#10398 - First Appearances - BPC Criminal Litigation (formerly BPTC) 2024/2025

FIRST APPEARANCES

FIRST APPEARANCE

• every adult must make first appearance before mags'

CLASSIFICATION OF OFFENCES

• summary only

  • must be tried AND sentenced in mags'

  • all statutory: specify max penalty for summary conviction, with NO alternative for conviction on indictment

• indictable only (indictable)

  • must be tried AND sentenced in mags'

  • all common law offences = indictable only

  • statutory offences: provide max penalty for conviction on indictment, with NO alternative for summary conviction

• either way (indictable)

  • tried in mags' OR CC AND sentenced in mags' OR CC

  • statute provides alternative penalties for summary conviction + conviction on indictment OR re-classified by statute (listed MCA 1980 sch 1)

MAGS' SENTENCING POWERS

• fine AND / OR imprisonment (may be suspended)

• either way offences

  • imprisonment

    • max 6 months' imprisonment

    • max 12 months aggregate

  • fine

    • max 5k per offence unless statute prescribes more

    • no max aggregate

  • BUT can commit to CC for sentence if think powers inadequate

• summary offences

  • imprisonment

    • max 6 months' imprisonment OR what prescribed by statute (whichever less)

    • max 6 months' imprisonment regardless of how many offences charged

  • fine

    • standard scale

      • level 1 200

      • level 2 500

      • level 3 1,000

      • level 4 2,500

      • level 5 5,000

    • no max aggregate

INITIAL DETAILS OF PROS CASE (Part 10 CrimPR)

• must be provided for any case triable in mags’ i.e. summary AND either way

• procedure

  • prosecutor must provide to D AND court at or before beginning of day of first hearing

  • to give effect to OO, defence advocates should be ready to go through disclosed material with accused without adjournment - cases can be put back in list to allow for this

• contents

  • must include (in writing)

1. summary of evidence pros case will be based on (WSs etc.); OR

2. statement(s), document(s) or extracts setting out facts case will be based on; OR

3. any combo of a) and b); AND

4. D’s pre-cons

   • prosecution have choice (a), (b) or (c) D NOT entitled to receive WSs

• consequences of failure to serve

  • adjournment (must adjourn unless NO prejudice caused to D) + costs sanction

  • CANNOT dismiss charges

  • OO and active case management powers enable court to order disclosure

CASE MANAGEMENT IN MAGS'

• = active case management by court, assisted by parties:

  • take plea at first hearing (or if can't take, find out what likely to be)

  • if G plea, court should pass sentence on same day if possible (unless committing to CC)

  • if NG plea, ID issues + inform court

APPLICATION TO DISMISS CHARGES ref: SGS 5

• D may apply orally OR in writing to CC for charges to be dismissed

• when can application be made?

  • after service of documents on which charges based but before arraignment

• the test

  • judge must dismiss charge (+ quash count in indictment) if evidence against D NOT sufficient for him to be properly convicted

SUMMARY OFFENCES - FIRST APPEARANCE PROCEDURE

1. pros provide initial details

2. plea

1. G sentence (same day if possible)

2. NG case management:

   1. set trial date

   2. ID issues in case (case management form)

   3. decide timescale

   4. plan Ws + evidence

INDICTABLE ONLY OFFENCES - FIRST APPEARANCE PROCEDURE

• NO plea - purely administrative

• mags' send to CC by s51 Crime and Disorder Act 1998

EITHER WAY OFFENCES - MODE OF TRIAL PROCEDURE (PLEA BEFORE VENUE)

Must D be present? (s18(2) MCA)

• plea before venue (PBV) can only take place in D's absence if:

1. unruly behaviour

   1. D has legal representation; AND

   2. impracticable for D to attend due to disorderly conduct; AND

   3. court thinks it should proceed in D's absence

2. D's legal rep indicates that D consents

   1. D has legal representation; AND

   2. D consents; AND

   3. good reason for absence e.g. illness

3. D in custody + court decides to use live TV link

• proceedings then continue as normal with legal rep speaking on D's behalf i.e. indicating plea etc.

Standard procedure (s17 MCA)

• applies to Ds 18+

• D must be present, unless one of exceptions above applies

• usually 2 JPs

• preliminaries

1. pros provide initial details

• stage 1: plea before venue

2. charge read to D

3. D asked to indicate whether intends to plead G or NG should case proceed to trial

1. G sentence:

   1. court proceeds as if hearing = summary trial from beginning; AND treats indication as if = G plea at summary trial

   2. = first reasonable opportunity

2. NG mode of trial

3. no indication = deemed to = NG mode of trial

• NG plea stage 2: mode of trial

4. pros

1. make representations as to whether summary trial / trial on indictment more suitable i.e. facts of offence from pros view; AND

2. indicate whether D has any pre-cons

5. defence make representations as to whether summary trial / trial on indictment more suitable i.e. facts of offence from defence view

6. court decides whether summary trial / trial on indictment more suitable

1. must consider:

   1. whether mags' sentencing powers adequate (presumption should be tried summarily unless INadeqate)

   2. representations by pros + defence, and facts advanced by both

   3. definitive allocation guidelines

2. if decide summary trial must remain D that all sentencing options open (can commit for sentence under s3 PCC(S)A)

7. summary trial more suitable

1. D can ask for indication of whether, if pleaded G, sentence would be custodial OR non-custodial

1. mags NOT obliged to give

2. if D does NOT change plea continue as normal (mags' OR CC NOT bound by indication)

3. if D changes plea repeat plea before venue (if mags' indicated non-custodial, CAN'T then give custodial on G plea)

2. court asks whether D consents to summary trial

1. Y case proceeds in mags'

2. N D sent to CC by s51 CDA

8. trial on indictment more suitable D sent to CC by s51 CDA (NO consent required)

• G plea OR found G on summary trial sentence

9. commit CC for sentence if:

1. offence so serious mags' sentencing powers insufficient (s3 PCC(S)A)

   1. mags' should NOT commit

      • if found G after trial, unless new info has come to light since mode of trial (BUT within powers to do so)

      • if D has legitimate expectation mags' will sentence e.g. indication no committal when adjourned for PSR

2. dangerous offender

10. otherwise, sentence in mags'

Changing mode of trial

• on application of pros

  • pros can apply to ask mags' to reconsider decision to try summarily

  • must apply before summary trial begins

  • mags' will only grant if mags' sentencing powers inadequate + if are D sent to CC by s51

• withdrawal by D of consent to summary trial OR late giving of consent

  • mags' have discretion (unless most pros evidence heard): consider broad justice of situation

  • e.g. D unrepresented + did NOT understand significance of choice

Advantages and disadvantages of mags' and CC trial

• speed

  • mags' quicker

• expense

  • mags' cheaper

• informality

  • mags' more informal

• sentence

  • mags' sentencing powers limited (though nullified for either-way offence: can commit to CC for sentence)

• division between tribunals of fact + law

  • mags'

    • tribunal of fact = tribunal of law

    • hear evidence before deciding on admissibility then endeavour to forget it (ineffective)

  • CC

    • tribunal of fact = jury / tribunal of law = judge

    • judge alone decides admissibility evidence only goes before jury if admissible

• legal submissions

  • mags' = lay people (unless DJ)

  • CC = judge

• appeals

  • appeal from mags' - DON'T need leave

  • appeal from CC - need leave, complex procedure

• acquittal rate

  • CC has higher acquittal rate

SPECIAL CASES

Criminal damage, other than where damage caused by fire (s22 MCA)

• the rule

  • if value of damage 5k mags' must proceed as if offence = summary only

• procedure

  1. court determine value

(if series of offences of same / similar character, court uses aggregate value in determining mode of trial for each offence)

1. 5k = summary only summary trial

   1. NO right to trial on indictment

   2. if convicted, CANNOT be committed to CC for sentence

   3. max sentence = 3 months' imprisonment OR 2,500 fine

2. >5k = triable either way mode of trial

   1. max sentence

      • mags may commit to CC for sentence

      • tried summarily = 6 months' imprisonment OR 5k fine

3. uncertain

   1. IS right to trial on indictment

   2. mags' ask if D consents to summary trial

      • Y summary trial

        • if convicted, CANNOT be committed to CC for sentence

        • max sentence = 3 months' imprisonment OR 2,500 fine

      • N mode of trial

Domestic burglary

• 3rd offence of domestic burglary since 1999, mandatory minimum sentence of 3 years (unless circumstances make it unjust)

• mags' must treat as triable only on indictment and send under s51

Notices in serious or complex fraud

• case transferred straight to CC by means of notice given by the pros, if pros think evidence in case

1. sufficient for D to be put on trial for the offence; AND

2. indicative of such serious/complex fraud that it needs to be dealt with by CC

Notices in certain cases involving children

• case transferred straight to CC by means of notice given by DPP, if DPP thinks:

1. evidence in case sufficient for D to be put on trial for the offence; AND

2. child will be called as witness at trial; AND

3. to preserve welfare of child case should be dealt with by CC

RELATED OFFENCES

Summary only and either way offences related to indictable offences (s51(3) CDA 1998)

1. main offence:

   1. indictment only OR either way; AND

   2. allocated to CC OR D has elected CC trial; AND

2. summary offence / either way offence is related to the main offence; AND

   1. summary offence = common assault, TWOC, driving whilst disqualified, criminal damage (punishable with imprisonment / driving disqualification)

shall send to CC for trial under s51

Adult co-Ds (s51(5) CDA 1988)

• if D1 already sent for trial for indictable only offence AND D2 ...