8. Case Management and Pre-Trial Hearings

Question 1

Magistrates Trial: When are case management directions generally given?

Answer 1

Generally, same hearing that the defendant enters their plea or a consequent hearing (Case Management hearing or pre-trial review)

Question 2

Magistrates Trial: How long do magistrates give to prepare for trial? Does this vary when experts are involved?

Answer 2

8 weeks (14 where expert evidence is required)

Question 3

If a witness will not confirm their attendance / refuses to do so, what options exist for the defence?

Answer 3

The defendant can request the court to issue a witness summons

Question 4

When will the court issue a witness summons (criteria)

Answer 4

Court will issue this summons if it is satisfied the witness (1) can give material evidence and (2) it is in the interests of justice for summons to be issued

Question 5

CC or MC: Need the defence alert the court / prosecution about witnesses they intend to call?

Answer 5

Under s 6C of the Criminal Procedure and Investigations Act (CPIA) 1996, a defendant must serve on the CPS a notice setting out the names, addresses and dates of birth of any witnesses they intend to call to give evidence.

Question 6

When does the defence have to provide CPS with their witness list?

Answer 6

Defendant has 28 days from the date on which the prosecutor purports to comply with s 3 CPIA 1996 to comply with s6C (28 days from IPDC)

Question 7

Need the defence serve CPS with the statements of the witnesses they intend to call?

Answer 7

In criminal proceeds, defendant does not need to serve statements taken from witnesses on CPS unless the witness is an expert

Question 8

If a case is being funded by a representation order, are there any restrictions on the use of expert witnesses?

Answer 8

No, but DS must obtain consent from the LAA prior to instructing the expert

Question 9

If a witness cannot attend trial, what other options are there? For which witnesses does this apply?

Answer 9

A witness statement can be admitted as evidence - when the witness is providing evidence of facts NOT IN DISPUTE

Question 10

Requirements for a witness statement to be admissible

Answer 10

1. signed and dated
2. contains a declaration of truth (including understanding of liability)
3. A copy has been served on other parties in the case; and
4. none of the other parties have objected within 7 days
5. contains matters which would have been admissible had the witness given oral evidence

Question 11

Requirements for the submission of documentary evidence to be valid

Answer 11

Any documentary evidence (ie. plans or photographs where the crime occurred) should be verified by a witness statement who prepared plan / took photographs

Question 12

What does IDPC consist of?

Answer 12

Material CPS is going to rely on will be supplied to D’s solicitor as initial details of the prosecution case (IDPC)

Question 13

Requirements imposed in the MC by ‘Transforming Summary Justice’ Characteristics

Answer 13

1. early and effective case prep
2. disclosure of unused material
3. clear expectations of effectiveness at first hearing
4. clear expectations of trial readiness

Question 14

Defendant charged with an indictable only offence AND a summary offence / either-way offence - which court(s) will the defendant be tried in?

Answer 14

1. The indictable only offence must be tried in the CC
2. The summary only offence will ALSO be sent to the CC IF:
   - summary or either-way offence is related to indictable-only offence
   - summary offence is punishable with imprisonment, or involves obligatory or discretionary disqualification from driving

Question 15

If the defendant is charged with multiple offences (eg. one indictable and one summary) where is the venue allocation decision made?

Answer 15

The initial sending hearing in the MC

Question 16

If, in the sending hearing in the MC, the MC are satisfied that the offence is indictable - where will they send the case (and next steps)

Answer 16

1. MC will set a date for PTPH at CC (or preliminary CC hearing)
2. Will remand D on bail or in custody until their appearance

Question 17

When will a defendant charged with an either-way offence and summary offence be sent to the CC for both offences?

Answer 17

Summary offence must be:
1. those of common assault, taking a conveyance without consent, driving whilst disqualified or criminal damage can be tried in the Crown Court if offence is founded on same facts as the either-way (or part of a series of offences of a similar character)
2. those which are punishable with prison time or disqualification from driving related to the either-way offence can also be tried in the Crown Court

Question 18

Can the Crown Court sentence for a summary offence (if sent with an either-way / indictable-only offence)

Answer 18

Yes, IF on conviction for the either-way offence, D pleads guilty to the summary offence (and sentencing powers of CC limited to that of magistrates)
BUT - if D is acquitted on the either-way offence OR pleads not-guilty to summary only offence, this must be remitted back to the magistrates’ court for trial

Question 19

When is a preliminary hearing required in the CC?

Answer 19

1. Indictable only offences when:
2. case management issues exist that needs to be resolved
3. trial likely to last longer than 4 weeks
4. desirable to set an early trial date
5. D under 18
6. likely to be a guilty plea and defendant could be sentenced at preliminary hearing

Question 20

MC: If defence decides to serve a defence statement on CPS, deadline:

Parties to be served on:

Answer 20

10 days from CPS compliance with their initial disclosure requirements

Served on CPS and a copy sent to Court

Question 21

CC: Deadline for serving a defence statement on CPS

Answer 21

20 business days from the service of unused CPS material

Question 22

If the defence is required to serve a defence statement but anticipates it will take longer than the prescribed time to do so (after CPS disclosure), what options do they have?

Answer 22

Apply to the court for a longer period

Question 23

Consequence of a defendant not filing a defence statement in the CC:

Answer 23

The court will be able to draw an adverse inference against the defendant

Question 24

when SHOULD the defence opt to serve a defence statement in the MC?

Answer 24

If the defendant thinks that CPS will be able to disclose unused material as a result of information disclosed in the defendant statement (ie. DS contains facts CPS was not aware of)

Question 25

Contents of the defence statement:

Answer 25

a. sets out nature of defence and particular defences
b. matters of fact disagreed with the CPS and why
c. particulars of the matters of fact and which the D will rely on in their defence
d. any points of law that D wishes to take to trial (and legal authority they will rely on )
e. for ALIBI defence: name, address and date of birth of alibi witness (or as many of these are known)

Question 26

Defendant’s approval of the Defence Statement - how is this given?

Answer 26

The court will assume it is given once it is served / unless it is contested

• so D’s S should make efforts to have the defendant approve the contents and keep a copy on file

Question 27

Faults in the Defence Statement that will allow adverse inferences to be drawn:

Answer 27

a. failing to provide one
b. late service
c. serving one that is incomplete
d. serving one which is inconsistent with defence used at trial
e. failing to update DS

Question 28

‘Reward’ for a defendant providing a defence statement:

Answer 28

the CPS must
review its initial disclosure of unused material and determine if there is any further unused material in its possession which, in light of the matters contained in the defence statement,
might now be deemed capable of undermining the case for the prosecution or of assisting the case for the defendant (CPIA 1996, s 7A).

Question 29

If D serves a DS but CPS does not provide any additional unused material - what can D do about this?

Answer 29

If D has specifically outlined the evidence they consider CPS has in its possession which is not currently disclosed - they may apply to the court to have CPS disclose this

Question 30

Test which must be satisfied for the defence to obtain unused CPS material

Answer 30

if (1) a non guilty plea is entered and (2) the test in s 3 CPIA 1996 is satisfied: ‘If it might ‘reasonably be considered capable of undermining the case for the prosecution… or of assisting the case for the accused.’

CPS will normally send D’s solicitor a schedule of non-sensitive unused material and copies of items which satisfy the s 3 test

Question 31

If CPS is in control of unused material that is highly sensitive (ie. relating to national security, revealing techniques used by police etc.) BUT this material satisfies the test for disclosure in s 3 - must they disclose it?

Answer 31

Need to disclose will be subject on passing a further test - the material must not be protected by ‘public interest immunity’

• Court will decide whether this applies, so CPS will apply to court to do this

Question 32

Why is a schedule of unused prosecution material important for the defence to have prior to drafting the defence statement?

Answer 32

It shows unused material which the CPS has in its possession
- if CPS has only sent along some of the documents the defence believes they are entitled to (by virtue of s 3), D will need to put this in their defence statement to compel specific disclosure
- also good to ask whether CPS has already applied to keep certain documents sealed due to public interest immunity

Question 33

Does the defence need to provide the prosecution with details of their witnesses in the defence statement?

Answer 33

No, only if the witness is supporting an alibi defence

Question 34

D has named his alibi witness in his defence statement, in addition to their address. After serving the defence statement D finds out the date of birth of the alibi - D does not think this is significant enough to add onto the DS as the alibi is clearly over 18. Must they add it?

Answer 34

Yes - D is under a duty to continue updating DS, if they fail to do so, adverse inferences may be directed against them

Question 35

Deadline for CPS serving IDPC:

Answer 35

As soon as practicable, no later than the beginning of the day of the first appearance

Question 36

Need the defence serve notice on CPS of witnesses they intend to call at trial prior to the trial?

Answer 36

D must serve a notice on CPS setting out names, addresses and DOBs of all those they intend to call. This applies to MC and CC.

Question 37

Deadline for serving notice of witnesses on CPS?

Answer 37

28 days from the date the prosecutor complies or purports to comply with s 3 of the CPIA 1996 (which is supplying unused material)