A ‘bench’ of lay magistrates is comprised of either two or three individuals, although a lay magistrate can sometimes sit on their own in certain cases or applications. They are not qualified lawyers, but are members of the community, trained to hear trials and impose sentences in summary matters. They also decide whether suitable cases should be sent to the Crown Court for trial. They deal with most criminal cases prosecuted in England and Wales.

Alternatively, a single ‘district judge’ may preside in place of a bench of magistrates. A district judge is usually either a solicitor or barrister, with experience in criminal defence and/or prosecution.

This individual sits directly in front of the magistrates/district judge and advises on points of law and procedure. They do not decide cases.

The prosecutor will normally be from the Crown Prosecution Service (CPS), but can be from the local authority. They may also be a private prosecutor. As the name suggests, they present the case to the magistrates and prosecute the criminal offences, either at sentence or trial, depending upon the plea. They are normally solicitors or barristers,
but some cases can be prosecuted by associate prosecutors; CPS employees with specific training.

Their primary function is to present their best case, to maximise the chances of conviction, but they still need to abide by the criminal procedure rules and a sense of fairness in pursuing the proper interests of justice.

The defence lawyer is there to defend and advance your legal rights. They test the prosecution case in procedural, factual and legal terms. They ensure that the court adheres to the burden and standard of proof. They represent at trial and try to ensure their client’s acquittal. In the vent of conviction, they present mitigation with a view to minimising sentences.

A probation service representative will normally be in the courtroom if the magistrates are dealing with cases that might require probation input. If directed to do so, they will prepare written or verbal reports to the court as part of a sentencing exercise. They will also update the magistrates on a defendant’s progress with a current community order if the defendant stands to be re-sentenced in proceedings for breach of the order.

The usher organises the order in which cases are heard and makes sure everyone is where they should be. They normally wear a black gown and defendants should make themselves known to the usher for that courtroom upon arrival.

The Youth Court almost always sits in private, but adult cases are heard in public. A member of the public does not have to have a particular connection to the case to be permitted access to the public gallery, but very few members of the public attend ‘random’ cases.

A victim or other prosecution/defence witness can sometimes ask to be present during a hearing, but this can be prohibited in some circumstances. Your defence lawyer may not necessarily recognise someone sitting at the back of the court, so if you are concerned about the presence and identity of someone in court, you should let your lawyer know.

The appearance of a reporter in court is less likely than it used to be, but they still attend in the most serious cases. When we represent in serious cases, we routinely check the resulting press coverage and can advise on any perceived misrepresentations.

A defendant will be called into court when the various participants are ready to present the case. If the defendant is already in custody, they will be brought upstairs from the cells. If they are on bail or attend by answering a summons, the usher will call them in from the corridor.

A defendant on bail/summons can be asked to step inside the dock for the duration of the hearing, although the door to the dock is not normally locked. In some cases, the magistrates are content to have the defendant stand beside or behind their lawyer. It often depends upon the physical arrangement of the court, what else is happening in court at the time and the purpose of the hearing. For example, is it simply an administrative review hearing or is it a sentencing hearing at which the defendant is at risk of being sent to prison?

The decision needs to be based upon a proper understanding of the case against you. We need to be satisfied that the prosecution has disclosed enough of their case so that we can fully advise on the strength of the prosecution's evidence. In many cases, it is possible to make this assessment prior to the first hearing. We may have been at a police interview with you, or we may have been able to obtain the ‘initial case details’ from the prosecution prior to the hearing.

If it is not possible to make the assessment at/in advance of the first hearing, it may be possible to postpone the plea until a later hearing. This is particularly so where a case needs to be sent to the Crown Court. Once the prosecution has disclosed sufficient evidence for the purposes of settling the plea, we will advise on the apparent strengths and weaknesses in your case. The actual plea you enter must be your choice, although your decision will be based on the advice we provide. ‘Best advice’ is achieved when we have your observations on the prosecution case. When the facts are straightforward, it may be possible to take your observations in a very short space of time, remembering that you are not obliged to fully prepare for a trial at the very first appearance. In more complex cases, where the case needs to be sent to the Crown Court, it may not be sensible to indicate any plea at the Magistrates Court.

Sometimes, we act for clients who are determined to enter a guilty or not guilty plea, no matter what our advice might be. The client is perfectly entitled to do so. Our job is to advise, not decide the plea. We most often come across this situation where the prosecution case is strong, but the defendant decides to run a trial against very low chances of success. Entering a guilty plea against a weak prosecution case is less common but can arise where, for example, an early guilty plea is the most effective way to avoid a prison sentence. For some clients, the conviction itself is not the issue. The likely sentence is much more important to them.

Please remember that if you deny the alleged wrongdoing, the corresponding plea is not guilty. This might sound obvious, but we sometimes act for clients who deny the allegations, but want to enter a guilty plea to ‘get it over with’. On one level, a client is perfectly entitled to take this course. On another level, we need to satisfy ourselves that full advice on the plea has been provided before a client makes this kind of decision. We may therefore ask a client to sign a document acknowledging the advice given and noting the intended guilty plea.

We are obliged to inform you that if you plead guilty at the earliest opportunity (and this can include admissions during a police interview), the court will provide a defendant with ‘credit’ for that early guilty plea. Depending upon a number of factors, the reduction can be from 25% to 33% of the sentence the defendant would have received had they been convicted after trial.

If a defendant enters a not guilty plea and subsequently changes their plea to guilty, the level of credit reduces on a sliding scale. For example, a guilty plea on the day of trial will not normally attract credit of more than 5% and can be 0%. It is therefore important to secure timely disclosure of the prosecution case, take your earliest observations on that case and enter the correct plea at the first appropriate point.

There are circumstances in which a change of plea from not guilty to guilty can still secure maximum credit. This normally occurs when the prosecution agrees to compromise their case in some respects and a defendant is content to enter a guilty plea to the ‘newly presented’ facts.

This depends on quite a few factors, but our experience means that we can give you a good indication of the kind of sentence you may expect in any given circumstances.

The court bases a sentence upon published guidelines and we can work through those guidelines with you. The guidelines focus on the degree of culpability, the degree of harm caused (financial/physical/emotional, etc.), together with various aggravating and mitigating factors.

The court will sometimes ask the Probation Service to prepare a pre-sentence report to help with the sentencing exercise and this will normally require an adjournment of the case. Alternatively, the court may simply ask the Probation Service to provide a verbal ‘stand down’ report on the day.

Developing your personal mitigation is an important part of the process. This can include character references, commenting upon your honesty and reliability, together with examples of how they benefitted from your support in particular scenarios. Although we cannot write character references, we can provide guidance on the topics someone should cover in providing a reference for you. The references can be confined to writing, but the person’s presence at court with the written reference demonstrates an additional level of support and this can be important in deciding a sentence.

Some absences are unavoidable, but the court needs to know why, so they can determine whether the reason amounts to a ‘reasonable excuse’. It, therefore, helps to provide evidence of - for example, illness or exceptional travel difficulties on the day.

If the court agrees on the reasonable excuse, we normally make an application for an adjournment unless the expected progress can be made without you being present. If the court decides that the explanation does not amount to a reasonable excuse, it can issue a warrant for your arrest in relation to the separate criminal offence of failing to appear at court.

There are two types of arrest warrants in these circumstances. Firstly, the warrant can be ‘backed with bail’. This means that if you are arrested or you surrender to the police after the event, they will release you on bail with an obligation to attend the next available court date. Secondly, many warrants are ‘not backed with bail’. This means that if you are arrested or surrender to the police, you will be kept in custody pending production before the next available hearing (usually the next day). The court will then decide whether you are bailed from
court or kept in custody pending the next substantive hearing.

It is therefore important that you urgently advise us of any difficulties you anticipate in attending court at any point. We will ask the court not to issue a warrant (assuming we have instructions and evidence amounting to a potential ‘reasonable excuse’), but if a warrant is issued, we will advise on the next steps.

If you are showing COVID symptoms or another illness prevents you from attending, we can make an application to the court for your attendance by remote link. This may avoid the need for an application to adjourn, assuming you are well enough to take part in the hearing remotely.

In fact, we have found that some courts will grant remote attendance to a defendant if:

• the defendant lives or works a great distance from the court, and
• the hearing is so straightforward that it would be unreasonable to require a defendant to attend.

This is especially the case where we are fully instructed to attend in person (or even remotely) and the hearing’s purpose is largely administrative.

There are no strict criteria when it comes to remote attendance for a reason other than COVID/other illness. Assuming you provide us with sufficient notice (48 hours is normally enough), we will take instructions and make the application in writing to the court’s legal advisor. If the application is granted, you will receive an email containing a link to the hearing. Most courts use Microsoft Teams or a system called ‘CVP’, designed specifically for secure links to courtrooms. Either way, the links come with instructions and guidance on how best to make the connection. You should not assume that remote attendance will be granted.

The vast majority of criminal cases in England and Wales are started and finished in the Magistrates Court. You may hear these offences referred to as ‘summary only’. However, some cases have to be sent from the Magistrates' Court to the Crown Court. These offences are referred to as ‘indictable only’. Other cases can be dealt with either at the Magistrates' or Crown Court and are referred to as ‘either way’ offences.

In addition, if the magistrates accept jurisdiction in an ‘either way’ matter, they may subsequently send a defendant to the Crown Court for sentence if they feel their sentencing powers are insufficient.

If the Magistrates' Court accepts jurisdiction in an ‘either way’ matter, a defendant can still, in most cases, ‘elect’ a Crown Court trial instead of a trial at the Magistrates' Court. The circumstances in which a defendant might want to do this are quite narrow and need to be the subject of careful advice. Most notably, conviction at the Crown Court, following an election from the Magistrates' Court, can result in a greater sentence than would have been the case if the magistrates had sent the case to the Crown Court. On the other hand, defendants sometimes want a judge and jury to hear their case because of, for example, the need for complex expert evidence. A defendant cannot elect a Crown Court trial in respect of a ‘summary only’ matter.

The proper venue for the trial or sentence of any youth is normally the Magistrates' (Youth) Court. However, there are circumstances in which a youth can be sent to the Crown Court, assuming they are charged with an offence capable of being tried at the Crown Court. Specific advice will be required in each case, but in general terms, this is how it works:

Normally at the first hearing and having heard the youth’s not guilty plea (or no indication of plea), the Youth Court will consider the offence, the surrounding circumstances, the suitability of the Youth Court sentencing powers and whether the youth is jointly charged with an adult. If the youth is jointly charged with an adult, the court must consider whether it is in the interests of justice to have the youth tried with the adult at the Crown Court - assuming the adult’s case is to proceed to the Crown Court.

The ‘interests of justice’ consideration can be complex and regard must be given to ‘The Sentencing Council's Definitive Allocation Guideline’. In summary, the guidelines oblige the prosecution, defence and court to consider the youth’s age, the relevance of any previous convictions, the relative ages of the youth and the adult, the youth’s
relative culpability, and their maturity. Consideration will also be given to whether separate trials will cause injustice to witnesses or to the case as a whole.

If a youth enters a guilty plea, the Youth Court will still consider whether the youth should be sent to the Crown Court for sentence, but the vast majority of youths will stay at the Youth Court for that purpose, even if an adult co-defendant has been sent to the Crown Court.

Our default position is that youths should stay in the Youth Court wherever possible, but there are circumstances where particular clients can be better served by trial before a jury. It would be impossible to provide bespoke advice in this document, so we prefer to spend time with a youth client and the parent/guardian discussing these issues in advance of the hearing.

If you wish to be represented by a particular barrister at the Crown Court, we can make enquires with their chambers to check their specialism, availability and willingness to work under a Legal Aid order, if relevant. If you have no preference, we will recommend a barrister from our approved list. We will have this conversation with you if the case is likely to proceed to the Crown Court.

In most circumstances, acquitted defendants are entitled to the return of defence costs. Following changes to the law in October 2012, defence costs are returned at legal aid rates, which means that you can only recover around 25-35% of your funding.

When clients are acquitted or if relevant applications succeed, recovery of costs is a priority and JMW employs a specialist team of in-house costs lawyers for that purpose. Although the majority of costs applications can be handled by the lawyer with direct conduct of your case, our ability to offer the services of a dedicated costs recovery lawyer in complex cases can make a very real difference to the net level of funding.

Assuming that defence costs are not covered by a policy of insurance, you will need to apply for legal aid at the start of the case in order to stand a chance of recovering any defence costs at the Crown Court. This applies even if you know that you are ineligible. If legal aid is refused and you are found not guilty (or if the case is discontinued prior to trial), you can apply for the return of defence costs at the prevailing legal aid rates.

There may be prosecution costs, compensation and/or a financial penalty to pay if you are found guilty. If you privately funded your case, you may be required to pay disbursements, although these can usually be anticipated and calculated as part of the costs estimate or fixed fee. These disbursements can include experts' reports or counsels' fees, depending on the nature and requirements of your defence.

You may be able to make a fresh application for legal aid using evidence of the revised income and relevant living expenses. You should bear in mind, however, that legal aid does not always represent the most cost-effective approach. We can assist with the calculations so that you can make the best decision.

During an initial call, it is often difficult to accurately predict final costs. This is usually the case in complex litigation or where we need to speak with various parties to determine what needs to be done. The case may not be suitable for a fixed fee or it may not be possible to offer a fixed fee until some initial enquiries are undertaken. We therefore often take cases in stages.

The first stage involves taking more detailed instructions, obtaining or considering papers and providing advice on prospects of success, including advice on anticipated costs for the subsequent stage (if required). This enables clients to decide whether they want to continue and on what basis we carry out the required tasks. In order to work through the first stage, we ask for a payment in advance; usually in the sum of £900. If it is possible to complete the whole case without incurring the full £900 (by reference to the relevant hourly rate), the balance will be returned to you unless the first stage has been agreed as a fixed fee.

Our individual terms of business letter will set out what we will do during the first stage in your particular case. Due to the number of enquiries we receive in our department each day, it is simply not possible to complete the first stage free of charge, especially if we have to be ‘on the record’ to obtain the details we need from courts and other agencies. This is why we ask for a payment on account to cover the work clients ask us to undertake beyond the initial call. We electronically record the work we do (preparation/calls/letters, etc.), so you can see what we have done and when it was carried out. This ‘billing guide’ accompanies the invoice we produce at the end of each month or stage.

When someone is interviewed about a criminal allegation, they might be released from the police station with ‘police bail conditions’. This is most often the case where a suspect is directed to stay away from complainants or potential witnesses while officers complete their investigations. Conditions might also oblige a suspect to reside at their normal home address or not leave the country while the matter is under investigation. Time limits apply to the imposition of police bail conditions and those limits have to be the subject of a formal application for an extension if the matter cannot be resolved one way or the other within the initial bail period. We can advise on whether suspects may sensibly oppose applications for an extension.

Whether or not the police impose bail conditions, the court has a separate power to do so once a suspect becomes a defendant for the purposes of attending a hearing in a criminal matter. Where applicable, court conditions focus on ensuring a defendant’s attendance at the subsequent hearing and/or the prevention of further offences in the meantime. We can advise on the reasonableness of court conditions and we are often instructed to apply for the variation or discharge of court bail conditions.

If a suspect or defendant breaches police or court bail conditions, it makes that person liable to arrest. It can often require the police to keep a person in custody pending production before the next available court sitting. If the breach is proven, it can constitute a separate offence, for which a penalty can be imposed.