Case Management and Pre-Trial Hearings

Question 1

What is the overriding objective of the criminal courts? What is another key duty?

Answer 1

Overriding objective of criminal courts is to deal with cases justly

The duty of the court is to acquit the innocent and convict the guilty

• If one side fails to comply with an obligation, they must notify the other side and court of this

Question 2

What are the Criminal Procedure Rules?

Answer 2

They are a formal set of case management directions with which the parties must comply

Question 3

In the MC, what is a case management hearing?

Answer 3

If D is going to have a trial in the MC (not guilty + summary or no guilty + either way + agreed to MC trial), then the MC will fix a trial date and give directions to both sides that they must follow pre-trial.

Where these case management directions are given, is called a case management hearing/pre-trial review

• They will likely be given at the same hearing where D pleads not guilty or after plea before venue/allocation hearing

CMDs are standard, but can be varied

• 8 weeks to prepare case for trial (14 where expert evidence needed)
• Standard form to record directions is called MC Trial Preparation Form

Question 4

What are two key things to inform a defendant which also go on the Trial Preparation Form?

Answer 4

Always advise clients that their sentence will be reduced if they plead guilty at the first hearing and that the case can proceed in their absence

Question 5

How can the attendance of a witness at trial be assured?

Answer 5

Can secure witness’ attendance by obtaining a witness summons from MC

Court will issue one if satisfied that W can give material evidence in the proceedings + in the interests of justice for a summons to be issued

• Ask potential D witness to confirm in writing; if negative response, D’s solicitor writes to court for witness summons

Question 6

What are the defence’s obligations in terms of informing others about their intended witnesses?

Answer 6

D must serve on CPS a notice, setting out names, addresses and DOBs of any Ws they intend to call to give evidence

• Relevant to MC + CC and exists in addition to the obligation to serve a defence statement for CC
• CPS and police could interview these witnesses too
• Time limit is 28 days from the date when prosecutor complies or purports to comply with their initial duties of disclosure
• Failure to comply could result in inference provisions of the Criminal Procedure and Investigations Act (CPIA) applying

No requirement to serve D’s witness statements on CPS, except for reports from expert witnesses whom they wish to call to give evidence

Question 7

What are the relevant pre-trial obligations in relevant to expert evidence?

Answer 7

EE should be obtained ASAP, but if funded by representation order, D’s solicitor should get prior authority from LAA to instruct the expert

Copy of expert’s report must be served on CPS in advance of trial

Question 8

When might a witness not need to attend trial?

Answer 8

Where evidence is not in dispute, calling the witness to give evidence is unnecessary, so a witness statement from them will be admissible instead, if:

• It is signed and dated
• It contains a declaration similar to a statement of truth
• A copy of the WS has been served before the hearing on the other parties
• None of the other parties have objected within 7 days

Statement can only contain matters which would have been admissible if W had given oral evidence

This may also apply if the witness is afraid to appear and special measures cannot assist

Question 9

Who must verify documentary evidence?

Answer 9

Plans/photographs etc should be verified by witness statement from the person who prepared the plan/took the photos

Question 10

What is CPS’ ‘unused material?’

Answer 10

For summary and either-way offences, any evidence which the CPS will rely on is supplied to D’s solicitor as part of the initial details of the prosecution case (IDPC)

Any remaining material which CPS has, but doesn’t wish to rely on is ‘unused material’

• Common example is a witness statement from someone who P thinks can assist them, but cannot

Question 11

What is Transforming Summary Justice?

Answer 11

MC will also expect the TSJ characteristics to be followed by all practitioners in the MC

• These include early engagement between parties and robust case progression towards trial and ongoing indication of witness requirements

Question 12

In the MC, there is a case management hearing. What is the equivalent in the CC?

Answer 12

Plea and trial preparation hearing

Question 13

When will offences triable only on indictment or offences connected with them, be sent to the CC?

Answer 13

Adult before MC charged with a triable only on indictment offence must be sent to CC for trial

They will also be sent if:

• There is an either-way or summary offence which is related to the indictment only offence; and
• In the case of a summary only offence, it is punishable by imprisonment or involves disqualification from driving

Example – A charged with robbery and common assault for the same incident

• Robbery – must be sent to CC for trial
• Common assault – related to robbery and punishable by imprisonment, so meets the conditions

Question 14

What is the purpose of the sending hearing in the MC?

Answer 14

The sending hearing in the MC determines if an offence triable only on indictment is charged and whether there are related offences which should also be sent to CC

If sent to CC, MC will set a date for the plea and trial preparation hearing (PTPH) and make a bail decision

• They may set a date for a preliminary hearing in the CC if necessary
• Unless a preliminary hearing in CC is going to happen, MC give standard CMDs to follow pre PTPH

D will get a notice of the offences they’ve been charged with – copy sent to relevant CC too

Question 15

When will an either way offence or summary offences linked with them, be sent to the CC?

Answer 15

1) D sent to CC if MC declines jurisdiction or D elects CC trial

2) If D also charged with a summary only offence which is common assault, taking a conveyance without consent, driving whilst disqualified or criminal damage, D may be tried for these offences at CC, if:

• The offence is founded on the same facts as the either-way offence, or
• is part of a series of offences of the same or a similar character

3) In addition, if D sent to trial for 1 or more EW offences, they can be sent for trial in relation to any summary-only offence if:

• (a) It is punishable by imprisonment or disqualification from driving; and
• (b) It is related to the either-way offence
• If D is acquitted of the summary only or pleads not guilty to it, this must be remitted back to MC for trial

Question 16

As mentioned previously, the sending hearing at MC will either set a date for the PTPH or for a preliminary hearing

When may a preliminary hearing be needed?

Answer 16

When an offence triable only on indictment is sent for trial, a preliminary hearing may take place at CC – necessary directions will be given by hearing judge

May occur if:

• CM issues which CC needs to resolve
• Trial is likely to exceed 4 weeks
• Desirable to set an early trial date
• D is under 18; or
• There is likely to be a guilty plea, and D could be sentenced at preliminary hearing

PH must take place within 10 business days of the date on which MC send case to CC

Question 17

When will the PTPH in the CC occur?

Answer 17

If no PH required, first hearing in CC will be the pre-trial preparation hearing (PTPH)

The PTPH enables D to enter their plea and, if pleading not guilty, it allows judge to give further CMDs pre-trial

PTPH should take place within 20 business days after sending (if no preliminary hearing)

Question 18

What is the ‘arraignment’ at the start of the PTPH?

Answer 18

At start of PTPH, D is arraigned. This means they plead guilty or not guilty to the counts on the indictment

1) If guilty to some and not others, jury won’t be told about guilty pleas

2) D may agree with CPS to plead guilty on some counts if CPS won’t proceed with others – CPS will present no evidence and not guilty verdict entered on those counts

• They could also ask that a count ‘lie on the court file,’ meaning they could re-open the case with leave of court later instead of a not guilty verdict on those counts

3) If CPS believe there is no longer a reasonable prospect of securing a conviction, they won’t offer evidence at arraignment either and D will be discharged

Question 19

How are guilty pleas dealt with at the PTPH?

Answer 19

Judge will sentence immediately or adjourn sentence for preparation of pre-sentence reports or adjourn for Newton hearing

• A Newton hearing happens when D pleads guilty but disputes specific factual allegations made by prosecution witnesses, so the Newton hearing determines the factual basis on which D is sentenced

If adjourned, bail decision made

Question 20

Can an indication of sentence be given at the PTPH by the judge?

Answer 20

Judge can give D an indication of likely sentence if they were to enter a guilty plea at that stage, if D specifically asks for an indication of sentence

• If given and D enters a guilty plea, the indication is binding

Question 21

When a not guilty plea is entered, the judge will need to decide what further directions to give, over and above those that the MC imposed up until the PTPH.

What information will the judge need from both sides to decide on further CMDs?

Answer 21

• Summary of issues
• Number of Ws giving oral evidence and estimated trial length
• Whether a defence statement has been served and issues of its adequacy
• Whether P serving any additional evidence
• Disputes as to adequacy of disclosure of unused material by P
• Whether any expert evidence is to be called
• Further directions necessary re hearsay or bad character evidence
• Special measures for witnesses
• Facts which can be formally admitted
• Points of law or issues re admissibility of evidence
• Dates of availability of Ws and advocates to attend trial

Question 22

How will the case be listed for trial at the PTPH?

Answer 22

After giving further CMDs, judge will fix a trial date or place case in warned list, meaning it has not been given a fixed date yet, but is awaiting trial

• CC will contact D’s solicitor to let them know case has been listed for trial shortly before the date when the trial is due to start

At end of PTPH, bail decision made

Question 23

Can the defendant change their plea to guilty following the PTPH?

Answer 23

Yes, D may change their plea to guilty at any time before jury returns their verdict, at the judge’s discretion

Question 24

As mentioned previously, CPS’ ‘unused material’ is evidence which they don’t wish to rely on.

How does the prosecution’s initial duty of disclosure work and how does it relate to unused material?

Answer 24

In both MC + CC, CPS is required to serve on D all evidence on which they wish to rely at trial

If D enters a ‘not-guilty’ plea, CPS must disclose any ‘unused material,’ if it ‘might reasonably be considered capable of undermining the case for the prosecution… or of assisting the case for the accused.’

May include:

• Information providing an innocent explanation for the offence
• Material casting doubt on reliability of a witness or confession
• WSs supporting D’s account

CMDs will impose a time limit for this to be done, but the duty of disclosure on the CPS is ongoing

D can request ‘missing’ items when drafting the defence statement or apply to court for specific disclosure

Question 25

When can unused material be withheld from disclosure?

Answer 25

CPS may withhold certain unused material, that meets the test, **only if it is protected by public interest immunity** * Court decides if disclosure can be avoided on those grounds, so **CPS must apply for a finding that it doesn’t have to disclose** (usually without notice to D) * Defence statement usually asks if CPS has prepared a schedule of sensitive material and if they have applied to court to stop disclosure CPS may not want to disclose material relating to: * National security, undercover police, techniques and methods used by police and child witnesses

Question 26

After the CPS has performed their initial duty of disclosure, the onus shifts to D. What is D's disclosure obligation?

Answer 26

1) In **MC**, D ***can*** serve a defence statement **within 10 business days of CPS disclosure**, on CPS + copy to court * Rare, because it gives CPS extra details prior to trial 2) In **CC**, D ***must*** serve a defence statement **within 20 business days of CPS disclosure**, on CPS + copy to court * If they don’t, court can draw an adverse inference * If there are two or more co-accused, court can make an order that a copy of each D’s defence statement be served on the other Ds

Question 27

What will need to be included in a defence statement?

Answer 27

Must be a written statement, which: * Sets out nature of defence, including particular defences, like alibi or self-defence * Indicates matters of fact on which D takes issue and why * Sets out matters of fact on which D intends to rely for their defence * Indicates points of law and legal authorities on which they will rely * For alibi, name, address and DOB of alibi witness - **No defence witness details are needed in a non-alibi case** Continuing duty to update statement if any details change

Question 28

Does the defendant themselves need to see the defence statement?

Answer 28

Defence statements are **deemed to be given with authority of D unless contrary proven**, so **D should see and approve a copy** before service * D’s solicitor usually signs the original statement and D often signs a copy, kept on file

Question 29

When can an adverse inference be drawn in relation to the defence statement?

Answer 29

If there are any ‘**faults**’ in D’s disclosure, court or jury may draw an adverse inference when determining D’s guilt Faults include: * No defence statement at all * Late service * Incomplete defence statement * Inconsistent defence statement compared with defence at trial * Failing to update the defence statement Additionally, if any faults occur, the court or, with leave, other parties, can make such comments as appear appropriate

Question 30

After the defence statement has been received by CPS, what further disclosure obligations lie on the **prosecution**?

Answer 30

1) After CPS receives the defence statement, they **must check if they have any further unused material** which might now be deemed capable of undermining the case for the prosecution or assisting D’s case * Particularly relevant if CPS have no idea what the defence case is before the defence statement is received 2) D can apply to court for an order that CPS should disclose material, if D has reasonable cause to believe that there is material which should have been disclosed but wasn’t * Can only apply if they have set out the material in detail in their defence statement, which is then not subsequently disclosed

Question 31

Summary of key relevant time limits in this area

Answer 31

MC - case management hearing first, then the shared deadlines CC - sending hearing first, then: 1a) **Preliminary hearing (if necessary) must take place within 10 business days after sending** 1b) Otherwise, PTPH should take place **within 20 business days after sending** 2) CMDs will impose a time limit for CPS initial duty of disclosure 3a) In **MC**, D ***can*** serve a defence statement **within 10 business days of CPS disclosure**, on CPS + copy to court 3b) In **CC**, D ***must*** serve a defence statement **within 20 business days of CPS disclosure**, on CPS + copy to court 4) For MC + CC, D **must serve on CPS a notice, setting out names, addresses and DOBs** of any Ws they intend to call to give evidence within **28 days** of CPS disclosure