Procedure in the magistrates.docx

***[Procedure in the magistrates' courts, allocation for trial and sending to the Crown Court for trial or sentence -- 5 Q's]*** ***[The Pre-trial procedure in MC -- ]*** - Every case no matter how serious starts in the MC. End of first hearing one should know where the case is going to prog...

***[Procedure in the magistrates' courts, allocation for trial and sending to the Crown Court for trial or sentence -- 5 Q's]*** ***[The Pre-trial procedure in MC -- ]*** - Every case no matter how serious starts in the MC. End of first hearing one should know where the case is going to progress to for trial or sentence. - Bail is a live procedure throughout trial, so can be considered after every hearing. Keep this in mind when looking at the flow charts for court procedures. PBV (Plea before venue) -- first. Hearing in either way offences. - Charge is read -- if proceeds to trial -- guilty or not guilty. Allocation -- whether in MC or CC. *[D5.20 -- D5.21 What are the provisions of initial details of the prosecution case?]* - Prosecutor must ASAP (and, in any event, no later than the beginning of the day of the first hearing), provide to the court initial details of the prosecution case. - No automatic duty of providing initial detail of the prosecution case unless the accused requests initial details. When asked -- ASAP or beginning of first hearing day. When not asked -- then at or before the beginning of the day at first hearing. *[What are initial details of the case? ]* - Before first hearing in MC in police custody -- summary of the circumstances of the offence and the accused's criminal record if any. - If not in custody -- summary of the circumstances of the offence; *[any account given by the accused in interview]* (set out either in the summary or in a separate document); *[any written witness statements]* (including exhibits) that the prosecutor has available at that stage and which the prosecutor considers to be material to plea, or to whether the case should be tried in a magistrates' court or the Crown Court, or to sentence; *[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). *[What should the information provide? ]* - Must be sufficient to allow the accused and the court, at the first hearing, to take an informed view on plea and (where applicable) venue for trial. - If the accused is on bail and the ***["prosecutor does not anticipate a guilty plea at the first hearing in a magistrates' court",]*** the initial details that are provided must be sufficient to assist the court to identify the real issues and to give appropriate directions for an effective trial. Whether or not in MC or CC. - Info required by Preparation for Effective trial form must be available to submit at first hearing. *[What about any failure to comply with these guidelines? ]* - No specific sanction under Part 8. But MC has the power to make a direction for the prosecution to comply. If party fails to comply with the direction then the court will adjourn the hearing. - Prosecution failure likely to lead to costs sanctions and adjournment. - When prosecutor wants to introduce information contained in a document, but has not served the document or made it available to defence, then not permitted to introduce information unless court allows defendant sufficient time to consider it. - Cannot dismiss charge on non-compliance. *[D5.38 -- What about pre-trial hearing by television link? ]* - Court by direction may require or permit a person to take part in eligible criminal proceedings through a live audio link or a live video link. - Eligible proceedings -- **preliminary hearings** and hearings before a magistrates' court or the Crown Court which are held **"after D has entered a plea of guilty",** and **sentencing hearings.** - Not direction unless in interest of justice and parties make representations. - Court has to consider need for it to be in person; views of the person; suitability of facilities at the place of live link; would be effective taking part in proceedings?; importance of any evidence provided by witness and whether any live link would inhibit testing the evidence; any arrangements for public. *[Interest of justice? ]* - May be in IOJ to avoid delays and disruption. Any mental health or other medical assessment before deciding if a live link is in the interests of justice - Conferences between advocate and defendant may not be in IOJ. *[Factors to be considered where D should attend a sentence hearing via live link? ]* - 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. - Rarely appropriate for youth sentence. Preliminary hearings such as bail application will be suitable for remote attendance by all advocates. *[5.41 -- What is proceeding to sentence? ]* - Accused attends preliminary hearing via live link and pleads guilty to the offence; or if an either way offence -- indicates a guilty plea so is deemed to have pleaded guilty under plea before venue; court proposes to immediately move to sentencing. - Can continue to attend via live link if it\'s in IOJ. Accused may give oral evidence over live link only if court satisfied not contrary to Interest of Justice. *[D21.33 -- D21.35 -- What are Pre-trial Hearings? ]* - Charged with an indictable (including either way) offence and in custody then at first hearing MC should at once deal with allocation of case for trial (if it\'s an either way offence) and if required must eb sent to CC. - Summary offence or either way offence allocated for summary trial then MC must give directions as are necessary either on guilty plea or sentencing or for trial. - IF on Bail -- first hearing after 14 days of charge (or next available date) if the prosecutor anticipates a guilty plea likely to be sentenced in MC. - On bail and anticipation is not guilty -- committed to sentence to CC or for trial then the first hearing in 28 days after charge (or next available date). - If pleads guilty then consider whether pre-sentence report is necessary. - MC has considered committal and accused indicates guilty plea then MC should request pre-sentence report for use by CC -- IF MC considers a realistic alternative to custodial sentence; accused satisfies the criteria for classification as a dangerous offender or some other reason for doing sp. Charged with offence in police station, the MC before which the accused appears may consist of a single justice. - Accused is asked whether he need legal aid; if yes then necessary arrangements need to be made for application and legal aid can be obtained. Hearing can be adjourned for this. - May remand in custody or bail. Early administrative hearing can eb done by justices clerk or assistant clerk if given permission by justices clerk. Clerk is not authorised to remand in custody; or without the consent of the prosecutor and accused remand accused on bail/ on any conditions other than those previously approved. This only applies when charged at police station; does not apply where the accused is granted police bail and is then charged by CPS using the written charge and requisition procedure. - MC can operate an early administrative hearing procedure in all cases where a not guilty plea is expected. *[How to prepare for pre-trial hearings? ]* - MC must conduct a 'preparation for trial hearing'. Unless the accused is sent for trial in the Crown Court or enters a written guilty plea, or the single justice procedure applies. One or more further pre-trial case management hearings if (i) the court anticipates a guilty plea; or (ii) it is necessary to conduct such a hearing in order to give directions for an effective trial; or (iii) 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: a. satisfy itself that the accused understands that credit will be received for a guilty plea; b. 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 c. unless the accused pleads guilty, satisfy itself that the accused understands that, at the trial, (i) he or she will have the right to give evidence after the court has heard the prosecution case; (ii) if the accused does not attend, the trial is likely to take place in his or her absence; and (iii) 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. The court is also required to ascertain the **name, date of birth and nationality** of the accused; hearings will usually take place in public. *[What about pre-trial rulings? ]* - In a pre-trial hearing 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\'s in the IOJ. - Unrepresented, he or she must be given the chance to apply for legal aid. - Application by defence, prosecution or by courts order for pre-trial rulings? - 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. if the accused is acquitted, convicted or a prosecutor decides not to proceed with the case. - On application or it\'s own motion the court may discharge or vary a pre-trial ruling if in IOJ and parties will be heard. - A party can apply to vary only if there has been a material change. - it is difficult to accept that it could be in the interests of justice for the court to annul or discharge its own ruling without a compelling reason. Different bench same facts different conclusion not allowed. - Review of a decision 'will be permissible if a change of circumstances has occurred since the original decision was taken' or 'if circumstances are brought to the attention of the court which, although existing when the original decision was taken, were not then drawn to the attention of the court'. Second power is infrequent. -- will apply other than to s8 A and s8B. (they bite only when decision has been made that summary trial will occur. - an error of law in such a ruling could form the basis of an appeal by way of case stated once there has been a final determination of the proceedings in the magistrates' court. *[What about case management?]* - the accused pleads not guilty, the parties must, from the start, identify the disputed issues and tell the court what they are. 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'. - Moreover, 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. - IF in MC trial is not short it should be the ordinary practice for a timetable for the conduct of a trial to be set at the time the trial date is fixed and the estimate made'. - Scrutinise the reasons why it is said a witness is necessary and the time examination and cross-examination would take. - Regard to the nature of the issues and the fact that the trial is a summary trial; any estimate of more than a day in the Magistrates' Courts should be scrutinised with the utmost rigour. - All contested trials in the magistrates' court will be fully case managed in the first hearing and disposed of, by way of trial or otherwise, at the second' (if the initial or advanced disclosure contains all of the likely available evidence of note'. Prosecution evidence is not challenged and the only evidence, if any, will be that of the defendant'). *[What are ambiguous pleas on indictment?]* - 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 (e.g., 'Guilty, but it was an accident' or 'Guilty, but I was going to give it back'), then 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. - It will not be ambiguous if counsel clarifies the plea. If the plea cannot be clarified, the court should order a not guilty plea to be entered on the accused's behalf. - If mute of malice or will not answer directly to the indictment, the court may order a plea of not guilty to be entered'. - 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. original proceedings a mistrial, the Court of Appeal will have the options either of setting the conviction and sentence aside and ordering a retrial. - If retrial can direct a not guilty plea or order the accused to be re arraigned in the court below. *[Does the accused have a decision whether to consent to a summary trial? ]* - Summary trial -- limit on the sentence MC can pass. - This advantage is nullified by the power of the magistrates to commit the accused to be sentenced in the Crown Court. - One potential advantage of trial on indictment is that submissions on the admissibility of evidence can be made in the absence of the jury, with the obvious benefit that the jury do not find out about any matters that are ruled inadmissible. - Bench of magistrates may give a pre-trial ruling on the admissibility of evidence and that ruling binds the bench that tries the case. - Advantage of trial on indictment is that the defence are entitled to receive copies of the written statements of the witnesses to be called by the prosecution as part of the process whereby the case is transferred to the Crown Court. - The prosecution also provide all the evidence upon which they propose to rely in a summary trial. - Thus, an accused who is to be tried in the magistrates' court should be in the same position as one being tried in the Crown Court as regards obtaining copies of the prosecution witness statements. - MC trial is shorter more informal than trial on indictment and cheaper. *[What are the 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 setting out the basis on which the case will be defended. Should include - The nature of the accused's defence; including any particular defences that the accused wants to rely on. - The matters of fact on which the accused takes issue with the prosecution, with the reasons why; - particulars of the matters of fact on which the accused intends to rely for the purposes of defence. - any points of law which the accused wishes to take, with any authorities relied upon It should be stressed that the duty of disclosure imposed on the defence is different to that which is meant by the prosecution 'duty of disclosure'. In respect of the defence, it is a duty to reveal the case which will be presented at trial (rather than, as in the case of the prosecution, to disclose unused material). *[What are defence statements in cases tried summarily? ]* - No obligation. - Once the prosecutor has complied (or purported to comply) with the duty to disclose unused material (see D9.16), 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 chosen to give defence statement -- **must be done in 14 days from the date on which the prosecutor complies or purports to comply with the initial duty of disclosure.** Court can extend time limit if applied by the accused. - If the accused provides a defence statement, the requirements in s. 6A as to the contents of the statement apply The voluntary regime applies to summary trial, whether it is of a summary or an either way offence or even (in the case of a child or young person) of an indictable only offence (s. 1(1)): - Defence advocates **must give consideration** at an early stage to whether to serve such a statement. - Defence statements **must contain a clear and detailed exposition of the issues of fact and law** in the case and courts should examine them with care to ensure that they comply with the formalities required by the CPIA. - Where late service of a defence statement results in potential delay to the proceedings, **any application to adjourn for further disclosure or to make an application under s. 8 must be scrutinised carefully by the court**. - Any case which raises **difficult issues of disclosure should be referred to a district judge,** where one is available. Notwithstanding the absence of requirement of a defence statement the defence must identify the real issues in a case in accordance with the overriding objective. *[D22.70 Is there a 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. - A request can be made for elaborate reasons to MC to state a case. - The essence of the exercise in a criminal case such as this is to inform the defendant why he has been found guilty. That can usually be done in a few simple sentences.' However, great care must be taken when formulating those reasons. Eg -- The magistrates convicted him, saying that D 'did not say anything to persuade us that he did not tamper with the moped' and they were therefore 'sure' that he was guilty. The conviction was quashed. The words used by the magistrates created the impression that they had convicted D because he had not proved his innocence (thus reversing the burden of proof). MC acquits then it may but is not required to give an explanation of its decision. *[D6.6 --D6.7 What about allocation? (mode of trial)]* - The method of determining allocation (mode of trial) 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 (or is deemed to be) not guilty, the second stage is to determine whether the case will be tried in a magistrates' court or in the Crown Court. - Special procedure where the charge is one of criminal damage. - s\. 23 allows for proceedings under ss. 19 to 22 to be carried out in the absence of the accused provided certain conditions are satisfied - Section 25 relates to changing the decision about mode of trial originally taken *[What is plea before venue?]* - Applies whenever a person who has attained the age of 18 appears before a magistrates' court charged with an either way offence. - This 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. - Should take place in the presence of the accused. The standard procedure -- - The charge is written down and read to the accused (s. 17A(3)). - 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 under the SA 2020, s. 14, if the court is of the opinion that its powers of punishment are inadequate (see D23.30), or under s. 3A, if it appears to the court that the criteria for the imposition of a sentence under the SA 2020, ss. 306 to 308 (the 'dangerous offender' provisions), apply (s. 17A(4); see D23.49). - The court asks the accused to indicate whether (if the offence were to proceed to trial) the plea would be guilty or not guilty (s. 17A(5)). - If the accused indicates a guilty plea, the court proceeds as if the accused had pleaded guilty at summary trial (s. 17A(6)), 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, pursuant to s. 18 (s. 17A(7)). 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 under s. 18 (s. 17A(8)). *[D6.9 -- 6.10 -- What is the allocation procedure?]* 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 prosecution and defence the opportunity to make representations about whether the offence is more suitable for summary trial or trial on indictment. Prosecution given the opportunity to present any previous convictions since the existence of relevant previous convictions would affect the appropriate sentence. - Courts then decide whether offence is more suitable for summary or trial by indictment. They consider: - Whether sentence which MC can impose on the offence suitable? - Representations of the prosecution or accused - Allocation guidelines by sentencing councils. **[If summary trial is more appropriate]** the court must explain to the accused -- - 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.]** - 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 or if the criteria for imposition of sentence under dangerous offenders is met. At that point, **the accused may request that the magistrates indicate whether, if the accused were to be tried summarily and were to plead guilty at that stage, the sentence would be custodial or non-custodial.** - 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 (s. 20(7)), 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 If the court does not give an indication of sentence (either because the accused does not seek one or the court declines to give one), or if the accused seeks and receives an indication of sentence but does not then wish to reconsider the indication of plea, or if the accused goes through the plea before venue stage a second time but does not indicate an intention to plead guilty, then the accused is asked whether he or she consents to summary trial (s. 20(8) and (9)). Depending on the choice made by the accused, the court either proceeds to summary trial or sends the case to the Crown Court for trial. If, on the other hand, it appears to the court that trial on indictment is more appropriate, it tells the accused that this is so and proceeds to send the case to the Crown Court. **Summary trial -- either way offence -- only if accused and the MC agree to a summary trial.** *[Does the accused need to be present?]* **The accused must generally be present at the 'plea before venue' hearing** and when allocation is determined. Plea before venue may take place without 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. If this happens, representative is asked to indicate if the accused pleads guilty or not. If guilty then the court proceeds as if the accused pleaded guilty; if not then allocation. **Allocation hearing can take place in absence of the accused --** - 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. - The court may determine allocation in the absence of an accused who is represented 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. (good reason -- extends beyond sickness). - Assuming court goes ahead and decided on summary trial then consent may be signified by the representative. Doesn't require MC to commence trial forthwith can adjourn. - If the court considers that trial on indictment is more appropriate, or if the legal representative does not signify that the accused consents to summary trial, then the court must proceed to send the case to the Crown Court. Court may use live link. 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** at the hearing and signifies the **accused's consent** to the court proceeding in the accused's absence; - 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 hearin**g, and the court does not consider that there is an acceptable reason for the accused's failure to attend; or - the accused has appeared on a previous occasion to answer the charge, and the court does not consider that there is an acceptable reason for the accused's failure to attend; and - the **court is satisfied that it is not contrary to the interests of justice** to proceed in the absence of the accused. Can also do hearings without the presence of the accused if disorderly conduct and cannot do proceedings in presence and does not go contrary to interest of justice. *[D23.35 -- What is legitimate expectation as to sentence? ]* 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. *[D6.13 -- Is there a binding effect of indication of sentence? ]* - **Where the court gives an indication of sentence under the 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'.** Exceptions -- - Magistrates' court to commit an offender to the Crown Court for sentence for (**extended sentences for dangerous offenders)** would be met; it follows that an indication of a non-custodial sentence does not oust the power of the court to commit for sentence under s. 15 (see s. 15(4)), or the power of the Crown Court to impose an extended sentence. - Magistrates' court commits an offender to the Crown Court for sentence on the basis that the **accused has indicated an intention to plead guilty to an either way offence (and therefore is deemed to have pleaded guilty to it) [and] is also being sent to the Crown Court for trial in respect of one or more related offences.** This power to commit for sentence is not ousted by an indication of sentence. - The Crown Court are freed from the restriction imposed by the MCA 1980, s. 20A(1), only **where the offence committed for sentence under the SA 2020, s. 18(2), is a specified offence, in respect of which the magistrates' court has stated (under s. 18(4)) that, in its opinion, it also had power to commit the offender for sentence** under s. 15(2). *[D6.14 -- Indication of Not Guilty Plea: Magistrates' Decision Whether to Accept Jurisdiction]* - If the accused indicates a not guilty plea (or gives no indication, and so is deemed to be indicating a 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 (and for the parties, when making their representations) is **whether the sentencing powers of the magistrates would be adequate to deal with the offence(s) in the event of the accused being convicted.** 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. **MC can and should decline jurisdiction if they don't have the power to sentence for totality of the offence, even if the single offence falls in ambit.** - Other factors like an **insanity defence can merit a trial on indictment**. The maximum penalty which magistrates can impose **[on summary conviction for an either]** **[way offence is 12 months' imprisonment. (New portion has something else). ]** A table with text and numbers Description automatically generated *[D6.15 What is the allocation guideline? ]* In general, **either way offences should be tried summarily unless** either: - the outcome would clearly be a sentence in excess of the court's powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or - for reasons of unusual legal, **procedural or factual complexity**, the case should be tried in the Crown Court. This exception may apply in cases where a very substantial fine is the likely sentence; other circumstances where this exception will apply are likely to be 'rare and case specific'. No factual legal complications -- MC have to bear in mind their sentencing power and may retain jurisdiction notwithstanding the likely sentence may exceed it\'s powers. - 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. Court should also refer to the offence specific guideline (if any) for sentence and take into account all aspects of the case (including advanced by the defence, including any personal mitigation to which the defence wish to refer). **If the court goes ahead with summary trial it must warn the accused that all sentencing powers are open and he may be committed to CC after conviction.** *[Allocation guideline on committing for sentence? ]* - There is ordinarily no statutory restriction on committing an either way offence for sentence following conviction. **The general power of the magistrates' court to commit to the Crown Court for sentence after a finding that a case is suitable for summary trial and/or conviction continues to be available 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'.** - *[Does not need new information to commit]* than it already had when accepted jurisdiction at the allocation hearing. - The court should refer to any definitive guideline to arrive at the appropriate sentence, taking into account all the circumstances of the case (including personal mitigation and the appropriate guilty plea reduction). - Borderline cases, the magistrates' court should consider obtaining a pre-sentence report. - Where the offending is so serious that the court is of the opinion that the Crown Court should have the power to deal with the offender, the case should be committed to the Crown Court for sentence even if a community order may be the appropriate sentence. Exceptional cases, for example where the offence merits a custodial sentence in excess of the powers of the magistrates' court but where a community sentence might be appropriate in light of mitigation put forward by the offender. *[D6.17 -- What about allocation when 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) 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**. Even if the court has, by then, decided that the case against the other accused is suitable for summary trial. Case has been found suitable for summary trial and co-accused selects CC -- - Court may ask the accused questions to help it decide in what order to deal with them (this would include questions about intention to elect Crown Court trial). - In any event, by virtue of r. 9.2(7), if the court is dealing on the same occasion with two or more accused who are jointly charged and it accepts jurisdiction in respect of one of them but another is then sent for Crown Court trial (this would be as a result of that accused electing Crown Court trial), the court must deal again with the accused in respect of whom it has accepted jurisdiction (sending that accused instead to the Crown Court for trial). **(so if one elects CC other must be sent to CC)** *[D6.18 -- Does the prosecution influence the allocation decision? ]* - **Summary trial may be vetoed by the court or accused not by the prosecution.** - The most the **prosecution can do is make representations** on trial on indictment. 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, under the CDA 1998, s. 51B or s. 51C respectively. *[D6.21 to D6.26 -- What about the procedure on the criminal damage charge? ]* - S22 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. **[Schedule offences --]** Offences of damaging or destroying property; aiding, abetting, counselling or procuring such offences, or attempting or encouraging them. **Non-Scheduled Offences** -- damaging or destroying property by fire; committed with intent to endanger life or being reckless as to the endangering of life; any offence committed by destroying or damaging a memorial; conspiracy to commit criminal damage. *[What is the value involved? ]* - If charged with criminal damage -- then accused will be given the chance to indicate plea. - Then having regard to prosecution representations, **ask if the value involved in the offence exceeds the relevant sum. 5000/- pounds** - 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**; not any consequential losses which might have been sustained as a result of the damage. **If it appears to the magistrates that the value involved clearly does not exceed the relevant sum, they must proceed as if the offence charged were triable only summarily**. ***[Accused has not right to elect trial on indictment. ]*** **If value exceeds then allocation on normal procedure** just for as any other either way offence. **If value not clear then must explain to the accused that he may consent to the summary trial and if given the summary trial may take place and on conviction fine or imprisonment will be limited.** Ask for consent If yes then summary trial, if no then normal procedure for allocation. Where the accused, at the plea before venue hearing, **indicated a guilty plea to an offence to which s. 22 applies the court must consider whether, having regard to any representations made by the accused or by the prosecutor, the value involved exceeds £5,000.** If it appears clear to the court that the value involved does not exceed £5,000, or it is unclear whether the value involved exceeds £5,000, **the court's sentencing powers are subject to the limits set out in the MCA 1980, s. 33, and there is no power to commit for sentence under the SA 2020, s. 14 or s. 18.** S33 -- **the maximum penalty that may be imposed in the event of conviction is three months' imprisonment or a fine of £2,500, and the court has no power to commit for sentence under the SA 2020** If the accused is tried summarily in a case **where the value involved clearly exceeded the relevant sum but summary trial was nevertheless offered and accepted, the penalties available are as for any either way offence (currently 12 months' imprisonment and/or a fine), there can be committal.** **criminal damage appeared on the indictment** by virtue of the Crown Court 'may only deal with the offender in respect of it in a manner in which a magistrates' court could have dealt with him'. **So, if value is less than 5000 pounds then any punishment is restricted to summary offences punishment.** *[How to determine the value involved? ]* - **Have regard to the representations**. No obligation to hear evidence. It comprises submissions, coupled with assertions of fact and sometimes production of documents. - If difficulty in establishing the appropriate basis for finding real value **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.** - The court may conclude that the value was clearly less than the relevant sum even though, in the absence of such an assurance and adopting an alternative method of calculation, the question would have remained doubtful and the accused could therefore have elected trial on indictment. *[What happens where there are two or more damages 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 aggregate value involved in the offences** (MCA 1980, s. 22(11). - In other words, 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. - **The aggregate value is the relevant value where the offences could be joined together in the same indictment under which governs joinder of counts in an indictment.** Where the offences are founded on the same facts (effectively, amounting to a single incident) or constitute a series of offences that are linked by closeness in time and geographical location. - Applies **where the accused is 'charged on the same occasion'** with two or more scheduled offences. Either on police charges or appearing in the MC to answer charges. - **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.** *[Are there special provisions for low value shop lifting (LVS)? ]* - **'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. - Where a person accused of low-value shoplifting is aged 18 or over (and has not appeared before the court to answer the charge before attaining that age), the magistrates' court must, in writing, ask whether the accused wishes to elect to be tried in the Crown Court. - This offence is treated just like any other either way offence but MC cannot deny jurisdiction. LVS with other charges (summary and either way), sent to CC, Prosecution dropped other charges. CC said unless D elects CC for LVS trial it cannot be tried on indictment. - Where the accused is 'charged on the same occasion' with **two or more offences of low-value shoplifting, the value of the offences is aggregated,** and s. 22A applies only if the total value does not exceed £200. - **LVS cannot be aggregated with other shoplifting offences not under s22A to reach 200 pounds.** - **Low-value shoplifting is not one of the offences listed in s. 40 and so, 'in the absence of an election by the accused it cannot be included as a count on the indictment'.** *[D23.30 -- What are the powers for committal of sentence? ]* S14 -- 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. - Magistrates' court may commit the offender (in custody or on bail) to the Crown Court to be sentenced. **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.** *[D23.42 -- s18 powers]* **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.** - One offence is related to another if the charges for them could be joined in the same indictment if. 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. When committed the CC can increase the sentencing powers of the MC in respect of the either way offence if - the magistrates stated (under s. 18(4)) that they considered their sentencing powers were inadequate to deal with the offender for that offence (and so they also had power to commit the offender for sentence under s. 14); or - the "offender is convicted by the Crown Court of one or more of the related offences". *[D23.55 -- s20 powers]* **Gives a power to commit for sentence which may be used to supplement a committal under the provisions listed in s. 20(1), *which include committal for sentence under ss. 14 to 19 (indictable only offences)****; committal for sentence in respect of the breach of a conditional discharge imposed by the Crown Court and committal where the offender commits a further offence during the operational period of a suspended sentence imposed by the Crown Court* (under sch. 16, para. 11(2)). 'Primary' committal powers. **When a magistrates' court exercises a 'primary' committal power in respect of an indictable offence (in this context, an either way offence), it may also commit the offender to the Crown Court to be dealt with in respect of any other offence of which he or she stands convicted (whether summary or indictable)** that the magistrates' court has jurisdiction to deal with as regards sentence. To take the example of a magistrates' court which has decided to commit an offender under s. 14, for one either way offence, a committal under s. 20 might (for instance) relate to: - **another, less serious, either way offence of which the magistrates have convicted the offender on the same occasion**; - a **summary offence of which they have convicted the offender on the same occasion.** *[D10.01 -- How to send cases from MC to 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, if the accused indicates, or is deemed to indicate, a not guilty plea at the 'plea before venue' hearing and the allocation results in a decision in favour of Crown Court trial; in either case, the case is sent for trial to the Crown Court under the CDA 1998, s. 51. - **Another way is voluntary bill of indictment.** *[D10.04 -- D10.10 -- What is the s51 procedure? ]* - If accused charged with an offence to which s51 applies then must send to CC, subject to MC's power of adjournment applies. - **Offences are indictable only, or either way where after allocation the decision is indictment or the accused has chosen CC.** - **Also send to CC if serious fraud case or child witness cases.** **Either way offences:** **Plea before venue -- not guilty -- then on allocation (representations by defence and prosecution) -- MC declines jurisdiction or accused elects CC then -- trial in CC.** *[What about 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). (if the offence is a summary offence, it is punishable with imprisonment or disqualification from driving). An **either way offence** is related to an indictable offence if the charge for the either way offence could be joined in the same indictment as the charge for the indictable offence. This requires consideration, inter alia, of whether the charges are founded on the same facts, or form (part of) a series of offences of the same or a similar character). A **summary offence** is related to an indictable offence if it arises out of circumstances that are the 'same as or connected with' those giving rise to the indictable offence. s\. 51(3)(b) uses the phrase, ***'appears to the court to be related to the offence'***, and said that this 'provides leeway to the justices. A determination that there is an apparent connection between the circumstances of the offences is something less than a determination that in fact they are connected.' **A summary offence and 'places an obligation on the Crown Court to consider whether in fact the summary offence is related to an indictable offence for which he was sent for trial'.** If an adult has already been sent to the Crown Court for trial under s. 51(1) and then subsequently appears before a magistrates' court charged with an either way or summary offence that appears to the court to be related to the offence sent for trial under s. 51(1), the court ***may*** send the accused to the Crown Court for trial for the either way or summary offence. - **This is a discretionary power**, not a mandatory duty. s. 51(4) that there will be a plea before venue and mode of trial hearing in respect of an either way offence to which s. 51(4) applies. *[What about co-accused D's?]* - Where the court sends an adult for trial (under s. 51(1) or (3)), and another adult appears before the court, either ***[on the same or a subsequent occ]***asion, charged jointly with the first adult with an either way offence, and that offence appears to the court to be related to an offence for which the first adult was sent for trial under s. 51(1) or (3). The court **must** (where it is the same occasion), or **may** (where it is a subsequent occasion), send the other adult to the Crown Court for trial for the either way offence. - Any other summary or either way offences related to the co-accused who has been sent under s51 (5), must also be sent to the CC. *[What if the co-accused is under 18?]* - It applies where the court sends an adult to the Crown Court for trial under s. 51(1), (3) or (5), and a child or young person appears before the court (on the same or a subsequent occasion) charged jointly with the adult with an indictable offence for which the adult is sent for trial under s. 51(1), (3) or (5), or charged with an indictable offence that appears to the court to be related to that offence. 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'. - I think any summary or either way offences of the child defences also to CC? Where a summary offence is sent to the Crown Court for trial under s. 51, the summary trial for that offence is regarded as having been adjourned by the magistrates' court without fixing the time and place for its resumption (s. 51(10)). - Under s. 51(13), the functions of a magistrates' court under s. 51 may be discharged by a single justice. *[Is the presence of the accused mandatory? ]* - s\. 51(1), applies where the accused is 'before a magistrates' court'. **If the accused does not appear in court for the s. 51 hearing, the court may issue an arrest warrant which are applicable, respectively, where the accused fails to answer to a summons or requisition, or fails to answer to bail, whether that bail was granted by the police or by a magistrates' court.** - The Court went on to hold that, even if s. 51 is treated as requiring the accused to be physically present, **that requirement is 'entirely procedural in nature', and so failure to comply does not deprive the Crown Court of jurisdiction to try the matter on indictment.** - Even if the non-attendance of the accused at a s. 51 hearing were to be treated both as unlawful and as falling outside s. 2(2) and (3) of the 1933 Act, whether the proceedings should be treated as invalidated would have to depend on the circumstances of the case (at \[104\]); where the accused has agreed or asked to be represented by an advocate rather than appear in person, it would be difficult for that accused to demonstrate prejudice unless something prejudicial to the accused occurred which would probably not have happened if he or she had been physically present (at \[105\]). *[What about summary offences in the CC?]* - If the accused is convicted on the indictment, the Crown Court must, assuming it agrees that the summary offence is related to the offence(s) sent for trial under s. 51, ask the accused to enter a plea to the summary offence. If a guilty plea is entered, the Crown Court may deal with the offender in respect of that offence in any way in which a magistrates' court could have done; **[if a not guilty plea is entered, the powers of the Crown Court cease in respect of the summary offence (save that the court may dismiss the charge if the prosecution inform the court that they would not desire to submit evidence in respect of it). ]** - It is submitted that (even though para. 6 is silent as to the possibility) it would also be open to a Crown Court judge to try the summary offence, sitting as a district judge (magistrates' courts) under the Courts Act 2003, s. 66 (see D3.17). *[What are the counts for summary offences? ]* the accused has been sent for trial for an indictable offence; and a summary offence to which s. 40 applies is either: - 'founded on the same facts or evidence as a count charging an indictable offence', or - 'is part of a series of offences of the same or similar character as an indictable offences which is also charged'; and c. the facts or evidence relating to the summary offence were disclosed 'to a magistrates' court inquiring into the offence as examining justices', or are disclosed by material served on the accused as part of the procedure for sending indictable only offences to the Crown Court under the CDA 1998, s. 51 and sch. 3 (see D10). Where a count for a summary offence is included in an indictment by virtue of s. 40(1), it is tried exactly as if it were an indictable offence, but**[, if the accused is convicted, the maximum penalty that may be imposed is that which could have been imposed for the offence by a magistrates' court. ]** - Indictment including offences pursuant to s. 40 remained valid even if the accused was acquitted of the indictable offence.  The MCA 1980, s. 22, merely provides that, where it is clear that the value does not exceed the relevant sum of £5,000, the court 'shall proceed as if the offence were triable only summarily' If the committing magistrates have not gone through the s. 22 procedure, the Court of Appeal has held that s. 40 will have no relevance, and the Crown Court is therefore not fettered by s. 40(2) to pass such sentence as could have been passed in a magistrates' court (count added in CC). In Gwynn the count had been on the indictment from the outset, and the court had applied its mind to the s. 22 consideration of the value of the criminal damage (so could only pass a sentence acc to MC power).