Robin Jones

Transcription

1 Committal Proceedings Out Allocation o and dsendings In Robin Jones

2 WHEN? Rolling out nationally in stages. Effective from 18 th June in the following areas: Bath and Wansdyke; Berkshire; Bristol; Liverpool and Knowsley; North Avon; North Hampshire; North Somerset; Ormskirk; Sefton; St Helens; Wigan and Leigh; and Wirral. 2

3 Webinar Outline The Original Position. Legislative Changes. The Criminal Procedure Rules 2011 Part 9. New Sentencing Council Guidelines. Worked dexamples. 3

4 The Original Position How Cases Could Get to the Crown Notice of Transfer. Voluntary Bill. Sending. Readout Committal. Paper Committal. Court 4

5 The Original Position Venue Decision 1: PBV Applies to Adults not Youths Court reads the charge to the defendant. Court explains procedure to defendant. Defendant asked if they intend to plead G or NG. If G court proceeds as if it is a G Plea. If NG the court proceeds to MOT 5

6 The Original Position Venue Decision 2: MOT Court hears representations from prosecution and then the df defence. Court must consider seriousness of offence, powers of punishment, and any other relevant factors. Court considers the prosecution case at its highest. Decision made using the MCSG. Previous convictions and TICs irrelevant. 6

7 Changes in Legislation Schedule 3 CJA amends ss MCA S19 MCA is now replaced and provides for Allocation not Mode of Trial. Schedule 3 CJA 2003 amends and inserts Ss 50A 52 CDA Instead of committing cases when jurisdiction is declined, they will be Sent. 7

8 S19 MCA 1980 as amended. 1 If the defendant indicates a NG plea: S19(1). The court shall consider whether the case appears more suitable for summary trial ti or trial on indictment. S19(2) Before this consideration the court shall give: a) the prosecution an opportunity to inform the court of the defendants previous convictions, 8

9 S19 MCA 1980 as amended. 2 b) the prosecution and defence an opportunity ty to make aerepresentations ese s as to where the case should be heard. The prosecution will be heard before the defence. 9

10 S19 MCA 1980 as amended. 3 S19(3) In making that decision the court shall consider: a) Their sentencing powers. b) Representations by the parties. c) Allocation Guidelines. 10

11 S19 MCA 1980 as amended. 4 S19(4) has the effect that the court can consider the aggregate sentence for more than one offence if: The defendant is charged with two or more offences, and It appears to the court that those could be on the same indictment, or They arise from the same or connected tdcircumstances 11

12 S20 MCA 1980 as amended 1 If the court decides under S19 that the case is suitable for summary trial then it shall: a) Explain that to defendant in ordinary language, b) Tell him he can consent or elect, c) Tell him he can be committed for sentence, d) Consider an indication of whether a sentence of custody or no custody if asked, 12

13 S20 MCA 1980 as amended 2 e) If the court give such an indication then give the edefendant e da an opportunity ty to reconsider his indication of plea, f) If he then indicates a guilty plea then proceed as if a guilty indication was given at the outset, g) Thereafter the court must ask him if he wishes to be tried summarily or on indictment. 13

14 S21 MCA 1980 as amended If the court take the view under S19 that trial in indictment tis more suitable, then instead of setting a committal date the court must tell the defendantthat that and send the case under S51 CDA The court will do the same if the defendant elects. 14

15 Magistrates Guidance. The Sentencing Council has issued 3 guidelines that atae are relevant ee ttoto the venue uedecso decision: Allocation Guideline, Offences Taken into Consideration Guideline, Totality Guideline. 15

16 Magistrates Guidance. Allocation Guideline Sets out the legal position discussed above, Confirms the court must have regard to: a) The natureof thecase, b) Whether circumstances make it serious, c) Whether powers of punishment are sufficient, i d) Any other circumstance. 16

17 Magistrates Guidance. Allocation Guideline E/W offences should be dealt with summarily unless courts sentencing powers insufficient, Court should assess likely sentencein light of all facts alleged by the prosecution case, tki taking into account all aspects of the case, including those advanced by the defence. 17

18 Magistrates Guidance. TIC Guideline Court has discretion whether to take TICs into account. Magistrates Court cannot TIC an IO offence. Court should not accept a TIC where: i. It would attract greater sentence that main offence, ii.pi says it should be a separate offence, iii.offender would avoid an order. e.g. Disqualification 18

19 Magistrates Guidance. TIC Guideline iv. It would be a breach of an existing order, v. TIC is specified and conviction offence is not, vi.not part of a series or founded on same facts or evidence. The guideline sets out the procedural steps required for an offenceto be TICd. 19

20 Magistrates Guidance. TIC Guideline The court should increase the offence to reflect fact that offences have been TICd. Court should: Determine start point from sentencing guideline ( No reference to TICs at this stage), Consider relevant aggravating and mitigating factors: TICs generally aggravate. A large number may allow the court to move outside range. 20

21 Magistrates Guidance. TIC Guideline Continue sentencing process including: i. Consider if frank admission is indication of remorse and/or indication of desire to address problems, ii. Reduction for G plea, iii.totality iv.relevant orders for TICs, such as compensation. 21

22 Magistrates Guidance. Totality Guidance sets out two main principles: Court should pass a total sentence that reflect ALL offences, It should not merely be an addition of a number of sentences but an overall view of the whole of the offending and personal factors. The overall sentence must be just and proportionate 22

23 CPR 2011 Part 9 The CPR 2011 set out how this decision is taken. Generally a public hearing(922) hearing.(9.2.2) The defendant must normally be present.(9.2.3) For some procedures the defendant need not be present (R 9.8 Adult defendant request for a plea, R 9.9 Adult defendant G plea and R 9.13 a young defendant) 23

24 CPR 2011 Part 9 If: a) He is represented, and b) Attendance is impractical because of behaviour Additionally, for procedures under R 9.10 (adult df def NG plea) and R 9.11 (dldf (adult def allocation for summary trial), def need not be present if: a) Represented and waives right to be present, or b) Attendance is impractical because of 24

25 CPR 2011 Part 9 If there is more than one offence the court must deal with them in this ssequence(9.2.5):.5): i. Offences where there is a notice of transfer, ii. Indictableonly and related offences, iii. E/W and related offences. 25

26 CPR 2011 Part 9 In addition the rules deal with: The duties of the Legal Adviser(9.4), The duties of the court officers (9.5), Cases dealt with by notice of transfer(9.6), The sending of indictable only cases(9.7) replacing Part 12 of the former CPR. 26

27 CPR 2011 Part 9 Section 3 Allocation 9.8 sets out the following: That it applies when the defendant is 18 or over and the court needs to make a venue decision. The court must explain in simple terms: i. The charge, ii. The fact that the offence can be tried in the Magistrates or Crown Court. 27

28 CPR 2011 Part 9 Section 3 Allocation iii. That the defendant is about to be asked if he peadsgu pleads guilty. iv. That if he says yes then the court will treat that as a guilty plea proceed to sentence or commit for sentence. v. That if he does not indicate a guilty plea then the court will proceed to decide as to allocation. 28

29 CPR 2011 Part 9 Section 3 Allocation If there is a NG Plea the court will(9.10): Deal with any decision under S22 MCA 1980, Invite the prosecutor to identify relevant precons and make representations as to venue, Invite the defenceto makerepresentations Allocate the case. 29

30 CPR 2011 Part 9 Section 3 Allocation In making the decision as to allocation the court must take into account( R e): The adequacy of their sentencing powers, The representations of the parties, and The allocation guidelines issuesby SGC. 30

31 CPR 2011 Part 9 Section 3 Allocation If the Magistrates decide to allocate summary trial then it must epa explain(9.11.2):.): a) It considers the case SST, b) If convicted he could be committed for sentence, c) If he doesn t agree to ST the case must go to the CC, d) He can ask for an indication of likely custody/no custody in the event of summary trial. 31

32 CPR 2011 Part 9 Section 3 Allocation If the defendant asks for such an indication and the ecourt agrees and dgives esone e(9. (9.11.3):.3): a) it must ask the defendant again if he intends to PG, b) If he does so he is dealt with as if he has just PG, c) If not then he is asked if agrees to MC trial and if yes order it and if no or no indication then allocate to CC. 32

33 CPR 2011 Part 9 Section 3 Allocation If the defendant asks for an indication and the court gives none, e,or the edefendant e da does not ask, then it must (9.11.4): i. Ask if defendant df d agrees to summary trial, ii. If yes order such a trial, iii. If no or no indication then allocate to CC. 33

34 CPR 2011 Part 9 Section 3 Allocation Once the court has decided to allocate to the CC it must: i. Invite the prosecutor to make representations about bail and directions, ii. Invite the defenceto do so, iii. Send the case to the CC and give any ancillary directions. 34

35 Service of Papers The prosecution must serve papers on the defence e and dcourt: If the defendant is in custody, within 50 days of sending, If the defendant is on bail within 70 days of sending CDA 1998(Service of Prosecution Evidence) Regulations

36 S51 CDA. Related Offences S51 CDA now treats CC allocated cases with same rules as I.O. offences (S51 (1)&(2) CDA). Once court sends an adult defendant to the CC under S 51(1) in either situation then: 36

37 S51 CDA. Related Offences S51(3) CDA. It must send him for any E/W or summary offence listed on the same occasion to the Crown Court 1. In the ecase of an E/W offence if it appears at the same time if it appears to the court related. 2. In the case of a summary offence if it appears to the court to be related AND fulfils the requisite condition ( set out in SS 11 below) 37

38 S51 CDA. Related Offences S51(4) CDA. It may send him for any E/W or summary offence listed on a subsequent occasion to the Crown Court 1. In the ecase of an E/W offence if it appears at the same time if it appears to the court related. 2. In the case of a summary offence if it appears to the court to be related AND fulfils the requisite condition ( set out in SS 11 below) 38

39 S51(5) CDA S51 CDA. Related Offences If an adult defendant is sent under Ss51(1) or (3) then if another adult is jointly charged with an E/W offence then the court: 1. Must send him if on the same occasion, or 2. May send him if on a subsequent occasion. 39

40 S51(6) CDA S51 CDA. Related Offences If an adult defendant is sent under Ss51(5) then it shall send him offence which: 1. In the case of an E/W offence if it appears at the same time if it appears to the court to be related. 2. In the case of a summary offence if it appears to the court to be related AND fulfils the requisite iit condition ( set out in SS 11 below) bl 40

41 S51(7) CDA S51 CDA. Related Offences Where court sends an adult under S51(1,3or5) and a youth is before the court jointly charged with an indictable offence or with a related indictable offence court shall send it if the court considers it is in The Interests of Justice to do so. 41

42 S51 CDA. Related Offences s51(8) CDA may also send the youth for any indictable dctabeor summary offence: 1. In the case of an E/W offence if it appears at the same time if it appears to the court related. 2. In the case of a summary offence if it appears to the court to be related ltdand fulfils the requisite condition ( set out in SS 11 below) 42

43 S51 CDA. Related Offences S51(11) The Requisite Condition. A summary offence fulfils the requisite condition if: a) Itis imprisonable, or b) It carries obligatory or discretionary disqualification 43

44 Example 1 James is charged with the following offences A street robbery, unrelated to the other offences. A night time dwelling house burglary, during which the keys to the car are stolen, as well as jewellery. Theft of a statue from the garden. TWOC of the car. No Insurance. A S5 for swearing at the officer when arrested. 44

45 Example 1 Answer. He indicates NG to all. The following provisions apply: The robbery will be considered d and sent first(cpr b) Court makes decision as to allocation for e/w offences: Burglary and Theft.(S19 MCA 1980) Following MCSG Burglary NSST. Following S19 (4) MCA theft is considered too as arises out of the same circumstances 45

46 Example 1 Answer Burglary and Theft sent. S21 MCA & CDA S51(1) TWOC sent as related to the burglary and fulfils the requisite it condition (CDA S51(3) and (11)) No Insurance sent as related to the burglary and fulfils the requisite condition (CDA S51(3) and (11)) S5 cannot be sent as, although lh hit is possibly related, it is neither imprisonable or disqualifiable. 46

47 Example 2 John 19 takes a car and drives it dangerously, in a manner that would result in the ecourt declining jurisdiction. Peter 15 is a passenger in that car and is alleged to have been involved in its taking. John is charged with Aggravated TWOC, Dangerous Driving and No Insurance. Pt Peter is charged with Aggravated dtwoc. He also has an unrelated drink driving. 47

48 Example 2 Answer. John. NG indication to all offences Court makes decision as to allocation for e/w offences : Agg TWOC and Dangerous Driving.(S19 MCA 1980) They allocate and both offences to the Crown Court and they are sent (CDA s51(1) No Insurance sent as related to the burglary and No Insurance sent as related to the burglary and fulfils the requisite condition (CDA S51(3) and (11)) 48

49 Example 2 Answer Peter. NG Indicationto to alloffences Court do not consider venue for a youth. As John has been sent, Peter can be sent for the aggravated being carried if the court considers it necessary in the interests of justice.(cda 51(7). The excess alcohol cannot be sent because although it meets the requisite condition in s51(11) as it cannot be said to be related(cda 49 S51(8))