Pre-trial matters and disclosure

Question 1

What are pre-trial matters?

Answer 1

Matters which can be resolved pre-trial.

Covers a wide range of issues including, selecting a trial date, applying for a witness summons, resolving legal arguments.

Question 2

When are pre-trial matters considered?

Answer 2

• first hearing
• hearing on a date after the first hearing and before the trial (PTPH)
• on the day of the trial itself before the trial starts

Question 3

Pre-trial matters

Answer 3

MC: usually many if not all ill be resolved at the first hearing

CC: at least one hearing in the CC, PTPH (plea and trial and preparation hearing), to deal with pre-trial matters.

Question 4

Pre-trial matters in the MC

Answer 4

Preparation for effective trial form (PET form) - magistrates’ court case management form: court will expect parties to complete before the first hearing

First hearing, directions for:
- service of documents between the parties (should be needed)
- either resolve there and then any matters of law (rarely) or set out a timetable as to when they will be resolved either at a pre-trial hearing or on the morning of trial.

Question 5

Applying for cary or discharge of an application in the MC

Answer 5

application to vary or discharge can only be made if:
- there has been a material change in circumstances
- something was not brought to the attention of the court when they made the ruling which could justify variation or discharge.

Question 6

In the CC when must the date for a plea and trial preparation hearing be set?

Answer 6

It must set a date for a Plea and Trial preparation hearing within 28 days of the case being sent for trial in the crown court?

Question 7

Sending sheet

Answer 7

When a case is sent for trial in the CC, the MC will send a ‘sending sheet’ which is a notice specifying the offences for which the defendant is being sent and the CC were the defendant will be tried.

Notice should be sent to the defendant and the CC. There is no prescribed form for such a notice.

Question 8

When must evidence be served (CC)?

Answer 8

Evidence must be served within:

• 50 days (if the defendant is in custody); or
• 70 days (if the defendant is on bail)

of the date on which the defendant has been sent for trial in the Crown Court.

Question 9

When must the draft indictment be served?

Answer 9

Must be served by the prosecutor on the CC officer not more than 20 business days after serving prosecution evidence.

Question 10

What are the two parts to the PTPH?

Answer 10

• First plea, and
• Second either ‘sentence’ or ‘trial preparation’ stage

Question 11

What happens in the plea stage of the PTPH?

Answer 11

• If defence wants to make an application to dismiss the charges, they must do so before a plea is taken.
• At plea stage, indictment is put to the defendant and they enter a plea of guilty or not guilty to each count on the indictment - arraignment
• Guilty to all counts: case moves to sentence
• Not guilty on all counts: court proceeds to ‘trial preparation’
• guilty to some counts but not guilty to others: prosecution will consider how it needs to proceed - sentence or trial

Question 12

Unfit to plead

Answer 12

• If after hearing medical evidence a judge decides that a defendant is unfit to plead then no plea is taken
• The court will have to hold a trial with a jury to determine whether the defendant committed the act (but not mens rea) and so trial prep stage will need to take place.

A defendant who is found unfit to plead and a jury finds they committed the act can only be made subject to:
- absolute discharge
- supervision order
- hospital order

Question 13

Dates set at PTPH?

Answer 13

• Subject to question on the PTPH form which is completed before the hearing
• 4 stage dates

1. Trial date (if not already set) will take into account estimated length and witness availability
2. Prosecution evidence: confirm if it has served all of its evidence, if not: what is still left and when it will be served
3. Expert Evidence: directions for service and seeking agreement between experts
4. Witness requirements: defence must inform the prosecution and set out on the form those prosecution witnesses they require to attend court to given evidence and how long it will take to question each witness.
   Defence must also give details of any defence witnesses it intends to call

Question 14

Trial prep stage: standardised directions

Answer 14

Standardised directions will apply for dealing with matters such as:

• Special measures
• Bad character
• Witness summons
• Agreed facts and issues
• Disputed facts and issues
• Defence statement
• Disclosure
• Defendant’s interview
• Hearsay
• Admissibility and legal issues

Question 15

How is prosecution material distinguished?

Answer 15

Used and Unused material

Used material: material the prosecution will rely on at trial to prove its case against a defendant. Used material consists of the case papers and other material that forms part of the evidence on the case: e.g.
- statements from the prosecution witnesses
- defendant’s record of taped interview
- other documentary exhibits such as plans and diagrams that are relevant to proving the case

Unused material: material that is not being relied upon by the prosecution. Unused material will include items such as:
- statements from witnesses that the prosecution is not relying upon at trial to prove its case
- records of previous convictions of prosecution witnesses
- disciplinary findings against police officers

Question 16

Is unused material relevant?

Answer 16

Can be very important for the defence.

Often a case will be based on a number of witnesses whose evidence, if believed, is sufficient to convict the defendant of a criminal charge. In the same case there might be other witnesses who throw doubt on this.

Question 17

Full and proper disclosure

Answer 17

Includes both:
- duty to disclose unused materials
- duty to retain material during a criminal investigation

Question 18

Four stages of disclosure

Answer 18

(1) Investigation stage: duty to record and retain material during the investigation

(2) Initial duty of disclosure on the prosecution

(3) Defence disclosure

(4) The continuing duty on the prosecution to keep disclosure under review

Question 19

Investigation stage

Answer 19

This encompasses the duty to retain and record relevant information. All material which may be relevant to the investigation must be recorded in a durable or retrievable form and retained.

Every investigation will have:

• Officer in charge: responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material
• An investigator: any police officer conducting the investigation
• Disclosure officer: responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor’s request. Therefore must inspect, view, listen to or search all relevant material that has been retained by the investigator and provide a personal declaration that this has been done.
  If there is any doubt should seek advice and assistance of the prosecutor.

Question 20

Material which should be retained and recorded in a criminal investigation

Answer 20

• crime reports
• records from tapes or telephone messages containing descriptions
• witness statements
• 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

Question 21

How long does the duty to retain and record last?

Answer 21

Retain lasts at least until a decision is taken whether to institute proceedings against a suspect for a criminal offence.

Once proceedings commenced, all material must be retained until the accused is acquitted or convicted, or the prosecutor decides not to continue with the case.

Defendant is convicted: material should be retained until released from custody or if no custody or hospital order - six months from date of conviction.

If appeal against conviction is in progress, all material which may be relevant must be retained until the appeal is concluded

Question 22

Unused material to prosecutor

Answer 22

Procedure for prosecutor to be notified of unused material

Crown court: disclosure officer prepares a schedule known as MG6C which lists items of unused material

MC: unused material (NG plea) is listed on a streamlined disclosure certificate

Question 23

Prosecution’s initial duty of disclosure

Answer 23

Prosecutor must:
- 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

• give to the accused a written statement that there is no material of a description mentioned in paragraph a

Prosecution material: defined as material which is P’s possession in connection with the case for the prosecution against the accused or which he has inspected in connection with the case for the prosecution against the accused.

Question 24

What should prosecutors consider in the initial duty of disclosure?

Answer 24

• Use that might be made of the material in cross-examination
• capacity to support: exclusion of evidence, stay of proceedings or abuse of process, incompatibility with ECHT
• capacity to suggest explanation or partial explanation of the accused’s actions
• capacity of the material to have a bearing on scientific medical evidence in the case

Question 24

Time limits for initial disclosure

Answer 24

P will serve IDPC no later than the beginning of the day of the first hearing in accordance with CRIMPR Part 8.

The details must include sufficient information to allow the defendant and the court at this first hearing to take an informed view:
- on plea
- on venue for trial
- for the purposes of case management
- for the purposes of sentencing

Question 25

When does duty to disclose unused material arise?

Answer 25

MC: when defendant pleads not guilty and the case is adjourned for summary trial

CC: when a defendant is sent for trial or where a Voluntary Bill of Indictment has been preferred against a defendant - sufficient evidence should be served ahead or by the PTPH

But should in the interests of justice and fairness disclose material earlier if it would assist with early preparation of their case or at bail hearing.

Question 26

Not all evidence served by PTPH

Answer 26

If there is more prosecution evidence still to serve and/or if initial disclosure has not been complied with, dates will be given by when this must be sone.

Question 27

Ongoing duty of disclosure

Answer 27

Prosecution is under a continuing duty to review disclosure throughout the criminal proceedings.

After initial disclosure, the defence must complete a defence statement which sets out the accused’s defence to the allegation. This defence statement will allow the prosecution to review disclosure in light of which it is told about the nature of the defence.

Question 28

Time limits

Answer 28

Used material (IDPC): no later than beginning of the day of the first hearing

Unused: only when d pleads not guilty and the case is adjourned for summary trial and in the CC when d is sent for trial

Question 29

What is a defence statement?

Answer 29

A defence statement is a written statement which sets out the nature of the accused’s defence.

It should not be confused with a defendant’s proof of evidence (which is privileged).

Note: no duty for defence to serve material which might be helpful to the prosecution; rather, the defence statement is all about setting out with reasonable clarity what the defence case is.

Question 30

Contents of the defence statement

Answer 30

Written statement which:
- sets out the nature of the accused’s defence, including any particular defences on which he intends to rely
- indicates the matter of fact on which he takes issue with the prosecution
- setts out why he takes issue with the prosecution
- sets out the particulars of the matters of fact on which he intends to rely for the purposes of his defence; and
- indicates any point of law which he wishes to take, and any authority on which he intends to rely for that purpose

If discloses an alibi, must give particulars, including:
- name, address, date of birth of any witness the accused believes is able to give evidence in support of the alibi
- information which might be material assistance in identifying or finding any such witness in whose case any of the details mentioned are not known

Question 31

Time limits for defence statements

Answer 31

CC: compulsory, must be served on the prosecution and court within 28 days of the date when the prosecution complies with its duty of initial disclosure
- can be extended but only if the application is made within the time limit and only if the court is satisfied it would not be reasonable to require the defendant give a defence statement within 28 days.

MC: defence statement is not compulsory, but if defendant chooses to serve a defence statement in such a case standard directions in the MC provide that the d must do so within 10 business days (14 days) of prosecution complying with initial duty of disclosure

Note: if do not make a defence statement in MC, defence is unable to make an application for specific disclosure

Question 32

Notice of intention to call defence witnesses

Answer 32

MC: 10 business days

CC: 28 days

of prosecution complying with initial disclosure.

Should identify any witnesses (name, address, dob etc) D intends to call at trial.

Alibi witnesses should be included in the defence statement and so not need to be repeated.

Question 33

Application for specific disclosure

Answer 33

Also known as a section 8 application (criminal procedure and investigations act).

Must have served defence statement and P must have either provided further info or notified there is no further disclosure.

Defence statement must set out issues clearly as a prerequisite to applying under s8.

Application must describe the materials the defendant wants to be disclosed and explain why there is reasonable cause to believe:
- prosecutor has the material
- material should be disclosed

Defendant should ask for a hearing if one is required and explain why it is needed. Prosecution has 10 business days to respond in writing to any such application.

Question 33

Consequences of disclosure failure

Answer 33

disclosure failure can include: failure to serve defence statement, fails to serve within time limits, serves deficient defence statement, relies on a defence or doesn’t include alibi relied on at trial

Consequences (CC):
- jury may draw such adverse inferences as appear proper
- prosecution or co-defendant may comment on such a failure
Note: still able to call the witness, rely on defence etc

Consequences (CC and MC):
- D will not be able to make an application for specific disclosure
- P will not have opportunity to review disclosure in light of the issues

Question 34

Consequences of disclosure failure by the prosecution

Answer 34

• Defence could bring an application to stay the indictment on the ground that to continue the case would be an abuse of process
• Could result in a conviction being quashed on appeal due to being unsafe
• Likely result in delay and the imposition of wasted costs for unnecessary hearings or a refusal to extend custody time limits
• Could also potentially result in the exclusion of evidence in the case due to unfairness

before making an applicaiton should write to prosecution requesting information

Question 35

Third-party disclosure

Answer 35

Relates to materials held by third parties (local authorities, health and education, financial institutions)

No duty of disclosure under CPIA but the materials might be considered capable of undermining the prosecution case or of assisting the case for the accused - then p should take steps to obtain it.

Should be informed of the investigation and a request should be made for the material in questions to be retained.

If denied: can seek summons for production of the material.

Question 36

Public interest immunity

Answer 36

Issue where p has duty to disclose but p does not wish to believing that to do so would give rise to a real risk of serious prejudice to an important public interest.

P cannot simply hold this material back and keep quiet.
Must apply to the judge for non-disclosure in the public interest.
Judge will balance this to ensure defendant can still have a fair trial.

Sensitive material must be recorded and included in a schedule which states:
- why the material is sensitive and to what degree
- the consequences of disclosing the material to the defence
- the relevance of the material to the issues in the case
- implications for continuing the prosecution if the material is ordered to be disclosed
- whether it is possible to make disclosure without compromising its sensitivity.

Question 37

When are applications to exclude evidence or introduce otherwise inadmissible evidence made?

Answer 37

These applications can be dealt with at:

• the PTPH (rare)
• at a hearing on a day at some point between PTPH and trial (less common)
• on the day of trial before the trial starts (most common)

Question 38

What are special measures?

Answer 38

The arrangements put in place to assist witnesses in giving evidence before a court.

Purpose is to allow children, vulnerable and those in fear or distress about testifying - to testify in an environment that best enables them to give their evidence e.g. using a screen.

Question 39

Types of special measures

Answer 39

• Use of screens
• Live TV link
• Giving evidence in private
• Removing wigs and gowns by barristers and judges
• Video recording of evidence in chief
• Pre-recording cross examination and re-examination

Not available to witnesses eligible due to being put in fear:
- Questioning of a witness through and intermediary
- Aids to communication

Question 40

Who is eligible for special measures?

Answer 40

• All witnesses under 18 at the time of the trial
• Witnesses who have a mental disorder or significant impairment of intelligence and social functioning, or a physical disability/disorder, where the court considers that due to any such matter the quality of their evidence is likely to be diminished
• Witnesses who are in fear or distress about giving evidence and the court is satisfied that the quality of their evidence will be diminished because of this
• All adult complainants of sexual offences
• All adult complainants in certain offences under the Modern Slavery Act
• All witnesses in a case involving a ‘relevant offence’, namely serious offences including homicide or firearms or knives

Question 41

Other measures to protect witnesses

Answer 41

• Witness anonymity orders
• automatic anonymity of complaints in sex cases
• Prohibition of cross-examination by defendants in person of complainants in sex cases and of child witnesses in certain cases involving violent and sexual offences
• Restricting the reporting of witnesses’ identity

Question 42

Application for a live link

Answer 42

Live link:
Court must be satisfied it is in the interests of justice and a live link would improve the quality of accused’s evidence because either:

• the accused is under 18 and the accused’s ability to participate effectively as a witness giving oral evidence is compromised by their level of intellectual ability or social functioning
• the accused is 18 or over and the accused is unable to participate effectively as a witness giving oral evidence because the accused has a mental disorder or a ‘significant impairment of intelligence and social function’

Question 43

Vulnerable defendant - intermediary

Answer 43

Only defendants with comprehension or communication difficulties will be entitled to an intermediary.

In practice, witnesses are questioned directly and the intermediary will only step in if there is some kind of miscommunication.

Question 44

Test for witness summons

Answer 44

(1) The witness is likely to be able to give evidence (or produce a material document); and

(2) it is in the interests of justice to issue a summons

If witness does not attend without an ‘just excuse’ then the courts can issue a warrant for the arrest of the witness.
It is also punishable as a contempt of court.

Question 45

Changing plea: not guilty to guilty

Answer 45

A defendant who has pleaded guilty can, at any time ask through their Counsel that the ‘indictment be put again’.

Clerk reads indictment and defendant can plead guilty.

Usually happens before trial but can sometimes happen in the middle.

Question 46

Changing plea: guilty to not guilty

Answer 46

More difficult. Can at any time before sentencing apply to court for leave to change their plea from guilty to not guilty. If the defendant has been properly represented a judge is likely to reject an application to change plea.

Judges exercise discretion sparingly and is always a matter for the court. Most common scenarios are:
- Defence can show that the prosecution has no evidence of an essential ingredient of the offence
- Defendant was improperly placed under undue pressure to plead guilty or was materially misadvised by D’s legal team

theme: criticising D’s counsel - usually counsel will withdraw and D will get fresh counsel
- both also require D to waive legal privilege

Question 47

Summary only - guilty plea

Answer 47

If defendant pleads guilty the court will proceed to sentence. Sentence will often be passed immediately but can be adjourned for further into.

Sentence most used is a fine.

Maximum sentence for a MC is 6 months (12 for 2 either way offences) imprisonment.

Question 48

Summary only - not guilt plea

Answer 48

If defendant pleads not guilty the court will set a trial date and do case management to ensure the trial is effective on that date. Includes completing PET form (preparation for effective trial):
- defendant’s and legal representative’s contact details
- names, numbers, types of witnesses and which party requires their attendance at court;
- estimated length of trial
- identification of trial issues
- advances warning whether any other applications are to be made: special measures, bad character, hearsay
- whether any prosecution statements can be read
- if any special arrangements need to be made for anyone attending the trial
- that the defendant advocate has advised D of credit for early guilty plea and trial will go ahead in D’s absence if D fails to attend on trial date

Question 49

Purpose of PET

Answer 49

Setting out what the issues at trial will be and which witnesses are required to give live evidence allows the court to actively manage the case by ensuring that only those witnesses whom the defence want to challenge on their evidence come to court.

Court will set timetable for trial and estimate of how long it will take.

Usually MC issues standard directions for trial prep.

Question 49

What directions are issued for a summary only trial?

Answer 49

Usually:
- bad character evidence
- hearsay
- special measures
- disclosure
- expert evidence
- editing transcripts of interviews
- serving certificates of readiness for trial

MC also has a case progression officer to monitor directions.

Both CPS and defence advocates must indicate a nominated person in respective offices who will be responsible for complying with the directions.

Question 50

Summary only: pre-trial hearings

Answer 50

Court can conduct pre-trial hearings at which pre-trial rulings can be made.

Cover matters such as admissibility of evidence and fitness to plead.

Rulings can be made on the application of the defence or prosecution, or of the court’s own motion.

Pre-trial ruling is binding until case is disposed of by:
- conviction or acquittal of the defendant
- prosecution decision not to proceed
- dismissal of the case

Court can discharge or vary a pre-trial ruling id it is in teh interests of justice to do so.
Can apply to have pre-trial rulings changed if there has been a material change of circumstances.

Question 51

Pleading guilty by post

Answer 51

In summary only cases where:
- matter had been commenced by summons or requisition
- prosecutor has served a summary of the evidence on which the prosecution case is based; and
- prosecutor has served info relevant to sentence

Defendant can complete the necessary documentation and plead guilty in writing without the need to attend court at all.

Court may accept such a guilty plea and pass sentence in defendant’s absence.

• usually for offences such as speeding or driving without insurance.