Unit 5 – Case management and pre-trial hearings

Question 1

When will a court issue a witness summons?

Answer 1

1) Witness can give material evidence in proceedings and

2) It is in the interests of justce for a summons to be issued.

Question 2

What are the witness obligations of the defence?

Answer 2

1) Serve a notice with names, addresses and DOB of witnesses they intend to call to give evidence

2) 28 days from the date when prosecution provides them with any additional information which may harm prosecutions’ case.

Question 3

In a criminal trial, is D required to serve on the CPS copies of witness statements who they’re calling to give evidence at trial?

Answer 3

NO. Only expert witness reports who are called at trial must be served on CPS.

Question 4

Where D wishes to call an expert to give evidence at trial, what must they do?

Answer 4

• If D’s solicitor wants to call an expert to give evidence at trial, they must serve a copy of the expert’s report on the CPS in advance of trial.
• D’s solicitor should ensure expert witness comes to trial.

Question 5

Section 9 witness statements – Witnesses attending trial …

Answer 5

S 9 witness statement – A written statement from a witness will be admissible at trial (as opposed to the witness having to come to court to give evidence) provided that:

a) It is signed / dated

b) Contains the following declaration:

“This statement (consisting of (1) page signed by me) is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true”.

c) A copy has been served before the hearing on the other parties in the case; and

d) None of the other parties have objected within 7 days.

Question 6

When should S 9 witness statements be used?

Answer 6

1) For evidence which is not in dispute.

– Statement can only contain matters which would have been admissible if the witness had given oral evidence at court.

Question 7

Where documentary evidence takes the form of plans/photos, what do they need to be accompanied by?

Answer 7

1) Witness statement from the person who prepared the plan / took photographs.

Question 8

When is there a plea and trial preparation hearing? (PTPH)

Answer 8

Cases which go to crown court (only certain ones)

Question 9

Linked summary offences – Crown court / magistrates ?

Answer 9

• A D who is sent for trial in the Crown Court in respect of an either-way offence may also be charged with another offence that is summary-only.
• If the summary-only offence is:
• Common assault
• Taking a conveyance without consent
• Driving whilst disqualified or
• Criminal damage,
• D may tried for these offences at the Crown Court if the offence is founded on the same facts as the either-way offence, or is part of the series of offences of the same or a similar character.
• Additionally, if the magistrates send a D for trial for one or more either-way offences, they may also send the defendant for trial in relation to any summary-only offence with which they are also charged if the summary-only offence:

(a) Is punishable with imprisonment or disqualification from driving; and

(b) Appears to the court to be related to the either-way offence.

• if D, on a conviction for the either-way offence, pleads guilty to the summary-only offence, the Crown Court can sentence for the summary offence, although its sentencing powers are limited to those of the magistrates.
• If D is acquitted of the either-way offence or pleads not guilty to the summary-only offence, this offence must be remitted back to the magistrates’ court for trial.

Question 10

When does a preliminary hearing in the crown court take place?

Answer 10

A preliminary hearing will take place for an offence triable only on indictment if:

(a) There are case management issues which the Crown Court needs to resolved;
(b) The trial is likely to exceed four weeks;
(c) It is desirable to set an early trial date
(d) The defendant is under 18; or
(e) There is likely to be a guilty plea and D could be sentenced at the preliminary hearing.

Note – A preliminary hearing must take place within 10 business days of the date on which the magistrates send the case to the Crown Court.

Question 11

When should a preliminary hearing take place?

Answer 11

Within 10 business days of the date on which the magistrates send the case to the Crown Court.

Question 12

What is the purpose of the plea and trial preparation hearing?

Answer 12

1) Enable D to enter their plea and;

2), If the defendant is pleading not guilty, to enable the judge to give further case management directions for the CPS and the defendant’s solicitor to comply with prior to trial.

Question 13

When should the PTPH take place? (where no preliminary hearing is held)

Answer 13

Within 20 business days after sending.

Question 14

What happens at the arraignment?

Answer 14

Counts on the indictment will be put to the defendant who pleads guilty or not guilty.

Possible outcomes:

1) D pleads guilty to some counts and not others – Jury at D’s trial will not be told about the counts to which a guilty plea has already been entered.

2) Where CPS have agreed with D not to charge on certain counts, where D pleads guilty to others – CPS offers no evidence on these counts at the arraigement.

3) CPS asks for a count to “lie on the file” – This can happen where there are several counts on indictment and the CPS evidence in respect of each is strong. If D pleads guilty to the more serious counts, the CPS may agree to fewer/lesser counts being left on the file. In this case, a not guilty verdict will not be entered and with leave of the court, the CPS may be able to re-open the case at a later date.

Question 15

Where D pleads guilty at the PTPH…

Answer 15

• If D pleads guilty at the PTPH, the judge will either sentence immediately, or adjourn sentence for preparation of pre-sentence reports, like medical reports or reports from the Probation Service.
• Where D pleads guilty but disputes specific factual allegations made by the prosecution witness. This calls for a separate hearing (newton hearing) to determine the factual basis on which the defendant will be sentenced.

– If case is adjourned, D will either be released on bail or remanded in custody pending either the sentencing hearing or the newton hearing.

Question 16

Can the judge give D an indication of sentence at the PTPH?

Answer 16

• A judge is permitted at the PTPH to give a defendant an advance indication of the likely sentence they would receive if they were to enter a guilty plea at that stage.
• D must specifically ask for this indication.
• If judge gives an indication and D then enters a guilty plea, the indication given by the judge WILL BE BINDING.

Question 17

Where D pleads not guilty at the PTPH…

Answer 17

• If D pleads not guilty at the PTPH, the judge then considers if any further directions are necessary to prepare the case for trial.
• To determine this, judge requires the prosecution and defence advocates present at the PTPH to supply the following information:

(a) Summary of the issues in the case

(b) Details of the number of witnesses who will be giving oral evidence at trial and the estimated length of the trial

(c) Whether the transcript(s) of the defendant’s police station interview(s) require(s) editing;

(d) Whether a defence statement has been served and if so, whether there is any issue as to adequacy of the statement;

(e) Whether the prosecution will be serving any additional evidence;

(f) Whether there is any dispute as to the adequacy of disclosure of unused material by the prosecution;

(g) Whether any expert evidence is to be called and, if so, whether any additional directions are needed in respect of this;

(h) Whether any further directions are necessary concerning hearsay or bad character evidence;

(i) Whether special measures are required for any witnesses;

(j) Any facts which can be formally admitted;

(k) Any points of law or issues concerning the admissibility of evidence which are likely to arise at trial;

(l) Dates of availability to attend trial of the witnesses and the advocates.

Question 18

How does the judge list the case for trial?

Answer 18

• At the PTPH, the judge will give any further case management directions that are necessary (as per the information given (a-l above) and then either fix a date for D;s trial or place the case on the ‘warned list’.
• ‘Warned list’ = list of cases awaiting trial that have not been given a fixed date for the trial to start.

– If a case is placed on warned list, Crown Court will contact D’s solicitor to let them know that the case has been listed for trial shortly before the date when the trial is due to start.

– Concluding the PTPH, D will either be released on bail, or remanded in custody pending his trial.

Question 19

Can D change their plea at the PTPH?

Answer 19

Yes – at the judges’ discretion any time before the jury return their verdict.

Question 20

What is the prosecutions’ initial duty of disclosure?

Answer 20

CPS required to serve on D all the evidence it wishes to rely on at trial to prove D’s guilt.

Question 21

When does the CPS need to disclose unused material to D?

Answer 21

1) Where D enters not guilty plea and

2) If the material might ‘reasonably be considered capable of undermining the case for the prosecution or assiting the case for the accused’

Question 22

Is the duty of disclosure ongoing?

Answer 22

Yes.

Question 23

If D’s solicitor thinks disclosure is incomplete, what should they do?

Answer 23

1) Request disclosure of missing items when drafting defence statement; if CPS refuse:

2) Apply to court requesting specific disclosure

Note – Application to court can only be made if D has already provided a defence statement.

Question 24

When can CPS withhold disclosure of unused material?

Answer 24

‘sensittive’ documents:

(a) Material relating to matters of national security or intelligence;

(b) Material relating to the identity of police informants or undercover police officers;

(c) Material revealing techniques and methods relied upon by police (e.g., covert surveillance techniques used); and

(d) Material relating to a child witness (e.g., material generated by a local authority social services department).

Question 25

If any of the sensitive documents satisfy the requirements for disclosure (i..e, undermine prosecutions case / favourable to D) what further test is applied?

Answer 25

• If any of this material satisfies the test for disclosure to the defence in s 3 CPIA, CPS can withhold material only if it is protected by the ‘public interest immunity’.

– It is at the discretion of the court whether disclosure can be avoided on grounds of public interest immunity.

– CPS must make an application to the court for a finding that it is not obliged to disclose the relevant material.

Note – This type of application will often be made ‘ex parte’ (i.e., without notice to defence).

Question 26

Once CPS has made initial disclosure, what happens?

Answer 26

Onus of disclosure passes to the defendant’s solicitor.

Question 27

Magistrates’ court – Defence statement

Answer 27

If D enters a not guilty plea and decides to serve a defence statement, they should do so within 10 business days of the CPS making initial disclosure.

Question 28

Crown Court – Defence statement

Answer 28

Time period = 20 business days from service of unused material by prosecution.

– If case is complex, D may apply to court for longer period to serve defence statement.

• Two or more co-accused – court can make an order that a copy of the defence statement made by each defendant is to be served on the other defendants in the case.

Question 29

Is a defence statement compulsory in the Crown Court?

Answer 29

• S 5 Compulsory Disclosure – A defendant facing trial in Crown Court has an obligation to provide a defence statement (this does not apply in magistrates).

– Obligation is enforced in the Crown Court by the court being able to draw an adverse inference against the defendant is a defence statement is not provided.

Question 30

What are the contents of a defence statement?

Answer 30

(a) Sets out nature of the defence, including any particular defences on which the defendant intends to rely (e.g., alibi or self-defence);

(b) Indicates the matters of fact on which the defendant intends to rely for the purposes of their defence;

(c) Indicates any points of law (including any point as to the admissibility of evidence) that the defendant wishes to take at trial, and any legal authority on which D intends to rely for this purpose; and

(d) In the case of an alibi defence, provides the name, address, and DOB of any alibi witness or as many of these details as are known to D.

Question 31

Is the defence under a continuing duty of disclosure?

Answer 31

YES.

Question 32

Will defence statements be deemed to be given with the authority of D?

Answer 32

Yes, unless the contrary is proven.

Question 33

Where there are faults in disclosure given by the defence, can the court draw an adverse inference from this?

Answer 33

YES:

Faults include:

(a) Failing to provide a defence statement at all;

(b) Late service of the defence statement;

(c) Serving a defence statement that is incomplete;

(d) Serving a defence statement which is not consistent with the defence put forward at trial; and

(e) Failing to update a defence statement.