Magistrates’ Court procedure: new Preparation for Effective Trial forms.

Since 7th June 2021, a new version of the Preparation for Effective Trial (PET) form has been in use in the Magistrates’ Court and the Youth Court. The PET form has a number of different sections to be filled out by the defendant or defence representative, prosecutor, and the court as appropriate, to help avoid unnecessary hearings and help make sure that the trial takes place on time and effectively. The PET form was first authorised for use in 2010 and has since been subject to minor amendments, most recently in 2015. 

Why has the PET form changed?

The updated versions of the PET form came about following a judgment of the Divisional Court in late 2018 concerning the use to be made of information supplied for case management purposes: Valiati v DPP; KM v DPP [2018] EWHC 2908 (Admin) , in which Libby Anderson of Crucible (the author of this update) represented Mr Valiati.

At trial in the Magistrates’ Court, the justices had placed reliance on matters that had been accepted on Mr Valiati’s behalf in the PET form but which had never been before the court in evidence either as hearsay or s.10 admissions. The appeal was allowed. As there had been no application under s.118 CJA 2003 to introduce the PET form in evidence nor was there a s.10 admission, the Divisional Court found that this evidence was introduced improperly. The justices had confused “the provision of case management information with evidence without the same being formally adduced”.

The changes were devised by the Rule Committee’s case management group, following consultation and subsequent testing at courts in Essex throughout 2019 and 2020. The amendments affect both content and presentation, and make the forms much clearer and user-friendly, but have not altered the structure of the form or the matters addressed beyond recognition. Certain questions, including questions relating to modern slavery and NRM referrals, feature on the PET form for the first time, in all likelihood due to the increasing prevalence of such defences following the introduction of the Modern Slavery Act 2015.

The content and the presentation of the PET form has now been amended, resulting in both improved clarity and utility. It is hoped that, in light of these improvements, there will be less scope for confusion or conflation of case management information with matters actually intended to be evidence in a case.

What has changed?

Part 1: to be completed by the prosecutor and the defendant/defence representative

Sections 1, 2 and 3 relate to prosecution and defence contact details, and details of the defendant’s trial representative. There are no significant changes here.

Part 2: to be completed by the prosecutor

Section 4 deals with Prosecution Case Management Information. This section is largely the same although the order of the questions has changed slightly. One notable addition to this section is that it now contains a specific question at 4.4, requiring the prosecutor to confirm if there has been any suggestion that the defendant has been a victim of slavery or exploitation, and if so, to provide details of any NRM referral. Although the evidential status of Single Competent Authority conclusive grounds has been somewhat fluid in recent months (see DPP v M [2020] EWHC 3422 (Admin), then overruled by Brecani [2021] EWCA Crim 731), the NRM process and SCA decisions are nevertheless an important part of trial preparation for both the prosecution and defence as positive conclusive grounds may either impact upon any decision to continue a prosecution, or may affect what defences are open to a defendant.

Section 5 deals with applications for directions. There is an additional question at 5.1, where the prosecution can tick yes or no to confirm whether any prosecution witnesses may require special measures, reasonable adjustments, or other support. This is an appropriate amendment; flagging these issues early means that necessary measures can be put in place to make the experience of giving evidence as comfortable as possible. This can only have a positive impact on the quality of evidence given and improve the general experience of coming to court, which can be traumatic and confusing.

Part 3: to be completed by the defendant/defence representative

Sections 6 and 7 deal with advice on plea, trial in absence, and partial or different guilty pleas. There are no significant changes.

Section 8 deals with Defence Case Management Information. Section 8.1 contains a number of tick boxes ‘to help the court find out what is in dispute and give appropriate directions for trial’. The issues on the latest version of the form are: presence; involvement; injury/loss/damage; identification; lawful arrest; interview, fingerprints/DNA, scientific evidence, alcohol/drug testing procedure, disqualification/court order; continuity; and anticipated defences. Each has options for ‘not disputed’, ‘disputed’, and ‘irrelevant in this case’, along with a space to briefly explain what is in dispute. This is significantly clearer than the previous version which simply stated ‘The following statements are to help the court find out what is in dispute and give appropriate directions for trial. Tick as appropriate’ with accompanying tick boxes for ‘yes’, ‘no’ and ‘N/A’, which on occasion caused confusion as to whether the question being asked was ‘is this agreed?’ or ‘is this in dispute?’ which might require completely opposite answers! This section also includes space for the defence to identify possible issues of slavery/exploitation, including details of any NRM referral.

Section 8.2, importantly, is entitled ‘Admissions’, which in the previous version of the PET form had a standalone section. Only matters set out in this section of the PET form can be treated as facts that are agreed between the parties, and this section clearly states that “facts which are admitted are evidence”, signposting the defence to the relevant legislation and Criminal Procedure Rules.

Other matters stated in the PET form, such as the issues set out in Section 8.1, will not necessarily be allowed to be admitted in evidence. The Crown can rely upon declarations contained in a PET form as evidence against a defendant, but such evidence must be properly introduced and argued so that the defence is in a position to make informed submissions. This may mean, for example, a hearsay application under s.118 CJA 2003. By way of example, if a Defendant has previously ticked ‘not disputed’ for presence in Section 8.1 of the PET form, and then at trial asserts that he or she was not present, the prosecution can only rely on that previous declaration by making a successful application under an appropriate evidential gateway. An application to admit statements on the PET form as previous inconsistent statements having been successful, the prosecution would be able to, for example, cross-examine the Defendant on that point, and make submissions on the inconsistency in closing.

However, the status of declarations on the PET form is not explained anywhere on the form. Naturally, defence representatives should be aware of the risk that any matters stated on the form on behalf of the defendant could potentially become the subject of a hearsay application as a previous inconsistent statement, should the case develop in that direction (see, for example, R v Turner (Bryan) (1975) 61 Cr App R 67; R v Newell [2012] EWCA Crim 650; Case Management Forms, Anthony Edwards [2011] Crim LR 548). Similarly, prosecutors should be aware of the appropriate procedure if they wish to rely on PET form declarations, rather than simply putting the declaration in. It is important for reasons of fairness that the Defence has the opportunity to respond to any application and seek to keep out any previous inconsistent statements.

Sections 8.3 and 8.4 invite the defence to identify the real issues in the case, including the particular facts and matters of law that are in dispute, and to raise any points of law that may be complex, novel or unusual.

Sections 8.5 and 8.6 relate to service of defence statements and use of display equipment in the courtroom. There are no significant changes.

Section 9 deals with applications for directions, and includes a question inviting a yes or no response to confirm whether any defence witnesses may require special measures, reasonable adjustments, or other support.

There is no longer a dedicated space for ‘additional information’ at the end of Parts 2 and 3, but the questions contained in those sections have been unpacked, for example, every separate issue listed under section 8.1 has a blank space for the defence to annotate what is in dispute, rather than simply ticking yes or no. This makes the form much clearer and ensures that the relevant information is easily visible, rather than requiring a reader to flip backwards and forwards between pages.

Part 4: to be completed by the prosecutor and the defendant/defence representative and the court

Sections 10 and 11 are witness tables for the prosecution and defence respectively. There are no significant changes.

Part 5: record of court’s decisions and directions for effective trial

This section provides space for the court to record details of matters such as interpreters required, the language, the party to provide the interpreter, timetabling for further disclosure, any special measures or witness summonses ordered, s.36/38 representation, intermediary reports and other standard directions. These matters are largely as set out in the previous version of the PET form, save that they are now set out in slightly more detail. Standard directions for intermediary reports, ground rules, and standard preparation time limits are attached at the back of the form. As in the old form, there is a table for key details such as trial date, time estimate, venue, CTL, and signatures.