Initial steps in criminal proceedings
- Created by: KG1999!
- Created on: 02-10-23 17:35
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- Initial steps in Criminal Proceedings
- Advising client on a Plea
- Sols should remind client that guilty plea will lead to a reduced sentence
- Professional conduct - entering a not guilty plea when admitted guilt to sol as sols should not mislead the court. Would explain benefits of entering a guilty plea, sols can continue to act but limited to cross-examining prosecution. Can submit no case to answer but if unsuccessful then sols stop acting if client wants to give evidence they know is false
- If taking a plea, obtain funding from Legal Aid Agency, obtain details of prosecution case, statement from client, advise client on strength of prosecution, inform client case may be dealt with by Magistrates' or Crown. Make bail application
- Allocation
- Indictable only offences - most serious form of offence. Trial at Crown Court. D make initial appearance at magistrates, then go to Crown Court.
- Either way offences - offences that can be dealt with by summary trial at Mag or indictment trial at CC. If not guilty plea mag may refuse jurisdiction or offer D choice of CC. If pleads guilty will sentence or commit D to CC.
- Summary offences - dealt at Mag
- if D is charged with 'either way' offence and pleads not guilty and Magistrates' accepts jurisdiction they will offer a choice for Mag or Crown Court.
- Procedure - s19 and s20 Magistrates Court Act 1980.
- Oral representations (do mags have adequate sentencing powers) - max sentence 6 months for either way, 12 months if 2 or more offences, if more serious this should commit to the CC
- Allocation guideline - in general either way offences should be tried by mags unless outcome would clearly be sentence in excess of their powers
- If court decide indictment and so CC must explain to D that the case is suitable for summary trial, he can consent for summary or choose indictment at CC, if consents to summary trial may be sent to CC for sentencing
- Pros and Cons of Mag v CC
- Mags
- Limited sentencing powers - max 6 months. Can commit to CC.
- Prosecution costs - if D loses, will have to pay. Costs higher in CC
- Defence costs - Cheaper
- Less time to get to trial - important for D still in custody (no bail)
- Stress - less intimidating than CC. If client is nervous
- Untitled
- No obligation to serve D statement - in CC obliged to serve one. Means no advantage to knowing what the defence is
- Mags
- Legal funding
- Two tests - 1. interests of justice: must show in public interest to receive public funding 2. Means test: must demonstrate finances are such they cannot pay (will be granted criminal defence rep order if satisfied
- Interests of justic
- Lost liberty is anything decided against - consider any aggravating factors that make serious, if denied bail
- Lose livelihood/job
- Serious damage to rep - where disgrace is worse than direct affect of penalty
- Substantial qn of law involved - challenges to evidence
- Witnessed may need to be traces/interviewed
- May involve cross examination
- Means test
- Don't need to satisfy if receiving income support, jobseeker allowance, state pension, universal credit, under 18
- If less than £12745 qualify, more than £22, 325 not qualify. Between both will carry out test
- If disposable income does not exceed £3,398 then will qualify
- Advising client on a Plea
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