4. Pre-Trial Hearings & Confessions Flashcards
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
- Until R decides not to prosecute
- Until end of proceedings
- Until D is released from custody
- Until appeals process concludes
What is the investigating officer’s main duty when investigating?
Follow all reasonable lines of enquiry
When is R’s deadline for serving initial details, with used materials?
Beginning of first day of hearing
When is R’s deadline to serve unused materials in (a) magistrates and (b) crown court?
(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
True or false: D is under a duty to serve evidence potentially harmful to its case to R
False
Defence Statements: Crown Court
Mandatory; deadline of 28 days from when R fulfils initial duty of disclosure
Defence Statements: Magistrates Court
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.
Consequence of failing to make a defence statement in the crown court
Adverse inferences.
What must D detail in an application for specific disclosure, and how long does R have to respond?
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.
How does R get evidence from 3RPs?
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.
What is the test of public interest immunity regarding specific evidence?
Is there a real risk of serious prejudice to an important public interest if the material is disclosed.
If you want proceedings to be in Welsh, where do you indicate this
Preparation for Effective Trial form or Plea and Trial Preparation Hearing
What are the criteria for varying or changing a magistrates decision as to admissibility of evidence pre-trial?
Material change in circumstances, or the court was unaware of something able to justify change or discharge
What two things will the magistrates do if they determine trial should be in CC?
- Set a date for a Plea and Trial Preparation Hearing within 28 days in CC
- Complete a sending sheet notifying the offences and send to D & CC
Deadline for serving evidence on D if (a) in custody or (b) on bail
(a) within 50 days of being sent to trial in CC
(b) within 70 days of being sent to trial in CC
If D pleads guilty to all counts at the PTPH, what happens?
Sentencing
If D pleads not guilty in the PTPH, what happens?
Trial preparation
If the judge thinks D is unfit to plead, what happens?
Trial preparation. If D has committed actus reus, they may be discharged or given a medical order.
What is judicial notice, and judicial notice on enquiry
A judge or jury accepting something as true without proof, on enquiry is something we don’t quite know but could easily look up
What is real evidence?
Tangible, physical evidence you can touch.
What is direct evidence?
Evidence of D committing the actual offence, not just loitering around etc.
What is A View?
Juries visiting somewhere to see evidence; their observations also become evidence.
What is the primary principle of admissibility?
Evidence must be relevant.
If evidence is inadmissible per se, what are the 7 gateways under CJA 2003 to raise it?
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
Can evidence be excluded under s.76 or s.78 if it is admitted under one of the CJA 2003 gateways?
Yes
Under s.78 PACE, when will evidence obtained in breach of PACE or Art.3 ECHR be excluded?
If the breach of PACE / ECHR was significant and it admission would have an adverse effect on the fairness of proceedings
When will evidence be excluded under common law?
If it’s prejudicial effect outweighs its probative value
What are the two heads of exclusion under s.76?
Oppression
Unreliability
What is the effect of a successful s.76 application to exclude?
The court must exclude the evidence.
What is Oppression under s.76?
Where a breach of Art.3 ECHR caused the confession.
What is Unreliability under s.76?
Where something said or done by police objectively makes any confession that might follow unreliable.
What must R do in response to a s.76 application?
Prove beyond reasonable doubt the evidence was not obtained by oppression or is unreliable
When should D apply for dismissal?
Before pleading; after sent for trial / served with evidence
What is the test for no case to answer?
If the evidence, taken at its highest, would not lead to a proper conviction.
What are the two grounds for an abuse of process application?
(1) D can no longer receive a fair hearing
(2) Dismissal is necessary to protect the CJS’s integrity
What is D’s burden of proof when arguing abuse of process?
Balance of probabilities
In an abuse of process application, which ground cannot be argued in a magistrates court?
Dismissal is necessary to protect the CJS’s integrity
Deadline for applying to get a confession excluded in the magistrates court
10 business days before trial; R has 5 business days to respond.
True or false: magistrates can decide to hear evidence first and decide admissibility later in response to a s.78 argument
True
When could the court deal with an application to exclude or introduce evidence?
At PTPH; between PTPH and trial; or trial day
What is the aim of witness special measures?
Bring the witness into an environment best enabling them to give evidence
Which witnesses are automatically eligible for special measures?
Under 18s
Which witnesses might - not automatically - be eligible for special measures?
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
Witnesses for which types of offence will automatically be eligible for special measures?
All witnesses to violent homicides; or those involving firearms or knives
Adult complainants of which type of offence will get special measures?
Sexual offences, forced labour, human trafficking
How does D change plea from not guilty to guily?
Ask for the indictment to be put again. Technically need the court’s permission; usually given.
What are the grounds to change plea from guilty to not guilty?
Received improper advice, or under undue influence.
Or if D can show R has no evidence of an ingredient of the offence.
