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Fact find hearings shouldn’t be under-estimated

Lloyd Jenkins reports on a recent ‘Trial of the Facts’ or a ‘Fact Find’ hearing as they are more commonly known.

I haven’t conducted a ‘Trial of the Facts’ or a ‘Fact Find’ as they are more commonly referred to these days for many years, then I conduct two in a fortnight.

This week’s ‘Fact Find’ threw up a few interesting legal points.

My client was present at court, together with her daughter who cares for her.

Having previously been found unfit to plead and unfit to stand trial, my client clearly could not participate in proceedings and could not provide me with instructions. My client had been charged with dangerous driving and assault by beating (a traffic warden). Both incidents were captured on CCTV. The footage was both damaging and conclusive. Without instructions and without a positive case to assert my cross-examination of the civilian and police witnesses was limited. That said, there were still features of the case where I could properly challenge and test the evidence.

Alternative verdicts

One matter that did arise was could the jury find my client to have driven carelessly, in the alternative to dangerous driving?

My immediate response was ‘No’. I submitted that my client had been ‘charged’ with dangerous driving and that was the only fact for the jury to determine. I submitted that the usual ‘alternative verdicts’ direction did not apply in this case.

I sought time to research the point and satisfied myself (and the court) that I was correct.

I reminded the judge that the jury had sworn a very different oath. The jury were not required to determine guilt or innocence of the offence charged. The role of the jury in a ‘Fact Find’ was to determine if the defendant did the act or omission alleged and no more.

I referred the judge to s.24 of the Road Traffic Act 1988, which deals with ‘alternative verdicts’ (see Archbold: 32-224). It’s clear that where a person is charged with dangerous driving but found ‘not guilty’ of that offence, an alternative offence of carless and inconsiderate driving then becomes available in the alternative.

I submitted, with further reference to s.4A of the Criminal Procedure (Insanity) Act 1964 that the role of the jury was to make a finding regarding the act or omission alleged. If the jury were not satisfied, on the evidence, they would then return a verdict of acquittal (see Archbold: 4-233).

Both the judge and the prosecutor agreed that the alternative offence, in this scenario, was not available. In the circumstances, we did not need to trouble the jury with alternative verdicts.

Ancillary issues

Next was the ancillary issue regarding the obligatory 12 month driving ban and an order to sit the extended re-test, should the jury find that the defendant did the act alleged, namely drove dangerously.

Again, my immediate view was that the prosecution were not seeking to obtain a criminal conviction against my client, they were simply seeking a finding so that the judge could then consider an appropriate disposal given that my client was clearly suffering from a mental disorder, within the meaning of s.1(2) of the Mental Health Act 1983 (as amended by the Mental Health Act 2007).

All parties were satisfied that, that was the correct position (see Archbold: 4-234). Proceedings under ss.4 and 4A of the CP(I) Act 1964 do not involve the determination of a criminal charge as they cannot result in a criminal conviction or in any punishment or order that could be seen as retributive or deterrent.

Inevitably, my client was found to have done the act of dangerous driving. It was agreed that the obligatory driving ban and extended re-test was not available, but notification of a disability was.

Pursuant to s.22(1) of the Road Traffic Act 1988, if it appears to the judge that the defendant may be suffering from any relevant disability or prospective disability (within the meaning of Part III of the Road Traffic Act 1988) the court must notify the Secretary of State for Transport, for which there is currently no prescribed form.

Not for the assault by beating to feel left out, we were then required to consider whether or not a Brown direction was appropriate.

The alleged assault was clearly captured on CCTV. After the melee, the defendant was seen to return to her vehicle, arm herself with a bottle of water and throw it directly at the traffic warden, hitting him in the chest.

The Brown direction is a direction to the jury that they all need to be agreed on at least one of a number of specified factual matters set out in the indictment, where those matters constitute an essential element(s) of the offence.

Collectively, we agreed that the physical melee, swiftly followed by my client throwing a bottle of water at the traffic warden was very much a continuation of events not requiring a Brown direction, which clearly would have complicated matters.


Given the conclusive CCTV footage, it didn’t take the jury long to determine that my client did do both acts alleged.

I reminded the judge that pursuant to s.5 of the CP(I)A 1964 he must now make one of the following orders:

  • A hospital order (with or without restrictions);
  • A supervision order; or
  • An absolute discharge

Given that the reports on file were now dated, I sought an adjournment for up-to-date reports to be provided, prior to any such order being made. My application was upheld.

Contact the Public Defender Service to instruct Lloyd Jenkins or one of our criminal defence lawyers to defend your case, including cases involving mental health law and vulnerable defendants.