Criminal 5-case management, pre trial hearings, procedure Flashcards
When are MC case management directions given?
-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)
How long do MC case management directions allow for trial prep?
8 weeks (or 14w if expert needed)
MC Trial prep: what needs to be done in terms of witness attendance?
- D sol ask witness to confirm attendance in writing
- If unsuccessful, write to court to issue witness summons
- 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
What must the defence do if they want to call a witness to give evidence?
Within 28d from the prosecution complying with initial disclosure, for NG plea in MC or any case in CC, must serve on CPS notice setting out non expert witnesses:
◊ Names
◊ addresses
◊ DoB
◊ (NOT copies of witness statements)
So far as known
So CPS can check prev convictions
What permission is needed for expert evidence?
If funded by representation order, need permission form LAA
When can written witness statements be used and what are the requirements for it to be admissible?
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
How should documentary evidence be verified?
witness statement from person who prepared the plan or took the photographs
What elements of Transforming Summary Justice (TSJ) should be complied with by all working in MC?
-Early and effective case preparation
-Disclosure of Unused Material
-Clear expectations of effectiveness at first hearing
-Clear expectations of trial readiness
What is the prosecutions initial duty of disclosure?
Serve on D all evidence on which it wishes to rely at trial to prove the defendant’s guilt.
What unused material must the prosecution disclose?
s3 test: if it might reasonably be considered capable of undermining the case for the prosecution …or assisting the case for the accused
Time limits for disclosure of unused material by the prosecution?
-will be given in case management directions
BUT duty ongoing=CPS must review any new material
When can the prosecution withhold disclosure of unused material?
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)
How can defence solicitors combat the prosecution withholding disclosure of sensitive unused material?
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?
Examples of sensitive unused material that may be witheld
◊ 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
What is the prosecutions futher obligations with regard to disclosure?
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
What cases will be subject to a Plea and Trial Preparation Hearing (PTPH)?
Cases sent to the Crown Court
For indictable only offences, what is the purpose of the hearing in the MC?
determine whether an offence triable only on indictment is charged and whether there are related offences which should also be sent to CC
When charged with an indictiable only offence when MUST related offences also be sent to the CC?
- Either way/summary offence related to indictable only offence
- Summary offence is punishable with imprisonment or involves obligatory disqualification from driving
Once the magistrates have decided to send D to CC, what will they do?
- 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 - give D notice of offences they’re sent to trial for and send copy of notice to CC
When will a D charged with an either way offence who pleads NG at the plea before venue be tried in the CC?
- mag decline jurisdiction
- OR D elects CC trial at allocation hearing
When may D charged with an either way offence be sent to the CC for a linked summary offence?
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
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?
CC can sentence summary (powers limited to MC)
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?
summary must be remitted back to MC for trial
When will a preliminary hearing take place at the crown court?
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.
Time limit for preliminary hearing in the CC to be held?
within 10 business days of the date on which magistrates send the case to CC
What is a PTPH
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
Time limit for PTPH to be held?
Where no preliminary hearing, within 20 business daysafter sending
What will happen at the start of the PTPH?
D will be arraigned=count(s) on the indictment will be put to D who will either plead guilty or not guilty
Will the jury be told about the counts to which a D pleads NG?
no
What arrangements may a D make with the CPS in terms of multiple counts?
◊ 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)
What happens if the D pleads guilty at the PTPH?
-Judge sentence immediately or adjourn for pre sentence reports
-If disputes facts, may adjourn for Newton hearing to determine factual basis of sentence
When may a judge give an indication of sentence if D were to enter guilty plea
If D specifically asks
Is an indication of sentence if were to enter guilty plea binding?
Yes if given and D enters guilty plea
What is an indication of sentence if were to enter guilty plea also known as?
Goodyear indications
What happens if D pleads NG at a PTPH?
Judge will consider if further directions necessary relating to evidence, witnessess, trial length
When will the case be listed for trial?
-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)
When can you change plea from NG to guilty?
- 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
What is the nex step once the CPS has made initial disclosure?
Serve defence statement
MC-optional
CC-compulsory (or adverse inferences drawn with leave of court)
Time limit for service of defence statement and can it be extended?
MC-within 10 business days of CPS initial unused material disclosure
CC- within 20 business days of CPS initial unused material disclosure
Can be extended if case complex
What will a defence statement contain?
□ 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)
Is there a continuing duty to update a defence statement statement
yes
When will the defence statement be deemed to be given with the authority of the defendant?
Always unless the contrary is proved
When can adverse inferences be drawn in the context of defence statements?
(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
How can the defence challenging prosecution failure to provide unused material and continuing duty of disclosure in light of matters contained in defence statement?
- Apply to court IF have set out in defence statement the material which they consider the CPS has which it hasnt disclosed
- 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
Stages of trial in MC
- Opening speech by CPS solicitor
- Prosecution witnesses evidence (examination in chief, cross, re)
- Possible submission of no case to answer
- Defence witnesses give evidence (examination in chief, cross, re)
- Prosecuting solicitor closing speech
- Defence solicitor closing speech
- Magistrates/district judge retire to consider verdict
- Verdict announced
Will the prosecution witnesses give sworn evidence in the MC?
Yes (take oath/affirmation) UNLESS child under 14
What prosecution witness gives evidence fists?
Complainant
What happens if theres points of law the defence consider inadmissible in the prosecutions case?
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
When can a submission of no case to answer be made?
Galbraith test:
- Prosecution failed to put forward evidence to prove essential element of offence
- OR prosecution evidence so discreditedby cross- examination, or so manifestly unreliable, that no reasonable tribunal could safely convict on it.
MC: What defence witness goes first?
Defendant
MC: Is the defendant required to give evidence?
No but normally best to boost credibility, where defence requires it or to prevent adverse inderences
MC: Will the prosecution always make a closing speech?
wont normally unless case is complex
What number of magistrates must agree on the verdict?
majority not unanimity
What is the role of the judge vs jury in the CC?
Jury decide on:
□ Facts in dispute
□ Defendants guilt/innocence
Judge:
□ Resolve disputes over law
□ Directs on relevant law
□ Sentences
Stages of trial in CC
- If D not already arraigned, happens before jury empanelled so they’re not prejudice
- Jury sworn (aka empanelled)
- Court clerk reads counts indictment D has pleaded NG
- Prosecution opening speech
- Prosecution witnesses give evidence (exam in chief, cross, re)
- Possible submission of no case to answer
- Defence case (exam in chief, cross, re)
- Closing speech by prosecution
- Closing speech by defence
- Judge ‘summing up’
- Jury retire to consider verdict
- Verdict returned
Who can/cant be a jury member
-X12 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
How many jury members must agree on the verdict?
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
What happens if the jury cant reach a decision within a reasonable time?
- Judge will discharge
- Prosecution will probs request retrial w new jury
What to call Magistrates collectively
Your Worships
What to call district Jude or single magistrate/chairperson?
sir/madam
What to call crown court judge?
your honour
What to call opposing advocate solicitor/barrister?
Solicitor-my friend
Barrister-my learned friend
Type of questions asked in examination in chief
CANNOT ask leading questions
Open questions only
Type of questions asked in cross examination
closed/leading questions to keep better control of what witness will say (y/n questions)
What are the 3 purposes of cross examination?
- Undermine credibility of evidence
- Obtain evidence favourable to clients case
- Put your case to the witness.
Type of questions asked in re-examination
ONLY open non leading questions
What is a leading and non leading question?
Leading =questions suggestive of answer
Open Questions=non leading-witness can say account in their own words:
Who…?
What…?
When…?
Where…?
How…?
What is the general rule on competence?
‘At every stage in criminal proceedings all persons are (whatever age) competent to give evidence.’
All competent persons also compellable via witness summons
Effect of ignoring witness summons or attending but refusing to answer questions
contempt of court (imprisonment)
What are the exceptions to the rule on competence
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.
Who does the exeption to the rule on competence usually apply to?
-Children (but age not determinative)
-Defective intellect (may give unsworn evidence)
Is the accused a competent and compellable witness?
For crown-not competent
For co-accused and self-competent but not compellable
Is a co accused a competent witness?
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)
Is the (non accused) spouse of the accused a competent and compellable witness for the crown?
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.
Is the (non accused) spouse of the accused a competent and compellable witness for the accused
Competent and Compellable
Is the (non accused) spouse of the accused a competent and compellable witness for a co accused?
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.
Where spoused are co accused, are they compellable for eachother?
never
Are divorced spouses compellable
yes, treated as if never married
What is the purpose of special measures?
=assist witnesses (other than D) who might otherwise have difficulty giving evidence
Who can apply for special measures?
□ Mental/physical disorder or disability/impairment likely to affect evidence
□ evidence is likely to be affected by their fear or distress
□ complainants in sexual offences
□ witnesses in specified gun and knife crimes
Who automatically qualifies for special measures?
Sex victims
When can the judge let a fearful witness use a witness statement instead?
When considered special measures first
What should the judge warn the jury when special measures are used?
that special measures shouldn’t prejudice evidence
Is the D entitled to special measures?
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.
What is a solicitor representing their client at the MC under a duty to say on behalf of their client?
what that client would properly say, were they to have the necessary skills and knowledge to do this.
If a client admits guilt, what does the solicitor still have to do?
Put prosecution case to proof if sol considers it weak
BUT dont say anything you know to be untrue (Principle 1: RoL)
