CLP 4 - evidence* Flashcards
In what document is the evidence served on the defence for summary and either way cases?
The prosecution serves the ‘Initial Details of the Prosecution Case’
What is the overriding objective?
deal with cases justly and at proportionate cost.
At what time should a PTPH held?
within 28 days of sending (a plea is taken at the PTPH- Plea and Trial Preparation Hearing)
What is a sending sheet
A notice the magistrates’ court will complete specifying the offences for which D is being sent and the CC where D will be tried
Will be sent to D and CC
No prescribed form
Where the magistrates’ court sends the case for trial to the Crown Court when must evidence be served?
D in custody - within 50 days
D on bail - within 70 days
of the date on which D has been sent for trial in the Crown Court.
Where is evidence uploaded?
on the “Crown Court Digital Case System”
When must the draft indictment be served by the prosecutor?
not more than 20 days after serving prosecution evidence.
When might ‘pre-trial matters’ be considered?
- at a first hearing or anytime before the trial starts.
If the magistrates’ court holds a pre-trial hearing, e.g. to decide the admissibility of evidence, is this ruling binding on the magistrates’ court that hears the trial?
Yes,
UNLESS one party applies for the ruling to be discharged or varied
When can an application to vary or discharge be made?
- Where there has been a material change in circumstances, OR
- Something was not brought to the attention of the court when they made the ruling which could justify variation or discharge
What are the two parts of the PTPH - Plea and Trial Preparation Hearing in the crown court?
- first ‘plea’; and
- second either ‘sentence’ or ‘trial preparation’ stage.
When must an application to dismiss the charges be made?
- before a plea is taken
What is an arraignment?
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
What happens if the defendant pleads guilty to the incitment?
the case moves to sentence
What happens if the defendant pleads not guilty to the indictment?
the court proceeds to the ‘trial preparation’ of hearing.
What happens if the defendant pleads guilty to one indictment and not guilty to another?
prosecution will consider whether to move to sentence or trial preparation.
What if the defendant is ‘unfit to plead at the PTPH?
If the judge determines D is unfit to plead then no plea is taken and the case moves to ‘trial preparation’.
Court will need to hold jury trial to determine whether D committed AR (not MR).
If D is found unfit to plead and a jury finds they have committed the act, what must it be made subject to?
- an absolute discharge
- a supervision order
- a hospital order
What 4 matters are dealt with at the trial preparation stage in the magistrates court?
- Trial date
- 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.
What standard directions are given at the trial preparation stage of the PTPH? Name 10
- 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 - timetable 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.
What if a party fails to comply with any directions?
They may be required to come to court and explain their failure to do so
Disclosure - what is ‘used material’?
material the prosecution will rely upon at trail to prove its case against the defendant.
Disclosure - what is Unused material?
Material not being relied upon by the prosecution.
Disclosure - what information should be disclosed
Any information potentially relevant material which has not previously been disclosed and might undermine the case or assist the accused
Disclosure - what was the finding in R v H and C?
any material held by the prosecution which weakens its case or strengthens that of the defendant should be disclosed, and
must be recorded in a durable or retrievable form.
What are the four stages of disclosure for the police?
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.
what roles are involved in an investigation?
- 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 (must follow all reasonable lines of enquiry, whether these point towards or away from suspect).
- a disclosure officer - responsible for examining material retained and revealing to prosecutor and defence at prosecutor’s request.
NB: all these functions may be carried out by same person
What if the disclosure officer is in doubt?
they must seek the advice and assistance of the prosecutor.
What material should be maintained?
All material which may be relevant to a criminal investigation.
When does the duty to retain material last until? 4 points
- Until a decision is taken whether to institute proceedings against a suspect for a criminal offence.
- Once proceedings commences, until the accused is acquitted or convicted, or until case is discontinued.
- Where convicted, at least until release from custody (or hospital) (if no custody then 6 months from the date of conviction).
- Where appeal is in progress, until it is concluded.
Must a prosecutor consider disclosure of material that comes to light after proceedings have concluded ?
Yes, if it throws doubt on safety of conviction
Procedure for the prosecutor to be notified by the disclosure officer of every item of unused material in both courts
CC - disclosure officer prepares a schedule known as MG6C, which individually lists unused materials.
MC - unused materials listed on streamlined disclosure certificate where not guilty plea is anticipated.
Disclosure of sensitive material (i.e. which the disclosure officer believes would give rise to a real risk of serious prejudice to an important public interest)
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
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.
Prosecutor’s initial duty of disclosure
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, OR
- Give the accused a written statement that the above has been complied with.
Disclosure test is OBJECTIVE
A-G’s guidelines?
Name 2 requirements for prosecution in long & complex cases with high volume of material
- must adopt a considered and appropriately resourced approach
- must encourage dialogue with the defence and engage promptly with them
When should the initial details of the prosecution case be served?
No later than the day of the first hearing
What must 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)
In what circumstances and when must unused material be disclosed by the prosecution? (statutory duty) & By when must the prosecutor act?
- Magistrates - only when D pleads not guilty and the case is adjourned for summary trial.
- Crown Court - when D 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’ once duty arises.
Common law duty of disclosure
Even when statutory disclosure duty has not arisen, prosecutor must recognise need for advance disclosure of materials in the interests of justice & fairness.
When will a PTPH normally take place
28 days after sending
what is a defence statement?
a written statement which sets out the accused’s defence
NB: must not merely rehearse suggestion that D is innocent
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.
what must be included in a defence statement if an alibi is used
- name, address 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
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 compliance (or purports) with disclosure.
- can be extended if application is made within the 28 days and the court is satisfied that it would not be reasonable for D to serve defence within 28 days
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 10 business days of prosecution’s complying (or purporting to) with initial disclosure.
Failure to make a defence statement will prohibit the defence from making an application for specific disclosure & P will not have opportunity to review disclosure in light of issues.
What if the defence wants to call a witness? Are there any time limits?
(for both courts)
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 10 business days of P’s initial disclosure
Crown Court - notice must be served within 28 days of P’s initial disclosure
Can the notice be amended to add or remove witnesses?
Yes
5 examples of disclosure failure by the defence
- Fails to serve defence statement
- Fails to do so within required time limits
- Serves a deficient defence statement
- Relies on a defence at trial which is different to that contained in defence statement
- Fails to give notice of defence witnesses
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 or Co-D may comment on such failure without the leave of the court (except where leave is required on point of law)
- 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
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.
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.
Must material be disclosed even if at a late stage in proceedings e.g. after close of prosecution case at trial?
Yes - duty lasts until D is convicted, acquitted or the prosecutor decides not to proceed with the case.
Must the defence disclose material which might be helpful to prosecution?
NO - no duty on defence
The defence statement is all about setting out the defence clearly
what is ‘specific disclosure’
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.
NB: considered a last resort option
Who serves the application of specific disclosure and where is it served?
Served by D on the court AND the prosecution
What must the application for specific disclosure contain
Must describe the material B wants to be disclosed and explain why there is reasonable cause to believe:
- that the prosecutor has the material; and
- that it is material that should be disclosed under the CPIA.
how long does the prosecution have to respond to an application for specific disclosure?
14 days
What are 4 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
What should the defence do before applying for specific disclosure?
write to the prosecution specifying the material which they seek
When and how should P obtain third party material?
If 3rd party material might be considered capable of undermining the prosecution or assisting the defence, and there is some reason to believe that the 3rd party holds relevant material, then P should take steps to obtain it.
P can obtain the information trough a summons if 3rd party refuses (in CC, but similar in MC).
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.
Court MAY withhold disclosure of such material to the extent necessary
Grounds for a Public Interest Immunity Application (PII)
Where there is a real risk of serious prejudice to an important public interest if the material is disclosed
Where must sensitive material be recorded?
At the investigation stage in the Sensitive Material schedule, stating:
- why the material is sensitive and to what degree
- the consequences of disclosing the material to the defence
○ including the involvement of 3rd 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.
Facts in issue
the facts that any party needs to prove in order to prove its case
for the prosecution, these are needed to prove the offence charged
How else can evidence be established other than by a witness giving live evidence?
- agreeing a witness statement as true by consent of the parties
- agreeing any fact between the parties
- a judge or a jury to take ‘judicial notice’ of the fact
What happens if a witness statement is agreed as true?
if agreed by prosecution and defence, it is simply read out in court (same weight as if witness there in person).
NB: only works if there is no challenge to evidence.
- If the statement is challenged, the witness must be called and challenged orally.
What happens if a fact is agreed?
both parties can just agree the fact as a fact.
both parties’ lawyers will sign agreement.
What is a judicial notice of fact
Relates to fact that is obviously true or very easy to find out.
Judges can take judicial notice of a fact ‘on enquiry’ and search up.
NB: jurors cannot take notice on PERSONAL matters that they happen to know, but are NOT generally known (should let the court know).
what 4 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.
For evidence to be admissible, what must it be?
Relevant (whether it proves or disproves fact in issue)
Who decides how evidence is weighted?
Jury
However, if problematic evidence, the judge may intervene to rule the evidence as inadmissible (if nobody could reasonably rely on the evidence).
Tribunal of fact
Responsible for determining the facts
In the MC - bench of magistrates (or District Judge)
- note this is the same as for law
In the CC - the jury
Tribunal of law
Responsible for the law (incl. admissibility of evidence)
In the MC - magistrates (or District Judge)
- note this is the same as for fact
In the CC - judge
Can a judge strike out a criminal defence?
NO
the ultimate question of whether the defence was made out would remain with the tribunal of fact, the jury
6 principal ways of excluding evidence and/or seeking to bring a prosecution case to an end
1.Applications for dismissal;
- Submissions of no case to answer;
- Applications to exclude evidence under s.78 of PACE;
- Applications to exclude confessions under s.76 PACE;
- Applications to exclude evidence under the preserved common law provisions;
- Abuse of process applications.
What is an application for dismissal?
a pre-trial application to have the charges against D dismissed.
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, AND
- Only after D has been served with the evidence relating to the offence, AND
- Only before D is arraigned (i.e. the offence has been put to D and D has plead guilty or not guilty
Where can an application for dismissal be made?
The application is made to the Crown Court Judge and notice must be made in writing.
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.
Must take into account all the evidence.
Same test to be applied for no case to answer.
Can judicial review be brought against a decision on whether an application for dismissal is accepted?
No
Where can a submission of no case to answer be made?
either Magistrates or Crown Court
When can a submission of no case to answer be made?
During a trial after the prosecution has submitted all of its evidence.
Who is a submission of no case to answer made to?
Judge (in the absence of a jury if in Crown Court)
What will jury be informed of re no case submission in Crown Court
If application is unsuccessful, jury will NOT be informed that application was made.
If application is successful, the jury WILL be informed that there is sufficient evidence on the count.
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.
What will the court do on conclusion of the prosecution’s case, on D’s application or its own initiative (re no case to answer)?
May ACQUIT on grounds of insufficient evidence for any reasonable court to properly convict.
HOWEVER, must not do so UNLESS the prosecutor has had an opportunity to make representations (right to reply).
NB: neither MC or CC need to give reasons when rejecting submission of no case
What are the 2 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).
NB: ONLY the first ground is applicable for magistrates’ court.
Examples of when abuse of process might be applicable
- where D has been tricked or coerced into committing an offence D would not otherwise have committed
- where D is prosecuted despite an unequivocal promise by the prosecution that D will not be
- where the police have acted in such a way as to undermine public confidence in the criminal justice system and bring it into disrepute
- where the prosecution has manipulated or misused the process of the court
- delay
What is the remedy for abuse of process?
the case is stayed (closed without a guilty/not guilty verdict
NB: remedy of last resort (should NOT be used if any lesser remedy will be just & proportionate).
Who has burden of proof for abuse of process application and to what standard must this be proven?
Defence
Balance of probabilities
What is the Common law discretion to exclude evidence?
- court can reject evidence where its necessary for a fair trail.
- can exclude where its prejudicial effect outweighs its probative value.
- Only applies to prosecution evidence (not available to prosecution or co-defendant).
If proved, is s.78 (adverse effect) discretionary?
Yes, the court can decide not to apply it
Who can make an application under s.78 (adverse effect) PACE?
defendant - only applies to prosecution evidence.
NB: cannot be used by P or Co-D.
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 (focus on effect of breach, not its seriousness).
- However, if resulting evidence is of such good quality that verdict would reflect the truth, may still be fair and thus allowed.
Are the PACE codes admissible as evidence?
YES
Can the decision to exclude evidence under s 78 be appealed?
The Court of Appeal will not interfere with a judge’s decision under s.78
unless satisfied that the decision was perverse, i.e. no reasonable judge having heard the evidence could have reached the conclusion that he did.
Which evidence does a Section 78 (adverse effect) application apply to?
All prosecution evidence (not just confession evidence)
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.
Key point is for it to be made BEFORE the evidence to which objection is taken is adduced.
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 (only the disputed facts heard).
- held in the absence of a jury in CC.
Normal burden & standard of proof (beyond reasonable doubt)
What does s.76 apply to?
A confession that was obtained by oppression (even if the court thinks the confession was true).
Anything said or done which was likely to render a confession unreliable.
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.
NB includes:
- unequivocal confessions
- mixed statements
- nod, sign or gesture (depends on context)
Does s 76 automatically come into play to challenge confessions? Burden/standard of proof
No - must be raised by defence, or the court can itself require the prosecution to prove that the confession was not obtained through oppression/is unreliable.
So defence raises and then burden with prosecution to prove to court beyond reasonable doubt that confession was not obtained that way.
- if not, confession is excluded (even if true).
If proved, is s.76 discretionary?
No it is mandatory
Note: s.78 (adverse effect) is discretionary
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 (can be omission or failure to act) which was likely, in the circumstances existing at the time, to render unreliable (objective) 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
3 examples of unreliable confessions
- Deprivation of sleep
- Failure to caution
- Denial of access to legal advice
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
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)
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 (unless evidence given of how it was discovered by them).
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.
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
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.
Must a Plea and Trial Preparation Hearing be held in all cases to the Crown Court?
Yes
What is the first step of a PTPH in the crown court?
Araignment
Charges read out an plea taken for each charge
Which court do the prosecutions duty to disclose apply to?
The duties are the same in both the magistrates and crown court
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
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.
If an allegation of s.76 oppression is made by the defence, how is the matter decided?
By voir dire (mini trial)
What does s.78 PACE apply to?
Any evidence proposed by the prosecution.
Can the prosecution use s.78 (adverse effect)?
No, only the defence.
Prosecution can only have evidence excluded on irrelevance
Cannot be used by co-defendant either.
What is the first hearing in the crown court?
Plea and trial preparation hearing
(PTPH) - MUST happen in all cases (often the only one)
At the first hearing at MC, what will the court give directions for?
- Service of documents between parties (if needed)
- Either resolve there and then any matters of law OR set out a timetable as to when they will be resolved (at pre-trial hearing or morning of trial)
- Set a trial date
Can D enter a guilty plea for indictable only offence at MC
NO - they have no jurisdiction to hear it
Where a trial is anticipated, when should the parties complete a PTPH form?
In advance of hearing
Summary trial - what happens at the first hearing where D 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.
When should the prosecution serve sufficient evidence in Crown Court trial?
In advance of or at the PTPH
Exceptions:
- murder
- cases involving children where a further hearing will be envisaged.
At the PTPH, what if there is still 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
Once the prosecution has complied (or purported to comply) with its initial duty of disclosure, does this bring to an end the prosecution’s duty re disclosure?
NO - prosecution is under a continuing duty to review disclosure throughout the criminal proceedings
Following initial disclosure by the prosecution, what document may the defence provide?
Defence statement
Mandatory in Crown Court
Optional in magistrates’ court
