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Prosecutorial Discretion & Review, The Plea, Burdens, Indictment, Jury Notes

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• Governed by Indictment Act 1915 (rough framework) & Criminal Procedure Rules Pt 10

• s.3 IA 1915: every indictment shall contain & be sufficient if it contains a statement of specific offence(s) with which D charged, together with particulars as necessary

• r10.2 CPR: indictment must be in form of Practice Direction & must contain in a para called 'count': a) statement of offence charged with a) describes offence in ordinary language b) identifies any legislation that creates it a) and such particulars of conduct constituting offence

make clear what P alleges

• Indictment important - explains clearly to D what charges are

• Needs be sufficiently detailed in order to allow D make defence/plea

• How much precision required?

• Hodgson 08: Ds in violent altercation - charged with attempted murder then indictment amended to add 'inflicting GBH under s.18 OAPA' but 'inflicting' is in s.20! CA criticised but couldn't lead to quashing

• Ds admitted their intent & had enough notice of what being charged for conviction be safe - seems technical issues can be overlooked as long as fair overall

• Bear in mind Art 6 ECHR probability

• A6(3)(a): everyone charged with a crim offence has the right be informed promptly,
in language he understands and in detail, of the nature & cause of accusation against him

• There is a general rule against duplicity

• Duplicity: 2 different offences in 1 count or 2 distinct allegations of the same offence in 1 count

• Governing concern: each possible offence should be treated separately - even if a no. of counts relating to the same occasion

• Is because judge needs be sure that jury were all agreed on the same matter

• Marchese 08: 2 instances of same offence in 1 count - question was about whether
AR/MR would line up - was bit problematic but CA said conviction safe - a matter of form rater than substance

• Then -> change in the rules - 10.2 CPR: more than 1 incident of same offence may be included in count if, taken together, amount to course of conduct having regard to time/place/purpose

• overwhelming shift away from technicalities towards overriding justice (Stark)

• Marchese would now be ok

• Dhupar 15 D accused of fraud by abuse of position against elderly lady - appealed saying trial unfair because counts bad for duplicity - CA held: no reason why not put the many small transactions of same type against same V into same count was rational & comprehensible - case divided manageably for jury & summing up v clear -> underlying issue is fairness - no prejudice to D here - condition safe

• Joinder: charges for more than 1 misdemeanour may be joined in same indictment
(IA s.4)

• 10.2(3) CPR: the indictment may contain more than 1 count if all the offences charged a) are founded on same facts; or b) form some part of a series of offences of same/similar character
Page 1 of 17 CPE



• Barrell & Wilson 79: charged with affray & ABH, W offered V £ to change story, so added charge of 'perverting course of justice' to indictment

• CA held founded on same facts because only 'prevented' due to assault etc - said need a 'common factual origin'

• contrast McGrath 13: D charged with 11 offences of dishonesty - could vandalism in cell be added? Dishonesty did give D opportunity vandalise but said Barrell doesn't stretch this far! Not about causation - is about reasoning - dishonesty didn't give M
reason to vandalise but assault did give W a reason to 'pervert'

• Ludlow v MPC 71: said would be same/similar character where there was a 'factual or legal nexus' - here attempted theft in 1 pub, then different day alleged robbery at diff pub within 16 days - sufficient

• Marsh 86: sometimes legal similarity enough if not factual & vice-versa

• Baird 93: indecent assaults on 2 diff boys 9yrs apart - CA said similar in nature &
legally identical thus valid

• Mutually contradictory counts - Bellman 89 says can be on same indictment (validly joined)

• B either tricked people into giving him £ to import drugs or he agreed to go to US
& get drugs

• Thus was either conspiracy or obtaining money by deception - ok to join as long as
P can present prima facie case on both - up to jury decide which

• How many counts on 1 indictment?

• General concern to avoid trivial counts - keep the focus on serious offences so as to not distract jury/wear them down/prejudice D - jury may see lots of offences and jump to conclusions!

• Ambrose 73: indecent assaults & damaged cell door (crim damage) - CA criticised P
for latter - may influence the jury - might also think being treated too harshly so let off - trivial!

• Clark 96: need avoid over-bading injury & causing prejudice - sample/specimen counts can be used (isolate examples) but must give judge adequate sentencing powers if D convicted - need get balance because uncharged conduct cant be sentenced

• s.17 Domestic Violence, Crime & Victims Act 04: sample counts can go before jury but judge considers others - allows adequate sentencing w.o prejudice

• show if put all counts before jury, would last too long, cost too much & give rise to prejudice

• samples must be representative & in interests of justice

• but is it ever in interests of justice have trial w.o jury?!

• McGrath 13: counts joined inappropriately won't necessarily mean successful appeal against conviction - the incorrectly joined count was quashed (crim damage) but to quash the other, would need to show the crim damage counts prejudiced him for dishonesty charges

• Co-defendants: can counts relating to separate Ds be joined in same indictment?
Yes - efficient!
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• 2 ways: Joint counts (X & T did crime A) or Separate counts founded on similar facts (X did crime A, Y did crime B)
1) Joint counts: multiple Ds on same count/s:

• e.g joint enterprise, aiding, abetting, procuring

• doesn't mean they all need be convicted/acquitted - jury has consider accounts against each D separately

• DPP v Merriman 73: HL said Ds accused of GBH could be joined because avoids duplicity evidence, juries reaching diff conclusions in same circs - just need consider each separately & be sure who was who! (primary & secondary)

• Also said any/all can be convicted on basis they acted independently from other(s)

• Generally in interests of justice have 1 trial of all Ds; separate trials ordered a) In exceptional cases (Moghal 77), or b) If there are lots of Ds (Thorne 78) - 14 too many!

• On facts of Moghal is easy see why courts not keen order sep trials - increases chance of D being able lie (unchecked) to jury & prevents them from getting overall picture

• M's gf S had been severed to a sep trial on her own, everything unravelled!
2) Separate counts: multiple Ds on diff counts

• Matter of court's discretion, but need linking factor between offences to justify joinder on 1 indictment

• e.g Assim 66: both worked in night-clubs & assaulted customers in sep incidents no involvement - CA said generally should try diff allegations on 1 but interests of justice required it here

• Same type of attack within similar time/place

• Even if properly joined, judicial discretion whether then severed for a separate trial (Johnson)

• Note can have some counts against both & some separate as long as some proximity

• If have 6 indictments don't necessarily sever into 6 but could go into 2/4 etc

• Another possibility for existing indictment to be amended is to add a new D
(s.5(1) Indictment Act 15)

• Can be done unless injustice caused

• Booker: not wrong per se to join later found D, even if disadvantages one of original Ds

• When should severance be allowed?

• If prejudice caused to D1 by presence of D3 e.g Townsend D3's defence was hostile to D1 - conviction on that count unsafe

• note solution would've been to allow the joinder but then sever D3 to be tried separately!

• Walker 16: court refusing extension of time on basis no prejudice of having trial with co-D in a murder

• Williams 17: court has little time for technicalities relating to joinder - unless can show real prejudice won't quash for technicalities!

• As having witness statements from young/elderly etc can't just quash and say do it again - needs be sufficiently prejudicial

• Can validly joined counts be separated?
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• s.5(2) where court of opinion (before or during trial) that D may be prejudiced/embarrassed in his defence by reason of being charged with more than 1 offence in same indictment or that for any other reason is desirable direct that the person should be tried separately for any 1/more offences charged, court may order separate trial of any count(s)

• note must be validly joined in 1st place! Follett 89: severance not allowed where improperly joined (but P can apply to start again with fresh indictment)

• essence is, if these counts heard together, will D have fair go at running his defence? e.g where 1 count v shocking (like child sex) & other is dishonesty, can understand 1 w.o other so separate trials fair - jury could be prejudiced because of child sex e.g

• Blackstock 79: charged with 2 separate robberies - argued should sever counts to avoid confusion - CA said trial judge discretion - if gave clear directions, wouldn't interfere

• takes some explaining - don't use evidence from count 1 in count 2 etc

• D 03: 2 sex offences - judge didn't make 1 clear so convictions unsafe

• but in these cases risk is that diff juries may reach diff conclusion thus prejudice/embarrassment need be at v high level

• Can Ds on the same indictment ask for separate trials? Only if validly joined - same test of prejudice/embarrassment

• B(C) 04: Ds tried together on same indictment of sex offences against same V

• but in diff circumstances - D1 wanted bring evidence of D's conviction for incestprejudice alleged - CA said should be tried separately - wouldn't be able bring that in sep trial

• CJA 03 wouldn't necessarily allow now anyway!

• Grondowski & Malinowski 46: cut throat defence - argued would be prejudiced - C
rejected said trial judge has discretion - CA only interfere if obvs wrong

• Johnson 95: J was D for 3 counts, V for 3 counts - strong interest (economically) in hearing them together given witness identical but outweighed by fact jury would be confused - severed

• Thornton argues CA's attitude towards trial judge's discretion is too relaxed ->
unfair trials

• current bar quite high - wide discretion & stringent requirements - do rules of joinder provide sufficient fairness?

• CA are lax largely in interests of justice - not wanting quash on technicalities etc

• Can 'errors' on indictment be fixed? s.5(1) IA before/during trial, court can make such order as thinks necessary to meet circs of case, where indictment appears defective unless looking at merits, amendments can't be made w.o injustice

• Johal 73: said further into trial, less likely allow amendment - squares with purpose
- notice

• O'Connor 97: D didn't correct until no case to answer - added new count - CA said too late because meant diff causal story

• Gleeson 03: distinguished O'Conor - said no general principle that can't amend after close of defence case - here P's case didn't change - no one had notice error overriding objective of justice

• Love 13: burglary indictment didn't specify dwellings - allowed charge from
'building' - no injustice because allowed plead again

• Can amending 'defects' = adding new counts?

• 10.2(5): indictment may contain (a) any count charging substantially same offence as 1 specified in notice of offence/offences for which D sent for trial, and (b) any other count based on P evidence already served
Page 4 of 17 CPE

• Thompson 11: charged with producing counterfeit goods - found further counterfeit goods, gave evidence to D - could add counts relating to 2nd search


• Must D appear in court in order for trial to take place?
a) Magistrate's Court Act 1980 s.11: where D doesn't appear, can continue if U18 & if

U18+ can continue unless appears contrary to interest of justice

• but won't proceed where summons issued unless serve within reasonable time or
D has appeared on prev occasion (in absence)

• won't proceed in absence if court considers acceptable reason for failure attend

• don't have to enquire as to reasons but if not proceeding must state why in open court b) Crown Court:

• Jones 02: D was going come to plead not guilty but didn't appear - HL said judge has discretion whether continue trial - said must be careful because important to fairness under A6

• Lord Bingham drew distinction between involuntarily failing appear e.g ill &
voluntarily not wanting attend - A6 compatible

• O Hare 06: D didn't turn up - CA said if voluntarily abscond trial can continue enter plea of not guilty on their behalf

• s.6 CLA 67: where stand mute of malice/won't answer indictment directly, your may order plea of not guilty on his behalf - proceed as if plead x guilty

• Various pressures often applied on D to plead guilty - legit?

• Barnes 71: trial judge told D trial waste of time & that defence wouldn't work, so pleaded guilty - quashed! Said such pressure that must have seemed biased!

• decision to plead guilty must be entirely voluntary!

s.144 CJA 03: in determining sentence, court must take into account 1(a) stage in proceedings @ which offender indicated intention plead guilty
(b) circs in which this indication given
Sentencing Council gives guidelines - revised 2016 to encourage Ds aware of own guilt enter plea ASAP - aim improve consistency/clarity victims & witnesses spared having appear in court - police/CPS can focus resources on other cases - saves public time/£
currently 33% if plead at 1st stage of proceedings, then after 1st stage, sliding scale of 20-10%
can go to 0 if plead guilty during actual trial has made it a 'steeper line'
but what about innocent people who think jury will never believe them? Over 90%
sentences from guilty plead - but negligible concern with legal advice>
Only 1-2% of all cases prosecuted result in jury trial! Law's focus shifted to pretrial phase by end of 20th C 65% Ds in CC pleading guilty (more in magistrates)
in 2014 up to 90% in CC! 72% pleaded guilty at 1st opp!


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