W5 Case Management, Pre-Trial Hearings ...

Question 1

You can ensure witnesses attend court to give oral evidence - by doing what?

Answer 1

Obtaining a witness summons from magistrates court (info contained in Part 17 of the CrimPR. Solicitor must write to court requesting this.

Question 2

What must D do regarding the witness they intend to call to give evidence?

Answer 2

Must serve a notice to CPS with the names, addresses and dates of birth of any witnesses they intend to call to give evidence.

Question 3

When expert witnesses are being used, what must D do?

Answer 3

Submit copy of their report to CPS before trial. This evidence must be obtained as soon as possible. Additionally, check that expert witnesses are available to attend court on that day.

Question 4

Do all witnesses need to be present at the hearing? And if no, what will you need for the written statement to be admissible?

Answer 4

Not all witnesses are needed.
For a written statement to be admissible, ensure that:

(a) it is signed and dated;

(b) it 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 has objected within seven days.

Stuff in the written statement must only be that which would have been mentioned at trial.

Question 5

What to do about any photographic evidence before it can be submitted to court?

Answer 5

Should be verified by a witness statement from the person who prepared the plan or took the photographs.

Question 6

What is the IDPC and unused material?

Answer 6

IDPC = initial details of the prosecution case. Which is basically this is any evidence obtained subsequent to the crime that will be used by the prosecution.

Unused material = evidence not used by prosecution but the CPS has in possession.

Question 7

What are the case efficiency rules set out by Transforming Summary Justice (TSJ)?

Answer 7

They generally require early and effective case preparation; disclosure of any unused material; that the parties have clear expectations of effectiveness at first hearing and the parties’ expectation that the trial hearing will be effective.

Question 8

What is PTPH?

Answer 8

plea and trial preparation hearing

Question 9

What happens when the offence is triable only on indictment?

Answer 9

Court must send them to the Crown Court!!!!

Question 10

When magistrates have decided that D has been charged with an offence triable only on indictment, what will they do?

Answer 10

Obviously, this case goes to the Crown Court. Crim PR has all the standard case management directions that the magistrates’ court will issue when a case is sent to trial to the CC.

The magistrates will:
(1) They will set a date for the PTPH at the Crown Court
(2) Remand D on bail or in custody to appear at the Crown Court.
(3) Give a set of standard case management directions for the CPS and the defendant’s solicitor with which they must comply prior to the PTPH taking place.
(4) Give the defendant a notice specifying the offence(s) for which they have been sent for trial and the Crown Court at which they are to be tried.

Question 11

If someone is sent to trial for an either-way offence, can they also be charged for another offence that is summary-only?

Answer 11

Yes. Same goes with an offence triable only on indictment. Since the summary crime is in connection with an offence that is triable only on indictment. Sentencing powers for summary offences in the CC: Crown Court will be limited to what the magistrates sentencing powers are.

Question 12

What will magistrates consider alongside creating a PTPH date in the CC?

Answer 12

Whether a preliminary hearing is needed in the CC. This will take place for an offence triable only on indictment if (a) the case is a tricky one both organisationally and otherwise (b) if the trail will take longer than 4 weeks (c) D is aged under 18 yrs (e) there is likely to be a guilty plea by D and so a premliniary hearing is all that is necessary

Question 13

When must a premlinary hearing take place after magistrates have sent the case to CC?

Answer 13

After 10 business days.

Question 14

What is the purpose of the PTPH?

Answer 14

The first hearing in the CC.
Enables D to enter their plea - enables the judge to give any further case management directions for the CPS.

Question 15

When should the PTPH take place?

Answer 15

Within 20 days after having the case sent to CC.

Question 16

Each count = one offence the CPS will put forward against D. What happens if the CPS can get D to plead guilty to some offences, in return for freedom from other offences?

Answer 16

This will work. And the CPS will not offer any evidence of those offences it agreed not to push for D.

Question 17

What happens when defendant is prepared to plead guilty to the more serious counts?

Answer 17

The CPS may agree to lesser counts being left on the file. In such a case a not
guilty verdict will not be entered and (in theory) with the leave of the court the CPS may be allowed to re-open the case at a later date.

Question 18

What is a Newton Hearing?

Answer 18

When D pleads guilty but disputes the factual allegations being relied on by prosecution witnesses.
If case is adjourned, the defendant will either be released on bail or remanded in custody pending either the sentencing hearing or the Newton hearing.

Question 19

Can a judge reveal an advance indication (of how the case may end) at the PTPH to D?

Answer 19

Yes. This is called a Goodyear indication.

Question 20

If D pleads not guilty at the PTPH, what happens?

Answer 20

The judge will consider if any further directions are needed to prepare the case for trial (over and above those given by the magistrates court). The judge will require a lot of info about the case, any complicated areas that may arise etc.
Judge fixes a date and if unable to fix a date, the case will be placed in the ‘warned list’

Question 21

Whats a ‘warned list’?

Answer 21

The warned list is a list of cases
awaiting trial that have not been given a fixed date for the trial to start. If a case is placed in the warned list, the Crown Court will contact the defendant’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.

Question 22

What happens at the end of every PTPH?

Answer 22

The defendant will either be released on bail, or remanded in custody pending his trial.

Question 23

Once D enters a not guilty plea at the PTPH, can they change this plea and say theyre actually guilty at any time before jury returns their verdict?

Answer 23

Yes, but at the discretion of the judge.
A defendant may also change their plea to guilty during the trial if the judge makes a ruling on a point of law or the admissibility of a piece of evidence which deprives the defendant of a defence on which they wanted to rely

Question 24

Duty of disclosure - does it only apply to the evidence the CPS wishes to rely on or does it also apply to unused evidence?

Answer 24

It only applies to the evidence the CPS wishes to rely on.
However, if D pleads not guilty etc, if s3 of the CPIA 1996 is satisfied, then the unused evidence must also be disclosed.

Question 25

What is s3 of CPIA 1996

Answer 25

When the CPS has unused evidence that might reasonably be considered as capable of undermining the case for the prosecution... or of assisting the case of the accused - whether or not it benefits D or not, they must disclose this information.

Question 26

Is the duty of disclosure ongoing for CPS?

Answer 26

Yes.

Question 27

What can D's solicitor do if they sense that the evidence disclosure made by CPS is incomplete?

Answer 27

Can make a request for disclosure of 'missing' items when drafting the defence statement. If this doesn't work, solicitor can apply to court to request the specific disclosure.

Question 28

On what ground could CPS withold evidence that should be disclosed as per s3 CPIA 1996?

Answer 28

The CPS can withhold the material only if it is protected by ‘public interest immunity’. It is the decision of the court as to whether disclosure can be avoided on the grounds of public interest immunity.

Question 29

In what order should disclosure take place?

Answer 29

First the CPS must make the initial disclosure of unused material, then the onus switches to the defendant's solicitor.

Question 30

Within what time frame should the defence submit a defence statement (if D wishes to, when D enters a guilty plea)?

Answer 30

Within 10 days after the CPS makes their initial disclosure. Its 20 days in the CC.

Question 31

In what court must D make a 'compulsory disclosure'?

Answer 31

This obligation applies only to a defendant facing a trial in the Crown Court - if this is not done, CC will draw adverse inferences.

Question 32

What should a defence statement be?

Answer 32

It is a written statement - sets out the nature of the defence, the facts that it relates to and why it does not agree with prosecution's allegations, indicates relevant points of law and witness info. It also needs to be approved by D. Should be served in time and not late - otherwise adverse inferences will be drawn. Failing to provide a defence statement at all = adverse inferences will be drawn. Serving an incorrect/ inconsistent/ incomplete defence statement = adverse inferences can be drawn.

Question 33

Does the defence have a continuing duty to update the defence statement, if changes occur?

Answer 33

Yes.

Question 34

What happens after the defence statement has been served?

Answer 34

Normally, the CPS should review its initial disclisure and determine if there are any further unused material in its possession which could now undermine the defence's case or assist D. And this should be disclosed. If CPS does not disclose this, defence can ask court for an order (via Part 15 CrimPR) to ensure that CPS discloses this material, IF D reasonably believes that CPS has evidence that they just have not disclosed.

Question 35

On who does the burden of proof remain with throughout the trial?

Answer 35

The prosecution. They must prove beyond reasonable doubt.

Question 36

When could a no case to answer be submitted in a case by D?

Answer 36

(1) after the prosecution witnesses give evidence

Question 37

What is the order of trial in magistrates?

Answer 37

(1) Opening speech by the solicitor from CPS (2) Prosecution witnesses (3) (Could have a no case to answer submission by D's solicitor) (4) Defence witnesses - D called on first (5) D's solicitor can choose to re-examine witnesses. (6) The prosecuting solicitor may make a closing speech (7) Closing speech by D's solicitor (8) Magistrates decide on verdict and then later comes back and delivers it. 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 38

Why is a voir dire (trial within a trial when D's solicitor wants to refute the bad character allegations) bad in the magistrates court?

Answer 38

Magistrates decide on matters that are both law and fact. If the magistrate decided that the prosecution evidence of bad behaviour is inadmissible, they will still remember it when making a decision. This could cause bias. This is not an issue in the CC - as voir dire is always conducted away from the presence of the jury.

Question 39

What kind of questions are asked in re-examination?

Answer 39

Open questions.

Question 40

What order is evidence presented?

Answer 40

(1) Live evidence (2) Read evidence

Question 41

Bad character is not necessarily mentioned in questioning - cross examination? True/ False

Answer 41

True - there needs to be a separate application for this, under one of the gateways

Question 42

What percentage of juror need to agree?

Answer 42

Basically all of them.

Question 43

What conditions of the prosecutions case leads to a no case to answer submission from the defence?

Answer 43

(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

Question 44

What happens when magistrates accept submission of no case to answer?

Answer 44

D is dismissed

Question 45

What happens when magistrates accept submission of no case to answer?

Answer 45

Defence must present their case and call witnesses.

Question 46

Does a defendant have to be a witness?

Answer 46

No. But there may be certain instances in which it is necessary. In some instances, D going into the witness box and giving evidence can improve the credibility of his case. Also not giving evidence in this way can also lead to courts taking adverse inference...

Question 47

The effect of s 35, where the prosecution has raised issues which call for an explanation from the defendant and D fails to give evidence means what?

Answer 47

That the courts can draw adverse inference.

Question 48

What are the disadvantages of D giving evidence?

Answer 48

* could incriminate himself in witness box * account may not stand up to cross-examination

Question 49

What order should defence witnesses be brought?

Answer 49

1st: If D wants to give evidence, they must be called first.

Question 50

How will D or a Defence witness be examined at court when they give witness evidence?

Answer 50

1st they will be examined in chief by D's solicitor. 2nd they will be cross-examined by the prosecutor. 3rd they will be re-examined by D's solicitor.

Question 51

Who can give closing speeches?

Answer 51

Defence and Prosecution can. Order: (1) prosecution first (2) defence second

Question 52

What does the defence need to do in order to get their way with the case? (aka ensuring an acquittal)

Answer 52

Demonstrate that the prosecution has failed to prove its case beyond a reasonable doubt.

Question 53

If the prosecution has relied on disputed identification evidence, what should D's solicitor mention in the closing speech?

Answer 53

The Turnbull warning.

Question 54

How is a decision made in the magistrates court?

Answer 54

By majority - no need for unanimous consent. They will make their votes in private and then come back.

Question 55

If D is found guilty in magistrates, can they appeal against it in the CC?

Answer 55

Yes.

Question 56

In CC, how many people make up the jury?

Answer 56

Max 12

Question 57

What will happen if there are any disputes about points of law or arguments as to the admissibility of evidence arise in the CC?

Answer 57

A voir dire.

Question 58

How is a decision made in the crown court?

Answer 58

Ideally, a unanimous verdict. If after discussing it amongst themselves in private, if a unanimous decision has not been made in 2 hours and 10 mins, a majority verdict of 11:1 or 10: 2 can be made.

Question 59

At what number of jurors does the court require unanimous verdict?

Answer 59

9. But if it is between 10-12, only majority is needed.

Question 60

Why would either courts adjourn sentence at the end?

Answer 60

So that pre-sentence reports can be obtained. They will remand D either on bail or in custody. If the offence is serious, D is unlikely to be granted bail.

Question 61

What is s 9 CJA

Answer 61

The prosecutor will read out the statements of any witness whose evidence has been accepted by the defendant under the s 9 CJA 1967 procedure without the witness who gave the statement being required to attend court in person.

Question 62

How many magistrates will attend a trial?

Answer 62

3

Question 63

How do you refer to magistrates?

Answer 63

'Your worships'

Question 64

How to refer to opposing advocates?

Answer 64

'My friend'

Question 65

How to refer to a barrister?

Answer 65

'My learned friend'

Question 66

What is Examination-in- chief?

Answer 66

The purpose of examination-in-chief is to allow a witness to ‘tell their story’. Advocate must ask questions that enable witness to repeat their version of events. CANNOT ASK LEADING QUESTIONS, ONLY OPEN ONES. Only cross-examination allows leading questions.

Question 67

What do non-leading, open questions look like?

Answer 67

They may start with 'who, what, when, where, how...'

Question 68

What does leading questions sound like?

Answer 68

Leading questions are questions which are suggestive of the answer

Question 69

After examination and cross-examination comes 're-examination'. What is re-examination?

Answer 69

Must only be open questions. Re-examination is not a necessity.

Question 70

Witnesses must be competent persons. What is a competent person?

Answer 70

Section 53 - A person that understands the questions given to them and their response can be understood.

Question 71

Can children be witnesses?

Answer 71

If the child has sufficient intelligence, they should be able to be a competent witness. Over 14 years will give sworn or unsworn evidence if they have sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking the oath’

Question 72

Can witnesses with defective intellect give sworn evidence?

Answer 72

They can give unsworn evidence - not sworn evidence. Judge must decide if their witness evidence can be used.

Question 73

Who is not a competent witness?

Answer 73

Generally, the accused (D) is not a competent witness for the Crown. This is a problem however where ther are several co-accuseds - because the same rule prevents the Crown from calling one co-accused to testify against the other... but there are 4 situations which form an exception to this.

Question 74

Is a co-accused (co-defendant) a competent witness?

Answer 74

Yes. But not compellable.

Question 75

Is a spouse (assuming they are not co-accused)/ civil partner, competent and compellable as a witness?

Answer 75

Only compellable for the Crown in limited circumstances. Such as (1) where the offence charged involves an assault on or injury or threat of injury to the spouse or a person who was under l6; or (2) where the charge is a sexual offence, or such an attempted offence involving a person under l6 or aiding and abetting such offences.

Question 76

If a spouse and the accused divorce before a trial?

Answer 76

They are treated as never having married and the spouse is immediately compellable - must give evidence in court.

Question 77

What is it called when special adjustments are made for some witnesses who may have difficulty giving evidence or may be reluctant to do so?

Answer 77

Special measures. Such as children under 18. Those suffering from a disorder. Those who are afraid. Sexual offence victims. Witnesses to gun and knife violence.

Question 78

What could be special measures for witnesses?

Answer 78

For the fearful: having their written statement read out in court rather than having to attend in person. But ideally, the following can be used to remove the fear, so that the defence can still cross-examine the witness: using screens using tv link to appear at court clearing the court so that evidence can be given in private communication aids such as sign language etc.

Question 79

Before witness evidence is used that has been procured via special measures methods, what needs to be done?

Answer 79

Judge must give warning that special measures have been used and that it should not in any way prejudice the jury against D.

Question 80

Who does a solicitor owe their ulitmate duty to in court?

Answer 80

The law and the court. Fine balancing of the SRA codes of conduct for duty to court and duty to client.

Question 81

Is a defence solicitor allowed to 'coach' their client?

Answer 81

No. But can give client a copy of their witness statement so they can read it before trial commences and stick to it.