Preliminaries to trial in the Crown Court. Prosecution offering no evidence and leaving counts to lie on file Flashcards
Offering No Evidence
Prosecution Options on Plea of Not Guilty or Mixed Pleas Being Entered
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.
Offering No Evidence
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.
While 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 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 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.
Letting Counts Lie on the File
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 (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 the accused 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.
example: as a result of D’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:
[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.
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.
