#13790 - Evidence At Trial And Types Of Evidence - BPC Criminal Litigation (formerly BPTC) 2024/2025

At Trial

(1) Arraignment

What is it?

• Arraignment consists of 3 parts:

  • Calling D by name;

  • Reading out the indictment to him;

  • Asking for his plea

• Each count should be read separately.

Pleading:

• D can plead as follows per s6 CLA 1967:

1. Guilty

   1. Goodyear - Whilst Counsel must give appropriate advice to D, the decision on plea is D's alone. No one can put improper pressure on D to plea any way (whether it be the Judge or Counsel).

   2. D should not plead G unless he says he is guilty in whatever way.

   3. Indications on Sentence

      1. Judge doesn’t have to give indication of sentence. If he chooses to do so, this does not amount to improper pressure.

      2. Judge is bound by this maximum. If D thereafter pleads NG, the indication ceases to have effect.

      3. D’s advocate should not seek an indication without written, signed authority from the defendant that he wished to seek an indication.

      4. The advocate remained personally responsible for ensuring that his client fully appreciated that

      5. D should not plead guilty unless he was guilty;

      6. Any sentence remained subject to the entitlement of the Attorney-General to refer the sentence as unduly lenient;

      7. The indication reflected the situation at the time it was given only;

      8. The indication only related to matters about which an indication was sought.

2. Not Guilty

   1. NG to the Offence Charged, but G of lesser Offence

      1. If this is not accepted by P, then a NG plea is entered, and the G plea is a nullity and withdrawn. A plea of guilty only ranks as a wrong when sentenced, not when recorded.

   2. Accepting Lesser Pleas

      1. If P asks Judge’s opinion, they are bound by it. If they don’t, Judge nevertheless has a power to adjourn for reconsideration - Will go to local Chief Crown Prosecutor, then to DPP, then to AG respectively.

      2. Judge can always change his mind on accepting the plea once he hears the background, and direct a trial continues.

   3. Jury find D NG of Offence Charged, but G of alternative offence

      1. A jury may find D guilty of an alternative offence not on the indictment where, in accordance with s6(3) Criminal Law Act 1967:

         1. D is tried on indictment for any offence except treason or murder;

         2. the jury find him not guilty of the offence charged in the indictment;

         3. the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the Crown Court

      2. A summary only offence (including one to which section 40 applies) may fall within this definition and be sentenced by the Crown Court. The court is restricted to the powers of sentencing of the magistrates court.

      3. Although charges of wounding, assault occasioning actual bodily harm and racially aggravated assault occasioning actual bodily harm and racially aggravated common assault would be the most obvious that might lead to consideration of an alternative verdict of common assault, it is also important to consider cases involving sexual offences and harassment with violence.

   4. A plea of not guilty in addition to any demurrer or special plea;

      1. There are three special pleas:

         1. Autrefois Acquit

         2. Autrefois Convict

         3. Pardon

3. Mute of Malice

   1. The Court may order NG to be entered on his behalf

(2) Change of plea

(3) Unfitness to Plead

• If D is “unfit to plead”, it depends upon R v Pritchard:

  1. Does D understand and plead to the indictment?

  2. Would D be able to exercise his right to challenge the jurors?

  3. Would he understand the evidence given during trial?

  4. Could D instruct his legal advisors and give evidence?

• This is usually raised by defence but can be raised by P or Judge if no D lawyer.

• Under s4(4) Criminal Procedure (Insanity) Act 1964 the issue should be raised “as soon as it arises” - ideally before arraignment, but can be during the trial too! At this point, court has a discretion to postpone the issue if it is expedient and in D’s interests - e.g. where no case to answer will likely succeed.

• If D is found unfit to plead, then “Special Procedure” is followed.

  • s4A CPIA - Jury must be satisfied that D did or made the omission charged against him.

  • But no mental element will be taken into account - So no mental defences (e.g.: Diminished Responsibility, or loss of control are relevant in murder). But self-defence, mistake, or accident - P will have to negative BARD.

• s5 CPIA If D is found guilty, Court is limited to:

  • Hospital Order with or without Restriction Order (without limit of time) - This is mandatory in murder cases;

  • Supervision Order;

  • Absolute Discharge.

• If D is silent during arraignment, a finding must be made as to whether he is:

  • Mute of Malice - Deliberately silent.

  • Mute by Visitation of God - Silent for reasons beyond his control.

This is determined by Jury, and P must prove on BARD.

• If Mute of Malice, court must enter plea of NG on his behalf.

• If Mute by visitation of god, must consider whether he is fit to plead! V RARE!

Calling Witnesses

Witness Summons

Summons can either be for live evidence or to produce a document.

Hearings should be on notice. It should be served on potential Witness with at least 14 days notice to make representations. If W fails to attend without a "just excuse" the court can issue a warrant for W's arrest.

• The test for W summons is:

  1. That W is likely to be able to give/produce the material evidence (live or document); and

  2. That it is in the interests of justice to issue a summons.

• The summons will require the person to attend court, and give the evidence. It may also make an order to attend or produce documents prior to the hearing

• s2C CP(AoW)A 1965. The W Summons will not be effective if the summonsee convinces the court he was not served with notice of the application to issue the summons, was neither present or represented at the hearing, and cannot give material evidence.

• The Summons must identify with reasonable particularity the thing to be produced, and it must be admissible. It is not proper (and will be set aside) to make the recipient make judgments on relevance and weight.

• Similarly, the evidence must be admissible and material (i.e relevant)

• May object on grounds of PII immunity.

Calling Witnesses - Competence & Compellability

What is the difference?

• W is competent if he may lawfully required to give evidence.

• W is compellable if he may lawfully be required to give evidence.

• Competent witnesses are generally compellable.

The Test of Competence

• s53 YJCEA 1999 - All persons (whatever their age) are competent to give evidence in criminal proceedings. UNLESS:

  • W is not able to:

    • Understand questions put to him as W; and

    • Give answers which can be understood.

  • Defendant charged in the proceedings is not competent to give evidence for the prosecution. NB: if D pleads guilty, he is no longer charged, and is thus competent!

COMPELLABILITY EXCEPTIONS:

(1) Defendant

• s1 CEA 1898 - A person charged in proceedings shall not be called as W except upon his own application.

• A person who has pleaded G is not charged, so is competent and compellable for a co-defendant.

(2) Spouse/CP

• s80(2) PACE - Spouse/CP is compellable by the defence.

• s80(2A) PACE - Spouse/CP of D is compellable by any other defendant but only in relation to a “specified offence” with which that other person is JOINTLY charged with D1; OR the prosecution in relation to a specified offence. This is defined as:

  1. Assault on, or injury or threat or injury to spouse/CP or person under 16;

  2. Sexual Offence of someone under age;

  3. Inchoate of the above.

• BUT can’t be compelled if charged in any proceedings. (I.E Spouse is a defendant)

• Only applies to current spouse. Ex-spouse can be compellable as if never married. Doesn’t apply to polygamous spouses! No application to unmarried partner.

• There is no power to prevent marriage of prisoner on remand and Pros W, even though renders no-compellable W per R (CPS) v Registrar-General.

• This poses no bar...