Preliminaries to trial in the Crown Court Flashcards
What are the consequences of a finding of unfitness to plead?
If A if found unfit to plea & jury determine that A did the act/made the omission as charged = court may make one of the following orders:
1) Hospital order
- May be made the subject of a restriction order w/o limit of time
- Murder charges = judge must make hospital order w/o limitation of time, whether or not justified on the medical evidence
2) Supervision order
- Court must have evidence that necessary arrangements in place & such supervision available
3) Order for A’s absolute discharge
*If A improves, will be arraigned in normal way
How is unfitness to plead determined?
Determined by court w/o jury on medical evidence
When can the court, D or P raise the question of A’s fitness of plead? How can the court deal with this?
During A’s trial and it the Q’s of fitness will be determined as soon as it arises.
Court may deal with this Qs in 2 ways:
a. Postponement: The court can delay making a decision about A’s fitness until any time up to opening of D case. This can happen if the court believes it’s expedient and in A’s interests and practical whilst having regard to nature of A’s supposed disability.
b. Acquittal: If the jury decides to acquit D before the question of A’s fitness is resolved, then the court won’t need to decide on A’s fitness.
What’s the procedure on arraignment?
Clerk reads indictment to A & asks whether he pleads G/NG after each count
If several counts, a plea must be taken on each one separately, immediately after it is read out
Two counts in alternative & A pleads G to first → unnecessary to take plea on second
Joint indictment → arraigned together w/ separate pleas after each count
A in custody (or, if not in custody, in appropriate circumstance) → can be arraigned via live link
Jury excluded from court until afterwards & only told counts to which A pled NG
What pleas that may be entered on arraignment?
G / NG usually
But sometimes open to A to plead NG as charged but G of alternative (lesser) offence
Only alternative is when not appropriate for A to be arraigned at all:
▪ Autrefois acquit/convict
▪ Unfitness
▪ Plea to jurisdiction
A enters a Plea of Not Guilty. What happens?
Usually entered personally, using words ‘Not Guilty’
- But is possible for valid trial to happen despite absence of personal NG plea (cf. G plea)
Effect = puts P to proof of entire case (prove BRD of AR + MR)
If P fails to adduce sufficient evidence of any element of the offence charged = A entitled to acquittal on judge’s direction following submission of no case to answer on close of P case
When arraigned and asked to enter a plea, you A goes silent. Is the NG entered?
Yes, NG also entered if:
▪ Wilful silence
▪ Failure to give direct response, or
▪ Ambiguous G plea
A enters a plea of Guilt, what’s the effect?
Must come personally from D’s mouth (i.e. not from counsel) — otherwise invalid + mistrial
Effect = P need not prove anything & no jury necessary
- P calls evidence of A’s prior convictions
- If dispute on material facts of the offence, can have a ‘Newton’ hearing to resolve: P must either call evidence supporting its version or accept D’s version
What’s a ‘Newton hearing’? When does it happen?
Is a ‘side hearing’ required when the D pleads G but there is disagreement with P as to the material facts on which the defendant should be sentenced.
- A pleads G on a specific basis that the prosecution does not accept.
- evidence is called by both parties and the judge (sitting without a jury) or the magistrates decide the basis on which they will pass sentence.
The burden of proof lies with P to satisfy the court BRD
Must the accused plead personally?
Yes, but a couple of exceptions
NG:
- Usually the use of words ‘NG’
- Wilful silence (accepted)
- Failure to give direct response (accepted)
- Ambiguous G plea (accepted)
G:
- Must come personally from D’s mouth (if not =mistrial)
Following a G plea, must the court adjourn? Does the presumption of bail applies?
It’s entirely at the court’s discretion, has 2 options:
(1) immediately move to sentencing, or
(2) adjourn to
(i) obtain reports on A, or
(ii) await outcome of other proceedings against A, so can be sentenced at the same time
*A can either be committed to custody or bail (presumption applies if adjournment for inquiries/PSR)
If A enters mixed pleas on multi-count indictment and P is not ready to accept those plea, what happens?
Will be tried for NG pleas.
The sentencing for counts A pleaded G postponed until after the trial on NG counts.
The indictment contains a count on which (if A pleaded NG) the jury could find the accused NG as charged, but G of an alternative, lesser offence. What are the offences?
A may plead NG to the offence charged but G to that lesser offence:
▪ Murder → manslaughter
▪ S 18 → s 20
▪ Possession w/ intent to supply → possession
▪ Burglary → handling stolen goods
A pleads G to a lesser offence. What happens if P accepts plea?
A acquitted of offence charged & sentenced for lesser offence
- P only bound to act in accordance with the judge’s view if have sought it
- P refuse to call evidence to prove A’s G as charged - court has no real alternative but to accept plead deal (subject to any proper Q of professional misconduct)
Can A change of plea from NG to G? What’s the procedure?
Yes - Judge may allow at any stage prior to jury returning verdict
Procedure = D asks for indictment to be put again, then A pleads G
a) directions: If change of plea comes after A put in charge of jury = jury should be directed to return a formal verdict of G
- BUT valid conviction where D changed plea to G on 2nd day of the trial. If the judge dismisses the jury without recording any verdict, the legal proceedings continue as though the defendant had pleaded G during the initial arraignment.
Can A change of plea from G to NG? What’s the judge discretion here?
MORE DIFFICULT
Judge has discretion to allow this:
1) at any stage before sentence passed (NB held, no conviction until then)
2) even where original plea was unequivocal
3) must be exercised judicially — sparingly & only in clear cases (i.e. where not to do so might cause an injustice)
Examples:
- D misinformed on nature of charge / availability of a defence
- D put under pressure to plead D
NB: very difficult to appeal b/c discretion
What are preliminary hearings? (generally)
Pre-trial Case Management hearing (after necessary consent for prosecution obtained)
When must a preliminary hearing MUST/MAYoccur?
MUST: Where a deferred P agreement is proposed
- court will be invited to declare that agreement:
a) it’s likely to be in the interests of justice for P & A enter such agreement
2) proposed terms are are ‘fair reasonable and proportionate’
MAY: Serious cases of fraud
What’s the Plea and trial preparation hearing (PTPH)? What’s PTPH purpose?
What is it?
= [save where a prelim hearing is required] the major pre-trail CC hearing (objective = should be the only pre-trial hearing)
Two stages:
(1) Plea stage,
(2) Sentence or trial preparation stage
Purpose?
If A has indicated G plea at Mags, or between then & PTPH → sentencing
Otherwise → ensure all steps to prepare trial have been taken / are timetabled
What are the materials for the PTPH?
- Time allowed for PTPH must be sufficient for effective trial preparation, including:
▪ Service of P case
▪ Preferring of indictment
▪ Service of DS
▪ Making of any application to dismiss
P material:
1) By PTPH, P must serve sufficient evidence to enable court to CM effectively without need for a further CM hearing
2) If A was remanded in custody & sent to CC without initial details of P case = material required for an A on bail must be provided 7 days before PTPH
3) CM necessary if a timetable for obtaining evidence as to mental health or capacity is necessary.
During PTPH, the court must be satisfied that?
(a) that D understands credit will be given for a G plea
(b) what D’s plea is / is to be
(c) that D understands that if there is a trial, this can take place in his absence, & consequences in relation to bail if D FTS
What info and matters must be addressed in the PTPH form?
Info required by form (online) must:
(1) be available to court at PTPH, and
(2) have been discussed between parties in advance
- P must provide availability of likely P Ws so that trial date can immediately be arranged if there is no G plea
Matters of case preparation addressed in the form:
(a) orders in relation to Ws (e.g. special measures, W summons)
(b) orders as to disclosure
(c) outstanding legal issues (incl. bad character & hearsay apps)
NB content of the form = technically admissible in evidence against D (subject to PACE s 78*) — but essential that P & D are open in their answers at the PTPH & that no party later ambushes another: such candour is more likely where the answers given not liable to be later admitted in evidence
*Material recorded on the form on D’s behalf should not ordinarily be used as evidence against D – exception to Hearsay Rule
What are P’s options on NG or mixed plea being entered?
(1) proceed to contested trial
(2) offer no evidence
(3) let indictment lie on court file
P offers no evidence - what’s the procedure and when used?
Procedure →
1) Court may order NG verdict to be recorded w/o D being given in charge to jury
- While seems to give judge discretion, P cannot be forced to call evidence
When used →
1) P has reviewed evidence & concluded no/insufficient evidence to prove a count on the indictment, or
2) Part of an agreement w/ D under which A pleads G to other counts
- P only bound by judge’s view on this if have expressly asked judge to approve the agreement in advance of A’s plea
