Case management, Pre-trial hearings and Trial procedure

Question 1

Magistrates’ court case management directions - How long will the parties have to prepare for trial?

Answer 1

8 weeks to prepare the case for trial or 14 weeks when expert evidence is required.

Question 2

Magistrates’ court case management directions - Witness summons

Answer 2

This is where the solicitor secures a witnesses attendance in court to give oral evidence. The court will 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. If a witness says no to attending court or does not reply the solicitor can write to the court requesting that it issue a witness summons.

Question 3

Magistrates’ court case management directions - Witness summons - S. 6C (telling the prosecution)

Answer 3

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. Time limit is 28 days.

Question 4

Magistrates’ court case management directions - Witness summons - Expert witnesses

Answer 4

The defendant must serve on the CPS in advance of trial copies of expert reports/statements.

Question 5

Magistrates’ court case management directions - Witness summons - Written statement

Answer 5

A written statement from a witness will be admissible at trial provided that:
- It is signed and dated
- It contains the following declaration - This statement is true to the best of my knowledge and belief
- A copy has been served before the hearing on the other parties
- None of the other parties have objected within 7 days

Question 6

Magistrates’ court case management directions - Prosecution evidence

Answer 6

In the case of summary only and either way offences any evidence obtained which will be relied upon as part of the prosecution case at trial will be supplied to the defendant’s solicitor as part of the initial details of the prosecution case

Question 7

Plea and trial preparation hearing - Offences triable only on indictment

Answer 7

An adult defendant charged with an offence triable only on indictment will be sent straight to the Crown court for trial following a hearing in the magistrates’ court. Where they have done this they will set a date for PTPH at the crown court or a date for a preliminary hearing in the crown court and will remand the defendant either on bail or in custody. Unless a preliminary hearing is to take place the magistrates will give a set of standard case management direction for the CPS and defendant

Question 8

Plea and trial preparation hearing - Either way offence to be tried in the Crown court

Answer 8

Same procedure for cases triable only on indictment, they will set a date for PTPH at the crown court or a date for a preliminary hearing in the crown court and will remand the defendant either on bail or in custody. Unless a preliminary hearing is to take place the magistrates will give a set of standard case management direction for the CPS and defendant

Question 9

Plea and trial preparation hearing - Preliminary hearing in the Crown court

Answer 9

This must take place within 10 business days of the date on which the magistrates send the case to the Crown court.

Question 10

Plea and trial preparation hearing - PTPH in the Crown court

Answer 10

The purpose of the PTPH is to enable the defendant to enter their plea and if they are pleading not guilty to enable the judge to give further case management directions. 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.

Question 11

Plea and trial preparation hearing - PTPH in the Crown court - If the defendant pleads guilty

Answer 11

If the defendant pleads guilty at the PTPH the judge will either sentence immediately or if necessary adjourn sentence for the preparation of pre-sentence reports. The judge will also adjourn the case if the defendant pleads guilty but disputes the specific factual allegations made by the prosecution witnesses. In such a situation a separate hearing (Newton hearing) will be necessary to determine factual basis on which the defendant will be sentenced.

Question 12

Plea and trial preparation hearing - PTPH in the Crown court - If the defendant please not guilty

Answer 12

In this case the judge will consider if any further directions are necessary to prepare the case for trial. To determine this the judge will require both parties to be in a position to supply:
- Summary of issues in the case
- Details of the no. of witnesses who will be giving oral evidence
- Whether transcript of defendant’s police station interview require editing
- Whether a defence statement has been served
- Whether prosecution will be serving any additional evidence
- Whether there is any dispute as to the adequacy of disclosure of unused material
- Whether any expert evidence is to be called in
- Whether any further directions are necessary concerning hearsay

Question 13

Disclosure - Prosecution

Answer 13

The CPS is required to serve on the defendant all the evidence on which is wishes to rely at trial to prove the defendant’s guilt. They will also have ‘unused material’ which they are required to disclose if the defendant enters a not guilty plea and the info. satisfies the test set out in S. 3

Question 14

Disclosure - Prosecution - Test set out in S. 3

Answer 14

S. 3 provides that 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.

Question 15

Disclosure - Prosecution - Ongoing duty

Answer 15

This duty of disclosure is ongoing so the CPS must apply this test to any further material it receives after making initial disclosure. If the defendant’s solicitor considers that the disclosure made by the CPS is incomplete they will request disclosure of any ‘missing items’

Question 16

Disclosure - Prosecution - Sensitive items

Answer 16

In addition to having non-sensitive items of unused material the CPS may also have sensitive items which it does not wish to disclose. E.g
- Material relating to matters of national security
- Material relating to the identity of police informants
- Material revealing techniques and methods relied upon by the police
- Material relating to a child witness

Question 17

Disclosure - Prosecution - Sensitive items - When can they with withheld

Answer 17

If sensitive material satisfies the test for disclosure to the defence in S. 3 the CPS can withhold the material only if it is protected by public interest immunity - only the court can decide this

Question 18

Disclosure - Defendant - When will they disclose?

Answer 18

Once the CPS has made its initial disclosure of unused material the onus switches to the defendant’s solicitor. In the magistrates court if the defendant enters a not guilt plea and decides to serve a defence statement they should so within 10 business days of CPS initial disclosure. In the crown court this is extended to 20 business days.

Question 19

Disclosure - Defence - What must the defence statement include

Answer 19

It is a written statement which:
- Sets out the nature of the defence, including any defences they will rely on
- Indicates the matters of fact on which the defendant takes issue with the prosecution and why they take such issue
- Sets out particulars of the matters of fact on which the defendant intends to rely
- Indicates any points of law they wish to take at trial and any legal authorities
- In the case of an alibi defence provides the name, address and date of birth

Question 20

Disclosure - Defence - Ongoing duty

Answer 20

Defence are also under a continuing duty to update the defence statement if the details should change.

Question 21

Stages of a criminal trial - Magistrates court

Answer 21

1) Opening speech by CPS
2) Prosecution witnesses called to give evidence. They will be examined in chief by prosecution and then cross-examined by defendant’s solicitor then prosecutor may choose to re-examine
3) Possible submission of no case to answer by defendant’s solicitor
4) Defence witnesses called to give evidence. Examined in chief by defence and then cross-examine by prosecution then can be re-examined by defence
5) Prosecuting solicitor may make a closing speech
6) Closing speech by defendant’s solicitor
7) Magistrates retire to consider verdict
8) Magistrates deliver verdict
9) If found guilty they will sentence immediately or adjourn to sentence until later

Question 22

Stages of a criminal trial - Magistrates court - Opening speech

Answer 22

More a matter of setting the scene not part of evidence. Tell magistrates factual details about charge. Explain substantive law and will tell them what the prosecution will need to prove in order to secure a conviction. Remind them that the prosecution has the burden of proving beyond a reasonable doubt that defendant is guilty. Outline what their case consists of, summarising briefly what evidence is going to be given by the witnesses. Any any points of law they anticipate will arise.

Question 23

Stages of a criminal trial - Magistrates court - Arguments on points of law

Answer 23

During presentation of their case prosecutor may seek to place evidence which defendant considers to be inadmissible. If this arises the magistrates will normally hold a voir dire to determine admissibility.

Question 24

Stages of a criminal trial - Magistrates court - Submission of no case to answer

Answer 24

The prosecutor bears an evidential burden. This is to present sufficient evidence to the court to justify a finding of guilt if they fail to satisfy this the defendant should make a submission of no case to answer. This will be made if:
a) The prosecution has failed to put forward evidence to prove an essential element of the alleged offence
b) The evidence produced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it

Question 25

Stages of a criminal trial - Magistrates court - The verdict

Answer 25

Usually be a bench of 3 magistrates who will make their decision by majority. Does not need to be unanimous agreement. If a defendant has been found guilty they have the right to appeal and/or sentence to the Crown court

Question 26

Stages of a criminal trial - Trial in the Crown court

Answer 26

1) Jury will be sworn in
2) Prosecution will give an opening speech explaining the case and what evidence they intend to call
3) Each prosecution witness will be called in turn to give evidence in same way as magistrates
4) If any disputes as to point of law or admissibility of evidence voir dire will take place
5) Defence can make a submission of no case to answer
6) If submission of no case to answer is successful the jury will be asked to return a verdict of not guilty
7) If it is unsuccessful or no submission is made defence will present case if they intend to call a witness(es) in addition to defendant they have to make an opening speech to jury
8) Witnesses for defence will be called to give evidence
9) Both parties will deliver closing speeches
10) Before jury retire judge will give their summing up to the jury
11) Jury retire to consider verdicrt
12) If they cannot do this within a reasonable time judge will retire them
13) If guilty judge will sentence

Question 27

Stages of a criminal trial - Trial in the Crown court - Summing up

Answer 27

Before the jury retire the judge will give their summing up. This has two parts - directions on the law and a summary of the evidence. When the judge directs the jury on the law they will cover 3 areas:
- Burden and standard of proof
- Legal requirements of the offence
- Any other issues of law
Evidence:
- Succinct summary of issues of fact
- Accurate and concise summary of evidence and arguments raised by both sides
- Correct statement of inferences jury is entitled to draw

Question 28

Stages of a criminal trial - Trial in the Crown court - Time limits for the jury

Answer 28

The jury must decide their verdict unanimously although a majority verdict of 11:1 or 10:2 will be accepted if after at least 2 hours and 10 minutes unanimity is not possible

Question 29

Difference between leading and non-leading questions - Examination-in-chief

Answer 29

The purpose is to allow a witness to tell their story. They should ask questions which enable the witness to repeat the version of events which that witness has provided earlier in their witness statements. NOT ALLOWED TO ASK LEADING QS. The use of non-leading open questions which enables the witness to place their own account before the court: Who, what, when, where and how

Question 30

Difference between leading and non-leading questions - Cross-examination - Purposes

Answer 30

1) To enable the party conducting the cross-examination to put their case to the witness
2) To undermine the credibility of the evidence which that witness has just given
3) To obtain favourable evidence from the witness which supports your case

Question 31

Difference between leading and non-leading questions - Cross-examination - Which questions to use

Answer 31

Asking witnesses CLOSED/LEADING Qs. Questions which the witness will answer yes/no to.

Question 32

Competence and compellability - General rule

Answer 32

All persons are competent to give evidence at a criminal trial. At every stage in criminal proceedings all persons whatever their age are competent to give evidence. All competent person are also compellable - a witness can be compelled to testify by the court issuing a witness summons

Question 33

Competence and compellability - Exceptions to competence

Answer 33

A person is not competent to give evidence if it appears to the court that he is not a person who is able to:
- Understand questions put to him as a witness
- Give answers to them which can be understood
2 groups of witnesses may fall within this
- Children (cannot give sworn evidence unless 14+)
- Those this defective intellect

Question 34

Competence and compellability - Exceptions to compellability

Answer 34

1) The accused including co-accused.
2) The spouse of the accused however if the offence falls into specified offences then they are compellable:
- Where offence charged is involves an assault on or injury or threat of injury to the spouse or a person who was under 16
- Where the charge is a sexual offence

Question 35

Special measures to assist witnesses - Categories of witnesses

Answer 35

The following cateogires of witness may apply to the court for the assistance of special measures to help them give evidence in court:
- Children aged under 18
- Those suffering from a mental or physical disorder
- Those whose evidence is likely to be affected by their fear/distress at giving evidence
- Complainants in sexual offences
- Those who are witnesses in specified gun and knife crimes

Question 36

Special measures to assist witnesses - Types of special measure being used

Answer 36

• Screens to ensure that the witness does not see the defendant
• Allowing a witness to give evidence outside the court via live TV link
• Video recording of a witness being examined in chief
  Video recording of a witness being cross-examined

Question 37

Confession and obtained unreliably

Answer 37

Where it is alleged that the confession was obtained in such a way as to render it unreliable the court must exclude it unless the prosecution proves beyond a reasonable doubt that it was not obtained in such circumstances

Question 38

How long after the magistrates court hearing should the plea and trial preparation hearing take place at the crown court?

Answer 38

20 days