Timetable after charge bail PDF

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Personal Notes by BPTC student...

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Timetable After Charge (1) Bring before Mags •

s46 PACE - A person in police custody must be brought before Mags: • “ As soon as is practicable and in any event no later than the first sitting after he is charged with the offence.” • This can be done before a single JP. • D must be asked if he wants legal representation, and if so provision must be made. Mags must deal with where it will be charged, and bail.

(2) Initial Details •

•

When are you entitled to them? • Only entitled to these in Mags (summary/EW offences). • No details for indictable (E.g. murder) per Pt 10 CPR. • Police must serve under r10.2 CPR “ as soon as practicable”and “ in any event, no later than the beginning of the first hearing” . • There are no specific consequences for non-compliance, but most likely non-disclosure will be prejudicial to D, so Mags likely to adjourn. What are “Initial Details”? • r10.3 CPR defines them as: • A summary of the evidence; or • Any statement, document or extract setting out the facts; or • Any combination of the above; and • D’ s previous convictions.

(3) Case Management Form & Time Limits •

•

Case Management Form • Once plea of NG entered, case will be adjourned to prepare for Trial. • There is a standardised form in four parts: 1. Part 1 - Completed by Prosecution and requires prosecution details, and case management information to be provided, and directions requested by Prosecution. 2. Part 2 - Equivalent for the defence. Notifies D that trial may continue in his absence, and early plea gets sentencing discount. 3. Part 3 - (a) Each side must list intended witnesses and (b) The court must specify whether intended prosecution witnesses are justified. 4. Part 4 - Court must record its directions for trial. • Whilst this form is to avoid unnecessary pre-trial hearings, some binding pre-trial hearings are necessary under s8A MCA 1980 to resolve issues such as evidence (bad character, hearsay) or issues of law (abuse of process etc). Time Limits o The following time limits apply per Criminal PD, Annex E:

Matter

Time Period

Written admissions

14 days;

Defence Statement (r22.4 CPR, s6 CPIA 1996) & Defence Witnesses (s6C CPIA 1996) with Application for Prosecution disclosure (r22.2-22.5 CPR, s8 CPIA 1996) -

14 days after prosecutor’ s disclosure;

Prosecutor’ s Response

14 days after that

Measures to assist witnesses

within 14 days.

XX when D isn’ t represented -

Within 7 days (r31 CPR)

Within 28 days, or if attending notice Expert Evidence - meeting of experts within 14 days of this... Parties must no- within 7 days after this, reliance 14 days tify immediately after this if trial length after this, is affected. Notice of Hearsay (r34.2,-3)

by prosecutor within 14 days, or asap if defendant.

Notice of Bad Character -

14 days (r35.2-4 CPR)

Evidence of Complainant’ s Previous Sexual Behaviour -

28 days of prosecution disclosure (r36.2-5);

Skeleton Argument

at least 14 days before trial.

Skeleton Argument

in reply 7 days after that

Certify readiness for trial

at least 14 days before trial.

P's Initial Disclosure

r10 allows D to request Initial Details before day of first hearing. If no request is made, and in any event, P must serve ASAP and no later than the beginning of the day of the first hearing (r10.2(2)).

Early Guilty Plea Hearing (EGPH)

This is the time D can get "full credit". This should take place 10-14 days after sending date in Magistrates, unless PreSentence Report is required, then within 4 weeks.

Preliminary Hearing at CC

This should take place 10-14 days after sending to CC from Mags EXCEPT in murder/terrorism cases where within 48 hrs. (as Mags have no jurisdiction to remand in custody)

PCMH Advocates' Questionnaire

This is filled in by P and D, and the hearing takes place in presence of D. The Court deals with: • Final indictment - any amendments? • Trial date? • P’s Evidence (served all? If not, why and when?); • Expert Evidence (necessary?) • W arrangements (estimated date of attendance, length of evidence, measures!) • Any special measures; • Bad character applications; • Witness Summons; • Agreed facts and issues; • Dispute facts and issues; • Defence Statement; • Disclosure Issues; • Defendant’s Interview (To agree redacted interview disclosure) • Hearsay applications;

• PCMH (Usually, last hearing before Trial, unless "Preparatory Hearing" is necessary (eg: usually in complex fraud cases. Before jury is sworn but PH forms part of trial itself)

Admissibility & legal issues;

This should be held within: • 13 wks after sending for trial, if D is in custody; • 16 wks after sending for trial, where D is on bail.

o

(4) Advantages/Disadvantages of CC or Summary Trial Advantages of Summary Trial •

• • • •

•

Lower penalties (6m imprisonment (1 year concurrent), £5000 fine) plus Guilty Plea deduction. But, you must tell client in CC the penalties are higher than in Mags. BUT you must also say, you won’t necessarily get a stiffer penalty in the CC. Where Mags think sentencing powers are insufficient and commit case to CC for sentence, CC Judge may simply pass sentence that Magistrates could have awarded. So higher maximum, not necessarily lower sentence. Hear case quicker; Local Knowledge; CC is intimidating, so prefer Magistrates. Appellate - From Mags get retrial in Crown Court (as of right - no reason), before CC Judge and two lay magistrates, while in CC you need to satisfy ground that conviction is “unsafe”. Often Prosecution witnesses won’t turn up the second time round in retrial! So two bites at the cherry! Costs in CC are greater, if you don’t qualify for legal aid.

Advantages of CC Trial • •

Judges more experienced in CC - (e.g.: if saying absence of MR or something...) Lower conviction rate o If raise point of law (e.g. exclusion of inadmissible hearsay - point of law) so jury kicked out and never hear the evidence. o In mags, you have to argue the evidence out in front of the magistrates. But Magistrates now know what it is. If they decide this is inadmissible, they’ve heard it. Is it possible for them to really put this out of their mind?

Allocation (1) Bring before Mags Summary Only The Procedure for summary only offences is s9 MCA 1980: 1.

Initial Details

2.

Arraignment (State substance of offence to D, and ask him to plead); a.

Guilty Plea - P gives a summary of facts, PNC sufficient to give sentence. D gives plea in mitigation. Mags may sentence or adjourn for Pre-Sentence Reports. (s10 MCA 1980)

b.

NG Plea - Adjourn to prepare for trial. Take estimate of hearing from Case Management Form, list for trial, bail, other directions.

Triable Either Way 1.

Initial Details

2.

Plea & Indication (The “Plea Before Venue”)

3.

Allocation a.

The Mags will decide whether to try summarily or commit to CC (s19 MCA): i. Prosecution and Defence may make representations; ii. Mags shall consider Allocation Guidelines - Presumption of Summary trial:

b. 4.

1.

Nature of the case;

2.

Serious character of offence;

3.

Adequacy of Sentencing Powers

4.

Any Other Matters making more suitable for CC (e.g.: Lots of witnesses - too complex for Mags)

Allocation must be notified to D under s21 MCA 1980.

Indication of Sentence a.

D may seek an “ indication of sentence”(custodial or noncustodial).

b.

Mags don’ t have to give it, per s20(4), but if it does, need to ask D whether he wishes to reconsider his plea per s20(5). i. G - proceed as summary trial per s20(7).

ii. If doesn’ t request indication, or retains NG plea after indication, the court shall nevertheless ask whether he consents to being tried summarily (and proceed to trial), and if doesn’ t consent send "forthwith" to CC under s51 CDA 1998. c.

5.

Under s20A MCA no court (whether mags or not) can impose a custodial sentence for the offence unless this was indicated in the indication of sentence. But otherwise, the indication is not binding on any court! Thus can’ t be challenged on this basis on appeal!

Elect for Trial in CC or Consent to Trial in Mags a.

If D elects for CC trial, it must be sent forthwith to CC - s51 CDA 1998.

b.

If D consents for summary trial, trial date is set, and must inform D that he may nevertheless be committed to CC for sentence per s20(2)(b) MCA 1980 . There is no rule that requires trial and sentence take place in the same court.

Plea Before Venue Process: 1.

Prosecution Stands & Opens Facts (reference to Previous Convictions)

2.

Prosecution makes submissions on Allocation Guidelines and s19 MCA factors.

3.

Defence have a right but do not exercise it. If it is allocated to summary trial, D can elect at later stage for CC trial.

4.

Mags decide whether sentencing powers are sufficient with reference to Allocation Guidelines. (E.G.: Theft in breach of trust is a serious aggravating factor thus need greater sentencing powers so may commit to CC).

5.

Adjourn for Trial Date under s10 MCA 1980, or proceed. Must complete Case Management Form detailing P’ s witnesses, D’ s witnesses, Court directions for trial etc.

6.

Bail.

7.

(Sentence - If trial proceeds)

Indictable Offence

•

D must attend Magistrates, but Mags have no jurisdiction, so can’t take any plea.

•

Must send forthwith to CC - s51 CDA 1998.

•

Preliminary Hearing listed to discuss issue of bail - Mags have no power for bail in murder case.

Summary-Only & Indictable-Only Offences

•

If D is charged with an indictable offence and a summary/either way offence, allocation depends on two things:

•

Are the two offences related? If unrelated, try in Mags, and adjourn the matter sine die (without date) until indictable matter is concluded.

•

If related, as follows:

Summary matters that can be sent for TRIAL and included on an indictment (s.40 CJA 1988) (1) Common Assault (2) Assaulting a Prison or Secure Training Centre Officer (3) Taking a motor vehicle or other conveyance without authority (4) Driving a motor vehicle while disqualified (5) Criminal Damage

•

Summary matters that can be sent for PLEA ONLY (s.51(3) CDA 1988)

Any summary matter not listed ins.40 CJA 1988but that is punishable by disqualification from driving OR imprisonment

Summary matters that CANNOT be sent for PLEA or TRIAL despite being related to the more serious offence Any other summary matter, i.e. one not ins.40 CJA 1988 and not punishable by disqualification from driving or imprisonment.

Bail Time Limits When to Decide bail?

•

Sch 1(IIA) BA 1976 - If court refuses bail on previous occasion, court’ s duty is to consider bail at each subsequent hearing.

(1) Right to Bail

•

Basic right to bail - s4 BA 1976.

(2) Procedure

•

Court must give reasons for its withholding of bail - s5 BA 1976.

•

There is a two stage enquiry to withhold bail:

•

Is there a “real prospect” of custody if convicted? Theft is indictable, so strictly speaking, even stealing a penny is indictable. If there is no real prospect for the sentence being custodial, ground of objection cannot succeed. and

•

Are any of the grounds of objection in Sch 1 BA 1976 satisfied?

Factors when determining bail:

•

When deciding on the right to bail, the court shall have regard to (Sch 1(9)):

•

the nature and seriousness of the offence;

•

D's character, antecedents, associations and community ties;

•

D's record as respects the fulfilment of his obligations under previous grants of bail;

•

Except when adjourning for inquiries or a report, the strength of the evidence of his having committed the offence,

•

if there are substantial grounds for believing that D, if released on bail (whether subject to conditions or not), would commit an offence while on bail, the risk that D may do so by engaging in conduct that would, or would be likely to, cause physical or mental injury to any person other than the defendant,

•

as well as to any others which appear to be relevant.

(3) Conditions on Bail

•

Statutory conditions per s3(6) BA 1976. D may offer these to overcome pf objections to bail:

•

Residence at given address (e.g. bail hostel, or probation hostel)

•

Curfew;

•

Reporting to Police at given times (to check still ‘in town’)

•

Surety (TP pays, liable to secure D’s return to court) s3(4) BA 1976

•

s3(7) BA 1976 - If D is under 17, a condition may only be imposed on parent: 1.

With parent’s consent;

2.

D will not attain 17yo before time appointed to surrender to custody;

3.

Surety is limited to £50 or less.

•

Security (D pays money to be forfeited if he does not answer bail) s3(5) BA 1976

•

s5 an order of forfeiture only takes effect after 21 days. In meantime, court can serve notice of forfeiture.

•

Restriction on where D may go during bail;

•

Restriction on who D can contact during bail.

•

Electronic Tags on persons over 18 who would not otherwise be granted bail, and electronic tags are currently available in local justice area per s3AB BA 1976.

(4) Arrest for Breach of Bail Surprisingly - Breaking bail conditions is not the same as failing to surrender to bail (turning up on the date given on your bail sheet whether to a court or to return to a police station). Failure to surrender is a crime (s6 BA 1976). Breach of bail conditions is not a crime! If you break bail conditions you can be arrested (s46A(1A)PACE). BUT they can only release you on bail again with the same conditions or charge you, and then either bail you or take you to Court the next day.

•

s7 Bail Act gives power of arrest allowing officers to arrest those who are in breach, or about to be so. E.G.: If bail must be indoors at 8pm in London, but at 7:30pm D is in Scotland. Officer can arrest there and then!

•

MUST BE BROUGHT BEFORE JP ASAP, AND IN ANY EVENT WITHIN 24 HOURS s7(4) BA 1976.

•

Can give a “warrant backed for bail” (unheard of... only usual example is for D who is inpatient so has to stay at hospital). Usually, issue a “warrant not backed for bail” commanding constable to arrest D, and not grant bail.

Exceptions to Right to Bail (1) Need a "Real Prospect" of Conviction NB: For non-imprisonable offences, as there is no “ real prospect”of conviction, no grounds for custody unless activated by ‘ trigger event’ (unless own safety) - i.e D is arrested for breach of bail conditions under s7 BA 1976.

(2) Need a Ground below: Sch 1(I) Indictable Imprisonable Offences SGfB: D will FAIL TO SURRENDER

✓ (Sch 1(I)(2))

Sch 1(II) Sch 1(1A) Summary Only Impris- Summary Only NonImprisonable Offences onable Offences

Prerequisite: (i) Failed to surrender to custody in previous case; or (ii) D is arrested on breach of bail (Sch

Prerequisite: (i) D is arrested on breach of bail

1(1A)(3)) SGfB: D will COMMIT FURTHER OFFENCES

✓ (Sch 1(I)(2))

Prerequisite: (i) D is arrested on breach of bail (Sch 1(1A)(3))

Prerequisite: (i) D is arrested on breach of bail

SGfB: D will INTERFERE WITH WITNESSES/OTHERWISE OBSTRUCT COURSE OF JUSTICE SGfB: D will CAUSE PHYSICAL/MENTAL INJURY TO PERSON, OR CAUSE "AP" TO FEAR IT

✓ ✓

Prerequisite: (i) D is arrested on breach of bail

Prerequisite: (i) D is arrested on breach of bail

(Sch 1(1A)(3))

(Sch 1(I)(2))

✓

✓

✓

✓

✓

(Sch 1(I)(3))

(Sch 1(IA)(5))

(Sch 1(II)(3))

✓

✓

✓

✓

✓

Sch 1(I)(5))

Sch1(IA)(8)

X

✓

✓

Sch 1(I)(2A))

Sch 1(I)(3)) - But needs SGfB he will commit a further offence on bail

✓

X

X

✓

X

X

(Sch 1(I)(2ZA)) Need not be granted bail FOR THEIR OWN PROTECTION

Need not be granted bail IF D IS ALREADY SERVING A SENTENCE

(Sch 1(I)(2A)) Need not be granted bail if THERE IS INSUFFICIENT INFORMATION TO MAKE A BAIL DETERMINATION Need not be granted bail if D was ON BAIL AT THE TIME OF THE OFFENCE

Need not be granted bail if THE COURT ADJOURNS FOR A P.S.R AND IT'S IMPRACTICABLE TO COMPLETE P.S.R WITH D ON BAIL

BREACH OF BAIL (On its own!)

(Sch 1(I)(6)

X

(1) Blood sample confirms use of Class A drug; (2) SGfB misuse of the Class A drug caused or contributed to commission of the offence, or motivated by misuse of such drug. (3) A relevant Assessment or Follow-up has been offered, but refused; D may not be granted bail unless the court is of the opinion that there is no significant risk of D committing an offence while on bail.

✓

(Sch 1(I)(6A)

✓

(Sch 1(IA)(9)

X

Very Serious Offences This removes the presumption of bail.

•

•

Previous Offence Condition a.

s25(3) CJPOA: This section only applies if D has been previously convicted by a UK court of any such offence, or culpable homicide. If manslaughter/culpable homicide, he was sentenced to imprisonment. Or if a child/YP, to long term detention.

b.

This includes NG by reason of insanity.

Present Offence Condition c.

s25(1) CJPOA 1994 - A person charged with the following offences may only get bail if the court (or constable considering the case) is of the opinion that there are “exceptional circumstances”: 1. Murder; 1.

Sch 1(6ZA) BA - If D is charged with murder, D must not be granted bail unless there is “no significant risk” of D committing an offence which would cause, or be likely to cause, physical or mental injury to any person other than D.

2.

s3(6A) BA 1976 - Person accused of murder must have condition of bail to undergo examination by 2 medical practitioners for reports under MHA 1983.

3.

Only CC judge can grant bail per s115 CJA 2009. Mags must commit D to custody to be brought before Crown Court judge within 48 hours “beginning with the day after the day on which a person appears or is brought before the Ma...