2): The Law, Procedure and Processes Involved in Pre-Trial Considerations

Question 1

What is bail?

Answer 1

Release from custody until next court date, subject to security or conditions.

Question 2

What are the two types of bail?

Answer 2

Unconditional Bail: attend court at a future date; warrant issued if they fail to attend.

Conditional Bail: attend court with conditions attached (see separate rules later).

Question 3

What creates the general right to bail?

Answer 3

Bail Act 1976 (BA 1976), subject to refusal grounds in Schedule 1.

Question 4

What must happen within 24 hours of arrest (s.7(3), BA 1976)?

Answer 4

Defendant must be brought before a magistrates’ court or district judge.

Question 5

When does the general right to bail apply?

Answer 5

Before conviction (first appearance for an offence or bail applications).

After conviction (for adjournments for reports).

After breach of community orders, reparation orders, or youth rehabilitation orders.

Question 6

When is there no right to bail?

Answer 6

No right to bail if:

1. Awaiting sentence at Crown Court.

Appealing conviction/sentence at Crown Court.

2. Charged/convicted of serious offences (e.g., murder, rape, serious sexual offences) and:

Prior conviction for similar serious offences.

Bail may only be granted if no significant risk of serious harm to others.

Question 7

Grounds for refusal of bail for indictable and either-way imprisonable offences:

Answer 7

Risk of failing to surrender.

Risk of committing further offences.

Risk of interference with witnesses or obstruction of justice.

Question 8

Grounds for refusal of bail for summary-only imprisonable offences:

Answer 8

Failure to surrender.

Risk of further offences, especially causing harm/fear.

Defendant’s protection.

Already serving custody.

Arrest for absconding or breaching bail.

Lack of sufficient information to determine bail.

Question 9

Grounds for refusal of bail for non-imprisonable offences:

Answer 9

Breach of previous bail conditions (likely failure to surrender).

Need to protect own welfare (if under 18).

Already serving a custodial sentence.

they have been arrested for absconding/breaching bail and likely to fail to surrender/ commit an offence or interfere with witnesses/ obstruct justice

Question 10

What statutory factors must courts consider when refusing bail (Part 1, Sch 1, BA 1976)?

Answer 10

Nature and seriousness of the offence.

Character of the defendant.
Antecedents (criminal history).
Associations.

Community ties.

Record of previous bail compliance.

Strength of evidence against the defendant.

Question 11

When do statutory exceptions to the right to bail apply?

Answer 11

Only if:

Defendant is 18 or older.

Defendant has previous convictions.

Court believes there is a real prospect of a custodial sentence.

Question 12

What is the starting point for conditional bail?

Answer 12

Presumption of unconditional bail unless grounds exist to impose conditions (s.4 BA 1976).

Question 13

When can bail conditions be imposed?

Answer 13

Necessary to:

Ensure court attendance.

Prevent offending.

Prevent interference with justice.

Protect defendant.

Assist with enquiries/reports.

Ensure attendance at legal meetings.

Question 14

What does “necessary” mean for bail conditions?

Answer 14

Must address a real risk (not fanciful) of absconding, reoffending, or interfering.

Question 15

What are common bail risks and conditions?

Answer 15

absconding: residence, police reporting, surety, deposit, passport surrender

further offences: curfew

witness interference: non-contact orders, area restrictions

Question 16

What does the Justices’ Clerk provide?

Answer 16

Case history and prior bail decisions.

Question 17

What does the prosecution provide?

Answer 17

Current allegation, previous convictions, drug test results, bail representations.

Question 18

What does the defence provide?

Answer 18

Version of events, defendant’s personal circumstances, bail proposals.

Question 19

Is formal evidence needed at a bail hearing?

Answer 19

No — submissions only, no witnesses required.

Question 20

What must the court consider during a bail application?

Answer 20

Whether the right to bail applies.

If offence is indictable, either-way, or summary imprisonable — whether real prospect of custodial sentence.

Whether any statutory exceptions to bail apply.

Question 21

What must the court do if bail is refused or conditions imposed?

Answer 21

Must give reasons and record them (s.5, BA 1976).

Must serve the defendant with a certificate of full argument if bail refused.

Question 22

When can a defendant make further bail applications?

Answer 22

After the first refusal, a full re-application allowed at next hearing.

Subsequent applications only if raising new legal or factual arguments (no repeated old arguments).

Question 23

How can a defendant appeal a bail refusal?

Answer 23

Appeal to a Crown Court judge in chambers.

Complete rehearing based on the certificate of full argument.

Defendant must give 24 hours’ notice to CPS.

Usually heard within 48 hours of refusal.

Question 24

Can the prosecution appeal grant of bail?

Answer 24

Yes — prosecution can appeal to a Crown Court judge if bail is granted for an imprisonable offence.

Question 25

What can the Crown Court judge decide on appeal?

Answer 25

Refuse bail (remain in custody), or Grant unconditional bail or conditional bail.

Question 26

What is the duty of a defendant granted bail?

Answer 26

Must surrender to custody at time/place directed by court.

Question 27

What are the penalties for absconding (failure to surrender)?

Answer 27

Magistrates' Court: Fine up to £5,000 + up to 3 months custody. Crown Court: Unlimited fine + up to 1 year custody.

Question 28

Is breach of bail conditions a criminal offence?

Answer 28

No, but police can arrest if: Risk of failing to surrender. Breach or likely breach of bail conditions.

Question 29

What happens after arrest for breach of bail?

Answer 29

Defendant must be brought before a Magistrates' Court within 24 hours to decide on custody or re-granting bail.

Question 30

How are offences classified for court proceedings?

Answer 30

Summary only: Minor offences, Magistrates’ Court only. Either way: Can be heard in Magistrates’ or Crown Court (depends on seriousness). Indictable only: Serious offences, Crown Court only.

Question 31

How is the classification of offences determined?

Answer 31

By statutory lists

Question 32

What two tests must be satisfied for legal aid?

Answer 32

Interests of Justice Test : Risk of loss of liberty, livelihood, serious damage to reputation. Substantial law issue. Defendant can't understand proceedings. Case involves tracing/interviewing witnesses. Cross-examination needed. Representation needed for another person's interest. Means Test: Assesses income, assets, and outgoings. Automatic pass if under 18 or on qualifying benefits.

Question 33

What must the prosecution serve before the hearing?

Answer 33

Initial Details of the Prosecution Case (IDPC) for summary and either-way offences, including: Summary of offence + defendant’s interview. Defendant’s criminal record. Witness statements, exhibits (e.g., CCTV). Victim impact statement (if available). Medical or expert reports.

Question 34

When must IDPC be served?

Answer 34

By the day of the first hearing on the court and the defendant.

Question 35

Is IDPC required for indictable-only offences?

Answer 35

No — case sent to Crown Court without full evidence disclosure at first hearing.

Question 36

What are the defence solicitor’s main tasks?

Answer 36

Review the IDPC and evidence strength. Interview client and review defence evidence. Advise client on plea and venue (early guilty plea advice). Advise client about bail applications. Apply for a representation order if necessary.

Question 37

What are the plea options for a defendant?

Answer 37

Guilty. Not guilty.

Question 38

Plea: What happens if the offence is summary-only?

Answer 38

Guilty plea: Magistrate sentences immediately or adjourns for pre-sentence reports. Not guilty plea: Adjourn and set date for trial.

Question 39

Plea: What happens if the offence is indictable-only?

Answer 39

Defendant must be sent to Crown Court. Guilty plea: Arrangements made for early Crown Court sentencing. Not guilty plea: Arrangements made for Crown Court case management.

Question 40

Plea: What happens if the offence is either-way?

Answer 40

Magistrates decide venue (Allocation Hearing / Mode of Trial decision): Guilty plea: If Magistrates’ sentencing powers are sufficient → sentence. If not sufficient → committed to Crown Court for sentencing. Not guilty plea: Venue determined after assessing seriousness, complexity, and defendant factors (see s.19-20, s.22A MCA 1980).

Question 41

Either-way offences: What are Crown Court advantages for defendants?

Answer 41

Greater chance of acquittal (jury trial). Better challenge to prosecution evidence. More time to prepare case. Trial by jury.

Question 42

What are Magistrates’ Court advantages for defendants?

Answer 42

Limited sentencing powers. Faster, less formal proceedings. Lower defence costs (if privately funded). No requirement to serve a defence statement.

Question 43

What happens at an Allocation Hearing for either-way offences?

Answer 43

Court first checks if they have sufficient sentencing powers. If not → case sent to Crown Court.

Question 44

If Magistrates have sufficient powers, what happens?

Answer 44

Prosecution outlines facts and defendant’s criminal history. Court considers: Adequacy of Magistrates’ powers. Representations by parties. Sentencing Council allocation guidelines.

Question 45

How is trial venue decided based on plea at Allocation Hearing?

Answer 45

If Guilty: Magistrates sentence if powers sufficient. Otherwise, commit to Crown Court for sentencing. If Not Guilty: Defendant asked if they consent to summary trial. Yes: tried summarily. No: sent to Crown Court.

Question 46

Can a defendant ask for an indication of sentence?

Answer 46

Yes — they can request whether a custodial or non-custodial sentence would follow a guilty plea. Indication not binding if defendant continues to plead not guilty.

Question 47

When is an either-way case sent straight to Crown Court without Allocation Hearing?

Answer 47

Serious or complex fraud. Child witness cases. Offences linked to indictable-only offences. Jointly charged defendants with related indictable offences.

Question 48

What does s.51 allow regarding summary-only offences?

Answer 48

Magistrates may send related summary offences with the either-way/indictable offences to Crown Court for sentencing. Only applies if they arise from the same circumstances.

Question 49

What are the aims of the Criminal Procedure Rules?

Answer 49

Ensure efficient case management. Expedite cases. Protect rights of all parties.

Question 50

When are Magistrates' Court Case Management Directions given?

Answer 50

At the hearing when the defendant enters a not guilty plea.

Question 51

What are the key standard time limits for trial preparation?

Answer 51

Written admissions: within 14 days. Defence statement: within 14 days of prosecution disclosure. Defence witnesses: within 14 days. Application for disclosure: ASAP after prosecution disclosure. Written statements: 14 days before trial. Expert evidence: within 28 days (expert report). Hearsay evidence notice: within 28 days. Bad character evidence notice: within 28 days. Previous sexual behaviour evidence notice: within 28 days. Point of law: skeleton argument 14 days before trial. Trial readiness certificate: 14 days before trial.

Question 52

What happens at the PTPH?

Answer 52

Must take place within 28 days of sending case to Crown Court. Defendant enters plea. Guilty plea: sentencing same day or adjourn for pre-sentence report. Not guilty plea: case management directions given to prepare for trial.

Question 53

What is the prosecution’s duty of disclosure?

Answer 53

Serve material intended to be relied upon. Provide a sensitive material schedule if needed. Serve IDPC before first hearing.

Question 54

What is the defence’s duty of disclosure?

Answer 54

Serve a defence statement (only if Crown Court trial). Late/incomplete/inconsistent defence statement → Crown Court may draw adverse inference.

Question 55

What is 'unused material' and what must the prosecution do?

Answer 55

Material that meets disclosure test but not intended for use. Must be disclosed if it: Undermines prosecution case, or Assists defence case (unless withheld for public interest immunity).

Question 56

What is the legal burden of proof and who carries it?

Answer 56

Prosecution must prove guilt beyond reasonable doubt (incl. disproving defences like self-defence).

Question 57

What is the evidential burden of proof and who may carry it?

Answer 57

Requires producing enough evidence to raise an issue (e.g. self-defence). Burden may lie on either party depending on the issue raised.

Question 58

What are the two legal standards of proof?

Answer 58

Criminal: Beyond reasonable doubt (prosecution). Civil: Balance of probabilities (more likely than not).

Question 59

When can visual ID evidence be excluded under Code D (PACE)?

Answer 59

If there's a significant breach of ID procedure AND it causes prejudice to the defendant.

Question 60

What are the Turnbull Guidelines?

Answer 60

Apply when ID is key and disputed. Judge must consider circumstances (e.g. how long the witness observed the suspect). If ID is weak (e.g. fleeting glance), judge may withdraw case from jury. Breach may be grounds for appeal if conviction based on disputed ID.

Question 61

What are the key adverse inferences from silence?

Answer 61

s.34: Fails to mention something when questioned that is later relied on. s.35: Fails to testify at trial. s.36: Fails to explain presence of object, mark, or substance. s.37: Fails to explain presence at crime scene/time. s.38(3): Cannot be convicted solely on inferences from silence.

Question 62

What is hearsay under the Criminal Justice Act 2003?

Answer 62

A statement not made in oral evidence that’s used as evidence of the matter stated (s.114(1)).

Question 63

When is hearsay admissible under the CJA 2003?

Answer 63

Absent witness: Dead, unfit, abroad, cannot be found, or in fear (s.116). Business documents: Routine records admissible (s.117). Common law exceptions (preserved): e.g. res gestae — spontaneous utterances under emotional stress. (s 118) agreement between all parties that hearsay evidence should be admitted (s 114(1)(c)) where it is in the interests of justice to admit evidence (s 114(1)(d))

Question 64

What is the legal definition of a confession under s.82 PACE 1984?

Answer 64

Any statement (wholly or partly) adverse to the person who made it. Applies whether made to a person in authority or not, and whether written, oral, or otherwise.

Question 65

What are examples of a confession?

Answer 65

Statements in a police interview. Statements made outside interview in presence/hearing of police. Statements during regulatory/civil investigations. Statements made to third parties.

Question 66

When is a confession admissible under s.76 PACE 1984?

Answer 66

If relevant to any matter in issue. If not excluded under s.76.

Question 67

On what grounds must the court exclude a confession under s.76(2)?

Answer 67

If obtained by oppression (e.g. torture, degrading treatment, threats of violence). If circumstances likely made the confession unreliable.

Question 68

What are examples of circumstances that make a confession unreliable?

Answer 68

Inducement (e.g. promise of bail). Hostile/aggressive questioning. Inaccurate record of what was said. No caution given. No appropriate adult present (when required). Breach of Codes of Practice (PACE). Inadequate support from defence solicitor/adult.

Question 69

What does s.78 PACE allow the court to do?

Answer 69

Exclude confession if admission would have an adverse effect on fairness of proceedings.

Question 70

When might s.78 PACE apply?

Answer 70

Where D admits confession but says police breached PACE. Where D denies confession and says police acted unfairly or outside station (e.g. Code C breach).

Question 71

What is the definition of bad character under s.98 CJA 2003?

Answer 71

Evidence of, or a disposition toward, misconduct or other behaviour excluding: Evidence relating to the current charge Misconduct in the investigation/prosecution of the offence

Question 72

What does 'misconduct' mean in this context (s.112 CJA 2003)?

Answer 72

Commission of an offence or other reprehensible conduct

Question 73

When is bad character evidence admissible?

Answer 73

If one of the seven gateways under s.101(1)(a)-(g), CJA 2003, is satisfied

Question 74

What are the seven gateways for admitting bad character evidence?

Answer 74

(a) All parties agree (b) Adduced by defendant or in response to cross-exam (c) Important explanatory evidence (d) Relevant to important matter in issue between D and prosecution (e) Substantial probative value in co-defendant issue (f) To correct false impression given by D (g) D has attacked another's character

Question 75

Can the court exclude bad character evidence even if a gateway applies?

Answer 75

Yes. Under s.101(3), court may exclude if admission would have an adverse effect on fairness

Question 76

What are the notice requirements for prosecution (Criminal Procedure Rules)?

Answer 76

Magistrates’ Court: within 20 business days of D pleading not guilty Crown Court: within 10 business days of D pleading not guilty

Question 77

When must a co-defendant give notice of bad character evidence?

Answer 77

As soon as reasonably practicable And in any event, within 10 business days of prosecution disclosure

Question 78

What must a party include if objecting to bad character evidence?

Answer 78

Explain: Any disputed facts Why evidence is inadmissible or unfair Any other objections

Question 79

How does a defendant introduce their own bad character evidence?

Answer 79

Give notice orally or in writing As soon as reasonably practicable Before the evidence is introduced (either by D or in reply to cross-exam of another witness)

Question 80

What does s.78 PACE 1984 allow?

Answer 80

It allows courts to exclude prosecution evidence if its admission would have an adverse effect on the fairness of proceedings.

Question 81

What must the court consider under s.78?

Answer 81

All circumstances, including how the evidence was obtained.

Question 82

Is there a legal definition of "fairness"?

Answer 82

No. It broadly refers to proceedings free from injustice or unfair prejudice.

Question 83

Does procedural impropriety automatically make evidence inadmissible?

Answer 83

No, not on its own.

Question 84

When is non-defendant bad character evidence admissible?

Answer 84

Only if one of the three gateways under s.100(1) CJA 2003 is met: (a) Important explanatory evidence (b) Substantial probative value on an issue of importance (c) All parties agree to its admissibility

Question 85

What happens in the prosecution opening speech?

Answer 85

Prosecution sets out the facts, law, and witnesses.

Question 86

What is the sequence in the prosecution case?

Answer 86

Witnesses are examined in chief, cross-examined, then may be re-examined.

Question 87

What is Voir Dire?

Answer 87

A trial within a trial, held in the absence of the jury to decide admissibility issues.

Question 88

When can a submission of no case be made?

Answer 88

At the close of the prosecution case. if successful, trial ends immediately

Question 89

What happens if the no-case submission fails?

Answer 89

Defence presents its case and calls witnesses.

Question 90

Who gives closing speeches and in what order?

Answer 90

Both sides present them; prosecution speaks first.

Question 91

What is the purpose of the defence closing speech?

Answer 91

Summarise the defence's case Highlight weaknesses in the prosecution's evidence

Question 92

What is the judge's role when summing up?

Answer 92

Review facts for the jury Summarise arguments from both sides

Question 93

What are the rules on jury deliberation and verdict?

Answer 93

Deliberations must be private Aim for a unanimous verdict Majority verdict (11:1 or 10:2) accepted if unanimity not reached after 2 hours 10 mins Verdict must be beyond reasonable doubt

Question 94

What happens after a verdict is reached?

Answer 94

Not guilty: defendant free to leave Guilty: sentencing may follow or be adjourned for reports

Question 95

How does summary trial differ from Crown Court?

Answer 95

No jury No prosecution closing speech Magistrates retire to give verdict

Question 96

What is the difference between leading and non-leading questions?

Answer 96

Leading: suggests the answer (used in cross-exam) Non-leading: open-ended, does not suggest an answer (used in examination-in-chief)

Question 97

When can leading questions be used?

Answer 97

Only in cross-examination Not allowed in examination-in-chief or re-examination

Question 98

Who is competent to give evidence in criminal proceedings?

Answer 98

Under s.53(1), all persons are competent regardless of age. Under s.53(3), a person is not competent if they cannot: Understand questions; or Give comprehensible answers. Typically applies to children or those with mental disabilities.

Question 99

What makes a witness compellable?

Answer 99

If they can lawfully be required to give evidence. If unwilling, a witness summons can compel attendance.

Question 100

Who is not compellable?

Answer 100

A defendant in their own defence. A defendant for their co-defendant. A spouse/civil partner of the accused unless the offence is “specified” under s.80(3) PACE 1984.

Question 101

What are special measures?

Answer 101

Protections to help vulnerable or intimidated witnesses give evidence in court.

Question 102

Who can apply for special measures?

Answer 102

Children under 18 Persons with physical or mental impairments Witnesses whose evidence is likely to be affected by fear/distress Complainants in sexual offence cases Witnesses to serious gun/knife crimes

Question 103

What special measures may be used for witnesses?

Answer 103

Screening from defendant Evidence via live link Private testimony Video recording of evidence-in-chief Video recording of cross-examination and re-examination Use of intermediary (e.g. interpreter) Aids to communication

Question 104

What special measure is available to a defendant?

Answer 104

Giving evidence via live link

Question 105

What are a solicitor’s duties to the court under the SRA Code of Conduct?

Answer 105

Principle 1: Uphold the rule of law and proper administration of justice Standard 1.4: Do not mislead the court Standard 6.3: Maintain client confidentiality

Question 106

What is the ‘overriding objective’ of the Criminal Procedure Rules?

Answer 106

To deal with cases justly and at proportionate cost by: Ensuring parties are on equal footing Enabling parties to give best evidence Saving expense Handling cases proportionately (money, complexity, importance, finances) Ensuring cases are dealt with fairly and promptly Allocating appropriate court resources Enforcing compliance with rules and directions