Pre-trial litigation

Question 1

Defendants routinely misuse the terms bail and remand. Which one of the following is the best meaning of remand?

(a) 
Where the defendant is obliged to come back to court to continue with the case.

(b) 
Where the defendant waits in custody for the next court hearing.

(c) 
Where the defendant is presented to court, and the court cannot conclude the case in one hearing.

(d) 
Where the defendant is on bail until the next court hearing.

Answer 1

(a) 
Where the defendant is obliged to come back to court to continue with the case.


Question 2

Who applies for the defendant to be remanded into custody?

(a) 
The defendant

(b) 
The prosecution
(c) 
The Judge

(d) 
The jury

Answer 2

(b) 
The prosecution

It is for the prosecution to apply to have the defendant remanded into custody if that is its desire by presenting objections to bail.


Question 3

Who can grant bail in murder cases?

(a) 
The jury

(b) 
The defence

(c) 
The prosecution

(d) The Judge in the Crown Court

(e) 
The Magistrates’ Court

Answer 3

(d) The Judge in the Crown Court


Question 4

The presumption in favour of bail is found in which section of the Bail Act 1976?

(a) 
Section 1

(b) 
Section 2

(c) 
Section 4
(d) 
Section 3

Answer 4

(c) 
Section 4

The court must presume that a defendant is entitled to bail, and it is only if an objection is properly made out that bail can be refused.


Question 5

The presumption in favour of bail applies in which of the following situations?

(a) 
On conviction whilst reports are prepared pending sentence
(b) 
On appeal from conviction or sentence

(c) 
To defendants being committed for sentence from the Magistrates’ Court to the Crown Court

Answer 5

(a) 
On conviction whilst reports are prepared pending sentence.

Although the concerns about a defendant absconding may be more serious following a conviction.


Question 6

Which of the following is one of the ‘big three’ grounds for objecting to bail?

(a) 
A remand in custody would be for the defendant’s own protection

(b) 
The court has insufficient information to deal with the issue of bail

(c) 
The defendant is already serving a sentence in custody

(d) 
Fail to surrender to custody

Answer 6

(d) 
Fail to surrender to custody

Question 7

Which of the following is a ground for objection to bail rather than a factor to be taken into consideration?

(a) 
Bail record in the past

(b) 
Commit further offences

(c) 
Character of the defendant, his antecedents, associations and community ties

(d) 
Nature and seriousness of the offence and the likely sentence

(e) 
Strength of the evidence

Answer 7

(b) 
Commit further offences


Question 8

What does adjournment mean?

Answer 8

In any case where D is presented to court and court cannot conclude case in one hearing, case will have to be adjourned - adjournment applies to case, it does not describe what happens to D

Question 9

What does remand mean and who applies for it?

Answer 9

Where D is sent away and told to come back another day, it is called remand - D is obliged to come back to court to continue with case - remand may either be either be served in custody, or served in community on bail

Prosecution is to apply to have D remanded into custody if that is its desire. To have D remanded, prosecution presents objections to bail, due to presumption in favour of bail.

Question 10

What is the right to bail?

Answer 10

• s. 4 BA 1976: court must presume that D is entitled to bail and it is only if objection is properly made out that bail can be refused - this is why prosecution needs to apply for remand of D
• Purpose of right to bail: to secure notion hat prosecution has to apply to remove bail as matter of normal practice
• In cases where right to bail applies, it is prosecution that has to make first move ie rebut right to bail on legally specified objection

Question 11

When does the right to bail not apply?

Answer 11

Right to bail does not apply to:
(a) Those appealing their conviction or sentence; or
(b) To Ds being committed for sentence from Magistrates’ Court to Crown Court

Bail can be granted in both these cases - the presumption does not apply

Question 12

What are the three primary grounds for objecting to bail?

Answer 12

Test set out in BA 1976, Sch 1, para 2: whether, if D is released on bail, there are substantial grounds for believing that D would either:
(a) Fail to attend subsequent hearing (failure to surrender to custody);
(b) Commit further offences on bail; and/or
(c) Interfere with witnesses, or otherwise obstruct course of justice eg witness intimidation or destruction of evidence

Question 13

What does substantial grounds for believing mean in terms of the grounds for objection to the right to bail?

Answer 13

• Threshold: substantial grounds for believing that if granted bail, D will behave in way that ground specified eg will commit further offences on bail
• Not particularly high test
• Not for court to conclude that D would behave in way specified in ground, or even that D’s behaviour would be more likely than not to include behaviour in ground - not enough for judge simply to have subjective perception of one or more of these risks
• Only necessary to show that fears of behaviour happening have substance and merit - factual enquiry and not a trial per se, so no formal rules on evidence
• Representation will be made by prosecution and defence but generally neither party needs to call witnesses or produce documentary evidence

Question 14

What happens if there are no real prospects of the defendant receiving a custodial sentence?

Answer 14

• Final filter - bail should not be removed under one of these grounds if d is charged with offence(s) where there are ‘no real prospects’ of D receiving custodial sentence
• Theft is indictable offence, so strictly speaking, even stealing banana is indictable - if there is no real prospect of offence being custodial, then ground of objection cannot succeed
• So big three grounds are available for any indictable offence carrying imprisonment

Question 15

What are the three additional grounds for objection?

Answer 15

After three main grounds, next most common and most important trio of grounds that are likely applicable are:
(a) A remand in custody would be for D’s own protection
(b) Court has insufficient info to deal with issue of bail, and so remands in custody for (short) period for production of sufficient evidence and/or
(c) D is already serving sentence in custody

Test is simply that D ‘need not’ be granted bail if one of these conditions exist

Question 16

What are the four groups of offences?

Answer 16

(1) Serious case (eg murder and rape) where it is harder to get bail bc of gravity of consequences of such offending;
(2) Cases of particular character (eg drugs or domestic violence) where different approach needs to be take bc particular behavioural difficulties commonly encountered with Ds who commit these offences;
(3)Cases where D infringes bail
(4) Remaining cases - dealt with in relation to their classification and, even with standard cases, there are a number of provisos to watch out for

Question 17

What are the four factors taken into consideration when the court determines if the grounds for objection to bail have been made out?

Answer 17

1. Nature and seriousness of offence and likely disposal ie sentence: If convicted of serious offence, D is likely to receive long sentence and will therefore be tempted to abscond
2. Character of D, D’s antecedents, associations and community ties
   - Antecedents refers to previous convictions which can make custodial sentence more likely
   - Character might include any personal circumstances such as drug addictions
   - Associations might include friends with criminal records
   - Examining community ties help see how easy it could be for D to abscond and how much D has to lose by absconding
   If D I married with children or in a job, then D might be less likely to disappear compared to someone of no fixed abode
3. D’s bail record in the past: whether D has absconded in past can be seen as indicative that D may do so again - court will also look at whether D has tendency to commit offences on bail
4. Strength of evidence D who knows there is good chance of being acquitted is arguably less likely to abscond than one who anticipates almost certain conviction

Question 18

If the court was concerned that the defendant would leave town and fail to attend the next court hearing, which of the following would be the most appropriate condition to impose?

(a) 
Restriction on who the defendant might have contact with during bail

(b) 
Security

(c) 
Residence at a given address

(d) 
Surety

(e) 
Reporting to the police station at given times

Answer 18

(e) 
Reporting to the police station at given times

Question 19

How many bail conditions can the court impose on a defendant?

(a) 
No limit

(b) 
Two conditions

(c) 
Just one

Answer 19

(a) 
No limit

The court can impose ‘such conditions as appear necessary’ meaning technically that there is no limit to the conditions that a court could choose to impose.


Question 20

Who can make an application to vary bail conditions?

(a) 
The prosecution only

(b) 
The defence only

(c) 
The prosecution or the defence

Answer 20

(c) 
The prosecution or the defence

The application should be made to the court which granted bail (or the Crown Court if the accused has been sent for trial or committed for sentence).

Question 21

In the context of bail, which of the following is an offence?

(a) 
Breaching a bail condition

(b) 
The Bail Act 1976 s.7

(c) 
Not surrendering to custody

Answer 21

(c) 
Not surrendering to custody

This is an offence punishable by up to three months’ imprisonment in the magistrates’ court or 12 months on indictment.

Question 22

Under the Bail Act 1976 s.7, officers do not have the power to arrest…?

(a) 
Those about to be in breach of a bail condition

(b) 
Those in breach of a bail condition

(c) 
Those who will breach a bail condition sometime in the future

Answer 22

(c) 
Those who will breach a bail condition sometime in the future

The Bail Act s.7 provides that there is a power of arrest allowing officers to arrest those either who are in breach, or who are about to be so.

Question 23

Which of the following represents the maximum sentence for not surrendering to custody?

(a) 
No sentence, as failing to surrender to custody is not an offence

(b) 
12 months imprisonment

(c) 
3 months imprisonment

Answer 23

(b) 
12 months imprisonment


Question 24

What does a bail condition have to be?

Answer 24

1. Relevant;
2. Proportionate and
3. Enforceable

Question 25

What are the most common bail conditions

Answer 25

1. Residence at given address
2. Curfew
3. Reporting to local police station at given times
4. Surety
5. Security
6. Restriction on where D may go during bail
7. Restriction on who D might have contact with during bail
8. Electronic monitoring (tagging)
9. Bail hostels
10. Surrender of passport

Question 26

What are the consequences of breach of bail conditions?

Answer 26

• May result in being arrested under s. 7(3) and D is at risk of either having bail conditions tightened or being remanded in custody
• It is routine for courts to impose conditions on bail
• If D is found in breach of a condition, D is not actually committing an offence - no offence of ‘breaching a bail condition’
• s. 7 BA: power of arrest allowing officers to arrest those either who are in breach or who are about to be so
• If person has been arrested for breach, they have to be brought to court within 24 hours

Question 27

When does the custody time limit for a defendant awaiting trial in the magistrates’ court expire?

(a) 
When the court begins hearing evidence from the defence.

(b) 
When the court begins hearing evidence from the prosecution.

(c) 
When a jury is sworn

Answer 27

(b) 
When the court begins hearing evidence from the prosecution.


Question 28

Within how many days of the first appearance must a trial take place in the Crown Court, if the prosecution have not successfully applied to extend the custody time limit?

(a) 
182 days, less any days spent in custody prior to the case being sent to the Crown Court
(b) 
28 days

(c) 
56 days

(d) 
182 days

Answer 28

(a) 
182 days, less any days spent in custody prior to the case being sent to the Crown Court

Usually the defendant will not spend any days in custody prior to the case being sent to the Crown Court.


Question 29

To successfully apply to extend the custody time limit, the prosecution must be able to show which of the following?

(a) 
That there was a good reason for the trial not taking place within the custody time limit.

(b) 
It has acted with all due diligence and expedition.

(c) 
There is good and sufficient cause to have the defendant further remanded into custody.

(d) 
It has acted with all due diligence and expedition and that there is good and sufficient cause to have the defendant further remanded into custody.

Answer 29

(d) 
It has acted with all due diligence and expedition and that there is good and sufficient cause to have the defendant further remanded into custody.

If the limits expire, then the defendant will be released, unless the prosecution successfully applies to extend the time limits.

Question 30

If a defendant is remanded into custody at their first hearing and their trial will take place in the magistrates’ court, their first remand must be for no longer than how many days?

(a) 
8 clear days
(b) 
28 days

(c) 
56 days

Answer 30

(a) 
8 clear days

Second appearance (in person or via live link) must be within eight days of the first appearance. D can make another bail application.


Question 31

How many total attempts does a defendant have at applying for bail as a general rule, if the trial is to be held at the magistrates’ court?

(a) 
One

(b) 
Two

(c) Three

Answer 31

(c) Three

The defendant can have two attempts at getting bail at the magistrates’ court, and one attempt on appeal to the Crown Court.

Question 32

In the usual case, if the defendant is having a trial at the magistrates’ court and is unsuccessful in applying for bail at first appearance, when can the issue of bail be raised for a second time?

(a) 
24 hours

(b) 
48 hours

(c) 
One week

Answer 32

(c) 
One week

Once the defendant has had both applications, the defendant must secure a ‘certificate of full argument’ from the magistrates’ court before then appealing to the Crown Court, if he wishes to do so.

Question 33

Which court hears prosecution appeals against granting of bail in the magistrates’ court?

(a) 
Crown Court
(b) 
Court of Appeal

(c) 
Magistrates’ court

(d) 
High Court

Answer 33

(a) 
Crown Court

The appeal will be heard within 48 hours, excluding weekends.


Question 34

Which court hears prosecution appeals against granting of bail in the Crown Court?

(a) 
High Court

(b) 
Magistrates’ court

(c) 
Court of Appeal

(d) 
Crown Court

Answer 34

(a) 
High Court

The appeal will be heard within 48 hours, excluding weekends.


Question 35

How quickly is a prosecution appeal against bail heard by the court?

(a) 
Within 48 hours, excluding weekends
(b) 
Within 24 hours, including weekends

(c) 
Within 48, including weekends

(d) 
Within 24 hours, excluding weekends

Answer 35

(a) 
Within 48 hours, excluding weekends

This applies where the magistrates’ court and Crown court grant bail.


Question 36

What is the bail timeline for usual cases vs urgent cases?

Answer 36

Usual case:
1. D attends court first time the case is listed and applies for bail
2. If D is unsuccessful, case will be returned to court a week later where issue of bail can be raised second time without any restriction or qualification and D can apply again
3. In principle, it is possible for defence advocate to make identical applications at first and second hearings and to find that same application is denied but then allowed by different bench of magistrates or District judge
4. Once D has had both applications, D must secure ‘certificate of full argument’ from magistrates’ court before then appealing (if they wish to do so)
5. Certificate is simply short summary that magistrates produce so that Crown Court knows what has transpired in court below - appeals are heard one business day after appeal notice is served
6. D can only apply again if change of circumstance

Urgent case:
1. Crown court will hear bail appeal no later than one business day after appropriate notice is served, but clearly this is still quicker route to being heard than waiting for a week to pass and applying again in magistrates
2. If D appeals to Crown Court after only one application in magistrates, then D loses right to second application in magistrates’
3. D can only apply again if there is change in circumstances

Question 37

What is the process for the prosecution appealing against granting of bail?

Answer 37

Magistrates:
Very rare for prosecution to appeal against granting of bail - it is possible however and basic process is that:
1. Prosecution must have opposed bail originally
2. Offence must be punishable by imprisonment
3. Prosecution indicates orally at hearing when bail is granted that they will appeal (D is then held in custody)
4. Intention to appeal is confirmed in writing and served on court and defence within two hours
5. Appeal is heard within 48 hours - excluding weekends
6. Appeal is heard by Crown Court judge

Crown Court:
Same procedure but heard by High Court Judge sitting in HC

Question 38

What are the custody time limits?

Answer 38

56 days for trials in magistrates court of summary only or either-way offences - start of trial is defined as when court begins hearing evidence from prosecution

182 days for trials in Crown Court of indictable only or either-way offences, less any days spent in custody prior to case being sent to Crown Court (usually 0) - start of trial is defined as when jury is sworn

Question 39

Which of the following is not required to be included in the initial details served on a defendant who is on bail at the time of the first hearing?

(a) 
The preparation for effective trial form
(b) 
A summary of the circumstances of the offence

(c) 
Any written statements and exhibits that are available and material

(d) 
The defendant’s criminal record

(e) 
Any account given by the defendant in interview

Answer 39

(a) 
The preparation for effective trial form

This is not required under Part 8 Criminal Procedure Rules. If the defendant pleads not guilty then this will be completed as part of the ongoing case management.


Question 40

Where will an adult defendant charged with robbery make their first appearance, have their trial and be sentenced?

(a) 
In a magistrates’ court for first appearance, trial and sentencing.

(b) 
In a magistrates’ court for first appearance and trial, the Crown Court for sentencing.

(c) 
In the Crown Court for first appearance, trial and sentencing.

(d) 
In a magistrates’ court for first appearance and the Crown Court for trial and sentencing.

Answer 40

(d) 
In a magistrates’ court for first appearance and the Crown Court for trial and sentencing.

This is the correct procedure for indictable only offences such as robbery.

Question 41

Which of the following will not take place at a first hearing in relation to an offence of assault occasioning actual bodily harm?

(a) 
Indication of plea

(b) 
Consideration of bail

(c) 
Trial
(d) 
Legal aid

Answer 41

(c) 
Trial

If the defendant indicates not guilty then any trial will take place on a later date.


Question 42

What is the timing for first hearings?

Answer 42

Where D is on bail, first hearing must be within:
(a) 14 days of being charged - if prosecutor anticipates guilty plea which is likely to be sentenced in magistrates
(b) 28 days of being charged - where it is anticipated that D will plead not guilty, or case is likely to go to Crown Court for either trial or sentence

Question 43

What must the Initial Details of the Prosecution Case include?

Answer 43

Must include:
1. Summary of circumstances of offence
2. Any account given by D in interview
3. Any written statements and exhibits that are available and material to plea and/or mode of trial or sentence
4. Victim impact statements and
5. D’s criminal record

Rules prescribe that where D was in police custody immediately before first hearing, initial details need only comprise:
1. Summary of circumstances of offence and
2. D’s criminal record

Question 44

What do first hearings deal with for summary only and either way offences?

Answer 44

First hearing deals with matters such as:
1. Plea;
2. Bail;
3. Representation and legal aid

Depending on type of offence it might progress to sentence

Question 45

What do first hearings deal with for indictable only offences?

Answer 45

Magistrates has no jurisdiction to deal with indictable only offence - D charge with such offence only makes brief first appearance in magistrates

Court will deal with bail and legal aid and then D is sent to Crown court where they will enter plea - hearing at CC is 3/4 weeks later, depending on D’s bail status

Question 46

What is the exception to the general rule that summary only offences cannot be tried in CC?

Answer 46

• Important exception to rule that summary only offences never go to CC
• Happens when D is charged with offence that is to be tried in CC and there is summary only offence which is connected to indictable offence
• If summary only offence is one of those below and is before magistrates at same hearing as indictable offence, it must be sent to CC (s. 40 CJA)
  1. Common assault
  2. Assaulting prison or secure training centre officer
  3. Taking motor vehicle or other conveyance without authority
  4. Driving motor vehicle while disqualified
  5. Criminal damage

Summary offence that is in s. 40 and related to matter that has been sent to CC for trial can be included on indictment and jury will consider it then return a verdict

Remember:
Related summary that must be sent for plea only - s. 51(3) CDA 1998
- Any summary matter not listed in s. 40 CJA but that is punishable by disqualification from driving or imprisonment
- Where summary only offence is not on list in s. 40, it will not appear on indictment - when trial for indictable offence is over, accused will be asked whether to enter plea in relation to summary only offence
- If D pleads guilty, CC may deal with offence in any way that would have been open to magistrates court
- If D pleads not guilty, CC has no further power to deal with offence
- If there is to be trial it is remitted to magistrates

Question 47

What is a plea before venue?

Answer 47

• At first hearing when offence is triable either-way, D will be asked to indicate plea
• D is supplied with copy of initial details by prosecutor in accordance with CPR Rule 8
• Charge is written down and read out to D
• D can:
  1. Indicate guilty
  2. Indicate not guilty or
  3. Give no indication
• Where no indication is given, it is treated as not guilty indication
• This part of hearing is known as ‘plea before venue’ and procedure is set out in s. 17A MCA 1980
• Guilty plea must be unequivocal - it must be one free of any suggestion or statement that D is not guilty, either bc they purport to rely on defence or refuse to accept element of offence
• If plea is equivocal, it will be treated as not guilty plea rather than guilty plea

Question 48

Which of the following best explains where an adult defendant charged with fraud could potentially make their first appearance, have their trial and be sentenced?

(a) 
In a magistrates’ court for first appearance and the Crown Court for trial and sentencing.

(b) 
In a magistrates’ court for first appearance and either a magistrates’ court or the Crown Court for trial and sentencing.
(c) 
In a magistrates’ court for first appearance, trial and sentencing.

(d) 
In a magistrates’ court for first appearance and trial, the Crown Court for sentencing.

Answer 48

(b) 
In a magistrates’ court for first appearance and either a magistrates’ court or the Crown Court for trial and sentencing.

Fraud is an either-way offence, so after first appearance in a magistrates’ court, the court for trial and sentencing will depend on a variety of factors, the magistrates’ accepting jurisdiction, the defendant’s election and the magistrates’ sentencing powers.

Question 49

Which of the following best summarises when a defendant should be committed to the Crown Court for sentence?

(a) 
When the defendant has pleaded guilty to an either-way offence and the magistrates’ court is of the view that 6 months imprisonment will be insufficient

(b) 
When the defendant is charged with an indictable only offence.

(c) 
When the defendant has pleaded guilty to an either-way offence and the magistrates’ court is of the view that 12 months imprisonment will be insufficient.

Answer 49

(a) 
When the defendant has pleaded guilty to an either-way offence and the magistrates’ court is of the view that 6 months imprisonment will be insufficient


Question 50

Which of the following is not an appropriate consideration for the magistrates in deciding allocation for an either-way offence?

(a) 
Any personal mitigation

(b) 
The case is of unusual legal, procedural or factual complexity

(c) 
Whether the defendant has any previous convictions

(d) 
There is no power to commit for sentence after trial

Answer 50

(d) 
There is no power to commit for sentence after trial

In general, either-way offences should be tried summarily unless:
· the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or
· for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court.
Before making a decision on allocation, the court shall give the prosecution an opportunity to inform the court of the accused’s previous convictions (if any).
In cases with no factual or legal complications the court should bear in mind its power to commit for sentence after a trial and may retain jurisdiction notwithstanding that the likely sentence might exceed its powers.

Question 51

What is a pre-sentence report and when is it used?

Answer 51

Used after guilty plea for magistrates. Magistrates can also order PSR to be created for use by CC if it considers that:
(a) There is realistic alternative to custodial sentence or
(b) D is dangerous offender or
(c) There is some other appropriate reason for doing so

Question 52

What does the allocation guideline indicate about whether cases should be tried summarily?

Answer 52

Court must take into account allocation guideline which indicates that either-way offences should generally be treated summarily unless:
- Court’s sentencing powers would be insufficient ie outcome would clearly be sentence in excess of court’s powers for offence(s) after taking into account personal mitigation and any potential reduction for guilty plea
- For reasons of unusual, procedural, or factual complexity, case should be tried in CC

Question 53

What do the prosecution and defence do during allocation hearing?

Answer 53

Prosecution:
- Opens with facts
- Outlines D’s offending history (if any)
- Makes submissions as to where trial should be held consistent with allocation guidelines
- Submissions will cover nature and seriousness of offence including any particular mitigating features

Defence:
- Can make submissions as to venue
- Where they agree with prosecution it may be no more than saying that
- However, if prosecution submits that case should be heard in CC and defence disagree, they will need to make fuller, more persuasive submissions at this point

Question 54

What constitutes election?

Answer 54

If D does not ask for indication, or court refuses to give one, or if having heard indication, D sticks with not guilty plea, court asks D:
- If they consent to being tried in magistrates, meaning case will be adjourned or
- If they want to elect to be tried by jury meaning case will be transferred to CC

This is known as election

Question 55

What are the exceptions to the rule that summary only offences are tried in magistrates and indictable only are tried in CC?

Answer 55

1. Low value shoplifting
   - “Stealing goods valued at £200 or less
   - Although theft is either-way offence low value shoplifting is treated as summary only
   - Maximum sentence is 6 months
   - D still has right to elect to be tried at CC under s. 22A(2) MCA 1980
2. Criminal damage - Offence can only be dealt with at CC where damage is:
   - Over £5,000 or
   - Caused by fire (arson)
   In £5,000 or less, offence becomes summary only and must be dealt with in magistrates - max penalty in that case is 3 months imprisonment or level 4 fine (exception to normal rule for magistrates powers
3. s. 50A CDA 1998 “Cases involving complex fraud or where children may be called as witnesses should be sent directly to CC, it notice has been given under
   - s. 51B - for fraud
   - s. 51C for children
   Although offences themselves might be classed as either way, these types of cases will be sent to CC without going through plea before venue or allocation procedure. For all intent and purposes, they are indictable only.

Question 56

What constitutes complex fraud?

Answer 56

To be complex fraud, at least two of the following must be present:
- Amount is alleged to exceed £500,000
- There is significant amount of international dimension
- Case requires specialised knowledge of financial, commercial, fiscal or regulatory matters eg operation of markets, banking systems, trusts or tax regimes
- There are numerous victims
- There is substantial and significant fraud on public body
- Case is likely to be of widespread public concern or alleged misconduct endangered economic well-being of UK, eg by undermining confidence in financial markets

Question 57

Which of the following is likely to be unused material that is not relied on by the prosecution?

(a) 
The defendant’s record of tapes interview

(b) 
Disciplinary findings against police officers
(c) 
The indictment

(d) 
Statements from the prosecution witnesses

Answer 57

(b) 
Disciplinary findings against police officers

This will form part of the unused material that is not being relied upon by the prosecution. Unused material will include other items such as: statements from witnesses that the prosecution is not relying upon at trial to prove its case and records of previous convictions of prosecution witnesses.


Question 58

Who is responsible for ensuring that proper procedures are in place for recording information and retaining records of information and other material during an investigation?

(a) 
The officer in charge of the investigation
(b) 
The investigator

(c) 
The disclosure officer

Answer 58

(a) 
The officer in charge of the investigation

The officer in charge of the investigation is responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material.


Question 59

Where the defendant is convicted and given a custodial sentence, how long does the duty to retain material last?

(a) 
One year from the date of conviction

(b) 
Six years from the date of conviction

(c) 
At least until the defendant is released from custody
(d) 
Until six months from the date of conviction

Answer 59

(c) 
At least until the defendant is released from custody

Where the defendant is convicted, relevant material must be retained at least until the defendant is released from custody (or discharged from hospital).


Question 60

What is used and unused material in terms of disclosure?

Answer 60

Used material:
- Material that prosecution will rely upon at trial to prove case against D
- Used material consists of case papers and other material that forms part of evidence, such items as:
1. Statements from prosecution witnesses
2. D’s record of taped interview
3. Other doc exhibits such as plans and diagrams that are relevant to proving case
- It is from these materials that Ds will know what cases against them are

Unused material: Material that is not being relied upon by prosecution. Will include items such as:
1. Statements from witnesses that prosecution is not relying upon at trial to prove case
2. Records of previous convictions of prosecution witnesses
3. Disciplinary findings against police offers

Question 61

Which people are involved in every criminal investigation and what do they do?

Answer 61

Every investigation will have:
- Officer in charge of investigation: who is responsible for directing investigation and ensuring that proper procedures are in place for recording info and retaining records of info and other material
- Investigator: namely any police officer conducting investigation and
- Disclosure officer: who is responsible for examining material retained and revealing material to prosecutor and to defence at prosecutor’s request

In routine cases all these functions may be carried out by same person, although in complex cases roles will be individually assigned
- Investigator: must follow all reasonable lines of enquiry, whether these point towards or away from suspect and investigator must be ‘fair and objective’
- Disclosure officers: must inspect, view, listen to or search all relevant material that has been retained by investigator and must provide personal declaration that this has been done - where there is doubt as to whether any material is disclosable, disclosure officer must seek advice and assistance of prosecutor

Question 62

How long does duty to retain and record relevant material last?

Answer 62

• Duty lasts at least until decision is taken whether to institute proceedings against suspect for criminal offence
• Once proceedings are commenced, all material must be retained until accused is acquitted or convicted, or prosecutor decides not to continue with case
• Where D is convicted, material must be retained at least until D is released from custody (or discharged from hospital or, in cases which did not result in custodial sentence/hospital order, until 6 months from date of conviction
• Where appeal against conviction is in progress all material that may be relevant must be retained until appeal is concluded - where material comes to light after proceedings concluded which throws doubt upon safety of conviction, prosecutor must consider disclosure of material

Question 63

When does the statutory duty to provide unused material by the prosecution arise?

Answer 63

DCP sets out procedure for Prosecutor to be notified by disclosure officer of every item of Unused Material
- CC cases: disclosure officer prepares schedule known as MG6C which individually lists items of unused material
- Magistrates cases: where not guilty plea is anticipated, unused material is listed on streamlined disclosure certificate

In cases involving sensitive material (ie material disclosure of which disclosure officer believes would give rise to real risk of serious prejudice to important public interest) sensitive material is listed in separate schedule or, in exceptional circumstances where its existence is so sensitive that it cannot be listed, it is revealed to prosecutor separately

Remember that there is also a common law duty for disclosure even if the statutory one doesn’t arise.

Question 64

What is the test of initial disclosure under s. 3 CPIA?

Answer 64

s. 3(1): prosecutor must
(a) Disclose to accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, or
(b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).’

Disclosure test under s. 3 is objective - where there is in existence prosecution material which might help defence then it should be disclosed

Question 65

What is the definition of prosecution material?

Answer 65

Material:
(a) Which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, or
(b) Which, in pursuance of [the Disclosure Code of Practice], he has inspected in connection with the case for the prosecution against the accused.’

Question 66

In deciding whether or not material should be disclosed, what should the prosecution consider?

Answer 66

(a) Use that might be made of material in cross-examination;
(b) Its capacity to support submissions that could lead to:
(i) Exclusion of evidence;
(ii) Stay of proceedings as abuse of process, where material is required to allow proper application to be made
(iii) Court or tribunal finding that any public authority had acted incompatibly with accused’s rights under ECHR
(c) Its capacity to suggest explanation or partial explanation of accused’s actions;
(d) Capacity of material to have bearing on scientific or medical evidence in case (including relating to D’s mental or physical health, intellectual capacity, or to any ill treatment which accused may have suffered in custody

Question 67

What are the time limits for initial disclosure?

Answer 67

Prosecution will serve initial details of prosecution case (used material) no later than beginning of day of first hearing in accordance with CrimPR Part 8

In practical terms, at first hearing in magistrates where D pleads not guilty and case is adjourned by summary trial:
- If there is any further prosecution evidence still to be served, court will give date by which this must be done
- If prosecution has not complied with this initial disclosure of unused material at this stage, date will be given for this to be completed

If case is sent to Crown Court for trial, Plea and Trial Preparation Hearing (PTPH) will take place usually 28 days after sending - prosecution should serve sufficient evidence in advance of or at the PTPH to enable the court to case manage effectively without need for further case management hearing, unless case falls within certain exceptional categories such as murder or cases involving children where a further hearing will be envisaged
- At PTPH: if there is more prosecution evidence still to serve and/or if initial disclosure has not been complied with, dates will be given by when this must be done

Question 68

What is a defence statement and what is in it?

Answer 68

Defence statement = written statement which sets out nature of accused’s defence - should not be confused with D’s proof of evidence to D’s own legal advisers which is privileged doc, and thus, not disclosable to prosecution

For purposes of this part defence statement is written statement —
(a) Setting out nature of accused’s defence, including any particular defences on which he intends to rely,
(b) Indicating the matters of fact on which he takes issue with the prosecution,
(c) Setting out, in the case of each such matter, why he takes issue with the prosecution, and
Setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence, and
(d) Indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose

A defence statement that discloses alibi must give particulars of it, including:
(a) The name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given;
(b) Any information in the accused’s possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.

Question 69

What are the time limits for a defence statement?

Answer 69

CC:
- Defence statement is compulsory only in CC and must be served on prosecution and court (CrimPR r.15.4(2)) within 28 days of date when prosecution complies with its duty of initial disclosure (or purports to do so)
- Time limit can be extended but only if application to extend is made within time limit and only if court is satisfied that it would not be reasonable to require D to give defence statement within 28 days

Magistrates:
- Defence statement not compulsory, but if D chooses to serve one in such a case standard directions in magistrates provide that D must do so within 10 business days of prosecution complying (or purporting to comply) with initial duty of disclosure
- Worth noting that although there is no obligation to serve defence statement in magistrates, failure to do so will mean that defence will be unable to make application for specific disclosure

Question 70

What is the name of the document which is a written statement served on the prosecution and the Court, setting out the nature of the accused defence, the matters of fact on which D takes issue with the prosecution and why, any points of law D wishes to take including authority in support and the particulars of any alibi witness?

(a) 
Defendant’s proof of evidence

(b) 
Defence duty to serve material helpful to the prosecution

(c) Defence statement

(d) 
Notice of Intention to Call Defence Witnesses

Answer 70

(c) Defence statement


Question 71

When should a defendant serve a defence statement on the Crown Court and the prosecution?


(a) The defendant is under no obligation to serve a defence statement in the Crown Court

(b) 
Within 10 business days of the date when the prosecution complies with its duty of initial disclosure or purports to do so

(c) 
Within 28 days of the date when the prosecution complies with its duty of initial disclosure or purports to do so

Answer 71

(c) 
Within 28 days of the date when the prosecution complies with its duty of initial disclosure or purports to do so

This time limit can be extended but only if the application to extend is made within the time limit and only if the court is satisfied that it would not be reasonable to require the defendant to give a defence statement within 28 days.

Question 72

Which of the following is a consequence of failing to serve a defence statement in a magistrates’ court?

(a) 
The judge may draw such adverse inferences as appear proper

(b) 
The prosecution or co-defendant may comment on such a failure

(c) 
The defendant will not be able to make an application for specific disclosure

Answer 72

(c) 
The defendant will not be able to make an application for specific disclosure

Although serving a defence statement in a magistrates’ court is not compulsory, the other consequence is that the prosecution will not have the opportunity to review disclosure in light of the issues.

Question 73

What are the consequences of the defence failing to serve the defence statement?

Answer 73

s. 11 CPIA:
- Jury may draw such adverse inferences as appear proper against the defendant for such a failure although a defendant cannot be convicted solely or mainly on the basis of such an adverse inference.
- In addition, the prosecution or co-defendant may comment on such failure without the leave of the court, other than where it relates to a point of law where leave is required.
- Contains the only sanctions available to the court for failure by the defence to comply with its duties of disclosure.

s. 6E2 CPIA: Provides that judge can warn the defendant at the PTPH or other pre-trial hearing that failure to comply with the relevant provisions may lead to comment
being made or adverse inferences being drawn.

AG’s Guidelines: Provides that judge can warn the defendant at the PTPH or other pre-trial hearing that failure to comply with the relevant provisions may lead to comment
being made or adverse inferences being drawn.

Remember: In magistrates, no adverse inference can be drawn against a defendant for failing to serve a defence statement because there is no duty to do so under the CPIA

If defence statement is not served in the magistrates’ court or the CC D will not be able to make an application for specific disclosure under s.8 CPIA.

Question 74

When does the continuing duty of disclosure by the prosecution last until?


(a) Up to the close of the prosecution case at trial

(b) 
Until it has carried out a review following service of the defence statement

(c) 
Until the defendant is convicted, acquitted or the prosecutor decides not to proceed

Answer 74

(c) 
Until the defendant is convicted, acquitted or the prosecutor decides not to proceed

There is a duty on prosecutors to keep disclosure under review throughout the case and in particular when a defence statement is served.

Question 75

It has will become clear during an investigation that material which is relevant to the prosecution case may be held by a financial institution. What is the appropriate step to take to ensure production of the material if it is not forthcoming?

(a) 
The prosecution can make a public interest immunity application

(b) 
The prosecution can make an application for specific disclosure

(c) 
The prosecution can seek a summons

Answer 75

(c) 
The prosecution can seek a summons

If there is material held by third parties that might be considered capable of undermining the prosecution case or of assisting the case for the accused, then prosecutors should take appropriate steps to obtain it. Where material is requested from a third party but access or disclosure is refused, the prosecution can consider seeking a summons for production of the material.

Question 76

Which of the following is not a consequence of a failure of disclosure by the prosecution?

(a) 
Exclusion of evidence

(b) 
Conviction being quashed on appeal

(c) 
The jury may draw such adverse inferences as appear proper
(d) 
Wasted costs order

(e) 
An application to stay the indictment

Answer 76

(c) 
The jury may draw such adverse inferences as appear proper

While the potential consequences of failure to disclose by the prosecution are serious, this is not one of them. Drawing such inferences as appear proper is a consequence for the defendant regarding D’s failure to serve a defence statement in the Crown Court.

Question 77

What does the defence have to prove to bring an application for specific disclosure?

Answer 77

Procedure is governed by CrimPR r. 15.5: D must serve application on court and prosecution. Application must describe material D wants to be disclosed and explain why there is reasonable cause to believe:
(a) That prosecutor has material and
(b) That material that should be disclosed under CPIA

D should ask for hearing if one is required and explain why it is needed - prosecution has 10 business days to respond in writing to any such application

Question 78

True or false: there is a duty of disclosure on third parties (eg local authorities, health and education authorities, or financial institutions) who hold relevant disclosure.

Answer 78

False

No duty of disclosure under CPIA rests upon such TPs but, if material it might be considered capable of undermining prosecution case or assisting case for accused, then prosecutors should take reasonable steps to obtain it

In cases where it is believed that TP holds relevant info, they should be informed of investigation and request should be made for material in question to be retained in case request for disclosure is made. There must be some reason to believe that TP holds relevant material, so speculative inquiries of TPs are not required.

Where material is requested from TP but access or disclosure is refused, prosecution can consider (in CC) seeking a summons under s.2 Criminal Procedure (Attendance of Witnesses) Act 1965 for production of the material OR (in magistrates’) under the similar provisions in s.97 of the Magistrates’ Court Act 1980

Question 78

What are the consequences for failure to serve disclosure by prosecution?

Answer 78

• Defence could bring an application to stay indictment on ground that to continue the case would be abuse of process of the court.
  - It could result in a conviction being quashed on appeal due to being unsafe.
  - It would be likely to result in delay and the imposition of wasted costs for unnecessary hearings or a refusal to extend custody time limits.
  - It could also potentially result in the exclusion of evidence in the case due to unfairness

Question 79

What is public interest immunity?

Answer 79

Circumstances may arise where prosecution is under duty to disclose material to the defence (because it satisfies disclosure test under s.3 CPIA) but prosecution does not wish to disclose the material, believing that to do so would give rise to a real risk of serious prejudice to important public interest

Prosecution cannot simply hold this sensitive material back and keep quiet - required course of action under the CPIA is to apply to judge for non-disclosure in the public interest ie Public Interest Immunity (usually abbreviated to ‘PIl’) Application.

Court will consider material and may withhold disclosure of such material to minimum extent necessary to protect public interest, whilst ensuring that D can still have fail trail

Question 80

Which of the following will always take place prior to a trial in the Crown Court?

(a) 
Preliminary hearing

(b) 
Plea and trial preparation hearing

(c) 
Further hearings for further applications

Answer 80

(b) 
Plea and trial preparation hearing


Question 81

A defendant is found unfit to plead and a jury finds the defendant has committed the actus reus of the offence at trial. Which of the following sentences is not available to the judge?

(a) 
A hospital order

(b) 
Custodial sentence

(c) 
A supervision order

(d) 
An absolute discharge

Answer 81

(b) 
Custodial sentence


Question 82

When would it be inappropriate to make an application to vary or discharge a ruling made at a pre-trial hearing?

(a) 
There has been a material change in circumstances

(b) 
To make the same argument on the facts before a different judge
(c) 
Something was not brought to the attention of the court at the time of the ruling which could justify a variation or discharge

Answer 82

(b) 
To make the same argument on the facts before a different judge

An application to vary or discharge a pre-trial ruling can only be made if either: (a) there has been a material change in circumstances; or (b) something was not brought to the attention of the court when they made the ruling which could justify variation or discharge.


Question 83

What are pre-trial matters and when will they be considered?

Answer 83

= those matters that can be resolved pre-trial, as name would suggest - covers wide range of issues including selecting trial date, applying for witness summons or resolving legal arguments

Pre-trial matters will be considered either:
1. At first hearing
2. At hearing on date after first hearing and before trial date or
3. On day of trial itself before trial starts

In summary only cases in magistrates, many if not all pre-trial matters can be resolved at first hearing

There will be at least one hearing in Crown court, the PTPH, to deal with pre-trial matters

Question 84

When can you make an application to vary or discharge?

Answer 84

You cannot make application to vary or discharge based on same arguments and facts

Such application can only be made if either:
(a) There has been material change in circumstances or
(b) Smth was not brought to attention of court when they made ruling which could justify variation of discharge

Question 85

Where a defendant is sent to CC for trial, how is evidence served on the defence?

Answer 85

• Must set date for PTPH within 28 days
• Magistrates will complete sending sheet ie notice specifying offences for which D is being sent and CC where D will be tried - this notice should be send to D and CC - there is no prescribed form
• Evidence must be served:
  (a) 50 days if D is in custody or
  (b) 70 days if D is on bail
  on date on which D has been sent for trial in CC
• Evidence is uploaded on CC Digital Case System ie copies of docs containing evidence on which charge is based
• Draft indictment must be uploaded 7 days before PTPH
• Draft indictment must be served by prosecutor on CC officer not more than 20 business days after serving prosecution service

Question 86

What happens at the plea stage and what are the consequences of pleading guilty/not guilty?

Answer 86

At plea stage, indictment is put to D and they enter plea of guilty or not guilty to each count on indictment, this is known as arraignment

• If D pleads guilty to sole count on indictment/all counts on multi-count indictment: case moves to sentence
• If D pleads not guilty to sole count on indictment/all counts on multi-count indictment: court proceeds to ‘trial preparation’ of hearing
• Where D enters at least one guilty plea and at least one not guilty plea on indictment consisting of two or more counts: prosecution will need to consider how it wishes to proceed, result being either that court moves to sentence or if there is to be trial ‘trial preparation stage needs to take place

Question 87

When does arraignment occur?

Answer 87

Plea stage

Question 88

What happens if a court finds that a defendant is unfit to plead?

Answer 88

• If judge has determined that D is unfit to plead (judge can make that determination after hearing medical evidence) then no plea is taken
• Court will have to hold trial with jury to determine whether D has committed act (ie actus reus of offence, but no mens rea) and so trial preparation stage of hearing will need to take place
• Where D is found unfit to plead and jury finds D has committed actus reus of offence at trail, a custodial sentence is not available to judge
• Note that D who is found unfit to plead and jury finds they have committed act only to be made subject to:
  (a) An absolute discharge
  (b) Supervision order or
  (c) Hospital order

Question 89

What are the four stage dates that are set during trial preparation stage?

Answer 89

1. Trial date
2. Prosecution evidence
3. Expert evidence
4. Witness requirements