From Report to Court: Digital Guide

The first hearing is sometimes called the ‘first appearance’ as this is the first time the defendant appears in court.

Will I have to attend the first hearing?

The victim will not normally need to attend this hearing, although you can attend the court if you would like to. You can attend any court hearings that relate to your case and sit in the public gallery. The only exceptions to this are if the public gallery is closed, which only happens in very specific legal circumstances. You also cannot sit in court during the trial if you have not yet given your evidence, or at a hearing where legal or evidential issues are being discussed that may impact on your evidence.

What happens at the first hearing?

The defendant will be asked if he is guilty or not guilty of the offence(s). If the defendant says he is not guilty then a number of decisions have to be made about which court will hear the trial (the magistrates’ court or Crown Court) and whether or not he will be granted bail.

What’s the difference between a magistrates’ court and the crown court?

Magistrates’ Court

In the magistrates’ court there are normally three magistrates who hear the case and make decisions on the case. Magistrates are non-legally qualified members of the public. Sometimes cases are heard by one judge, called a district judge. District judges are legally qualified. In the magistrates’ court the maximum sentence that a person can receive is 6 months imprisonment for one offence and 12 months imprisonment for more than one offence.

Crown Court

The most serious cases are tried in the Crown Court. When a trial takes place in the Crown Court, a jury will decide whether the defendant is guilty or not guilty. The jury will be made of 12 randomly selected members of the public. There will also be a judge who oversees the case. The judge will make decisions about the law (such as whether particular evidence can be allowed at the trial). If the jury finds the defendant guilty then the judge will decide the sentence. Unlike at the magistrates’ court where there are limits on the maximum length of sentence, judges can sentence a defendant to any term in prison up to the maximum sentence available in law. This maximum is different for different offences.

During a police investigation or before trial a defendant can be given bail. This means he will not be kept in custody. A defendant who has been charged with an offence and remanded in custody (kept in prison) has the right to ask the court to grant him bail. His first opportunity to make a bail application will usually be at his first appearance at the magistrates’ court.

How does the court decide whether to grant bail?

When deciding whether to grant a defendant bail, the court will consider the:

• type and seriousness of the offence
• defendant’s character, previous convictions, friendships and community ties
• defendant’s record of attending court and fulfilling bail conditions in the past
• strength of the case against the defendant
• whether there is a real prospect that the defendant would receive a custodial sentence if convicted
• any other considerations the court thinks relevant

When can a court refuse bail?

1. If the defendant might commit an offence involving domestic violence
2. If there are real concerns that the defendant may try to contact and intimidate you or other witnesses.
3. If a defendant is charged with murder, manslaughter or rape (or attempting any of these offences) and has a previous conviction for one of these the court may only grant bail him in exceptional circumstances and must give reasons if it does.

I’m worried the defendant will be granted bail. What can I do?

If you are concerned about whether the defendant will be granted bail, or any bail conditions, you should discuss those concerns with the police officer dealing with your case. The officer should discuss the concerns with you and pass these on to the CPS. The CPS should make arguments on your behalf to the court that reflect your concerns. The court will then decide whether the defendant should be granted bail.

The CPS can appeal to the High Court if a Crown Court judge grants a defendant bail.

Can the defendant do what they want whilst on bail?

If the defendant is given bail then the court can impose any conditions it considers necessary to ensure that the defendant comes back to court and does not commit any further offences. These conditions can include:

• Non-contact with the victim or witnesses, either directly (for example by telephoning the victim or messaging her on Facebook) or indirectly (such as passing messages through friends)
• Residence at a certain address
• A surety (where a third party promises to secure the defendant’s attendance at court and to pay a certain amount of money to the court if the defendant does not then attend when required)
• A security (where someone pays the court money which is forfeited if the defendant does not then attend court when required).
• Reporting to a police station at certain times or frequencies (for example, ‘twice a day at 10am and 2pm’ or ‘every Wednesday afternoon’)
• Curfew (having to be at his place of residence between certain times such as overnight. This can be monitored by electronic tagging equipment or by the police).
• Staying in or out of certain areas

What if the defendant breaches their bail conditions?

If the defendant breaches (breaks) any of their bail conditions, you should tell the police immediately. It is not a criminal offence to breach a bail condition but someone who breaches their bail can be arrested and if so must be brought to the court that granted bail within 24 hours. If the defendant is found to have breached their bail the court can then reconsider whether to re-release the defendant on bail. Bail may be taken away or stricter conditions may be added. It is a criminal offence if the defendant does not attend court on the time and date required (also called failing to surrender to custody). If they fail to attend court hearings, the court may take away their bail, and remand them into custody.

Your safety

If you are threatened or harassed in any way by the defendant, their family or friends, either before or after they appear in court, you can tell the police.

If you are being threatened you could call 999 immediately. Otherwise make a note of what is said and contact the officer dealing with your case.

In addition to being a possible breach of their bail conditions, it is a serious criminal offence to do something that stops you from giving evidence in a criminal trial. If you are able to, it can be helpful to keep a record of any behaviour of the defendant, their friends or family which might be a breach of the defendant’s bail conditions or an attempt to intimidate you. You can report this behaviour to police or ask your Independent Sexual Violence Adviser to help you to keep a record. This will help the police decide whether or not the defendant has breached their bail, or whether or not another offence has been committed. It may be used as evidence against them in court.

One of the decisions that must be made at the defendant’s first appearance is which court his case will take place in. All criminal cases start in the magistrates’ court with more serious cases being transferred to the Crown Court for trial.

• The most serious offences are triable on indictment only. This means that they can only be tried in the Crown Court. Rape and assault by penetration are triable on indictment only so they will always be tried in the Crown Court.
• Some of the less serious cases are summary only. This means that they can only be tried in the magistrates’ court.
• All other cases are either way offences. This means that they can be tried in either the magistrates’ court or the Crown Court depending on two things: sentencing powers and the defendant’s preference.

How is it decided which court an either way offence is tried in?

When deciding where the case should be tried, the first issue is whether the magistrates’ sentencing powers are sufficient if the defendant is found guilty. The maximum sentence that a person can receive in the magistrates’ court is 6 months imprisonment for one offence and 12 months imprisonment for more than one offence and/or a fine.

Cases where the sentence may be more than this must be sent to the Crown Court to be tried. If the magistrates decide that their sentencing powers are sufficient, the defendant can then choose whether to be tried in the magistrates’ court or the Crown Court.

Sexual assault and causing someone to engage in sexual activity are either way offences. This means the magistrates will look at the nature and seriousness of the offence. If 6 months in prison and/or a fine would not be sufficient for the nature and seriousness of the case, then the case will go to the Crown Court. If 6 months and/or a fine is sufficient then the defendant will be allowed to choose whether to have his trial at the Crown Court or magistrates’ court.

Young Defendants

Even though the criminal justice system tries to divert young offenders from court by dealing with them in other ways, they can still be prosecuted, particularly if an offence is serious.

A young defendant would usually be tried in a youth court (a part of the magistrates’ court that deals with young people aged under 18). However, very serious or grave offences, including sexual violence, are usually tried in the Crown Court.

If the trial is in the youth court, it will not be open to the public. The press can report the case, but they cannot report the name or address of the defendant, or publish photographs or anything else that may identify them without the permission of the court. They also cannot report details about the victim if the case is one involving sexual violence. One reason the youth court might lift the reporting restrictions on a young defendant is if it decides it is in the public interest to do so. The court will then allow the youth’s details to be published (but any victims of any sexual offences should still remain anonymous). Similar reporting restrictions are likely to be ordered when young defendants are tried in the Crown Court.

The defendant will usually be expected to enter pleas of guilty or not guilty to the offences he has been charged with. Entering a plea means they will tell the court whether they admit to the offence (plead guilty) or they deny the offence (plead not guilty). You can attend this hearing if you would like to and watch from the public gallery.

If they plead not guilty a trial date will be set and the CPS and defence will start preparing for a trial.

If they plead guilty the court will consider sentencing. For information on sentencing see The defendant was found guilty. What happens next?

Sometimes the CPS may decide to accept a guilty plea to a different or less serious offence than the one that the defendant is charged with. This might happen if:

• you have indicated that you do not want to give evidence
• the defendant has pleaded guilty to some but not all of the charges against him
• new evidence has come to light

The plea should only be accepted to a less serious charge if the court is able to pass a sentence that meets the seriousness of the offence. This is particularly relevant if there are aggravating factors (factors that makes the offence even more serious) such as where violence or a weapon was used. Your views and interests should be taken into account when pleas are being considered, and if a plea is accepted you should be informed in writing and invited to a meeting with the CPS. The Victims’ Right to Review does not apply to decisions by the CPS to amend the charge and accept a plea to that amended charge.

Can a defendant change his plea?

It is possible for the defendant to change his plea to guilty before trial, on the first day of trial (for example, once they know that the prosecution witnesses have turned up to give evidence), or even in the middle of the trial. Defendants get credit (a reduction in their sentence) if they plead guilty to an offence. The earlier they plead guilty the greater the reduction in sentence they get.

Newton hearings after a guilty plea?

In some circumstances a type of trial may be held even if a defendant pleads guilty. These trials are called Newton hearings. A Newton hearing may occur if a defendant pleads guilty on particular facts, and the Crown Prosecution Service or judge does not accept the plea on those facts.

For example, a defendant might plead guilty to a sexual assault on the basis that he kissed you without your consent, but did not do anything else, whereas your account was that he kissed you and also touched your breasts without your consent. The Crown Prosecution Service may decide that they will not accept his guilty plea on that limited basis and ask the Judge to hold a Newton hearing to decide the specific question of what happened. You may have to give evidence, but only on the specific factual question of exactly what happened – in the above example, you should not be asked questions about whether you consented to the kiss, as that is not an issue in dispute.

A Newton hearing will usually only be necessary where the difference between the defendant’s basis of plea and your account will make a difference to sentence (i.e. the difference in accounts is significant).

To find out more about what happens after the defendant pleads guilty see The defendant was found guilty. What happens next?

To find out more about what happens after the defendant pleads not guilty see the next section on ‘preparation for trial’.

Many months may pass between the defendant being charged with an offence and the trial.

During this time the prosecution and defence will be preparing their case. The defendant will use this time to hire a lawyer and prepare their case. Although the defendant will usually be represented by a solicitor or barrister (especially in the Crown Court), due to changes in legal aid it is not always the case that a defendant will have a solicitor or barrister for a trial. In this situation the defendant will represent himself, present their own case to the court, and question witnesses. However, in cases involving sexual violence, the defendant will not be allowed question you themself. The court will appoint a lawyer who will do this.

Preparing for a Magistrates’ Court trial

If the trial is heard in the magistrates’ court, the defendant will be asked to enter a plea the first time he appears there. Entering a plea means he will tell the court whether he admits to the offence (pleads guilty) or he denies the offence (pleads not guilty). You can attend this hearing if you would like to, and watch from the public gallery.

If they plead guilty, the court will either sentence them immediately or arrange a further hearing on another date to decide what sentence they should receive (for information on sentencing see The defendant was found guilty. What happens next?). If they plead not guilty, a trial date will be set. There may be other hearings between the first hearing and the trial to make sure that the case is ready for trial.

Whichever court the defendant is tried in, one of the key issues that will be dealt with in pre-trial hearings is disclosure (i.e. what evidence is needed and when it will be shared with those who need to see it).

Preparing for a Crown Court trial

If a case is being tried in the Crown Court, there will be a Plea and Trial Preparation Hearing (or PTPH).

What is a plea and trial preparation hearing?

At this hearing the defendant will be asked to formally enter a plea of guilty or not guilty. Entering a plea means they will tell the court whether they admits to the offence (plead guilty) or they deny the offence (plead not guilty).

If the defendant pleads guilty the court will arrange a hearing on another date to decide what sentence they should receive.

If they plead not guilty the judge will set a trial date and give directions to the parties about things that need to be done before the trial.

At the PTPH the prosecution can make an application for special measures, which you can read about elsewhere in our guide. Special measures are things that can be put in place to help you to give your evidence.

What happens after the PTPH?

There may be additional hearings, called ‘mentions’, between the PTPH and the trial. At these mention hearings the court can deal with any matters which have arisen – for example, hearing legal arguments about what evidence will be allowed.

During this process, the Witness Care Unit or your contact at the police should keep you informed of any developments in your case. You can attend these hearings and sit in the public gallery, although it is possible for the defence to object to your attendance. If you would like to attend, it would be a good idea to discuss this with the Witness Care Unit or your contact at the police, so that they can make arrangements to ensure you do not come into contact with the defendant.

Whichever court the defendant is tried in, one of the key issues that will be dealt with in pre-trial hearings is disclosure.

Everyone has the right to a fair trial. This means that the CPS must show (‘disclose to’) the defence the evidence they have against them and any evidence that may undermine (weaken) the prosecution’s case or assist the defence case. The evidence that will be disclosed to the defence will include witness statements, forensic medical reports and any other evidence that may be relevant. This could include information retrieved from your phone and social media sites.

There is usually a timetable imposed for the police and prosecution to provide disclosure to the defence team. Different time limits apply depending on the type of offence and the court. You can ask your contact at the police for more information.

Your human rights

Everyone in the UK has certain fundamental rights that are protected by law.

The Human Rights Act 1998 places obligations on certain public authorities (such as the police, the CPS and the courts) to respect and protect individuals’ human rights. This includes protecting your human rights and the defendant’s human rights. For more information on each right you can visit the British Institute of Human Rights Website.

If a public body, such as the police or CPS, makes a decision which is incompatible with your human rights then you can contact a lawyer that specialises in public law for advice on how to challenge that decision. You may be able to get legal aid to help pay for your legal fees.

The Code of Practice for Victims of Crime (also called the Victims’ Code) tells you what your rights are as a victim.

Under the Victims’ Code, survivors of sexual violence are entitled to receive an enhanced service from the different agencies involved in the criminal justice system.

As a survivor of sexual violence entitled to enhanced services you can expect the following under the Victim’s Code:

• To be given information about the criminal justice system and your role in it.
• To be given a needs assessment to work out what support you need.
• To be referred to specialist organisations who may provide support and other services.
• To be informed, within 1 working day, about key events in your case, including if the suspect / defendant:
  • is arrested
  • is interviewed under caution
  • is released with no further action taken
  • is released on police bail, and any bail conditions, or if police bail conditions are changed or cancelled
  • is charged or not charged (and the reasons for this)
  • is given an out of court disposal, such as a caution
  • is proceeded with on a different charge or if proceedings against him are stopped (for example, if proceedings are discontinued or if the CPS decide to offer no evidence)
  • pleads guilty
• To be informed of other key information, such as the date, time, location and outcome of any court hearings that relate to your case, usually within 1 working day.
• To be given information about giving evidence and what help the Witness Care Unit can offer.
• To ask for special measures to be used during the trial to help you give evidence.
• To make a Victim Personal Statement and to have this taken into consideration if the defendant is found guilty. You can make this at any time prior to sentence even if you do not provide a witness statement.
• To meet with the CPS prosecutor and be given the opportunity to ask questions about the court process.
• To be offered a visit to the court to familiarise yourself with it and to be offered options which will allow you to enter the court and wait in a different area from the defendant (where possible).
• To be informed of any appeal lodged by the offender against conviction or sentence.
• To opt into the Victim Contact Scheme and, if you wish, make a Victim Personal Statement or representations to the Parole Board about the offender’s release from prison and any conditions attached to that release.

To be given information on applying to the Criminal Injuries Compensation Scheme for compensation.

The Code of Practice for Victims of Crime can be read here.

Victims of rape, assault by penetration, sexual assault and causing someone to engage in sexual activity without consent are given life-long anonymity in criminal proceedings. This means that if you decide to report the offence, no identifying personal details or photographs of you can be published in your lifetime. If your details are published the person publishing the details can be prosecuted.

There can be no publicity about the offence or the offender that would lead to you being identified as the victim. This is the case even if you withdraw your complaint or they are found to be not guilty. Your name, however, will still be given in court.

Some judges are now allowing reporters to ‘tweet’ about cases live from the courtroom. Your name cannot be included in such tweets. You may also have heard that cameras are now allowed in courts. At this time, cameras are only allowed in the Court of Appeal, not the Crown Courts or magistrates’ courts. Even in hearings in the Court of Appeal that are being filmed, victims of sexual offences should not be named, and the cameras will not film any defendants, witnesses, victims or members of the public who are in the courtroom.

Will the defendant be given anonymity?

The law does not give anonymity to defendants in trials for sexual offences, except where revealing their name would identify the victim (or the defendant is under 18).

Independent Sexual Violence Advisers (ISVAs) and Independent Domestic Violence Advisers (IDVAs) were introduced to provide specialist support to victims of sexual and domestic violence.

ISVAs may be able to support you by providing information, and practical and emotional support throughout your involvement with the criminal justice system, including:

• Supporting you when you give your statement to the police. Although they cannot be in the room when you are interviewed, they can be there for you during breaks and after the interview.
• Helping you access healthcare and other specialist support services, such as counselling.
• Supporting you throughout the criminal justice process by keeping you informed of developments in your case and accompanying you to court.
• Challenging agencies in the criminal justice system on your behalf if you do not get the service that you are entitled to.

ISVAs may be based in local Sexual Assault Referral Centres, Rape Crisis organisations or police stations. Wherever they are based their role is to be a source of support that is independent from other agencies in the criminal justice system.

Some people who have experienced sexual violence need support in the form of therapy or counselling.

The decision as to whether or not you would benefit from therapy is one that only you can make with the support of relevant health professionals (e.g. your doctor or a counsellor).

Why does it matter if I have therapy before or after the trial?

If you have therapy before you give evidence in a criminal trial you need to make the CPS aware of this by telling your contact at the police. This is because what you say in court about what has happened and how you answer questions is extremely important in enabling a jury (or magistrates or a district judge) to reach a decision about whether or not the defendant is guilty of the offence.

Pre-trial discussions about your evidence may affect whether or not it is considered to be reliable. It may be argued that you have been coached (told what to say).

If you are undertaking pre-trial therapy this may have to be shared with the defence. This could lead to the defence applying to the court for information about what is said during the therapy. This cannot be done simply to find out what you are doing or thinking, but only where the information could be important for the defence. For example, the defence may want to show that a witness has told the police one thing about what happened to them and their therapist another.

CPS guidance on these issues is available here. The CPS make it clear that there is no requirement to delay therapy on account of an ongoing police investigation or prosecution.

Is there anyone I can talk to about this?

You can discuss the consequences of having therapy in confidence on our criminal law advice line.