Pre-trial criminal litigation Flashcards
What is adjournment?
In any case where the D is presented to court, and the court cannot conclude the case in one hearing, the case will be adjourned.
What is remand?
When a D is sent away and told to come back another day, it is called a remand. A D on remand is obliged to come back to Court to continue with the case. The remand may be served in custody or on bail.
What does S4 Bail Act 1976 state?
S4 Bail Act 1976 states that the Court must presume that a D is entitled to bail, it is only refused if an objection is properly made out.
Who does the right to bail not apply to?
-those appealing their conviction or sentence; or
-to Ds being committed for sentence from the magistrates’ to the Crown Court
What are the ‘big three’ grounds on which the prosecution can object to bail in relation to indictable offences?
The big three grounds are set out in Bail Act 1976, Schedule 1, para 2. If the Dis released on bail there are ‘substantial grounds’ for believing they would either:
a) failed to attend a subsequent hearing
b) commit further offences on bail
c) interfere with witnesses or otherwise obstruct the course of justice
What are the common trio of grounds that are widely applicable for why a D need not be granted bail?
After the main three grounds, the next most common trio of grounds that are widely applicable are:
a) a remand in custody would be for the D’s own protection
b) Court has insufficient information to deal with the issue of bail
c) the D is already serving a sentence in custody
What factors are mandatory considerations for the main three grounds of objecting to bail?
These factors are mandatory considerations for the main three grounds:
a) nature and seriousness of the offence and the likely disposal
b) the character of the D, D’s previous convictions, associations and community ties
c) D’s bail record in the past
d) the strength of the evidence
What must conditions of bail be?
The conditions of bail must be relevant, proportionate and enforceable and comply with Article 5 ECHR.
What are common bail conditions?
-Residence at a given address
-Curfew
-Reporting to a local police station at given times
-Surety
-Security
-Restriction on where a D may go/have contact with during bail
-Electronic monitoring (tagging)
-Bail hostels
-Surrender of passport
What happens if a D breaches their bail conditions?
They will be arrested under the Bail Act 1976, s7(3) and are at risk of either having the bail conditions tightened or being remanded in custody.
If a D is found in breach of a condition, the D is not actually committing an offence-there is no offence of ‘breaching a bail condition’.
Do police officers have the power to arrest those who are in breach of a bail condition, or are about to be so?
Bail Act S7 provides that there is a power of arrest allowing officers to arrest those who are in breach, or who are about to be so.
As there is no offence of breaching bail, the D who is arrested is brought before a magistrates’ court to determine whether they should have bail going forward.
What is the only bail breach which is a criminal offence?
Failing to surrender to custody without reasonable cause (‘FTS’).
This is an offence punishable summarily by up to three months imprisonment and/or an unlimited fine or 12 months and/or an unlimited fine on indictment.
What is the general rule regarding bail attempts?
The general rule is that a D who is having a trial in the magistrates can have two attempts at getting bail at the magistrates and one attempt on appeal to the Crown Court.
What happens if bail is refused in the magistrates’ court?
D can repeat the same application and have a second attempt at getting bail at the next hearing.
Thereafter, D has either to appeal the decision to the Crown Court or find fresh points to make (finding a surety which wasn’t available before).
What happens if bail is refused in the Crown Court?
D has one attempt at bail at the first hearing (unless charged with murder) and a further application as of right in the Crown Court.
What is the custody time limits for trial in the magistrates’ court of summary only or either-way offences?
56 days.
What is the custody time limit for trial in the Crown Court of indictable only or either-way offences?
182 days less any days spent in custody prior to the case being sent to the Crown Court.
Outline the process of first and onward remand in the magistrates’ court.
First appearance-D remanded in custody.
Second appearance-must be within 8 days of first appearance, D can make another bail application.
Onward remand-must be formally remanded into custody every 28 days until trial.
Trial-must be within 56 days of the first appearance unless prosecution successfully apply to extend.
Where do all adults D have their first hearing?
Magistrates’ court.
What happens if the D pleads guilty to a summary-only offence?
If the D pleads guilty, the court will proceed to sentence. Sentence will often be passed immediately but can be adjourned.
What happens if the D pleads not guilty to a summary-only offence?
The Court will set a trial date and do any necessary case management to ensure that the trial is effective on that date.
This includes completing the case progression form-‘Preparation for Effective Trial’ (PET).
What can a D do at a plea before venue for an either-way offence?
-Indicate guilty
-Indicate not guilty
-Give no indication (also treated as not guilty)
What happens if the D pleads guilty to an either-way offence?
The Court will treat a guilty plea as a formal plea and proceed to sentence.
What happens if the D pleads not guilty to an either-way offence?
If a D indicates a not guilty plea then the Court moves on to consider where the trial will be held-known as allocation.
What is an indication of sentence and what is it confined to?
The D is able to ask for an indication of sentence if they were to plead guilty instead. The Court has discretion as to whether they give an indication and it is confined to telling the defendant if the sentence would be custodial or non-custodial.
What are the advantages of electing trial on indictment in the Crown Court?
-the acquittal rate is higher
-the separate tribunals of law and fact in the Crown Court can be advantageous to the D
-it is not always a case that a Crown Court judge will sentence more harshly than a magistrates’ court
What are the advantages of a summary trial in the magistrates’ court?
-less formal
-waiting time before trial date is much shorter
-quicker trial
-less expensive
-no defence statement
-reasons provided for decision
-lesser sentencing powers
What is used and unused material?
Used material is the material the prosecution will rely upon at trial to prove its case against a D. It is from these materials that Ds will know what the cases against them are.
Unused material is material not being relied upon by the prosecution.
What are the four stages of disclosure?
- The investigative stage
- The initial duty of disclosure on the prosecution
- Defence disclosure
- The continuing duty on the prosecution to keep disclosure under review
When does the duty to retain material last?
The duty to retain material lasts at least until a decision is taken whether to institute proceedings against a suspect for a criminal offence.
Where proceedings are commenced, how long must material be retained for?
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.
Where the D is convicted, how long must material be retained for?
Where the D is convicted, the material must be retained at least until the D is released from custody or in any other case, until 6 months from the date of conviction.
What is the initial duty of disclosure on the prosecution?
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,
(b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).
What is the time limit for initial prosecution disclosure?
The prosecution will serve initial details of the prosecution case no later than the beginning of the day of the first hearing in accordance with CrimPR Part 8.
What is a defence statement?
A defence statement is a written statement which sets out the nature of the accused’s defence with reasonable clarity and set out:
-the nature of the accused’s defence (alibi)
-those matters of fact on which D takes issue with the prosecution
-why D takes issue
-any points of law D wishes to take including authority in support
-particulars of alibi witness
When must a D serve a defence statement by in the Crown Court?
A D must serve a defence statement in the Crown Court within 28 days of the date when the prosecution complies with its duty of initial disclosure.
When must a D serve a defence statement by in the magistrates’ court?
A defence statement is not compulsory in the magistrates’ court but if the D chooses to do so, the D must do so within 10 business days of the prosecution complying with the initial duty of disclosure.
When must the Notice of Intention to Call Defence Witnesses be given?
It must be given within 10 business days (magistrates) and 28 days (Crown Court) of the prosecution complying or purporting to comply with initial disclosure.
What are the consequences of a D failing to serve a defence statement in time/deficient defence statement?
S11 CPIA-the jury may draw such adverse inferences as appear proper against the D for such a failure although a D cannot be convicted solely or mainly on the basis of such an adverse inference.
-Section 6E(2) CPIA provides that a judge can warn the D at the PTPH or other pre-trial hearing that failure to comply with the relevant provisions may lead to comment being made or adverse inferences being drawn.
-If a defence statement is not served in the magistrates’ court or the Crown Court the D will not be able to make an application for specific disclosure under S8 CPIA.
What is the continuing duty on the prosecution to keep disclosure under review?
S7A(2) CPIA 1996 provides that there is a duty on prosecutors to keep disclosure under review throughout the case and in particular when a defence statement is served.
This continuing duty means the prosecutor must keep under review whether there is any material that should be disclosed, even after it has carried out a review following service of the defence statement.
When can a D make an application for specific disclosure?
Under S8 CPIA the defence can make an application to the Court where it has reasonable cause to believe that there is prosecution material which should have disclosed.
In order to make an application for specific disclosure, the D must have served a defence statement and the prosecution must have either provided further disclosure in light of that Defence Statement or notified the D there is further disclosure to make (s7A(5) CPIA).
How long does the prosecution have to respond to an application for specific disclosure?
10 business days.
What are the standard directions when the magistrates’ court sends the case for trial to the Crown Court?
-It must set a date for a PTPH within 28 days
-The magistrates’ court will complete a sending sheet
-Evidence must be served within:
-50 days (if the D is in custody)
-70 days (if the D is on bail)
of the date on which the D has been sent for trial in the Crown Court.
-Evidence is uploaded on to the Crown Court Digital Case System
-Draft indictment must be served by the prosecutor on the Crown Court officer not more than 20 business days after serving prosecution evidence
What is a plea and trial preparation hearing (PTPH)?
The PTPH (plea and trial preparation hearing) is the main, and often only, pre-trial Crown Court hearing.
Where a trial is anticipated, the parties are required to fill in a PTPH form in advance of the hearing as the judge uses it when the hearing is conducted.
What are the 4 stage dates that are given at a PTPH?
Trial date
Prosecution evidence
Expert evidence
Witness requirements
When can a change of plea place?
To guilty: can take place at any time before the jury return their verdict.
To not guilty: can take place at any time before the D is sentenced.
When does the D need to apply to Court for leave to change their plea?
D must apply to the Court for leave to change their plea from guilty to not guilty, but judges should exercise their discretion judicially and sparingly.
