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:
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:
s6(2) permits committal without consideration of the evidence if:
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:
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:
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:
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:
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:
We will begin with a series of offences next week.
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:
- 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.
- 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.
- 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.
- 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:
- the accused intends to plead guilty; or
- 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:
- all the evidence tendered consists of written statements made in compliance with s5A of the 1980 Act; and
- the accused (or where there is more than one accused, all of them) is legally represented; and
- 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:
- 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
- if there are two or more accused and all of them apply for reporting restrictions to be lifted; or
- 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);
- 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:
- an order for retrial made by the Court of Appeal;
- a direction to prosecute for perjury made by a judge under s9 PERJURY ACT 1911;
- 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;
- 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:
- 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).
- 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:).
- 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.
- 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?).
- Two or more accused persons may be charged in one count where the allegation is that they acted in concert to commit the offence.
- Two or more accused persons, not alleged to have acted in concert, may be charged in a single indictment (but in separate counts).
- 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:
- founded on the same facts; or
- 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.
posted by John Robotham at 2:46 AM
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