Topic 4 procedure in mags, allocation and sending to CC for sentence
Syllabus Area 4
Procedure in the magistrates courts, allocation for trial and sending to the crown court for sentence
The rules relating to the provision of initial details of the prosecution case
Disclosure
the prosecutor, as soon as practicable (and, in any event, no later than the beginning of the day of the first hearing), to provide to the court 'initial details' of the prosecution case.
These initial details of the prosecution case do not have to be supplied automatically to the accused; rather, if the accused requests the initial details, the prosecutor must serve them as soon as practicable (and, in any event, no later than the beginning of the day of the first hearing);
if the accused does not request those details, the prosecutor must make them available to the accused at, or before, the beginning of the day of the first hearing
Where, immediately before the first hearing in the magistrates' court, the accused was in police custody for the offence charged-
initial details comprise a 'summary of the circumstances of the offence', and the accused's criminal record
If the accused is not in custody
initial details comprise: a summary of the circumstances of the offence; any account given ; written witness statements (including exhibits) ; the accused's criminal record (if any); and any available statement of the effect of the offence on victims or their family (or on others).
It is 'essential' that initial details are 'sufficient to assist the court to identify real issues and give directions for an effective magistrates' court or Crown Court trial'.
Failure to comply
no specific sanction if the prosecution fails to supply the required initial details.
open to the magistrates' court to make a direction requiring the prosecution to comply.
where the prosecutor wants to introduce information contained in a document listed but has not served that document on the accused or made that information available:
- In such cases, the prosecutor will not be permitted to 'introduce that information unless the court first allows the defendant sufficient time to consider it'
Preliminary hearings and entering a plea in the magistrates’ court, including ambiguous pleas
Pre-trial hearings by television link
the court may, by a direction, require or permit a person to take part in eligible criminal proceedings through a live audio link or a live video link.
it is 'rarely appropriate for a youth to be sentenced over a live link'
preliminary hearings such as bail applications 'will generally be suitable for remote attendance by all advocates'.
The court has to consider:
any need for that person to attend in person;
the views of that person;
the suitability of the facilities at the place where that person would take part in the proceedings via a live link;
whether that person would be able to take part in the proceedings effectively;
where the person is a witness,
the importance of his or her evidence to the proceedings,
and whether the direction might tend to inhibit any party to the proceedings from effectively testing the witness's evidence;
and the arrangements for members of the public to see or hear the proceedings as conducted in accordance with the direction.
Considerations for sentencing hearings
the potential penalty;
ensuring the explanations of sentence can be given satisfactorily for all participants and for the public;
and the preferences of the maker of any Victim Personal Statement which is to be read'.
Trial in the absence of the accused
If the accused fails to appear for the trial in the magistrates' court,
the case may (if the accused is under 18) or
must (if the accused has attained the age of 18 and it does not appear to the court to be contrary to the interests of justice to do so)
proceed in the accused's absence
where the prosecution commenced by issue of a summons or requisition, it must be proved to the satisfaction of the court that either the summons was served a reasonable time before the hearing or the accused appeared on a previous occasion to answer the charge.
Preparation for trial hearings
a magistrates' court must conduct a 'preparation for trial hearing'
The court may conduct one or more further pre-trial case management hearings if
the court anticipates a guilty plea; or
it is necessary to conduct such a hearing in order to give directions for an effective trial; or
such a hearing is required to set ground rules for the conduct of the questioning of a witness or defendant
if the accused is present, the court must:
satisfy itself that the accused understands that credit will be received for a guilty plea
take a plea from the accused (or, if no plea can be taken, find out whether the accused is likely to plead guilty or not guilty); and
unless the accused pleads guilty, satisfy itself that the accused understands that, at the trial,
he or she will have the right to give evidence after the court has heard the prosecution case;
if the accused does not attend, the trial is likely to take place in his or her absence; and
if released on bail, failure to attend court when required to do so is an offence which may lead to arrest and punishment, and that bail may be withdrawn.
Pre-trial rulings
applies to cases that are to be tried summarily where the accused has entered a not guilty plea
the magistrates may decide any question as to the admissibility of evidence and any other question of law relating to the case
Such rulings may be made only if the court has given the parties an opportunity to be heard and it appears to the court that it is in the interests of justice to make the ruling
If the accused is unrepresented, he or she must be given the chance to apply for legal aid
Pre-trial rulings may be made on the application of the defence or prosecution, or of the court's own motion
a pre-trial ruling is binding until the case against the accused (or, where there is more than one, against each of them) is disposed of
the court may (on application by a party or of its own motion) discharge or vary a pre-trial ruling provided it appears to the court that it is in the interests of justice to do so, and the court has given the parties an opportunity to be heard.
A party can apply for the ruling to be discharged or varied only if there has been a material change of circumstances since the ruling
Essential case management
Where the accused pleads not guilty, the parties must, from the start, identify the disputed issues and tell the court what they are; if the parties do not supply this information, the court must require them to do so.
The 'live' evidence at the trial should be confined to those issues, and so only witnesses 'who are really needed in relation to genuinely disputed, relevant issues should be required to attend'.
The court's directions must include a timetable for the progress of the case, and the parties are required to warn the court 'promptly' if any problems (e.g., relating to witnesses) are anticipated
Ambiguous / equivocal pleas
If an accused purports to enter a plea of guilty but, either at the time of pleading or subsequently in mitigation, qualifies it with words that suggest the accused may have a defence, the court must not proceed to sentence on the basis of the plea but should explain the relevant law and seek to ascertain whether the accused genuinely intends to plead guilty.
If the plea cannot be clarified, the court should order a not guilty plea to be entered on the accused's behalf
Should the court proceed to sentence on a plea which is imperfect, unfinished or otherwise ambiguous, the accused will have a good ground of appeal.
The factors the defendant should be aware of in deciding whether to elect Crown Court trial
Defence statements
once the case is sent to the Crown Court and the prosecution case is served, the accused must give a defence statement to the court and the prosecutor.
In cases tried summarily - there is no obligation on the defence to provide a defence statement.
once the prosecutor has complied with the duty to disclose unused material the accused may give the prosecutor and the court a defence statement
In the absence of a defence statement, the accused cannot make an application for specific disclosure under s. 8, and the court cannot make any orders for disclosure of unused prosecution material
Where the accused chooses to serve a defence statement this must be done within 14 days from the date on which the prosecutor complies with initial duty of disclosure
court has power to extend this time-limit on the application of the accused
Duty to give reasons
the court, if it convicts the accused (or makes a hospital order instead of doing so), must give 'sufficient reasons to explain its decision'.
the justices are not required to state their reasons in the form of a judgment or to give reasons in any elaborate form
If a party wishes to obtain more detailed reasons, a request can be made to the magistrates to state a case.
If the court acquits the accused, it may (but is not required to) give an explanation of its decision
Determining allocation (mode of trial) including the special rules for criminal damage and low value shoplifting cases
when an adult is charged with an either way offence-
The first stage ('plea before venue') ascertains the accused's intended plea , if the intended plea is not guilty:
the second stage is to determine whether the case will be tried in a magistrates' court or in the Crown Court
Plea before venue
whenever a person who has attained the age of 18 appears before a magistrates' court charged with an either way offence
procedure must be complied with before any evidence is called for purposes of a summary trial or the case is sent for Crown Court trial, and should take place in the presence of the accused
Procedure:
Charge is written down and read to the accused
The court explains that the accused may indicate whether the plea would be guilty or not guilty if the offence were to proceed to trial. The court should explain that, if the accused indicates a plea of guilty, the proceedings will be treated as a summary trial at which a guilty plea has been tendered, and that the accused may be committed for sentence if the court is of the opinion that its powers of punishment are inadequate
Asks for indication of plea
If the accused indicates a guilty plea, the court proceeds as if the accused had pleaded guilty at summary trial and so moves on to the sentencing stage.
If the accused indicates a not guilty plea, an allocation ('mode of trial') hearing must take place. If the accused fails to give an indication of intended plea, the court will regard this as an indication of an intention to plead not guilty and so will go on to determine allocation
Allocation : Determination of mode of trial
Where the accused has indicated an intention to plead not guilty to an either way offence (or has failed to give an indication as to plea), the court must proceed to determine allocation
The court affords Pros and Defence opportunity to make representations as to which is more suitable. At this stage pros must also be given opportunity to inform of any previous convictions
Court must then determine which is more suitable considering:
Whether mags sentencing powers are adequate
Any representations made by pros or accused
Allocation guidelines
If it appears to the court that summary trial is more appropriate, the court explains to the accused that:
such is the court's view, and that the accused can either consent to be tried summarily or elect to be tried on indictment in the Crown Court; and
if the accused is tried summarily and convicted, the magistrates may commit the accused to the Crown Court for sentence if they are of the opinion that greater punishment should be inflicted than they have power to inflict
Outcomes
summary trial of an either way offence is possible only if the magistrates' court and the accused both agree to summary trial.
If the magistrates decline jurisdiction, the case will be sent to the Crown Court for trial;
if the magistrates accept jurisdiction but the accused elects trial on indictment, the case will be sent to the Crown Court for trial
Indication of sentence
The accused may request that the magistrates indicate whether, if the accused were to be tried summarily and were to plead guilty
The magistrates are not obliged to give such an indication
If the court does give an indication of sentence, it must ask the accused whether he or she wishes on the basis of the indication, to reconsider the indication of plea which was given
If the accused does wish to do so, the court must ask for a fresh indication of intended plea, and so the 'plea before venue' stage is repeated
If the accused indicates an intention to plead guilty following an indication of sentence, this is regarded as a guilty plea and the magistrates' court will proceed to sentence, if necessary adjourning for a pre-sentence report; in such a case, a custodial sentence will be available only if such a sentence was indicated by the court
Where an indication of sentence is given and the accused does not choose to plead guilty on the basis of it, the sentence indication is not binding on the magistrates who later try the case summarily, or on the Crown Court if the accused elects trial on indictment
Presence of the accused
The accused must generally be present at the 'plea before venue' and when allocation is determined
the 'plea before venue' hearing may take place in the absence of the accused if:
the accused is represented by a legal representative; and
the court considers that, by reason of the accused's disorderly conduct before the court, it is not practicable for proceedings under s. 17A to be conducted in the presence of the accused; and
the court considers that it should proceed in the absence of the accused.
In such a case, the representative is asked to indicate whether the accused intends to plead guilty or not guilty
The allocation hearing can take place in the absence of the accused under either s. 18(3) or s. 23.
Under s. 18(3),
by reason of disorderly conduct before the court, it is not practicable for the proceedings to be conducted in the presence of the accused. Where there is a legal representative present in court, the representative speaks on behalf of the accused
(b) Under s. 23,
by a legal representative who signifies to the court that the accused consents to the mode of trial proceedings being conducted in the absence of the accused, and the court is satisfied that there is good reason for the proceedings being so conducted
The court has the power to proceed with the plea before venue hearing or, as the case may be, the allocation hearing in the absence of the accused where he or she does not appear at the hearing, and:
any one of these four conditions is met:
a legal representative of the accused is present
a legal representative of the accused is present at the hearing, and the court does not consider that there is an acceptable reason for the accused's failure to attend;
it is proved to the satisfaction of the court that notice of the hearing was served on the accused within what appears to the court to be a reasonable time before the hearing,
the accused has appeared on a previous occasion to answer the charge
The court is satisfied that it is not contrary to the interests of justice to proceed in the absence of the accused.
Reason for committal: legitimate expectation
The discretion of the magistrates to commit for sentence is subject to the general principle of 'legitimate expectation
If the offender has been led to believe, whether expressly or by implication, that the magistrates will pass sentence, the offender should not subsequently be committed for sentence, whether by the same or a differently constituted bench.
Binding effect of indication of sentence
Where the court gives an indication of sentence, and the accused then indicates a guilty plea, no court (whether a magistrates' court or not) may impose a custodial sentence for the offence unless such a sentence was indicated in the indication of sentence'
an indication of a non-custodial sentence does not oust the power of the court to commit for sentence or the power of the Crown Court to impose an extended sentence
Indication of not guilty plea: Magistrates decision whether to accept jurisdiction
If the accused indicates a not guilty plea, the court must consider whether to offer the accused the opportunity to consent to summary trial.
The most important consideration for the magistrates is whether the sentencing powers of the magistrates would be adequate
Where the accused is charged with more than one offence, the magistrates are required to look at the totality of the allegations, and not at each offence in isolation.
Thus, the magistrates can, and should, decline jurisdiction if they take the view that their sentencing powers are insufficient to deal with the totality of the offending, even if each offence taken by itself would not merit a harsher sentence than the magistrates could impose for that individual offence.
The maximum penalty which magistrates can impose on summary conviction for an either way offence is six months' imprisonment and/or an unlimited fine
Allocation guidelines
In general, either way offences should be tried summarily unless either:
The outcome would clearly be a sentence in excess of the courts powers, taking into account personal mitigation and any potential reduction for guilty plea
For reasons of unusual legal, procedural or factual complexity, the case should be tried in the CC
If the magistrates are uncertain of the adequacy of their sentencing powers, they should err on the side of offering the accused the option of summary trial.
Where the court decides that the case is suitable to be dealt with in the magistrates' court, it must warn the accused that all sentencing options remain open
Power to commit under SA 2020 s14
where the court is of the opinion 'that the offence or the combination of the offence and one or more offences associated with it was so serious that the Crown Court should, in the court's opinion, have the power to deal with the offender in any way it could deal with him if he had been convicted on indictment'.
In borderline cases, the magistrates' court should consider obtaining a pre-sentence report before deciding whether to commit to the Crown Court for sentence.
Allocation where there are co-accused
where the court is dealing on the same occasion with two or more accused who are charged jointly with an offence that can be tried in the Crown Court,
the court must explain that, if one of them is sent to the Crown Court for trial,
the other(s), if they do not wish to plead guilty, must also be sent for trial in the Crown Court for the offence that is jointly charged and for any other offence which the court decides is related to that offence.
This is so even if the court has, by then, decided that the case against the other accused is suitable for summary trial.
Prosecution influence on allocation decision
Summary trial may be vetoed either by the court or by the accused, but not by the prosecution.
The most the prosecution can do is to make representations that trial on indictment would be more appropriate having regard to the gravity of the offence.
However, where either
(a) the case involves fraud of such seriousness or complexity that it is appropriate that the management of the case should without delay be taken over by the Crown Court, or
(b) the accused is charged with an offence which involves an assault on, or injury or a threat of injury to, a person or is charged with certain other specified offences and a child will be called as a witness at the trial and, for the purpose of avoiding any prejudice to the welfare of the child, the case should be taken over and proceeded with without delay by the Crown Court,
then the prosecutor can serve a notice
Special procedure on criminal damage charges
If the accused is charged with a 'scheduled offence', the allocation procedure must be preceded by consideration of the value involved in the offence
Depending on what that value is, the accused may be deprived of the right to elect trial on indictment, notwithstanding that the offence is otherwise triable either way.
Value involved
It must then consider, having regard to any representations made by the prosecution and defence, whether the 'value involved' in the offence exceeds the 'relevant sum', currently £5,000
If the property was allegedly destroyed or damaged beyond repair, the value involved is what it would probably have cost to purchase a replacement in the open market at the time of the offence;
if the property was repairable, the value involved is the probable market cost of repairs or the probable market replacement cost, whichever is the less
the value on which the magistrates must focus is the value of the damage to the property itself; they should not concern themselves with any consequential losses which might have been sustained as a result of the damage.
Where, for any reason, it is not clear to the court whether the value involved does or does not exceed the relevant sum, it must explain to the accused that they may consent to summary trial and that, if consent is given, a summary trial will take place and liability to imprisonment or a fine will be limited in accordance with the provisions
The accused is then asked for consent. Depending on the accused's response, the court either proceeds to summary trial or embarks on the ordinary procedure for determining mode of trial
Procedure for determining value
The court is required to have regard to the 'representations' of the parties when considering the value involved in a criminal damage offence
This does not entail an obligation to hear evidence.
The court has a discretion to hear evidence on the question of the value involved if it wishes to do so
In a case where there is real difficulty in arriving at an appropriate basis for calculating the value involved, the prosecution are entitled to say that they will not seek to prove that the accused caused any more damage than can be established with clarity.
Two or more criminal charges
If the accused is 'charged on the same occasion with two or more scheduled offences and it appears to the court that they constitute or form part of a series of two or more offences of the same or a similar character', then the relevant consideration is the total value involved in the offences
The accused will retain the right to trial on indictment if the value of the offences added together exceeds the relevant sum (£5,000), even if the value of each offence taken individually was under the relevant sum.
An accused may be charged with offences on separate occasions at a police station but, if the first court appearance for those charges is at the same hearing, then the accused is charged on the same occasion with those offences and their value can be aggregated.
Special provision for low value shop lifting
low-value' shoplifting (defined as shoplifting where the value of the stolen goods does not exceed £200) is triable only summarily.
Where an accused who has attained the age of 18 is charged with low-value shoplifting, the court must, before the summary trial of the offence begins, give the accused the opportunity of electing Crown Court trial for the offence; if the accused elects to be so tried, the magistrates' court must send the case to the Crown Court for trial.
Unlike the special procedure for criminal damage, in the case of low-value shoplifting the accused retains the right to elect Crown Court trial.
Committal for sentence
S14
applies where a magistrates' court has convicted an offender of one or more either way offences and the court takes the view that the seriousness of the offence(s) is such that its sentencing powers are inadequate, in that the offence is so serious that the Crown Court should have the power to deal with the offender in any way it could deal with the offender if he or she had been convicted on indictment
In such a case, the magistrates' court may commit the offender
The Crown Court can then pass sentence on the offender as if convicted on indictment, and so the limitations on the magistrates' sentencing powers do not apply
S18
where the accused has indicated a guilty plea to an either way offence (and so is deemed to have pleaded guilty to it) and is also sent for trial for one or more related offences, the magistrates may commit the offender to the Crown Court for sentence in respect of the either way offence to which he or she has pleaded guilty.
Thus, the two charges must be founded on the same facts or must be, or be part of, a series of offences of the same or a similar character.
Sending indictable offences to the CC
All adults accused in criminal cases make their first appearance in the magistrates' court.
If the offence is triable only in the Crown Court, the accused must be sent to that court for trial.
If it is triable either way, the accused will be sent to the Crown Court for trial only if the accused indicates, or is deemed to indicate, a not guilty plea at the 'plea before venue' hearing and the allocation
Sending Cases to the Crown Court Under the Crime and Disorder Act 1998, s. 51
Where an adult appears or is brought before a magistrates' court charged with an offence to which these provisions apply, the court must send the accused 'forthwith' to the Crown Court for trial for the offence.
these provisions apply where the offence is triable only on indictment, or where the offence is triable either way and the allocation hearing has resulted in a decision in favour of trial on indictment, either because the magistrates have declined jurisdiction or else the accused has elected CC
Related either way and summary offences
where the court sends an adult for trial under s. 51(1), it must also send the accused to the Crown Court for trial for any either way or summary offence with which the accused is charged and which appears to the court to be related to the offence being sent to the Crown Court under s. 51(1) (provided that, if the offence is a summary offence, it is punishable with imprisonment or disqualification from driving).
the summary only offence can only be dealt with by the crown court if the accused pleads guilty - it can only be dealt with in the crown if they accept the offence
if they plead not guilty, the crown cannot deal with this and that offence goes back down to the mags
Co Accused
where there are co-accused and one accused elects Crown Court trial, the magistrates' court must send any other accused charged with the same offence (or a related offence) to the Crown Court for trial, even if the offence(s) in question would otherwise be suitable for summary trial
Under 18 co accused
The court 'shall, if it considers it necessary in the interests of justice to do so, send the child or young person forthwith to the Crown Court for trial for the indictable offence'.
The sending of linked summary only offences and the procedure for dealing with them in the Crown Court
Summary offences in the crown court
where certain specified summary offences
including
common assault,
driving while disqualified,
taking a motor vehicle without the owner's consent,
criminal damage where the value involved does not exceed £5,000
are disclosed by the evidence on the basis of which an accused has been sent for trial in respect of an indictable offence, and
the summary offence is either founded on the same facts as the indictable offence or
forms with it a series of offences of the same or similar character,
then the prosecution may include a count for the summary offence on the indictment and, if the accused pleads not guilty, the charge will be tried by a jury
Counts for Summary Offences (CJA 1988, s. 40)
When can a summary offence be included in an indictment?
The accused must have been sent for trial for an indictable offence; and
The summary offence must:
Be founded on the same facts or evidence as an indictable offence charged; or
Be part of a series of offences of the same or similar character as an indictable offence charged; and
The facts or evidence for the summary offence must be:
Disclosed to magistrates’ court during committal; or
Disclosed in material served on the accused as part of the procedure for sending indictable-only offences to the Crown Court.
Effect of including a summary offence under section 40:
It is tried as if it were indictable in the Crown Court.
If convicted, the maximum sentence is limited to what a magistrates' court could impose.
Relevant Summary Offences under section 40(3)
Common assault (includes battery)
Not automatically treated as a lesser alternative to assault by beating unless specifically charged
Assaulting a custody officer (prison or secure training centre)
Taking a vehicle without consent
Driving while disqualified
Criminal damage where the value involved is £5,000 or less
Special Note on Criminal Damage
Criminal damage is not strictly a summary-only offence, even when the value is under £5,000.
The law says that if the value is clearly under £5,000, the court must treat it as summary-only.
Whether section 40 applies depends on when and how the criminal damage count is added:
If added after the case reaches the Crown Court, section 40 may not apply.
If added from the outset with proper consideration of value, section 40 can apply.