CLP 4 - evidence

Question 1

In what document is the evidence served on the defence for summary and either way cases?

Answer 1

The prosecution serves the ‘Initial Details of the Prosecution Case’

Question 2

What is the overriding objective?

Answer 2

deal with cases justly and at proportionate cost.

Question 3

At what time should a PTPH held?

Answer 3

within 28 days of sending (a plea is taken at the PTPH- Plea and Trial Preparation Hearing)

Question 4

Where the magistrates’ court sends the case for trial to the Crown Court when must evidence be served?

Answer 4

In custody - 50 days
On bail - 70 days

of the date on which the defendant has been sent for trial in the Crown Court.

Question 5

Where is evidence uploaded?

Answer 5

on the “Crown Court Digital Case System”

Question 6

When must the draft indictment be served?

Answer 6

not more than 28 days after serving prosecution evidence.

Question 7

When might ‘pre-trail matters’ be considered?

Answer 7

• at a first hearing or anytime before the trial starts.

Question 8

If the Magistrates court holds a pre-trial hearing, the rulings are binding on the magistrates that hear the case. When can an application to vary or discharge in those rulings be made?

Answer 8

• there has been a material change in the circumstances; or
• something was not brought to the attention of the court when they made the ruling which could justify a variation or discharge.

Question 9

What are the two parts of the PTPH - Plea and Trial Preparation Hearing in the crown court?

Answer 9

• first ‘plea’; and
• second either ‘sentence’ or ‘trial preparation’ stage.

Question 10

When must an application to dismiss the charges be made?

Answer 10

• before a plea is taken

Question 11

What is an arraignment?

Answer 11

At the plea stage of the PTPH in the crown court the indictment is put to the defendant and they enter a plea of guilty or not guilty to each count of the indictment

Question 12

What happens if the defendant pleads guilty to the incitment?

Answer 12

the case moves to sentence

Question 13

What happens if the defendant pleads not guilty to the indictment?

Answer 13

the court proceeds to the ‘trial preparation’ of hearing.

Question 14

What happens if the defendant pleads guilty to one indictment and not guilty to another?

Answer 14

prosecution will consider whether to move to sentence or trial preparation.

Question 15

What if the defendant is ‘unfit to plead at the PTPH?

Answer 15

If the judge determines D is unfit to plead then no plea is taken and the case moves to ‘trial preparation’.

If guilty D can only receive:
- an absolute discharge
- a supervision order
- a hospital order

Question 16

What matters are dealt with at the trial preparation stage in the magistrates court?

Answer 16

• trial date
• issues for trial
• prosecution evidence - P confirms all served or what is left and when will be served.
• Expert evidence - directions given for service and seeking agreement between experts.
• Witness requirements - defence informs P which of P’s witnesses it requires to attend court. D must also give details of its witnesses.

Question 17

What standard directions are given at the trial preparation stage of the PTPH?

Answer 17

• Defence statement. D serves a defence statement which sets out their case.
• Defendant’s interview - P & D to agree an edited record for use at trail
• Agreed facts and issues. D sets out agreed facts.
• Disputed facts and issues. D sets out where there is dispute with P
• Disclosure
• Bad Character - time table set for service of bad character applications and responses.
• Hearsay - can either side use it?
• Admissibility of legal issues. All issues notified
• Special measures - live link etc. sought be witnesses.
• Witness summons.

Question 18

Disclosure - what is ‘used material’?

Answer 18

material the prosecution will rely upon at trail to prove its case against the defendant.

Question 19

Disclosure - what is Unused material?

Answer 19

Material not being relied upon by the prosecution.

Question 20

Disclosure - what information should be disclosed

Answer 20

Any information potentially relevant material which has not previously been disclosed and might undermine the case or assist the accused

Question 21

Disclosure - what was the finding in R v H and C?

Answer 21

any material held by the prosecution which weakens its case or strengthens that of the defendant should be disclosed.

Question 22

What are the four stages of disclosure for the police?

Answer 22

1) investigation stage - duty to record and retain material during the investigation.

2) initial duty to disclose on the prosecution.

3) defence disclosure.

4) continuing duty on the prosecution to keep its disclosure under review.

Question 23

what roles are involved in an investigation?

Answer 23

• an officer in charge of the investigation - responsible for directing the investigation and ensuring that information is retained.
• an investigator - police officer conducting the investigation.
• a disclosure officer - responsible for examining material retained and revealing to prosecutor and defence at prosecutor’s request.

Question 24

What if the disclosure officer is in doubt?

Answer 24

they must seek the advice and assistance of the prosecutor.

Question 25

What material should be maintained?

Answer 25

All material which may be relevant to a criminal investigation.

Question 26

When does the duty to retain material last to?

Answer 26

• until a decision is taken whether to institute proceedings against a suspect for a criminal offence.
• where convicted, at least until release from custody (if no custody then 6 months from the date of conviction).

Question 27

What must a disclosure officer certify?

Answer 27

that to the best of their knowledge and belief they have complied with their duties under the Disclosure Code of Practice.

Question 28

What must a prosecutor certify?

Answer 28

Prosecutor must
- disclose any new material which might reasonably be considered capable of undermining the case for prosecution or assisting the case of the accused.
- give a written statement that the above has been complied with.

Question 29

When should the initial details of the prosecution case be served?

Answer 29

No later than the day of the first hearing

Question 30

What should the initial details of the prosecution case allow the defence and the court to take an informed view on?

Answer 30

• plea
• venue for trial (on either way cases)
• case management
• sentencing (including committal for sentence on either-way cases)

Question 31

In what circumstances and when must unused material be disclosed by the prosecution?

Answer 31

• Magistrates - only when defendant pleads not guilty and the case is adjourned for summary trial.
• Crown Court - when a defendant is sent for trial or where a Voluntary Bill of Indictment has been preferred against the defendant.

In both cases, the prosecution must act ‘as soon as reasonably practicable’.

Question 32

When will a PTPH normally take place

Answer 32

28 days after sending to crown court.

Question 33

what is a defence statement?

Answer 33

a written statement which sets out the accused’s defence

Question 34

what are the contents of a defence statement?

Answer 34

• sets out the nature of the accused’s defence, including any particular defences on which he intends to rely.
• sets out matters of fact on which he takes issue with the prosecution.
• sets out why he takes issue on each fact.
• sets out the particulars of the matters of fact on which he intends to rely
• indicates any points of law which he wishes to take.

Question 35

what must be included in a defence statement if an alibi is used

Answer 35

• name, adress and d.o.b of the witness to the alibi (or as many as are known).
• any information which may assist in identifying witnesses if the above is not known

Question 36

What is the time limit for serving a defence statement in the crown court? Can it be extended?

Answer 36

• within 28 days of the prosecution’s initial disclosure.
• can be extended if application is made within the 28 days and the court is satisfied that it would not be reasonable for defendant to serve defence within 28 days

Question 37

What is the time limit for serving a defence statement in the Magistrate’s Court? Why would the defence make one?

Answer 37

Defence statement is not compulsorily. But if decide to do so, must be done within 14 days of prosecution’s initial disclosure.

Failure to make a defence statement will prohibit the defence from making an application for specific disclosure.

Question 38

What if the defence wants to call a witness? Are there any time limits?

Answer 38

D must disclose to the court and P a notice indicating:
- D wishes to call a witness, and
- ID the witness

Magistrates Court - notice must be served within 14 days of P’s initial disclosure

Crown Court - notice must be served within 28 days of P’s initial disclosure

Question 39

What happens if the defence statement is not served/insufficient in the crown court?

Answer 39

• jury may draw an adverse inference (although can’t convict solely on the basis of an adverse inference).
• P could challenge the lack of defence by serving a notice on the court and D seeking the court to direct that an adequate statement of defence is made

Question 40

What happens if the defence statement is not served/insufficient in the magistrate’s court?

Answer 40

• no adverse inference if no defence statement is made.
• However, can draw adverse inference if insufficient defence statement is made.

Question 41

How does a ‘defence statement’ help the disclosure?

Answer 41

The prosecution are under a duty to continually review disclosure. The defence statement allows the prosecution a chance to re-review its disclosure.

Question 42

what is ‘specific disclsoure’

Answer 42

The defence can make an application to the court where it has reasonable cause to believe that there is prosecution material which should have been disclosed.

Note: must relate to an issue identified in the defence statement, cannot be made if there’s a failure to make a defence statement.

Question 43

how long does the prosecution have to respond to an application for specific disclosure?

Answer 43

14 days

Question 44

What are the possible consequences of the prosecution failing to disclose?

Answer 44

• D could bring an application to stay the indictment.
• conviction could be quashed on appeal.
• delay, costs, refusal to extend custody time limits
• exclusion of evidence

Question 45

When and how should P obtain third party material?

Answer 45

if third party material might be considered capable of undermining the prosecution or assisting the defence, then P should take steps to obtain it.

P can obtain the information trough a summons.

Question 46

What if the prosecution holds evidence that is sensitive?

Answer 46

P must apply to the court for a ‘non-disclosure in the public interest’ and the court will decide on the minimum necessary redaction

Question 47

What happens if a witness statement is agreed?

Answer 47

if agreed by prosecution and defence, it is simply read out in court. If the statement is challenged, the witness must be called and challenged orally.

Question 48

What happens if a fact is agreed?

Answer 48

both parties can just agree the fact as a fact.

Question 49

What is a judicial notice of fact

Answer 49

Relates to fact that is obviously true or very easy to find out.

Question 50

what types of evidence are there:

Answer 50

• real evidence - objects and things brought to court.
• direct evidence - where a witness has experience of a matter.
• Circumstantial evidence - evidence from which facts are inferred.
• A view - jury go to the scene of a crime or visit an object that cannot be brought to the court.

Question 51

What is an application for dismissal?

Answer 51

a pre-trial application to have the charges against the defendant dismissed.

Question 52

When can an application for dismissal be made?

Answer 52

• only after d has been sent to the Crown Court by the Magistrate’s Court for trial.
• Only after the defendant has been served with the evidence relating to the offence
• Only before the defendant is arraigned (i.e. the offence has been put to D and D has plead guilty or not guilty

Question 53

Where can an application for dismissal be made?

Answer 53

The application is made to the Crown Court Judge and notice must be made in writing.

Question 54

When should an application for dismissal be accepted?

Answer 54

if the judge feels the evidence against the applicant would not be sufficient for him to be properly convicted.

Question 55

Can judicial review be brought against a decision on whether an application for dismissal is accepted?

Answer 55

No

Question 56

Where can a submission of no case to answer be made?

Answer 56

either Magistrates or Crown Court

Question 57

When can a submission of no case to answer be made?

Answer 57

During a trial after the prosecution has submitted all of its evidence.

Question 58

Who is a submission of no case to answer made to?

Answer 58

Judge

Question 59

When should a submission of no case to answer be accepted?

Answer 59

R V Galbraith

“Where the judge comes to the conclusion that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict upon it.

Question 60

What are the two grounds for abuse of process?

Answer 60

• where the court concludes that the accused can no longer receive a fair hearing.
• where it would otherwise be unfair to try the accused. (integrity of the criminal justice system).

Question 61

What is the remedy for abuse of process?

Answer 61

the case is stayed (closed without a guilty/not guilty verdict

Question 62

What is the Common law discretion to exclude evidence?

Answer 62

• court can reject evidence where its necessary for a fair trail.
• Only applies to prosecution evidence.

Question 63

If proved, is s.78 (adverse effect) discretionary?

Answer 63

Yes, the court can decide not to apply it

Question 64

Who can make an application under s.78 (adverse effect) PACE?

Answer 64

defendant - only applies to prosecution evidence.

Question 65

What is a Section 78 application?

Answer 65

where the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court MAY not to admit it.

Normally applies where there is a ‘significant and substantial’ breaking of the PACE rules.

Question 66

Which evidence does a Section 78 (adverse effect) application apply to?

Answer 66

All prosecution evidence (not just confession evidence)

Question 67

When can a section 78 (adverse effect) application be made?

Answer 67

• before the trial
• at the commencement of the trial
• just prior to the prosecution seeking to admit evidence that the defence wishes to be excluded.

Question 68

What happens if the facts underlying the section 78 (adverse effect) application are disputed?`

Answer 68

The court will hold a ‘Voir dire’ - a mini trial to find the facts. There is no burden of proof on either party.

Question 69

What does s.76 apply to?

Answer 69

A confession that was obtained by oppression (even if the court thinks the confession was true).

Question 70

What is a confession?

Answer 70

Includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.

Question 71

If proved, is s.76 discretionary?

Answer 71

No it is mandatory

Note: s.78 (adverse effect) is discretionary

Question 72

S.76 - When might a confession not be given in evidence?

Answer 72

where obtained:

• by oppression of the person who made it; or
• in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof.

Note: this must be something external to the accused - it cannot be them simply thinking they’ll get bail if they admit to something for example.

There must be a causal link between the oppression/thing said or done that results in the confession

Question 73

S.76 - Can the court require the prosecution to prove that a confession was not made under duress?

Answer 73

Yes - the prosecution must prove beyond all reasonable doubt

Question 74

S.76 Where something was said or done to render a confession unreliable, does the court consider the reliability of the actual confession made?

Answer 74

No - the court must decide whether there is a likelihood that any confession would be unreliable in the circumstances prevailing at the time (R v Gill)

Question 75

S.76 If a confession is found to be unreliable, does that prevent other evidence related to the confession from being admissible?

Answer 75

No - exclusion does not affect the admissibility in evidence:

• of any facts discovered as a result of the confession; or
• where the confession shows how the accused speaks, writes or expresses himself.

However, you can’t say that the facts were found because of the confession.

Question 76

s.78 - When is unfair evidence excluded?

Answer 76

If the admission of evidence would have such an adverse effect on fairness of the proceedings that the court ought not to admit it.

Question 77

What form is used in preparation for a pre trail hearing in the magistrates court and what does it contain?

Answer 77

Preparation for Effective Trial Form

• Contact details of parties to the case
• Evidence relied on by prosecutors
• Elements of case disputed by defence
• Any decisions or directions required

Question 78

What are the standard directions output for a pre trail hearing in the magistrates court?

Answer 78

• Service of evidence and disclosure - date given by court.
• details of witnesses and evidence - 14 days after disclosure is complete.
• expert evidence - report to be served by D on prosecution.
• securing attendance - is a summons required?
• special measures - esp. witness special measures.

Question 79

Must a Plea and Trial Preparation Hearing be held in all cases to the Crown Court?

Answer 79

Yes

Question 80

What is the first step of a PTPH in the crown court?

Answer 80

Araignment

Charges read out an plea taken for each charge

Question 81

Which court do the prosecutions duty to disclose apply to?

Answer 81

The duties are the same in both the magistrates and crown court

Question 82

When must initial disclosure be made?

Answer 82

Magistrates court - as soon as is reasonably practicable after defendant has plead not guilty.

Crown Court - as soon as reasonably practicable
- after case is committed or transferred for trial.
- after evidence is served
- after indictment added

Question 83

If an allegation of s.76 (oppression) is made. Who has the burden of proof and to what level?

Answer 83

The prosecution must show beyond reasonable doubt that there was no oppression.

Question 84

If an allegation of s.76 oppression is made by the defence, how is the matter decided?

Answer 84

By voir dire (mini trial)

Question 85

What does s.78 PACE apply to?

Answer 85

Any evidence proposed by the prosecution.

Question 86

Can the prosecution use s.78 (adverse effect)?

Answer 86

No, only the defence.

Prosecution can only have evidence excluded on irrelevance

Question 87

What is the first hearing in the crown court?

Answer 87

Plea and trial preparation hearing
(PTPH)

Question 88

Ptph 28 days after sending, evidence 50 to 70 days after sending, evidence served 7 days before PTPH ???