The Trial Notes

Supervision 3 – The Trial

Indictments

• CrimPR Pt10.2(3): “Charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form or are part of a series of offences of the same or a similar character.” (Indictments Act 1915, s.4).

  • Charges founded on the same facts:

    • Is one a ‘but for’ cause of the other? (Barrell and Wilson).

  • Charges of the same or a similar character:

    • Ludlow advocated nexus arising in both fact and law.

    • But now either in law or fact enough (Marsh).

• Mutually contradictory counts can exist on same indictment (Bellman).

• Judge may sever the indictment if the accused may be ‘prejudiced or embarrassed in his defence’ (IA, s.5(3)).

  • Invalidly joined counts cannot be severed (Newland). What are the options?

    • Quash and restart (Follett).

    • Amend the indictment and proceed with singular charge.

  • Child sex offences often severed (D), but not necessarily (Christou).

• Subject to not causing injustice, indictment can be amended (IA s.5(1)).

  • Unjust if D changes causal basis of their argument (O’Connor – murder -> manslaughter).

    • Contrast with Love, where indictment changed after D pleaded guilty but knew all along that he had burgled a dwelling.

  • Alternative counts can be added to the indictment, but in Johal and Collison this was only to solve technical problems.

• Prosecutors should not include more charges than necessary to induce guilty plea.

  • Conviction will not be unsafe unless the wrongful joinder prejudiced D (McGrath).

• A count may charge two or more defendants committing a single offence (or different offences). Jury needs to be properly directed (Merriman).

  • Judge has discretion to order separate trials.

  • But single trials reduce risk of different verdicts being returned by juries on virtually identical evidence (Merriman).

  • Does not matter if both Ds going to give evidence implicating eachother (Grondkowski).

  • Ds can be tried in same indictment if incidents are related by time or other factors (Assim).

  • Thornton argues that more weight should be given to defendants.

    • Prosecution should not be allowed to benefit from ‘cutthroat’ defences.

• Motions to quash the indictment not very effective.

  • Amendments often sufficient.

• Court has power to stay in indictment.

In summary proceedings, trial can continue without D (Magistrates’ Courts Act 1980, s.11)

Judge has discretion to continue trial in Crown Court without D (Jones).

Pleas

• ‘Not guilty’ plea places burden on prosecution to show beyond reasonable doubt that accused not entitled to raise it.

• Whenever burden of proof placed on defence, they discharge it on balance of probabilities.

• ‘Guilty’ pleas must be entered by accused personally (Ellis).

  • If plea extracted by pressure, it will be a nullity (Barnes).

  • In Swain, conviction quashed as plea incorrectly made due to psychiatric illness.

• Prosecution can accept ‘guilty’ plea to a lesser offence (Criminal Law Act 1967, s.6(1)(b)).

  • Judge can exercise discretion to refuse this (Soanes).

• Pleas can be changed from not guilty to guilty at any stage of the trial. Other way round requires judge giving his consent.

  • You can withdraw plea of guilty until sentencing if you have a good reason for doing so (Drew).

• If D seeks indication of sentence, it will be binding for a reasonable time to allow D to consider his options (Goodyear).

  • Padfield is worried that we are going too far in Innospec direction, where opposing counsel are coming to deals about sentence before trial.

• Those who cannot plead:

  • If you remain silent, a plea of not guilty entered (CLA 1967, s.6(1)(c)).

  • Unfitness to plead requires evidence of two or more registered medical practitioners.

• If there is disagreement surrounding factual issues, trial judge can hold a Newton hearing, where he can call witnesses and hear evidence before sentencing.

  • If hearing goes against D, the discount he receives from guilty plea can be reduced (Underwood).

Submission of no case to answer

• After prosecution evidence has been adduced, defence counsel may submit that there is no case to answer.

• There is no case to answer if the prosecution have failed to adduce evidence on which a jury, properly directed, could properly convict (Galbraith).

  • But Galbraith test assumes that all evidence is correct.

• It is sufficient that a jury, not all juries would find a case to answer (Goddard).

• If evidence is self-contradictory and out of all reason and common sense, should be withdrawn (Shippey – ‘plums and duff’).

• In a charge of murder or manslaughter and an offence under Domestic Violence, Crime and Victims Act 2004, s.5, whether there is a case to answer must not be considered before the close of all the evidence.

The Jury

• Juries selected at random from the electoral roll.

• Criminal Justice Act 2003 removed many of the class restrictions to juries.

• ECtHR did not want police officers on the jury (Hanif and Khan – officer was personally acquainted with officer giving evidence).

  • Retreat from this position in Armstrong v UK – counsel given adequate chance to question involvement of officers; held to be OK.

  • But only excluded in UK if they make conviction unsafe (Abdroikov).

• But prosecution has a right to stand a juror by, but this power has been vastly reduced by A-G’s guidelines.

• Both prosecution and defence can challenge jurors for cause.

  • Burden on challenging party to satisfy on balance of probabilities that objection is well founded.

• Trial judge has power to stand a juror by.

  • Cannot intervene for racial imbalances (Ford).

    • Thomas argues that it does not make much difference in reality, but has large effect on appearance of equality.

  • But in Remli v France a racist juror held to breach Article 6(1).

    • Once an allegation of bias is made, it must be investigated unless it is ‘manifestly devoid of merit’.

  • Exceptional circumstances in Kray where only those who had not read any related media to the case allowed to sit on jury.

• Jury vetting allowed...

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