Crim 5 - Case Management and Trial Proceedings

Question 1

Case management hearing

Answer 1

Plea of not guilty or for either way after venue allocation.
8 - 14 * if expert weeks to prepare for trial.

Question 2

Witness summons

Answer 2

Part 17 Crim PR.
Court will issue if material evidence in proceedings in the interest of justice.
Get witness attendance in writing if not secure witness summons.

Question 3

Witness obligations

Answer 3

• S6C - Criminal Procedure and Investigations Act -
  serve on CPS a notice setting out names, addresses and dats or birth of witnesses.
  28 days from which the prosecutor complies ur purports to comply with s3 of the CPIA 1996.
  Police may interview under CPIA 1996 s21A but follow a code.
  Failure to comply may result in inferences.

Question 4

Expert witness

Answer 4

If D case funded by representation order must obtain prior authority from the LAA.
Must serve a copy of report on CPS before trial.

Question 5

Witness attendance?

Answer 5

May not need to attend if not disputed
S9 CJA 1967 statement may be relied upon if;
signed and dated
contains declaration
copy served on both parties
none of other parties have objected within seven days

Question 6

Documentary evidence

Answer 6

Photos etc.
Verified by witness statement from person who got the evidence

Question 7

Plea and trial preparation hearing (PTPH)

Answer 7

(i) the either-way or summary offence appears to the court to be related to the offence
triable only on indictment; and
(ii) in the case of a summary-only offence, it is punishable with imprisonment, or involves
obligatory or discretionary disqualification from driving (CDA 1998, s 51(11)).
When no pre-limianry hearing PTPH should take place within 20 business days

Question 8

The arraignment

Answer 8

-D pleads guilty to some count but not others jury not told of other counts.
-Not reasonable prospect - not guilty verdict and D discharged.
- D pleads guilty to more serious CPS may lie on file of lesser counts, with courts leave, may reopen.

Question 9

Linked summary offences

Answer 9

If summary-only is common assault, taking a conveyance without consent, driving whilst disqualified .
Founded on same facts as either-way or part of serious offences of same character.
May be tried at crown-court.

Question 10

In addition

Answer 10

• driving disqualification or may be imprisoned.
  -related to either-way offence
  May be tried in crown.

Question 11

Preliminary hearing for trial on indictment if-

Answer 11

(a) there are case management issues which the Crown Court needs to resolve;
(b) the trial is likely to exceed four weeks;
(c) it is desirable to set an early trial date;
(d) the defendant is under 18 years of age; or
(e) there is likely to be a guilty plea and the defendant could be sentenced at the preliminary
hearing.
Must take place within 10 business days of the date on which the magistrates send the case to Crown.

Question 12

Guilty

Answer 12

Straight to sentencing or adjourn for pre-sentence reports
If guilty but disputes fact Newton Hearing.

Question 13

Indications

Answer 13

Judge may indicate sentencing on guilty at D’s request. Binding.

Question 14

Not guilty

Answer 14

To determine further directions judge will require from both D and P -
(a) a summary of the issues in the case;
(b) details of the number of witnesses who will be giving oral evidence at trial and the
estimated length of the trial;
(c) whether the transcript(s) of the defendant’s police station interview(s) require(s) editing;
(d) whether a defence statement has been served and, if so, whether there is any issue as to
the adequacy of the statement;
(e) whether the prosecution will be serving any additional evidence;
(f) whether there is any dispute as to the adequacy of disclosure of unused material by the
prosecution;
(g) whether any expert evidence is to be called and, if so, whether any additional directions
are needed in respect of this;
(h) whether any further directions are necessary concerning hearsay or bad character
evidence;
(i) whether special measures are required for any witnesses;
(j) any facts which can be formally admitted;
(k) any points of law or issues concerning the admissibility of evidence which are likely to
arise at trial;
(l) dates of availability to attend trial of the witnesses and the advocates.

Question 15

Warned list

Answer 15

List of cases awaiting trial. Crown will contact solicitor to let them know case has been listed for trial shortly.

Question 16

Conclusion

Answer 16

Released on bail or remanded in custody pending trial.

Question 17

Change of plea

Answer 17

Change from guilty to not guilty if hoping for no case to answer for.
May change during trial if judge makes a ruling on point of law or admissability of evidence which deprives defence.

Question 18

Disclosure

Answer 18

Authority
CPIA 1996
Judicial protocol on the Disclosure of Unused Material
National Disclosure Improvement plan

Question 19

Initial Prosecution Duty

Answer 19

Serve on D all evidence on which it intends to rely on

Question 20

Unused material

Answer 20

CPS must disclose if satisfies test in s3 CPIA 1996-
Such material must be disclosed if might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused.

Question 21

Incomplete?

Answer 21

D’s solicitor will request missing items when drafting defence statement.
If not may apply to court under s8(2) after providing defence statement.

Question 22

Can prosecution withhold?

Answer 22

If ‘sensitive’
Public interest immunity - at discretion of court R v Ward 1993.

Question 23

Defence disclosure (onus then switches to D)

Answer 23

Magistrates - After 10 business days
Crown - After 20 business days
May be extended by court
Co-defendant may have to disclose to each other (court makes order s5A).

Question 24

Defence statement

Answer 24

Adverse inference drawn in Crown if not served.
- No obligations in Magistrates - should consider if they think CPS will.

Question 25

Contents of statement

Answer 25

S6A CPIA 1996 amended by s60 CJIA 2008-
Written statement which -
(a) sets out the nature of the defence, including any particular defences on which the
defendant intends to rely (for example, alibi or self-defence);
(b) indicates the matters of fact on which the defendant takes issue with the prosecution and
why they take such issue;
(c) sets out particulars of the matters of fact on which the defendant intends to rely for the
purposes of their defence;
(d) indicates any points of law (including any point as to the admissibility of evidence) that
the defendant wishes to take at trial, and any legal authority on which the defendant
intends to rely for this purpose; and
(e) in the case of an alibi defence, provides the name, address and date of birth of any alibi
witness, or as many of these details as are known to the defendant.

Continuing duty similar to CPS.

Question 26

D’s consent

Answer 26

Will be deemed automatically on statement. D will usually sign a copy.

Question 27

Adverse influences?

Answer 27

(a) failing to provide a defence statement at all;
(b) late service of the defence statement;
(c) serving a defence statement that is incomplete;
(d) serving a defence statement which is not consistent with the defence put forward at
trial; and
(e) failing to update a defence statement

-May make comments as appear appropriate. court or jury may draw inferences. WITH LEAVE

Question 28

Further obligations on prosecution

Answer 28

Review, may decide if unused material should be disclosed that assist or undermines the case (CPIA s7A).

Question 29

Challenge failure from P to provide unused material?

Answer 29

S8(2) CPIA 1996-
ask court for order that CPS disclose material D has reasonable cause to believe should have been disclosed.
Set out in detail in D statement which they consider the CPS has.

Question 30

Trial Procedure in the Magistrates and Crown

Question 31

Trial in the Magistrates Court (Crim PR, Part 24)

Answer 31

(a) Opening speech by the solicitor from the CPS.
(b) The prosecution witnesses will then be called in turn to give evidence. Each witness will be
examined in chief by the prosecuting solicitor and then cross-examined by the defendant’s
solicitor. The prosecuting solicitor may then choose to re-examine the witness.
(c) (Possible submission of no case to answer by defendant’s solicitor.)
(d) The defence witnesses will then be called in turn to give evidence (with the defendant
being called first). Each witness will be examined in chief by the defendant’s solicitor and
will then be cross-examined by the prosecuting solicitor. The defendant’s solicitor may
then choose to re-examine the witness.
(e) The prosecuting solicitor may make a closing speech where the defendant is represented,
or the defendant has introduced evidence other than his own (whether represented or not).
(f) Closing speech by the defendant’s solicitor.
(g) The magistrates retire to consider their verdict.
(h) The magistrates deliver their verdict.
(i) If the defendant is found guilty, the magistrates will then either sentence the defendant
immediately, or adjourn sentence until later if they wish to obtain pre-sentence reports on
the defendant. If acquitted, the defendant will be formally discharged by the magistrates
and told that they are free to go.

Question 32

Opening Speech

Answer 32

Factual details
Explain substantive law
Evidence from witnesses

Question 33

Prosecution Evidence

Answer 33

Witness - oath of truth.
Defence may cross-examine
P may then re-examine

Question 34

Arguments on point of law

Answer 34

D may object to e.g. - bad character, ID procedure, admissability of evidence under s78.

Voir dire (trial within a trial) held.
If inadmissable P not allowed to make further reference.

Problem in magistrates as they are still aware. Sometimes pre-trial hearing with different magistrates.

Question 35

Submission of no case to answer

Answer 35

If burden not satisfied. Test under R v Galbrath
-(a) the prosecution has failed to put forward evidence to prove an essential element of the
alleged offence; or
(b) the evidence produced by the prosecution has been so discredited as a result of crossexamination, or is so manifestly unreliable, that no reasonable tribunal could safely
convict on it.

Question 36

Hard test?

Answer 36

Hard in practice.
R v Sardar - Direct evidence, always a case to answer. Circumstantial only where evidence is not capable in law.

Question 37

Defence case

Answer 37

D can give evidence but is not obliged to do so.
Unless D has to discharge evidential burden on defence.
May be advantageous to provide a consistent defence.
If P raised questions, D should answer so no inferences drawn.

Question 38

Order

Answer 38

Unless court orders different D must give evidence first
Same procedure as P but reversed. (D then P then D).

Question 39

Closing speech

Answer 39

Only in complex cases where it will be of assistance to the court.

D can make one -
Should -
Remind of burden
Point where P failed
Cover evidential issues.
Should show only possible conclusion is not guilty.

Question 40

Verdict

Answer 40

3 normally will decide.
Sentencing immediately or adjourned for medical or other reports.
If adjourned - bail or custody.
Right to appeal to crown court.

Question 41

Crown court

Answer 41

-
Judge on law and jury on fact
Judge will say what are the true facts, and relevant laws.
Solicitors who have higher rights of audience or barristers.

Question 42

Change of plea

Answer 42

Must apply in writing as soon as practical after becoming aware of grounds.

Question 43

Order of events

Answer 43

The jury will be sworn
P opening speech - legal elements, evidence, explanation of the operation of the burden.
P witness - complainant first
Disputes - voir dire (jury will retire)
No case submission
Defence case - witnesses etc.
Closing speeches
Judge will sum up to jury - directions on law and summary of evidence

Question 44

Judges directions to jury

Answer 44

• Burden and standard of proof
• legal requirements of offence
  -issues of law and evidence (e.g. Turnbull)

Question 45

Judges summary of evidence

Answer 45

-succinct summary
- summary of evidence and arguments
-inferences able to be drawn
-Jury will retire (majority of 10:2 lowest accepted) Normally unanimous but after 2 hours and 10 mins majority allowed.
If dropped down to 9 jurors only unanimous.
- If cannot reach judge likely to discharge (retrial).
-Judge may sentence or adjourn (bail or custody for reports).

Question 46

Modes of address

Answer 46

Magistrates - Your Worships (or Sir or Madam) * and for district judge
Crown court - Your Honour
Opposing advocate - my friend or learned friend (for barrister).
Bow when entering (stand up when entering if already in there).
Advocate may remain seated when advocating if -
juvenile, videolink, bail appeal in chambers in crown court.

Question 47

Advocate in chief

Answer 47

Not allowed to ask leading questions.
Five Ws

Question 48

Cross-examination

Answer 48

Closed or leading questions to -
* to enable the party conducting the cross-examination to put their case to the witness;
* to undermine the credibility of the evidence which that witness has just given in
examination-in-chief; and
* to obtain favourable evidence from the witness that supports your case.

Question 49

Re-examination

Answer 49

Clarify confusion
- Open questions again

Question 50

Competence and compellability

Answer 50

All competent persons compellable.
Compelled to testify, refusing to answer. May be contempt of court under s97 Magistrates Court Act 1980.

Question 51

May not be competent if-

Answer 51

Not able to
Understand questions
Give answers which can be understood.

Question 52

Children?

Answer 52

May not be sworn until 14.
May still be required to testify.
Defective intellect - discretion as to whether sworn or unsworn.

Question 53

The accused

Answer 53

Generally not competent for the Crown.
Same as co-accused UNLESS-
1. The Attorney-General may file a nolle prosequi (a formal notice abandoning the
prosecution)
2. An order may be made for separate trials but note that in such a case, a co-accused from
the first trial may be called at the second, but not vice versa.
3. The accused may be formally acquitted, for example if the prosecution offers no evidence.
4. The accused may plead guilty and may then give evidence for the Crown against a coaccused; it is usually considered desirable that the accused should be sentenced first
before giving evidence.

Question 54

As a witness for a co-accused

Answer 54

A co-accused is competent but not compellable

Question 55

In own defence

Answer 55

Competent but not compellable.
Important regarding adverse inferences.

Question 56

The Spouse of the accused

Answer 56

Two scenarios where compellable, if not they may choose to do so.
Exceptions;
* where the offence charged involves an assault on or injury or threat of injury to the
spouse or a person who was under l6; or
* where the charge is a sexual offence, or such an attempted offence involving a person
under l6 or aiding and abetting such offences.

Question 57

Summary

Answer 57

(i) For the accused
A spouse is compellable.
(ii) For a co-accused
The spouse is only compellable in the same limited class of specified offences that apply to
the prosecution under ss (3) above.
(iii) Where spouses are co-accused then one is never compellable for the other.
Note that s 80(5) provides that if spouses are no longer married at the date of the trial it is as
if they were never married for the purpose of establishing their compellability.

Question 58

Special measures

Answer 58

(a) children aged under 18;
(b) those suffering from a mental or physical disorder, or having a disability or impairment
that is likely to affect their evidence;
(c) those whose evidence is likely to be affected by their fear or distress at giving evidence in
the proceedings; (sexual)
(d) complainants in sexual offences;
(e) those who are witnesses in specified gun and knife crimes (YJCEA 1999, Sch 1A).

Question 59

S1161(2)(e)

Answer 59

With leave witness who is fearful may not have to testify (written statement).
But will deprive D of cross-examination. Thus special measures may be necessary.

Question 60

Types of special measures

Answer 60

(a) screens, to ensure that the witness does not see the defendant;
(b) allowing a witness to give evidence from outside the court by live television link, and
where appropriate, allowing a witness supporter to accompany the witness whilst giving
evidence;
(c) clearing people from the court so evidence can be given in private;
(d) in a Crown Court case, the judge and barristers removing their wigs and gowns;
(e) allowing a witness to be examined in chief before the trial and a video recording of that
examination-in-chief to be shown at trial;
(f) allowing a witness to be cross-examined (and re-examined) before the trial and a video
recording of this to be shown at trial;
(g) allowing an approved intermediary (such as an interpreter or speech therapist) to help a
witness communicate when giving evidence at the court; and
(h) allowing a witness to use communication aids, such as sign language or a hearing loop

This is not allowed to prejudice D’s case.
S33A D may give evidence via video link if impaired.

Answer 61

Although a defendant is not eligible to take advantage of these special measure provisions,
s 33A of the 1999 Act allows a defendant 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 62

Solicitors Duty

Answer 62

Do not mislead
Speak to D about procedure, likely outcome, give their statement but do not COACH.