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Workshop 2 (Criminal Litigation)
s.11 Company Directors Disqualification Act 1986 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: o o o
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: o o o
conviction on summary, to imprisonment for not more than 6 months; or a fine not exceeding the statutory maximum (currently PS5,000), 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: o o
A custodial order for 6 months; and Disqualification as Director
Matters the Magistrates take into account when deciding whether or not 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
PS10.000 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.
Workshop 2 (Criminal Litigation)
? Plea ProcedureAllocatio n&
? P.128In certain circumstances, either-way offences will be sent straight to the Crown Court under s.50 of the Crime and Disorder Act 1998:
1. Complex fraud cases under s.51B of the 1998 Act;
2. Cases involving children;
3. Where there is an either-way offence related to an indictable only offence;
? Plea Before Venue: Procedure
1. Charge read out to the D;
2. D is asked how he will plea.3. If guilty plea: P.2563. If NOT guilty plea: P.129
a) CPS representative will outline thePlea before venue Procedur e
Guidelines state that: The court should assess the likely sentence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case including? Allocati onP.128
4. If D pleads not guilty in the facts of the case to the magistrates. following circumstances the b) Prosec. outlines D's previous court shall send the D to the convictions (CONDUCT = must see Crown Court for trial (Crime and P.264) Disorder Act 1998, s.50A(3)(b)): c) Prosec. asks for ancillary orders i. D is sent to the Crown C for (P.240) a related offence; d) D's Sol may ask to adjourn (to get ii. D is charged with another med. or other reports to use for adult D who is sent to the mitigation) Crown C for a related e) D's solicitor will give a plea in offence; mitigation. iii. D is charged jointly, or f) Magistrates will then decide if they charged with a related have sufficient sentencing powers either-way offence, with a (magistrates' max powers is six youth D who si sent to the months imprisonment for one eitherCrown C. way offence or 12 months for twoeither-way offences and a PS5,000
5. If not within the above the fine). They will: Magistrates Court must
4. If magistrates' powers are sufficient, determine whether the they will sentence D immediately or offence appears more adjourn. suitable for summary trial or
5. If adjourned bail application is made. D trial on indictment i.e. make may be either released on bail or a decision as to allocation remanded in custody. (s.19 Magistrates court Act
6. If magistrates' powers are insufficient, 1880) they will commit D to Crown Court forsentence (s.3 Powers of Criminal Courts (Sentencing) Act 2003).?
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
Workshop 2 (Criminal Litigation)? 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; andiii. 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 sentence d summaril y or on indictme nt
? 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.??
Magistrates Court P.132Crown Court P.131
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