criminal practice first hearing

Question 1

what is expected from a first hearing?

Answer 1

a presumption that a plea will be entered

a presumption of same day sentence if a guilty plea

Question 2

for offences triable only by indictment - what happens at the first hearing?

Answer 2

no plea is entered - the case is referred to the high court were the plea and trial preparation hearing will take place

Question 3

what type of offence is low value shop theft?

Answer 3

summary only if the sum or aggregate sum of offences is under £200.

if a non-guilty plea, still given the opportunity to elect trial at crown court.

Question 4

what type of offence is criminal damage?

Answer 4

if less than £5 000 - treated as a summary offence, unless caused by arson (aggravated)

cannot elect trial at the crown court

Question 5

what should the court duty solicitor sort out for the defendant?

Answer 5

public funding from the Legal Aid Agency

the solicitor should, if applicable, assist the defendant in applying for a representation order

Question 6

what are the two tests for a representation order?

Answer 6

interest of justice test

means test

Question 7

what is included in the interest of justice test?

Answer 7

1 - if the defendant is likely to lose liberty, livelihood, or suffer serious damage to their reputation

2 - if the proceedings involve a substantial question of law

3 - if an individual may be unable to understand the proceedings or to state their own case

4 - where it involves the tracing interviewing or expert cross examination of witnesses

5 - if it is in the interest of another person for the defendant to be represented

Question 8

what is included in the means test

Answer 8

some pass it automatically

• income support, income based kobseeker’s allowance, state pension credit, universal credit
• applicants under the age of 18

Question 9

what is the scope of a representation order?

Answer 9

covers all the work done by a solicitor in relation to the case

• may cover an appeal to the crown court
• for an either way offence sent to the high court, the RO covers the cost of high court proceedings

Question 10

what are the possible pleas for a summary offence at the first hearing at the Mags

Answer 10

guilty plea - sentencing / adjournment before sentencing (solicitor can make a plea in mitigation)

guilty plea on a basis - accepting liability on a different set of facts (adjournment for a Newton hearing)

not guilty plea - fixing a date for trial + CM directions

Question 11

what are the possible pleas for an either way offence

Answer 11

guilty - either sentencing in Mags, or committed to Crown Court for sentencing

not guilty - magistrates will determine if defendant is to be tried in Mags or CC

Question 12

what is the main role of the solicitor during the first hearing

Answer 12

obtaining funding from the LAA

obtaining details of the prosecution case from the CPS

statement from the client

advise the client on the strength of the prosecution evidence and the plea the client should enter

informing the magistrates if the client wants case heard in the Mags or the CC

Question 13

prior to the client making a plea, what should the prosecution do?

Answer 13

the prosecution must provide the initial details of the prosecution’s case.

Question 14

what should the IDPC include?

Answer 14

1 - summary of the circumstances of the offence

2 - account given by the defendant in interview

3 - written statements or exhibits the prosecutor has available and considers material to plea or to its allocation

4 - defendant’s criminal record

5 - victim impact statement

The more time there is between arrest and first hearing (and bail in some cases) - the more information the IDPC must include (which makes sense)

Question 15

what should be considered when advising a client on their plea?

Answer 15

1 - C’s response to the prosecution case (points of dispute, accuracy of transcripts and evidence, grounds to exclude)

2 - the strength of the case against the client

3 - if it is needed to obtain more evidence to support the client’s case

4 - election of CC or Mags

Question 16

whose decision is it to enter a plea ?

Answer 16

ultimately it is the client’s decision - the solicitor should advise and give the necessary information for the client to form their opinion.

Question 17

when advising on trial venue, what are the positives and negatives of a CC hearing?

Answer 17

positives

• greater chance of acquittal
• better procedure for challenging the admissibility of evidence
• more time to prepare for trial

negatives

• long process
• if conviction - higher cost
• greater sentencing powers by the judges
• possible that participation to the cost of the defence
• obligation to serve a defence statement

Question 18

positives and negatives of the Mags for hearing

Answer 18

positives

• cheaper
• quicker
• no participation to legal aid costs
• no need to write a defence statement
• more informal process than the crown court

negatives

• bias towards police?
• limited procedure to exclude evidence based on inadmissibility
• magistrates will determine both questions of law and fact (whereas a jury determines based on admissible facts)

Question 19

what is the procedure for indicating a plea?

Answer 19

1 - charge read out by legal adviser (check if IDPC has been received)

2 - indicate the plea to defendant and consequences of plea

3 - asks to indicate the plea

Question 20

what is the implication of a guilty plea for an either way offence?

Answer 20

defendant is treated as having been tried summarily and convicted

the magistrates can either

• sentence on the day
• adjourn for sentencing
• commit to the CC for sentencing

(after deciding whether their sentencing powers are adequate to deal with the offence having regard to any aggravating factors, previous conviction, and the plea in mitigation)

Question 21

for an either way offence, when should a defendant be committed to the crown court for trial after a not guilty plea?

Answer 21

if they are sent to the CC for a related offence

if charged jointly with another adult defendant who is sent to the CC for trial

if charged jointly or with a related either way offence with a youth sent to the. CC

Question 22

in cases of a not guilty plea for an either way offence - what will the magistrates consider when deciding whether or not to commit to the CC for trip?

Answer 22

representations from prosecution or defence as to the adequate court

whether sentencing powers are adequate

the allocation guidelines of the sentencing council

court should consider its potential sentencing powers in the light of the maximum aggregate sentence the magistrates could impose for all the offences taken together

Question 23

if, upon a not guilty plea, the magistrates decide that an either way offence is suitable for summary trial - what happens?

Answer 23

the defendant can consent to be tried summarily, or they can choose to be tried on indictment

Question 24

what is the procedure for a sentence indication?

Answer 24

Defendant - can request
- Indication of sentence
○ Custodial
Non-custodial sentence

it is a non binding indication

if the plea, after the sentence indication, charges to guilty, a non-custodial order is usually binding

if the plea does not change, it remains non-binding

Question 25

are there any recourse for the prosecution with regards to allocation?

Answer 25

yes, after the plea, the prosecution and defence can make representations as to where trial should take place after allocation for trial, the prosecution (not the defence) can make an application before trial begins for an offence to be tried by the crown court (the mags need to agree that their sentencing powers are inadequate).

Question 26

what are certain cases where there is no allocation procedure?

Answer 26

serious fraud cases (DPP notice) - crown court where children need to give evidence, or proceedings may prejudice well being of a child - CC joint trials where ones joint defendant is sent to the crown court