Standard 5: Case preparation

The first hearing of a case in the magistrates' courts

5.1   All defendants make their first court appearance in a magistrates' court.

5.2   Advocates prepare for the first hearing by:

a)  considering the charging decision and instructions and whether any further review of the case is necessary;

b)  where the case has been charged by the police, satisfying themselves that the charges are appropriate and can be proved, and that the prosecution is required in the public interest;

c)  if bail has been withheld by the police, determining whether to seek a remand in custody or appropriate conditions to be attached to a defendant's bail;

d)  preparing any representations to be made to the court objecting to bail or regarding the imposition of bail conditions; and

e)  taking steps to ensure progress can be made in the case and to avoid any unnecessary adjournments, such as ensuring the defence and court have received initial details of the prosecution case.

5.3   In good time before the court begins, advocates make themselves available to meet the court's legal adviser, defence solicitors and officers from the Probation Service or Youth Offending Service to identify cases which are likely to result in a guilty plea so that, where possible, pre-sentence reports can be prepared on the day to enable the court to sentence the offender without a further appearance.

5.4   When a defendant pleads guilty, the advocate:

a)  outlines the facts of the case, including, where appropriate, any visually recorded material and Victim Personal Statement, to the magistrates so that they may pass a sentence that fully reflects the seriousness of the offence;

b)  draws attention to any previous convictions and, where appropriate, simple cautions or conditional cautions recorded against the offender; [Note: Youth offenders cannot be given a simple caution. They may, however, be given a Reprimand or Final Warning. For convenience, we use the word caution in these standards to refer to these sanctions as well. Youth offenders may be given a conditional caution.]

c)  ensures that the court is aware of its sentencing powers, including any sentence or order that it is required to pass by law; and

d)  asks the court to consider any appropriate ancillary orders such as compensation or an Anti-Social Behaviour Order or Restraining Order that may restrict the offender's ability to offend in the future. We say more about the prosecutor's role in the sentencing process in standard 9.

5.5   When magistrates commit an offender to the Crown Court for sentence (because they consider that the maximum sentence that they could pass is inadequate), we send copies of the evidence and a list of any convictions, simple cautions or conditional cautions recorded against the offender to the Crown Court so that the judge can prepare for the sentencing hearing.

5.6   If the defendant indicates that he or she intends to plead not guilty, and the case is one that can be dealt with in either a magistrates' court or the Crown Court, the advocate lets the court know whether the prosecution considers the case is suitable for them to deal with, or is so serious that it should be committed to the Crown Court for trial.

5.7   If the case is to be tried in a magistrates' court, the advocate:

a)  discusses with the defence advocate what evidence can be agreed without the need for the relevant witnesses to attend court;

b)  helps the court to identify the issues that are to be tried;

c)  ensures the court is aware of trial dates that are inconvenient for prosecution witnesses;

d)  asks the court to give directions about the timetable for trial preparation, including applications for special measures to help witnesses to give their evidence effectively and notices to use bad character or hearsay evidence; and

e)  records on the file what further work the prosecution will need to do to be ready for the trial and the timescales for doing it.

5.8   If the case has to be sent to the Crown Court [see Note below], or the magistrates decide that it is so serious that it should be tried in the Crown Court, or the defendant chooses to be tried in the Crown Court in a case in which he or she is allowed to do so, we assist the magistrates in setting a date for the next hearing by estimating how long we and the police or other investigators will need to complete the work required for the next hearing.

[Note: Some very serious cases can only be dealt with by the Crown Court. They are sent here promptly by a magistrates' court under a special procedure without the need for committal proceedings.]

Preparing for trials or committal proceedings in magistrates' courts and first hearings of cases sent to the Crown Court

5.9   As soon as possible after a defendant pleads not guilty in a magistrates' court or the case is adjourned for committal proceedings or sent to the Crown Court, we decide what extra steps are necessary for the next hearing in the case.

5.10  Within a strict time period, we ask the police or other investigators:

a)  to send us a file containing the evidence and other material gathered during the investigation and to complete any outstanding actions from the original charging decision;

b)  to send us any necessary additional evidence or information needed for the next hearing, including plans or photographs to make the case easier for the court to understand;

c)  to carry out any other specific work identified at the previous court hearing; and

d)  to send us a schedule of relevant unused material collected during the investigation so that we can comply with our legal duty to disclose to the defendant any material or information that may undermine the prosecution case or assist the defence case.

5.11  Where the case is to be tried in a magistrates' court, within a strict time period we ask the Witness Care Unit [see Note below] to tell witnesses who need to give evidence at court the date of the trial and to discuss with them what help they may need at court and before the trial. In Crown Court cases, we ask them to do this after the defendant pleads not guilty.
[Note: The prosecution service and police have set up joint Witness Care Units to arrange for prosecution witnesses to attend court, to assess their needs so that they can give their evidence effectively and to keep them informed about the progress of their case and its outcome.]

5.12  We aim to deal with new material submitted by the police or other investigators and correspondence from the defence within a strict time period of receipt.

5.13  When preparing the case for trial, committal or the first Crown Court hearing, we:

a)  assess whether there is still sufficient evidence to provide a realistic prospect of conviction and whether a prosecution is still required in the public interest, identifying what has changed since the case was first considered by a prosecutor;

b)  decide whether additional evidence should be sought to strengthen the case;

c)  if the charged offence can no longer proceed, consider any alternative offence that can be proved and for which a prosecution is required in the public interest;

d)  prepare a note for the advocate in all but the most simple cases, setting out how each element of the offence will be proved including the strengths and weaknesses of the evidence, how the defendant's likely defence should be dealt with and whether a prosecution is still required in the public interest;

e)  outline any acceptable alternative guilty pleas, or basis of plea, taking care to ensure that the court can pass a sentence that matches the seriousness of the offending;

f)  serve on the defence copies of any extra evidence that we intend to rely on;

g)  if not already done, prepare written applications or notices for any special measures to enable witnesses to give their evidence effectively and for permission to use any evidence that requires the court's permission;

h)  decide whether any unused material should be disclosed to the defence because it may undermine the prosecution case or assist the defence case;

i)  decide whether any material that may undermine the prosecution case or assist the defence case is so sensitive that the court should be asked whether it can be withheld;

j)  send a schedule of all the non-sensitive unused material that we have considered to the defence with copies of any material to be disclosed or instructions on where it can be inspected. We say more about this in paragraphs 19 to 25 of this standard;

k)  ensure that the victim has been given an opportunity to prepare a Victim Personal Statement to be used at the sentencing hearing if the defendant is convicted;

l)  where possible, arrange for a witness whose video-recorded interview is to be played to the court to see the recording before the trial to refresh their memory before they give evidence; and

m)  check that any other needs of witnesses are being dealt with and that appropriate steps are being taken to ensure that witnesses attend court.

5.14  We ask the police or other investigators and the defence to respond to outstanding matters as quickly as possible.

5.15  If for any reason it is likely that the case will not be able to go ahead on the appointed date, we ask the court to consider setting a new date.

Additional work needed when preparing cases for the Crown Court

5.16  When a case is to be heard in the Crown Court, we prepare an indictment which sets out the allegations against the defendant in the formal terms required by the Crown Court.

5.17  We also prepare written instructions to the advocate who will present the case at the Crown Court. All advocates who are approved to represent the prosecution in the Crown Court are supplied with a set of standard instructions entitled: CPS Instructions for Prosecuting Advocates. In addition, we:

a)  enclose copies of all the evidence collected in the case, the non-sensitive unused material schedule setting out the prosecutor's decisions on disclosing the material to the defence and all relevant correspondence with the court, the police and the defence solicitors itemised in a list;

b)  provide copies of any written applications or notices to use evidence that needs the permission of the court, such as special measures to enable witnesses to give evidence effectively, hearsay or bad character evidence, or set out why none of these applications appear to be necessary;

c)  outline how the case should be presented in order to prove all the elements of the offence alleged and how any likely defences or weaknesses in the case can be dealt with;

d)  provide a copy of the prosecutor's charging decision, or in cases where the police charged the defendant without permission from a prosecutor, the prosecutor's decision to accept the case;

e)  point out any unusual legal provisions that affect the case;

f)  explain what further work we have put in hand;

g)  ask the advocate to advise promptly on any further steps that he or she considers would strengthen the case or help to present it more clearly to the court;

h)  indicate what, if any, alternative pleas we are prepared to accept from the defendant; identify any particular features of the case that require the advocate's attention before trial, such as applications to obtain or protect confidential information;

i)  outline whether the defendant is in custody and any custody time limit or, if he or she is on bail, what conditions have been imposed by the court;

j)  explain whether a witness summons or witness warrant is likely to be required to secure the attendance of any witness at court, or the reasons why they are not likely to be required;

k)  ask the advocate to decide the order in which prosecution witnesses will give their evidence so that they do not have to attend court for longer than necessary;

l)  set out dates by which any outstanding evidence is expected to be received, particularly scientific or other expert evidence; and

m)  give contact details of the prosecutor and the paralegal officer responsible for the case.

5.18  We carry out any extra work that the advocate advises is needed to ensure that the case is thoroughly prepared.

Disclosing information to defendants to ensure a fair trial

5.19  The police and other investigators are required to prepare schedules of all relevant material collected during an investigation which is not used as part of the prosecution evidence and to supply the schedules to us.

5.20  We consider the schedules to decide whether any of the items listed:

a)  should be used as part of the prosecution evidence;

b)  might undermine the prosecution case;

c)  might assist the defence case; and

d)  whether any of it is so sensitive that it should not be disclosed to the defence.

5.21  We ask the police or other investigator for copies of any items that may fall into one of these categories so that we can consider them further.

5.22  We record our decision for each item on the schedules, giving reasons for it. We send the schedules to the defence so that they are aware of all the available material, except any that is so sensitive that its existence should not be disclosed.

5.23  We provide the defence as early as practicable with copies of any of the non-sensitive unused material that might undermine the prosecution case or assist the defence case, or, if it is not practical to copy it, invite them to inspect it, usually at a police station.

5.24  Where information is so sensitive that it should not be disclosed to the defence, and it might undermine the prosecution case or assist the defence case, we ask the court to decide whether it should be disclosed to them or can be withheld.

5.25  We keep the question of disclosure under review throughout the life of the case, and afterwards, if any new information comes to light that might have undermined the prosecution case or assisted the defence case. We reconsider our disclosure decisions when the defence tell us about their case, including asking the police or other investigator to comment on information from the defence.

Custody time limits

5.26  Defendants can be kept in custody pending committal for trial or trial for only a limited period of time unless the court agrees to extend the time.

5.27  Where a defendant is remanded in custody, the advocate at the first hearing and each subsequent hearing will announce to the court the date on which the relevant custody time limit expires.

5.28  We note this information on our case file and then record it in our custody time limit diaries.

5.29  We prioritise the preparation of custody cases to make sure that the trial can start or the committal can take place within the custody time limit, or that we can say that we have acted with all due diligence and expedition if it becomes necessary to ask the court to extend the time limit.

5.30  We review the custody time limit diaries and our computerised case management system to check when any custody time limit is approaching. A nominated legal manager or senior prosecutor considers any cases identified by these checks at least weekly. Within a strict time period before the limit expires, we serve notice on the court and the defence if it appears that the case may not start within the time limit so that the court can consider whether to grant an extension. We provide a chronology of events to help the court to decide whether the prosecution has acted with all due diligence and expedition.

5.31   Managers check compliance with the systems weekly and provide a written assurance about the systems being operated to their Chief Crown Prosecutor.