First Hearings Before the Magistrates' Court

What are the categories of criminal offences?

1. Triable only on indictment;

2. Triable either way;

3. Triable only summarily.

What is an offence triable by indictment?

Most serious offences.

Example - Rape, murder, GBH, manslaughter, aggravated burglary, blackmail, kidnap.

1st appearance before MC. Do not need to enter plea.

Send straight to Crown Court for trial (s. 51, Crime and Disorder Act 1988)

What is an ‘either-way’ offence?

Dealt with either by MC or CC.

1st appearance before MC. Decide if send to CC or keep case.

D expected to enter plea at this stage.

If MC keep then D has two rights:

1. Elect to trial by judge + jury at CC; or

2. Consent to summary trial

What are some examples of either-way offences?

Burglary, handling stolen goods, going equipped to steal, inflicting GBH / wounding, sexual assault, threats to kill, criminal damage, dangerous driving, possession of offensive weapon.

How does ‘low-value shop theft’ operate as an atypical either-way offence?

MC Act 1980 - Low-value shoplifting is summary offence.

Provided good(s) not above £200.

Treat as summary-only.

Unless D pleads not guilty and opts for CC trial by judge + jury.

How does ‘criminal damage’ operate as an atypical either-way offence?

MC Act 1980 - Criminal damage of £5000 to property is summary offence.

Unless caused by fire or to memorial.

Then always considered either-way offence.

How is a ‘memorial’ defined under the Police, Crime, Sentencing and Courts Act 2022’?

Damage to:

• A building / structure or any other thing erected or installed on land;

• A garden or any other thing planted or grown on land;

• Where it has a commemorative purpose to any dead or living person / animal.

What is a ‘summary offence’?

Least serious form of criminal offence.

Dealt with by MC.

Examples - Common assault, taking vehicle without consent, road traffic offences.

How is solicitor work organised and paid for when at the police station?

Solicitors part of duty solicitor scheme for particular station.

Names entered onto rota.

Paid fixed fee via Police Station Advice and Assistance Scheme.

Irrespective of complexity of case, length of time etc.

How is solicitor work organised and paid for at the MC?

Similar to police station.

Solicitors assigned to particular court.

Member of rota. Attend on specific day to represent those without a solicitor.

Claim costs from ‘Legal Aid Agency’ (LAA) under the ‘Advocacy Assistance (Court Duty Solicitor) Scheme’.

I am applying for legal aid in the MC.

What test must I prove to receive aid?

1. Prove in the interests of justice; and

2. Lack means to pay.

Submit Form CRM14 application.

If don’t pass means test automatically; fill out financial statement (CRM15).

What factors are considered under the ‘interests of justice’ limb in the test for legal aid?

(A). Whether individual likely to lose liberty or livelihood or suffer serious damage to reputation.

(B). Whether determination of any matter may involve consideration substantial question of law.

(C). Whether individual may be unable to understand proceedings or state own case.

(D). Whether proceedings involve tracing / interviewing witnesses, cross examination.

(E). Whether in interests of another that individual be represented.

Replicated on CRM14. Solicitor fill out on behalf of client.

“…individual likely to lose liberty”

What details does the solicitor include on the CRM14 form in this section?

Client’s criminal record. If checkered then increase risk custodial sentence.

Detail potential prison time for present offence (i.e. apply strictest interpretation of sentencing guidelines).

Mention likelihood of being denied bail.

“…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.”

What details does the solicitor include on the CRM14 form in this section?

Client subject to suspended sentence from earlier offence.

Current offence could lead to recommittal to prison.

Sch 12, para 8, CJA 2003

“It is likely that I will lose my livelihood”.

What details does the solicitor include on the CRM14 form in this section?

Client pleads not guilty. Currently employed.

Apply where likely to face prison sentence or conviction leads to loss of employment prospects.

Example - Bus driver charged road traffic offence.

“It is likely that I will suffer serious damage to my reputation”.

When is this relevant and to whom?

Applicable to not guilty pleas only.

Disgrace of conviction worse than direct effect of sentence.

Applies to D where loss of trust and confidence.

Only if minor offence; no previous convictions.

Example - Vicar, local councillor, school governor.

“A substantial question of law may be involved…”

When is this relevant? What are some examples of ‘substantial questions’?

Apply only to not guilty pleas.

(A). Dispute identification evidence. Court must apply Turnbull guidelines.

(B). Possibility of adverse inferences from CJPOA 1994.

(C). Prosecution or defence are seeking to admit hearsay evidence under CJA 2003.

(D). Defence seeking to use ss. 76, 78 of PACE 1984 to exclude confession.

(E). Prosecution want to adduce at trial evidence of D’s previous convictions via s. 101, CJA 2003.

“I may not be able to understand the court proceedings or present my own case”.

When is this relevant and to whom?

Applies to guilty or not guilty pleas.

Include:

(A). Physical / mental disability

(B). Poor knowledge of English

(C). Age (too young / old)

(D). Vulnerability

“It is in someone else’s interests that I am represented”

Apply where inappropriate for D to represent himself.

Why? Because may need cross-examine prosecution witnesses.

Difficult if sexual assault or violent crime.

Especially so if child abuse.

Who gets legal aid automatically without needing to satisfy means test?

1. Applicants receiving income support, JSA, guaranteed state pension credit, UC, income-based employment + support allowance.

2. Under 18yo

What do you supply under CRM15 as part of the means test?

Payslips, tax returns (own business), bank statements, mortgage statements, child care costs.

What does the LAA deduct from your gross annual income to determine your disposable income for the means test?

• Tax and national insurance;

• Annual housing costs;

• Annual childcare costs;

• Annual maintenance to former partners / children;

• Adjusted annual living allowance.

True or False: Applicants have a right to appeal a refusal of legal aid because of a failure to pass the means test.

False.

Can apply for a ‘hardship review’ via Form CRM16.

Show genuinely cannot fund own defence.

Does legal aid work in the same way in both MC and CC?

No.

Legal aid either free or not available at MC.

Legal aid available, but subject to D contribution at CC.

If denied legal aid under the ‘interests of justice’ limb can I appeal this decision?

Yes.

Resubmit CRM14 with new information.

Or direct appeal to court.

What is the scope of a representation order for a summary-only or either-way matter?

Covers all of solicitor’s work in MC and possible appeal to CC.

For an either-way offence, if the MC declines jurisdiction or the D opts for trial at CC - does the representation order cover CC proceedings?

Yes.

Will do so automatically.

For an either-way offence, if the D has failed the MC means test and the case is then passed to the CC - When will legal aid begin and are they entitled to it?

Funding will only start until day after ‘sending hearing’.

AND

Only if D passes means test in CC.

True or False: People with the means must pay subsequently for free legal advice obtained at the police station.

False.

Legal advice at police station always free and independent.

Can you give a brief overview of the MC handling a summary offence?

D enters plea.

Guilty - CPS provide case facts; copy D’s criminal record. D’s legal rep argues mitigation. MC sentences or adjourns for further probation reports.

Not guilty - Fix date for trial; issue case management directions.

ALSO - If adjourning, irrespective of guilty / non-guilty plea, must decide granting of bail.

What is a ‘Newton hearing’?

D pleads guilty to offence.

But disputes specific factual allegations.

Hearing to clarify matters for sentencing.

Can you give a brief overview of the MC handling an either-way offence?

Guilty - MC decides if sentencing powers sufficient or need to refer to CC.

Adjourn for pre-sentence probation report or for CC sentencing hearing.

Not guilty - MC decide if D to be tried in MC or CC (‘plea before venue and allocation procedure’).

If adjourned - decide bail.

NOTE - MC won’t consider existing suspended sentences when deciding if sentencing powers suitable for current charge.

True or False: The MC will decide issues of bail even where the D is charged with an indictable offence and is to be tried at the CC.

True.

Preliminary hearing + sent to CC.

BUT - Always decide on bail issue.

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

(A). Obtain LAA funding;

(B). Obtain prosecution case details from CPS;

(C). Take client statement;

(D). Advise client on strength prosecution evidence and plea Client should enter;

(E). Either-way offence. Explain possibility of MC or CC. Advantages and disadvantages.

(F). Make application for bail where necessary.

When determining financial eligibility for the means test to legal aid, is capital taken into account?

No.

Example - Receive £10,000 inheritance. Not counted under test.

Only income.

I’ve been brought before the MC after being charged with an indictable offence.

What does not happen?

No plea is entered.

No Initial Details of the Prosecution Case (IDPC) is given.

No submission of no case to answer if submitted.

True or False: A defendant who intends to plead guilty cannot meet the interests of justice test for a representation order.

False.

Can rely on test if argue likely to lose livelihood or suffer serious damage to reputation.

Only those in formal police custody and not volunteers are entitled to free and independent legal advice at the police station.

Is this correct?

No.

Free + independent legal advice available to all in attendance.

Am I under an obligation to submit a plea before the MC?

If not, how will the MC treat my ‘non-plea’?

No obligation to submit plea before MC.

MC treat as not guilty plea.

True or False: Allocation at the MC occurs when the defendant pleads pleads guilty to the offence.

False.

Allocation between courts occurs where the defendant pleads not guilty.

MC then decide if triable at MC or CC.

If plead guilty - only decide if commit to sentence at MC or CC.

If a defendant appears before the MC charged with an indictable offence and an either-way offence that are based on the same facts and occur within the same timeframe - What must they do?

Both offences are classed ‘linked’ or ‘related’ offences under s 50A(3)(a), CDA 1998.

Must send to CC.

Cannot be resolved at MC level.

If not linked / related - MC can sentence D at MC or commit to CC (if plead guilty).