Pre-Trial Criminal Litigation

Question 1

Who makes the Decision to Charge?

Answer 1

A Crown Prosecutor.

The Police retain the discretion to charge for a number of summary offences or either-way offences where the Accused has already plead guilty, in which case, the decision is made by the Custody Officer.

Question 2

What is a Crown Prosecutor?

Answer 2

A Lawyer from the Crown Prosecution Service (“CPS”) with Rights of Audience and delegated power from the Director of Public Prosecutions (“DPP”).

Question 3

What are the Three Ways of Commencing Criminal Proceedings?

Answer 3

• Arrest and Charge;
• Written Charge and Requisition; and
• Laying of Information.

Question 4

In an Arrest and Charge, when do Criminal Proceedings begin?

Answer 4

Either:

• At the end of detention;
• After Police Bail, when the Suspect returns to the Station; or
• After Police Bail, when the CPS decides whether and what to charge.

Question 5

When can Pre-Charge Police Bail be Imposed?

Answer 5

• There is insufficient evidence to charge the Suspect and the investigation is pending.
• There is sufficient evidence to charge, but the matter must be referred to the CPS for a decision.

PACE 1984 — ss. 34, 37.

It is ultimately for the Police to decide whether a Suspect should be released with or without bail, and if released on bail, whether any conditions should be imposed.

Question 6

In a Written Charge and Requisition, when do Criminal Proceedings start?

Answer 6

When a Crown Prosecutor issues a Written Charge and Requisition Order in the Magistrates’ Court.

Criminal Justice Act (“CJA”) 2003 — s. 29.

It is irrelevant whether the relevant person has been arrested.

Question 7

In a Laying of Information, when do Criminal Proceedings start?

Answer 7

• When the Crown Prosecutor serves an allegation to a Magistrates’ Court; which then
• Issues a Summons or Warrant requiring the Accused to attend Court.

Question 8

What must the Written Charge, Requisition Order, Information, or Summons contain?

Answer 8

Written Charge or Laying of Information:

• A description of the Offence in ordinary language;
• A reference to the statutory provision that creates the offence, if applicable; and
• A description of the offending conduct for the Accused to understand the allegation.

Summons or Requisition Order:

• The issuing Court;
• The person under whose authority it was issued;
• A notice setting out when and where the Accused must attend court; and
• A description of the offences in respect of which it has been issued.

Question 9

Is there a Time Limit on Charging someone?

Answer 9

For Summary Only offences, 6 Months from the date of the Offence.

Question 10

Once Charged, how does a Defendant secure Public Funding?

Answer 10

By obtaining a Representation Order from the Legal Aid Agency by satisfying both the Means and Merit Tests.

Question 11

For obtaining a Representation Order, what is the Means Test in the Magistrates’ Court?

Answer 11

An assessment of the Defendant’s Weighted Gross Annual Income:

• If it is £12,475 or less, they are eligible.
• If it is £22,325 or more, they are ineligible.
• If it is neither, eligibility turns on whether their Annual Household Disposable Income is £3,398 or less.

Weighted Gross Annual Income excludes partners who are Claimants, Co-Defendants, or Prosecution Witnesses.

Certain Defendants, namely Minors and those receiving specific benefits, will automatically satisfy the Means Test.

Question 12

For obtaining a Representation Order, what is the Means Test in the Crown Court?

Answer 12

An assessment of the Defendant’s income and capital:

• If it is £3,398 or less, they are eligible for funding without contribution.
• If it is £37,500 or more, they are ineligible.
• If it is neither, they are eligible for funding with contribution.

The contribution is 90% of disposable income for a maximum of six months in instalments and subject to a cap based on the type of offence. The whole sum is refunded with interest if they are acquitted.

Question 13

For obtaining a Representation Order, what is the Merit Test?

Answer 13

• It is in the interests of justice for the Defendant to receive legal aid.
• A Defendant will automatically pass the interests of justice test if:
  • Charged with an indictable-only offence; or
  • An either-way offence is later sent to the Crown Court.

On their CRM 14 Form, the Defendant must provide support in all or some of the following propositions:

• I will lose my liberty.
• I have been given a sentence that is suspended or non-custodial. If I break this, the court may be able to deal with me for the original offence.
• It is likely I will lose my livelihood.
• It is likely I will suffer serious damage to my reputation.
• A substantial question of law may be involved.
• I may not be able to understand the court proceedings or present my own case.
• Witnesses may need to be traced or interviewed on my behalf.
• The proceedings may involve expert cross examination of a prosecution witness.
• It is in the interests of another person involved in the proceedings that I am represented.
• Any other reasons.

Question 14

When must the First Hearing take place if the Defendant is on Bail?

Answer 14

• 14 Days of being Charged if:
  • The Prosecutor anticipates a Guilty Plea;
  • That is likely to be Sentenced in the Magistrates’ Court.
• Otherwise, 28 Days.

Question 15

When must the First Hearing take place where the Defendant is in Custody?

Answer 15

The next available court.

Question 16

Wht happens if a Defendant fails to attend the First Hearing?

Answer 16

The Court may issue a warrant for their arrest.

However, for minor, non-imprisonable offences, like traffic violations, absence is not an offence, and the Court will proceed as usual.

Question 17

What are the Initial Details of the Prosecution Case (“IDPC”)?

Answer 17

A synposis of the Prosecution’s case, including:

• A summary of the circumstances of the offence;
• The Defendant’s account in interview;
• Relevant witness statements and exhibits;
• Victim impact statements; and
• The Defendant’s criminal record.

Where the Defendant was in custody, the IPDC need only include the first and last points. However, in any case, it must sufficiently detailed to allow the Court to take an informed view on plea and venue for trial.

The IPDC must be served on the Court and Defendant as soon as practicable, and in any case, no later than the morning of the First Hearing.

Question 18

What are the Main Issues the First Hearing will address?

Answer 18

Summary-Only and Either-Way Offences:

• Bail.
• Plea.
• Representation and legal aid.

Indictable-Only Offences:

• Bail.
• Representation and legal aid.
• Transfer to the Crown Court.

The following Summary-Only offences must be sent to the Crown Court if the Defendant has been indicted and is destined therefor:

• Common assault.
• Assaulting a prison or secure training centre officer.
• Taking a motor vehicle or other conveyance without authority.
• Driving a motor vehicle while disqualified.
• Criminal damage.

Question 19

When will the Magistrates’ Court commit a Defendant to the Crown Court for sentencing?

Answer 19

When it considers that:

• There is a realistic alternative to a custodial sentence;
• The Defendant may be a dangerous offender; or
• There is some other good reason.

Question 20

When deciding where to Allocate a Case, what should the Magistrates’ Court consider?

Answer 20

• Whether its sentencing powers would be sufficient in case of a guilty verdict; or
• The case’s legal, procedural, or factual complexity suggests the Crown Court may be the better venue.

Importantly, the Magistrates’ Court may retain jurisdiction regardless of whether the likely sentence may exceed its powers (six months for one, twelve months for two or more). Accordingly, only the most serious case tend to be reallocted.

Question 21

If the Magistrates’ Court retains Jurisdiction, what follows?

Answer 21

The Court will explain to the Defendant that:

• It has decided that Summary Trial is more suitable;
• They can consent to be tried summarily or by a jury; and that
• If tried summarily and is convicted, they may still be committed to the Crown Court for sentencing.

Question 22

Prior to electing Venue, may the Defendant ask for an Indication of Sentence if they were to Plead Guilty?

Answer 22

Yes, but:

• The Court has discretion as to whether to grant their request;
• If it does, the Indication must be confined to whether the sentence would be custodial or non-custodial; and
• If the latter is Indicated, it will later bind the Court.

In practice, requests are most often granted to accelerate Proceedings.

If an Indication is given, the Defendant can change their plea to Guilty and the process followed will be as if they had pleaded Guilty at the start.

Question 23

What are the Advantages of Electing the Crown Court?

Answer 23

• The acquittal rate is higher.
• The separate tribunals of law and fact allow the judge to hear arguments to exclude evidence in the absence of a jury.
• The Crown Court is not necessarily harsher on sentencing.

Question 24

What are the Advantages of Electing the County Court?

Answer 24

• Overall costs are lower.
• The trial is much faster.
• Proceedings are less formal.
• The waiting time before trial is much shorter.
• The Defendant need not serve a Defence Statement.
• Magistrates have weaker sentencing powers than those of the Crown Court.
• Magistrates must provide reasons for their decision, whereas juries do not.

Question 25

Which Either-Way Offences can become Summary-Only, Indictable, or Indictable-Only under certain circumstances?

Answer 25

* **Low-Value Shoplifting:** Although classified as an Either-Way offence, this is **treated** as **Summary-Only**. * **Criminal Damage:** Treated as **Indictable** if the **damage** is **over £5,000** or **caused by fire**. * **Fraud Involving Children:** Treated as **Indictable-Only** where **children may** be called as **Witnesses**. * **Complex Fraud:** Treated as **Indictable-Only** where **at least two** of the following are **present**: * There are numerous victims; * The amount alleged exceeds £500,000; * There is a significant international dimension; * The case is likely to be of widespread public concern; * There is a substantial or significant fraud on a public body; * The case requires specialised knowledge of financial, commercial, fiscal, or regulatory matters;

Question 26

How may a Defendant in an Adjourned case be Remanded?

Answer 26

Either **in custody** or **on bail**. ## Footnote The Prosecution may choose to apply for remand in custody, after which the Defence must apply for bail.

Question 27

What is the Right to Bail?

Answer 27

The **presumption** that the Defendant is **entitled** to **bail**, and that only a **properly-made objection** may **reubut** this entitlement. | Bail Act 1974 — s. 4.

Question 28

When does the Right to Bail disapply?

Answer 28

When the **Applicant** is: * **Appealing** a **Conviction or Sentence**; or * Being **committed** to the Crown Court for **Sentencing**. ## Footnote Bail may still be granted in both of these cases; the presumption simply does not apply.

Question 29

On whats grounds may the Prosecution object to Bail?

Answer 29

There are **substantial grounds** for believing the Defendant will: * **Fail to attend** a subsequent hearing; or * **Commit further Offences** on bail; or * **Obstruct** the course of **justice**; and * Has a **real prospect** of receiving a **custodial sentence**. Likewise, **any** of the following **automatically disqualify Bail**: * The Defendant is **already serving** a **Sentence in custody**; * **Remand in custody** would be for the **Defendant's own protection**; * The Court has **insufficient information to properly decide** on Bail, and thus **must remand** the Defendant **in custody until that changes**. ## Footnote 'Substantial grounds' means the given beliefs have substance and merit on the facts. If the Defendant is charged with a serious crime or a crime of a particular character, there is also a good chance they may be denied bail.

Question 30

Which Factors will the Court consider when deciding whether to grant Bail?

Answer 30

* **Associations**. * **Antecedents**. * **Community Ties**. * The **likely sentence**. * The Defendant's **character**. * The Defendant's **bail record**. * The **strength** of the **evidence**. * The **risk** of **physical** or **mental injury**. * The **Charge's nature** and **seriousness**.

Question 31

Which Grounds are Available to which Type of Offence?

Answer 31

**Fail to Surrender:** * **Indictable:** Ground is available. * **Summary, Imprisonable:** Ground is available, but only if: * The Defendant has failed to surrender previously; or * Following a S.7 Arrest. * **Summary, Non-Imprisonable:** Ground is available, but only if: * The Defendant has been convicted in the proceedings; and * The Defendant has failed to surrender previously; or * Following a S.7 Arrest. **Committing Further Offences:** * **Indictable:** Ground is available. * **Summary, Imprisonable:** Ground is available, but only if following a S.7 Arrest. * **Summary, Non-Imprisonable:** Ground is available, but only if: * The Defendant has been convicted in the proceedings; and * Is then subject to a S.7 Arrest. **Obstruction of Justice:** * **Indictable:** Ground is available. * **Summary, Imprisonable:** Ground is available, but only if following a S.7 Arrest. * **Summary, Non-Imprisonable:** Ground is available, but only if: * The Defendant has been convicted in the proceedings; and * Is then subject to a S.7 Arrest; unless * There is no real prospect of receiving a custodial sentence. **For Their Own Protection:** * Ground is always available. **Already In Custody:** * Ground is always available. **Insufficient Time:** * Ground is always available.

Question 32

Which Conditions are most commonly attached to Bail?

Answer 32

* **Residence at a Given Address:** The defendant must live and sleep at a specified address, sometimes a Bail Hostel. * **Curfew:** The defendant must remain indoors during certain hours. * **Regular Reporting:** The Defendant must regularly report to a local police station at set intervals. * **Surety:** A promise by someone with influence over the Defenant to pay the Court a sum of money should they abscond. * **Security:** The Defendant, or someone on their behalf, collateralises an asset to secure their return. * **Restriction on Movement:** A prohibition on where the Defendant can go. * **Restriction on Interaction:** A prohibition on who the Defendant can interact with, directly or indirectly. * **Electronic Monitroing:** An electronic tracker the Defendant must wear at all times. * **Surrender of Passport:** The Defendant surrenders their passport(s).

Question 33

What happens if the Defendant breaches a Bail Condition?

Answer 33

* A **S.7 Arrest** and a **re-assessment** of the Defendant's **eligibility** for **Bail**. * **Breaching Bail** is **not an Offence**, **unlike Failure to Surrender** to Custody.

Question 34

What is the Procedure for Applying for Bail?

Answer 34

**First Instance, Magistrates' Court:** * Submit your case to the Court, who will hear both sides and make a decision. **Second Instance, Magistrates' Court:** * Appeal the unfavourable decision at the Magistrates' Court; or * Appeal directly to the Crown Court, knowing that you forefit the previous option in doing so. * Hence, you should leave this as a last resort. **First Instance, Crown Court:** * Submit your case to the Court, who will hear both sides and make a decision. **Second Instance, Crown Court:** * Appeal the unfavourable decision at the Crown Court

Question 35

What is the Procedure for Challenging the Grant of Bail?

Answer 35

* The Prosecution **opposed the Grant of Bail**. * The **Offence** is **imprisonable**. * The Prosecution **indicates** at the **First Hearing** that they **will Appeal**, after which the Defendant remains in Custody. * The **intention to Appeal** is confirmed in writing and **Served** on the **Court and Defence** within **2 Hours**. * The **Appeal** is **Heard** within **48 Hours**, excluding weekends, by a **Crown Court Judge**. ## Footnote The same procedure applies in the Crown Court.

Question 36

What are the Custody Time Limits?

Answer 36

**Magistrates' Court:** * **56 Days**; however * The Defendant must **return** to Court within **8 Clear Days** for their **Bail Appeal**, if applicable **Crown Court:** * **182 Days**; **minus** * **Any Days** spent **in Custody before** the **Case was transferred**. ## Footnote A trial must commence before the limit expires, and if it does not, the Defendant must be released, unless the Prosecution applies for an extension, shows it has acted with 'all due diligence and expedition', gives 'good and sufficient cause' for further remand in custody is necessary.

Question 37

What are Pre-Trial Matters?

Answer 37

**Any matter** that can be **resolved Pre-Trial** at the **First Hearing**, including the **Trial Date** and **case management** issues. ## Footnote This entails Directions on the Service of documents and the immediate or eventual resolution of legal arguments. If a **legal argument** is **resolved immediately**, it will **bind** any **later Court**.

Question 38

If a Legal Argument is Resolved at the First Hearing, will it Bind a later Court?

Answer 38

**Yes**, **unless**: * There has been a **material change in circumstances**; or * An **important detail** was **not brought** to the **Court's attention** when it made its ruling. ## Footnote In any case, the relevant Party must apply to the have the decision varied or discharged.

Question 39

What is the Plea and Trial Preparation Hearing ("**PTPH**")?

Answer 39

The **First Hearing** in the **Crown Court**, which only happens if the Magistrates' Court decides to upstream the case.

Question 40

What is the Procedure for Upstreaming a Case to the Crown Court?

Answer 40

* The **Magistrates**' Court must **set** the **date** of the **PTPH** within **28 days** of the **First Hearing**. * The **Magistrates**' Court must **deliver** a **Sending Sheet** to the **Crown** Court. * The **Parties** must **Serve Evidence** within **50 days** of the **First Hearing** if the Defendant is in **Custody** or **70 days** if on **Bail**. * The **Prosecutor** must **Serve** a **Draft Indictment** on the **Crown** Court within **20 business days** of **Prosecution Evidence** being **Served**. ## Footnote Evidence is uploaded on to the Crown Court Digital Case System

Question 41

What is a Sending Sheet?

Answer 41

A notice **specifying** the **Offences** the Defendant is **charged** and **where** they will be **tried**.

Question 42

If the Defendant of an Indictable Offence seeks a Guilty Plea, what can they do?

Answer 42

**Ask** for an **early Guilty Plea Hearing** in the **Crown Court**, to avoid waiting for the PTPH.

Question 43

What is the Primary Document in the Second Hearing?

Answer 43

* In the **Crown Court**, the **PTPH Form**. * In the **Magistrates' Court**, the **PET Form**. ## Footnote These Forms are completed either before or during the Second Hearing.

Question 44

What is addressed in the PTPH Form?

Answer 44

* **Evidence**. * **Witnesses**. * **Disclosure**. * **Case Details**. * **Defence Case**. * **Trial Preparation**. * **Prosecution Case**. * **Legal Applications**. * **Next Hearing Dates**. * **Custody Time Limits**. * **Case Management Directions**. * **Judge's Directions and Orders**.

Question 45

What is the Structure of a PTPH?

Answer 45

* The **Plea**. * The **Sentence** (if Guilty) or the **Trial Preparation** (if Not Guilty). * If the Defendant pleads **Guilty** to **one count** and **Not Guilty** to **another**, **both take place**. ## Footnote If the Defence want to apply to dismiss the charges, they must do so before a plea is taken.

Question 46

What is addressed in the PET Form?

Answer 46

* Estimated **Trial Length**. * Identification of **Core Issues**. * Notification of **Intended Applications**. * **Special Arrangements** for Trial Participants. * **Decision** on reading **Prosecution Statements**. * Details of **Witnesses** and **attendance requirements**. * **Contact details** of **Defendant** and **Representatives**. * **Confirmation** of **Advice** regarding **Non-Attendance** and **Early Guilty Pleas**.

Question 47

What is address in the Magistrates' Court's Pre-Trial Hearing?

Answer 47

**Scope of Pre-Trial Rulings:** * Admissibility of Evidence. * Defendant's fitness to Plead. **Binding Nature of Rulings:** * Rulings remain effective until the Case is disposed. **Variation or Discharge:** * Rulings may be varied if Justice demands and the Parties are allowed to make representations. * This often requires a material change in circumstances.

Question 48

What happens if the Court determines the Defendant is Unfit to Plead?

Answer 48

The Court **refuses** to **take a Plea** and simply **moves on** to **Trial Preparation**. ## Footnote A Defendant Unfit to Plead found Guilty can only be Sentenced to: * An Absolute Discharge; * A Supervision Order; or * A Hospital Order.

Question 49

What happens at the Trial Preparation Stage?

Answer 49

* The Court will set a **Trial Date**, if necessary. * The Court will set **Stage Dates** by which the **Parties** must **comply** with certain **Standard Directions**. * The **Prosecution** will **confirm Service** of **Evidence** and whether any Evidence **outstands** and for **how long**. * The **Court** will **direct** on **expert evidence**. * The Defence will **outline**: * Which **Defence Witnesses** it will **call**; * Which **Prosecution Witnesses** it **requires** to attend; and * **How long** it may take to **question** them.

Question 50

What are the Standard Directions the Crown Court gives at Trial Preparation?

Answer 50

* **Special Measures:** Directions regarding any special measures sought by Witnesses. * **Bad Character:** Directions regarding any Bad Character Applications by the Prosecution and Defence and corresponding timetables. * **Witness Summons:** Details of the desired Summons and the Application, either then or at a later date. * **Agreed Facts and Issues:** The Defence must outline the matters it submits. * **Disputed Facts and Issues:** The Defence must outline the matters it disputes. * **Defence Statement:** The Defence must serve a Defence Statement, outlining its case. * **Disclosure:** Directions regarding advance disclosure of unused material, dealt with either immediately or at a later date. * **Defendant's Interview:** A timetable for the Parties to agree an edited Interview record for use at Trial. * **Hearsay:** Directions regarding Applications to rely on Hearsay evidence. * **Admissibility and Legal Issues:** Directions regarding Applications to exclude Evidence and on the Service of any documents in support.

Question 51

What are the Four Stages of Disclosure?

Answer 51

1. **Investigation**, where the Prosecution must **record** and **retain all relevant material**. 1. **Initial Prosecution Dislcosure**, where the Prosecution must **disclose Used** and **Unused Material**. 1. **Defence Disclosure**, where the Defence must serve its Defence Statement. 1. **Ongoing Prosecution Dislcosure**, lasting until Proceedings conclude. ## Footnote The Duty to Retain lasts until the Defendant is convicted or acquitted, including appeal.

Question 52

What is the Prosecution's Evidentiary Disclosure obligation?

Answer 52

**Full** and **proper Disclosure**.

Question 53

During the Investigation Stage of Disclosure, who are the Police Officers involved?

Answer 53

* **The Officer in Charge of the Investigation ("OCI"):** Responsible for directing the Investigation and ensuring that proper recording and retention procedures are in place. * **The Investigator(s):** Responsible for conducting the Investigation; and * **The Disclosure Officer:** Responsible for examining material retained and revealing material to the Prosecution and Defence at the Prosecutor's request.

Question 54

How must an Investigator conduct their work?

Answer 54

They must: * **Exercise objectivity** and **fairness**; and * **Follow all reasonable lines of enquiry**, whether these point towards or away from the Suspect.

Question 55

If Relevant Material is held by a Third Party, what should the Prosecution do?

Answer 55

* **Ask directly** for the Material; and if unsuccessful, * **Seek** a **Summons**.

Question 56

How must a Disclosure Officer conduct their work?

Answer 56

They must: * **Examine all retained material**; and * **Provide** a **personal declaration** as to having done so. ## Footnote If they doubt whether any material is disclosable, they must seek advice from the Prosecutor.

Question 57

When does the Duty to Retain Material end?

Answer 57

* If Proceedings are **ongoing**, until they **conclude**. * If the Proceedings are **concluded**, until **appeals** can **no longer** be **lodged**. * If Proceedings are **not ongoing**, until the **Prosecution decides not to pursue** the case.

Question 58

How does the Disclosue Officer report to the Prosecution?

Answer 58

* In the **Crown Court**, they prepare an **MG6C Schedule**, **individually listing** items of Unused Material. * In the **Magistrates' Court**, they prepare a **Disclosure Certificate** listing Unused Material **more generally**. ## Footnote If **Sensitive Material** is involved, that will be listed in a **Sensitive Material Schedule**, or if **extremely sensitive**, **revelated** to the **Prosecutor separately**.

Question 59

What must be contained in the Sensitive Material Schedule?

Answer 59

Aside from the Material itself: * **Why** the Material is **sensitive** and **to what degree**; * The **consequences** of **disclosing** it to the **Defence**; * Its **relevance** to the **present issues**; * The **implications** for the **Prosecution's case** if it is disclosed. * **Alternatives** that **allow disclosure** without compromising sensitivity.

Question 60

What is Sensitive Material?

Answer 60

Material that gives rise to a **real risk** of **serious prejudice** to an **important public interest**.

Question 61

What is the Prosecution's Initial Duty of Disclosure?

Answer 61

* **All Used Prosecution Material** must be **Disclosed**. * **Unsued Prosecution Material** must be **Disclosed only if**: * It **reasonably assits** the **Defence** or **undermines** the **Prosecution**; and * If no such material exists, the Prosecution must produce a written statement saying as much.

Question 62

What constitutes 'Prosecution Material'?

Answer 62

**Anything** in the **Prosecution’s possession** or **inspected** by the **Police** under the Disclosure Code of Practice.

Question 63

What must the Prosecution consider when deciding what to Disclose?

Answer 63

* The Material's **utility** in **cross-examination**. * The Material's **utility** in **ancillary Applications**, e.g. to exclude evidence, stay proceedings, or establish a breach of human rights * The Material's **utility** in **explaining** the **Defendant's actions** or **impacting other evidence**, particularly scientific evidence. ## Footnote Even seemingly insignificant items, when viewed together, may impact the Defence case. Neutral or supportive material need not be disclosed unless it meets the Disclosure Test.

Question 64

What is the Deadline for Initial Disclosure of Used Prosecution Material?

Answer 64

The **beginning** of the **First Hearing**, providing **enough detail** for the Court and Defence to make **informed decisions** on: * **Plea**; * **Venue**; * **Case Management**; and * **Sentencing**.

Question 65

What is the does the Duty to Initially Disclose Unused Prosecution Material arise?

Answer 65

In the **Crown Court**: * When Defendant is **sent** to **Trial** or a **Voluntary Bill of Indictment** is used. In the **Magistrates' Court**: * When the Defendant **pleads Not Guilty** . ## Footnote Either way, **Prosecutors** should **disclose** in **sufficient time** to **ensure** the **Trial** is **effective**.

Question 66

What is a Defence Statement?

Answer 66

A **written statement** outlining in **reasonable detail** the **nature** of the Defendant's **defence**. ## Footnote This need not necessarily include any information that could help the Prosecution, a major difference in the Defence's disclosure obligations.

Question 67

What must a Defence Statement contain?

Answer 67

* The **nature** of the **defence**, including specific defences. * The **disputed matters of fact** and the **reasons** for **disputing** them. * The **supporting facts** the defence relies on. * Any **relevant points of law** the Defendant wants to raise. * If an **Alibi** is involved: * The **name**, **address**, and **date of birth** of any **supporting Witnesses**. * Any **additional information** to help **identify** or **locate** the Witnesses, if full details are not available.

Question 68

What is the Deadline for Serving the Defence Statement?

Answer 68

In the **Crown Court**: * **28 days** of **Initial Prosecution Disclosure**, or purported compliance therewith. In the **Magistrates' Court**: * **10 business days** of **Initial Prosecution Disclosure**, or purported compliance therewith. ## Footnote A Defence Statement is **compulsory** in the **Crown Court**, but **not** in the **Magistrates' Court**. However, failure to provide one disqualifies the Defence from applying for Specific Disclosure.

Question 69

What is the Deadline for Serving Notice of Intention to Call Defence Witnesses?

Answer 69

In the **Crown Court**: * **28 days** of **Initial Prosecution Disclosure**, or purported compliance therewith. In the **Magistrates' Court**: * **10 business days** of **Initial Prosecution Disclosure**, or purported compliance therewith.

Question 70

What are the Consequences of Failing to stricly comply with the Requisites of a Defence Statement in the Crown Court?

Answer 70

* The **Jury** may draw **Adverse Inferences**. * The **Defence cannot apply** for **Specific Disclosure**. * The **Prosecution** and **Co-Defendants** can **freely comment** on the issue (unless it relates to a legal point). ## Footnote If a Defence Statement is filed late in the Magistrates' Court, only then can any Adverse Inferences be drawn.

Question 71

What is the Purpose of an Application for Specific Disclosure?

Answer 71

To **compel** the **disclosure** of **Prosecution Material** the Defence has **reasonable cause** to believe has been **wrongly withheld**. | This is otherwise known as a Section 8 Application. ## Footnote To make such an Application, the Defence must have **filed** a **Defence Statement** and the **Prosecution** must have either **made further disclosures** or stated there was **nothing further to disclose**.

Question 72

What must an Application for Specific Disclosure contain?

Answer 72

The **relevant Prosecution Material** and **why** there is **reasonable cause** to believe: * The **Prosecutor has it**; and * That it **should have been disclosed**.

Question 73

On whom must the Defence Serve an Application for Specific Disclosure?

Answer 73

The **Court** and the **Prosecution**.

Question 74

What renders an Application for Specific Disclosure Weak?

Answer 74

**Failure** to **correlate** the **Application** with any **issues raised** in the **Defence Statement**. | Hence, why they should be comprehensive. ## Footnote Such Applications will be **automatically rejected**.

Question 75

By when must the Prosecution respond to an Application for Specific Disclosure?

Answer 75

**10 business days**.

Question 76

What are the Consequences on the Prosecution for Failure to Disclose?

Answer 76

* **Imposition** of **costs**. * **Stay** of **Proceedings**. * **Refusal** to **extend custody**. * **Quashing** of **Conviction** on **Appeal**. * **Exclusion** of **evidence** due to **unfairness**.

Question 77

What is Public Interest Immunity?

Answer 77

**Prosecution Material protected from disclosure** because its release would give rise to a **real risk** of **serious prejudice** to an **important public interest**. ## Footnote In such cases, the Prosecution should make a Public Interest Immunity Application.

Question 78

When are Applications to Exlude Evidence, or to Admit otherwise Inadmissible Evidence, usually Heard?

Answer 78

In the **hours before Trial begins**, although the **PTPH** and **Pre-Trial Hearings** are other possible venues.

Question 79

What are the Special Measures available to the Court?

Answer 79

* **Screens**. * **Live Link**. * **Vacation** of the **Public**. * **Intermediary Assistance**. * **Pre-Recording** of **Evidence**. * **Communication Assistance**. * **Removal** of **Wigs** and **Gowns**.

Question 80

Who is Eligible to Receive Special Measures?

Answer 80

* **Witnesses** who are **Minors**. * **Adult Complainants** in **Sexual Offence** cases. * **Witnesses** in Cases of **Serious Crimes**, e.g. Homicide or Gun Violence. * **Adult Complainants** in certain **Modern Slavery Act 2015 Offences**, e.g. human trafficking or forced labour. * **Witnesses** suffering from **fear** or **distress**, which the **Court believes** may **diminish** the **quality** of their **Evidence**. * **Witnesses** with a **condition** or **cognitive impairment**, which the **Court believes** may **diminish** the **quality** of their **Evidence**.

Question 81

What is the Test for Issuing a Witness Summons?

Answer 81

* Is the Witness is **likely** to provide **material Evidence**; and * Is it in the **interests of justice** to issue the Summons. ## Footnote Failure to comply with a Witness Summons can result in the issuance of a Warrant for Arrest and may lead to Charges of Contempt of Court.

Question 82

When can a Defendant change their Plea from Not Guilty to Guilty?

Answer 82

At **any time before** the **Jury's Verdict**.

Question 83

When can a Defendant change their Plea from Guilty to Not Guilty?

Answer 83

**Only** if they have **strong evidence** that the **Plea**: * Was made **under duress**; * Was the result of **improper legal advice**; or * **Lacked proper understanding** of the **legal situation**.

Question 84

What is the Procedure for Introducing Hearsay Evidence?

Answer 84

**Step 1A — Duty to Give Notice:** Notice must be given if a Party seeks to use: * The Unavailability Gateway. * The Multiple Hearsay Gateway. * The Legal Proceedings Gateway. * The Interests of Justice Gateway. **Step 1B — Content of the Notice:** The Notice must: * Clearly specify the Hearsay Evidence. * Outline why it believes it is admissible. * Outline how it will prove any facts if disputed. * Attach the Hearsay Evidence if it has not already been Disclosed. **Step 1C — Timing of the Notice:** * For the Prosecution: * Within 20 business days after a Not Guilty Plea in the Magistrates' Court. * Within 10 business days after a Not Guilty Plea in the Crown Court. * For the Defence, as soon as reasonably practicable.

Question 85

What is the Procedure for Opposing Hearsay Evidence?

Answer 85

**Step 1A — Content of Opposition:** The Application must: * Specify any Facts from the Notice that Party contests. * Argue why the Hearsay is inadmissible. * Present any other relevant considerations. **Step 1B — Timing of the Notice:** * Within 10 business days of the lastest event: * A Not Guilty Plea. * Receipt of Notice to introduce Hearsay. * Receipt of the Hearsay Evidence, if Notice was not required.

Question 86

What are the Requirements for Pleading Guilty by Post?

Answer 86

* The **Offence** is **Summary-Only** and was **initiated** by **Summons or Requisition**; and * The **Prosecution** has **Served** a **summary** of its **Evidence** and **information sufficient** to **Sentence** the Defendant.

Question 87

What is the Composition of a Bench in the Magistrates' Court?

Answer 87

**Lay Magistrates:** * At least two, usually three. * Assisted by the Authorised Court Officer. **District Judges:** * Just one.

Question 88

What is the Role of the Authorised Court Officer in the Magistrates' Court?

Answer 88

To provides **legal and procedural assistance** to **Lay Magistrates**.

Question 89

What is the Structure of a Trial in the Magistrates' Court?

Answer 89

* **Legal Arguments**. * **Prosecution Opening Speech**. * **Defence Identification** of **Matters in Issue**. * **Prosecution Evidence**. * **Conclusion of Prosecution Case**. * **Submission of No Case to Answer**. * **Right to Give Evidence** and **Adverse Inferences**. * **Defence Evidence**. * **Prosecution Closing Speech**. * **Defence Closing Speech**. * **Legal Advice** to **Lay Magistrates**'. * **Judicial Retirement**. * **Verdict and *Ratio***.

Question 90

In a Trial in the Magistrates' Court, when can the Prosecution make a Closing Speech?

Answer 90

* The Defendant is **legally represented**. * The Defendant has **introduced Evidence other** than their **own Testimony**.

Question 91

In a Trial in the Magistrates' Court, during the Judicial Retirement Stage, where must Legal Queries be head?

Answer 91

In **Open Court**, with **any additional advice** provided being **disclosed** to both Parties **for comment**.

Question 92

What happens if Two Lay Magistrates reach a Split Decision?

Answer 92

The **Case** must be **Adjourned and Reheard** before a **new Bench**.