Criminal Litigation SGS 16 Pre-trial

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billsykes
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210162
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Criminal Litigation SGS 16 Pre-trial
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2013-03-31 07:07:19
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Criminal Litigation SGS 16
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Criminal Litigation SGS 16
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  1. Brian is charged with an offence of wounding at Gladbury Crown Court.

    A PCMH takes place.

    Which of the following is CORRECT?

    [A] If Brian pleads guilty at the PCMH the judge must adjourn the case for sentence to be passed at a later date.

    [B] Any ruling made by the judge at the hearing will bind the trial judge. 

    [C] The Judge may rule on the admissibility of any evidence for the purposes of the trial.

    [D] Any ruling made by the Judge at the hearing may be appealed directly to the Supreme Court prior to the trial commencing.
    [C] The Judge may rule on the admissibility of any evidence for the purposes of the trial.

    Yes, s.40(1)(a) CPIA 1996
  2. Aidan is tried before Gladbury Crown Court on an indictment containing a single count of burglary. He contends that he was not a trespasser but the prosecution do not accept his original plea of ‘not guilty of burglary but guilty of the alternative offence of theft’ at the beginning of the trial.

    Which of the following is NOT a possible outcome of the trial?

    [A] The jury may return a verdict of ‘G of burglary’

    [B] If the jury acquits Aidan of burglary the judge may still proceed to sentence Aidan on his original plea of G to theft.

    [C] The jury may acquit Aidan.

    [D] The jury may return a verdict of ‘NG of burglary but G of theft’.
    [B] If the jury acquits Aidan of burglary the judge may still proceed to sentence Aidan on his original plea of G to theft.

    No, original plea not accepted therefore treated as withdrawn (Hazeltine, as above) therefore CORRECT
  3. In relation to indictments which of the following is CORRECT:

    i) The trial judge has discretion to order separate trials of defendants who have been properly joined in one indictment if he/she is of the opinion that an accused may be prejudiced or embarrassed in his/her defence by reason of being jointly tried.

    ii) An indictment may be amended to insert an entirely new offence as long as no injustice is caused to the defendant.

    iii) In determining whether a count is duplicitous, the judge will look at the wording of the count

    iv) A single count for an offence of theft may allege that several items were stolen.

    [A] i), ii), and iv)
    [B] ii) and iii)
    [C] All of the above
    [D] ii), iii) and iv)
    [C] All of the above

    i) The trial judge has discretion to order separate trials of defendants who have been properly joined in one indictment if he/she is of the opinion that an accused may be prejudiced or embarrassed in his/her defence by reason of being jointly tried. CORRECT: (Indictments Act 1915, s.5, and also the court’s inherent powers to control its own proceedings).

    ii) An indictment may be amended to insert an entirely new offence as long as no injustice is caused to the defendant. CORRECT: (Johal 1973).

    iii) In determining whether a count is duplicitous, the judge will look at the wording of the count.CORRECT: (Greenfield 1973 1 WLR 1151)iv) A single count for an offence of theft may allege that several items were stolen. CORRECT: (DPP V Merriman 1973 AC 584)
  4. Derek appears at Croydon Crown Court. The indictment before the court contains one count as follows: STATEMENT OF OFFENCE Burglary contrary to section 9 of the Theft Act 1968. PARTICULARS OF OFFENCE Derek Clifton on 2nd November 2011, entered a dwelling, namely 12 South Square as trespasser, with intent to steal therein and stole therein a video recorder and a television set.

    Which of the following statements is CORRECT?

    [A] The indictment is bad for duplicity and must be quashed.

    [B] The indictment is bad for duplicity and should be amended

    [C] The indictment is not defective

    [D] The indictment is duplicitous and so a voluntary bill of indictment must be proffered
    [B] The indictment is bad for duplicity and should be amended.

    CORRECT
  5. What section of the Criminal Procedures (Insanity) Act 1964 will the court consider when looking at the defendants fitness to plead?
    s. 4(4)

    Two doctors must also be present.

    Where the defendant is fit to plea is ultimately down to the discretion of the judge.
  6. When considering fitness to plead, who has the burden of proof?
    The burden of proof can be on counsel for the the prosecution or defence - which ever one raises the issue of fitness to plead.

    STANDARD DIFFERS:

    If prosecution raises: Beyond reasonable doubt

    If defence raises: Balance of probability
  7. What is the Pritchard Test?
    Test of fitness to plead is based on R v Pritchard. The accused will be unfit to plead if he is unable either:

    to comprehend the course of proceedings on the trial, so as to make a proper defence;

    to know that he might challenge any jurors to whom he may object;

    to comprehend the evidence; or

    to give proper instructions to his legal representatives
  8. What happens if the court finds that the defendant is unfit to plead?
    The trial continues in a different way to normal:

    The jury will be directed to consider the actus rea of the crime only.

    If the court find the defendant guilty of the actus rea, there are three possible sentences:

    1. Hospital order (mandatory for murder)

    2. Supervision order

    3. Absolute discharge
  9. What is and PCMH and what happens at one?
    Plead and Case Management Hearing

    Defendant is arraigned (charges are formally read to him) and he gives a plead to each charge.

    Judge then goes through the PCM form (80 pages or so) with counsel.

    Judge can set a date from trial
  10. When can a defendant enter a plea to a lesser offence?
    Where, on a person’s trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.
  11. What happens when a defendant offers a plead to a lesser offence?
    Counsel for the defendant will offer the lesser plea. Prosecution, it they agree, will offer no evidence post sentence.

    If the lesser plead is not accepted by the prosecution, it is implied that it is withdrawn.
  12. What is a Goodyear indication?
    • A Goodyear Hearing allows the defence to request an indication of the likely
    • maximum sentence should the defendants plead guilty.

    • Goodyear hearings can only take place if requested by the defence. And the
    • basis of the plea should be accepted by the prosecution and the defence
    • before the judge gives his indication.

    It can take place at any stage of criminal proceedings including at trial.
  13. What to joinder and serverance apply to?
    Parties and counts

    Parties: eg, the 2 suspects in a robbery

    Counts: burglary and handling stolen goods
  14. When should parties or counts be joined?
    Where they are of similar facts or of the same character.
  15. When should parties or counts be severed?
    Where they are joined, but they are not connected and should be tried separately.
  16. Who is responsible for drafting an indictment?
    Prosecution
  17. What should be written on an indictment?
    Defendants name, statement of offence, particulars of offence.
  18. You defend Kirk. At the ‘plea before venue’ hearing at the Magistrates court, he indicated a plea of Not Guilty to sexual assault, arguing that he had consent. The magistrates declined jurisdiction and the case was sent to the Crown Court. 2 weeks after the PCMH after, where Kirk pleaded not guilty to the allegation of sexual assault, the complainant, Lauren, altered her account to say that the assault involved penetration. The prosecution now seek to amend the Indictment by substituting the count of Sexual Assault with a count of Rape.


    Who is responsible for drafting an indictment?
    The prosecution counsel
  19. What is the test the court will apply in deciding whether to allow the proposed amendment to the draft indictment to reflect the change in allegation made by the complainant?
    t seems as though the test is that set out in Osieh, as approved and adopted in the case of Thompson.] Therefore the amendment does not need to be founded on facts or evidence disclosed in the papers on which the sending was based. (1 mark). The court will consider whether the accused will be unfairly prejudiced by the amendment.
  20. What arguments might the prosecution make to support their application to amend the indictment to contain a count of rape, rather than sexual assault?
    Something very similar to the original allegation was disclosed in the committal evidence (1 mark), fairness to complainant in allowing the allegation to be heard (1 mark), the allegation can be fully explored at trial still (1 mark).
  21. What arguments might the defence make to counteract the prosecution application to amend?
    Prejudice to the defendant (1 mark), the defendant now faces an indictment only offence(1 mark), therefore he now faces a much harsher penalty in the event of conviction (1 mark), the defendant has lost an opportunity to challenge the rape allegation on application to dismiss (1 mark)
  22. What is quashing the indictment?
    Where the indictment contains defects it can be quashed.

    If there is no other indictment, the defendant has no charges against him.
  23. What are special measures?
    Measures that can be taken to make the trial go more smoothly:

    Apply to U18s, people of diminished responsibility, in fear or distress, complainants of sexual offences, witnesses
  24. What types of special measures are there?
    • Screens
    • Live link
    • REmoval of wigs and gowns
    • giving evidence in private (sexual only)
    • Evidence in chief via video recording

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