#10508 - Pleas - Criminal Procedure and Evidence

Arraignment – beginning of trial on indictment, counts put to accused so he can plead guilty or not guilty.

• Should happen not less than two or not more than eight weeks from date of committal – SCA 1981 s.77 and r.39.1 CPR

  • Though discretion to give permission to start after 8 weeks.

• Accused brought into dock and counts read out. Jury kept out if there’s any chance he will plead guilty to something, accused should tell of intent to plead guilty to alternative counts so they can be put to him first.

Plea of not guilty prosecution must prove case beyond reasonable doubt and (for more defences raised) disprove them beyond reasonable doubt.

• Options for prosecuting advocate when accused pleads not guilty to some counts and P doesn’t want to proceed

  • Propose to judge that they will offer no evidence, and judge will record NG for each offence denied by the accused.

  • Ask that counts to which accused plead not guilty be left on file and not proceeded w/ without leave of court or CA = common if accused pleads guilty to some bc if those convictions are later overturned, CA can give permission for prosecution to proceed w/ remaining counts.

Plea of guilty Must be done by D himself (Ellis: advocate pleading guilty = a nullity and CA orders retrial). Goes straight to sentencing if guilty.

• Pleas by co-accused: if 1 co-D pleads guilty and the other does not, judge adjourns the case of the one who did.

Ambiguous pleas – if accused responds in an ambiguous way (e.g. guilty to reciving but was not sure if the goods were stolen), judge should try to elucidate the plea by explaining the elements of the offence charged and then put it to him again. If still ambiguous, not guilty plea is entered – CLA 1967 s.6(1).

Involuntary pleas

• Cannot pressure the accused.

• Pressure from judge/counsel (e.g. Barnes where judge told D he was guilty halfway through – would have been a nullity if D changed his plea).

• Pressure from accused’s own counsel – advice that prosecution case so strong that only possible course of action is to plead guilty renders guilty plea a nullity.

  • Goodyear laid down principles: best advice possible, mention that NG plea gets lesser sentence, emphasis that D has choice and that he should not plead guilty if he is NG. Only nullity where D loses ability to make voluntary and deliberate choice

• Pressure from reasons internal to D – e.g. drugs

Plea of ‘Guilty’ to a Lesser Offence

• When count put to accused on which jury could find him guilty of a lesser offence, he can offer NG plea as charged but guilty to a lesser offence (CLA 1967 s6(1)(b)).

• Prosecution can accept or reject

  • Crown Prosecutors Code para9.1 says only accept if court can pass sentence reflecting seriousness of offence.

  • If they do not accept – prosecutor can insist trial continues and NG plea is entered + jury empanelled

  • Judge can suggest when its not appropriate to accept a plea of NG to a lesser offence (Soanes).

• Hazeltine: When plea of G to a lesser offence is not accepted, that plea is withdrawn and cannot be reinstated by the judge later + D cannot get sentenced for it.

  • Though prosecution can call evidence that D plead guilty to that lesser offence.

  • Also – if the offences are actually within separate counts in the indictment then no need to accept/reject and no withdrawal when trial continues.

Changing plea

• Not guilty to guilty – can be done at any stage of trial + jury must then return a formal verdict of guilty. If they don’t then plea is ineffective and trial is a nullity.

• Guilty to non-guilty – possible w/ judges consent, which is a matter of discretion.

  • Judge will consider whether D understood nature of charge/genuinely intended to admit guilt. Shouldn’t be for tactical considerations.

Plea Bargaining

• “Plea bargaining” is allowed in two ways in English courts:

  • Prosecution agreeing with defence that if accused pleads guilty to lesser plea that they will accept

  • Prosecution agreeing not to proceed on 1+ counts on indictment if he pleads guilty to the remainder.

• Does judge need to approve? Coward probably a matter of courtesy in case judge doesn’t agree.

• Innospec – prosecution cannot enter agreement w/ accused as to penalty, that is for the court.

Judicial indications

• Goodyear: guidance on judicial indications of sentence

  • For D to seek the indication and judge can decide whether or not to give one. Indications bind judge and any subsequent judge

  • If D did not plead guilty after being given reasonable opp to consider position then the indication doesn’t have effect.

  • D should only plead guilty if he is guilty, and know that any sentence indication is subj to possibility of A-G ref to the CA for unduly lenient sentence.

  • Only relates to matter about which it has been sought.

• Usually asked for at plea and case management hearing – and only where pros and defence agree of factual basis of the plea.

Accused will not/cannot plead

• Muteness:

  • Mute of malice = where accused silent by choice. NG plea entered and case proceeds.

  • Mute by visitation of God = where actually incapable of giving plea.

    • If because deaf or unable to speak, adjourned w/ view to finding way to communicate

    • If it is because they have mental problems and cannot reply, jury can be asked to consider whether he is unfit to plead.

• Unfitness to plead

  • Where D cannot comprehend course of proceedings so as to make proper defence.

  • Consider whether he understands so as to answer on arraignment, whether he could challenge juror and instruct legal teams, whether he can follow evidence.

  • Can wait to opening of defence case to consider.

  • When unfitness to plead found = s4A Criminal Procedure (Insanity) Act 1964 – jury must then decide if they are satisfied that accused did the act/omission charged of him. If not, they acquit. If they are, then various orders can be made.

  • Evidence of 2+ medical practitioners needed.

Once prosecution evidence adduced, prosecution states ‘that is the case for the prosecution’....