Plea and Case Management Hearing Form: Guidance Notes

Plea and Case Management Hearing Form: Guidance Notes The need for an effective PCMH i. The public, and all those concerned in or affected by a criminal case, have a right to expect that the business of the courts will be conducted fairly but also efficiently and effectively. Delays cost money and adversely impact on the quality of justice. The Plea and Case Management Hearing offers the best, and often the only, opportunity for the judge properly and effectively to manage the case before it is listed for trial. Other hearings formerly called mentions are expensive and should actively be discouraged; nearly everything formerly done at a mention can and should be done in some other way (usually by telephone or on paper or by an exchange of email, as permitted by CrimPR 3.5(2)(d)). An effective PCMH is therefore vital. ii. iii. iv. Advocates should attend the hearing fully prepared to deal with the issues that are likely to arise, and the listing officer should consider reasonable requests to list the PCMH to enable trial counsel to attend. Since an effective PCMH can only take place after the defence have had a proper opportunity to consider the papers, it is suggested that at least four weeks should elapse between the service of the prosecution case papers and listing of the PCMH. The short guidance given here is intended to be followed in every case but, of course, it is not possible to cover exhaustively all the situations which may be relevant to achieving an effective PCMH. See also Consolidated Criminal Practice Direction (CCPD), paragraph IV.41, Management of Cases to be Heard in the Crown Court; and paragraph V.56, Case Management in Magistrates Courts. How to use the form v. The parties should complete only one form for each case. The form should be used in every Crown Court centre, without any local exception or variation. vi. vii. viii. ix. The form may be completed in manuscript or electronically. Questions 1 to 15 (in Part I) must be answered in every case. Questions 16-36 (in Part II) need only be answered if they are relevant. Question 37, at the end of the form, (the witness list) must be completed in every case. x. The advocate may be asked by the court to expand upon or explain an entry, or to account for the absence of an entry, where one is required. The judge will record on the judicial orders template, or on the PCMH form, any orders made and, if practicable, issue a copy to the parties before the hearing ends. The parties must obtain a copy of that record and comply with the orders made by the date given. Revised 2011 1

Accessing the form xi. The current version of the form is available on the Ministry of Justice website at www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedurerules/criminal/formspage.htm Transmitting the form xii. If you complete the form on the screen, it can still be printed off and used in hard copy. Alternatively, it can be emailed as an attachment. Contents of the form (The following commentary is to assist with the completion of the questions so numbered on the PCMH form.) 1 Date of trial and custody time limits The date of trial should normally be fixed at the PCMH (or before). Any application to extend the Custody Time Limit is best dealt with at the PCMH, when the reasons for fixing a case beyond the time limits will be clear; otherwise there will be the avoidable expense of another hearing. 2 and 3 Details of case and parties This section must be fully completed. The parties must be able to contact one another as must case progression officers and the court. Any change in the details must immediately be notified to the other parties and to the court. See CrimPR 3.4. 4 Compliance with the directions given by magistrates courts The standard / specific directions given by magistrates courts should be complied with (CrimPR 3.5(3)). The court will need to know which orders have not been complied with, and why. 5 Credit for guilty plea Defendants are entitled to be given the advice that credit is given for guilty pleas and the earlier the plea is entered, the greater is the credit given. The judge needs to know that this advice has been given. 6 Trial in absence Defendants need to be warned that if they waive their right to attend, the trial may proceed in their absence. No one can engineer an adjournment simply by absconding. Those who claim to be ill must support that claim by medical evidence to the effect that they are unfit to attend their trial; it is unlikely that a medical certificate merely suggesting that they are unfit to work will be sufficient. See CCPD, I.13; CrimPR 3.8(2)(a). 7 The pleas which the defendant is offering Recording in writing pleas offered to alternative offences which the prosecution are initially unwilling to accept will be advantageous to the defendant if the prosecution subsequently Revised 2011 2

changes its position. In such circumstances, it will be easier for a defendant to claim maximum credit if that offer has been recorded. Pleas offered to counts on the indictment must similarly be recorded before credit is claimed. 8 Allocation of the case Most courts have a system to identify before the PCMH those cases which require allocation to a particular judge; this question is intended to seek out those cases which have been missed. 9 Fitness to plead This is self explanatory, but the judge will need assistance to fix a timetable for the service of experts reports and for the issue to be tried. 10 Disclosure, the defence statement and notification of defence witnesses The parties must identify any outstanding disclosure points. See Part 22 of The Criminal Procedure Rules 2010. The defence must serve a detailed defence statement setting out the issues in the trial; any failure to do so may be the subject of adverse comment at the trial and the judge may issue a warning to this effect, under section 11(3) of the Criminal Procedure and Investigations Act 1996. Pending service of a defence statement, question 10.4 allows the defence to give some notification of the defence. The practice of appending long shopping lists to vague and unspecific defence statements has no legal foundation; any application for further disclosure should be made by way of formal application under section 8 of the Criminal Procedure and Investigations Act 1996 (as amended). The judge will expect compliance with the relevant Practice Directions, Guidelines and Protocols. Pursuant to section 6C of the Criminal Procedure and Investigations Act 1996, the defence must notify the prosecution and the court whether he intends to call any witnesses at trial, and if so, give their names, addresses and dates of birth. The Practice Direction sets out a form for use by the defence when giving this notice (see rule 22.4). It may be that the time limit for notification has not expired when the PCMH is held but even so the defence might usefully be reminded of their responsibilities under that provision; if even as early as the PCMH the defence can comply, then they should be encouraged to do so. 11 and 12 Timetable of further evidence and expert evidence Advocates should have available proper information as to what remains to be served, together with a realistic timetable for compliance. Parties should be prepared to provide realistic time estimates and not rely on a standard time period of, for example, 28 days if this has little bearing on the true amount of time likely to be required. The court needs detailed and accurate information as to when the evidence will be available. These enquiries should be made before the hearing. Failure to do so is likely to cause unnecessary adjournments. Consideration should be given to CrimPR 33.6 and whether (now or later) the experts should be asked to confer, to identify the real areas of dispute. 13 (and 37) Witness list The mere fact of warning a witness to attend may cause him or her anxiety. Furthermore, the warning of witnesses is time consuming and expensive. When completing the witness list at paragraph 37, it is important to identify the relevant disputed issues to which the evidence of any particular witness is necessary, so that the judge can decide whether their attendance is necessary. The court may decline to order the attendance of witnesses unless their presence is really necessary. Consideration should therefore also be given to those Revised 2011 3

witnesses in respect of whom a summons is required. See CrimPR Part 28 for rules on witness summonses. Thought should always be given to the staggering of witnesses to eliminate or reduce waiting times. The witnesses availability must be known at the PCMH to ensure that the trial date is convenient. 14 Timetabling of the trial Part 3.10 CrimPR requires the judge to consider timetabling in every case, with a view to improving efficiency; these matters require consideration throughout the trial; it may be possible to make some orders even at the PCMH. If there are to be preliminary points taken, then consideration must be given to when a jury will be required and arrangements made to stagger the attendance of witnesses. No one should be asked to attend for a 10.30 am start only to find that there is a lengthy legal argument before the case can even be opened. 15 The Indictment CrimPR 14.1(3)(a) requires the indictment to be signed by the court officer. Any amendment to the indictment must be ordered by the court. 16 Admissions and agreed facts Admissions, sometimes more accurately called agreed facts, take time to draft but they can save a great deal of court time and thereby reduce costs. This applies not only to formal evidence (for example of continuity or of the captions to photographs) but also to many other types of evidence, of which these are but examples: lengthy police interviews are often better summarised and agreed; witness statements which are agreed to be read can often be summarised; expert evidence, including medical evidence, is often easier to understand if it is summarised by way of agreement rather than being read; this applies with particular force to evidence of telephone traffic and to cell site analysis; bad character evidence, if admissible, is also often better agreed. 17 Case Summary Case Summaries should have been provided before the PCMH in all Class 1 cases and in any other case of complexity, but they may be needed in other cases as well. 18 Measures to assist witnesses and defendants in giving evidence In accordance with CrimPR Part 29, special measures applications should have been made by the parties and considered by the court before the PCMH. This question addresses other points: Question 18A serves to remind advocates and judges of the needs of vulnerable and intimidated witnesses and of the measures which now exist to assist them in giving evidence; Question 18B serves a similar purpose in relation to defendants, who may require assistance in giving evidence; Question 18C alerts the judge to applications to be made in relation to anonymous witnesses, which are likely to require a separate hearing, ideally before the trial judge. Revised 2011 4

19 Young or vulnerable defendants Question 18B addresses the assistance which a defendant may need to facilitate giving evidence. This question seeks to identify any other needs of defendants who are children or young people or adults who are vulnerable in that they suffer from a mental disorder or from some other significant impairment of intelligence or social function and for whom special arrangements must be made so that they can effectively understand and participate in the proceedings (as to which see generally paragraph III.30 of the CCPD). 20 Reporting restrictions Reporting restrictions need to be carefully considered and balanced against the rights of the press and other interested parties. The judge is likely to require assistance before making any order. See CCPD I.3. and the JSB and Society of Editors publication, Reporting Restrictions in the Criminal Courts, url hhtp://www.judiciary.gov.uk/resources/jco/documents/crown court reporting restrictions 021009.pdf.) 21 Third party material Such applications must comply with CrimPR Part 28. Careful thought needs to go into identifying the witness to be served, the material sought and the reason that it is said to be relevant to an issue in the case. Any person whose right of confidentiality might be adversely affected must also be identified and information provided as to how and by whom they are to be notified, how they are to be permitted to make representations and when and by whom any rulings are to be made. It is important that such applications are made no later than the PCMH to avoid adjournments at a later stage arising out of delayed applications. Any such application is better made using the appropriate form set out in the Practice Direction for use in connection with an application under Part 28, which directs the applicant and the judge to the relevant criteria. 22 Defendant s interviews Inaccuracies within transcriptions and likely submissions as to admissibility must be identified. Furthermore, the police may interview suspects at length, producing bundles of transcripts, the volume of which may make them unsuitable to put before a jury. The parties must consider producing summaries. The production of the first draft is primarily the responsibility of the advocate for the prosecution. If practicable, interviews should be available in electronic form, so that editing, pagination and copying can be done without delay. Further guidance is given in CCPD IV.43. 23 Witnesses giving evidence by video or DVD interview These questions, each of which raises a separate point, are self-explanatory but failure to address them is a frequent source of adjournments. The quality of the recording, the accuracy of the transcript and the admissibility of the interview (or any particular part or parts of it) are separate points, each of which needs to be addressed at the PCMH. Any editing of the tape (or disc) takes time. Particular care must be taken to ensure that any editing of the tapes has not diminished its sound quality and that any editing of the tape is precisely reflected in editing to the transcript; again this takes time. It should not be done on the morning of the trial or the day beforehand. Only if these issues are addressed in advance can young and vulnerable witnesses be called as soon as they arrive at court. It is unacceptable to prolong the anxiety of young and Revised 2011 5

vulnerable witnesses simply because these issues have not been resolved at PCMH. See also CrimPR Part 29 for rules on special measures directions; and CCPD IV.40. Furthermore, the extreme and unnecessary length of many of these interviews is becoming a matter of great concern. Judges have a responsibility to eliminate undue repetition and may require interviews to be reduced in length, so as to reduce the burden on the jury, and on the witness, whilst not disadvantaging the defendant. 24 Witness interviews The issues raised in this question differ from those raised in question 23. There is a growing practice of recording interviews with witnesses before setting out their evidence in a written witness statement. If this is done, then, subject to the disclosure test, the video or audio recording should be disclosed as unused material. The prosecution advocate therefore needs to know if any witness was interviewed in this way (which may not be clear from the papers served). It will normally suffice for the video or audio recording itself to be disclosed. Transcripts are expensive and any claim for a transcript needs to be justified. 25 and 26 CCTV evidence and electronic equipment Subject to the duties of the prosecution properly to investigate the case under the relevant Guidelines, the prosecution only have duties to consider disclosure of CCTV footage in their possession. If the defence seek footage from third parties, it is for them to do so, rather than the prosecution. Furthermore, much CCTV footage is in a format (e.g. multiplex) which is unsuitable for showing in court without adaptation or editing. This must be sorted out before the trial. Many courts have simple VHS video and DVD playback facilities and the parties must ensure that the material which they want to play is compatible with the court equipment (if not, they must provide their own). 27 Cross-examination on sexual history Section 41 of the Youth Justice and Criminal Evidence Act 1999 enacts an important principle and compliance with its requirements is vital to ensure that those who complain that they are victims of rape (and other sexual offences) receive the protection which the law affords to them. In accordance with CrimPR Part 36, applications should be made and considered by the trial judge if possible at or before the PCMH. Applications made on the day of the trial are strongly to be discouraged. 28 and 29 Bad character and hearsay CrimPR at Parts 34 (Hearsay) and 35 (Evidence of bad character) provide for detailed applications to be made in the prescribed forms. Questions 28 and 29 therefore only seek to identify any outstanding issues (or potential future applications). 30 Admissibility and legal issues Issues of admissibility and legal issues should, where possible, be identified before the trial, so that the parties can exchange skeleton arguments and the judge can properly prepare for the hearing. See also section 7 of the Criminal Justice Act 1987; and sections 31 and 40 of the Criminal Procedure and Investigations Act 1996. 31 Public Interest Immunity claims If a claim is to be made on notice, then the necessary arrangements must be made. See CrimPR 22.3. Revised 2011 6

32 Jury bundle If a jury bundle will be needed at the trial, then its content will need to be agreed before the trial. Any outstanding issues need to be identified. 33 Concurrent family proceedings It is important to identify those cases where there are concurrent family proceedings, so that the Designated Family Judge can be alerted. 34 Special arrangements Any requirements for an interpreter or for those with a disability must be identified in advance, so that proper arrangements can be made. See CrimPR 10.5(1)(h) and 12.1(1)(e). 35 Linked criminal proceedings These need to be identified, if possible with the court reference numbers. 36 Additional orders It is important to identify additional orders which may be required. 37 Witness List See the note in paragraph 13, above. Revised 2011 7