Chapter 12: Crown Court trial – the course of the trial
Chapter 12.1: The start of the trial (p 531)
In R v Carty [2011] EWCA Crim 2087; (2011) 175 JP 424, the Court of Appeal confirmed that there is
no rule of law which compels the exclusion of factual witnesses from a trial prior to their giving
evidence. However, because their testimony might be influenced by what they have heard in court
prior to giving evidence, it is good practice for witnesses to be excluded in the normal course of
events (see R v Briggs (1930) 22 Cr App R 68). Whilst s 78 of the Police and Criminal Evidence Act
1984 may confer upon the court a discretion to exclude a prosecution witness if that witness's
earlier presence in court could reflect adversely on the fairness of the trial, this provision does not
apply in the case of a witness called by a co-accused, as occurred in this case.
Chapter 12.5: Crown Court trial – submissions of no case to answer (pp 540-545)
The test to be applied on a submission of no case to answer was considered in R v Goring [2011]
EWCA Crim 2. The Court of Appeal (at para 35) referred with approval to a decision of the Supreme
Court of South Australia, Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, in
which King CJ had said:
[I]t is not the function of the judge in considering a submission of no case to choose between
inferences which are reasonably open to the jury. He must decide upon the basis that the jury will
draw such of the inferences which are reasonably open, as are most favourable to the prosecution. …
Neither is it any part of his function to decide whether any possible hypotheses consistent with
innocence are reasonably open on the evidence. … He is concerned only with whether a reasonable
jury could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing
hypothesis as not reasonably open on the evidence.
I would re-state the principles, in summary form, as follows. If there is direct evidence which is
capable of proving the charge, there is a case to answer no matter how weak or tenuous might
consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if
accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt
and thus is capable of causing a reasonable mind to exclude any competing hypotheses as
unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable
in law of supporting a conviction. In a circumstantial case, that implies that even if all the evidence for
the prosecution was accepted and all inferences most favourable to the prosecution which are
reasonably open were drawn, a reasonable mind could not reach a conclusion of guilty beyond
reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with
innocence, as not reasonably open on the evidence.
The Court of Appeal went on (at [36]) to cite the judgement of Moses LJ in R v Jabber [2006] EWCA
Crim 2694 (at [21]):
The correct approach is to ask whether a reasonable jury, properly directed, would be entitled to
draw an adverse inference. To draw an adverse inference from a combination of factual
circumstances necessarily does involve the rejection of all realistic possibilities consistent with
innocence. But that is not the same as saying that anyone considering those circumstances would be
bound to reach the same conclusion. That is not an appropriate test for a judge to apply on the
submission of no case. The correct test is the conventional test of what a reasonable jury would be
entitled to conclude.
Leveson LJ, in Goring, added (at [37]):
It has long been a principle that, absent good reason (such as the witness being unworthy of belief),
the prosecution is obliged to call all witnesses who give direct evidence of the primary facts and which
the prosecution, when serving statements, consider to be material, even if there are inconsistencies
between one witness and another: see R v Russell-Jones [1995] 1 Cr App R 538. Further, although
taking the prosecution at its highest does not mean "picking out all the plums and leaving the duff
behind" (see per Turner J in R v Shippey [1988] Crim LR 767), it is necessary to make an assessment of
the evidence as a whole and not simply consider the credibility of individual witnesses or evidential
inconsistencies between witnesses. It is for the jury to decide what evidence to accept and what
evidence to reject and the fact that a witness called by the Crown gives evidence in some respects
inconsistent with the inferential case being advanced by the Crown cannot, by itself, be determinative
of a submission of no case to answer: it is obviously, however, a factor to be taken into account.
In Prosecution Appeal (No 32 of 2007); R v N Ltd [2008] EWCA Crim 1223; [2008] 1 WLR 2684, it was
held that there is no jurisdiction for a judge to find, before the close of the prosecution case, that
there is no case to answer. Hughes LJ (at [26]) said:
There is sound reason for the jurisdiction to entertain a submission that there is no case to answer to
be exercised at the close of the Crown case. It is then that it is known for certain what the evidence
actually is. Until then, the most that can be known is what it is expected to be.
The importance of the defence raising issues at an early stage, and not leaving it until the close of
the prosecution case, was reiterated in R v Penner [2010] EWCA Crim 1155. Thomas LJ (at [16]-[19])
said
... [T] he issues in this case should have been identified at the PCMH ... [I]t is essential that counsel at
the PCMH stage carefully examine and identify the issues. As counsel in this case failed to do so, when
the point, as he tells us, occurred to him in the course of cross-examination, it was then his duty to
have identified it to the judge, before going any further with his cross-examination. He should not
have left the matter for half time. He should have told the judge that there was a new issue and asked
the judge how this matter should be dealt with ... It is no longer possible to have cases conducted in
the way in which this case was conducted by counsel for the appellant, where points occur to
someone and then an attempt is made to ambush the prosecution by a submission of no case to
answer. The Divisional Court made clear in the Chorley Justices case [2006] EWHC 1795 (Admin) that
trial by ambush was no longer permissible ... [I]f counsel had identified the issue, even if it occurred to
him late (in a proper manner and not by means of submission at half time) then the Crown would
have had an opportunity, if there had been any evidence in this case, to correct and bring before the
trial court proper evidence. It is no longer permissible for the ambush of the type that it might be
suggested happened in this case, to be performed in the future.
Chapter 12.5.3: Power of jury to acquit after close of prosecution case (pp 546-547)
The practice of inviting a jury to acquit a defendant before the conclusion of the trial was criticised in
R v Speechley [2004] EWCA Crim 3067 and R v C [2007] EWCA Crim 854, and was further disapproved
in R v H [2010] EWCA Crim 1931; [2011] 1 Cr App R 14, where Leveson LJ, at [50] and [51], said:
Although arguments have always been articulated as on the basis that fairness must be visited both
on the defence and the prosecution, fairness to the prosecution is now well recognised as requiring a
proper focus upon the legitimate rights and interests of victims and witnesses. Once there is a case to
answer, they are entitled to know that the jury has heard the case through to its conclusion
culminating in a fair analysis of the issues from the judge ...
... [I]t would be to fall into serious error to invite the jury to take such a step because of a perception
that the case was not worthy of the expense of jury trial notwithstanding that Parliament has
legislated for just such a course. To do so would only serve to encourage those charged with the least
serious either way offences to elect trial in the hope of such a favourable outcome.
Chapter 12.5.4: Judge-directed acquittals (pp 547-550)
The CPS Annual Report for 2012-13 shows that 11% of Crown Court acquittals in CPS cases took
place as a result of a judge-directed acquittal.
Chapter 12.7 Closing speeches
In R v Paul [2013] EWCA Crim 978, the Court of Appeal reiterated that the prosecution advocate
should not make a closing speech where the accused in unrepresented.
Chapter 12.10: Crown Court trial - the judge’s summing up (pp 556-7)
Judicial Studies Board Specimen directions
In March 2010, the JSB Specimen Directions were superseded by the new JSB Criminal Bench Book.
The Judicial Studies Board is now known as the Judicial College.
Chapter 12.10.7: Summing up fairly (pp 573-4)
In R v Asmeron [2013] EWCA Crim 435, the Court of Appeal ruled that a judge cannot refuse to allow
a jury to consider a defence on the basis that he thinks it hopeless. Toulson LJ said, at [22]:
The fact that a defence might be considered hopeless on the merits is not a good reason for a judge
to withdraw it from the jury. The court can only rule that the explanation advanced by a defendant is
incapable in law of amounting to a good reason or a reasonable excuse if it can properly be said, on
the true construction of the Act, that it would be inconsistent with the essential nature and purpose
of the offence for the defendant's explanation to be capable of amounting to a defence .
Chapter 12.11.2: Trial on indictment – no further evidence after retirement (pp 575-576)
In R v Cadman [2008] EWCA Crim 1418, the defendant was charged with fraud involving cheques. At
the trial, the jury were shown a number of cheques but there was no expert handwriting evidence
comparing the defendant's handwriting to the handwritten details on the cheques. The defendant
denied any part in the fraud. After the jury had retired, they requested a sample of cheques which
the defendant had allegedly written, the foreman of the jury indicating that they wanted to compare
the handwriting on those cheques with samples of the defendant’s handwriting in other documents.
The Court of Appeal held that for the jury to use the samples of further cheques provided after their
retirement, in order to compare handwriting to decide whether the appellant had written out the
cheques in question, necessarily meant using that extraneous material as evidence in an exercise
that would enable the jury to reach their own conclusion in relation to the appellant's evidence to
the contrary. It was ‘wholly impermissible for the jury to make use of the extraneous material for
such an evidential exercise’.
Chapter 12.12.3.9: Re-trials after acquittal (CJA 2003, pt 10) (pp 694-698)
In R v Dobson [2011] EWCA Crim 1256; [2011] 2 Cr App R 8, Lord Judge CJ said (at [7] and [8]):
... "compelling evidence" for the purposes of s 78 ... does not mean that the evidence must be
irresistible, or that absolute proof of guilt is required. In other words, the court should not and is
certainly not required to usurp the function of the jury, or, if a new trial is ordered, to indicate to the
jury what the verdict should be...
However the legislative structure does not suggest that availability of a realistic defence argument
which may serve to undermine the reliability or probative value of the new evidence must, of itself,
preclude an order quashing the acquittal. It must, of course, be carefully analysed, and given its
proper weight. If the argument, or indeed any defence evidence, leads the court to conclude that the
new evidence is not, after all, as reliable or substantial as it was thought to be, or that it no longer
appears to be highly probative of guilt, then the court cannot be satisfied that the statutory test has
been met. That is a fact specific decision. In the end, there are three defined elements: provided the
new evidence is reliable, substantial, and appears to be highly probative, for the purposes of s 78 it is
compelling: otherwise it is not.
At [15], Lord Judge emphasised that, at the re-trial, the presumption of innocence continues to
apply.
Chapter 12.13: What happens if the jury is unable to reach a verdict? Re-trials where jury cannot
agree on a verdict
In R v Byrne [2002] EWCA Crim 632; [2002] 2 Cr App R 21, Aikens J (at [14]) said that:
There is a convention that if a jury disagrees on the first trial and then a second jury also disagrees,
the prosecution will then formally offer no evidence … However this is no more than a convention.
There is no rule of law that forbids a prosecutor from seeking a second retrial after a jury has
disagreed. This view of English criminal procedure was affirmed by the Privy Council in Forrester Bowe
v The Queen [2001] UKPC 19 ...
In Forrester Bowe v The Queen, Lord Bingham had said (at [37]-[39]):
It is a common practice for prosecutors in England and Wales to offer no evidence against a
defendant if two previous juries have been unable to agree ... But that is no more than a convention
... It may well be that the prosecuting authorities, having failed to obtain a conviction even by a
majority on two occasions, judge that a further trial will not have a reasonable prospect of
culminating in a conviction. It is in the first instance for the prosecutor to judge whether, taking
account of all relevant considerations, the public interest is better served by offering no evidence or
by seeking a further retrial. There is plainly no rule of law in this country which forbids a prosecutor
from seeking a second retrial ...
There may of course be cases in which, on their particular facts, a second retrial may be oppressive
and unjust...
Whether a second retrial should be permitted depends on an informed and dispassionate assessment
of how the interests of justice in the widest sense are best served. Full account must be taken of the
defendant's interests, particularly where there has been long delay or he has spent long periods
under sentence of death or if his defence may be prejudiced in any significant way by the lapse of
time. Account must also be taken of the public interest in convicting the guilty, deterring violent crime
and maintaining confidence in the efficacy of the criminal justice system.
In R v Bell [2010] EWCA Crim 3; [2010] 1 Cr App R 27, Lord Judge CJ said (at [46]):
… the jurisdiction which permits a second re-trial after two jury disagreements in circumstances like
the present must be exercised with extreme caution. The broad public interest in the administration
of criminal justice leads us to the clear view that a second re-trial should be confined to the very small
number of cases in which the jury is being invited to address a crime of extreme gravity which has
undoubtedly occurred ... and in which the evidence that the defendant committed the crime ...., on
any fair minded objective judgment remains very powerful.
Chapter 12.16: Alternative verdicts (pp 584-592)
R v Coutts [2006] 1 WLR 2154 and R v Foster [2008] 1 WLR 1615 were applied in R v Hodson [2009]
EWCA Crim 1590. Keene LJ said, at [10] and [11]:
... There is no automatic requirement on a judge to leave an alternative verdict if such a verdict would
not properly reflect the facts of the case, when judged realistically, or would not do justice to the
gravity of the case. This court stressed that whether it is necessary to leave such a verdict, even when
legally available as an alternative, will depend on the facts of the individual case. But if it is a
realistically available verdict on the evidence, as an interpretation properly open to the jury, without
trivialising the offending conduct, then it should be left.
It is, in our view, particularly important that this is done where the offence charged requires proof of
a specific intent and the alternative offence does not. Even then there may be circumstances where
the issue of specific intent does not truly arise. For example, if a man is shot at point-blank range in
the head and the defence is simply that the defendant was not present, there is no requirement on
the judge then to leave the alternative of manslaughter by way of killing without the necessary intent
for murder. However, there will be cases, as Coutts recognised, where it is necessary to leave the
lesser offence as an alternative to avoid the dangerous situation where the jury is faced with the stark
choice of convicting for the serious offence or acquitting altogether. That may give rise to a
miscarriage of justice.
At [16], his Lordship noted the duty on counsel to ‘ensure that they raise with the judge, if he has
not raised it of his own volition, the need at least to consider the propriety and necessity of leaving
an alternative verdict ... to the jury if it is available on the facts’.
In R v Caven [2011] EWCA Crim 3239, the appeal was brought on the ground that, because the
alternative verdict of s 20 OAPA 1861 was not left to the jury, the conviction of the s 18 offence was
unsafe. Aikens LJ summarised the law thus (at [12]):
The general principles to be derived from R v Coutts and R v Foster are, so far as this appeal is
concerned, as follows: (1) before any requirement to leave an alternative verdict to the jury arises,
that alternative verdict must be "obviously" raised on the evidence. The alternative verdict must
suggest itself to the mind of "any ordinary knowledgeable and alert criminal judge"... (2) That test will
generally only be passed if the alternative verdict is one to which a jury could reasonably come; which
must mean that the alternative is one which really arises on the issues as presented at the trial. (3)
There is no duty to put an alternative verdict if such a verdict would be remote from the real point of
the case. (4) However, each case must depend on its particular facts. (5) The evidence, disputed and
undisputed, and the issues of law and fact to which it gives rise, must be examined... A judge will not
be in error if he decides that a lesser alternative verdict should not be left to the jury if that verdict
can properly be described in its legal and factual context as trivial, or insubstantial, or where any
possible compromise verdict would not reflect the real issue in the case... (6) Where the defence to a
specific charge amounts to the admission or assertion of a lesser offence, the primary obligation of
the judge is to ensure that that defence is left to the jury. If it is not, then the summing‑up will be
seriously defective and the conviction unsafe. (7) A judge may have to reconsider a decision not to
leave an alternative verdict to the jury in the light of any question which the jury may see fit to ask...
(8) At all stages the judge has to ask the question: will the absence of a lesser alternative verdict
oblige the jury to make an unrealistic choice between the serious charge and a complete acquittal in a
way which would unfairly disadvantage the defendant... We emphasise that these are principles, not
tramlines, and that each case depends upon its particular facts.
His Lordship went on to say (at [16]) that, in the present case, ‘the jury might have concluded, on the
evidence before it, that they were sure that the blow or blows struck by the appellant were not in
self-defence in the sense that they were satisfied that such blows would not have been ones which
were only reasonably necessary in the circumstances. But it does not follow that, once the jury had
rejected self-defence, they had to conclude that the blow or blows were made with an intent to
cause grievous bodily harm. Although one blow caused a fractured eye socket, in our view, a jury,
properly directed, could have concluded on the evidence that that blow, or any other blows, were
not inflicted with intent to cause grievous bodily harm’. His Lordship concluded (at [17]) that the
conviction for the offence under s 18 was unsafe because the jury were, or might have been, put in a
‘position of having to make an unrealistic choice between the serious charge under s 18 and an
outright acquittal. This may have operated to the disadvantage of the appellant in this case’.
The time-limit in s 127 of the Magistrates’ Courts Act 1980 has no application where a count is
added to the indictment pursuant to s 40 of the Criminal Justice Act 1988 (see R v Iqbal [2012] EWCA
Crim 766).
Deferred Prosecution Agreements
Section 45 and Schedule 17 of the Crime and Courts Act 2013 make provision for deferred
prosecution agreements (DPAs):
A DPA is an agreement between a designated prosecutor (the DPP or the Director of the Serious
Fraud Office) and a company, partnership or unincorporated association whom the prosecutor is
considering prosecuting for a specified offence. Under the agreement, the company agrees to
comply with the requirements imposed by the agreement, and the prosecutor agrees that the
prosecution will be suspended. To this end, proceedings will be instituted by means of the
preferment of a bill of indictment under s 2(2)(ba) of the Administration of Justice (Miscellaneous
Provisions) Act 1933 (bill of indictment preferred with consent of Crown Court judge following DPA
approval)); as soon as proceedings are instituted, they are automatically suspended; the suspension
may only be lifted on an application to the Crown Court by the prosecutor, and no such application
may be made at any time when the DPA is in force.
A designated prosecutor must exercise personally the power to enter into a DPA. However, if the
designated prosecutor is unavailable, the power to enter into a DPA may be exercised personally by
a person authorised in writing by the designated prosecutor.
The DPA must contain a statement of facts relating to the alleged offence, and may include
admissions made by the company. It must specify an expiry date, when the DPA ceases to have
effect if it has not already been terminated as a result of breach.
The requirements that a DPA may impose include:
(a) to pay to the prosecutor a financial penalty;
(b)
(c)
(d)
(e)
to compensate victims of the alleged offence;
to donate money to a charity or other third party;
to disgorge any profits made by P from the alleged offence;
to implement a compliance programme or make changes to an existing compliance
programme relating to P’s policies or to the training of P’s employees or both;
(f) to co-operate in any investigation related to the alleged offence;
(g) to pay any reasonable costs of the prosecutor in relation to the alleged offence or the DPA.
The DPA may impose time limits within which the requirements must be complied with.
The amount of any financial penalty should be broadly comparable to the fine that a court would
have imposed for the alleged offence following a guilty plea.
Chapter 12.19.1: Seeing the judge in his chambers: indications as to sentence (pp 597-603)
In Attorney-General's Reference No 80 of 2005: R v Wedlock-Ward [2005] EWCA Crim 3367, Rose LJ
said (at [29]):
Lest the Court's decision in Goodyear be misunderstood … we wish to make three matters about that
decision plain. First, its purposes was not to encourage a return to the practice disapproved of in R v
Turner [1970] 2 QB 321 at 326H of counsel seeing the judge about sentence, privately in his room. On
the contrary, … hearings involving an indication of sentence “should normally take place in open
court”. There are, of course, exceptions to this principle, for example, where a defendant is unaware
that he is terminally ill. Secondly, the principal feature of the new approach to indications of sentence
prescribed in Goodyear is that advance indications of sentence should be sought by the defence not
promulgated by the judge ... Thirdly, if an indication in such a context is to be made, it is not
appropriate … for [the judge] to identify, by reference to a trial, the much longer sentence which he
would impose compared with the sentence which he proposes if the defendant pleads guilty … such a
course is likely to apply pressure to a defendant which the judgment in Goodyear sought to avoid.
Chapter 12.20: Change of plea (pp 603-604)
A court has no jurisdiction to allow a defendant to change his plea from guilty to not guilty after
sentence has been passed. The dealings with the defendant are completed and the judge is functus
officio (R v McNally [1954] 1 WLR 933). Section 155 of the Powers of Criminal Courts (Sentencing)
Act 2000 does not alter this position, since that section is concerned only with variation of sentence
(R v Evans [2011] EWCA Crim 2842 (per Hughes LJ, at [7])).
Chapter 12.23: Crown Court: variation of sentence (pp 608-609)
In R v Gordon [2007] EWCA Crim 165; [2007] 1 WLR 2117, Sir Igor Judge P said, at [34], that:
It is well established that s 155 [of the Powers of Criminal Courts (Sentencing) Act 2000] permits
significant alterations in sentence, for example, changing a suspended sentence into an immediately
effective one ... or ordering that the term of an immediate custodial sentence should be longer... The
discretion to vary sentence of course may also produce a sentence of reduced severity. The power
must always be exercised with great caution, not least because (subject to any appeal or reference by
the Attorney General) the administration of criminal justice is hindered by doubt or hesitation
whether the order pronounced by the court as its sentencing decision is final. Everyone with an
interest in the sentence (in particular the defendant and the victim) wants what is sometimes
described as closure, and by long hallowed tradition the sentence of the court is effectively the
culmination of the criminal process. The area in which the exercise of the power under s 155 is of
particular value is where there is a need to cure what would otherwise be an unlawful sentence.
Once the 56-day period (increased from 28 days by the Criminal Justice and Immigration Act 2008)
has expired, the power to vary or rescind a sentence imposed in the Crown Court expires. At [49], his
Lordship said that ‘save in very limited circumstances an extension to [this] period is impermissible’.
In R v Hudson [2011] EWCA Crim 906, the Court of Appeal said that, in light of Gordon, a sentence
could be amended outside the time period allotted but only where the amendment would have no
effect on the overall sentence passed.
Chapter 12.24.3: Fitness to plead (pp 609-611)
In R v Norman [2008] EWCA Crim 1810; [2009] 1 Cr App R 13, Thomas LJ (at [34]) gave detailed
guidance on the approach to be taken where fitness to plead is an issue in the case:
(i) Once it is clear that there is an issue, such cases need very careful case management to ensure that
full information is provided to the court without the delay so evident in this case.
(ii) When full information is available, the court will need carefully to consider whether to postpone
the issue of trial of fitness to plead under s 4(2), given the consequences that a finding of unfitness
has for the defendant …
(iii) If the court determines that the appellant is unfit to plead, then it is the court's duty under s 4A(2)
of the Criminal Procedure (Insanity) Act 1964 carefully to consider who is the best person to be
appointed by the court to put the case for the defence … The duty under s 4A(2) is a duty personal to
the court which must consider afresh the person who is to be appointed; it should not necessarily be
the same person who has represented the defendant to date, as it is the responsibility of the court to
be satisfied that the person appointed is the right person for this difficult task … The responsibility
placed on the person so appointed is quite different to the responsibility placed on an advocate
where he or she can take instructions from a client …
(iv) Under present legislation, this court cannot order a retrial … save in very limited circumstances …
[T]here could well be cases where it would not be and serious public concern could arise where this
court considered a verdict unsafe and was compelled to enter an acquittal, but nothing further could
be done. We would hope that Parliament might give consideration to this lacuna in the statutory
provisions and consider granting this court power to order a re-trial of the issue as to whether the
defendant did the act with which he is charged.
The Court also referred to research on fitness to plead carried out by Professor RD MacKay and
others set out in their paper Continued upturn in unfitness to plead - more disability in relation to the
trial under the 1991 Act [2007] Crim LR 530.
In R v Erskine [2009] EWCA Crim 1425; [2009] 2 Cr App R 29, Lord Judge CJ said that
‘provided the defendant can understand the proceedings, he will be deemed fit to plead’
([88]). His Lordship added that ‘a defendant is not to be deemed unfit to plead merely
because he will not accept what appears to be eminently sensible advice from his legal
advisers’.
In R v Ghulam [2009] EWCA Crim 2285; [2010] 1 WLR 891, the defendant, at a late stage in the trial,
produced a doctor’s letter which stated that the accused was not fit to plead. The judge ruled that
he was fit to plead, since he was able to give instructions to his legal representatives and give
evidence. The issue on appeal was whether the judge was entitled to make that determination. The
Court of Appeal held that s 4(6) of the Criminal Procedure (Insanity) Act 1964 requires the evidence
of two medical practitioners before ruling that a defendant is unfit to plead; however, s 4(6) does
not extend to a determination that the defendant is fit to plead. The judge was entitled to rule as he
did because he had had the opportunity to observe the defendant’s conduct during the trial,
including while giving evidence. This is, of course, highly unusual, since fitness to plead will normally
be raised (and determined) before the start of the trial.
Chapter 12.24.4: Autrefois acquit (p 611-614)
In DPP v Alexander [2010] EWHC 2266 (Admin); [2011] 1 WLR 653, the court considered the effect of
cautions in the context of the autrefois doctrine. Stanley Burnton LJ said, at [6], that:
the defence of autrefois convict, or indeed autrefois acquit, has no application where what has
occurred is a caution. A caution is not a conviction for the purposes of those defences,
notwithstanding that a caution will only be administered if the accused person admits his guilt. The
principles of autrefois convict and autrefois acquit are applicable only where there has been a finding
by a court of guilt or innocence. They have no application to an extra-judicial procedure, such as the
administration of a simple caution.
However, his Lordship went on to say (at [9]) that, where criminal conduct has been the subject of
an agreed caution, ‘in the absence of good reason for it to be the subject of a subsequent
prosecution, such a prosecution will generally constitute an abuse of the process of the court’.
Examples of cases where a prosecution might be justified despite the earlier administration of
caution include cases where information or evidence is obtained subsequent to the caution (e.g.
details of injury to a victim significantly exceeding what had previously been known).
In R v JFJ [2013] EWCA Crim 569, Sir John Thomas P, at [23], said that “the scope of autrefois is
narrow and the offence, as well as the facts, must be the same for the plea of autrefois to apply”
(applying R v Beedie [1998] QB 356 and R v Bayode [2013] EWCA Crim 356). His Lordship went on, at
[29], to add that: “In any case where the narrow application of the principle would result in
unfairness or injustice to a defendant amounting to oppression, the remedy lies in the power of the
court to stay the proceedings”.
Chapter 12.15.1: Trials on indictment without a jury: complex or lengthy fraud (p. 616)
Section 113 of the Protection of Freedoms Act 2012 repeals s 43 of the CJA 2003 (judge-only trials in
serious/complex fraud cases) with effect from 1 May 2012.
Chapter 12.25.2: Trials on indictment without a jury because of risk of jury tampering (pp 614-617)
In R v T [2009] EWCA Crim 1035; [2009] 3 All ER 1002, Lord Judge CJ said (at para 16) that the judge
has to be satisfied that the conditions in s 44(4) and 44(5) of the CJA 2003 are fulfilled to the criminal
standard (i.e. beyond reasonable doubt). At [18], his Lordship said:
It … does not follow from the hallowed principle of trial by jury that trial by judge alone, when
ordered, would be unfair or improperly prejudicial to the defendant. The trial would take place before
an independent tribunal, and as it seems to us, for the purposes of article 6 of the European
Convention of Human Rights, it is irrelevant whether the tribunal is judge and jury or judge alone.
At [19], his Lordship considered the fact that the taking of measures to protect the jury might
compromise their objectivity (i.e. might prejudice them against the accused); the likely impact of
such measures on the lives of the jurors; and the fact that the measures, however intensive, might
not be sufficient to prevent the improper exercise of pressure on jurors (and their families).
At [25], his Lordship observed that, ‘Experience suggests that the seriousness of jury tampering
problems is usually proportionate to the seriousness of the alleged criminality. There will be cases
where the evidence to demonstrate the risk of jury tampering will be so sensitive that it can only be
addressed under PII [public interest immunity] principles’. At [26], he concluded:
[W]e reject the submission that the evidence relied on by the Crown, or the bulk of it, must always be
disclosed [to the defendant] … We agree that the evidence should be disclosed to the fullest extent
possible, but it would be contrary to the legislative purpose to make an order for disclosure which
would, in effect, bring the prosecution to an end, and enable those who had been involved in jury
tampering to derail the trial and avoid the consequences prescribed by statute, trial by judge alone.
At [27], his Lordship considered the use of special counsel, concluding that:
We do not rule out the possibility, in an appropriate case, that the court might seek assistance from
counsel. However, this is not a situation in which evidence relating to the defence to the charges is
under consideration, nor indeed the fairness of any future trial. What is in issue is the method of trial.
We think it unlikely that special counsel will be able to provide any more assistance than counsel for
the prosecution, in accordance with his responsibilities, can be expected to provide.
In R v J [2010] EWCA Crim 1755; [2011] 1 Cr App R 5, the Court of Appeal allowed an appeal against
an order for judge-only trial. Lord Judge CJ, at [7]-[9] said:
The critical feature of the present application for trial by judge alone is that the jury will be a
protected jury, subject to probably even more stringent security arrangements than those which were
envisaged for the fraud trial. They will be trying a case in which they will inevitably appreciate that the
defendants are alleged to have been involved in the tampering of or arrangements for tampering.
That undoubtedly creates problems for the judge's management of the jury, and his obligation to
ensure that, notwithstanding the protective measures, the trial is fair. We are fully alert to the
difficulties faced by juries performing their public responsibilities, particularly in sensitive cases where
very heavy protection is deemed necessary. However, given that the estimated length of the trial is 2
weeks we disagree with the judge that the necessary protective measures would either impose an
unacceptable burden on the jurors by intruding for a prolonged period on their ordinary lives, or that
the jury, properly managed and directed, would be inhibited from giving the case proper attention
and whether, convicting or acquitting, returning a true verdict in accordance with the jury's collective
conscience.
We must emphasise as unequivocally as we can that, notwithstanding the statutory arrangements
introduced in the 2003 Act which permit the court to order the trial of a serious criminal offence
without a jury, this remains and must remain the decision of last resort, only to be ordered when the
court is sure (not that it entertains doubts, suspicions or reservations) that the statutory conditions
are fulfilled. Save in extreme cases, where the necessary protective measures constitute an
unreasonable intrusion into the lives of the jurors, for example, a constant police presence in or near
their homes, day and night and at the weekends, or police protection, which means that at all times
when they are out of their homes, they are accompanied or overseen by police officers, again day and
night and at the weekend, with its consequent impact on the availability of police officers to carry out
their ordinary duties, the confident expectation must be that the jury will perform its duties with its
customary determination to do justice.
There is this further, and final, consideration. If during the course of this, or indeed any trial, attempts
are made to tamper with the jury to the extent that the judge feels it necessary to discharge the
entire jury, it should be clearly understood that the judge may continue with the trial and deliver a
judgment and verdict on his own. The principle of trial by jury is precious, but in the end any
defendant who is responsible for abusing this principle by attempting to subvert the process has no
justified complaint that he has been deprived of a right which, by his own actions, he himself has
spurned.
Another such appeal was allowed in R v KS [2010] EWCA Crim 1756; [2011] 1 Cr App R 6, where Lord
Judge CJ (at [7]) said:
... we are unable to agree that the requirements of s 44(5) of the 2003 Act have been established.
Major Crown Courts, dealing with heavy criminal cases, are quite accustomed to dealing with levels of
threat far higher than that posed in this case. In our judgment a fairly limited level of jury protection
could reasonably be provided which would sufficiently outweigh the potential threat of jury
tampering. The necessary decisions will, of course, be made by the trial judge, but on the material we
have seen, appropriate protection for this jury would be likely to be established at a fairly low level.
Seven options were drawn to our attention at the PII hearing, the first at the lowest level, and the
seventh at the most serious. We emphasise the link between the nature of the threat and danger of
jury contamination, and the steps reasonably available to be taken to reduce the risk to manageable
proportions and caution against any unduly alarmist proposals, alarmist, both in the sense of the
likely adverse impact on the members of the jury themselves, and on the drains on precious police
resources of providing them. The new statutory arrangements do not undermine, but rather confirm,
the need for the issues of jury protection to be handled in a realistic and proportionate way.
The fairness of trial by judge alone in accordance with s 44 of the CJA 2003 was considered again in R
v Twomey [2011] EWCA Crim 8; [2011] 1 WLR 1681. At [45], Lord Judge CJ said that the question to
be addressed was whether the defendant’s
convictions were safely reached by a properly constituted tribunal, vested with jurisdiction to try the
allegations against them. The trial before judge alone was securely based on statutory provisions
designed to protect the jury system from the danger of subversion, and the disapplication of the
principle of trial by jury in accordance with statute produced no diminution in the fairness of the trial
or indeed the safety of the convictions.
In R v Guthrie [2011] EWCA Crim 1338; [2011] 2 Cr App R 20, Lord Judge CJ (at [4] and [5]) said:
... the jurisdiction now available to be exercised under section 46 of the 2003 Act adds to rather than
replaces the court's existing powers to deal with what we can describe as jury difficulties ... the
common law power of the judge to discharge the jury as a whole or to discharge an individual juror or
jurors remains undiminished by the statutory provisions relating to the circumstances in which a trial
on indictment may take place without a jury, and s 16 of the Juries Act 1974, which enables the court
to discharge any member of the jury for incapacity or for "any other reasons" remains in force.
[Section 46 of the CJA 3002] is directed to problems arising from jury tampering during the course of a
trial. Where it appears to have taken place and the judge forms the preliminary view that the jury
should be discharged, the judge must consider whether the steps required by subs (2) must follow.
Thereafter, in the light of representations the judge must terminate the trial if that is necessary in the
interests of justice. If so a new trial with a new jury may be ordered. Alternatively the jury may be
discharged, and provided the judge is satisfied to the criminal standard that jury tampering has taken
place and that it would be fair to the defendant or defendants to continue the trial without a jury that
order may be made. Nothing in s 46 suggests that the judge is prohibited from discharging the jury on
the basis of jury tampering and subsequently addressing the question whether to terminate the trial
or order that it should continue on separate occasions.