The law, procedure and processes involved in pre-trial considerations Flashcards
Court’s standard directions:
(lots of them)
- Not more than 20 days after a not guilty plea has been entered, the prosecution must serve notice of any intention to introduce a defendant’s bad character or to introduce hearsay evidence.
- The defence must serve a defence statement, if one is to be served, within 10 business days of the prosecution complying with initial disclosure.
- The defence must notify the prosecution and the court that a witness is required to attend court to give live evidence not more than 5 business days after service of the witness statement.
- Not more than 10 business days after service of a notice to introduce bad character evidence or hearsay evidence, the defence must indicate if the application is to be opposed.
- If the defence intend to rely on hearsay evidence, they must give notice of such intention as soon as reasonably practicable.
- The defence must make any application to introduce the bad character of a prosecution
witness not more than 10 business days after prosecution disclosure. - The defence must serve any statements of its own where a witness is not to be called to give live evidence at least 10 business days before trial.
- Any point of law must be identified with skeleton arguments at least 10 business days before trial.
- Both parties must serve a certificate of readiness 10 business days before trial.
What are possible sanctions if the standard directions are not complied with?
Rule 3.5 (6) sets out the possible sanctions if these directions are not complied with.
If a party fails to comply with any rule or a direction, the court may:
- Fix, postpone, bring forward, extend, cancel or adjourn a hearing;
- Exercise its powers to make a costs order; and
- Impose such other sanction as may be appropriate.
The additional notes to Rule 3.5(6) state that sanctions for non-compliance may also result in the following consequences:
- The court may refuse to allow that party to introduce evidence;
- Evidence that the party wants to introduce may not be admissible; or
- The court may draw adverse inferences from the late introduction of an issue or evidence
An example of where this professional conduct point may arise:
‘You only act for clients on instructions from the client, or someone properly authorised to provide instructions on their behalf. If you have reason to suspect that the instructions do not represent your client’s wishes, you do not act unless you have satisfied yourself that they do.’
This situation may arise where you receive a telephone call advising you that a potential client has been arrested; perhaps from the client’s friend or relative meaning you are being instructed to act by someone other than the client.
What is some guidance for:
‘This situation may arise where you receive a telephone call advising you that a potential client has been arrested; perhaps from the client’s friend or relative meaning you are being instructed to act by someone other than the client.’
guidance in PACE specifically states that ‘access to a solicitor cannot be delayed on the grounds that they might advise the detainee not to answer questions or the solicitor was initially asked to attend the police station by someone else
(emphasis added).
In the latter case, the detainee must be told the solicitor has come to the police station at another’s request and must be asked to sign the custody record to signify whether they want to see the solicitor.’
- Therefore, in these circumstances you should contact the police station yourself and advise them that you have been contacted. The police should be asked to speak to the suspect and confirm whether they wish to instruct you. If they do, the police will contact the (‘DSCC’) (which manages and allocates police station duty solicitor work) and, assuming your firm is contracted to undertake publicly funded work, the DSCC will contact you to instruct you to attend and advise the client.
What if D tells you he is guilty but wishes to deny involvement?
Remember that this is an adversarial system and it is for the prosecution to prove the guilt of the defendant not for them to prove their innocence.
D entering a not guilty plea is NOT in itself misleading the court.
The defendant is perfectly within their rights to sit back and wait for the prosecution to do just that. It may well be that the prosecution is unable to prove a vital element of the offence with which the defendant is charged.
Provided the defendant does nothing to actually maintain their innocence your position as their solicitor is not in jeopardy.
You are not misleading the court as you are not allowing them to put forward false evidence.
If, however, you conducted the case in any way as to suggest they had not committed the crime then you would be misleading the court; for example, by suggesting to a prosecution witness that they were mistaken in their identification of the defendant (when clearly they were not)
When does the right to bail not apply?
The right to bail does not apply to:
(a) Those appealing their conviction or sentence; or
(b) To defendants being committed for sentence from the Magistrates’ Court to the Crown Court.
Bail can be granted in both these cases; it is simply that the presumption does not apply.
Grounds the prosecution can object to bail - indictable offences
The test, set out in the Bail Act 1976, Schedule 1, para 2, is whether, if the defendant is released on bail, there are ‘substantial grounds’ for believing that the defendant would either:
(a) Fail to attend a subsequent hearing (failure to surrender to custody);
(b) Commit further offences on bail; and/or
(c) Interfere with witnesses, or otherwise obstruct the course of justice eg witness intimidation or destruction of evidence
Grounds the prosecution can object to bail - indictable offences - how to interpret ‘substantial grounds for believing’
It is not for the court to conclude that the defendant would behave in the way specified in the ground, or even that D’s behaviour would be more likely than not to include the behaviour in the ground. It is not enough for the judge simply to have a subjective perception of one or more of these three risks.
It is only necessary to show that the fears of the behaviour happening have substance and merit.
Grounds the prosecution can object to bail - indictable offences - how to interpret ‘no real prospect’
The final filter is that bail should not be removed under one of these grounds if the defendant is charged with an offence (or offences) where there are ‘no real prospects’ of the defendant receiving a custodial sentence.
E.G
Theft is an indictable offence, and so, strictly speaking, even stealing a banana is indictable. If there is no real prospect of the sentence for the offence being custodial, then the ground of
objection cannot succeed.
Grounds the prosecution can object to bail - Summary offences
For lesser summary offences, the general rule is that they are only available if a defendant,
having been given bail, breaches a condition of that bail in these proceedings or has a conviction for ‘fail to surrender’ in their past.
Need not be granted bail (3) grounds
(a) A remand in custody would be for the defendant’s own protection;
(b) The court has insufficient information to deal with the issue of bail, and so remands in
custody for a (short) period for the production of sufficient evidence; and/or
(c) The defendant is already serving a sentence in custody.
For these three grounds, the test is simply that the defendant ‘need not’ be granted bail if one of these conditions exist.
Object to bail - specialist grounds
(a) Serious cases with high penalties; and
(b) Cases of a particular nature that affect the assessment of the risk posed by a defendant on bail.
Special provisions summary for bail
In short, there is special provision for:
(a) Serious cases (such as murder and rape) where it is harder to get bail because of the gravity of the consequences of such offending;
(b) Cases of a particular character (such as drugs and domestic violence) where a different
approach needs to be taken because of the particular behavioural difficulties commonly
encountered with defendants who commit these offences;
(c) Cases where the defendant infringes bail;
(d) The remaining cases - dealt with in relation to their classification and, even with the ‘standard’ cases, there are a number of provisos to watch out for.
Process: bail objections
In terms of process:
* Check whether your defendant falls into the provisions of one of the special categories (either serious crime, or crimes of particular character).
* If the provisions in relation to serious cases (eg murder) are satisfied, the courts must follow the more stringent test and the more general objections cease to apply.
* For cases of a particular character, the prosecution can either use these additional grounds or rely on the more general grounds.
Factors to consider when objecting bail (not grounds)
(a) The nature and seriousness of the offence and the likely disposal (ie sentence)- if convicted of a serious offence, D is likely to receive a long sentence and will therefore be tempted to abscond
(b) The character of the defendant, D’s antecedents, associations and community ties;
- Antecedents refers to previous convictions which can make a custodial sentence more likely.
- Character might include any personal circumstances such as drug addictions.
- Associations might include friends with criminal records.
- Examining the ‘community ties’ helps to see how easy it could be for the defendant to
abscond and how much D has to lose by absconding. If D is married with children or in a
job, then D might be less likely to ‘disappear’ compared to someone of ‘no fixed abode’.
(c) The defendant’s bail record in the past- whether D has absconded in the past can be seen as indicative that D may do so again.
(d) The strength of the evidence- a D who knows there is a good chance of being acquitted is arguably less likely to abscond than one who anticipates almost certain conviction.
