What are ‘pre-trial matters’?
‘Pre-trial matters’ are matters that can be resolved pre-trial. Pre-trial matters are considered: at a first hearing; at a hearing on a date after the first hearing and before the trial date; or on the day of trial itself before the trial starts.
The Criminal Procedure Rules have a clear aspiration running through them that the parties and the court resolve all pre-trial matters before the day of trial where possible. The expectation is that on the day of trial parties will be ready to start immediately unless something unexpected has arisen.
Pre-trial matters in the magistrates’ court
Where a trial takes place in the magistrates’ court the parties will be expected to deal with case management issues at the first hearing. There is a magistrates’ court case management form, called the Preparation for effective trial form (PET form), that the court will expect parties to complete before the first hearing commences.
At the first hearing the court will give directions for:
- service of documents between the parties (should any be needed)
- either resolve there and then any matters of law (rarely) or set out a timetable as to when they will be resolved either at a pre-trial hearing or on the morning of trial.
The court will also set a trial date.
If the magistrates’ court holds a pre-trial hearing to for example, decide the admissibility of a piece of evidence, that ruling is binding on the magistrates’ court that hears the trial (whether composed of the same lay justices/District Judge, or not, unless one party applies for the ruling to be discharged or varied).
In short, you cannot make an application to vary or discharge based on the same arguments and facts. Such an application can only be made if either:
a) there has been a material change in circumstances; or
b) something was not brought to the attention of the court when they made the ruling which could justify variation or discharge.
The types of applications that might be made are largely the same in both courts save that in the magistrates’ court, the lay justices or District Judge hear the application and then rule on it. This causes difficulties with applications to exclude evidence for example. The lay justices or District Judge hears the potentially prejudicial evidence and, if they agree it should be excluded, somehow have to ignore it when they decide the case at trial. You can try to avoid this by having a differently constituted magistrates’ court decide the point in advance, but this rarely happens.
How is the evidence served on the defence?
Where the magistrates’ court sends the case for trial to the Crown Court:
* It must set a date for a Plea and Trial Preparation Hearing (PTPH) within 28 days.
* The magistrates’ court will complete a ’sending sheet’- a notice specifying the offences for which the defendant is being sent and the Crown Court where the defendant will be tried. This notice should be sent to the defendant and the Crown Court. There is no prescribed form for such a notice.
Evidence must be served within:
o 50 days (if the defendant is in custody); or 70 days (if the defendant is on bail)
o of the date on which the defendant has been sent for trial in the Crown Court.
* Evidence is uploaded on to the Crown Court Digital Case System
* Draft indictment must be served by the prosecutor on the CC officer not more than 20 business days after serving prosecution evidence.
Pre-trial matters in the Crown Court
There will be a PTPH and there may be other hearings.
- PTPH (must happen in all cases)
- Further applications (possible further hearings)
- Trial
Where a defendant wants to enter a guilty plea to an indictable only matter, D is unable to do so at the first hearing because the magistrates’ court has no jurisdiction to hear it.
Plea and trial preparation hearing (PTPH)
- The PTPH is the main, and often only, pre-trial Crown Court hearing.
- At the first hearing in the magistrates’ court when the case is sent ‘forthwith’ by s.51 Crime and Disorder Act (CDA) 1998, the PTPH will be scheduled. The PTPH will take place within 28 days.
- Where a trial is anticipated, the parties are required to fill in a PTPH form in advance of the hearing as the judge uses it when the hearing is conducted.
- The PTPH consists of two parts: first ‘plea’; and second either ‘sentence’ or ‘trial preparation’ stage.
Plea stage
If the defence want to make an application to dismiss the charges, they must do so before a plea is taken.
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, this is known as arraignment.
* If the defendant pleads guilty to the sole count on the indictment / all of the counts on a multi-count indictment: the case moves to sentence.
* If the defendant pleads not guilty to the sole count on the indictment / all of the counts on a multi-count indictment: the court proceeds to the ‘trial preparation’ of the hearing.
* Where a defendant enters at least one guilty plea and at least one not guilty plea on an indictment consisting of two or more counts: the prosecution will need to consider how it wishes to proceed, the result being either that the court moves to sentence or if there is to be a trial the ‘trial preparation’ stage needs to take place.
Unfit to plead?
If the judge has determined that the defendant is unfit to plead then no plea is taken.
The court will have to hold a trial with a jury to determine whether the defendant committed the act (i.e. the actus reus of the offence, but not mens rea) and so the ‘trial preparation’ stage of the hearing will need to take place.
Please note that a defendant who is found unfit to plead and a jury finds they have committed the act can only be made subject to:
* an absolute discharge
* supervision order; or
* a hospital order.
Trial preparation stage
These are all subject to a question on the PTPH form that the advocates must complete before the hearing. Directions at PTPH are standardised and the court sets 4 “stage dates” with the parties required to comply with certain standard directions by the staged dates.
Trial date. If a trial date has not already been set, a trial date will be set at the PTPH taking into account the likely estimate of the length of the trial and witness availability.
Prosecution evidence. The prosecution will have to confirm if it has served all of its evidence or, if not, what is still left and when it will be served.
Expert evidence. If the prosecution or defence intend to rely on expert evidence, directions will be given for service and for seeking agreement between experts.
Witness requirements. The defence must inform the prosecution and set out on the form those prosecution witnesses they require to attend court to give evidence, as well as estimating how long it will take to question each witness. The defence must also give details of any defence witnesses it intends to call.
Standardised directions will apply for dealing with matters such as:
- Special measures. Directions will apply for any special measures (such as live link/screens) sought by witnesses.
- Bad character. Directions will apply for any bad character applications by the prosecution and defence and timetables set for the service of bad character applications and responses.
- Witness summons. If a witness summons is required, details must be given and the application can be made at the PTPH or a timetable given for making the application.
- Agreed facts and issues. The defence must set out what factual matters are agreed so that they can be drafted as admissions for use at trial.
- Disputed facts and issues. The defence must set out those matters where there is a dispute with the prosecution case so that the issues for the trial are clear.
- Defence statement. The defence must serve a defence statement at stage 2 which sets out the defence case.
- Disclosure. If there are issues relating to advance disclosure of unused material, this can be dealt with or the standard directions will deal with this.
- Defendant’s interview. A timetable will apply for the prosecution and defence to agree an edited interview record for use at trial.
- Hearsay. Directions will apply on the service of applications to rely on hearsay evidence.
- Admissibility and legal issues. All issues relating to the admissibility of evidence and other legal issues should be notified. Directions will be given or apply on when these applications will be made (e.g. at or before trial) and on the service of any documents in support, such as skeleton arguments.
The expectation is that no further hearings will be required, either because there are no further issues to resolve before trial or because they can be dealt with on the day the trial is listed.
Disclosure
The prosecution decide which material will be:
Used material includes such items as:
* statements from the prosecution witnesses
* the defendant’s record of taped interview
* other documentary exhibits such as plans and diagrams that are relevant to proving the case.
- It is from these materials that defendants will know what the cases against them are.
Unused material includes items such as:
* statements from witnesses that the prosecution is not relying upon at trial to prove its case
* records of previous convictions of prosecution witnesses
* disciplinary findings against police officers.
The importance of unused material
- Often a case will be based on a witness’ whose evidence, if believed, is sufficient to convict the defendant of a criminal charge. Sometimes other witnesses throw doubt on this.
- If the prosecution considers that there is a realistic prospect of conviction and that it is in the public interest to prosecute the case, it would clearly be wrong to only reveal to the defendant the material that supports its case and not the material that does not.
- Material in the hands of the prosecution that might help a defendant is to be served on D who may choose to present that material in defence at trial. But material which is supportive of the prosecution case (and which the prosecution chooses not to rely upon) or which is neutral in its effect need not be disclosed as unused material.
Full and proper disclosure
R v H and C [2004] ‘The golden rule is that full disclosure of such material should be made.’ Full and proper disclosure = fair system of criminal justice - a vital part of the preparation for trial and rules have developed as to both the duty to disclose unused material and the duty to retain material during investigation.
what are the 4 stages of disclosure?
The general scheme of disclosure falls into four stages:
(1) the investigation stage- the duty to record and retain material during the investigation;
(2) the initial duty of disclosure on the prosecution;
(3) defence disclosure; and
(4) the continuing duty on the prosecution to keep disclosure under review.
The investigation stage (stage 1 of disclosure)
Under the Disclosure Code of Practice, during a criminal investigation all material which may be relevant to the investigation must be recorded in a durable or retrievable form and retained. Every investigation will have:
* an officer in charge of the investigation- responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material;
* an investigator- namely any police officer conducting the investigation; and
* a disclosure officer- examines material retained + reveals material to prosecutor and defence at p’s request.
Duty to retain relevant material
The duty to retain and record relevant material
In routine cases all these functions may be carried out by same person, but in complex cases the roles = individual.
* The investigator- must follow all reasonable lines of enquiry, whether these point towards or away from the suspect and the investigator must be ‘fair and objective’.
* Disclosure officers- must inspect, view, listen to or search all relevant material that has been retained by the investigator and must provide a personal declaration that this has been done. Where there is doubt as to whether any material is disclosable, the disclosure officer must seek the advice and assistance of the prosecutor.
All material which may be relevant to a criminal investigation must be retained.
- Duty to retain material lasts until a decision is taken whether to institute proceedings against a suspect.
- Once proceedings commenced, all material must be retained until the accused is acquitted or convicted, or the prosecutor decides not to continue with the case.
- Where D is convicted, material must be retained until D is released from custody (or discharged from hospital) or, where D didn’t get a custodial sentence or a hospital order, until 6 months from the date of conviction.
