Pre - Trail Hearings And Confessions

Question 1

Can court proceedings be conducted in welsh

Answer 1

Yes

Question 2

Where would you indicate that you want the proceedings in welsh

Answer 2

This would be indicated on the Preparation for Effective Trial (PET) form in the magistrates’ court or the PTPH form in the Crown Court

Question 3

In crown court cases will there always be at least one pre - trial and preparation hearing

Answer 3

Yes, In more complex Crown Court cases further pre-trial hearings may be necessary in order to ensure parties are trial ready.

Question 4

For trials in the magistrates court where will case management issues be dealt with

Answer 4

At the first hearing

Question 5

What is the magistrates case management form called, and when is this expected to be completed

Answer 5

Preparation for effective trail form (PET), the court will expect parties to complete before the first hearing commences.

Question 6

What directions will the court give at the first hearing at the magistrates court

Answer 6

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.

Question 7

How is evidenced served where the magistrates court sends the case for trail to the crown court

Answer 7

It must set a date for a Plea and Trial Preparation Hearing (PTPH) within 28 days.

The magistrates’ court will complete a ‘sending sheet’-a notice specifying the offences for which the defendant is being sent and the Crown Court where the defendant will be tried.

This notice should be sent to the defendant and the Crown Court. There is no prescribed form for such a notice.

Evidence must be served within:
50 days (if the defendant is in custody); or
70 days (if the defendant is on bail).
of the date on which the defendant has been sent for trial in the Crown Court.

Evidence is uploaded on to the Crown Court Digital Case System: i.e. copies of the documents containing the evidence on which a charge is based.

Draft indictment must be served by the prosecutor on the Crown Court officer not more than 20 business days after serving prosecution evidence.

Question 8

What are the two stages of the PTPH (pre trial preparation hearing)

Answer 8

first ‘plea’: and
second either ‘sentence’ or ‘trial preparation’ stage.

Question 9

If the defence want to make an application to dismiss the charges, when must they do so

Answer 9

Before a plea is taken

Question 10

If the defendant pleads guilty to the sole count on the indictment/ all of the counts of a multi- count indictment what happens next

Answer 10

The case moves to sentencing

Question 11

If the defendant pleads not guilty to the sole count on the indictment / all of the counts on a multi-count indictment what happens next

Answer 11

the court proceeds to the ‘trial preparation’ of the hearing.

Question 12

If a defendant is found unfit to plead and the jury finds they have committed the act, what can they only be subject to

Answer 12

an absolute discharge
supervision order; or
a hospital order

Question 13

What standard directions are given at the trial preparation stage

Answer 13

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 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.

Question 14

What is the difference between used and unused material

Answer 14

used- ie relied upon at trial; and
unused- ie not relied upon at trial.

Question 15

What does used material include

Answer 15

• statements from the prosecution witnesses
• the defendant’s record of taped interview
• other documentary exhibits such as plans and diagrams that are relevant to proving the case.
It is from these materials that defendants will know what the cases against them are.

Question 16

What are examples of unused material

Answer 16

• statements from witnesses that the prosecution is not relying upon at trial to prove its case
• records of previous convictions of prosecution witnesses
. disciplinary findings against police officers.

Question 17

What is the duty in regards to evidence in the investigation stage

Answer 17

The duty to retain and record relevant material
Under the Disclosure Code of Practice, during a criminal investigation all material (including information) which may be relevant to the investigation must be recorded in a durable or retrievable form and retained.

Question 18

Who is responsible for for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material

Answer 18

The officer in charge of the investigation

Question 19

What is the disclosure officer responsible for

Answer 19

examining material retained and revealing material to the prosecutor and to the defence at the prosecutor’s request.

Question 20

Do all investigations need an investigator

Answer 20

Yes - must follow all reasonable lines of enquiry, whether these point towards or away from the suspect and the investigator must be ‘fair and objective’.

Question 21

In routine cases can the officer in charge, the investigator and the disclosure officer all be the same person

Answer 21

Yes

Question 22

When does the duty to retain material last until

Answer 22

A decision is taken whether to institute proceedings against a suspect for a criminal offence.
Once proceedings are commenced, all material must be retained until the accused is acquitted or convicted, or the prosecutor decides not to continue with the case.

Question 23

Do the prosecution need to disclose unused material to the defence

Answer 23

Yes -
• In Crown Court cases the disclosure officer prepares a schedule known as an MG6C which individually lists the items of unused material.
• In magistrates’ court cases where a Not Guilty plea is anticipated the unused material is listed on a streamlined disclosure certificate.

Question 24

Do Disclosure Officers need to certify that to the best of their knowledge and belief they have complied with their duties under the Disclosure Code of Practice.

Answer 24

Yes

Question 25

What is the prosecutions initial duty of disclosure

Answer 25

‘s 3(1) 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 26

Is the disclosure test for prosecution material subjective or objective

Answer 26

The disclosure test under s.3 CPIA is an objective one. In essence, where there is in existence prosecution material which might help the defence then it should be disclosed.

Question 27

What are the time limits for initial disclosure

Answer 27

The prosecution will serve initial details of the prosecution case (used material) no later than the beginning of the day of the first hearing in accordance with CrimPR Part 8.

Question 28

The intial discolsure must include sufficient information to allow the defence to take an informed view about what?

Answer 28

(1) on plea;
(2) on venue for trial (for either-way offences);
(3) for the purposes of case management;
(4) for the purposes of sentencing (including committal for sentence for either-way offences).

Question 29

In summary trials where the defendant pleads not guilty when must the initial duty of disclosure be completed

Answer 29

A date will be given by the court

Question 30

Is the prosecution under a continuing duty to review disclosure throughout the criminal proceedings

Answer 30

Yes

Question 31

What is a defence statement

Answer 31

written statement which sets out the nature of the accused’s defence. It should not be confused with a defendant’s proof of evidence to D’s own legal advisers which is a privileged document and, thus, not disclosable to the prosecution.

Question 32

Who must the defence serve it’s defence statement to

Answer 32

The crown court and the prosecution

Question 33

What must the defence statement include

Answer 33

setting out the nature of the accused’s defence, including any particular defences on which he intends to rely,
indicating the matters of fact on which he takes issue with the prosecution,
setting out, in the case of each such matter, why he takes issue with the prosecution, and
setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence, and
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

Question 34

Where is the defence statement compulsory

Answer 34

Only in the crown court

Question 35

When must the defence statement be served

Answer 35

within 28 days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so).

Question 36

Can the time limit for defence statement be extended

Answer 36

Yes, only if the application to extend is made within the time limit and only if the court is satisfied that it would not be reasonable to require the defendant to give a defence statement within 28 days.

Question 37

What are the consequences of failing to serve a defence statement in the magistrates court (not compulsory)

Answer 37

failure to do so will mean that the defence will be unable to make an application for specific disclosure

Question 38

If the defence choose to serve a defence statement in the magistrates court when must they do so

Answer 38

the defendant must do so within 10 business days of the prosecution complying (or purporting to comply) with the initial duty of disclosure

Question 39

What must the defence disclose in relation to witnesses in both the crown and magistrates court (The Notice of Intention to Call Defence Witnesses)

Answer 39

if D intends to call any witnesses at trial (other than the defendant being a witness); and
if so, identifying the witness by name, address and date of birth or any information to
locate and identify the witness.

Question 40

What are the consequences of failing to serve or failing to serve within the time limit the defence statement

Answer 40

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.
The prosecution or co-defendant may comment on such a failure

Question 41

What are Time limits for the defence statement and Notice of Intention to Call Defence Witnesses

Answer 41

A defendant must do so within 28 days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so) in the Crown Court; or
A defendant must do so within 10 business days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so) in a magistrates’ court (standard directions)

Question 42

What are Time limits for the defence statement and Notice of Intention to Call Defence Witnesses

Answer 42

A defendant must do so within 28 days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so) in the Crown Court; or
A defendant must do so within 10 business days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so) in a magistrates’ court (standard directions)

Question 43

When can the defence make an application to the court for specific disclosure

Answer 43

where it has reasonable cause to believe that there is prosecution material which should have been disclosed under s.7A(5) CPIA (namely disclosure following service of the Defence Statement) but which has not been disclosed.

Question 44

What must the application for a specific disclosure describe

Answer 44

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.

Question 45

What must the prosecution failed to have done after the defence has served a defence statement for them to be able to apply for specific disclosure

Answer 45

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 (s.7A(5) CPIA).

Question 46

How long does the prosecution have to respond to an application for specific disclosure

Answer 46

10 business days to respond in writing to any such application.

Question 47

where it becomes apparent that the prosecution has failed in its duty to disclose relevant material what are the possible consequences

Answer 47

• 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 48

When should the prosecution take appropriate steps to obtain third party material

Answer 48

if the material might be considered capable of undermining the prosecution case or of assisting the case for the accused,

Question 49

What can the prosecution seek if a request for third party access or disclosure is refused

Answer 49

Can seek a summons from the court

Question 50

What must the prosecution apply for if it does not wish to disclose the material, believing that to do so would give rise to a real risk of serious prejudice to an important public interest.

Answer 50

apply to the judge for non-disclosure in the public interest. This is called a Public Interest Immunity (usually abbreviated to ‘PII’) Application.

Question 51

How can fact be proved other than calling live evidence

Answer 51

agreeing a witness statement as true by consent of the parties, Criminal Justice Act 1967, s.9;
agreeing any fact between the parties, Criminal Justice Act 1967, s. 10; and
a judge or a jury to take ‘judicial notice’ of the fact.

Question 52

If a witness statement is agreed what happens

Answer 52

The statement is then simply read out, and carries the same weight as if the witness had attended in person, sworn (or affirmed), and given the evidence from the witness box.

Question 53

What are the different types of evidence

Answer 53

Oral evidence
Written form - agreed statements and agreed facts
Real evidence - objects that are brought to the court for inspection
Direct evidence
Circumstantial evidence
A view

Question 54

How is relevance established in relation to evidence

Answer 54

Relevance is established by whether the evidence is ‘logically probative’ of a fact in issue - i.e. does the evidence tend to
prove or disprove a fact in issue. If evidence is irrelevant, it is inadmissible, and if the evidence is relevant, it is admissible.

Question 55

What is the test for dismissing a charge (if the defendant makes an application before plea)

Answer 55

The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment …) … if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted.’

Question 56

When can a submission of no case to answer be made

Answer 56

During a trial and after the prosecution has presented all of its evidence, the defence are entitled to submit to the judge that there is no case to answer on any one or all of the charges faced by the defendant. The application can be made in the magistrates’ court and the Crown Court.

Question 57

What is the test to be applied to submissions of no case to answer

Answer 57

that the judge should stop the case:
(a) where there is no evidence that the crime has been committed by the defendant; or
(b) where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.

Question 58

When can an abuse of process application be made

Answer 58

an application to stay the indictment where either (1) the defendant cannot have a fair trial; or (2) continuing the prosecution offends the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute.

Question 59

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

Answer 59

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 60

Does bad faith have a role in the exclusion of evidence under s,78

Answer 60

where there has been bad faith on the part of the police when acting in breach of PACE or the Codes of Practice that is a factor which is likely to lead to exclusion of the evidence.

Question 61

What are examples of s.78 being used to exclude evidence where there has been a breach of codes of practice

Answer 61

To this end s.78 has been used variously to exclude evidence obtained where:
• the “fundamental right” of access to legal advice has been improperly denied;
• where waiver of the right of access to legal advice was not voluntary, informed or unequivocal;
• where there has been a failure to caution a suspect before questioning;
• where an appropriate adult has not been provided for a youth, mentally disordered or mentally vulnerable suspect;
where identification procedures have not been followed.
Where breaches of the codes are significant and substantial this may well result in exclusion under s.78.

Question 62

When can s.78 applications be made

Answer 62

• before the trial;
• at the commencement of the trial; or
• just prior to the prosecution seeking to admit the evidence which the defence wish to be excluded.
The key point is that a s.78 application should be made before the evidence to which objection is taken is adduced.

Question 63

What is a void dire (needed for a s.78 application)

Answer 63

type of mini-trial or ‘trial within a trial’

Question 64

What is a confession

Answer 64

confession”, includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.’

Question 65

What falls within the definition of confessions

Answer 65

• unequivocal confessions of guilt (ie wholly inculpatory statements such as ‘I did it’).
• mixed statements (those which are partly inculpatory and partly exculpatory, such as ‘I had nothing to do with it but I was glad to see the victim die’). These fall within the definition of a confession because they are partly adverse to the maker.
• depending on the context, a nod, sign or gesture can be sufficient, as a confession does not have to be articulated in words.
Wholly exculpatory statements (‘It was nothing to do with me’) do not fall within the definition of a confession.

Question 66

What is limb one of exclusions of confession under s,76

Answer 66

Exclusion for oppression

Question 67

How is oppression defined

Answer 67

‘Oppression’ is widely defined in s.76(8) to include torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture). This wording reflects that contained in

Question 68

Once the defence represent that the confession was obtained by oppression, or the court chooses to act of its own motion under s.76(3), what must the prosecution prove

Answer 68

the prosecution must prove beyond reasonable doubt that it was not so obtained.
If the prosecution cannot prove beyond reasonable doubt that the confession was not obtained by oppression, then the confession must be excluded as inadmissible evidence and this applies even if the confession may have been true.

Question 69

What is limb 2 of exclusion of confessions under s.76

Answer 69

Exclusion for unreliability

Question 70

What is the three step approach where the defendant alleges that their confession is unreliable within s.76(2)(b) PACE

Answer 70

• First, to identify the thing said or done, which requires the trial judge to take into account everything said and done by the police.
• Secondly, to ask whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence. The test is objective taking into account all the circumstances.
• Thirdly, to ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done, which is a question of fact to be approached in a common sense way.

Question 71

What are examples of things said or done that could render a confession unreliable

Answer 71

These can be positive acts, such as a promise, inducement or trick. Examples are:
• a promise to release someone promptly from police custody only if they ‘tell all’; or
• a promise of bail from the police station conditional on a full and frank confession; or
• a threat to arrest a suspect’s partner or other family members if the suspect does not ‘cooperate’.
The thing said or done can also be an omission or failure to act, such as interviewing a young or mentally vulnerable suspect without an appropriate adult.

Question 72

Can a suspect who makes an admission because they consider this is likely to get them bail (when the suspect has not been induced into believing this) rely on s.76(2)(b)

Answer 72

No

Question 73

Even where a confession is excluded, does it prevent facts discovered as a result of it being relied upon in evidence

Answer 73

No section 76(4)(a)) nor does it prevent the prosecution using part of the confession if necessary to show the speech, writing or expressions of the accused (section 76(4)(b))

Question 74

Can the defences apply to exclude a confession under both s.76 and s.78 PACE

Answer 74

YES

Question 75

If evidence has been irregularly obtained (for example, in breach of the codes) does it render it inadmissible.

Answer 75

Not necessarily - The key test for the court in deciding whether to exclude prosecution evidence under s.78 is 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.