Criminal Procedure Act 2021

Preliminary trial hearing

6. (1) Where an accused has been sent forward for trial in respect of an indictable offence, the court before which the accused is to stand trial (in this Part referred to as the “trial court”) may, of its own motion or upon the application of the prosecution or the accused, hold one, or more than one, hearing pursuant to this section (in this Part referred to as a “preliminary trial hearing”) where the court is satisfied that—

(a) it would be conducive to the expeditious and efficient conduct of the proceedings, and

(b) it is not contrary to the interests of justice,

for the hearing to be held.

(2) Without prejudice to the generality of subsection (1) , the trial court shall, where—

(a) an accused is charged with a relevant offence,

(b) the prosecution or the accused makes an application to the court for a preliminary trial hearing to be held, and

(c) no preliminary trial hearing has previously been held in respect of the trial of such offence,

hold such a preliminary trial hearing.

(3) Subject to subsections (4) and (5) , where the trial court directs pursuant to subsection (1) or (2) that a preliminary trial hearing shall be held in respect of the trial of an offence, the hearing may be held at any time before—

(a) the jury is sworn in, where the accused is before the Circuit Court or the Central Criminal Court, or

(b) the trial commences, where the accused is before a Special Criminal Court.

(4) The trial court shall, in determining when a preliminary trial hearing shall be held in respect of the trial of an offence, ensure in so far as is possible that the timing of the hearing is likely to achieve the purposes of this Act in a manner that is consistent with the interests of justice and, in particular, is likely to—

(a) facilitate the expeditious and efficient conduct of the proceedings,

(b) result in the least disruption to the jury and witnesses in the trial of the offence, and

(c) best protect the interests of any victim of the offence.

(5) The trial court may, on the application of the prosecution or the accused, where it considers it appropriate having regard to the orders the making of which are to be considered at a preliminary trial hearing and, in particular, where the making of a relevant order is sought, direct that the preliminary trial hearing concerned be held as close in time to the date for which the trial is set down for hearing as the court considers appropriate and just in the circumstances.

(6) Where an accused has not been arraigned prior to a preliminary trial hearing in the proceedings concerned, the trial court may, where it considers it appropriate, direct that he or she shall be arraigned at the commencement of such a hearing.

(7) The trial court may, at a preliminary trial hearing, assess the following matters and make such orders or rulings as it considers appropriate in the interests of justice and to ensure the just, expeditious and efficient conduct of the trial of the offence concerned:

(a) the availability of witnesses for the trial;

(b) whether any particular practical measures or technological equipment may be required for the conduct of the trial;

(c) the extent to which the trial is ready to proceed (including whether there are any outstanding issues relating to disclosure);

(d) the likely length of the trial.

(8) Without prejudice to the generality of subsection (7), the trial court may, at a preliminary trial hearing, make any one or more of the following orders:

(a) where two or more persons are charged in the same proceedings, an order that the persons be tried separately;

(b) any order that may be made under or pursuant to:

(i) section 6 of the Criminal Justice (Administration) Act 1924 ;

(ii) section 15A of the Juries Act 1976 ;

(iii) section 21 or 22 of the Act of 1984;

(iv) section 3 of the Criminal Law (Rape) Act 1981 ;

(v) section 13, 14, 14A, 14C, 19A or 29 of the Act of 1992;

(vi) section 39 of the Criminal Justice Act 1999 ;

(vii) section 181 of the Criminal Justice Act 2006 ;

(viii) section 67 of the Criminal Justice (Mutual Assistance) Act 2008 ;

(ix) section 34 of the Act of 2010;

(x) section 21 of the Criminal Justice (Victims of Crime) Act 2017 ;

(xi) section 25 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 ;

(c) a relevant order;

(d) in the case of proceedings before the Circuit Court or the Central Criminal Court, any other order that could be made by the court in the absence of the jury;

(e) in the case of proceedings before a Special Criminal Court, any other order that could be made by the court during the course of the trial;

(f) any other order relating to the conduct of the trial of the offence concerned as appears necessary to the court to ensure that due process and the interests of justice are observed.

(9) The trial court, in holding a preliminary trial hearing, may make such orders with regard to the conduct of the preliminary trial hearing as it considers appropriate and in accordance with the interests of justice, including with regard to the making of submissions in writing.

(10) Subject to subsections (11) and (12), where a preliminary trial hearing has been held in respect of the trial of an offence, it shall not be necessary for the same judge or judges, as the case may be, who presided over the preliminary trial hearing concerned to preside over—

(a) any further preliminary trial hearings in respect of the trial of the offence, or

(b) the trial of the offence.

(11) Where a preliminary trial hearing has been held in respect of the trial of an offence, the trial court may direct, where it is satisfied that it is in the interests of justice to do so, that any subsequent preliminary trial hearings or the trial of the offence, or both, shall be presided over by the same judge or judges, as the case may be, who presided over the preliminary trial hearing concerned.

(12) Where a relevant order is made at a preliminary trial hearing, the same judge or judges, as the case may be, who presided over such hearing (in this section referred to as “the presiding judge or judges”) shall, subject to subsection (13), preside over—

(a) any further preliminary trial hearings in respect of the trial of the offence, and

(b) the trial of the offence.

(13) Subsection (12) shall not apply where—

(a) the presiding judge or judges is or are unavailable to preside over further preliminary trial hearings in respect of the trial of the offence or over the trial of the offence, or

(b) there is other good reason for which that subsection should not apply.

(14) Subject to subsection (15) and section 7 , where the trial court makes an order at a preliminary trial hearing or under subsection (11)

(a) the order shall—

(i) have binding effect, and

(ii) where the court considers it appropriate and so directs, have effect as though it had been made in the course of the trial of the offence,

and

(b) without prejudice to the generality of paragraph (a)(ii), no appeal shall lie against the order, pending the conclusion of the trial of the offence.

(15) The trial court may—

(a) of its own motion, or

(b) subject to subsection (16), upon the application of the prosecution or the accused,

vary or discharge an order made at a preliminary trial hearing or an order made under subsection (11) where the court is satisfied that it is in the interests of justice to do so.

(16) An application may not be made under subsection (15)(b) unless there has been, since the making of the order the subject of the application, a material change in circumstances relevant to that order.

(17) Where an order referred to in paragraph (a), (b) or (c) of subsection (8) shall be required to be sought by the prosecution or the accused during the course of proceedings for an offence to which this Part applies, the party concerned shall so inform the trial court at the first available opportunity, in order to facilitate the court in making a decision as to whether or not to direct that a preliminary trial hearing in respect of the trial of the offence shall be held.

(18) Nothing in this section shall affect the right of the accused to appeal against conviction in respect of an offence, including insofar as any ground of such appeal relates to matters arising from a preliminary trial hearing in respect of the trial of the offence concerned.

(19) This section is without prejudice to the power of the trial court to deal with the matters referred to in subsection (7) or to make an order to which subsection (8) applies otherwise than at a preliminary trial hearing.

(20) The trial court shall, in holding a preliminary trial hearing in relation to the trial of an offence, have all the powers it would have in conducting the trial, including the power to receive evidence.

(21) Where a legal aid (trial on indictment) certificate within the meaning of section 3 of the Act of 1962 is granted under that section in respect of an accused, the certificate shall extend to any preliminary trial hearing held in respect of the offence to which the certificate relates.