#10179 - Allocation Trial Bail Hearsay

11 Undischarged bankrupts

(1) It is an offence for a person who is an undischarged bankrupt to act as director of, or directly or indirectly to take part in or be concerned in the promotion, formation or management of, a company, except with the leave of the court.

13 Criminal penalties

If a person acts in contravention of a disqualification order or… is guilty of an offence under section 11, he is liable—

(a) If tried at Crown Court:

on conviction on indictment, sentenced to imprisonment for no more than 2 years; or
a fine, or both; and
Crown Court may impose a Disqualification Order for up to 15 years

(b) If tried at Magistrates Court:

conviction on summary, to imprisonment for not more than 6 months; or
a fine not exceeding the statutory maximum (currently 5,000), or both; and
Magistrates Court may impose a Disqualification Order for up to 5 years

This is a strict liability offence, so it is irrelevant what the Defendant’s state of mind was (R v Doring). As there are no guidelines on sentencing for this offence, case law is relevant in order to determine the likely sentence. Case law indicates that an undischarged bankrupt taking part in management of a company, is likely to get:

A custodial order for 6 months; and
Disqualification as Director

Matters the Magistrates will take into account when deciding whether or not to accept jurisdiction and are the magistrates likely to accept Jurisdiction:

Section 19(3) Magistrates Court Act 1980 whether the sentence the magistrates would have power to impose is adequate.
Any representations made by the prosecution (including telling the court of the D’s previous convictions) or the defence.
The Allocation guidelines issued by the Sentencing Council. The starting point is to presume that the case will be suitable for summary trial unless its powers of punishment are insufficient (6 months imprisonment and or a level 5 fine).
In relation to the definitive sentencing guidelines (Magistrates’ Court Sentencing Guidelines) for Fraud – confidence the starting point sentence if the value is below 10.000 a medium level community order with a sentencing range of a fine (Band B) up to 6 weeks custody.
All factors point towards the magistrates accepting jurisdiction given the low value of the and that this was not a particularly sophisticated offence (see J. Hussein statement about how easy it was to commit the offence).
The court will almost certainly accept jurisdiction.

Plea Procedure

Allocation & Sending

P.128

In certain circumstances, either-way offences will be sent straight to the Crown Court under s.50 of the Crime and Disorder Act 1998:

Complex fraud cases under s.51B of the 1998 Act;
Cases involving children;
Where there is an either-way offence related to an indictable only offence;

Plea before venue Procedure

P.128

Plea Before Venue: Procedure

Charge read out to the D;
D is asked how he will plea.

CPS representative will outline the facts of the case to the magistrates.
Prosec. outlines D’s previous convictions (CONDUCT = must see P.264)
Prosec. asks for ancillary orders (P.240)
D’s Sol may ask to adjourn (to get med. or other reports to use for mitigation)
D’s solicitor will give a plea in mitigation.
Magistrates will then decide if they have sufficient sentencing powers (magistrates’ max powers is six months imprisonment for one either-way offence or 12 months for two either-way offences and a 5,000 fine). They will:

If magistrates’ powers are sufficient, they will sentence D immediately or adjourn.
If adjourned bail application is made. D may be either released on bail or remanded in custody.
If magistrates’ powers are insufficient, they will commit D to Crown Court for sentence (s.3 Powers of Criminal Courts (Sentencing) Act 2003).

If D pleads not guilty in the following circumstances the court shall send the D to the Crown Court for trial (Crime and Disorder Act 1998, s.50A(3)(b)):
1. D is sent to the Crown C for a related offence;
2. D is charged with another adult D who is sent to the Crown C for a related offence;
3. D is charged jointly, or charged with a related either-way offence, with a youth D who si sent to the Crown C.
If not within the above the Magistrates Court must determine whether the offence appears more suitable for summary trial or trial on indictment i.e. make a decision as to allocation (s.19 Magistrates court Act 1880)

Allocation

P.128

6. The prosecution will inform the court of the facts and D’s previous convictions (if any) and ask for Ancillary Orders (P.240) (CONDUCT = must see P.264)

7. The court shall consider:

i. whether its power of sentence would be adequate;

ii. any representations made by the prosecution or defence;

iii. The allocation guidelines issued by the Sentencing Council P.510

iv. the Magistrate’s Court Sentencing Guidelines

8. when dealing with 2 or more offences the court should consider its sentencing powers

9. If the court decides that the offence appears more suitable for trial on indictment, the D is sent forthwith to the Crown Court

10. if court decides that the case is more suitable for summary trial, it must explain to D that:

i. the case appears suitable for summary trial;

ii. D can consent to be tried summarily or choose to be tried on indictment; and

iii. if D consents to summary trial & is convicted, D may be sent to Crown C for sentencing

11. Application for bail is made = accepted/refused (therefore D may either be released on bail or remanded in custody)

Advising D on his choice of court When D can choose to be sentenced summarily or on indictment

Always remember to apply the following to the facts!
Remember to clearly advise on a specific court!
John Scott’s case = advise him Mag C regardless of his plea. If we have a NG plea + strong defence + good evidence = advice Crown C. But very unlikely on the facts.

Advantages

Cheaper (Does D have sufficient funds to afford the Costs of the Crown C?)
John Scott has the benefit of legal aid funding. Prosecution costs will be lower at MC if JS is ordered to pay such costs. Thus, lower prosecution costs will be ordered if convicted.
Quicker (Does D have the time to wait (pregnant D, D may need to travel, D may be in a rush))
Less formal and intimidating and reduced any stress (Does D have a weak/vulnerable character?)
Lay magistrates more lenient than juries and they have limited sentencing powers (max: 6 months prison custodial and/or 5k fine)
JS has no obligation to serve a defence statement (important if as JS doesn’t have good defence) and prosecution won’t be on notice of their defence
JS has previous convictions at the Mag. Court and there is nothing to suggest that stress might be an issue. However, does D have a history at the same Magistrates C? if Yes = Crown C is better, if No = Magistrates C is ok.

Juries more likely to acquit (40% on NG plea) because they are not as case-hardened as magistrates
Takes longer to come to trial gives JS longer to prepare and find missing witnesses (on facts Ashok’s WS could support JS’s case)
Issues of admissibility are argued in private (whereas Mag. C may not be impartial). Ask if there are evidential issues likely to come up on the facts
Judges are legally trained
Judge rules on the admissibility of JS’s previous convictions in the absence of a jury (which will help JS’s case) the court might deal with:

i. the admissibility of the evidence provided by Annika Blohm as it conflicts with JS’s

ii. whether or not adverse inferences should be drawn under s.34

iii. The admissibility of JS’s previous con

Is there a dispute over evidence between the Police and D? Magistrates favour Police whereas jurors may question the Police evidence.
If challenging the PSC’s evidence Crown C is better. if weak case for lack of evidence or weak defence MC is better.
Complex Case? = Crown C if not MC
Strong Defence? = Crown C
Weak Defence? = if not MC

Disadvantages

Can always send to CC if feel they’ve insufficient powers after conviction
Mag’s decide both fact and law, so they hear inadmissible evidence
Mag’s more case-hardened and less likely to acquit than juries

Max sentence is 15 years custodial and/or unlimited fine
Does the client come off well – will this affect how the jury sees them?
Must serve a written defence statement if pleading not guilty (ss.5,6,6A CPIA 1996) which will put prosecution on notice of their defence
Higher prosecution costs if convicted

Conclude on the Facts

Low level offence = the sentencing will be low
D has a lack of income Bruptcy? Likely to have low income for prosecution costs?
Is the evidence against D strong? (poor CCTV evidence and one eye witness? Witness statements from clients/officers at the company?)
On the facts, how would you advice D on choice of court?
If their alibi/defence is good and strong, then she will have a strong chance at acquittal.

Grant of Bail

Who Decides on Bail?	The magistrates (if trial adjourned in the magistrates’ court) or the judge (if trial adjourned in the county court).
Presumption? Under s.4 of the Bail Act (BA) there is a presumption that bail will be granted to: P.139	Presumption of Bail Applies (s.4 Bail Act 1976) for: All defendants prior to conviction (but NOT if charged with very serious offence, e.g. murder, attempted murder, manslaughter, rape, attempt of rape or any serious sexual offence) Convicted defendants with...

Presumption?

Under s.4 of the Bail Act (BA) there is a presumption that bail will be granted to:

P.139

Presumption of Bail Applies (s.4 Bail Act 1976) for:

All defendants prior to conviction (but NOT if charged with very serious offence, e.g. murder, attempted murder, manslaughter, rape, attempt of rape or any serious sexual offence)
Convicted defendants with...

#10179 - Allocation Trial Bail Hearsay - Criminal Litigation

About Oxbridge

More Criminal Litigation Samples