Prosecuting Multiple Offending: Two Stage Trials

Updated: 7 August 2018|Legal Guidance

Overview

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.

The two-stage trial procedure allows 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.

The two-stage trial procedure is aimed at prosecutions 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 characterised as continuing or continuous offences. The use of this power is likely to be appropriate where justice cannot be done without charging a large number of separate offences and the allegations against the defendant appear to fall into distinct groups by reference to the identity of the victim, the dates of the offences or some other distinction in the nature of the alleged offending conduct.

Examples  might  include: ‘campaigns’ of theft, burglary or fraud; using the same method to steal 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 10.2(2) of the Criminal Procedure Rules 2015 and Part II 10.A.1 of the Consolidated Criminal Practice Direction.

Overview of 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, where the defendant is tried by judge alone. The judge will make a finding in respect of any further offences that are linked to any sample count of which the defendant has been convicted.

There is no presumption or expectation of further findings of guilt and in this way the judge at the second stage is not bound by the conviction of the jury at stage one. The judge is free to come to his or her own view of the evidence.

The expectation is that, wherever possible, the same judge should conduct both stages of the trial. In the absence of a genuinely arguable defence to particular counts, a defendant may seek to take advantage of any credit remaining for entering guilty pleas to the stage two counts.

The application

Only the prosecutor at a preparatory hearing before the Crown Court can apply for a two-stage trial.

Detailed provisions regarding the procedure for preparatory hearings are set out in Criminal Procedure Rules 2015 Part 3.4 onwards. The suggested procedure for the application can be found in the Criminal Practice Direction Part 10A.15 - 10A.20.  A specimen form of indictment can be found in Annex D of the Consolidated Criminal Practice Direction, which is set out at the end of this Guidance. The prosecutor must:

  • Complete Part One and Part Two of the draft indictment, as set out in the forms section of the Consolidated Criminal Practice Direction;
  • Include a short explanation of the reasons for applying;
  • Serve the application on the court officer and all other parties.

Applications for a preparatory hearing must be made as soon as reasonably practicable and, in any event, not more than 14 days after the defendant pleads not guilty. Both prosecution and defence should have as much notice as possible, in order to effectively prepare their cases.

It may assist if the prosecutor approaches the court and asks if the trial judge can be nominated at an earlier stage than usual to facilitate an early preparatory hearing.

The prosecutor should prepare a draft indictment with Part One and Part Two counts and serve it with an application under Crim PR 3.15 for a preparatory hearing on the court and the representatives of the defendant, together with brief explanation of the reasons for making the application.

It is essential that the prosecution makes it clear what the association is between those counts to be tried by a jury and those counts that it is proposed should be tried by the judge alone, if the jury convict on at least one count of the former.

At the start of the preparatory hearing the defendant will be arraigned on all the counts in Part One of the indictment. Arraignment on the counts in Part Two need not take place until after there has been either a guilty plea to or a finding of guilt on an associated count in Part One of the indictment.

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

  1. The number of counts in the indictment is likely to mean that a trial by jury involving all of those counts would be impractical;
  2. If an order under Section 17(2) were made, each count or group of counts to be tried by jury can be regarded as a sample of counts which could accordingly be tried without a jury; and
  3. 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 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 (1) above).

Section 17(7) states that a step is not to be regarded as reasonable if it could lead to the possibility of a defendant receiving a lesser sentence than would be the case if that step were not taken. Prosecutors who come under pressure to drop some potential charges, merely to avoid the possibility of a two-stage trial being required, should rely on this provision.

Condition (2) above is likely to be satisfied if the evidence for 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 rules of evidence and the relevant provisions of the Criminal Justice Act 2003

If, having determined that the first two conditions are met and having considered any representations the parties make, the judge will decide whether it would be in the interests of justice for the defendant to be tried under the two stage procedure.

If the application is successful, the prosecutor should prepare an abstract of the indictment for the use of the jury. This will consist of the counts on Part 1 of the indictment to which there have been not guilty pleas.

If the application is unsuccessful, the prosecutor may apply to amend the two-part indictment to remove from it any counts in Part 2 that would make a jury trial on the whole trial impractical and revert to a standard form indictment.

Arraignment on the outstanding counts can take place at the preparatory hearing or at a future hearing.

Appeals from the Preparatory Hearing

Either party may appeal the decision of the judge at the preparatory hearing (Section 18(5) of the 2004 Act. The procedure to be followed is set out in Criminal Procedure Rules 2015 Part 37

Section 35(2) of the Criminal Procedure and Investigations Act 1996 provides that the judge may continue a preparatory hearing notwithstanding that leave to appeal has been granted. However, the preparatory hearing cannot not be concluded until the appeal has been determined or abandoned.

Drafting the Indictment

For general guidance, please 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.

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’.

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 linked to count one, the next ten to count two, and so on. Sub-headings can be used so that offences in Part Two are listed beneath the appropriate sample count number.

The counts in Part Two should be numbered consecutively in the following way: 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.

If there is a conviction on a sample count in Stage One the judge will proceed to Stage Two of the trial and conduct a trial without  a jury on the linked  counts in Part Two of the indictment.

It is therefore vital that the draft indictment submitted with the application for a two-stage trial makes the link between the sample counts in Part One and the counts in Part Two very clear.

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 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.

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 sample counts the jury will return their verdict or verdicts in the normal way. In order for stage two of the trial to take place, there must be a conviction on at least one sample count to which other alleged offences are linked in Part Two of the indictment.

If there is a conviction on one or more sample counts the defendant will normally be arraigned on the counts on Part Two. A second stage trial will not be required if the defendant pleads guilty to all the linked offences, or to sufficient counts 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 for which there is a conviction or a guilty plea.

The defendant would 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 in Part Two of the indictment, which are linked to sample counts in 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 orders this, further prosecution of any such charge cannot form part of the second stage of the current two-stage trial.

The decision as to whether to proceed to trial on the second part of the indictment is one for the prosecution (see Attorney General’s Reference (no. 2 of 2000) [2001] Cr App R503). However, the prosecution should consider whether there are sufficient convictions and/or admissions for the purposes of sentence before seeking to proceed to trial on further counts.

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, the prosecution should consider the merit in pursuing the second stage trial.

The Trial: 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 judge is permitted under the statutory framework to recall any of the witnesses who gave evidence in the first stage of the trial. However, it is anticipated that this would be rare, particularly so where the same judge hears both stages of the trial.

If 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. Section 19(4)(b) of the 2004 Act states that the date of the judgement is deemed the relevant date for the purposes of service of a notice of appeal.

The judge will then proceed in the normal way to sentence on the totality of the counts proved in both parts of the trial.

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(7) 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.

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

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