4. Pre-Trial Hearings & Confessions

Question 1

How long does R’s duty to retain evidence last in the following situations:
1. R decides not to charge D
2. R prosecutes; D is acquitted
3. R prosecutes; D imprisoned
4. D appeals conviction

Answer 1

1. Until R decides not to prosecute
2. Until end of proceedings
3. Until D is released from custody
4. Until appeals process concludes

Question 2

What is the investigating officer’s main duty when investigating?

Answer 2

Follow all reasonable lines of enquiry

Question 3

When is R’s deadline for serving initial details, with used materials?

Answer 3

Beginning of first day of hearing

Question 4

When is R’s deadline to serve unused materials in (a) magistrates and (b) crown court?

Answer 4

(a) when D pleads not guilty and case is adjourned for summary trial
(b) D is sent for trial, or produces a voluntary bill of indictment

Question 5

True or false: D is under a duty to serve evidence potentially harmful to its case to R

Answer 5

False

Question 6

Defence Statements: Crown Court

Answer 6

Mandatory; deadline of 28 days from when R fulfils initial duty of disclosure

Question 7

Defence Statements: Magistrates Court

Answer 7

Voluntary; deadline of 10 business days from when R fulfils initial duty of disclosure. If D doesn’t file a defence statement, they can’t apply for specific disclosure.

Question 8

Consequence of failing to make a defence statement in the crown court

Answer 8

Adverse inferences.

Question 9

What must D detail in an application for specific disclosure, and how long does R have to respond?

Answer 9

D must explain why there is reasonable cause to believe R has the material, and that R is obliged to disclose the material.
R has 10 business days to respond in writing.

Question 10

How does R get evidence from 3RPs?

Answer 10

They are obliged to try and obtain it by first requesting. Failing this, they can ask the court to summon 3RP to produce the evidence.

Question 11

What is the test of public interest immunity regarding specific evidence?

Answer 11

Is there a real risk of serious prejudice to an important public interest if the material is disclosed.

Question 12

If you want proceedings to be in Welsh, where do you indicate this

Answer 12

Preparation for Effective Trial form or Plea and Trial Preparation Hearing

Question 13

What are the criteria for varying or changing a magistrates decision as to admissibility of evidence pre-trial?

Answer 13

Material change in circumstances, or the court was unaware of something able to justify change or discharge

Question 14

What two things will the magistrates do if they determine trial should be in CC?

Answer 14

1. Set a date for a Plea and Trial Preparation Hearing within 28 days in CC
2. Complete a sending sheet notifying the offences and send to D & CC

Question 15

Deadline for serving evidence on D if (a) in custody or (b) on bail

Answer 15

(a) within 50 days of being sent to trial in CC
(b) within 70 days of being sent to trial in CC

Question 16

If D pleads guilty to all counts at the PTPH, what happens?

Answer 16

Sentencing

Question 17

If D pleads not guilty in the PTPH, what happens?

Answer 17

Trial preparation

Question 18

If the judge thinks D is unfit to plead, what happens?

Answer 18

Trial preparation. If D has committed actus reus, they may be discharged or given a medical order.

Question 19

What is judicial notice, and judicial notice on enquiry

Answer 19

A judge or jury accepting something as true without proof, on enquiry is something we don’t quite know but could easily look up

Question 20

What is real evidence?

Answer 20

Tangible, physical evidence you can touch.

Question 21

What is direct evidence?

Answer 21

Evidence of D committing the actual offence, not just loitering around etc.

Question 22

What is A View?

Answer 22

Juries visiting somewhere to see evidence; their observations also become evidence.

Question 23

What is the primary principle of admissibility?

Answer 23

Evidence must be relevant.

Question 24

If evidence is inadmissible per se, what are the 7 gateways under CJA 2003 to raise it?

Answer 24

Character Attacked by D
Agreed by All Parties
False Impression Given by D
Explanatory Evidence
Relevant to a Matter in Issue
Intentionally Raised by D
Probative Value regarding a matter between D and Co-D

Question 25

Can evidence be excluded under s.76 or s.78 if it is admitted under one of the CJA 2003 gateways?

Answer 25

Yes

Question 26

Under s.78 PACE, when will evidence obtained in breach of PACE or Art.3 ECHR be excluded?

Answer 26

If the breach of PACE / ECHR was significant and it admission would have an adverse effect on the fairness of proceedings

Question 27

When will evidence be excluded under common law?

Answer 27

If it’s prejudicial effect outweighs its probative value

Question 28

What are the two heads of exclusion under s.76?

Answer 28

Oppression
Unreliability

Question 29

What is the effect of a successful s.76 application to exclude?

Answer 29

The court must exclude the evidence.

Question 30

What is Oppression under s.76?

Answer 30

Where a breach of Art.3 ECHR caused the confession.

Question 31

What is Unreliability under s.76?

Answer 31

Where something said or done by police objectively makes any confession that might follow unreliable.

Question 32

What must R do in response to a s.76 application?

Answer 32

Prove beyond reasonable doubt the evidence was not obtained by oppression or is unreliable

Question 33

When should D apply for dismissal?

Answer 33

Before pleading; after sent for trial / served with evidence

Question 34

What is the test for no case to answer?

Answer 34

If the evidence, taken at its highest, would not lead to a proper conviction.

Question 35

What are the two grounds for an abuse of process application?

Answer 35

(1) D can no longer receive a fair hearing
(2) Dismissal is necessary to protect the CJS’s integrity

Question 36

What is D’s burden of proof when arguing abuse of process?

Answer 36

Balance of probabilities

Question 37

In an abuse of process application, which ground cannot be argued in a magistrates court?

Answer 37

Dismissal is necessary to protect the CJS’s integrity

Question 38

Deadline for applying to get a confession excluded in the magistrates court

Answer 38

10 business days before trial; R has 5 business days to respond.

Question 39

True or false: magistrates can decide to hear evidence first and decide admissibility later in response to a s.78 argument

Answer 39

True

Question 40

When could the court deal with an application to exclude or introduce evidence?

Answer 40

At PTPH; between PTPH and trial; or trial day

Question 41

What is the aim of witness special measures?

Answer 41

Bring the witness into an environment best enabling them to give evidence

Question 42

Which witnesses are automatically eligible for special measures?

Answer 42

Under 18s

Question 43

Which witnesses might - not automatically - be eligible for special measures?

Answer 43

Those with a mental disorder or social impairment.

Those in fear of giving evidence where the quality of their evidence will diminish because of this

Question 44

Witnesses for which types of offence will automatically be eligible for special measures?

Answer 44

All witnesses to violent homicides; or those involving firearms or knives

Question 45

Adult complainants of which type of offence will get special measures?

Answer 45

Sexual offences, forced labour, human trafficking

Question 46

How does D change plea from not guilty to guily?

Answer 46

Ask for the indictment to be put again. Technically need the court’s permission; usually given.

Question 47

What are the grounds to change plea from guilty to not guilty?

Answer 47

Received improper advice, or under undue influence.

Or if D can show R has no evidence of an ingredient of the offence.