#10410 - Arraignment And Pleas - BPC Criminal Litigation (formerly BPTC) 2024/2025

ARRAIGNMENT AND PLEAS

FAILURE TO PLEAD

Unfitness to plead

• when is a person unfit to plead?

  • unfit to plead if incapable of understanding the proceedings, so unable to:

    • put forward any defence,

    • give evidence at trial,

    • challenge juror for cause,

    • give proper directions to defence counsel

    • follow the evidence (Podola)

  • NOT unfit to plead, simply if will not accept what appears to be sensible advice from defence counsel

• who can raise issue?

  • pros (BRD), defence (balance of probs) + judge of own motion

• procedure (s4 Crim Procedure (Insanity) Act 1964)

  • time for determination of fitness

    • ideally, ASAP (as soon as raised) + before arraignment

    • court may postpone consideration of fitness until any time until opening of defence case if in D's interests (enables SNCTA to be made before Q determined)

  • evidence required

    • reports of 2 reg'd medical practitioners

    • judge can say doesn't agree with these

    • often need adjournment for prep of reports

  • fitness determined by court without jury, judge makes finding of fact

1. D found fit to plead trial proceeds as normal (i.e. arraignment-plea-trial / sentence)

2. D found UNfit to plead jury (if fitness determined: at start, jury empanelled / after trial starts, jury trying substantive offence) decides whether D committed AR of offence (the act alone)

1. D did NOT commit AR acquitted

2. D DID commit AR 3 available disposals:

   • hospital order

   • supervision order

   • absolute discharge

   • available defences on act alone:

     • mistake

     • involuntariness

     • accident

     • self defence

Muteness

• muteness = D stays silent when pleads

• mute by visitation of God (rare)

  • if temporary, adjourn to find means of communicating e.g. sign language; OR

  • if permanent, jury asked to consider if D unfit to plead

• mute of malice (rarely arises as separate issue)

  • must empanel jury to determine whether mute of malice (burden on pros to establish BRD)

  • if found mute of malice, jury that finds so can try if trial starts within 24 hours of finding (otherwise, empanel new jury)

ARRAIGNMENT AND PLEAS

• the arraignment

  • usually at PCMH

  • indictment put to D - asked to plead G / NG

  • if several counts, each put, separate plea on each

  • D must enter plea personally (not through counsel / solicitor)

• presence of D

  • D must be present at arraignment to enter plea

  • D must be present at mode of trial hearing

• procedure on G plea

1. D pleads G to all counts

2. pros:

1. summarise facts

2. outline relevant pre-cons (court has complete list, asks pros to outline relevant)

3. basic details about D based on what D told police (e.g. education, income)

• Newton hearing

  • D pleads G on factual basis less serious than that put forward by pros (see earlier SGS)

• procedure on NG plea

1. D pleads NG to some / all counts (arraignment)

2. jury empanelled (trial - can't lie on file if jury started hearing evidence, judge has to direct jury to return NG verdict); OR

3. if new evidence has come to light showing wrong person charged / weakening case against D / key W refused to testify OR D pleaded NG to some counts + pros agree NOT to proceed with NG plea counts:

1. pros offer no evidence against D for relevant charge(s) + NG verdict entered (CJA 1967 s17); OR

2. ask judge to direct that 1+ counts lie on file marked 'not to be proceeded with without leave of CA / CC' (NOT acquittal BUT only proceeded with in unusual circumstances)

• G to alternative offence (plea bargaining) (CLA s6(1)(b), s6(3))

  • the rule

    • e.g. NG to robbery G to theft

    • if pros decide to proceed with count on indictment, G plea becomes nullity solution = add lesser offence to indictment (i.e. have both)

  • express allegation - the blue pencil test

    • if pros allege one offence on indictment but CANNOT prove all elements - apply 'blue pencil test' - if alternative offence left, can be left to jury

  • implied allegation - the Wilson test

    • allegation of lesser offence is impliedly included in the count where commission of offence alleged may involve commission of another offence even if it is possible in law for one offence to be committed without commission of other

  • specific alternatives

1. murder - manslaughter, s18, infanticide, attempts of any

2. assisting offenders - if D found NG as principal, alternative = G of assist

3. attempts

1. if charged as principal, may be found G of attempt of offence charged OR any alternative of it

2. if charged with attempt, but G of complete offence: convict as charged OR discharge jury + prefer new indictment for complete offence OR court may 'otherwise act'

4. affray / violent disorder - threatening behaviour

5. riot - impliedly: violent disorder, affray

6. violent disorder - impliedly affray

7. theft - taking motor vehicle without owner's consent

8. assault ABH - common assault

• different pleas from different Ds (i.e. some plead G, others plead NG)

  • matter for judge to decide to sentence any NG plea immediately OR at end of trial of other Ds

    • benefits / drawbacks of postponing till end of trial

      • judge has better idea of who did what

      • if D decides to give evidence against others ('turn Queen's evidence'), which attracts greater than 1/3 discount for G plea:

        • may seem that sentence depends on quality of evidence rather than extent of D's guilt

        • if D changes mind before giving evidence, lenient sentence CAN be altered

  • jury should NOT be told about G plea of other D, unless turns Queen's evidence - if told retrial

• change of plea

  • NG G

    • any stage before jury returns verdict

    • defence request indictment to be re-put

    • if jury empanelled, should return formal G plea, BUT does conviction valid even if don't

  • G NG OR double change of plea (NG G NG)

    • judge has discretion to allow at any stage before sentence passed, exercised sparingly

    • easier to persuade judge if D not represented when entered plea 1., but WAS represented when entered plea 2., BUT judge NOT obliged to exercise discretion

• ambiguous / involuntary plea

  • ambiguous plea

    • situation 1

1. D pleads G but advances mitigation amounting to a defence

2. law explained to D + D asked to plead again

3. if plea remains ambiguous, NG plea entered on D's behalf

   • situation 2

1. D says to counsel 'didn't do it but wants to plead G to get over with'

2. counsel should try to dissuade D + explain can't say anything in mitigation which suggests innocence or remorse

   • involuntary plea

     • if D did not have free choice, plea = nullity

     • pressure can come from: court, defence counsel (if advice so forceful as to remove free choice), other

   • effect if proceeded on

     • proceeding on ambiguous / involuntary plea = mistrial good ground of appeal

Double jeopardy: autrefois acquit + autrefois convict

• elements of the rule (Connelly v DPP)

1. person should NOT be tried for a crime for which he has previously been acquitted / convicted

2. person should NOT be tried for a crime of which he could on some previous occasion have been convicted by alternative verdict (s6(3) Crim Law Act 1967)

   • e.g. if D tried for s18, jury could alternatively convict of lesser s20 D should NOT be tried later for s18 arising out of same incident

3. person should NOT be tried for a crime which would require proof of a crime for which he has previously been acquitted

   • e.g. D acquitted of robbery, should NOT be tried on later occasion for robbery (theft = essential ingredient) arising out of same incident

4. D CANNOT be tried for crime in effect the same OR substantially same as once of which he has previously been acquitted / convicted / could have been convicted by alternative verdict

• powers of court

  • all except (a) above, court has discretion whether to strike out later prosecution

• application of the rule

  • DOES apply where pros offer no evidence against D and G verdict entered

  • does NOT apply where:

    • charge dismissed without hearing on merits on ground defective as matter of law OR evidence insufficient to sustain conviction (D never in jeopardy of conviction)

      • especially if pros substitute new - more appropriate - charge

    • D re-prosecuted following quashing of indictment

    • pros serves notice of discontinuance BUT reserves right to institute proceedings at later date

    • where first jury discharged from giving verdict

    • HC quashes acquittal

    • where someone convicted of interfering with /...