👩🏽‍⚖️CLP 5-case management, pre trial hearings, procedure

Question 1

When are MC case management directions given?

Answer 1

-Usually at same hearing D enters NG plea (or plea before venue/allocation for either way)
-OR at subsequent Case Management Hearing (aka. Pre trial review)

Question 2

How long do MC case management directions allow for trial prep?

Answer 2

8 weeks (or 14w if expert needed)

Question 3

MC Trial prep: what needs to be done in terms of witness attendance?

Answer 3

1. D sol ask witness to confirm attendance in writing
2. If unsuccessful, write to court to issue witness summons
3. Court will issue witness summons if satisfied the witness can give material evidence in the proceedings and it is in the interests of justice for a summons to be issued

Question 4

What must the defence do if they want to call a witness to give evidence?

Answer 4

For
a. NG plea in MC
b. Any case in CC

Serve CPS notice setting out non expert witnesses:
1. Names
2. Sddresses
3. DoB
(NOT copies of witness statements)
So far as known
So CPS can check prev convictions

When: 28d from pros complying with initial disclosure of unused material

Question 5

What permission is needed for expert evidence?

Answer 5

If funded by representation order, need permission form LAA

Question 6

When can written witness statements be used and what are the requirements for it to be admissible?

Answer 6

Should ONLY be used for evidence not in dispute (but CPS routinely use for all statements)

Admissible at trial if:
1. Signed & dated
2. Contains declaration:
This statement (consisting of [1]‌ page signed by me) is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.
3.Copy served on other parties before hearing
4. No other parties objected
5. Contains only matters which would be admissible in oral evidence

Question 7

How should documentary evidence be verified?

Answer 7

witness statement from person who prepared the plan or took the photographs

Question 8

What elements of Transforming Summary Justice (TSJ) should be complied with by all working in MC?

Answer 8

-Early and effective case preparation
-Disclosure of Unused Material
-Clear expectations of effectiveness at first hearing
-Clear expectations of trial readiness

Question 9

What is the prosecutions initial duty of disclosure?

Answer 9

Serve on D all evidence on which it wishes to rely at trial to prove the defendant’s guilt.

Question 10

What unused material must the prosecution disclose?

Answer 10

s3 test: if it might reasonably be considered capable of undermining the case for the prosecution …or assisting the case for the accused

Question 11

Time limits for disclosure of unused material by the prosecution?

Answer 11

-will be given in case management directions
BUT duty ongoing=CPS must review any new material

Question 12

When can the prosecution withhold disclosure of unused material?

Answer 12

Can withhold ‘sensitive’ items that meet s3 test if it is protected by ‘public interest immunity’
CPS must apply to court for a finding that it is not obliged to disclose the relevant material (often without notice to defence)

Question 13

How can defence solicitors combat the prosecution withholding disclosure of sensitive unused material?

Answer 13

In defence statement, ask CPS:
1. Has schedule of sensitive materials has been prepared?
3. Has CPS made any application to court for an order that its not obliged to disclose the existence of such material?

Question 14

Examples of sensitive unused material that may be witheld

Answer 14

◊ Relating to national security or intelligence
◊ Identity of police informants/undercover officers
◊ Police techniques/covert surveillance techniques
◊ Child witness (eg provided by LA social services

Question 15

What is the prosecutions futher obligations with regard to disclosure?

Answer 15

CPS must review its initial disclosure of unused material and determine if there is any further unused material in its possession which, in light of the matters contained in the defence statement, might now be deemed capable of undermining the case for the prosecution or of assisting the case for the defendant

Question 16

What cases will be subject to a Plea and Trial Preparation Hearing (PTPH)?

Answer 16

Cases sent to the Crown Court

Question 17

For indictable only offences, what is the purpose of the hearing in the MC?

Answer 17

determine whether an offence triable only on indictment is charged and whether there are related offences which should also be sent to CC

Question 18

When charged with an indictiable only offence when MUST related offences also be sent to the CC?

Answer 18

1. Either way/summary offence related to indictable only offence
2. Summary offence is punishable with imprisonment or involves obligatory disqualification from driving

Question 19

Once the magistrates have decided to send D to CC, what will they do?

Answer 19

1. set date for PTPH at CC AND issue standard case management directions (both parties comply before PTPH)
   OR
   Set date for preliminary CC hearing if needed and remand suspect
2. give D notice of offences they’re sent to trial for and send copy of notice to CC

Question 20

When will a D charged with an either way offence who pleads NG at the plea before venue be tried in the CC?

Answer 20

1. mag decline jurisdiction
2. OR D elects CC trial at allocation hearing

Question 21

When may D charged with an either way offence be sent to the CC for a linked summary offence?

Answer 21

The summary offence is:
1. Common assault
2. Taking a conveyance without consent
3. Driving whilst disqualified
4. Criminal damage
AND founded on same facts OR part of series of offence of similar character

OR
1. punishable with imprisonment or disqualification from driving
2. AND appears related to the either- way offence

Question 22

If a D has been tried for a summary and either way in the CC and convicted of the either way and pleads guilty to the summary, who sentences the summary?

Answer 22

CC can sentence summary (powers limited to MC)

Question 23

If a D has been tried for a summary and either way in the CC and is acquitted of the either way or pleads NG to the summary, who sentences the summary?

Answer 23

summary must be remitted back to MC for trial

Question 24

When will a preliminary hearing (before a PTPH) take place at the crown court?

Answer 24

for indictable only if:
1. case management issues which CC needs to resolve
2. trial likely to exceed 4w
3. its desirable to set an early trial date
4. D under 18 years
5. likely to be a guilty plea and D could be sentenced at the preliminary hearing.

Question 25

Time limit for preliminary hearing in the CC to be held?

Answer 25

within 10 business days of the date on which magistrates send the case to CC

Question 26

What is a PTPH

Answer 26

Will be First hearing in CC if prelim not needed Purpose: -D enter their plea - if pleading NG, to enable the judge to give further case management directions

Question 27

Time limit for PTPH to be held?

Answer 27

Where no preliminary hearing, within **20 business days**after sending

Question 28

What will happen at the start of the PTPH?

Answer 28

D will be arraigned=count(s) on the indictment will be put to D who will either plead guilty or not guilty

Question 29

Will the jury be told about the counts to which a D pleads NG?

Answer 29

no

Question 30

What arrangements may a D make with the CPS in terms of multiple counts?

Answer 30

◊ agree to plead guilty to some if CPS don’t proceed with others (CPS will offer no evidence of other counts at arraignment and judge will order NG verdict entered) ◊ As an alternative to offerig no evidence, the CPS may ask that a count ‘lie on the court file’ (eg where several counts and CPS evidence is strong, D agrees to plead guilty to more serious accounts and CPS can reopen case later with leave of court)

Question 31

What happens if the D pleads guilty at the PTPH?

Answer 31

-Judge sentence immediately or adjourn for pre sentence reports -If disputes facts, may adjourn for Newton hearing to determine factual basis of sentence

Question 32

When may a judge give an indication of sentence if D were to enter guilty plea

Answer 32

If D specifically asks

Question 33

Is an indication of sentence if were to enter guilty plea binding?

Answer 33

Yes if given and D enters guilty plea

Question 34

What is an indication of sentence if were to enter guilty plea also known as?

Answer 34

Goodyear indications

Question 35

What happens if D pleads NG at a PTPH?

Answer 35

Judge will consider if further directions necessary relating to evidence, witnessess, trial length

Question 36

When will the case be listed for trial?

Answer 36

-Date fixed at PTPH -OR placed on 'warned list' to await fixed date (CC will contact D sol when case listed shortly before start date)

Question 37

When can you change plea from NG to guilty?

Answer 37

* At discretion of judge any time before verdict * Or during trial if judge makes a ruling law/ admissibility of evidence which deprives D of theirdefence

Question 38

What is the next step once the CPS has made initial disclosure of unused material?

Answer 38

Serve defence statement **MC**-optional, within 10 business days of CPS initial unused material disclosure **CC**-compulsory (or adverse inferences drawn with leave of court), within 20 business days of CPS initial unused material disclosure Time limit can be extended if case complex

Question 39

What will a defence statement contain?

Answer 39

□ Nature of defence +specific defence □ Prosecution facts D takes issue with and why □ Particulars of facts D relying on □ Points of law (inc evidence admissibility) D wants to take to trial and legal authorities relied on for this □ Name, address, DoB of alibi witness (if known)

Question 40

Is there a continuing duty to update a defence statement statement

Answer 40

yes

Question 41

When will the defence statement be deemed to be given with the authority of the defendant?

Answer 41

Always unless the contrary is proved

Question 42

# 5 When can adverse inferences be drawn in the context of defence statements?

Answer 42

(a) failing to provide (b) late service (c) serving incomplete statement (d) statement inconsistent with the defence put forward at trial (e) failing to update

Question 43

How can the defence challene prosecution failure to provide unused material and continuing duty of disclosure in light of matters contained in defence statement?

Answer 43

1. Apply to court IF have set out in defence statement the material which they consider the CPS has which it hasnt disclosed 2. Court can order CPS disclose material if D has reasonable cause to believe theres prosecution material which should have been, but has not been, disclosed

Question 44

Stages of trial in MC

Answer 44

1. Opening speech by CPS solicitor 2. Prosecution witnesses evidence (examination in chief, cross, re) 3. Possible submission of no case to answer 4. Defence witnesses give evidence (examination in chief, cross, re) 5. Prosecuting solicitor closing speech 6. Defence solicitor closing speech 7. Magistrates/district judge retire to consider verdict 8. Verdict announced

Question 45

Will the prosecution witnesses give sworn evidence in the MC?

Answer 45

Yes (take oath/affirmation) UNLESS child under 14

Question 46

What prosecution witness gives evidence fists?

Answer 46

Complainant

Question 47

What happens if theres points of law the defence consider inadmissible in the prosecutions case?

Answer 47

Voir dire (trial within trial) ◊ Witnesses give evidence relevant to admissibility ◊ Prosecutor and D sol make submissions ◊ inadmissible-pros cant make further reference ◊ Admissible-Ds sol can still undermine OR mag will hear in trial and consider admissibility at no case to ansert OR at pre trial hearing before diff bench

Question 48

When can a submission of no case to answer be made?

Answer 48

Galbraith test: 1. Prosecution failed to put forward evidence to prove **essential element of offence** 2. OR prosecution evidence so **discredited**by cross- examination, or **so manifestly unreliable**, that no reasonable tribunal could safely convict on it.

Question 49

MC: What defence witness goes first?

Answer 49

Defendant

Question 50

MC: Is the defendant required to give evidence?

Answer 50

No but normally best to boost credibility, where defence requires it or to prevent adverse inderences

Question 51

MC: Will the prosecution always make a closing speech?

Answer 51

wont normally unless case is complex

Question 52

What number of magistrates must agree on the verdict?

Answer 52

majority not unanimity

Question 53

What is the role of the judge vs jury in the CC?

Answer 53

Jury decide on: □ Facts in dispute □ Defendants guilt/innocence Judge: □ Resolve disputes over law □ Directs on relevant law □ Sentences

Question 54

Stages of trial in CC

Answer 54

1. If D not already arraigned, happens before jury empanelled so they're not prejudice 2. Jury sworn (aka empanelled) 4. Court clerk reads counts indictment D has pleaded NG 5. Prosecution opening speech 6. Prosecution witnesses give evidence (exam in chief, cross, re) 7. Possible submission of no case to answer 8. Defence case (exam in chief, cross, re) 9. Closing speech by prosecution 10. Closing speech by defence 11. Judge 'summing up' 12. Jury retire to consider verdict 13. Verdict returned

Question 55

Who can/cant be a jury member

Answer 55

-12 Randomly selected from electoral roll of local area - Age 18-75 - Resided in UK for last 5 years NOT -Anyone with mental disorder -On bail in criminal proceedings - Previous custodial sentence

Question 56

How many jury members must agree on the verdict?

Answer 56

Must be unanimous UNLESS can give majority direction if after 2h10min (or more in complex cases) cant reach unanimity then 11:1 or 10:2 possible Some jurors discharged: 10:1, 9:1 ok but if 9 or less, must be unanimous

Question 57

What happens if the jury cant reach a decision within a reasonable time?

Answer 57

* Judge will discharge * Prosecution will probs request retrial w new jury

Question 58

What to call Magistrates collectively

Answer 58

Your Worships

Question 59

What to call district Jude or single magistrate/chairperson?

Answer 59

sir/madam

Question 60

What to call crown court judge?

Answer 60

your honour

Question 61

What to call opposing advocate solicitor/barrister?

Answer 61

Solicitor-my friend Barrister-my learned friend

Question 62

Type of questions asked in examination in chief

Answer 62

CANNOT ask leading questions Open questions only

Question 63

Type of questions asked in cross examination

Answer 63

closed/leading questions to keep better control of what witness will say (y/n questions)

Question 64

What are the 3 purposes of cross examination?

Answer 64

1. Undermine credibility of evidence 2. Obtain evidence favourable to clients case 3. Put your case to the witness.

Question 65

Type of questions asked in re-examination

Answer 65

ONLY open non leading questions

Question 66

What is a leading and non leading question?

Answer 66

Leading =questions suggestive of answer Open Questions=non leading-witness can say account in their own words: Who…? What…? When…? Where…? How…?

Question 67

What is the general rule on competence?

Answer 67

'At every stage in criminal proceedings all persons are (whatever age) competent to give evidence.' All competent persons also compellable via witness summons

Question 68

Effect of ignoring witness summons or attending but refusing to answer questions

Answer 68

contempt of court (imprisonment)

Question 69

What are the exceptions to the rule on competence

Answer 69

Not competent to give evidence if it appears to court person isnt able to: (a) understand questions put to him as a witness; (b) give answers which can be understood.

Question 70

Who does the exeption to the rule on competence usually apply to?

Answer 70

-Children (but age not determinative) -Defective intellect (may give unsworn evidence)

Question 71

Is the accused a competent and compellable witness?

Answer 71

For crown: not competent For co-accused and self: competent but not compellable

Question 72

Is a co accused a competent witness?

Answer 72

No unless: 1. A-G files nolle prosequi (formal notice abandoning the prosecution). 2. order made for separate trials (but, a co- accused from the first trial may be called at the second, but not vice versa) 3. Accused formally acquitted,(eg. if prosecution offers no evidence) 4. Other accused pleads guilty (usually considered desirable that the accused should be sentenced before giving evidence)

Question 73

Is the (non accused) spouse of the accused a competent and compellable witness for the accused and the crown?

Answer 73

ACCUSED competent and compellable CROWN Competent BUT only compellable where: ◊ Offence involves an assault, injury or threat of injury to the spouse or someone under l6 ◊ charge is a sexual offence involving someone under 16 or attempting, aiding and abetting such offences.

Question 74

Is the (non accused) spouse of the accused a competent and compellable witness for a co accused?

Answer 74

IS competent But only compellable where: ◊ Offence charged involves an assault on or injury or threat of injury to the spouse or a person who was under l6 ◊ charge is a sexual offence, or such an attempted offence involving a person under l6 or aiding and abetting such offences.

Question 75

Where spoused are co accused, are they compellable for eachother?

Answer 75

never

Question 76

Are divorced spouses compellable

Answer 76

yes, treated as if never married

Question 77

What is the purpose of special measures?

Answer 77

=assist witnesses (other than D) who might otherwise have difficulty giving evidence

Question 78

# 4 Who can apply for special measures?

Answer 78

1. Mental/physical disorder or disability/impairment likely to affect evidence 2. Evidence is likely to be affected by their fear or distress 3. Complainants in sexual offences 4. Witnesses in specified gun and knife crimes

Question 79

Who automatically qualifies for special measures?

Answer 79

Sex victims

Question 80

When can the judge let a fearful witness use a witness statement instead?

Answer 80

When considered special measures first

Question 81

What should the judge warn the jury when special measures are used?

Answer 81

that special measures shouldn’t prejudice evidence

Question 82

Is the D entitled to special measures?

Answer 82

D not eligible BUT D whose ability to participate effectively as a witness in court is compromised by reason of their mental disorder, impaired intellectual ability or social functioning, to give evidence by video link.

Question 83

What is a solicitor representing their client at the MC under a duty to say on behalf of their client?

Answer 83

what that client would properly say, were they to have the necessary skills and knowledge to do this.

Question 84

If a client admits guilt, what does the solicitor still have to do?

Answer 84

Put prosecution case to proof if sol considers it weak BUT dont say anything you know to be untrue (Principle 1: RoL)