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

Question 1

What are pre-trial matters?

Answer 1

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)

Question 2

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

Answer 2

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

Question 3

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

Answer 3

• 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

Question 4

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

Answer 4

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

Question 5

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’?

Answer 5

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)

Question 6

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

Answer 6

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

Question 7

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

Answer 7

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

Question 8

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

Answer 8

• 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

Question 9

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?

Answer 9

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

Question 10

When must a draft indictment be served and by whom?

Answer 10

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

Question 11

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?

Answer 11

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

Question 12

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

Answer 12

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

Question 13

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

Answer 13

• 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

Question 14

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

Answer 14

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

Question 15

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)

Answer 15

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)

Question 16

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

Answer 16

• 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

Question 17

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?

Answer 17

1. An absolute discharge
2. Supervision order
3. Hospital order

Question 18

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

Answer 18

The PTPH form that advocates complete before hearing

Question 19

Are directions at PTPH standardised or tailored to the case?

Answer 19

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

Question 20

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

Answer 20

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

Question 21

What other matters will standardised directions apply for?

Answer 21

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

Question 22

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

Answer 22

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

Question 23

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

Answer 23

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.

Question 24

FURTHER APPLICATIONS

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

Answer 24

• 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)

Question 25

# **FURTHER APPLICATIONS** Will all cases require further hearings after the PTPH?

Answer 25

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

Question 26

# **FURTHER APPLICATIONS** What will **evidence applications** cover and **when** are they likely to be dealt with?

Answer 26

* 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

Question 27

# **FURTHER APPLICATIONS** What are **special measures**?

Answer 27

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**

Question 28

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

Answer 28

* 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

Question 29

# **FURTHER APPLICATIONS** Which categories of witness are eligible for special measures?

Answer 29

* 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)

Question 30

# **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?

Answer 30

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

Question 31

# **FURTHER APPLICATIONS** What application can be made for **vulnerable Ds** to facilitate their effective participation?

Answer 31

Application for D to give evidence via live link

Question 32

# **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

Answer 32

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

Question 33

# **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?

Answer 33

* 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

Question 34

# **FURTHER APPLICATIONS** How can intermediaries also help witnesses who are very young/have learning difficulties?

Answer 34

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

Question 35

# **FURTHER APPLICATIONS** Who is usually responsible for securing attendance of **prosecution** witnesses and **defence** witnesses?

Answer 35

* Police responsible for securing prosecution witnesses * Defence solicitors responsible for ensuring defence witnesses attend court when required

Question 36

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

Answer 36

Ask magistrates'/Crown to **issue witness summons**

Question 37

# **FURTHER APPLICATIONS** Does a witness summons always require a person to attend on day of trial?

Answer 37

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

Question 38

# **FURTHER APPLICATIONS** What is the 2-part test for a party seeking the **witness summons**?

Answer 38

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

Question 39

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

Answer 39

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

Question 40

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

Answer 40

* 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) ## Footnote Usually change for tactical reason/hoping prosecution witnesses would not attend

Question 41

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

Answer 41

Jury should be directed to return a formal verdict of guilty

Question 42

# **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!

Answer 42

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

Question 43

# **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?

Answer 43

* 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

Question 44

# **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?

Answer 44

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**