Prosecuting multiple offending: Two stage trials under section 17-21 of the domestic violence, crime and victims act 2004
Introduction
Sections 17 - 21 of theDomestic 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 8th January 2007 and the new procedure can be used, where appropriate in any criminal proceedings commenced on or after that date.
The Problems Posed by the 'Kidd' Principles
The provisions in the 2004 Act are based on the recommendations of the Law Commission contained in Part IX of their report on The Effective Prosecution of Multiple 0ffending (Law Com No 277) which, in turn, was a response to the difficulties produced by the decision of the Court of Appeal in the Kidd case. Briefly stated, in Kidd the Court disapproved of the prosecution proceeding by way of 'specimen' counts in cases of multiple offending. The Court ruled that a defendant may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into account when passing sentencing. It was not open to the sentencing judge to form his own judgment of the evidence he has heard on the extent of the offending conduct beyond the instances specified in individual counts even if those were held out by the prosecution to be 'specimens' of a wider pattern of wrong doing.
This principle has since been affirmed by the Court of Appeal in a number of cases. As a result there can be a conflict between the need for a manageable trial and for the defendant to be convicted of sufficient offences to enable a sentence to be imposed which appropriately reflects the totality of the defendant's offending. The two-stage trial procedure is intended to resolve the tension between the two principles by allowing for the trial of a greater number of counts than would be reasonably practicable if all allegations had to be tried by a jury.
Perceived Benefits of the Two Stage Trial Procedure
Under the new scheme 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, at that stage, determine questions of guilt in respect of any offences linked, at a preparatory hearing, to a 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.
Nonetheless, It is hoped that the new procedure will be likely to encourage guilty 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 judge at the second stage will, of course, be aware of the conviction and may well be aware of the evidence, the expectation being that wherever possible the same judge should conduct both stages of the trial. Therefore, provided the prosecutor has correctly identified the linkages between the offences at stages one and two of the trial, the defendant who is convicted of example offences by the jury will have little to gain by denying further incidents of the same offending behaviour in the absence of a genuinely arguable defence.
Unlike a 'T.I.C.' schedule, which will only be relevant in sentencing if the defendant wants it to be, the offences on the second part of the indictment will fall to be tried immediately if denied, at the discretion of the prosecutor. So the defendant who is guilty of further offences of the same kind proved by the jury will have a strong incentive to try to obtain whatever element of credit remains for a guilty plea at the end of the jury stage.
The Type of Cases for which the Two Stage Trial Procedure is intended
In recommending this particular response to the problems posed by Kidd, the Law Commission made clear that their focus was on "allegations of repetitious offending which are not apt to be described as a continuous offence but which, prior to Kidd, could have been dealt with by means of specimen counts". It follows from this that the two stage trial process is aimed at those offences which cannot be described as continuous offences. Rather, it addresses the prosecution of large numbers of individual offences which are to be charged in individual counts and is not concerned with rolling up a series of offending into a single count. Therefore, the process does not trespass in any way upon the rule against duplicity as amended, see Rule 14.2(2) of the Criminal Procedure Rules (4th Update) and Part IV.34.10 of the Consolidated Criminal Practice Direction.
The two stage process, then, is intended for use in respect of cases of frequently repeated offending of a similar nature, rather than wide ranging, complex and factually differentiated cases. Common examples might include patterns of sexual abuse which targeted the same victim or victims over many years, multiple offences of making indecent images of children, or sustained campaigns of theft or fraud repeatedly using the same modus operandi over a lengthy period of time, and so on.
As a general guide the new procedure will be best suited to the type of case where it would be unthinkable that any judge would order separate trials in relation to the activity covered in Part Two of the indictment for any reason other than overloading of the indictment, or where it would be inconceivable that a judge might direct a jury that they should disregard the evidence relating to the sample offence when considering liability in respect of the linked offences in the second part of the indictment. For this reason the two stage procedure should only be used in those cases where the similarity between the sample and the linked charges is such that the evidence will be susceptible to being presented in schedule form, or given by a small number of witnesses or, if given by a number of individuals, gone through relatively rapidly.
Drafting the Indictment
The proper form of indictment to be used in a two stagetrial is prescribed in a new Part 14 of Annex D to the Consolidated Criminal Practice Direction, which is reproduced at the end of this guidance.. The draft bill is a single document which is divided into two parts and when taken as a whole it should include all the alleged offences disclosed in the committal bundle (or prosecution case in relation to 'sent' cases) on which the Crown seeks a verdict. Thus it will contain sufficient counts to reflect the full extent of alleged offending in order to allow the judge adequate sentencing powers in the event of a conviction. Those offences which the prosecutor proposes should be tried by the jury as sample counts should be set out in the usual consecutive list in Part One of the indictment. The linked offences will have been pre-selected and placed in 'Part Two' in sections as shown.
The offences in Part Two of the indictment will be listed consecutively and will be placed in sections with each section linked to a specified 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 or so, linked 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. Those counts should be numbered 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. Since it is only offences in respect of which there has been a conviction on a sample count at the first stage of the trial, that the judge is able to proceed, in stage two of the trial, to conduct a trial without a jury, it is of crucial importance that the draft bill of indictment used when making application for a two-stage trial makes 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 to both parts of the indictment.
The Procedure for applying for a Two Stage trial
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 Rule (Crim PR) 15 and an appropriately amended form of application can be found in Annex D of the Consolidated 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 you 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 bill of indictment in accordance with the guidance above and serve it in advance of the application on the court and the representatives of the defendant.
Taking Pleas at 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 (s.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.
To remedy this, Part IV.34 of The Consolidated Criminal Practice Direction has been amended. The effect of the amendment is that, in relation to any preparatory hearing that is held on or after 30thNovember 2007 for the purposes of an application under section 17(1) DVCV Act 2004, the following procedure is 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.
- On receipt the appropriate Court Officer signs the indictment at the end of Part 2.
- 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 NG 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.
Issues for Determination at the Preparatory Hearing
Three conditions must be fulfilled before the judge can make an order under section 17(2):
- The number of counts in the indictment is likely to mean that a trial by jury involving all of those counts would be impractical;
- 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
- 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).
Significantly, however, 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 (s. 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.
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 (s.18(5)). The procedure to be followed is set out in Crim PR 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 after the appeal has been determined or abandoned.
Procedure at the End of Stage One of the Trial
Where a two-stage trial is ordered the first part of the indictment will be tried, as at present by the judge with a 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.
Part Two offences linked to sample counts on Part One of the indictment dismissed by the jury may be subject to an ordered acquittal in line with the recommendations of the Law Commission. This will be a presumption, however, rather than an invariable rule because as the Law Commission recognized, it is possible that, in certain cases, an acquittal on a sample count may be returned without a true investigation of the facts, for example, if a Crown witness were unable to attend stage one proceedings due to serious ill health but the prosecution "limp on" without that witness.
It may be appropriate on occasions, therefore, 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. Not only will the usual consent of the court or the Court of Appeal be required but any renewed prosecution will necessitate the instigation of completely new proceedings. Therefore, such a course is likely to be extremely uncommon. It is not thought, however, that such an eventuality would give rise to a plea of autrefois acquit since, despite similarities in the facts and the evidence, the specific charge in the new indictment would be neither the same nor in its effect substantially the same as the linked sample charge in the original two-part indictment.
Where there has been a conviction on one or more sample counts, the second stage proceedings will normally take place in relation to the linked offences in Part Two of the Indictment. The defendant should be arraigned on the counts on Part Two, if this has not already taken place. A second stage of the 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.
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] I Cr. App. R. 503. However, in line with the recommendation of the Law Commission, 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. Moreover, if at the conclusion of the first stage trial the judge indicates a view that that the case ought not to proceed because he or she would be minded on the merits of the case to acquit the defendant of outstanding matters, there would be little point in the prosecution presenting the remainder of its case to the judge as the finder of fact.
Procedure for a Part Two Trial
Where a part 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.
Position Regarding Defendants found Unfit to Plead
Finally, it should be noted that the judge only trial provisions 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.
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