Preliminary Hearings
Application
The Criminal Procedure Act 2021 introduced preliminary trial hearings. The hearings deal with certain matters ahead of the beginning of the trial so as to ensure that the parties are ready to proceed on the day of the trial, and to minimise interruptions to while it is in train.
The  legislation applies to trials on indictment. It applies whether the person has been sent forward for trial before or after the commencement of the Act, provided that the trial has not already started.
The Act applies to a ‘relevant offence’ in relation to preliminary trial hearings. This is one which carries a maximum sentence of ten years or more, or one which has been specified by the Minister for Justice in an Order.  If the Minister considers that it is proper to do so for the purposes of—
- facilitating the just, expeditious and efficient conduct of the prosecution of such indictable offence and, in particular, for the avoidance of delays in such prosecution,
- preventing the disruption to juries and witnesses that could arise in the trial of such indictable offence where no preliminary trial hearing was held in respect of such trial, or
- reducing the impact on victims of such indictable offence of orders to which section 6 (8) applies being made during the course of the trial of the offence, where such orders could appropriately have been made at a preliminary trial hearing.
the Minister shall take into account the nature of the offence concerned and the relevant complexities that generally arise in the prosecution of such an offence.
Power to Hold
There is  a general power for a court to hold a preliminary hearing, of its own motion, for any indictable offence, where the court is satisfied that it would be in the interests of justice and conducive to the expeditious or efficient conduct of the proceedings, regardless of whether the prosecution or the defence is requesting one.
The court must agree to hold at least one preliminary hearing, if either the prosecution or the defence requests it. The preliminary hearing can take place at any time up to the swearing in of the jury (or the start of the trial if the case is before the Special Criminal Court).
In determining the timing of a preliminary hearing, the court should take into account certain factors  in doing so, including the interests of justice, disruption to the jury or witnesses in the trial, and protecting the interests of the victim.
The trial court may, on the application of the prosecution or the accused, where it considers it appropriate, 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.
The court thinks it is appropriate can arraign the accused person at a preliminary hearing.
Matters for Consideration
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:
- the availability of witnesses for the trial;
- whether any particular practical measures or technological equipment may be required for the conduct of the trial;
- the extent to which the trial is ready to proceed (including whether there are any outstanding issues relating to disclosure);
This does not affect the existing right of a person to appeal a criminal conviction.
The court conducting the preliminary hearing has all the powers it would have during the trial. A  legal aid certificate covering the person’s trial also covers any associated preliminary trial hearings.
Post-Hearing
Where a preliminary trial hearing has been held in respect of the trial of an offence, it is  not necessary for the same judge or judges, as the case may be, who presided over the preliminary trial hearing concerned to preside over any further preliminary trial hearings in respect of the trial of the offence, or  the trial of the offence.
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.
Where such an order is made at a preliminary trial hearing, the same judge or judges, as the case may be, who presided over such hearing shall, preside over— any further preliminary trial hearings in respect of the trial of the offence, and  the trial of the offence. This does  not apply where 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  there is other good reason.
Limited Appeals
There are appeals in limited circumstances, arising from a decision at a preliminary hearing to exclude compelling evidence, that, if it were admitted, could possibly lead to a finding of guilty, but is so significant that if it were excluded, the exclusion would likely lead to an acquittal.
An appeal shall lie only where the order concerned made by the trial court erroneously excluded evidence which is reliable, of significant probative value, and) such that when taken together with the relevant evidence proposed to be adduced that the court, might reasonably be satisfied beyond a reasonable doubt of the accused’s guilt in respect of the offence concerned.
There are specified processes for such an appeal. The accused is to be legally represented at the appeal as necessary, and provided with legal aid where appropriate. Where an appeal has been brought in the above limited circumstances the trial does not proceed until the appeal has been determined.
Public Hearing
The court generally conducts preliminary hearings in public, but where it is necessary to do so, it has the power to exclude the public from the hearing. Bona fide representatives of the press will generally be permitted to remain
The publication or broadcast of the content of a preliminary hearing before the conclusion of the trial, is prohibited except where the court permits. This provision is designed to influence potential jury members, where, for example inadmissible evidence might be discussed at such a hearing, before the jury is sworn in.
There are some limited exceptions, for example the fact that a hearing is taking place can be published, or the fact that a certain order has been made, but the general content of the hearing may not be published while the trial is ongoing.
Procedure
Rules of Court govern how preliminary trial hearings are run, what notice periods are required, the form for making applications and other ancillary matters.
Where there has been a decision at a preliminary trial hearing to exclude evidence, the defence cannot bring an application for charges to be dismissed on the basis of this exclusion until any appeal by the  prosecution of the decision to exclude the evidence has been dealt with by the court, and that where an appeal has been brought under this section after a preliminary hearing, the trial shall not proceed until the appeal has been determined.