Case management and Pre-trial Hearings Flashcards
What is the effect of CrimPR?
Provides a formal standard set of case management directions which the arties mst comply.
Including:
- obligation on the Prosecution to disclosure their unused material to the defence
- defence may also be requires to provide prosecution with a defence statement
What happens after D has enters a no guilty pea to a summary offence (or and either way offence tried in MC)?
- magistrates fix the date when D’s trial is to take place
- magistrates also give series of directions that the CPS and D’s solicitor must comply with prior to trial
when are case management instructions given in criminal proceedings
usually given at the hearing where D enters not guilty plea, or sometimes at a subsequent hearing
where there is a subsequent hearing, this is called a case management hearing or a pre trial review
what directions are normally given in case management hearing
normally standard directions;
- 8 weeks to prepare the case for trial (or 14 weeks when expert evidence is required)
- recorded in magistrates’ court trial preparation form in which prosecution and defence must provide very detailed information about how they will prepare for and conduct the trial
why may a witness summons from the court be obtained
to ensure a witness will attend court and give oral evidence at trial
witness summons issued by court which requires the witness to attend the trial
When will Court issue a witness summons?
if it is satisfied that the witness can give material evidence in the proceedings and it is in the interests of justice for a summons to be issued
D’s solicitor will usually ask potential defence witness to confirm in writing that they will attend court;
If negative or no response received, solicitor should write to court requesting a witness summons
what obligations do the defence have in relation to witnesses
- D MUST serve notice on CPS setting out names, addresses and dates of birth of any witnesses they INTEND to call to give evidence, within 28 days of prosecution disclosure under s6C CPIA
- relevant to both magistrates and crown court
does a D in a criminal case have to serve copies of all witness statements on the CPS
no requirement for a defendant in a criminal case to serve on the CPS copies of the statements taken from the witnesses whom they intend to call to give evidence at trial.
exception to this is reports from any expert witnesses whom the defendant wishes to call to give evidence at trial. These must be served on the CPS
what is s9 CJA and where does it apply
s9 provides that written statement from a witness will be admissible at trial, provided that is it
- signed and dated
- contains a statement of truth
- copy served before the hearing on the other parties in the case
- none of the other parties has objected within 7 days
s9 applies where the witness statement is used for evidence which is not in dispute
If the party receiving a statement which is served in this form wishes to challenge the admissibility of anything said in the statement, or to cross-examine the maker of the statement, it should object in writing within 7 days.
what is documentary evidence
eg. photos of the place the alleged crime occurred
these should be verified by a witness statement from the person who took them
where there is an indictable only offence and a related offence (either way or summary) where are the related offences tried?
indictable only means tried in crown court
where either way offence is related, will be tried in the crown court
where it is summary only, and punishable with imprisonment or involved disqualification from driving, will be heard in crown court
however, if D is acquitted of the lesser related offence or pleads not guilty, lesser offence will be remitted to magistrates court for trial
when will a preliminary hearing take place for an indictable only offence
A preliminary hearing will take place for an offence triable only on indictment if:
(a) there are case management issues which the Crown Court needs to resolve;
(b) the trial is likely to exceed four weeks;
(c) it is desirable to set an early trial date;
(d) the defendant is under 18 years of age; or
(e) there is likely to be a guilty plea and the defendant could be sentenced at the preliminary hearing.
A preliminary hearing must take place within 10 business days of the date on which the magistrates send the case to the Crown Court.
What is a Plea and trial preparation hearing (PTPH)?
purpose of the PTPH is to enable the defendant to enter their plea and, if the defendant is pleading not guilty, to enable the judge to give further case management directions for the CPS and the defendant’s solicitor to comply with prior to trial.
Where a case has been sent for trial and no preliminary hearing is held, the PTPH should take place within 20 business days after sending.
Does a preliminary hearing have to take place?
I may tae place, if there is no preliminary hearing the PTPH will be the first hearing in CC
what is an arraignment and when does it occur
At the start of the PTPH the defendant will be arraigned.
This means that the count(s) on the indictment will be put to the defendant who will either plead guilty or not guilty
what happens at PTPH if a D makes a deal with the CPS that they will plead guilty to certain counts if the CPS does not proceed with other counts
at the arraignment, the CPS will offer no evidence in respect of these other counts and the judge will order that a verdict of not guilty be entered.
what happens if new evidence emerges before the arraignment which means there is no longer a reasonable prospect of securing a conviction
CPS offers no evidence at arraignment
judge will order that a non guilty verdict be entered and the D will be formally discharged
what does it mean for the CPS to ask that a count “lie on the court file”
when there are several counts on the indictment and the CPS evidence in respect of each count is strong.
If the defendant is prepared to plead guilty to the more serious counts, the CPS may agree to lesser counts being left on the file.
In such a case a not guilty verdict will not be entered and (in theory) with the leave of the court the CPS may be allowed to re-open the case at a later date.
what happens if D pleads guilt at the PTPH
judge will either sentence immediately
or
if necessary, adjourn sentence for the preparation of pre-sentence reports, such as medical reports or reports from the Probation Service.
The judge may also need to adjourn the case if the defendant pleads guilty but disputes the specific factual allegations made by the prosecution witnesses
if case adjourned, D either released on bail or remanded in custody pending hearing
does the judge have to give D an indication of the likely sentence they would receive if they entered into a guilty plea at the PTPH
judge is permitted at the PTPH to give a defendant an advance indication of the likely sentence they would receive if they were to enter a guilty plea at that stage.
D must specifically ask for such an indication. If the judge gives an indication and the defendant then enters a guilty plea, the indication given by the judge will be binding. ‘GOODYEAR’
what happens if the D pleads not guilty at the PTPH
judge will then consider if any further directions are necessary to prepare the case for trial (over and above those given by the magistrates’ court when the case was sent to the Crown Court).
what is the warned list
warned list is a list of cases awaiting trial that have not been given a fixed date for the trial to start. If a case is placed in the warned list, the Crown Court will contact the defendant’s solicitor to let them know that the case has been listed for trial shortly before the date when the trial is due to start.
what happens to the D at conclusion of the PTPH
defendant will either be released on bail, or remanded in custody pending his trial
what are the prosecution’s disclosure obligations to the defence
CPS is required to serve on the defendant all the evidence on which it wishes to rely at trial to prove the defendant’s guilt.
ongoing duty of disclosure, CPS must disclose any further material it receives after making initial disclosure
what is unused material
material that is not being relied upon by the prosecution such as statements from witnesses whom the CPS does not intend to call to give evidence at trial.
The CPS is required to retain this material and, in the event of the defendant entering a not guilty plea, the CPS must disclose any such material to the defendant if the material satisfies the test set out in s 3 of the CPIA 1996
what is the s3 CPIA test for disclosing unused material
such material must be disclosed if it
‘might reasonably be considered capable of undermining the case for the prosecution … or of assisting the case for the accused’.
what should D’s solicitor do if it considers the disclosure made by the CPS is incomplete
should request disclosure of any missing items when drafting the defence statement
what should D’s solicitor do if CPS refused to supply items of disclosure which D’s solicitor has requested
solicitor may apply to the court to request the specific disclosure of such items under s 8(2) of the CPIA 1996.
Such an application may be made only if the defendant has provided a defence statement.
can prosecution withhold disclosure of unused material
CPS can only withhold sensitive items of unused material if it is protected by public interest immunity; this is the decision of the court
CPS must make an application to the court if they do want to withhold the relevant material (normally made without notice to the defence) however, defence can ask whether application has been made
what disclosure obligations are non the defence
once CPS has made initial disclosure of unused material, onus on D’s solicitor to provide defence statement
if D enters not guilty plea and serves defence statement, should do so within 10 business days of CPS making initial disclosure of unused material (extended to 20 business days in the crown court)
can apply to the court for a longer period within which to serve defence statement
Section 5 of the CPIA 1996
sets out the obligation on the defence to provide a defence statement; ‘Compulsory disclosure’.
obligation applies only to a defendant facing a trial in the Crown Court and not the magistrates’ court.
obligation is enforced in the Crown Court by the court being able to draw an adverse inference against the defendant if a defence statement is not provided.
when is a defence statement compulsory
in the crown court, to prevent adverse inferences from being drawn
optional in the magistrates’ court
when should a D serve a defence statement in the magistrates’ court
not compulsory in the magistrates’ court, rare for one to be served
defendant’s solicitor should consider serving a defence statement on the CPS only if they think that the CPS will, in the light of the information disclosed in the statement, be in a position to disclose additional unused material that may assist the defence case.
Such a situation is likely to arise only if the defence statement contains additional details about the defence of which the CPS was previously unaware.
what should the defence statement include
must be a written statement, contents prescribed by S6A CPIA 1996;
(a) sets out the nature of the defence, including any particular defences on which the defendant intends to rely (for example, alibi or self-defence);
(b) indicates the matters of fact on which the defendant takes issue with the prosecution and why they take such issue;
(c) sets out particulars of the matters of fact on which the defendant intends to rely for the purposes of their defence;
(d) indicates any points of law (including any point as to the admissibility of evidence) that the defendant wishes to take at trial, and any legal authority on which the defendant intends to rely for this purpose; and
(e) in the case of an alibi defence, provides the name, address and date of birth of any alibi witness, or as many of these details as are known to the defendant.
do defence have to update the defence statement if any details change before trial
yes, under a continuing duty to update the defence statement
eg. if witness comes forward who is able to support an alibi given by the defendant and whose existence was unknown at the time the initial defence statement was prepared)
are defence statements deemed to be given with D’s authority
are defence statements deemed to be given with D’s authority
defence statements will be deemed to be given with the authority of the defendant unless the contrary is proved.
A defendant’s solicitor should therefore ensure that the defendant sees and approves a copy of the defence statement before this is served.
usual practice will be for the defendant’s solicitor to sign the original statement which is served, and for the defendant to sign a copy of the statement which will be kept on the solicitor’s file.
when may the court draw an adverse inference in relation to a defence statement given in the crown court
if there are any faults in D’s disclosure, court may drawn an adverse inference when determining D’s guilt
These faults include:
(a) failing to provide a defence statement at all;
(b) late service of the defence statement;
(c) serving a defence statement that is incomplete;
(d) serving a defence statement which is not consistent with the defence put forward at trial; and
(e) failing to update a defence statement.
what must CPS do once defence has served their defence statement
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
Can the defence challenge the prosecution failure to provide unused material?
Section 8(2) of the CPIA 1996 enables a defendant who has provided a defence statement to make application to the court if the CPS has failed to comply with its continuing duty of disclosure in light of the matters contained in the defence statement.
The defendant may ask the court for an order that the CPS disclose material provided the defendant has reasonable cause to believe that there is prosecution material which should have been, but has not been, disclosed.
The defendant will only be allowed to make such an application if they have set out in detail in their defence statement the material which they consider the CPS has in its possession which it has not subsequently disclosed
summarise the prosecution’s duty of disclosure to the defence
must provide the defence with all the evidence they intend to rely on at trial
CPS also has a continuing obligation to disclose any of its unused material in its possession that ‘might reasonably be considered capable of undermining the case for the prosecution … or of assisting the case for the accused’.
This duty of disclosure is subject though to withholding sensitive information, where the court has granted an application for public interest immunity.
summarise the defence’s disclosure obligations to the prosecution
defence disclosure obligations are much more limited, but there is an obligation in the Crown Court for the defence to provide a defence statement.
Failure to provide such a statement may lead to the drawing of adverse inferences.
