Pre-trial procedures.

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  • Created on: 30-03-14 15:37

Triable Either Way Offences.

1. First there is an early Administrative Hearing.  2. Plea Before Venue - the Defendant is asked whether he is pleading guilty or not guilty. If he pleads not guilty, Magistrates must carry out mode of trial Proceedings to decide whether the case is heard.  3. Mode of Trial - procedure is to establish where the case is heard and whether the magistrates accept jurisdiction of the case which is decided under S. 19 Magistrates Court Act 1980. They consider these factors when deciding:

  • Nature and seriousness of offence (e.g. breach of trust) 
  • Own powers of sentencing 
  • Representations from prosecution/defense. 
  • Complexity of the case. 
  • If crime was committed by organised gang. 

4. If Mag are prepared to accept case, then D can choose which court, but D can be sent to crown court for sentencing. 

If D pleads guilty, D has no right to request trial by jury in crown court, but D may be sent to crown court for sentencing. 


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Advantages/disadvantages of trial by Jury?

Advantages: 

  • Higher aquittal rates (60% cases are aquitted in crown court) 
  • Spending part of sentence in a remand prison ( If there is a long wait to be sentenced, time waiting in a remand prison is taken off actual sentence. 
  • Legal Aid (more likely to recieve legal aid as cases tend to be more complex)
  • More experienced legal representation (Must have certificate of advocacy, so this means lawyer is more experienced at presenting in court.) 
  • 12 members of public v 3 magistrates (public members are less case hardened and have less experienced so have higher aquittal) 

Disadvantages : 

  • Longer wait  (If D is not given bail, waiting period is spent in remand prison, impact on work etc) 
  • Cost (if D has to pay own legak costs, its more expensive than the magistrates.) 
  • Greater powers of sentencing (Could have harsher/longer sentence than magistrates) 
  • 12 public members v 3 magistrates (magistrates know the area so may be more sympathetic (e.g. if area has extreme poverty and you were acccused of theft.) 
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Advantages/disadvantages of trial in Magistrates C

Advantages: 

  • Restricted penalties - Up to 6 months in prison and £5000 fine, but can be sent to crown court.
  • Speed - Quicker process, only takes 16 days on average. 
  • Less Publicity - Less pressure for magistrates to decide on a certain outcome, e.g. riots due to Mark Duggan, Jamie Bulger case so horrific.
  • Formality - Less formal proceedings so length of trial is shorter so costs are lowered. 

Disadvantages: 

  • Conviction/aquittal rates - Only 15% magistrates cases are aquitted, higher chance of conviction. 
  • Legal Funding - Less likely to get legal finding due to limited funding being used on more complex cases. 
  • Lack of sentencing powers - Can send D to crown court for sentencing so can recieve a harsher/longer sentence if deemed appropriate. 
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Restrictions on Bail?

Repeat Serious Offenders 
Only have right to bail in exceptional circumstances if they have murdered etc before. 

Offences committed whilst on bail 

  • S.14 Criminal Justice Act 2003 
  • Mustn't grant bail unless the courts are satisfied that there is no significant risk of committing an offence whilst on bail. 

Adult Drug Users 

  • S.19 Criminal Justice Act 2003. 
  • Adult offenders who have been tested positive for dugs may not be granted bail where: 
  • Offender has possession of Class A drugs/intends to supply. 
  • Misuse of drugs contributed to offence/motivated by drugs. 
  • Refusal to participate in assessment in relation to misuse of drugs. 

Murder cases 

  • S.56 Crime and Disorder Act states that when D is charged with murder, bail can only be granted in crown court. 
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Summary Trial in Magistrates Court (not guilty ple

At start of trial, clerk will check D's name and address, and ask whether D pleads guilty/not guilty. 

Not Guilty  Plea:  

Prosecution begin outlinging facts of case/what case is about
Prosecution Examination in Chief (prosecution witnesses give evidence)
Defence cross-examination (Questions prosecution witnesses to test evidence.)
'No case to answer' - Defence can submit this if evidence  of prosecution doesnt prove case. 
Defence Examination in Chief - defendant/defence witness give evidence.
Prosecution Cross Examination - questions defence to disprove evidence.
Defence Closing Speech - points out weaknesses of case and tris to persuade magistrates to aquit D.
Magistrates decide if D is guilty/not guilty. If D is Guilty Magistrates decide on sentence.  

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Summary Trial in Magistrates Court (guilty plea)

Clerk checks defendants name and address and asks if D pleads guilty/not guilty. 

Guilty Plea: 

  • Crown Prosecutor (CPS) - will give court a resume of the facts. 
  • If D agrees with the facts then the trial continues.HOWEVER if D does not agree with the facts, a Newton Hearing is held to establish the facts. 
  • Defendants details - D's past record of convictions and other info (e.g. background/financial position) is given to magistrates. 
  • Magistrates consider any relevant reports about D (pre-sentencing report/medical report) 
  • Speech in Mitigation - D can make a mitigation speech detailing any matter which might perusade magistrates to give a lenient sentence. 
  • Magistrates decide on sentence. 
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Appeals from magistrates to Crown Court.

Appeals to Crown Court only availiable to the defence. 

The D has automatic right to appeal.

 if pleaded guilty at magistrates, can only appeal against sentence, if pleaded not guilty, can appeal against conviction and sentence.

The case is completely reheard at crown court, and they can confirm, increase, decrease sentence or confirm, reverse or vary the conviction. 

If there is a point of law to be decided on then a further appeal by the way of 'case stated' can be made to Quens Bench Divisional Court. 

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Appeals from magistrates to QBD

Appeals on a 'point of law' are availiable to the prosecution and defence. 

Appeals direct from magistrates or from a crown court appeal. 

Panel consists of 2/3 high court judges. 

Used by defence against a conviction, and by prosecution against aquittal. 

Cannot be used to challenge sentence. 

Appeal based on decision being made by a mistake about the law. 

Court may confirm, reverse or vary conviction, or sent it back to magistrates to implement the decision on the law. 

A further appeal can be made to the supreme court on a point of law of general public importance. However cases nee d 'leave of appeal' to be heard by the supreme court. 

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