First appearances at court: What happens?

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 27^th 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:

1. A Remand in custody is required for the defendant’s own protection;
2. 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;
3. 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.