Adv Crim - Initial Hearing at the Magistrates

Defendants aged 18+ charged with criminal offences will make their first appearance at the Magistrates (hence forth shall be referred to as the Mags...bcoz im cool like that).

Any Defendant charged with an indictable only offence ill immediately send the case to the Crown Court under s51 of the Crime and Disorder Act 1998. But all summary only and either way offences will be dealt with by the mags.

Once charged the defendant will either be refused bail or granted bail in which case the Defendant will attend court to answer his bail.

Depending on the case complexity and the Defendants likely plea the Defendants 1st appearance will either be an Early First Hearing (EFH) or an Early Administrative Hearing (EAH).

Early First Hearing: Used when the Defendant is going to enter a ‘simple guilty plea’ admitting all the elements of the offence.

Summary Offences – Defendant will appear before a full bench of 3 mags. The charges will be read out to the D & he enters a plea. CPS will state facts of the case & Defence solicitor will give a plea in mitigation. Mags will either sentence straight away or adjourn if they want a pre-sentence report from the probation service. If adjourned bail will be dealt with.

Either way Offences – Same as above, except once a plea has been entered into the mags will decide if they have sufficient powers to deal with it or pass it to the Crown Court for sentencing depending on the seriousness of the case. Mags will either sentence straight away or adjourn if they want a pre-sentence report from the probation service. If adjourned bail will be dealt with.

Early Administrative Hearing: Is essentially an admin hearing. Mags will check Defendant has legal representation or to obtain public funding. Or will be adjourned to allow defence to asses the strength of the case & the plea the Defendant should enter. Will need disclosure of the prosecutions case. Usually dealt by a bench of 3 mags but can sometimes be dealt with by a Clerk or Legal Advisor, unless the prosecution object to the Defendant being granted bail.

Prior to the next hearing the Defence should: at their first appearance before the mags, few will enter a plea just yet and will usually be adjourned for them to take advice from their solicitor.

The Defence Should:

1.      Obtain funding from the LSC.

2.      Take a statement from the client.

3.      Obtain details of the prosecutions case from CPS.

4.      Advise client on the strength of their case & his plea.

5.      If its an either way offence; inform client of the possibility of it being sent to the Crown Court and its pros & cons of each court.

 

Next hearing: entering a plea – At this point the court would expect the Defendant is in a position to enter his plea.

Summary offence – if entering a guilty plea, the mags will either sentence the Defendant straight away or adjourn for a pre-sentence report. If the Defendant pleads NOT guilty they will fix a date for his trail and issue case management directions. Mags will also deal with bail.

Either way offences – if however the Defendant enters a guilty plea or a not guilty plea. The Mags will have to decide if their powers are sufficient to sentence (if guilty) or to be tried (if not guilty). Or if they should issue to the Crown Court. This is known as the Plea before Venue & Mode of Trial Procedure.

 

Plea before Venue Hearing Procedure

1.      The charges will be read out to the D.

2.      The clerk will then ask the D to enter a plea. And if guilty he will be treated as if he he’d pleaded guilty before the mags who will then either sentence him or commit him to the Crown Court for sentencing.

3.      If the Defendant pleads guilty, the CPS will outline the facts of the case including previous convictions. Defence will give a plea in mitigation. At which point mags will determine if their sentencing powers are sufficient (anything from 6 months for an e/w and 12 months for a Defendant found guilty of 2 count of an either way offence). Depending on the seriousness of the office, with reference to Magistrates Sentencing Guidelines & any aggravating/mitigating factors.

4.      If mags powers are insufficient they will commit to the Crown for sentencing pursuant to the Power of Criminal Courts (sentencing) Act 2000, s3. The procedural rule which must be complied with when Defendant is committed to the Crown Court for sentence are set out in Part 43 of the Criminal Procedural Rules 05.

5.      Id the Defendant refuses to enter a pea or enters a not guilty plea we will advance to the ‘Mode of Trial’.

 

Mode of Trial

Mags will decide whether offence is suitable for summary or committal to Crown based on Prosecution and defence making representations. They must consider:

a)     The nature of the offence.

b)     Circumstances making the offence of the a serious character.

c)      Mags punishment powers are adequate for the offence.

d)     Any other circumstances why it should be tried at one venue or another.

 

Defendant will be informed he has the right to elect a venue if he so chooses, if he elects by summary, they will fix a trial date and issue case management directions. If the Defendant elects trial by Crown Court the case will be adjourned for a committal hearing.

Adv Crim - Statutes to remember

PACE
S18 – Police Power to search premises of a person arrested for an indictable offence.
S24 – Constable may arrest without warrant anyone he reasonably suspects about to commit an offence/ is in the act of committing an offence or has committed an offence.
S30 – Suspect to be taken to the police station as soon as practicable, any delay to be recorded on the custody record.
S32 – Police Power to enter & search premises where suspect was at time of arrest.
S37 – Detention authorised by custody officer.
S56 – Suspect has right to have someone informed of their arrest.
S58 – Suspect entitled to legal advice.
S76 – Challenging admissibility o a confession
I. Confession fabricated or mistaken.
II. Confessed but made for other reasons than guilt.
S78 – Fairness of admitting confession evidence. Exclusion of unfair evidence.
S82 – Defines a confession.


CJA
Part 11 - Adducing evidence of Def bad character.
S98 - Defines bad character
S101 - Admissibility of a defendants bad character & Gateways.
S114 - Admissibility of hearsay evidence.
S116 - Admissibility of hearsay evidence of unavailable witness.
S117 - Admissibility of hearsay evidence of Business documents.
S121 - Safety valve: multiple hearsay evidence.


CJPOA
S34 - Effect of accused remaining silent when Q (adverse Inference).
S35 - The D as a witness chooses not to give evidence or remains silent, maybe make it possible for courts to draw adverse inference.
S36 - Adverse Inference failing to account for objects found on person.

The Role of the Solicitor At the Police Station

Under s58 PACE 1984 a suspect detained at the police station is entitled to free legal advice and to be represented.

The solicitor role at the police station is to protect and advance the legal rights of their client (Code C Para 6) confidentiality.

The initial telephone call may happen at any time from the custody officer advising a suspect has been arrested and needs a solicitor. He can only give you the suspects name and offence committed. You MUST speak to the client:

• Advise the client to confine his conversation to Yes/No answers in response to your questions.
• Confirm he wants you to represent him
• Advise any advice given is free.

DO NOT ALLOW CLIENT AT THIS STAGE TO GIVE HIS VERSION OF EVENTS!

Tell client:

1. When you’ll be attending and what you’ll do.
2. Not to talk to anyone about the case.
3. Not to agree to be interviewed or sign anything, not to give samples or take part in an identification parade without you being there.

The solicitor MUST attend the station immediately if:

• The offence is serious
• And interview or samples need to be taken straight away.
• The client is vulnerable.
• The client complains of being mistreated.
• Representations need to be made about the clients detention.
• The client needs to speak to the solicitor in confidence.

Other steps that need to be taken:

1. Check the law: check the legal elements of the offence the suspect has been accused of so you’re aware of what needs to be proven to prosecute your client.
2. Check old files: in case your firm has represented the client before and what was the outcome of those proceedings and if it’s of the same type of offence. The will also reveal if clients vulnerable.

On arrival at the police station

The custody office is the first person you speak to, giving you basic information about the circumstances. You should also view the custody record and detention log (Code C para 2.4) recording all significant events since the clients arrival. Use the custody record to obtain your clients basic info and:

1. The alleged offences for which the clients been arrested.
2. Time of detention and reason for authorisation (Delay).
3. Any significant comments made whilst at the station.
4. Any samples which may have already been taken.
5. Any identification procedure taken place.
6. Any interview already taken place.
7. Client under any physical/mental disability requiring appropriate adult.
8. Any illness client suffering from or requires medical attention. Or suffering from the effects of alcohol or drugs.
9. Any significant items found on clients person or premises.
10. If clients been in detention for six hours or more, any details of detention reviews and reason why client continued detention has been authorised.

Once you have obtained the basic info you need to speak to the investigating officer to obtain:

• The facts of the offence.
• Disclosure
• Significant statements.
• The next step in the investigation.
• Previous convictions.
• Any witnesses & if they gave statements and likely to attend court.

The client

• The solicitor needs to identify himself to the client and his role and provide free advice and has no connection with the police but to protect his rights. And anything he is told by client will remain confidential.
• Inform the client of what you’re been told about the offence the client has allegedly committed. As well as informing the client of the substantive law and what the police need to obtain a conviction.
• The clients instructions; getting his version of events.
• The nest step the police intend to take. Usually to take part in a recorded interview.
• Prepare the client for interview. Whether to answer questions or not or simply prepare a written statement if client is to give a ‘no comment’ interview.

The solicitor must aim to:

1. Investigate the prosecution case.

2. Obtain info to assist in the conduct of the defence.

3. Avoid client giving evidence which might strengthen their case.

4. Influence the police not to charge or

5. Create a favourable position for the client.