CLP - Pre-trial hearings and confessions

Question 1

Who is responsible for ensuring that proper procedures are in place for recording information and retaining records of information and other material during an investigation?

Answer 1

The officer in charge of the investigation

Question 2

Where the defendant is convicted and given a custodial sentence, how long does the duty to retain material last?

Answer 2

At least until the defendant is released from custody

Question 3

Give examples of unused materials

Answer 3

• 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 4

Give examples of used materials

Answer 4

• statements from the prosecution witnesses
• the defendant’s record of taped interview
• other documentary exhibits such as plans and diagrams relevant to proving the case.

Question 5

What is the name of the document which is a written statement served on the prosecution and the Court, setting out the nature of the accused defence, 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 the particulars of any alibi witness?

Answer 5

Defence statement

Question 6

When should a defendant serve a defence statement on the Crown Court and the prosecution?

Answer 6

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 7

Consequence of failing to serve a defence statement in a magistrates’ court

Answer 7

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

Question 8

When does the continuing duty of disclosure by the prosecution last until?

Answer 8

Until the defendant is convicted, acquitted or the prosecutor decides not to proceed

Question 9

It has become clear during an investigation that material which is relevant to the prosecution case may be held by a financial institution. What is the appropriate step to take to ensure production of the material if it is not forthcoming?

Answer 9

The prosecution can seek a summons
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.

Question 10

Define evidence

Answer 10

Material used to (dis)prove a fact in issue or support/ undermine the credibility of a witness

Question 11

What are the facts in issue?

Answer 11

The facts the prosecution bear the burden of (dis)proving in order to establish the guilt of the accused and the facts that in exceptional cases, the accused bears the burden of proving in order to establish the defence.

Question 12

How might a fact be proved in court?

Answer 12

Live oral testimony
s.9 CJA 1967 - read statement
s. 10 CJA 1967 - agreed facts
judicial notice

Question 13

Principal ways of excluding evidence and/or seeking to bring a prosecution case to an end are:

Answer 13

• Applications for dismissal;
• Submissions of no case to answer;
• Applications to exclude evidence under s.79 PACE
• Applications to exclude confessions under s.76 PACE
• Applications to exclude evidence under the preserved common law provisions – s.82(3) PACE
• Abuse of process applications

Question 14

What would be the appropriate application to make where the police have deliberately destroyed evidence that would have assisted the defence?

Answer 14

Abuse of process application

Question 15

If evidence has been irregularly obtained for example in breach of PACE or the Codes of Practice does this render it inadmissible per se under s.78 PACE 1984?

Answer 15

Simply because evidence has been irregularly obtained in breach of PACE or the Codes of Practice do not render it inadmissible per se. The key test for the court in deciding whether to exclude prosecution evidence under s.78 is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Question 16

In principle, does s.76 or s.78 PACE 1984 exert a broader protective sweep for the defendant?

Answer 16

Section 78 PACE allows a court to examine a case from a perspective of overall fairness, including oppression or unreliability engaged under s.76 PACE 1984.

Question 17

What are the 4 stages of disclosure?

Answer 17

1) The investigation stage – the duty to record and retain material during the investigation;
2) The initial duty of disclosure on the prosecution;
3) Defence disclosure; and
4) The continuing duty on the prosecution to keep disclosure under review

Question 18

What is the prosecution’s statutory duty of disclosure in criminal cases?

Answer 18

To disclose any material that might reasonably be considered capable of undermining the prosecution case or assisting the defence (Criminal Procedure and Investigations Act 1996, s3).

Question 19

What standard is applied in deciding if material meets the disclosure test?

Answer 19

Objective

Question 20

In the Crown Court, what must the disclosure officer prepare in relation to unused material?

Answer 20

A schedule (MG6C) listing all unused material.

Question 21

What is the difference between used and unused material in a criminal investigation?

Answer 21

Used material: relied upon by the prosecution at trial.
Unused material: not relied upon at trial.
Examples of used: witness statements, defendant interview, exhibits.
Examples of unused: non-relied upon witness statements, prior convictions of prosecution witnesses, disciplinary findings against police.

Question 22

Why is unused material important to the defence?

Answer 22

Because it may help the defence or undermine the prosecution’s case. Fairness requires disclosure of such material.

Question 23

Who are the key roles in the investigation stage of disclosure?

Answer 23

Officer in charge of the investigation: directs investigation and procedures

Investigator: conducts investigation

Disclosure officer: responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor’s request.

Question 24

What is the duty of the investigator under the Disclosure Code?

Answer 24

Must follow all reasonable lines of enquiry, whether they point towards or away from the suspect. Must be fair and objective.

Question 25

What is the duty of the disclosure officer under the Disclosure Code?

Answer 25

Must review all retained material and declare this has been done. If in doubt about disclosure, must seek advice from the prosecutor.

Question 26

What kinds of material must be retained during an investigation?

Answer 26

All material which may be relevant to a criminal investigation must be retained. In particular: Crime reports, recordings (e.g. 999 calls), witness statements (and drafts), exhibits, interview records, expert reports, first descriptions of suspects, and material casting doubt on witness or confession reliability.

Question 27

How long must relevant material be retained after proceedings begin?

Answer 27

Until acquittal/conviction or case is dropped. If convicted: Until release/discharge (custodial/hospital order), or 6 months post-conviction (non-custodial cases). If there's an appeal: until it's concluded.

Question 28

What is an MG6C schedule?

Answer 28

Schedule listing unused material prepared by the disclosure officer in Crown Court cases.

Question 29

When is sensitive unused material listed separately?

Answer 29

When its disclosure might risk serious prejudice to an important public interest. May lead to a Public Interest Immunity application.

Question 30

What do the A-G’s Guidelines say about assessing multiple items of material for disclosure?

Answer 30

Even if individual items of material are not reasonably considered capable of undermining the prosecution case or assisting the accused, several items viewed together can have that effect. Prosecutors must assess material collectively as well as individually.

Question 31

When should the prosecution serve disclosure in Crown Court trials?

Answer 31

In time for effective case management at the PTPH, usually 28 days after sending.

Question 32

What does CPIA s.13 say about time limits for initial disclosure?

Answer 32

Must be done as soon as is reasonably practicable once the duty arises.

Question 33

What did the Court of Appeal say in R [2016] 1 WLR 1872 about managing disclosure in complex cases?

Answer 33

Prosecution leads initial disclosure Must adopt a clear strategy and use technology Dialogue with defence is required Courts must manage the process Disclosure is not a tick-box exercise

Question 34

When must the prosecution serve initial details of the case under CrimPR Part 8?

Answer 34

No later than the start of the first hearing.

Question 35

What triggers the initial duty of disclosure of unused material under CPIA?

Answer 35

* 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 36

Why might the defendant choose to serve a defence statement in the Magistrates’ Court?

Answer 36

To gain the right to apply for specific disclosure under s.8 CPIA 1996.

Question 37

What is the time limit for serving a defence statement in the Magistrates’ Court if the defendant chooses to do so?

Answer 37

Within 10 business days of the prosecution complying (or purporting to comply) with its initial disclosure duty.

Question 38

What is the consequence of not serving a defence statement in the Magistrates’ Court?

Answer 38

The defence cannot apply for specific disclosure under s.8 CPIA 1996.

Question 39

Is a defence statement compulsory in the magistrates’ court?

Answer 39

No. It's optional, but if served, it must be within 10 business days of initial disclosure.

Question 40

When must a defendant serve a defence statement in the Crown Court?

Answer 40

Within 28 days of the prosecution complying or purporting to comply with initial disclosure (CrimPR r.15.4(2)).

Question 41

What must a defence statement include under s.6A CPIA?

Answer 41

Nature of the defence Facts in issue with the prosecution Why D takes issue Facts D relies on Any legal points or authorities Alibi details (if any): witness name, address, DOB

Question 42

Why is serving a detailed defence statement important?

Answer 42

It allows proper disclosure review and helps narrow disclosure issues before trial (Judicial Disclosure Protocol para 17).

Question 43

Can a court prevent D from calling an alibi witness not included in the defence statement?

Answer 43

No. The only sanction is comment or adverse inference under s.11 CPIA.

Question 44

What is the risk of giving an inadequate defence statement in the Crown Court?

Answer 44

Jury may draw adverse inferences. The prosecution or co-D can comment on the failure (s.11 CPIA).

Question 45

When must a Notice of Intention to Call Defence Witnesses be served?

Answer 45

Crown Court: within 28 days of initial disclosure Magistrates’ court: within 10 business days of initial disclosure

Question 46

Does failing to serve a defence statement in the magistrates’ court allow adverse inferences?

Answer 46

No. There's no duty to serve one, so no inference can be drawn from not serving it.