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CLP > Pre-trial criminal litigation > Flashcards

Pre-trial criminal litigation Flashcards

1
Q

What do pre-trial matters cover?

A

Things such as selecting trial date and resolving legal arguments

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2
Q

When are pre-trial matters considered?

A

At a first hearing, a hearing before the trial date or on the day of the trial before the trial starts

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3
Q

What is the expectations set out by CPR

A

The parties will be ready to start trial immediately on trial day unless something unexpected has arisen

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4
Q

Pre trial matters in the magistrates courts

A

A case management form should be filled out before the first hearing. At the first hearing the court will give directions for service of documents and resolve matters of law.

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5
Q

Evidence from the magistrates to the crown court

A

A plea and trial preparation hearing must be set within 28 days.
A sending sheet should be sent to the defendant and crown court.

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6
Q

Evidence must be sent within:

A

50 days is D is in custody
70 days if D is on bail.

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7
Q

Where is evidence uploaded

A

Crown court Digital case system

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8
Q

When must draft indictment be served?

A

No more than 20 business days after the prosecution serves evidence

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9
Q

What is the plea and trial preparation hearing

A

The main pre-trial court hearing in the crown court. It occurs shortly after the prosecution serve its case on the defence

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10
Q

Who fills out the PTPH

A

the parties

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11
Q

What are the two parts of PTPH

A

first plea and trial preparation

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12
Q

The plea stage

A

Indictment is given to D and they enter into a plea of guilty or not guilty.

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13
Q

D pleads guilty

A

Case moves to sentence

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14
Q

D pleads not guilty

A

The court proceeds to the trial preparation

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15
Q

Unfit to plead

A

No plea is taken, the court will hold a trial with a jury to determine whether D committed the actus reus and then the trial preparation state can begin

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16
Q

Timeline

A

PTBH - 28 days after descending from magistrates court,
EVIDENCE - 50 days or 70 days depending on if D is in custody or not.

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17
Q

What happens at the trial preparation stage?

A

-Trial date set if not done already
-Prosecution must confirm if they have served all their evidence
-expert evidence organised
-Prosecution and defence witnesses set out

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18
Q

What should be done by the end of the trial preparation stage?

A

Trial date set, timetable for any extra prep work.
No further hearings should be needed because there are no further issues or they can be dealt with on the day of trial

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19
Q

What is used material?

A

Material the prosecution will rely upon at trial

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20
Q

What does used material consist of?

A

statements from prosecution, D’s interview record etc.

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21
Q

What is unused material and what does it consist of?

A

Material not being used by the prosecution.
Records of prosecutions previous convictions, disciplinary finding against officers and witness testimonies not used by P

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22
Q

Who is unused material important to?

A

The defendant

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23
Q

What must happened with unused material?

A

if the material will help D , it must be served on the defendant. D can then present this in trial. (disclosure)

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24
Q

How many stages of disclosure are there?

A

4

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25
Q

What are the 4 stages of disclosure?

A

-The investigation stage (duty to record and retain material)
-The initial duty of disclosure on the prosecution
-Defence disclosure
-Continuing duty of disclosure

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26
Q

What is a disclosure officer?

A

Someone responsible for examining material retained and revealing material

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27
Q

The role of the duty officer.

A

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.

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28
Q

What material must be retained?

A
  • crime reports
  • records from tapes or telephone messages (such as 999 calls) containing the description of an alleged offender
  • witness statements (and drafts if they differ from the final version)
  • exhibits
  • interview records
  • experts’ reports and communications between the police and experts for the purposes of criminal proceedings
  • records of first descriptions of suspects and any material casting doubt on the reliability of a witness.
29
Q

How long does the duty to retain last?

A

The duty to retain material lasts at least until a decision is taken whether to institute proceedings against a suspect for a criminal offence. all material must be retained until the accused is acquitted or convicted, or the prosecutor decides not to continue with the case.

30
Q

Disclosure in the crown court

A

Discloser officer prepares a schedule known as an MG6C which lists the items of unused material.

31
Q

Disclosure in the magistrates court

A

If a not guilty plea is anticipated, unused material is listed on a streamlined disclosure certificate

32
Q

Duties of a disclosure officer

A

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

33
Q

The prosecutors initial duty of disclosure

A

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)

34
Q

What is prosecution material?

A

Material within the prosecutors possession in connection to the case which as been inspected

35
Q

The disclosure test

A

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).

36
Q

Time limits for initial disclosure

A

No later than the beginning of the day of the first hearing and as soon as reasonably practicable (if not a date will be given for this to happen)

37
Q

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

A

The officer in charge of the investigation

38
Q

Where the defendant is convicted and given a custodial sentence, how long does the duty to retain material last?

A

At least until the defendant is released from custody

39
Q

What does s5 CPIA impose of defendants?

A

A duty to serve a defence statement to the prosecution and the crown court

40
Q

What is a defence statement?

A

A written statement setting out the nature of the accused’s defence

41
Q

What must be contained in a defence statement?

A
  • any defences they wish to rely on
    -issues taken with the prosecution and why
42
Q

What should be included in a defence statement that discloses an alibi?

A

The name, address and DoB of any witness that can support the alibi and any information that may be useful in finding a witness

43
Q

When are defence statements compulsory?

A

In the crown court (as opposed to the magistrates court)

44
Q

When should a defence statement be served to the crown court (and prosecution)?

A

Within 28 days of the prosecution’s initial disclosure

45
Q

Defence statement is not compulsory in the magistrates court but when one is submitted what are the time limits?

A

Must be served within 10 business days of the prosecution’s initial duty of disclosure

46
Q

What is set out in a defence statement

A
  • The nature of the accused’s defence
    -Those matters of fact on which D takes issue with the prosecution
    -Why D takes issue
    -Authority to support
    -Particulars of the alibi witness
47
Q

What must D do if they wish to call any witnesses to trial?

A

Notice and details of the witness (Notice of Intention to Call Defence Witnesses)

48
Q

Do alibi witnesses need to be included in the Notice?

A

No, only in the defence statement

49
Q

Time limits for Notice?

A

From when P’s initial disclosure
-10 business days for magistrates court
-28 days for crown court

50
Q

Why might disclosure fail for a defendant?

A

-They don’t serve a defence statement
-They serve a DS but not within the time limits
- The defence statement is inadequate

51
Q

What may disclosure failure lead to?

A

adverse inferences

52
Q

What is needed for D to make an application of specific disclosure?

A

A defence statement

53
Q

Do the prosecution have a continuing duty of disclosure?

A

yes

54
Q

Why are defence statements helpful for the prosecution?

A

The defence statement allows prosecutors to revisit disclosure and ensure it is aligned and given in an informed way with regards to the defence

55
Q

What is the continuing duty of disclosure?

A

Prosecutors should keep disclosure under review throughout the case

56
Q

When there is reasonable cause to believe there is material that should have been disclosed, what can D do?

A

Apply for specific disclosure

57
Q

What should be included in a specific disclosure?

A

Description of the material, the reasons to believe the prosecutor has the material and it should be disclosed.

58
Q

How long do the prosecution have to reply to an application of specific disclosure?

A

10 business days

59
Q

What are the possible consequences of the prosecutions failure to disclose?

A
  • Defence can bring an application of abuse of the process of the court.
  • Conviction could be quashed
  • Delay and unnecessary costs
    -Exclusion of evidence on the basis of fairness
60
Q

Is there a duty of disclosure on 3rd parties?

A

No

61
Q

Can prosecutors obtain material from 3rd parties?

A

Yes

62
Q

If a 3rd party refuses access what steps can be taken by the prosecution?

A

They could seek a summons

63
Q

Why might the prosecution not want to disclose certain material?

A

Doing so, would pose a real risk of serious prejudice to an important public interest.

64
Q

If there is risk of serious prejudice what should the prosecution do?

A

Apply for Public Interest Immunity

65
Q

What is Public Interest Immunity?

A

A non-disclosure in the public interest

66
Q

What will the court consider when a PII is made?

A

to what extent can the material be withheld from disclosure to protect the public while also ensuring the defendant has a fair trial.

67
Q

When must sensitive material be recorded?

A

At the investigation stage of the sensitive material schedule

68
Q

What must investigators state when recording sensitive material?

A
  • 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.
69
Q

When does the continuing duty of disclosure by the prosecution last until?

A

Until the defendant is convicted, acquitted or the prosecutor decides not to proceed

CLP (2 decks)

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