Pre-Trial Hearings and Confessions

Question 1

When must a first hearing be within if the prosecutor anticipates a guilty plea?

Answer 1

within 14 days of being charged

Question 2

When must a first hearing be within if the prosecutor anticipates a not guilty plea?

Answer 2

Within 28 days of being charged

Question 3

What is a pre-trial matter? When will they generally be considered?

Answer 3

Any matter that can be resolved pre-trial – selecting trial date, applying for witness summons, resolving legal arguments

Can be considered at the following:
- First hearing
- Hearing on a date AFTER first hearing and BEFORE trial date
- Day of trial itself, before the trial starts

Question 4

In the magistrates’ court, when should case management issues be resolved?

Answer 4

First hearing

Court will direct regarding service of documents, set out a timetable, and resolve any matters of law

Question 5

How can pre-trial hearings bind future Magistrates’ Courts?

Answer 5

If in a pre-trial hearing, the admissibility of a piece of evidence is ruled upon, that ruling is binding on the MC that hears the trial

Question 6

When can you make an application to vary or discharge a ruling about the admissibility of evidence in the MC?

Answer 6

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

Question 7

If the MC send a case for trial at the CC, how long does it have to set a date for the PTPH?

What must the MC complete also when sending D to the CC?

Answer 7

28 days

Complete a sending sheet, a notice specifying offences, and in which CC D will be tried.

Question 8

When a defendant is tried in the CC, in what time frame must evidence be served on the defence?

Answer 8

50 days if D is in custody

70 days if D is on bail

from the date on which D has been sent for trial in CC

Question 9

When must the draft indictment be served on the defence?

Answer 9

Not more than 20 business days after serving prosecution evidence

Question 10

What is a PTPH?

Answer 10

A plea and trial preparation hearing - the main, and often only pre-trial CC hearing

Question 11

What are the two parts of a PTPH?

Answer 11

Plea

Sentence or trial preparation

Question 12

What is the process of ‘arraignment’?

Answer 12

Indictment put to the defendant - they enter a plea of guilty, or not guilty to each count on the indictment.

Question 13

What happens if a defendant enters at least one guilty plea, and one not guilty plea on an indictment of two or more counts?

Answer 13

Prosecution will need to consider how it wishes to proceed

Question 14

What happens if a judge considers a defendant unfit to plead?

Answer 14

Court will have to hold a trial with a jury to determine whether the defendant committed the AR

However can only be made subject to; an absolute discharge, supervision order, hospital order

Question 15

What is included in the standardised PTPH directions?

Answer 15

o Trial date: if not been set already, set at PTPH considering likely estimate of the length of trial and witness availability
o Prosecution evidence: will have to confirm if it has served all of its evidence or if not
o Expert evidence: service and agreement between experts
o Witness requirements: estimate of how long it will take to question each witness. Defence must give details of witnesses it wishes to call
o Any special measures: live link, screens, etc
o Bad character
o Witness summons
o Agreed facts and issues
o Disputed facts and issues
o Defence statement
o Disclosure
o D’s interview
o Hearsay
o Admissibility and legal issues

Question 16

What can the consequences of failing to comply with directions include?

Answer 16

Might have to go to court and explain their failure to do so

Question 17

What is ‘used material’?

Answer 17

Material the prosecution will rely on at trial

Question 18

What is ‘unused material’

Answer 18

Material not relied upon by the prosecution

Question 19

What is the general scheme of disclosure? Four stages:

Answer 19

Investigation stage - a duty to record and retain material here
Initial duty of disclosure on the prosecution
Defence disclosure
Continuing duty on the prosecution to keep disclosure under review

Question 20

What does the duty to retain and record relevant material include?

Answer 20

All material which might be relevant to the investigation must be recorded in a durable or retrievable form, and retained.

Question 21

What is a disclosure officer responsible for?

Answer 21

Responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor’s request

Question 22

What is the investigator responsible in a case?

Answer 22

They must follow all reasonable lines of enquiry, whether these point towards or away from the suspect - must be fair and objective.

Question 23

When does the duty to retain material last until?

Answer 23

At least, a decision is taken whether to institute proceedings against a suspect for a criminal offence.

Question 24

How does the duty to retain unused material change once criminal proceedings are commenced?

Answer 24

All material must be retained until the accused is acquitted, or convicted, or the prosecutor decided not to continue with the case

Question 25

How does the duty to retain unused material shift once the defendant is convicted?

Answer 25

Material must be retained until D is released from custody, or 6 months from the date of conviction, in cases which did not result in a custodial sentence

Question 26

How does the duty to retain unused material change on appeal?

Answer 26

If an appeal against conviction is in progress, all material that may be relevant must be retained until the appeal is concluded.

Question 27

What should the disclosure officer notify the prosecutor about?

Answer 27

Every item of unused material CC cases - schedule MG6C MC cases - not guilty plea anticipated - streamlined disclosure certificate

Question 28

When is material considered 'sensitive'? How should it be approached

Answer 28

Material the disclosure of which the officer believes would give rise to a real risk of serious prejudice to an important public interest Separate schedule, or revealed to prosecutor separately

Question 29

What is the 'disclosure test' under s3 CPIA?

Answer 29

The prosecutor must 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 assisting the case for the accused Objective test

Question 30

Complementing the disclosure test, what else should prosecutors consider when thinking about whether to disclose?

Answer 30

How material could be used in cross examination Capacity to support submissions that could lead to - Exclusion of evidence - Stay of proceedings as an abuse of process where material is required to allow a proper application to be made - A court or tribunal finding that any public authority had acted incompatibly with accused’s rights under the ECHR * Capacity to suggest an explanation of accused’s actions * Capacity of material to have a bearing on scientific or medical evidence in the case * Consider all the circumstances in which material might be capable of supporting the defence case / undermining the prosecution case

Question 31

What kind of material is therefore unlikely to need to be disclosed via the disclosure test?

Answer 31

Material which is supportive of the prosecution case, but the prosecution does not use, or any neutral material.

Question 32

What must be remembered about disclosure in complex, long cases?

Answer 32

Prosecution must adopt a considered and appropriately resourced approach to giving initial disclosure Dialogue with defence always re disclosure Prosecution should have a strategy, which is discussed with court and the defence, and make an appropriate search Case management by the judge Flexibility is critical

Question 33

When must initial disclosure be served?

Answer 33

No later than the beginning of the day of the first hearing

Question 34

What is the minimum standard for disclosure?

Answer 34

Must be enough that the defence and the court can be informed on plea, venue for trial, case management, and sentencing

Question 35

When does the statutory duty arise concerning the disclosure of unused material by the prosecution?

Answer 35

MC - only when a defendant pleads not guilty and case is adjourned for summary trial CC - where D is sent for trial or where a Voluntary Bill of Indictment has been used.

Question 36

How quickly after the initial duty of disclosure arises should the prosecutor act?

Answer 36

As soon as reasonably practicable

Question 37

What happens if after a first hearing, there is still more disclosure needed for a full and effective trial?

Answer 37

Court will set a date by which this must be done

Question 38

What continuing duty does a prosecutor have throughout a case?

Answer 38

Continuing duty to review disclosure throughout criminal proceedings

Question 39

What duty of the defence does initial disclosure by the prosecution trigger?

Answer 39

Duty on the defence to provide a defence statement which sets out the defence.

Question 40

Do the defence have a duty to serve material which might be helpful to the prosecution?

Answer 40

No

Question 41

What should a defence statement contain?

Answer 41

* Nature of accused’s defence including any particular defences to rely on * Matters of fact in dispute * Setting out why he takes issue with the prosecution * Setting out particulars of the matters of fact on which he intends to rely * Indicating any point of law / admissibility / abuse of process / authorities * Alibi o Details of anyone providing alibi witness o Any information in accused’s possession of material help in finding witnesses

Question 42

In which court is a defence statement compulsory?

Answer 42

Crown Court only

Question 43

What is the time limit for serving a defence statement in the Crown Court?

Answer 43

Within 28 days of the date when the prosecution complies with its duty of initial disclosure

Question 44

What is the time limit for serving a defence statement in the Magistrates Court?

Answer 44

Not compulsory, but if the defence wishes to serve, must do within 10 business days of the prosecution complying with the initial duty of disclosure

Question 45

What is the impact if the defence do not serve a defence statement in the Magistrates' Court?

Answer 45

Defence is unable to make an application for specific disclosure

Question 46

When must the Notice of Intention to Call Defence Witnesses be given?

Answer 46

10 business days in MC 28 days in CC - from the point of prosecution complying or purporting to comply with initial disclosure

Question 47

What are the consequences if a defendant in the Crown Court fails to serve a defence statement, or do so in time, or relied on at trial a defence which is not mentioned initially?

Answer 47

Jury can draw adverse inferences as appear proper Prosecution or a co-defendant can comment on this

Question 48

What is the continuing duty of disclosure?

Answer 48

A duty, once a defence statement has been received, to keep disclosure under review - P should always be thinking, should new material be issued? Includes even at a late stage in proceedings

Question 49

When can the defence make an application to the court for specific disclosure?

Answer 49

If it has reasonable cause to believe that there is prosecution material which should have been disclosed, but which has not been disclosed

Question 50

When can a defendant make an application for specific disclosure?

Answer 50

D has served a defence statement and P has provided further disclosure, or notified D that there is no further disclosure to be made. Application must describe material D wants disclosed, and explain why there is reasonably cause to believe that a) prosecutor has the material and b) it should be disclosed. Last resort application - should dialogue first

Question 51

What can the consequences be if the prosecution is considered to have failed to disclose?

Answer 51

* Defence could bring application to stay indictment on grounds of abuse of process * Conviction quashed * Delay + wasted costs + refusal to extend custody time limits * Potentially result in exclusions of evidence in case

Question 52

How can prosecutors take reasonable steps to obtain materials from third parties?

Answer 52

* 3rd party should be informed of investigation + request made * Inquiries cannot be speculative * If refused - P can consider seeking a summons

Question 53

What happens on a Public Interest Immunity Application?

Answer 53

P applies to judge for non-disclosure of certain material in the public interest Court will consider material and may withhold disclosure to extent necessary to protect public interest, while ensuring that D can have a fair trial Sensitive material schedule must state * Why material is sensitive and to what degree * Consequences of disclosing the material to the defence * Relevance of material to issues in the case * Implications for continuing the prosecution if material is ordered to be disclosed * If possible to make disclosure without compromising sensitivity

Question 54

What are the main ways of excluding evidence and / or seeking to bring a prosecution case to an end?

Answer 54

Applications for dismissal Submissions of no case to answer Applications to exclude evidence under S78 PACE Applications to exclude confessions under S76 PACE Applications to exclude evidence under preserved common law provisions - S82 pACE Abuse of process applications

Question 55

When can an application for dismissal be made?

Answer 55

D has been sent to the CC for trial, has already been served with the evidence relating to the offence, but before the defendant is arraigned Application is made to a Crown Court judge.

Question 56

What test should be applied for an application to dismiss?

Answer 56

"If it appears to the judge that the evidence against the applicant would not be sufficient for him to be properly convicted".

Question 57

What is the test from Galbraith on when a judge should stop the case, when the defence make a submission of no case to answer?

Answer 57

Prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it

Question 58

When should a submission of no case to answer be made?

Answer 58

After the close of the prosecution case - hence why it is often called a 'half time' submission.

Question 59

What important caveat is there on submissions of no case to answer?

Answer 59

If the strength or weakness of the prosecution's evidence depends on a victim's reliability, this should be judged by the jury and not make a submission of no case to answer.

Question 60

What right does the prosecution have on a submission of no case to answer?

Answer 60

Opportunity to reply to such an application.

Question 61

Do courts have to explain why they have chosen to reject submissions of no case to answer?

Answer 61

No

Question 62

When should an abuse of process application be made?

Answer 62

Remedy of last resort

Question 63

What are the two circumstances in which the court has power to stay proceedings for an abuse of process?

Answer 63

Accused can no longer receive a fair hearing Would put the criminal justice system into disrepute - Crown Court only

Question 64

How is the second limb of the circumstances for abuse of process understood?

Answer 64

Court will have to conclude that in all the circumstances, a trial will offend the court's sense of justice and propriety, or undermine public confidence in the criminal justice system.

Question 65

How does the common law discretion to exclude evidence work? When is it used?

Answer 65

Can be used under S82 PACE to exclude prosecution evidence which has a greater prejudicial effect, compared to any probative value Rarely used now due to sweeping powers in S78 and S76 PACE

Question 66

How does S78 PACE exclude evidence?

Answer 66

Excludes evidence which the prosecution seeks to rely on, which the court considers was unfairly obtained.

Question 67

What is the test that S78 PACE asks?

Answer 67

'Would the admission of evidence have such an adverse effect on the fairness of proceedings that the court ought not to admit it'?

Question 68

What type of evidence can S78 exclude?

Answer 68

Prosecution evidence only Tends to apply to evidence obtained unlawfully, unfairly, or improperly.

Question 69

Will technical breaches of the Codes of Practice lead to automatic exclusion under S78?

Answer 69

No - the significance of breaches must be taken into account - breaches must be significant and substantial.

Question 70

What approach should be adopted re S78 regarding questionable police conduct?

Answer 70

Did the conduct of the police, wittingly or unwittingly, lead to unfairness or injustice?

Question 71

What is particularly important to remember in terms of S78?

Answer 71

The test focuses on the end result, not the process; so even quite major breaches might not lead to exclusion if the court reaches the view that no unfairness was caused in the circumstances.

Question 72

When can a S78 PACE application be made?

Answer 72

Before the trial, at the start of the trial, or just prior to the prosecution seeking to admit the evidence which the defence would wish to be excluded. The greater the significance of the evidence subject to the exclusion application, the earlier it should be dealt with in the trial. Should always be made before the evidence to which the objection is taken is adduced.

Question 73

If there is a voir dire as to the admissibility of evidence, what is the burden of proof?

Answer 73

Judge would have to be satisfied of the prosecution's version of events beyond reasonable doubt.

Question 74

What is the S76 PACE definition of confession?

Answer 74

Any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not, and whether made in words or otherwise This is a deliberately wide definition

Question 75

Under what two grounds can a confession be excluded under S76 PACE?

Answer 75

Oppression Unreliability: Anything said or done, which was likely to render unreliable any confession which might be made by him in consequence thereof.

Question 76

How is S76 activiated?

Answer 76

Defence can raise it, or the court itself can require the prosecution to prove that a confession was not obtained under a S76 condition.

Question 77

How is oppression defined in the first limb of S76?

Answer 77

"Torture, inhuman or degrading treatment, and the use or threat of violence". Can consider the attributes of the defendant here to judge this.

Question 78

How should the unreliability limb of S76 be approached?

Answer 78

Identify thing said or done Does what was said / done in the circumstances render a confession unreliable? Objective test, taking into account all circumstances Has prosecution proved beyond doubt that confession was not obtained in consequence of thing said / done?

Question 79

When can evidence discovered as a result of an excluded confession be admitted?

Answer 79

Facts discovered as a result of the confession: e.g. if police locate the body of a victim When showing the speech, writing, or expressions of the accused.

Question 80

Why is it common to apply to exclude evidence under both S76 and S78 PACE?

Answer 80

S78 makes the court examine the case from a perspective of overall fairness and can in some instances offer broader protections to the defendant that S76