Preliminaries to trial in the Crown Court. Arraignment, change of plea and pleas to lesser offences Flashcards
Consequences of a Finding of Unfitness
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 — such an order may be made the subject of a restriction order without limit of time
(b) a supervision order; or
(c) an order for the accused’s absolute discharge.
In Fairley 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.
In Grant the Court of Appeal recognised that where D 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 D was fit to plead.
Procedure where Accused is Found Fit to Plead
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.
Criminal Procedure (Insanity) Act 1964, ss. 4, 4A and 5
4.—
(1) This section applies where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried.
(2) If, having regard to the nature of the supposed disability, the court are of 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.
(3) If, before the question of fitness to be tried falls to be determined, the jury return a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined.
(4) Subject to subsections (2) and (3) above, the question of fitness to be tried shall be determined as soon as it arises.
(5) The question of fitness to be tried shall be determined by the court without a jury.
(6) The court shall not make a determination under subsection (5) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.
4A.—
(1) This section applies where in accordance with section 4(5) above it is determined by a court that the accused is under a disability.
(2) The trial shall not proceed or further proceed but it shall be determined by a jury—
(a) on the evidence (if any) already given in the trial; and
(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence, whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.
(3) If as respects that count or any of those counts the jury are satisfied as mentioned in sub-section (2) above, they shall make a finding that the accused did the act or made the omission charged against him.
(4) If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion.
(5) Where the question of disability was determined after arraignment of the accused, the determination under subsection (2) is to be made by the jury by whom he was being tried.
—
(1) This section applies where—
(a) a special verdict is returned that the accused is not guilty by reason of insanity; or
(b) findings have been made that the accused is under a disability and that he did the act or made the omission charged against him.
(2) The court shall make in respect of the accused—
(a) a hospital order (with or without a restriction order);
(b) a supervision order; or
(c) an order for his absolute discharge.
(3) Where—
(a) the offence to which the special verdict or the findings relate is an offence the sentence for which is fixed by law, and
(b) the court have power to make a hospital order, the court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).
(4) In this section—
‘hospital order’ has the meaning given in section 37 of the Mental Health Act 1983;
‘restriction order’ has the meaning given to it by section 41 of that Act;
‘supervision order’ has the meaning given in Part 1 of Schedule 1A to this Act.
The Arraignment
Procedure on Arraignment
The procedure for arraignment is contained in CrimPR 3.32
The arraignment consists of the clerk of the court reading the indictment to the accused and asking whether the accused 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.
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 court is required, before arraignment, to confirm with the prosecution that the indictment represents the charges on which it wishes to proceed against the accused.
The CDA 1998, ss. 57A to 57F, allow an accused in custody to be arraigned via live link rather than in person. CrimPD 5.5 and the Lord Chief Justice’s Live Links in Criminal Courts — Guidance, permit the same facility for those not in custody in appropriate circumstances.
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 the accused has pleaded guilty nor of any co-accused who may have pleaded guilty.
Pleas that May be Entered on Arraignment
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 the accused 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, where there is some other obstacle, or where there is a plea to the jurisdiction
Plea of Not Guilty
Entry of Plea of Not Guilty
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.
It is not, however, essential to the validity of a trial 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 not guilty on the accused’s behalf
Effect of Plea of Not Guilty
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 the accused 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.
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 or judicially noticed
Requirement that Accused Plead Personally
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.
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 D would plead guilty, and the judge proceeded to sentence. At no stage did D 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
… 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 the accused 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.
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 where Shaw LJ, giving the judgment of the Court of Appeal, said
‘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.
Effect of Plea of Guilty
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 or her own mouth. The only evidence the prosecution then need call in the ordinary case is that of the accused’s antecedents and criminal record.
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.
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 or her own plea whatever the outcome of the Newton hearing.
Adjournments Following Plea of Guilty
Once a plea of guilty has been entered, the court may forthwith commence the procedure leading up to the passing of sentence.
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 with a view to the accused being sentenced on one occasion for all matters.
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 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.
Mixed Pleas from an Accused
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 the accused has pleaded guilty should be postponed until after the accused has been tried on the not guilty counts. This is different from the situation of an accused who pleads guilty to a lesser offence or where an accused pleads on a factual basis that is not agreed.
Plea of Guilty to a Lesser Offence
Where the indictment contains a count on which, if the accused were to plead not guilty, the jury could find the accused not guilty as charged but guilty of an alternative (hereafter referred to as ‘lesser’) offence, the accused may enter a plea to the same effect, namely not guilty to the offence charged but guilty only of the lesser offence.
If the plea is accepted, the accused is treated as having been acquitted of the offence actually charged and the court proceeds to sentence the accused for the lesser offence
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,
The considerations relevant to the decision by the prosecution to either accept or reject the plea are considered below.
In Soanes 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 clear that the prosecution are only bound to act in accordance with the judge’s view if they have sought it. 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. The judge can, in accordance with CrimPD 9.3.2, adjourn proceedings for further review of the prosecution’s decision if satisfied that the proposed course may lead to serious injustice.
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 the judge to approve it in advance.
If they choose not to seek prior approval, they may accept the pleas even though the judge indicates in court that they ought to proceed on all counts
From Not Guilty to Guilty
Change of Plea
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 plea thereafter. Where the accused wishes to change plea from not guilty to guilty, this causes little difficulty.
Where, however, the accused seeks to change plea from guilty to not guilty more difficult considerations arise, not least because such a change represents an assertion that an accused has realised that he or she did not commit the offence after all. The considerations in this category also include issues as to whether a plea was ambiguous or involuntary.
From Not Guilty to Guilty
The judge may allow the accused to change 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 where D 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 however, D 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 D had pleaded guilty on arraignment, with an adjournment for reports. D 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 the judge would be unwilling to allow it to be done.
From Guilty to Not Guilty
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 where the major question for the court was whether D’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. D was not sentenced until after the acquittal of the others, and, prior to sentence, asked to withdraw his plea. Wright J said
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
The existence of the discretion was indirectly confirmed by the House of Lords in S v Recorder of Manchester, 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 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.
