3 - Pre-Trial Hearings and Confessions

Question 1

What is disclosure in a criminal investigation?

Answer 1

Disclosure involves the police or prosecuting authority collecting witness statements, documents, and other materials during a criminal investigation. The material is divided into:

• Used material: Relied upon at trial to prove the case.
• Unused material: Not relied upon at trial.

Disclosure ensures fairness by providing the defence access to relevant evidence, including any that may help their case.

Question 2

What is used material in disclosure?

Answer 2

Used material refers to the evidence the prosecution relies upon at trial to prove its case against a defendant.

It consists of:
- Statements from prosecution witnesses
- The defendant’s record of taped interview
- Documentary exhibits such as plans and diagrams relevant to proving the case

This material forms part of the case papers, and it is from these materials that the defendants will know what the case against them is.

Question 3

What are unused material in disclosure?

Answer 3

Unused material refers to evidence not relied upon by the prosecution in the trial.

It includes items such as:
- Witness statements that the prosecution is not relying upon to prove its case
- Records of previous convictions of prosecution witnesses
- Disciplinary findings against police officers

Although this material is not used in court, it may still be important to the defence as it can help undermine the prosecution’s case or support the defence’s arguments.

Question 4

What is the importance of unused material during disclosure?

Answer 4

• Unused material can be crucial for the defence in a criminal trial. Often, a case relies on witness testimony that, if believed, could convict the defendant.
• However, unused material might include evidence that undermines the credibility of those witnesses or supports the defendant’s case.
• Fairness demands that all material that might assist the defence or weaken the prosecution be disclosed to the defendant, enabling them to present it during the trial if they choose.

Question 5

What constitues full and proper disclosure?

Answer 5

• Full and proper disclosure requires that any material held by the prosecution that weakens its case or strengthens the defendant’s be disclosed to the defence.
• This principle is vital to preventing miscarriages of justice, as emphasised in R v H and C [2004].
• The prosecution must provide all relevant unused material, ensuring that the defence has access to anything that could influence the outcome of the trial.

Question 6

What are the four stages of disclosure?

Answer 6

The four stages of disclosure are:

1. Investigation stage: Duty to record and retain material during the investigation.
2. Initial duty of disclosure on the prosecution: Prosecutor’s responsibility to disclose any material that might assist the defence or undermine the prosecution.
3. Defence disclosure: Defence must provide information about their case, prompting a review of disclosure.
4. Continuing duty on the prosecution: Prosecution must keep disclosure under review throughout the case.

Question 7

What is included in the investigation stage of disclosure?

Answer 7

During the investigation stage, all material that may be relevant to the investigation must be recorded and retained.

Key individuals involved include:
- Officer in charge of the investigation: Ensures procedures are in place for recording and retaining material.
- Investigator: Follows all reasonable lines of enquiry, being fair and objective.
- Disclosure officer: Responsible for inspecting retained material and revealing it to the prosecutor and defence as necessary. All relevant material must be retained until a decision is made about whether to prosecute, and if prosecution proceeds, until the conclusion of the trial or any related appeals.

Question 8

Who must carry out the duty to retain and record relevant material under the general principles of disclosure?

Answer 8

Under the Disclosure Code of Practice, three roles are responsible for retaining and recording relevant material:

• Officer in charge of the investigation: Directs the investigation and ensures proper procedures are followed.
• Investigator: Conducts the investigation, following all reasonable lines of enquiry, both for and against the suspect.
• Disclosure officer: Examines all retained material and reveals it to the prosecutor and defence as required. In complex cases, these roles may be assigned to different individuals; in routine cases, the same person may handle multiple roles

Question 9

What does the duty to retain and record relevant information during the four general principles of disclosure include?

Answer 9

The duty to retain and record relevant material includes:

• Crime reports
• Records from tapes or telephone messages (e.g., 999 calls) containing descriptions of suspects
• Witness statements (including drafts if they differ from final versions)
• Exhibits, interview records, and experts’ reports
• Communications between the police and experts
• Records of first descriptions of suspects

Additionally, the duty includes any material casting doubt on a confession or the reliability of a witness. This duty lasts until the conclusion of the trial or appeal.

Question 10

When must relevant material be retained and recorded until (general principles of disclosure)?

Answer 10

Relevant material must be retained:

• Until a decision is made about whether to prosecute
• If proceedings commence, until the defendant is acquitted or convicted
• If convicted, until the defendant is released from custody or six months after a non-custodial sentence
• If an appeal is in progress, material must be retained until the appeal concludes
• Material casting doubt on the safety of the conviction must be disclosed even after the trial.

Question 11

What is the provision of unused material to the prosecutor?

Answer 11

Under the Disclosure Code of Practice, the disclosure officer must notify the prosecutor of every item of unused material.

This involves:
- Preparing an MG6C schedule for Crown Court cases, listing unused material
- Providing a streamlined disclosure certificate for magistrates’ court cases with an anticipated Not Guilty plea

For sensitive material, it may be listed separately or revealed in exceptional circumstances. The disclosure officer certifies compliance with the Disclosure Code of Practice.

Question 12

Under A-G’s guidelines, what should the prosecution consider in their initial duties of disclosure?

Answer 12

The prosecution must consider whether any unused material could:

• Be useful for cross-examination
• Support submissions leading to the exclusion of evidence, a stay of proceedings, or findings of incompatibility with the defendant’s ECHR rights
• Suggest explanations for the defendant’s actions
• Affect the credibility of scientific or medical evidence
• Multiple items of neutral or insignificant material, when combined, may impact the defence’s case, and must therefore be considered together.

Question 13

What are the time limits on the prosecution for initial disclosure?

Answer 13

The prosecution must serve the initial details of the prosecution case (used material) no later than the day of the first hearing, according to CrimPR Part 8.

These details must provide sufficient information for:
- Plea
- Venue for trial (either-way offences)
- Case management
- Sentencing

For unused material, the duty arises:
- In the magistrates’ court after a Not Guilty plea
- In the Crown Court after the case is sent for trial or following a Voluntary Bill of Indictment.

Question 14

What is the common law duty of disclosure?

Answer 14

Even if the statutory duty of disclosure has not yet arisen, the prosecution may be required to disclose material that assists the defence in preparing their case or at a bail hearing.

This is known as the common law duty of disclosure and exists to promote justice and fairness in the early stages of a criminal case.

Question 15

What happens regarding disclosure in a summary trial?

Answer 15

In a summary trial (magistrates’ court):

• If the defendant pleads Not Guilty and the case is adjourned for trial, the court will set a date for any remaining prosecution evidence to be served.
• If initial disclosure of unused material has not been provided, the court will give a date for its completion.

Prosecutors must serve initial disclosure in time to ensure the trial date is effective.

Question 16

What happens regarding disclosure in a Crown Court trial?

Answer 16

• In a Crown Court trial, a Plea and Trial Preparation Hearing (PTPH) is held, typically 28 days after sending.
• The prosecution must serve sufficient evidence before or at the PTPH to allow effective case management. Dates for further evidence and compliance with initial disclosure are set at this hearing.
• The prosecution has a continuing duty to review disclosure throughout the proceedings. The defence must provide a defence statement, which enables the prosecution to reassess disclosure in light of the defence case.

Question 17

What is a defence statement?

Answer 17

A defence statement is a written statement required in Crown Court under s.5 Criminal Procedure and Investigations Act (CPIA) 1996.

• It sets out the nature of the accused’s defence.
• It should not be confused with the defendant’s proof of evidence to their legal advisers, which is privileged and not disclosable to the prosecution.
• Unlike prosecution disclosure, the defence has no duty to serve material helpful to the prosecution; the statement is solely about explaining the defence case with reasonable clarity.

Question 18

What are the contents of a defence statement?

Answer 18

According to s.6A CPIA 1996, a defence statement must include:
- The nature of the accused’s defence, including any particular defences.
- Matters of fact on which the accused takes issue with the prosecution.
- Reasons for disputing each matter of fact.
- Particulars of the matters of fact relied upon for the defence.
- Any point of law, including admissibility of evidence or abuse of process, and any authority relied upon.

Question 19

What additional information must a defence statement that discloses an alibi include?

Answer 19

A defence statement disclosing an alibi must include:

• The name, address, and date of birth of any witness supporting the alibi, or as many of those details as known at the time.
• Any information that may assist in identifying or locating a witness whose details are unknown.

Question 20

What are the time limits for defence statements in the crown court?

Answer 20

A defence statement must be served within 28 days of the prosecution’s compliance with its initial disclosure duty (CrimPR r.15.4(2)).

The time limit can be extended only if an application is made within the original time limit and the court is satisfied that it would be unreasonable to require compliance within 28 days.

Question 21

What are the time limits for defence statements in the magistrates’ court?

Answer 21

A defence statement is not compulsory in the magistrates’ court.

If a defendant chooses to serve one, they must do so within 10 business days of the prosecution complying with its initial disclosure duty.

Failure to serve a defence statement will prevent the defendant from applying for specific disclosure.

Question 22

What does the judicial disclosure protocol, paragraph 17, state about defence statements?

Answer 22

The Judicial Disclosure Protocol para 17 emphasises the importance of timely defence statements, stating:

• Timely service of a defence statement is essential for proper consideration of disclosure issues before trial.
• Defence statements should provide a clear and detailed exposition of the issues of fact and law.
• A defence statement merely asserting the defendant’s innocence does not comply with the CPIA.

Question 23

What must a defence statement set out in accordance with CPIA s.6A?

Answer 23

A defence statement must set out:

• The nature of the defence (e.g., alibi).
• Matters of fact on which the defendant disputes the prosecution’s account.
• Reasons for disputing these facts (e.g., the defendant was not present).
• Any points of law and authority the defence intends to rely on (e.g., breach of Code D on identification, or exclusion under s.78 PACE).
• Details of alibi witnesses (e.g., name, address, and date of birth).

Question 24

What must the defendant disclose about witnesses under their duty to notify the intention to call defence witnesses?

Answer 24

The defendant must disclose to the court and the prosecutor a notice that includes:

• Whether the defendant intends to call any witnesses (excluding the defendant).
• The name, address, and date of birth of each witness, or any available information that may help locate and identify the witness.
• Alibi witnesses must be included in the defence statement and do not need to be repeated in this notice.
• This notice must be given within 10 business days in the magistrates’ court or 28 days in the Crown Court after the prosecution’s initial disclosure compliance.

Question 25

What are the possible failures by the defence in relation to disclosure?

Answer 25

Possible defence disclosure failures include:

• Failing to serve a defence statement.
• Failing to serve the statement within required time limits.
• Serving a statement that lacks adequate detail (e.g., not stating the defence relied on or excluding an alibi witness called at trial).
• Presenting a defence at trial that differs from the defence statement.
• Failing to notify the intention to call defence witnesses.

Question 26

What are the consequences of defence disclosure failure?

Answer 26

Consequences of disclosure failure under s.11 CPIA include:

• The jury may draw adverse inferences from the defendant’s failure, but a defendant cannot be convicted solely or mainly on these inferences.
• The prosecution or co-defendant can comment on the failure without the court’s leave, except for points of law.
• The judge may warn the defendant at a pre-trial hearing that non-compliance may result in adverse comments or inferences.
• Inadequate or late defence statements may also lead to prosecution challenges or court directions for an adequate statement.

Question 27

What do the additional disclosure issues include?

Answer 27

The additional disclosure issues include:

• The continuing duty of disclosure by the prosecution
• Applications for specific disclosure
• Failure to disclose by the prosecution
• Third-party disclosure
• Public interest immunity

Question 28

What is the continuing duty of disclosure by the prosecution?

Answer 28

• The continuing duty of disclosure by the prosecution requires that disclosure be kept under review.
• After the service of a defence statement, the prosecution must review the case in light of the issues raised, ensuring that disclosure is carried out properly.
• This duty persists until the defendant is convicted, acquitted, or the case is dropped.
• Material must be disclosed even if discovered late in the proceedings, such as after the close of the prosecution’s case at trial.
• The duty to disclose lasts throughout the entire case, as specified in Section 7A(2) of the Criminal Procedure and Investigations Act (CPIA) 1996.

Question 29

How does the defence statement assist with the prosecution’s duty of disclosure?

Answer 29

The defence statement helps the prosecution by outlining the defence to a particular charge, which prevents the prosecution from being ambushed with a surprise defence at trial.

It allows prosecutors, in conjunction with disclosure officers and investigators, to revisit disclosure based on any issues raised by the accused. This ensures that disclosure is informed and effective.

According to the Attorney General’s Guidelines para 39,
- ‘Defence Statements are intended to help focus the attention of the prosecutor, court, and co-defendants on the relevant issues to identify exculpatory unused material.’

Question 30

What does Section 7A(2) of the CPIA 1996 say about the continuing duty of disclosure?

Answer 30

Section 7A(2) of the Criminal Procedure and Investigations Act (CPIA) 1996 states that the prosecutor has a duty to keep disclosure under review throughout the case, particularly after the defence statement has been served.

Question 31

What are applications for specific disclosure, and what are they commonly known as?

Answer 31

Applications for specific disclosure are made by the defence when they have reasonable cause to believe that prosecution material, which should have been disclosed under s.7A(5) CPIA, has not been disclosed.

These applications are commonly known as ‘section 8 applications’ or ‘applications for specific disclosure’.

Question 32

What is required to make an application for specific disclosure?

Answer 32

To make an application for specific disclosure, the defendant must have:

• Served a defence statement in either the magistrates’ court or Crown Court.
• The prosecutor must have either provided further disclosure following the Defence Statement or notified the defendant that no further disclosure is required under s.7A(5) CPIA.
• Failure to serve a defence statement, even in the magistrates’ court, where it is not statutorily required, prevents the defendant from making a specific disclosure application.

Question 33

How should defence requests for specific disclosure be handled?

Answer 33

• According to the Judicial Disclosure Protocol para 26, defence requests for disclosure of particular unused prosecution material, which are not related to any issues identified in the defence statement, should be rejected.
• Therefore, the defence statement must clearly set out the issues before applying under s.8 for specific disclosure.

Question 34

What are the consequences of disclosure failure by the prosecution?

Answer 34

• The defence may apply to stay the indictment on the grounds of abuse of process.
• A conviction may be quashed on appeal if found unsafe.
• There may be delays, wasted costs, and refusal to extend custody time limits.
• Evidence may be excluded due to unfairness.
• Before formal applications, the defence should write to the prosecution specifying the material they seek.

Question 35

What is third-party disclosure?

Answer 35

• Third-party disclosure involves relevant material held by entities such as local authorities, health and education authorities, or financial institutions.
• These third parties do not have a duty of disclosure under CPIA.
• If the material might undermine the prosecution or assist the accused, the prosecution should take appropriate steps to obtain it.
• Investigators should notify third parties of the investigation and request that relevant material be retained.
• Speculative inquiries are not required; there must be reason to believe the third party holds relevant material.
• If disclosure is refused, the prosecution may seek a summons under s.2 Criminal Procedure (Attendance of Witnesses) Act 1965 (Crown Court) or s.97 Magistrates’ Court Act 1980 (magistrates’ court).

Question 36

What is public interest immunity?

Answer 36

Public interest immunity (PII) applies when the prosecution must disclose material under s.3 CPIA but believes doing so would cause serious prejudice to an important public interest.

The prosecution must apply to the judge for non-disclosure in the public interest.

The court will assess the material and may withhold disclosure to the minimum extent necessary, ensuring the defendant still receives a fair trial.

Sensitive material must be recorded in the Sensitive Material schedule, detailing:
- The sensitivity of the material
- The consequences of disclosure
- The relevance to the case
- The implications if disclosed
- Whether disclosure can occur without compromising its sensitivity

Question 37

What will the court consider regarding public interest immunity?

Answer 37

The court will consider whether the material needs to be withheld to the minimum extent necessary to protect the public interest while ensuring the defendant receives a fair trial.

The court balances protecting sensitive information with the defendant’s right to disclosure for a fair trial.

Question 38

What are pre-trial matters and when will they be considered?

Answer 38

Pre-trial matters are issues resolved before the trial, including setting trial dates, applying for witness summonses, and resolving legal arguments.

These matters are considered:
- At the first hearing.
- At a hearing before the trial date (e.g., PTPH).
- On the day of the trial itself, before proceedings begin.

Pre-trial matters can be indicated on the PET (Preparation for Effective Trial) form (Magistrates’ Court) or PTPH form (Crown Court).

Question 39

What are ‘pre-trial matters’ in the magistrates’ court, Crown Court, and The Criminal Procedure Rules (CPR)?

Answer 39

• In simple cases in the magistrates’ court, pre-trial matters can often be resolved at the first hearing.
• In more complex cases, further hearings may be required.
• In the Crown Court, there is always at least one hearing (the PTPH) for pre-trial matters.
• The Criminal Procedure Rules emphasise resolving all pre-trial matters before the day of trial where possible, to ensure readiness for trial without delay.

Question 40

What are pre-trial matters in the magistrates’ court?

Answer 40

• At the first hearing, the court addresses case management issues, with a PET form completed by both parties.
• The court gives directions for service of documents and may set a timetable for resolving legal issues.
• The trial date is set.
• Pre-trial rulings on evidence admissibility are binding unless there’s a material change in circumstances or something was overlooked in the initial ruling.

Applications to vary or discharge rulings can only be made if:
- There has been a material change in circumstances.
- Something relevant was not brought to the court’s attention during the initial ruling.

Question 41

When can and can’t applications be made regarding pre-trial matters in the magistrates’ court?

Answer 41

Applications to vary or discharge a pre-trial ruling (e.g., on admissibility of evidence) can only be made if:
- There has been a material change in circumstances since the ruling was made.
- There was something that was not brought to the attention of the court during the original application that could justify varying or discharging the ruling.

Applications cannot be based on the same facts and arguments previously used to obtain the original ruling.

Question 42

How is evidence served on the defence at the magistrates court?

Answer 42

A Plea and Trial Preparation Hearing (PTPH) must be scheduled within 28 days of the case being sent to the Crown Court.

The magistrates’ court completes a sending sheet, listing the offences and the Crown Court where the defendant will be tried.

Evidence must be served on the defence within:
- 50 days if the defendant is in custody.
- 70 days if the defendant is on bail.

The evidence is uploaded to the Crown Court Digital Case System, where all documents related to the case are stored.

A draft indictment must be served by the prosecutor on the Crown Court officer within 20 business days after the prosecution evidence is served.

Question 43

What are pre-trial matters in the Crown Court?

Answer 43

There are no further hearings in the magistrates’ court for:
- Indictable-only matters.
- Triable either way matters where the defendant is sent for trial or elects Crown Court trial.

The Plea and Trial Preparation Hearing (PTPH) is the main pre-trial hearing, and it must take place within 28 days of the magistrates’ court sending the case.

More complex cases in the Crown Court may require additional pre-trial hearings to ensure the case is trial-ready.

A defendant wishing to enter a guilty plea to an indictable-only matter cannot do so in the magistrates’ court. They may request an early guilty plea hearing in the Crown Court before the PTPH to gain maximum credit for their plea.

Question 44

What is a Plea and Trial Preparation Hearing (PTPH)?

Answer 44

The PTPH is the primary pre-trial hearing in the Crown Court.
- It is scheduled within 28 days after the magistrates’ court sends the case to the Crown Court.
- The PTPH form must be completed by both parties in advance.

The PTPH consists of two stages:
- Plea stage: The defendant enters a plea of guilty or not guilty for each count on the indictment.
- Trial preparation stage: If the plea is not guilty, the hearing moves to trial preparation.

The PTPH aims to ensure that all matters are addressed in advance of the trial, preventing unnecessary delays on the trial day.

Question 45

What happens at the plea stage?

Answer 45

The indictment is put to the defendant, and they must enter a plea for each count:
- Guilty: The case proceeds directly to sentencing.
- Not guilty: The court moves to the trial preparation stage.
- Mixed plea (where some counts are guilty, and others are not guilty):

The prosecution must decide whether to proceed with a trial or move to sentencing for the guilty counts.

If the defendant wishes to dismiss the charges, they must make an application to dismiss before entering a plea.

Question 46

What happens if a defendant is unfit to plead?

Answer 46

If a judge determines that a defendant is unfit to plead, based on medical evidence, no plea is taken.

A jury trial will still take place to determine whether the defendant committed the actus reus (the act) of the offence, but not the mens rea (mental element).

If the jury finds that the defendant committed the act, the court may impose:
- An absolute discharge.
- A supervision order.
- A hospital order.

Question 47

What happens during the trial preparation stage?

Answer 47

The court addresses matters necessary to ensure the trial proceeds smoothly. This includes:

Setting the trial date, considering the trial length and witness availability.

Confirming whether the prosecution has served all evidence, and if not, when the remaining evidence will be served.

Directions regarding expert evidence if it is to be used by either party.

Witness requirements: The defence must indicate which prosecution witnesses they want to attend and estimate the time required to question them. They must also inform the court of any defence witnesses they intend to call.

Standard directions for special measures for vulnerable witnesses, bad character applications, and witness summonses.

Dealing with disputed facts and legal issues, with directions on when applications (e.g., on admissibility) must be made and how documents, such as skeleton arguments, should be submitted.

Question 48

What are the standardised directions during the trial preparation stage?

Answer 48

Standardised directions cover essential trial preparation issues, ensuring that parties comply with the court’s timetable. Key directions include:

• Special measures for witnesses (e.g., live link or screens).
• Bad character applications from both the prosecution and defence.
• Timelines for serving witness summonses and responding to bad character applications.
• Agreed facts: The defence must outline any agreed facts for admission at trial.
• Disputed facts: The defence must clarify disputed issues to narrow the scope of the trial.
• The defence statement, setting out the defence case, must be served by stage 2 of the directions.
• Issues of disclosure relating to unused material must be addressed.
• Edited interview records must be agreed upon by both parties.
• Hearsay evidence applications must follow specific service timelines.

Question 49

What should be the outcome of a pre-trial hearing, and what happens if a party fails to comply with directions?

Answer 49

At the end of the pre-trial hearing, the following should be clear:
- Trial date: The date the trial will take place.
- Timetable: Deadlines for any remaining preparatory work to be completed.
- Further hearings: Whether another hearing is needed before the trial or if all pre-trial issues are resolved.

It may not always be obvious if further hearings are needed, but this may become clear later.

If a party fails to comply with court directions:
- They may be required to appear in court to explain why they failed to meet the deadlines.
- The court’s expectation is that no further hearings should be needed unless absolutely necessary.
- Any remaining issues should be either resolved before the trial or addressed on the trial day.

Question 50

When can further applications be made after the PTPH, and under what conditions might no further hearings be required?

Answer 50

In some cases, no further hearings are needed post-PTPH, either because:
- There is nothing further to determine, or
- The PTPH judge decides that the trial judge can deal with any remaining matters on the day of trial, usually before the trial begins.

Further applications could be made:
- In either the magistrates’ court or Crown Court,
- At the PTPH or another pre-trial hearing (except for a change of plea),
- On the day of trial, either before it starts or during a convenient point in the trial.

Question 51

What are the options for excluding evidence or introducing otherwise inadmissible evidence, and when are such applications most commonly dealt with?

Answer 51

The defence may apply to exclude prosecution evidence using s.78 of the Police and Criminal Evidence (PACE) Act 1984.

Either party may apply to introduce otherwise inadmissible evidence, such as:
- Bad character or hearsay.

These applications can be dealt with:
- At the PTPH (rare, as the judge typically lacks time),
- At a hearing between the PTPH and trial (less common),
- On the day of trial, before it starts (most common).

Question 52

What are special measures, and what is their purpose in criminal court proceedings?

Answer 52

Special measures are arrangements to help witnesses give their evidence in a way that allows them to testify as effectively as possible.

They are designed to assist:
- Children,
- Vulnerable individuals, or
- Those experiencing fear or distress about testifying.

The court must consider which measures will best maximise the quality of the witness’s evidence.

For example, using a screen to shield a witness from the defendant is not a presumption of guilt; it is simply intended to help the witness give their best evidence. The jury must be informed of this if a screen is used.

Question 53

What types of special measures are available under the Youth Justice and Criminal Evidence Act 1999?

Answer 53

Under the Youth Justice and Criminal Evidence Act (YJCEA) 1999, the following special measures are available to help witnesses give evidence:

• Screens to shield the witness from the defendant and the public gallery (s.23 YJCEA).
• Live TV link to allow the witness to testify from a different room (s.24 YJCEA).
• Giving evidence in private by clearing the public gallery (s.25 YJCEA).
• Removal of wigs and gowns worn by judges and barristers (s.26 YJCEA).
• Video recording of evidence in chief (s.27 YJCEA).
• Pre-recording of cross-examination and re-examination (s.28 YJCEA, partially in force).
• Questioning through an intermediary to assist communication (s.29 YJCEA).
• Aids to communication for witnesses who require additional support (s.30 YJCEA).

Note: Intermediaries and communication aids are not available for witnesses who qualify for special measures solely due to fear, but the other measures are.

Question 54

Who is eligible for special measures under the Youth Justice and Criminal Evidence Act 1999?

Answer 54

The YJCEA 1999 (s.16-s.18) sets out eligibility criteria for special measures:

All witnesses under 18 at the time of trial (or video recording) are automatically eligible (s.16 YJCEA).

Witnesses with:
- A mental disorder,
- Significant impairment of intelligence or social functioning, or
- A physical disability or disorder, if the court believes these would diminish the quality of their evidence (s.16 YJCEA).

Witnesses in fear or distress about testifying, if the court believes it would affect the quality of their evidence (s.17 YJCEA).

Adult complainants in sexual offence cases (s.17 YJCEA).

Adult complainants in cases of modern slavery, including forced labour and trafficking (Modern Slavery Act 2015).

Witnesses in cases involving relevant offences like serious violence, homicide, or firearms offences (s.17 and Sch 1A YJCEA).

Question 55

What additional special measures are available beyond those outlined in the Youth Justice and Criminal Evidence Act 1999?

Answer 55

Additional special measures that may be put in place to protect witnesses include:

• Witness Anonymity Orders (Coroners and Justice Act 2009, Part 3 Chapter 2).
• Automatic anonymity for complainants in sexual offence cases (Sexual Offences (Amendment) Act 1992).
• Prohibition of cross-examination by defendants in person for complainants in sexual offences and child witnesses in certain violent and sexual offence cases (YJCEA ss.34 to 38).
• Restrictions on reporting witnesses’ identities (YJCEA s.46).

Question 56

What measures can be taken to assist vulnerable defendants in criminal trials?

Answer 56

In cases involving vulnerable defendants, the defence can apply for measures to facilitate their effective participation in the trial, such as:
- The defendant giving evidence via a live link.

The court must be satisfied that:
- The live link would improve the quality of the defendant’s evidence, and
- It would be in the interests of justice.

This applies if:
- The accused is under 18, with compromised intellectual ability or social functioning (s.33A(4) YJCEA 1999), or
- The accused is 18 or over and has a mental disorder or significant impairment of intelligence and social functioning (s.33A(5) YJCEA 1999).

The court may also direct that the defendant be assisted by an intermediary, especially in cases where they have comprehension or communication difficulties.

Question 57

What is the role of an intermediary in assisting vulnerable defendants or witnesses in court?

Answer 57

An intermediary assists with the communication of evidence, helping defendants or witnesses understand the proceedings.

Their role includes:
- Assisting vulnerable defendants with comprehension or communication issues, such as those with learning difficulties.
- Helping young witnesses or witnesses with learning difficulties by advising the court on which types of questions might confuse them.
- Standing near the witness or defendant during questioning and stepping in when miscommunication occurs.
- Intermediaries are independent and have a duty to the court, not to either party.

Question 58

What is a witness summons, and when might one be issued?

Answer 58

A witness summons can be issued when witnesses are unwilling to attend court, for example:
- When they are giving evidence against a notorious and dangerous criminal,
- When the witness holds information they believe should remain confidential.

The summons can compel the witness to:
- Attend court to give live evidence on the day of the trial, or
- Produce a document.
Both the Crown Court and magistrates’ court can issue a witness summons.

The test for issuing a summons includes:
- The witness is likely to give material evidence or produce a material document.
- It is in the interests of justice to issue the summons.

Question 59

What can the court do if a witness disobeys a witness summons?

Answer 59

If a witness disobeys the summons without a just excuse and does not attend, the court can:
- Issue a warrant for their arrest,
- Punish the failure as contempt of court.

Question 60

Can a defendant change their plea from not guilty to guilty, how is it done, and why might a defendant be likely to do this?

Answer 60

A defendant can change their plea from not guilty to guilty at any time before the jury returns their verdict.

The defendant asks through their Counsel that the indictment (or charge sheet in magistrates’ court) be put again.

The clerk reads the indictment, and the defendant can then plead guilty.

This change usually occurs before trial, but can happen midway through a trial if the defendant wishes to end the process.

Common reasons for a change of plea include:
- Tactical reasons, or
- Realisation that prosecution witnesses will attend to give evidence.

Strictly speaking, leave of the judge is required to have the indictment put again.

In the Crown Court, if the jury is already in charge of the case, they should be directed to return a formal guilty verdict.

Question 61

How can a defendant to change their plea from guilty to not guilty?

Answer 61

Changing a plea from guilty to not guilty is significantly more difficult than the reverse.

A defendant can apply to change their plea before they are sentenced, but judges should use this discretion judicially and sparingly.

Even if the plea was unequivocal, the court still has discretion to allow it to be changed.

Courts will invariably reject the application if the defendant was properly represented, meaning:
- The defendant received proper advice,
- No undue pressure was exerted,
- The plea was clearly unequivocal (the defendant agrees with all points of the indictment and takes full responsibility for his/her actions).

Question 62

What are two common situations where the court may apply its discretion to prevent a defendant from changing their verdict from guilty to not guilty?

Answer 62

Two common scenarios where this discretion may apply are:
- The prosecution has no evidence of an essential element of the offence,
- The defendant was placed under undue pressure or was misadvised by their legal team.

Applications of this nature often involve the defendant waiving legal privilege to establish the nature of the advice they received.