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(FLK2) Criminal Litigation > Pre-Trial Criminal Litigation > Flashcards

Pre-Trial Criminal Litigation Flashcards

1
Q

Who makes the Decision to Charge?

A

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.

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2
Q

What is a Crown Prosecutor?

A

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

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3
Q

What are the Three Ways of Commencing Criminal Proceedings?

A
  • Arrest and Charge;
  • Written Charge and Requisition; and
  • Laying of Information.
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4
Q

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

A

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.
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5
Q

When can Pre-Charge Police Bail be Imposed?

A
  • 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.

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6
Q

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

A

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.

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7
Q

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

A
  • When the Crown Prosecutor serves an allegation to a Magistrates’ Court; which then
  • Issues a Summons or Warrant requiring the Accused to attend Court.
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8
Q

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

A

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.
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9
Q

Is there a Time Limit on Charging someone?

A

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

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10
Q

Once Charged, how does a Defendant secure Public Funding?

A

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

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11
Q

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

A

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.

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12
Q

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

A

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.

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13
Q

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

A
  • 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.
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14
Q

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

A
  • 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.
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15
Q

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

A

The next available court.

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16
Q

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

A

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.

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17
Q

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

A

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.

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18
Q

What are the Main Issues the First Hearing will address?

A

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.
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19
Q

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

A

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.
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20
Q

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

A
  • 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.

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21
Q

If the Magistrates’ Court retains Jurisdiction, what follows?

A

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.
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22
Q

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

A

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.

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23
Q

What are the Advantages of Electing the Crown Court?

A
  • 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.
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24
Q

What are the Advantages of Electing the County Court?

A
  • 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.
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25
Q

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

A
  • 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;
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26
Q

How may a Defendant in an Adjourned case be Remanded?

A

Either in custody or on bail.

The Prosecution may choose to apply for remand in custody, after which the Defence must apply for bail.

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27
Q

What is the Right to Bail?

A

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.

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28
Q

When does the Right to Bail disapply?

A

When the Applicant is:

  • Appealing a Conviction or Sentence; or
  • Being committed to the Crown Court for Sentencing.

Bail may still be granted in both of these cases; the presumption simply does not apply.

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29
Q

On whats grounds may the Prosecution object to Bail?

A

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.

‘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.

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30
Q

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

A
  • 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.
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31
Q

Which Grounds are Available to which Type of Offence?

A

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.
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32
Q

Which Conditions are most commonly attached to Bail?

A
  • 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).
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33
Q

What happens if the Defendant breaches a Bail Condition?

A
  • 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.
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34
Q

What is the Procedure for Applying for Bail?

A

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
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35
Q

What is the Procedure for Challenging the Grant of Bail?

A
  • 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.

The same procedure applies in the Crown Court.

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36
Q

What are the Custody Time Limits?

A

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.

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.

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37
Q

What are Pre-Trial Matters?

A

Any matter that can be resolved Pre-Trial at the First Hearing, including the Trial Date and case management issues.

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.

38
Q

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

A

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.

In any case, the relevant Party must apply to the have the decision varied or discharged.

39
Q

What is the Plea and Trial Preparation Hearing (“PTPH”)?

A

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

40
Q

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

A
  • 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.

Evidence is uploaded on to the Crown Court Digital Case System

41
Q

What is a Sending Sheet?

A

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

42
Q

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

A

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

43
Q

What is the Primary Document in the Second Hearing?

A
  • In the Crown Court, the PTPH Form.
  • In the Magistrates’ Court, the PET Form.

These Forms are completed either before or during the Second Hearing.

44
Q

What is addressed in the PTPH Form?

A
  • 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.
45
Q

What is the Structure of a PTPH?

A
  • 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.

If the Defence want to apply to dismiss the charges, they must do so before a plea is taken.

46
Q

What is addressed in the PET Form?

A
  • 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.
47
Q

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

A

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.
48
Q

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

A

The Court refuses to take a Plea and simply moves on to Trial Preparation.

A Defendant Unfit to Plead found Guilty can only be Sentenced to:
* An Absolute Discharge;
* A Supervision Order; or
* A Hospital Order.

49
Q

What happens at the Trial Preparation Stage?

A
  • 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.
50
Q

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

A
  • 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.
51
Q

What are the Four Stages of Disclosure?

A
  1. Investigation, where the Prosecution must record and retain all relevant material.
  2. Initial Prosecution Dislcosure, where the Prosecution must disclose Used and Unused Material.
  3. Defence Disclosure, where the Defence must serve its Defence Statement.
  4. Ongoing Prosecution Dislcosure, lasting until Proceedings conclude.

The Duty to Retain lasts until the Defendant is convicted or acquitted, including appeal.

52
Q

What is the Prosecution’s Evidentiary Disclosure obligation?

A

Full and proper Disclosure.

53
Q

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

A
  • 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.
54
Q

How must an Investigator conduct their work?

A

They must:

  • Exercise objectivity and fairness; and
  • Follow all reasonable lines of enquiry, whether these point towards or away from the Suspect.
55
Q

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

A
  • Ask directly for the Material; and if unsuccessful,
  • Seek a Summons.
56
Q

How must a Disclosure Officer conduct their work?

A

They must:

  • Examine all retained material; and
  • Provide a personal declaration as to having done so.

If they doubt whether any material is disclosable, they must seek advice from the Prosecutor.

57
Q

When does the Duty to Retain Material end?

A
  • 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.
58
Q

How does the Disclosue Officer report to the Prosecution?

A
  • 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.

If Sensitive Material is involved, that will be listed in a Sensitive Material Schedule, or if extremely sensitive, revelated to the Prosecutor separately.

59
Q

What must be contained in the Sensitive Material Schedule?

A

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.
60
Q

What is Sensitive Material?

A

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

61
Q

What is the Prosecution’s Initial Duty of Disclosure?

A
  • 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.
62
Q

What constitutes ‘Prosecution Material’?

A

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

63
Q

What must the Prosecution consider when deciding what to Disclose?

A
  • 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.

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.

64
Q

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

A

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.
65
Q

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

A

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 .

Either way, Prosecutors should disclose in sufficient time to ensure the Trial is effective.

66
Q

What is a Defence Statement?

A

A written statement outlining in reasonable detail the nature of the Defendant’s defence.

This need not necessarily include any information that could help the Prosecution, a major difference in the Defence’s disclosure obligations.

67
Q

What must a Defence Statement contain?

A
  • 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.
68
Q

What is the Deadline for Serving the Defence Statement?

A

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.

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.

69
Q

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

A

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.
70
Q

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

A
  • 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).

If a Defence Statement is filed late in the Magistrates’ Court, only then can any Adverse Inferences be drawn.

71
Q

What is the Purpose of an Application for Specific Disclosure?

A

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.

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.

72
Q

What must an Application for Specific Disclosure contain?

A

The relevant Prosecution Material and why there is reasonable cause to believe:

  • The Prosecutor has it; and
  • That it should have been disclosed.
73
Q

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

A

The Court and the Prosecution.

74
Q

What renders an Application for Specific Disclosure Weak?

A

Failure to correlate the Application with any issues raised in the Defence Statement.

Hence, why they should be comprehensive.

Such Applications will be automatically rejected.

75
Q

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

A

10 business days.

76
Q

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

A
  • Imposition of costs.
  • Stay of Proceedings.
  • Refusal to extend custody.
  • Quashing of Conviction on Appeal.
  • Exclusion of evidence due to unfairness.
77
Q

What is Public Interest Immunity?

A

Prosecution Material protected from disclosure because its release would give rise to a real risk of serious prejudice to an important public interest.

In such cases, the Prosecution should make a Public Interest Immunity Application.

78
Q

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

A

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

79
Q

What are the Special Measures available to the Court?

A
  • Screens.
  • Live Link.
  • Vacation of the Public.
  • Intermediary Assistance.
  • Pre-Recording of Evidence.
  • Communication Assistance.
  • Removal of Wigs and Gowns.
80
Q

Who is Eligible to Receive Special Measures?

A
  • 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.
81
Q

What is the Test for Issuing a Witness Summons?

A
  • Is the Witness is likely to provide material Evidence; and
  • Is it in the interests of justice to issue the Summons.

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.

82
Q

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

A

At any time before the Jury’s Verdict.

83
Q

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

A

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.
84
Q

What is the Procedure for Introducing Hearsay Evidence?

A

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.
85
Q

What is the Procedure for Opposing Hearsay Evidence?

A

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.
86
Q

What are the Requirements for Pleading Guilty by Post?

A
  • 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.
87
Q

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

A

Lay Magistrates:

  • At least two, usually three.
  • Assisted by the Authorised Court Officer.

District Judges:

  • Just one.
88
Q

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

A

To provides legal and procedural assistance to Lay Magistrates.

89
Q

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

A
  • 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.
90
Q

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

A
  • The Defendant is legally represented.
  • The Defendant has introduced Evidence other than their own Testimony.
91
Q

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

A

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

92
Q

What happens if Two Lay Magistrates reach a Split Decision?

A

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

(FLK2) Criminal Litigation (9 decks)

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