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Pre Trial Matters
CrimPR 3.24, Arraigning the defendant on the indictment
(1) In order to take the defendant's plea, the Crown Court must---
(a) obtain the prosecutor's confirmation, in writing or orally---
(i) that the indictment (or draft indictment, as the case may be) sets out a statement of each offence that the prosecutor wants the court to try and such particulars of the conduct constituting the commission of each such offence as the prosecutor relies upon 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 or draft indictment;
(c) in respect of each count---
(i) read the count aloud to the defendant, or arrange for it to be read aloud or placed before the defendant in writing,
(ii) ask whether the defendant pleads guilty or not guilty to the offence charged by that count, and
(iii) take the defendant's plea.
(2) Where a count is read which is substantially the same as one already read aloud, then only the materially different details need be read aloud.
(3) Where a count is placed before the defendant in writing, the court must summarise its gist aloud.
(4) In respect of each count in the indictment---
(a) if the defendant declines to enter a plea, the court must treat that as a not guilty plea unless rule 25.10 applies (Defendant unfit to plead);
(b) if the defendant pleads not guilty to the offence charged by that count but guilty to another offence of which the court could convict on that count---
(i) if the prosecutor and the court accept that plea, the court must treat the plea as one of guilty of that other offence, but (ii) otherwise, the court must treat the plea as one of not guilty;
(c) if the defendant pleads a previous acquittal or conviction of the offence charged by that count---
(i) the defendant must identify that acquittal or conviction in writing,
explaining the basis of that plea, and
(ii) the court must exercise its power to decide whether that plea disposes of that count.
(5) In a case in which a magistrates' court sends the defendant for trial,
the Crown Court must take the defendant's plea---
(a) not less than 2 weeks (14 days) after the date on which that sending takes place, unless the parties otherwise agree; and
(b) not more than 16 weeks after that date, unless the court otherwise directs (either before or after that period expires).
FITNESS TO PLEAD
-If accused is found fit to plead before calling of any prosecution evidence --> he will thereafter be arraigned in the usual way and plead to the indictment.
-If D is 'unfit to plead' (mentally incapable) ? no plea will be taken.
o However, if before prosecution evidence is called, his mental disability improves and is found fit to plead ? he will be arraigned in the usual way.
-Crim Procedure (Insanity) Act 1964, s4:
o (1) Section applies when, on the trial of a person, the question arises whether the accused is under a 'disability' (such disability as would constitute a bar to his being tried).
o (2) If court thinks expedient & in interests of justice ? court may postpone consideration of question of fitness, to be tried until any time up to the opening of the defence case.
o (3) If the jury return a verdict of acquittal before the question of fitness to be tried falls to be determined: that question shall not be determined.
o (4) Subject to (2) and (3), The question of fitness to be tried shall be determined as soon as it arises
(5) the question of fitness shall be determined by the court, without a jury.
o (6) the written/oral evidence of 2+ registered medical practitioners (at least one of whom is duly approved) is needed for court to make a determination as to fitness.
-Where it is determined by a court that the accused is unfit to plead (under a disability) ? court will hold a trial for the jury to determine whether the accused did the AR (but not the MR) (s4A):
o Where the accused is unfit to plead:
o The trial shall not proceed, or further proceed. ???
o The jury will determine whether they are satisfied that the accused did the act/omission charged against him as the offence (on each count(s) on which accused was being tried):
-(a) on the evidence (if any) already given in the trial; and
-(b) on such evidence as may be adduced or further adduced by prosecution;
-or adduced by a person appointed by court to put the case for the defence
If jury are not satisfied that the D did the act/omission (the AR) ? they will return a verdict of acquittal (as if the count had proceeded in trial to a conclusion).
Where the question of disability was determined after arraignment: the determination re whether D did the act/omission, is to be made by the same jury by whom he was being tried.
S5: where jury finds that an accused, who is unfit to plead (i.e. under a disability)
did the act/omission (the AR) charged against him [[OR where a special verdict is return that D is not guilty by reason of insanity]]: The court may make one of the following orders:
o (a) a hospital order (for admission to such hospital as SOS specifies; such an order may be attached with a restriction order).
o (b) a supervision order; OR
o (c) an order for absolute discharge
Where the offence is one where the sentenced is fixed by law, and the court has power to make a hospital order ? the court shall make a hospital order with a restriction order.
These are the only orders a judge can make, following a finding that an accused who was unfit to plead had committed the act.
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.
PROCEDURE FOR ARRAIGNMENT (when D is found fit to plead)
-Usually, at the commencement of PTPH (or at an earlier pre-trial hearing, see below)
-? the court clerk reads out each count on the indictment to D; and he is asked his plea to the counts.
-If there are multiple counts: a plea must be taken on each count separately,
immediately after it is read out.
-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.
-If there is a joint indictment against several accused, normal practice is: to arraign them together.
-In a joint count: separate pleas must be taken from each of those named in a joint count.
-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).
-It is now standard practice to exclude the jurors in waiting from court until after the arraignment is completed. ?
o This avoids the possibility of potential jurors being prejudiced by hearing the accused plead guilty to some but not all the counts.
o After jury is sworn, they are told by the clerk of the counts 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.
Pleas that may be entered on arraignment:
o Majority of cases: plea is simply guilty or not guilty.
o Sometimes possible to plead not guilty as charged, but guilty of an alternative
o 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.
o Eg: 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.
Pleading Not Guilty
-Normally, D will plead not guilty personally when arraigned by the clerk, in the absence of any potential jurors.
-It is not essential that D formally says the words 'not guilty'
o ? 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.
-Effect of a Not Guilty plea:
o A plea of not guilty puts the prosecution to proof of their entire case.
o 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.
o 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.
o The defence statement should have 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).
-The only method by which prosecution may be released from their obligation to prove each essential element of the offence, is IF:
o the defence made formal admissions (s10 CJA);
o OR where a fact is presumed;
o OR where a fact is judicially noticed
-A plea of not guilty means: the prosecution must prove its case ? must be a trial.
Pleading guilty ???D MUST enter a guilty plea personally (CF not guilty plea, which could be entered by the court on D's behalf).
o If counsel purports to plead guilty on behalf of the accused ? that purported plea has no validity, and the proceedings commenced under that constitute a mistrial.
o On appeal, the CA will be obliged either to quash the conviction; or grant a writ of venire de novo (set the conviction aside but order retrial).
o I.E. a guilty plea MUST come from the mouth of the accused directly : there is no derogation from this rule. OR the whole procedure will be void and ineffectual.
Effect of Guilty Plea:
o ? D stands convicted, and prosecution need not prove anything. No need to empanel a jury.
o ? court then proceeds to sentence;
o Only evidence prosecution need provide: the accused's criminal record (if any).
Exceptionally, there may be a dispute between the parties about the material facts of the offence ? if such a dispute is serious enough to have a significant effect on sentence, the prosecution must either:
o (a) call evidence in support of their own version at a 'Newton hearing' OR
o (b) allow sentence to be passed on the basis of the defence version.
o 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.
After guilty plea:
D will be sentenced forthwith;
OR, adjournment following guilty plea:
o Whether to adjourn is at discretion of court.
o Common reasons to adjourn:
o if a PSR (or other report) is required to assist the judge in sentencing ?
sentencing will be adjourned for preparation of the report(s).
o or to await the outcome of other proceedings outstanding against D, with a view to his being sentenced on one occasion for all matters.
o On adjournment for sentencing: a decision will be made re whether to remand the D in custody or on bail pending sentence.
o Despite being convicted, an accused remanded for inquiries/report at this stage STILL HAS a prima facie right to bail under s4 BA (presumption of bail applies) ? although, in practice, bail is usually withdraw if accused has pleaded guilty to a serious offence.
Mixed pleas from an accused (on a multi-count indictment)
-If D pleads guilty to some but not all of the counts on the indictment (and the prosecution is not willing to accept those pleas) ? 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. Pleading guilty to lesser or alternative counts???
Eg, where D might plead guilty to some lesser/alternative criminal conduct:
o Murder; D might offer to plead guilty to manslaughter.
o GBH with intention (s18 OAPA): might offer to plead guilty to GBH without intent, s20.
o 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.
Where indictment contains a count on which, if accused were to plead not guilty , the jury could find him not guilty as charged, but guilty of an alternative (a 'lesser offence') ? he may enter a plea of 'not guilty to the offence charged, but guilty only of the lesser offence'.
If lesser plea is not accepted by the PROSECUTOR AND COURT ? the court must treat the plea as one of not guilty.
If plea is accepted ? D is treated as acquitted of the more serious offence ; and court proceeds to sentence for the lesser offence (is treated as guilty of the lesser offence).
The extent of the judge's control over the acceptance of a plea to a lesser offence is open to argument:
o Soanes: always in discretion of judge whether he will allow a plea of guilty to a lesser offence.
o However, it is doubtful whether the court can or should insist one of the parties calling evidence, or call the witnesses itself.
o So 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).
o And in the analogous situation of the accused pleading guilty 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 only if: they have expressly asked him to approve it in advance. If they choose not to seek his prior approval, they may accept the pleas even though the judge indicates in court that they ought to proceed on all counts.
In practical terms, if prosecution accept D's offer to plead guilty to lesser/alternative offence, prosecution can a) Apply to amend the indictment to add the new count that D wishes to plead guilty to;
o Prosecutor can draft a new count on the indictment; then apply to judge to formally add the new count to indictment.
o Once amendment was granted, D barrister would ask for his client to be arraigned. Clerk would read the counts out, D would plead not guilty to the original count, and guilty to the new count.
b) Where the offence D wants to plead guilty to is a direct alternative to the count he faces ? D can simply plead guilty to the alternative.
o "Direct alternative" offence = one which amounts to, or is included in,
expressly or impliedly, the more serious offence.
EG, s20 OAPA: is included within the definition of s18; the only difference is the intent; so s20 is a direct alternative to s18; the maximum sentences are different, so a D might plead guilty so a s20.
o Eg, at PTPH: where D is willing to plead guilty to s20 instead of s18;
prosecution, CPS, police and victim are all content; at PTPH, clerk of court reads out charge (re s18) to D. D can answer: 'Not guilty, but guilty to s20'; or 'Not guilty, but guilty to GBH'.
Prosecution options on plea of not guilty or mixed pleas ? (1) offer no evidence or (2) leave counts to lie:??
Where accused pleads not guilty, or mixed pleas (either some of the accused plead guilty, or one accused enters guilty plea to only some of the charges) prosecution can either:
o (1) proceed to trial (a contested trial)
o (2) offer no evidence
(3) leave counts to lie (ask that the indictment remain on the court file).
Also same options apply where D pleads guilty to a lesser or alternative count (and prosecution accepts this), ? the more serious count, which D has pleaded not guilty to, must be brought to an end
Can be done, either by:
o (1) offering no evidence; or
(2) asking judge to lie the count on the file.
It is common practice for prosecution to dispose of remaining counts (by either above method) only after sentencing has taken place: to ensure certainty, and to prevent the D manoeuvring to take advantage of a situation where counts have already been disposed of.
o Eg, a D might seek to vacate his plea of guilty on the most serious count he has already pleaded to. If he was successful, and all the remaining counts had already been disposed of, he could ultimately place himself in an advantageous position.
(1) When prosecution offers no evidence
-s17 CJA: Where a D pleads not guilty, and prosecution offers no evidence on a count
-> the court may order that a not guilty verdict is entered against that count
(without the D being given in charge to a jury).
o The not guilty verdict will have same effect as if D had been tried &
acquitted by a jury.
-(NB: if jury have already been sworn ? judge will direct jury to return a 'not guilty'
verdict on that count).
-In theory, the wording of s17 gives the court discretion ('may order'): However, the prosecution cannot be forced by the court to call evidence.
-Judge must listen to the reasons given by the prosecution for proposing to offer no evidence: if he fails to heed what prosecution say, he will deprive himself of a proper basis for approving/disapproving of their proposed course of action.
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