Pre-trial matters II

Question 1

When can further applications be made?

Answer 1

1. In either the Crown Court of Magistrates court
2. At the PTPH or other pre-trial hearing; or
3. on the day of the trial, before the trial starts or at some convenient point during the trial.

Question 2

What are examples of further applications?

Answer 2

Evidence applications

Special measures

Vulnerable defendants

Witness summons & warrants

Application to change plea.

Question 3

What are applications to exclude evidence or introduce otherwise inadmissible evidence?

Answer 3

The defence may wish to exclude evidence that the prosecution proposes to adduce using s.78 PACE 1984; either party may want to introduce otherwise inadmissible evidence such as bad character or hearsay.

Question 4

When can applications to exclude evidence or introduce otherwise inadmissible evidence be dealt with?

Answer 4

*The PTPH (rare as the judge would not usually have time)

*At a hearing on a day at some point between PTPH and trial (less common); or

*On the day of trial before the trial starts (most common)

Question 5

What are special measures and what is the purpose of such measures?

Answer 5

Special measures are the arrangements put in place to assist witnesses in giving evidence before the court. The purpose behind special measures is to allow children, the vulnerable and those in fear or distress about testifying, to testify in an environment that best enables them to give their evidence. The court must consider which measures will maximise the quality of the evidence.

Question 6

What are the range of special measures available?

Answer 6

*The use of screens

*Live TV Link

*Giving evidence in private (public gallery cleared)

*Removing wigs and gowns of barristers and judges

*Video recording of evidence in chief

*Pre-recording cross-examination and re-examination

*Questioning of a witness through an intermediary

*Aids to communication

Question 7

What types of witnesses cannot be assisted by an intermediary or have aids to communication?

Answer 7

Testifying through an intermediary and aids to communication are not available for witnesses who are eligible for special measures due to being in fear but the other special measures will be available for such witnesses.

Question 8

What is the eligibility for special measures?

Answer 8

*All witnesses under the age of 18 are automatically eligible.

*Witnesses who have a mental disorder, or a significant impairment of intelligence and social functioning, or a physical disability/disorder are eligible 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 2015 (including forced labour and human trafficking).

*All witnesses in a case involving a `relevant offence’ namely serious offences, including homicide or involving firearms or knives.

Question 9

What are the additional types of special measures?

Answer 9

*Witness Anonymity Orders

*Automatic anonymity of complainants 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 10

What is a further application for vulnerable defendants?

Answer 10

In certain circumstances the defence can apply for measures to assist particularly vulnerable defendants in order to facilitate their effective participating in the trial process.

The court must be satisfied that it would be in the interests of justice and the `live link’ would improve the quality of accused’s evidence because either:

*The accused is under 18; or

*The accused is 18 or over has a mental disorder or a `significant impairment of intelligence and social function’.

Question 11

In addition to a `live link’ for vulnerable defendant’s what is another measure that can be taken?

Answer 11

The court has the power to direct that a vulnerable defendant be assisted by an intermediary to help the defendant understand what is going on. But only those defendants most in need, such as those with comprehension or communication difficulties.

*An intermediary owe their duty to the court

*Intermediaries can also be used to assist witnesses who are very young or have learning difficulties

*Before questioning begins, the intermediary can assist the judge and counsel to understand what types of questions are likely to confuse the witness.

*When the witness is being questioned, the intermediary will usually stand near to the witness and can help by explaining the questions and answers.

*In practice, advocates will usually question the witness directly and the intermediary will only step in if there is some kind of miscommunication.

Question 12

What is the further application for witness summons and warrants?

Answer 12

Some witnesses are not keen to be witnesses and try to avoid attending court. In those cases, either the prosecution or defence can ask the court to issue a witness summons.

*The summons can either be for the person to attend on the day of trial to give live evidence, or for the witness to produce a document.

*Both the Crown Court and magistrates court has the power to issue a summons.

Question 13

What is the test for a party seeking the summons?

Answer 13

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

*It is in the interests of justice to witness a summons

Question 14

If a witness disobeys a witness summons what are the consequences?

Answer 14

If a witness disobeys a witness summons and does not attend without a `just excuse’ then the courts can issue a warrant for the arrest of the witness. Failure to act as required to do so by the summons can be punishable as a contempt of court.

Question 15

When can a defendant change their plea from not guilty to guilty and what is the process?

Answer 15

*The clerk will read the indictment and the defendant can plead guilty.

*This usually happens before trial but from time to time a defendant might choose to do it midway through the trial.

*You need the leave of the judge/magistrates to have the indictment/charge sheet put again, but asking that it be put again is sufficient.

*If the trial is taking place in the Crown Court and the jury have already been put in charge of the case, they should be directed to return a formal verdict of guilty.

Question 16

When can an application be made to change a plea from guilty to not guilty and what is the requirement?

Answer 16

Defendants who plead guilty can, at any time before they are sentenced, apply to the court for leave to change their plea from guilty to not guilty, but judges should exercise their discretion judicially and sparingly, although even where the plea was unequivocal the discretion to allow it to be changed still exists.

Where a defendant has been represented properly a court would invariably reject the application to vacate their guilty plea and allow them to enter a fresh not guilty plea.

Question 17

What does represented properly mean?

Answer 17

*proper advice has been given to the defendant;

*no undue pressure has been exerted on the defendant; and

*the defendant’s plea was clearly unequivocal.

Question 18

Why will an application to change a plea from guilty to not guilty lead to waiving privilege?

Answer 18

An application of this nature will frequently feature a defendant waiving privilege to establish matters such as the nature of the advice they acted upon.

Question 19

What are the two most common scenarios where the judge will allow the defendant to change the plea from guilty to not guilty?

Answer 19

The defence can show that the prosecution has no evidence of an essential ingredient of the offence;

or

The defendant was improperly placed under undue pressure to plead guilty or was materially misadvised by D’s legal team.

Question 20

Would counsel need to drop the case if the defendant changed their plea from guilty to not guilty?

Answer 20

Both of those scenarios are likely to result in criticism of Counsel who appeared when the defendant pleaded guilty and perhaps the solicitor too. It is therefore usual practice that Counsel or both Counsel and the solicitor withdraw from the case and the defendant seeks fresh representation. Where that happens, defendants may want to give evidence of their conference with Counsel or seek that Counsel explain how and why they advised the defendant to plead guilty. Both require the defendant to waive legal privilege.