Preliminary Hearings - Arraignment and Pleas

Types of Preliminary Hearings

• Application to sever/amend indictment

• Application to Dismiss Charges

• Apply for a Witness Summons

• Resolve Legal Arguments

• Arraignment

Application to Dismiss Charges

Test : Judge will dismiss the charge where it appears that the evidence against D would not be sufficient for him to be properly convicted.

Same as that applied for no case to answer submission.
(i) There is no evidence that D committed the crime OR
(ii) Prosecution evidence, taken at its highest, is such that a properly directed jury could not convict on it

Procedure for Application to Dismiss Charges

Can only be made
- After D sent by Mags to Crown Court
- D has been served with evidence AND
- Before Arraignment

Procedure :

1. Written application within 20 business days of service of P’s case, before arraignment

2. Copies must be served on P anc co-accused

3. Application must explain :

   1. Why P’s evidence is insufficient

   2. Ask for hearing, is wanted, and why one is necessary

   3. Identify any witnesses being called

   4. Identify any material which accused wishes to rely on

4. Any opposition notice should be served within 10 business days.

   1. Grounds of opposition

   2. Ask for hearing if wanted, and why one is necessary.

   3. Identify any witnesses being called

   4. Identify any material which P wishes to rely on

Can be decided on papers.

R (Inland Revenue Commissioners) v Crown Court at Kingston [2001] EWHC Admin 581 : On an application to dismiss, the judge was required to take into account the whole of the evidence against the accused, and that it was not appropriate for the judge to view any evidence in isolation from its context and other evidence.

Arraignment

Procedure at the start of the trial where details of the offences are read out, and D enters their plea

Procedure of Arraignment

CrimPR 3.32 :

• Court must confirm that indictment represents charges that P wishes to proceed with.

• Clerk of the court reading the indictment to the accused.

• Accused is asked for their plea.

• Separate plea is taken for each count.

• Jury excluded from arraignment.

Fitness to Plea

Determined by a judge on evidence from two medical experts, in the absence of a jury.

If unfit to plead - Straight to trial prep. Jury only considers actus reus.

Orders Available to Court for Unfit Defendants

section 5 Criminal Procedure (Insanity) Act 1964 :

1. Hospitalisation Order (compulsory in murder cases)

2. Supervision Order

3. Absolute Discharge

Fairley [2003] EWCA Crim 1625 : No other orders available to the Court.

Guilty Plea

Must be entered by the accused personally.

• Prosecution released from obligation to prove case.

• No need to empanel a jury.

• Accused stands convicted by virtue of their admission of guilt.

• IF significant dispute about material facts : Newton hearing.

Not Guilty Plea

Can also be understood from silence when asked for plea.

• Burden of proof on P to proof their entire case, beyond reasonable doubt.

• Defence are entitled to take advantage of any deficiency in the prosecution evidence, and submit that there is no case to answer.

• Case progresses to PTPH.

Change of Plea - Lesser Offence

• D can enter not guilty to Offence A, but guilty to Offence B, which is a lesser offence.

  • If accepted : D is treated as acquitted of Offence A but convicted of Offence B, and sentenced accordingly.

• Discretion of the judge to allow a plea to a lesser offence. (Soeanes (1948) 32 Cr App R 136)

  • P only bound to act in accordance with the judge’s view if they have caught it.

Change of Plea - Not Guilty to Guilty

The judge may allow the accused to change plea from not guilty to guilty at any stage prior to the jury returned their verdict.

• D asks for indictment to be put again, and accused then pleads guilty.

• If change of plea comes after accused has been put in the charge of a jury : jury should be directed to return a formal verdict of guilty.

• Unlikely that Judge will not allow D to change plea.

Change of Plea - Guilty to Not Guilty

The judge has a discretion to allow the accused to withdraw a plea of guilty at any stage before sentence is passed.

Dodd (1981) 74 Cr App R 50 :

(a) The court has a discretion to allow a defendant to change a plea of guilty to one of not guilty at any time before sentence;

(b) The discretion exists even where the plea of not guilty is unequivocal; and

(c) The discretion must be exercised judicially.