7. Preliminaries to trial in the Crown Court

Question 1

D12.13

Answer 1

Consequences of a Finding of Unfitness

D12.13

Under the Criminal Procedure (Insanity) Act 1964, s. 5 (set out in full at D12.16), if the accused is found unfit to plead, and the jury determine that he did the act or made the omission as charged, the court may make one of the following orders:

(a) a hospital order, for admission to such hospital as the Secretary of State specifies — such an order may be made the subject of a restriction order without limit of time (see E22.1);
(b) a supervision order; or
(c) an order for the accused’s absolute discharge.

In Fairley [2003] EWCA Crim 1625, it was emphasised that the only orders which the judge could make, following a finding that an accused who was unfit to plead had committed the act in question, were those set out in the statute. Moreover, before the court can make a supervision order in the case of an accused found to be unfit to plead and to have done the act charged against him, it must have evidence that the necessary arrangements for that supervision are in place, and such supervision is available (City and County of Swansea v Swansea Crown Court [2016] EWHC 1389 (Admin)).

In Grant [2001] EWCA Crim 2611, [2002] QB 1030, the Court of Appeal recognised that where an accused had been found unfit to plead to a charge of murder, the trial judge was compelled to make an order for admission to a hospital without limitation of time whether or not such an order was justified on the medical evidence, which was directed to the question of whether the accused was fit to plead.

Question 2

, D12.16

Answer 2

D12.16

Procedure where Accused is Found Fit to Plead If the accused is found fit to plead before the calling of any prosecution evidence, he will thereafter be arraigned in the usual way and plead to the indictment.

Question 3

, 12.53

Answer 3

Procedure on Arraignment

D12.53

The procedure for arraignment is contained in CrimPR 3.24 (see Supplement, R-30). The arraignment consists of the clerk of the court reading the indictment to the accused and asking him whether he pleads guilty or not guilty to the counts contained therein. If there are several counts, a plea must be taken on each one separately immediately after it is read out (Boyle [1954] 2 QB 292); if, however, two counts are in the alternative and the accused pleads guilty to the first count, it is unnecessary to take a plea on the second (Boyle). If there is a joint indictment against several accused, normal practice is to arraign them together. Separate pleas must be taken from each of those named in any joint count.

The CDA 1998, ss. 57A to 57F, allow an accused in custody to be arraigned via live link rather than in person. CrimPD I, para. 3N.9 (see Supplement, PD-15), permits the same facility for those not in custody in appropriate circumstances (addressed to some extent at para. 3N.13). (As to the procedure to be adopted where an accused absents himself, see D12.57 and D12.70.)

It is now standard practice to exclude the jurors in waiting from court until after the arraignment has been completed. This avoids the possibility of potential jurors being prejudiced by hearing the accused plead guilty to some but not all the counts on the indictment. After the jury have been sworn, they are told by the clerk the counts to which the accused has pleaded not guilty, no mention being made of any matters to which he has pleaded guilty nor of any co-accused who may have pleaded guilty.

Question 4

, D12.58

Answer 4

Pleas that May be Entered on Arraignment

D12.58

In the great majority of cases, the plea entered by the accused will be simply one of guilty or not guilty. It is sometimes open to him to plead not guilty as charged but guilty of an alternative (lesser) offence.

The only alternatives to such a plea arise in the circumstances addressed above where it is submitted that it would not be appropriate for the accused to be arraigned at all. This might apply in the case of a plea of autrefois acquit or autrefois convict (see D12.20), where there is some other obstacle (such as unfitness: see D12.2), or where there is a plea to the jurisdiction (see D12.51).

Question 5

, D12.70

Answer 5

Entry of Plea of Not Guilty

D12.70

Normal practice is for the accused to enter a plea of not guilty personally when arraigned by the clerk in the absence of any potential jurors (see D12.1). It is not, however, essential to the validity of a trial that he formally says the words ‘not guilty’ (Williams [1978] QB 373 at D12.57). If an accused wilfully stays silent when arraigned, or fails to give a direct answer to the charge, or enters a plea which purports to be one of guilty but is in fact ambiguous, the court may and should enter a plea of not guilty on his behalf (CLA 1967, s. 6(1)(c)).

Question 6

, D12.71-12.74,

Answer 6

Effect of Plea of Not Guilty

D12.71

A plea of not guilty puts the prosecution to proof of their entire case. The burden is therefore on them to satisfy the jury beyond reasonable doubt that the accused committed the actus reus of the offence (or aided, abetted, counselled or procured its commission), and that in doing so he had the necessary mens rea. Should the prosecution fail to adduce sufficient evidence as to any element of the offence, the accused is entitled to be acquitted on the judge’s direction following a submission of no case to answer made at the close of the prosecution case.

The defence statement should have indicated in advance of trial those parts of the prosecution case which are disputed (see D9.29). Nevertheless defence counsel is still entitled to take advantage of any deficiency in the prosecution evidence (e.g., a witness not coming up to proof) and submit that there is no case to answer, whether or not the element of the offence of which evidence is lacking would otherwise have been contested.

The only method by which the prosecution may be released from their obligation to prove each essential element of the offence is if the defence have made formal admissions under s. 10 of the CJA 1967, or where a fact is presumed (see F3.60 et seq.) or judicially noticed (see F1.4 et seq.).

Answer 7

Requirement that Accused Plead Personally

D12.72

A plea of guilty must be entered by the accused personally. If counsel purports to plead guilty on behalf of an accused, the purported plea has no validity and the proceedings constitute a mistrial (Ellis (1973) 57 Cr App R 571). On appeal, the Court of Appeal will be obliged either to quash the conviction or to grant a writ of venire de novo (i.e. set the conviction aside but order that the accused be retried) (Ellis). In Ellis, defence counsel intervened during the arraignment to set out the basis on which the accused would plead guilty, and the judge proceeded to sentence. At no stage did the accused himself say he was guilty, although that was undoubtedly what he would have said had he been allowed to. On appeal, Edmund Davies LJ reviewed the authorities and then said (at pp. 574–5):

… great mischief would ensue if a legal representative was generally regarded as entitled to plead on an accused’s behalf. It would open the door to dispute as to whether, for example, counsel had correctly understood and acted upon the instructions which the accused had given him, and, if a dispute of that kind arose, the consequential embarrassment and difficulty could be difficult in the extreme.

We think that the only safe and proper course accordingly is to say … that (apart from a few very special cases) it is an invariable requirement that the initial arraignment must be conducted between the clerk of the court and the accused person himself or herself directly.

Edmund Davies LJ’s dicta do not expressly distinguish between cases where the accused intends to plead guilty and those where he intends to plead not guilty or refuses to plead. As regards the latter, it is possible for a valid trial to take place despite the absence of a personal plea from the accused (see D12.57). As regards guilty pleas, however, there can be no derogation whatsoever from the rule that the plea must come from the mouth of the accused. This is confirmed by Williams [1978] QB 373, where Shaw LJ, giving the judgment of the Court of Appeal, said (at p. 378G): ‘No qualification of or deviation from the rule that a plea of guilty must come from him who acknowledges guilt is … permissible. A departure from the rule in a criminal trial would therefore necessarily be a vitiating factor rendering the whole procedure void and ineffectual.’ See also Westminster City Council v Owadally [2017] EWHC 1092 (Admin), [2017] 2 Cr App R 18 (223).

Answer 8

Effect of Plea of Guilty

D12.73

If the accused pleads guilty, the prosecution are released from their obligation to prove the case. There is no need to empanel a jury, and the accused stands convicted simply by virtue of the word that has come from his own mouth. The only evidence the prosecution then need call in the ordinary case is that of the accused’s antecedents and criminal record (see D20.45 to D20.51).

Exceptionally, there may be a dispute between the parties about the material facts of the offence. If the dispute is serious enough to have a significant effect on sentence, the prosecution must either call evidence in support of their own version at a so-called ‘Newton hearing’ or allow sentence to be passed on the basis of the defence version (for Newton hearings, see D20.8 to D20.29). However, even in such cases, the prosecution evidence goes to how the offence was committed, not whether it was committed, and the accused remains convicted by his own plea whatever the outcome of the Newton hearing. See Padellec [2012] EWCA Crim 1956 as to the need for the prosecution and court to be cautious about too readily accepting a basis of plea

Question 9

74

Answer 9

Adjournments Following Plea of Guilty

D12.74

Once a plea of guilty has been entered, the court may forthwith commence the procedure leading up to the passing of sentence (for which see D20.2). It may, on the other hand, take the plea and then adjourn. Whether to adjourn is entirely at the discretion of the court. Common reasons for an adjournment are to obtain reports on the accused or to await the outcome of other proceedings outstanding against him with a view to his being sentenced on one occasion for all matters (see Bennett (1980) 2 Cr App R (S) 96, for the desirability of linking up outstanding charges).

By virtue of the Senior Courts Act 1981, s. 81(1)(c), on adjourning, the court may either commit the accused to custody or grant him bail. Despite having been convicted, an accused who is remanded for inquiries or report at this stage still has a prima facie right to bail under the BA 1976, s. 4, although in practice bail is usually withdrawn if the accused has pleaded guilty to a serious offence.

Question 10

D12.76

Answer 10

Mixed Pleas from an Accused

D12.76

If an accused enters mixed pleas on a multi-count indictment and the prosecution are not prepared to accept those pleas, sentencing for the counts to which he has pleaded guilty should be postponed until after he has been tried on the not guilty counts. This is different from the situation of an accused who pleads guilty to a lesser offence, which is discussed at D12.79.

Question 11

, D12.79

Answer 11

Plea of Guilty to a Lesser Offence

D12.79

Where the indictment contains a count on which, if the accused were to plead not guilty, the jury could find him not guilty as charged but guilty of an alternative (hereafter referred to as ‘lesser’) offence, he may enter a plea to the same effect, namely not guilty to the offence charged but guilty only of the lesser offence (CLA 1967, s. 6(1)(b)).

If the plea is accepted, he is treated as having been acquitted of the offence actually charged and the court proceeds to sentence him for the lesser offence (CLA 1967, s. 6(5)). The circumstances in which a jury have the power to return a verdict of guilty of a lesser offence are defined by legislation, chiefly subsections (2) to (4) of s. 6 of the 1967 Act, which are considered in detail at D19.41 to D19.68.

The considerations relevant to the decision by the prosecution to either accept or reject the plea are considered below.

The extent of the judge’s control over the acceptance of a plea to a lesser offence is open to argument. In Soanes (1948) 32 Cr App R 136, Lord Goddard CJ said, ‘it must always be in the discretion of the judge whether he will allow [a plea of guilty to a lesser offence] to be accepted’. However, it is doubtful whether the court can or should insist on one of the parties calling evidence, or call the witnesses itself. Therefore, if the prosecution refuse to call evidence to prove the accused guilty as charged, the court would have no real alternative but to accept the situation, subject to any proper question of professional misconduct.

Moreover, in the analogous situation of the accused pleading to some counts on the indictment in exchange for the prosecution offering no evidence on others, the rule seems to be that the prosecution are bound by the judge’s views of the bargain if, and only if, they have expressly asked him to approve it in advance (see D12.89). If they choose not to seek his prior approval, they may accept the pleas even though the judge indicates in court that they ought to proceed on all counts (Coward (1979) 70 Cr App R 70; Broad (1978) 68 Cr App R 281).

Question 12

and D12.93-12.95

Answer 12

Change of Plea

D12.93

The final topic to be addressed in relation to the arraignment is the procedure to be followed, and criteria to be applied, where an accused seeks to change his plea thereafter. Where he wishes to change his plea from not guilty to guilty (see D12.94), this causes little difficulty. Where, however, he seeks to change his plea from guilty to not guilty (see D12.95) more difficult considerations arise, not least because such a change represents an assertion that an accused has realised that he did not commit the offence after all. The considerations in this category also include issues as to whether a plea was ambiguous (see D12.100) or involuntary (see D12.101). The topic is addressed procedurally by CrimPR 25.5 (see Supplement, R-249).

Answer 13

From Not Guilty to Guilty

D12.94

The judge may allow the accused to change his plea from not guilty to guilty at any stage prior to the jury returning their verdict. The procedure is that the defence ask for the indictment to be put again and the accused then pleads guilty. If the change of plea comes after the accused has been put in the charge of a jury, the jury should be directed to return a formal verdict of guilty. This was emphasised in Heyes [1951] 1 KB 29, where the accused changed his plea in the jury’s presence but they were not asked to return a verdict, and the judge proceeded forthwith to sentence. On appeal, Lord Goddard CJ said:

Once the jury had heard the appellant say that he wished to withdraw his plea and admit his guilt, the proper proceeding was for the court to ask them to return a verdict. It appears that counsel did suggest to the learned recorder that this was the proper course; but the recorder thought that it did not matter. It does matter because, once a prisoner is in charge of a jury, he can only be either convicted or discharged by the verdict of the jury.

As there was no verdict of the jury here, the trial was a nullity to such an extent that the court could set aside the proceedings and order a retrial or venire de novo [but, in the circumstances of this case we] will merely quash the conviction.

In Poole [2001] EWCA Crim 2664, [2002] 1 WLR 1528, however, the accused changed her plea to guilty on the second day of the trial. The judge discharged the jury without entering any verdict, and proceedings continued as though the accused had pleaded guilty on arraignment, with an adjournment for reports. The accused then wished to vacate her plea of guilty and, when this was refused, appealed against conviction. The Court of Appeal held that the course taken was permissible and resulted in a valid conviction.

Although having the indictment put again with a view to a change of plea to guilty is a matter for the judge’s discretion, it is difficult to envisage circumstances in which he would be unwilling to allow it to be done. As to the effect of such a change of plea upon the trial of a co-accused, see D13.65 and the case of Fedrick [1990] Crim LR 403 dealt with there.

Answer 14

From Guilty to Not Guilty

D12.95

Discretion to Allow a Change The judge has a discretion to allow the accused to withdraw a plea of guilty at any stage before sentence is passed. This was confirmed in Plummer [1902] 2 KB 339, where the major question for the court was whether P’s conviction on a guilty plea in relation to a conspiracy charge could be sustained in view of the acquittal of his five alleged co-conspirators. P was not sentenced until after the acquittal of the others, and, prior to sentence, asked to withdraw his plea. Wright J said (at p. 347):

Another point is raised in this case, namely, whether the court had power to allow the appellant to withdraw his plea of guilty. There cannot be any doubt that the court had such power at any time before, though not after, judgment [i.e. sentence] and, as we infer that but for the erroneous opinion that there was no such power the withdrawal would have been allowed, this might of itself be a ground for a venire de novo.

Similarly, Bruce J held that the first-instance court clearly had a discretion to allow the change of plea; that, if it had exercised its discretion against the appellant, the appellate court might have had no power to interfere; but, in fact, the discretion was never exercised one way or the other and that had deprived the appellant of a chance of an acquittal, with the consequence that the conviction could not stand (at p. 349).

The existence of the discretion was indirectly confirmed by the House of Lords in S v Recorder of Manchester [1971] AC 481, when it held that, in the context of change of plea, there is no conviction until sentence has been passed, and therefore magistrates (like the Crown Court) can allow a change to not guilty provided they have not yet passed sentence.

Finally, in Dodd (1981) 74 Cr App R 50, the Court of Appeal unhesitatingly accepted the three following propositions from counsel for D, namely that: (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 (see p. 57).

Question 15

CrimPR rule 3.24.

Answer 15

Arraigning the defendant on the indictment 3.24.—(1) In order to take the defendant’s plea, the Crown Court must— (a) ensure that the defendant is correctly identified by the indictment; (b) in respect of each count in the indictment— (i) read the count aloud to the defendant, or arrange for it to be read aloud or placed before the defendant in writing, (ii) ask whether the defendant pleads guilty or not guilty to the offence charged by that count, and (iii) take the defendant’s plea. (2) Where a count is read which is substantially the same as one already read aloud, then only the materially different details need be read aloud. (3) Where a count is placed before the defendant in writing, the court must summarise its gist aloud. (4) In respect of each count in the indictment— (a) if the defendant declines to enter a plea, the court must treat that as a not guilty plea unless rule 38.11 applies (defendant unfit to plead); (b) if the defendant pleads not guilty to the offence charged by that count but guilty to another offence of which the court could convict on that count— (i) if the prosecutor and the court accept that plea, the court must treat the plea as one of guilty of that other offence, but (ii) otherwise, the court must treat the plea as one of not guilty; (c) if the defendant pleads a previous acquittal or conviction of the offence charged by that count— (i) the defendant must identify that acquittal or conviction in writing, explaining the basis of that plea, and (ii) the court must exercise its power to decide whether that plea disposes of that count.

Question 16

D15.39,

Answer 16

Pre-trial and Plea and Trial Preparation Hearings

D15.39

Since the introduction of the CrimPR, a considerably greater emphasis has been placed on case management (see D4 for a full discussion). At the forefront of this development is the court’s active role in ensuring that, by the time a case reaches trial, all necessary preparation has been completed, and completed as efficiently and expeditiously as possible. ‘Better Case Management’ is a series of complementary initiatives, implementing Sir Brian Leveson’s Review of Efficiency in Criminal Proceedings, and given effect under the umbrella of CrimPD I, paras. 3A.1 to 3A.28 (see Supplement, PD-3). The parties to proceedings are required to engage fully in court-led pre-trial case management, which is designed to identify those cases that will not go to trial at as early a stage as possible, and to ensure the efficient and expeditious dispatch of those that do. The two major Better Case Management hearings to give effect to these objectives are the early guilty plea scheme and the PTPH.

Question 17

D15.44

Answer 17

Preliminary Hearings Generally

D15.44

CrimPD I, paras. 3A.15 to 3A.28 (see Supplement, PD-3), provide a comprehensive and detailed guide to the procedure to be adopted as regards case progression and preliminary hearings.

Where a deferred prosecution agreement is proposed (see D12.106) then, under the CCA 2013, sch. 17, para. 7, a preliminary hearing must occur at which the court will be invited to declare that it is ‘likely to be in the interests of justice’ that the prosecution and accused enter into a deferred prosecution agreement and that the proposed terms of the agreement are ‘fair, reasonable and proportionate’.

Note the need to have the necessary consent for prosecution prior to any such hearing (see Welsh [2015] EWCA Crim 906, [2016] 1 Cr App R 8 (113) and D2.18).

Question 18

and D15.47-15.49

Answer 18

Plea and Trial Preparation Hearings

D15.47

Save in cases where a preparatory hearing is required (discussed at D15.51), the major pre-trial Crown Court hearing will be the PTPH. The objective, expressed in CrimPD I, para. 3A.21, is that normally it should be the only pre-trial hearing. Its purpose, where an accused has indicated a guilty plea either in the magistrates’ court at the time his case was sent or where such an indication has been given between that time and the PTPH, is for sentencing to occur (para. 3A.17). Otherwise, it is to ensure that all steps necessary for the proper preparation of a case for trial have been taken or are properly timetabled for future attention.

Answer 19

D15.48

Material for the Hearing The time allowed for the conduct of the PTPH must be sufficient for effective trial preparation, including the service of the prosecution case, the preferring of the indictment, the service of a defence statement and the making of any application to dismiss. The steps to be followed in relation to a PTPH are set out in detail in CrimPD I, paras. 3A.16 to 3A.20 (see Supplement, PD-3) and CrimPR 3.13 (see Supplement, R-19).

CrimPR 3.13 requires the judge at the hearing to be satisfied of the following: (a) the defendant understands that credit will be given for a guilty plea; (b) what the defendant’s plea is or is to be; (c) the defendant understands that if there is a trial, this can take place in the defendant’s absence, and the consequences in relation to bail if the defendant were to fail to attend court.

Where an accused has been remanded in custody and sent to the Crown Court without the prior provision of initial details of the prosecution case, the material which is required for an accused on bail (para. 3A.12) has to be provided at least seven days in advance of the PTPH. Beyond that, the prosecution must have served sufficient evidence by the hearing ‘to enable to court to case manage effectively without the need for a further case management hearing’ (para. 3A.20), save in those cases to which para. 3A.21 applies (see D15.50). Moreover, CrimPD I, para. 3P6, envisages a further case management hearing where it is necessary to set a timetable for obtaining evidence as to the mental health or capacity of an accused (see para. 3P7 for the stages of that process).

Answer 20

D15.49

The Form The form to be used at a PTPH is that which appears in CrimPD, annex F, and is available via tinyurl.com/hwf3otl. The information required by the PTPH form must be available to the court at the PTPH, and it must have been discussed between the parties in advance. The prosecutor must provide details of the availability of likely prosecution witnesses so that a trial date can immediately be arranged if there is no guilty plea (CrimPD I, para. 3A.20).

The matters of case preparation that are addressed in the form are also addressed in other parts of this book. These include:

(a) orders in relation to witnesses, such as special measures (see D14.1) and witness summonses (see D15.92);
(b) orders as to disclosure (see D9 and D15.69, including guidance as to large-scale digital storage issues: see R [2015] EWCA Crim 1941, [2016] 1 WLR 1872, discussed at D15.62); and
(c) outstanding legal issues, including applications under the bad character and hearsay provisions of the CJA 2003 (see F13, F15 and F17).

In Diedrick [1997] 1 Cr App R 361, the appeal concerned the actions of the trial judge in questioning the accused about what he thought was a lie which the accused had told in the form submitted at what was then a plea and directions hearing. The Court of Appeal observed that what was said at the hearing was not expected to form part of the material for trial, and it would rarely be appropriate to refer to it. Where the trial judge was considering the use of such material, counsel should be allowed to address the judge first.

In Newell [2012] EWCA Crim 650, [2012] 1 WLR 3142 the Court of Appeal made clear that matters recorded on the form on behalf of the accused should not then ordinarily be used as evidence against him through the exercise of the court’s discretion under the PACE 1984, s. 78, even though it is prima facie admissible as an admission by an agent, which is an exception to the hearsay rule. That was predicated, however, on there having been compliance by the accused with the CrimPR, and with the ‘cards on the table’ approach to proactive case management now required (discussed at D4).

Valiati v DPP [2018] EWHC 2908 (Admin), [2019] 1 Cr App R 17 (216) upheld that approach. The content of the form was technically admissible, subject to the exercise of the PACE 1984, s. 78, but it was essential that the parties were open in their answers at a hearing such as a PTPH, and that no party ambushed another subsequent to such a pre-trial hearing, and such candour was more likely where the answers given were not liable to be admitted in evidence at a later stage.

Question 21

D12.81-12.83

Answer 21

Prosecution Options on Plea of Not Guilty or Mixed Pleas being Entered

D12.81

Apart from the obvious course of proceeding to a contested trial, there are two options available to the prosecution on the accused pleading not guilty, namely, to offer no evidence or to ask that the indictment remain on the court file. Similar responses are possible where an arraignment results in mixed pleas, with either only some of the accused pleading guilty, or with one accused entering guilty pleas to only some of the charges.

Each of these two options is addressed here. In addition, considerable guidance has been given, notably through guidelines handed down by the A-G and in the report of the Farquharson committee on the role of prosecuting counsel. This guidance is also addressed below.

Answer 22

Offering No Evidence

D12.82

Criminal Justice Act 1967, s. 17

Where a defendant arraigned on an indictment or inquisition pleads not guilty and the prosecutor proposes to offer no evidence against him, the court before which the defendant is arraigned may, if it thinks fit, order that a verdict of not guilty shall be recorded without the defendant being given in charge to a jury, and the verdict shall have the same effect as if the defendant had been tried and acquitted on the verdict of a jury.

The obvious situation for reliance on s. 17 is if the prosecution have reviewed their evidence since the accused was sent for trial, and have concluded that they cannot properly ask a jury to convict. Alternatively, offering no evidence on some counts in an indictment may be part of an agreement with the defence under which the accused pleads guilty to other counts.

Whilst the plain wording of s. 17 gives the court a discretion to decline to order a verdict of not guilty to be entered even though the prosecution intimate that they do not wish to proceed, in the last resort, the prosecution cannot be forced by the court to call evidence.

In Renshaw [1989] Crim LR 811, the Court of Appeal stressed the importance of the judge listening to the reasons given by the prosecution for proposing to offer no evidence. If he fails to heed what the prosecution say, he will deprive himself of a proper basis for approving or disapproving of their proposed course of action.

Answer 23

Letting Counts Lie on the File

D12.83

As an alternative to offering no evidence, the prosecution may ask the judge to order that an indictment (or counts thereof) shall lie on the file, marked not to be proceeded with without leave of the court or of the Court of Appeal. Such a course is particularly appropriate where the accused pleads guilty to the bulk of the charges against him (whether contained in one indictment or several) but not guilty to some subsidiary charges. Leaving the latter on the file avoids the necessity of a trial, but also avoids the accused actually being acquitted on the ‘not guilty’ counts, which might seem inappropriate if the evidence against him is in fact strong.

Contrary to what was previously understood to be the position, there is no objection to an entire indictment remaining on the file, as opposed to merely dealing with some counts of a multi-count indictment in that way (e.g., in Central Criminal Court, ex parte Raymond [1986] 2 All ER 379, as a result of R’s conviction on one count of a severed 14-count indictment, the trial judge ordered that both the remaining counts of the original indictment and all counts of a completely separate indictment should lie on the file).

The use and practical effect of the order is helpfully summarised by Woolf LJ in Ex parte Raymond (at pp. 714H–715B):

[It is important] to analyse the nature of the order that an indictment should lie on the file.

It starts off by having the same effect as an order for an adjournment but an adjournment which it is accepted may never result in a trial. Frequently the order is made to safeguard the position of the prosecution and the defence in case a defendant, who has been convicted, should appeal, it being the intention of the court if there is no appeal or if the appeal is unsuccessful the defendant should never stand trial. That the defendant can still stand trial is indicated by the limits on the discretion of the court (laid down by the House of Lords in Connelly v DPP [1964] AC 1254) to prevent the Crown proceeding with a prosecution if it wishes to do so. However, in the majority of cases where such an order is made, there will be no trial and there will certainly come a stage when either the prosecution would not seek a trial or if it did seek a trial, the court would regard it as so oppressive to have a trial that leave to proceed would inevitably be refused.

Question 24

D10.23,

Answer 24

Applications for Dismissal

D10.23

Under the CDA 1998, sch. 3, para. 2(1) (see D10.52), the accused may (after the date when the accused is served with the documents containing the evidence on which the charge(s) are based, but before the date of the arraignment) apply orally or in writing to the Crown Court for the charge(s) to be dismissed. Where such an application is made, the judge must dismiss any charge (and quash any count relating to it in the indictment) if it appears that the evidence against the applicant would not be sufficient to ensure a proper conviction (para. 2(2)).

Question 25

the first sub-paragraph of D10.24

Answer 25

D10.24

Procedure The accused may make an oral application for dismissal only after giving written notice of intention to do so (CDA 1998, sch. 3, para. 2(3)).

Question 26

, and paragraph D10.27

Answer 26

D10.27

Test on Dismissal Applications In R (Inland Revenue Commissioners) v Crown Court at Kingston [2001] EWHC Admin 581, [2001] 4 All ER 721, it was held that, on an application to dismiss (under earlier legislation), the judge was required to take into account the whole of the evidence against the accused, and that it was not appropriate for the judge to view any evidence in isolation from its context and other evidence (per Stanley Burnton J at [16]). The judge is not bound to assume that a jury would make every possible inference capable of being drawn against the accused but, where the case depends on the inferences or conclusions to be drawn from the evidence, the judge must assess the inferences or conclusions that the prosecution propose to ask the jury to draw, and decide whether it appears that the jury could properly draw those inferences and come to those conclusions (at [16]). It is submitted that the same principles would necessarily apply to applications to dismiss under the CDA 1998, sch. 3, para. 2. The decision in R (Snelgrove) v Woolwich Crown Court [2004] EWHC 2172 (Admin), [2005] 1 WLR 3223 (see D10.26) means that the court in R (Inland Revenue Commissioners) v Crown Court at Kingston should not have entertained the application for judicial review of the decision of the Crown Court judge, but it is submitted that the Divisional Court’s ruling about the test to be applied in such cases remains valid nonetheless.