2.7 Indictments - objections Flashcards
What is the “rule against duplicity”?
Each count should relate to one offence only.
A count which stated more than one offence or named more than victim would be “bad for duplicity” and the defence could apply for a court order to quash it.
EXCEPTION: Continuing offences.
What is a continuing offence?
CrimPD II, para 10A.11
1.
The offences are the same;
2.
The victim is the same;
3.
Each offence was carried out in the same or a similar way, or took place at the same location;
4.
The incidents took place over a defined period of time;
5.
The defence to each incident is the same.
How does the ‘continuing offences’ exception to the rule against duplicity work?
CrimPR 10.2(2)
[Multiple related incidents of the same offence can be ‘rolled up’ into a single ‘multiple offending’ count.]
“More than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.”
Examples of continuing offences.
- Stealing money in small amounts at a time, over a period of time;
- Conspiracy: the offence starts at the point of agreement and continues until the end of the agreement.
What is a “specimen” or “sample” count?
A count to show just one example of D’s repeated conduct.
Used to show just one example of D’s offending. Rarely used today because multiple offending counts are preferable.
What is the problem with specimen counts?
The indictment must be drafted in such a way so that D can know precisely what she is charged with.
The prosecution should provide D with a list of all the similar offences she is charged with that do not appear on the indictment.
What is an overloaded indictment?
One that is unduly long, complex or difficult for a jury to follow.
Where necessary the prosecutor should consider charging D on separate indictments.
Multiple offending counts can be used to avoid overloaded indictments.
What happens where counts or defendants are wrongly joined, e.g., if the offences are unrelated?
CrimPR 3.21
On the application of a party, the court can amend or split (“sever”) the indictment into separate indictments which will be tried separately.
When might the court sever indictments even though they were not improperly joined?
Ludlow v Metropolitan Police Commissioner [1970] 54 Cr App R 233 (HL)
1.
In the court’s discretion;
2.
some special feature so that joint trial would be
(a) prejudicial or embarrassing to D, and
(b) a joint trial would be in the interests of justice;
3.
Reasons include:
(a) complexity;
(b) number of offences;
(c) a “scandalous” count which might prejudice the jury against D.
When can the trial judge’s decision to order a joint trial be challenged?
Josephs [1977] 65 Cr App R 253
Only where “something has clearly gone wrong, but it is very rare…”
When will the trial judge amend the indictment?
Section 5(1) Indictments Act 1915 Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order...
When will the court not order amendment of a defective indictment?
Section 5(1) Indictments Act 1915 ... having regard to the merits of the case, the required amendments cannot be made without injustice...
