W4

Question 1

What is the purpose of a Plea and Trial Preparation Hearing (PTPH)?

Answer 1

A PTPH has two stages: the plea stage and either the sentence or trial preparation stage. At the plea stage, the indictment is put to the defendant and they enter a plea of guilty or not guilty to each count on the indictment. At the end of the trial preparation stage, the parties should know the trial date, the timetable for further preparatory work, and whether the case needs to be listed in court again before trial.

Question 2

What is the role of the PTPH in addressing disclosure?

Answer 2

Part of the PTPH is to address disclosure, which is an important aspect of the criminal justice process. The PTPH ensures that both the prosecution and the defense have access to the necessary evidence for the trial.

Question 3

What happens during the pre-trial stage of the criminal justice process?

Answer 3

The pre-trial stage of the criminal justice process begins with a person being arrested and brought before the magistrates’ court. Alternatively, the magistrates’ court may issue a written charge and requisition to secure their attendance. The person is then asked to enter a plea, and depending on their plea, the court either moves to sentence or proceeds to trial

Question 4

What are some examples of pre-trial matters that can be resolved before the trial?

Answer 4

Pre-trial matters include selecting a trial date, applying for a witness summons, resolving legal arguments, and other case management issues. These matters can be resolved at a first hearing, a hearing before the trial date (such as a PTPH), or on the day of the trial itself before the trial starts.

Question 5

How are pre-trial matters dealt with in the magistrates’ court?

Answer 5

In simple cases in the magistrates’ court, many pre-trial matters can be resolved at the first hearing. In more complex cases, further pre-trial hearings may be required. The magistrates’ court case management form is used to set directions for service of documents, resolve matters of law, and set a trial date.

Question 6

What is the expectation regarding pre-trial matters in the Crown Court?

Answer 6

The Criminal Procedure Rules have an aspiration that all pre-trial matters should be resolved before the day of trial, if possible. The expectation is that parties will be ready to start the trial immediately on the trial date, unless something unexpected has arisen.

Question 7

What are the types of applications that can be made during pre-trial matters?

Answer 7

During pre-trial matters, applications can be made for special measures to assist witnesses, changes of plea, witness summons and warrants, and admissibility of evidence. These applications can be made at various stages, such as the PTPH or on the day of trial.

Question 8

How is evidence served on the defense in the Crown Court?

Answer 8

When a case is sent for trial to the Crown Court, evidence must be served within a specific timeframe. Evidence is uploaded onto the Crown Court Digital Case System, including documents containing the evidence on which a charge is based. A draft indictment must also be served by the prosecutor within a specified timeframe.

Question 9

What happens during the Plea and Trial Preparation Hearing (PTPH) in the Crown Court?

Answer 9

The PTPH is the main pre-trial hearing in the Crown Court. It consists of two parts: the plea stage and either the sentence or trial preparation stage. At the plea stage, the indictment is put to the defendant and they enter a plea of guilty or not guilty to each count on the indictment. The PTPH form is used to facilitate the hearing.

Question 10

What happens if a defendant wants to change their plea from guilty to not guilty?

Answer 10

If a defendant wants to change their plea from guilty to not guilty, they must apply to the court for leave to do so. This application can be made at various stages, such as the PTPH, another pre-trial hearing, or on the day of trial. Judges should exercise their discretion judicially and sparingly when considering such applications.

Question 11

What are some further applications and hearings that may occur after the Plea and Trial Preparation Hearing in the Crown Court?

Answer 11

After the Plea and Trial Preparation Hearing in the Crown Court, there may be further applications and hearings. These can include evidence applications, special measures, measures to assist vulnerable defendants, witness summons and warrants, and changes of plea.

Question 12

What are the standard directions for dealing with pre-trial matters in the Crown Court?

Answer 12

Standard directions apply for various aspects of pre-trial matters, such as special measures, bad character applications, witness summons, agreed facts and issues, disputed facts and issues, defense statement, disclosure, defendant’s interview, hearsay, admissibility and legal issues. These directions ensure that the necessary preparations are made before the trial.

Question 13

What happens if a party fails to comply with the directions for pre-trial matters?

Answer 13

If a party fails to comply with the directions for pre-trial matters, they may be required to come to court and explain their failure to do so. The expectation is that no further hearings will be required, unless there are unforeseen issues that arise before the trial.

Question 14

What are the possible further applications and hearings after the Plea and Trial Preparation Hearing in the Crown Court?

Answer 14

After the Plea and Trial Preparation Hearing in the Crown Court, there may be further applications and hearings related to evidence applications, special measures, witness summons and warrants, changes of plea, and other matters. These applications and hearings ensure that all necessary issues are addressed before the trial.

Question 15

What is the purpose of the PTPH form in the Crown Court?

Answer 15

The PTPH form is used in the Crown Court to facilitate the Plea and Trial Preparation Hearing. It is completed in advance of the hearing and provides important information for the judge when conducting the hearing.

Question 16

What happens if a defendant is found unfit to plead?

Answer 16

If a judge determines that a defendant is unfit to plead, no plea is taken. Instead, a trial with a jury is held to determine whether the defendant committed the act (actus reus) of the offense. If the defendant is found to have committed the act, they can be subject to an absolute discharge, supervision order, or hospital order.

Question 17

What are Plea and Trial Preparation Hearings (PTPHs) and what elements do they cover?

Answer 17

Plea and Trial Preparation Hearings (PTPHs) are pre-trial hearings that cover elements such as indictments, further applications, and the procedure for a defendant pleading guilty to some, but not all, matters on the indictment.

Question 18

What are some of the further applications and possible further hearings that may occur after the Plea and Trial Preparation Hearing?

Answer 18

Some of the further applications and possible further hearings that may occur after the Plea and Trial Preparation Hearing include evidence applications, special measures, measures to assist vulnerable defendants, witness summons and warrants, and changes of plea.

Question 19

When might further applications be made in the criminal court process?

Answer 19

Further applications can be made in either the magistrates’ court or Crown Court, at the Plea and Trial Preparation Hearing (PTPH) or another pre-trial hearing, or on the day of trial before the trial starts or at some convenient point during the trial.

Question 20

What are some examples of applications that can be made to exclude or introduce evidence in a criminal trial?

Answer 20

Examples of applications that can be made include excluding evidence proposed by the prosecution using section 78 of the Police and Criminal Evidence (PACE) Act 1984, introducing otherwise inadmissible evidence such as bad character or hearsay, and dealing with these applications at the Plea and Trial Preparation Hearing (PTPH), a hearing between the PTPH and trial, or on the day of trial before the trial starts.

Question 21

What are special measures in the criminal courts and what types are available?

Answer 21

Special measures are arrangements put in place to assist witnesses in giving evidence before a court. Types of special measures include the use of screens, live TV link, giving evidence in private, removing wigs and gowns, video recording of evidence, pre-recording cross-examination and re-examination, questioning of a witness through an intermediary, and aids to communication.

Question 22

Who is eligible for special measures in the criminal courts?

Answer 22

Witnesses aged under 18, witnesses with mental disorders or significant impairments, witnesses in fear or distress about giving evidence, adult complainants of sexual offences, adult complainants in certain offences under the Modern Slavery Act 2015, and witnesses in cases involving serious offences are eligible for special measures.

Question 23

What additional types of special measures exist to protect witnesses?

Answer 23

Additional types of special measures to protect witnesses include Witness Anonymity Orders, automatic anonymity of complainants in sex cases, prohibition of cross-examination by defendants in person, and restricting the reporting of witnesses’ identity. Vulnerable defendants can also receive measures to assist their effective participation in the trial process, such as giving evidence via a live link or being assisted by an intermediary.

Question 24

What is the duty of disclosure on the prosecution during a criminal investigation?

Answer 24

During a criminal investigation, the prosecution has a duty to record and retain material, and a duty of disclosure. The disclosure officer examines the retained material and reveals it to the prosecutor and the defense at the prosecutor’s request. The duration of the duty to retain material varies depending on the progress of the proceedings.

Question 25

What is the initial duty of disclosure on the prosecution?

Answer 25

The initial duty of disclosure on the prosecution is to serve initial details of the prosecution case (used material) no later than the beginning of the day of the first hearing. Disclosure of unused material by the prosecution arises in the magistrates’ court when a defendant pleads not guilty and the case is adjourned for summary trial, and in the Crown Court when a defendant is sent for trial.

Question 26

What is the difference between used material and unused material in a criminal case?

Answer 26

Used material is the material that the prosecution relies upon at trial to prove its case against a defendant. It includes statements from prosecution witnesses, the defendant’s record of taped interview, and other documentary exhibits relevant to proving the case. Unused material is material that is not being relied upon by the prosecution.

Question 27

What are some examples of special measures available to vulnerable defendants?

Answer 27

Vulnerable defendants can give their evidence via a live link if it would improve the quality of their evidence due to their level of intellectual ability, social functioning, or mental disorder. They can also be assisted by an intermediary to help them understand the trial process and communicate effectively.

Question 28

What happens when a defendant wants to change their plea from not guilty to guilty?

Answer 28

A defendant who has pleaded not guilty can ask through their Counsel for the indictment to be put again and plead guilty. This usually happens before trial, but defendants can also change their minds on the day of trial. The judge will direct the jury to return a formal verdict of guilty in such cases.

Question 29

Under what circumstances can a defendant apply to change their plea from guilty to not guilty?

Answer 29

Defendants who have pleaded guilty can apply to the court for leave to change their plea from guilty to not guilty. The court will exercise its discretion judicially and sparingly, considering factors such as whether the prosecution has no evidence of an essential ingredient of the offence or if the defendant was improperly placed under undue pressure to plead guilty or was materially misadvised by their legal team.

Question 30

What is the duty of the police or other prosecuting authority during a criminal investigation?

Answer 30

During a criminal investigation, the police or other prosecuting authority speak to witnesses, take statements, examine material, and follow various avenues in search of evidence. They record and retain material, and a disclosure officer is responsible for examining the material and revealing it to the prosecutor and the defense at the prosecutor’s request.

Question 31

What is the test for disclosure on the prosecution during a criminal investigation?

Answer 31

The test for disclosure on the prosecution during a criminal investigation is an objective one. If there is prosecution material that might help the defense, it should be disclosed. The prosecution serves initial details of the prosecution case (used material) before the first hearing, and disclosure of unused material arises when a defendant pleads not guilty and the case is adjourned for summary trial or when a defendant is sent for trial.

Question 32

What is the role of a disclosure officer during a criminal investigation?

Answer 32

A disclosure officer is responsible for examining material retained during a criminal investigation and revealing it to the prosecutor and the defense at the prosecutor’s request. In Crown Court cases, the disclosure officer prepares an MG6C that lists the items of unused material. In magistrates’ court cases where a not guilty plea is anticipated, the unused material is listed on a streamlined disclosure certificate.

Question 33

Why is unused material important in a criminal trial?

Answer 33

Unused material can be extremely important to a defendant in a criminal trial. It may include statements from witnesses that the prosecution is not relying upon, records of previous convictions of prosecution witnesses, and disciplinary findings against police officers. This material can help the defendant by weakening the prosecution’s case or strengthening the defense’s case.

Question 34

What is the duty of the prosecution regarding unused material?

Answer 34

The prosecution has a duty to disclose to the defendant any prosecution material that has not previously been disclosed and might reasonably be considered capable of undermining the case for the prosecution or assisting the case for the defendant. This duty is based on the principle of fairness and ensuring a fair system of criminal justice.

Question 35

What is the significance of full and proper disclosure in a fair system of criminal justice?

Answer 35

Full and proper disclosure is vital to a fair system of criminal justice. It ensures that any material held by the prosecution that weakens its case or strengthens that of the defendant, if not relied on as part of its formal case, should be disclosed to the defense. Failure to disclose such material can lead to miscarriages of justice.

Question 36

What are the four stages of disclosure in a criminal case?

Answer 36

The general scheme of disclosure in a criminal case falls into four stages: the investigation stage, the initial duty of disclosure on the prosecution, defense disclosure, and the continuing duty on the prosecution to keep disclosure under review.

Question 37

What is the duty of the investigator during the investigation stage?

Answer 37

During a criminal investigation, the investigator has a duty to retain and record all relevant material in a durable or retrievable form. They must follow all reasonable lines of inquiry, whether they point towards or away from the suspect. The investigator must be fair and objective in their approach.

Question 38

What is the role of the disclosure officer during the investigation stage?

Answer 38

The disclosure officer is responsible for examining the material retained by the investigator and revealing material to the prosecutor and defense at the prosecutor’s request. They must inspect, view, listen to, or search all relevant material and provide a personal declaration that this has been done. If there is doubt about whether material is disclosable, the disclosure officer seeks advice from the prosecutor.

Question 39

What types of material must be retained during a criminal investigation?

Answer 39

During a criminal investigation, all material that may be relevant to the investigation must be retained. This includes crime reports, witness statements, exhibits, interview records, experts’ reports, and any material that casts doubt on the reliability of a witness or confession. The duty to retain material lasts until a decision is made whether to institute proceedings against a suspect and even after proceedings are commenced.

Question 40

What is the duty of the prosecution regarding initial disclosure of unused material?

Answer 40

The prosecution has an initial duty of disclosure to the defendant. This duty requires the prosecution to disclose any prosecution material that has not previously been disclosed and might reasonably be considered capable of undermining the case for the prosecution or assisting the case for the defendant. The prosecution must fulfill this duty as soon as reasonably practicable.

Question 41

What factors should prosecutors consider when deciding whether to disclose unused material?

Answer 41

When deciding whether to disclose unused material, prosecutors should consider factors such as the use that might be made of the material in cross-examination, its capacity to support submissions that could lead to the exclusion of evidence or a stay of proceedings, and its capacity to suggest an explanation or partial explanation of the accused’s actions. They should also consider the material’s capacity to have a bearing on scientific or medical evidence in the case.

Question 42

What is the common law duty of disclosure?

Answer 42

Even when the statutory duty of disclosure has not arisen, a responsible prosecutor has to be aware of the need for advance disclosure of material that should be disclosed in the interests of justice and fairness. This duty, known as the common law duty of disclosure, requires prosecutors to disclose material that might assist the defense with the early preparation of their case or at a bail hearing.

Question 43

What are the time limits for initial disclosure by the prosecution?

Answer 43

In magistrates’ court cases where a not guilty plea is anticipated, the prosecution must serve initial details of the prosecution case (used material) no later than the beginning of the day of the first hearing. In Crown Court cases, the prosecution should serve sufficient evidence in advance of or at the Plea and Trial Preparation Hearing (PTPH) to enable effective case management without the need for a further case management hearing.

Question 44

What is the duty of the prosecution regarding disclosure of unused material in summary trial?

Answer 44

In summary trial, if there is further prosecution evidence to be served or if initial disclosure of unused material has not been complied with, the court will give a date by which these must be done. The prosecution should ensure that initial disclosure is made in sufficient time to ensure an effective trial date.

Question 45

What happens at the Plea and Trial Preparation Hearing (PTPH) in Crown Court trials?

Answer 45

At the PTPH, which usually takes place 28 days after sending the case to the Crown Court for trial, the prosecution should serve sufficient evidence in advance or at the hearing to enable effective case management without the need for a further case management hearing. If there is more prosecution evidence to be served or if initial disclosure of unused material has not been complied with, dates will be given for these to be completed.

Question 46

What is the duty of the disclosure officer regarding unused material?

Answer 46

The disclosure officer must notify the prosecutor of every item of unused material and prepare a schedule (MG6C) listing the items of unused material in Crown Court cases. In magistrates’ court cases where a not guilty plea is anticipated, the unused material is listed on a streamlined disclosure certificate. The disclosure officer must certify that they have complied with their duties under the Disclosure Code of Practice.

Question 47

What is the prosecutor’s initial duty of disclosure?

Answer 47

The prosecutor’s initial duty of disclosure is to disclose to the accused any prosecution material that has not previously been disclosed and might reasonably be considered capable of undermining the case for the prosecution or assisting the case for the accused. This duty arises in the magistrates’ court when a defendant pleads not guilty and the case is adjourned for summary trial, and in the Crown Court when a defendant is sent for trial or a Voluntary Bill of Indictment has been preferred.

Question 48

What is the prosecution’s duty of disclosure in criminal proceedings?

Answer 48

The prosecution has a continuing duty to review disclosure throughout the criminal proceedings. This duty lasts throughout the whole criminal proceedings and requires the prosecution to disclose any relevant material to the defense.

Question 49

What is a defense statement and what is its purpose?

Answer 49

A defense statement is a written statement that sets out the accused’s defense to the allegation. It allows the prosecution to review disclosure in light of the nature of the defense presented by the accused.

Question 50

What are the consequences of failing to disclose in the Crown Court?

Answer 50

In the Crown Court, if the defense fails to disclose or serves a deficient defense statement, the jury may draw adverse inferences against the defendant. The prosecution or co-defendant may also comment on such a failure.

Question 51

What are the time limits for serving a defense statement and a Notice of Intention to Call Defense Witnesses?

Answer 51

In the Crown Court, a defense statement must be served within 28 days of the date when the prosecution complies with its duty of initial disclosure. In the magistrates’ court, a defense statement must be served within 10 business days of the prosecution complying with its duty of initial disclosure.

Question 52

What should be included in a defense statement?

Answer 52

A defense statement must contain the nature of the accused’s defense, including any particular defenses on which they intend to rely. It should indicate the matters of fact on which the accused takes issue with the prosecution and provide reasons for taking issue. The defense statement should also set out particulars of the matters of fact on which the accused intends to rely for their defense.

Question 53

What are the consequences of failing to serve a defense statement in the magistrates’ court?

Answer 53

In the magistrates’ court, failure to serve a defense statement means that the defense will be unable to make an application for specific disclosure. However, no adverse inference can be drawn against the defendant for failing to serve a defense statement in the magistrates’ court.

Question 54

What is the continuing duty of disclosure by the prosecution?

Answer 54

The prosecution has a continuing duty to keep disclosure under review throughout the case. This duty requires the prosecution to disclose any material that should have been disclosed, even if it is discovered at a late stage in the proceedings. The duty lasts until the defendant is convicted, acquitted, or the prosecutor decides not to proceed with the case.

Question 55

What can the defense do if they believe there is undisclosed prosecution material?

Answer 55

The defense can make an application to the court for specific disclosure if they have reasonable cause to believe that there is prosecution material that should have been disclosed but has not been. This is commonly known as a ‘section 8 application’ or an ‘application for specific disclosure’.

Question 56

What are the consequences of failing to comply with the defense’s duties of disclosure?

Answer 56

If the defense fails to comply with their duties of disclosure, adverse inferences may be drawn against the defendant. The prosecution may also comment on such failure without the leave of the court, except in cases where it relates to a point of law.

Question 57

What is the duty of the defense regarding defense witnesses?

Answer 57

In both the Crown Court and the magistrates’ court, the defense must disclose to the court and the prosecutor a notice indicating if they intend to call any witnesses at trial (other than the defendant). The notice should identify the witness by name, address, and date of birth or any information to locate and identify the witness.

Question 58

What are the time limits for serving a Notice of Intention to Call Defense Witnesses?

Answer 58

In the Crown Court, the notice must be given within 28 days of the date when the prosecution complies with its duty of initial disclosure. In the magistrates’ court, the notice must be given within 10 business days of the prosecution complying with its duty of initial disclosure.

Question 59

What are the consequences of failing to serve a defense statement in the Crown Court?

Answer 59

In the Crown Court, if the defense fails to serve a defense statement or serves a deficient defense statement, adverse inferences may be drawn against the defendant. The prosecution may also comment on such failure.

Question 60

What is the duty of the prosecution in relation to disclosure?

Answer 60

The prosecution has a duty to keep disclosure under review throughout the case. This duty requires the prosecution to review disclosure in light of the issues identified in the defense statement and to disclose any material that should have been disclosed.

Question 61

What is the requirement for making an application for specific disclosure?

Answer 61

To make an application for specific disclosure, the defendant must have served a defence statement (in the magistrates’ court or the Crown Court) and the prosecutor must have either provided further disclosure in light of that Defence Statement or notified the defendant there is no further disclosure to be made.

Question 62

What should the defence statement include before applying for specific disclosure?

Answer 62

The defence statement must set out the issues clearly as a prerequisite to applying under section 8 for specific disclosure. The Judicial Disclosure Protocol para 26 provides that ‘defence requests for disclosure of particular pieces of unused prosecution material which are not referable to any issue in the case identified in the defence statement should be rejected.

Question 63

What is the procedure for making an application for specific disclosure?

Answer 63

The defendant must serve the application on the court and the prosecution. The application must describe the material the defendant wants to be disclosed and explain why there is reasonable cause to believe that the prosecutor has the material and that it should be disclosed under the CPIA. The defendant should ask for a hearing if one is required and explain why it is needed. The prosecution has 10 business days to respond in writing to any such application.

Question 64

What are the consequences of disclosure failure by the prosecution?

Answer 64

Disclosure failure by the prosecution can have serious consequences, including: the defence bringing an application to stay the indictment on the ground that continuing the case would be an abuse of process of the court, a conviction being quashed on appeal due to being unsafe, delay and the imposition of wasted costs for unnecessary hearings or a refusal to extend custody time limits, and the potential exclusion of evidence in the case due to unfairness.

Question 65

What is the duty of investigators and prosecutors regarding third-party disclosure?

Answer 65

The Disclosure Code of Practice and the A-G’s Guidelines impose a duty on investigators and prosecutors to pursue all reasonable lines of enquiry. If it becomes clear during an investigation that relevant material may be held by third parties, prosecutors should take appropriate steps to obtain it if it might undermine the prosecution case or assist the case for the accused.

Question 66

What approach should be taken to obtain third-party disclosure?

Answer 66

An approach has been developed to obtain third-party disclosure where it is properly required. The A-G’s Guidelines and the Judicial Disclosure Protocol contain guidance for dealing with material held by third parties. In cases where it is believed that a third party holds relevant information, they should be informed of the investigation and a request should be made for the material in question to be retained in case a request for disclosure is made.

Question 67

What is the course of action when the prosecution does not wish to disclose material due to public interest?

Answer 67

When the prosecution is under a duty to disclose material to the defence but believes that disclosing it would give rise to a real risk of serious prejudice to an important public interest, the required course of action under the CPIA is to apply to the judge for non-disclosure in the public interest. This is called a Public Interest Immunity (PII) Application. The court will consider the material and may withhold disclosure to the minimum extent necessary to protect the public interest while ensuring a fair trial for the defendant(s).

Question 68

What should be recorded in the Sensitive Material schedule regarding public interest immunity?

Answer 68

Sensitive material that may give rise to a public interest immunity application must be recorded in the Sensitive Material schedule. The schedule should include: the reasons why the material is sensitive and to what degree, the consequences of disclosing the material to the defence (including the involvement of third parties), the relevance of the material to the issues in the case, the implications for continuing the prosecution if the material is ordered to be disclosed, and whether it is possible to make disclosure without compromising its sensitivity.

Question 69

What are the basic principles of evidence?

Answer 69

The basic principles of evidence include: relevance, admissibility, and weight. Evidence must be relevant, meaning it is logically probative of a fact in issue. It must also be admissible, not subject to an exclusionary rule, and not of such poor quality that no one could reasonably rely on it. The weight of evidence refers to the degree of reliance that can be placed on it.

Question 70

What is real evidence and how is it presented in court?

Answer 70

Real evidence refers to objects and things that are brought to court for inspection. Some real evidence may be in the form of documents that are exhibited by a witness who can vouch for their origin.

Question 71

What is the difference between direct evidence and circumstantial evidence?

Answer 71

Direct evidence is evidence that a witness gives of having had direct experience of a matter in issue. Circumstantial evidence, on the other hand, is evidence from which facts are inferred. For example, if a witness saw the defendant at the scene of a crime, that would be direct evidence. If a witness saw the defendant near the scene of a crime shortly before it occurred, that would be circumstantial evidence.

Question 72

What is a view in the context of evidence?

Answer 72

A view refers to the occasion when jurors can visit a scene of a crime or leave the court to view an object that cannot be brought into court. Their observations during the view become evidence in the case.

Question 73

What are the requirements for evidence to be admissible?

Answer 73

For evidence to be admissible, it must be relevant, not subject to an exclusionary rule, and not of such poor quality that no one could reasonably rely on it. Relevance is determined by whether the evidence is logically probative of a fact in issue. Exclusionary rules protect the fairness of trials and prevent the use of evidence that may prejudice a trial. The weight of evidence refers to the degree of reliance that can be placed on it.

Question 74

What is the concept of ‘weight’ in relation to evidence?

Answer 74

The concept of ‘weight’ in relation to evidence refers to the degree of importance or value attached to a piece of evidence. It is a matter for the jury to determine the weight of the evidence, although the judge may intervene and rule evidence as inadmissible if it is deemed problematic or unreliable.

Question 75

Who determines the facts and the law in a legal case?

Answer 75

In a legal case, the tribunal of fact is responsible for determining the facts, while the tribunal of law is responsible for determining the law. In the Magistrates’ Court, the bench of magistrates or District Judge acts as the tribunal of fact, while in the Crown Court, the jury acts as the tribunal of fact. The tribunal of law comprises the magistrates or District Judge in the Magistrates’ Court and the judge in the Crown Court.

Question 76

What factors can affect the admissibility of evidence?

Answer 76

The admissibility of evidence can be affected by its weight, relevance, and the presence of exclusionary discretions or inclusionary rules. If the evidence is deemed to have a significant adverse effect on the fairness of the proceedings, it may be ruled as inadmissible. The determination of admissibility is made by the tribunal of law.

Question 77

What is the role of the tribunal of fact and the tribunal of law in a criminal case?

Answer 77

The tribunal of fact, such as the jury in the Crown Court or the bench of magistrates in the Magistrates’ Court, is responsible for determining the facts of the case. The tribunal of law, which includes the judge, is responsible for applying the law. Issues of admissibility of evidence are matters of law for the tribunal of law to determine.

Question 78

How do the tribunals of fact and law interact in a criminal case?

Answer 78

In a criminal case, the tribunals of fact and law interact by each fulfilling their respective roles. The tribunal of fact determines the facts based on the evidence presented, while the tribunal of law applies the relevant legal principles. The judge may provide instructions to the jury regarding the law, and the jury must consider the facts and apply the law to reach a verdict.

Question 79

What is the difference between the tribunals of fact and law in the Crown Court and the Magistrates’ Court?

Answer 79

In the Crown Court, the tribunals of fact and law are separate, with the jury acting as the tribunal of fact and the judge as the tribunal of law. In the Magistrates’ Court, the same person or people fulfill both roles, acting as both the tribunal of fact and the tribunal of law. This difference has practical implications in terms of the decision-making process and the allocation of responsibilities.

Question 80

What are the main methods to exclude evidence or stop a criminal case?

Answer 80

The main methods to exclude evidence or stop a criminal case include applications for dismissal, submissions of no case to answer, applications to exclude a confession, applications to exclude evidence under the common law, and abuse of process applications. These methods are used to challenge the admissibility of evidence or argue that continuing the prosecution would be unfair or undermine the integrity of the criminal justice system.

Question 81

What factors are considered in determining the admissibility of evidence?

Answer 81

The admissibility of evidence is determined by considering its relevance, exclusionary discretions, and inclusionary rules. If the evidence is relevant to a fact in issue, it is generally admissible. However, some evidence may be excluded if its admission would be unfair or if there are specific exclusionary provisions. Inclusionary rules may also apply to admit evidence that would otherwise be inadmissible.

Question 82

What is the significance of relevance in the admissibility of evidence?

Answer 82

Relevance is a crucial factor in the admissibility of evidence. If the evidence is relevant to a fact in issue, it is generally considered admissible. Relevance is the starting point for all decisions on admissibility, and if the evidence is not relevant, it may be deemed inadmissible.

Question 83

What are exclusionary discretions and how do they affect the admissibility of evidence?

Answer 83

Exclusionary discretions are filters used to determine the admissibility of evidence. They are found in legislation such as s78 of the Police and Criminal Evidence (PACE) Act and the common law. Exclusionary discretions allow the court to refuse the admission of evidence if its inclusion would have an adverse effect on the fairness of the proceedings. These discretions are applied when evidence is obtained in a manner that breaches PACE or when the probative value of the evidence is outweighed by its prejudicial effect.

Question 84

What are inclusionary rules and how do they impact the admissibility of evidence?

Answer 84

Inclusionary rules are rules that allow the admission of evidence that would otherwise be inadmissible. They apply to evidence of a special character that cannot be admitted without an inclusionary rule. The application of inclusionary rules involves considering the relevance of the evidence and whether there are any exclusionary provisions within the statutory framework. Inclusionary rules expand the scope of admissible evidence in certain circumstances.

Question 85

How does the common law exclusionary discretion differ from the exclusionary discretion under s78 of the PACE Act?

Answer 85

The common law exclusionary discretion and the exclusionary discretion under s78 of the Police and Criminal Evidence (PACE) Act are similar in their purpose of excluding evidence that would have an adverse effect on the fairness of the proceedings. However, the common law exclusionary discretion applies to exclude evidence when the probative value of the evidence is outweighed by its prejudicial effect. On the other hand, s78 of the PACE Act focuses on evidence obtained in a manner that breaches PACE procedures.

Question 86

What is the role of exclusionary discretions in determining the admissibility of evidence?

Answer 86

Exclusionary discretions play a crucial role in determining the admissibility of evidence. They act as filters before evidence is admitted and are found in legislation such as s78 of the Police and Criminal Evidence (PACE) Act and the common law. Exclusionary discretions allow the court to refuse the admission of evidence if its inclusion would have an adverse effect on the fairness of the proceedings. These discretions consider the circumstances in which the evidence was obtained and assess whether its admission would be fair.

Question 87

What is the purpose of the exclusionary rule under s78 of the PACE Act?

Answer 87

The exclusionary rule under s78 of the Police and Criminal Evidence (PACE) Act serves as a safeguard to exclude evidence that has been obtained in a manner that breaches PACE procedures. It allows the court to refuse the admission of evidence if its inclusion would have an adverse effect on the fairness of the proceedings. The focus is on the way the evidence was obtained and whether it was collected or gathered in the appropriate manner.

Question 88

What are the main methods used to exclude evidence or stop a criminal case?

Answer 88

The main methods used to exclude evidence or stop a criminal case include applications for dismissal, submissions of no case to answer, applications to exclude a confession, applications to exclude evidence under the common law, and abuse of process applications. These methods are employed to challenge the admissibility of evidence or argue that continuing the prosecution would be unfair or undermine the integrity of the criminal justice system.

Question 89

What are the factors considered in determining the admissibility of evidence?

Answer 89

The factors considered in determining the admissibility of evidence include relevance, exclusionary discretions, and inclusionary rules. Relevance is the starting point, and if the evidence is relevant to a fact in issue, it is generally admissible. Exclusionary discretions are applied to exclude evidence that would have an adverse effect on the fairness of the proceedings. Inclusionary rules allow the admission of evidence that would otherwise be inadmissible. These factors are assessed to ensure the fairness and integrity of the trial process.

Question 90

What are the principal ways of excluding evidence and/or seeking to bring a prosecution case to an end?

Answer 90

The principal ways of excluding evidence and/or seeking to bring a prosecution case to an end are through applications for dismissal, submissions of no case to answer, applications to exclude evidence under s78 of the Police and Criminal Evidence Act 1984 (PACE), applications to exclude confessions under s76 PACE, applications to exclude evidence under the preserved common law provisions, applications under s82(3) PACE, and abuse of process applications.

Question 91

What is an application for dismissal and when can it be made?

Answer 91

An application for dismissal is a pre-trial application to have the charges against a defendant dismissed. It can only be made after a defendant is sent by the magistrates’ court for trial to the Crown Court, after the defendant has been served with the evidence relating to the offense, and before the defendant is arraigned (the offense is put to the defendant and the defendant pleads guilty or not guilty). The power to make the application is contained in Schedule 3 of the Crime and Disorder Act (CDA) 1998, and the procedure is set out in CrimPR r9.16.

Question 92

What is the test for dismissing a charge in an application for dismissal?

Answer 92

The test for dismissing a charge in an application for dismissal is set out in Schedule 3 para 2(2) of the Crime and Disorder Act (CDA) 1998. The judge shall dismiss a charge and quash any count relating to it in any indictment if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted. This is the same test applied when the defense makes a submission of no case to answer.

Question 93

What is a submission of no case to answer and when can it be made?

Answer 93

A submission of no case to answer is made during a trial, after the prosecution has presented all of its evidence. The defense is entitled to submit to the judge that there is no case to answer on any one or all of the charges faced by the defendant. The application can be made in both the magistrates’ court and the Crown Court.

Question 94

What are the principles set out in R v Galbraith for making a submission of no case to answer?

Answer 94

In R v Galbraith, Lord Lane CJ set out the following principles: (1) If there is no evidence that the crime alleged has been committed by the defendant, the judge will stop the case. (2) If the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict, the judge should allow the matter to be tried by the jury. These principles guide the decision-making process when making a submission of no case to answer.

Question 95

What is the common law discretion to exclude evidence?

Answer 95

The common law discretion to exclude evidence is preserved under Section 82(3) of the Police and Criminal Evidence Act 1984 (PACE). It allows the courts to exclude evidence if its prejudicial effect outweighs its probative value or if it is necessary to secure a fair trial for the accused. However, this discretion is rarely used in practice due to the wide-ranging statutory powers to exclude evidence under other sections of PACE.

Question 96

What is an abuse of process application and when can it be made?

Answer 96

An abuse of process application is made when there is an issue of unfairness or impropriety so fundamental that continuing the trial would be an abuse of the court’s process. It goes beyond applications to exclude evidence and questions whether the case should be allowed to continue. Such applications can be made to stay proceedings as an abuse of process of the court. They are mainly dealt with in the Crown Court, but can also be brought in the magistrates’ court on the ground that a defendant is unable to have a fair trial.

Question 97

What factors are considered in an abuse of process application?

Answer 97

In an abuse of process application, the court considers two categories of cases: (1) where the accused can no longer receive a fair hearing, and (2) where it would be unfair to try the accused or where a stay is necessary to protect the integrity of the criminal justice system. The court also takes into account the public interest in the prosecution of crime and ensuring that those charged with serious criminal offenses are tried.

Question 98

What is the role of delay in an abuse of process application?

Answer 98

Delay can amount to an abuse of process of the court if the prosecution has deliberately delayed proceedings to gain a tactical advantage. Even in cases where the defense cannot assert deliberate delay, inordinate or unconscionable delay due to the inefficiency of the prosecution, coupled with prejudice caused to the defense, may be sufficient for an abuse of process application to succeed.

Question 99

What is the procedure for excluding evidence under Section 78 of PACE?

Answer 99

Section 78 of PACE allows the court to exclude evidence if its prejudicial effect outweighs its probative value or if it is necessary to secure a fair trial for the accused. This discretion to exclude evidence applies only to prosecution evidence. The procedure for excluding evidence under Section 78 is contained in CrimPR r24.3(3)(d) for the magistrates’ court and CrimPR r25.9(2)(e) for the Crown Court.

Question 100

What is the difference between an application for dismissal and a submission of no case to answer?

Answer 100

An application for dismissal is a pre-trial application to have the charges against a defendant dismissed, while a submission of no case to answer is made during a trial after the prosecution has presented all of its evidence. An application for dismissal can only be made after a defendant is sent by the magistrates’ court for trial to the Crown Court, after the defendant has been served with the evidence relating to the offense, and before the defendant is arraigned. A submission of no case to answer is made at the close of the prosecution case.

Question 101

What is the test for dismissing a charge in an application for dismissal or a submission of no case to answer?

Answer 101

The test for dismissing a charge in an application for dismissal or a submission of no case to answer is whether the evidence against the defendant would be sufficient for a proper conviction. If there is no evidence that the crime alleged has been committed by the defendant or if the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict, the charge should be dismissed or the case should be stopped.

Question 102

What are the categories of cases in which the court has the power to stay proceedings as an abuse of process?

Answer 102

The court has the power to stay proceedings as an abuse of process in two categories of cases: (1) where the accused can no longer receive a fair hearing, and (2) where it would be unfair to try the accused or where a stay is necessary to protect the integrity of the criminal justice system. These categories cover situations where the accused would not receive a fair trial or where trying the accused would offend the court’s sense of justice and propriety.

Question 103

What is the key test for the court in deciding whether to exclude prosecution evidence under section 78?

Answer 103

The key test for the court in deciding whether to exclude prosecution evidence under section 78 is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Question 104

What does section 78 of the Police and Criminal Evidence Act 1984 (PACE) apply to?

Answer 104

Section 78 of PACE only applies to ‘evidence on which the prosecution proposes to rely’. It cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit, nor can it be used after evidence is adduced.

Question 105

When should a section 78 application be made?

Answer 105

A section 78 application should be made before the evidence to which objection is taken is adduced. A voir dire will be necessary where there is a dispute on the facts between the defence and the prosecution.

Question 106

What are the principal ways of excluding evidence and/or seeking to bring a prosecution case to an end?

Answer 106

The principal ways of excluding evidence and/or seeking to bring a prosecution case to an end are: applications for dismissal, submissions of no case to answer, applications to exclude evidence under section 78 of PACE, applications to exclude confessions under section 76 of PACE, applications to exclude evidence under the preserved common law provisions, section 82(3) of PACE, and abuse of process applications.

Question 107

What is the role of section 78 in excluding evidence obtained unlawfully, improperly, or unfairly?

Answer 107

Section 78 is commonly used to seek the exclusion of evidence obtained unlawfully, improperly, or unfairly. It is often used alongside section 76 of PACE to seek the exclusion of confession evidence. However, simply because evidence has been irregularly obtained does not automatically render it inadmissible. The court considers the effect of the breach on the fairness of the proceedings.

Question 108

What are some examples of section 78 applications?

Answer 108

Section 78 has been used to exclude evidence obtained where there have been breaches of the fundamental right of access to legal advice, where waiver of the right of access to legal advice was not voluntary, informed, or unequivocal, where there has been a failure to caution a suspect before questioning, where an appropriate adult has not been provided for a youth, mentally disordered, or mentally vulnerable suspect, and where identification procedures have not been followed.

Question 109

What are the criteria for the Court of Appeal to interfere with a judge’s decision under section 78 of PACE?

Answer 109

The Court of Appeal will not interfere with a judge’s decision under section 78 of PACE unless they are satisfied that the decision was perverse. In other words, the court must determine that no reasonable judge, having heard the evidence, could have reached the same conclusion.

Question 110

When can an application under section 78 PACE be made?

Answer 110

An application under section 78 PACE can be made before the trial, at the commencement of the trial, or just prior to the prosecution seeking to admit the evidence that the defense wishes to be excluded.

Question 111

What factors determine when a section 78 application will be heard?

Answer 111

The timing of a section 78 application depends on the significance of the application. If granting the application would fatally weaken the prosecution case, it is often heard at a pre-trial hearing or at the commencement of the trial. However, if the application relates to a matter of less significance, it may be dealt with during the trial itself.

Question 112

What should be done if a section 78 application is not heard before the case commences?

Answer 112

If a section 78 application is not heard before the case commences, the prosecution should avoid making any reference to the disputed evidence in the opening speech. It is important to make the section 78 application before the evidence to which objection is taken is adduced.

Question 113

What is a voir dire and when does it take place?

Answer 113

A voir dire is a trial within a trial that takes place in the absence of a jury. It is the best time for a voir dire to take place before the trial begins. During a voir dire, the defense representative addresses the court first, followed by the prosecution advocate responding.

Question 114

What happens during a voir dire in the Crown Court when there is a dispute on the facts?

Answer 114

In the Crown Court, when there is a dispute on the facts between the defense and the prosecution during a voir dire, the judge cannot determine the section 78 application until the factual matter has been resolved. The judge will have to hear evidence and make a decision on the facts before deciding how the law should be applied.

Question 115

What is the burden and standard of proof in determining a section 78 application?

Answer 115

The normal burden and standard of proof in criminal cases apply to determining a section 78 application. The judge must be satisfied beyond reasonable doubt of the factual position before deciding how the law should be applied.

Question 116

What happens if the judge concludes that the police misbehaved and there was a substantial breach of the code in a section 76 and 78 application?

Answer 116

If the judge concludes that the police misbehaved and there was a significant and substantial breach of the code, resulting in unfairness to the defendant, the evidence concerned is likely to be excluded.

Question 117

What is a voir dire in the magistrates’ court and how does it differ from the Crown Court?

Answer 117

In the magistrates’ court, the magistrates can rule on a section 78 application when it arises or hear all the evidence before ruling on admissibility. However, the interests of justice may dictate that a ruling on admissibility is made early enough to allow the defendant to know whether that evidence forms part of the case.

Question 118

When should disputed confessions be determined as a preliminary issue?

Answer 118

Disputed confessions should be determined as a preliminary issue when the application is under both section 76 and section 78 of PACE. This allows the jury to decide the case on the remaining basis if the confession is excluded.

Question 119

What are the two main ways to challenge a confession under section 76 of PACE?

Answer 119

Under section 76 of PACE, a confession can be challenged by claiming oppression or by arguing that anything said or done rendered the confession unreliable. The burden of proof is on the prosecution to prove that the confession was not obtained as set out in section 76(2)(a) or (b).

Question 120

What is the definition of a confession under section 82 of PACE?

Answer 120

In section 82 of PACE, a confession is defined as any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise. It includes unequivocal confessions of guilt, mixed statements, and even non-verbal gestures depending on the context.

Question 121

What happens if a confession is excluded under section 76 of PACE?

Answer 121

If a confession is excluded under section 76 of PACE, it does not prevent facts discovered as a result of the confession from being relied upon in evidence. Additionally, if the confession is relevant to show how the accused speaks, writes, or expresses themselves, part of the confession may still be used for that purpose.

Question 122

What are some examples of the ‘thing said or done’ in Section 76(2)(b) cases?

Answer 122

The ‘thing said or done’ in Section 76(2)(b) cases can include positive acts such as promises, inducements, or tricks. For example, a promise to release someone promptly from police custody only if they ‘tell all’ or a threat to arrest a suspect’s family members if the suspect does not cooperate. It can also include omissions or failures to act, such as interviewing a young or mentally vulnerable suspect without an appropriate adult.

Question 123

What is the significance of the prosecution proving that a confession was not obtained in consequence of the ‘thing said or done’?

Answer 123

In Section 76(2)(b) cases, the prosecution must prove beyond reasonable doubt that the confession was not obtained in consequence of the ‘thing said or done’. This is a question of fact to be approached in a common sense way. If the prosecution fails to prove this, the court shall not allow the confession to be given in evidence against the defendant, except to the extent that the prosecution proves that the confession, despite being true, was not obtained as aforesaid.

Question 124

What happens to evidence discovered as a result of an excluded confession?

Answer 124

Under Section 76(4) of PACE, the fact that a confession is excluded does not affect the admissibility of any facts discovered as a result of the confession. However, evidence of how those facts were discovered must be given by the accused or on their behalf. Similarly, if the confession is relevant to show how the accused speaks, writes, or expresses themselves, so much of the confession as is necessary to show that can be admitted.

Question 125

What is the purpose of Section 78 of PACE?

Answer 125

Section 78 of PACE allows the court to refuse to allow evidence to be given if its admission would have such an adverse effect on the fairness of the proceedings that it should not be admitted. It provides a means for the court to examine a case from the perspective of overall fairness and can offer broader protections to the defendant than Section 76. The burden of proof is not on the prosecution, but the defence can seek to exclude evidence under Section 78.

Question 126

What is the difference between Section 76 and Section 78 of PACE in relation to excluding evidence?

Answer 126

Section 76 of PACE allows for the exclusion of confessions that were obtained in consequence of something said or done that rendered them unreliable. Section 78 of PACE, on the other hand, allows for the exclusion of evidence if its admission would have such an adverse effect on the fairness of the proceedings that it should not be admitted. Section 78 offers broader protections and allows the court to examine a case from the perspective of overall fairness.

Question 127

What is the burden of proof in applications to exclude confessions under Section 78 of PACE?

Answer 127

The burden of proof is not specifically on the defence in applications to exclude confessions under Section 78 of PACE, but in effect, it is on the defence. The court must decide whether the breaches were significant and substantial enough to have an adverse effect on the fairness of the proceedings. The defence raises the issue, but the burden is on the court to determine whether the evidence should be excluded.