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(3) First Hearings, First appearance - D remanded in custody - Coggle…

- - - - Who applies for bail and when?
        
        Once prosecution objection to bail is raised, defence will apply for bail. All cases start in the magistrates court and first decision relating to bail is made by that court (except for murder cases only a Crown Court judge can grant bail)
        
        Conditional bail:
        
        Bail can be granted subject to conditions and its important for defence advocate to consider the conditions that might alleviate court's concern relating to D's behavior on bail
        
        Ongoing issue of bail
        
        Is still an ongoing consideration, can evolve during the currency of proceedings e.g. breaches the terms of D's bail
        
        Right to bail:
        
        Procesution must apply for remand into custody of D (aka 'right to bail') Per S.4 Bail Act 1976 court must presume D is entitled to bail. Only if an objection is properly made can bail be refused
        
        Purpose: to secure notion that prosecution has right to apply/remove bail as a matter of normal practice
        
        Idea of presumption in favour of bail is difficult for offences like murder (where language of statute appears to remove the presumption
        
        Right to bail still applies to a person after conviction where case is adjourned to assist in sentencing. Right to bail also applies when person is allegedly breaching requirement for community order
        
        Right not to bail
        
        Right does not apply to:
        
        (a) those appealing their conviction/sentence; or
        
        (b) to Ds being committed for sentence from Magistrates Court or Crown Court
        
        Bail can be granted in both these cases if the presumption does not apply
        STOPPED AT BAIL-PRESUMPTIONS AND OBJECTIONS BC WHY TF IS IT LONG ASF
  - - - Common bail conditions:
        
        Residence at a given address - allow D to live and sleep at a specified address, help solicitors and court communicate with D by post and police to know if D doesn't attend court
        
        Curfew - to prevent further offences being committed while on bail. Allows D to remain indoors during certain hours
        
        Reporting to local police station at given times - check on D is still 'in town' (precaution if D absconds)
        
        Surety - offer money made by someone with influence over D to secure D's return to court. Usually required when D's at risk of absconding. The surety will agree to forfeit sums of money if D abscond
        
        Security - D or on D's behalf putting up money/valuable item to be forfeited if D doesn't answer bail or attend court (also to reduce risk of D absconding)
        
        Restriction on where D may go during bail - prohibiting D from going to certain areas to reduce risk of D committing further offence while on bail/interfering with witnesses
        
        Restriction on who D have contact with during bail - court can direct D to not approach/contact named individuals to reduce risk of interference that can obstruct the course of justice
        
        Electronic monitoring (tagging) - curfew with electronic monitoring where there's a real prospect of D will be sentenced to a Suspended Sentence
        
        Bail hostels - Residence at bail hostel and further condition that D complies with rules of bail hostel to prevent absconding/witness interference
        
        Surrender of passport - surrender passport to prevent risk of absconding
    - - Not surredering to custody:
        
        There's number of instances where breach of bail will introduce more grounds which might've been previously available
        
        Even if breach doesn't trigger new grounds, assessment of whether D gets bail will likely alter D's interest if there's a breach to condition. D faces real possibility of being remanded in custody until case is concluded
        
        Only bail breach which is a criminal offence is failing to surrender to custody aka failing to surrender ('FTS'). This is offence punishable to 3 months imprisonment and/or unlimited fine/12 months and/or unlimited fine on indictment
  - - - Bail attempts
        
        D who refused bail by police must be brought before magistrates court ASAP. For most Ds, its their first opportunity for bail from the court
        
        An exception is when D is charged with murder
        
        If bail refused, D (who defo wants to be released) must decide what to do next
        
        Usually they'll re-apply in Magistrates Court and application will normally take place 1 week after first appearance
        
        D can also appeal to Crown Court but require a 'certificate of full argument' from Magistrates Court (confirmation that they've been refused bail)
    - - Bail timeline - urgent case:
        
        D attends court 1st time the case is listed and applies for bail
        
        If bail is refused, D considers it urgent, D can appeal to Crown Court immediately to Magistrates Court but most obtain certificate of full argument from Magistrate Court before doing so
        
        If D appeals to Crown Court after only 1 application in Magistrates Court and bail is refused by Crown Court, then D loses the right to 2nd application in Magistrates Court
        
        D can still make further application to Magistrates Court but only if there's change in circumstances
        
        The Magistrates Court grants bail:
        
        Very rare for prosecution to appeal against granting of bail
        
        a) prosecution must have opposed bail originally
        
        b) offence must be punishable by imprisonment
        
        c) prosecution indicates orally at hearing when bail is granted that they'll appeal
        
        d) intention to appeal is confirmed in writing and served on court and defence within 2 hours
        
        e) appeal is heard within 48h - excluding weekends
        
        f) appeal is heard by Crown Court judge
        
        Crown Court grants bail:
        
        Equally rare is the prosecution appealing the grant of bail by the Crown Court
        
        Procedure is the same as for Magistrates Court save that appeal is heard by HC judge sitting in HC
    - - Custody time limit expiry:
        
        A trial must commence before expiry of custody time limit
        
        Magistrates Court: start of trial is when court begins hearing evidence from prosecution
        
        Crown Court: start of trial is when jury is sworn
        
        If limit expire, D will be released unless prosecution applies to extend time limit and can show it has acted with 'all due dilligence and expedition' and there's 'good and sufficient cause' to have D further remanded into custody
- - - - Timing of first hearing:
        
        Where D is on nail, the first hearing must be within:
        
        14 days of being charged - of prosecutor anticipates a guilty plea which is likely to be sentenced in the magistrates court
        
        28 days of being charged - where its anticipated that D will plead not guilty, or the case is likely to go to the Crown Court for either trial/sentence
        
        If D was detained in police custody following charge they must be brought before the next available court
        
        Location of the first hearing (adults)
        
        All adult Ds have their first hearing in a magistrates court (MC)
        
        Summary-only offence
        
        Trial: MC
        
        Sentence: MC
        
        Either-way offence
        
        MC accepts jurisdiction and D consents to summary trial
        
        Trial: MC
        
        Sentence: MC or CC
        
        MC declines jurisdiction or D elects Crown Court (CC) trial
        
        Trial: CC
        
        Sentence: CC
        
        Indictable-only offence
        
        Trial: CC
        
        Sentence: CC
    - - Initial details of prosecution case (IDPC):
        
        Criminal Procedure Rules Part 8:
        
        Prosecution can serve initial details on court officer as soon as its practicable
        
        When D requests for details prosecutor must serve them on D as soon as practicable
        
        CPS use electronic files uploaded onto "The Common Platform"
    - - Summary and either-way offences:
        
        First hearing will be the hearing that deals with matters such as:
        
        plea
        
        bail
        
        representation and legal aid
        
        Indictable only:
        
        Magistrates court has no juridiction to deal with indictable only offence and so D charged with this offfence makes only a brief first appearance in the magistrates court
        
        Summary only offences in the Crown Court:
        
        There's an important exception to the rule that summary only offences never go to Crown Court
        
        Happens when D is charged with an only offence that is to be tried in the Crown Court and there's a summary only offence which is connected to the indictable offence
        
        If summary only offence is one of those listed and is before the magistrates court at the same hearing as the indictable offence, it must be sent to the Crown Court
  - - - Not guilty plea:
        
        If D pleads not guilty then court will set trial date and do any necessary management to ensure trial is set on that date. Includes case progression form 'Preparation for Effective Trial form' ('PET')
        
        Setting out what issue at trial will be, which witness are needed to give live evidence so that court can actively manage the case, ensures only witnesses where defence wants to challenge on their evidence will come to court
        
        Court will set timetable for trial and estimate how long trial will take
        
        Most courts have standard directions on how parties should prepare their case
        
        Directions (whether standard or not) usually concerns with bad character evidence, hearsay evidence, special measures to protect witnesses and so on. Magistrates court also has case progression officer to monitor directions made by court
        
        Pre-trial hearings:
        
        Where case has been set down for summary trial, court can conduct pre-trial hearings where pre-trial rulings are made. Can cover matters like admissibility of evidence, fitness to plead
        
        A pre-trial ruling is binding until case is disposed of by:
        
        conviction/acquittal of D; or
        
        prosecution decision not to proceed; or
        
        the dismissal of the case
        
        Court can still discharge/vary a pre-trial ruling if its in the interest of justice to do so and parties have been given an opportunity to be heard. Party can apply for a pre-trial hearing/discharged only if there's a material change in circumstance
- - - - Public funding for representation at court:
        
        Once your client has been charged you need to arrange funding for their court appearance
        
        If they are not paying privately then the cost of their defence may be covered by public funding through the Legal Aid Agency
        
        In order to obtain a 'representation order', D must pass 2 tests:
        
        the means test; and
        
        the merits test (the 'interest of justice' test)
        
        Both tests must be passed to secure public funding
    - - Means test - Magistrates Court
        
        Initial assessment works out their weighted gross anual income (applicant's gross annual income is generally added to any partner's
        
        A weighting is applied to take into acccount the number of people living in the household. Once this figure is calculated the applicant will
        
        Eligible for public funding - if below the lower threshold (present if the weighted gross annual income is £12,475 or less)
        
        Be ineligible for public funding - if above the upper threshold (if weighted gross annual income is £22.325 or more)
        
        Be required to undertake a full means test - if between lower and upper thresholds (more than £12,475 and less than £22,325)
        
        Full means test will establish applicant's annual household disposable income - if below the treshsold applicant will be funded (at present annual household disposable income threshold is £3,398 or less)
      - Means test - Crown Court:
        
        In relation to applicant's annual household disposable income, applicant will be:
        
        Ineligible for public funding - if above the eligibility threshold i.e. £375,500 or more at present
        
        Eligible for public funding without any contribution - if below the threshold i.e. £3,398 or less at present
        
        Eligible for public funding with a contribution - if between thresholds i.e. between £3,399 and £37,499.99 at present
      - The merits test
        
        To pass test D must complete a form (CRM 14 Application for Legal Aid in Criminal proceedings) to demonstrate that its in the interest of justice for them to be legally represented
        
        D wil automatically pass the interest of justice test if:
        
        charged with an indictable-only offence; or
        
        an either-way offence is later sent to the Crown Court
        
        Interest of justice test requires D to provide info in support of all or some of the 10 propositions in the application form
        
        10 propositions is to evaluate matter is so serious/complicated that D cannot conduct their own defence
        
        I will lose my liberty:
        
        To determine whether D is likely to receive a custodial sentence reference must be made to the aggravating and mitigating factors in sentencing guidelines. It's not enough that the offence is imprisonable
        
        I have been given a sentence that is suspended or non-custodial. If I break this, the court may be able to deal with me for the original offence
        
        All details about the sentence must be given
        
        If D is not complying with terms of non-custodial sentence, court may think D should not be given benefit of community-based sentence if convicted of one
        
        If D received suspended sentence that is not over, court should activate suspended sentence once they are convicted of a new offence
        
        It is likely I will lose my livelihood:
        
        If D pleads guilty and require representation to convey mitigation, must be argued here
        
        If not court will think that D is capable of self-representation
        
        It is likely I will suffer serious damage to my reputation:
        
        Conviction to a person who is known to have 'good character' will affect their reputation/future job prospects
        
        substantial question of law may be involved
        
        Providing brief examples e.g. 'all elements of the offence' and 'identification' will likely result in representation order being refused due to insufficient info provided
        
        Identify an issue of law rather than a fact
        
        I may not be able to understand the court proceedings/present my own case:
        
        What language does D normally speak>
        
        Why is an interpreter not sufficient?
        
        Are there legal phrases/technical areas of law D won't understand if an interpreter is provided?
        
        Is D a youth?
        
        Does D suffer from any learning difficulties/mental health issues?
        
        Witnesses may need to be traced/interviewed on my behalf
        
        If witnesses are known, why is it that the solicitor needs to speak to the witness rather than D speaking to them?
        
        Why does the witness need to be traced?
        
        Is it a member of the public?
        
        Consider providing with the kind of evidence D is seeking to adduce via this witness
        
        The proceedings may involve expert cross-examination of a prosecution witness
        
        Could D satisfactorily conduct a trial without the solicitor but with the assistance of the authorised court officer?
        
        Are there any issues in the case that make it difficult for D to cross examine the witness?
        
        Age of D?
        
        Is there any legal argument?
        
        Are the complainants also witnesses?
        
        Will an experienced police officer require cross-examination?
        
        It is the interests of another person that I am represented
        
        Consider whether complainant/victim would feel uncomfortable if cross-examined by D personally (e.g. if allegation is of a sexual nature)
        
        Victim is young
        
        Fact that D has a family that will suffer if they go to prison does not fall under the 'interests of another person'. Must be someone involved in the court proceedings