Pretrial Procedure - criminal

Notes: Criminalnotesas2016criminalnotesas2016.doc 

Copy down the key words and phrases. Then watch the video clip and write a paragraph linking the words and phrases to the clip.

 

The question is: Explain the pretrial procedure for Ken's charge of Rape, an indictable offence (5).

Keywords:

  1. Pretrial
  2. Earlly administrative hearing
  3. Plea and directions hearing
  4. Bail Act
  5. Access to Justice Act

http://www.bbc.co.uk/news/uk-england-22520755

The category of offence dictates the court for trial:

 

  1. Summary offences - tried in magistrates' court only, e.g., assault and battery with a maximum prison sentence of 6 months.
  2. Indictable offences - tried in crown court only, e.g. S18 Offences Against the Person Act 1861 (OAPA) Causing GBH with intent with a maximum prison sentence of life.
  3. Triable-either-way offences may be tried in either court!, e.g. S47 OAPA 1861 Assault occasioning Actual bodily harm and S20 (OAPA) malicious wounding both with a maximum prison sentence of 5 years.

 

Pre-trial matters:

 

 

This is the term given to All decisions made by the court before the trial of the Defendant.

All cases start in the Magistrates court with pretrial matters being sorted out by Magistrates. The pretrial hearing will take a short time and is made up of different elements:

 

Early Administrative hearing: The Defendant (D) will be read out the criminal offence with which he is charged by the court clerk and will be asked to plea guilty or not guilty.

Guilty pleas

For summary and triable either way offences if the D pleads guilty the Magistrates will hear evidence of mitigation and aggravating factors and either adjourn the case for reports (e.g. probation officer report) or sentence straight away if they can. If the triable either way offence is too serious for their sentencing powers they will send it to the Crown Court for sentencing.

For Indictable offences the Magistrates will note the D’s plea and formally send the case to Crown Court. Bail and legal aid will be dealt with at the Early Administrative hearing.

Not Guilty pleas

Where the D pleas Not guilty the Magistrates will decide whether issues of Bail / Reports / Legal Funding need to be resolved before a trial can commence.

 

Bail:

Under the Bail Act 1976 Section 4 all Defendants have a general presumption of the right to bail. This means that they are allowed to remain free until their trial takes place, innocent until proven guilty.

There are two types of Bail, conditional and unconditional.

Unconditional: This where the court imposes no conditions to the D’s bail except to turn up for any court hearings and the trial.

Conditional: This is where the court imposes conditions the D must agree to before he is allowed to be released from the court. This can include reporting regularly to a police station, surrendering of a passport, living at a specific address or a bail hostel.

If the D refuses the conditions of his bail or is denied bail the court will remand (send) him to prison until the date of his trial.

CPS guidelines on Bail.

 

Bail will be refused for a number of reasons:

  1. The D has been previously denied bail due to failing to meet any conditions
  2. Committing an offence whilst on bail
  3. The D could interfere with a witness or it is for his or her own protection
  4. The D is charged with a serious offence such as murder or manslaughter (D will only be granted bail in exceptional circumstances).

 

For all Non Fatal offences it is likely that the D will be granted bail unless the Magistrates believe there are factors that are exceptional in the case. The Magistrates will look at:

  1. The Offence: The nature (type) and seriousness of the offence
  2. The Defendant: His character, associations, community ties
  3. Strength of Evidence
  4. Record: Bail before
  5. Record: Criminal record (previous convictions)
  6. Any drug use by the D.

 

The Magistrates must give a reason if they decide to refuse bail and remand the D until the trial.

 

Legal Aid:

For Summary offences the D will be allowed to talk to a duty solicitor to discuss his plea and the evidence. For all not guilty pleas the D will be given legal representation and help financially (legal aid) so that he can be properly represented in all court hearings, including the Pretrial hearings. The rules regarding legal aid are set out in the Access to Justice Act 1999.

 

End of the Early Administrative Hearing

Summary offences and a not guilty plea: The Magistrates will arrange a court date for the trial and for witnesses and evidence to be gathered for the trial and adjourn the case until the next court hearing or trial.

 

Indictable offence and a not guilty plea: The Magistrates will send the case to the Crown Court for a plea and directions hearing, another name for an Early administrative hearing in the Crown Court.

 

Triable either way offences and a not guilty plea: There are special procedures that the Magistrates must follow for these cases, which normally are dealt with as soon as the early administrative hearing has resolved Bail and legal aid matters.

Task: Click this link and complete the online application to see if you can get legal aid for the following scenario:

You are getting divorced, there has been no violence in the split up, you are not on benefits and you earn £15000 per anum income. Can you get legal Aid?

 

Mode of trial hearing for triable either way offences where D pleas not guilty

Where the D pleas not guilty the Magistrates have to firstly decide if they can deal with the case. If the case is complicated or very serious, such as a S47 or S20 OAPA offence, then they will tell the D the case will have to be committed to the Crown Court for all future hearings and the trial. The Magistrates find out how serious and complicated the case is by questioning the defence and prosecution and looking at the facts of the case and the past criminal record of the D.

 

If the Magistrates believe they can hear the case at a trial then the D will be able to decide whether to have his case heard in the Magistrates court or the Crown Court. It will be pointed out to the D that if he chooses a trial in the Magistrates court and is found guilty the Magistrates can still send the case to the Crown Court, if they believe their sentencing powers are not sufficient to punish the D. For example in a S47 ABH case or S20 malicious wounding case the maximum the D can be sentenced to in a Magistrates court is 6 months in prison. If the case was sent to Crown Court the maximum prison sentence then goes upto 5 years.

 

Indictable offences

Before the trial the Magistrates will briefly see the D to formally send them to Crown Court. Magistrates will not ask the D to make a plea as this done in the Crown Court. At the Magistrates issues such as legal aid and bail will be dealt with, as previously discussed. 

 

Once the D appears in Crown Court, at a Plea and Case Management hearing, he will be asked to make a plea to the charges. If he pleads guilty the case will be adjourned for presentence reports, e.g. probation report. If the D pleads NG bail and legal aid will be considered again together with the setting of a trial date and the calling of witnesses and evidence. The trial will take place on average 12 weeks after this hearing before a judge and jury.

Answering an exam question

 

 

 

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