Pre-trial criminal litigation

Question 1

What does S4 Bail Act 1976 state?

Answer 1

S4 Bail Act 1976 states that the Court must presume that a D is entitled to bail, it is only refused if an objection is properly made out.

Question 2

Who does the right to bail not apply to?

Answer 2

-those appealing their conviction or sentence; or

-to Ds being committed for sentence from the magistrates’ to the Crown Court

Question 3

What are the ‘big three’ grounds on which the prosecution can object to bail in relation to indictable offences?

Answer 3

If the D is released on bail there are ‘substantial grounds’ for believing they would either:

a) failed to attend a subsequent hearing (FTS)

b) commit further offences on bail (CFO)

c) interfere with witnesses or otherwise obstruct the course of justice

Question 4

What are the common trio of grounds that are widely applicable for why a D need not be granted bail?

Answer 4

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

b) Court has insufficient information to deal with the issue of bail

c) the D is already serving a sentence in custody

Question 5

What factors are mandatory considerations for the main three grounds of objecting to bail?

Answer 5

a) nature and seriousness of the offence and the likely disposal

b) the character of the D, D’s previous convictions, associations and community ties

c) D’s bail record in the past

d) the strength of the evidence

Question 6

What must conditions of bail be?

Answer 6

The conditions of bail must be relevant, proportionate and enforceable and comply with Article 5 ECHR.

Question 7

What are common bail conditions?

Answer 7

-Residence at a given address
-Curfew
-Reporting to a local police station at given times
-Surety
-Security
-Restriction on where a D may go/have contact with during bail
-Electronic monitoring (tagging)
-Bail hostels
-Surrender of passport

Question 8

What happens if a D breaches their bail conditions?

Answer 8

They will be arrested under the Bail Act 1976, s7(3) and are at risk of either having the bail conditions tightened or being remanded in custody.

If a D is found in breach of a condition, the D is not actually committing an offence-there is no offence of ‘breaching a bail condition’.

Question 9

Do police officers have the power to arrest those who are in breach of a bail condition, or are about to be so?

Answer 9

Yes, under Bail Act S7 there is a power of arrest allowing officers to arrest those who are in breach, or who are about to be so.

As there is no offence of breaching bail, the D who is arrested is brought before a magistrates’ court to determine whether they should have bail going forward.

Question 10

What is the only bail breach which is a criminal offence?

Answer 10

Failing to surrender to custody without reasonable cause (‘FTS’).

This is an offence punishable summarily by up to three months imprisonment and/or an unlimited fine or 12 months and/or an unlimited fine on indictment.

Question 11

What is the general rule regarding bail attempts?

Answer 11

The general rule is that a D who is having a trial in the magistrates can have two attempts at getting bail at the magistrates and one attempt on appeal to the Crown Court.

Question 12

What happens if bail is refused in the magistrates’ court?

Answer 12

D can repeat the same application and have a second attempt at getting bail at the next hearing.

Thereafter, D has either to appeal the decision to the Crown Court or find fresh points to make (finding a surety which wasn’t available before).

Question 13

What happens if bail is refused in the Crown Court?

Answer 13

D has one attempt at bail at the first hearing (unless charged with murder) and a further application as of right in the Crown Court.

Question 14

What is the custody time limits for trial in the magistrates’ court of summary only or either-way offences?

Answer 14

56 days.

Question 15

What is the custody time limit for trial in the Crown Court of indictable only or either-way offences?

Answer 15

182 days less any days spent in custody prior to the case being sent to the Crown Court.

Question 16

Outline the process of first and onward remand in the magistrates’ court.

Answer 16

First appearance-D remanded in custody.

Second appearance-must be within 8 days of first appearance, D can make another bail application.

Onward remand-must be formally remanded into custody every 28 days until trial.

Trial-must be within 56 days of the first appearance unless prosecution successfully apply to extend.

Question 17

Where do all adults D have their first hearing?

Answer 17

Magistrates’ court.

Question 18

What happens if the D pleads guilty to a summary-only offence?

Answer 18

If the D pleads guilty, the Court will proceed to sentence. Sentence will often be passed immediately but can be adjourned.

Question 19

What happens if the D pleads not guilty to a summary-only offence?

Answer 19

The Court will set a trial date and do any necessary case management to ensure that the trial is effective on that date.

This includes completing the case progression form-‘Preparation for Effective Trial’ (PET).

Question 20

What can a D do at a plea before venue for an either-way offence?

Answer 20

-Indicate guilty

-Indicate not guilty

-Give no indication (also treated as not guilty)

Question 21

What happens if the D pleads guilty to an either-way offence?

Answer 21

The Court will treat a guilty plea as a formal plea and proceed to sentence.

Question 22

What happens if the D pleads not guilty to an either-way offence?

Answer 22

If a D indicates a not guilty plea then the Court moves on to consider where the trial will be held-known as allocation.

Question 23

What is an indication of sentence and what is it confined to?

Answer 23

The D is able to ask for an indication of sentence if they were to plead guilty instead. The Court has discretion as to whether they give an indication and it is confined to telling the D if the sentence would be custodial or non-custodial.

Question 24

What are the advantages of electing trial on indictment in the Crown Court?

Answer 24

-the acquittal rate is higher

-the separate tribunals of law and fact in the Crown Court can be advantageous to the D

-it is not always a case that a Crown Court judge will sentence more harshly than a magistrates’ court

Question 25

What are the advantages of a summary trial in the magistrates' court?

Answer 25

-less formal -waiting time before trial date is much shorter -quicker trial -less expensive -no defence statement -reasons provided for decision -lesser sentencing powers

Question 26

Outline the plea before venue procedure.

Answer 26

Before indicating plea, D is made aware they can be sentenced by the magistrates or committed to the Crown Court for sentence after trial under S14 Sentencing Act 2020. If not guilty, the Court will consider allocation. If guilty, the Court will proceed to sentence or can adjourn.

Question 27

What is the general rule regarding allocation under Magistrates Court Act 1980?

Answer 27

Either-way offences should generally be tried summarily unless insufficient sentencing powers or for reasons of unusual legal, procedural or factual complexity.

Question 28

What are the sentencing powers of the magistrates and Crown Court?

Answer 28

Magistrates has the power to impose 12 months imprisonment in respect of any summary or single either-way offence. Crown Court has unlimited sentencing and fine powers.

Question 29

What is used and unused material?

Answer 29

Used material is the material the prosecution will rely upon at trial to prove its case against a D. It is from these materials that Ds will know what the cases against them are. Unused material is material not being relied upon by the prosecution.

Question 30

What are the four stages of disclosure?

Answer 30

1. The investigative stage 2. The initial duty of disclosure on the prosecution 3. Defence disclosure 4. The continuing duty on the prosecution to keep disclosure under review

Question 31

When does the duty to retain material last?

Answer 31

The duty to retain material lasts at least until a decision is taken whether to institute proceedings against a suspect for a criminal offence.

Question 32

Where proceedings are commenced, how long must material be retained for?

Answer 32

Once proceedings are commenced, all material must be retained until the accused is acquitted or convicted, or the prosecutor decides not to continue with the case.

Question 33

Where the D is convicted, how long must material be retained for?

Answer 33

Where the D is convicted, the material must be retained at least until the D is released from custody or in any other case, until 6 months from the date of conviction.

Question 34

What is the initial duty of disclosure on the prosecution?

Answer 34

The prosecutor must: (a) disclose to the 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, (b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).

Question 35

What is the time limit for initial prosecution disclosure?

Answer 35

The prosecution will serve initial details of the prosecution case no later than the beginning of the day of the first hearing in accordance with CrimPR Part 8.

Question 36

What is a defence statement?

Answer 36

A defence statement is a written statement which sets out the nature of the accused’s defence with reasonable clarity and set out: -the nature of the accused’s defence (alibi) -those matters of fact on which D takes issue with the prosecution -why D takes issue -any points of law D wishes to take including authority in support -particulars of alibi witness

Question 37

When must a D serve a defence statement by in the magistrates' and Crown Court?

Answer 37

Magistrates' court-not compulsory but if so, 10 business days of the prosecution complies with the initial duty of disclosure Crown Court-28 days of the date when the prosecution complies with its duty of initial disclosure.

Question 38

When must a D serve a defence statement by in the magistrates' court?

Answer 38

A defence statement is not compulsory in the magistrates’ court but if the D chooses to do so, the D must do so within 10 business days of the prosecution complying with the initial duty of disclosure.

Question 39

What are the consequences of a D failing to serve a defence statement in time/deficient defence statement?

Answer 39

S11 CPIA-the jury may draw such adverse inferences as appear proper against the D for such a failure although a D cannot be convicted solely or mainly on the basis of such an adverse inference.

Question 40

What is the continuing duty on the prosecution to keep disclosure under review?

Answer 40

S7A(2) CPIA 1996 provides that there is a duty on prosecutors to keep disclosure under review throughout the case and in particular when a defence statement is served. This continuing duty means the prosecutor must keep under review whether there is any material that should be disclosed, even after it has carried out a review following service of the defence statement.

Question 41

When can a D make an application for specific disclosure?

Answer 41

Under S8 CPIA the defence can make an application to the Court where it has reasonable cause to believe that there is prosecution material which should have disclosed. In order to make an application for specific disclosure, the D must have served a defence statement and the prosecution must have either provided further disclosure in light of that Defence Statement or notified the D there is further disclosure to make (s7A(5) CPIA).

Question 42

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

Answer 42

10 business days.

Question 43

What are the standard directions when the magistrates' court sends the case for trial to the Crown Court?

Answer 43

-It must set a date for a PTPH within 28 days -The magistrates’ court will complete a sending sheet -Evidence must be served within: -50 days (if the D is in custody) -70 days (if the D is on bail) of the date on which the D has been sent for trial in the Crown Court. -Evidence is uploaded on to the Crown Court Digital Case System -Draft indictment must be served by the prosecutor on the Crown Court officer not more than 20 business days after serving prosecution evidence

Question 44

What is a plea and trial preparation hearing (PTPH)?

Answer 44

The PTPH (plea and trial preparation hearing) is the main, and often only, pre-trial Crown Court hearing. Where a trial is anticipated, the parties are required to fill in a PTPH form in advance of the hearing as the judge uses it when the hearing is conducted.

Question 45

What are the 4 stage dates that are given at a PTPH?

Answer 45

Trial date Prosecution evidence Expert evidence Witness requirements

Question 46

When can a change of plea place?

Answer 46

To guilty: can take place at any time before the jury return their verdict. To not guilty: can take place at any time before the D is sentenced. D must apply to the Court for leave if changing from guilty to not guilty.