Chapter 3: Pre-Trial Criminal Litigation

Question 1

1 Bail: presumption and objections

Answer 1

Adjournment: In any case where the defendant is presented to court, and the court cannot conclude the case in one hearing, the case will have to be adjourned. It is important to note
the word ‘adjournment’ applies to the case. It does not describe what happens to the defendant.

Question 2

1 Bail: presumption and objections

Answer 2

Remand: When a defendant is sent away and told to come back another day, it is called a ‘remand’. A defendant on remand is obliged to come back to court to continue with the case. The remand may either be served in custody, or served in the community on bail.

Question 3

1.1 Remanded into custody

Who applies?

Answer 3

It is for the prosecution to apply to have the defendant remanded into custody if that is its desire.

Question 4

1.1.2 How?

Answer 4

To have the defendant remanded into custody the prosecution present objections to bail, due to the presumption in favour of bail.

Question 5

1.1.3 What objections?

Answer 5

The objections that one can raise are finite and defined by law. They vary according to the type of offence involved. There are more and broader objections for more serious offences and fewer and more qualified objections for more trivial offences.

Question 6

1.1.4 Why the variety of objections?

Answer 6

If a defendant is refused bail and is kept in custody for a more trivial offence, then the worry is
that the defendant will be in custody for longer whilst awaiting trial than the defendant would ever be in custody as part of a sentence for the offence. This is clearly undesirable. Learning what the objections to bail are is one of the core tasks in this area.

Question 7

1.2 Bail
1.2.1 Who applies for bail and when?

Answer 7

Once a prosecution objection to bail has been raised, it is then for the defence to apply for bail.
All cases commence in the magistrates’ court, and so the first decision in relation to bail is made
by that court (except in murder cases, where only a Crown Court Judge can grant bail). The defence and the prosecution can appeal decisions on bail from the magistrates.

Question 8

1.2.2 Conditional bail

Answer 8

Bail can be granted subject to conditions, and it is important for a defence advocate to consider
what sort of conditions might alleviate the court’s concerns in relation to the defendant’s
behaviour on bail.

Question 9

1.2.3 Ongoing issue of bail

Answer 9

Bail is an ongoing consideration, and can evolve during the currency of proceedings, for example if a defendant breaches the terms of D’s bail.

Question 10

1.3 The right to bail

Answer 10

• The prosecution needs to apply for the remand into custody of a defendant. This is because of
  a principle commonly referred to as the ‘right to bail’. Following the Bail Act 1976 s.4, the court must presume that a defendant is entitled to bail, and it is only if an objection is properly made out that bail can be refused.

Question 11

1.3 The right to bail

Answer 11

• The purpose of the right to bail is to secure the notion that the prosecution has to apply to
  remove bail as a matter of normal practice. In all cases where the right to bail applies, it is therefore the prosecution that has to make the first move and apply for the defendant to be remanded into custody, ie to rebut the right to bail on a legally specified objection

Question 12

1.3 The right to bail

Answer 12

• The idea of the presumption in favour of bail has been made more complicated by offences like murder, where the language of the statute appears to remove the presumption.
• The right to bail still applies to a person after conviction when the case is adjourned reports to
  assist in sentencing, although the concerns about a defendant absconding may be more
  serious following a conviction. The right to bail also applies when a person is alleged to have
  breached a requirement of a community order

Question 13

1.3 The right to bail

Answer 13

• Note that there are time limits for getting a defendant through the criminal justice system, and
  the right to bail usually becomes absolute if the case has not progressed according to the time
  limits.

Question 14

1.3.1 When the right to bail does not apply

Answer 14

The right to bail does not apply to:
(a) Those appealing their conviction or sentence; or
(b) To defendants being committed for sentence from the Magistrates’ Court to the Crown
Court.

Question 15

1.3.1 When the right to bail does not apply

Answer 15

Bail can be granted in both these cases; it is simply that the presumption does not apply.
Both exceptions are logical in that if, in relation to the first, a defendant is appealing, it is because
a court has already concluded that the defendant is guilty (and may have sentenced D already).
The courts are less anxious about putting a person already determined to be guilty into custody
than those who are still awaiting their trial

Question 16

1.3.1 When the right to bail does not apply

Answer 16

Similarly, if a defendant is committed for sentence from the magistrates’ court to the Crown
Court, it is the view of the magistrates’ court that the defendant is deserving of a sentence of
more than six months (or more if the magistrates’ limit is higher). It is therefore a very low risk that
a defendant put into custody at this point will receive a lesser sentence than the time the
defendant will serve in custody waiting for the case to be moved from the magistrates’ to the
Crown Court.

Question 17

1.4 Grounds on which the prosecution can object

Answer 17

The grounds for applying for bail are now rather complex. The regime is driven in large part by the
seriousness of the offence(s) charged. The objections then, for the most part, follow the
‘classification’ of the offence. The Bail Act 1976 has had many amendments made to it to create a plethora of objections – but the primary demarcation is between the following types:

Question 18

(a) ’Indictable’ cases

Answer 18

Are those that are either ‘indictable only’ or ‘either-way’ cases. Most
familiar offences in crime are indictable, and the objections for these offences are therefore
the most important to learn.

Question 19

(b) Summary cases, imprisonable-

Answer 19

Not all summary only cases carry custody as an available sentence. Common assault would be a good example of an offence which is summary only, but can attract a custodial sentence.

Question 20

(c) Summary non-imprisonable

Answer 20

There are hundreds of these offences, many related to ‘road
traffic’. These offences present an obvious problem – what do you do if a defendant simply won’t attend court, but is only charged with a minor offence for which the defendant cannot be punished with custody (eg having a defective fog lamp on D’s car)? Do we really allow for the courts to remove bail for trivial offences?

Question 21

1.5 Grounds of objection

Answer 21

The objections that one can take to bail being granted are called ‘grounds’ of objection. The
prosecution can take as many or as few as it wishes within those grounds which are permitted, and only needs to succeed in showing that one of the grounds is made out in order to have bail denied.

Question 22

1.5 Grounds of objection

Answer 22

If the court considers that the ground would be made out if the defendant were to be simply released, but considers that conditions put upon the release of the defendant would alleviate the concerns about the defendant’s behaviour such that the concerns about the grounds are no
longer ‘substantial’, then the defendant should be granted conditional bail.

Question 23

1.6 Indictable offences

Answer 23

Most offences that engage lawyers are indictable offences. All thefts are indictable, most violence
offences are indictable, all the main sexual offences are indictable, and almost all drugs offences
are indictable.

Question 24

1.6 Indictable offences

Answer 24

There are three primary grounds for objecting to bail for the large amount of offences that classify as ‘indictable’. These ‘big three’ (a BPP reference term, not a legal term of art) are the original and core grounds, onto which lots of other law has been appended.

Question 25

1.6 Indictable offences

Answer 25

The test, set out in the Bail Act 1976, Schedule 1, para 2, is whether, if the defendant is released on bail, there are ‘substantial grounds’ for believing that the defendant would either:
(a) Fail to attend a subsequent hearing (failure to surrender to custody);
(b) Commit further offences on bail; and/or
(c) Interfere with witnesses, or otherwise obstruct the course of justice eg witness intimidation or
destruction of evidence.

Question 26

1.7 Substantial grounds for believing

Answer 26

The threshold to which these grounds must be made out is ‘substantial grounds for believing’ that if granted bail, the defendant will behave in a way that the ground specifies (eg will commit further offences on bail). This is not a particularly high test.

Question 27

1.7 Substantial grounds for believing

Answer 27

It is not for the court to conclude that the defendant would behave in the way specified in the ground, or even that D’s behaviour would be more likely than not to include the behaviour in the ground. It is not enough for the judge simply to have a subjective perception of one or more of these three risks.

Question 28

1.7 Substantial grounds for believing

Answer 28

It is only necessary to show that the fears of the behaviour happening have substance and merit. This enquiry is a factual one, and is not a trial per se, and so there are no formal rules of evidence in determining if the ground is made out. Representations will be made by both the prosecution and the defence but generally neither party needs to call witnesses or produce documentary evidence

Question 29

1.7 Substantial grounds for believing

Answer 29

Witnesses can be called (such as a police officer or the person proposed as a surety although it’s rare) and hearsay evidence is permitted (ie statements made out of court presented in evidence as proof of its contents). The magistrates have an inquisitorial role in this process and
may ask questions of either party or insist that sureties are called to give evidence of their means and relationship with the defendant.

Question 30

1.8 No real prospects

Answer 30

A recent addition to the law is a final filter on considering bail under one of the ‘big three’ objections.

The final filter is that bail should not be removed under one of these grounds if the defendant is
charged with an offence (or offences) where there are ‘no real prospects’ of the defendant receiving a custodial sentence.

Question 31

1.8 No real prospects

Answer 31

Theft is an indictable offence, and so, strictly speaking, even stealing a banana is indictable. If
there is no real prospect of the sentence for the offence being custodial, then the ground of
objection cannot succeed.
The ‘big three’ grounds are available for any indictable offence (carrying imprisonment)

Question 32

1.9 Summary offences

Answer 32

For lesser summary offences, the general rule is that they are only available if a defendant, having been given bail, breaches a condition of that bail in these proceedings or has a conviction for ‘fail to surrender’ in their past. The logic is that for offences of lesser seriousness, it is broadly assumed that a defendant would not risk absconding or interfering with witnesses and is not so committed to crime that the
defendant will offend on bail

Question 33

1.9 Summary offences

Answer 33

However, if the defendant’s behaviour on bail suggests otherwise and D breaches a condition of
bail (or has a history of this), then the grounds for objection become eligible grounds to remand D
in custody. The grounds therefore are only activated by a trigger event - namely the defendant being arrested for a breach of bail.

Question 34

1.10 Need not be granted bail

Answer 34

In terms of importance, after the main three grounds, the next most common and most important
trio of grounds that are widely applicable are:
(a) A remand in custody would be for the defendant’s own protection;
(b) The court has insufficient information to deal with the issue of bail, and so remands in
custody for a (short) period for the production of sufficient evidence; and/or
(c) The defendant is already serving a sentence in custody.
For these three grounds, the test is simply that the defendant ‘need not’ be granted bail if one of
these conditions exist.

Question 35

1.11 Specialist grounds

Answer 35

In addition to the ‘big three’ and the other trio of objections, there are a number of other grounds,
but these are all relatively uncommon or rather more specialist.
We have grouped a series of them together under two broad headings, namely:

(a) Serious cases with high penalties; and
(b) Cases of a particular nature that affect the assessment of the risk posed by a defendant on
bail.

Question 36

1.11 Specialist grounds

Answer 36

Under the latter heading, the most notable ground of objection to bail relates to defendants who
might commit offences and cause physical or mental injury (or fear of it) to an ‘associated person’. This is an important ground used frequently in domestic violence cases.

Question 37

1.12 Four groups of offences

Answer 37

The law has been added to and amended so often now that reading the list of the grounds and
when they apply is a fraught experience. Four diagrams/tables seek to assist your understanding as to when grounds are available. We
have tried to group the offences helpfully. In short, there is special provision for:

Question 38

1.12 Four groups of offences

Answer 38

(a) Serious cases (such as murder and rape) where it is harder to get bail because of the gravity
of the consequences of such offending;
(b) Cases of a particular character (such as drugs and domestic violence) where a different
approach needs to be taken because of the particular behavioural difficulties commonly encountered with defendants who commit these offences;
(c) Cases where the defendant infringes bail;
(d) The remaining cases - dealt with in relation to their classification and, even with the ‘standard’ cases, there are a number of provisos to watch out for.

Question 39

1.13 Process: bail objections

Answer 39

In terms of process:
* Check whether your defendant falls into the provisions of one of the special categories (either
serious crime, or crimes of particular character).
* If the provisions in relation to serious cases (eg murder) are satisfied, the courts must follow the
more stringent test and the more general objections cease to apply.
* For cases of a particular character, the prosecution can either use these additional grounds or rely on the more general grounds.

Question 40

1.14 The factors

Answer 40

When considering the grounds for objecting to bail, there are ‘factors’ to be taken into consideration. These factors are not grounds themselves, but help the court determine if the
grounds are made out, as form the evidence base. The factors are mandatory considerations for
the main three grounds:

Question 41

The factors

Answer 41

(a) The nature and seriousness of the offence and the likely disposal (ie sentence)- if convicted
of a serious offence, D is likely to receive a long sentence and will therefore be tempted to
abscond.

Question 42

The factors

Answer 42

(b) The character of the defendant, D’s antecedents, associations and community ties;
- Antecedents refers to previous convictions which can make a custodial sentence more likely.
- Character might include any personal circumstances such as drug addictions.
- Associations might include friends with criminal records.
- Examining the ‘community ties’ helps to see how easy it could be for the defendant to abscond and how much D has to lose by absconding. If D is married with children or in a
job, then D might be less likely to ‘disappear’ compared to someone of ‘no fixed abode’.

Question 43

The factors

Answer 43

(c) The defendant’s bail record in the past- whether D has absconded in the past can be seen as
indicative that D may do so again. Here, the court will also look at whether D has a tendency
to commit offences on bail.

Question 44

The factors

Answer 44

(d) The strength of the evidence- a D who knows there is a good chance of being acquitted is arguably less likely to abscond than one who anticipates almost certain conviction. It is unclear the extent to which the court would expect to hear reference to these factors in any of the other grounds. These factors give the court a wide discretion.

Question 45

1.14.1 Factors: Examples

Answer 45

If we are considering if someone will attend the next hearing (which is a valid ground) we should
consider what incentives there are (or not) to attend the next hearing.
If the evidence against the defendant is strong, and the penalty will be severe, then these are
factors making the ground more likely to be made out. However, if the defendant has very strong
associations in the area, it would be much less likely that they would abscond and ‘go on the run’.

Question 46

1.14.1 Factors: Examples

Answer 46

In this example then, there are two factors from the list of legitimate factors that seem to be
relevant to the ground of ‘fail to surrender’. Most factors have some relevance to each of the grounds.
For example, the ‘nature and seriousness of the offence’ can be tied to each of the ‘big three’
objections. If a defendant is charged with a drugs offence involving an addictive drug, it is more likely the
defendant will commit offences whilst on bail. The seriousness of an offence (such as drug supply)
will also indicate the risk of failing to surrender, and the risk that the defendant will interfere with
witnesses.

Question 47

1.15 Grounds and factors

Answer 47

Ensure you learn:
(a) What the factors are, and
(b) The difference between a factor and a ground for objection.
It is a common mistake for courts to appear to remove bail on the basis of a factor. The factor may indeed be relevant, but the ultimate denial of bail must be on the basis of a legitimate ground of objection.

Question 48

Example: Grounds and factors

Answer 48

So, for example, it would be wrong to say ‘Mr Jones, you are hereby remanded in custody due to
the seriousness of the offence with which you are charged.’
It would be legitimate to say ‘Mr Jones, I have substantial grounds for believing that if granted
bail, you would commit further offences. I take this view on account of the seriousness of the
offences before me.’

Question 49

1.16 Summary

Answer 49

• If the case is not dealt with at the defendant’s first appearance, the court will have to adjourn.
  When the court adjourns, the magistrates may either remand the defendant on bail (with or
  without conditions) or remand D into custody.
• Bail can be defined as ‘the release of a person subject to a duty to surrender to custody at an
  appointed time and place’.

Question 50

1.16 Summary

Answer 50

Section 4 Bail Act 1976- There is a general right to bail at all appearances before the
magistrates or Crown Court up to the occasion on which the defendant is convicted or acquitted. Following conviction there is a right to bail if the case is adjourned for reports prior
to sentencing. The right to bail does not apply to:
(i) Those appealing their conviction or sentence; or
(ii) To defendants being committed for sentence from the Magistrates’ Court to the Crown Court

Question 51

1.16 Summary

Answer 51

• In order for bail to be refused the court must find that there is an exception to the right to bail under s. 4. The grounds for objection differ depending on whether the offence is indictable, summary imprisonable or summary non-imprisonable. When considering the grounds for objecting to bail, there are factors to be taken into consideration.

Question 52

2.1 Bail conditions

Answer 52

A person granted bail in criminal proceedings is under a duty to surrender to custody, by attending court at the time and date specified (Bail Act 1976, s3(1)). In order to overcome any objections to bail, the defence can offer conditions to be attached to bail, which would lessen any risk associated to the granting of bail

Question 53

2.1 Bail conditions

Answer 53

The court can impose ‘such conditions as appear necessary’ meaning technically that there is no
limit to the conditions that a court could choose to impose. Before attaching a condition of bail the court must consider if the condition is relevant, proportionate and enforceable.

Question 54

2.1 Bail conditions

Answer 54

European Convention on Human Rights, article 5(3) provides that every person who has been arrested or detained must be brought promptly before a judge and is entitled to trial within a reasonable time or to release pending trial. Article 5(3) expressly provides that release may be conditioned by guarantees to appear for trial. This makes it permissible to attach conditions to the grant of bail.

Question 55

2.2 Common bail conditions

There are, however, common conditions which include:
* Residence at a given address

Answer 55

A condition that the defendant must live and sleep at a specified address. This helps solicitors and the court communicate with the defendant by post, and the police to know where to find the defendant if the defendant doesn’t attend court. This will be imposed to reduce the risk of the defendant absconding.

Question 56

• Curfew

Answer 56

Curfews are designed to prevent further offences being committed while on bail. A curfew requires the defendant to remain indoors during certain hours. These are often imposed for offences which occur at night ie burglary. A curfew is only appropriate where the time of
day/night is relevant to the pattern of offending.

Question 57

• Reporting to a local police station at given times-

Answer 57

To check the defendant is still ‘in town’. This condition would be imposed to reduce the risk of the defendant absconding.

Question 58

• Surety

Answer 58

The offer of money made by someone with influence over the defendant to secure the
defendant’s return to court. A surety is usually required where there is a risk of the defendant absconding. The surety will agree to forfeit a sum of money if the defendant absconds. The defendant cannot stand as a surety in their own case. Sureties do not deposit the sum of money, referred to as a recognisance, at the time bail is granted. They merely promise to pay that sum of money if the defendant fails to surrender to the court and the court then orders all or part of the recognisance to be forfeited.

Question 59

• Security

Answer 59

The defendant, or someone on the defendant’s behalf, putting up money or some other valuable item to be forfeited if the defendant does not answer bail and attend court. The
taking of a security is another means of trying to reduce the risk of the defendant absconding. Note the difference between a surety, which can only be given by a third party and a security which can be given by either a third party or the defendant. Securities are deposited with the
court or the police before the defendant is released on bail.

Question 60

• Restriction on where a defendant may go during bail

Answer 60

Prohibiting the defendant from going
into a certain area or to a specific place. This condition could be imposed to reduce either: the
risk of the defendant committing any further offences while on bail and/or (depending on the circumstances) interfering with witnesses

Question 61

• Restriction on who the defendant might have contact with during bail

Answer 61

The court can direct that the defendant does not approach or contact, either directly or indirectly, named individuals (these can be victims or prosecution witnesses), in order to reduce the risk of interference with witnesses and/or obstructing the course of justice, or co-defendants to prevent further offending.

Question 62

• Electronic monitoring (tagging)-

Answer 62

A curfew can be subject to electronic monitoring (tagging). In addition to preventing further offences being committed on bail, electronic monitoring requirements can also be imposed to address fears of failure to surrender and interference with
witnesses.

Question 63

Bail hostels

Answer 63

Residence at a bail hostel and a further condition that the defendant complies with the rules of the bail hostel can be used to try to prevent the defendant absconding, and/or interfering with witnesses and/or committing further offences on bail. A bail hostel may be used if the defendant does not have a fixed address. It provides a residence and a curfew while the defendant is on bail

Question 64

• Bail hostels

Answer 64

The bail hostel will also place upon the resident its own rules with which the defendant must comply eg not to bring alcohol or controlled drugs onto the premises. If the rules are breached, the resident would have to leave and would consequently be in breach of the court imposed bail condition of residence.

Question 65

• Surrender of passport

Answer 65

In some circumstances it may be necessary for the court to impose a
condition that the defendant surrenders their passport to prevent the risk of them absconding

Question 66

2.3 Varying bail conditions

Answer 66

Applications to vary bail conditions can be made by the defence or the prosecution on advance notice to the other party. The application should be made to the court which granted bail (or the Crown Court if the accused has been sent for trial or committed for sentence). If the parties agree on the variation, the court may decide to vary a bail condition without a hearing.

Question 67

2.4 Breach of bail conditions

Answer 67

Breach of bail conditions may result in the accused being arrested under the Bail Act 1976, s 7(3) and D is at risk of either having the bail conditions tightened or being remanded in custody, ie bail
being withdrawn. It is routine for courts to impose conditions on bail.
If a defendant is found in breach of a condition, the defendant is not actually committing an offence. There is no offence of ‘breaching a bail condition’.

Question 68

2.4 Breach of bail conditions

Answer 68

The Bail Act s.7 provides that there is a power of arrest allowing officers to arrest those either who are in breach, or who are about to be so. If D is given bail with a condition to be indoors at home in London by 8pm, and D is found in a field in Glastonbury at 7:30pm, the officer does not have to wait until 8pm to arrest D for breaching bail. Given that the breach of bail is not an offence, the defendant who is arrested for a breach of bail must then be brought forthwith to a magistrates’ court, and then the question to determine is
simply whether the defendant should have bail going forward.

Question 69

2.5 Not surrendering to custody

Answer 69

There are a number of instances whereby the breach of bail will introduce more grounds of
objection which might not have been previously available. Even if the breach does not trigger any new grounds, the assessment of whether the defendant gets bail will be likely to alter against the defendant’s interests if there’s been a breach of a
condition. D faces a real possibility of being remanded in custody until the case is concluded.

Question 70

2.5 Not surrendering to custody

Answer 70

The only bail breach which is a criminal offence is failing, without reasonable cause, to surrender
to custody. This offence is commonly known as failing to surrender (‘FTS’). This is an offence punishable summarily by up to three months’ imprisonment and/ or an unlimited fine or 12 months and/ or an unlimited fine on indictment.

Question 71

2.6 Summary

Answer 71

• If there is a risk that D might fail to surrender, commit further offences or interfere with witness
  while on bail for example, the defence can offer conditions to be attached to D’s bail, which
  would lessen any risks.
• Bail conditions must be relevant, proportionate and enforceable.
• Common bail conditions include any or a combination of the following: residence, curfew,
  reporting, surety, security, restrictions on D’s movement or who D may contact, electronic
  monitoring, bail hostel and surrender of passport

Question 72

2.6 Summary

Answer 72

• Applications to vary bail conditions can be made by either party on notice generally to the court that granted bail. A hearing is not always necessary.
• Breach of bail conditions- may result in the accused being arrested under the Bail Act 1976, s
  7(3) and bail being withdrawn.
• There is no offence of ‘breaching a bail condition’. However, it is a criminal offence to fail, without reasonable cause, to surrender to custody. This offence is commonly known as failing to surrender (‘FTS’).

Question 73

3 Bail: Procedure

3.1 Procedure for applying for bail

Answer 73

If the defendant has been refused bail by the police, D will appear before the next available
magistrates’ court in custody.
On D’s arrival at the court the defence advocate will first check with the prosecutor to see if the
prosecutor intends to object to bail being granted. If the prosecutor has no objections then this will be stated to the court.

Question 74

3.1 Procedure for applying for bail

Answer 74

If however the prosecution objects to the grant of bail, the prosecutor will outline the objections to the court. Where the accused has previous convictions, these are handed to the court. The defence then presents its arguments for bail to be granted.

Question 75

3.1 Procedure for applying for bail

Answer 75

After hearing both the prosecution and the defence submissions, the court will announce its
decision. Where the defendant has a right to bail under s. 4 Bail Act 1976 the court must give its
reasons if it refuses bail or imposes conditions. A form setting out the decision of the court will also
be completed.

Question 76

3.2 Bail attempts

Answer 76

The general rule is that a defendant who is having a trial in the magistrates’ court can have two
attempts at getting bail at the magistrates’ court, and one attempt on appeal to the Crown
Court.

Question 77

3.2.1 Magistrates’ Court

Answer 77

There are some complications around this general principle. If bail is refused, then D can repeat
the same application and have a second attempt at getting bail at the next hearing. Thereafter, D
has either to appeal the decision against granting bail to the Crown Court, or to find fresh points
to make (eg by finding a surety which D didn’t have available before).

Question 78

3.2.2 Crown Court

Answer 78

A defendant whose trial will be heard in the Crown Court has one attempt at bail at the first hearing in the magistrates’ court (unless charged with murder; the magistrates’ court has no jurisdiction to consider bail where a person is charged with murder) and a further application as
of right in the Crown Court.

Question 79

3.3 Bail timeline: The usual case

Answer 79

• The defendant attends court the first time the case is listed and applies for bail.
• If the defendant is unsuccessful, the case will be returned to court a week later where the issue of bail can be raised a second time without any restriction or qualification, and the defendant can apply again. In principle it is possible for the defence advocate to make identical applications at the first and second hearings and to find that the same application is denied first but then allowed by a different bench of magistrates (or District Judge)

Question 80

3.3 Bail timeline: The usual case

Answer 80

• Once the defendant has had both applications, the defendant must secure a ‘certificate of full
  argument’ from the magistrates’ court before then appealing (if D wishes to do so). The certificate is simply a short summary that the magistrates produce so that the Crown Court knows what has transpired in the court below. Appeals are heard one business day after an appeal notice is served.
• D can only apply again if there has been a change in circumstances.

Question 81

3.4 Bail timeline: Urgent cases

Answer 81

In urgent cases, the defence may wish to exercise its appeal right more quickly than would be allowed by waiting a week for a second attempt in the magistrates’ court. The Crown Court will hear a bail appeal no later than one business day after the appropriate notice is served, but clearly this is still a quicker route to being heard than waiting for a week to pass and applying again in the magistrates’ court. If a defendant appeals to the Crown Court after only one application in the magistrates’ court, then the defendant loses the right to a second application in the magistrates’ court. D can only apply again if there has been a change in circumstances.

Question 82

3.5 The magistrates’ court grants bail

Answer 82

It is very rare for the prosecution to appeal against the granting of bail. It is possible, and the very basic process, is that the:
(a) Prosecution must have opposed bail originally
(b) Offence must be punishable by imprisonment

Question 83

3.5 The magistrates’ court grants bail

Answer 83

(c) Prosecution indicates orally at the hearing when bail is granted that they will appeal (the defendant is then held in custody)
(d) Intention to appeal is confirmed in writing and served on the court and defence within two hours
(e) Appeal is heard within 48 hours - excluding weekends
(f) Appeal is heard by a Crown Court Judge

Question 84

3.6 Where the Crown Court grants bail

Answer 84

Equally rare is the prosecution appealing the grant of bail by the Crown Court. The procedure is the same as for a magistrates’ court appeal save that the appeal is heard by a High Court Judge sitting in the High Court.

Question 85

3.7 Custody time limits

Answer 85

There are rules that seek to prevent unduly long periods of time being spent on remand in custody
awaiting trial. The incentive for the prosecution to bring cases to trial within a proper time frame is that the
prosecution cannot hold a defendant beyond the ‘custody time limits’ unless the court has sanctioned an extension

Question 86

The limits themselves depend upon the classification of the offence.

Answer 86

The numbers to remember are:
* 56 days for trials in the magistrates’ court of summary only or either-way offences; and
* 182 days for trials in the Crown Court of indictable only or either-way offences, less any days spent in custody prior to the case being sent to the Crown Court (usually zero).

Question 87

3.7.1 Custody time limit expiry

Answer 87

A trial must commence before the expiry of the custody time limit.
* In the magistrates’ court the start of the trial is defined as when the court begins hearing evidence from the prosecution.
* In the Crown Court the start of the trial is defined as when a jury is sworn. If the limits expire, then the defendant will be released, unless the prosecution applies to extend
the time limits and can show that it has acted with ‘all due diligence and expedition’ and that there is ‘good and sufficient cause’ to have the defendant further remanded into custody.

Question 88

3.8 First and onward remand in the magistrates’ court

Answer 88

3.8.1 Sent to the Crown Court
Where a defendant is charged with an offence that is sent to the Crown Court (ie indictable only or an either-way where the magistrates decline jurisdiction or the defendant elects crown court trial), the custody time limit is 182 days and they will not make a further appearance in the
magistrates’ court.

Question 89

3.8.2 Trial in the magistrates’ court

Answer 89

There are, however, particular rules about how long a person can be remanded into custody for
where they are going to be tried in the magistrates’ court. If a defendant is remanded into custody at their first hearing and their trial will take place in the magistrates’ court, their first remand must be for no more than eight clear days.

Question 90

3.8.3 What does that mean?

Answer 90

They must be brought back to court within eight clear days so that another bail application could
be made, though the defendant may choose not to make one.

Question 91

3.8.4 Does this mean that the courts are clogged up with people making a ‘second appearance’ which may be pointless?

Answer 91

Yes, to an extent. To get around this, a second appearance can be via video link and most courts now operate this as the default position. The defendant is considered to be ‘present in the courtroom’ despite appearing on a screen

Question 92

3.8.4 Does this mean that the courts are clogged up with people making a ‘second appearance’ which may be pointless?

Answer 92

After the ‘second appearance’ the defendant must be brought back to court every 28 days or fewer just so that the court can ‘remand them onwards’ to their trial. This truly is a waste of time and resources! A defendant can therefore, at any point, consent to these ‘onward remands’ being conducted in their absence. No video link; the magistrates simply have to remember to say on an appointed day ‘I remanded Bob Smith for a further 28 days in the absence’.

Question 93

3.9 Summary

Procedure for applying for bail

Answer 93

If the prosecution has objections to bail, after hearing both the prosecution and the defence submissions, the court will announce its decision. Where the defendant has a right to bail under s. 4 Bail Act 1976 the court must give its reasons if it refuses bail or imposes conditions.

Question 94

Further applications for bail

Answer 94

The general rule is that a D who is having a trial in the magistrates’ court can have two attempts at getting bail at the magistrates’ court, and one
attempt on appeal to the Crown Court which will be listed no later than one business day after receipt of the appropriate notice. The timeline for bail attempts varies depending on whether it is a usual or urgent case.

Question 95

• Appeals against decisions on bail-

Answer 95

It is very rare for the prosecution to appeal against the granting of bail

Question 96

• Custody time limits

Answer 96

The prosecution cannot hold a defendant beyond this unless the court has sanctioned an extension: (i) 56 days for trials in the magistrates’ court of summary only or either-way offences; and (ii) 182 days for trials in the Crown Court of indictable only or eitherway offences, less any days spent in custody prior to the case being sent to the Crown Court
(usually zero).

Question 97

4 First hearings: Overview

Answer 97

4.1 Format of the first hearing
All adult defendants have their first hearing before a magistrates’ court irrespective of the offence that they are charged with. The exact nature and format of the hearing along with the location of their subsequent appearance is determined by the category of offence that they are charged with:

Question 98

Format of first hearings

Answer 98

• Summary only offences- can only be dealt with in the magistrates’ court;
• Either-way offences- can be dealt with in the magistrates’ court or the Crown Court; and
• Indictable only offences- can only be dealt with in the Crown Court.
  Either-way offences and indictable only offences are also known as ‘indictable’ offences. Separate elements will deal with how the court deals specifically with summary only offences and with either-way offences.

Question 99

• Summary only offences- can only be dealt with in the magistrates’ court;
• Either-way offences- can be dealt with in the magistrates’ court or the Crown Court; and
• Indictable only offences- can only be dealt with in the Crown Court.
  Either-way offences and indictable only offences are also known as ‘indictable’ offences.
  Separate elements will deal with how the court deals specifically with summary only offences and
  with either-way offences.

Answer 99

Where the defendant is on bail, the first hearing must be within:
* 14 days of being charged- if the prosecutor anticipates a guilty plea which is likely to be sentenced in a magistrates’ court;
* 28 days of being charged- where it is anticipated that the defendant will plead not guilty, or the case is likely to go to the Crown Court for either trial or sentence. If a defendant was detained in police custody following charge they must be brought before the next available court.

Question 100

4.3 Defendant’s presence

Answer 100

The defendant must be present at the first hearing. If the defendant was bailed by the police to attend court and fails to attend, the court can issue a warrant for the defendant’s arrest. Failure to surrender to bail at the appointed time is an offence under the Bail Act 1976. When the defendant does not attend as required then the court will consider whether it can proceed with the hearing anyway.

Question 101

4.3 Defendant’s presence

Answer 101

This will not usually be possible if the hearing will deal with allocation of an either-way offence or sending an indictable (either-way or indictable only) case to the Crown Court. If the defendant has been summonsed to court (typically used for non-imprisonable, minor or road traffic offences) the defendant does not commit any offence for non-appearance. Provided the prosecution has served the statements and the defendant has been warned of the hearing,
then the case can proceed in the absence of the defendant. If convicted, then the penalty can
also be imposed in absentia.

Question 102

4.4 Initial details of the prosecution case (IDPC)

4.4.1 Criminal Procedure Rules, Part 8

Answer 102

The prosecution is obliged to serve the initial details on the court officer as soon as practicable and in any event, no later than the beginning of the day of the first hearing. Where a defendant requests those details, the prosecutor must serve them on the defendant as soon as practicable and, in any event, no later than the beginning of the day of the first hearing.

Question 103

4.4.1 Criminal Procedure Rules, Part 8

Answer 103

A solicitor would almost certainly request the documents. The Crown Prosecution Service now uses
electronic case files. These can be sent to defence representatives via secure email. Ordinarily, the failure to supply initial details does not constitute a ground upon which a court may dismiss a charge or give rise to an abuse of process application. The usual remedy is for the court to adjourn a first hearing and/or award costs to the defence for the prosecution’s failure to
serve.

Question 104

4.4.2 Initial details

Initial details have to include

Answer 104

Initial details must include:
* A summary of the circumstances of the offence;
* Any account given by the defendant in interview;
* Any written statements and exhibits that are available and material to plea and/or mode of trial or sentence;
* Victim impact statements; and
* The defendant’s criminal record.

Question 105

The rules prescribe that where the defendant was in police custody immediately before the first
hearing, initial details need only comprise:

Answer 105

A summary of the circumstances of the offence; and
* The defendant’s criminal record.
* The information supplied must be sufficient at the first hearing to allow the court to take an informed view on plea and venue for trial.
* Where no guilty plea is anticipated, they should be sufficient to assist the court in identifying the real issues and in giving directions. The information required for the Preparation for Effective Trial (PET) form must be available and where there is to be a trial, the parties must
complete the form.

Question 106

4.5 First hearings

Answer 106

4.5.1 Summary and either-way offences
The first hearing will be the hearing that deals with matters such as:
* Plea;
* Bail;
* Representation and legal aid.
Depending on the type of offence it might progress to sentence.

Question 107

4.5.2 Indictable only

Answer 107

The magistrates’ court has no jurisdiction to deal with an indictable only offence and so a defendant charged with an indictable only offence makes only a brief first appearance in a magistrates’ court.
The court will deal with bail and legal aid then the defendant is sent to the Crown Court where they will enter a plea. The hearing at the Crown Court is three or four weeks later depending on the defendant’s bail status.

Question 108

4.6 Summary only offences in the Crown Court

Answer 108

• There is an important exception to the rule that summary only offences never go to Crown Court.
• This happens when a defendant is charged with an offence that is to be tried in the Crown Court and there is a summary only offence which is connected to the indictable offence.
• If the summary only offence is one of those listed below and is before the magistrates’ court at the same hearing as the indictable offence, it must be sent to the Crown Court.

Question 109

Related summary matters that must be sent for trial and included on an
indictment (s 40 CJA 1988)

Answer 109

• Common assault
• Assaulting a prison or secure training centre officer
• Taking a motor vehicle or other conveyance without authority
• Driving a motor vehicle while disqualified
• Criminal damage

Question 110

Related summary matters

Answer 110

A summary offence that is on the s 40 Criminal Justice Act (CJA) 1988 list and is related to the matter that has been sent to the Crown Court for trial can be included on the indictment and the jury will consider it then return a verdict.

Question 111

Related summary matters that must be sent for plea only
(s 51(3) CDA 1998)

Answer 111

Any summary matter not listed in s 40 CJA 1988 but that is punishable by disqualification from driving or imprisonment

Question 112

Related summary matters

Answer 112

Where a summary only offence is not on the list in s 40 it will not appear on the indictment. When the trial for the indictable offence is over, the accused will be asked to enter a plea in relation to the summary only offence. If D pleads guilty, the Crown Court may deal with the offence in any way that would have been open to a magistrates’ court. If D pleads not guilty, the Crown Court has no further power to deal with the offence. If there is to be a trial it is remitted to a magistrates’ court.

Question 113

4.7 Summary

Answer 113

This section considered first hearings and case management in the magistrates’ court for adult
defendants.

Question 114

• First hearings-

Answer 114

All adult defendants have their first hearing before a magistrates’ court
irrespective of the offence that they are charged with. Exactly what happens at the first hearing depends on the classification of offence which the defendant is charged with.

Question 115

• Pleas

Answer 115

At a first hearing for a summary only or an either-way offence the defendant will be
asked to enter their plea to a charge.

Question 116

Initial details

Answer 116

The prosecution is obliged to serve ‘initial details’ as set out in Criminal
Procedure Rules, Part 8 which includes a summary of the circumstances of the offence and
the defendant’s criminal record and sometimes other documents. The information supplied must be sufficient at the first hearing to allow the court to take an informed view.

Question 117

Summary only offences in the Crown Court

Answer 117

Exception for related linked offences. Whether or not the related offences will be tried on the indictment depends if the offence is listed in s 40
Criminal Justice Act 1988.

Question 118

5 First hearings: Either- way offences

5.1 Plea before venue

Answer 118

At a first hearing when the offence is one which is triable either-way, the defendant will be asked to indicate their plea. The defendant is supplied with a copy of the initial details by the prosecutor in accordance with Criminal Procedure Rules, Part 8. The charge is written down and read out to the defendant.
The defendant can:
* Indicate guilty;
* Indicate not guilty; or
* Give no indication.

Question 119

No indication

Answer 119

Where no indication is given, it is treated as a not guilty indication.
This is part of the hearing is known as ‘plea before venue’ and this procedure is set out in s 17A
Magistrates’ Courts Act 1980.

Question 120

Plea before Venue

Answer 120

Before they indicate their plea, the defendant must be warned that if they plead guilty, they can
be:
* Sentenced by the court; or
* Committed to the Crown Court for sentence under s 14 Sentencing Act 2020 if a magistrates’
court is of the opinion that its sentencing powers are insufficient to deal with the offence

Question 121

A guilty plea

Answer 121

A guilty plea must be unequivocal; that is to say, it must be one free of any suggestion or statement that the defendant is not guilty, either because they purport to rely on a defence or refuse to accept an section of the offence. If a plea is equivocal, it will be treated as a not guilty plea rather than a guilty plea. Examples of an equivocal plea are:
* To an allegation of inflicting grievous bodily harm- ‘Guilty, but I was acting in self-defence’
* To an allegation of theft- ‘Guilty, but I was going to give it back’

Question 122

5.2 Guilty plea

Answer 122

If the defendant indicates a guilty plea the court will treat that as a formal plea of guilty and
proceed to sentence.
As an either-way offence can be sentenced in either a magistrates’ court or the Crown Court, a
magistrates’ court must consider whether its sentencing powers would be sufficient in the circumstances given. A magistrates’ court does not have power to impose more than 6 months imprisonment in respect
of any summary only or single either-way offence (s 224 Sentencing Act 2020).

Question 123

5.2 Guilty plea

Answer 123

For two or more either-way offences in the magistrates’ court, the maximum sentence is 12
months imprisonment. If the court decides that its powers are sufficient then sentence may be passed immediately or adjourned for the preparation of a pre-sentence report (‘PSR’). The sentencing process is
considered in more detail in another section.

Question 124

5.2 Guilty plea

Answer 124

Where the court adjourns sentence for the preparation of a PSR, it must be careful not to create an expectation that the offender will be sentenced in a magistrates’ court if there is a possibility of committal for sentence The court should make it clear that all sentencing options, including committal to the Crown
Court for sentence, remain open.

Question 125

5.3 Committal for sentence

Answer 125

If the court decides that its powers are insufficient either because the sentence exceeds their maximum, or because the defendant should be made subject to a sentence of a kind that they cannot pass, then the defendant will be committed for sentence to the Crown Court. A magistrates’ court should order a PSR for use by the Crown Court if it considers that:
* There is a realistic alternative to a custodial sentence; or
* The defendant may be a dangerous offender; or
* There is some other appropriate reason for doing so

The defendant will make their next appearance at the Crown Court to be sentenced by a Crown Court Judge who will be able to pass a sentence of anything up to the Crown Court limit for the offence.

Question 126

5.4 Not guilty plea

Answer 126

If a defendant indicates a not guilty plea then the court moves on to consider where the trial will
be held. This is known as allocation and is set out in s 19 Magistrates’ Courts Act 1980. Additionally, the court must follow the allocation guideline. The court must take into account the allocation guideline which indicates that either-way
offences should generally be tried summarily unless:

Question 127

5.4 Not guilty plea

Answer 127

• The court’s sentencing powers would be insufficient ie the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) after taking into account personal mitigation and any potential reduction for a guilty plea; or
• For reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court

Question 128

5.5 Allocation hearing

Answer 128

The allocation guideline states that in cases with no factual or legal complications the court must
bear in mind its power to commit for sentence after trial (s14 Sentencing Act 2020) and, crucially,
may retain jurisdiction notwithstanding that the likely sentence might exceed its powers.
This means that, in practice, cases are likely to be retained and tried in the magistrates’ court unless the offence was clearly so serious that only the Crown Court should have the power to deal with the defendant.

Question 129

5.5 Allocation hearing

Answer 129

Given the key consideration for a magistrates’ court when deciding whether to accept jurisdiction
is whether its sentencing powers are adequate, the court will need to consider the relevant
sentencing guidelines and any associated case law. The court should also take into account the submissions of the parties.
The prosecution
* Opens with the facts.
* Outlines the defendant’s offending history (if any).
* Makes submissions as to where the trial should be held consistent with the allocation
guidelines.

Question 130

The submissions will cover the nature and seriousness of the offence including any particular
aggravating and mitigating features.

Answer 130

The defence
* Can make submissions as to venue.
* Where they agree with the prosecution it may be no more than saying that.
* However, if the prosecution submits that the case should be heard in the Crown Court and the defence disagree, they will need to make fuller, more persuasive submissions at this point.

Question 131

5.5 Allocation hearing

Answer 131

The court must then decide whether to allocate the case to a magistrates’ court (accept jurisdiction) or send it to the Crown Court. If they decide to allocate it to the Crown Court, the matter is sent pursuant to s 51 Crime and Disorder Act 1998 and the defendant will make their next appearance at the Crown Court. The
defendant has no right to elect a magistrates’ court trial in these circumstances.

Question 132

If the court decides to retain jurisdiction (s 20 Magistrates’ Courts Act 1980), there are further
steps in this process.

Answer 132

The court will explain to the defendant that:
* The court has decided that summary trial is more suitable.
* The defendant can consent to be tried summarily or, if D so wishes, be tried by a jury.
* If D is tried summarily and is convicted, D may still be committed to the Crown Court for
sentence.

Question 133

5.6 Indication of sentence

Answer 133

• The defendant is able to ask for an indication of sentence if they were to plead guilty instead.
• The court has the discretion as to whether they will give an indication.

Question 134

5.6 Indication of sentence

Answer 134

• The court can decline to give an indication.
• If they do, it must be confined to telling the defendant whether the sentence would be
  custodial or non-custodial.

Question 135

5.6 Indication of sentence

Answer 135

• If the defendant asks for an indication and one is given, they can change their plea to guilty
  and the process followed will be as if they had pleaded guilty from the outset.
• Where a non-custodial sentence is indicated, that indication will be binding on any later
  magistrates’ court.

Question 136

5.7 Election

Answer 136

If the defendant does not ask for an indication, or if the court refuses to give one, or if having heard the indication the defendant sticks with their not guilty plea, the court asks the defendant:
* If they consent to being tried in a magistrates’ court, meaning the case will be adjourned; or
* If they want to elect to be tried by a jury meaning the case will be transferred to the Crown
Court.

Question 137

5.7 Election

Answer 137

The defendant will be told that even if they consent to summary trial, the court still has the power
to commit them to the Crown Court for sentence. Note. If the defendant chooses not to change their plea to guilty then the indication given will not bind any later court in the event that the defendant falls to be sentenced.

Question 138

5.8 Advice on election

Answer 138

It is one of the duties of the defendant’s legal representative to advise the defendant on whether
to consent to summary trial or to elect trial.

Question 139

5.8.1 Elect trial on indictment

Answer 139

Quite often the advice will be to elect trial on indictment in the Crown Court:
* The acquittal rate is higher in the Crown Court; and
* The separate tribunals of law and fact in the Crown Court can be advantageous to the defendant. Voir dire procedures allow the judge to hear arguments to exclude evidence in the absence of the jury.
* It is not always the case that a Crown Court Judge will sentence more harshly than a magistrates’ court.

Question 140

5.8.2 Consent to summary trial

Answer 140

Proceedings in a magistrates’ court:
* Are less formal
* The waiting time before the trial date is much shorter
* The trial itself is much quicker.
* Do not require a defendant to serve a defence statement.
* Are less expensive than the Crown Court.
* Magistrates have to provide reasons for their decision whereas juries do not give reasons.
* Magistrates have less sentencing powers than those of the Crown Court. However, the magistrates’ court has a power to commit to the Crown Court for sentence even after trial.

Question 141

5.9 Next steps

5.9.1 D consents to summary trial

Answer 141

If the defendant consents to summary trial then the court:
* Progresses as if the case were a summary only offence
* Sets a trial date
* Conducts any case management that is required.

Question 142

5.9.2 D elects Crown Court trial

Answer 142

If the defendant elects trial at the Crown Court then:
* The matter is sent pursuant to s 51 Crime and Disorder Act 1998;
* The defendant will make their next appearance at the Crown Court.
* The court will complete the ‘Case sent to the Crown Court for trial – case management
questionnaire’.

Question 143

5.10 Exceptions to the rule

Answer 143

The simple rule that summary only offences must be dealt with in the magistrates’ court, indictable only must be sent to Crown Court and either-way can be dealt with in either court is, naturally, subject to some exceptions. In relation to either-way offences there are some key ‘special cases’ which affect the jurisdiction
of some offences nominally classed as either-way by making some into summary only and others
indictable only.

Question 144

5.10 Exceptions to the rule

Answer 144

The key ones are:
* Low value shoplifting
* Criminal damage
* Cases involving complex fraud or where children may be called as witnesses

Question 145

5.10.1 ‘Special’ cases

Low-value shoplifting

Answer 145

Low value shoplifting is stealing goods valued at £200 or less.
Although theft is a an either-way offence low value shoplifting is treated as summary only.
The maximum sentence is 6 months.
Somewhat oddly, the defendant still has the right to elect to be tried at the Crown Court under s
22A(2) Magistrates’ Courts Act 1980.

Question 146

Criminal damage

Answer 146

Although classed as either-way the offence can be dealt with at the Crown Court only when the
damage is:
* Over £5000; or
* Caused by fire (arson).
If £5000 or less, the offence becomes summary only and must be dealt with in the magistrates’ court. When this is the case, the maximum penalty that can be imposed is 3 months’
imprisonment or a level 4 fine. This is an exception to the normal rule regarding magistrates’ powers.

Question 147

Section 50A Crime and Disorder Act 1998

Answer 147

provides that cases involving complex fraud or where
children may be called as witnesses should be sent directly to the Crown Court, if notice has been
given under:
* Section 51B (regarding fraud); or
* Section 51C (regarding children).

Question 148

Section 50A Crime and Disorder Act 1998

Answer 148

Although the offences themselves might be classed as either-way, these type of cases will be sent to the Crown Court without going through the plea before venue or allocation procedure. For all intent and purposes, they are indictable only.

Question 149

5.10.2 Complex fraud

Answer 149

To be complex fraud, at least two of the following must be present:
* The amount is alleged to exceed £500,000
* There is a significant international dimension
* The case requires specialised knowledge of financial, commercial, fiscal or regulatory matters such as the operation of markets, banking systems, trusts or tax regimes

Question 150

5.10.2 Complex fraud

Answer 150

• There are numerous victims
• There is substantial and significant fraud on a public body
• The case is likely to be of widespread public concern or the alleged misconduct endangered
  the economic well-being of the United Kingdom, for example by undermining confidence in
  financial markets

Question 151

5.11 Sending cases to the Crown Court

Indictable only

Answer 151

Always sent to Crown Court

Question 152

Either-way offences

Answer 152

• Committed for sentence following a guilty plea.
• Committed for sentence after trial in the magistrates’ court.
• Sent for trial where the court has declined jurisdiction following a not guilty plea.

Question 153

Either-way offences

Answer 153

• Sent for trial where the court has accepted jurisdiction following a not guilty plea but the defendant elects Crown Court trial.
• Cases involving complex fraud or where children may be called as witnesses when notice has
  been given. Except for ‘special’ cases of low value shoplifting where D has not elected trial in the Crown Court and simple criminal damage to the value of £5,000 or below

Question 154

5.12 Summary

Answer 154

This section considered first hearings at the magistrates’ court for adult defendants charged with an either-way offence:
* First hearing- deals with matters such as plea and allocation, along with bail. The defendant
generally must be present at the first hearing.
* Special cases:
- Low value shoplifting- while theft is an either-way offence, low value shoplifting valued at
£200 or less is treated as summary only (although D still has the right to elect trial in the Crown Court).
- Criminal damage- while an either-way offence, simple criminal damage to the value of £5,000 or below, is summary only.
- Complex fraud cases or where children may be called as witnesses- while these offences might be classed as either-way, they will be sent to the Crown Court without allocation.

Question 155

5.1.2 Summary

Answer 155

• Plea before venue- the defendant will be asked to indicate their plea to a charge.
• D indicates an unequivocal guilty plea- the court will sentence the defendant unless of the opinion that it is necessary to commit the defendant to Crown Court for sentence.

Question 156

5.12 Summary

Answer 156

D indicates a not guilty plea-
- Allocation- the court will decide whether to allocate the case to a magistrates’ court (accept jurisdiction) or send it to the Crown Court (decline jurisdiction).
- Indication of sentence- the defendant is able to ask for an indication if they were to plead
guilty instead and the court has the discretion as to whether they will give it.
- Election- If the court decides to accept jurisdiction D can consent to being tried in a magistrates’ court or elect to be tried by a jury in the Crown Court. It is one of the duties of
the defendant’s legal representative to advise the defendant on whether to consent to summary trial or to elect trial.

Question 157

6 First hearings: Summary only offences

Answer 157

6.1 Case management
Each party must actively assist the court in furthering the overriding objective.
This includes:
* Communication between the prosecutor and the defendant at the first available opportunity
and in any event no later than the beginning of the day of the first hearing and after that, communication between the parties and with the court officer until the conclusion of the case

Question 158

• Establishing, among other things:

Answer 158

• Whether the defendant is likely to plead guilty or not guilty,
• What is agreed and what is likely to be disputed,
• What information, or other material, is required by one party of another, and why, what is to be done, by whom, and when (without or if necessary with a direction), and
• Reporting on that communication to the court.

Question 159

6.2 Pleas

Answer 159

The ‘initial details’ as set out in Criminal Procedure Rules, Part 8 must at the very least include a
summary of the circumstances of the offence and the defendant’s criminal record. If the defendant is on bail, it will include other documents. It must be supplied to the defendant if they
request it. The defendant will be asked to enter their plea.

Question 160

6.2.1 Summary only - guilty plea

Answer 160

If the defendant pleads guilty the court will proceed to sentence. Sentence will often be passed
immediately but can be adjourned for further information. The sentence most used by magistrates is a fine. The maximum sentence that a magistrates’ court can impose for summary only offences is a total of 6 months imprisonment. Sentencing is dealt with further in a separate section.

Question 161

6.2.2 Summary only - not guilty plea

Answer 161

If the defendant pleads not guilty then the court will set a trial date and do any necessary case management to ensure that the trial is effective on that date. This includes completing the case progression form ‘Preparation for Effective Trial form’ (‘PET’):
* The defendant’s and legal representative’s contact details;
* Names, numbers, types of witness and which party requires their attendance at court;
* The estimated length of trial;
* Identification of trial issues;

Question 162

6.2.2 Summary only - not guilty plea

Answer 162

• Advance warning whether any applications are to be made (e.g. special measures, bad character and hearsay);
• Whether any prosecution statements can be read;
• Whether any special arrangements need to be made (e.g. interpreter, wheelchair access, hearing loop system) for anyone attending the trial, and
• That the defendant advocate has advised D of credit for early guilty plea and that trial will go ahead in D’s absence if D fails to attend on the trial date.

Question 163

6.2.2 Summary only - not guilty plea

Answer 163

Setting out what the issue(s) at trial will be and which witnesses are required to give live evidence
allows the court to actively manage the case, by ensuring that only those witnesses whom the defence want to challenge on their evidence come to court.

The court should set a timetable for the trial and an estimate of how long the trial will take. Magistrates’ courts are encouraged to scrutinise with the utmost vigour any time estimate in
excess of a day for a summary trial.

Question 164

6.2.2 Summary only - not guilty plea

Answer 164

Most courts have standard directions about how the parties should prepare the case. These
standard directions must be complied with unless the magistrates direct otherwise. Directions (standard or otherwise) usually concern issues pertaining to bad character evidence,
hearsay evidence, special measures to protect witnesses when they are giving evidence, disclosure, expert evidence, editing transcripts of interviews and serving certificates of readiness for trial.

Question 165

6.2.2 Summary only - not guilty plea

Answer 165

The magistrates’ court also has a case progression officer to monitor directions made by the court. In addition, both CPS and defence advocates must indicate a nominated person in their respective offices who will be responsible for complying with the directions.

Question 166

Pre-trial hearings

Answer 166

Where a case has been set down for summary trial, the court can conduct pre-trial hearings at which pre-trial rulings can be made. These can cover matters such as admissibility of evidence and fitness to plead. Rulings can be made on the application of the defence or prosecution, or of
the court’s own motion.

Question 167

Pre-trial hearings

Answer 167

A pre-trial ruling is binding until the case is disposed of by:
* Conviction or acquittal of the defendant; or
* A prosecution decision not to proceed; or
* The dismissal of the case.

Question 168

Pre-trial hearings

Answer 168

The court can, however, discharge or vary a pre-trial ruling if it is in the interests of justice to do so and the parties have been given an opportunity to be heard. A party can apply to have a pre-trial ruling varied or discharged only if there has been a material change of circumstances.

Question 169

6.2.3 Pleading guilty by post

Answer 169

In summary only cases where:
* The matter has been commenced by summons or requisition; and
* The prosecutor has served a summary of the evidence on which the prosecution case is based;
and
* The prosecutor has served information relevant to sentence

Question 170

6.2.3 Pleading guilty by post

Answer 170

The defendant can complete the necessary documentation and plead guilty in writing without the need to attend court at all. The court may accept such a guilty plea and pass sentence in the defendant’s absence. This procedure is used for minor non imprisonable offences such as speeding or driving without insurance.

Question 171

6.3 Summary

Answer 171

This section considered:
* Pleas - At a first hearing for a summary only or an either-way offence the defendant will be
asked to enter their plea to a charge. Guilty pleas must be unequivocal.

Question 172

Sentence

Answer 172

If the defendant pleads guilty then the court will sentence. This can be done in the defendant’s absence.

Question 173

Trial

Answer 173

If the defendant pleads not guilty then the court will issue directions to allow the case to be tried at a later date.

Question 174

Initial details

Answer 174

The prosecution is obliged to serve ‘initial details’ as set out in Criminal
Procedure Rules, Part 8 which includes a summary of the circumstances of the offence and
the defendant’s criminal record and sometimes other documents. The information supplied must be sufficient at the first hearing to allow the court to take an informed view.

Question 175

7 Disclosure: Prosecution

Answer 175

During a criminal investigation the police or other prosecuting authority will often speak to a number of witnesses and take statements from them. They will often look through documents, check CCTV and follow various avenues in their search for evidence. The result, depending on the nature of the case, is that a significant volume of material builds up, some of which will be
relevant to proving the case and some of which will not.

Question 176

It is predominantly from this investigative material that the prosecution decide which material will be:

Answer 176

• Used - ie relied upon at trial; and
• Unused - ie not relied upon at trial.

Question 177

7.1.1 Used material

Answer 177

Used material is the material the prosecution will rely upon at trial to prove its case against a
defendant. Used material consists of the case papers and other material that forms part of the evidence in the case, so it will include such items as:
* Statements from the prosecution witnesses
* The defendant’s record of taped interview
* Other documentary exhibits such as plans and diagrams that are relevant to proving the case. It is from these materials that defendants will know what the cases against them are.

Question 178

7.1.2 Unused material

Answer 178

Unused material is material that is not being relied upon by the prosecution. Unused material will
include items such as:
* Statements from witnesses that the prosecution is not relying upon at trial to prove its case
* Records of previous convictions of prosecution witnesses
* Disciplinary findings against police officers.

Question 179

7.2 The importance of unused material

Answer 179

Unused material can be extremely important to a defendant in a criminal trial. Often a case will
be based on a number of witnesses whose evidence, if believed, is sufficient to convict the
defendant of a criminal charge. In the same case there might be other witnesses who throw doubt
on this

Question 180

7.2 The importance of unused material

Answer 180

If the prosecution, having reviewed all the material available, considers that there is a realistic prospect of conviction and that it is in the public interest to prosecute the case, it would clearly be wrong to only reveal to the defendant the material that supports its case and not the material that does not.

Question 181

7.2 The importance of unused material

Answer 181

Fairness demands that material in the hands of the prosecution that might help a defendant is
served on that defendant.
The defendant may choose to present that material in defence at trial.

Question 182

7.2 The importance of unused material

Answer 182

It follows that full and proper disclosure is at the heart of a fair system of criminal justice. It is a
vital part of the preparation for trial and for this reason rules have developed as to both the duty
to disclose unused material and the duty to retain material during a criminal investigation. R v H and C [2004] UKHL 3; [2004] 2 AC 134; [2004] 2 Cr App R 10

Question 183

The (then) House of Lords put it this way:

Answer 183

‘Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that
full disclosure of such material should be made.’ [2004] 2 AC 134, at 147.

Question 184

7.3 Main disclosure provisions

Answer 184

The principal provisions relating to unused material can be found in:
* The Criminal Procedure and Investigations Act (CPIA) 1996, Part 1 (ss.1 to 21)
* The Code of Practice on Disclosure, issued under s.23 CPIA (the Disclosure Code of Practice)
* Criminal Procedure Rules (CrimPR) Part 15

Question 185

7.3 Main disclosure provisions

Answer 185

• The Attorney General’s Guidelines on Disclosure - for Investigators, Prosecutors and Defence
  Practitioners (the A-G’s Guidelines)
• The Judicial Protocol on the Disclosure of Unused Material in Criminal Cases (the Judicial
  Disclosure Protocol)
  The disclosure provisions in this section relate to offences in relation to which criminal investigations commenced on or after 1 April 1997.

Question 186

7.4 The four stages of disclosure

Answer 186

The general scheme of disclosure falls into four stages:
(a) The investigation stage- the duty to record and retain material during the investigation;
(b) The initial duty of disclosure on the prosecution;
(c) Defence disclosure; and
(d) The continuing duty on the prosecution to keep disclosure under review

Defence disclosure and the continuing duty on the prosecution to keep disclosure under review
are dealt with in separate sections.

Question 187

7.5 The investigation stage

Answer 187

7.5.1 The duty to retain and record relevant material. Under the Disclosure Code of Practice, during a criminal investigation all material (including information) which may be relevant to the investigation must be recorded in a durable or retrievable form and retained.

Question 188

Every investigation will have:

Answer 188

• An officer in charge of the investigation- who is responsible for directing the investigation and
  ensuring that proper procedures are in place for recording information and retaining records of information and other material;
• An investigator- namely any police officer conducting the investigation; and
• A disclosure officer- who is responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor’s request.

Question 189

In routine cases all these functions may be carried out by the same person, although in complex
cases the roles will be individually assigned

Answer 189

The investigator- must follow all reasonable lines of enquiry, whether these point towards or
away from the suspect and the investigator must be ‘fair and objective’.
* Disclosure officers- must inspect, view, listen to or search all relevant material that has been retained by the investigator and must provide a personal declaration that this has been done. Where there is doubt as to whether any material is disclosable, the disclosure officer must seek the advice and assistance of the prosecutor.

Question 190

All material which may be relevant to a criminal investigation must be retained. This includes, in
particular:

Answer 190

• Crime reports
• Records from tapes or telephone messages (such as 999 calls) containing the description of an
  alleged offender
• Witness statements (and drafts if they differ from the final version)
• Exhibits
• Interview records
• Experts’ reports and communications between the police and experts for the purposes of
  criminal proceedings
• Records of first descriptions of suspects and any material casting doubt on the reliability of a
  witness.

Question 191

All material which may be relevant to a criminal investigation must be retained. This includes, in
particular:

Answer 191

In addition, the duty to retain relevant material includes information provided by an accused
person which indicates an explanation for the offence charged and any material which casts
doubt on the reliability of a confession. The duty to retain material lasts at least until a decision is taken whether to institute proceedings against a suspect for a criminal offence

Question 192

All material which may be relevant to a criminal investigation must be retained.

Answer 192

Once proceedings are commenced, all material must be retained until the accused is acquitted or
convicted, or the prosecutor decides not to continue with the case.
Where the defendant is convicted, the material must be retained at least until the defendant is released from custody (or discharged from hospital) or, in cases which did not result in a custodial sentence or a hospital order, until six months from the date of conviction.

Question 193

All material which may be relevant to a criminal investigation must be retained.

Answer 193

In cases where an appeal against conviction is in progress all material that may be relevant must
be retained until the appeal is concluded. Where material comes to light after proceedings have
concluded which throws doubt upon the safety of the conviction, the prosecutor must consider
disclosure of the material.

Question 194

7.5.2 Provision of unused material to prosecutor

Answer 194

The Disclosure Code of Practice sets out a procedure for the prosecutor to be notified by the disclosure officer of every item of unused material.
* In Crown Court cases the disclosure officer prepares a schedule known as an MG6C which
individually lists the items of unused material.
* In magistrates’ court cases where a Not Guilty plea is anticipated the unused material is listed
on a streamlined disclosure certificate.

Question 195

7.5.2 Provision of unused material to prosecutor

Answer 195

In cases involving sensitive material (ie material the disclosure of which the disclosure officer
believes would give rise to a real risk of serious prejudice to an important public interest) the sensitive material is listed in a separate schedule or, in exceptional circumstances where its
existence is so sensitive that it cannot be listed, it is revealed to the prosecutor separately. This may form the subject of a Public Interest Immunity Application at a later stage.

Question 196

7.5.2 Provision of unused material to prosecutor

Answer 196

Disclosure officers must certify that to the best of their knowledge and belief they have complied
with their duties under the Disclosure Code of Practice.
This will include ensuring that all relevant unused material is clearly listed and brought to the
attention of the prosecutor so that full and proper disclosure can be made in accordance with the
test set out in the next section.

It is worth noting that the disclosure officer should exercise judgement and be directed by the prosecutor as to what is likely to be the most relevant and important material for disclosure.

Question 197

7.6 Prosecution duty of disclosure

7.6.1 The prosecutor’s initial duty of disclosure

Answer 197

The initial duty of disclosure is contained in the Criminal Procedure and Investigations Act (CPIA)
1996 s 3:
‘s 3(1) The prosecutor must:
(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, or
(b) give to the accused a written statement that there is no material of a description mentioned
in paragraph (a).

Question 198

The duty of disclosure relates to ‘prosecution material’ – this is defined in s.3(2) as material:

Answer 198

’(a) which is in the prosecutor’s possession, and came into his possession in connection with
the case for the prosecution against the accused, or
(b) which, in pursuance of [the Disclosure Code of Practice], he has inspected in connection
with the case for the prosecution against the accused.’
(See s.3(2) and s.7A(6) CPIA.)
The disclosure test under s.3 CPIA is an objective one. In essence, where there is in existence prosecution material which might help the defence then it should be disclosed.

Question 199

The A-G’s Guidelines add further detail to the disclosure test, namely that in deciding whether or
not material should be disclosed under s.3 CPIA, prosecutors should consider, amongst other
things

Answer 199

(a) The use that might be made of the material in cross-examination;
(b) Its capacity to support submissions that could lead to:
(i) The exclusion of evidence;
(ii) A stay of proceedings as an abuse of process, where the material is required to allow a proper application to be made;
(iii) A court or tribunal finding that any public authority had acted incompatibly with the accused’s rights under the ECHR.

Question 200

The A-G’s Guidelines

Answer 200

(c) Its capacity to suggest an explanation or partial explanation of the accused’s actions;
(d) The capacity of the material to have a bearing on scientific or medical evidence in the case
(including relating to the defendant’s mental or physical health, intellectual capacity, or to any ill treatment which the accused may have suffered in custody).

Question 201

The A-G’s Guidelines

Answer 201

The A-G’s Guidelines go on to state that it should also be borne in mind that while items of material viewed in isolation may not be reasonably considered to be capable of undermining the prosecution case or assisting the accused, several items together can have that effect. As such, when considering if unused material must be disclosed, prosecutors must take into account all those circumstances in which such material might reasonably be capable of supporting the defence case or undermining the prosecution case.

Question 202

The A-G’s Guidelines

Answer 202

Material which is supportive of the prosecution case (and which the prosecution chooses not to
rely upon) or which is neutral in its effect need not be disclosed as unused material because it does not satisfy the disclosure test. What is of paramount importance is that the prosecution fulfil its duty of considering all material in light of the disclosure test and acting in accordance with it.

Question 203

Material which is supportive of the prosecution case (and which the prosecution chooses not to
rely upon) or which is neutral in its effect need not be disclosed as unused material because it
does not satisfy the disclosure test.
What is of paramount importance is that the prosecution fulfil its duty of considering all material
in light of the disclosure test and acting in accordance with it.

Answer 203

In R [2016] 1 WLR 1872 the Court of Appeal addressed those problems facing the prosecution in
long and complex cases where large volumes of material are seized, including electronic data,
during the course of the investigation:

Question 204

“Disclosure Management Document

Answer 204

(a) The prosecution are in the driving seat at the initial disclosure stage - the prosecution must adopt a considered and appropriately resourced approach to giving initial disclosure and must explain what it was doing and what it would not be doing at this stage, ideally in the
form of a “Disclosure Management Document”;

Question 205

Encouraging Dialogue

Answer 205

(b) The prosecution must encourage dialogue with the defence and engage promptly with them -
the defence had then to engage with the prosecution and assist the court in fulfilling its duty of furthering the overriding objective;

Question 206

Formulating a disclosure strategy

Answer 206

(c) The law is prescriptive of the result, not the method of disclosure - at the initial disclosure stage the prosecution should formulate a disclosure strategy, then canvass that strategy with both the court and the defence and should use technology to make an appropriate search or
conduct an appropriate sampling exercise of the material seized;

Question 207

Robust case management

Answer 207

(d) The disclosure process should be subject to robust case management by the judge - the court was entitled and obliged to give orders and directions to address disclosure failings with which it was confronted;

Question 208

Flexibility is critical

Answer 208

(e) Flexibility is critical - disclosure was not a ‘box-ticking’ exercise and the constant aim was to
make progress.

Question 209

7.6.2 Time limits for initial disclosure

Answer 209

The prosecution will serve initial details of the prosecution case (used material) no later than the
beginning of the day of the first hearing in accordance with CrimPR Part 8. The details must include sufficient information to allow the defendant and the court at this first
hearing to take an informed view:
(a) On plea;
(b) On venue for trial (for either-way offences);
(c) For the purposes of case management;
(d) For the purposes of sentencing (including committal for sentence for either-way offences).

Question 210

Concerning the disclosure of unused material by the prosecution, this statutory duty under the CPIA (the initial duty of disclosure) arises:

Answer 210

• In the magistrates’ court only when a defendant pleads not guilty and the case is adjourned for summary trial; and
• In the Crown Court when a defendant is sent for trial or where a Voluntary Bill of Indictment has been preferred against a defendant (s.1 CPIA).

Question 211

7.6.2 Time limits for initial disclosure

Answer 211

However, even when this statutory duty has not arisen, a responsible prosecutor has to be alive to
the need for advance disclosure of material which the prosecutor recognises should be disclosed
at this early stage in the interests of justice and fairness, such as which might assist the defence
with the early preparation of their case or at a bail hearing; this is known as the common law duty
of disclosure

Question 212

7.6.2 Time limits for initial disclosure

Answer 212

The CPIA section 12 provides for statutory time limits for prosecution initial disclosure to be set by
regulation but none has yet been made. The default position under CPIA section 13 is that the
prosecutor must act ‘as soon as is reasonably practicable’ once the initial duty of disclosure
arises.

Question 213

7.7 Summary trial

Answer 213

In practical terms, at the first hearing in the magistrates’ court, where a defendant pleads not guilty and the case is adjourned for summary trial:
* If there is any further prosecution evidence still to be served the court will give a date by which
this must be done.
* If the prosecution has not complied with its initial disclosure of unused material at this stage, a
date will be given for this to be completed. In any event, prosecutors should serve initial disclosure in sufficient time to ensure that the trial
date is effective

Question 214

7.8 Crown Court trial

Answer 214

If the case is sent to the Crown Court for trial, a Plea and Trial Preparation Hearing (PTPH) will take place usually 28 days after sending. The prosecution should serve sufficient evidence in advance of or at the PTPH to enable the court to case manage effectively without the need for a further case management hearing, unless the case falls within certain exceptional categories
such as murder or cases involving children where a further hearing will be envisaged. At the PTPH,
if there is more prosecution evidence still to serve and/or if initial disclosure has not been complied
with, dates will be given by when this must be done.

Question 215

7.8 Crown Court trial

Answer 215

Once the prosecution has complied (or purported to comply) with its initial duty of disclosure, this
does not bring to an end the prosecution’s duty in this regard because the prosecution is under a
continuing duty to review disclosure throughout the criminal proceedings. Following initial disclosure by the prosecution, there is a duty on the defence (mandatory in the Crown Court and optional in the magistrates’ court) to provide a defence statement which sets out the accused’s defence to the allegation. This defence statement will allow the prosecution to review disclosure in
light of what it is told about the nature of the defence

Question 216

7.9 Summary

Answer 216

This section considered:
* Used materials (ie relied upon at trial) and unused (ie not relied upon at trial).
* The duty to record and retain material during a criminal investigation:

Question 217

A disclosure officer

Answer 217

Is responsible for examining material retained and revealing material
to the prosecutor and to the defence at the prosecutor’s request. In Crown Court cases the disclosure officer prepares an MG6C which individually lists the items of unused material.
In magistrates’ court cases where a Not Guilty plea is anticipated the unused material is listed on a streamlined disclosure certificate.

Question 218

The duration of the duty to retain material

Answer 218

Varies depending on whether proceedings are commenced, whether the defendant is convicted, what sentence the defendant received or whether an appeal against conviction is in progress.

Question 219

The disclosure test

Answer 219

Under s.3 CPIA is an objective one. In essence, where there is in existence
prosecution material which might help the defence then it should be disclosed.

Question 220

Time limit-

Answer 220

• The prosecution will serve initial details of the prosecution case (used material) no later than
  the beginning of the day of the first hearing in accordance with CrimPR Part 8.
• Disclosure of unused material by the prosecution arises in the magistrates’ court only when
  a defendant pleads not guilty and the case is adjourned for summary trial and in the Crown Court when a defendant is sent for trial.

Question 221

8 Disclosure: Defence

8.1 Defence statement

Answer 221

In the Crown Court, s.5 Criminal Procedure and Investigations Act (CPIA) 1996 imposes a duty on
a defendant to serve a defence statement on the Crown Court and the prosecution. A defence statement is a written statement which sets out the nature of the accused’s defence.
It should not be confused with a defendant’s proof of evidence to D’s own legal advisers which is a
privileged document and, thus, not disclosable to the prosecution

Question 222

Defence Statement

Answer 222

Defence disclosure should also not be confused with prosecution disclosure in that there is no
duty on the defence to serve material which might be helpful to the prosecution; rather, the defence statement is all about setting out with reasonable clarity what the defence case is.

Question 223

8.1.1 Defence statement: Contents

Answer 223

Section 6A CPIA 1996 provides that a defence statement must contain:
’6A Contents of defence statement
(1) For the purposes of this Part a defence statement is a written statement:
(a) setting out the nature of the accused’s defence, including any particular defences on which
he intends to rely,
(b) indicating the matters of fact on which he takes issue with the prosecution.

Question 224

8.1.1 Defence statement: Contents

Answer 224

(d) setting out particulars of the matters of fact on which he intends to rely for the purposes of
his defence, and
(e) indicating any point of law (including any point as to the admissibility of evidence or an
abuse of process) which he wishes to take, and any authority on which he intends to rely for
that purpose.

Question 225

8.1.1 Defence statement: Contents

Answer 225

(2) A defence statement that discloses an alibi must give particulars of it, including:
(a) the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given;
(b) any information in the accused’s possession which might be of material assistance in
identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.’

Question 226

8.1.2 Defence statement: Time limits

Answer 226

Crown Court
A defence statement is compulsory only in the Crown Court and must be served on the prosecution and the court (CrimPR r.15.4(2)) within 28 days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so). This time limit can be extended but only if the application to extend is made within the time limit
and only if the court is satisfied that it would not be reasonable to require the defendant to give a defence statement within 28 days

Question 227

Magistrates’ court

Answer 227

In the magistrates’ court a defence statement is not compulsory, but if a defendant chooses to serve a defence statement in such a case standard directions in the magistrates’ court provide
that the defendant must do so within 10 business days of the prosecution complying (or purporting to comply) with the initial duty of disclosure. It is worth noting here that although there is no obligation to serve a defence statement in the magistrates’ court, failure to do so will mean that the defence will be unable to make an application for specific disclosure.

Question 228

The Judicial Disclosure Protocol para 17 provides that:

Answer 228

‘Service of the defence statement is a most important stage in the disclosure process, and timely service is necessary to facilitate proper consideration of the disclosure issues well in advance of the trial date. Judges expect a defence statement to contain a clear and detailed exposition of the issues of fact and law. Defence statements that merely rehearse the suggestion that the defendant is innocent do not comply with the requirements of the CPIA.’

Question 229

8.3 Defence witnesses

Answer 229

In both the Crown Court and the magistrates’ court, the defendant must disclose to the court and
the prosecutor a notice indicating:
* If D intends to call any witnesses at trial (other than the defendant being a witness); and
* If so, identifying the witness by name, address and date of birth or any information to locate
and identify the witness.

Question 230

8.3 Defence witnesses

Answer 230

Alibi witnesses should be included in the defence statement and do not need to be repeated in the
Notice of Intention to Call Defence Witnesses. The Notice of Intention to Call Defence Witnesses must be given within 10 business days
(magistrates’ court standard directions) and 28 days (Crown Court) of the prosecution complying
or purporting to comply with initial disclosure The notice may be amended to add or remove witnesses.

Question 231

8.4 Disclosure failure by the defence

Answer 231

A number of consequences may follow, where a defendant in the Crown Court:
(a) Fails to serve a defence statement
(b) Fails to do so within the required time limits
(c) Serves a defence statement which is deficient in its content (such as not adequately setting out the defence relied on at trial or not including an alibi witness called at trial)
(d) Relies on a defence at trial which is different to that contained in the defence statement.

Question 232

8.4.1 Consequences: Defence disclosure failure

Answer 232

Under s.11 CPIA the jury may draw such adverse inferences as appear proper against the defendant for such a failure although a defendant cannot be convicted solely or mainly on the basis of such an adverse inference. In addition, the prosecution or co-defendant may comment on such failure without the leave of the court, other than where it relates to a point of law where leave is required.

Question 233

8.4.1 Consequences: Defence disclosure failure

Answer 233

Under s.11 CPIA the jury may draw such adverse inferences as appear proper against the defendant for such a failure although a defendant cannot be convicted solely or mainly on the basis of such an adverse inference. In addition, the prosecution or co-defendant may comment on such failure without the leave of the court, other than where it relates to a point of law where leave is required.

Question 234

8.4.1 Consequences: Defence disclosure failure

Answer 234

Section 6E(2) CPIA provides that a judge can warn the defendant at the PTPH or other pre-trial
hearing that failure to comply with the relevant provisions may lead to comment being made or
adverse inferences being drawn.

Question 235

Similarly, the A-G’s Guidelines state that

Answer 235

’Prosecutors should challenge the lack of, or inadequate, defence statements in writing, copying the document to the court and the defence and seeking directions from the court to require the provision of an adequate statement from the defence.’ (para 33).

Question 236

Similarly, the A-G’s Guidelines state that

Answer 236

Section 11 CPIA contains the only sanctions available to the court for failure by the defence to comply with its duties of disclosure. Accordingly, for example, it is not open to the court to prevent a defendant calling an alibi witness D has failed to include in a defence statement. The appropriate sanction here is comment/adverse inference.
In the magistrates’ court, no adverse inference can be drawn against a defendant for failing to serve a defence statement because there is no duty to do so under the CPIA

Question 237

Similarly, the A-G’s Guidelines state that

Answer 237

However, if the choice is made to serve a defence statement in the magistrates’ court, an adverse
inference could be drawn for the same reasons as in the Crown Court, such as for serving it out of
time or for putting forward a different defence at trial to that contained in the defence statement.
If a defence statement is not served in the magistrates’ court or the Crown Court the defendant
will not be able to make an application for specific disclosure under s.8 CPIA.

Question 238

Similarly, the A-G’s Guidelines state that

Answer 238

Moreover, failure to serve a defence statement in either the magistrates’ court or the Crown Court will mean that the prosecution will not have the opportunity to review disclosure in light of the issues that would otherwise have been set out within them.

Question 239

8.5 Summary

Answer 239

This section considered defence duties of disclosure in relation to defence statements:
* A defence statement is a written statement which sets out the nature of the accused’s defence with reasonable clarity eg the matters of fact on which D takes issue with the prosecution and why, any points of law D wishes to take including authority in support and particulars of any alibi witness (name, address and date of birth).
* A defendant must serve a defence statement in the Crown Court but not in a magistrates’
court.

Question 240

• Consequences of failing to disclose in the Crown Court are:

Answer 240

-The jury may draw such adverse inferences as appear proper
- The prosecution or co-defendant may comment on such a failure

Question 241

• Consequences of failing to disclose in the Crown Court or a magistrates’ court are:

Answer 241

-The defendant will not be able to make an application for specific disclosure
- The prosecution will not have the opportunity to review disclosure in light of the issues

Question 242

Defence witnesses

Answer 242

In the Crown Court and magistrates’ court, the defendant must disclose to
the court and the prosecutor a notice indicating if D intends to call any witnesses at trial (other than D) and if so, identifying the witness by name, address and date of birth or any
information to locate and identify the witness

Question 243

Time limits for the defence statement and Notice of Intention to Call Defence Witnesses:

Answer 243

• A defendant must do so within 28 days of the date when the prosecution complies with its duty
  of initial disclosure (or purports to do so) in the Crown Court; or
• A defendant must do so within 10 business days of the date when the prosecution complie with its duty of initial disclosure (or purports to do so) in a magistrates’ court (standard
  directions).

Question 244

9 Disclosure: Additional issues

Answer 244

This section considers additional disclosure issues such as:
* The continuing duty of disclosure by the prosecution
* Applications for specific disclosure
* Failure to disclose by the prosecution
* Third party disclosure
* Public interest immunity

Question 245

9.1 Continuing duty of disclosure by the prosecution

9.1.1 The duty to keep disclosure under review

Answer 245

Service of the defence statement provides the prosecution with a reasonable outline of what the
defence to a particular charge is and should prevent the prosecution being ambushed at trial with a surprise defence. The defence statement also allows prosecutors, in conjunction with disclosure officers and investigators, to revisit disclosure in light of any particular matters raised in the accused’s defence. It is therefore of assistance to the prosecution in informing them of what the defence is and to the defence in ensuring that disclosure is carried out in an informed way

Question 246

The A-G’s Guidelines para 39 advise that:

Answer 246

Defence Statements are … intended to help focus the attention of the prosecutor, court and co-defendants on the relevant issues in order to identify exculpatory unused material.’
Section 7A(2) Criminal Procedure and Investigations Act (CPIA) 1996 provides that there is a duty
on prosecutors to keep disclosure under review throughout the case and in particular when a defence statement is served.

Question 247

The Judicial Disclosure Protocol para 20 puts it like this:

Answer 247

‘In order to secure a fair trial, it is vital that the prosecution is mindful of its continuing duty of disclosure. Once the Defence Statement has been received, the Crown must review disclosure in the light of the issues identified in the Defence Statement.’

Question 248

The Judicial Disclosure Protocol para 20 puts it like this:

Answer 248

This continuing duty means the prosecutor must keep under review whether there is any material that should be disclosed, even after it has carried out a review following service of the defence statement. This also means that material must be disclosed even if it is discovered at a late stage in proceedings (eg even after close of the prosecution case at trial) and this duty lasts until the
defendant is convicted, acquitted or the prosecutor decides not to proceed with the case.

Question 249

The A-G’s Guidelines para 42 provide as follows:

Answer 249

‘The prosecution’s continuing duty to keep disclosure under review is crucial, and particular attention must be paid to understanding the significance of developments in the case on the unused material and earlier disclosure decisions. Meaningful defence engagement will help the prosecution to keep disclosure under review. The continuing duty of review for prosecutors is less likely to require the disclosure of further material to the defence if the defence have
clarified and articulated their case, as required by the CPIA.’

Question 250

9.2 Applications for specific disclosure

Answer 250

Under s.8 CPIA the defence can make an application to the court where it has reasonable cause to believe that there is prosecution material which should have been disclosed under s.7A(5) CPIA (namely disclosure following service of the Defence Statement) but which has not been disclosed. This is commonly known as a ‘section 8 application’ or an ‘application for specific disclosure’.

Question 251

9.2 Applications for specific disclosure

Answer 251

Note that failure to serve a defence statement (even in the magistrates’ court where there is no
statutory obligation to do so) will mean that an application for specific disclosure cannot be
made.

Question 252

The Judicial Disclosure Protocol para 26 provides that:

Answer 252

Defence requests for disclosure of particular pieces of unused prosecution material which are
not referable to any issue in the case identified in the defence statement should be rejected’.

As such the defence statement must set out the issues clearly as a prerequisite to applying under
s.8 for specific disclosure. The procedure is governed by CrimPR r.15.5 - the defendant must serve the application on the court and the prosecution

Question 253

The Judicial Disclosure Protocol para 26 provides that:

Answer 253

The application must describe the material the defendant wants to be disclosed and explain why there is reasonable cause to believe:
(a) That the prosecutor has the material; and
(b) That it is material that should be disclosed under the CPIA.

Question 254

The Judicial Disclosure Protocol para 26 provides that:

Answer 254

The defendant should ask for a hearing if one is required and explain why it is needed. The prosecution has 10 business days to respond in writing to any such application. It is worth noting that applications of this nature should be seen as a last resort. Discussion and co-operation between the parties outside court is encouraged in order to ensure that the court is asked to make a ruling only when strictly necessary.

Question 255

9.3 Disclosure failure by the prosecution

Answer 255

Disclosure by the prosecution and the defence is an important matter in any criminal trial and can form a significant part of case management in court, particularly in the Crown Court where a
defence statement is mandatory.
Even though there are clear guidelines and rules regarding disclosure of unused material, proper
disclosure still relies on trusting the prosecution to do its job properly

Question 256

Material consequences can be serious

Answer 256

• The defence could bring an application to stay the indictment on the ground that to continue
  the case would be an abuse of process of the court.
• It could result in a conviction being quashed on appeal due to being unsafe.
• It would be likely to result in delay and the imposition of wasted costs for unnecessary hearings
  or a refusal to extend custody time limits.
• It could also potentially result in the exclusion of evidence in the case due to unfairness.

Question 257

Should write to the prosecution

Answer 257

Prior to making any such formal application the defence should write to the prosecution specifying the material which they seek and make a formal application for specific disclosure.
Particularly in large and complex cases, legal representatives are encouraged to cooperate.

Question 258

9.4 Third-party disclosure

Answer 258

The Disclosure Code of Practice and the A-G’s Guidelines impose a duty on investigators and prosecutors to pursue all reasonable lines of enquiry.
Sometimes it will become clear during an investigation that material which is relevant to the prosecution case may be held by third parties such as local authorities, health and education
authorities, or financial institutions

Question 259

No duty of disclosure to third parties

Answer 259

No duty of disclosure under the CPIA rests upon such third parties but, if the material might be considered capable of undermining the prosecution case or of assisting the case for the accused,
then prosecutors should take appropriate steps to obtain it.

Question 260

Approach to third-party disclosure

Answer 260

An approach has been developed to obtain third-party disclosure where it is properly required. The A-G’s Guidelines and the Judicial Disclosure Protocol contain guidance for dealing with
material held by third parties.
In cases where it is believed the third party holds relevant information, they should be informed of the investigation and a request should be made for the material in question to be retained in case a request for disclosure is made.

Question 261

Believe that third-party material holds relevant material

Answer 261

There must be some reason to believe that the third party holds relevant material, so speculative
inquiries of third parties are not required. Where material is requested from a third party but access or disclosure is refused, the prosecution
can consider (in the Crown Court) seeking a summons under s.2 Criminal Procedure (Attendance of Witnesses) Act 1965 for production of the material, or (in the magistrates’ court) under the
similar provisions in s.97 of the Magistrates’ Court Act 1980.

Question 262

9.5 Public interest immunity

Answer 262

Circumstances may arise where the prosecution is under a duty to disclose material to the defence (because it satisfies the disclosure test under s.3 CPIA) but the prosecution does not wish to disclose the material, believing that to do so would give rise to a real risk of serious prejudice to an important public interest. In such circumstances the prosecution cannot simply hold this sensitive material back and keep
quiet. The required course of action under the CPIA is to apply to the judge for non-disclosure in the public interest. This is called a Public Interest Immunity (usually abbreviated to ‘PII’)
Application.

Question 263

9.5 Public interest immunity

Answer 263

The court will consider the material and may withhold disclosure of such material to the minimum extent necessary to protect the public interest, whilst always ensuring that the defendant(s) can have a fair trial.

Question 264

9.5 Public interest immunity: Sensitive material of this nature

Answer 264

Sensitive material of this nature must be recorded at the investigation stage in the Sensitive
Material schedule in which investigators must state:
* Why the material is sensitive and to what degree
* The consequences of disclosing the material to the defence (including the involvement of third
parties in bringing the material to the attention of the prosecution)
* The relevance of the material to the issues in the case
* The implications for continuing the prosecution if the material is ordered to be disclosed
* Whether it is possible to make disclosure without compromising its sensitivity.

Question 265

9.6 Summary

Answer 265

This section considered additional disclosure issues such as:
* The continuing duty of disclosure by the prosecution- it lasts until the defendant is convicted, acquitted or the prosecutor decides not to proceed with the case.
* Applications for specific disclosure- defence can make an application to the court where it has reasonable cause to believe that there is prosecution material which should have been
disclosed, as long as a defence statement has been served and the prosecution have either provided further disclosure or notice of no further disclosure.
* Failure to disclose by the prosecution- can lead to abuse of process applications, quashed convictions, wasted costs orders, refusal to extend custody time limits, exclusion of evidence.

Question 266

9.6 Summary

Answer 266

• Third party disclosure- if there is material held by third parties that might be considered capable of undermining the prosecution case or of assisting the case for the accused, then prosecutors should take appropriate steps to obtain it. Where material is requested from a
  third party but access or disclosure is refused, the prosecution can consider seeking a summons for production of the material.
• Public interest immunity- the prosecution must make this application if it does not wish to disclose material, believing that to do so would give rise to a real risk of serious prejudice to an
  important public interest.

Question 267

10.1 What are ‘pre-trial matters’?

Answer 267

’Pre-trial matters’ are all those matters that can be resolved pre-trial, as the name would suggest. The term covers a wide range of issues including, for example, selecting a trial date, applying fo a witness summons or resolving legal arguments.

Question 268

What are pre-trial matters?

Answer 268

Pre-trial matters will be considered either:
* At a first hearing;
* At a hearing on a date after the first hearing and before the trial date (for example a PTPH); or
* On the day of trial itself before the trial starts.

Question 269

10.1.1 Magistrates’ court

Answer 269

In simple, summary only cases in the magistrates’ court, many if not all pre-trial matters can be resolved at the first hearing. In more complex cases further pre-trial hearings may be required.

Question 270

10.1.2 Crown Court

Answer 270

In cases to be dealt with at the Crown Court, there will be at least one hearing in the Crown Court, the PTPH, to deal with pre-trial matters. In more complex Crown Court cases further pretrial hearings may be necessary in order to ensure parties are trial ready.

Question 271

10.1.3 The Criminal Procedure Rules

Answer 271

The Criminal Procedure Rules have a clear aspiration running through them that the parties and the court resolve all pre-trial matters before the day of trial where possible. The expectation is that
on the day of trial parties will be ready to start immediately unless something unexpected has arisen.

Question 272

10.2 Pre-trial matters in the magistrates’ court

Answer 272

The court will also set a trial date.
If the magistrates’ court holds a pre-trial hearing to for example, decide the admissibility of a piece of evidence, that ruling is binding on the magistrates’ court that hears the trial (whether composed of the same lay justices/District Judge, or not, unless one party applies for the ruling to
be discharged or varied)

Question 273

10.2 Pre-trial matters in the magistrates’ court

Answer 273

Where a trial takes place in the magistrates’ court the parties will be expected to deal with case
management issues at the first hearing. There is a magistrates’ court case management form that
the court will expect parties to complete before the first hearing commences.
At the first hearing the court will give directions for:
* Service of documents between the parties (should any be needed)
* Either resolve there and then any matters of law (rarely) or set out a timetable as to when they
will be resolved either at a pre-trial hearing or on the morning of trial.

Question 274

10.2 Pre-trial matters in the magistrates’ court

Answer 274

In short, you cannot make an application to vary or discharge based on the same arguments and
facts. Such an application can only be made if either:
(a) There has been a material change in circumstances; or
(b) Something was not brought to the attention of the court when they made the ruling which
could justify variation or discharge.

Question 275

Types of applications made

Answer 275

The types of applications that might be made are largely the same in both courts save that in the
magistrates’ court, the lay justices or District Judge hear the application and then rule on it. This causes difficulties with applications to exclude evidence for example. The lay justices or District
Judge hears the potentially prejudicial evidence and, if they agree it should be excluded, somehow have to ignore it when they decide the case at trial. You can try to avoid this by having a differently constituted magistrates’ court decide the point in advance, but this rarely happens.

Question 276

10.3 How is the evidence served on the defence?

Answer 276

Where the magistrates’ court sends the case for trial to the Crown Court:
* It must set a date for a Plea and Trial Preparation Hearing (PTPH) within 28 days.
* The magistrates’ court will complete a ’sending sheet’- a notice specifying the offences for
which the defendant is being sent and the Crown Court where the defendant will be tried. This notice should be sent to the defendant and the Crown Court. There is no prescribed form for
such a notice

Question 277

Evidence must be served within

Answer 277

• Evidence must be served within:
• 50 days (if the defendant is in custody); or
• 70 days (if the defendant is on bail)
  of the date on which the defendant has been sent for trial in the Crown Court.
• Evidence is uploaded on to the Crown Court Digital Case System: ie copies of the documents
  containing the evidence on which a charge is based.
• Draft indictment must be served by the prosecutor on the Crown Court officer not more than 20 business days after serving prosecution evidence.

Question 278

10.4 Pre-trial matters in the Crown Court

Answer 278

There are no more hearings in the magistrates’ court for:
* Indictable only matters; or
* Triable either way matters where:
- The defendant is sent for trial by the magistrates’ court; or
- The defendant elects Crown Court trial.

Question 279

10.5 Plea and trial preparation hearing (PTPH)

Answer 279

The PTPH is the main, and often only, pre-trial Crown Court hearing.
At the first hearing in the magistrates’ court when the case is sent ‘forthwith’ by s.51 Crime and Disorder Act (CDA) 1998, the magistrates’ court will make a series of standard directions for the
prosecution to serve its case on the defence and for a defendant to serve a defence statement in response. The PTPH is scheduled shortly after this.

Question 280

10.5 Plea and trial preparation hearing (PTPH)

Answer 280

Where a trial is anticipated the parties are required to fill in a PTPH form in advance of the hearing as the judge uses it when the hearing is conducted.
The PTPH consists of two parts:
* First ‘plea’; and
* Second either ‘sentence’ or ‘trial preparation’ stage.
The PTPH form can be found online via the www.justice.gov.uk website.

Question 281

10.6 Plea stage

Answer 281

If the defence want to make an application to dismiss the charges, they must do so before a plea
is taken. At the plea stage, the indictment is put to the defendant and they enter a plea of guilty or not
guilty to each count on the indictment, this is known as arraignment.

Question 282

10.6 Plea stage

Answer 282

• If the defendant pleads guilty to the sole count on the indictment/all of the counts on a multicount indictment: the case moves to sentence.
• If the defendant pleads not guilty to the sole count on the indictment/all of the counts on a multi-count indictment: the court proceeds to the ‘trial preparation’ of the hearing.
• Where a defendant enters at least one guilty plea and at least one not guilty plea on an indictment consisting of two or more counts: the prosecution will need to consider how it wishes to proceed, the result being either that the court moves to sentence or if there is to be a trial the ‘trial preparation’ stage needs to take place.

Question 283

10.6.1 Unfit to plead?

Answer 283

If the judge has determined that the defendant is unfit to plead (a judge can make that determination after hearing medical evidence), then no plea is taken. The court will have to hold a trial with a jury to determine whether the defendant committed the act (ie the actus reus of the offence, but not mens rea) and so the ‘trial preparation’ stage of the hearing will need to take place.

Question 284

Please note that a defendant who is found unfit to plead and a jury finds they have committed the act can only be made subject to

Answer 284

• An absolute discharge
• Supervision order; or
• A hospital order.

Question 285

10.7 Trial preparation stage

Answer 285

Where the court needs to go on to the ‘trial preparation’ stage of the hearing, it will go on to deal with the following matters. These are all subject to a question on the PTPH form that the
advocates must complete before the hearing. Directions at PTPH are standardised and the court sets 4 “stage dates” with the parties required to comply with certain standard directions by the staged dates

Question 286

10.7 Trial preparation stage

Answer 286

• Trial date. If a trial date has not already been set, a trial date will be set at the PTPH taking into account the likely estimate of the length of the trial and witness availability.
• Prosecution evidence. The prosecution will have to confirm if it has served all of its evidence or,
  if not, what is still left and when it will be served.
• Expert evidence. If the prosecution or defence intend to rely on expert evidence, directions will
  be given for service and for seeking agreement between experts.
• Witness requirements. The defence must inform the prosecution and set out on the form those prosecution witnesses they require to attend court to give evidence, as well as estimating how long it will take to question each witness. The defence must also give details of any defence witnesses it intends to call.

Question 287

Standardised directions will apply for dealing with matters such as:

Answer 287

• Special measures. Directions will apply for any special measures (such as live link and screens) sought by witnesses.
• Bad character. Directions will apply for any bad character applications by the prosecution and defence and timetables set for the service of bad character applications and responses.
• Witness summons. If a witness summons is required, details must be given and the application can be made at the PTPH or a timetable given for making the application.
• Agreed facts and issues. The defence must set out what factual matters are agreed so that they can be drafted as admissions for use at trial.

Question 288

Standardised directions will apply for dealing with matters such as:

Answer 288

Disputed facts and issues. The defence must set out those matters where there is a dispute with the prosecution case so that the issues for the trial are clear.
* Defence statement. The defence must serve a defence statement at stage 2 which sets out the
defence case.
* Disclosure. If there are issues relating to advance disclosure of unused material, this can be
dealt with or the standard directions will deal with this.
* Defendant’s interview. A timetable will apply for the prosecution and defence to agree an edited interview record for use at trial.
* Hearsay. Directions will apply on the service of applications to rely on hearsay evidence.
* Admissibility and legal issues. All issues relating to the admissibility of evidence and other legal issues should be notified. Directions will be given or apply on when these applications will
be made (eg at or before trial) and on the service of any documents in support, such as skeleton arguments.

Question 289

At the end of the hearing

Answer 289

At the end of the hearing the parties should know the trial date, the timetable for any further
preparatory work to be completed and whether the case needs to be listed in court again before trial (although this may only become apparent at some later stage). Where a party fails to
comply with any directions, they may be required to come to court and explain their failure to do so. The expectation is that no further hearings will be required, either because there are no further issues to resolve before trial or because they can be dealt with on the day the trial is listed.

Question 290

10.8 Further applications

Answer 290

Some cases require no further hearings post PTPH. That’s either because there is nothing to determine or because the PTPH judge decided that the trial judge could deal with any outstanding matters on the day of trial, usually before the trial begins.

Question 291

10.8 Further applications

Answer 291

Some cases require no further hearings post PTPH. That’s either because there is nothing to
determine or because the PTPH judge decided that the trial judge could deal with any outstanding matters on the day of trial, usually before the trial begins.

Question 292

10.8 Further applications

Answer 292

What follows is an examination of some of these further applications. As you read them, please bear in mind that they could be made:
* In either the magistrates’ court or Crown Court;
* At the PTPH, or another pre-trial hearing (with the exception of a change of plea); or
* On the day of trial, before the trial starts or at some convenient point during the trial.

Question 293

10.9 Applications to exclude evidence or introduce otherwise inadmissible
evidence

Answer 293

The defence may wish to exclude evidence that the prosecution proposes to adduce using s.78 of the Police and Criminal Evidence (PACE) Act 1984; either party may want to introduce otherwise inadmissible evidence such as bad character or hearsay (which are covered in separate sections).
This can be dealt with at:
* The PTPH (rare as the judge would not usually have time)
* At a hearing on a day at some point between PTPH and trial (less common); or
* On the day of trial before the trial starts (most common).

Question 294

10.10 Special measures

Answer 294

Special measures are the arrangements put in place to assist witnesses in giving evidence before
a court. The purpose behind them is to allow children, the vulnerable and those in fear or distress about testifying, to testify in an environment that best enables them to give their evidence. The court must consider which measures will maximise the quality of the evidence. A screen, for example, is not a slight on the defendant or a presumption of their guilt (and a jury must be told this if one is used) but a measure to enable the witness to give their best evidence.

Question 295

10.10.1 Special measures: Types

Answer 295

In order to assist witnesses to give evidence in the criminal courts a number of ‘special measures’
are available. The Youth Justice and Criminal Evidence Act (YJCEA) 1999 sets out the range of special measures available. These are as follows:
* The use of screens (the witness will be screened from the defendant and the public gallery) (s.23 YJCEA)
* Live TV link (where the witness sits in a room away from the courtroom) (s.24)
* Giving evidence in private (public gallery cleared) (s.25)
* Removing wigs and gowns by barristers and judges (s.26)

Question 296

10.10.1 Special measures: Types

Answer 296

• Video recording of evidence in chief (s.27)
• Pre-recording cross-examination and re-examination (s.28 – partially in force)
• Questioning of a witness through an intermediary (s.29)
• Aids to communication (s.30)
  Please note that testifying through an intermediary and aids to communication are not available
  for witnesses who are eligible for special measures due to being in fear but the other special measures will be available for such witnesses.

Question 297

10.10.2 Special measures: Eligibility

Answer 297

Eligibility for special measures is dealt with by s.16 to s.18 of the YJCEA. The following categories of witness are eligible for special measures:
* All witnesses aged under 18 at the time of trial (or video recording) are automatically eligible
(s.16 YJCEA).
* Witnesses who have a mental disorder, or a significant impairment of intelligence and social functioning, or a physical disability/disorder are eligible where the court considers that due to
any such matter the quality of their evidence is likely to be diminished (s.16 YJCEA).

Question 298

10.10.2 Special measures: Eligibility

Answer 298

• Witnesses who are in fear or distress about giving evidence and the court is satisfied that the quality of their evidence will be diminished because of this (s.17 YJCEA).
• All adult complainants of sexual offences (s.17 YJCEA).
• All adult complainants in certain offences under the Modern Slavery Act 2015 (including forced labour and human trafficking).
• All witnesses in a case involving a ‘relevant offence’, namely serious offences, including offences of homicide or involving firearms or knives (s.17 and Sch 1A YJCEA).

Question 299

10.10.3 Special measures: Additional types

Answer 299

In addition to the special measures available to witnesses mentioned already, other measures exist or can be put in place to protect witnesses. These include:
* Witness Anonymity Orders (Coroners and Justice Act 2009 Part 3 Chapter 2)
* Automatic anonymity of complainants in sex cases (Sexual Offences (Amendment) Act 1992)
* Prohibition of cross-examination by defendants in person of complainants in sex cases and of child witnesses in certain cases involving violent and sexual offences (YJCEA ss.34 to 38)
* Restricting the reporting of witnesses’ identity (YJCEA s.46)

Question 300

10.11 Vulnerable defendants

Answer 300

In certain circumstances the defence can apply for measures to assist particularly vulnerable defendants in order to facilitate their effective participation in the trial process. An application can be made for the defendant to give their evidence via a ‘live link’.

Question 301

10.11 Vulnerable defendants

Answer 301

The court must be satisfied that it would be in the interests of justice and the ‘live link’ would improve the quality of accused’s evidence because either:
* The accused is under 18 and the accused’s ability to participate effectively as a witness giving
oral evidence is compromised by their ‘level of intellectual ability or social functioning’
(s.33A(4) YJCEA 1999), or
* The accused is 18 or over and the accused is unable to participate effectively as a witness giving oral evidence because the accused has a mental disorder or a ‘significant impairment of intelligence and social function’ (s.33A(5) YJCEA 1999).

Question 302

10.11 Vulnerable defendants

Answer 302

The court also has the power to direct that a vulnerable defendant be assisted by an intermediary to help the defendant understand what is going on. But only those defendant’s most in need, such as those with comprehension or communication difficulties, will be entitled to one.
The role of an intermediary is to assist communication of evidence. They are independent and owe their duty to the court. An intermediary might be used to assist a disabled defendant with
communication difficulties, for example.

Question 303

10.11 Vulnerable defendants

Answer 303

Intermediaries can also be used to assist witnesses, such as very young witnesses or those with
learning difficulties, for example. Before questioning of the witness begins, the intermediary can assist the judge and counsel to understand what types of questions are likely to confuse so that
the advocates can carefully prepare their questioning. When the witness or defendant is being questioned by counsel, the intermediary will usually stand near to the witness and can help by explaining the questions and answers. In practice, advocates will usually question the witness directly and the intermediary will only step in if there is some kind of miscommunication.

Question 304

10.12 Witness summons and warrants

Answer 304

In the majority of cases, the police are responsible for securing the attendance of prosecution witnesses and defence solicitors are responsible for ensuring that defence witnesses attend court
when required to do so. However some witnesses are not keen to be witnesses and try to avoid attending court. They may be giving evidence against a notorious and dangerous criminal, or a friend or relative of theirs, or they might hold information that they think should be confidential. In those cases, either the prosecution or defence can ask the court to issue a witness summons

Question 305

10.12 Witness summons and warrants

Answer 305

The summons can either be for the person to attend on the day of trial to give live evidence, or for the witness to produce a document. Both the Crown Court and magistrates’ court has the power to issue a witness summons.
The test for the party seeking the summons is that:
* The witness is likely to be able to give evidence that is likely to be material evidence (or to produce a material document); and
* It is in the interests of justice to issue a summons.

Question 306

10.12 Witness summons and warrants

Answer 306

If a witness disobeys a witness summons and does not attend without a ‘just excuse’ then the courts can issue a warrant for the arrest of the witness. Failure to act as required to do so by the summons can be punishable as a contempt of court.

We will consider two situations here:
* From not guilty to guilty; and
* From guilty to not guilty.

Question 307

10.13.1 From not guilty to guilty

Answer 307

Defendants can change their mind and choose to change their plea from not guilty to guilty. A defendant who has pleaded not guilty can, at any time before the jury return their verdict, ask
through their Counsel that the ‘indictment be put again’ (or charge sheet in the magistrates’ court). The clerk will read the indictment and the defendant can plead guilty. This usually
happens before trial but from time to time a defendant might decide midway through a trial that they want to end the process by pleading guilty. It is rare, but it can and does (occasionally) happen

Question 308

10.13.1 From not guilty to guilty

Answer 308

Usually though, defendants change their minds on the day of trial either for tactical reasons or because they were hoping that prosecution witnesses would not attend to give evidence, but realise they now have. Strictly speaking, you need the leave of the
judge/magistrates to have the indictment/charge sheet put again, but asking that it be put again is sufficient. If the trial is taking place in the Crown Court and the jury have already been put in charge of the case, they should be directed to return a formal verdict of guilty.

Question 309

10.13.2 From guilty to not guilty

Answer 309

This is significantly more difficult! Defendants who plead guilty can, at any time before they are
sentenced, apply to the court for leave to change their plea from guilty to not guilty, but judges should exercise their discretion judicially and sparingly, although even where the plea was
unequivocal the discretion to allow it to be changed still exists.

Question 310

10.13.2 From guilty to not guilty

Answer 310

Where a defendant has been represented properly a court would invariably reject the application
to vacate their guilty plea and allow them to enter a fresh not guilty plea.
Represented properly means:
* Proper advice has been given to the defendant;
* No undue pressure has been exerted on the defendant; and
* The defendant’s plea was clearly unequivocal.

Question 311

10.13.2 From guilty to not guilty

Answer 311

An application of this nature will frequently feature a defendant waiving privilege to establish matters such as the nature of the advice they acted upon. In practice, then, although it is always a matter for the court, the two most common scenarios in
which the rarely exercised discretion will properly be applied are where either:
* The defence can show that the prosecution has no evidence of an essential ingredient of the
offence; or
* The defendant was improperly placed under undue pressure to plead guilty or was materially misadvised by D’s legal team.

Question 312

10.13.2 From guilty to not guilty

Answer 312

Both of those scenarios are likely to result in criticism of Counsel who appeared when the defendant pleaded guilty and perhaps the solicitor too. It is therefore usual practice that Counselor both Counsel and the solicitor withdraw from the case and the defendant seeks fresh representation. Where that happens, defendants may want to give evidence of their conference with Counsel or seek that Counsel explain how and why they advised the defendant to plead guilty. Both require the defendant to waive legal privilege

Question 313

10.14 Summary

Answer 313

This section considered pre-trial matters:
* Pre-trial matters will be considered either (i) at a first hearing; (ii) at a hearing on a date after
the first hearing and before the trial date (for example a PTPH); or (iii) on the day of trial itself, before the trial starts:
- Magistrates’ court- in simple cases, many if not all pre-trial matters can be resolved at the first hearing.
- Crown Court- there will be at least one hearing, the PTPH, to deal with pre-trial matters. In complex cases, the Crown Court will hold a preliminary hearing soon after the first hearing
to ensure the PTPH is effective

Question 314

• The PTPH has two stages: (i) ‘plea’; and (ii) either ‘sentence’ or ‘trial preparation’:

Answer 314

• At plea stage, the indictment is put to the defendant and they enter a plea of guilty or not guilty to each count on the indictment, this is known as arraignment.
• At the end of the trial preparation stage, the parties should know the trial date, the timetable for any further preparatory work to be completed and whether the case needs to be listed in court again before trial.

Question 315

Further applications and hearings that may occur after the Preparation Hearing in the Crown Court, in particular:

Answer 315

• Evidence applications- the defence may wish to exclude evidence that the prosecution proposes to adduce using s.78 PACE or either party may want to introduce otherwise inadmissible evidence such as bad character or hearsay.
• Special measures- to assist witnesses in giving evidence before a court.

Question 316

Further applications and hearings that may occur after the Preparation Hearing in the Crown Court, in particular:

Answer 316

• Measures to assist vulnerable defendants- to facilitate their effective participation in the trial process such as giving evidence via live link or intermediary assistance.
• Witness summons and warrants- either party can ask the court to require a witness to attend on the day of trial to give live evidence or produce a document.
• Changes of plea- To guilty- can take place at any time before the jury return their verdict.
  To not guilty- can take place at any time before the defendant is sentenced. D must apply to the court for leave to change their plea from guilty to not guilty, but judges should
  exercise their discretion judicially and sparingly

Question 317

Where can these applications be made?

Answer 317

These applications could be made: (i) in either the magistrates’ court or Crown Court; (ii) at the PTPH, or another pre-trial hearing (with the exception of a change of plea); or (iii) on the day of trial, before the trial starts or at some convenient point during the trial