At the Crown Court
- Following Allocation to the Crown Court
- Plea and Trial preparation hearings
- Complex cases
- Advance sentence indications
- Trial
Following Allocation to the Crown Court
1. Your legal adviser should instruct a barrister (counsel) to draft the indictment, a copy of which you should receive and check for accuracy. The Crown Court must receive the indictment from you within 28 days of the sending of the case, unless an extension of time has been granted.
2. You should obtain witnesses' dates to avoid for the next six months. This information will be needed at the Plea and Trial Preparation Hearing (see below).
3. Your legal adviser will usually arrange a case conference with counsel. Counsel will not normally speak directly to witnesses other than experts and you (see Pre-Trial - Attendance of witnesses[166]). You may be asked to attend the conference.
4. Additional evidence may be served on the defence and the court after the case has allocated to the Crown Court for trial. A notice of additional evidence must accompany it.
5. Your legal adviser must instruct an advocate to appear in the Crown Court unless s/he is a higher courts advocate and able to present the case in the Crown Court. In every case, approval must first be obtained from Legal Adviser's Office for a particular advocate to act in the Crown Court or above.
6. Where a defendant indicates that s/he will plead guilty to some charges if others are withdrawn, you should refer to the guidance in the section Discontinuing a prosecution[167].
Plea and Trial Preparation Hearing
7. The first hearing at Crown Court after the case has been sent by the Magistrates is the Plea and Trial Preparation Hearing ("PTPH"). A PTPH takes place in every such case in the Crown Court, and its purpose is to ensure that all necessary steps have been taken in preparation for trial and sufficient information has been provided for a trial date to be arranged. The judge is required to exercise a managerial role with a view to progressing the case.
8. There is a PTPH form that must be completed and made available for the Court at that hearing. In addition, the parties are expected to have discussed its contents in advance of the hearing.
9. The expectation is that the PTPH will be the only hearing in advance of the trial unless it is specified otherwise or certain conditions apply1. Usually being the only hearing before trial, it is expected arraignment will occur unless there is good reason why it should not. In order for this to happen, the indictment should have been lodged seven days before the PTPH2.
10. If there is a not guilty plea then a trial date will be set and the issues for trial will be determined. The judge will set a timetable for necessary pre-trial preparation.
11. You should always be in a position at the PTPH to provide the court with the witnesses' dates to avoid. You must also be prepared to raise any difficulties you have in complying with the prosecution's disclosure obligations under the Criminal Procedure and Investigations Act 1996 and be ready to put forward a reasonable timetable for resolving those difficulties3.
12. When the trial date is fixed, you should inform the witnesses. You should also notify the Press Office.
13. The Crown Court will normally send a notice of fixture, which you should forward to your legal adviser immediately.
14. Counsel will specify the contents of the bundle of evidence for the jury. In a case with one defendant, you should prepare 10 copies of this. Where there is more than one defendant, you will need a further two bundles for each additional defendant. The bundles should be brought to court on the first day of the trial.
15. You may be asked to obtain further statements at court and should have statement forms with you. You should also ensure you have spare copies of the bundles for the court and the jury, and that you bring all non-documentary exhibits with you to court.
16. Remember that you are responsible for the attendance of witnesses and you will need to deal with any witnesses' expenses.
17. You should supply details of your costs, including witness expenses, to your legal adviser well in advance of the hearing, so that a costs schedule may be prepared.
Complex cases
18. Complex cases that are likely to go to the Crown Court and last more than four weeks should be managed in accordance with the Protocol for the control and management of heavy fraud and other complex criminal cases4, which sets out best practice and gives guidance to investigators, prosecutors, defendants and judges.
19. Legal Adviser's Office (LAO) or a solicitor agent will manage cases that fall within the Protocol, the key points of which are as follows:
- Interviews with suspects and witnesses should be managed effectively to ensure that they are relevant, well structured and of a length which can be properly presented to the court at trial. Interviewees should be provided in advance with relevant information, such as documents you intend to refer to during the interview. A well structured interview will prevent time being lost in court;
- Disclosure of material to the defendant should be made in an effective and time efficient manner. Only those documents that meet the test for disclosure (ie that assist the defence or undermine the prosecution) should be disclosed; the defence should not be swamped with all the documents the prosecution holds in relation to the case. Evidence schedules should also be prepared as early on as possible. The judge will engage in active case management to ensure that the process of disclosure does not cause the case to overrun;
- Prosecuting lawyers should be involved in the investigation as soon as it appears that a complex or lengthy trial is likely. The criteria for referring cases to LAO for independent legal oversight should be considered at the outset of the investigation and kept under consideration throughout;
- Any case that may last more than eight weeks should be referred by the prosecuting lawyer to his/her supervisor to ensure that it is run as smoothly and efficiently as possible. If the case is likely to last more than six months, it must be referred to the Head of Litigation in LAO; and
- Once the charges (informations) have been laid, the appointed judge is required to take a pro-active role in managing the case. HSE may be required to justify the length of the case and demonstrate that it could not be conducted in a more time-efficient manner.
Advance sentence indications
20. In cases before the Crown Court, the defence can request an indication from the judge of the likely maximum sentence that would be imposed should the defendant decide to plead guilty (often referred to as a 'Goodyear indication') 5. The request can be made at any stage of the proceedings, including at trial, although it is most likely to be made at the plea and case management hearing (see above).
21. An indication can only be sought by the defence and should not normally be given until the basis of the guilty plea has been agreed with the prosecution (for example, by way of an agreed Friskies schedule with aggravating, mitigating and other factors relevant to sentence) or where the judge has concluded that s/he can deal with the case without the need for a Newton hearing6 – see The sentencing hearing[168].)
22. If a sentence indication is sought, the prosecution advocate must not say anything which may create the impression that the indication has the support or approval of the Crown. The prosecution should, however, ensure that the judge has access to all the evidence relied on by the prosecution, including any victim personal statement and details of any relevant previous convictions.
23. As there is no 'tariff' for sentencing in health and safety cases, the prosecution should also assist the judge by drawing attention to the key principles that underpin sentencing in such cases, especially the need for corporate defendants to provide the court with accounts or other financial information if the judge is not to conclude that they are in a position to pay any fine s/he sees fit to impose7. The judge might reserve his/her position until such time as s/he feels able to give an indication, for example, on receipt of financial information or a pre-sentence report.
24. In giving an advance sentence indication, the judge is confined to the maximum sentence that s/he could impose if the guilty plea were actually entered at that stage of proceedings. This means that the indicated sentence may include a reduction for pleading guilty. The level of reduction will depend on the stage of proceedings that was reached before the indication was sought8.
25. The judge may decline to give an advance indication of sentence but, once given, the court is bound not to exceed the sentence previously indicated9. The defendant is then given a "reasonable opportunity" to decide whether to plead guilty or continue with proceedings on the basis of a not guilty plea, in which case the indication will cease to have effect.
Trial
26. The trial will ordinarily progress as follows:
- Counsel for the prosecution opens his case
- Witnesses for the prosecution
- Counsel for the defence may open his case
- Witnesses for the defence
- Counsel for the prosecution sums up his case
- Counsel for the defence sums up his case
- Summing up to the jury by the judge
- Jury retires and returns with its verdict
27. At the close of the prosecution case, the defence has an opportunity to make a submission to the judge (in the absence of the jury) that there is no evidence upon which, if the evidence adduced were accepted, a reasonable jury, properly directed, could convict. If, after hearing submissions from both counsel, the judge agrees with the defence submission, s/he will stop the case by directing the jury to acquit the defendant. If the judge does not accept the defence submission, proceedings progress to the defence case (if any).
28. If the jury fails to reach a verdict, a decision needs to be taken about seeking a retrial. There is a presumption that the prosecution will seek a re-trial where a jury fails to agree on a verdict at the first trial. The prosecution would have to consider whether there is still a realistic prospect of conviction, whether any material changes occurred during the course of the first trial and whether witnesses were willing, and available, to give evidence again. Public interest factors to take into account would include the seriousness of the offence, the length of time since the offence was committed, the likely delay until the case can be re-tried, the likely sentence if the defendant is ultimately convicted and the interests and views of any victim or deceased's family.
29. The prosecution will usually seek an adjournment to allow consideration of the question of a retrial. The prosecuting advocate should prepare a written opinion and you should seek advice from Legal Adviser's office. If the application for an adjournment is refused, prosecuting advocates should request a re-trial. It should be made clear to the court and the defence that the decision will be subject to review.
30. Where two juries fail to reach a verdict, the presumption is that the prosecution will not seek a third trial. The courts power to order a third trial had to be exercised with extreme caution and will be applied to a very small number of cases where the crime was extremely grave and where the evidence that the defendant had committed the crime, on any fair-minded objective judgment, remained very powerful.10 This test is unlikely to apply to an HSE case but you should seek advice from Legal Adviser's office.
Footnotes
- CPD 3A.21 and CrimPR r 3.13. Some of the conditions (Corporate Defendant and Expert Evidence) are likely to feature in health and safety cases. Back to reference of footnote 1
- CPD 3A.16. Back to reference of footnote 2
- Disclosure: Judicial protocol on the disclosure of unused material in criminal cases (December 2013), The defence is under a similar duty in relation to its own disclosure obligations. Back to reference of footnote 3
- Issued by the Lord Chief Justice of England and Wales on 22 March 2005. Back to reference of footnote 4
- The procedure for seeking an advance indication of sentence is set out in the judgment of the Court of Appeal in R v Goodyear [2005] EWCA Crim 888. See also Section D ('Sentence indications') of The Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise[169]. Back to reference of footnote 5
- Goodyear (as above), paragraph 70(a). "An indication should not be sought while there is any uncertainty between the prosecution and the defence about an acceptable plea or pleas to the indictment, or any factual basis relating to the plea. Any agreed basis should be reduced into writing before an indication is sought. Where there is a dispute about a particular fact which counsel for the defendant believes to be effectively immaterial to the sentencing decision, the difference should be recorded, so that the judge can make up his own mind." (paragraph 66). Back to the reference of footnote 6
- See The sentencing hearing[170] for further guidance on the role of the prosecution. Back to the reference of footnote 7
- Any reduction in sentence should be in accordance with the Sentencing Guidelines Council Guideline - Effect of a guilty plea. Back to the reference of footnote 8
- The advance sentence indication is confined to the maximum sentence that would be imposed if a guilty plea were tendered at that stage of proceedings; the sentencing court is not bound to impose that sentence (R v Mustafa Nour Kulah [2007] EWCA Crim 1701). A less onerous sentence may, for example, be imposed. Back to reference of footnote 9
- Regina v Bell, Court of Appeal, Criminal Division The Times January 26, 2010. Back to reference of footnote 10