Pre-trial hearings and confessions

What is the overriding objective in criminal procedure?

To deal with cases justly.

When are most pre-trial matters dealt with in the Magistrates’ Court?

At the first hearing. Pasted text

What form should parties complete before the first Magistrates’ Court hearing?

The PET form.

What can the Magistrates’ Court do at the first hearing about documents?

Give directions for service of documents.

What can the Magistrates’ Court do about legal issues at the first hearing?

Resolve them or set a timetable for resolving them.

Are Magistrates’ Court pre-trial rulings on matters such as admissibility binding at trial?

Yes.

When can a Magistrates’ Court pre-trial ruling be varied or discharged?

If there is a material change in circumstances or something relevant was not brought to the court’s attention originally.

What evidential difficulty arises in Magistrates’ Court admissibility rulings?

The same tribunal may hear prejudicial evidence when deciding admissibility and later determine the facts.

What must the Magistrates’ Court do when sending a case to the Crown Court?

Set a PTPH date within 28 days and complete a sending sheet.

What does the sending sheet specify?

The offences and the Crown Court location.

Within how long must prosecution evidence be served after sending to the Crown Court if D is in custody?

50 days.

Within how long must prosecution evidence be served after sending to the Crown Court if D is on bail?

70 days.

When must the prosecution serve the draft indictment?

No more than 20 business days after serving prosecution evidence.

When must the PTPH take place?

Within 28 days of the first Magistrates’ Court hearing.

What should parties complete before a Crown Court PTPH where trial is anticipated?

The PTPH form.

When must an application to dismiss a charge be made?

Before plea.

What practical steps should the defence take before PTPH?

Ensure CCDCS access, speak to witnesses, draft counsel’s brief and prepare a proof if evidence is complete.

What is arraignment?

The defendant entering a plea to each count.

What happens if D pleads guilty to all counts?

The case moves to sentence.

What happens if D pleads not guilty to all counts?

The case moves to trial preparation.

What happens where D pleads guilty to some counts and not guilty to others?

The prosecution considers whether to proceed to trial on the remaining counts.

Who decides whether D is unfit to plead?

The judge after hearing medical evidence.

Is a plea taken if D is unfit to plead?

No.

What happens if D is unfit to plead?

The court holds a trial to determine whether D committed the actus reus.

What disposals are available where D is unfit to plead?

Absolute discharge, supervision order or hospital order.

What does the Crown Court do at the trial-preparation stage of PTPH?

Sets stage dates and deals with trial preparation under standard directions.

What core trial matters are dealt with at PTPH?

Trial date/length, prosecution evidence, experts and witness requirements.

What standard-direction topics may be dealt with at PTPH?

Special measures, bad character, witness summonses, agreed/disputed facts, defence statement, disclosure, interview editing, hearsay and admissibility.

What are the four stages of criminal disclosure?

Investigation; prosecution initial disclosure; defence disclosure; continuing prosecution review.

What is “used” material?

Material relied on by the prosecution at trial.

Give examples of used material.

Witness statements, D’s taped interview and exhibits.

What is “unused” material?

Material in the prosecution’s possession not relied on at trial.

Give examples of unused material.

Unused witness statements, witness PNC records and police disciplinary findings.

What principle did R v H and C establish about prosecution material?

Material that might help the defence should be disclosed.

What is the OIC’s role in disclosure?

Direct the investigation and ensure proper recording and retention of material.

In what form must investigative material be recorded?

Durable or retrievable form.

What kinds of material must investigators retain?

Crime reports, phone records, witness statements/drafts, exhibits, interviews, expert material, first descriptions and material undermining witnesses.

What is the investigator’s duty regarding lines of enquiry?

Follow all reasonable lines of enquiry fairly and objectively.

What is the disclosure officer’s role?

Examine retained material and reveal relevant material to the prosecutor and defence.

What must a disclosure officer personally confirm?

That all relevant retained material has been inspected, viewed, listened to or searched.

What should a disclosure officer do if unsure whether material is disclosable?

Seek advice and assistance from the prosecutor.

How long does the investigation-stage recording duty last before proceedings?

Until the decision whether to institute proceedings.

How long must material be retained once proceedings begin?

Until acquittal, conviction or discontinuance.

How long must material be retained after conviction if D is detained?

Until D is released.

How long must material be retained after conviction if D is not detained?

6 months from conviction.

What happens to retention duties while an appeal is ongoing?

Material must be kept until the appeal concludes.

Must the prosecutor be told about all unused material?

Yes.

How is unused material scheduled in the Crown Court?

On an MG6C schedule.

How is unused material listed in anticipated not-guilty Magistrates’ Court cases?

On a streamlined disclosure certificate.

What is sensitive material?

Material whose disclosure risks serious prejudice to an important public interest.

How is sensitive material recorded?

On a separate schedule or separately revealed in exceptional cases.

What is the prosecution’s initial disclosure test under s 3(1) CPIA 1996?

Disclose unused material capable of undermining the prosecution case or assisting the accused.

What must the prosecution do if no material meets the s 3(1) test?

Give the accused a written statement saying so.

What counts as prosecution material under s 3(2) CPIA?

Material in the prosecutor’s possession connected with the case or inspected under the Disclosure Code.

Must material that is merely neutral or helpful to the prosecution be disclosed?

No.

What cross-examination factor is relevant to disclosure under the A-G’s Guidelines?

Whether the material could usefully be deployed in cross-examination.

What legal applications may disclosure material support?

Exclusion of evidence, abuse-of-process stay, or an ECHR incompatibility argument.

What other matters may make material disclosable under the A-G’s Guidelines?

It may explain D’s actions or affect scientific/medical evidence.

Must material be considered cumulatively as well as individually?

Yes.

What approach should the prosecution take in large complex disclosure cases?

A planned, appropriately resourced and transparent approach from the outset.

What document may be used to explain disclosure strategy in complex cases?

A Disclosure Management Document.

What communication is expected between prosecution and defence in complex disclosure cases?

Prompt dialogue and engagement.

Is disclosure law prescriptive about method or result?

Result rather than method.

What role does the judge have in complex disclosure?

Robust case management, directions and addressing failures.

Is disclosure intended to be a box-ticking exercise?

No.

When must IDPC be provided?

No later than the beginning of the day of the first hearing.

What must IDPC allow the court to do?

Assess plea, venue, case management and sentence.

When does the statutory initial disclosure duty arise in the Magistrates’ Court?

When D pleads not guilty and the case is adjourned for summary trial.

When does the statutory initial disclosure duty arise in the Crown Court?

When D is sent for trial or a Voluntary Bill of Indictment is preferred.

How quickly must the prosecution comply with its statutory disclosure duty?

As soon as reasonably practicable.

Is there any disclosure duty before the statutory CPIA duty arises?

Yes, a common-law duty where early disclosure is required in the interests of justice.

Give examples of when early common-law disclosure may be required.

To assist early case preparation or bail.

What is the prosecution’s continuing disclosure duty?

Keep disclosure under review throughout the case.

When should the prosecution especially revisit disclosure?

After receiving the defence statement.

Can material discovered after the prosecution case closes still have to be disclosed?

Yes.

When does the prosecution’s continuing disclosure duty end?

On acquittal, conviction or a decision not to proceed.

What can the defence seek if prosecution disclosure failure is serious?

A stay for abuse of process.

What should the defence do before seeking a stay based on disclosure failure?

Specify the material sought and seek specific disclosure first.

What may happen to a conviction because of serious disclosure failure?

It may be quashed as unsafe.

What other consequences may prosecution disclosure failure cause?

Delay, wasted costs, refused custody-time extensions or exclusion of evidence.

What duty applies where relevant material is held by a third party?

A duty under the Disclosure Code and A-G’s Guidelines to take appropriate steps to obtain it.

Does the CPIA itself impose the third-party disclosure duty described in the notes?

No.

What should prosecutors do when relevant material may be held by a third party?

Inform the third party and ask them to retain it.

What can the prosecution seek in the Crown Court if a third party refuses access?

A summons under s 2 CP(AW)A 1965.

What can the prosecution seek in the Magistrates’ Court if a third party refuses access?

A summons under s 97 MCA 1980.

Must prosecutors make speculative third-party enquiries?

No; there must be reason to believe the material exists.

What is public interest immunity (PII)?

A mechanism to withhold otherwise disclosable material where disclosure would seriously prejudice an important public interest.

What must the prosecution do if it seeks PII?

Apply to the judge for non-disclosure.

What balance does the court strike on a PII application?

Protect public interest to the minimum necessary while ensuring a fair trial.

What information should a sensitive-material schedule contain?

Why material is sensitive, consequences of disclosure, relevance, impact on prosecution and whether partial disclosure is possible.

What is a defence statement?

A statement setting out the nature and factual/legal basis of D’s defence.

What must a defence statement contain under s 6A CPIA?

Nature of defence, disputed facts and reasons, facts relied on, and legal points/authorities.

What must an alibi defence statement include?

Witness name, address and DOB, or available information to identify/locate the witness.

Is a defence statement compulsory in the Crown Court?

Yes.

What is the Crown Court deadline for a defence statement?

28 days after prosecution initial disclosure or purported compliance.

When must an application to extend the Crown Court defence-statement deadline be made?

Within the existing time limit.

Is a defence statement compulsory in the Magistrates’ Court?

No.

What is the consequence of not serving a defence statement in the Magistrates’ Court?

D cannot apply for specific disclosure under s 8 CPIA.

What is the Magistrates’ Court deadline if D chooses to serve a defence statement?

10 business days after prosecution initial disclosure.

What defence-witness notice must D serve?

Notice of Intention to Call Defence Witnesses.