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Flashcards in LG 8 Deck (34):
1

§4. Procedure in the magistrates’ courts, allocation for trial, and sending to the Crown Court for trial or sentence


committal for sentence: D.23.31, D23.44 and the first sub-paragraph of D23.57
sending indictable offences to the Crown Court: D10.1 and D10.4-10.11
the sending of linked summary only offences and the procedure for dealing with them in the Crown Court: D6.40

2

§6. Indictments

the indictment, including time limits and the structure and format of an indictment: first sub-paragraph of D11.1, D11.2, D11.6, D11.8, D11.9, D11.23, D11.28, D11.32, D11.34 (from (c)), D11.35
rules governing joinder of counts on an indictment and the consequences of misjoinder: D11.63, D11.64, D11.65-11.66 and D11.70
rules relating to specimen counts: D11.36-11.38
joinder of defendants on an indictment: D11.72-11.75
applications to sever the indictment: D11.76-11.79 and D11.86-11.88
applications to amend indictments: D11.100-11.101, D11.104-11.05, and the first sub-paragraph of D11.106
voluntary bills of indictment: D10.44 and D10.48
Part 10 of the CrimPR; CPD II, paragraphs 14A.1 to 14A.5 and 14A.10

3

Committal for sentence: PCC(S)A 2000, s 3

If D indicates a guilty plea to, or is convicted of, an either-way offence …
… which is so serious that greater punishment should be inflicted than the magistrates’ court has power to impose,
he may be committed to the Crown Court for sentence.
The Crown Court can then sentence as if D had been convicted in the Crown Court (s 5).

4

Committal for sentence: PCC(S)A 2000, s 4

If D pleads Guilty to an either-way offence (offence A), but
indicates a Not Guilty plea to a related offence (offence B), and
offence B is sent to Crown Court for trial,
the magistrates’ court can commit offence A to the Crown Court for sentence,
even if their sentencing powers for that offence are adequate.
When sentencing D for offence A, the Crown Court judge will be limited to magistrates’ court powers of sentence unless either:
the magistrates stated they could have committed offence A for sentence under s 3; or
D is convicted of offence B.

5

Dangerous offenders: PCC(S)A 2000, s 3A

Enables committal for sentence where an adult defendant is convicted, following summary trial, of a ‘dangerous offenders’ offence, and it appears to the magistrates’ court that the criteria for the imposition of a sentence under s 226A of the Criminal Justice Act 2003 would be met.

6

Committal for sentence: PCC(S)A 2000, s 6

Where a magistrates’ court commits D for sentence under:
s 3, s 3A, or s 4;
s 13(5) (offence committed in breach of a Crown Court conditional discharge), or
CJA 2003, sch 12, para 11(2) (offence committed in breach of a Crown Court suspended sentence of imprisonment):
the magistrates may also commit D for sentence for any other offences (summary or either-way) of which he stands convicted.
The powers of the Crown Court are limited to those of a magistrates’ court for offences committed under s 6.

7

Dangerous offenders: PCC(S)A 2000, s 3A

Enables committal for sentence where an adult defendant is convicted, following summary trial, of a ‘dangerous offenders’ offence, and it appears to the magistrates’ court that the criteria for the imposition of a sentence under s 226A of the Criminal Justice Act 2003 would be met.

8

Committal for sentence: PCC(S)A 2000, s 6

Where a magistrates’ court commits D for sentence under:
s 3, s 3A, or s 4;
s 13(5) (offence committed in breach of a Crown Court conditional discharge), or
CJA 2003, sch 12, para 11(2) (offence committed in breach of a Crown Court suspended sentence of imprisonment):
the magistrates may also commit D for sentence for any other offences (summary or either-way) of which he stands convicted.
The powers of the Crown Court are limited to those of a magistrates’ court for offences committed under s 6.

9

Sending for trial (CDA 1998, s 51)

Where an adult appears before a magistrates' court:
charged with an indictable-only offence; or
charged with an either-way offence where the mode of trial hearing resulted in a decision in favour of trial on indictment; or
notice has been given to the court under s 51B (serious or complex fraud cases) or s 51C (certain cases involving children):
‘the court shall send him forthwith to the Crown Court for trial for the offence’.

10

Linked offences: s 51(3)

Where an adult is sent for trial under s 51, the court must also send the accused to the Crown Court for trial for any either-way or summary offence with which he is also charged, if that offence is related to the main offence (and, in the case of a summary offence, is also punishable with imprisonment or involves disqualification from driving: s 51(11)).
An either-way offence is related to an indictable offence if the charge for the either-way offence could be joined in the same indictment as the charge for the indictable offence;
A summary offence is related to an indictable offence if it arises out of circumstances which are the same as or connected with those giving rise to the indictable offence (s 51E(c) and (d)).

11

Summary offences: sch 3, para 6

Where a summary offence is included in the offences sent for trial, it does not appear on the indictment.
If D is convicted on the indictment, and the Crown Court agrees that the summary offence is related to the offence(s) on the indictment, D is asked to enter a plea to the summary offence.
Guilty plea: the Crown Court passes sentence in respect of the summary offence, but is limited to the powers of a magistrates' court.
Not guilty plea: ‘the powers of the Crown Court shall cease in respect of the summary offence’ (unless the prosecution indicate they would not desire to submit evidence in respect of the summary offence, in which case the court dismisses it).
Note the possibility of trial by the Crown Court judge sitting as a District Judge (under the Courts Act 2003, s 66).

12

Application to dismiss charge: sch 3, para 2

A person who has been sent for trial may apply to the Crown Court for the charge(s) to be dismissed.
The application may be made, orally or in writing, at any time after he has been served with copies of the documents containing the evidence on which the charge(s) are based but before he is arraigned.
The judge must dismiss the charge (and quash any count in the indictment relating to it) if it appears that ‘the evidence against the applicant would not be sufficient for him to be properly convicted’.
Where a charge has been dismissed in this way, no further proceedings may be brought on that charge except by means of the preferment of a voluntary bill of indictment (i.e. an application to a High Court judge).

13

Summary offences: sch 3, para 6

Where a summary offence is included in the offences sent for trial, it does not appear on the indictment.
If D is convicted on the indictment, and the Crown Court agrees that the summary offence is related to the offence(s) on the indictment, D is asked to enter a plea to the summary offence.
Guilty plea: the Crown Court passes sentence in respect of the summary offence, but is limited to the powers of a magistrates' court.
Not guilty plea: ‘the powers of the Crown Court shall cease in respect of the summary offence’ (unless the prosecution indicate they would not desire to submit evidence in respect of the summary offence, in which case the court dismisses it).
Note the possibility of trial by the Crown Court judge sitting as a District Judge (under the Courts Act 2003, s 66).

14

Application to dismiss charge: sch 3, para 2

A person who has been sent for trial may apply to the Crown Court for the charge(s) to be dismissed.
The application may be made, orally or in writing, at any time after he has been served with copies of the documents containing the evidence on which the charge(s) are based but before he is arraigned.
The judge must dismiss the charge (and quash any count in the indictment relating to it) if it appears that ‘the evidence against the applicant would not be sufficient for him to be properly convicted’.
Where a charge has been dismissed in this way, no further proceedings may be brought on that charge except by means of the preferment of a voluntary bill of indictment (i.e. an application to a High Court judge).

15

Drafting the indictment

Usually done by CPS.
The wording for particular offences can be found in Blackstone’s and Archbold.
An indictment must contain at least one ‘count’.
Each count must contain:
‘statement of the offence’: describes the offence in ordinary language and identifies any legislation that creates it, and
‘particulars’: the conduct constituting the commission of the offence, making clear what the prosecutor alleges against the defendant.
See Crim PR r.10.2(1).

16

Choosing the counts on the indictment

The counts on the indictment are usually the same as the charges sent for trial by the magistrates’ court.
However, the prosecution can:
substitute a different offence, or
add any other count which:
is disclosed in the evidence served on D and on the court,
is an indictable offence (this includes either-way offences); and
can properly be joined in the same indictment under rule 10.2(3) – same facts/series of similar offences (R v Lombardi [1989] 1 WLR 73).

17

Serving the indictment: rule 10.1

The prosecutor serves a draft indictment on the Crown Court officer.
This should be done within 28 days of service of the evidence on D and the court (but the Crown Court may extend this time).
The court officer must endorse any paper copy of the indictment made for the court with a note to identify it as the indictment served under rule 10, and the date on which the draft indictment was served on the court officer; a copy of the indictment must be served on all parties (rule 10.1(3)).
Any objection to an indictment which is based on an alleged failure to observe procedural rules must be taken before the commencement of the trial (s2(6ZA) of the 1933 Act).

18

Choosing the counts on the indictment

The counts on the indictment are usually the same as the charges sent for trial by the magistrates’ court.
However, the prosecution can:
substitute a different offence, or
add any other count which:
is disclosed in the evidence served on D and on the court,
is an indictable offence (this includes either-way offences); and
can properly be joined in the same indictment under rule 10.2(3) – same facts/series of similar offences (R v Lombardi [1989] 1 WLR 73).

19

Serving the indictment: rule 10.1

The prosecutor serves a draft indictment on the Crown Court officer.
This should be done within 28 days of service of the evidence on D and the court (but the Crown Court may extend this time).
The court officer must endorse any paper copy of the indictment made for the court with a note to identify it as the indictment served under rule 10, and the date on which the draft indictment was served on the court officer; a copy of the indictment must be served on all parties (rule 10.1(3)).
Any objection to an indictment which is based on an alleged failure to observe procedural rules must be taken before the commencement of the trial (s2(6ZA) of the 1933 Act).

20

Case study: drafting indictments

D is charged with five offences:(1) Burglary (Kwik-Shopper supermarket, London, July 2015);(2) Criminal damage (causing damage worth £1,500 while breaking in to Kwik-Shopper);(3) Theft by shoplifting (£300 camera, Speedy-Snaps Ltd, London, October 2015);(4) Theft by shoplifting (£375 laptop from Computing World, Nottingham, November 2015);(5) Witness intimidation (trying to prevent a witness from testifying about the burglary (charge (1)).
Questions to consider:
How many indictments should be drafted?
What counts should be in each indictment?

21

Joinder: Crim PR r. 10.2(3)

Counts can be joined in same indictment if all the offences:
‘Founded on the same facts’, i.e. they are
a single transaction, or
have a ‘common factual origin’: R v Barrell & Wilson (1979) 69 Cr App R 250;
OR
‘Form or are part of a series of offences of the same or a similar character’
having regard to legal and factual similarity (Ludlow [1971] AC 29);
R v Ferrell [2010] UKPC 20; [2011] 1 All ER 95.

22

What about the criminal damage charge?

Founded on the same facts as the burglary: criminal damage in order to commit the burglary.
But: the value of the criminal damage does not exceed £5,000: triable only summarily (MCA 1980, s 22).
However: CJA 1988, s 40 applies.

23

CJA 1988, s 40

Listed summary offences (incl. common assault, taking a motor vehicle without consent, driving while disqualified, criminal damage under £5,000) can appear on the same indictment as any linked indictable offence(s):
Must be founded on the same facts as, or form (part of) a series of offences with, an indictable offence;
These summary offences will appear on the indictment and will be tried by the jury.
The Crown Court retains jurisdiction to try the summary offence, even if the indictable offence is no longer before the court at the time of the trial (R v Lewis [2013] EWCA Crim 2596).

24

The witness intimidation charge

Witness intimidation is triable either way: CJPOA 1994, s 51(6), so it may be tried on indictment.
The witness intimidation would not have occurred but for the burglary, and so is founded on the same facts (i.e. has a ‘common factual origin’).
It can therefore appear on the ‘burglary’ indictment.
See R v Barrell & Wilson (1979) 69 Cr App R 250 (per Shaw LJ).

25

The two shoplifting offences

These two offences are unconnected with the burglary and so cannot be on the ‘burglary’ indictment.
Can the two shoplifting charges appear on the same indictment as each other?
Founded on same facts?
Offences of the same or a similar character?
Both shoplifting but in different places and some time apart;
So probably no.

26

Conclusion

Three indictments:
Indictment 1
Count 1: Burglary
Count 2: Criminal damage
Count 3: Witness intimidation
Indictment 2
Count 1: Shoplifting (London)
Indictment 3
Count 1: Shoplifting (Nottingham)

27

Case study: joinder of defendants

There is a fight in a public house.
D1 assaults and injures V1; and D2 assaults and injures V2.

Question: Can D1 and D2 be tried together in the Crown Court?

28

Joinder of defendants

Depends on whether the OFFENCES can be joined.
Are the two assaults founded on the same facts?
Or do they form [part of] a series of offences of the same or a similar character?
Compare R v Assim [1966] 2 QB 249.

29

Case study: misjoinder

D is charged in an indictment containing two counts, namely forgery and assault. There is no connection between these two offences.
What options are open to Crown Court?
What should happen if the two counts are tried together and D is convicted?

30

‘Misjoinder’

In the Crown Court:
R v Newland [1988] QB 402: delete the offending count(s) from the indictment (and then have the deleted charge(s) re-sent from the magistrates’ court, or seek a voluntary bill of indictment); OR
R v Follett [1989] QB 338: ‘stay’ the existing indictment and give the prosecution permission to serve new indictments out of time, each complying with r 10.2(3).
In the Court of Appeal:
Misjoinder does not nullify whole indictment, so the CA will quash the convictions only for the offences that should not have been on the indictment: R v McGrath [2013] EWCA Crim 1261.

31

Case study: severance of defendants

D1 and D2 are jointly charged with burglary. D1, when interviewed by the police, says that D2 did the burglary alone.
D2 wants to apply for a separate trial.
Question: Is his application likely to succeed?

32

Severance

On the facts of the case study, joinder of the defendants was correct.
But: there is a discretion to ‘sever’ them (i.e. to order separate trials).
Presumption in favour of joint trial:
R v Grondkowski & Malinowski [1946] KB 369;
R v Lake (1976) 64 Cr App R 172.
Discretion unlikely to be exercised in favour of D2: R v Miah [2011] EWCA Crim 945 (it is only in ‘very exceptional’ cases that a judge should exercise his judgment in favour of ordering separate trials; ‘commonplace’ factors are not enough).

33

R v Arthur Adams

You are instructed to represent Arthur Adams, who has been sent to the Crown Court for trial on a single charge, namely that he ‘stole from Jane Brown a handbag, containing various items including cosmetics and £50 in cash’.

John Smith was in the crowds near Trafalgar Square at around 11 p.m. on New Year’s Eve, when he was jostled by someone. Immediately afterwards, he felt inside his jacket pocket and discovered that his wallet was missing. He reported its loss to a police officer. Around 1 a.m. New Year’s Day, Jane Brown was in Trafalgar Square when her handbag was violently wrenched from her by a man. Soon after, she thought she saw the same man among the crowds and pointed him out to a police officer, who arrested him. The man arrested was Arthur Adams. He was later searched and found to have £300 in cash (untraceable to either John Smith or Jane Brown), and a wallet containing two credit cards in the name of John Smith. Mr Smith later confirmed this was his wallet.

When interviewed under caution, Arthur Adams made a statement to police stating that:

(i) he found the wallet on the ground about half an hour before his arrest and had been waiting for a suitable chance to hand it to a police officer;
(ii) the wallet was empty of cash when he found it; and
(iii) he was not the person who took Jane Brown’s handbag – she was mistaken in her identification of him.

The prosecution have now drafted an indictment which contains two counts:

Count 1: theft of the handbag and contents (property of Jane Brown);
Count 2: theft of wallet and contents (property of John Smith).



Question (a):
Is it proper to include these two counts in the indictment?

[

34

Question (b):
If joinder of the two counts is proper but the defence make an application to ‘sever’ the indictment –
(i) What arguments are the defence likely to put forward in support of the application to sever?
(ii) What arguments are the prosecution likely to use to oppose that application?
(iii) What decision is the judge likely to reach?

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