Criminal Practice (Pre-trial Hearings and Confessions)

Question 1

What steps do we need to take before the PTPH?

Answer 1

• Ensure access to Crown Court Digital Case System
• Confirm initial instructions from your client
• Draft a Proof of Evidence
• Speak to any potential witnesses
• Draft a brief to counsel
• Complete the PTPH form.

Question 2

For summary only cases, what can be resolved at the first hearing?

Answer 2

Many if not all pre-trial matters can be resolved at the first hearing. In more complex cases, further pre-trial hearings may be required.

Question 3

What are the directions at the first hearing?

Answer 3

Direction for service of documents between parties, resolve any matters of law, or set out a timetable to resolve matters of law, and set trial date.

Question 4

What is a Pre-Trial Hearing (PTH)?

Answer 4

• For example, PTH for deciding admissibility of evidence.
• Whatever is held is binding on the magistrate court unless a party applies for the ruling to be discharged or varied

Question 5

What must happen when sending the case to trial at the Crown Court?

Answer 5

• Must set a date for a Plea and Trial Preparation Hearing (PTPH) within 28 days.
• Evidence must be served within 50 days if the defendant is in custody, or 70 days if on bail.
• The draft indictment must be served by the prosecutor on not more than 20 business days after serving evidence.

Question 6

What happens if the defence wants to make an application to dismiss charges?

Answer 6

They must do so before a plea is taken. At the plea stage, the defendant enters a plea to each count on indictment. If they plead not guilty, the court proceeds to trial preparation.

Question 7

What occurs if the defendant pleads not guilty to all counts?

Answer 7

It proceeds to trial. If the judge determines the defendant is unfit to plead, no plea is taken, and a trial will be held. If found guilty, they can only receive an absolute discharge, supervision order, or hospital order.

Question 8

What issues must be dealt with at the Trial Preparation Stage?

Answer 8

• Trial Date
• Prosecution evidence confirmation
• Expert Evidence arrangements
• Witness Requirements, Special Measures
• Bad Character Evidence
• Witness Summons
• Agreed and Disputed Facts
• Defence Statement
• Disclosure
• Defendant’s Interview timetable
• Hearsay, and Admissibility applications.

Question 9

What is used material in disclosure?

Answer 9

Material that the prosecution will rely upon in trial, often including statements from witnesses, recordings of interviews, and other documents.

Question 10

What is unused material?

Answer 10

**Material that is not being relied upon, which can include items such as records of previous convictions or disciplinary findings against police officers.

Question 11

What is full and proper disclosure?

Answer 11

Fairness demands that material in the hands of the prosecution that might help a defendant is served on them. Both used and unused material must be disclosed.

Question 12

What are the four stages of disclosure?

Answer 12

(1) The investigation stage, (2) Duty of disclosure on the prosecution, (3) Defence disclosure, (4) Continuing duty on the prosecution to keep disclosure under review.

Question 13

What is the duty to retain and record relevant material?

Answer 13

The officer in charge of the investigation must ensure that all relevant material is recorded and retained, including crime reports, witness statements, and expert reports.

Question 14

What must disclosure officers certify?

Answer 14

That they have complied with their duties, ensuring all relevant unused material is clearly listed and brought to the attention of the prosecution for proper disclosure.

Question 15

What is the initial duty of disclosure on the prosecution per CPIA 1996, s.3?

Answer 15

The prosecutor must disclose any prosecution material which has not been previously disclosed and might reasonably be considered** capable of undermining the case for the prosecution or assisting the case for the accused.**

Question 16

What are the time limits for initial disclosure?

Answer 16

The prosecution will serve initial details no later than the beginning of the day of the first hearing.

Disclosure of unused material should occur as soon as reasonably practicable once the duty arises:

• Magistrate Court: this is when D pleads not guilty and case is adjourned for summary trial
• Crown Court: this is when D is sent for trial

Question 17

What is the duty for a defence statement under s.5 CPIA?

Answer 17

The defendant must serve a defence statement on the Crown Court and prosecution, setting out the nature of the defence, facts they dispute, and points of law they intend to rely on.

Question 18

What are the time limits for serving a defence statement?

Answer 18

10 business days (magistrates court) and 28 days (crown court) of prosecution compliance with initial disclosure.

Question 19

What must the defendant disclose regarding defence witnesses?

Answer 19

They must notify the court and prosecution if they intend to call any witnesses, identifying the witness by name, address, DOB, and other relevant information.

Question 20

When must the defendant disclose intention to call witnesses?

Answer 20

**10 business days **(magistrates court) and 28 days (crown court) of prosecution compliance with initial disclosure.

Question 21

What are the consequences of failure to disclose in Crown Court?

Answer 21

Failure to serve a defence statement may lead to adverse inference by the jury, and the prosecution or co-defendant may comment on such failure.

Question 22

What happens in Magistrates Court if a defence statement is not served?

Answer 22

No adverse inference can be drawn, but if a statement is served, an adverse inference could be drawn if it fails to meet requirements.

Question 23

What is the duty on prosecutors regarding continuing disclosure?

Answer 23

Prosecutors must keep disclosure under** continous review **throughout the case, even if material is discovered at a late stage of proceedings.

Question 24

How can the defence apply for specific disclosure?

Answer 24

The defence can apply to the court if they believe there is prosecution material that should have been disclosed but hasn’t. They must serve a defence statement first.

Question 25

What are the consequences if prosecution fails in its duty to disclose?

Answer 25

The defendant could apply to stay the indictment, leading to potential quashing of a conviction on appeal, delay and wasted costs, or exclusion of evidence.

Question 26

What is the duty regarding third-party disclosure?

Answer 26

Relevant material may be held by third parties like local authorities or health providers. Prosecutors should take steps to obtain this material, possibly seeking a summons.

Question 27

What is Public Interest Immunity (PII)?

Answer 27

Circumstances where the prosecution seeks non-disclosure of material due to risk of serious prejudice to public interest. This is rare and requires a judge’s approval.

Question 28

What are the basic principles regarding facts in issue?

Answer 28

Facts that any party needs to prove to establish its case; for prosecution, this involves proving the offence charged.

Question 29

What are the ways evidence can be established?

Answer 29

• Through witness testimony
• Agreeing a witness statement is true
• Agreeing on facts between parties
• Jjudge taking judicial notice of a fact.

Question 30

What are the types of evidence?

Answer 30

Oral evidence, written statements, real evidence (objects), direct evidence (witness experience), circumstantial evidence (inferred facts), and jury views.

Question 31

What must evidence be to be admissible?

Answer 31

• Evidence must be relevant
• Not subject to an exclusionary rule,
• Given the correct weight by the jury.

Question 32

What are the three questions regarding the exclusion of evidence?

Answer 32

(1) Relevance - Is it relevant? Evidence must be relevant.

(2) Exclusionary Discretion - Is it unfair per s/78/76 to include?

(3) Inclusionary Rule - If the evidence is of an excluded type, is there an inclusionary rule (e.g. bad character s.101 CJA?)

Question 33

What is an Application for Dismissal?

Answer 33

A pre-trial application to a Crown Court Judge to dismiss charges against the defendant.

Question 34

When can an Application for Dismissal be made?

Answer 34

After the defendant is sent for trial, served with evidence, and** before arraignment.**

Question 35

What is the test for an Application for Dismissal?

Answer 35

The judge dismisses a charge if the evidence against the applicant is insufficient for proper conviction.

Question 36

What is a Submission of No Case to Answer?

Answer 36

During a trial, after the prosecution presents evidence, the defence can submit there is no case to answer, applying the Galbraith test.

Question 37

What is an Abuse of Process Application?

Answer 37

An application to stay proceedings where unfairness or impropriety would undermine the court’s sense of justice and public confidence.

Question 38

What does PACE s.82(3) preserve?

Answer 38

The common law discretion to exclude evidence where its prejudicial effect outweighs its probative value, applicable only to prosecution evidence.

Question 39

What is the effect of s.78 PACE?

Answer 39

The court may refuse to allow evidence on which the prosecution proposes to rely to be given.

Question 40

What is the key test for deciding whether to exclude prosecution evidence under s.78?

Answer 40

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 41

When can a s.78 application be made?

Answer 41

• Before the trial
• At the commencement of trial, or
• Prior to prosecution seeking to admit the evidence in question
• It cannot be made once the evidence is adduced.

Question 42

How to make a s.78 application?

Answer 42

• It should be made in the Defence Statement if clear from initial disclosure.
• Directions will be given at the PTPH for when the s.78 will be heard.
• A voir dire will be necessary if there is a dispute on the facts

Question 43

What is considered a confession under s.82(1) PACE?

Answer 43

• An unequivocal confession of guilt
• Mixed statements
• A nod, sign, or gesture

Wholly exculpatory statements (e.g. ‘I did nothing’) are not considered confessions.

Question 44

What are the two ways under s.76 to challenge the admissibility of a confession?

Answer 44

Oppression and unreliability.

Even without a challenge, the court can require prosecution to prove the confession was not obtained by oppression or unreliability.

Question 45

What is oppression in the context of confessions?

Answer 45

• Pressure by police or other officers that makes the confession unreliable
• Includes coercive tactics, threats, or denial of basic rights.

Question 46

What is unreliability in the context of confessions?

Answer 46

• The confession was or may have been obtained in consequence of anything said or done
• Which was** likely, at the time, to render unreliable any confession** which might be made by him in consequence thereof

This includes….
* Promise (e.g. a promise to release someone if they confess)
* Inducement (e.g. a threat to arrest a partner if they do not confess)
* Trick
* Omission
* Failure to Act (e.g. interviewing a young person without appropriate adult)

Question 47

Does the s.76 confession rule require proof that unreliability was caused?

Answer 47

The question is whether the act was likely to render unreliable the confession? The test isn’t whether the actual confession was untruthful or inaccurate, but whether what was done is likely to render a confession.

The following have been ‘likley’ to render unreliable:
* Deprivation of sleep
* Failure to Caution
* Denial of legal advice

The prosecution have to prove beyond reasonable doubt that the ‘thing’ did not result in the confession to rely upon it.

Question 48

What happens to connected evidence if a confession is unreliable/given by oppression?

Answer 48

There is no rule excluding ‘fruit of poisoned tree.’ Forr example, if a body was found by an excluded confession, the boyd is still admissible

Question 49

What does the judge determine in relation to confessions?

Answer 49

Whether a confession is made freely, voluntarily, and in the absence of coercion or pressure; if not, the confession may be excluded.

Question 50

Can a confession be relied upon in the trial of other people?

For example, D confesses that D and X committed the crime, but not Z?

Answer 50

No. A confession is only evidence against the maker

Question 51

The draft PTPH Form should be circulated by when?

Answer 51

No less than seven days before the PTPH.

Question 53

If a confession is had by oppression, what effect does this have on the court?

Answer 53

If an act that may constitute oppression caused the confession, then the court must exclude the confession from the evidence.

It is not a discretionary power - nor is there a question of probability (e.g. balance of probabilities etc…)