Preliminaries to trial in the Crown Court (W7)

Question 1

D12.13 - Consequences of a finding of unfitness

Answer 1

• Under the Criminal Procedure (Insanity) Act 1964, s.5 if the accused is found unfit to plead, and the jury determine that the accused 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;
  (b) a supervision order;
  (c) an order for the accused’s absolute discharge.
• Where an accused has been found unfit to plead to a charge of murder, the trial judge is 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.

Question 2

D12.16 - Procedure where accused is found fit to plead

Answer 2

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

Question 3

D12.16 - Making a finding of unfitness

Answer 3

• If having regard to the nature of the supposed disability, the court are of the opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence.
• The question of fitness to be tried shall be determined by the court without a jury
• The court shall not make such a determination except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.

Question 4

D12.16 - Procedure if the accused is found unfit to plead

Answer 4

• The trial should proceed or further proceed but it shall be determined by a jury (a) on the evidence already given in the trial; and (b) on such evidence as may be adduced by the prosecution, or adduced by a person appointed by the court to put the case for the defence, whether they are satisfied that the accused did the act or made the omission charged against him as the offence.

Question 5

D12.53 - Procedure on arraignment

Answer 5

CrimPR 3.32

• Clerk of the court reads the indictment to the accused and asks whether the accused pleads guilty or not guilty to the counts
• If there are multiple counts, a plea must be taken on each one separately after it is read out
• 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.
• If there is a joint indictment against several accused, usual practice is for them to be arraigned together. They each must enter a separate plea on each joint count.
• The court is required before arraignment to confirm with the prosecution that the indictment represents the charges on which they wish to proceed against the accused.
• CDA 1998 allows an accused in custody to be arraigned by live link instead of in person
• It is now common practice for the jury not to be present when the accused is arraigned to prevent any prejudice against the accused. When the jury come in, they are told the counts to which the accused pleaded not guilty and those to which they pleaded guilty are not mentioned.

Question 6

D12.58 - Pleas that may be entered on arraignment

Answer 6

• Guilty
• Not guilty
• Sometimes open to the accused to plead not guilty as charged but guilty of an alternative (lesser) offence

Question 7

D12.70 - Not guilty plea

Answer 7

• Normal practice is for the accused to enter a plea of NG personally when arraigned by the clerk in the absence of potential jurors
• It is not essential that the accused formally says the words ‘not guilty’
• 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 NG on the accused’s behalf.

Question 8

D12.71 - Effect of plea of NG

Answer 8

• Puts the prosecution to proof of their entire case.
• The defence statement should have indicated in advance of trial those parts of the prosecution case which are disputed.
• Defence counsel is still entitled to take advantage of any deficiency in prosecution evidence and submit that there is no case to answer
• 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 CJA 1967 or where a fact is presumed or judicially noticed.

Question 9

D12.72 - Requirement that the accused plead personally

Answer 9

• A plea of guilty must be entered by the accused personally.
• If counsel purports to plead guilty for the accused, the purported plea has no validity and the proceedings constitute a mistrial. On appeal, the CoA will be obliged either to quash the conviction or grant a writ of venire de novo.

Question 10

D12.73 - Effect of plea of guilty

Answer 10

• If the accused pleads guilty, the prosecution are released from their obligation to prove the case.
• There may be 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 a Newton hearing or allow sentence to be passed on the defence version.

Question 11

D12.74 - Adjournments following guilty plea

Answer 11

Once a guilty plea has been entered, the court may commence the procedure leading to the passing of sentence, or it may take the plea and adjourn. Whether to adjourn is at the discretion of the court. Common reasons are for a PSR or to await the outcome of other proceedings. On adjourning, the court may either commit the accused to custody or grant bail. An accused who is remanded at this stage still has a prima facie right to bail under BA 1976 s.4.

Question 12

D12.76 - Mixed pleas from an accused

Answer 12

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 they have pleaded guilty should be postponed until the accused has been tried on the NG counts.

Question 13

D12.79 - Plea of guilty to a lesser offence

Answer 13

• Where the indictment contains a count on which, if the accused were to plead NG, the jury could find the accused NG has charged but guilty of an alternative offence, the accused may enter a plea to the same effect, namely NG as charged but guilty only of the lesser offence.
• If the plea is accepted, the accused is treated as having been acquitted of the offence charged and the court proceeds to sentence on the lesser offence.
• ‘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’ (Soanes)
• However, the prosecution are only bound to act in accordance with the judge’s view if they have sought it.
• Conversely, the prosecution may accept pleas even though the judge indicates in court that they ought to proceed on all counts.

Question 14

D12.93 - Change of plea

Answer 14

• Where the accused wishes to change plea from NG to guilty, this causes little difficulty
• Where they seek to change plea from guilty to NG, this causes more issues.

Question 15

D12.94 - Change of plea from NG to Guilty

Answer 15

• Judge may allow this at any stage prior to the jury returning their verdict.
• Procedure is for the defence to 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.
• However, it is also permissible for the judge to discharge the jury, and continue proceedings as though the accused had pleaded guilty on arraignment.

Question 16

D12.95 - Change of plea from guilty to NG

Answer 16

The judge has discretion to allow the accused to withdraw a guilty plea at any stage before sentence is passed.

Question 17

CrimPR 3.32 - Arraigning the defendant on the indictment

Answer 17

Crown Court must:

• (a) obtain the prosecutor’s confirmation in writing or orally (i) that the indictment sets out a statement of each offence that the prosecutor wants the court to try and such particulars of the conduct as the prosecutor relies on to make clear what is alleged, and (ii) of the order in which the prosecutor wants the defendants’ names to be listed in the indictment, if the prosecutor proposes that more than one defendant should be tried at the same time.
• (b) ensure that the defendant is correctly identified by the indictment
• (c) satisfy itself that it has been explained to D, in terms D can understand, each allegation; and
• (d) in respect of each count, (i) read the count aloud to D or arrange for it to be read aloud or placed before D in writing, (ii) ask whether D pleads G/NG, and (iii) take D’s plea
• Where a count is read which is substantially the same to one that has already been read, then only the materially different details need to be read aloud.
• In respect of each count: (a) if the defendant declines to enter a plea, it must be treated as NG unless D is unfit to plead; (b) If D pleads NG but guilty to another offence of which the court could convict, (i) if the prosecutor and the court accept the plea, the court must treat the plea as one of guilty to the other offence, but (ii) otherwise, the court must treat it as one of NG, (c) if the defendant pleads a previous acquittal or conviction of the offence, they must (i) identify that acquittal/conviction in writing, explaining the basis of that plea, and (ii) the court must exercise its power to decide whether the plea disposes of the count.
• In a case in which a magistrates’ court sends the D for trial, the Crown Court must take D’s plea (a) not less than 10 business days after the date on which the sending takes place, unless the parties otherwise agree; and (b) not more than 80 business days after that date, unless the court otherwise directs.

Question 18

D15.39 - Pre-trial hearings

Answer 18

• Court’s active role in ensuring that by the time the case reaches trial, all necessary preparation has been completed.
• Parties are required to engage fully in court-led pre-trial case management.
• Two Better Case Management hearings: early guilty plea scheme and the PTPH

Question 19

D15.44 - Preliminary hearings

Answer 19

• CrimPD 1 provides a guide to procedure for case progression and preliminary hearings.
• Where a deferred prosecution agreement is proposed, 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 the proposed terms of the agreement are ‘fair, reasonable and proportionate.’
• There needs to be necessary consent for prosecution prior to any such hearing

Question 20

D15.47 - PTPHs

Answer 20

• major pre-trial hearing in the Crown Court will be the PTPH
• where the accused has pleaded guilty, its main purpose is for sentencing to occur
• 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.

Question 21

D15.48 - Material for the hearing

Answer 21

• Time allowed for PTPH must be sufficient for effective trial preparation, incl. service of prosecution case, preferring of the indictment, service of the defence statement and the making of any application to dismiss.
• The judge at the hearing must be satisfied of: (a) the defendant understands that credit will be given for a guilty plea, (b) what the defendant’s plea is to be, and (c) the defendant understands that if there is a trial, this can take place in their absence and the consequences in relation to bail if the defendant fails 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 has to be provided at least 7 days in advance of the PTPH
• Beyond that, the prosecution must have served sufficient evidence by the hearing ‘to enable the court to case manage effectively without the need for a further case management hearing’.
• CrimPD I 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

Question 22

D15.49 - PTPH form

Answer 22

• Information required by the form must be available to the court at the PTPH and must have been discussed by the parties in advance.
• Prosecutor must provide details of the availability of likely prosecution witnesses so that a trial date can immediately be arranged on a NG plea
• Matters of case preparation also addressed in the form: (a) orders in relation to witnesses e.g. special measures and witness summons, (b) orders as to disclosure and (c) outstanding legal issues e.g. bad character and hearsay applications
• Matters recorded on the form on behalf of the accused should not ordinarily be used as evidence against the accused under s.78 PACE. The content of the form is technically admissible, but it is not advisable as it would not encourage openness on behalf of the parties at PTPH

Question 23

D12.81 - Prosecution options on plea of NG or mixed pleas being entered

Answer 23

Two options available to the prosecution (aside from trial):

(a) offer no evidence
(b) ask that the indictment remain on file

Question 24

D12.82 - Offering no evidence (s.17 CJA 1967)

Answer 24

Where a defendant pleads NG and the prosecutor proposes to offer no evidence against him, the court MAY order that a verdict of NG be recorded without the defendant being given to a jury, and the verdict will have the same effect as if they had been tried by a jury and returned acquitted.

• obvious situation where this applies is if the prosecution have reviewed their evidence and concluded that they cannot properly ask a jury to convict
• it may also be part of an agreement with the defence under which the accused pleads guilty to the other counts
• the prosecution cannot be forced by the court to call evidence.
• very important for the judge to listen to the reasons given by the prosecution for offering no evidence. If the judge fails to heed what the prosecution say, there will be no proper basis for approving or disapproving of their proposed course of action.

Question 25

D12.83 - Letting counts lie on file

Answer 25

• As an alternative to offering no evidence, the prosecution may ask the judge to order that an indictment shall lie on the file, marked not to be proceeded with without leave of the court or the CoA.
• Such a course is particularly appropriate where the accused pleads guilty to the bulk of the charges but not guilty to some subsidiary charges. Leaving the latter on file avoids the necessity of trial, but also avoids the accused actually being acquitted on them, which might be inappropriate if the evidence against the accused is quite strong.
• There is no objection to the entire indictment also remaining on file.

Question 26

D10.23 - Applications for dismissal

Answer 26

CDA 1998, sch 3, para 2(1):

• Accused may (after the date when they are served with the documents containing the evidence on which the charges are based, but before the date of arraignment) apply orally or in writing to the Crown Court for the charge(s) to be dismissed.
• The judge MUST dismiss any charge if it appears that the evidence against the applicant would not be sufficient to ensure a proper conviction.

Question 27

D10.24 - Procedure for applications for dismissal

Answer 27

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

Question 28

D10.27 - Test on dismissal applications

Answer 28

R (IRC) v Crown Court at Kingston: Judge required to take into account whole of the evidence against the accused, and it is not appropriate for judge to view any evidence in isolation from its context and other evidence. Where the case depends on the inferences or conclusions to be drawn from the evidence, the judge must assess the inferences/conclusions that the prosecution propose to ask the jury to draw.