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219. Paragraphs 18-25 amend the Powers of Criminal Courts (Sentencing) Act 2000. The most important of these concerns the committal to the Crown Court for sentence of offences triable either-way. This power will no longer be available in cases where the magistrates' court has dealt with the case having accepted jurisdiction (whether as a contested case or a guilty plea) but will be limited to cases where a guilty plea has been indicated at plea before venue.
220. If a defendant is charged with a number of related either-way offences, pleads guilty to one of them at plea before venue and is sent to the Crown Court to be tried for the rest, the existing power in section 4 of the Powers of Criminal Courts (Sentencing) Act 2000 to send the offence to which he has pleaded guilty to the Crown Court for sentence is retained.
Clause 40: Mode of trial for certain firearms offences ; transitory arrangements
221. This clause makes interim arrangements to allow defendants under 18 to be sent to the Crown Court for trial where they have committed certain firearms offences (and were aged 16 or over at the time). The interim arrangements will be replaced by permanent arrangements when the new allocation and sending procedure is introduced.
PART 7 : TRIALS ON INDICTMENT WITHOUT A JURY
222. This Part of the Bill sets out the circumstances in which a trial on indictment in the Crown Court must, or may, be heard by a judge sitting alone without a jury.
Clause 41: Application by defendant for trial to be conducted without jury
223. This clause permits a defendant (or defendants) being tried on indictment in the Crown Court to make an application to the Court to have the trial heard by a judge sitting alone, instead of by a judge and jury. Subsections (3) and (4) provide that the judge hearing the application must make an order granting it unless any of the circumstances described in subsections (5) to (8) apply. If any of them do, he must refuse the defendant's application and the trial will be heard by a judge and jury. These circumstances are as follows.
224. In a trial where there is more than one defendant, and one (or more) of them wants a jury trial, then an application by any of the other defendants for a judge-alone trial must be refused (subsection (5)).
225. Subsection (6) applies in cases where the defendant who applies to be tried by a judge alone, or any other defendant who is to be tried, is, or was, in employment connected with the administration of civil or criminal justice (as explained at subsection (9)): for example, a judge, prosecutor or police officer. The judge must refuse the application to be tried without a jury if he is satisfied that, if convicted, there would be questions as to whether the defendant, who is or was in the relevant employment, had properly discharged the functions of his employment, or about his fitness for the employment, and such matters give rise to exceptional circumstances, which make it desirable in the interests of justice for the trial to be conducted with a jury. There is no requirement for the charges faced by that defendant to arise out of the discharge of his official functions; the subsection is capable of being satisfied by charges which, if proven, would amount to an offence committed in a wholly private capacity but which raises questions about the honesty or good character of that defendant which in turn are capable of impugning his fitness for the employment.
226. By contrast, subsection (7) applies regardless of the identity or functions of any of the defendants, but requires that the nature of the conduct charged should itself give rise to issues about whether the administration of civil or criminal justice has been prejudiced or brought into disrepute. An example might be someone accused of perjury, or perverting the course of justice. Again, the judge can only refuse a defendant's application for a judge-alone trial on this ground if satisfied that these matters give rise to exceptional circumstances which make it desirable in the interests of justice for the trial to be conducted with a jury.
227. Subsection (8) requires the judge to refuse an application by a defendant for a judge-alone trial in any other case where exceptional circumstances exist which make it necessary in the public interest for the trial to be conducted with a jury. It may be that other rare cases of particular significance for public life arise in which there is a proper and necessary expectation of a jury trial, and this subsection provides accordingly.
228. These subsections do not specify in detail what a judge must have regard to in deciding under any of these subsections whether exceptional circumstances exist. However, a judge might be expected to have regard to such things as the seriousness of the offence charged and the seniority of the post held by the defendant within the administration of civil or criminal justice where relevant, although all relevant circumstances would need to be taken into account.
Clause 42: Application by prosecution for certain complex or lengthy trial to be conducted without jury
229. Clause 42 makes provision for the prosecution to apply for a trial on indictment in the Crown Court to proceed in the absence of a jury on grounds of the length or complexity of the trial. A successful application would need to satisfy the court of two conditions.
230. The first is that the trial is to be so long or complex (or both) that either
231. This encompasses two sorts of case. The first are those cases which the judge considers to be so difficult, in terms of their complexity or length (or both) that the consequent strain this would place on a jury trying to grapple with them would be so great, that they must be heard without a jury. The second concerns the extent to which a long and/or complex case would intrude upon and otherwise disrupt the outside life of a typical juror. In deciding whether the burden on a typical juror would be excessive, the judge would need to take account of factors such as the impact of the trial on a typical juror's working and private life, and the physical and mental demands it is likely to impose.
232. The second condition which must also be satisfied relates to the sorts of issues and evidence which a jury would have to consider in the course of the trial. Subsection (5)(a) stipulates that the length or complexity (or both) must be caused by the need to address arrangements, transactions or records of a financial or commercial nature or which relate to property. As part of this, the judge must also look specifically at the nature and volume of the evidence which would be put before the jury (subsection (5)(b)).
233. Subsections (6) and (7) require the judge, in deciding whether these conditions are met, to consider whether there is anything that can reasonably be done to make the trial less complex and lengthy. Particularly relevant in this context will be the provision made for the preparatory hearing procedure under section 7 of the Criminal Justice Act 1987 or section 29 of the Criminal Procedure and Investigations Act 1996. However, in so doing the court is not to regard as reasonable any measures which would significantly disadvantage the prosecution. For example, the prosecution may be disadvantaged by the severing of an indictment or by the exclusion of relevant and important evidence simply on jury management grounds.
Clauses 43 and 45: Application for prosecution for trial to be conducted without jury where danger of jury tampering; discharge of jury because of jury tampering
234. Clauses 43 and 45 provide for a trial on indictment in the Crown Court to be conducted without a jury where there is a danger of jury tampering, or continued without a jury where the jury has been discharged because of jury tampering.
235. The power of a judge to discharge a jury on the grounds of jury tampering exists at common law. The phrase "jury tampering" is intended to be understood from that context as covering a range of circumstances in which the jury's independence is, may be or may appear to be compromised, for example, because of actual or attempted harm or threats to, or intimidation or bribery of, a jury or any of its members. It could also include improper approaches to a juror's family or friends, or threats etc in respect of a juror's property.
236. Clause 43 allows the prosecution to make an application for a juryless trial. For this to be granted, the court must be satisfied that there is a real and present danger that jury tampering would take place (subsection (4)); this echoes the test in considering whether police protection should be ordered in respect of a jury. In addition, the court must be satisfied that one or other of the conditions set out in subsections (5) and (6) are fulfilled:
237. Clause 45 concerns trials already under way where jury tampering has, or appears to have, occurred. In these circumstances, if the judge is minded to discharge the jury (in exercise of his common law powers) he must inform the prosecution and defence that he is so minded, explain his reasons for doing so, and hear what each party has to say on the matter (subsection (2)). If the judge then decides to discharge the jury (in the exercise of his common law powers), the trial will continue without a jury (subsection (3)) - unless he considers it necessary in the interests of justice to terminate the trial. In that event, he may order a retrial, and if he does so, he will have the option of ordering that the retrial takes place without a jury (subsection (5)). However, if he is to order the retrial is to take place without a jury, he will need to have satisfied himself that the condition set out in clause 43(4), and either or both of the conditions in clauses 43(5) and (6), are likely to be met in respect of the retrial.
Clause 44: Procedure for applications under sections 41 to 43.
238. This clause indicates the procedure for determining certain applications for a trial to be conducted without a jury under clauses 41 (defendants' applications), 42 (long or complex trials) and 43 (danger of jury tampering); this provision is likely to be supplemented by rules of court.
239. Subsection (2) makes clear that any such application will be determined at a preparatory hearing. Provisions governing preparatory hearings are contained in the Criminal Justice Act 1987 and the Criminal Procedure and Investigations Act 1996. Clause 44 builds on and amends these provisions to allow for applications for non-jury trial to be considered either at a preparatory hearing ordered under the existing provisions of those Acts, or at a preparatory hearing to be ordered particularly for that purpose.
240. The effect of subsections (5) and (9) is that an appeal will lie to the Court of Appeal for both prosecution and defendant against the determination made by the court at a preparatory hearing on any application for a trial without a jury under clause 41,42, or 43.
Clause 46: Appeals
241. This clause provides a right of appeal to the Court of Appeal against:
following the discharge of a jury because of jury tampering.
Clause 47: Further provision about trials without a jury
242. These provisions ensure that, where a court orders a trial to be conducted (under clauses 41 to43 or 45(5)) or continued (under clause 45(3)) without a jury, the trial will proceed in the usual way, except that the functions which would otherwise have been performed by a jury can be fully performed by the judge sitting alone, with suitable allowance for the obvious requirements of the change of context.
243. Where a trial is conducted or continued without a jury, and a defendant is convicted, subsection (5)(a) requires the court to give its reasons for the conviction.
Clause 48: Rules of Court
244. This clause makes clear that rules of court may be made governing the procedure to be followed, and the time limits which will apply, in respect of applications under Part 7
PART 8 - LIVE LINKS
Clause 50: Live links in criminal proceedings
245. This clause enables a court to authorise witnesses, other than the defendant, to give evidence through a live link in certain criminal proceedings. "Live link" is defined in clause 55(2) and will usually mean a closed circuit television link, but could apply to any technology with the same effect such as video conferencing facilities or the internet.
246. Subsections (4)(a) and (4)(b) provide that a court may only authorise the use of a live link if:
247. Subsection (6) directs the court to consider all the circumstances of the case when deciding whether to authorise the use of a live link and subsection (7) points out some of the most important considerations the court must take into account.
Clause 51: Effect of, and rescission of, direction
248. This clause provides that where a direction for a live link has been given that witness must give all their evidence through a live link. This makes it clear that any cross-examination of the witness is also to be given by live link, although the court can rescind a direction if it seems to be in the interests of justice to do so. A party may only apply for the direction to be rescinded if there has been a material change of circumstances since the decision was made. An example of when a direction might be rescinded is where problems with the live link technology arise after a direction has been given.
Clause 52: Magistrates' courts permitted to sit at other locations
249. Lack of facilities in particular areas or courts should, as far as possible, not frustrate the aims of this Part. Clause 52 therefore allows a magistrates' court to move temporarily to a different location where the necessary live link facilities are available.
Clause 53: Warning to the jury
250. This clause allows the judge to give directions to the jury, if necessary, to ensure that they give the same weight to evidence given through a live link as they would had the evidence been given by the witness in person in court.
Clause 54: Rules of court
251. The rule-making power provided by this clause will enable rules of court to be made governing the procedure to be followed, and the arrangements which must be put in place, when an application is made for evidence to be given through a live link.
Clause 55: Interpretation of Part 8
252. Subsection (5) makes clear that the provisions in this Part of the Bill are not intended to affect the inherent discretion of the court to authorise evidence to be heard by live link in circumstances not covered by clause 50, or to make to make any other directions or orders in relation to witnesses, including the defendant.
PART 9: PROSECUTION APPEALS
Clause 56: Meaning of "terminating ruling"
253. This clause defines the term "terminating ruling" both in relation to one defendant or several and in relation to one or more offences. The definition will cover rulings which, but for the new right of appeal, would have immediately resulted in the premature termination of the proceedings without any further intervention on the part of the prosecution. Examples of rulings which are intended to fall within this definition are rulings that there is no case to answer and rulings that the proceedings be stayed as an abuse of process.
Clause 57: Prosecution right of appeal against certain rulings
254. This clause sets out the circumstances in which the prosecution may appeal under this part to the Court of Appeal against a ruling. A distinction is drawn between terminating rulings and other rulings.
255. Terminating rulings: subsections (1) and (2) provide that the prosecution may appeal against a terminating ruling made before the trial or during the trial at any time up to the conclusion of the prosecution evidence providing it complies with the procedure set out in clause 58(3). An appeal against a terminating ruling which is a ruling that there is no case to answer may be made regardless of when the ruling is made.
256. Other rulings: Subsections (3) and (4) give the prosecution a right of appeal against rulings made before the trial and up to the conclusion of the prosecution evidence during the trial that do not in themselves terminate the proceedings. An appeal against a ruling of this nature will only be permitted if the prosecution complies with the procedure set out in clause 59. The intended effect of the procedure in clause 59 is that this right will only be exercised in relation to rulings which are so damaging to the prosecution case, that, but for the right of appeal, the prosecution would terminate its case.
257. Subsections (6) and (7) set out two further limitations on appeals under this Part:
Clause 58: Appeals against terminating rulings
258. This clause sets out the procedure that must be followed when the prosecution wishes to appeal against a terminating ruling.
259. Following the ruling, the prosecution must either inform the court that it intends to appeal or request an adjournment to consider whether to appeal (subsection (3)(a)). If such an adjournment is requested, the judge is required to grant it (subsection (4)). It is envisaged that the period of adjournment will be specified in rules of court. Following such an adjournment the prosecution must advise the court whether or not it intends to appeal (subsection (3)(b)). Under subsection (5), a ruling which affects more than one offence need not be appealed against insofar as it affects all the offences. It can be appealed against, if the prosecutor wishes, only insofar as it affects one or more of the offences.
260. Subsections (2), (6) and (7) provide that the judge's terminating ruling has no effect while the prosecution follows the procedure in subsection (3) in order to consider whether to appeal or is pursuing an appeal.
Clause 59: Appeals against certain other rulings
261. This clause sets out the procedure that must be followed when the prosecution wishes to appeal against other judicial rulings.
262. Subsections (2) and (3) are broadly the same as clauses 58(3) and (4). However, when the prosecution indicates an intention to appeal, subsection (5) requires it to agree to the acquittal of the defendant(s) in respect of the offence(s) that are the subject of the ruling in certain specified circumstances. Those circumstances are:
263. The requirement is consistent with the principle that a prosecution appeal against rulings which are not terminating rulings as defined in the Bill should only be lodged where, in the absence of the right of appeal, the prosecution would have no option but to abandon the case.Clause 60: Expedited and non-expedited appeals
264. This clause provides two alternative appeal routes, an expedited (fast) route and a non-expedited (slower) route. The judge must determine which route the appeal will follow (subsection (1)). In the case of an expedited appeal the trial may be adjourned (subsection (2)). If the judge decides that the appeal should follow the non-expedited route he may either adjourn the proceedings or discharge the jury, if one has been sworn (subsection (3)). Subsection (4) gives both the judge and the Court of Appeal power to reverse a decision to expedite an appeal, thus transferring the case to the slower non-expedited route. If a decision is reversed under this subsection, the jury may be discharged.
Clause 61: Continuation of proceedings for offences not affected by ruling
265. This provision deals with cases where the trial involves more than one but the appeal does not apply to all of those offences. Subsection(2) enables proceedings to continue in relation to any offence to which the appeal does not apply. A ruling may affect several offences and several defendants, but the prosecutor may only wish to appeal against the ruling insofar as it affects one or more of those offences or defendants. This clause enables proceedings to continue, at the discretion of the trial judge, against any offences affected by the ruling but not by the appeal.
Clause 62: Determination of appeal by Court of Appeal
266. This clause sets out the powers of the Court of Appeal when determining a prosecution appeal.
267. Subsection (1) authorises the Court of Appeal to confirm, reverse or vary a ruling appealed against. The clause is drafted to ensure that, after the Court of Appeal has ordered one or other of these disposals, it must then always make it clear what is to happen next in the case.
268. When the Court of Appeal confirms a ruling, subsection (2) provides that it must then order the acquittal of the defendant(s) for the offence(s) which are the subject of the appeal.
269. When the Court of Appeal reverses or varies a ruling, subsection (3) provides that it must either order a resumption of the Crown Court proceedings or a fresh trial, or order the acquittal of the defendant(s) for the offence(s) under appeal. By virtue of subsection (4), the Court of Appeal will only order the resumption of the Crown Court proceedings or a fresh trial where it considers it necessary in the interests of justice to do so.
Clause 63: Appeals to the House of Lords
270. Subsection (1) amends section 33(1) of the Criminal Appeal Act 1968 to give both the prosecution and defence a right of appeal to the House of Lords from a decision by the Court of Appeal on a prosecution appeal against a ruling made under this Part of the Bill.
271. Subsection (2) amends section 36 of the Criminal Appeal Act 1968 to prevent the Court of Appeal from granting bail to a defendant who is appealing, or is applying for leave to appeal, to the House of Lords from a Court of Appeal decision made under this Part of the Bill. Bail will continue to be a matter for the trial court.
Clause 64: Costs
272. Subsections (2) and (3) amend sections 16(4A) and 18 of the Prosecution of Offences Act 1985 to give the Court of Appeal power, on an appeal under this Part, to award costs to and against the defendant.
Clause 65: Effect on time limits in relation to preliminary stages
273. Section 22 of the Prosecution of Offences Act 1985 enables overall and custody time limits to be set which apply during the preliminary stages of criminal proceedings, although not to the trial itself. If the prosecution were to appeal against a terminating ruling made prior to the commencement of the trial, the time limits set under section 22 of the 1985 Act would continue to run pending the outcome of the appeal. Clause 58 addresses this problem by inserting a new subsection (6B) into section 22 of the 1985 Act, which disapplies the overall time limit and the custody time limit for the period during which proceedings are adjourned pending a prosecution appeal under this Part of the Bill.
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