#16097 - First Hearings - BPC Criminal Litigation (formerly BPTC) 2024/2025

First Hearings

Format of the first hearing

• All adult defendants have first hearing before magistrates’ court, irrespective of the offence charged with.

• Nature & formation depends on the classification of the offence. [[for sake of clarity, this section deals with a single D charged with one offence. Effect of multiple Ds and/or charges considered later.

• Special rules re some types of crim damage: dealt with later in chapter.

• Before concluding a first hearing, as with any hearing the court must consider issue of bail.

• Location of subsequent appearance: depends on category of offence charged with.

• If accused charged with indictable (including either-way) offence & is in custody

  • the m’ court should, at first hearing, proceed ‘at once’ with allocation of case for trial (if an either-way offence); and, if required with the sending of accused to Crown Court for trial.

• If offence is summary or either-way allocation for summary trial:

  • magistrates should ‘forthwith’ give such directions as are necessary, either (on a guilty plea) to prepare for sentencing or for trial.

• Where the accused is on bail:

  • if the prosecutor anticipates a guilty plea which is likely to be sentenced in the magistrates’ court first hearing must be within 14 days of charge (or next available court date thereafter).

  • Where it is anticipated that the accused will not plead guilty, OR that the case is likely to go to Crown Court for either trial or sentence first hearing must be within 28 days of charge

• Usually, first hearing will deal with matters such as plea & allocation.

Early Administration Hearing

• Where a person has been charged at the police station the first hearing in m’court can be treated as an ‘early administrative hearing’

• Conducted by a single magistrate OR by a justices’ clerk.

• At such a hearing, accused will be asked if he wishes to obtain legal aid:

  • If he does necessary arrangements must be made for him to apply &, where appropriate, obtain it.

  • If necessary, hearing may be adjourned for this purpose.

  • On adjourning for such a purpose:, the magistrate, sitting alone, may remand the accused in custody or on bail.

• If conducted by a a justices’ clerk a clerk cannot:

  • A clerk cannot remand the accused in custody.

  • Cannot grant bail without consent of prosecutor and accused, UNLESS bail is on the previously imposed terms of existing police bail.

• CF, A SINGLE JUSTICE CAN remand accused in custody or on bail.

• NB ‘early admin hearings’ only applies where accused was charged at the police station: and so does not apply where accused is granted police bail and then charged by CPS using the written charge & requisition procedure.

  • However, there is nothing to prevent a m’ court operating a system of early admin hearings in all cases where a not guilty plea is expected.

Presence of accused at first hearings (re either-way offences, plea before venue & mode of trial hearings)

• Accused must be present at first hearing (subject to the 2 exceptions below):

  • Can be present by video link (see below).

  • If he fails to attend court can issue a warrant for his arrest.

• Exceptions to rule that accused must be present:

• (1) for plea before venue, 1 exception: ‘disorderly conduct’ exception

  • (a) accused is legally represented &

  • (b) court considers that due to the disorderly conduct of the accused before the court, it is not practicable for the proceedings to be conducted in his presence &

  • (c) the court considers it should proceed in absence of the accused.

  • In those circumstances, the representative is asked to indicate the plea-- if rep indicates a guilty plea, court proceeds as if accused had pleaded guilty. Otherwise, court proceeds to determine mode of trial.

• (2) determination of mode of trial, has 2 exceptions to need for accused to be presented:

  • (i) disorderly conduct, under s18(3):

    • by reason of accused’s disorderly conduct before the court, court decides it is not practicable for proceedings to be conducted in his presence. Where there is a legal rep present in court, he speaks on behalf of the accused.

  • (ii), [[good reason & consent ]] under s23 where:

    • (a) the accused is legally represented;

    • (b) the representative indicates to the court that the accused consents to the mode of trial proceedings being conducted in his absence;

    • (c) and the court is satisfied there is a “good reason” for the accused’s absence.

    • ‘Good reason’ is not defined, but sickness is an obvious eg.

    • In these circumstances: legal rep can consent to summary trial or elect Crown Court trial on behalf of accused.

    • So could go ahead with summary trial in accused’s absence.

    • If legal rep consents to summary trial: m’ court is not required to commence trial forthwith, they are entitled to adjourn if an immediate hearing is impracticable/undesirable, eg because of accused’s absence.

    • If court considers trial on indictment more appropriate OR legal rep doesn’t consent to summary trial court sends case to Crown Court, under s51 CDA.

Video Link (re pre-trial hearing)

• Presence via video link is sufficient

  • CDA 1998: an accused in custody may appear at a prelim hearing & sentencing hearing via ‘live link’ from prison/police station.

  • such an accused is to be treated as ‘present in court’. He must be able to see and hear, and be seen and heard, by the court.

  • CrimPR strongly encourages use of live links.

• Proceeding to sentence via link: If accused appears by video link at a prelim hearing & pleads guilty (or, for either-way offence, ‘indicates’ a guilty plea) - he can also be sentenced via the video link if the court proposes to proceed immediately to sentencing (provided it is not contrary to the interests of justice).

  • The offender can give oral evidence over live link if hearing proceeds to a sentencing hearing.

Pre-Sentence Report

• Where accused pleads guilty or indicates a guilty plea in m’ court: court should consider whether a PSR is necessary.

• Where a m’ court is considering committal for sentence; OR accused has indicated an intention to plead guilty in a matter which is to be sent to Crown Court

  • M Court should order a presentence report for use by Crown Court, if: they consider there is

    • (a) a realistic alternative to a custodial sentence;

    • (b) the accused may be classified a dangerous offender;

    • or (c) there is some other appropriate reason for doing so.

Disclosure of INITIAL DETAILS of prosecution case

• Timing, when must be served the prosecutor must provide initial deets of prosecution case, as soon as practicable, and in any event no later than beginning of day of first hearing provide to court ‘initial details’ of the prosecution case.

  • ‘Initial deets’ do not have to be supplied automatically to the accused, but if the accused requests them: - the prosecutor has to serve them as soon as practicable (and, in any event, no later than beginning of day of first hearing) on the accused.

  • If accused does not request initial deets: prosecutor must, in any event, make them available to accused at or before beginning of day of first hearing.

• What constitutes ‘initial details’,

  • Where accused was in police custody immediately before the first hearing in m’ court, initial deets comprise:

    • (1) a ‘summary of the circumstances of the offence’

    • AND (2) the accused’s crim record (if any).

  • Otherwise, initial deets =

    1. a summary of the circumstances of the offence;

    2. any account given by the accused in interview (set out either in summary or a separate document);

    3. any written witnesses statements (including exhibits) that the prosecutor has available at that stage & which he considers material to:

       • (a) plea

       • or (b) mode of trial (whether the case should be tried in m’ court or Crown Court)

       • or (c) to sentence;

    4. the accused’s crim record (if any);

    5. any victim impact statement (available statement of the effect of the offence on a victim or their family (or on others))

• these provisions apply equally to cases in youth court where accused is < 18.

• Initial deets must be sufficient to allow: the accused & the court, at the first hearing, to take an informed view on plea and (where applicable) venue for trial.

  • If accused is on bail & prosecutor does not anticipate a guilty plea at first hearing in m’ court the initial deets must be sufficient to assist the court to identify the real issues & give appropriate directions for effective trial (regardless of whether trial is to be heard in m’ court or Crown Court).

• The info required by the ‘Preparation for Effective Trial Form’ must be available to be submitted at first hearing; and parties must complete it.

• The CPS now uses electronic case files: these can be sent to defence representatives via secure email.

• Ordinarily, the failure to supply initial details does not constitute a ground upon which a court may dismissed a charge or give rise to an abuse of process application.

  • Usual remedy is for court to adjourn a first hearing and/or award costs to the defence for prosecution’s failure to serve.

Pleas & indications

• At a 1^st hearing for summary-only OR either-way offence: D will be asked to enter (summary only) OR indicate (either-way) their plea to a charge.

  • D can either plea/indicate:

  • (a) Guilty

  • (b) Not Guilty

  • (c) (On an either-way offence): give no indication.

• A guilty plea must be UNequivocal:

  • i.e., must be free of any suggestion or statement that D is not guilty either because they purport to rely on a defence, or refuse to accept an element of the offence.

  • Plea is not unequivocal IF; it is qualified with words that...