Unit 5 Case management, Pre trial hearing and trial procedure

Question 1

Case Management and Pre- trial Hearings - When does a case management hearing happen and what happens in it?

Answer 1

Usually at the same hearing at which the defendant enters their plea of not guilty (and, for an either- way offence, after the plea before venue/ allocation hearing), or sometimes at a subsequent hearing.

Court gives case management directions (standard but court can vary them).

Question 2

Case Management and Pre- trial Hearings - How long do parties get to prep for trial

Answer 2

Standard case management directions allows the parties eight weeks to prepare the case for trial (or 14 weeks when expert evidence is required)

Question 3

Case Management and Pre- trial Hearings - How to secure attendance of a witness at trial

Answer 3

Obtain a witness summons from the magistrates court.

Question 4

Case Management and Pre- trial Hearings - What are the defences witness obligations

Answer 4

D must serve on the CPS a notice setting out the names, addresses and dates of birth of any witnesses they intend to call to give evidence.

Time limit to comply is 28 days from the date on which the prosecutor complies with s3.

No requirement for D to serve CPS copies of witness statements in criminal cases.

If Ds solicitor wishes 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.

Question 5

Case Management and Pre- trial Hearings - Do all witnesses need to attend the trial?

Answer 5

If witness gives evidence that is not in dispute they do not need to attend.

Question 6

Case Management and Pre- trial Hearings - When is a written statement from a witness be admissible

Answer 6

When evidence not in dispute.

Statement is signed and dated

Contains declaration saying true and understand liable to prosecution if not true

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

AND

None of the other parties has objected within seven days.

Question 7

Case Management and Pre- trial Hearings - Offences triable only on indictment

Answer 7

Must send them to the Crown Court following a hearing in the magistrates court.

Where they have done this they will set a date for the PTPH at the Crown Court - or a date for a preliminary hearing in the Crown Court if such a hearing is necessary - and will remand the defendant either on bail or in custody.

Unless a preliminary hearing is to take place at the Crown Court, the magistrates will also give a set of standard case management directions.

Question 8

Case Management and Pre- trial Hearings - Either- way offences

Answer 8

Either- way offence who pleads not guilty at plea before venue will be tried in the Crown Court if either the magistrates decline jurisdiction, or the defendant elects Crown Court trial at the allocation hearing.

Question 9

Case Management and Pre- trial Hearings - Linked summary offences

Answer 9

If the summary- only offence is common assault, taking a conveyance without consent, driving whilst disqualified or criminal damage, the D may be 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 a series of offences of the same or a similar character.

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 plead guilty to summary offence, the Crown Court can sentence but are limited to powers of magistrates.

If the defendant 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

Case Management and Pre- trial Hearings - Preliminary hearing

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 resolve;

(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 years of age; or

(e) there is likely to be a guilty plea and the defendant could be sentenced at the preliminary hearing.

Standard case management directions issued.

Hearing must take place within 10 business days of the date on which the magistrates send the case to the Crown Court.

Question 11

Case Management and Pre- trial Hearings - PTPH

Answer 11

First hearing in crown court if preliminary hearing not needed.

Enable the D to enter their plea and, if the D is pleading not guilty, to enable the judge to give further case management directions.

PTPH should take place within 20 business days after sending.

Question 12

Case Management and Pre- trial Hearings - Arraignment

Answer 12

At start of PTPH D will have count(s) on the indictment put to them to enter a plea.

Question 13

Case Management and Pre- trial Hearings - Guilty pleas

Answer 13

If D pleads guilty at the PTPH, the judge will either sentence immediately or, if necessary, adjourn sentence for the preparation of pre- sentence reports.

The judge may also need to adjourn the case if the defendant pleads guilty but disputes the specific factual allegations made by the prosecution witnesses. In such a situation a separate hearing (called a ‘Newton hearing’) will be necessary to determine the factual basis on which the defendant will be sentenced.

Question 14

Case Management and Pre- trial Hearings - Not guilty pleas

Answer 14

Judge will consider if any further directions are necessary.

To determine this the judge will require both parties to be in a position to supply:

(a) 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 the 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 15

Case Management and Pre- trial Hearings - Prosecution disclosure

Answer 15

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

Also have ‘unused material’ this must be provided if D pleas nit guilty and satisfies s3 test:

Material must be disclosed if it ‘might reasonably be considered capable of undermining the case for the prosecution … or of assisting the case for the accused’.

Duty of disclosure is ongoing.

Question 16

Case Management and Pre- trial Hearings - Can prosecution withhold unused material?

Answer 16

If material satisfies s3 test, CPS can only withhold if it is protected by ‘public interest immunity’ - decision made by court.

Question 17

Case Management and Pre- trial Hearings - Defence disclosure

Answer 17

Obligation to serve a defence statement when pleading not guilty in Crown court but not magistrates.

In magistrates should so do in 10 business days of CPS disclosure.

In Crown 20 days but can apply to court for extension.

Question 18

Case Management and Pre- trial Hearings - What is a defence statement.

Answer 18

Written statement which:

(a) sets out the nature of the defence, including any particular defences on which the defendant intends to rely (for example, alibi or self- defence);

(b) indicates the matters of fact on which the defendant takes issue with the prosecution and why they take such issue;

(c) sets out particulars of the matters of fact on which the defendant intends to rely for the purposes of their defence;

(d) 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 the defendant intends to rely for this purpose; and

(e) in the case of an alibi defence, provides the name, address and date of birth of any alibi witness, or as many of these details as are known to the defendant.

Continuing duty to update it.

Will be deemed to be given with the authority of the D unless the contrary is proved. So a Ds solicitor should ensure that the D approves a copy.

Court can draw adverse inferences from ‘faults’ e.g. failing to provide, late, incomplete, not consistent etc.

CPS must review its initial disclosure of unused materials to see if anything might now undermine their case or assist the D.

Question 19

Magistrates trial procedure - stages of criminal trial in magistrates

Answer 19

(a) Opening speech by the solicitor from the CPS.

(b) The prosecution witnesses will then be called in turn to give evidence. Each witness will be examined in chief by the prosecuting solicitor and then cross- examined by the defendant’s solicitor. The prosecuting solicitor may then choose to re- examine the witness.

(c) (Possible submission of no case to answer by defendant’s solicitor.)

(d) The defence witnesses will then be called in turn to give evidence (with the defendant being called first). Each witness will be examined in chief by the defendant’s solicitor and will then be cross- examined by the prosecuting solicitor. The defendant’s solicitor may then choose to re- examine the witness.

(e) The prosecuting solicitor may make a closing speech where the defendant is represented, or the defendant has introduced evidence other than his own (whether represented or not).

(f) Closing speech by the defendant’s solicitor.

(g) The magistrates retire to consider their verdict.

(h) The magistrates deliver their verdict.

(i) If the defendant is found guilty, the magistrates will then either sentence the defendant immediately, or adjourn sentence until later if they wish to obtain pre- sentence reports on the defendant. If acquitted, the defendant will be formally discharged by the magistrates and told that they are free to go.

Question 20

Magistrates trial procedure - Arguments on points of law

Answer 20

Magistrates will normally hold a hearing called a voir dire to determine the admissibility of the particular piece of evidence in dispute. Such hearings are also often referred to as ‘a trial within a trial’.

Or may consider as part of trial.

Or determined at pre trial hearing by a different bench of magistrates.

Question 21

Magistrates trial procedure - submission of no case to answer

Answer 21

A submission of no case to answer will be made by the defendant’s solicitor if either:

(a) the prosecution has failed to put forward evidence to prove an essential element of the alleged offence; or

(b) the evidence produced by the prosecution has been so discredited as a result of cross-examination, or is so manifestly unreliable, that no reasonable tribunal could safely convict on it.

If mags accept this, charge is dismissed.

Question 22

Crown trial procedure - changing plea from guilty to not guilty

Answer 22

D must apply, in writing, as soon as practicable after becoming aware of the grounds for making such an application to change a plea of guilty (eg if the defendant had misunderstood the prosecution case).

Similar in mags

Question 23

Crown trial procedure - order of events

Answer 23

(a) The jury will be sworn in

(b) The prosecutor will then give an opening speech

(c) Prosecution witnesses give evidence and agreed s9 statements read out

(d) If any disputes as to points of law or arguments as to the admissibility of evidence arise, a hearing known as a ‘voir dire’ (or a ‘trial within a trial’) will take place in the absence of the jury.

(e) Defence can make a submission that there is no case to answer.

(f) If the submission of no case to answer is successful, the jury will be asked to return, and the judge will instruct them to return a verdict of not guilty. If the submission of no case to answer is unsuccessful, the judge may allow the defendant to change their plea from not guilty to guilty.

(g) If the submission of no case to answer is unsuccessful (and the defendant does not seek to change his plea), or no submission is made, the defence advocate will then present the defendant’s case.

(h) Witnesses for the defence w

(i) At the conclusion of the defence case, both prosecuting and defence advocates will deliver a closing speech to the jury.

(j) Summing up by judge

(k) The jury will then retire to consider their verdict.

(l) If the jury cannot reach a majority verdict within a reasonable time, the judge will discharge the jury. The prosecution is then likely to request a retrial before a new jury.

(m) If the jury finds the defendant not guilty, the defendant will be discharged by the judge and told that they are free to go.

(n) If the jury finds the defendant guilty, the judge will then proceed to sentence the defendant. The judge will either sentence the defendant immediately, or, if necessary, adjourn sentence so that pre- sentence reports can be obtained. If the judge adjourns sentence, they will remand the defendant either on bail or in custody.

Question 24

Crown trial procedure - time limits for jury

Answer 24

Jury must decide their verdict unanimously, although a majority verdict of 11:1 or 10:2 will be accepted if, after at least 2 hours and 10 minutes, unanimity is not possible.

If the case was lengthy or in any way complex, the judge is likely to wait much longer than this minimum period.

If any jurors have been discharged during the trial then the majority verdict requirements reflect this, so where there were only 11 jurors, the majority must be 10:1. If there were only 10 jurors, it must be 9:1 and where there are only nine jurors then only a unanimous verdict is acceptable.

Question 25

Difference between leading and non- leading questions - examination in chief

Answer 25

Can only ask open questions not leading.

Question 26

Difference between leading and non- leading questions - re-examination

Answer 26

Don’t have to do this.

Should only be in relation to matters that have arisen in cross- examination and as with examination- in- chief, only open, non- leading questions are allowed.

Question 27

Competence and compellability - general rule

Answer 27

At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.

All competent persons are compellable.

Question 28

Competence and compellability - exception to general rule on competence

Answer 28

A person is not competent if they are not able to

a) understand questions put to him as a witness; and

(b) give answers to them which can be understood.

Often children and those with defective intellect.

Judge decides if competent.

V young children have given evidence. But cannot be sworn until age 14.

Question 29

Competence and compellability - exceptions to the general rule on compellability

Answer 29

1) The accused including co-accused. 2) The spouse of the accused however if the offence falls into specified offences then they are compellable:

Where offence charged is involves an assault on or injury or threat of injury to the spouse or

charge is sexual offence involving a person under 16

Question 30

Competence and compellability - special measures

Answer 30

Special measures assist witnesses who find it difficult to give evidence:

(a) screens, to ensure that the witness does not see the defendant;

(b) allowing a witness to give evidence from outside the court by live television link, and where appropriate, allowing a witness supporter to accompany the witness whilst giving evidence;

(c) clearing people from the court so evidence can be given in private;

(d) in a Crown Court case, the judge and barristers removing their wigs and gowns;

(e) allowing a witness to be examined in chief before the trial and a video recording of that examination- in- chief to be shown at trial;

(f) allowing a witness to be cross- examined (and re- examined) before the trial and a video recording of this to be shown at trial;

(g) allowing an approved intermediary (such as an interpreter or speech therapist) to help a witness communicate when giving evidence at the court; and

(h) allowing a witness to use communication aids, such as sign language or a hearing loop.

Question 31

Competence and compellability - special measures categories of witnesses

Answer 31

(a) children aged under 18;

(b) those suffering from a mental or physical disorder, or having a disability or impairment that is likely to affect their evidence;

(c) those whose evidence is likely to be affected by their fear or distress at giving evidence in the proceedings;

(d) complainants in sexual offences;

(e) those who are witnesses in specified gun and knife crimes

Question 32

Ethics - solicitors duty to the court

Answer 32

Duty to act in clients best interest.

Required to act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice (Principle 1 SRA Code of Conduct), and also remains under an overriding duty not to mislead the court (under Standard 2 of the SRA Code of Conduct).

Duty of confidentiality to their client (under Standard 6.3 of the SRA Code of Conduct). If cease to act can’t say why.