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Criminal Law and Practice > Pre-trial criminal litigation III (pre-trial matters) > Flashcards

Pre-trial criminal litigation III (pre-trial matters) Flashcards

1
Q

What are pre-trial matters?

A

All matters that can be resolved pre-trial e.g. selecting trial date, applying for witness summons, resolving legal arguments

The Criminal Procedure Rules’ expectation = on the day of trial parties will be** ready to start immediately unless something unexpected has arisen** (so should resolve all pre-trial matters before where possible)

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2
Q

On what 3 occasions might pre-trial matters be considered? How is this different for cases in the magistrates’ and Crown?

A
  1. At first hearing (for magistrates’: many/all pre-trial matters can be solved here)
  2. At hearing on date between first hearing and trial date e.g. PTPH (for Crown: will be at least one hearing [PTPH] to deal with pre-trial matters)
  3. On day of trial itself before trial starts
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3
Q

What 3 things will the court do at the first hearing re pre-trial matters for cases in the magistrates’?

A
  • Give directions for service of documents between parties
  • Resolve there and then any matters of law (rare) / set out timetable as to when they will be resolved at pre-trial hearing or trial morning
  • Set a trial date
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4
Q

Will a ruling at a pre-trial hearing in the magistrates’ be binding on the magistrates’ that hears trial?

A

Yes whether composed of same lay justices/District Judge or not! Unless one party applies for ruling ot be discharged/varied

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5
Q

In what 2 circumstances is a party able to make an application to vary/discharge a pre-trial hearing ruling for a case in the magistrates’?

A

Only if there has been a material change in circumstances or something was not brought to attention of court when they made ruling (which could justify variation/discharge)

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6
Q

What is the issue in pre-trial applications in the magistrates’?

A

Lay judges/District Judge must hear the applicaton and then rule on it i.e. have to somehow ignore the potentially prejudicial evidence they heard and ruled to exclude earlier

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7
Q

Where the magistrates’ sends the case for a trial to the Crown Court, what must it set a date for and when?

A

Must set a date for a Plea and Trial Preparation Hearing (PTPH) within 28 days of magistrates’ hearing

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8
Q

Who completes a ‘sending sheet’ and when, who is it sent to and what does it contain?

A
  • Magistrates’ completes sending sheet when it sends case for trial to Crown
  • Sends to D and Crown
  • Contains offences for which D is being sent and Crown Court where D will be tried
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9
Q

Where the magistrates’ sends the case for a trial to the Crown Court, by when must evidence be served and how is this different where D is in custody/on bail?

A

Evidence must be served…

  • Within 50 days if D in custody
  • Within 70 days if on bail

Evidence is uploaded on to the Crown Court Digital Case System: i.e. copies of the documents containing the evidence on which a charge is based

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10
Q

When must a draft indictment be served and by whom?

A

Prosecutor must serve draft indictment on Crown Court officer not more than 20 business days after serving prosecution evidence

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11
Q

What are the next hearings in the magistrates’ for a) indictable matters or b) triable either way matters where D is sent for trial by magistrates’/D elects Crown Court trial?

A

There are none!!!!! Instead there will be a PTPH and maybe other hearings

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12
Q

Where a D wants to enter a guilty plea to an indictable only matter, can they do this at their first hearing?

A

No - because magistrates’ has no jurisdiction to hear it - instead should ask for an early guilty plea hearing in Crown Court to enter guilty plea ASAP instead of waiting until PTPH

This way they will get maximum credit for their plea

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13
Q

What is the Plea and Trial Preparation Hearing (PTPH), what are its two parts, and what must be filled in in advance?

A
  • Main (and often only) pre-trial Crown Court hearing
  • 2 parts are 1) plea and 2) either ‘sentence’ or ‘trial preparation’ stage
  • Parties must fill in PTPH form in advance of hearing (judge uses it when hearing conducted)

After first hearing the magistrates’ court will make a series of standard directions for the prosecution to serve its case on the defence and for a defendant to serve a defence statement in response

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14
Q

What is ‘arraingment’ in the plea stage of a PTPH?

A

The indictment is put to D and they enter a plea to each count on the indictment

Indictment = formal accusation that a person has committed a crime

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15
Q

At arraignment, what happens if…

  1. D pleads guilty (to sole/all count[s] of indictment)
  2. D pleads not guilty (to sole/all count[s] of indictment)
  3. D enters at least one guilty plea and at least one not guilty plea (on indictment consisting of two or more counts)
A
  1. D pleads guilty = case moves to sentence
  2. D pleads not guilty = case proceeds to trial preparation stage
  3. D enters at least one guilty plea and at least one not guilty plea = prosecution to consider how it proceeds (either sentence or trial preparation stage)
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16
Q

What happens at the plea stage where a judge determines (on medical evidence) that D is unfit to plea?

A
  • No plea taken
  • Trial held with jury to determine if D committed the act (no MR) i.e. trial preparation stage of hearing needs to take place
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17
Q

Where a D is found unfit to plead and a jury finds they have committed the act, what are the only 3 things they can be made subject to?

A
  1. An absolute discharge
  2. Supervision order
  3. Hospital order
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18
Q

All matters in the trial preparation stage of the PTPH are subject to what?

A

The PTPH form that advocates complete before hearing

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19
Q

Are directions at PTPH standardised or tailored to the case?

A

Standardised - the court sets 4 ‘stage dates’ with parties required to comply with certain standard directions by staged dates

20
Q

What 4 things will the standardised directions given at a PTPH deal with?

A
  1. Trial date - will be set if not already
  2. Prosecution evidence - prosecution confirms it has served all evidence and if not what is left/when it will be served
  3. Expert evidence - if seeking to rely, directions given for service
  4. Witness requirements - defence must inform on the prosecution witnesses it requires to attend court and any defence witnesses it intends to call
21
Q

What other matters will standardised directions apply for?

A
  • Special measures
  • Bad character
  • Witness summons
  • Agreed and disputed facts and issues
  • Defence statement
  • D’s interview
  • Hearsay
  • Admissibility and legal issues
22
Q

At the end of the PTPH, what should the parties know?

A
  • Trial date
  • Timetable for further prepatory work to be completed
  • Whether case needs to be listed in court again before trial
23
Q

What is a party required to do if they fail to comply with a direction?

A

Come to court and explain failure

Expectation is that no further hearings will be required, either because there are no further issues to resolve before trial or because they can be dealt with on the day the trial is listed.

24
Q

FURTHER APPLICATIONS

What further applications may be necessary after the PTPH in the Crown Court? When/where can they be made?

A
  • Evidence applications
  • Special measures
  • Measures to assist vulnerable Ds
  • Witness summons and warrants
  • Changes of plea

These further applications can be made…

  • In either magistrates’ or Crown
  • At PTPH/another pre-trial hearing (bar change of plea)
  • On day of trial (before trial starts/at convenient point in trial)
25
Q

FURTHER APPLICATIONS

Will all cases require further hearings after the PTPH?

A

Not all cases will require - either nothing to determine or PTPH judge decided that trial judge could deal with outstanding matters on morning of trial

26
Q

FURTHER APPLICATIONS

What will evidence applications cover and when are they likely to be dealt with?

A
  • If defence wants to exclude evidence prosecution proposes to adduce using s78 / either party wants to introduce otherwise inadmissible evidence (e.g. bad character, hearsay)
  • Most common to be dealt with on day of trial before it starts, more rarely at PTPH
27
Q

FURTHER APPLICATIONS

What are special measures?

A

Arrangements to assist children, vulnerable, and those in fear to testify in enabling environment (to maximise quality of evidence) e.g. using screen

I.e. measures for witnesses

28
Q

FURTHER APPLICATIONS

What special measures are available under Youth Justice and Criminal Evidence Act 1999? Are they available to all witnesses?

A
  • Use of screens (witness screened from D and public gallery)
  • Live TV link (witness sits in room away from courtroom)
  • Giving evidence in private (public gallery cleared)
  • Removing wigs and gowns
  • Video recording of evidence in chief
  • Pre-recording cross-examination and re-examination
  • Questioning of witness through intermediary
  • Aids to communication

Last 2 not available for witnesses who are eligible for special measures due to fear

29
Q

FURTHER APPLICATIONS

Which categories of witness are eligible for special measures?

A
  • All under 18 at time of trial
  • Mental disorder, significant impairment of intelligence/social functioning, or physical disability meaning quality of evidence likely to be diminished
  • In fear/distress to extent that quality of evidence will be diminished
  • Adult complainants of sexual offences or certain offences under Modern Slavery Act (forced labour, human trafficking),
  • Witnesses in case involving ‘relevant offence’ (homicide, involving firearms/knives)
30
Q

FURTHER APPLICATIONS

Will someone with a mental disorder, a significant impairment of intelligence and social functioning, or a physical disability or someone in fear or distress automatically be eligible for special measures?

A

No - court must be satisfied that quality of evidence will be diminished because of these features

31
Q

FURTHER APPLICATIONS

What application can be made for vulnerable Ds to facilitate their effective participation?

A

Application for D to give evidence via live link

32
Q

FURTHER APPLICATIONS

What must court be satisfied of for an application for D to give evidence via live link to be successful?

Think under 18 / 18 and over

A

That it is in the interests of justice and live link would improve quality of accused’s evidence because their ability to participate effectively as a witness giving oral evidence is compromised by…

  1. (Under 18:) Their level of intellectual ability/social functioning
  2. (18 or over:) Their mental disorder/significant impairment of intelligence and social functioning
33
Q

FURTHER APPLICATIONS

What can intermediaries, on court’s direction, be used for in the case of vulnerable Ds? Are all vulnerable Ds entitled to one?

A
  • To assist in communication of evidence and help D understand what is going on
  • Only Ds most in need will be entitled to one e.g. comprehension/communication difficulties

Are independent and owe duty to court

34
Q

FURTHER APPLICATIONS

How can intermediaries also help witnesses who are very young/have learning difficulties?

A

Will assist judge/counsel to understand what Qs will likely confuse them so advocates can prepare questioning - can explain Qs to witness when being questioned

35
Q

FURTHER APPLICATIONS

Who is usually responsible for securing attendance of prosecution witnesses and defence witnesses?

A
  • Police responsible for securing prosecution witnesses
  • Defence solicitors responsible for ensuring defence witnesses attend court when required
36
Q

FURTHER APPLICATIONS

Where a witness is not keen on attending court/tries to avoid attending, what can either party do?

A

Ask magistrates’/Crown to issue witness summons

37
Q

FURTHER APPLICATIONS

Does a witness summons always require a person to attend on day of trial?

A

Will either require them to attend on day of trial or produce document

38
Q

FURTHER APPLICATIONS

What is the 2-part test for a party seeking the witness summons?

A
  1. Witness likely to be able to give evidence that is likely to be material evidence (or produce material document); and
  2. It is in the interests of justice to issue a summons
39
Q

FURTHER APPLICATIONS

Where a witness disobeys summons and does not attend without a just excuse, what can courts do?

A

Issue a warrant for arrest of witness as this is contempt of court

40
Q

FURTHER APPLICATIONS

Where the D wants to change plea from not guilty to guilty, when can this be done and how?

A
  • Can be done any time before jury return verdict
  • Must ask for ‘indictment to be put again’ (need leave of judge/magistrates but asking is usually sufficient)

Usually change for tactical reason/hoping prosecution witnesses would not attend

41
Q

FURTHER APPLICATIONS

In the not guilty > guilty scenario, what happens where this is in the Crown and jury has already been put in?

A

Jury should be directed to return a formal verdict of guilty

42
Q

FURTHER APPLICATIONS

Where the D wants to change plea from guilty to not guilty, when can this happen and when would the court invariably reject such an application?

Significantly more difficult!

A
  • Can apply to court for leave at any time before sentencing
  • Would invariably reject application where they have been represented properly
43
Q

FURTHER APPLICATIONS

What does ‘represented properly’ mean in the context of invariably rejecting the application to vacate a guilty plea? To show this, what must D waive?

A
  • Proper advice given to D, no undue pressure exerted, D’s plea unequivocal
  • To show represented improperly, D must waive legal privilege to show evidence of conference with counsel
44
Q

FURTHER APPLICATIONS

What are the 2 most common (rare) scenarios where court will exercise discretion to allow D to change from guilty to not guilty?

A
  1. Defence can show prosecution has no evidence of essential ingredient of offence; or
  2. D was improperly placed under undue pressure to plead guilty/was materially misadvised by D’s legal team
45
Q
A

Criminal Law and Practice (21 decks)

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