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Jo C.
Jo C., Barrister
Category: Law
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Experience:  Over 5 years in practice
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Does the prosecution have complete discretion in deciding whether

Customer Question

Does the prosecution have complete discretion in deciding whether to join co-conspirators (co-defendants) in one indictment for one trial.

If the one defendant wants a joint trial with his fellow conspirators does the prosecution have the discretion to refuse to join them in one indictment and one trial or is it up to the judge. If the Prosecution do have this discretion is there any case law or legislation to support this.
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
Hi.

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Its a matter for the Crown as to whether they indict people jointly. With conspiracy charges it is usually a good idea to try people jointly but that a decision for the Crown.

Its not a matter for the Judge.

There isn't any case law or legislation upon the point because its a matter of legal method. The Crown bring the indictment and they can choose which indictment and in what way its prosecuted.

Defendants can always give evidence at the trial of other defendants if that is helpful to them.

Can I clarify anything for you?

Jo
Customer: replied 2 years ago.

Thank you for your reply - I will reccomed to others the quality of this servicce.


 


One thing to clarify. If there is no legislation or case law to support the view that the prosecution can decide the above then how can you be sure that they have this discretion.


 


In fact all the case law suggests that it is settled law that it is in the interest of justice that co-conspirators are tried jointly in one trial. The cases of miller, lake, suggest that miscarriages of justice can occur in separate trials. The proposition of joint trials was confirmed in the house of lords in hayter 2005. Does the sheer weight of case law not suggest that its settled law that co-conspirators should be tried together. How then can the prosecution have this discretion or right.


 


this is an uneven power. essentially what you are saying is that a defendant cannot make an application for joinder but the prosecution can. Its a colossal advantage and open to abuse.


 


thank you so much

Expert:  Jo C. replied 2 years ago.
Because its an issue of legal method.

It is an uneven power but then many of the Crown's powers are.

This is not really one that is in their interests to abuse anyway. The Crown generally want people charged and tried together.
Customer: replied 2 years ago.

As the final message:


 


Do you think that this is a point which can be argued in the court of appeal


 


particularly so where there is no case law or legislation which supports this claim that the prosecution have total discretion. Most defendants are not going to argue against separate trials, but some defendants may want a joint trial and it could also be in the interests of justice to have one.


 


I don't know if you got my last message before this. but this is the last response required. thanks

Expert:  Jo C. replied 2 years ago.
No, I think its completely pointless and almost certainly contradicatory to the interests of the defence.

If the other defendants give useful evidence then just call them as witnesses.

If the defences are cut throat then you are better off without them being there where they cannot deny anything.
Jo C., Barrister
Category: Law
Satisfied Customers: 69983
Experience: Over 5 years in practice
Jo C. and 2 other Law Specialists are ready to help you
Customer: replied 2 years ago.

thank you for your help.

Customer: replied 2 years ago.

can i get a second opinion on this question with another expert or are you the only one available for criminal law

Expert:  Alice H replied 2 years ago.
My name is Alex Hughes and I'm happy to help with your question today.

What else would you like to know?
Customer: replied 2 years ago.

Does the prosecution have complete discretion in deciding whether to join co-conspirators (co-defendants) in one indictment for one trial.

If the one defendant wants a joint trial with his fellow conspirators does the prosecution have the discretion to refuse to join them in one indictment and one trial or is it up to the judge. If the Prosecution do have this discretion is there any case law or legislation to support this.


 


essentially can the defence make an application for joinder

Expert:  Alice H replied 2 years ago.
The prosecution does not have complete discretion in the matter.

The rules about joinder & severance of defendants is subject to the approval of the Judge and set out in the Indictments Act 1915, Criminal Law Act 1967, Consolidated Criminal Practice Directions and Criminal Procedure Rules.

It is an established rule that all defendants involved in a single offence may be joined in a single indictment and tried together This applies not only to principal offenders but also to those who assist or encourage the offence.

It is unusual for the defence to make such an application - there are often very good reasons not to have a joint trial (e.g. conflict, cut throat defence etc). But in principle there is no reason why such an application could not be made.
Customer: replied 2 years ago.

thank you.


 


I agree with you that it is established rule for over half a century. I thought that starting point for co-conspirators is joinder and then either the defence or pros could make applications for severance.


 


The prosecution are saying that it is totally their decision and that no legal mechanism exists to force them to join. they are saying that the defence cannot make an application for joinder.


 


Why is it unusaul for a defendant to want to be tried with his co-defendant s - one jury can then hear all the evidence and facts. especially where there is no cut throat.


 


is there any case law - based on an appeal where the prosecution has refused to join co-conpirators in one indictment - in one trial - in a situation where the codefendants all wanted a joint trial. but the pros refused and the court failed to intervene.

Expert:  Alice H replied 2 years ago.
Yes there is case law on the matter but it will take me some time to reproduce it for you. If you have access to it, Blackstones Criminal Practice 2014, is very helpful on the topic. If you wish me to obtain this information for you there will be an additional fee for the time involved - I suggest a fee of $35. If this is acceptable I will arrange for customer services to arrange an 'additional services'arrangement. Please let me know.
Customer: replied 2 years ago.

I cannot afford the 35 at present possibly in a few days. I will contact you as soon as I have it.


 


However, I have looked at Blackstones and there is not one case on similar facts. The closest case is r v moghal 77 - howver facts are different as there was joinder, and the pros. applied to sever and the defence did not object to it at the time. I cannot find any case (i have also looked on case track and bailii) an appeal based where the prosecution have refused to join co-conpirators against the defence wishes.


 


if i agree to the payment and you cant find a similar case - will i be able to get a refund or is it payaable regardless thanks

Expert:  Alice H replied 2 years ago.
No problem.

If I cannot help - then I will tell you and you will get a refund.

Take care.

Alex

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