Criminal slides part 2 Flashcards
1
Q
Whats the rule against duplicity on indictment ?
A
Single count alleging multiple offences is bad for duplicity. They should be listed separately for an example D attacked two people on the same night causing each of them actual bodily harm (ABH), it would be appropriate to draft a single indictment containing two counts, one relating to each victim, because each is a separate offence.
2
Q
Rule on Indictment Continuing offence.
Give an example of a continuing offence.
A
Where the offence is a continuous one it can be appropriate to include more than one offence in a single count. These are known as ‘rolled up’ or ‘multiple incident’ or ‘multiple offending’ counts.
Example- if the allegation is that D has been stealing money from the till over a distinct period of time, and the D simply denies taking any money at all, it could be appropriate to have one count of theft on the indictment relating to the period of time involved.
3
Q
Can more than one incident of an offence be included in one count?
A
More than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.’
4
Q
What is remand into custody?
A
Prosecution apply for it by presenting objections to bail due to the presumption in favour of bail.
Objections vary depending on offence involved, broader objections for more serious offences.
If D is refused bail and kept in custody for a more trivial offence, then the worry is they’ll be kept in custody for longer waiting for trial – undesirable as its basically serving a sentence that they might not even be given.
5
Q
What is Bail?
A
When prosecution object to bail, it is for the defence to apply for bail. First decision in regard to bail is made in the mags court (except murder when its only CC judge that can). D and prosecution can appeal decisions on bail from Mags.
6
Q
What is conditional bail?
A
Can be granted subject to conditions, Defence advocates should consider what conditions might be appropriate to suggest to the court
7
Q
What is the right to bail?
A
courts must presume that D is entitled to bail, and it is only if an objection is properly made out that bail can be refused.
The purpose of right to bail is to secure the notion that the prosecution must apply to remove bail.
8
Q
Who does the right of bail not apply to?
A
a) those appealing their conviction or sentence
b) Or being committed for sentence from mags to crown court.
Bail can be granted, its just that the presumption doesn’t apply.
9
Q
When is there no right to bail?
A
In the case of murder, there is no RIGHT to bail. However, you can still get bail. The defendant would have to ask for bail instead of the prosecution asking to remove it.
10
Q
When is the right to bail absolute?
A
If a case runs over the time limits.
11
Q
How many grounds does the prosecution have to object to bail on?
A
They can object on as many as they wish, but only one needs to succeed for bail to be denied.
12
Q
If a ground for objecting to bail is satisfied, are there any alternatives?
A
Yes, if the court thinks that the ground can be helped by adding a condition, then D would be granted bail.
13
Q
What are the grounds for bail for indictable cases?
A
a) Fail to attend a subsequent hearing or surrender to custody.
b) Commit further offences on bail; and/or
c) Intefere with witnesses, or otherwise obstruct the course of justice (witness intimidation/destruction of evidence).
PLUS:
No real prospects – recent addition to the law (final filter). Bail should not be removed if D is charged with an offence where there are no real prospects of D receiving a custodial sentence.
14
Q
What are the grounds for bail for summary (imprisonable offences)?
A
only available if D has been given bail but breaches a condition of the bail. OR has a conviction for failure to surrender in their past.
GROUNDS ACTIVATED BY A TRIGGER EVENT FOR SUMMARY OFFENCES (e.g. arrested for breach of bail is trigger event).
15
Q
What are the grounds for bail for summary (non imprisonable offences)?
A
There are none!
16
Q
Other than the 3 main grounds for refusing bail, what are three other important grounds?
A
a) A remand in custody would be for D’s own protection
b) The court has insufficient information to deal with issue of bail, so remands in custody for a short period until they have sufficient evidence to make that decision and/or
c) D is already serving a sentence in custody
17
Q
What are the factors in bail applications?
A
a) Nature and seriousness of the offence and likely disposal (I.e. sentence) for example, if serious offence, D is more likely to get a worse sentence so more likely to abscond.
b) Character of D – D anticedents (community ties/prev cons/ drug addiction/friends with criminal records/ease for D to abscond/ how much they have to lose).
c) D’s bail record in the past (has tendency to breach bail or commit offence on bail).
d) Strength of evidence – If D knows there’s a good chance of being acquitted, less likely to abscond.
18
Q
What bail conditions are available to the court?
A
a) Residence at given address (live and sleep there) - to reduce risk of D absconding.
b) Curfew - prevent offences being committed on bail.
c) reporting to a local police station at given time – reduces risk of absconding.
d) Surety – offer of money made by someone to secure D’s return to court. D cannot stand as a surety for their own case. If D fails to surrender, their friend has to pay.
e) Security – D or someone else puts up money if D does not attend court. Difference is surety can only be given by 3rd party, but D can give security.
f) Restrictions on where a defendant may go on bail
g) Restrictions on who the D might have contact with
h) electric monitoring (tag).
I) Bail Hostels
J) Surrender of passport
19
Q
What happens if bail conditions are breached?
A
May result in accused being arrested under S7(3) Bail act.
Risk of conditions being tightened or being remanded in custody.
Breaching bail isn’t an offence.
S7 provides power of arrest, allowing police to arrest those that are in breach.
D who is arrested must be brought to a mags court and they will rethink bail.
20
Q
Rule on Indictment Continuing offence.
A
Where the offence is a continuous one it can be appropriate to include more than one offence in a single count. These are known as ‘rolled up’ or ‘multiple incident’ or ‘multiple offending’ counts.
21
Q
Whats the procedure for bail?
A
If D has been refused bail police, they will see mags as soon as they are available.
On D’s arrival at the court, the defence advocate will first check with the prosecutor to see if they intend to object to bail.
If there is no objections, it will be stated to court.
However, if prosecution objects, they will outline objections to the court.
If there are any previous convictions, these are handed to the court.
The defence then presents its arguments for bail to be granted.
After hearing both sides submissions, the court will announce it’s decisions.
The court has to give reasons if its refused OR the conditions. The court will also fill out a form for the decison.
22
Q
What is the only breach of bail that is a criminal offence?
A
Not surrendering to custody.
This is punishable summarily by up to 3 months imprisonment and/or unlimited fine OR indictable at 12 months and/or unlimited fine.
23
Q
What is rolling up into a count?
A
Criminal Practice Direction (CrimPD) II, para 10A.11 provides guidance that you can ‘roll up’ a number of incidents into a single count where:
- The offences are the same;
- The victim on each occasion was the same (if there is one);
- Each offence was carried out in the same or a similar way, or each offence took place at the same location, or both;
- The incidents took place over a defined period of time (typically about a year);
- The defence to each incident is the same.
24
Q
How many attempts do you get for bail?
A
If trial is in mags – you have two attempts to get bail AND one attempt of appeal to the CC.
In mags court, if refused, they can attempt again at next hearing and after that, D can appeal to CC or have fresh points (e.g. Surety).
In CC, thy have one attempt at first hearing in mags and further application as a right in the CC.
25
Whats the timeline for applying for bail?
D attends court, case listed and applies for bail.
If D is unsuccessful, where the case will return a week later, bail can be raised then.
They can make the same application again.
Once D has had both applications, D must secure a certificate of full argument from Mags before appealing if they wish to do so. This certificate is a short summary to make CC aware of what transpired in the court below. Appeals are heard 1 business day after and appeal notice is served.
D can only apply again if there is a change in circumstances.
26
What happens if you need a decision on bail quickly?
Defence may wish to exercise appeal right more quickly, so instead of doing second attempt in mags, they can appeal to cc But then they lose their second application in the mags court.
27
What does the prosecution need to do to appeal against a grant of bail?
Very unlikely that prosecution would appeal against a grant of bail. But in order to do so, there are the following conditions:
a) Prosecution must have opposed bail originally
b) Offence must be punishable by imprisonment
c) When bail was granted, the prosecution said they would appeal it
d) Intention to appeal confirmed in writing an served on court and defence within 2 hours
e) Appeal is heard within 48 hours (excl. Weekends)
f) appeal is heard by crown court judge
28
Whats the custody time limit for mags court?
56 days
29
Whats the custody time limit for crown court?
182 days (less any days spent in custody prior to being sent to the cc)
30
What is the custody time limit expiry?
When the trial starts:
Mags: When prosecution start giving evidence
CC: When jury is sworn.
31
What happens if the custody time limit expires?
If limits expire, D will be released unless prosecution applies to extend time limits but will have to show they have acted with all due diligence and expedition and that there is a good and sufficient cause for remanding them in custody.
32
What is first and onward remand?
For a trial in mags court, there are rules about how long a person can be remanded in custody. If D is in custody at their first hearing and their trial will be in mags, their first remand must be for no more than 8 clear days. They have to be brought back to court within 8 days so another bail application can be made, though D may choose not to make one.
To avoid wasting court time, second appearance can be made via video link. After second appearance, D must be brought back every 28 days or fewer so the court can remand them onwards to their trial.
33
When must a first hearing be held?
- 14 days of being charged: Where the accused is on bail, if the prosecutor anticipates a guilty plea which is likely to be sentenced in the mags court.
- 28 days of being charged: where it is anticipated that the accused will plead not guilty, or the case is likely to go to the CC for either trial or sentence.
34
Where is a first hearing held?
No matter what court the trial will take place in, the first hearing must be in the mags court.
35
What happens at the first hearing?
What happens depends on the type of offence (Summary/indictable/either way).
However, for all offences, the accused will be asked if they wish to obtain legal aid. If so, the matter will be adjourned to facilitate this.
36
Can a court clerk grant bail at a first hearing?
A mag can make a decision on bail or custody at an early administrative hearing. However, the justice's clerk can only grant bail on the terms of existing police bail unless the prosecution and defence agree to a change in conditions of bail. A clerk cannot remand the accused in custody.
37
Does the accused have to be present at the first hearing?
The accused must be present at the first hearing. If they fail to attend, the court can issue a warrant.
Presence via video link is sufficient.
38
What are the exceptions to the accused being present at their first hearing?
- Plea before venue: operates where accused is legally represented, and the court considers due to the disorderly conduct of the accused it is not practicable for the proceedings to be conducted in their presence. In those circumstances, the representative can indicate the plea.
- The determination of mode of trial: where the accused is legal represented, the representative indicates to the court that the accused consents to the mode of trial proceedings being conducted in their absence and the court is satisfied that there is a good reason for the accused not being present. It's not defined but a good example is ill health. In these circumstances, the representative can consent to summary trial or elect cc trial.
39
What are initial details?
Initial details are the details of the case against them. The prosecution are obliged to serve them.
If the accused was in police custody immediately before the first hearing, the initial details only need to be:
• a summary of the circumstances of the offence; and
• the accused's criminal record.
Otherwise, initial details must include:
• a summary of the circumstances of the offence;
• any account given by the accused in interview;
• any written statements and exhibits that are available and material to plea and/or mode of trial or sentence;
• victim impact statements; and
• the accused's criminal record.
40
What is a specimen count?
These are counts designed to show just one example of a defendant's repeated conduct and have been used to avoid 'overloading' an indictment. These are used when multiple offending count is not appropriate, specimen counts can be used to reflect, for example, a repeated systematic course of conduct over many years.
41
Issues with specimen counts?
Issues arise particularly when the defence dispute the other occasions on which similar offences are alleged (this will restrict the basis on which a defendant can be sentenced, for example.) Furthermore indictment needs to be clear as the defendant has a right to know what the precisely what the case is.
42
What is the issues of an overloaded indictment?
overloaded' indictment is one that is unduly long, complex or difficult for a jury to follow. Even where the rules permit the inclusion of multiple counts, multiple defendants, multiple incident counts on a single indictment, prosecutors should not add so many counts as it would be unmanageable and difficult for a jury to follow.
43
How to stop overloading an indictment use the example of sexual offence occurring overtime?
Case against D is that he sexually abused a single complainant over a period of 10 years and the abuse took place at least once a month, this would amount to 120 individual counts on the indictment, which would mean the indictment would be overloaded. More appropriate to list 10 multiple incident accounts to reflect one each year so long as using multiple incident counts met the guidance in CrimPD II para 10A.11.
44
if two unrelated offences were listed on the same indictment what would the courts do?
Crim PR r.3.29 by amending or splitting the indictment on the application of a party.if there were two wholly unrelated counts on the original indictment (such as a theft and an ABH, both offences having no connection with one another) the indictment would not be valid. The judge could therefore order separate trials. Creating two valid indictments.
45
Each indictment = what?
One trial per indictment.
46
What is an application for severance?
the defence are still entitled in appropriate circumstances to apply to the judge to remove a count or counts from the indictment or to ask for separate trials for each defendant.
47
How detailed should the initial details be?
Information supplied must be sufficient for accused to make an informed decision about plea and venue. Where no guilty plea is anticipated, the information should be sufficient to assist the court in identifying real issues and giving direction. The information required on PET (preparation for effective trial form) must be available where there is to be a trial.
48
Whats rule permits amendments of an indictment?
Section 5 of the indictment act-
-when the indictment appears defective to the court.
-unless if giving regard to the merits of the case the amendment cannot be made without injustice.
The courts will also consider when the amendment would be prejudice to D then would be refused.
49
Does failure to supply initial details count as a ground to dismiss a case?
No, this is not sufficient for an abuse of process application. The usual remedy would be for the court to adjourn a first hearing and award costs to the defence for the prosecutions failure.
50
When is severance appropriate?
Lord Pearson- 'judge has no duty to direct a separate trial unless it has some special feature where it would be prejudicial or embarrassing. If separate trials required for the interest of justice.'
Important to note there is a presumption in favour of a joint trial unless the risk of prejudice is particularly great.
51
What happens in a first hearing for summary/either way trials?
Defendant will be asked to enter or indicate their plea to a charge.
If the defendant pleads not guilty then the court will set a trial date and do any necessary case management to ensure that the trial is effective on that date. In most cases the CPS will be aware when a not guilty plea is likely and the file that comes to court will have a partially completed case progression form included amongst the prosecution papers.
52
If D is silent or ambiguous with his plea what does this mean?
NOT GUILTY PLEA
53
What happens if D pleads guilty?
If D pleads guilty to some but not all and the prosecution are not willing to accept those pleas, sentencing for counts that D has pleaded guilty to will take place after the trail for the not guilty count.
54
Who complies with directions for the prosecution and defence?
Each party will nominated a person who is responsible for tis.
55
What is a pre-trial hearing for summary only offences?
Covers admissibility of evidence and fitness to plead. A pre-trial ruling is binding until the case is disposed by:
-Conviction or acquittal of the accused
-A prosecution decision not to proceed OR
-The dismissal of the case.
The court can discharge of vary the pre-trial ruling if it's in the interests of justice. A party can apply for the ruling to be varied, only if there has been a material change of circumstances.
56
Whats rule permits amendments of an indictment?
Section 5 of the indictment act-
- when the indictment appears defective to the court.
- unless if giving regard to the merits of the case the amendment cannot be made without injustice.
57
An example of where the prosecution may need to amend the indictment ?
Where the wording of the count is incorrect i.e. essential element of the offence has not been particularised.
58
What are the 2 rules on indictment?
Rule 10 CrimPR- must be in writing:
a) statement of offence in ordinary language and any legislation.
b) particulars of conduct
more than one need to be number and state a date on which it occurred.
59
What if D is unfit to plead?
no plea taken but if mental disability improves before the prosecution evidence will be arraigned in the same way.
60
What happens at a pre-trial hearing for an either way offence?
D is supplied with copy of initial details by prosecutor and the court begins by asking the D to indicate a plea. The charge is written down and read out to the accused. D must be warned that if they plead guilty, they can be committed to the cc for sentence if mags have insufficient sentencing power. If guilty plea is indicated, proceedings will be treated as summary trial. If D indicates a not guilty plea or no indication, courts will consider where the case will be tried.
61
What happens in either way offences after the accused has pleaded guilty?
Court will proceed to sentence
Newton hearing
Can be sentenced in mags or CC.
If being sent to CC for sentence, mags should order a PSR to help the CC sentence.
Even if mags adjourn to get PSR, they could still send them to the CC, so dont let D get their hopes up.
62
If the prosecution want to bring a voluntary bill of indictment on what grounds?
need good grounds and must be in the interest of justice. E.g further significant evidence being found or crucial authority not brought to the judges attention.
63
What is a joinder?
more than one offence and more than one defendant can be included on a single indictment.
64
What is the totality principle?
If accused is charged with more than one offence, the court should consider the totality principle = total of offences. If max sentence (12 months for two or more either way offences) is not sufficient, it needs to be sent to crown court. Court also needs to take into account submissions of the parties.
65
If D is tried summarily for an either way offence, where is their sentencing?
It could be in either mags or cc.
66
What is the meaning of a series of offences of the same or similar character?
- 2 offences= series
- to determine if offences similar in character look at legal and factual characteristics
- need nexus between them a feature of similarity where the case enables the offence to be described as a series.
67
Why would a defendant choose a trial on indictment?
* the acquittal rate is higher in the Crown Court; and
* the separate tribunals of law and fact in the Crown Court can be advantageous to the defendant. Voir dire procedures allow the judge to hear arguments to exclude evidence in the absence of the jury.
68
Why would a defendant choose a summary trial?
* are less formal and the waiting time before the trial date is much shorter and the trial itself is much quicker.
* do not require a defendant to serve a defence statement.
* provide reasons for a conviction. Magistrates have to provide reasons whereas juries do not give reasons.
* have less sentencing powers than those of the Crown Court. Although a defendant should be advised that it is not always the case that a Crown Court judge will sentence more harshly than a magistrates' court. Also, a magistrates’ court has a power to commit for sentence even after trial.
* are less expensive than the Crown Court. Trials are cheaper.
69
What court would multiple defendants jointly charged with a summary only offence go to?
Those who plead guilty will usually have their sentence adjourned until after the trial of those who have pleaded not guilty.
70
What happens if D pleads guilty?
If D pleads guilty to some but not all and the prosecution are not willing to accept those pleas
71
What court does multiple defendants jointly charged with an either way offence go to?
Where multiple defendants are jointly charged with an either-way offence the court will explain that if any of them is sent to the Crown Court for trial, any defendant jointly charged with the same offence and/or any related offence must also be sent to the Crown Court.
It will then ask them individually to enter their plea.
If there is a mixture of pleas, those who plead guilty will usually be sentenced after the trial of anyone who pleads not guilty.
If a person appears at a first hearing either jointly charged with a person whose case has already been sent to the Crown Court, or charged with an offence related to one for which another person has been sent for trial, a magistrate’s court may send that person for trial as well.
If any defendant pleads not guilty the court will go on to consider where their trial should be held. The provisions of s.51(5) Crime and Disorder Act (CDA) 1998 are such that if any one defendant is sent for trial to the Crown Court either by a magistrates' court allocating their case to the Crown Court or by them electing a crown court trial, a magistrates' court can then use that provision to reallocate any other defendant to the Crown Court (despite any decision that has already been made) or use it to allocate the case of any defendant yet to enter their indication of plea. To avoid having to revisit allocation decisions a magistrates’ court is entitled to ask questions about the intentions of the co-accused. If any one of them says that they will indicate a not guilty plea and elect Crown Court trial, they will be dealt with first.
72
Give examples where D may plead guilty to a lesser offence?
Murder- D might offer to plead guilty to manslaughter
GBH with intent- just GBH.
73
What are the two things the prosecution can do if they accept D's guilty plea to a lesser offence?
a)apply to amend indictment and add new count D wishes to plead guilty to.
OR
b) If D wants to plead guilty to a direct alternative can simply plead guilty to the alternative.
74
If the prosecution has agreed to not pursue more serious count how can they bring it to an end?
-offering no evidence (judge will conclude not guilty verdict as if trial took place and acquitted D). Appropriate when satisfied that there is no or insufficient evidence to prove a count on the indictment
-asking the judge to lie the count on the file.will lie on the file marked 'not to be proceeded with without the leave of the court or the Court of Appeal.'
Used where the prosecution does have evidence to prove the offence but have chosen for other reasons not to pursue it
75
When does offering no evidence or lie it on file take place and why?
Only after sentencing to prevent D taking adj of the situation.
76
What are the 2 rules on indictment?
Rule 10 CrimPR- must be in writing:
a) statement of offence in ordinary language and any legislation.
b) particulars of conduct
77
What court do multiple defendants jointly charged with an indictable only offence go to?
The defendants will all be sent to the Crown Court by way of s.51 CDA 1998.
78
What court does one defendant charged with a summary only and an either way offence go to?
The court begins by determining the mode of trial for the either-way offence.
If it is to stay in a magistrates' court then all of the matters will be tried together in that court.
If the either-way matter is to be sent to the Crown Court then the court will proceed in the same way as where a defendant is charged with a summary only and an indictable only offence
79
What is a prosecution notice?
In cases of serious complex fraud and in cases where the allegation is of harm or threat of harm to a person and a child will be called as a witness, the prosecution can serve a notice on a magistrates’ court to the effect that the case should be taken over by the Crown Court.
The effect of the notice is that a magistrates’ court must send the case to the Crown Court without conducting an allocation hearing.
80
What happens to Maximum sentences for s.40 CJA 1988 ‘summary only’ matters tried on indictment?
Where a count for a summary offence is included on an indictment by virtue of s.40(1) CJA 1988, it is tried exactly as if it were an indictable offence; but, if the accused is convicted, the maximum penalty that may be imposed is that which could have been imposed for the offence by a magistrates' court.
81
When can a mags court commit an offender for sentencing in the crown court?
where they have been found guilty of an either-way offence in a magistrates' court. This will usually happen when there has been a guilty plea at the first hearing in a magistrates' court, though it can happen when the magistrates have accepted jurisdiction and proceeded to a summary trial in the belief that their sentencing powers are sufficient but have taken a different view of the seriousness of the offending on hearing the evidence at trial.
A magistrates' court can also commit for sentence to the Crown Court where the accused has pleaded guilty to an either-way offence but is to be sent for trial for one or more related offences in the Crown Court.
82
If a matter is committed for sentence to the CC, when can the cc exceed the mags sentencing powers?
a) the magistrates stated that they considered their sentencing powers were inadequate to deal with the offender for that offence; or
b) the offender is convicted by the Crown Court of one or more of the related offences sent for trial.
83
whats the time limit for serving an indictment on the crown court?
Crown Court within 20 business days on which
a) copies of doc are served where person is sent to trial.
b) high court judge has given permission to serve a voluntary bill of indictment.
CC has the power to extend time limit even when expired.
84
when should a draft indictment be served by?
at least seven days prior to PTPH.
85
What is a voluntary bill of indictment?
applying to a High Court Judge for leave to direct the preferment of a voluntary bill of indictment. This procedure can be used where the defence have made a successful application to dismiss an indictment in the Crown Court and the prosecution wish to seek a trial.
86
If the prosecution want to bring a voluntary bill of indictment on what grounds?
need good grounds and must be in the interest of justice. E.g further significant evidence being found or cruicial authority not brought to the judges attention.
87
What is the duty of an officer in charge of the investigation?
Responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material.
88
What is the duty of an investigator?
They are any police officer conducting an investigation.
must follow all reasonable lines of enquiry, whether these point towards or away from the suspect and the investigator must be 'fair and objective’.
89
What is the duty of a disclosure officer?
Responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutors request.
must inspect, view, listen to or search all relevant material that has been retained by the investigator and must provide a personal declaration that this has been done. Where there is doubt as to whether any material is disclosable, the disclosure officer must seek the advice and assistance of the prosecutor.
90
How long should material from an investigation be held for?
At least until a decision is taken whether to institute proceedings against a suspect.
If D is convicted, then it should be until they are released from custody.
No Custodial sentence? = 6 months.
Appeal against conviction?= until appeal concluded.
91
What is the prosecutors initial duty of disclosure?
The prosecutor must:
(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, or
(b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).’
92
What must a prosecutor disclose?
(a) which is in the prosecutor's possession, and came into his possession in connection with the case for the prosecution against the accused, or
(b) which, in pursuance of [the Disclosure Code of Practice], he has inspected in connection with the case for the prosecution against the accused.’
prosecutors should consider, amongst other things:
(a) the use that might be made of the material in cross-examination;
(b) its capacity to support submissions that could lead to:
(i) the exclusion of evidence;
(ii) a stay of proceedings as an abuse of process, where the material is required to allow a proper application to be made;
(iii) a court or tribunal finding that any public authority had acted incompatibly with the accused's rights under the ECHR.
(c) its capacity to suggest an explanation or partial explanation of the accused's actions;
(d) the capacity of the material to have a bearing on scientific or medical evidence in the case (including relating to the defendant's mental or physical health, intellectual capacity, or to any ill treatment which the accused may have suffered in custody).
93
Does Material which supports the prosecution case but they choose not to rely on it or is neutral need to be disclosed?
No.
94
How should a prosecutor manage their disclosure in long and complex cases?
In R [2016] 1 WLR 1872 the Court of Appeal addressed those problems facing the prosecution in long and complex cases where large volumes of material are seized, including electronic data, during the course of the investigation:
The prosecution are in the driving seat at the initial disclosure stage - the prosecution must adopt a considered and appropriately resourced approach to giving initial disclosure and must explain what it was doing and what it would not be doing at this stage, ideally in the form of a "Disclosure Management Document";
The prosecution must encourage dialogue with the defence and engage promptly with them – the defence had then to engage with the prosecution and assist the court in fulfilling its duty of furthering the overriding objective;
The law is prescriptive of the result, not the method of disclosure – at the initial disclosure stage the prosecution should formulate a disclosure strategy, then canvass that strategy with both the court and the defence and should use technology to make an appropriate search or conduct an appropriate sampling exercise of the material seized;
The disclosure process should be subject to robust case management by the judge – the court was entitled and obliged to give orders and directions to address disclosure failings with which it was confronted;
Flexibility is critical – disclosure was not a "box-ticking" exercise and the constant aim was to make progress.
95
What is the defence statement?
the defence statement is all about setting out with reasonable clarity what the defence case is.
96
When must a defence statement be served?
Crown court – Defence statement is compulsory and must be served on crown court and prosecution with 28 days of the date which the prosecution complies with its duty of initial disclosure. Can be extended but only within the time limit and only if the court is satisfied that it uld be unreasonable to require D to give the statement within 28 days.
Mags court – Defence statement not compulsory but if D decides to do so, must do so withing 14 days of the prosecution complying with intiial disclosure. Even though its not compulsory, if thy don’t do it, thy will be unable to make an application for specific disclosure.
97
What does a defence statement need to contain?
A defence statement cant just be a defendant stating its innocence. Needs to comply with th CPIA rules and needs to provide a clear and detailed exposition of the facts and law.
The defence statement sets out, in accordance with CPIA s.6A:
(1) the nature of the accused's defence (alibi);
(2) those matters of fact on which D takes issue with the prosecution (that D attacked the complainant Stephen Holmes/correctness of the identification);
(3) why D takes issue (because D was not present);
(4) any points of law D wishes to take including authority in support (breach of Code D on Identification/s.78 PACE);
(5) particulars of alibi witness (D’s mother's name, address and date of birth).
98
What is a joinder?
more than one offence and more than one defendant can be included on a single indictment
99
When may the court may order separate trials where the same indictment charges more than one offence?
a) D is prejudiced or embarrassed in his or her defence. ( offences not on same facts or not part of series of offences.)
b) any other desirable reason that D should be tried separately.
100
What does the court consider when deciding if allegations should be tried at the same time?
* what the prosecutor proposes;
* any representations by the defence;
* the courts powers to order separate trials; and
* the overriding objective.
101
If D intends to call any witnesses at trial - what should they do?
Notify the prosecution with the witnesses name, address and date of birth.
102
When should the notice of intention to call defence witnesses be given?
Mags - 14 days
| CC- 28 days.
103
Whats the consequence of not complying with defence disclosure?
- the jury may draw such adverse inferences as appear proper against the defendant for such a failure although a defendant cannot be convicted solely or mainly on the basis of such an adverse inference.
- In addition, the prosecution or co-defendant may comment on such failure without the leave of the court, other than where it relates to a point of law where leave is required.
104
Whats the consequence of not serving a defence statement in cc?
Section 11 CPIA contains the only sanctions available to the court for failure by the defence to comply with its duties of disclosure. Accordingly, for example, it is not open to the court to prevent a defendant calling an alibi witness D has failed to include in a defence statement. The appropriate sanction here is comment/adverse inference.
105
Whats the consequence of not serving a defence statement in mags?
n the magistrates' court, no adverse inference can be drawn against a defendant for failing to serve a defence statement because there is no duty to do so under the CPIA.
However, if the choice is made to serve a defence statement in the magistrates' court, an adverse inference could be drawn for the same reasons as in the Crown Court, such as for serving it out of time or for putting forward a different defence at trial to that contained in the defence statement.
If a defence statement is not served in the magistrates' court or the Crown Court the defendant will not be able to make an application for specific disclosure under s.8 CPIA.
Moreover, failure to serve a defence statement in either the magistrates' court or the Crown Court will mean that the prosecution will not have the opportunity to review disclosure in light of the issues that would otherwise have been set out within them.
106
Does the duty of disclosure stop?
no, there is a duty on prosecutors to keep disclosure under review throughout the case and in particular when a defence statement is served.
This continuing duty means the prosecutor must keep under review whether there is any material that should be disclosed, even after it has carried out a review following service of the defence statement.
This also means that material must be disclosed even if it is discovered at a late stage in proceedings (eg even after close of the prosecution case at trial) and this duty lasts until the defendant is convicted, acquitted or the prosecutor decides not to proceed with the case.
107
What should the prosecution do in respect of disclosure when a defence statement is served?
Once the Defence Statement has been received, the Crown must review disclosure in the light of the issues identified in the Defence Statement.
D serves defence statement
Then Prosecutor has to either give further disclosure or notify them that theres no further disclosure.
This is a strict rule.
108
Can D request for disclosure of unused prosecution material if they haven't referred to the issue it relates to in their defence statement?
no, Defence requests for disclosure of particular pieces of unused prosecution material which are not referable to any issue in the case identified in the defence statement should be rejected’.
109
What should an application for specific disclosure include?
The application must describe the material the defendant wants to be disclosed and explain why there is reasonable cause to believe:
(a) that the prosecutor has the material; and
(b) that it is material that should be disclosed under the CPIA
110
How is an application for specific disclosure made?
Prior to making any such formal application the defence should write to the prosecution specifying the material which they seek and make a formal application for specific disclosure.
An application must be served on the court and prosecution.
The defendant should ask for a hearing and explain why it is needed. The prosecution then has 14 days to respond in writing to any such application.
111
Are specific disclosure applications to be used all the time?
No, it should be a last resort. The parties should be working together and cooperating with disclosure.
112
What are the consequences of the prosecution failing to disclose?
* The defence could bring an application to stay the indictment on the ground that to continue the case would be an abuse of process of the court.
* It could result in a conviction being quashed on appeal due to being unsafe.
* It would be likely to result in delay and the imposition of wasted costs for unnecessary hearings or a refusal to extend custody time limits.
* It could also potentially result in the exclusion of evidence in the case due to unfairness.
113
What is third party disclosure and what is the duty on that third party?
Sometimes important material might be helf by a third party (eg. Local authority). Those third parties do not have a duty of disclosure however prosecutors should take necessary steps to obtain it.
114
How can the prosecution get disclosure from a third party?
If its believed a 3rd party has information, they need to be informed of investigation and a request needs to be made. There needs to be some reason to believe the 3rd party has that material.
When disclosure is refused, prosecution can get a summons under S2 CPA or S97 Mags courts act.
115
What is public interest immunity in disclosure?
There may be circumstances where the prosecution is under a duty to disclose as it satisfies the disclosure test but do not want to disclose because it would give a rise to a real risk of serious prejudice to an important public interest.
116
How do you apply for non-disclosure because of public interest immunity?
The required course of action is to apply to a judge for a non-disclosure in the public interest. It's known as the public interest immunity application. The court will consider the material and will withhold disclosure to the minimum extent. But always ensuring D has a fair trial. This needs to be recorded in the sensitive material schedule and investigator must state:
• why the material is sensitive and to what degree
• the consequences of disclosing the material to the defence (including the involvement of third parties in bringing the material to the attention of the prosecution)
• the relevance of the material to the issues in the case
• the implications for continuing the prosecution if the material is ordered to be disclosed
• whether it is possible to make disclosure without compromising its sensitivity.
117
What is an arraignment?
The indictment is put to the defendant and they enter a plea of guilty or not guilty on each count on the indictment.
118
What happens if the defendant pleads guilty to all counts on the indictment?
Moves to sentence.
119
What are pre-trial matters and when will these be considered?
issues that can be resolved pre trial i.e. trial date, applying for witness summons.
- first hearing
- at hearing on date after first one before the trial
- on the trial day before it starts ( but try to resolve everything before the trial)
120
What will the court give direction for at the first hearing?
- service of documents between the parties (should any be needed)
- either resolve there and then any matters of law (rarely) or set out a timetable as to when they will be resolved either at a pre-trial hearing or on the morning of trial.
- The court will also set a trial date.
121
If D wants to plead guilty to indictable only matter what happens?
D is unable to do so at the first hearing because the magistrates' court has no jurisdiction to hear it. The defendant can ask for an early guilty plea hearing in the Crown Court in order to enter their guilty plea as quickly as possible instead of waiting until the PTPH. Will receive credit for this.
122
What happens if the defendant pleads not guilty to all counts on the indictment?
Moves to trial preparation of the hearing.
123
What happens if the defendant pleads guilty to some counts and not guilty to others?
the prosecution will need to consider how it wishes to proceed, the result being either that the court moves to sentence or if there is to be a trial the 'trial preparation’ stage needs to take place.
124
What happens if the judge determines that the D is unfit to plead?
No plea is taken. The court will have a trial to determine if there was an actus reus but will not look at mens rea.
125
How can a just determine that a D is unfit to plead?
They have to hear medical evidence.
126
What sentencing can be imposed on a defendant that is unfit to plead?
- An absolute discharge
- A supervision order
- A hospital order
127
What happens at the PTPH?
The court gives standardised directions and sets 4 stage dates:
- Trial date
- Prosecution evidence
- Expert evidence
- Witness requirements
128
What are standard directions for and what do they normally contain?
* Special measures. Directions will apply for any special measures (such as live link and screens) sought by witnesses.
* Bad character. Directions will apply for any bad character applications by the prosecution and defence and timetables set for the service of bad character applications and responses.
* Witness summons. If a witness summons is required, details must be given and the application can be made at the PTPH or a timetable given for making the application.
* Agreed facts and issues. The defence must set out what factual matters are agreed so that they can be drafted as admissions for use at trial.
* Disputed facts and issues. The defence must set out those matters where there is a dispute with the prosecution case so that the issues for the trial are clear.
* Defence statement. The defence must serve a defence statement at stage 2 which sets out the defence case.
* Disclosure. If there are issues relating to advance disclosure of unused material, this can be dealt with or the standard directions will deal with this.
* Defendant's interview. A timetable will be apply for the prosecution and defence to agree an edited interview record for use at trial.
* Hearsay. Directions will apply on the service of applications to rely on hearsay evidence.
* Admissibility and legal issues. All issues relating to the admissibility of evidence and other legal issues should be notified. Directions will be given or apply on when these applications will be made (e.g. at or before trial) and on the service of any documents in support, such as skeleton arguments.
129
What happens if a party fails to comply with standard directions?
Where a party fails to comply with any directions, they may be required to come to court and explain their failure to do so.
130
When can a further hearing for an application to exclude evidence or introduce otherwise inadmissible evidence take place?
* the PTPH (rare as the judge would not usually have time)
* at a hearing on a day at some point between PTPH and trial (less common); or
* on the day of trial before the trial starts (most common).
131
When can a defendant change their plea from not guilty to guilty?
A defendant who has pleaded not guilty can, at any time before the jury return their verdict
132
How does a defendant chance their plea from not guilty to guilty?
ask through their Counsel that the 'indictment be put again' (or charge sheet in the magistrates' court). The clerk will read the indictment and the defendant can plead guilty. This usually happens before trial but from time to time a defendant might decide midway through a trial that they want to end the process by pleading guilty. It is rare, but it can and does (occasionally) happen. Strictly speaking, you need the leave of the judge/magistrates to have the indictment/charge sheet put again, but asking that it be put again is sufficient. If the trial is taking place in the Crown Court and the jury have already been put in charge of the case, they should be directed to return a formal verdict of guilty.
133
When can a defendant change their plea from guilty to not guilty?
Defendants who plead guilty can, at any time before they are sentenced, apply to the court for leave to change their plea from guilty to not guilty, but judges should exercise their discretion judicially and sparingly, although even where the plea was unequivocal the discretion to allow it to be changed still exists.
134
When would a court not allow a defendant to change their plea from guilty to not guilty?
Where a defendant has been represented properly a court would invariably reject the application to vacate their guilty plea and allow them to enter a fresh not guilty plea.
Represented properly means:
• proper advice has been given to the defendant;
• no undue pressure has been exerted on the defendant; and
• the defendant’s plea was clearly unequivocal.
An application of this nature will frequently feature a defendant waiving privilege (considered in another element) to establish matters such as the nature of the advice they acted upon.
In practice, then, although it is always a matter for the court, the two most common scenarios in which the rarely exercised discretion will properly be applied are where either:
• The defence can show that the prosecution has no evidence of an essential ingredient of the offence; or
• The defendant was improperly placed under undue pressure to plead guilty or was materially misadvised by D’s legal team.
135
Name the different types of special measures?
* The use of screens (the witness will be screened from the defendant and the public gallery) (s.23 YJCEA)
* Live TV link (where the witness sits in a room away from the courtroom) (s.24)
* Giving evidence in private (public gallery cleared) (s.25)
* Removing wigs and gowns by barristers and judges (s.26)
* Video recording of evidence in chief (s.27)
* Pre-recording cross-examination and re-examination (s.28 – partially in force)
* Questioning of a witness through an intermediary (s.29)
* Aids to communication (s.30)
136
Who is eligible for special measures?
- witness under 18
- witness with mental disorder or impairment
- witness in fear (courts sure will not diminish quality of evidence.)
- complainants of sexual offences
- certain offence under modern slavery act.
- cases involving serious offences i.e homicide. firearms or knives.
137
what are other special measures put into place to protect witnesses?
- Witness Anonymity Orders
- Automatic anonymity of complainants in sex cases
- Prohibition of cross-examination by defendants in person of complainants in sex cases and of child witnesses in certain cases involving violent and sexual offences
- Restricting the reporting of witnesses' identity
138
When may a intermediary be used?
assist communication i.e. someone with learning difficulties or to assist a vulnerable defendant.
139
What is the test for the party seeking the summons?
* the witness is likely to be able to give evidence that is likely to be material evidence (or to produce a material document); and
* it is in the interests of justice to issue a summons.
140
who can issue a summons ?
CC and Mags court
141
Why are witness summons issued?
to ensure witness attendance at court or to produce documents.
