First Hearings and Confessions

Question 1

Where is a defendant’s first hearing?

Answer 1

Magistrates Court.

Question 2

Where the defendant is on bail, the first hearing must be within…

Answer 2

14 days of being charged if the prosecutor anticipates a guilty plea which will likely to be sentenced in a Magistrates Court.

28 days of being charged if it is anticipated that the defendant will plead not guilty, or the case is likely to go to the crown court for trial or sentence.

Question 3

Does the defendant need to be present at the first hearing?

Answer 3

Yes - courts can issue a warrant for their arrest if they were meant to be present and don’t show.

When the defendant doesn’t attend as required, the court will consider whether it can proceed with the hearing anyways - this won’t usually be possible if either-way or indictable.

Note for minor offences where D has been summonsed to court they don’t commit any offence for non-appearance.

Question 4

What do initial details of the prosecution case (IDPC) include?

Answer 4

A summary of the circumstances of the offence; any account given by the defendants in interview; any written statements and exhibits that are available and material to plea/ mode of trial or sentence; victim impact statements; defendants criminal record.

If D was in police custody immediately before hearing, initial details only need to comprise a summary of the circumstances of the offence and D’s criminal record.

Question 5

What happens in first hearing in an indictable only offence?

Answer 5

They will only make a brief first appearance in the Magistrates court, which will deal with bail and legal aid, and then the defendant is sent to the Crown Court will they will enter a plea. The hearing at the Crown Court is three or four weeks later dependent on the bail status.

Question 6

On what rare occasion would a summary offence go to the Crown Court?

Answer 6

D charged with an offence to be tried in the Crown Court and there is a summary only offence connected to it. The related summary matters that must be sent for trial and included on an indictment are:

Common assault, assaulting prison/secure training centre officer/ taking a motor vehicle or other conveyance without authority, driving motor vehicle while disqualified and criminal damage.

Any other summary matter that is punishable by disqualification from driving or imprisonment not listed above must be sent to CC for plea only.

Question 7

What will happen at the first hearing where the offence is trialable either-way?

Answer 7

D will be asked to indicate their plea. They are supplied with a copy of the initial details by the prosecutor and the charge is written down and read out.

They can give guilty/not guilty/ no indication.

Before they indicate plea - warned that they can be sentenced by the court or committed to the crown court for sentence.

Question 8

What’s the max imprisonment the Magistrates Court can give for any summary only or single either-way offence?

Answer 8

6 month

For two or more either-way offences in Mag court max is 12 months imprisonment.

Question 9

What will the Magistrates Court do if it decides that its sentencing powers are not sufficient?

Answer 9

Will send the defendant to be committed for sentence by the Crown Court. Should consider a PSR for use by the Crown Court if it considers that there is a realistic alternative to a custodial sentence, defendant may be a dangerous offender, or there is some other appropriate reason for doing so.

Question 10

What will happen if the defendant indicates a not guilty plea in MC either-way?

Answer 10

Court moves on to consider where the trial will be held - allocation - follow allocation guidelines.

Should take into account guideline that an either-way offence should be tried summarily unless the courts sentencing powers would be insufficient or there is unusual legal, procedural, or factual complexity.

Question 11

What happens in an allocation hearing?

Answer 11

1. Prosecution opens with facts, outlines offending history, makes submissions for where trial should be held consistent with guidelines.
2. Defence can make submissions as to venue, can are with prosecution, Need to be persuasive if they think it should not be in CC but P does.
3. Court decides.. If they decide CC, matter is sent and D will make next appearance at CC>

Question 12

What is an indication of sentence?

Answer 12

D can ask for an indication of sentence if they were to plead guilty instead. Court has discretion as to whether they will give an indication. If they decline, they should tell the defendant whether it will be custodial or non-custodial.

Question 13

What is ‘election’?

Answer 13

If D sticks with not guilty, Court will ask them if they want case to be adjourned and tried in MC, or if they want to elect to be tried by jury in CC.

Question 14

What are the ‘special cases’ where what would ordinarily be either-way offences are classed as summary only?

Answer 14

Low value shoplifting under £200 max penalty 6 month; criminal damage under £5000 and not by fire max penalty 3 month

Question 15

What are the ‘special cases’ where what would ordinarily be either-way offences are only to be tried in CC?

Answer 15

Criminal damage over £5000 or caused by fire; cases where children may be called as witnesses if notice has been given under 51C; complex fraud.

Question 16

What is complex fraud?

Answer 16

To be complex fraud, at least two of the following must be present:
* The amount is alleged to exceed £500,000
* There is a significant international dimension
* The case requires specialised knowledge of financial, commercial, fiscal or regulatory matters such as the operation of markets, banking systems, trusts or tax regimes
* There are numerous victims
* There is substantial and significant fraud on a public body
* The case is likely to be of widespread public concern or the alleged misconduct endangered the economic well-being of the United Kingdom, for example by undermining confidence in financial markets

Question 17

What happens in the first hearing in a summary only offence?

Answer 17

1. Communication between prosecution and defence.
2. D asked to enter plea.

Guilty = court proceeds to sentence immediately or after adjournment.

Not guilty = Set trial date, complete PET case progression form. This includes contact details, names and types of witnesses, estimated length of trials, identification of trial issues, advance warning whether applications will be made, whether prosecution statements can be read, any special arrangements needed, that D’s advocate has advised them of credit for early guilty plea and that trial will go ahead in D’s absence if they fail to attend.

Set timetable for case, give directions.

Question 18

What is used material?

Answer 18

Material the prosecution will rely on at trial to prove its case against a defendant. Includes statements from prosecution witnesses, defendant’s record of taped interview.

Question 19

What is unused material?

Answer 19

Material not being relied on by the prosecution, like witness statements the prosecution is not relying on, records of previous convictions of prosecution witnesses, disciplinary findings against police officers.

Question 20

What are the four main stages of disclosure?

Answer 20

1. Investigation stage - duty to record and retain info during investigation.
2. Initial duty of disclosure on prosecution.
3. Defence disclosure.
4. Continuing duty on prosecution to keep disclosure under review.

Question 21

What three officers must every investigation have?

Answer 21

An officer in charge of the investigation, an investigator, and a disclosure officer. Sometimes these will be the same person.

Question 22

How long must investigation stage material be retained?

Answer 22

Until accused is acquitted or convicted.

Convicted = at least until released from custody of six months from date of conviction.

Until appeal is concluded.

Question 23

What is the initial duty of disclosure for the prosecutor?

Answer 23

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).’

Question 24

What is ‘prosecution material’?

Answer 24

Material which is in the prosecutor’s possession, and came into his possession in connection with the case, or which has been inspected in connection with the case for prosecution against the accused.

The disclosure test is objective.

Question 25

What are the time limits for initial disclosure?

Answer 25

Prosecution to serve initial details of the prosecution case (used material) no later than the beginning of the day of the first hearing. Must have sufficient information to allow D and court at first hearing to take an informed view on hearing, venue, and for the purposes of case management and sentencing.

Question 26

When does the statutory duty of the disclosure of unused material from the prosecution arise?

Answer 26

IN MC only when D pleads not guilty and the case adjourns for summary trial;
CC when D is sent for trial or a Voluntary Bill of Indictment has been preferred against D.

Even when the statutory duty hasn’t arisen, responsible prosecutor should still recognise that there should be disclosure for fairness and justice in anything that might help the defence. This is the common law duty of disclosure.

Question 27

What is a defence statement?

Answer 27

CC duty on the defendant to serve a defence statement on CC and prosecution. Written statement which sets out the nature of the accused’s defence. Not to be disclosed with D’s proof of evidence to their own legal advisers which is a privileged document

No duty on D to serve material which might be helpful to prosecution, just to clarify what their defence case is.

Question 28

What are the time limits for the defence statement?

Answer 28

CC compulsory must be served on prosecution and court within 28 days of the date when prosecution complies with its duty of initial disclosure. Can be extended if application is made within time limit and court considers it reasonable.

MC - not compulsory but if they do, within 10 business days of the prosecution complying with the initial duty of disclosure. Failure to save MC defence statement will result in D being unable to apply for specific disclosure.

Question 28

What should defence statement contain?

Answer 28

For the purposes of this Part a defence statement is a written statement:

(a) setting out the nature of the accused’s defence, including any particular defences on which he intends to rely,

(b) indicating the matters of fact on which he takes issue with the prosecution,

(c) setting out, in the case of each such matter, why he takes issue with the prosecution, and

(d) setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence, and

(e) indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose.

(2) A defence statement that discloses an alibi must give particulars of it, including:

(a) the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given;

(b) any information in the accused’s possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.’

Question 29

When must defendant disclose to the court and prosecutor their wittnessses?

Answer 29

In both CC and MC, should indicate if they intend to call any witnesses at trial and if so, identifying by name address and DOB.

Alibi witnesses should be includeed in the defence statement and do not need to be repeated in the Notice of Intention to Call Defence Witnesses.

NICDW must be given within 10 business days to MC and 28 days to CC of the prosecution complying with initial disclosure.

Question 29

What are the consequences if the defence fails to disclose?

Answer 29

Jury may draw adverse inferences as appear proper against a defendant for such a failure.

Prosecution may comment on such failure without the leave of the court.

MC cannot draw adverse inferences because there is no duty to serve a defence statement - but if they do choose to serve one, adverse inference could be drawn for serving out of time, putting forward different defence etc.

Question 30

How long does the prosecutor’s duty of disclosure last?

Answer 30

Continues even if material is discovered at a late stage in proceedings, and duty lasts until defendant is convicted, acquitted, or prosecutor decides to not continue with the case.

Question 31

When can the defence make an application for specific disclosure?

Answer 31

When defence has reasonable cause to believe that there is prosecution material which should have been disclosed, but has not. (s8 application).

D must have served a defence statement to apply for this, and prosecutor must have either provided further disclosure in light of that defence statement, or notified the defendant there is no further disclosure to be made.

Application must explain why there is reasonable cause to believe that the prosecutor has the material and that it is material that should be disclosed under the CPIA 1996. Prosecution has 10 business days to reply.

Question 32

What happens if it becomes apparent that the prosecution has failed in its duty to disclose relevant material?

Answer 32

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.

Question 33

Does a duty of disclosure rest on third parties (local authorities etc)?

Answer 33

No, but if the material might be considered capable of undermining the prosecution case or assisting the case for the accused, the prosecution should take reasonable steps to obtain it.

In cases where it is believed that the third-party holds relevant information, they should be informed of the investigation and a request should be made for the material in question to be retained unless a disclosure request is made.

Question 34

What is public interest immunity?

Answer 34

P is under duty to disclosure, but does not wish to disclosure due to giving rise to a real risk of serious prejudice to an important public interest.

Apply to the judge for non-disclosure in the public interest. Court will consider material and may withhold disclosure to the minimum extent necessary to protect public interest.

Mist be recorded at the investigation stage in the sensitive material schedule which must state why it is sensitive and to what degree, the consequences of disclosure to the defence, relevance of material to issues in the case, implications for continuing the prosecution is the material is ordered to be disclosed, and whether it is possible to make disclosure without compromising its sensitivity.

Question 35

What are ‘pre-trial matters’?

Answer 35

Matters that can be resolved pre-trial, like trial date, witness summons. Will be considered at first hearing, a hearing on a date before the trial date (e.g. a PTPH) or on the day or trial itself before it starts.

Question 36

How are pre-trial matters dealt with in MC?

Answer 36

Parties expected to deal with case management issues at first hearing. At first hearing, court will give directions for service of documents between parties, resolve there or set out a time table when they will be resolved.

Question 37

How is the evidence served on the defence where the MC sends the case for trial at CC?

Answer 37

Must set a date of a PTPH within 28 days. MC will complete a ‘sending sheet’ to be sent to D and CC.

Evidence must be served within 50 days if d is in custody or 70 days if D is on bail … of the date on which D has been sent for trial in CC.

Evidence is uploaded on the CC digital case system.

Draft indictment must be served by P on CC officer not more than 20 days after serving prosecution evidence.

Question 38

What is the plea and trial preparation hearing?

Answer 38

Main, and often only, pre-trial CC hearing. It consists of ‘plea’ AND THEN ‘sentence’ or’ trial preparation’ stage

Question 39

What happens at the plea stage of the PTPH?

Answer 39

Indictment is put to the defendant and they plea guilty or not guilty to each count (‘arraignment’).

Proceed to sentence if guilty, and trial preparation if not guilty.

If mixed, prosecution will consider how it wishes to proceed.

Question 40

What will happen if the judge determines that the defendant is unfit to plead?

Answer 40

No plea is taken and court will hold a trial with a jury to determine whether D committed acts reuse and so trial preparation stage will need to take place.

Question 41

What happens in the trial preparation stage?

Answer 41

Trial date, prosecution evidence, expert evidence, witness requirements.

Standardised directions will apply for dealing with matters like special measures, bad character, witness summons, agreed and disputed facts and issued, defence statement, disclosure, heresy

Question 42

If there are applications to exclude evidence or introduce otherwise inadmissible evidence, this can be deal with at….

Answer 42

PTPH but this is rare as the judge doesn’t usually have time;

at a hearing on a day between PTPH and trial;

On the day of trial before trial starts (most common).

Question 43

Who is eligible for special measures?

Answer 43

All witnesses under 18, witnesses with a mental disorder, who are in fear about giving evidence where the court is satisfied that the quality of their evidence will be diminished because of this, all complainants of sexual offences forced labour, human trafficking, and also all witnesses in a case involving a ‘relevant offence’ - serious offences including homicide or involving firearms.

Question 44

What are witness summons, what is the test for them?

Answer 44

Power to ask the court to summon a witness to the court. Test is that the witness is likely to be able to give evidence that is likely to be material evidence, and it is in the interests of justice to issue a summons.

If a witness disobeys without a just excuse, the courts can issue a warrant for their arrest.

Question 45

How do applications to change plea from not guilty to guilty work?

Answer 45

Can do this any time before verdict. Clerk will read indictment and D can plead guilty.

Question 46

How do applications to change plea from guilty to not guilty work?

Answer 46

Can before sentencing - judges should exercise discretion judicially and sparingly.

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.