#15004 - The Trial - Criminal Procedure and Evidence

Supervision 3 – The Trial

Indictments

• CrimPR Pt10.2(3): “Charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form or are part of a series of offences of the same or a similar character.” (Indictments Act 1915, s.4).

  • Charges founded on the same facts:

    • Is one a ‘but for’ cause of the other? (Barrell and Wilson).

  • Charges of the same or a similar character:

    • Ludlow advocated nexus arising in both fact and law.

    • But now either in law or fact enough (Marsh).

• Mutually contradictory counts can exist on same indictment (Bellman).

• Judge may sever the indictment if the accused may be ‘prejudiced or embarrassed in his defence’ (IA, s.5(3)).

  • Invalidly joined counts cannot be severed (Newland). What are the options?

    • Quash and restart (Follett).

    • Amend the indictment and proceed with singular charge.

  • Child sex offences often severed (D), but not necessarily (Christou).

• Subject to not causing injustice, indictment can be amended (IA s.5(1)).

  • Unjust if D changes causal basis of their argument (O’Connor – murder -> manslaughter).

    • Contrast with Love, where indictment changed after D pleaded guilty but knew all along that he had burgled a dwelling.

  • Alternative counts can be added to the indictment, but in Johal and Collison this was only to solve technical problems.

• Prosecutors should not include more charges than necessary to induce guilty plea.

  • Conviction will not be unsafe unless the wrongful joinder prejudiced D (McGrath).

• A count may charge two or more defendants committing a single offence (or different offences). Jury needs to be properly directed (Merriman).

  • Judge has discretion to order separate trials.

  • But single trials reduce risk of different verdicts being returned by juries on virtually identical evidence (Merriman).

  • Does not matter if both Ds going to give evidence implicating eachother (Grondkowski).

  • Ds can be tried in same indictment if incidents are related by time or other factors (Assim).

  • Thornton argues that more weight should be given to defendants.

    • Prosecution should not be allowed to benefit from ‘cutthroat’ defences.

• Motions to quash the indictment not very effective.

  • Amendments often sufficient.

• Court has power to stay in indictment.

In summary proceedings, trial can continue without D (Magistrates’ Courts Act 1980, s.11)

Judge has discretion to continue trial in Crown Court without D (Jones).

Pleas

• ‘Not guilty’ plea places burden on prosecution to show beyond reasonable doubt that accused not entitled to raise it.

• Whenever burden of proof placed on defence, they discharge it on balance of probabilities.

• ‘Guilty’ pleas must be entered by accused personally (Ellis).

  • If plea extracted by pressure, it will be a nullity (Barnes).

  • In Swain, conviction quashed as plea incorrectly made due to psychiatric illness.

• Prosecution can accept ‘guilty’ plea to a lesser offence (Criminal Law Act 1967, s.6(1)(b)).

  • Judge can exercise discretion to refuse this (Soanes).

• Pleas can be changed from not guilty to guilty at any stage of the trial. Other way round requires judge giving his consent.

  • You can withdraw plea of guilty until sentencing if you have a good reason for doing so (Drew).

• If D seeks indication of sentence, it will be binding for a reasonable time to allow D to consider his options (Goodyear).

  • Padfield is worried that we are going too far in Innospec direction, where opposing counsel are coming to deals about sentence before trial.

• Those who cannot plead:

  • If you remain silent, a plea of not guilty entered (CLA 1967, s.6(1)(c)).

  • Unfitness to plead requires evidence of two or more registered medical practitioners.

• If there is disagreement surrounding factual issues, trial judge can hold a Newton hearing, where he can call witnesses and hear evidence before sentencing.

  • If hearing goes against D, the discount he receives from guilty plea can be reduced (Underwood).

Submission of no case to answer

• After prosecution evidence has been adduced, defence counsel may submit that there is no case to answer.

• There is no case to answer if the prosecution have failed to adduce evidence on which a jury, properly directed, could properly convict (Galbraith).

  • But Galbraith test assumes that all evidence is correct.

• It is sufficient that a jury, not all juries would find a case to answer (Goddard).

• If evidence is self-contradictory and out of all reason and common sense, should be withdrawn (Shippey – ‘plums and duff’).

• In a charge of murder or manslaughter and an offence under Domestic Violence, Crime and Victims Act 2004, s.5, whether there is a case to answer must not be considered before the close of all the evidence.

The Jury

• Juries selected at random from the electoral roll.

• Criminal Justice Act 2003 removed many of the class restrictions to juries.

• ECtHR did not want police officers on the jury (Hanif and Khan – officer was personally acquainted with officer giving evidence).

  • Retreat from this position in Armstrong v UK – counsel given adequate chance to question involvement of officers; held to be OK.

  • But only excluded in UK if they make conviction unsafe (Abdroikov).

• But prosecution has a right to stand a juror by, but this power has been vastly reduced by A-G’s guidelines.

• Both prosecution and defence can challenge jurors for cause.

  • Burden on challenging party to satisfy on balance of probabilities that objection is well founded.

• Trial judge has power to stand a juror by.

  • Cannot intervene for racial imbalances (Ford).

    • Thomas argues that it does not make much difference in reality, but has large effect on appearance of equality.

  • But in Remli v France a racist juror held to breach Article 6(1).

    • Once an allegation of bias is made, it must be investigated unless it is ‘manifestly devoid of merit’.

  • Exceptional circumstances in Kray where only those who had not read any related media to the case allowed to sit on jury.

• Jury vetting allowed in cases where national security involved and terrorist cases.

• To appeal on grounds of jury composition, must show that a particular juror had made up his mind before the trial (Box and Box).

• S.18 of Juries Act 1974 provides that a conviction may not be quashed on any of the following grounds after the trial:

  1. That the provisions of the JA about the summoning of jurors or their selection by ballot were not complied with;

  2. That a juror was not qualified to serve under s.1 JA;

  3. That a juror was misnamed or misdescribed; and

  4. That a juror was unfit to serve.

• Conviction not quashed in Chapman despite juror being deaf – obiter that it may have been quashed if decision not unanimous.

• Judge may discharge up to 3 jurors during the trial and continue with the others (JA, s.16).

  • At common law, discharge only allowed if there is an ‘evident necessity’ for it.

  • Suspicion of bias may necessitate discharge. (Porter v Magill test – R v Gough).

    • In Sawyer, jurors not discharged despite being seen talking to witness in a restaurant.

• Where verdict cannot be reached, judge discharges them from reaching one.

  • Accused may be tried again, but in practice, if two juries cannot agree, verdict of not guilty usually entered.

    • Sensitive to each case (Hensworth).

  • If judge exerts pressure on jury to acquit, conviction will be quashed (McKenna – judge said he was leaving in ten minutes).

Judge-only trials

• CJA 2003, s.43-50 introduced trial on indictment without a jury.

  • In Twomney (jury tampering), cost factor of providing protection for jurors and their families militated against trial by jury.

• Can occur in serious or complex fraud (s.43) trials or where there is a danger of jury tampering (s.44-46).

  • S.43 REPEALED BY PROTECTION OF FREEDOMS ACT 2012.

• Domestic Violence, Crime and Victims Act 2004, s.17 allows jury to try sample counts, with remaining counts capable of being tried by a judge sitting alone.

The Verdict

• Jury must stay together when they retire (Neal / Ketteridge).

• No evidence should be adduced before the jury once they have begun to consider their verdict (Owen).

• Jury must agree on all aspects of the offence (Brown).

  • Jury can convict even if they are unsure if accused was principal or secondary party (Tirnaveanu / Gianetto).

• In Connor, held that, after verdict returned, evidence as to what had been said by the jurors in private was inadmissible.

Alternative verdicts – judge’s ‘invisible burden’

• If the allegations in a count for an offence other than treason or murder ‘amount to or include an allegation of another indictable offence’, the jury may find the accused not guilty of the offence charged but guilty of the other offence (Criminal Law Act 1967, s.6(3)).

• Three scenarios where alternative verdicts can be given

  • Explicit: delete parts of the count and the offence is still left (Lillis – burglary / theft by keeping).

  • Did charged offence include the lesser offence? (Wilson – e.g. GBH / ABH).

  • Implicit: e.g. charging burglary with GBH will implicitly charge theft.

• Judge still has discretion to tell jury to ignore alternative.

  • In Coutts, held that judge should have directed jury on manslaughter even though original charge was murder.

• Can only find alternative if D not guilty of offence charged (Colliston).

  • Disputed in Saunders but Stark argues follow Colliston.

Majority verdicts

• Juries Act 1974, s.17 provides for verdicts by a majority of 10 to 2, or if jury reduced...