Trial On Indictment Lecture Notes

These notes concern proceedings against adults in England and Wales.

1. COMMITTAL PROCEEDINGS

Formerly, the magistrates’ court had to decide if there was a prima facie case against the defendant, ie, if there was enough evidence on a ‘first look’ to justify sending the defendant for trial at the Crown Court. The procedure was governed by the Magistrates’ Courts Act 1980, as amended by the Criminal Procedure and Investigations Act 1996:

Committal proceedings began with the prosecution tendering admissible statements and other evidence. The magistrates did not consider the evidence provided the defendant was legally represented and the defence agreed. The defence could ask that all the statements be read by the magistrates and defence lawyers were able to submit that the evidence tendered did not disclose a prima facie case. Otherwise the magistrates would then formally commit the defendant for trial at the Crown Court.

Committal proceedings were abolished nationally by 28 May 2013. Today, under s51 of the Crime and Disorder Act 1998, the defendant will still make a first appearance at the magistrates’ court. For an indictable-only offence, the magistrates will send the case to the Crown Court ‘forthwith’. An either-way offence is sent where the magistrates decline jurisdiction or the defendant elects Crown Court trial, and in other specified statutory circumstances. The magistrates no longer examine whether the prosecution evidence is sufficient at a committal hearing. After service of that evidence, the defendant may apply to the Crown Court to dismiss the charge before arraignment if the evidence would not be sufficient for a proper conviction: Schedule 3, paragraph 2, and Criminal Procedure Rules 2025, r3.20.

2. PLEA AND TRIAL PREPARATION HEARING

In 1995 the procedure known as the Plea and Directions Hearing (PDH) was introduced to ensure that any steps necessary for trial had been taken, and that the court was provided with sufficient information to fix a trial date. The current procedure is the Plea and Trial Preparation Hearing (PTPH), governed by the Criminal Procedure Rules 2025, particularly r3.21.

At the PTPH, the court will take the defendant’s plea or, if no plea can be taken, find out whether he is likely to plead guilty or not guilty. At arraignment, each charge on which the prosecution proceeds is read aloud or placed before the defendant in writing, with its gist summarised aloud, and he will be asked how he pleads to each charge. The court must ensure that each allegation has been explained in terms he can understand: r3.32.

If the defendant pleads guilty, the judge will sentence the defendant immediately, if possible. An adjournment may be necessary for reports or to resolve disputed facts affecting sentence.

If the defendant pleads not guilty, the judge will use the PTPH form and the parties’ information to give directions for an effective trial. Matters to be settled include:

• Length of trial
• Issues in the case
• Issues as to the mental or medical condition of the defendant or witness
• The number of Prosecution and Defence witnesses
• Exhibits to be admitted
• Alibi
• Points of law likely to arise at trial
• Questions of admissibility of evidence
• Special measures for eligible witnesses, including live links, recorded interviews and pre-recorded cross-examination where permitted
• Witness availability
• Advocates’ availability

The judge will then be able to fix a suitable trial date and make any other appropriate directions.

3. PREPARATORY HEARING

Section 29 of the Criminal Procedure and Investigations Act 1996 provides that where it appears to the Crown Court judge that an indictment reveals a case of such complexity or seriousness, or a case whose trial is likely to be of such length, that substantial benefits are likely to accrue from a preparatory hearing, before the jury are sworn in, he may order a preparatory hearing.

A preparatory hearing is compulsory in the terrorism cases specified in s29(1B)–(1C). Serious or complex fraud is governed by s7 of the Criminal Justice Act 1987. A preparatory hearing is distinct from an ordinary case management hearing: the trial starts with it, and arraignment takes place at its start unless already completed (s30).

The purposes of a preparatory hearing are those of:

(a) identifying issues which are likely to be material to the determinations and findings required during the trial;

(b) if there is to be a jury, assisting their comprehension of those issues and expediting the proceedings before them;

(c) determining an application for trial without a jury under s45 of the Criminal Justice Act 2003;

(d) assisting the judge’s management of the trial;

(e) considering questions as to the severance or joinder of charges.

At the preparatory hearing the judge may make a ruling as to:

(a) any question as to the admissibility of evidence;

(b) any other question of law relating to the case;

(c) any question as to the severance or joinder of charges.

These rulings under s31(3) may be appealed to the Court of Appeal with the leave of the judge or that court (s35).

4. DISCLOSURE

The prosecution must serve the documents containing the evidence on which its case relies on the defence and the Crown Court: r3.19. Disclosure of unused material is a separate obligation.

Under the Criminal Procedure and Investigations Act 1996, the prosecution and defence must disclose certain material to each other.

Initial disclosure by the prosecutor: the prosecutor must (a) disclose to the defence any prosecution material which has not previously been disclosed to the defence and which might reasonably be considered capable of undermining the case for the prosecution against the defendant or of assisting the case for the defendant, or (b) give to the defence a written statement that there is no such material (s3). The test is objective, not merely a matter of the prosecutor’s opinion.

Compulsory disclosure by accused: once the prosecution has served its evidence and complied or purported to comply with initial disclosure, the accused must give a defence statement to the court and the prosecutor (s5). It must set out the nature of the defence, disputed facts and why they are disputed, the facts relied upon, and points of law and authorities to be raised. An alibi requires particulars, including the available identifying details of supporting witnesses (s6A). The Crown Court time limit is normally 28 days after initial disclosure, subject to extension by the court: rr15.4–15.5. A defence witness notice is also required under s6C and must be amended when the proposed witnesses or their details change. Failures in defence disclosure may permit adverse comment or inferences under s11, but cannot alone found a conviction.

Continuing disclosure by prosecutor: the prosecutor must keep disclosure under review, particularly after receiving the defence statement, and disclose any further material meeting the same objective test as soon as reasonably practicable (s7A). This statutory duty continues until acquittal, conviction or the decision not to proceed. If review following the defence statement requires no further disclosure, the prosecutor must say so in writing. The former separate “secondary disclosure” regime under s7 has been replaced.

Application by accused for disclosure: after giving a defence statement, and once the prosecutor has complied, purported to comply or failed to comply with s7A(5), the accused may apply under s8 if there is reasonable cause to believe that

(a) there is prosecution material required to be disclosed under s7A, and

(b) the material has not been disclosed to the accused. The order requires disclosure to the accused, not merely to the court. Disclosure is subject to statutory restrictions and any public-interest immunity order made by the court.

5. PLEA BARGAINING

The former PDH Judge’s Questionnaire enquired if the defence advocate had advised his client of s48 of the Criminal Justice and Public Order Act 1994 (Q1b). The current provision is s73 of the Sentencing Code: the court must take into account the stage at which the defendant indicated that he intended to plead guilty and the circumstances in which this indication was given. Under the applicable guideline, the usual reduction is one-third at the first stage of proceedings, falling to a maximum of one-quarter thereafter and one-tenth on the first day of trial, subject to exceptions and separate rules for murder and statutory minimum sentences. Pre-recorded cross-examination counts as the start of trial for this purpose. Where a less severe sentence is given for a guilty plea, the court must state that fact (s52(7)).

There may be informal discussions between the defence and prosecution on whether the prosecution would accept the defendant pleading guilty to a lesser offence. The former PDH Judge’s Questionnaire also asked, “Will the prosecution accept part guilty or alternative pleas?” (Q1c). Prosecutors may accept such pleas only where the resulting charges allow a sentence reflecting the seriousness of the offending and appropriate confiscation and other ancillary orders; convenience alone is insufficient. An agreed factual basis must not mislead the court and does not bind the judge. A material factual dispute affecting sentence may require a Newton hearing.

On the defendant’s application, the judge may give a Goodyear indication of the maximum sentence if a guilty plea is entered at that stage: R v Goodyear [2005] EWCA Crim 888 and r3.31. The judge need not give one. A valid indication binds the sentencing judge if the plea is entered within a reasonable opportunity, but does not prevent an Attorney General’s reference concerning an unduly lenient sentence.

6. THE TRIAL

A contested trial on indictment is normally heard by a judge and jury. Statutory exceptions permit trial without a jury in specified circumstances. Under r25.9, the prosecution opens its case and presents its evidence, which the defence may challenge by cross-examination. At the close of the prosecution case, the judge will ordinarily consider any submission that there is no case to answer and may direct an acquittal if the evidence is insufficient for a reasonable court properly to convict.

If the case continues, the defence may call evidence. The defendant is entitled to give evidence but cannot be compelled to do so; failure to testify may permit adverse inferences only within the statutory safeguards. After the closing speeches, the judge directs the jury on the law and summarises the evidence as necessary. The prosecution bears the burden of proving guilt so that the jury is sure, subject to particular statutory rules concerning some defences.

The jury initially seeks a unanimous verdict. A majority verdict may be accepted only under the statutory conditions and the judge’s directions (r25.14; s17 of the Juries Act 1974). If convicted, the defendant is sentenced by the judge; if the jury cannot agree, a retrial may be ordered.

Last updated: 11 November 2026