What is an indictable offence and how is it brought to trial?

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Tutor-marked Assignment C

. What is an indictable offence and how is it brought to trial?

An indictable offence is an offence that may be tried on indictment, i.e.- by a jury in the Crown Court. Most serious offences i.e. murder and rape are indictable offences. A judge and jury in the Crown Court try indictable offences, and the magistrates sit only as examining justices to decide whether the prosecution has sufficient evidence to justify a trial.

In a Practice Direction issued in May 1995, Lord Taylor CJ defined the four classes of offence triable on indictment as follows:

> Class 1: Offences carrying the death penalty, misprision of treason, treason felony, murder, genocide, offences under s.1 of the Official Secrets Act 1911, and incitement, attempt or conspiracy to commit any of these.

> Class 2: Manslaughter, infanticide, child destruction, abortion, rape, sexual intercourse or incest with a girl under 13, sedition, offences against s.1 of the Geneva Conventions Act 1957, mutiny, piracy, and incitement, attempt or conspiracy to commit any of these.

> Class 3: All offences triable only on indictment except as listed in Class 1, 2 or 4.

> Class 4: Wounding or causing grievous bodily harm with intent, robbery or assault with intent to rob, incitement or attempt to commit any of these, common law conspiracy, or conspiracy to commit any offence in Class 3 or 4, and all offences triable either way.

Class 1 offences are normally tried by a High Court judge, Class 2 offences by a High Court judge or Circuit judge, Class 3 offences by a High Court judge, Circuit judge or Recorder, and Class 4 offences by a Circuit judge, Recorder or Assistant Recorder, though in each case there are provisions for cases to be tried by other named judges with the approval of the presiding judge of the circuit and/or the Lord Chief Justice. A Circuit judge or an experienced Recorder normally hears appeals from magistrates' courts.

After committal, there is a "plea and directions hearing" before a judge alone, at which the defendant is arraigned, the indictment is read, and the defendant pleads guilty or not guilty. This should take place within six weeks of committal where the defendant is remanded on bail, and within four weeks if he is held in custody. If the defendant pleads guilty (as 70% do) the judge goes directly to sentencing.

In fact the Defendant has several options.

> He may simply plead guilty, admitting the facts alleged, the relevant mens rea, and any points of law involved.

> He may plead guilty to a lesser offence (manslaughter when charged with murder, for example), in which case the prosecution and the judge must decide whether or not to accept this plea and drop the greater charge.

> He may plead guilty to some counts and not guilty to others, when again the prosecution must decide whether to accept the plea.

> He may plead autrefois acquit or autrefois convict if he has already been tried for this offence; if this is established he cannot be tried again.

> He may enter a demurrer, if he admits the facts and intention but denies that they constitute in law the offence charged.

> He may move to quash a faulty indictment, though where the fault is minor the court can amend the indictment so that the trial can proceed.

> He may plead not guilty, which does not necessarily assert innocence but challenges the prosecution to prove its case. This is also the appropriate plea if he admits the facts but claims some justification such as self-defence.

> If the defendant refuses to plead at all, a special trial is held at which a jury decides whether he is unwilling to do so (in which case a plea of not guilty is entered on his behalf and the trial goes ahead) or unable (in which case he may be sent to a mental hospital until, if ever, he is fit to stand trial).

If the defendant pleads not guilty the judge (with help from both sides) tries to identify

> Which alleged facts are admitted and which are denied;

> Whether the defendant's mental state is an issue in the trial;

> What witnesses are to be called, and what documents or other exhibits produced;

> What legal points are to be raised; and

> Any other matters affecting the proper trial of the case.

The judge then gives any necessary directions and sets a date for the trial proper. If only legal issues are in dispute this will be a trial before a judge alone, but disputed facts (other than details relevant only to sentencing) must go before a jury.

The Plea and Direction's Hearing represents a small move towards greater openness on the part of the defence: as the law stands, the prosecution must disclose virtually all its evidence to the defence in advance of the main trial, while the defence need disclose nothing except (if it is appropriate) an intention to raise a defence of alibi. The Royal Commission proposed that all defendants who intend to contest the charges against them should be obliged to disclose the substance of their defence in advance of the trial, or alternatively to indicate that they will not be calling any evidence but will simply be arguing that the prosecution has failed to make out its case. Moreover, if the defendant discloses at this stage a number of mutually exclusive alternative defences, the prosecution should be able to invite the jury to draw adverse inferences. These proposals have not yet been put into effect.
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At the start of the trial, a jury is empanelled and sworn. The prosecution or defence can object to a particular juror for good cause, but there is no voir dire and no peremptory challenge. The prosecuting barrister then outlines the prosecution's case and calls witnesses. Each witness is examined "in chief" by the prosecutor, cross-examined by the defence, and re-examined if necessary to clear up any ambiguities: the judge may also ask relevant questions of his own, but must not adopt the role of an advocate. Where a witness has purely formal evidence to give, which is ...

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