EFFECTIVE PROSECUTION OF MULTIPLE OFFENDING [2002] EWLC 277(7) (01 October 2002)

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URL: http://www.bailii.org/ew/other/EWLC/2002/277(7).html
Cite as: [2002] EWLC 277(7)

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PART VII

TWO STAGE TRIAL PROCESS

Introduction

We propose a two stage trial process for certain cases of multiple offending

In essence, the scheme borrows elements from two familiar procedures – the trial of a sample count and the Newton hearing. It combines them in a process in which the jury trial (during the first stage of proceedings) is a definitive element. At the end of a two stage trial, the judge can sentence the offender for the full extent of criminal activity, which will have been established by a separate decision on guilt on each alleged offence, after a trial at which the prosecution case and evidence has been tested.

The first stage of this procedure would be a conventional jury trial on an indictment containing charges chosen to show samples of the offending.

only

At stage two, the judge would decide on the guilt or innocence of the defendant in respect only of offences linked to those upon which the jury has convicted. Those linked offences will have been pre-selected and placed in a schedule attached to the indictment. The schedule would reflect the full extent of alleged offending. The offences in the schedule will be listed, as appropriate, in groups and each group linked with a specified sample count in the indictment. For example, the first fifteen offences in the schedule might be linked to count one, the next ten, or so, linked to count two, and so on.

After hearing evidence and argument the judge would decide whether or not the defendant is guilty of any, some, or all of the scheduled offences.

It is also important to emphasise that we only intend this method of trial to be available for use in cases of repeated similar offending which, prior to Kidd,

Preparatory hearing

Before the two stage process can be invoked, there would need to be a preparatory hearing at which the trial judge would decide whether or not this procedure should be used. The judge would have to be satisfied of three matters. First, 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. Second, that 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 schedule that are linked to that sample count and vice versa.

Kidd,

The type of case that we would regard as suited to this procedure is where it would be unthinkable that any judge would order separate trials in relation to the activity covered in the schedule 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 schedule. The specimen count on the indictment ought to be a true sample of the linked offences. The two stage process 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. It will thus only be used in those cases where the similarity between the specimen 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. We will now explain the procedure that we envisage, in more detail.

Stage one procedure

The defendant would be arraigned on an indictment containing the sample counts. If sufficient not guilty pleas are entered so that the prosecution seek trial there would be a trial on the indictment. Evidence in respect of alleged linked offences may be adduced as part of the prosecution case if the law of evidence would so permit in the same way as arose where trials were conducted on sample counts pre-Kidd,

The outcome of stage one proceedings

At the conclusion of the first trial the judge would be required to consider the future of all the alleged offences that are linked to the counts on the indictment. This will be so regardless of whether the trial on those sample counts resulted in an acquittal or a conviction.

Acquittal on a sample count

Following an acquittal on a sample count there would be a presumption in favour of a directed acquittal on the linked counts.

exceptional

new

Express provision should be made to this effect.

Where the judge is persuaded that the presumption in favour of a directed acquittal has been rebutted by the prosecution, then there will be an order that the case lie on the file on the usual terms.

The power of the judge to order that an offence should lie on the file on the usual terms gives rise to a collateral issue relating to the compatibility of such an order with Articles 5 and 6 of the ECHR. This matter is discussed separately below, at paragraph 7.90 et seq.

Conviction on a sample count

In order for there to be any question of stage two of the trial taking place there must have been a conviction on a specimen count(s) to which other alleged offences are linked in the schedule. Once there has been a conviction on one or more sample counts, the second stage proceedings would normally take place in relation to the linked offences in the schedule. The defendant should, however, first be given an opportunity to change his or her plea in respect of the linked offences. There would be no second stage of the trial if the defendant pleaded guilty to all the linked offences, or to sufficient for the prosecution to wish to offer no further evidence. 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 had 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 would be 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 procedure is intended to involve one trial process in two stages, not two trials. Any "interim" sentence might be misleading.

et seq

Should the trial judge have the power to overrule a prosecution wish to proceed to the second stage?

At the end of the first stage of proceedings the judge may take the view that the outcome of stage two would not make any significant difference to the sentence to be imposed. This may be because either:

(1) the appropriate sentence for the offences of which the defendant has been convicted, and/or to which the defendant has pleaded guilty, (such offences may include those in the schedule admitted by the defendant) would not differ significantly from the sentence that would be imposed following guilty verdicts on any remaining scheduled offences; or

(2) the judge has taken a view on the merits of the case, notwithstanding the conviction verdict of the jury, which would lead to verdicts of not guilty on the remaining scheduled offences if he or she were to try them to a conclusion.

Ruling based on adequacy of sentencing powers

At the seminar we held, the consensus of views on this issue was, given that the sole object of the second stage was to enable the judge to impose the appropriate sentence, that the judge should have the power to prevent the second stage from going ahead where there are already sufficient convictions to permit an appropriate sentence to be passed. We agree that where the judge is of the view that the pleas offered by the defendant at this stage are sufficient to impose a sentence that would reflect the totality of offending, but the prosecution wish to pursue the remaining offences, the judge should have power to refuse to allow the prosecution to insist on a second trial. In such a case the judge should be able to order that the remaining offences lie on the file on the usual terms, unless to do so would be unduly harsh or oppressive, in which case verdicts of not guilty should be entered. In the light of the fact that these will be offences linked to offences for which the defendant has already been convicted by a jury after a trial, we anticipate that it would only be in a wholly exceptional case that a directed verdict of "not guilty" would follow a decision that there be no second stage trial. If, after hearing argument from the prosecution, the judge rules that the case should not proceed to the second stage, the judge should make it clear in court that it would not in his or her view make any significant difference to the level of sentence and the defendant should be informed of that reason.

Presently the court does not have the power to prevent the prosecution presenting a case to the jury.

We expect that 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. Even were the prosecution to disagree with the judge on this issue, they might well, in most cases, give way graciously rather than insist on seeking to proceed against the wishes of the trial judge.

What persuades us that the judge should have the power to overrule the wishes of the prosecution in such a case is that to enable the prosecution to proceed with a second stage trial would, in such circumstances, be a waste of court time and expense. We believe that power should be vested in the judge to prevail on this issue when satisfied that, were the Crown to contest any remaining offences in the schedule, the outcome, whatever it might be, would make no significant difference to the level of sentence. In this regard, the power we propose is akin to the power of the judge to decline to accede to a request for a Newton hearing to determine the basis of a plea of guilty for the purpose of measuring sentence.

Ruling based on merits

An additional reason for declining to proceed with stage two of proceedings would be that the judge has, by the end of the first stage trial, formed a firm view, adverse to the prosecution, of the evidence crucial to the remaining scheduled offences. If, in light of that view, the judge realises that there would be little prospect of a guilty verdict being reached at the end of the second stage of proceedings, he or she should be able to decline to proceed with stage two.

At present, in cases where the Crown wishes to offer evidence but the judge does not wish the case to proceed, A-G Reference (No 2 of 2000)

There are two fundamental differences between our second stage proceedings and the trial proceedings in A-G Reference (No 2 of 2000).

Our recommendation would not in reality encroach upon the prosecution's right to present their case to the jury. Although the second stage trial would not be heard by a jury, it would relate to offences which under present procedures would have been too numerous for the prosecution to put before a jury. In a case where the judge has already decided that the case ought not to proceed because he or she would be minded to acquit the defendant of outstanding matters, there would be no point in the prosecution presenting its case to the judge.

What powers should the judge have regarding linked offences not proceeded with?

Following conviction on sample counts the judge might not proceed to stage two for the range of reasons discussed. The defendant may have offered sufficient pleas for the Crown to be content not to proceed on the outstanding contested matters. The judge may have indicated that the matters in respect of which guilt has been established confer sufficient sentencing powers to reflect the totality of the offending without the need for findings on all matters. The judge may have indicated a view of the merits which means that a second stage trial is unlikely to result in verdicts which will require any significantly different sentence.

The options are that the judge: a) be obliged to direct a verdict of not guilty be entered on the contested matters included in the schedule; b) be obliged to order that those remaining offences lie on file on the usual terms, or c) be free to choose the most appropriate order, depending on the circumstances of the case.

We have concluded that there should be a presumption that such offences remain on the file. This would safeguard the position of the Crown in the event of a successful appeal against conviction on one or more of the sample counts.

Where a judge rules against a prosecution wish to proceed with stage two on the basis of his or her firm view, adverse to the prosecution, of the evidence crucial to the remaining scheduled offences, that ruling would be based on the judge's personal view of the evidence of some witnesses, but without there having been any trial of those remaining scheduled offences. Given that the jury was entitled to, and did, convict on that evidence, it would hardly ever be the case that it would be proper for the judge to do other than order the remaining cases to lie on the file.

Ruling not to proceed with stage two – implication on confiscation powers

We were concerned lest a judge's ruling against proceeding with stage two of the trial might hamper the prosecution in any application they may make for a confiscation order against the defendant. These are regarded as civil orders which can only be made pursuant to a criminal conviction. Where a defendant has been convicted of at least two offences during a relevant period,

Should the trial judge have a power at the end of stage one proceedings to certify that the case is fit for appeal?

We have considered whether, at the end of the first stage of proceedings, the trial judge should have power to certify that he or she is satisfied that there is a ground of appeal which has a substantial chance of success and on that basis adjourn the question of a stage two trial on the linked offences until after any appeal on the jury conviction has been heard. We believe that the judge should have such a power. Otherwise, the situation could arise where the judge is aware of the fact that there is a very strong ground of appeal, but have to waste time and resources continuing with the balance of proceedings in the knowledge that this will, in due course, be subject to an appeal. It would be a matter for the discretion of the judge in the particular case whether to proceed to stage two or adjourn consideration of stage two pending the outcome of the appeal.

Should the Crown have a right of appeal against a judge's ruling that the trial will not proceed to stage two?

Some respondents to our proposals, including the DPP, believed that the Crown should have a right of appeal against a ruling that a case should not continue to stage two. At first blush we were inclined to agree. This would chime with the inability of the judge to overrule a Crown choice to proceed with a jury trial. On reflection, however, we do not think that there should be a right of appeal, as such.

If the reason for the ruling is that the judge would not have convicted on the outstanding linked matters then there should be no right of appeal because the view of the judge is a view on the facts. The Crown should not be able to appeal on the basis of a finding of fact, whether that is a decision of a judge or of the jury.

If the judge was wrong in making the assessment that a proper sentence for the outstanding matters would not be significantly greater than for the offences convicted by a jury then the true analysis is that he or she will have passed a sentence which, the prosecution will wish to argue, is unduly low for the extent of the offending alleged even though it may have been proper for the offending the jury found proved. The problem is that the prosecution will not, in such a case, be mounting an appeal against the sentence actually passed for the proved offences as constituting an unduly lenient sentence pursuant to the Attorney General's reference procedure. Rather, any prosecution right of appeal could only be on the footing that if the judge were to have found the defendant guilty of the linked offences after a second stage trial, then the sentence he or she has actually passed, if it had been passed then, would be unduly low for the extent of the offending found proved at that stage.

We believe that the double contingent reasoning required of the Court of Appeal in such a case is highly unattractive and that in this situation the judgment of the trial judge on such a matter should be final just as it is at present where he or she refuses to hold a Newton hearing. Without the introduction of the two stage trial procedure, the Crown would not, in practice, have been able to put the bulk of the scheduled offences before the court anyway and so their position is not in fact adversely affected compared with their present position.

Discount for guilty plea

If the defendant entered a plea of guilty at, or before, the start of the jury trial, there would be the usual entitlement to discount in sentence for that plea. The defendant would also have an opportunity to ask the court to take into consideration, for the purpose of sentence, the linked offences in the schedule and the discount would extend to the overall sentence.

If the defendant pleaded guilty to the linked offences after trial by jury on the sample counts, he or she would still be entitled to some discount in sentence for that plea. The extent of this would be a matter for the judge having regard to the weight of the evidence and the stage at which the plea has been entered. In cases where there is overwhelming evidence of the offences in the schedule and the defendant has, after trial, been convicted of the sample offences, any credit for plea at that stage would be reduced to account for those factors. The judge would be entitled to regard the weight of evidence against a defendant on the scheduled offences as increased by the fact that there have been convictions on offences tried before the jury, where the evidence in respect of those offences was admissible in respect of linked offences in the schedule. Nevertheless, it is vital that there remains some incentive to a defendant not to insist on continuing to the second stage of the trial where he or she is guilty of the linked offences but was not prepared to admit them before the jury trial.

Second stage of two stage procedure

Safeguards

There will need to be safeguards to ensure that the two stage procedure will work fairly. In particular, we regard the following three requirements as pre-requisites.

(i) Requirement of evidence based on similar fact evidence

We have already seen that no offence will be allowed to be included in the schedule, linked to a sample count in the indictment, unless evidence relating to the sample count would be admissible on a trial of the linked offences and vice versa.

(ii) Rules of evidence and procedure

These proceedings will involve the determination of issues of fact which might lead to further convictions. Accordingly, the rules of evidence and procedure in the trial before the judge will be equivalent to those which apply in a jury trial.

(iii) Reasoned rulings and verdicts

It will be necessary for the judge to give reasoned decisions whenever a ruling is required. These will normally be at the end of the preparatory hearing, when rulings will be made on the proper form of trial, the content of the indictment of sample counts and the schedule of linked offences; at the end of the first stage of the trial, when rulings will be made on the future course of proceedings; at the end of the second stage of the trial, when the judge will make reasoned findings of fact and conclusions about guilt or innocence in respect of each offence; and finally, after mitigation, the sentencing remarks.

The jurisprudence of the European Court of Human Rights makes clear the importance of reasoned decisions. The decision in Murray

The judge's reasons would not normally be expected to make any but passing reference to the verdict of the jury, unless there is some overriding reason why the judge should allude more substantively to the original verdict. It ought to be made clear in the reasons that the decision of the judge is independent of the jury verdict and that the linked counts have been the subject of separate scrutiny. This issue is discussed in more detail below.

Who should preside over the court in the second stage of proceedings?

Should it be the same judge as presided at the first stage or a different judge?

We are of the view that the second stage of the trial should usually be presided over by the judge who presided over the first stage. There is good reason to suppose that this would be advantageous. The judge will already have heard the evidence on the sample counts, and perhaps much of the evidence concerning the linked offences, so the second stage of the trial would be shorter and require less repetition by witnesses of their evidence than if there were a new judge at that stage. Moreover there are no reasons to suppose that it would normally be disadvantageous to the defendant. The first stage judge is not a party to any finding of guilt by the jury at stage one and so should not for that reason be disqualified by any perception of bias.

An issue may be raised whether the defendant may be disadvantaged by the experience of the judge during the first stage of proceedings, because it might give rise to prejudice at the second stage. Even if there were no question of actual bias, there might be the appearance of bias.

The use of the same judge for both stages of the trial procedure is not crucial to our thinking. We do not propose that it be compulsory. Indeed there may be occasions when it will not be possible, because of practical time-tabling matters, for the same judge to preside over both stages of proceedings. Thus the judge for stage two could be a different judge although, as we have indicated above, there would be disadvantages relating to the need to re-present some of the evidence if that were the case.

It might be thought that it would always be advantageous to a defendant to have a different judge at stage two from the one who has presided over a stage one trial at which there was a conviction. That, however, would be a superficial view and it need not invariably be the case. The finding of guilt by the jury might have followed a trial in which the judge was manifestly and impeccably fair, or even expressed some misgivings about the prosecution case, having perhaps appeared to have "summed up for an acquittal" though leaving it to the jury; or the judge for the first stage may have the reputation of being a less harsh sentencer than the likely alternative. Each case will be different. Further, under the rules of evidence, the new judge at the second stage of the trial would be entitled to hear evidence relating to linked offences in the indictment,

The question of the propriety of having the same judge at different stages of proceedings has been litigated in the ECtHR. Morel v France

The court held that there had been no violation of Article 6(1), based on two tests for assessing impartiality:

[T]he first consists in seeking to determine the personal conviction of a particular judge in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect … . [As to the first test] the personal impartiality of a judge must be presumed until there is proof to the contrary. ^[40]

In considering whether or not the second test is met, the court concluded that the domestic court should consider if there are any "ascertainable facts which may raise doubts as to [the bench's] impartiality … even appearances may be of some importance".

The function of the judge in the different sets of proceedings was said to be highly relevant to the question of impartiality. The ECtHR concluded that as the judge had been making decisions in a "different sphere",

Under our recommendations, in the first stage of the trial the judge's role would be confined to the making of rulings on law and procedure, and summing the case up to the jury. The jury would make findings of fact. At the second stage, the judge would make findings of fact. Thus, the judge would occupy a different role at each stage. In the second stage of our proposed procedure, the judge could be said merely to have "detailed knowledge"

Morel v France

We have concluded that there should be a presumption that the judge presiding at the first stage of the trial should conduct the second stage, subject to an "interests of justice" based power in the judge to withdraw and order that a different judge try the second stage trial where the well established rule concerning the perception of bias would be one of the explicit grounds for his or her removal.

Should the judge sit alone for the second stage of the trial or would it be necessary for that judge to sit with assessors?

A further question is whether the judge should sit alone for the second stage of the trial or whether it would be necessary for that judge to sit with, for example, assessors. Strong support for the judge to sit alone was expressed within the written responses and this proposal was uncontroversial at the seminar we held for these matters to be discussed.

We can see no good reason for requiring the judge to sit with assessors. First, if the sample count is appropriate for determination by a non-specialist jury, there is no reason to suppose that a judge would need specialist assistance at the second stage. Second, unlike the proposal in the Auld Report for an intermediary tier, or for the trial of serious fraud offences, each of which propose a lay element finding facts alongside the judge, there will already have been a trial with a decision taken by a jury of lay people as a trigger for this second stage. Third, it is already the case that many decisions on guilt or non-guilt are made in the Magistrates' Court by District Judges, professional judges sitting on their own. Fourth, the procedure is modelled on the Newton hearing for which there has never been any suggestion that the judge has needed any lay assistance in making findings of fact.

If the judge were to sit alone in the second stage of proceedings there would be striking similarities between this role and that of the judge in a Newton hearing, in that the judge would be required to make findings of fact relevant to sentence after the defendant has been convicted of one or more offences. Of course under this procedure the judge's findings of fact at the second stage will go to whether the defendant is guilty or not guilty of specific offences, rather than solely to the manner in which a proven offence was committed. On the other hand the factual decisions which the trial judge may presently make under the Newton hearing procedure on sentence may have a significance for sentence at least as great if not more so than those envisaged in this procedure.

The recommendations made in the Auld Report envisage that defendants should, with the consent of the court after hearing from both sides, be free to opt for trial by judge alone.

a defendant

In short, trial by judge alone, if the defendants wish it, has a potential for providing a simpler, more efficient, fairer and more open form of procedure than is now available in many jury trials, with the added advantage of a fully reasoned judgment.^[49]

Finally, were there to be a requirement that the judge sitting in the second stage be accompanied, that would remove the possibility of the judge who presided over the jury trial presiding at the second stage of proceedings because otherwise that judge would be hearing a trial as part of a panel of fact-finders where he or she is the only one that had heard the first stage. Thus the advantages of having the same judge conducting both stages of the trial would be lost.

It is our clear view that there is no need for the judge at the second stage to sit with lay assessors, whether expert or otherwise. The Government in its White Paper, Justice for All,

Reference at the second stage to evidence adduced at the first

If the second stage trial is conducted by the first stage trial judge, it is inevitable that consideration will have to be given to the question of what evidence or which witnesses will need be called or recalled at the second stage. As it is a single trial in two stages, normally before the same judge, there will usually be no need for evidence to be repeated. It may be, however, that witnesses will need to be recalled to give further evidence in chief or to be subject to further cross-examination on the issues which may need to be ventilated at the second stage but which have not been at the first. These are matters of trial management which we expect the judge to discuss with the parties at the end of the first stage trial and to take appropriate decisions upon, in the interests of justice. As the pre-trial hearing will have identified as linked cases only offences in respect of which the evidence is cross-admissible we can see no problem with evidence being relied on at the second stage which has been adduced at the first stage. Further, as indicated above, we are not concerned that the judge may be required to make decisions that involve consideration of evidence given at the earlier stage. During the first stage, findings of fact will have been a matter for the jury, during the second, they will be a matter for the judge.

Relevance of first stage convictions in second stage proceedings

The usual rules regarding the evidence of a conviction are that the conviction is proof of guilt unless the contrary is proved.

The fact that there is only one trial, falling into two procedural stages, raises the question whether it might be incongruous that there is only a presumption that evidence of conviction is proof of guilt. Professor Sir John Smith responded on this question that it would be "surely unthinkable that the single trial should present contradictory answers - D did commit the offence and he did not. Should not the presumption be conclusive in this case?"

This argument depends for its force on it being incongruous for the presumption of guilt by reason of proof of conviction to be rebuttable. We do not believe that it is. At the second stage of the trial the defendant might be able to present new evidence in respect of the count for which he or she was convicted at stage one, which overwhelmingly rebuts the presumption that he or she committed the offences on which the jury convicted at stage one.

Would the judge at the second stage be free to make his or her own decisions?

We now consider the freedom we intend the second stage trial judge to have to come to his or her own view of the evidence in respect of the linked charges. This is an important question upon which we seek to make our views as clear as can be, lest it be thought implicit in our recommendation that the second stage trial might proceed on a presumption, or an assumption, that the defendant will be convicted unless he or she produces some new evidence or argument.

Questions were raised upon consultation whether the judge may feel obliged to make decisions in accordance with the verdict of the jury, unless some clear new point or development emerges. The logical conclusion of this line of reasoning was the suggestion by Professor Sir John Smith that a conviction at the first stage should give rise to an irrebuttable presumption of guilt of the first stage offence thus tying the hands of the judge at the second stage. We have rejected this suggestion for the reasons set out above.

We wish to make it clear that the judge must be free to come to his or her own decision on the guilt of the defendant on the linked matters. The judge is not obliged to decide these matters in a way which follows the jury's decision on the specimen count. The judge may well in fact share the view of the jury on the evidence given at the first stage of the trial and may retain that view at the end of the further evidence and argument. Indeed, in cases where the evidence is compelling we would expect realistic defendants and their advisors to understand the likelihood of the judge sharing the view of the jury and to take the opportunity of pleading guilty to sufficient offences in the schedule so as to make the second stage of the trial unnecessary.

However, where the question of guilt depends on the credibility of witnesses the judge may not share the view of the jury and should be free, indeed should be obliged, to reflect that different view in his or her decisions. This is no more than a reflection of the fact that different people may reasonably come to a different view, particularly where the issues involve assessment of credibility.

There is nothing particularly unusual about the situation we envisage in which a trial judge may disagree with a conviction by a jury. Any regular practitioner in the criminal courts will have experience of cases in which the judge has "summed up for an acquittal" but the jury has convicted. There is nothing inherently illogical in such a situation. One of the two bases on which a case may be withdrawn by a judge from a jury is the ground that no jury properly directed could properly convict on the evidence.

We have already indicated that where, at the end of the first stage of the trial, the judge is of the view that he or she would be unlikely to convict the defendant of the linked offences then, in deference to the verdict of the jury, the judge would be able to decline to proceed to a second stage trial on the ground that it was unlikely that any significantly higher punishment would be imposed at the end of that stage. Indeed we would expect most judges to take such a course in such a case. In that event there would be no question of there being inconsistent verdicts; there would only be one verdict, that of the jury, on offences which would then be the subject of an appropriate sentence. Where there is to be a second stage however, it is vital for the legitimacy of our recommendation that, consistent with the principles identified in Kidd,

Inconsistent verdicts

In the event that the judge, at the second stage, having heard all the evidence, were to return a different verdict from that of the jury at the first stage, there might, conceivably, be an appeal by the defendant against the first stage verdict on the grounds that this inconsistent verdict of guilty is unsafe. Whether that were so would depend on the reasons for the different verdict. The general rule is that where the jury convict on one count but acquit on another, the Court of Appeal will quash the conviction on grounds of inconsistency "if, and only if, the conclusion reached by the jury is one at which no reasonable jury who had applied their minds properly to the facts … could arrive".

The court elaborated:

[T]he fact that two verdicts were shown to be logically inconsistent might not by itself be a reason for quashing a verdict unless the only explanation for the inconsistency must or might be that the jury was confused and/or adopted the wrong approach, thus making the verdict complained of unsafe.^[59]

[I]t was axiomatic that, generally speaking, logical inconsistency was an essential prerequisite for success on this ground (Durante 56 Cr. App. R. 708). It was only after logical inconsistency had been demonstrated that the Court would look to see whether or not there was a sensible explanation for the inconsistency … the Court in Cilgam^[61] explicitly rejected the submission that where a complainant's credibility is in issue and her evidence is uncorroborated, guilty verdicts must be regarded as unsafe because the jury also returned not guilty verdicts on other counts.^[62]

Such authority as there is suggests that these principles should apply whether or not the inconsistent verdicts were reached by the same fact-finding body.

The verdicts under our procedure would emanate from two different sources. At present where an indictment has been severed and separate trials have been ordered on any count or counts, the verdicts will be returned by different juries. This will also be the case where persons concerned in a single offence are tried separately. The Court of Appeal

[A]s long as it is possible for persons concerned in a single offence to be tried separately, it is inevitable that the verdicts returned by the two juries will on occasion appear to be inconsistent with one another. Such a result may be due to differences in the evidence presented at the two trials or simply to the different views which the juries separately take of the witnesses.^[66]

That of itself will not make a guilty verdict unsafe. The court in Andrews-Weatherfoil Ltd

^[67]

When inconsistent verdicts are returned by the same jury, the position is usually more simple. If the inconsistency shows that that single jury was confused, or self-contradictory, its conclusions are unsatisfactory^[68] or unsafe and neither verdict is reliable. Very often, however, an apparent inconsistency reflects no more than the jury's strict adherence to the judge's direction that they must consider each case separately and that the evidence against one may not be admissible against the other: for example, where there is a signed confession. So too, where the verdicts are returned by different juries, the inconsistency does not, of itself, indicate that the jury which returned the verdict was confused or misled or reached an incorrect conclusion on the evidence before it.^[69] The verdict "Not Guilty" includes "Not Proven". We do not therefore accept [the appellant's] submission that inconsistent verdicts from different juries ipso facto render the Guilty verdict unsafe. If, as will usually be the case, the evidence at the two trials was significantly different, this not only explains the different verdicts but also defeats the claim that inconsistency alone renders the Guilty verdict unsafe.^[70]

Thus, the possibility that the judge might reach a different decision at the end of stage two from that of the jury does not in any way invalidate the two stage trial procedure any more than it invalidates the process of, on occasions, having successive trials. The important point is that the second stage trial will be a genuine trial the outcome of which will by no means be preordained by presumption or expectation.

our response to issues arising from our recommendation

Dispensing with jury trial in respect of some of the charges

This recommendation may give rise to concern at the prospect of a defendant not having an opportunity for jury trial in respect of all charges that are faced. As far as the European Convention on Human Rights is concerned, non-jury trials are not a problem. We note that in Kidd,

[T]his, as it was put in Huchison [1972] 1 W.L.R. 398, 400 is to "deprive the appellant of his right to trial by jury in respect of the other alleged offences." Unless such other offences are admitted, such deprivation cannot in our view be consistent with principle.^[73]

We read this as being an observation that the process there described resulted in the person being sentenced for offences in respect of which there had been no trial at all rather than as a criticism of trial by judge alone. The same criticism could not be made of our recommendation because the defendant would only be sentenced for offences which had been the subject of a trial before a properly constituted body. The proposed two stage procedure requires everything to be proved to the criminal standard in a trial before sentence can be passed. Moreover, the procedure still provides a pivotal role for trial by jury. There is a presumption that an acquittal by a jury of one or more counts will lead to an acquittal on scheduled offences linked to such count(s).

Kidd

Although we do not see any potential for non-compliance with the ECHR, we do accept that the proposed procedure would entail a limited encroachment upon the present right to be tried by jury. In light of this, we have considered whether our recommendations constitute a proportionate response to the difficulties posed in effectively prosecuting multiple offences. The approach taken in R v A

de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing,

In a case of multiple offending, where there is ample convincing evidence against the defendant of the whole scale of offending, but where a large number of counts would be required to represent it, we believe that it is legitimate for society to demand that these offenders are properly prosecuted and sentenced for the full extent of their offending. If jury trial on each of the alleged offences is practically impossible, the stark choice may be between abandoning the goal of proper sanction for wrongdoing in such cases, or making a limited inroad into the role of the jury.

Abolition of jury trial by stealth

Concern that our proposals represented a "slightly more Machiavellian way of dispensing with jury trial" was raised in a consultation response. We do not see our recommendations as an attempt to remove the right to jury trial by the back door. On the contrary, our proposals would preserve jury trial in some cases of serious fraud where currently, pursuant to the policy of the Government expressed in the White Paper, Justice for All,

Kidd,

The current proposals for removing jury trial relate to "serious fraud" offences. Some of the cases of repetitious multiple offending which would be susceptible to our two stage procedure may well fall within the description of "serious fraud". Thus, adoption of our proposals for the two stage trial of multiple offending would preserve a central and manageable element of jury involvement for some of the cases which otherwise might be tried without any jury involvement. Of course our scheme would not touch those cases of "serious fraud" which are not susceptible to the specimen count approach. Nonetheless our proposal would provide a manageable alternative mode of trial for at least some cases of serious fraud.

Conviction by a single judge

There is no long standing or universal principle prohibiting a defendant from being sentenced for what a single judge has found against him or her. There are many examples of that happening at present. For example, individual District Judges (Magistrates' Court) sentence every day in the Magistrates' Courts on the basis of their findings of guilt; for very different reasons judges without juries convict of very serious offences in Northern Ireland; single judges in criminal courts and in civil courts can imprison people for contempt of court on the basis of their findings of guilt either when controlling conduct in their courts or when dealing with parties for non-compliance with court orders; single judges can pass "significantly different" sentences on the basis of their conclusions on disputed matters of fact after Newton hearings; single judges in cases such as burglary, rape, or multi-handed prosecutions pass sentence at the end of the trial, on the basis of their view of the facts following an "inscrutable" jury verdict of guilt where there have been issues in dispute within the parameters of the jury's verdict.

Until 1998 and the decision in Kidd,

Judges are already required to apply the highest standards of accuracy and impartiality and are already subject to critical scrutiny by the Court of Appeal. The safety of a conviction by a jury depends on and is, on appeal, overwhelmingly likely to be judged by reference to the accuracy of the summing up of the trial judge on matters of law and the fairness of his or her treatment of the evidence in the course of the summing up.

For the above reasons, we are satisfied that convictions on the linked offences by a single judge would not infringe any fundamental principles of fairness and are part of a proportionate response to the problem posed.

Would the two stage procedure reduce the time taken to deal with a case?

Some respondents expressed doubt about the potential for this recommendation to reduce the time taken to deal with cases and to make them less unwieldy.

Were this proposal to be intended to apply to all complex and serious frauds then this would be a valid concern. It is, however, limited in its scope only to apply in those cases of repetitive offending which, but for the ruling in Kidd,

If the two stage process is used only where it is intended, that is in cases of multiply repeated offending of a similar nature, and is not applied to wide ranging, highly complex and factually differentiated cases, it will only be used in those cases where the similarity between the specimen 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.

In our view, if our proposal is appropriately used, it is unlikely that trial judges will be mired in extensive second stage trial hearings. Further, the availability of this procedure will, we believe, result in fewer contested trials than at present. As we have explained, for this type of offending there is at present a positive incentive to take advantage of the shortcomings of the system by contesting matters which can only proceed on a few counts rather than pleading guilty and asking for the full extent of the offending to be "taken into consideration".

Lying on the file: ECHR issues

Under our recommendation the power of the judge to order that scheduled offences should remain on the file will differ depending on whether there has been a conviction on the relevant sample count or an acquittal. Where there has been an acquittal on a sample count, there is a presumption that the judge will direct that verdicts of not guilty be recorded on the linked offences but in exceptional circumstances the judge may direct that an offence should lie on the file on the usual terms.

In ex parte Raymond,

It starts off by having the same effect as an order for an adjournment but an adjournment which it is accepted may never result in a trial.^[86]

Article 6(1) stipulates that defendants must be tried within a reasonable time.

It has been argued that if charges are to remain on the file for an unspecified time, the defendant will not have the "fair and public hearing within a reasonable time", to which Article 6(1) says he is entitled in the determination of any criminal charge against him. Such an analysis has been rejected by the Commission, which has found that once charges have been placed on the file, not to be proceeded with without leave of the court, the time requirements of Article 6(1) cease to apply.

In Roy and Alice Fletcher v United Kingdom

it is established practice in English law that a second indictment left on the file is never proceeded with so long as the conviction on the charge of murder remains undisturbed … there is thus in fact no criminal charge against the Applicants which requires to be determined and … there is thus no violation of Article 6 of the Convention.^[90]

This principle was restated in X v UK.

the charges which 'lie upon' the applicant's file are no longer outstanding. The applicant no longer risks prosecution on these offences and, accordingly, he is not subject to any further criminal charges whose determination must be effected within a reasonable time in accordance with Art. 6(1) of the Convention.^[92]

In FL v United Kingdom,

the established practice in English law of not proceeding with other charges so long as the first conviction remains undisturbed, coupled with the judicial control over any further proceedings, means that in fact the accused is no longer faced with any criminal charges which require determination.^[96]

If in any case it appears that, for a particular reason extraneous to the trial process, there may be a breach of Article 6, where linked offences continue to remain on the file indefinitely then, as occurred in Johnston and others

Smith (Richard),

Benefits of two stage process

We set ourselves the task of devising a procedure which would resolve, as best we could, an intractable problem. We envisage a number of advantages to adopting the two stage process:

(1) It would preserve jury trial in respect of core examples of the defendant's criminality.

(2) It would ensure that the jury trial is manageable and comprehensible.

(3) It would ensure that defendants would not be able to take advantage of the practical limits of trial by jury so as to go unpunished for a significant part of their offending.

(4) Defendants would only be sentenced for offences which have been proved to a court after a trial.

The two stage procedure would allow full expression of each of the competing requirements of justice identified earlier: (i) the need for a defendant to be sentenced only for offences that are admitted or of which the defendant has been convicted after having had the opportunity to challenge the evidence; and (ii) the need for defendants to be tried and sentenced for the full extent of their criminality.

Under this procedure, the defendant would be given a fair hearing, with an opportunity to present a defence in relation to any or all of the alleged offences. The Crown will be able to seek verdicts of the court that will enable the judge to sentence the defendant for the full extent of his or her offending.

In our view, this recommendation reflects the strength of the pre-Kidd

Finally, in our view this system would be likely to encourage guilty defendants, either on initial arraignment or after conviction of a number of sample offences, to plead guilty to or to admit any linked offences of which they are also guilty.

Conclusion

Our "compound allegation" recommendation has been designed to maximise the effective involvement of the jury in determining guilt in cases of multiple offending where this is possible. Where the nature of a case is such that this approach would not be suitable, we regard the proposed two stage procedure as satisfying the requirements of justice and the best way forward.

Recommendation for a two stage trial procedure

Where there are allegations of repetitious offending which are not apt to be described as a continuous offence but which, prior to Kidd,

^[103] could have been dealt with by means of specimen counts we recommend a two stage trial procedure, as follows:

(1) The first stage of the trial will take place before judge and jury in the normal way, on an indictment containing specimen counts.

(2) In the event of conviction on one or more counts, the second stage of the trial may follow, at which the defendant would be tried by judge alone.

(3) The judge will, at that stage, determine questions of guilt in respect of any scheduled offences linked at a pre-trial hearing to a specimen count of which the defendant has been convicted.

Note 1    See para 7.6, below.    [Back]

Note 2    We envisage that the charges chosen for inclusion in the indictment would be comparable to those chosen in the pre-Kidd days for inclusion as “sample” or “specimen” counts.    [Back]

Note 3    Talk of dispensing with juries altogether in serious and complex fraud trials has long been prevalent; see, eg, the report of the Roskill Committee, Fraud Trials Committee Report (1986) and Auld LJ, Review of the Criminal Courts of England and Wales (2001) ch 5, paras 173-206.    [Back]

Note 4    A finding of guilt after stage two of the trial would count as a conviction for the purposes of the Company Directors’ Disqualification Act 1986 s 2.    [Back]

Note 5    Although that conviction will, in accordance with s 74(3) of the Police and Criminal Evidence Act 1984, be proof of guilt unless the contrary is proved. This is discussed below at paras 7.60 – 7.62.    [Back]

Note 6    See below at paras 7.63 – 7.75.    [Back]

Note 7    [1998] 1 WLR 604.    [Back]

Note 8    One seminar delegate raised the question of whether it might not suffice if all the offences could, in theory, be joined in the same indictment under the terms of rule 9 of the Indictment Rules 1971. However, the point about our proposal is that we are dealing with repeated instances of the same type of behaviour possibly applied to different victims. We believe that if the similar fact connection were to be lost there is a danger that the proposal would extend beyond the limited area in which it is intended to work.    [Back]

Note 9    [1998] 1 WLR 604.    [Back]

Note 10    Note the leading case is DPP v P [1991] 2 AC 447, in which Lord Mackay LC held, at p 460. … the essential feature of evidence which is to be admitted is that its probative force … is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. The “striking similarity” test used in Boardman [1975] AC 421 was stated to be only one of the ways in which the enhanced relevance required of similar fact evidence may be found. It was said that to regard “striking similarity” as an essential qualification for the admissibility of similar fact evidence is “to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it” (DPP v P [1991] 2 AC 447 at p 460). For a summary of the existing law, see Part II of our report Evidence of Bad Character in Criminal Proceedings (2001) Law Com No 273.    [Back]

Note 11    This Bill is annexed to our report, Evidence of Bad Character in Criminal Proceedings, ibid. In relation to similar fact evidence, the recommendations in the report reflect the approach taken in DPP v P [1991] 2 AC 447, combined with an interests of justice test, in which the potential prejudice to the defendant must be weighed against the probative value. The evidence will be admissible if it is required in the interests of justice.    [Back]

Note 12    [1998] 1 WLR 604.    [Back]

Note 13    The reason for this is that if the prosecution has decided to avail itself of this procedure, and the court has agreed that the offences are so similar that they may be properly linked such that a finding of guilt by jury on one leads to the burden for the defendant of consideration of guilt on the others by a judge alone, then it must logically follow that, upon an acquittal by the jury, the defendant should be entitled to the parallel “knock on benefit” of that verdict on the linked matters.    [Back]

Note 14    The reason that this would be a new prosecution, not simple inclusion as scheduled offences within the stage two procedure, is that, as there has been no finding of guilt on the sample count in the indictment tried by the jury, the pre-condition for stage two proceedings has not arisen.     [Back]

Note 15    For example the judge might think that the jury was gullible in accepting a version of events or explanation put forward by the defendant. That would not be a sufficient reason to refuse to acquit on linked offences.    [Back]

Note 16    That is, not to be proceeded with without the leave of the court. In the ordinary course of events, it would be unusual for subsequent proceedings to be commenced in respect of an offence which has been ordered by the court to remain on the file. Should leave be sought, where to proceed would be oppressive, there is a judicial discretion to refuse leave to proceed with a prosecution. See Riebold [1967] 1 WLR 674.    [Back]

Note 17    Criminal Justice and Public Order Act 1994 s 48 (s 152 of the Powers of Criminal Courts (Sentencing) Act 2000) requires a court when determining the appropriate sentence to pass on an offender to take into account the stage in the proceedings at which the offender indicated his intention to plead guilty and the circumstances in which that indication was given. See also Barber, The Times 20 November 2001.    [Back]

Note 18    Apart from in cases where the judge believes that he or she has adequate powers of sentencing at the end of stage one, a preliminary sentence at that stage would have no bearing on the final sentence.    [Back]

Note 19    A-G Reference (No.2 of 2000) [2001] 1 Cr App R 503.    [Back]

Note 20    See Hall (1984) 6 Cr App R (S) 321: “Where there is a difference between the version of the facts put forward by the prosecution and that put forward by the defence, it is not necessary for the sentencer to determine which view of the facts is correct if the difference would not materially affect the sentence” (Editor’s note).    [Back]

Note 21    We consider below, at paras 7.69 – 7.75, the significance of a finding by the judge that is inconsistent with the verdict of the jury.    [Back]

Note 22    [2001] 1 Cr App R 503.    [Back]

Note 23    Ibid.    [Back]

Note 24    This contrasts with the presumption of an ordered not guilty verdict we recommend in respect of scheduled offences that are linked to counts in respect of which the defendant has been acquitted. Our reasons for this difference appear in n 13, above.    [Back]

Note 25    See s 17 of the Criminal Justice Act 1967. Any direction given that does not accord with the provisions of this section will be a nullity (Griffiths (1981) 72 Cr App R 307). If however the prosecution do wish to present their case to the jury, they are entitled to do so, even if the judge does not believe the case has sufficient merit (A-G Reference (No 2 0f 2000) [2001] 1 Cr App R 501).    [Back]

Note 26    See para 7.21, above. This approach accords due respect to the verdict of the jury which the judge, in allowing the case to be considered by them, has implicitly accepted they were entitled to reach notwithstanding that he or she has formed a view of the evidence which might have led him or her to a contrary decision. It must, of course, be remembered that the judge has not had the advantage of the process of argument or reasoning which informed the jury’s collective decision.    [Back]

Note 27    Relevant period is defined in s 72AA(7)(b) as meaning “the period of six years ending when the proceedings in question were instituted against the defendant”.    [Back]

Note 28    Inserted by the Proceeds of Crime Act 1995, s 2.    [Back]

Note 29    The Privy Council has held in McIntosh v Lord Advocate [2001] 2 All ER 638 that since the defendant has already been convicted to a criminal standard, and the order is imposed pursuant to that conviction without any further charges being brought, the order is a legitimate part of the sentencing process. As the provisions are designed to prevent a person from profiting from their wrongdoing, it is a regarded as a proportionate response.    [Back]

Note 30    In theory, an order to lie on the file might result in an application subsequently for leave to proceed on a second trial on the remaining counts. It is inconceivable however that leave might be granted on the ground that the judge hearing the application was of the view that the first trial judge’s ruling was wrong.    [Back]

Note 31    See para 7.7, above.    [Back]

Note 32    It may be, however, that some rules, which exist solely due to the presence of a jury, will be redundant or in need of modification, if there is no jury sitting. For example there would be no need to send the jury out while a voire dire is conducted and no need for the judge to issue directions to the jury. This issue was highlighted in a study of the Diplock courts in Northern Ireland, in which the judge sits without a jury. “Certain rules of evidence and procedure are so closely bound up with the institution of the jury that their effect is diminished in its absence.” J Jackson and S Doran, Judge without a Jury (1995) p 255.    [Back]

Note 33    Murray v UK [1995] 19 EHRR 193.    [Back]

Note 34    At paras 7.63 – 7.75.    [Back]

Note 35    According toMorel v France, discussed below at para 7.47 – 7.51, the role of the judge in different sets or stages of proceedings ought to be taken into account in assessing whether or not a perception of bias is objectively justified. Occupying distinct roles reduces the extent to which the judge can be considered biased.    [Back]

Note 36    Gough [1993] AC 646 held that the test on the question of bias should be whether or not there is a real danger of bias having regard to the circumstances of the case deemed relevant by the court; there is no need to prove that the tribunal was in fact biased. However, in Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, the court held that the Strasbourg jurisprudence necessitates a “modest adjustment” (at p 726H) to the test laid down inGough: “The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased” (at p 727A). This modified test was approved by the House of Lords in Porter and another v Magill [2002] 2 WLR 37, although the deletion of “or a real danger” was advocated, on the grounds that it served no useful purpose and is not used within the Strasbourg jurisprudence. Thus, the test is “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” (at p 84A–B).    [Back]

Note 37    It will be recalled that a prerequisite to the commencement of two stage proceedings would be a preparatory hearing at which the judge would have to be satisfied that: the sample counts and linked offences can be established such that the evidence on each sample count would be admissible on each of the offences in the schedule linked to that sample count and vice versa. (See para 7.7, above).    [Back]

Note 38    6 June 2000, Strasbourg Judgment, Application No 34130/96.    [Back]

Note 39    The court relied on Gautrin v France [1999] 28 EHRR 196 as authority for the tests.    [Back]

Note 40    Morel v France, 6 June 2000, Strasbourg Judgment, Application No 34130/96 at para 40.    [Back]

Note 41    Ibid, at para 42.    [Back]

Note 42    Ibid.    [Back]

Note 43    Ibid, at para 45.    [Back]

Note 44    Ibid.    [Back]

Note 45    Ibid.    [Back]

Note 46    Ibid.    [Back]

Note 47    See n 36, above.    [Back]

Note 48    Subject to any overriding judgment from the judge that the public interest requires a jury. See Auld LJ, Review of the Criminal Courts of England and Wales (2001), ch 5, paras 110–118.    [Back]

Note 49    Auld LJ, Review of the Criminal Courts of England and Wales (2001), ch 5, para 117.    [Back]

Note 50    CM 5563.    [Back]

Note 51    Ibid, para 4.30.    [Back]

Note 52    Police and Criminal Evidence Act 1984, s 74(3).    [Back]

Note 53    It would be open to the defendant to seek leave to appeal and leave to adduce such evidence as fresh evidence in an appeal against the convictions at stage one.    [Back]

Note 54    Paras 7.63 – 7.75.    [Back]

Note 55    Para 7.62.    [Back]

Note 56    Galbraith [1981] 1 WLR 1039.    [Back]

Note 57    [1998] 1 WLR 604.    [Back]

Note 58    McCluskey (1994) 98 Cr App R 216, per Henry J at p 220.    [Back]

Note 59    Ibid, at p 220.    [Back]

Note 60    May 15, 1997, CA, 6 Archbold News 2.    [Back]

Note 61    [1994] Crim LR 861.    [Back]

Note 62    May 15, 1997, CA, 6 Archbold News 2.    [Back]

Note 63    See dicta in Andrews-Weatherfoil Ltd (1972) 56 Cr App R 31, per Eveleigh J at pp 40–41 and paras 7.73 – 7.74, below.    [Back]

Note 64    Although the views of the trial judge as to the merits of a conviction are not generally regarded as relevant to the issues before the Court of Appeal (Jones (JH) [1998] 2 Cr App R 53), where an appeal is based on alleged inconsistency of verdicts, the Court of Appeal has been willing to have regard to such views. In Rigby 29 July, 1997 CA, 9 Archbold News 2: Although a most unusual step, the sending of the memorandum was very helpful and entirely right. Not only did the Court take the same view as the judge, but it would have been quite wrong in such circumstances to depart from the clear view expressed by the very experienced trial judge.    [Back]

Note 65    Andrews-Weatherfoil Ltd (1972) 56 Cr App R 31.    [Back]

Note 66    Ibid, per Eveleigh J at p 40.    [Back]

Note 67    Ibid.    [Back]

Note 68    The Criminal Appeal Act 1968 s 13(1) now provides that subject to the provisions of that section, the Court of Appeal “shall allow an appeal under section 12 of this Act if they think that the verdict isunsafe; and shall dismiss such an appeal in any other case” (emphasis added). Prior to amendment in 1995, s 13 made more detailed provision as to when the Court of Appeal should allow an appeal and this included cases where the court is of the opinion “that the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe orunsatisfactory” (emphasis added).    [Back]

Note 69    By way of contrast, inconsistent verdicts based on the same identification evidence of the defendant given at two successive trials may show that an incorrect conclusion may have been reached by the first jury. See Andrews (1967) 51 Cr App R 42 and Warner (1966) 50 Cr App R 291. In each of these cases the convictions were quashed.    [Back]

Note 70    Andrews-Weatherfoil Ltd (1972) 56 Cr App R 31, per Eveleigh J at pp 40–41. The court continued: “If the difference in the evidence consists of additional material favourable to the accused being called at the second trial, the first accused should seek to call that evidence in this Court [the Court of Appeal] and not rely merely on the inconsistent verdicts.” per Eveleigh J at 41.    [Back]

Note 71    [1998] 1 WLR 604.    [Back]

Note 72    Ibid, at p 607C.    [Back]

Note 73    Ibid, at p 607D.    [Back]

Note 74    See paras 7.11 – 7.12, above.    [Back]

Note 75    [1998] 1 WLR 604.    [Back]

Note 76    [2001] 2 WLR 1546.    [Back]

Note 77    [1999] 1 AC 69.    [Back]

Note 78    In our view, the best solution to the problems would be for both of our recommendations to be taken forward to work in tandem. Should one or other not be taken forward that should not prevent the other from working effectively. Any concern that the two stage procedure might not be a proportionate response to the difficulties presented, where, for example, the case is not in itself intrinsically complex, could be met by the judge at the preparatory hearing in ruling that any particular case should not proceed under the two stage procedure, because to do so would not be in the interests of justice.    [Back]

Note 79    CM 5563.    [Back]

Note 80    [1998] 1 WLR 604.    [Back]

Note 81    [1998] 1 WLR 604.    [Back]

Note 82    See the discussion of the “Evans conundrum” at paras 3.11 – 3.14, above.    [Back]

Note 83    See paras 7.11 – 7.13, above    [Back]

Note 84    See paras 7.25 – 7.28, above.    [Back]

Note 85    (1986) 83 Cr App R 94.    [Back]

Note 86    Ibid, at p 98.    [Back]

Note 87    Article 6(1) provides: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time …    [Back]

Note 88    Article 6(1) similarly ceases to apply once a nolle prosequi has been entered (Orchin v United Kingdom (1983) 34 DR 5).    [Back]

Note 89    19 December 1967, Collection of Decisions, No 25, 76.    [Back]

Note 90    Ibid at p 86.    [Back]

Note 91    (1983) 5 EHRR 508.    [Back]

Note 92    Ibid at p 509.    [Back]

Note 93    17 May 1990, Application No. 16006/90.    [Back]

Note 94    “Everyone arrested or detained in accordance with the provisions of paragraph 1.c. [the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence …] of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”    [Back]

Note 95    The applicant had been convicted of one specimen count of indecent assault, and five remaining counts of incest had been allowed to lie on the file. The defendant sought leave to appeal against the decision of the trial judge to allow the charges to remain on the file and was refused. He took his case to Strasbourg.    [Back]

Note 96    17 May 1990, Application No. 16006/90, The Law, para 2.    [Back]

Note 97    20 October 2000 (Blackfriars Crown Court) HH J Samuels, QC (unreported). The defendants complained that as a result of counts of dishonesty that had been stayed as an abuse of process and remained on file, “they had been unable to apply, variously, for a liquor licence, employment and professional indemnity insurance cover” (as summarised in J Hall, “Ordering Counts to Lie on the File” (2002) 7 Archbold News 5, p 6.)    [Back]

Note 98    22 March 2002 (Winchester Crown Court) HH J Brodrick (unreported). The defendant, who had been sentenced to imprisonment for other serious offences, believed that two counts of manslaughter which had been left on the file “had hindered his progress towards release on parole” (as summarised in J Hall, “Ordering Counts to Lie on the File” (2002) 7 Archbold News 5, p 6.)    [Back]

Note 99    At para 7.27, following conviction on sample counts, if it is considered that to continue “to allow the counts to lie on file would be unduly harsh or oppressive to the defendant” the judge could direct verdicts of not guilty; and at para 7.11, following an acquittal on a sample count, when there would be a presumption in favour of a directed acquittal on the linked counts.    [Back]

Note 100    [1998] 1 WLR 604.    [Back]

Note 101    Two judicial consultees have, in their responses to us, advocated a form of reversion to sample counts.    [Back]

Note 102    Regarding the merits of such a system, George Staple QC, former Director of the Serious Fraud Office, writing in Amicus Curiae, Issue 29, July 2000, 9–14, about major fraud and in particular the issue of plea bargaining, said: It is by avoiding the contested trial, with all that that implies in terms of expense and consumption of time and manpower, that a plea of guilty represents the single most effective means of shortening the process. … A system is therefore required which would encourage guilty defendants to plead guilty, while at the same time protecting them from improper pressure to do so (at p 14).    [Back]

Note 103    [1998] 1 WLR 604.    [Back]

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