Thursday 25 January 2007

Continuing from lat week on joinder of counts.

The meaning of “A SERIES OF OFFENCES” of the same or a similar character was considered by the House of Lords in Ludlow v The Metropolitan Police Commissioner [1970], which gave the following guidelines:

(a) two offences are sufficient to amount to a series; and
(b) for offences to be of “the same or similar character”, there must be a nexus (connection) between them, consisting of similarity both in law and the facts constituted by the alleged offences (on the facts of Ludlow, the nexus test was satisfied by both the offences falling under the same statute, their proximity in both geography and time and the defendant being under the influence of drink at the time of their commission).

In R v Harward [1981] the Court of Appeal said that if the sole common element was dishonesty then it would not justify an offence being of a similar character.

In Ludlow the offences were twelve days apart. The Court of Appeal has displayed a flexibility of approach which demonstrates clearly that each case must be viewed on its own merits.

R v Williams (Royston) [1993] concerned an indecent assault on 8th June 1991 followed by false imprisonment of the same victim on 13th June 1991. Since there were two separate incidents and the alleged offences were not of a similar character, there was not sufficient nexus for joinder.

Compare

R v Chaplin [1993] the Court of Appeal approved an indictment where a father was charged with rape in 1978 and attempted rape in 1989. That the victim was the same (the defendant’s daughter) on each occasion allowed sufficient nexus.

A single count in the indictment may charge two or more defendants with the commission of one offence. Likewise separate counts on the same indictment may charge different defendants with different offences and a joint trial of all the defendants so charged will occur. It is thus possible to charge 12 or more defendants with counts of riot, violent disorder, criminal damage and burglary; much depends on the circumstances of the particular case.

The classic exposition of joinder of the defendants is to be found in the case of DPP v Merriman [1972] in which Lord Diplock said:

“Where a number of items of similar nature committed by one or more Defendants were connected with one another, in time and place of their commission, or by their common purpose in such a way that they would fairly be regarded as forming part of the same transaction or criminal enterprise, it is the practice to charge them all in a single count of an indictment.”

The disadvantage of defendants jointly charged in a single count lies in the fact that although evidence produced by the prosecution may be admissible against only one defendant, it may be prejudicial to the other defendant. Although the jury will be warned by the judge to disregard such evidence in considering the case against those defendants against whom it is inadmissible, it is inevitable that the jury, having heard it, will be influenced by it. This factor may influence the judge in dealing with the application for separate trials.

The rules concerning joinder of both counts and the defendants are not certain or absolute in practice. Much, as indicated above, is left to the trial judge’s discretion and the Court of Appeal has shown itself reluctant to interfere with a trial judge’s exercise of his discretion, save where it is obvious that it is manifestly wrong to refuse to sever indictments. The Court of Appeal has given numerous warnings to the Crown about overloading and thus over complicating indictments with defendants and/or counts. It is not inconceivable that a brazen defiance of these warnings could produce a successful ground of appeal.

There are two further ways in which the trial of a summary offence may become part of an indictment.

s40 CRIMINAL JUSTICE ACT 1988 provides that a court charging a person with a summary offence to which this section applies may be included in an indictment if the charge:

(a) is founded on the same facts or evidence as a court charging an indictable offence; or
(b) is part of a series of offences of the same or similar character as an indictable offence which is also charged,

but only if (in either case) the facts or evidence relating to the offence were disclosed in an examination or deposition taken before a justice in the presence of the accused.

The effect is to enable the prosecution to include a summary only offence provided s40 is complied with. Common offences include TWOC, common assault, driving whilst disqualified, driving without insurance, and criminal damage. The sentencing power is that available to the magistrates’ court.

s41 CRIMINAL JUSTICE ACT 1988 provides that if:

(a) the court is committing an accused for trial of one or more either-way offences; and
(b) he is also charged with a summary offence punishable with imprisonment and/or disqualification of driving; and
(c) the summary offence arises out of circumstances the same or connected with the circumstances of one of the either-way offences,

then that summary offence may be committed for trial.

However, this section applies only to situations where the defendant is convicted of the either-way offence and admits the summary offence. If he denies it, it is referred back to the magistrates. Any summary offence can be committed for trial in this way.

Immediately after the pleas to the indictment have been made, application may be made that the count or counts in the indictment be tried separately and these applications will be dealt with in the manner referred to above.

Amendments may be mere technicalities (e.g. correction of misspellings), or fundamental (e.g. inserting a vital element of the offence omitted by the draftsman), or even inserting new counts in the indictment. It is to be noted that any amendment can be made subject only to the proviso against the causing of injustice. The more fundamental an amendment and the later the stage in the proceedings at which the application to amend is made, the more likely it is that the judge would apply the “INJUSTICE PROVISO”.

Theere are six grounds available, only one of which is of interest: where the count is for an offence in respect of which the examining magistrates did not commit for trial, the depositions or statements under s102 MAGISTRATES’ COURTS ACT 1980 from the committal proceedings reveal no case to answer in respect of that count.

Motions to quash indictments are rare indeed.

Following the drafting and preferral of the indictment, the next procedural step is securing the attendance of the accused to plead to the indictment. The accused’s attendance is secured in the following ways:

(1) If the accused has been committed in custody, the Crown Court issues an order to the appropriate prison governor.
(2) If the accused is already serving a prison sentence, the Crown Court issues an order to the appropriate Secretary of State. This is known as a Home Office Production Order (HOPO).
(3) If the accused has been released on bail the Crown Court normally will inform his legal advisers, often with very little warning of the date of trial. If a defendant fails to attend court, then the judge can issue a bench warrant under s6 BAIL ACT 1976, directing the accused’s arrest. The legal advisers will be at risk on costs. Such a warrant can either be an immediate warrant or a warrant backed for bail. In the latter case if, on the face of it, there is some reasonable excuse for the accused’s non-attendance, then it is common to issue a warrant, but to back it for bail. It should be noted that where people fail to attend court, judges view the matter seriously’ and are unlikely (unless there are good reasons) to grant bail thereafter.

Trial at the Crown Court commences with the arraignment of the accused, whereby he is called upon to plead guilty or not guilty to the various counts of the indictment after they have been put to him. The usual procedure since the introduction of the CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996 is that the accused is arraigned at the plea and directions hearing.

It is important that a plea is taken on each count on the indictment (unless a count is in the alternative to another count to which the accused has pleaded guilty) and for this reason the accused is given the opportunity to plead after each count has been read out.

s77 SUPREME COURT ACT 1981 and the CCR 1982 r24 provide that arraignment shall take place not less than two and not more than eight weeks from the date of committal. However, these provisions are directory only and, in any case, a judge can allow trial to commence outside the eight week period. Judicial discretion to extend is the norm.

The accused is called into the court, the indictment is read to him and he is then asked whether he pleads guilty or not guilty to the various counts on the indictment.

It is important that a plea is taken on each count on the indictment unless a count is in the alternative to another count to which the accused has pleaded guilty, where the prosecution would generally indicate that they did not wish the matter to be put. It is generally the practice that after the counts on the indictment are read the accused is given the opportunity to plead. Where an accused faces a number of counts it is possible that the prosecution, having seen what pleas of guilty are entered, will decide that the public interest does not merit the expense of a trial and accordingly it is open to the prosecution to “leave the matter” on the file. This is not a formal acquittal but in essence means that the matter will not be proceeded with by the prosecution unless the leave of the Court of Appeal is obtained.

If a defendant pleads guilty, for example, to five counts on a nine count indictment which is thought by the prosecution to be acceptable, but later the accused seeks to appeal against the five convictions on the basis that his pleas were not made of his own free will, then should the Court of Appeal allow the appeal it would be open to the prosecution to seek the court’s leave to re-open the earlier matters left on the file. This, however, is not a common occurrence.

A guilty plea must be voluntary in the sense that it must be the product of the accused’s own free will and not the result of any external pressure. Such pressure, which will result in quashing of a conviction, may come either from the judge or from counsel - R v Turner [1970].

In R v Barnes [1970] the trial judge expressed the view in the absence of the jury that the defendant was clearly guilty of the offence. The Court of Appeal viewed the extreme pressure put on the defendant to change his plea (which he had done) as unacceptable, and for this and other reasons the Court of Appeal quashed the conviction. It is more common to find that defendants plead guilty to matters after receiving strong advice from counsel, many of whom they have not met until the day of court. If a defendant reluctantly pleads guilty, after conviction the plea will be vacated only if the Court of Appeal is satisfied that the defendant, because of the pressure put upon him, did not make a voluntary and deliberate choice.

A guilty plea must be clearly unambiguous. If an ambiguous plea (e.g. “guilty but I did not intend it”) is made, it is normal practice for the judge to attempt to find out what the accused really means (in the example, is he alleging lack of mens rea or putting forward a mitigating circumstance?). If the plea remains ambiguous, a plea of not guilty will be entered on the accused’s behalf

An accused may at any stage of the trial change a “not guilty” plea to a plea of guilty. This is done by putting the indictment to the accused again and hi s pleading to it. As a jury will by now have been empanelled, it is required to return a verdict of guilty. This verdict of guilty is on the direction of the judge.

A plea of guilty may be changed to one of not guilty, but this requires a judge’s consent. This is likely to be given in the case of genuine misapprehension (e.g. through lack of legal advice) but not to those who could not have been in any doubt at the time of the original guilty plea. It is rare indeed.

Where a defendant is arraigned on an indictment for one offence, he can lawfully be convicted of some other offence not charged in the indictment. There are four factors which must apply for a person to be found guilty of an offence not included in an indictment and they are that the allegations in the indictment:

1. expressly amount to; or
2. expressly include; or
3. impliedly amount to; or
4. impliedly include, an allegation of another offence.

The kind of situation envisaged by the CRIMINAL LAW ACT 1967 applies to persons who are charged with offences such as inflicting grievous bodily harm with intent contrary to s18 OFFENCES AGAINST THE PERSON ACT 1861. If the Crown does not include a count in the indictment contrary to s20 OFFENCES AGAINST THE PERSON ACT (which is unlawful wounding or causing grievous bodily harm maliciously) then it is open to the jury to acquit of a s18 charge but to convict of s20. An accused may also be found not guilty as charged but guilty of assault occasioning actual bodily harm contrary to s47. The CRIMINAL LAW ACT 1967 also enables an accused charged with murder to plead not guilty to murder but guilty of manslaughter. The most common form of plea entered in this way is where somebody is proposing to run the defence of “diminished responsibility”. An accused, after facing such a charge will, after advice from his legal representatives, say in answer to the indictment, when put, “not guilty of murder but guilty of manslaughter”.

If a plea of guilty of a lesser offence is accepted, there is no need to empanel a jury and the court proceeds to the issue of sentence.

The better practice is for those defending to advise the Crown Prosecution Service in advance of the pleas a defendant proposes to enter, whether or not they appear on the face of the indictment. It is for the Crown to decide whether or not, in all the circumstances of the case, it is appropriate to accept the plea. In practice the Crown Prosecution Service often consider alternative pleas in drafting the indictment and thus the proper course of action is to advise the Crown of what matters are not in issue prior to the case being listed for trial.

Where a plea of guilty is entered to a lesser offence, it is the prosecutors responsibility to decide whether or not such a plea is acceptable. It is then a matter for the judge to consider approval of a plea to a lesser charge. If the plea is acceptable, then the prosecution opens the case and the judge then turns to sentence.

It is not unusual for counsel to discuss with the judge on an informal basis the issue of a plea of guilty to a lesser offence. This practice is allowable provided that the accused is made aware of what has been said.

R v Turner [1970] decided that a judge must never indicate the likely sentence (as this contains an implied threat of a more severe sentence in the event of a failure to plead guilty) unless he is able to say that whether or not an accused pleads guilty, not guilty, or guilty of a lesser offence, the sentence will (or will not) take a particular form. A shorthand writer should always be present when counsel see the judge privately for these or any other discussions.

If a plea of guilty to a lesser offence is not accepted, it is impliedly withdrawn. Thus it is open to a jury to acquit the accused of both the more serious offence and of the lesser offence. In R v Hazeltine [1967] a defendant indicated, when arraigned, a not guilty plea to a charge of grievous bodily harm with intent, contrary to s18 OFFENCES AGAINST THE PERSON ACT. He pleaded not guilty to that charge but indicated a plea of guilty to unlawful wounding - the lesser offence, namely one contrary to s20 OFFENCES AGAINST THE PERSON ACT. That plea was unacceptable to the prosecutor and the judge. The jury returned a not guilty verdict and the judge then purported to sentence the defendant on the basis of his plea of guilty to the lesser offence. The Court of Appeal said that the conviction must be quashed because once the plea of guilty to a lesser offence was not accepted that plea became a nullity and was withdrawn. To resolve this problem the prosecution should have sought the court’s leave to add an alternative count contrary to s20 and then simply have a trial on the issue of intent, which is the distinguishing feature between offences under ss 18 and 20 OFFENCES AGAINST THE PERSON ACT 1861.

If an accused person fails to make any response to the charges put to him the court has to decide whether his muteness is:

1. muteness of malice; or
2. muteness by visitation of God.

A jury is empanelled to decide this issue. If the accused is found mute of malice the trial proceeds as if he had pleaded not guilty – s6(1) CRIMINAL LAW ACT 1967. The same jury may then hear the case against the accused provided that trial proceeds within 24 hours of their initial empanelment.

If a jury finds an accused mute by visitation of God, they must also specify’ the cause. If the accused is found deaf and/or dumb, the usual practice is to adjourn the case with a view to finding an interpreter. If those representing the accused were aware of his condition an interpreter should have been available in advance.

If the cause of the muteness is found to lie in the accused’s mental condition, the jury may he asked to consider his fitness to plead.

The court in dealing with the issue of fitness to plead will decide whether the defendant is of sufficient intellect to understand the course of proceedings of his trial so as to be able properly to instruct those defending him and also to understand the nature and details of the evidence that is to be adduced. The question also arises as to whether the defendant is able to give evidence himself if required. In R v Robertson [1968] the court said that the issues of whether somebody was fit to plead went beyond whether a defendant was simply not capable of acting in his best interests.

The issue of unfitness to plead may be raised by either the prosecution or the defence. If it is the defence who contends that a defendant is unfit to plead the onus falls to the defence to prove unfitness, but only on the balance of probabilities. If, however, the prosecution raises the issue of unfitness to plead and the defence takes issue with it then the burden of proof rests with the prosecution and the standard is that of beyond a reasonable doubt.

The CRIMINAL PROCEDURE (INSANITY) ACT 1964 is subject to amendment by the CRIMINAL PROCEDURE (INSANITY AND UNFITNESS TO PLEAD) ACT 1991. Although the 1991 Act does not alter the common law definition of “insanity”, it does stipulate that the method of proving unfitness to plead shall be akin to that of “mental disorder” under the MENTAL HEALTH ACT 1983. In future there cannot be a finding of unfitness to plead without the supporting evidence of two doctors, at least one of whom must have expertise in the diagnosis and treatment of mental disorder: CRIMINAL PROCEDURE (INSANITY AND UNFITNESS TO PLEAD) ACT 1991 s1(2) and CRIMINAL PROCEDURE (INSANITY) ACT 1964, ss 4(6) and 8(2) as amended

The issue of unfitness to plead is decided by a judge alone, and if he so finds that court must then conduct a “TRIAL OF THE FACTS” restricted to deciding whether he committed the actus reus of the offence(s) with which he is charged: “did the defendant commit the act or made the omission charged against him as an offence?”.

The requirement that an accused found unfit to plead be admitted to hospital has been removed: 1964 Act s5 (as amended) and 1991 Act s5. The accused found unfit to plead but not proved on “trial of the facts” to have committed the act will in effect be acquitted. In all other cases the court now has four options:

(1) commit to hospital with or without restriction order;
(2) discharge the accused absolutely;
(3) make a guardianship order under the Mental Health Act;
(4) make a supervision and treatment order.

The 1991 Act does not affect the position in the Magistrates’ Court. A Magistrates’ Court cannot try an issue of fitness to plead, nor can that court commit the accused person to the Crown Court for the issue to be tried. If the offence charged is one triable either way, then the Magistrates’ Court may commit for trial, and if the accused is still apparently unfit when he is arraigned, the Crown Court can then try the issue of fitness - but apparent unfitness to plead to the charge is not included in THE MAGISTRATES’ COURTS ACT 1980 as a reason for the magistrates deciding that the offence is not suitable for summary trial when they sit in a mode of trial hearing in respect of such an offence.

Finally, the four methods of disposal given to the courts do not extend to cases where the offence charged is murder, as the 1991 Act expressly excludes from its provisions in this context offences for which the sentence is mandatory. Also, those accused of murder and unfit to plead will not tend to put their fitness to plead in issue if their defence is founded on absence of mens rea or their mental condition at the time of the offence, as these cannot be enquired into on a “trial of the facts”.

Autrefois acquit and autrefois convict

There are four special pleas in bar to an indictment, only two of which have any practical significance:

(1) Autrefois acquit
(2) Autrefois convict

The fundamental principle behind these pleas in bar is that in English law no one can be prosecuted twice to the point of verdict in respect of the same offence. This rule is reflected in the pleas in bar in that autrefois acquit deals with a previous acquittal for the same charge and autrefois convict deals with a previous conviction for the same charge. This can be illustrated by the case of R v Moxon-Tritsch [1988]. The defendant had driven a motor vehicle, and during the course of her driving lost control of the vehicle, whereupon the car overturned and the child passenger was killed. The defendant at the Magistrates’ Court pleaded guilty to two summary offences, namely driving without due care and attention and driving with excess alcohol. She was sentenced on both charges. On a private prosecution the judge agreed with a plea in bar thus stopping the prosecution for a more serious offence of causing death by reckless driving.

A plea of autrefois acquit or autrefois convict must be in writing and signed by defence counsel. The prosecution can dispute the basis of the plea in bar by making a written replication signed by the appropriate officer of the Crown Court. An unrepresented accused makes this plea orally.

Once a plea of autrefois acquit or autrefois convict has been made (which occurs before a defendant is arraigned, that is to say, has to plead guilty or not guilty to an indictment) it is for the judge, in the absence of the jury, to decide the issue (s122 CJA 1988).

If the plea in bar succeeds, then any trial on the part of the indictment that is challenged cannot proceed. If the plea in bar fails, the indictment is then put to the accused who has the option of pleading guilty or not guilty to the relevant indictment. The case law in relation to pleas in bar is rather complicated but the underlying principles remain those which are to be found in Connelly v DPP:

1. An accused may be convicted at a later trial of an offence in respect of which he was not in jeopardy of conviction at an earlier trial, and the quashing of a conviction by the Court of Appeal on the grounds of misdirection of a jury is not an acquittal as such.
2. Likewise, where a jury fail to agree or the Court of Appeal orders a re-trial, a plea of autrefois acquit or autrefois convict will fail.
3. Where an accused is acquitted of an offence, he cannot subsequently be tried for a more serious offence which contains all the ingredients of the lesser offence (e.g. if an accused is acquitted of assault occasioning actual bodily harm he cannot later be tried on a charge of grievous bodily harm arising out of the same facts).
4. However, where an accused is convicted of the lesser offence, this does not bar a trial for a more serious offence arising out of the same facts. If an accused is convicted of assault occasioning actual bodily harm and convicted and the victim then dies, this would not bar a subsequent prosecution for murder.

Section 75 Criminal Justice Act 2003 reformed the law on autrefois acquit. There are 28 qualifying offences, all serious in nature, to which the rule applies.

The DPP must make application to the Court of Appeal in the first instance. If this is granted the Court of Appeal have then to be asked t quash the acquittal and order a re-trial. The court must be satisfied that there is real evidence likely to lead to a conviction, and that a second trial is in the public interest.

There has been one success, the details can be found here:

http://news.bbc.co.uk/2/hi/uk_news/england/5144722.stm

Thursday 18 January 2007

We continued with our discussion on committal proceedings.

In order to filter out prosecutions with little prospect of success, nearly all trials on indictment are preceded by a preliminary hearing in the Magistrates’ Court, otherwise known as committal proceedings. The Crown Prosecution Service must ensure that there is a more than reasonable chance of success and, should a case be inherently weak, should withdraw the case at an early stage. Notwithstanding the review that takes place by the lawyers within the Crown Prosecution Service, some cases require that the prosecution demonstrates that there is a reasonable or prima facie case which it would be proper for the accused to answer at the Crown Court. Magistrates in committal proceedings are often referred to as Examining Justices.

The onus is on the prosecution to show that there is a prima facie case and the Court of Appeal has given guidance as to how a court should approach the submission of “no case to answer”. In R v Galbraith [1981] the court said that if there was no evidence that the accused committed the crime alleged by the prosecution the court should stop the case forthwith and agree with a defence submission of “no case to answer”. These cases are relatively rare but sometimes occur when witnesses fail to attend court. A prosecutor faced with that situation should normally seek either to adjourn the case to compel the witness’s attendance or, alternatively, should withdraw the case. Notwithstanding the above observation, it does from time to time happen that the Crown produces little or no evidence to implicate the accused.

Committal proceedings may take place before a single magistrate but it is normal practice for two magistrates to sit. Jurisdiction to hold a preliminary hearing is governed by the MAGISTRATES’ COURTS ACT 1980 s2(3) which merely requires that an accused is brought before the court charged with an indictable offence. It is normal practice to bring the accused before the Magistrates’ Court for the area where the alleged offence was committed.

s41(1) CRIMINAL JUSTICE ACT 1988 gives the magistrates power to commit a summary offence for trial when they sit as examining justices in committal proceedings, but they can only commit for trial a summary offence with an offence triable either way.

COMMITTAL PROCEEDINGS WITH CONSIDERATION OF THE EVIDENCE. From 1st April 1997, THE CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996 made substantial changes to committals with consideration of the evidence conducted under s6(1) MAGISTRATES’ COURTS ACT 1980. Compared to the former “full” committal hearings, the new procedures seek to streamline and expedite the proceedings. In deciding whether to commit the accused for trial at the Crown Court, the magistrates now consider prosecution statements, depositions and documentary exhibits only. Prosecution evidence is read to the court by the prosecutor or read by the magistrates’ themselves. The defence is given no opportunity to cross-examine prosecution witnesses or to challenge the admissibility of prosecution evidence. Sections 76 and 78 POLICE AND CRIMINAL EVIDENCE 1984 have been disapplied to prevent any argument being advanced about the admissibility of the defendant’s alleged confession. Similar provisions apply in relation to the defence objecting to hearsay documents forming part of the prosecution case under ss 23 and s24 CRIMINAL JUSTICE ACT 1988. It remains open to the defence to make a submission of no case to answer where the prosecution have failed to prove that there is not a case to answer at the Crown Court.

In the “new style” committal with consideration of the evidence under s6(1) MCA the procedural stages are as follows:

1. The charge is read to the defendant and provided he does not indicate that he intends to plead guilty, a plea is not formally entered.


2. The prosecution opens its case by outlining the facts, the charge(s) upon which the accused should be committed for trial and the nature of the evidence against the accused. It will be unnecessary for all the prosecution evidence to be heard at this stage because all that needs to be proven is that there is a case to be answered at the Crown Court.


3. Prosecution evidence will then be presented to the court in one of the following forms as prescribed by s5A MCA: a written statement signed by the person who made it and containing a declaration that the statement is true to the best of that person’s knowledge or belief; or a deposition that is, a statement taken on oath before a magistrates’ clerk; or statements which the prosecutor submits which are admissible under ss 23 or s24 CRIMINAL JUSTICE ACT 1988; or any other document which is admissible in evidence in the proceedings before the Magistrates’ Court enquiring into the offence as examining justices.


4. No defence evidence will be called as it is on the basis of prosecution evidence alone that the magistrates will make their decision whether to commit for trial. It is possible however for the defence to make a submission of no case to answer where the prosecution have failed to satisfy the very low threshold of having the case committed to the Crown Court for trial.

A committal with consideration of the evidence is likely to be appropriate where the prosecution case appears to be so weak even “on paper”, that the defence consider there is in reality no prima facie case against the accused and will ask the magistrates to dismiss the charge. Otherwise there is no point in asking for such a proceedings, and so it is very much the exception rather than the rule.

Note: The examining magistrates may continue committal proceedings (and eventually commit for trial) on the basis that there is, from the prosecution evidence, a prima facie case of any indictable offence, not necessarily on the basis of the original charge or charges (e.g. original charge may be one of burglary and the examining justices continue proceedings on the basis that there is a prima facie case of theft).

As well as their power to refuse to commit when they are satisfied that there is no case to answer, the magistrates also have power to refuse to commit on the grounds of abuse of process. In R v Telford Justices ex parte Badham [1991] the Divisional Court agreed that examining justices have such a power; B appeared before the examining justices in May 1989 for committal proceedings in respect of a charge of having committed rape between February 1973 and February 1974. Although the delay was not due to any fact or omission by the prosecution, preparation of a defence was impossible, and the Justices should have heard the argument (and should hear any such argument) immediately before the proposed opening of the committal proceedings. However, it was stressed in R v Newman Justices ex parte C [1993] that, in cases of delay, comparing one case with another is inappropriate; in that case it was possible for a fair trial to happen some ten years after alleged sexual abuse.

COMMITTALS WITHOUT CONSIDERATION OF THE EVIDENCE. Under s6(2) MAGISTRATES’ COURTS ACT 1980 and unchanged by the CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996. A committal under s6(2) effectively implies that the accused agrees to be committed to the Crown Court for trial and will be appropriate where:

1. the accused intends to plead guilty; or


2. where, although he intends to plead not guilty, he accepts that there is a prima facie case against him.

s6(2) permits committal without consideration of the evidence if:

1. all the evidence tendered consists of written statements made in compliance with s5A of the 1980 Act; and


2. the accused (or where there is more than one accused, all of them) is legally represented; and


3. there is no submission of “no case to answer” to be made by the accused.

Short form committals clearly save time and costs. However, when representing an accused person, the defence should bear in mind that there is no opportunity of making a submission of no case to answer. That said, this is the usual form of committal.

s8 MAGISTRATES’ COURTS ACT 1980 restricts the reporting of committal proceedings and any prior remand hearings to an outline of the case (personal details of the parties, names of the examining justices, solicitors and counsel involved, the relevant charges and any bail or legal aid orders made). A full report may be made only if the accused is discharged, after trial at the Crown Court is complete, or if reporting restrictions are lifted.

Reporting restrictions are lifted:

1. if there is a single accused and he applies for reporting restrictions to be lifted (e.g. because he hopes witnesses will come forward); or


2. if there are two or more accused and all of them apply for reporting restrictions to be lifted; or


3. if one accused wants reporting restrictions lifted and another does not, then the examining magistrates will agree to an application for the lifting of reporting restrictions only if the applicant can show it to be in the interest of justice so to do, (s8 as amended by the CRIMINAL JUSTICE (AMENDMENT) ACT 1981);


4. in relation to cases of rape and attempted rape there are rules which require the anonymity of the victim. s158 CRIMINAL JUSTICE ACT 1988 provides that the accused’s name may be published.

Note: s4 CONTEMPT OF COURT ACT 1981 empowers a court to order the postponement of the reporting of a case (or any part of it) on the ground of “substantial risk of prejudice to the administration of justice”. Thus examining justices could lift reporting restrictions in the “interest of justice” and then, in effect, re-impose them on the “substantial risk of prejudice” test.

Until the changes to committal proceedings introduced by the CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996, the accepted practice was for the examining justices to make a witness order in respect of each witness whose evidence was received at the committal. The position is now that all evidence tendered at the committal proceedings “may without further proof be read as evidence at the trial of the accused unless a party to the proceedings objects”. Where the defence do not object to evidence being presented in this form, the prosecution have the choice of allowing the witness to give oral evidence or having his statement read to the court. Where the defence object, written notification must be given to the court and the prosecution within 14 days of the committal. The defence objection may be overruled by the trial judge.

Having decided to commit the accused for trial at the Crown Court, the examining magistrates have the power to commit either in custody or on bail.

Committal proceedings may enable an accused person who has been remanded in custody to seek to persuade the court to reconsider the question of bail. It is also important to note that where a defendant has provided a surety, that surety should normally attend the committal proceedings to renew his surety.

Legal representation is also needed. Practices in relation to legal aid vary between Petty Sessional divisions. In some courts the justices’ clerk will grant a “through order” in relation to all indictable only cases. A through order covers legal aid both in the Magistrates’ Court and in the Crown Court and no application is thus required for legal aid when the accused is committed for trial. In other proceedings and more normally where matters are triable either way it is necessary to make an application to the magistrate for legal aid to cover the proceedings before the Crown Court. If the defendant has had any change of means during the course of the proceedings before the Magistrates’ Court, then it will be necessary to furnish the magistrates’ clerk with a fresh statement of means.

VOLUNTARY BILLS OF INDICTMENT. Whether or not unsuccessful committal proceedings have been held, the prosecution may apply to a High Court Judge to direct or consent to the preferment of a voluntary bill of indictment; which has the effect of an order for trial of the accused on indictment. The preferment of voluntary bills of indictment is regulated by Practice Direction (Crime: Voluntary Bills) [1990].

In the practice direction, the court said that the usual means of bringing a defendant to trial on indictment was by means of committal for trial in the Magistrates’ Court. A voluntary bill would be granted only where there was good reason to depart from the normal procedure. This had to be clearly shown and a voluntary bill of indictment would be granted only where the interest of justice rather than the considerations of administrative convenience required it.

In practice such a Bill is used where a number of co-defendants appear before the magistrates and are committed for trial but one of their number has absconded and is arrested only after committal, it will be possible to seek a voluntary bill of indictment to speed matters to the Crown Court.

Trials at the Crown Court can occur without prior committal proceedings as a result of:

1. an order for retrial made by the Court of Appeal;


2. a direction to prosecute for perjury made by a judge under s9 PERJURY ACT 1911;


3. transfer proceedings created by the CRIMINAL JUSTICE ACT 1987 enabling serious and complicated frauds to be taken to the Crown Court without committal proceedings. The object of the CRIMINAL JUSTICE ACT 1987 is to ensure that the Crown Court is seized of the matter as soon as possible so that any complexities may be resolved by pre-trial reviews or pre-trial direction hearings;


4. transfer proceedings under s53 CRIMINAL JUSTICE ACT 1991, whereby for offences of violence or of a sexual nature against children, the DPP may serve a Notice of Transfer on the appropriate Magistrates’ Court, thereby bypassing committal proceedings.

So we have your client before the Crown Court, so what happens next?

A PLEA AND CASE MANAGEMENT HEARING will take place unless it is a serious fraud. This has its own rules and is not considered further. The purpose of the hearing is to ensure that any steps necessary for trial have been taken and that the court is provided with sufficient information to fix a trial date. It is desirable that both the prosecution and defence advocates who will appear at the trial, attend the hearing as well as the defendant. Where the defendant indicates to the court that he intends to plead guilty, the court, the prosecution and the probation service should be notified as soon as possible, and the Judge should proceed to sentencing.

Where the accused intends to plead not guilty, the defence must provide the prosecution with a full list of defence witnesses whom they will require to attend at the trial. Both the prosecution and defence are required to submit to the court and the other party a summary of the issues upon which the court’s direction is sought and any case authorities to be cited by each party. In complex cases, the prosecution may also be required to produce a summary of the relevant facts.

If the defendant pleads not guilty, the parties are required to inform the court of the following matters: the issues in the case; the number of witnesses whose evidence will be placed before the court; any exhibits or schedules; the order in which prosecution witnesses are likely to be called; any point of law or evidential issues that will be put before the court together with the authorities relied upon; alibi evidence which should have been disclosed; the estimated length of the trial; and the dates upon which the witnesses and the advocates are available.

A PREPARATORY HEARING under ss 28-38 CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996 provides that in long and complex Crown Court cases, there should be a preparatory hearing(s) similar to those in serious fraud cases under the CRIMINAL JUSTICE ACT 1987. It is a matter for the judge to decide whether there should be a preparatory hearing on the application of either of the parties or the court by its own motion. In practice, the decision is likely to be made at the Plea & Case Management Hearing.

Where a preparatory hearing is held, it will take place before the jury is sworn and may seek to clarify any difficult or contentious issue which will assist the jury’s comprehension of the issues; identify issues which are likely to be material to the jury’s verdict; and expedite the proceedings or assist the judge’s management of the trial. The preparatory hearing is part of the trial but conducted without the need for the jury to attend.

Both prosecution and the defence may be ordered by the judge to do a number of things. The prosecution can be required to:

• give the court and the accused a written case statement which sets out the principal facts of the prosecution case; the witnesses who will give evidence in respect of those facts; any exhibits relevant to those facts; and any proposition of law that the prosecutor intends to rely on;


• prepare the prosecution evidence and any explanatory material to assist the jury’s comprehension;


• give the court and the accused written notice of the documents which the prosecutor considers ought to be admitted and any other matters which might be agreed between the parties;


• amend the case statement given under (1) above. The defence may be required by the judge:

• to give to the court and the prosecutor a written statement setting out in general terms the nature of the defence and the principal matters in dispute with the prosecution case;


• to give to the court and the prosecutor written notice of any objection that he has to the case statement;


• to give to the court and the prosecutor written notice of any point of law or evidence, which he wishes to take up and any authority upon which he intends to rely.

Where a party fails to comply with a requirement for disclosure under s31 or departs from the case disclosed, the judge (or with leave, the other party) may make appropriate comments, and the jury may draw proper inferences, s34(2).

ss 28-34 CRIMINAL PROCEEDINGS AND INVESTIGATION ACT 1996 (CPIA) provide that a judge may make a binding ruling as to the admissibility of evidence and/or a question of law. Where such a ruling has been made, it may only be varied or discharged where it is in the “interests of justice” to do so, and an application to vary by any party to the case, will not be heard, unless there has been a “material change of circumstances” since the making of the previous order. The Act provides an interlocutory right of appeal to the Court of Appeal. Included in the definition of a “pre-trial hearing” under s39-43 of the Act are an appeal and direction hearing, and at the hearings, a party’s advocate should be prepared to deal with any issue as to the admissibility of evidence and/or a question of law.

There are restrictions on the reporting of pre-trial hearings so that no report can be published or broadcast about them until the conclusion of the trial. This is an important exception to the rules relating to the reporting of committal proceedings and preparatory hearings where it is normally permissible to disclose details of the accused. As an exception to the general rule, a party may apply to the judge at the pre-trial hearing for an order lifting the reporting restrictions. If the accused objects, then the reporting restrictions can only be lifted where it is ‘in the interests of justice” to do so, ss 4l and 42 CPIA.

We then turned to the INDICTMENT, the formal document used in the Crown Court containing a list of the charges against the defendant to which the defendant pleads at the beginning of his trial. The indictment fulfils a similar role in the Crown Court as the Charge Sheet or Summons for cases heard in the Magistrates’ Court. The provisions which govern the drafting of indictments are principally to be found in the INDICTMENT ACT 1915 and the INDICTMENT RULES 1971.

A properly drafted indictment should contain the following:

1. The heading should consist of the word Indictment, followed by the name of the place where the Crown Court is sitting and the name of the case (it is also usual for the indictment to be allocated a reference number which appears at the top right hand of the first page).


2. After the name of the case (The Queen v A B, CD and EF should be written the presentment (A B, C D and E F are charged as follows:).


3. Each offence alleged against the accused is set out in a separate count. A count must allege only one offence. Only one indictment can be tried at any one time.


4. Each count should set out a statement of offence (the name of the offence and, if it is statutory, the appropriate statute and section) and a Particulars of Offence (naming the accused(s) and stating the basic allegations against him or them - a useful checklist is to ask, who, when, where, did what, to whom and obtained what?).


5. Two or more accused persons may be charged in one count where the allegation is that they acted in concert to commit the offence.


6. Two or more accused persons, not alleged to have acted in concert, may be charged in a single indictment (but in separate counts).


7. The indictment must be signed by an appropriate officer of the Crown Court.

Refer to a copy of an actual indictment that I gave to you.

Until signed by an officer of the court the document drafted is known as a Bill of Indictment; once signed it is an indictment.

Preferral of a bill of indictment should take place within 28 days of committal.

R v Newlands [1988] N faced an indictment at the Crown Court containing three counts of drug offences, and three counts of assault occasioning actual bodily harm. The last three counts were unrelated to the drug matters.

Before the defendant was arraigned, prosecuting counsel conceded that the indictment contravened Rule 9 of the 1971 Rules. Rule 9 of the Indictment Rules 1971 states:

“… charges for any offence may be joined in the same indictment if those charges are founded on the same facts, or form part of or are a part of a series of the same or similar character.”

Clearly the assault and drug matters were unrelated and that is why the concession was made by prosecuting counsel. The trial judge ruled that he had power under the INDICTMENT ACT 1915 to order separate trials of the groups of offences. The defendant then pleaded guilty to possessing a class B-drug with intent to supply and was sentenced to 12 months’ imprisonment and for assault occasioning actual bodily harm he was sentenced to nine months’ imprisonment to run concurrently: for a second charge of assault occasioning actual bodily harm nine months’ to run concurrently with each other but consecutively to the drugs matters, so totalling 21 months’ imprisonment in all. The Court of Appeal indicated that the proper course of action was that, prior to arraignment, the trial judge should simply have deleted either the drugs counts or the assault counts from the indictment and then a perfectly lawful trial would have ensued.

The Crown Court had no power under the INDICTMENT RULES or the INDICTMENT ACT 1915 to draft a fresh indictment in relation to either the drugs counts or the assault counts which were the subject of the first effective indictment. The court decided that no valid trial commenced because of the procedural irregularities in relation to the indictment. Although the Court of Appeal could have remitted the matter back, against the conclusion that Newlands had spent sufficient time in prison they simply quashed the convictions.

A COUNT in an indictment must allege only one offence. A single count which alleges more than one offence (e.g. theft and burglary) is “bad for duplicity” and is liable to be challenged by a defence motion to quash the indictment, which, if successful, has the effect of rendering the indictment void.

In most cases duplicity is easily avoided by the draftsman giving attention to the common law or statutory definition of the offence. However this definition may itself raise problems in that:

(1) Parliament may have created a single offence which can be committed in a variety of ways (e.g. under s22 of THEFT ACT 1968 it is possible to handle goods in two distinct ways). One can first receive goods knowing or believing that they are stolen or alternatively one can assist in the disposal of goods for another (the indictment in such cases should make it clear to the defence the way in which the alleged count was committed or in cases of real uncertainty by the use of alternative counts). In R v Nicklin [1997] the Court of Appeal indicated that where the allegation was one of dishonest handling of stolen goods the particulars of the offence should be laid out in the alternative on an indictment. Under s22 THEFT ACT 1968, therefore, the prosecution could allege that the defendant received goods knowing them to be stolen or in the alternative, that of having assisted in the retention of goods, a second count could validly be laid and that a jury should also be directed that a person convicted under the first limb of s22 THEFT ACT 1968 could not be guilty on the second count.

It is possible for an indictment to allege three alternative counts. In the first count an allegation of burglary would be made and thereafter counts two and three would be handling in the alternative. No exception could be taken to an indictment in those terms.

(2) The definition of the offence may be such that one criminal enterprise is in legal theory a number of separate offences (e.g. theft of several items from the same shop); here it is proper practice to charge a single count.

Lord Diplock in DPP v Merriman [1972]:

“The rule against duplicity, viz. that only one offence should be charged in any count in an indictment has always been applied in a practical, rather than in a strictly analytical way for the purpose of determining what constituted one offence. When a number of acts of a similar nature committed by one or more Defendants were connected with one another, in the time and place of their commission, or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it is the practice to charge them in a single count of an indictment”.

Thus the appropriate test is whether the various acts form part of one activity. In R v Wilson [1979] an indictment alleging thefts from different parts of the same shop was regarded as valid, although in R v Bally Singh [1953] the indictment could not be sustained where the allegations were thefts from different shops.

The INDICTMENT RULES 1971 provide in r9:

“Charges for any offences may be joined in the same indictment if those charges are (i) founded on the same facts, or (ii) form or are part of a series of offences of the same or similar character.”

The provisions of r9 break down into two parts. They are either:

1. founded on the same facts; or


2. form or are part of a series of offences of the same or similar character. Turning to the first category, those which are founded on the same facts. In Connelly v DPP [1964], C faced trial for murder which was alleged to have occurred during the course of a robbery. He was convicted of the murder, but appealed successfully to the Court of Appeal. The Crown then sought to proceed with the second matter, namely that of aggravated robbery, and when the matter came to trial a plea of autrefois acquit was entered. This plea in Bar was rejected.

We will begin with a series of offences next week.

Thursday 11 January 2007

This week we began by looking at a trial of Children and Young People. The CRIME AND DISORDER ACT 1998 received Royal Assent on 31st July 1998; many of its important provisions came into effect at the end of September 1998. During its passage through Parliament, Home Secretary Jack Straw, described the Act as “the most radical reform of the youth justice system since the Second World War”.

Part 1 seeks to assist the prevention of crime and disorder in a number of ways:

• requiring the police and other public authorities to develop local strategies for combating crime and disorder (ss5-7, 17);


• providing the courts and local authorities with increased powers to control anti-social behaviour committed by juveniles and young people;


• streamlining procedures in the Youth Court (ss37- 42)


• abolishing the presumption that a child is doli incapax (s34).

We shall cover each of these.

The general rule is that where a defendant is aged under 1 8 he must be dealt with in the Youth Court, unless the juvenile is jointly charged with an adult, when the case may either be heard in the adult Magistrates’ Court or the Crown Court.

Each petty sessional division has a youth court panel consisting of magistrates appointed because of their suitability for dealing with juvenile cases.

The Youth Court has the following characteristics:

• The public are not allowed in Youth Courts. The only persons who have a right to he present are those directly concerned (the magistrates, court officials, witnesses, parties, legal executives having conduct of the case and trainee solicitors when under training and subject to the concurrence of the court). The press have a right to attend but may not report the name of any juvenile involved or any information which might identify such a juvenile (the Youth Court may lift this restriction to avoid injustice to a juvenile). Apart from the members of the probation service and social workers, other persons must be specifically authorised to attend.


• The bench must consist of no more than three magistrates, one of whom must be a man and one a woman, although in exceptional circumstances the court may waive this rule.


• s48 CRIME AND DISORDER ACT 1998 amends Schedule 2 CHILDREN AND YOUNG PERSONS ACT 1933 empowering stipendiary magistrates to sit alone in a Youth Court.


• A juvenile is not asked to plead guilty or not guilty, he is simply asked whether he admits or denies the alleged offence. Likewise where the bench decide that the juvenile charged did commit the offence they record a finding of guilt, not a conviction.


• Youth Court proceedings are generally less formal than those of the adult court.

The juvenile sits on a chair facing the magistrates, not in the dock. He will normally be accompanied by his parents (who may speak for him if he is not represented). The juvenile is addressed by his first name and the more formal language of the adult court is avoided when speaking to him.

Where a juvenile is to be tried summarily he should be tried in a Youth Court unless:

• he is charged jointly with an adult. If the adult and juvenile are charged jointly with a summary offence then the trial will be in the adult court unless the adult pleads guilty and the juvenile denies the offence, in which case the court has a discretion to remit the juvenile to the Youth Court for trial. If the juvenile and adult are charged with a matter which is triable either way, then provided that the adult elects to have the matter dealt with in the magistrates’ court the same procedure will follow. If the adult and juvenile both plead not guilty then the trial will take place in the adult Magistrates’ Court; unless

• the juvenile appears with an adult, but is charged on a separate information which alleges that he aided and abetted the adult or vice versa (here there is a discretionary power to hold a joint trial in the adult court); or


• the juvenile appears with an adult charged with an offence arising out of circumstances the same as, or connected with, those giving rise to the charge against the adult (here there is a similar discretion to hold a joint trial). An illustration of this would be a juvenile charged with burglary and an adult charged with handling the items which the juvenile has allegedly stolen; or


• the adult court begins to hear the case in the mistaken belief that the juvenile is an adult.

When a juvenile is tried in the adult Magistrates’ Court, the rules relating to attendance of parents and restriction of reporting apply.

s47(1) CRIME AND DISORDER ACT 1998 provides the Youth Court with a discretionary power to remit a juvenile to an adult Magistrates’ Court for trial, where, before trial, he reaches the age of 18.

s24 Magistrates’ Courts Act 1980 requires that a juvenile must be tried either in a Youth Court or in an adult Magistrates’ Court, save in the circumstances set out below:

• He is charged with an offence of homicide.


• He is jointly charged with an adult with an indictable offence and the magistrates consider it necessary in the interests of justice to commit both accused for trial at the Crown Court.


• He has reached the age of 14 and the magistrates consider that he could properly be sentenced under s53(2) CHILDREN AND YOUNG PERSONS ACT 1933, if convicted on indictment. This applies where a person aged 21 or more could be sentenced to 14 years’ imprisonment on conviction on indictment and enables the Crown Court to order that a juvenile convicted of such an offence be detained in accordance with the Home Secretary’s directions for a period not in excess of the maximum term of imprisonment which could have been imposed. The CRIMINAL JUSTICE ACT 1993 has extended the s53 sentencing powers for serious offences to young offenders convicted of causing death by dangerous driving (s1 ROAD TRAFFIC ACT 1988) or of causing death by careless driving when under the influence of drink or drums (s3A RTA 1988).

The decision on whether the juvenile is tried summarily or on indictment is taken by the magistrates, applying the relevant statutory provisions. The juvenile never has the right to choose trial on indictment.

The right of a person to elect trial on indictment applies after he has reached 18. Where he is under 18, s24 MAGISTRATES’ COURTS ACT 1980 applies and he will usually be charged in the Youth Court.

s56 CHILDREN AND YOUNG PERSONS ACT 1933 provides the general rule that where the juvenile is convicted on indictment in the Crown Court, he must be committed to the Youth Court for sentence subject to the following exceptions: first, where the juvenile has been convicted of homicide and second where it would be “undesirable” to remit the accused to the Youth Court for sentence.

In R v Lewis [1984], Lord Lane mentioned some of the reasons where it would be “undesirable” for the juvenile to be remitted to the Youth Court:

• that the judge, having presided over the trial of a not guilty plea by the juvenile, will be better informed about the case than the Youth Court;


• that the juvenile and the adult have been convicted on a joint charge, and sentencing the juvenile in the Youth Court and the adult in the Crown Court would entail an unacceptable risk of disparity in sentencing;


• that remitting would cause delay, unnecessary duplication of proceedings and additional expense.

The effect of the decision is that youths are invariably sentenced by the Crown Court.

Where a juvenile is aged between 15-17 years inclusive, is found guilty of an indictable offence by the youth court and the court considers that he should be sentenced to more than six months detention, which is the maximum available to a Youth Court under s37 MAGISTRATES’ COURTS ACT 1980, it may commit him to the Crown Court to be sentenced. The Crown Court can pass a sentence of up to 24 months on the offender or impose any punishment which could have been imposed by the youth court.

In addition, when finding the case proven against a juvenile, the Crown Court has the following powers to sentence.

Detention and training orders were created by ss73-79 CRIME AND DISORDER ACT 1998. A detention and training order will be available to the Crown Court, the Youth Court, and the adult Magistrates’ Court in respect of an offender under 18 who has been convicted of an offence punishable with imprisonment in the case of an adult offender.

The orders are available for:

• 15-17 year olds, for any imprisonable offence sufficiently serious to justify custody under s1 CRIMINAL JUSTICE ACT 1991;


• 12-14 year olds, who are in the opinion of the court, persistent offenders, for offences serious enough to justify custody under the 1991 Act;


• 10-11 year olds, for persistent offending, and, only when, the court considers that custody is sufficient to protect the public from further offending

The “order” will be a custodial sentence for the purposes of s31 CRIMINAL JUSTICE ACT 1991. This means that the court must satisfy the general criteria for imposing a custodial sentence under the 1991 Act. An order will not be made unless the court has heard a pre-sentence report, unless the court considers it to be “unnecessary”: s3 CRIMINAL JUSTICE ACT 1991.

s73(5) CRIME AND DISORDER ACT 1998 provides that the period of the order should be for one of the specific periods laid down in the Act. The duration of the order will be for either 4,6, 8, 10, 12, 18 to a maximum of 24 months. The juvenile will boon a period of supervision halfway through the sentence, which will end when the full term expires. It should be noted that the s24(3) Magistrates’ Courts Act 1980 applies to the sentencing powers of the Youth Court, (or Magistrates’ Court) limiting the length of the imposition of a custodial sentence to a maximum of six months.

Where the juvenile breaches the supervision requirement of the detention and training order, s77(3) of the 1998 Act provides that the court may impose a fine not exceeding £1,000, or by ordering the offender to be returned to custody for a period not exceeding the remainder of the full term, or for three months whichever is the shorter.

Where the juvenile commits a further offence which is punishable with imprisonment in the case of an adult during the supervision period, the court dealing with the juvenile for the later offence, whether or not it imposes any other sentence, order the offender to be detained for a period which begins with the date of the court’s order, and is equal in length to the period of the full order which remains unexpired at the time when the new offence was committed. The period of detention must be served before, or, concurrently, with any sentence imposed for the new offence.


ss67 and 68 make provision for a reparation order, a new disposal requiring a young offender to make reparation to the victim of the offence or to the community at large.

s67 gives the court the power to make a reparation order. Reparation will be supervised by a probation officer, social worker or a member of the youth offending team. The purpose of the order will be to help the young offender understand and face up to the consequences of their actions and to offer some practical recompense to the victim.

Reparation orders have been piloted in designated areas for 18 months from September 1998, with a view to national implementation during 2000-2001.

Action plan orders are created under ss69 and 70 and make provision for an action plan order, a new community sentence specifically tailored to address the cause of a child or young person’s offending behaviour. The action plan order is a community sentence for the purposes of part 1 CRIMINAL JUSTICE ACT 1991. The court may make an action plan order when it considers that to do so will prevent the offender from re-offending or rehabilitate the offender. The order will require the offender to comply with a three month action plan, supervised by a probation officer, social worker or a member of the youth offending team.

We then began looking at committal proceedings. When an accused is to be tried on indictment his trial must take place in the Crown Court. Such trials are expensive and time consuming. Further, there is usually a substantial waiting list for trials on indictment and this means that an accused remanded in custody may be detained for a substantial period before trial, and, even if released on bail, he will quite possibly be subject to stress and anxiety before trial.

In order to filter out prosecutions with little prospect of success, nearly all trials on indictment are preceded by a preliminary hearing in the Magistrates’ Court, otherwise known as committal proceedings. The Crown Prosecution Service must ensure that there is a more than reasonable chance of success and, should a case be inherently weak, should withdraw the case at an early stage. Notwithstanding the review that takes place by the lawyers within the Crown Prosecution Service, some cases require that the prosecution demonstrates that there is a reasonable or prima facie case which it would be proper for the accused to answer at the Crown Court. Magistrates in committal proceedings are often referred to as Examining Justices.

The onus is on the prosecution to show that there is a prima facie case and the Court of Appeal has given guidance as to how a court should approach the submission of “no case to answer”. In R v Galbraith [1981] the court said that if there was no evidence that the accused committed the crime alleged by the prosecution the court should stop the case forthwith and agree with a defence submission of “no case to answer”. These cases are relatively rare but sometimes occur when witnesses fail to attend court. A prosecutor faced with that situation should normally seek either to adjourn the case to compel the witness’s attendance or, alternatively, should withdraw the case. Notwithstanding the above observation, it does from time to time happen that the Crown produces little or no evidence to implicate the accused.

It is more problematic where the evidence the prosecution brings is of a tenuous character either because of its weakness or vagueness or because it is inconsistent with other evidence produced by the prosecution. The test is that if the prosecution evidence, taken at its highest, is such that a jury properly directed could not convict on it, the court should accede to a submission of “no case to answer”. It is important to note the word “could” not “would”. The standard of proof, therefore, in committal proceedings is far lower than that which the Crown must attain in a trial before a jury at the Crown Court or in a trial in the Magistrates’ Court.

Committal proceedings may take place before a single magistrate but it is normal practice for two magistrates to sit. Jurisdiction to hold a preliminary hearing is governed by the MAGISTRATES’ COURTS ACT 1980 s2(3) which merely requires that an accused is brought before the court charged with an indictable offence. It is normal practice to bring the accused before the Magistrates’ Court for the area where the alleged offence was committed.

We’ll take a look next week.

Thursday 4 January 2007

Welcome back after the holidays. Tonight we discussed the rules on disclosure of evidence, both the evidence to be used by the prosecution and the unused material.

Traditionally, the prosecution in a criminal trial in England and Wales has a duty to disclose to the defence evidence in its possession. The reason for this is to equalise the imbalance in resources between the prosecution - which is financed by the state - and the defendant, thereby doing everything possible to ensure that the accused receives a fair trial. The prosecutor’s duty of disclosure is governed by two sets of rules:

1. rules relating to the evidence upon which the prosecution intends to rely at the trial and


2. those rules which govern any relevant evidence and other material which the prosecution does not intend using at the trial, but which may be relevant to the defence. It is important to note that the rules operate in different ways depending on whether the accused is charged with a summary offence, an offence triable either way or an indictable offence.

Important changes to the disclosure rules relating to trials on indictment were introduced by Criminal Justice Act 2003, which has amended the relevant sections of the Criminal Procedure and Investigations Act 1996 by imposing significantly more rigorous requirements on defendants in trials on indictment. In addition, the Criminal Procedure Rules have introduced changes to disclosure in summary and either-way offences. In a nutshell:

• in summary cases, evidence to be used at trial will be disclosed under the Attorney-General’s guidelines;


• in indictable-only offences the prosecution will disclose its evidence in the “case sent” bundle that is served on the defence after the case is sent to Crown Court;


• in either-way offences disclosure will be made under Part 21 CrPR and in the committal bundle.

For indictable offences, such as murder or robbery, there are two sets of rules that govern the pre-trial disclosure of evidence by the prosecution. The Criminal Procedure & Investigations Act 1996 established a statutory scheme for the compulsory reciprocal pre-trial disclosure of evidence by prosecution and defence in all cases on indictment. The relevant provisions were supplemented by a code of practice under Part II CPIA 1996, which requires the police to record relevant information, and to retain and reveal to the prosecutor material which may be relevant to the investigation. The duty on the prosecution under CPIA 1996 relates only to UNUSED material, that is, evidence gathered during the police investigation but which will not form part of the prosecution’s case at trial.

Evidence intended for use at trial will be disclosed under reg 2 Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2000. Those papers will comprise the charge(s), witness statements and other evidence together with the draft indictment. The prosecution file should be served within a 42-day limit, although this time limit can be extended by the judge.


In order to appreciate the scope of the reforms under CJA 2003, we will begin by outlining the scheme that existed under CPIA 1996 before amendment in April 2005.

The Code of Practice under s23 CPIA 1996 imposed strict obligations on the police during the investigative stage to ensure that relevant material is recorded and retained and the Attorney-General’s guidelines urge investigators to err on the side of caution where there is doubt as to the relevance of any material.

CPIA 1996 established a three-stage procedure for disclosure.

1. PRIMARY DISCLOSURE: by the prosecution: s3(1) CPIA 1996 required disclosure of evidence which, in the prosecutor’s opinion, might undermine the prosecution case. The defendant was also entitled to a schedule detailing non-sensitive material in the prosecutor’s possession.


2. DEFENCE DISCLOSURE: s5 required the defendant to provide a defence statement setting out in general terms the nature of the defence, indicating matters on which the accused takes issue with the prosecution case and the reasons why issue is taken, and giving further particulars of any alibi defence.


3. SECONDARY DISCLOSURE: by the prosecution: once the defence statement had been served, the prosecutor had a duty-, under s7, to disclose material which might reasonably be expected to assist the defence as disclosed in the defence statement.

s32 Criminal Justice Act 2003 amends s3 by renaming primary disclosure “initial prosecution disclosure” and incorporating an objective element. Instead of s3 requiring the prosecution to disclose evidence which in the prosecutor’s opinion might undermine the case for the prosecution against the accused, the prosecution is now required to disclose evidence which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused. Prosecutors must now be able to justify a judgment that undisclosed material is not capable of undermining the prosecution’s case. You may think that this isn’t so very different.

Under s7 CPIA 1996 the prosecutor must make secondary disclosure of material not previously disclosed that might reasonably be expected to assist the accused’s defence as disclosed in the defence statement. Under s9 the prosecutor remains under a continuing duty to review unused material and disclose as appropriate.

s6A CPIA 1996 (inserted by s33(2) CJA 2003) introduces significant additional disclosure requirements on a defendant. The defence statement must be in writing and:

• set out the nature of the accused’s defence including any particular defence on which he intends to rely;


• indicate the matters of fact on which he takes issue with the prosecution;


• set out, in the case of each matter, why he takes issue with the prosecution; and


• indicate any point of law (including any point as to the admissibility of evidence) that he wishes to take and any authority on which he intends to rely for that purpose.

The effect of these changes is to require defence statements to be much more specific in detailing any defence that is to be relied on at trial.

Under s6C CPIA 1996 (inserted by s34 CJA 2003) defendants are required to indicate whether they intend to call any witnesses, together with the details of

1. name, address and date of birth of each witness, or such details as are known;


2. any information in the defendant’s possession that might help in identifying such witnesses.

Why? To enable the prosecution to conduct pre-trial interviews with such witnesses in an attempt to assess their veracity This could conceivably deter witnesses from coming forward or intimidate them into changing their evidence.

Even more alarming, s35 CJA 2003 inserts a new s6D, providing that where an expert witness is approached by the defence with a view to his compiling a report for possible use at trial, the defendant must give to the court and the prosecutor a notice specifying that person’s name and address. This puts the prosecution on notice where an expert is consulted but does not testify and enables the prosecutor to approach that expert with a view to recruiting him to the prosecution’s cause. CJA 2003 does not appear to impose any sanction, in the form of adverse inferences, for a failure by the defence to notify the prosecution of an approach to a possible expert witness, which raises the question whether practitioners will actually comply with the requirement.

Sanctions against the defendant for non-disclosure in accordance with the statutory scheme take the form of adverse inferences being drawn, where appropriate, under s11 CPIA 1996. For the prosecution, sanctions will be decided on a case-by-case basis.

The full disclosure of the evidence obtained by the police is an important part of the defendant’s right to a fair trial in the Crown Court. In domestic law, the sanctions the court will take against the prosecution where it has failed to disclose evidence and other material to the defence are decided on the facts of each case. Compare:

Patel and Others [2001] where the Court of Appeal allowed the defendants’ appeals against their conviction for conspiracy to cheat the public revenue because the prosecution had failed to disclose the extent to which informants had participated in the conspiracy and had told lies in earlier prosecutions against other persons alleged to have been involved in the conspiracy. The Court of Appeal held that the prosecution’s failure to disclose material information to the trial judge had made the defendants’ convictions unsafe.

with

Craven [2001] where the appellant claimed that his conviction was unsafe because the prosecution had failed to disclose fingerprint evidence that might have weakened the case against him. The Court of Appeal held that the court is entitled to look at all the evidence and that, as the evidence that had been withheld did not materially weaken the case against the defendant, it did not render the conviction unsafe.

The revised s11 CPIA 1996 allows adverse inferences to be drawn for failure to comply with many of the disclosure requirements that now lie with the defendant:

• failure to serve an initial defence statement or serving it out of time;


• failing to send an updated statement when required to do so or serving it out of time;


• pleading inconsistent defences in the defence statement; (a favourite with the examiner)


• advancing a defence at trial which is different from any previously disclosed;


• advancing a defence at trial that has not previously been disclosed;


• relying on an alibi defence not previously disclosed;


• calling a witness who was not identified in the defence statement or advance notice of witnesses section (s6C).

Where the defendant fails to disclose in accordance with the requirements, the jury will be entitled to draw whatever inferences are appropriate, including inferences of guilt. Comment on non-disclosure is permitted by both the court and the parties. s11 does make clear that inferences alone will be insufficient to found a conviction.

s8 CPIA 1996 provides that the prosecutor can apply to the court for an order that material should not be disclosed at either the primary or secondary disclosure stage on the basis that it is not in the public interest for it to be disclosed.

At both the primary and secondary stage, the prosecution’s duty of disclosure is subject to the doctrine of public interest immunity. Under ss3(6) and 7(5) CPIA 1996, in relation to primary and secondary disclosure respectively, CPIA 1996 expressly preserves the existing law on public interest immunity. The prosecution must provide a separate schedule of sensitive material which may be covered by public interest immunity. This is likely to include evidence relating to

1. national security


2. confidential information


3. the identity of informants


4. the identity of undercover police officers


5. details of premises used for police surveillance


6. other crime detection methods.

It is for the court to decide, by applying the usual common law principles, whether sensitive material should not be disclosed because it is covered by public interest immunity. The hearing can be either with or without notice depending on the type of application made by the prosecutor.

Different rules apply depending on whether the evidence to be disclosed is going to be used by the prosecution at the trial and whether the offence is tried summarily or on indictment.

(1) EVIDENCE AND MATERIAL UPON WHICH THE PROSECUTION INTENDS TO RELY. As the accused plays an influential part in determining the mode of trial decision, it is important that his decision should be informed. This means that he should be in possession of as much information about the prosecution case as possible. Part 21 CrPR therefore requires that, at an early stage in the proceedings and before the mode of trial hearing in an either-way offence, the prosecution should disclose to the accused the substance of the case against him or copies of the statements of the proposed prosecution witnesses. If the magistrates decide that the case is suitable to be tried in the Crown Court or the defendant elects trial in the Crown Court, the prosecution will serve on the accused a committal bundle before the committal proceedings. The committal bundle will contain the statements of all the witnesses who will give evidence for the prosecution at the trial.

(2) UNUSED EVIDENCE AND OTHER MATERIAL IN EITHER-WAY OFFENCES. The procedure to be adopted in relation to unused evidence depends on whether the case is to be tried by the magistrates or at the Crown Court. Where the matter is to be tried at the Crown Court, the full disclosure regime applies to trials on indictment.
The rules relating to advance disclosure in summary trials are to be found in the common law, the Attorney-General’s guidelines on disclosure and CPIA 1996. Whilst there is no statutory obligation for the prosecution to disclose evidence upon which it intends to rely at trial, in November 2000 the Attorney-General issued guidelines on the disclosure of information in criminal proceedings. In order to comply with Art 6 ECHR, the revised guidelines state that, in addition to complying with the obligations under CPIA 1996, the prosecution should provide the defence with all the evidence upon which the Crown proposes to rely at summary, trial to allow the accused or his legal adviser sufficient time and opportunity to consider the evidence before it is called.

sl(1) CPIA 1996 partly incorporates the statutory scheme into summary trials. The prosecutor has a primary duty to disclose any unused material to the defence if the accused pleads not guilty and the case proceeds to summary trial. At this stage, under s6 CPIA 1996, the defence can voluntarily serve a defence statement on the prosecutor and the court. This will include providing details of any alibi which it is intended to run at the trial. If a defence statement is served, the prosecution must fulfil its obligations at the secondary disclosure stage. It appears that, where the defence voluntarily serves a defence statement then, as in trials on indictment, the court may comment on, or draw inferences from, disclosure which is late, defective or inconsistent with the defence case at trial. In view of these potential sanctions, few defence lawyers participate in the voluntary scheme in summary trials.

We begin next week with trials involving youths.