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First Hearings Notes

BPTC Law Notes > BPTC Criminal Litigation Notes

This is an extract of our First Hearings document, which we sell as part of our BPTC Criminal Litigation Notes collection written by the top tier of City Law School students.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Criminal Litigation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

First Hearings
Format of the first hearing
-All adult defendants have first hearing before magistrates' court,
irrespective of the offence charged with.
-Nature & formation depends on the classification of the offence. [[for sake of clarity, this section deals with a single D charged with one offence.
Effect of multiple Ds and/or charges considered later.
-Special rules re some types of crim damage: dealt with later in chapter.
-Before concluding a first hearing, as with any hearing the court must consider issue of bail.
-Location of subsequent appearance: depends on category of offence charged with.
-If accused charged with indictable (including either-way) offence &
is in custody

? the m' court should, at first hearing, proceed 'at once' with allocation of case for trial (if an either-way offence); and, if required with the sending of accused to Crown Court for trial.
-If offence is summary or either-way allocation for summary trial:
o magistrates should 'forthwith' give such directions as are necessary, either (on a guilty plea) to prepare for sentencing or for trial.
-Where the accused is on bail:
o if the prosecutor anticipates a guilty plea which is likely to be sentenced in the magistrates' court ? first hearing must be within 14 days of charge (or next available court date thereafter).
o Where it is anticipated that the accused will not plead guilty, OR
that the case is likely to go to Crown Court for either trial or sentence ? first hearing must be within 28 days of charge
-Usually, first hearing will deal with matters such as plea & allocation.
Early Administration Hearing
-Where a person has been charged at the police station ? the first hearing in m'court can be treated as an 'early administrative hearing'
-Conducted by a single magistrate OR by a justices' clerk.
-At such a hearing, accused will be asked if he wishes to obtain legal aid:
o If he does ? necessary arrangements must be made for him to apply &, where appropriate, obtain it.
o If necessary, hearing may be adjourned for this purpose.
o On adjourning for such a purpose:, the magistrate, sitting alone,
may remand the accused in custody or on bail.
-If conducted by a a justices' clerk ? a clerk cannot:
o A clerk cannot remand the accused in custody.
o Cannot grant bail without consent of prosecutor and accused,
UNLESS bail is on the previously imposed terms of existing police bail.
-CF, A SINGLE JUSTICE CAN remand accused in custody or on bail. ?

NB 'early admin hearings' only applies where accused was charged at the police station: and so does not apply where accused is granted police bail and then charged by CPS using the written charge &
requisition procedure.
o However, there is nothing to prevent a m' court operating a system of early admin hearings in all cases where a not guilty plea is expected.

Presence of accused at first hearings (re either-way offences, plea before venue & mode of trial hearings)
-Accused must be present at first hearing (subject to the 2 exceptions below):
o Can be present by video link (see below).
o If he fails to attend ? court can issue a warrant for his arrest.
-Exceptions to rule that accused must be present:
-(1) for plea before venue, 1 exception: 'disorderly conduct' exception

(a) accused is legally represented &
o (b) court considers that due to the disorderly conduct of the accused before the court, it is not practicable for the proceedings to be conducted in his presence &
o (c) the court considers it should proceed in absence of the accused.
o In those circumstances, the representative is asked to indicate the plea--? if rep indicates a guilty plea, court proceeds as if accused had pleaded guilty. Otherwise, court proceeds to determine mode of trial.
-(2) determination of mode of trial, has 2 exceptions to need for accused to be presented:
o (i) disorderly conduct, under s18(3):
-by reason of accused's disorderly conduct before the court, court decides it is not practicable for proceedings to be conducted in his presence. Where there is a legal rep present in court, he speaks on behalf of the accused.
o (ii), [[good reason & consent ]] under s23 where:
-(a) the accused is legally represented;
-(b) the representative indicates to the court that the accused consents to the mode of trial proceedings being conducted in his absence;
-(c) and the court is satisfied there is a "good reason" for the accused's absence.
-'Good reason' is not defined, but sickness is an obvious eg.
-In these circumstances: legal rep can consent to summary trial or elect Crown Court trial on behalf of accused.
-So could go ahead with summary trial in accused's absence.
-If legal rep consents to summary trial: m' court is not required to commence trial forthwith, they are entitled to ?

adjourn if an immediate hearing is impracticable/undesirable, eg because of accused's absence.
If court considers trial on indictment more appropriate OR
legal rep doesn't consent to summary trial ? court sends case to Crown Court, under s51 CDA.

Video Link (re pre-trial hearing)
-Presence via video link is sufficient

CDA 1998: an accused in custody may appear at a prelim hearing & sentencing hearing via 'live link' from prison/police station.
o ? such an accused is to be treated as 'present in court'. He must be able to see and hear, and be seen and heard, by the court.
o CrimPR strongly encourages use of live links.
-Proceeding to sentence via link: If accused appears by video link at a prelim hearing & pleads guilty (or, for either-way offence, 'indicates' a guilty plea) -? he can also be sentenced via the video link if the court proposes to proceed immediately to sentencing (provided it is not contrary to the interests of justice).
o The offender can give oral evidence over live link if hearing proceeds to a sentencing hearing.
Pre-Sentence Report
-Where accused pleads guilty or indicates a guilty plea in m' court :
court should consider whether a PSR is necessary.
-Where a m' court is considering committal for sentence; OR accused has indicated an intention to plead guilty in a matter which is to be sent to Crown Court ?
o M Court should order a presentence report for use by Crown
Court, if: they consider there is
-(a) a realistic alternative to a custodial sentence;
-(b) the accused may be classified a dangerous offender;
-or (c) there is some other appropriate reason for doing so.
Disclosure of INITIAL DETAILS of prosecution case
-Timing, when must be served the prosecutor must provide initial deets of prosecution case, as soon as practicable, and in any event no later than beginning of day of first hearing provide to court 'initial details' of the prosecution case.
o 'Initial deets' do not have to be supplied automatically to the accused, but if the accused requests them: -? the prosecutor has to serve them as soon as practicable (and, in any event, no later than beginning of day of first hearing) on the accused.
o If accused does not request initial deets: prosecutor must, in any event, make them available to accused at or before beginning of day of first hearing.
-What constitutes 'initial details', ???

o Where accused was in police custody immediately before the first hearing in m' court, initial deets comprise:
-(1) a 'summary of the circumstances of the offence'
-AND (2) the accused's crim record (if any).
o Otherwise, initial deets =

1. a summary of the circumstances of the offence;

2. any account given by the accused in interview (set out either in summary or a separate document);

3. any written witnesses statements (including exhibits) that the prosecutor has available at that stage & which he considers material to:
-(a) plea
-or (b) mode of trial (whether the case should be tried in m' court or Crown Court)
-or (c) to sentence;

4. the accused's crim record (if any);

5. any victim impact statement (available statement of the effect of the offence on a victim or their family (or on others))
these provisions apply equally to cases in youth court where accused is
< 18.
Initial deets must be sufficient to allow: the accused & the court, at the first hearing, to take an informed view on plea and (where applicable) venue for trial.
o If accused is on bail & prosecutor does not anticipate a guilty plea at first hearing in m' court ? the initial deets must be sufficient to assist the court to identify the real issues & give appropriate directions for effective trial (regardless of whether trial is to be heard in m' court or Crown Court).
The info required by the 'Preparation for Effective Trial Form' must be available to be submitted at first hearing; and parties must complete it.
The CPS now uses electronic case files: these can be sent to defence representatives via secure email.
Ordinarily, the failure to supply initial details does not constitute a ground upon which a court may dismissed a charge or give rise to an abuse of process application.
o Usual remedy is for court to adjourn a first hearing and/or award costs to the defence for prosecution's failure to serve.

Pleas & indicationsAt a 1st hearing for summary-only OR either-way offence: D will be asked to enter (summary only) OR indicate (either-way) their plea to a charge.
o D can either plea/indicate:
o (a) Guilty

(b) Not Guilty

(c) (On an either-way offence): give no indication. ?A guilty plea must be UNequivocal:
o i.e., must be free of any suggestion or statement that D is not guilty either because they purport to rely on a defence, or refuse to accept an element of the offence.
o Plea is not unequivocal IF; it is qualified with words that suggest he may have a defence.
o If a plea is equivocal ? court must not proceed to sentence;
should explain the relevant law and seek to ascertain whether he genuinely intends to plead guilty.
o If the plea cannot be clarified ? will be treated as a 'not guilty'
plea rather than a guilty plea.
o Egs of equivocal plea:
-(a) (to an allegation of ABH): 'Guilty, but I was acting in selfdefence'
-(b) (to an allegation of theft): 'Guilty, but I was going to give it back'.
o If the court proceeds to sentence on a plea which is imperfect/unfinished/ambiguous, the accused will have a good ground of appeal.
Where no indication is given (to an either-way offence) : ? treated as a not guilty indication.

Summary only offences?D will be asked by the clerk of the court to enter a plea to the offence charged with.
Summary only ? Guilty Plea

D pleads guilty ? court will proceed to sentence.
o If there is any dispute re factual basis upon which D will be sentenced ? court may have to hold a 'Newton hearing' (see Ch 9).
o Sentenced may be passed immediately; or adjourned for preparation of a pre-sentence report (PSR).
Summary only ? not guilty plea ? proceed to summary trial

If D pleads not guilty ? court will set a trial date and do any necessary case management to ensure trial is effective on that date.
o Essential case management re summary trials, applying the
CPR
o Parties must complete a case management form setting out: (1)
what issue(s) at trial will be, and (2) which witnesses are required to give live evidence.
o Connection between those 2 points: a court must actively manage a case to ensure that only those witnesses whom the defence wants to challenge on their evidence come to court.
o the parties must, from start, identify the disputed issues and tell the court what they are. If parties do not supply this info ?
court must require them to do so.

The 'live evidence' at trial should be confined to the issues identified and so only witnesses 'who are really needed in relation to genuinely disputed, relevant issues should be required to attend'.
o Court should set a timetable for trial & estimate of how long trial will take.
o In setting a timetable, any estimate of more than 1 day for summary trial should be scrutinised with the utmost rigour: a summary trial requires a proportionate approach

court should set a timetable for progress of the case

and parties are required to warn the court 'promptly' if any problems (eg relating to witnesses) are anticipated.

PRE-TRIAL HEARINGS & RULINGS, for summary trial & Not guilty plea ? Where a case has been set down for summary trial
-Court can conduct pre-trial hearings at which pre-trial rulings can be made.
-'pre-trial hearing': takes place before court beings to hear evidence from prosecution at the trial.
-At such hearings, magistrate can make rulings re:. (1) admissibility of evidence; (2) fitness to plead; any (3) other question of law.
-Rulings can be made on the application of (a) the defence or (b)
prosecution or (c) of court's own motion.
-Such rulings may be made only if:
o (a) court has given the parties an opportunity to be heard

& (b) it appears to court that it is in interests of justice to make the ruling.
-If accused is unrepresented, he must be given chance to apply for legal aid.
-A pre-trial ruling is binding until the case is disposed of by: (a)
conviction or acquittal of the accused; or (b) by a prosecution decision not to proceed; or (C) by the dismissal of the case.
o However, court can discharge or vary a pre-trial ruling if it is:
-(a) in the interests of justice &
-(b) the parties have been given an opportunity to be heard.
o Can vary/discharge either (a) on an application by a court, or (b)
of court's own motion.
o A party can apply for discharge/variation of a pre-trial ruling only if there has been a material change of circumstances since the ruling was made/since a previous application. Or something was not brought to the attention of the court when they made the ruling.
o To discharge a pre-trial ruling in 'interests of justice' probably requires a 'compelling reason', eg changed circumstances/fresh evidence.
o [pre-trial ruling in mags court is not binding on CC if D is sent for trial in CC]. Either-way offences??Whenever a person 18+ is charged with either-way offence.
D is supplied with a copy of the initial details by the prosecutor; court begins by asking D to indicate a plea.
PLEA BEFORE VENUE ? (if indicates not guilty) MODE OF
TRIAL/ALLOCATION
NOTE ABOVE, presence of accused necessary (including video link) at plea before venue & mode of trial hearings, unless the 2 exceptions apply
'Plea before venue' procedure: applies whenever a person over 18 appears before m' court charged with an either-way offence.
o (a) the charge is written down & read to the accused

(b) court explains to accused that he may indicate whether he would plead guilty or not if offence proceeded to trial.
-Court will explain that:
-If guilty plea indicated ? proceedings will be treated as a summary trial at which a guilty plea was entered;
-If 'not guilty' indicated ? court will move to consider where the trial will be held.
-Court must also explain that he may be committed for sentence IF it is of opinion that: (a) its powers of punishment are inadequate; OR (b) the criteria for imposition of 'dangerous offender' provisions apply.
o (c) court asks accused whether (if offence were to proceed to trial)
he would plead guilty or not guilty.
o (d) If accused indicates guilty plea ? court proceeds as if he had pleaded guilty at summary trial ? court proceedings to sentencing.
o (e) if accused indicates a 'not guilty' plea ? a 'mode of trial'/allocation hearing takes place.
-Or if accused fails to give an indication of intended plea,
court will regard as having indicated not guilty plea, and so will go on to determine mode of trial.

Either-way offence, Guilty plea
-D indicates guilty plea ? court will treat that as a formal plea of guilty and move to sentence.
-If there is any dispute re factual basis upon which D will be sentenced
-court may have to hold a 'Newton hearing'.
-Either-way offence can be sentenced in either Magistrates' or Crown
Court.
-Magistrates' Court must consider whether their sentencing powers are sufficient in the circumstances. Max sentences, M Court:
o max 6 months sentence in M court per offence, and max unlimited fine (level 5) per offence;

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