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Prosecuting Multiple Offending: Two Stage Trials

Content

This guidance describes the circumstances in which a two-stage trial under sections 17- 21 of the Domestic Violence, Crime and Victims Act 2004 would be appropriate, and the procedure to follow.

Introduction

Sections 17 - 21 of the Domestic Violence, Crime and Victims Act 2004 (the 2004 Act) provide for the prosecution of certain cases of multiple offending in a two stage trial process, the second stage of which may take place without a jury. These provisions came into force on 8 January 2007 and the new procedure can be used, where appropriate in any criminal proceedings commenced on or after that date.

In the cases of R v Canavan; R v Shaw; R v Kidd [1998] 1 W.L.R. 604; [1998] 1 All E.R. 42 the Court held that the proceeding by way of 'specimen' counts in cases of multiple offending was incorrect, and that sentencing for offences that had neither been admitted nor proved was contrary to fundamental principle.

The two-stage trial procedure resolves this by allowing for the trial of 'linked offences' by a judge alone following conviction by a jury of a 'sample' offence.  In this way a greater number of counts may be tried than would be reasonably practicable if all the allegations had to be tried by a jury.

The procedure may encourage defendants, either on initial arraignment or after conviction of a number of sample counts, to plead guilty to any linked offences of which they are also guilty.

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Relevant Offences

The two stage trial procedure is aimed at the prosecution of a large number of separate offences, each properly charged as a distinct individual count. It is intended for repeated offending of a similar nature or a sequence of offending which cannot be properly characterized as continuing or continuous offences.

Examples might include: 'campaigns' of theft, burglary or fraud; using the same method to steal (individually) small sums over a period of time; or multiple instances of making indecent images of children. 

Where the evidence does not clearly distinguish between separate incidents, the 'rolling up' of more than one criminal action into a single count is provided for by Rule 14.2(1) of the Criminal Procedure Rules 2011 and Part IV.34.10 of the Consolidated Criminal Practice Direction

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Overview of the Trial Process

The first stage of the trial will take place before judge and jury in the normal way, on an indictment containing sample counts. In the event of conviction on one or more counts, the second stage of the trial may follow, in which the defendant would be tried by judge alone. The judge will then determine guilt in respect of any further offences that are linked to any sample count of which the defendant has been convicted .

The judge at the second stage will not be bound by the conviction of the jury at stage one but will be free to come to his or her own view of the evidence, even if that conclusion may be thought to be inconsistent with that of the jury with which, on occasions, the judge will undoubtedly find him or herself in disagreement. There will be no presumption of, or necessary expectation of, further findings of guilt.

The judge is likely to be aware not only of the conviction but also the evidence that led to it (the expectation being that wherever possible the same judge should conduct both stages of the trial). 

Provided the prosecutor has correctly identified the links between the offences at stages one and two, the defendant may have little to gain by denying further incidents of similar offending behaviour in the absence of a genuinely arguable defence to the particular counts.

A defendant will therefore have a strong incentive to try to obtain whatever element of credit remains for a guilty plea at the end of the jury stage.

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The Application

Only the prosecutor can apply for a two stage trial. Applications must be made by the prosecution at a preparatory hearing to a judge of the Crown Court. Detailed provisions regarding the procedure for preparatory hearings are set out in Criminal Procedure Rules 2011 Part 15 and an appropriately amended form of application can be found in Annex D of the Consolidated Criminal Practice Direction.

In summary the prosecutor must:

apply in the form set out in the forms section of the Consolidated Criminal Practice Direction; 

include a short explanation of the reasons for applying; and

serve the application on the court officer and all other parties

Unless extra time is granted by the Court, applications for a preparatory hearing must be made within 28 days of: 

the committal of the defendant;

the consent to the preferment of a voluntary bill of indictment in relation to the case

the service of a notice of transfer; or

where a person is sent for trial, the service of copies of the documents containing the evidence on which the charges are based.

The sooner the application is made, the better because both sides need to know as soon as possible how to prepare their case. To this end the prosecutor should consider approaching the court to see if the trial judge can be nominated at an earlier stage than usual to facilitate an early preparatory hearing. In preparing to make an application to the judge for an order under section 17(2) for a two stage trial the prosecutor should prepare a draft indictment in accordance with the guidance above and serve it in advance of the application on the court and the representatives of the defendant.

Prosecutors should refer to Part IV.34.4 to Part IV.34.14 of the Consolidated Criminal Practice Direction for assistance in charging several incidents of the commission of a single offence in a single count.

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The Preparatory Hearing

Determination of applications for two-stage trials will be by way of an oral hearing at which the parties must be given an opportunity to make representations with respect to the application (section 18(4)). Difficulties may arise in using the preparatory hearing to apply for a two stage trial. This is because of the requirement to arraign a defendant at the commencement of the preparatory hearing before the application which will determine the proper form of the indictment has been heard.

Part IV.34 of the Consolidated Criminal Practice Direction provides for the following procedure to be followed:

the prosecutor will prepare a draft two stage indictment and sends it to the court and defence with an application for a preparatory hearing (see Drafting the indictment below)

at the beginning of the preparatory hearing the defendant is asked to plead to the counts on Part 1 only

the prosecutor can then apply for a two stage trial

if the application is successful, the prosecutor then prepares an abstract of the indictment for the use of the jury (in effect, those counts on Part 1 to which a not guilty plea has been entered)

if the application is unsuccessful, the prosecutor applies to amend the two-part indictment by removing such counts in Part 2 that would make a jury trial impractical, and reverting to a standard form indictment; arraignment on the outstanding counts can take place at the preparatory hearing or later

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Issues for Determination

Three conditions must be fulfilled before the judge can make an order under section 17(2):

a) the number of counts in the indictment is likely to mean that a trial by jury involving all of those counts would be impractical;

b) if an order under section 17(2) is made, each count or group of counts to be tried by jury can properly be regarded as a sample of other counts which would be tried without a jury; and

c) it is in the interests of justice for an order under section 17(2) to be made.

In deciding whether or not to make an order under section 17(2) the judge will have to be satisfied that the number of counts which would otherwise have to be included in the indictment, in order for the defendant to be sentenced appropriately if convicted, would be so large that a manageable jury trial would not be possible. In determining this, the judge must have regard to any steps which might reasonably be taken to make the trial of all the allegations by a jury a practical option (i.e. any measures that would negate condition (a) above).

A step is not to be regarded as reasonable if it could lead to the possibility of a defendant in the trial receiving a lesser sentence than would be the case if that step were not taken (section 17(7)). Prosecutors who come under pressure to drop some potential charges merely to avoid the possibility of a two stage trial being required will be able to rely on this clear expression of Parliament's intention.

Condition (b) above is likely to be satisfied if the sample counts and linked offences can be established such that the evidence on and/or conviction of each sample count would be admissible on each of the offences in the second part of the indictment that are linked to that sample count and vice versa. Issues of cross-admissibility would be determined by reference to the law of evidence as amended by the relevant provisions of the Criminal Justice Act 2003

Once the first two conditions are met the judge, having considered any representations that the parties wish to make, must decide whether it would be in the interests of justice for the defendant to be tried under the two stage procedure. Primary among the matters which will inform the question of the interests of justice is whether it is a case which, prior to Kidd, could have been dealt with by way of sample count.

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Appeals from the Preparatory Hearing

If the judge is satisfied that all three conditions are fulfilled he or she may make an order for the trial to take place on the basis that the trial of some, but not all, of the counts included in the indictment may be conducted without a jury. Either party may appeal the decision of the judge at the preparatory hearing (section 18(5)). The procedure to be followed is set out in Criminal Procedure Rules 2011 Part 66.

Leave of the judge or of the Court of Appeal is required. Section 35(2) of the Criminal Procedure and Investigation Act 1996 provides that the judge may continue a preparatory hearing notwithstanding that leave to appeal has been granted but the preparatory hearing cannot not be concluded until the appeal has been determined or abandoned.

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Drafting the Indictment

For general guidance see Drafting the Indictment elsewhere in legal guidance.

The proper form of indictment to be used in a two stage trial is prescribed in Part 14 of Annex D to the Consolidated Criminal Practice Direction, and is reproduced at the end of this guidance in Annex A.

A count is a statement of the offence that describes the offence in ordinary language, and identifies any legislation that creates it.    The counts must be numbered consecutively.  The particulars must make it clear what the prosecutor alleges against the defendant.

Those offences which the prosecutor proposes should be tried by the jury as sample counts should be set out in Part One of the indictment. The linked offences should be placed in 'Part Two' in sections as shown. 

The offences in Part Two of the indictment must be listed consecutively in separate sections, each section linked to a sample count in Part One of the indictment.  For example, the first fifteen offences in the second part of the indictment might be linked to count one, the next ten to count two, and so on. This can be achieved by the use of sub-headings, so that offences in Part Two are listed beneath the appropriate sample count number. 

The counts in Part Two should be numbered consecutively 1.1, 1.2, 1.3 etc for counts associated with count one;  2.1, 2.2,  2.3 etc for counts associated with count two, and so on.

In the first stage of the trial there will be a conviction (or acquittal) on a sample count at the first stage of the trial.  On conviction on a sample count the judge is able to proceed, in stage two of the trial, to conduct a trial without a jury on the linked counts in Part Two of the indictment.

It is vital that the draft indictment used when applying for a two-stage trial makes it clear which counts provide a sample of which offending.

The signature block for the officer of the court should be placed at the end of Part Two to make clear that the indictment and, indeed, the trial based upon it is a single entity, albeit consisting of two parts.  The ordinary rules of drafting apply otherwise to both parts of the two part indictment.

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The Trial

Stage One

Where a two-stage trial is ordered the first part of the indictment will be tried in the usual way by the jury. At the conclusion of stage one of the trial on the example counts the jury will return their verdict or verdicts in the normal way. In order for there to be any question of stage two of the trial taking place there must have been a conviction on at least one sample count to which other alleged offences are linked in Part Two of the indictment.

Where there has been a conviction on one or more sample counts the defendant will normally be arraigned on the counts on Part Two (unless this has already been done).  A second stage trial will not be required if the defendant pleads guilty to all the linked offences, or to sufficient for the prosecution to wish to offer no further evidence in relation to the rest. In such a case the court would proceed to sentence the defendant for all the matters upon which he or she had been convicted or which have been admitted.

The defendant would, of course, be entitled to some credit in sentence for the pleas of guilty but less than if they had been at an earlier stage. There is no requirement that the judge should, at the end of stage one, give any early indication of sentence on the matters for which the defendant has been convicted.

Offences on part two of the indictment which are linked to sample counts on part one that have been dismissed by the jury may be subject to an ordered acquittal. This is a presumption, rather than an invariable rule, and will depend on the circumstances of the acquittal by the jury.

It may be appropriate on occasions for the prosecutor to invite the court to allow the linked charge or charges to "lie on the file" on the usual terms. Where the court so orders, further prosecution of any such charge cannot form part of the second stage of the current two stage trial.

The decision whether to proceed to trial on the second part of the indictment is essentially one for the prosecution (see Attorney General's Reference (no. 2 of 2000 [2001] Cr App R 503. However, the prosecution would not usually seek to proceed with further counts if assured by the judge that sufficient convictions and/or admissions had been obtained for the purposes of sentence.

Similarly, if at the conclusion of the first stage trial the judge indicates that he or she would be likely to acquit the defendant of outstanding matters, there may be little point in the prosecution pursuing the second stage trial.

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Stage Two

Where a stage two trial is necessary the normal rules of evidence and procedure will apply and the court will have all the powers, authorities and jurisdiction which it would have had if the trial had been conducted with a jury (including power to determine any question and to make any finding which would be required to be determined or made by a jury). The prospect of the judge recalling some of the witnesses who gave evidence in the first stage of the trial is not excluded by the statutory framework. However, it is anticipated that this would be rare particularly where it has been possible to list the second part of the trial before the same judge.

In the event that the second stage of the trial results in any further convictions the judge is required to  give a judgment which states the reasons for the conviction at, or as soon as reasonably practicable after, the time of the conviction. The judge will then proceed in the normal way to sentence on the totality of the counts proved in both parts of the trial. 

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Defendants Found Unfit to Plead

The provisions for trial by judge alone cannot be used after the point at which a finding has been made that the defendant is unfit to plead on the grounds of insanity.

Section 19 of the 2004 Act preserves the requirement under section 4A of the Criminal Procedure (Insanity) Act 1964 that the determination of factual (as opposed to legal) responsibility for the alleged offences is an issue for a jury in every case. This will continue to apply even in cases which were originally set down to be tried using the two stage trial procedure of the 2004 Act. 

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Annex A

Specimen Form of indictment for use where an order is made under section 17(2) of the Domestic Violence, Crime and Victims Act 2004

(Criminal Procedure Rules, Part 14)

INDICTMENT

IN THE CROWN COURT AT ..................................

THE QUEEN v......................................................................


[Defendant] is charged as follows: -


PART 1


Count 1
STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE


Count 2
STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE


Count 3
STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE


etc.


PART 2

Section 1: counts associated with Count 1 in Part 1 of this indictment.

Count 1.1
STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE


Count 1.2
STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE


Count 1.3
STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE


etc.


Section 2: counts associated with Count 2 in Part 1 of this indictment.

Count 2.1
STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE


Count 2.2
STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE


Count 2.3
STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE


etc.


Section 3: counts associated with Count 3 in Part 1 of this indictment.

Count 3.1
STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE


Count 3.2
STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE


Count 3.3
STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE


etc.

 

Date ...............................               ...................................

Crown Court officer

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