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PRE-TRIAL CRIMINAL LITIGATION, PRE-TRIAL CRIMINAL LITIGATION - Coggle…
PRE-TRIAL CRIMINAL LITIGATION
BAIL
PRESUMPTIONS AND OBJECTIONS
IF defendant is presented to
court + court cannot conclude case in one hearing = case will have to be adjourned + defender is remanded
> obliged to come back to court to continue with the case
remand may
either be served in custody /served in the community on bail
Remanded into custody
Prosecution
applies by presenting objections to bail, due to presumption in favour of bail
Objections one can
raise are finite + defined by law
Grounds on which the prosecution can object
The prosecution can
take as many / few as it wishes w/in those grounds + only needs to succeed in showing that 1 ground is made out to have bail denied
If court considers ground would be
made out if defendant were to be released BUT conditions on release would alleviate concerns = grantedconditional bail
Depend on:
(a) Indictable cases- = indictable only or either-way
(b) Summary cases, imprisonable = e.g. common assault
(c) Summary non-imprisonable- = e.g. 'road traffic'.
Indictable offences: objection grounds
1st SET
A. If defendant is released on bail, there are 'substantial grounds' for believing that the defendant would either:
ONLY necessary to show that fears of behaviour happening have substance >
factual enquiry + no formal rules of evidence in determining if ground is made out
Representations by both parties
BUT unlikely to call witnesses / produce documentary evidence
1. fail to attend a subsequent hearing (failure to surrender to custody)
2. commit further offences on bail; and/or
3. interfere with witnesses, or otherwise obstruct the course of justice eg witness intimidation or destruction of evidence
B. No real prospects
Bail should not be removed under one of
these grounds if defendant is charged with offence where there are ‘no real prospects’ of defendant receiving a custodial sentence
2nd SET
A. Defendant 'need not' be granted bail if one of these conditions exist:
remand in custody would be for defendant's own protection
court
has insufficient information to deal with issue of bail > so remands in custody for a (short) period for production of sufficient evidence; and/or
defendant is
already serving a sentence in custody
Summary offences - imprisonable: objection grounds
1st SET
A. If defendant is released on bail, there are 'substantial grounds' for believing that the defendant would either:
ONLY necessary to show that fears of behaviour happening have substance >
factual enquiry + no formal rules of evidence in determining if ground is made out
Representations by both parties BUT
unlikely to call witnesses / produce documentary evidence
1. fail to attend a subsequent hearing (failure to surrender to custody) if they have previously FTS OR following s.7 Bail Act arrest
2. commit further offences on bail if D was on bail at date of alleged offence OR following s.7 Bail Act arrest; and/or
3. interfere with witnesses, or otherwise obstruct the course of justice eg witness intimidation or destruction of evidence following s.7 Bail Act arrest
B. No real prospects
Bail should not be removed under
one of these grounds if defendant is charged with offence where there are ‘no real prospects’ of defendant receiving a custodial sentence
2nd SET
A. Defendant 'need not' be granted bail if one of these conditions exist:
remand in
custody would be for defendant's own protection
court has insufficient information to deal with issue of bail > so
remands in custody for a (short) period for production of sufficient evidence; and/
or
defendant is
already serving a sentence in custody
3rd SET > specialist grounds
1. Check whether your defendant falls into provisions of one of special categories
2. If provisions in relation to serious cases (eg murder) are satisfied > courts must follow more stringent test + more general objections cease to apply.
3. For cases of a particular character, the prosecution can either use these additional grounds or rely on the more general grounds
1. High penalties and serious crime cases
Is D charged with:
(a) murder; (b) attempted murder, rape, attempted rape, serious sexual offence or manslaughter; or (c) an offence carrying life imprisonment as its maximum sentence
a) Murder (only a Crown Court Judge can grant bail)
If D has a pre-con for:
(i) murder; (ii) attempted murder; (iii) rape; or (iv) a serious sexual offence = D may not be granted bail unless there are exceptional circumstances to justify it
If D does
not fall into the above = D may not be granted bail unless there is no significant risk of D causing an offence likely to cause physical or mental injury
b) Attempted murder, rape, serious sexual offence etc
If D has a pre-con for:
(i) murder; (ii) attempted murder; (iii) rape; or (iv) a serious sexual offence = D may not be granted bail unless there are exceptional circumstances to justify it
c) An offence carrying life imprisonment
If D was either:
(i) already on bail; and/ or (ii) fails to attend having been on bail = D may not be granted bail unless there is no significant risk of further offences being committed or failure to attend
The present charge and pre-con do not need to be the same offence. If D does not have a qualifying pre-con, bail is assessed on the usual grounds.
2. Dealing with cases with particular characteristics that affect risk
Is D charged with:
(a) an offence that suggests D would cause injury (mental or physical) to a partner or family member; or (b) abuse of drugs?
(a) An offence against partner or family = D need not be granted bail for any imprisonable offence if court believes there are: substantial grounds to believe that D would commit an offence on bail by engaging in conduct that would / be likely to cause physical or mental injury to an associated person.
Associated person =
spouse, partner or a family member. This ground is available for non-imprisonable offences only if D is arrested under s.7 Bail Act for a breach of bail.
(b) Abuse of drugs- Where:
test shows
D has a Class A drug in D’s body + offence relates to Class A or was caused/ motivated by D taking Class A drugs
= Court may
not grant bail unless there is no significant risk of D committing an offence on bail.
3. Dealing with cases where there has been a bail infringement
If the defendant was on bail at the time of the alleged offence:
- If D is said to have committed an indictable offence = court ‘need not’ grant bail; or
- If D is said to have committed a summary imprisonable offence = court ‘need not’ grant bail if there are substantial grounds for believing that D will commit further offences
- If D absconds whilst on bail for an indictable offence = bail need not be granted again, unless prior to conviction + no realistic prospects of defendant receiving a custodial sentence
Summary offences non-imprisonable: objection grounds
1st SET
A. If defendant is released on bail, there are 'substantial grounds' for believing that the defendant would either:
ONLY necessary to show that fears of
behaviour happening have substance > factual enquiry + no formal rules of evidence in determining if ground is made out
Representations by both parties BUT
unlikely to call witnesses / produce documentary evidence
1. fail to attend a subsequent hearing (failure to surrender to custody) if D has been convicted and either: has prior FTS OR following s.7 Bail Act arrest
2. commit further offences on bail if D has been convicted and following s.7 Bail Act arrest
3. interfere with witnesses, or otherwise obstruct the course of justice eg witness intimidation or destruction of evidence if D has been convicted and following s.7 Bail Act arrest
B. No real prospects
Bail should not be removed under one of
these grounds if defendant is charged with offence where there are ‘no real prospects’ of defendant receiving a custodial sentence
2nd SET
A. Defendant 'need not' be granted bail if one of these conditions exist:
remand in
custody would be for defendant's own protection
defendant is
already serving a sentence in custody
The factors
NOT grounds themselves, but help court determine if grounds are made out
1. nature and seriousness of the offence and the likely disposal (ie sentence)
if convicted of a
serious offence, D is likely to receive a long sentence and will therefore be tempted to abscond
Grounds its supports:
FTS / Commit further offences / Interfere with witnesses
2. character of the defendant, D’s antecedents, associations and community ties
any personal
circumstances / friends with criminal records
Grounds its supports:
FTS / Commit further offences
3. defendant’s bail record in the past
Grounds its supports:
FTS
4. strength of the evidence
Grounds its supports:
FTS / Interfere with witnesses
Bail
Court presumes that
defendant is entitled to bail + only if an objection is properly = bail can be refused
Once prosecution raises
objection to bail > defence can apply for bail
All cases commence in the
magistrates' court > where first decision in relation to bail is made BUT defence + prosecution can appeal magistrates decisions
It is ongoing consideration + can be granted subject to conditions
Right to bail
Applies: to person after conviction when case is adjourned to assist in sentencing + when person is alleged to have breached a requirement of a community order
NOT apply: to those appealing their conviction or sentence OR to defendants committed for sentence from Magistrates' Court to Crown Court
Bail can still
be granted BUT NO presumption
CONDITIONS AND BREACH
Common bail conditions
1. Residence at a given address = reduce risk of defendant escaping
2. Curfew = prevent further offences being committed while on bail BUT only appropriate where time of day/night is relevant to pattern of offending
3. Reporting to a local police station at given times = reduce risk of defendant escaping
4. Surety = offer of money by someone with influence over defendant to secure defendant's return to court > required where there is risk of defendant escaping = surety will forfeit sum if defendant escapes (only paid if they escape) NOT given by defendant
5. Security = defendant / someone on behalf, putting up money / other valuable item to be forfeited (deposited before bail) if defendant does not answer bail + attend court > required where there is risk of defendant escaping
6. Restriction on where a defendant may go during bail = to reduce either: risk of defendant committing any further offences while on bail and/or interfering with witnesses.
7. Restriction on who defendant might have contact with during bail = reduce risk of interference with witnesses and/or obstructing the course of justice, or co-defendants to prevent further offending
8. Electronic monitoring (tagging) = address fears of failure to surrender and interference with witnesses
9. Bail hostels = if the defendant does not have a fixed address to prevent defendant absconding, and/or interfering with witnesses and/or committing further offences on bail > if rules are breached, the resident would have to leave + breach of bail condition
10. Surrender of passport
Varying bail conditions
Applications to vary bail conditions can be made by defence / prosecution on advance notice to other party
Made to court which
granted bail + if parties agree on variation > court may decide to vary a bail condition without a hearing.
Breach of bail conditions
May result in accused being arrested under Bail Act + D at risk of having the conditions tightened or being remanded in custody
It will
NOT be offence BUT only bail breach which is criminal offence is failing, without reasonable cause, to surrender to custody
(‘FTS’) > punishable
summarily by up to 3 months' imprisonment and/ or an unlimited fine or 12 months and/ or an unlimited fine on indictment
.
Power of arrest those in breach / about to be
PROCEDURE
Procedure for applying for bail
1. If defendant has been refused bail by police > D will appear before next available magistrates’ court in custody
2. Defence advocate will check with prosecutor if P intends to object to bail.
If NO > stated to the court
3. IF prosecution objects to grant of bail > prosecutor will outline objections to court +if accused has previous convictions, handed to the court
4. Defence presents its arguments for bail to be granted.
5. Court announces its decision + if defendant has right to bail under s. 4 Bail Act 1976 = court must give its reasons if it refuses bail or imposes conditions + form setting out decision is completed
Custody time limits
Rules preventing unduly
long periods of time spent on remand in custody awaiting trial as prosecution cannot hold defendant beyond custody time limits + trial must commence before the expiry of the custody time limit
:
56 days for trials in magistrates' court of summary only / either-way offences
182 days for trials in the Crown Court of indictable only or either-way offences, less any days spent in custody prior to the case being sent to the Crown Court
In
magistrates' court start of the trial = when court begins hearing evidence from prosecution
In
Crown Court start of the trial = when a jury is sworn.
Bail attempts
Defendant having trial in magistrates' court can have 2 attempts at getting bail
Magistrates’ Court
If bail is refused >
D can repeat same application + have a second attempt at getting bail at next hearing
Thereafter, D has
either to appeal decision against bail to Crown Court OR find fresh points to make
Crown Court
Defendant whose trial is in
Crown Court has 1 attempt at bail at first hearing in magistrates' court (unless charged with murder) + application as of right in the Crown Court
Prosecution can appeal granting of bail in Magistrates’ / Crown Court if:
opposed
bail originally
offence must be
punishable
by imprisonment
indicates
orally at hearing
when bail is granted that they will appeal
intention to
appeal is confirmed in writing
and served on the court and defence within 2 hours
appeal is
heard within 48 hours
appeal is heard by a
Crown Court Judge (for Mags) / High Court Judge (for Crown)
First and onward remand in the magistrates’ court
First appearance > D remanded in custody
Second appearance (in person or via live link) > within 8 days of the first appearance. D can make another bail application.
Onward remand > must be formally remanded into custody every 28 days until their trial. This can be in their absence.
Trial > within 56 days of first appearance unless prosecution successfully apply to extend the custody time limit.
Bail timeline
The usual case
1. If defendant is unsuccessful > case will be returned to court week later where bail can be raised a 2nd time without restriction + defendant can apply again.
-Possible for defence advocate to make identical applications at first + second hearings
2. Once defendant has had both applications > must secure a 'certificate of full argument' from magistrates' court before appealing to the Crown Court if there has been a change in circumstances
Appeals are heard 1 business day after an appeal notice is served.
Urgent cases
1. Defence may wish exercises appeal right more quickly
2. Crown Court will hear bail appeal no later than 1 business day after appropriate notice is served
3. If defendant appeals to Crown Court after only 1 application in magistrates' court > loses right to 2nd application in magistrates' court.
4. D can only apply again if there has been a change in circumstances.
FIRST HEARINGS
Timing of first hearing
Where defendant is on bail, first hearing must be within:
- 14 days of being charged > if prosecutor anticipates guilty plea likely to be sentenced in magistrates' court
- 28 days of being charged > if anticipated that defendant will plead not guilty OR case likely to go to Crown Court for either trial / sentence.
Defendant must be present at 1st hearing > If bailed by police to attend court + fails to attend = court can issue warrant for arrest
BUT IF
defendant has summonsed to court (non-imprisonable, minor or road traffic offences) = NO offence for non-appearance
NOT possible to proceed w/out them if hearing deals with allocation of either-way offence / sending an indictable (either-way or indictable only) case to the Crown Court.
Initial details
Prosecution
MUST serve initial details on court officer (+ defendant if he requests them) as soon as practicable + no later than beginning of day of 1st hearing.
IF FAIL to do so =
court adjourns 1st hearing and/or award costs to defence
Initial details must include:
summary of circumstances
of offence
account
given by defendant in interview
written statements
and exhibits available + material to plea and/or mode of trial or sentence
victim
impact statements
defendant's criminal
record
Info supplied must be sufficient at first hearing to allow court to take an informed view on plea and venue for trial
Preparation for Effective Trial (PET) form
info must be available+ if trial, parties must complete form.
SUMMARY ONLY OFFENCES
Case management
Trial and sentence at magistrates’ court
Prosecutor + defendant must communicate at first available opportunity + no later than beginning of day of 1st hearing to establish:
plea
agreed / disputed info
info required
Once initial details are served > defendant will be asked to enter their plea
Summary only – guilty plea
If defendant pleads guilty > court will proceed to sentence
Sentence passed
immediately BUT can be adjourned for further information
.
Most used by magistrates is a
fine + maximum sentence is 6 months imprisonment
Summary only - not guilty pleas
If defendant pleads not guilty > court sets a trial date + do any case management to ensure it is effective on date by completing case progression form 'Preparation for Effective Trial form' ('PET’)
Setting out
issue(s) at trial + witnesses
Court sets
timetable for trial
+ estimate
Courts have
standard directions
about how parties should prepare the case + must be complied, including:
bad character evidence / measures to protect witnesses / expert evidence / hearsay evidence / transcripts of interviews / serving certificates of readiness for trial
Magistrates’ court has a case
progression officer to monitor directions made by the court
Pre-trial hearings
IF case has been set for summary trial > court can conduct pre-trial hearings for admissibility of evidence and fitness to plead
Rulings can be made on application of defence / prosecution / court's motion +
ruling is binding until the case is disposed of by:
**
- conviction or acquittal of the defendant
- prosecution decision not to proceed
- dismissal of the case
- court can discharge it if in interests of justice to do so**
Pleading guilty by post = no need for D to attend court
ALLOWED FOR summary only cases where:
- matter has been commenced by summons or requisition
- prosecutor has served a summary of the evidence on which the prosecution case is based AND
- prosecutor has served information relevant to sentence
Summary only offences in the Crown Court
ALLOWED IF:
- defendant is charged with offence tried in the Crown Court + there is summary only offence connected to indictable offence
Related summary matters that must be sent for trial and included on an indictment (s 40 CJA 1988)
Common assault
Assaulting a prison or secure
training centre officer
Taking a motor vehicle or other conveyance
without authority
Driving a motor vehicle while disqualified
Criminal damage
Related summary matters that must be sent for plea only > not appear on indictment BUT when trial for indictable offence is over, accused asked to enter plea in relation to the summary only offence
Any summary matter NOT listed in s 40
BUT punishable by disqualification from driving or imprisonment
EITHER-WAY OFFENCES
Case management
1. Magistrates’ court accepts jurisdiction + D consents to summary trial = trial at = magistrates’ court + sentence at magistrates’ court / Crown Court
OR
2. Magistrates’ court declines jurisdiction or D elects Crown Court trial = trial + sentence at Crown Court.
Plea before venue
1st hearing >
defendant asked to indicate their plea + supplied with copy of initial details + warned that if they plead guilty, can be: sentenced by the court / committed to the Crown Court for sentence
D can:
indicate guilty
= must be unequivocal
indicate
not guilty
give
no indication = treated as a not guilty
Guilty plea
If defendant pleads guilty > court will proceed to sentence
Sentenced in either
magistrates' court / Crown Court > magistrates' court must consider whether its sentencing powers would be sufficient in the circumstances given = cannot impose more than 6 months imprisonment for summary only / either-way offence
For
2 or more either-way offences = maximum sentence in magistrates' court is 12 months
imprisonment
IF
sufficient = sentence passed immediately / adjourned for preparation of a pre-sentence report
(PSR)
IF
NOT sufficient
= committed for sentence to the
Crown Court + magistrates' court should order PSR for use by Crown Court if it considers that
: realistic alternative to a custodial sentence / defendant may be a dangerous / some other appropriate reason
Defendant will make their next appearance at Crown Court to be sentenced by a Crown Court Judge
Not guilty pleas
If defendant pleads not guilty >
court considers where trial will be held (allocation) by considering allocation guideline which indicates that either-way offences should generally be tried summarily unless
: court's sentencing powers
would be insufficient OR due to unusual legal, procedural or factual complexity should be tried in Crown Court
(cases likely to be retained + tried in the magistrates’ court UNLESS offence is so serious that only Crown Court should have power)
Allocation hearing
1. Prosecution: Opens with the facts + Outlines defendant’s offending history (if any) + Makes submissions if trial should be held consistent with allocation guidelines
2. Defence: make submissions as to venue + if agree with prosecution > can say that + if disagree, > make more persuasive submissions
3. Court decides whether to allocate the case to magistrates' court OR send to Crown Court.
4. If allocate to Crown Court > defendant makes their next appearance at the Crown Court + no right to elect a magistrates' court
5. If court decides to retain jurisdiction will explain to the defendant that: summary trial is more suitable + defendant can consent to be tried summarily OR by a jury + D is tried summarily and is convicted, D may still be committed to the Crown Court for sentence
Indication of sentence = defendant can ask for an indication of sentence if they were to plead guilty instead + court has the discretion as to give it
IF
DECLINE
> ONLY tell defendant if
sentence would be custodial or non-custodial (if non-custodial sentence indicated > binding on any later magistrates' court BUT not binging if D sticks to non-g plea)
IF
GIVE
> D can
change plea to guilty and + process followed as if they pleaded guilty from outset
Election
IF no
indication asked / if court refuses to give one / if defendant sticks with not guilty plea > court asks the defendant
:
if consent to
being tried in a magistrates' court = case will be adjourned
(can go to CC for sentence) OR
if want
to elect to be tried by a jury = transferred to the Crown Court
Advise on election: trial on indictment (higher acquittal rate / not always harsher sentence) / summary trial (quicker / less formal / reasons provided / less sentencing powers)
Consqeuences
D consents to summary trial = progresses as if case were a summary only offence + sets a trial date + case management
D elects Crown Court trial = next appearance at Crown Court
Exceptions to the rule of either way
Low-value shoplifting = treated as summary only
Criminal damage > only at Crown Court only when the damage is:
over £
5000 OR caused by fire
Cases involving complex fraud or where children may be called as witnesses > sent directly to the Crown Court (indictable only), if notice has been given under:
section 51B (regarding fraud); or
section 51C (regarding children)
Comples fraud
> at least two of the following must be present:
amount is alleged to exceed £500,000
significant international dimension
requires specialised knowledge of financial, commercial, fiscal or regulatory matters
numerous victims
substantial and significant fraud on a public body
widespread public concern
PRE-TRIAL CRIMINAL LITIGATION
DISCLOSURE
Prosecution decides which material will be:
- used > relied upon at trial to prove its case against a defendant (incl prosecution witnesses statements / defendant's taped interview)
- Unused > not relied upon at trial BUT Full and proper disclosure = has to be handed to defendant as may be useful to them
There are 4 stages to disclosure
1. The investigation stage
Duty to record + retain material during investigation
Every investigation will have:
- officer in charge of the investigation = directs it + ensures proper procedures in place for recording + retaining info
- investigator = police officer conducting investigation
- disclosure officer = examines material retained + revealed it to prosecutor + defence at prosecutor's request
Duty to retain material lasts until
decision is taken to institute proceedings against a suspect + if instituted until accused is acquitted / convicted / prosecutor decides not to continue with case
Provision of unused material to prosecutor
Crown Court cases > disclosure officer prepares a schedule MG6C
individually listing items of unused material.
magistrates' court cases
> where a Not Guilty plea is anticipated unused material is listed on a
streamlined disclosure certificate
.
2. Prosecution duty of disclosure
Prosecutor must
- disclose to accused any prosecution material not previously disclosed which may undermine case for prosecution OR assist case of accused OR
- give accused written statement that there is no such material
Material = in
prosecutor's possession, in connection with case for prosecution against accused OR inspected by prosecutor in connection with case
Objective test for disclosure
Where
prosecution material might help defence = should be disclosed
> factors prosecution should consider regarding disclosure:
a. how material might be used in cross-examination
b. capacity to support submissions leading to: exclusion of evidence / stay of proceedings as an abuse of process / court or tribunal finding that any public authority acted incompatibly with accused's rights under the ECHR
c. capacity to suggest explanation / partial explanation of accused's actions
d. capacity of material to have a bearing on scientific or medical evidence in the case
Time limits for initial disclosure
IN
magistrates' court
= at
1st hearing when defendant pleads not guilty + case is adjourned for summary trial
if there is further
prosecution evidence to be served = court will give a date for it to be done
if prosecution has
not complied with initial disclosure = date will be given for it to be done
IN
Crown Court= when a defendant is sent for trial / where a Voluntary Bill of Indictment has been preferred against a defendant
Plea and Trial Preparation Hearing (PTPH) will
take place usually 28 days after sending to CC > prosecution should serve sufficient evidence in advance of / at PTPH
At PTPH, if there is
more prosecution evidence still to serve and/or if initial disclosure has not been complied with = dates will be given for it to be done
Prosecution is
under continuing duty to review disclosure throughout criminal proceedings
3. Defence statement
Defendant must serve defence statement on the
Crown Court + prosecution > written statement setting out: nature of the accused's defence / disputed facts of prosecution + why disputed / facts intend to rely on / alibi witness / point of law + author intend to rely on
Time limits
Crown Court
=
compulsory + must be served w/in 28 days of date when prosecution complies with its duty of initial disclosure
BUT can be extended if application is made within time limit + court satisfied it would unreasonable to require to only have 28 days
Magistrates’ court
=
not compulsory BUT if defendant chooses to serve it must do so within 10 business days of the prosecution complying
with initial duty of disclosure
Defence witnesses
In
Crown Court + magistrates' court, defendant must disclose to court + prosecutor a notice indicating
: if D intends to call any witnesses at trial AND if so, identifying witness by name, address and date of birth
within 10 business days (magistrates' court) + 28 days (Crown Court) of prosecution complying with initial disclosure
Failure to disclose
IF
defendant in Crown Court
: fails to serve defence statement / within time limits / statement is deficient in its content / relies on a different defence at trial than defence statement / fails to give notice of defence witnesses
Consequences
Jury may draw
adverse inferences
as appear proper (NOT in MC)
Prosecution or co-defendant may comment
on such failure without leave of court, other than if relates to a point of law where leave is required
Judge can
warn defendant at PTPH / other pre-trial hearing that failure to comply with relevant provisions may lead to comment being made / adverse
inferences being drawn
Prosecutors should
challenge the lack of, or inadequate
If not served in magistrates' / Crown Court > defendant
not able to make an application for specific disclosure + prosecution not have opportunity to review disclosure
4. Continuing duty of disclosure by the prosecution
Service of
defence statement provides prosecution + disclosure officers + investigators to revisit disclosure in light of any matters raised in accused's defence + keep disclosure under review
throughout the case + disclose any new material they should
a. Applications for specific disclosure (last resort > discussions encouraged)
Defence can make
application to court where it has reasonable cause to believe there is prosecution material which should have been disclosed
Made after
serving defence statement + after prosecutor provided further disclosure due to Statement / notified defendant there is no further disclosure to be made
Prosecution has
10 business days to respond in writing
N/A for
material NOT referable to any issue in the case
Application must explain:
prosecutor
has the material + it should be disclosed
b. Disclosure failure by the prosecution
IF prosecution
failed in its duty to disclose > defence could bring application to stay indictment on ground that continuing case would be abuse of process of court could lead to
:
conviction
quashed on appeal
delay + imposition
of wasted costs for unnecessary hearings
exclusion of evidence
in case due to unfairness
BUT prior to this =
defence should write to prosecution specifying material they seek
c. Third-party disclosure
No duty of disclosure on third parties
BUT if material can undermine prosecution case / assisting case for accused > prosecutors should take appropriate steps to obtain it
There must be some
reason to believe third party holds relevant material
IF disclosure is
refused > prosecution can seek summons in CC / MC
d. Public interest immunity
IF prosecution is under
duty to disclose material to defence BUT does not wish to do so as it would give rise to real risk of serious prejudice to important public interest
> can apply to judge for non-disclosure in public interest
Court will consider
material + may withhold disclosure to minimum extent necessary to protect public interest
PRE-TRIAL MATTERS
'Pre-trial matters' are matters resolved pre-trial + will be considered either:
- at first hearing
- at hearing on date after first hearing and before trial date (PTPH)
- on day of trial itself before the trial starts
Magistrates’ court = summary only cases, many if
not all pre-trial matters can be resolved at first hearing
Crown Court = at
least one hearing in Crown Court, PTPH, to deal with pre-trial matters
Pre-trial matters in the magistrates' court
Where trial takes place in magistrates' court > parties will be
expected to deal with case management issues at the first hearing
. There is a magistrates' court case management
form that the court will expect parties to complete before the first hearing commences.
At the first hearing court will give directions for:
service of documents between the
parties
resolve
any matters of law
(rarely) or set out timetable for resolving them either at a pre-trial hearing / morning of trial
set a
trial date
Cannot make an
application to vary or discharge based on the same arguments and facts UNLESS material change in circumstances / something not brought to attention of the court
Serving evidence on defence
Where the magistrates' court sends case for trial to Crown Court:
It must set
date for Plea and Trial Preparation Hearing (PTPH) within 28 days +
Magistrates’ court will
complete a ’sending sheet’ > notice specifying offences for which defendant is being sent + Crown Court where defendant will be
tried > sent to defendant + Crown Court
Evidence must be served within:
- 50 days (if the defendant is in custody); or
- 70 days (if the defendant is on bail)
of the
date on which defendant has been sent for trial in the Crown Court
.
Draft indictment must be served by prosecutor on Crown Court officer not more than 20 business
days after serving prosecution evidence.
Pre-trial matters in the Crown Court
IF defendant
wants to enter guilty plea to indictable only matter > unable to do so at first hearing because magistrates' court has no jurisdiction to hear it
Plea and trial preparation hearing (PTPH)
main
pre-trial Crown Court hearing
IF trial is
anticipated parties are required to fill PTPH form in advance of hearing
Consists of 2 parts
1. Plea stage
If defence want to make application to dismiss charges = must do so before a plea is taken.
At
plea stage > indictment is put to defendant + they enter a plea of guilty or not guilty to each count on indictment
(arraignment)
If
defendant pleads guilty to sole count / all counts = sentence
If
defendant pleads not guilty to sole count / all counts = 'trial preparation' of hearing
.
If defendant enters
one guilty plea + one not guilty plea = prosecution will need to consider how it wishes to proceed > either sentence OR 'trial preparation’
BUT IF
unfit
to plead
If judge
determined defendant is unfit to plead > no plea
is taken
Court hold trial
with jury to determine whether defendant committed the act
(actus reus of the offence, but not mens rea) = '
trial preparation’ stage of the hearing occurs
IF found they committed can only be made to:
absolute discharge / supervision order / hospital order
2. Trial preparation stage
Used to deal with
following matters subject to question on PTPH form that advocates must complete before hearing
Directions are standardised >
court sets 4 “stage dates” with parties required to comply certain standard directions by them
a. Trial date = if not already set, will be set at the considering likely estimate of trial + witness availability.
b. Prosecution evidence = prosecution confirms if it has served all of its evidence or what is still left + when it will be served.
c. Expert evidence = If prosecution or defence intend to rely on expert evidence, directions given for service + seeking agreement between experts.
d. Witness requirements = defence must inform prosecution + set out on form prosecution witnesses they require to attend court to give evidence
Standardised directions will apply for dealing with matters such as:
Special measures
Bad character
Witness summons
Agreed facts and issues
Disputed facts and issues
Defence statement
Disclosure
Defendant's interview
Hearsay
Admissibility and legal issues
IF party
fails to comply with any directions = may be required to come to court + explain failure to do so
Further applications
Can be made:
in either
magistrates' court or Crown Court
;
at
PTPH, or another pre-trial hearing
(with the exception of a change of plea); or
on
day of trial, before trial starts
or at some convenient point during the trial.
Applications to exclude evidence or introduce otherwise inadmissible evidence
Defence may wish to exclude evidence the prosecution
proposes to adduce using s.78 PACE OR either party may want
to introduce otherwise inadmissible evidence such as bad character or hearsay
Special measures
Arrangements put in place to assist witnesses in giving evidence before a court
Types
use of screens
Live TV link
Giving evidence in private
Removing wigs and gowns by barristers and judges
Video recording of evidence in chief
Pre-recording cross-examination and re-examination
Questioning of a witness through an intermediary
Aids to communication
Witness Anonymity Orders
Automatic anonymity of complainants in sex cases
Prohibition of cross-examination by defendants in person of complainants in sex cases and of child witnesses in certain cases involving violent and sexual offences
Restricting the reporting of witnesses' identity
Eligibility
The following categories of witness are eligible for special measures:
All witnesses
aged under 18
at the time of trial
Witnesses who have a
mental disorder / significant impairment / physical disability/disorder
Witnesses in
fear / distress
about giving evidence
All adult
complainants of sexual offences
All adult
complainants in certain offences under the Modern
Slavery Act 2015
All
witnesses in a case involving a 'relevant offence
', namely serious offences, including offences of homicide or involving firearms or knives
Vulnerable defendants
Defence may
apply for measures to assist particularly vulnerable defendants
Application can be made for
defendant to give evidence via a live link if it would be in interests of justice + would improve quality of accused’s evidence
because:
accused is
under 18 + ability to participate effectively as a witness is compromised by ‘level of intellectual ability or social functioning’ OR
accused is
18 or over + has a mental disorder / significant impairment
Court can direct that vulnerable defendant is
assisted by intermediary to help communication of evidence + they are independent and owe their duty to the court
Witness summons and warrants
IF witnesses are
not keen to be witnesses + try to avoid attending court > summons can be used for person to attend on day of trial to give live evidence OR for witness to produce a document
The test for the party seeking the summons is that:
witness is
likely to be able to give evidence that is likely to be material
in
interests of justice to issue a summons
Applications to change plea
From not guilty to guilty
Defendant who has pleaded
not guilty can, at any time before jury return their verdict, ask through their Counsel that indictment be put again
+ plead guilty
From guilty to not guilty
Defendants who plead
guilty can, at any time before they are sentenced, apply to court for leave to change their plea to not guilty BUT judges exercise their discretion and sparingly
Where a defendant has been
represented properly court will reject application to vacate their guilty plea
Represented properly =
proper advice has been given to defendant / no undue pressure has been exerted on defendant / defendant’s plea was clearly unequivocal