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
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
posted by John Robotham at 6:33 AM
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