Preliminary to trial at CC.docx

*[Subject 4 -- Preliminaries to trial in the crown court -- ]* *[D12.13 -- What are the consequences of unfitness to plead? ]* Whether or not an accused is fit to plead is determined in accordance with tests laid down by common law. D12.16 -- The court must consider whether the accused is capable...

*[Subject 4 -- Preliminaries to trial in the crown court -- ]* *[D12.13 -- What are the consequences of unfitness to plead? ]* Whether or not an accused is fit to plead is determined in accordance with tests laid down by common law. D12.16 -- The court must consider whether the accused is capable of understanding the proceedings so as to be able to -- - put forward a defence; - challenge any juror to whom the accused has cause to object; - give proper instructions to legal representatives; and - follow the evidence. The burden of proof is on them to establish on a balance of probabilities that the accused is unfit. If raised by the prosecution, they bear the burden of proof beyond reasonable doubt. - The prosecution might wish to assert that the accused is unfit to plead either because of the general principle that prosecuting counsel should act as a 'minister of justice' assisting the court, or because in certain circumstances (e.g., where the offence charged requires proof of a specific or ulterior intent on the part of the accused) it may in practice be difficult to establish guilt if, at the time of trial, the accused is manifestly suffering from mental illness. A diagram of a hearing Description automatically generated *[D12.53 What is the procedure of arraignment? ]* - The arraignment consists of the clerk of the court reading the indictment to the accused and asking whether the accused pleads guilty or not guilty to the counts contained therein. - If several counts plea must be taken of each one separately immediately after it is read out. - Two counts are in the alternative and the accused pleads guilty to the first count, it is unnecessary to take a plea on the second. - A joint indictment against several accused, normal practice is to arraign them together. Separate pleas must be taken from each of those named in any joint count. - The court is required, before arraignment, to confirm with the prosecution that the indictment represents the charges on which it wishes to proceed against the accused. - Can be done via live link. (custody or not in custody) - It is now standard practice to exclude the jurors in waiting from court until after the arraignment has been completed. This avoids the possibility of potential jurors being prejudiced by hearing the accused plead guilty to some but not all the counts on the indictment. - They are told by the clerk the counts to which the accused has pleaded not guilty, no mention being made of any matters to which the accused has pleaded guilty nor of any co-accused who may have pleaded guilty. *[D12.58 What pleas can be entered on arraignment? ]* - The plea entered by the accused will be simply one of guilty or not guilty. It is sometimes open to the accused to plead not guilty as charged but guilty of an alternative (lesser) offence. - The only alternatives to such a plea arise in the circumstances addressed above where it is submitted that it would not be appropriate for the accused to be arraigned at all. This might apply in the case of a plea of autrefois acquit or autrefois convict (see D12.20), where there is some other obstacle (such as unfitness: see D12.2), or where there is a plea to the jurisdiction (see D12.51). *[D12.69 -- Entry of plea of not guilty? ]* - Normal practice is for the accused to enter a plea of not guilty personally when arraigned by the clerk in the absence of any potential jurors. - Does not have to formally say the word not guilty. - If an accused wilfully stays silent when arraigned, or fails to give a direct answer to the charge, or enters a plea which purports to be one of guilty but is in fact ambiguous, the court may and should enter a plea of not guilty on the accused's behalf. *[D12.70-D12.73 What happens when you enter the plea of not guilty? ]* - Puts the prosecution to proof of their entire case. - to satisfy the jury beyond reasonable doubt that the accused committed the actus reus of the offence (or aided, abetted, counselled or procured its commission), and that in doing so the accused had the necessary mens rea. - Should the prosecution fail to adduce sufficient evidence as to any element of the offence, the accused is entitled to be acquitted on the judge's direction following a submission of no case to answer made at the close of the prosecution case. - The defence statement should have indicated in advance of trial those parts of the prosecution case which are disputed. - Nevertheless defence counsel is still entitled to take advantage of any deficiency in the prosecution evidence (e.g., a witness not coming up to proof) and submit that there is no case to answer, whether or not the element of the offence of which evidence is lacking would otherwise have been contested. - Only method by which the prosecution may be released from their obligation to prove each essential element of the offence is if the defence have made formal admissions under s. 10 of the CJA 1967, or where a fact is presumed (see F3.60 et seq.) or judicially noticed. *[Is there a requirement to plead personally? ]* A plea of guilty must be entered by the accused personally. If counsel purports to plead guilty on behalf of an accused, the purported plea has no validity and the proceedings constitute a mistrial. (or if he tries to set out the basis of pleading guilty). On appeal, the Court of Appeal will be obliged either to quash the conviction or to grant a writ of venire de novo (i.e. set the conviction aside but order that the accused be retried). Absence of accused whether he wants to stay silent or plead not guilty can be done without him personally doing so. *[What is the effect of a guilty plea? ]* Once a plea of guilty has been entered, the court may forthwith commence the procedure leading up to the passing of sentence. It may, on the other hand, take the plea and then adjourn. (discretion of the court). (obtain reports on the accused or to await the outcome of other proceedings outstanding with a view to the accused being sentenced on one occasion for all matters). *[D12.75 -- What are the effect of a mixed plea? ]* - If an accused enters mixed pleas on a multi-count indictment and the prosecution are not prepared to accept those pleas, sentencing for the counts to which the accused has pleaded guilty should be postponed until after the accused has been tried on the not guilty counts. - (different from the situation of an accused who pleads guilty to a lesser offence); (different from where an accused pleads on a factual basis that is not agreed). *[D12.78 -- What happens when you plead guilty to a lesser offence? ]* - Where the indictment contains a count on which, if the accused were to plead not guilty, the jury could find the accused not guilty as charged but guilty of an alternative (hereafter referred to as 'lesser') offence, the accused may enter a plea to the same effect, namely not guilty to the offence charged but guilty only of the lesser offence. 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. It must always be in the discretion of the judge whether he will allow \[a plea of guilty to a lesser offence\] to be accepted'. - The prosecution are only bound to act in accordance with the judge's view if they have sought it. - 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. - Adjourn proceedings for further review of the prosecution's decision if satisfied that the proposed course may lead to serious injustice. Moreover, in the analogous situation of the accused pleading 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 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. *[D12.92 -- D12.94 -- Can there be a change of plea? ]* - The judge may allow the accused to change plea from not guilty to guilty at any stage prior to the jury returning their verdict. - The procedure is that the defence ask for the indictment to be put again and the accused then pleads guilty. If the change of plea comes after the accused has been put in the charge of a jury, the jury should be directed to return a formal verdict of guilty. D changed her plea in front of the jury -- - As there was no verdict of the jury here, the trial was a nullity to such an extent that the court could set aside the proceedings and order a retrial or venire de novo \[but, in the circumstances of this case we\] will merely quash the conviction. D changed her plea on the second day of the proceedings -- - The judge discharged the jury without entering any verdict, and proceedings continued as though D had pleaded guilty on arraignment, with an adjournment for reports. D then wished to vacate her plea of guilty and, when this was refused, appealed against conviction. The Court of Appeal held that the course taken was permissible and resulted in a valid conviction. *[Guilty to not guilty? ]* - The judge has a discretion to allow the accused to withdraw a plea of guilty at any stage before sentence is passed. - There cannot be any doubt that the court had such power at any time before, though not after, judgment \[i.e. sentence\] and, as we infer that but for the erroneous opinion that there was no such power the withdrawal would have been allowed, this might of itself be a ground for a venire de novo. - the discretion exists even where the plea of not guilty is unequivocal; and - the discretion must be exercised judicially (see p. 57) *[CrimPR Rule 3.32]* **3.32** 1. In order to take the defendant's plea, the Crown Court must--- 2.  In order to take the defendant's plea, the Crown Court must--- a.  if more than one indictment has been preferred or proposed, or more than one draft indictment has been presented where rule 10.3 applies--- i. identify the indictment or indictments that the prosecutor wants to be read to or placed before the defendant under this rule, and ii. identify any draft indictment, indictment or count in an indictment on which the prosecutor does not want to proceed; 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. satisfy itself that there has been explained to the defendant, in terms the defendant can understand (with help, if necessary), each allegation against him or her; and d. in respect of each count--- iii. read the count aloud to the defendant, or arrange for it to be read aloud or placed before the defendant in writing, iv. ask whether the defendant pleads guilty or not guilty to the offence charged by that count, and v. take the defendant's plea. 3. 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. 4. Where a count is placed before the defendant in writing, the court must summarise its gist aloud. 5. In respect of each count in the indictment--- e. 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); f. 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--- vi. if the prosecutor and the court accept that plea, the court must treat the plea as one of guilty of that other offence, but vii. otherwise, the court must treat the plea as one of not guilty; and g. if the defendant pleads a previous acquittal or conviction of the offence charged by that count--- viii. the defendant must identify that acquittal or conviction in writing, explaining the basis of that plea, and ix. the court must exercise its power to decide whether that plea disposes of that count. 6. In a case in which a magistrates' court sends the defendant for trial, the Crown Court must take the defendant's plea--- h. **[not less than 10 business days after the date on which that sending takes place]**, unless the parties otherwise agree; and i. **[more than 80 business days after that date, unless the court otherwise directs]** (either before or after that period expires). *\[Note. See section 6 of the Criminal Law Act 1967*^128^*, section 77 of the Senior Courts Act 1981*^129^* and section 122 of the Criminal Justice Act 1988*^130^*. Part 10 contains rules about the content and service of indictments: see in particular rule 10.2 (The indictment: general rules).* *Under section 6(2) of the 1967 Act, on an indictment for murder a defendant may instead be convicted of manslaughter or another offence specified by that provision. Under section 6(3) of that Act, on an indictment for an offence other than murder or treason a defendant may instead be convicted of another offence if---* *(b)* *the Crown Court has power to convict and sentence for that other offence.\]* *[D15.39 -- What are pre-trial plea and trial preparation hearings? ]* - 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. *[D15.44 -- What are preliminary hearings generally?]* - Where a deferred prosecution agreement is proposed then, 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'. *[D15.47 -- D15.49 -- What are plea and trial preparation hearings? ]* - Save in cases where a preparatory hearing is required (discussed at D15.51), the major pre-trial Crown Court hearing will be the PTPH. - Normally it should be the only pre-trial hearing. - 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 (para. 3A.17). Otherwise, it is to ensure that all steps necessary for the proper preparation of a case for trial have been taken or are properly timetabled for future attention. 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. Requires the judge at the hearing to be satisfied of the following: b. the defendant understands that credit will be given for a guilty plea; c. what the defendant's plea is or is to be; d. 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. 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. - The prosecution must have served sufficient evidence by the hearing 'to enable to court to case manage effectively without the need for a further case management hearing'. A further case management hearing where it is necessary to set a timetable for obtaining evidence as to the mental health or capacity of an accused. *[What form is used for a PTPH? ]* 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. matters of case preparation that are addressed in the form -- - orders in relation to witnesses, such as special measures (see D14.1) and witness summonses (see D15.92); - orders as to disclosure (see D9 and D15.69, including guidance as to large-scale digital storage issues: - outstanding legal issues, including applications under the bad character and hearsay provisions of the CJA 2003 (see F13, F15 and F17). The Court of Appeal observed that what was said at the PTPH 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. 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. The content of the form was technically admissible, subject to the exercise of the PACE 1984, s. 78, but it was essential that the parties were open in their answers at a hearing such as a PTPH, and that no party ambushed another subsequent to such a pre-trial hearing, and such candour was more likely where the answers given were not liable to be admitted in evidence at a later stage. *[D12.80 -- D12.82 -- Prosecutions options after a not guilty or mixed plea -- ]* - First option is proceeding to contested trial. - There are two other options available to the prosecution on the accused pleading not guilty, namely, to offer no evidence or to ask that the indictment remain on the court file. Similar responses are possible where an arraignment results in mixed pleas, with either only some of the accused pleading guilty, or with one accused entering guilty pleas to only some of the charges. *[What\'s the option of providing no evidence? ]* - 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. (prosecution have reviewed the evidence and can\'t prove the case or they have reached an agreement with the defence to plead guilty to some counts and prosecution will not provide evidence). *[What is letting counts lie on file? ]* - As an alternative to offering no evidence, the prosecution may ask the judge to order that an indictment (or counts thereof) shall lie on the file, marked not to be proceeded with without leave of the court or of the Court of Appeal. 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. Leaving the latter on the file avoids the necessity of a trial, but also avoids the accused actually being acquitted on the 'not guilty' counts, which might seem inappropriate if the evidence against the accused is in fact strong. - There is no objection to an entire indictment remaining on the file. - That the defendant can still stand trial is indicated by the limits on the discretion of the court to prevent the Crown proceeding with a prosecution if it wishes to do so. *[D10.23 -- What is an application for dismissal? ]* The accused may (after the date when the accused is served with the documents containing the evidence on which the charge(s) are based, but before the date of the arraignment) apply orally or in writing to the Crown Court for the charge(s) to be dismissed. - Where such an application is made, the judge must dismiss any charge (and quash any count relating to it in the indictment) if it appears that the evidence against the applicant would not be sufficient to ensure a proper conviction (para. 2(2)). *[D10.24 --]* The accused may make an oral application for dismissal only after giving written notice of intention to do so. *[D10.27 -- What is the test on dismissal applications? ]* - On an application to dismiss (under earlier legislation), the judge was required to take into account the whole of the evidence against the accused, and that it was not appropriate for the judge to view any evidence in isolation from its context and other evidence. - The judge is not bound to assume that a jury would make every possible inference capable of being drawn against the accused but, where the case depends on the inferences or conclusions to be drawn from the evidence, the judge must assess the inferences or conclusions that the prosecution propose to ask the jury to draw, and decide whether it appears that the jury could properly draw those inferences and come to those conclusions.