What is going to happen at the first court hearing?
The First Court hearing
If the defendant has been remanded to court (i.e. kept in custody by the police after charging them) then the solicitor will advise on how best to make a bail application, prepare that application and then that solicitor will make the speech to the Court, justifying why bail should be granted, with or without conditions. Bail is covered in an earlier section. Bail for young people is particularly complicated. Bail for someone accused of an summary only offence has its own special criteria that the lawyer can advise upon.
To have a lawyer present to help, the defendant will either have asked their own lawyer to attend on them at court or they will arrive at court and ask to see the court duty solicitor. If someone rings our 24 hour service then Trinity Advocates will send a lawyer along. We will make sure the lawyer knows the case history from our files and case management system. If someone asks for a Trinity lawyer at the court then the court should arrange for one of us to be contacted if we are not there already.
Almost all criminal solicitors are on the court duty rota and on the day they are the appointed court duty that solicitor will offer advice and representation to a defendant who had not had court duty help before, who is at risk of imprisonment or a loss of liberty or who is vulnerable, maybe because of health or age. That court duty help is free but is for that day only. If the case goes beyond that day then the defendant needs to make arrangements for a solicitor to help at the later stages. We believe we can offer a better service to our own clients than the court duty because we will have prior knowledge of the client and their situation, we wont be distracted by other court duty cases and we wont be being pulled this way and that by different demands that suddenly are imposed on court duty solicitors in the course of their day. Court duty solicitors generally do a great job but they have to cover a lot of ground very quickly with people who are strangers to them and such a limited service is not for everyone.
We hope that our clients or those we have helped at the interview stage will invite us to attend their first hearing when they know about it. We offer to talk at our office before the hearing about securing legal aid and if legal aid is not going to be secured then we will talk over private fees. If the client is being produced from police custody to court we will work quickly to establish how our work will be paid for. We will do our best to ensure that our clients have some sort of representation in court. Legal aid for court is covered in another section.
When funding is sorted then we will ask the Prosecution for sight of their paperwork which we hope will include the evidence that the police have put together to make their case against the client. Securing sight of the prosecution material at this stage is called initial disclosure of the prosecution case – “IDPC”. It will always include the police written summary of the case and of the interview. It will include a list of the client’s past convictions and cautions, if any. It might include copies of any particular applications the prosecution might want to make that are linked to the case. For example, the prosecution might want to apply for an order restricting the defendants future behaviour or they might want witnesses at any trial to be given protection from having to confront the defendant (this is called “special measures”). These are all matters we can advise on and we can identify if there is something missing or incomplete and how to correct that.
The law does not allow the defendant and their lawyers to hold out for sight of all the evidence before committing to an admission (guilty plea) or denial (not guilty plea). The lawyer will consider if something fundamental is missing from the disclosure of the case or whether for any other reason progress should not be made at the first hearing so that the client is better placed to respond to the allegation. Asking for more time for this to be obtained means asking for an adjournment. The test for the court whether to grant the adjournment is whether it is in “the interests of justice”. The Courts have little patience for such delay/adjournments, even though a missing piece of evidence can clearly impact on the fairness of proceedings. Also allowing cases to proceed with missing elements in the police case does nothing to encourage the authorities to get their cases properly ready in time for the first court hearing. Its not as if the system does not give the police and prosecution all the time they need to get their case ready with tools like “release under investigation – RUI” at their disposal (see RUI above).
Finding out where the case will be decided.
The charge sheet or summons sheet in the IDPC will inform the lawyer whether the case is definitely going to be decided at the Magistrates Court or the Crown Court. There will be more about the difference between those two courts later (see Crown Court section). The lawyer will tell the client if it is a summary only offence, so that it can only be decided at the Magistrates or if it is an indictable only offence, so it must go to the Crown Court after the first hearing at the Magistrates. Common assault, non violent harassment, section 4A threatening public order offences all are summary only matters. Murder, rape or inflicting grievous bodily harm are all offences that can only be heard at the Crown Court and are called indictable only.
The maximum sentence for any summary only offence is 6 months imprisonment. If you are charged with multiple summary only offences and they are sentenced at a single Magistrates court hearing then after adding all sentences up any total term of imprisonment cannot exceed 6 months. A lawyer can tell you how that might work.
There is a further category of offence called either way offences. Such offences include breach of a restraint order, thefts, assault occasioning actual bodily harm, possession of a controlled drug with or without intent to supply and the public order offence of Affray. When the defendant comes before the Magistrates charged with an either way offence, the Magistrates ask if the defendant is going to plead guilty or not guilty to the allegation. If the plea is not guilty then the Magistrates have to decide if the matter is so serious that their powers of sentence are not enough to deal with the case if the matter were to end up with a guilty outcome or they have to decide if the case is so complex, that they find that the matter must go to the Crown Court to be progressed. Magistrates can only sentence for any offence up to 6 months imprisonment. They can impose up to 12 months imprisonment if they have two either way offences before them and the court decides it can properly sentence those offences with up to 6 months imprisonment on each and that they should be served by the defendant, one after the other (that is called “consecutive” sentences).
If the Magistrates decide they should not send the case to the Crown court then the defendant has a choice whether to have their either way charge decided by the Magistrates or the Crown Court. We will advise our client if the charge is for an either way offence and what the reasons are for and against choosing to have the matter decided in the Crown Court or kept in the Magistrates. It is then our clients choice whether an either way offence and all the related offences charged should be decided by the Magistrates or the Crown Court ( we explore reasons for the choice in the Crown Court section below). This is a very significant decision and is another good reason to have someone from Trinity Advocates involved to advise by this stage.
Apart from advising where the case should be progressed the most important decision our client is going to make at the first hearing is whether to admit the allegations or to deny them.
Guilty or Not Guilty
Having owned up to a crime without dragging out proceedings is always going to help the defendant when it comes to arguing for the most merciful punishment. But no one is going to admit an offence if they haven’t done it (or maybe if they think the prosecution and police could never prove it so that anyone could be sure). The law recognises the principle of giving credit for a guilty plea by stating that such pleas at the first chance in court can result in a reduction of the punishment by a third. So for example, a 3 month prison sentence that the court thinks would be appropriate after a guilty finding at a trial for an offence might properly become a 2 month prison sentence after an early guilty plea. However if the defendant hasn’t done the crime alleged then they cannot admit it.
The lawyer will advise the client what sort of penalty they might get on an early guilty plea, or on a guilty finding after a trial and help the client weigh up how strong the evidence is against them, so they know how hard or easy it might be to win their trial if they deny the allegations. The lawyer will also advise on whether the law supports what the prosecution and police say they can prove and whether the version of events the client is asserting is going to be a lawful defence. And all the time the Trinity Advocates lawyer is going to remind their client that its up to the prosecution to prove the case so the Magistrates or Jury at a trial are sure the allegations are proven. It is not for the defendant client to prove their innocence.
The client then has a choice. Do they think that the prosecution case and evidence is not up to proving guilt? Do they think their defence case and the evidence the defendant and their lawyer will produce at trial will be dismissed or will the defence case cast real doubt that the prosecution case is a certainty? Whatever the strength or weakness of the evidence, if the client defendant is not going to admit they have done anything wrong then they will plead not guilty and then it is our job to find the best way to win the case for them. This means being consistent with what the client has told us is their defence, considering how to undermine the prosecution evidence and best proving the defence case, all the time applying the laws of evidence.
Some defendants find it frustrating that issues or evidence they think is crucial to their case is not allowed to be heard at the trial. It is up to the defence lawyer to judge what is going to be allowed to be considered in evidence at the trial and to explain that to the client. All evidence heard at a trial has to be “relevant”.
All options for how to present the defence case will be considered and advised upon once our client has made the commitment to guilty or not guilty.
If the case has remained at the Magistrates then if the plea is guilty then the case moves to sentencing (See that section below).
So you are going to have a trial in the Magistrates?
If the plea is not guilty and the case remains in the Magistrates then even though it’s the first hearing, the assumption by the Court is that the defendant and their lawyer will be ready to identify which prosecution witnesses are going to be challenged at the trial and what about. The defence lawyer will be asked to say which statements can be read, which facts can be agreed and which facts are going to be disputed. If further evidence is going to be required then the lawyer will have to identify that and give the court a reasonable estimate of how long it is going to take to obtain that and present it (“serve” it) on the Court and Prosecution. If the defence are going to need defence witnesses then there is an obligation to provide their details to the Court and Prosecution within 14 days after the Prosecution have served something called a notice of initial disclosure. Knowing what that is and whether it is correct is another good reason to have a lawyer to help.
There are a number of options and commitments from the prosecution and defence that are triggered by putting in a not guilty plea and listing for a trial. We believe we can make a big difference to our clients being best prepared and giving them the best chance to win at their trial.
The rules about who has to serve disclosure of what and the advantages and disadvantages of providing disclosure are not straightforward and our experience and knowledge counts for a lot towards deciding what to disclose and when, as well as deciding how to deal with inadequate disclosure from the Prosecution in the lead up to the trial.
And after the first hearing?
With funding in place for Trinity Advocates to help you in your case, we are on the end of the phone to help you, we can meet you in the office, we will confirm the outcome and case preparation plan in writing to you and we can start putting together the evidence for your defence. There will be plenty of opportunities to review how the preparations are going and for you to ask questions and take advice.
Even if you are waiting for a sentencing decision on a guilty plea there can be important work to be done so the court has all the information needed to decide the fairest outcome.
Even if the first hearing has been and gone, If we haven’t talked to you about your latest case before and if you call us to arrange a meeting, we will nearly always agree to see you in the office with or without legal aid or private funding arranged.