7. Preliminaries to trial in the Crown Court

Question 1

What happens where an accused is found unfit to plead and the jury find he did the matters in question?

Answer 1

The judge may make one of the following orders:
(a) A hospital order, potentially with a restriction order without limit of time
(b) A supervision order (only where evidence shows necessary arrangements for that supervision are in place and available); or
(c) An absolute discharge.
These are the only orders available.

Question 2

What happens where the accused is found fit to plead?

Answer 2

If found fit to plead before calling of any pros evidence, the accused will be arraigned in the usual way and plead to the indictment.

Question 3

When can the issue of fitness to plead be determined?

Answer 3

Generally, as soon as it arises.
However, it can be heard at any point before the opening of the defence case, if it is expedient to do so an in the interests of the accused.

Question 4

What happens if a jury acquits before the issue of fitness to plead is determined?

Answer 4

The issue of fitness to plead is not determined.

Question 5

Who shall decide whether the accused is fit to plead?

Answer 5

The court, without a jury.

Question 6

What does the court need to make a determination of fitness to plead?

Answer 6

Not without the written or oral evidence of two or more registered medical practitioners, at least one of whom is duly approved.

Question 7

What is the procedure for arraignment?

Answer 7

The clerk reads the indictment to the accused and asks whether he pleads guilty or not guilty.
If there are multiple counts, they ask immediately after reading each count out.
If two counts are in the alternative, the other count is not read out.
If there is a joint indictment, they will be arraigned together with separate pleas given.

Question 8

What should the court do before arraigning the defendant?

Answer 8

Check with the prosecution that the indictment represents the charges on which it wishes to proceed.

Question 9

Can the accused be arraigned via live link?

Answer 9

Yes, including, in appropriate circumstances, where the accused is not in custody.

Question 10

Do jurors sit in on arraignment?

Answer 10

No, to ensure they do not hear any counts on which the accused will plead guilty. They will not be told of the counts he or a co-accused has plead to.

Question 11

What pleas may be made on arraignment?

Answer 11

Either guilty or not guilty.
The accused can sometimes plead guilty to a lesser offence.
The only alternative circumstances would be autrefois acquit/convict, unfitness, or a plea to the jurisdiction.

Question 12

How does an accused enter a plea of not guilty?

Answer 12

Either by saying those words, OR one will be entered on his behalf where he:
gives an equivocal plea or
does not give a direct answer/stays silent.
A personal plea is not needed.

Question 13

What is the effect of a not guilty plea?

Answer 13

It puts the prosecution to proof on their entire case for both actus reus and mens rea.
The defence statement should have indicated in advance which areas of the pros case are disputed but defence counsel is still entitled to take advantage of any deficiency in the case, such as a witness not coming up to proof, whether or not that would have been contested if it have.
The only release for the pros to have to prove everything is a formal admission under s10, a fact is presumed, or judicially noticed.

Question 14

How is a guilty plea entered?

Answer 14

ONLY through the defendant personally.

Question 15

What would happen if a defendant is found guilty through their representative saying ‘guilty’?

Answer 15

A retrial would be ordered/the conviction quashed

Question 16

What is the effect of a guilty plea?

Answer 16

The prosecution are released from their obligation to prove the case.
The accused stands convicted simply by virtue of the word that has come from their mouth.
The only evidence the prosecution would have to call is the accused’s antecedents and criminal record.
Except where newton hearings would occur. (i.e. he pleads guilty on a basis not acceptable to the prosecution/court and which would have a significant effect on sentence), at which point the prosecution must call evidence in support of their own version at a Newton hearing. This would be evidence of how the crime was committed, not whether it was committed.

Question 17

What happens after a plea of guilty?

Answer 17

The court could either forthwith proceed to sentence or take the plea and then adjourn (at the discretion of the court).
Common reasons for the court to adjourn include obtaining reports of awaiting outcomes of other proceedings outstanding so as to enable the accused to be sentenced on one occasion.
The court can grant bail or remand, but is still entitled to the presumption.

Question 18

What happens where an accused gives mixed pleas and the prosecution are not prepared to accept those pleas?

Answer 18

Sentencing should be postponed until the accused has been tried on the other counts.

Question 19

Can the accused plea to a lesser offence?

Answer 19

Yes

Question 20

What happens if an accused pleads to a lesser offence?

Answer 20

If this is accepted, the accused is treated as having been acquitted of the offence actually charged and instead the court sentences on the other one.

Question 21

How is a plea to a lesser offence accepted/rejected?

Answer 21

Prosecution are bound by the judge if they expressly ask the judge to approve it in advance if they negotiate an agreement to offer no evidence on the other counts. However, realistically the pros. Are in the driving seat as they can offer no evidence.

Question 22

Can an accused change his plea from not guilty to guilty?

Answer 22

Yes, at any stage prior to the returning of a verdict.
The procedure is the same as normal indictment except where the defendant is in the charge of the jury, at which point they are directed to find him guilty.

Question 23

Can an accused change his plea from guilty to not guilty?

Answer 23

The judge has a discretion.
(a) the court has a discretion to allow a defendant to change a plea of guilty to one of not guilty at any time before sentence;
(b) the discretion exists even where the plea of not guilty is unequivocal; and
(c) the discretion must be exercised judicially
The discretion will likely not be interfered with, except where it is quite simply never exercised.

Question 24

What power does the crown court have to vacate a plea made in the magistrates court?

Answer 24

Very little. Only where it was equivocal and would not be accepted.

Question 25

If a defendant pleads autrefois convict/acquit what should happen?

Answer 25

The defendant identify that acquittal or conviction in writing, explaining the basis of that plea, and the court must exercise its power to decide whether that plea disposes of that count.

Question 26

After the mags have sent a defendant for trial, by when should the Crown Court arraign the defendant?

Answer 26

Not less than 10 business days after and not more than 80 business days.

Question 27

What are the parties required to do at pre-trial and plea and trial preparation hearings?

Answer 27

Engage fully in court-led pre-trial case management.

Question 28

What two mechanisms are there for ensure the Better Case Management initiatives are instituted properly?

Answer 28

The early guilty plea scheme and the PTPH.

Question 29

Where is there a guide to procedure as regards case progression and preliminary hearings?

Answer 29

CrimPD 5.2

Question 30

What must the court do where a deferred prosecution agreement is proposed?

Answer 30

A preliminary hearing must be held where the court will be invited to declare that it is likely to be in the interests of justice that the agreement is entered and the proposed terms are fair just and reasonable

Question 31

Where consent to prosecute is required, is that consent needed before a preliminary hearing?

Answer 31

Yes

Question 32

What is the main preparatory hearing in the Crown Court?

Answer 32

The PTPH.
If it will be a guilty plea, then its purpose is sentencing.
Otherwise, it is to ensure all steps necessary for its proper preparation have been completed.

Question 33

What material should be available at the PTPH?

Answer 33

As the time for it must be sufficient, what should be available includes:
(a) Service of pros case
(b) Preferring of indictment
(c) Service of defence statement
(d) Making of an application to dismiss
(e) The IDPC where the accused was remanded without this before hand (provided at least seven days before hand.

Question 34

What must the judge satisfy himself of at the PTPH?

Answer 34

(A) The defendant understands credit will be given for guilty plea
(B) What the defendant’s plea is
(C) The defendant understands that the trial can take place in the defendant’s absence; and
(D) The defendant understands the consequences as to bail if he decides not to turn up

Question 35

What should happen re the PTPH form at the PTPH hearing?

Answer 35

It must be available and have been discussed between the parties in advance.

Question 36

What should the prosecutor provide at the PTPH regarding witnesses?

Answer 36

Their availability so that a date for trial can be set ASAP.

Question 37

What should be included in the PTPH form?

Answer 37

(a) Orders as to witnesses, such as special measures and summons
(b) Orders as to disclosure
(c) Outstanding legal issues

Question 38

Can what is said in the PTPH form be used at trial?

Answer 38

Rarely. Where the trial judge is considering referring to it, counsel should address him on it first.
Predicated on the D complying with the CrimPR’s cards on the table approach, the court should generally exercise its s78 powers to stop people from referring to it.

Question 39

Other than a contested trial, where an accused pleads guilty what option are open to the prosecution?

Answer 39

Offering no evidence or the indictment remain on the court file.

Question 40

What may the court do where the prosecution offer no evidence?

Answer 40

CJA 1967 s17:
It may order a not guilty verdict without the defendant being given in charge to a jury, with the same effect of acquittal.

Question 41

Why may the prosecution offer no evidence?

Answer 41

As part of an agreement or where the CPS cannot properly ask a jury to convict.

Question 42

Can the prosecution be forced to give evidence?

Answer 42

No, they can just offer no evidence.
The judge should listen to the reasons given by the prosecution for doing so. There will generally be no proper basis for approving or disapproving of their proposed course of action in that case.

Question 43

What happens with counts lying on file?

Answer 43

They will lie on the file, not to be proceeded with without the leave of the court or CoA.

Question 44

Why may the prosecution leave counts on file?

Answer 44

If the evidence is strong in relation to a count they have pleaded not guilty to BUT the defendant has pleaded guilty to the bulk of other charges making a contested trial inappropriate. This avoids the absurdity of the defendant being ‘acquitted’.
Can be made to safeguard the position of the prosecution, such as where an appeal may be likely.
If pros leave it too long, it may be refused as ‘oppressive’.

Question 45

Can an entire indictment lie on file?

Answer 45

yes

Question 46

What are applications of dismissal?

Answer 46

An application to dismiss the charge where the evidence against the applicant would not be sufficient to ensure a proper conviction.

Question 47

When/how should an application for dismissal be made?

Answer 47

Via the accused applying orally/in writing after service but before arraignment. An oral application may only be made after a written notice of its intention to do so.

Question 48

What is the test on dismissal applications?

Answer 48

‘the evidence against the applicant would not be sufficient to ensure a proper conviction.’
The judge was required to take into account the whole of the evidence against the accused and none of it in isolation.
The judge is not bound to assume a jury would make every possible inference capable of being drawn, but must assess any the jury may make.