicitor can contact CPS with a Unique Reference Number or access the material directly on the Common Platform.

Question 21

What must the court ensure if the CPS introduces new information?

Answer 21

The court must allow the defendant sufficient time to consider any new information before it can be introduced.

Question 22

What are the four key matters to discuss when advising a client on plea?

Answer 22

1. Client’s response to the prosecution case
2. Strength of the prosecution case
3. Need for further evidence
4. Election of trial venue if charged with an either-way offence.

Question 23

What are the factors in favour of choosing Crown Court for trial?

Answer 23

Greater chance of acquittal, better procedure for challenging admissibility of prosecution evidence, and more time to prepare the case.

Question 24

What is a voir dire?

Answer 24

A mini-trial in Crown Court to determine the admissibility of disputed prosecution evidence.

Question 25

What are the advantages of a trial in Magistrates’ Court?

Answer 25

Limited sentencing powers, speed of trial, less stress, lower prosecution costs if convicted, if granted legal aid don't have to pay defence costs , no obligation to serve defence statement.

Question 26

What is the maximum sentence magistrates can impose for an either-way offence?

Answer 26

12 months’ imprisonment.

Question 27

What is the solicitor's duty if a client intends to plead not guilty but admits guilt?

Answer 27

The solicitor has a duty to not mislead the court and should advise the client on the benefits of a guilty plea as reduced sentence. If client insists on pleading guilty, can represent and XX CPS W or submit nCTA only if CPS has failed to discharge ev burden. Cannot keep acting if SNCTA unsuccessful and d wants to enter W box and give false evidence. Still owes confidentiality so cannot tell court why withdrawing.

Question 28

What can a solicitor do if a client insists on pleading not guilty?

Answer 28

The solicitor can cross-examine prosecution witnesses and make a submission of no case to answer.

Question 29

What cannot a solicitor do if a client insists on giving false evidence?

Answer 29

The solicitor cannot continue to act if the client insists on giving false evidence.

Question 30

What is a submission of no case to answer?

Answer 30

It is a request to the magistrates to dismiss the case if the prosecution fails to show that the defendant has a case to answer.

Question 31

What must a solicitor do if a submission of no case to answer is unsuccessful?

Answer 31

The solicitor must withdraw from the case if the defendant insists on giving false evidence but owes a duty of confidentiality and cannot disclose the reason for their withdrawal.

Question 32

What duty does a solicitor owe to their client upon withdrawal?

Answer 32

The solicitor owes a duty of confidentiality and cannot disclose the reason for their withdrawal.

Question 33

What are the three things the court's legal advisor does when a defendant indicates a plea to EW offence?

Answer 33

1. Reads the charge to the defendant and checks if the solicitor received IDP. 2. Informs the defendant they may indicate their plea. 3. Asks the defendant to indicate their plea.

Question 34

What happens if a defendant indicates a guilty plea to EW offence in MC?

Answer 34

They are treated as having been tried summarily and convicted.

Question 35

What does the CPS representative outline to the magistrates after a guilty plea to EW offence in MC?

Answer 35

They outline the facts of the case and inform about any previous convictions of the defendant.

Question 36

What does the defendant's solicitor do after a guilty plea to EW offence in MC?

Answer 36

Makes a plea in mitigation.

Question 37

What do magistrates decide after a plea in mitigation for an EW offence?

Answer 37

They decide if their sentencing powers are sufficient or if the defendant should be sentenced by a Crown Court judge by assessing the overall seriousness of the offence through guideline sentences and aggravating/mitigating factors.

Question 38

What is the maximum sentence a magistrates’ court may pass?

Answer 38

6 months’ imprisonment for one either-way offence; 12 months for two or more.

Question 39

How do magistrates determine if their sentencing powers are sufficient following a GP?

Answer 39

By assessing the overall seriousness of the offence through guideline sentences and aggravating/mitigating factors.

Question 40

What happens if magistrates decide their sentencing powers are sufficient to sentence an EW offence in MC following a GP?

Answer 40

They either sentence the defendant immediately or adjourn for a pre-sentence report.

Question 41

What does s. 3 of the Powers of Criminal Courts (Sentencing) Act 2000 allow magistrates to do where their sentencing powers are not sufficient for an EW offence following a GP?

Answer 41

To commit the defendant to Crown Court for sentence if the offence is serious.

Question 42

What happens to a defendant committed to Crown Court for EW offence sentence following a GP?

Answer 42

They are remanded in custody or on bail.

Question 43

What is the effect of a guilty plea to EW offence for a defendant on bail from MC?

Answer 43

Magistrates are likely to grant them bail even if a custodial sentence is anticipated.

Question 44

What is the effect of a guilty plea for a defendant re EW offence in custody?

Answer 44

They are likely to remain in custody prior to the sentencing hearing.

Question 45

What are the three circumstances for sending a defendant who makes a NOT GUILTY plea to an EW offence to Crown Court for trial?

Answer 45

1. Related offence sent to CC for trial. 2. Charged jointly with another adult sent to CC. 3. Charged with a related offence with a youth defendant sent to CC.

Question 46

What must the MC do in all other cases except the 3 where D must be sent to CC, following a NGP, what must MC decide?

Answer 46

Determine whether the offence appears more suitable for summary trial or trial on indictment - i.,e. make a decision on allocation.

Question 47

What does the prosecution first do at during the PBV/allocation/sending procedure for EW offences?

Answer 47

Inform the court of the facts and the defendant’s previous convictions.

Question 48

What do magistrates consider during allocation for EW offences?

Answer 48

Representations from prosecution/defence re summary/indictment, adequacy of sentencing powers, and the Allocation Guideline - EW offences should be tried summarily unless it is likely court's Sps will be insufficient and court should assess likely sentence in light of facts alleged by CPS and considering SGs.

Question 49

What happens if the court decides the EW offence is suitable for trial on indictment?

Answer 49

The defendant is sent to the Crown Court.

Question 50

What happens if the court decides the EW case is suitable for summary trial?

Answer 50

The defendant can consent to summary trial or choose to be tried on indictment.

Question 51

What can a defendant request during the allocation hearing?

Answer 51

An indication of sentence regarding custodial or non-custodial likelihood.

Question 52

What happens if the defendant does not change their plea to EW offence to guilty?

Answer 52

The indication of sentence is not binding, and no sentence may be challenged based on it.

Question 53

What must the court ask if no indication of sentence is given?

Answer 53

Whether the defendant consents to summary trial or wishes to be tried on indictment.

Question 54

What happens if the defendant does not consent to summary trial for EW offence?

Answer 54

They must be sent to the Crown Court for trial.

Question 55

What happens if a defendant charged with 2+ offences indicates different pleas?

Answer 55

The magistrates will proceed with the allocation hearing for the not guilty plea.

Question 56

What do magistrates do if they accept jurisdiction for a guilty plea to EW offence?

Answer 56

They will either sentence immediately or adjourn until the trial of the not guilty plea.

Question 57

What are the s50A circumstances for sending an either-way offence straight to Crown Court?

Answer 57

1. Serious/complex fraud cases. 2. Cases involving children under certain conditions. 3. Related offences to indictable offences.

Question 58

What is the focus of this part of the hearing (s50A)?

Answer 58

The allocation decision, where the magistrates’ court decides if they have sufficient sentencing powers to deal with the case.

Question 59

What happens if the magistrates’ court believes its powers are inadequate to sentence an EW offence?

Answer 59

They will send the defendant to the Crown Court.

Question 60

What occurs if the magistrates’ court believes they have sufficient powers to sentence EW offence?

Answer 60

The defendant will be given an unfettered choice as to trial venue.

Question 61

What is the exception to the defendant's choice of trial venue in EW offences?

Answer 61

If there is a co-accused who elects trial on indictment.

Question 62

What is 'Sending without allocation'?

Answer 62

It refers to the process under s 50A Crime and Disorder Act 1998, possible in limited circumstances.

Question 63

In what circumstances can 'Sending without allocation' occur?

Answer 63

In serious/complex fraud cases, some cases involving children, and an either-way offence linked to an offence triable only on indictment.

Question 64

What extra material is served by CPS as part of IDPC where D has been released on bail after being charged and CPS does not anitcipate GP at first hearing?

Answer 64

Unless good reason not to, CPS should make available: - summary of circ of offence and account by D in interview, - statements CPS think important to plea/CM - indication of medical/other expert CPS likely to adduce - any info re special measures, BCE, HSE

Question 65

When considering the adequacy of its sentencing powers when dealing with two or more offences, the MC should consider its SPs in light of what?

Answer 65

in the light of the maximum aggregate sentence the magistrates could impose for all the offences taken together, if the charges could be joined in the same indictment or arise out of the same or connected circumstances

Question 66

If MC decides an EW offence following nGP is more suitable for trial on indictment, what is done with D? What if more suitable for summary trial?

Answer 66

Sent to CC forthwith If ST, must explain to D that: - case appears suitable for ST - D can consent to be tried S or chose to be tried on I - if consent to be tried S and convicted, may be committed to cC for sentence.

Question 67

After MC indicates whether suitable for summary/indictment trial, what can D request?

Answer 67

An indication of sentence (custodial or not if tried summarily and plead guilty). A custodial sentence cannot be imposed unless indicated at this point; indication is not binding; no sentence can be challenged or appealed on grounds of inconsistency with indication. Court only gives indication if D requests one. If they do, court should ask D if they want to reconsider plea. If D wants to change plea, treated as being tried summarily and pleading guilty. If doesn't plead guilty, indication doesn't bind court. NB: CPS can make an application for summary trial to be sent to CC. Only grnated if satisfied MC doesn't have sentencing powers.

Question 68

If D makes a mixed plea, how to magistrates proceed with allocation hearing?

Answer 68

In respect of the NG plea. IF MC jurisdiction is accepted, either mag sentence D immediately for GP offence, or adjourn sentence until end of NG plea offence trial. If decline jurisdiction, mag will send offence of NG plea to CC. Mag then have choice re what to do with offence re GP - can sentence themselves or commit to CC for sentence.

Question 69

When is EW offence sent to CC without allocation?

Answer 69

Serious or complex fraud (s.51B CDA 1998) – The DPP may give notice that the case is of such seriousness/complexity that it must be sent straight to the Crown Court for management without delay. Cases involving children (s.51C CDA 1998) – Where a child witness is involved in certain specified offences (e.g. assault, child cruelty, sexual offences, kidnapping), the case is sent directly to the Crown Court to avoid prejudice to the child’s welfare. Related either-way offences (same defendant) – If a defendant is sent to the Crown Court for an indictable-only offence (or one covered by s.51B/C), any related either-way offences must also be sent at the same time (or later if they arise on a subsequent occasion). Related either-way offences (co-defendant) – If one defendant is sent to the Crown Court for an indictable-only (or s.51B/C) offence, then related either-way charges against another defendant must also be sent.

Question 70

What are the 5 factors to consider whether it is in the interests of justice for legal aid to be granted?

Answer 70

(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.