Unit 13 - PTPH (CC) (UNIT 8 BSB)

Question 1

What is Arraignment?

Answer 1

Usually at the commencement of the PTPH (Plea Stage) or at an earlier pre-trial earing/preliminary
hearing the Court reads out each count on the indictment to the defendant (@ Plea Stage) and he
will be asked to plead G or NG

Question 2

What happens if the D is found unfit to plead, and the jury found him to be guilty?

Answer 2

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.

Question 3

The court’s orders when in an event D is found unfit to plead, and the jury found him to be guilty

Answer 3

(1) These are the only orders a judge can make, following a finding that an accused who was unfit to plead had committed the act.

(2) Before the court can make a supervision order, it must have evidence that the necessary arrangements for supervision
are in place, and that such supervision is available.

Question 4

Rights of the Victim

Answer 4

• Under the DVCVA 2004, s. 38, the victim of a sexual or violent offence has certain rights where an offence is committed by a person who is found not guilty by reason of insanity or who is subject to a finding under the Criminal Procedure (Insanity) Act 1964, ss. 4 and 4A (‘the patient’)

Question 5

PROCEDURE FOR ARRAIGNMENT (when D is found fit to plead)

(1) Usually, at the commencement of PTPH (or at an earlier pre-trial hearing, see below) =

Answer 5

the court clerk reads out each count on the indictment to D; and he is asked his plea to the counts.

Question 6

PROCEDURE FOR ARRAIGNMENT (when D is found fit to plead)

(2) Plea Process (counts/joint indictments):

Answer 6

a) If there are multiple counts: a plea must be taken on each count separately, immediately after it is read out.

b) However, if two counts are in the alternative, and accused pleads guilty to the first: it is unnecessary to take a plea on the second. (e.g. GBH/wounding)

c) If there is a joint indictment against several accused, normal practice is: to arraign them together.

d) In a joint count: separate pleas must be taken from each of those named in a joint count.

Question 7

PROCEDURE FOR ARRAIGNMENT (when D is found fit to plead)

(3) Pleas that may be entered on arraignment:

Answer 7

i). Majority of cases: plea is simply guilty or not guilty.

ii). Sometimes possible to plead not guilty as charged, but guilty of an alternative (lesser) offence.

iii). The only alternatives to a plea of guilty or not guilty: arise where it is submitted that it would be not be appropriate for the accused to be arraigned at all.

E.g: the case of a plea of autrefois acquit or autrefois convict; where there is some other obstacle (such as unfitness); or where there is a plea to the jurisdiction

Question 8

PROCEDURE FOR ARRAIGNMENT (when D is found fit to plead)

Attendance:

Answer 8

a) An accused in custody may be arraigned via live link rather than in person. (and, those not in custody may appear by live link in certain circumstances, CrimPD I
3N.9).

b) It is now standard practice to exclude the jurors in waiting from court until after the arraignment is completed.

This avoids the possibility of potential jurors being prejudiced by hearing the accused plead
guilty to some but not all the counts.

Question 9

Jury

After jury is sworn, they are told by the clerk of the counts:

(when D is found fit to plead)

Answer 9

to which D has pleaded not guilty; and no mention is made of the counts to which he has pleaded guilty, nor of any co-accused who may have pleaded guilty.

Question 10

PLEADINGS that may be entered on arraignment

(when D is found fit to plead)

Answer 10

1) Pleading NG
2) Pleading G
3) Mixed Pleas (on a multi-count indictment)
4) Pleading G to lesser or alternative counts

Question 11

PLEADINGS that may be entered on arraignment: does D have to say NG?

Answer 11

It is not essential that D formally says the words ‘not guilty’

If D stays silent; or fails to give a
direct answer; or the plea is ambiguous (although it purports to be one of guilty) = then a plea of not guilty is entered by the court on his behalf.

Question 12

PLEADINGS that may be entered on arraignment:

Effect of NG plea

P’s role

Answer 12

A plea of not guilty puts the prosecution to proof of their
entire case.

Burden is on prosecution to
satisfy jury beyond reasonable
doubt that accused committed
the AR of the offence (or aided/abetted/counselled/procured its commission); and had necessary MR.

If prosecution fails to adduce
sufficient evidence as to any
element of the offence = accused
is entitled to be acquitted on
judge’s direction, following a
submission of no case to answer
made at close of prosecution case

Question 13

PLEADINGS that may be entered on arraignment:

Effect of NG plea

Defence statement should
have indicated:

Answer 13

(1) shouldhave indicated, in advance of trial, those parts of the
prosecution case which are
disputed:

However, defence counsel is still entitled to take advantage of any deficiency in the prosecution evidence & submit there is no case to answer (whether or not that
element) of the offence would
otherwise have been contested).

Question 14

PLEADINGS that may be entered on arraignment:

Effect of NG plea:

• The only method by which the prosecution may be released from their obligation to prove each essential element of the offence is when:

Answer 14

1) if the defence have made formal admissions under s. 10 of the CJA 1967; OR

2) where a fact is presumed; OR

3) judicially noticed

Question 15

PLEADINGS that may be entered on arraignment:

G PLEA: Is silence sufficient for a plea of G?

Answer 15

no!

A guilty plea MUST come from the mouth of the accused directly

Question 16

PLEADINGS that may be entered on arraignment:

G PLEA: can counsel put G plea instead of/on behalf of D?

Answer 16

no!

• no validity

Question 17

PLEADINGS that may be entered on arraignment:

Effect of G plea

P’s role:

Answer 17

D stands convicted, and prosecution need not prove anything.

Question 18

Effect of G plea: what does the court do?

Answer 18

No need to empanel a jury.

+ court then proceeds to sentence or adjourn;

Question 19

After a G plea, what if there is a dispute between the parties about the material facts of the offence?

Answer 19

– if such a dispute is serious enough to have a significant effect
on sentence, the prosecution must either:

(a) call evidence in support of their own version at a ‘Newton hearing’ OR

(b) allow sentence to be
passed on the basis of the
defence version.

{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 Newton hearing}

Question 20

After guilty plea: * D will be:

Answer 20

(A) sentenced forthwith; OR

(B) adjournment following guilty plea

Question 21

Adjournment
following guilty plea:

Answer 21

(a) adjournmentfollowing guilty plea:

Question 22

Following G plea, Common reasons for an adjournment are to:

Answer 22

1) if a PSR (or other report) is
required to assist the judge in sentencing

= sentencing will be adjourned for preparation of the
report(s);

OR

2) to await the outcome of other
proceedings outstanding against D, with a view to his being
sentenced on one occasion for all
matters.

Question 23

Following G pea : On adjournment
for sentencing: Bail or custody?

Answer 23

a decision will be made re whether
to remand the D in custody or on
bail pending sentence

Question 24

Mixed Pleas from an Accused

If D pleads guilty to some but not all of the counts on theindictment (and the prosecution is not willing to accept those pleas) : can the court sentence straight away?

Answer 24

NO!

sentencing for the counts to which he pleaded guilty should
be postponed until after the trial on the not guilty counts.

NB: this is difference form the situation of an accused who pleads guilty to a lesser offence.

Question 25

G to Lesser/Alternative Counts

Examples where D might plead guilty to some lesser/alternative criminal conduct:

Answer 25

i. Murder; D might offer to plead guilty to manslaughter.

ii. GBH with intention (s18 OAPA): might offer to plead guilty to GBH without intent, s20.

iii. Possession of Class A/B Drugs with Intention to supply: might offer to plead guilty to simple ‘possession’ of drugs without intent to supply.

o Burglary: might plead guilty to
Handling Stolen Goods.

Question 26

G to Lesser/Alternative Counts: who considers whether he will allow [a plea of guilty to a lesser offence] to be accepted’?

Answer 26

THE JUDGE!

Question 27

G to Lesser/Alternative Counts: JURY

Answer 27

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 (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

Question 28

in the analogous situation of the accused pleading to some counts on the indictment in exchange for the prosecution offering no evidence on others, =

Answer 28

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

Question 29

Change of plea

Answer 29

FROM NOT GUILTY TO GUILTY
(causes little difficulty)

FROM GUILTY TO NOT GUILTY
(This is much more difficult)

Question 30

Change of plea: From Not Guilty to Guilty: can D change plea?

Answer 30

YES, ANYTIME

A D who has pleaded not guilty can, at any time before the jury return their verdict, can ask,
through their Counsel, that:

i. the ‘indictment be put again’ (in Crown Court)

ii. the ‘charge sheet’ be put again (in m’ court)

iii. Then the clerk will read the
indictment, and D can plead guilty.

Question 31

Change of plea: From Guilty to Not Guilty: can D change plea?

Before sentence:

Answer 31

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

It is at discretion of judge: judge should exercise their discretion judicially and sparingly;
o The discretion to allow change of plea exists even where the plea was unequivocal .
o The discretion must be exercised
judicially

Question 32

Pre-trial and trial preps

Answer 32

• when case reaches trial = all necessary preparation has been completed, and completed as efficiently and expeditiously as possible

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 33

Preliminary Hearings Generally

Answer 33

Where a deferred prosecution agreement is proposed, 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’.

Question 34

Pre-trial Hearings

• The CPIA 1996, ss. 39 to 43, and especially ss. 39 and 40, promote the efficient conduct of trials on indictment.

Answer 34

• They complement the rules for PTPH and preparatory hearings

Question 35

Pre-trial hearings: procedure

Answer 35

(1) hearing public

(2) their outcome published if held in private

As these are pre-trial hearings, they can therefore be conducted by a judge who will not be the eventual trial judge.

Restrictions on the reporting of pre-trial rulings are contained in the CPIA 1996, ss. 41 and 42. There are no exemptions in respect of the publication of formal details, such as the name, address and occupation of the accused (again, in contrast with the position in relation to preparatory hearings).

Question 36

Plea and Trial Preparation Hearings: normally it should be the only pre-trial hearing:

Purpose:

Answer 36

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

Question 37

PTPH: Material for the Hearing

Answer 37

• 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, and CrimPR 3.21

Question 38

PTPH: - CrimPR 3.21(2) requires the judge at the hearing to be satisfied of the following:

Answer 38

(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.

Question 39

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.

Question 40

PTPH: FORM

Answer 40

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

Question 41

PTPH: form

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

Answer 41

(a) orders in relation to witnesses, such as special measures and witness summonses;

(b) orders as to disclosure including guidance as to large-scale digital storage issues:

and

(c) outstanding legal issues, including applications under the bad character and hearsay provisions of the CJA 2003

Question 42

PTPH: form [CASE LAW]

Answer 42

• In Diedrick [1997] 1 Cr App R 361, the appeal concerned the actions of the trial judge in questioning D about what he thought was a lie which D 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 D’s behalf should not then ordinarily be used as evidence against D 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 D with the CrimPR, and with the ‘cards on the table’ approach to proactive case management now required (

Question 43

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:

Answer 43

a) offer no evidence

b) to ask that the indictment remain on the court file

Question 44

Prosecution options on plea of not guilty or mixed pleas being entered: Apart from trial:

a) offer no evidence

[notes]

Answer 44

• 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 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 45

Prosecution options on plea of not guilty or mixed pleas being entered: Apart from trial:

a) Letting Counts Lie on the File

[notes]

Answer 45

• 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
• 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], 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 (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 46

Applications for dismissal:

Answer 46

• The accused may make an oral application for dismissal only after giving written notice of intention to do so

Question 47

Test on Dismissal Applications

Answer 47

(1) the judge was required to take into account the whole of the evidence against the accused; and

(2) that it was not appropriate for the judge to view any evidence in isolation from its context and other evidence

Question 47

Test on Dismissal Applications

Answer 47

(1) the judge was required to take into account the whole of the evidence against the accused; and

(2) that it was not appropriate for the judge to view any evidence in isolation from its context and other evidence