CLP 4 - evidence Flashcards
1
Q
In what document is the evidence served on the defence for summary and either way cases?
A
The prosecution serves the ‘Initial Details of the Prosecution Case’
2
Q
What is the overriding objective?
A
deal with cases justly and at proportionate cost.
3
Q
At what time should a PTPH held?
A
within 28 days of sending (a plea is taken at the PTPH- Plea and Trial Preparation Hearing)
4
Q
Where the magistrates’ court sends the case for trial to the Crown Court when must evidence be served?
A
In custody - 50 days
On bail - 70 days
of the date on which the defendant has been sent for trial in the Crown Court.
5
Q
Where is evidence uploaded?
A
on the “Crown Court Digital Case System”
6
Q
When must the draft indictment be served?
A
not more than 28 days after serving prosecution evidence.
7
Q
When might ‘pre-trail matters’ be considered?
A
- at a first hearing or anytime before the trial starts.
8
Q
If the Magistrates court holds a pre-trial hearing, the rulings are binding on the magistrates that hear the case. When can an application to vary or discharge in those rulings be made?
A
- there has been a material change in the circumstances; or
- something was not brought to the attention of the court when they made the ruling which could justify a variation or discharge.
9
Q
What are the two parts of the PTPH - Plea and Trial Preparation Hearing in the crown court?
A
- first ‘plea’; and
- second either ‘sentence’ or ‘trial preparation’ stage.
10
Q
When must an application to dismiss the charges be made?
A
- before a plea is taken
11
Q
What is an arraignment?
A
At the plea stage of the PTPH in the crown court the indictment is put to the defendant and they enter a plea of guilty or not guilty to each count of the indictment
12
Q
What happens if the defendant pleads guilty to the incitment?
A
the case moves to sentence
13
Q
What happens if the defendant pleads not guilty to the indictment?
A
the court proceeds to the ‘trial preparation’ of hearing.
14
Q
What happens if the defendant pleads guilty to one indictment and not guilty to another?
A
prosecution will consider whether to move to sentence or trial preparation.
15
Q
What if the defendant is ‘unfit to plead at the PTPH?
A
If the judge determines D is unfit to plead then no plea is taken and the case moves to ‘trial preparation’.
If guilty D can only receive:
- an absolute discharge
- a supervision order
- a hospital order
16
Q
What matters are dealt with at the trial preparation stage in the magistrates court?
A
- trial date
- issues for trial
- prosecution evidence - P confirms all served or what is left and when will be served.
- Expert evidence - directions given for service and seeking agreement between experts.
- Witness requirements - defence informs P which of P’s witnesses it requires to attend court. D must also give details of its witnesses.
17
Q
What standard directions are given at the trial preparation stage of the PTPH?
A
- Defence statement. D serves a defence statement which sets out their case.
- Defendant’s interview - P & D to agree an edited record for use at trail
- Agreed facts and issues. D sets out agreed facts.
- Disputed facts and issues. D sets out where there is dispute with P
- Disclosure
- Bad Character - time table set for service of bad character applications and responses.
- Hearsay - can either side use it?
- Admissibility of legal issues. All issues notified
- Special measures - live link etc. sought be witnesses.
- Witness summons.
18
Q
Disclosure - what is ‘used material’?
A
material the prosecution will rely upon at trail to prove its case against the defendant.
19
Q
Disclosure - what is Unused material?
A
Material not being relied upon by the prosecution.
20
Q
Disclosure - what information should be disclosed
A
Any information potentially relevant material which has not previously been disclosed and might undermine the case or assist the accused
21
Q
Disclosure - what was the finding in R v H and C?
A
any material held by the prosecution which weakens its case or strengthens that of the defendant should be disclosed.
22
Q
What are the four stages of disclosure for the police?
A
1) investigation stage - duty to record and retain material during the investigation.
2) initial duty to disclose on the prosecution.
3) defence disclosure.
4) continuing duty on the prosecution to keep its disclosure under review.
23
Q
what roles are involved in an investigation?
A
- an officer in charge of the investigation - responsible for directing the investigation and ensuring that information is retained.
- an investigator - police officer conducting the investigation.
- a disclosure officer - responsible for examining material retained and revealing to prosecutor and defence at prosecutor’s request.
24
Q
What if the disclosure officer is in doubt?
A
they must seek the advice and assistance of the prosecutor.
25
What material should be maintained?
All material which may be relevant to a criminal investigation.
26
When does the duty to retain material last to?
- until a decision is taken whether to institute proceedings against a suspect for a criminal offence.
- where convicted, at least until release from custody (if no custody then 6 months from the date of conviction).
27
What must a disclosure officer certify?
that to the best of their knowledge and belief they have complied with their duties under the Disclosure Code of Practice.
28
What must a prosecutor certify?
Prosecutor must
- disclose any new material which might reasonably be considered capable of undermining the case for prosecution or assisting the case of the accused.
- give a written statement that the above has been complied with.
29
When should the initial details of the prosecution case be served?
No later than the day of the first hearing
30
What should the initial details of the prosecution case allow the defence and the court to take an informed view on?
- plea
- venue for trial (on either way cases)
- case management
- sentencing (including committal for sentence on either-way cases)
31
In what circumstances and when must unused material be disclosed by the prosecution?
- Magistrates - only when defendant pleads not guilty and the case is adjourned for summary trial.
- Crown Court - when a defendant is sent for trial or where a Voluntary Bill of Indictment has been preferred against the defendant.
In both cases, the prosecution must act 'as soon as reasonably practicable'.
32
When will a PTPH normally take place
28 days after sending to crown court.
33
what is a defence statement?
a written statement which sets out the accused's defence
34
what are the contents of a defence statement?
- sets out the nature of the accused's defence, including any particular defences on which he intends to rely.
- sets out matters of fact on which he takes issue with the prosecution.
- sets out why he takes issue on each fact.
- sets out the particulars of the matters of fact on which he intends to rely
- indicates any points of law which he wishes to take.
35
what must be included in a defence statement if an alibi is used
- name, adress and d.o.b of the witness to the alibi (or as many as are known).
- any information which may assist in identifying witnesses if the above is not known
36
What is the time limit for serving a defence statement in the crown court? Can it be extended?
- within 28 days of the prosecution's initial disclosure.
- can be extended if application is made within the 28 days and the court is satisfied that it would not be reasonable for defendant to serve defence within 28 days
37
What is the time limit for serving a defence statement in the Magistrate's Court? Why would the defence make one?
Defence statement is not compulsorily. But if decide to do so, must be done within 14 days of prosecution's initial disclosure.
Failure to make a defence statement will prohibit the defence from making an application for specific disclosure.
38
What if the defence wants to call a witness? Are there any time limits?
D must disclose to the court and P a notice indicating:
- D wishes to call a witness, and
- ID the witness
Magistrates Court - notice must be served within 14 days of P's initial disclosure
Crown Court - notice must be served within 28 days of P's initial disclosure
39
What happens if the defence statement is not served/insufficient in the crown court?
- jury may draw an adverse inference (although can't convict solely on the basis of an adverse inference).
- P could challenge the lack of defence by serving a notice on the court and D seeking the court to direct that an adequate statement of defence is made
40
What happens if the defence statement is not served/insufficient in the magistrate's court?
- no adverse inference if no defence statement is made.
- However, can draw adverse inference if insufficient defence statement is made.
41
How does a 'defence statement' help the disclosure?
The prosecution are under a duty to continually review disclosure. The defence statement allows the prosecution a chance to re-review its disclosure.
42
what is 'specific disclsoure'
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.
Note: must relate to an issue identified in the defence statement, cannot be made if there's a failure to make a defence statement.
43
how long does the prosecution have to respond to an application for specific disclosure?
14 days
44
What are the possible consequences of the prosecution failing to disclose?
- D could bring an application to stay the indictment.
- conviction could be quashed on appeal.
- delay, costs, refusal to extend custody time limits
- exclusion of evidence
45
When and how should P obtain third party material?
if third party material might be considered capable of undermining the prosecution or assisting the defence, then P should take steps to obtain it.
P can obtain the information trough a summons.
46
What if the prosecution holds evidence that is sensitive?
P must apply to the court for a 'non-disclosure in the public interest' and the court will decide on the minimum necessary redaction
47
What happens if a witness statement is agreed?
if agreed by prosecution and defence, it is simply read out in court. If the statement is challenged, the witness must be called and challenged orally.
48
What happens if a fact is agreed?
both parties can just agree the fact as a fact.
49
What is a judicial notice of fact
Relates to fact that is obviously true or very easy to find out.
50
what types of evidence are there:
- real evidence - objects and things brought to court.
- direct evidence - where a witness has experience of a matter.
- Circumstantial evidence - evidence from which facts are inferred.
- A view - jury go to the scene of a crime or visit an object that cannot be brought to the court.
51
What is an application for dismissal?
a pre-trial application to have the charges against the defendant dismissed.
52
When can an application for dismissal be made?
- only after d has been sent to the Crown Court by the Magistrate's Court for trial.
- Only after the defendant has been served with the evidence relating to the offence
- Only before the defendant is arraigned (i.e. the offence has been put to D and D has plead guilty or not guilty
53
Where can an application for dismissal be made?
The application is made to the Crown Court Judge and notice must be made in writing.
54
When should an application for dismissal be accepted?
if the judge feels the evidence against the applicant would not be sufficient for him to be properly convicted.
55
Can judicial review be brought against a decision on whether an application for dismissal is accepted?
No
56
Where can a submission of no case to answer be made?
either Magistrates or Crown Court
57
When can a submission of no case to answer be made?
During a trial after the prosecution has submitted all of its evidence.
58
Who is a submission of no case to answer made to?
Judge
59
When should a submission of no case to answer be accepted?
R V Galbraith
"Where the judge comes to the conclusion that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict upon it.
60
What are the two grounds for abuse of process?
- where the court concludes that the accused can no longer receive a fair hearing.
- where it would otherwise be unfair to try the accused. (integrity of the criminal justice system).
61
What is the remedy for abuse of process?
the case is stayed (closed without a guilty/not guilty verdict
62
What is the Common law discretion to exclude evidence?
- court can reject evidence where its necessary for a fair trail.
- Only applies to prosecution evidence.
63
If proved, is s.78 (adverse effect) discretionary?
Yes, the court can decide not to apply it
64
Who can make an application under s.78 (adverse effect) PACE?
defendant - only applies to prosecution evidence.
65
What is a Section 78 application?
where the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court MAY not to admit it.
Normally applies where there is a 'significant and substantial' breaking of the PACE rules.
66
Which evidence does a Section 78 (adverse effect) application apply to?
All prosecution evidence (not just confession evidence)
67
When can a section 78 (adverse effect) application be made?
- before the trial
- at the commencement of the trial
- just prior to the prosecution seeking to admit evidence that the defence wishes to be excluded.
68
What happens if the facts underlying the section 78 (adverse effect) application are disputed?`
The court will hold a 'Voir dire' - a mini trial to find the facts. There is no burden of proof on either party.
69
What does s.76 apply to?
A confession that was obtained by oppression (even if the court thinks the confession was true).
70
What is a confession?
Includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.
71
If proved, is s.76 discretionary?
No it is mandatory
Note: s.78 (adverse effect) is discretionary
72
S.76 - When might a confession not be given in evidence?
where obtained:
- by oppression of the person who made it; or
- in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof.
Note: this must be something external to the accused - it cannot be them simply thinking they'll get bail if they admit to something for example.
There must be a causal link between the oppression/thing said or done that results in the confession
73
S.76 - Can the court require the prosecution to prove that a confession was not made under duress?
Yes - the prosecution must prove beyond all reasonable doubt
74
S.76 Where something was said or done to render a confession unreliable, does the court consider the reliability of the actual confession made?
No - the court must decide whether there is a likelihood that any confession would be unreliable in the circumstances prevailing at the time (R v Gill)
75
S.76 If a confession is found to be unreliable, does that prevent other evidence related to the confession from being admissible?
No - exclusion does not affect the admissibility in evidence:
- of any facts discovered as a result of the confession; or
- where the confession shows how the accused speaks, writes or expresses himself.
However, you can't say that the facts were found because of the confession.
76
s.78 - When is unfair evidence excluded?
If the admission of evidence would have such an adverse effect on fairness of the proceedings that the court ought not to admit it.
77
What form is used in preparation for a pre trail hearing in the magistrates court and what does it contain?
Preparation for Effective Trial Form
- Contact details of parties to the case
- Evidence relied on by prosecutors
- Elements of case disputed by defence
- Any decisions or directions required
78
What are the standard directions output for a pre trail hearing in the magistrates court?
- Service of evidence and disclosure - date given by court.
- details of witnesses and evidence - 14 days after disclosure is complete.
- expert evidence - report to be served by D on prosecution.
- securing attendance - is a summons required?
- special measures - esp. witness special measures.
79
Must a Plea and Trial Preparation Hearing be held in all cases to the Crown Court?
Yes
80
What is the first step of a PTPH in the crown court?
Araignment
Charges read out an plea taken for each charge
81
Which court do the prosecutions duty to disclose apply to?
The duties are the same in both the magistrates and crown court
82
When must initial disclosure be made?
Magistrates court - as soon as is reasonably practicable after defendant has plead not guilty.
Crown Court - as soon as reasonably practicable
- after case is committed or transferred for trial.
- after evidence is served
- after indictment added
83
If an allegation of s.76 (oppression) is made. Who has the burden of proof and to what level?
The prosecution must show beyond reasonable doubt that there was no oppression.
84
If an allegation of s.76 oppression is made by the defence, how is the matter decided?
By voir dire (mini trial)
85
What does s.78 PACE apply to?
Any evidence proposed by the prosecution.
86
Can the prosecution use s.78 (adverse effect)?
No, only the defence.
Prosecution can only have evidence excluded on irrelevance
87
What is the first hearing in the crown court?
Plea and trial preparation hearing
(PTPH)
88
Ptph 28 days after sending, evidence 50 to 70 days after sending, evidence served 7 days before PTPH ???
