This
is a short post is about what happens when someone is charged with a criminal
offence from charge to bail. The system is almost always unfamiliar to first offenders, and having
an idea of what will happen can often be very useful. The more places
information about what happens in a criminal case exists, the more likely it is
for people to have access to that information. Whilst this blog is
designed for law students, academics and practitioners, hopefully other members
of the public reading will be able to pass on the information in the
unfortunate event someone they know is accused of a crime.
Offence Classification
A defendant will
be charged with one of three types of offence. These are:
·
Summary;
·
Either-way;
or
·
Indictable.
Summary
is considered to be the least serious, either way is, as its name suggests, of
varying severity, and indictable is the most serious. A summary offence will be
heard in the Magistrate’s Court. An either-way offence can be heard in either
the Magistrates Court or the Crown Court. How this is decided will be discussed
below. Indictable only will be heard in the Crown Court.
An
example of a summary offence is criminal damage where the value is £5,000 or
less. Some either-way offences are Sexual Assault, Theft, Possession of Class A
or B drugs and Theft. An example of an indictable only offence is Robbery, Rape
and Murder.
First appearance
Presuming
a defendant is over 18, all defendants, regardless of the offence they are
charged with, make their first appearance in the Magistrates Court. In a first
appearance, three matters are dealt with;
·
Plea;
·
Allocation;
and;
·
Bail.
A
defendant must attend his first appearance, and this can be done by video link.
If he does not attend, the court can issue a warrant for his arrest. The only
exception to a defendant attending, is where he is legally represented and it
is not practicable for him to attend due to his disorderly conduct, or, where
the defendant is legally represented and the court is satisfied there is good
reason for his absence.
If
a defendant is charged with a summary only offence or an either-way offence,
the prosecution must serve initial details at the first appearance if they have
not already done so. This includes a summary of the evidence the prosecution
relies on and a printout of any previous convictions of the defendant.
Plea
A
Defendant will be asked to enter a plea at their first appearance. They can
plead either guilty or not guilty, and if it is an either way offence, they can
give no indication. A guilty plea must be unequivocal. No indication for an
either way offence is treated as not guilty.
Allocation
Summary
– Guilty
Where
a defendant pleads guilty to a summary offence, the court will proceed to
sentence and the case will remain in the Magistrates Court.
The
situation might arise where a defendant pleads guilty to an offence, yet
disputes the facts on which he is to be sentenced. Where this occurs, a hearing
called a 'Newton Hearing' may be required.
Summary
– Not Guilty
When
a not guilty plea is given, a trial date will be set and complete any case
management to ensure the trial takes place by that time. The case will remain
in the Magistrates Court.
Either
way – Guilty
Where
a defendant pleads guilty to an either way offence, the Magistrates Court will
consider whether it has sufficient sentencing powers. If the magistrates
consider the offence requires a sentence beyond their sentencing powers, the
case will be sent to the Crown Court for sentencing.
The
maximum custodial sentence the Magistrates Court can pass is a 6-month
sentence, or for two or more either way offences, two 6 month sentences can run
consecutively for maximum of 12 months. The
Magistrates Court can impose a fine as well, and although since April 27th
2017 there is no limit for what can be fined (there was previously a limit of
£5,000), the fine must follow the sentencing guidelines reflecting the
seriousness of the offence and take consideration the defendant’s ability
to pay.
A
Newton Hearing, as mentioned above, can also take place where there is a
dispute as to the facts the defendant is to be sentenced on.
Either
Way – Not Guilty
Pleading
not guilty to an either way offence means the Magistrates court will consider ‘allocation’,
which determines where the trial will be held.
There
is a presumption that the trial will be held in the Magistrates Court, though
this presumption can be rebutted when submissions structured around the
guidelines for allocation convince the magistrates the trial should be held in
the Crown Court. The Prosecution and Defence both have an opportunity to make
submissions on where the trial should be held.
If the Magistrates Court decides to allocate the case to the Crown Court, the defendant has no right to elect to have his case heard in the Magistrates Court.
If
the magistrates decide to allocate the case to the Magistrates Court, the situation
changes and the defendant is presented with an opportunity. The defendant is
able to ask for an indication of sentence if they were to plead guilty in the
Magistrates Court. If the court gives the indication, it will indicate if the
sentence will be custodial or not, and the magistrates are bound by the
indication if they indicate a non-custodial sentence. The Crown Court is not
bound by this indication if they ultimately decide sentence. The defendant can
change their plea based on the indication from the magistrates.
The
magistrates have discretion as to whether they will give such an indication however,
and can decline to give one.
If
the magistrates do decline, the defendant doesn’t ask for an indication, or
pleads not guilty in spite of the indication, the court asks the defendant if
they consent to be tried in the magistrate’s court. The court still has the
ability to commit the case to the Crown Court for sentencing, even if the
defendant elects a trial in the Magistrates Court.
The
prosecution can apply for reallocation to the Crown Court at any stage prior to
the start of the trial on the basis the Magistrates lacks adequate sentencing
powers.
If
the defendant elects for the case to be heard at the Crown Court, then his next
appearance will be at the Crown Court.
Bail
There
is presumption that a defendant is entitled to bail. The presumption does not
apply to a defendant appealing conviction or sentence, or a defendant being
committed for sentence. Bail can be given in either case, but there is no
presumption in favour of bail.
It
is for the prosecution to apply to remand the defendant in custody, if it
believes the defendant should not be given bail.
For
the vast majority of indictable offences, in order to object to bail, the
prosecution must establish that there are substantial grounds for believing a
defendant would either:
·
Fail
to attend the next hearing; and/or
·
Commit
further offences on bail; and/or
·
Interfere
with witnesses or otherwise obstruct the course of justice.
Bail
should not be denied if the defendant is charged with an offence which would
not tend to put him at risk of a prison sentence.
For
summary offences, these three objections to bail are only generally available
if a defendant breaches a condition of bail that he has already been given, or
has a previous conviction for failure to surrender. His behaviour whilst on
bail may enact any of the other objections to bail, when already on bail for a
summary offence.
The
enquiry is a factual one rather than a trial, and hearsay evidence is
permitted, and though it is possible for witnesses to be summoned to give evidence,
it is rare.
The
defendant need not be granted bail if one of the following, less frequently
used objections to bail, exists:
- A Remand in custody is required for the defendant’s own protection;
- There is insufficient information for the court to deal with the issue of bail –a brief period of time is required for the production of sufficient evidence, meaning the defendant is remanded in custody;
- The defendant is already in custody serving a sentence.
A
defendant usually has two attempts at applying for bail, and a third attempt in
the form of an appeal to the Crown Court.
If
bail is refused at the defendant’s first appearance, he has another attempt at
the next hearing. If bail is again refused, he may make an application to the
Crown Court. He can make another application for bail if there is a new reason,
such as a surety which was previous unavailable.
An
exception is where a Defendant is charged with Murder. The Magistrate’s Court
cannot consider bail for a defendant charged with murder. An opportunity to
apply for bail will be available at the Crown Court at his second appearance in
this situation.