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(4.1) Pre-trial and confessions - Coggle Diagram

- - - - Unfit to plead?
        
        If judge has determined that D is unfit to plead (a judge can make that determination after hearing medical evidence), then no plea is taken
        
        Court must hold trial with a jury to determine whether D committed the act (i.e. AR of the offence, but not MR) and 'trial preparation' stage of hearing must take place
        
        NOTE: D who is found unfit to plead and a jury finds they have committed the act can only be made subject to:
        
        an absolute discharge
        
        supervision order
        
        a hospital order
    - - Standardised directions will apply for dealing with matters like:
        
        Special matters: directions apply for any special matters (e.g. live link + screens) needed by witness
        
        Bad character: directions apply for any bad character applications by prosecution and defence and timetables set for service of bad character applications + responses
        
        Witness summons: If witness summons is needed, details must be given and application can be made at PTPH or timetable given for making an application
        
        Agreed facts and issues: Defence must set out factual matters are agreed so they can be drafted as admissions for use at trial
        
        Disputed facts and issues: Defence must set out disputed matters with prosecution case so that issues for trial are clear
        
        Defence statement: Defence must also serve defence statement at stage 2 which sets out defence case
        
        cont:
        
        Disclosure: If there's issues relating to advance disclosure of unused material, this can be dealt with or standard directions will deal with it
        
        D's interview: Timetable will apply for prosecution and defence to agree an edited interview record for use at trial
        Hearsay: Directions will apply on service of applications to rely on hearsay evidence
        
        Admissibility and legal issues: All issues relating to admissibility of evidence and other legal issues should be notified. Directions will be given or apply on when these applications are made (e.g. at or before trial) and on service of any documents in support e.g. skeleton arguments
        
        At end of hearing parties should know:
        
        trial date
        
        timetable of any preparatory work needing completion
        
        whether case needs to be listed in court again before trial
        
        If party fails to comply with any directions, they must explain to the court why they didn't do it
- - - - Agreeing a witness statement as true by consent of the parties:
        
        S.9 Criminal Justice Act 1967:
        
        The witness's statement can be agreed as accurate and true in its written form
        
        The statement is then simply read out and carries the same weight as if the witness had attended in person, sworn (or affirmed) and given the evidence from the witness box
        
        Evidence will only be agreed in this way if there's no challenge to the evidence. If evidence is disputed, then the witness must be called and challenged orally, so that the court can see and assess the dispute being aired openly and decide upon the dispute accordingly.
        
        Agreeing any fact between the parties:
        
        S.10 Criminal Justice Act 1967:
        
        Another way to prove a fact is simply for the advocates to agree that the fact is so. Fact is reduced to writing, and both parties (lawyers not witnesses) agree and sign the agreement
      - Judicial notice:
        
        A judge is permitted to take judicial notice of a fact 'on enquiry' - simply means that judges might not know a particular fact 'off the top of their head' but can find it easily from a credible source
        
        Jurors cannot take notice on personal matters that they happen to know but are not generally known. If a juror has personal knowledge of matters relevant to the case, they should let the court know so that judge can deal with issues that may arise
    - - Real evidence - objects and things which are bought to court for inspection. Some real evidence will be in the form of documents exhibited by a witness who can vouch for their origins
        
        Direct evidence v circumstantial evidence - other way where its important classify evidence is dependent whether (i.e. evidence that a witness gives of having direct experience on the issue/circumstantial evidence)
        
        A view - occasional juries can visit a scene of crime or leave court to view an object that cannot be brought into court. Their observations becomes evidence
    - - Exclusionary rules:
        
        They are rules to protect fairness of trials to prevent evidence which is relevant but should still not be admitted because of the effect on the fairness of the trial
        
        e.g. if police acquired relevant information using an illegal phone tap, courts will use exclusionary rule to prevent use of evidence in court
        
        Weight:
        
        It's how strong/reliable/valuable an evidence is
        
        Attaching right degree of weight to a piece of evidence is a matter for the jury. Advocates will persuade the jury as to the weight they should attach to the evidence
        
        But if evidence looks problematic. judge will intervene to rule evidence is inadmissible
- - - - Test for dismissing a charge - Schedule 3 para 2(2) CDA:
        
        'Judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment) if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted
        
        R v Galbraith [1981]
        
        Judge should stop the case if:
        
        (a) where there's no evidence that the crime had been committed by D
        
        (b) where the prosecution evidence, taken at its highest is such that a properly directed jury could not properly convict on it
        
        R v (on the application of Inland Revenue Commissioners) v Crown Court at Kingston [2001]:
        
        The Divisional Court held that a judge considering an application to dismiss must take into account the whole of the evidence and not view matters in isolation from their context or other evidence; where the prosecution seeks inferences to be drawn from the evidence the judge should assess whether such inferences could properly be drawn by the jury
    - - Rule to follow per R v Galbraith [1981]
        
        If there's no evidence that the crime alleged has been committed by D, there's no difficulty and judge will stop the case
        
        Difficulty arises when there's some evidence but its inconclusive with other evidence
        
        (a) where the judge comes to the conclusion that the prosecution evidence cannot properly enable to jury to convict upon it, its his duty to stop the case
        
        (b) if the prosecution evidence can enable the jury to properly come to the conclusion that there is evidence, then the judge should allow the matter to be tried by the jury
        
        In the MC the procedure is contained in CrimPR r.24.3(3)(d) and in the CC CrimPR r.25.9(2)(e) that both provide that at the conclusion of the prosecution case, D's application/its own initiative, court can
        
        (1) acquit properly to convict, but;
        
        (2) must not do so unless the prosecutor has had an opportunity to make representations (i.e. the prosecution must be given the right to apply to such an application)
        
        Test is taken from Galbraith and there's no difference between the two. There's no obligation in the MC and CC for reasons to be given when rejecting a submission of no case to answer
    - - R v Crawley [2014]:
        
        The 1st limb: focuses on the trial process and where the court concludes that the accused would not receive a fair hearing it will stay the proceedings; no balancing exercise is required
        
        The 2nd limb: concerns integrity of the criminal justice system and applies where the court considers that the accused should not be standing trial at all, irrespective of the potential fairness for the trial itself
        
        R v Maxwell [2011]:
        
        Dyson LJ puts it like this: It's well established that the court has the power to stay proceedings in 2 categories of case:
        
        (i) where it will be impossible to give the accused a fair trial;
        
        If the court concludes that an accused cannot receive a fair trial, it will stay the proceedings
        
        (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case
        
        Court is concerned to protect integrity of the criminal justice system
        
        Here a stay is granted where the court concludes that in all circumstances a trial will offend "the court's sense of justice and propriety"
      - Examples where defence might apply to have proceedings stayed as an abuse of the process of the court:
        
        where D has been tricked.coerced into committing an offence D would not have otherwise committed
        
        where D is prosecuted despite an unequivocal promise by the prosecution that D will not be
        
        where the police have acted in such a way as to undermine public confidence in the criminal justice system and bring it into dispute, e.g. deliberately destroying evidence that would've helped the defence
        
        where prosecution has manipulated/misused the process of the court so as to deprive D of a protection afforded by law
    - - In practice, common law discretion to exclude evidence has little relevance due to wide statutory powers to exclude evidence especially S.78 and S.76 PACE
  - - - S.78 PACE concerns with the fundamental concept of fairness and is the most important means which defence can use to have prosecution evidence excluded
        
        This only applies to 'evidence which prosecution proposes to rely' so it cannot be used by prosecution or co-D to exclude evidence that D seeks to admit
        
        It's also commonly used together with S.78 PACE to exclude evidence of confessions which the prosecution seeks to rely on
        
        The key test for courts in deciding whether to exclude prosecution evidence under S.78 is whether:
        
        the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it
      - R v Quinn [1990]:
        
        Per Lord Lane CJ:
        
        The function of the judge is therefore to protect the fairness of the proceedings, and normally proceedings are fair if a jury hears all relevant evidence which either side wishes to place before it, but proceedings may become unfair if e.g. one side is allowed to adduce relevant evidence which for one reason or another the other side cannot properly challenge or meet
    - - Code C:
        
        Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers):
        
        a) Para 3.1 provides that detained suspects must be informed of:
        
        i) their rights to consult privately with a solicitor and that free independent legal advice is available;
        
        ii) their right to have someone informed of their arrest; and
        
        iii) their right to consult the Code of Practice
        
        b) Para 10.1 provides that a person whom there's grounds to suspect of an offence must be cautioned before any questions about the offence are put to them, if either the suspect's answers or silenced may be used in evidence against them
        
        c) Para 10.3 requires caution to be given on arrest
        
        d) Para 10.5 states that caution should be given in the following terms: 'you don't have to say anything. But it may harm your defence if you don't mention when questioned something you later rely on in court'
        
        e) Para 11.1A defines an interview as 'the questioning of a suspect regarding their involvement/suspected involvement in a criminal offence
        
        f) Para 11.1 requires an interview to take place at a police station except where the delay would:
        
        i) lead to interference or harm to evidence connected with an offence
        
        ii) interference with/physical harm to other people
        
        iii) serious loss/damage to property
        
        iv) lead to alerting other suspects who haven't been arrested yet
        
        v) hinder the recovery of property obtained as a result of the offence
        
        g) Para 11.15 requires juveniles (under 18s) or those with mental disorders or those who are mentally vulnerable only to be interviewed in the presence of an appropriate adult
    - - Charles v Crown Prosecution [2009]:
        
        Per Moses LJ (concerning Code C):
        
        The PACE Act and the code relating to caution are designed to protect a detainee and are important protections. They impose significant disciplines as to how a police should behave. If they are found in breach of it, its an important matter that undermines the protection of a detainee in the police station. It emphasies the general importance of breaches when exercising the judgement in S.78. Their significance must be taken into account
        
        Where breaches of the code are significant and substantial this may result in exclusion under S.78:
        
        R v Keenan - a case concerning the 'Verballing' Provisions of Code C (requirement to make accurate record of interview and for the suspect to sign the record as accurate) per Hodgson J:
        
        It's clear that not every breach/combination of breaches of the codes will justify the exclusion of interview evidence under S.76 or S.78. They must be significant and substantial
    - - Where point of law is clear from the case papers/becomes clear following initial disclosure, defence should include point of law in Defence Statement together with any authorities relied per S.6A(1)(d) Criminal Procedure and Investigations Act (CPIA) 1996)
        
        In practice D's representative will draft a. skeleton argument in support of D's application and prosecution will draft a skeleton argument opposing it
        
        Direction will be given by judge in the CC usually at Plea and Trial Preparation Hearings (PTPH) as to when S.78 application will be heard
        
        Similar directions will be given when dealing with case management at the MC
    - - What is a voir dire:
        
        It's hearing evidence on a legal argument
        
        A type of mini-trial or "a trial within a trial"
        In CC:
        
        A voir dire in the CC takes place in the absence of the jury
        
        In MC:
        
        MC are both the tribunal of fact and law and can rule on a S.78 application when it arises
        
        Timing of ruling:
        
        Interests of justice may dictate that ruling on admissibility is made as early as possible to allow D to
        
        know whether evidence forms part of the case
        
        deal with it in cross-examination and in D's evidence
        
        if appropriate makes a meaningful submission of no case to answer
        
        This is related if the disputed evidence is a confession which forms the main evidence against D
        
        As such, disputed confessions should be determined as a preliminary issue
        
        Hence, when application is under both S.76 and S.78 PACE, a voir dire should be held as a preliminary issue