Law02 revision essays part4

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  • Created by: abic1
  • Created on: 21-05-18 15:13

Explain SUMMARY PROCEDURE

Defendant appears at next available sitting at magistrates

Pre-trial procedure, plea guilty or not guilty

Guilty- unlimited fine, 6 months prison (CJA 2003)

  • assess aggravating actors (use of weapon)
  • assess mitigating factors (offender was provoked)
  • assess previous record

Not guilty- set date for trial

  • decide bail or remand, presumption in favour of bail (BAIL ACT 1976)
  • unconditional bail- only have to turn up for trial
  • conditional bail- must live at a certain address

Duty solicitor at police station and first appearance at magistrates
Legal aid is means and merits tested for free representation at trial

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Explain EITHER WAY PROCEDURE

Defendant appears at next available sitting at magistrates, police decide bail or remand

Duty solicitor at police station and first appearance

Pre-trial matters in magistrates court

Plea before venue, legal aid sorted by magistrates

Guilty- magistrates hear aggravating and mitigating factors and sentence

  • if case is too serious, sent to crown court for sentencing

Not guilty- magistrates do mode of trial procedure to decide where to trial

  • summary trial at magistrates, indictment at crown court
  • if magistrates can hear case, defendant gets option to go to crown
  • trial at magistrates can still lead to sentencing at crown
  • if defendant chooses crown, magistrates to comittal procedure
  • magistrates decide legal aid and bail (BAIL ACT 1976)
  • unconditional bail- only have to turn up for trial
  • conditional bail- must live at certain address
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Explain INDICTABLE PROCEDURE

Defendant appears at magistrates at next available sitting
Police decide bail or remand
Duty solicitor for first appearance
Pre-trial matters at magistrates
Early administrative hearing, plea guilty or not guilty
Bail and legal aid sorted by magistrates (BAIL ACT 1976)

Guilty- sent to crown court for sentencing

  • magistrates decide bail or remand before sentencing at crown court

Not guilty- plea and directions hearing

  • send to crown court for trial

Presumption n favour of bail- innocent until proven guilty
Legal aid is means and merits tested

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Differences between EITHER WAY and INDICTABLE OFFE

Either way- decided on seriousness of the offence

  • tried at either magistrates or crown court
  • s47 OAPA 1861- 6 months in mags, 5 years in crown
  • mode of trial to decide where case is sent for trial

Indictable- serious criminal offence

  • only sent for trial at crown court with a jury
  • s18 OAPA 1861- can be up to life
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FACTORS CONSIDERED when sentencing

Courts consider maximum tariff for the offence committed
ABH = 5 years
Consider factors relevant to offence and offender (CJA 2003)
Seriousness of the offence

Factors relevant to offence:
aggravating factors = use of weapon, planned attack, joint enterprise
mitigating factors = severe provocation, spur of the moment

Factors relevant to offender:
aggravating factors = previous convictions for similar offences, resisting arrest, being on bail at time of offence
mitigating factors = early guilty plea, genuine remorse,family responsibilities

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AIMS of sentencing

s142 CJA 2003

Retribution- makes offenders pay for what they did, punishment

  • “eye for an eye”

Reparation- makes offenders pay some sort of compensation

  • makes them aware of harm they caused

Public protection- designed to protect public from wrongdoers

  • appropriate for dangerous/ violent offenders

Deterrence- discourage people from committing crime

  • see sentence imposed and are put off offending

Rehabilitation- help offender realise what they did was wrong

  • re-educate offender to become part of society again
  • idea is they won’t reoffend
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TYPES of sentencing

POWERS OF CRIMINAL COURTS ACT 2000

Custodial sentence- if so serious a fine/ community sentence isn’t enough CJA 2003
Mandatory life = minimum prison sentence set, monitored for life- murder
Discretionary life = max sentence is life, judge gives lesser sentence if appropriate- s18 OAPA
Suspended sentence = don’t have to serve sentence unless reoffend within 2 years
Fixed term sentence - length depends on max sentence and previous record ABH = 5 years

Community sentence- CJA 2003, unpaid work requirement up to 300 hours

Fines- unlimited, related to ability to pay

Discharge:
conditional- leave court free unless reoffend in 3 years, if reoffends, harsher sentence given
absolute- no penalty imposed, likely offender is technically guilty but not blameworthy

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