Prep 4 Pre-Trail Hearings and Confessions

Examples of Pre-Trial Events

• Plea and Trial Preparation Hearings

• Indictments

Purpose of Pre-Trial Hearings

• Set a Trial Date

• Directions for Service of Documents or Resolving any Matters of Law

• Decide admissibility of evidence

When must a PTPH be called?

Within 28 days when a Magistrates’ Court send a case for trial at the Crown Court

When must evidence be served on the defence if sent to the Crown Court?

• Within 50 days if the defendant is in custody

• Within 70 days if on bail

Requirements for sending a case to Crown Court

• PTPH

• Sending Sheet

• Service of Evidence

• Evidence uploaded to Crown Court Digital Case System

• Draft Indictment served to Prosecutor

Purpose of Plea and Trial Preparation Hearing (PTPH)

• Arraignment (Guilty or Not Guilty Plea to each count)

• Setting Trial Date

• Service of Prosecution Evidence

• Directions for Expert Evidence

• Witness Requirements

Arraignment

The process of the defendant pleading guilty or not guilty to each count

Used Evidence

Evidence relied upon at trial

Unused Evidence

Evidence not relied upon at trial

Importance of Unused Evidence

Can be extremely important to the defendant as it may undermine the prosecution’s case

Full and Proper Disclosure under R v H and C

Full disclosure of evidence discovered should be made by the prosecution to the defence

Four Stages of Disclosure

• Investigation Stage

• Initial Duty of Disclosure on the Prosecution

• Defence Disclosure

• Continuing Duty of Disclosure

Investigation Stage

There is a duty to record and retain all relevant material by the Officer in Charge, Investigator and Disclosure Officer

Until when must evidence be retained?

• Until the defendant is released; or

• 6 months after conviction if not a custodial sentence

Defence Statement

A written statement which sets out the nature of the accused’s defence

Is a defence statement compulsory under s5 CPIA 1996?

Only in the Crown Court

Time Limits on a Defence Statement

• Within 28 days of prosecution’s disclosure at Crown Court

• Within 10 business days of prosecution’s disclosure at Magistrates’ Court (if chosen)

Requirements for a Defence Statement under s6A CPIA

1. Nature of the accused’s defence

2. Matters of fact which the defendant disputes

3. Why the defendant takes issue

4. Any points of the law the defendant wishes to take

5. Particulars of Alibi Witnesses

Consequences of the Defence’s Disclosure Failure

• Adverse Inferences (Crown Court only)

• Comments (Crown Court only)

• No application for specific disclosure

• Prosecution may not review subsequent disclosure in light of Defence Statement

Application for Specific Disclosure

Can be made where the defence has reasonable cause to believe that there is a prosecution material which should have been disclosed but has not

Potential Consequences of Failure to Disclose by the Prosecution

• Stay the Proceedings

• Conviction quashed

• Delay and Imposition of Wasted Costs

• Exclusion of Evidence

Third Party Disclosure

Not obligatory on third parties however can be summonsed by the Court

Public Interest Immunity

Prosecution may apply not to disclose material if there is a real risk of serious prejudice to an important public interest

Facts in Issue

Facts that any party needs to prove in order to prove its case

Key Methods of Proving a Fact other than Live Evidence

• Agreeing a witness statement is true by consent of the parties

• Agreeing any fact between the parties

• Judicial Notice

Types of Evidence

• Real Evidence

• Written Form

• Real

• Direct

• Circumstantial

• A ‘view’

Relevance of Evidence

Whether the evidence is logically probative of a fact in issue

Exclusionary Rules

Rules that prevent the admissibility of evidence to protect the fairness of trials

Weight of Evidence

The strength, reliability and value of evidence

Tribunal of Fact

Who determines what the facts are

Tribunal of Law

Who determines what the law is

Methods of Excluding Evidence

• Applications for Dismissal

• Submission of no case to answer

• s78 PACE

• s76 PACE for Confessions

• s82 PACE Common Law Exclusion

• Abuse of Process Applications

Application for Dismissal

A pre-trial application to have the charges against the defendant dismissed

Test for Applications for Dismissal

The judge should dismiss the charge if it appears to him that the evidence against the applicant would not be sufficient for him to be property convicted

R v Galbraith Test for Application for Dismissal

• Where there is no evidence that the crime has been committed

• Where the evidence, taken at its highest, is such that a jury could not properly convict on it

Submissions of No case to Answer

Where the defence feels there is no evidence or the evidence is weak and tenuous and so no case can be made in response

Abuse of Process Applications

• Where the court concludes that the accused can no longer receive a fair hearing

• Where it would be otherwise unfair to try the accused and stay is necessary to protect the integrity of the criminal justice system

PACE s82(3)

The common law power to exclude evidence

Application under s78 PACE 1984

Where the admission of the evidence would have such an adverse effect on the fairness of the proceedings the Court ought not to admit it

Breaching the PACE Codes of Practice

May give rise to a s78 application but must be a significant and substantial breach of the codes

When to make a s78 application

• Before the Trial

• At the commencement of the trial

• Prior to the prosecution seeking to admit the evidence which the defence wished to be excluded

Voir Dire (‘a trial within a trial’)

Applications to hear evidence must have any factual matter resolved before it can be ruled upon, the jury will not be present

s76 PACE 1984 Application to exclude Confession

A confession may be excluded for:

• Oppression

• Anything said or done to render unreliable any confession

Oppression under s76(2)(a) PACE 1984

Includes torture, inhuman or degrading treatment and the use or threat of violence

Unreliability under s76(2)(b) PACE 1984

Anything which throws into doubt the reliability of a confession such as a promise to the suspect or a threat to arrest a family member

R v Barry approach for Unreliable Confessions under s76(2)(b)

• Identify the things said or done

• Objectively consider whether these things would render unreliable a confession

• Ask whether the prosecution proved beyond reasonable doubt that the confession was not a consequence of the thing said or done

Examples of Unreliable Confessions

• Deprivation of Sleep

• Failure to Caution

• Denial of Access to Legal Advice

Evidence discovered as a result of an excluded confession under s76(4) PACE 1984

This can be facts discovered or proof of the accused’s mannerisms and can still be used as evidence but the confession itself may not be referred to

Best approach for excluding a confession

Use both s78 and 76