6. Indictments

Question 1

first sub-paragraph of D11.1

Answer 1

Introduction

D11.1

The indictment is the document containing the charges against the accused on which he is arraigned at the commencement of a trial on indictment. The law on indictments is contained principally in the Indictments Act 1915, CrimPR part 10 (see Supplement, R-91 et seq.), and CrimPD II, paras. 10A.1 to 10A.20 (see Supplement, PD-26).

Question 2

D11.2

Answer 2

The Rule

D11.2

The Administration of Justice (Miscellaneous Provisions) Act 1933, s. 2(2), provides that no draft indictment may be served unless:

(a) the accused has been sent for trial (pursuant to the CDA 1998, s. 51 or 51A);
(b) a High Court judge has directed or consented to the preferment of a voluntary bill of indictment (the procedure relating to which is in CrimPR 10.9 and CrimPD II, para. 10B; see D10.66);
(c) a Crown Court Judge has consented to the preferment of a bill of indictment following a declaration by the court approving a deferred prosecution agreement (pursuant to the CCA 2013, sch. 17, para. 8(1));
(d) the Court of Appeal has ordered a retrial.

An indictment may also be preferred where a prosecutor reinstitutes proceedings after custody time-limits have expired (see D15.38). Provision is also made for the preferring of the indictment in a case where there is a deferred prosecution agreement, which acts as the catalyst for the suspending of the proceedings pursuant to the terms of the agreement (see D12.106).

The CAJA 2009, s. 116, amended s. 2(1) of the 1933 Act, so that it reads:

Subject to the provisions of this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before the [Crown Court] and it shall thereupon become an indictment and be proceeded upon accordingly.

The effect of this amendment is to remove the previous prerequisite that an indictment came into being only once it was signed by a proper officer of the Crown Court. In Lord Chancellor v McCarthy [2012] EWHC 2325 (Admin) it was emphasised that an indictment that had been served pursuant to CrimPR part 10 duly became ‘the indictment’ without the necessity for it to be signed. This was reiterated in W (P) [2016] EWCA Crim 745, [2016] 2 Cr App R 27 (351), and was further emphasised in MJ [2018] EWCA Crim 2485, [2019] 1 Cr App R 10 (122).

Question 3

, D11.3

Answer 3

D11.3

Electronically Generated Indictments Under Crim PR 10.3, in the majority of cases a draft indictment will be generated electronically when the case is sent, based on the allegations before the magistrates’ court, subject to substitution or amendment of the charges included by the prosecution. It was made clear in MJ that a draft indictment, by being uploaded to the digital system, had been ‘preferred’, for the purposes of the Administration of Justice (Miscellaneous Provisions) Act 1933, s. 2, because CrimPR part 10 had been complied with. While CrimPR 10.2 requires that a draft indictment should be served on the court and endorsed by a court officer and that when the draft indictment is endorsed, the date of receipt should be added (r. 10.2(7)(a)), it is clear that a failure to satisfy these requirements does not impugn the validity of an electronically served indictment. The officer of the Crown Court is required to endorse it, unless the court directs otherwise (r. 10.1(3)). It was stressed in MJ that it was the duty of prosecution and defence to regularise the position where more than one indictment had been uploaded by the time of trial and that, at trial, the court should inquire whether there were outstanding issues in relation to the indictment on which it was about to try an accused before proceeding to do so.

Question 4

, D11.6

Answer 4

Ultimate Responsibility

D11.6

Ultimate responsibility for the indictment rests with counsel for the prosecution, who must ensure that it is in proper form before arraignment. This principle was affirmed by Watkins LJ, giving the judgment of the Court of Appeal in Newland [1988] QB 402, who said (at p. 409):

It was the responsibility of counsel to ensure that the indictment was in proper form before arraignment. A return to that practice — it seems not to be followed generally — may in our view be a salutary thing for everyone concerned, and moreover relieve the staff of the Crown Court of any responsibility it may be felt they have in that respect, and also to have the result of there being fewer appeals to this court based on defective indictments.

Question 5

, D11.8,

Answer 5

The Rule

D11.8

Save in cases where the draft indictment has been generated automatically on the sending of the case for trial (pursuant to CrimPR 10.3), a draft indictment should be served on an appropriate officer of the Crown Court within 28 days of the date on which:

(a) copies of documents are served where a person is sent for trial under the CDA 1998, s. 51 (CrimPR 10.4); or
(b) a High Court judge has consented to the preferment of a voluntary bill of indictment under r. 10.5 (the procedure relating to which is in CrimPR 10.9 and CrimPD II, para. 10B: see D10.66).

CrimPD II, para. 10A (see Supplement, PD-26), makes it clear that the draft indictment should be served more quickly than this 28-day period if the prosecution will be seeking to include counts on the indictment which differ from, or are additional to, the counts on the basis of which the accused was sent. Moreover, CrimPD I, para. 3A.16 (see Supplement, PD-3), requires the indictment to be served at least seven days before the PTPH, which itself takes place within 28 days of the case being sent to the Crown Court (CrimPD I, para. 3A.11).

Question 6

D11.9

Answer 6

D11.9

Extension of the Time-limit CrimPR 10.2(8) permits the Crown Court to extend the timelimit, even after it has expired. Moreover, there are no specific rules as to the means by which an application for an extension should be made, or what such an application should contain.

Question 7

,
D11.13

Answer 7

Counts which May be Included in an Indictment

D11.13

These paragraphs deal with which charges may be included in the original draft of the indictment, rather than matters of joinder, severance or amendment to the indictment which may alter its content between the original drafting and the trial (which are dealt with at D11.63 et seq.). The power to amend derives from the Indictment Act 1915, s. 5 (Wells (1995) 159 JP 243 and Osieh [1996] 1 WLR 1260; and see D11.99).

Question 8

, D11.14

Answer 8

Charges Revealed by the Papers

D11.14

The Administration of Justice (Miscellaneous Provisions) Act 1933, s. 2(2)(a), allows a bill of indictment charging an offence to be preferred if the person charged has been sent for trial, pursuant to the CDA 1998, s. 51 and sch. 3, in each case in conjunction with proviso (i) to the subsection. The proviso is: ‘where the person charged has been sent for trial, the bill of indictment against him may include, either in substitution for or in addition to any count charging an offence specified in the notice under section 57D(1) of the CDA 1998, any counts founded on material which, in pursuance of regulations made under paragraph 1 of schedule 3 to that Act, was served on the person charged, being counts which may lawfully be joined in the same indictment’. This position is reflected by CrimPR 10.2(4) (see Supplement, R-92).

It follows that, subject to the rules on when counts and/or defendants are sufficiently closely linked to be properly joined in a single indictment (see D11.63 and D11.72), a draft indictment may include charges for any indictable offence disclosed by the evidence served under the regulations for the service of the prosecution case after the accused has been sent. Usually the counts in the indictment simply follow the original charges.

Where the drafter chooses to include a count for an offence in respect of which the accused was not sent, he must be careful to ensure that the offence is in fact disclosed by the statements, so as to ensure compliance with the proviso to s. 2(2)(i). He must also ensure, pursuant to CrimPD II, para. 10A.10, that as much notice as possible of such charges is provided to the accused.

Question 9

, D11.23

Answer 9

Layout

D11.23

The layout of an indictment should substantially follow the form given in the CrimPR and the Indictments Act 1915. Save where generated electronically under CrimPR 10.3, the form must normally be one of those set out in the CrimPD (r. 10.2(16)). The basic requirements as to the layout of an indictment are as follows:

(a) Each offence charged should be set out in a separate paragraph or count (r. 10.2(1)). If there is more than one count, they should be numbered (r. 10.2(43)).
(b) Each count should be divided into a statement of offence and particulars of offence (r. 10.2(1)(a) and (b)).
(c) The statement of offence describes the offence shortly in ordinary language, and, if the offence is statutory, should specify by section and subsection the provision contravened (Indictments Act 1915, s. 3(1), and r. 10.2(1)(a)).
(d) The particulars of offence should give ‘such particulars as may be necessary for giving reasonable information as to the nature of the charge’ (Indictments Act 1915, s. 3(1)). This is supplemented by r. 10.2(1)(b) which states that there should be included ‘such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant’.

Question 10

, D11.28

Answer 10

D11.28

Date of the Offence The count should state the date on which the offence occurred insofar as it is known. Normal practice is to give the day of the month, followed by the month, followed by the year (e.g., ‘on 1st day of January 2018’). If the precise date is unknown, it is sufficient to allege that the offence occurred ‘on or about’ a specified date, or ‘on a day unknown’ before a specified date, or ‘on a date other than the date in count one’. Where the formula ‘on or about’ a date is used, the evidence must show the offence to have been committed ‘within some period that has a reasonable approximation to the date mentioned in the indictment’ (per Sachs LJ in Hartley [1972] 2 QB 1 at p. 7).

An alternative permitted formulation is ‘on a day unknown between’ two specified dates. If the last-mentioned formula is adopted, the days specified should be those immediately before the earliest and immediately after the latest days on which the offence could have been committed.

Thus, if the accused is found in possession of stolen goods on 31 December 2016 and the prosecution case is that the goods were stolen on 1 January 2015, a count for handling would allege that he received the goods ‘on a day unknown between 31 December 2014 and 1 January 2017’. See also D11.51 on duplicity in relation to this formulation.

Question 11

, D11.32

Answer 11

Continuous Offences

D11.32

In most instances, the rule against duplicity (i.e. each count may allege only one offence, see D11.45) requires that a count must allege that the offence occurred on one day, not on several days. Were it to be otherwise, the only sensible interpretation of such an allegation would be that the accused had committed several distinct offences on different days. Although the prosecution are permitted to have one count for what are technically distinct criminal acts where those acts formed a single activity or transaction (e.g., pursuant to CrimPR 10.2(2)), the mention of more than one day (whether conjunctively or disjunctively) in the count is inconsistent with there having been a single activity on the accused’s part.

The difference here is between an offence being committed once between a start and end date, and the offence having been committed repeatedly but separately on a number of days.

The exception to the general principle just stated is that where an offence is properly to be regarded as a continuing offence which may take place continuously or intermittently over a period of time, then a count may properly allege that it occurred on more than one day.

Question 12

, D11.34 (from (c)),

Answer 12

D11.34

Application of the Principle Other than in circumstances to which CrimPR 10.2(2) has application, the following points on drafting counts for continuous offences emerge from the above decision:

(a) Although Hodgetts v Chiltern District Council [1983] 2 AC 120 concerned an information for a summary offence, the italicised words in the quotation at D11.33 make clear that the same principles apply to counts in an indictment.
(b) Determining whether an offence is properly to be treated as continuous will require detailed analysis of the offence-creating provision. In the absence of specific authority, the drafter of an indictment may have no means of knowing with certainty whether the offence for which he is indicting the accused is continuous or not. In such cases, it may be preferable to avoid potential complications by stating that the offence occurred on one day (not on several), unless the continuation of the misconduct significantly adds to the gravity of the case.
(c) That said, conspiracy is a clear example of a continuous indictable offence. The offence begins when any two or more parties enter into the unlawful agreement and continues until it comes to an end. See, e.g.:
(i) Greenfield [1973] 3 All ER 1050 (and see D11.46), where a count for conspiring to cause explosions between 1 January 1968 and July 1971 was held not to be bad for duplicity;
(ii) Landy [1981] 1 All ER 1172, where the Court of Appeal, in indicating how the prosecution should have drafted a count for conspiracy to defraud a bank, suggested that the particulars could have begun ‘[The defendants] on divers days between … and … conspired together and with …’.
(d) Theft is clearly not a continuous offence. However, where the evidence is that the accused, on numerous separate occasions over a lengthy period, stole small sums or items of property, but it is not possible to particularise the exact days on which the appropriations occurred, it is possible to have a single count alleging that, on a day within the overall period, the accused stole all the relevant money or property. The cases on this point (known as the general deficiency cases) are considered at B4.3 (see also the discussion of sample counts at D11.36). This problem may also be cured by CrimPR 10.2(2).

Question 13

D11.35 (up to CrimPD II, paragraph
10A.11 at (d)) of Blackstone’s Criminal Practice 2020.

Answer 13

D11.35

Effect of CrimPR 10.2(2) Rule 10.2(2) states:

More than one incident of the commission of an 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.

Before this form of words was incorporated into the CrimPR, it had been argued that it was usually possible to allege only one incident per count, as to allege more than one incident in a count fell foul of the rule against duplicity (see D11.45).

Circumstances in which it is suggested to be appropriate to use r. 10.2(2) to charge a ‘multiple offending count’ are identified in CrimPD II, para. 10A.11 (see Supplement, PD-26):

CrimPR 10.2(2) allows a single count to allege more than one incident of the commission of an offence in certain circumstances. Each incident must be of the same offence. The circumstances in which such a count may be appropriate include, but are not limited to, the following:

(a) the victim on each occasion was the same, or there was no identifiable individual victim as, for example, in a case of the unlawful importation of controlled drugs or of money laundering;
(b) the alleged incidents involved a marked degree of repetition in the method employed or in their location, or both;
(c) the alleged incidents took place over a clearly defined period, typically (but not necessarily) no more than about a year;
(d) in any event, the defence is such as to apply to every alleged incident without differentiation. Where what is in issue differs between different incidents, a single ‘multiple incidents’ count will not be appropriate, though it may be appropriate to use two or more such counts according to the circumstances and to the issues raised by the defence.

Question 14

Crim PR rule 10.2(1)-(4)

Answer 14

The indictment: general rules
10.2.—(1) The indictment on which the defendant is arraigned under rule 3.24 (Arraigning the defendant on the indictment) must be in writing and must contain, in a paragraph called a ‘count’— (a) a statement of the offence charged that— (i) describes the offence in ordinary language, and (ii) identifies any legislation that creates it; and (b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant. (2) 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. (3) The counts must be numbered consecutively. (4) An indictment may contain— (a) any count charging substantially the same offence as one for which the defendant was sent for trial; (b) any count contained in a draft indictment served with the permission of a High Court judge or at the direction of the Court of Appeal; and (c) any other count charging an offence that the Crown Court can try and which is based on the prosecution evidence that has been served. (

Question 15

on the
indictment, and Crim PR rule 3.21(1) and (4)

Answer 15

Application for joint or separate trials, etc. 3.21.—(1) This rule applies where a party wants the Crown Court to order— (a) the joint trial of— (i) offences charged by separate indictments, or (ii) defendants charged in separate indictments; (b) separate trials of offences charged by the same indictment; (c) separate trials of defendants charged in the same indictment; or (d) the deletion of a count from an indictment. (2) Such a party must— (a) apply in writing— (i) as soon as practicable after becoming aware of the grounds for doing so, and (ii) before the trial begins, unless the grounds for the application do not arise until trial; (b) serve the application on— (i) the court officer, and (ii) each other party; and (c) in the application— (i) specify the order proposed, and (ii) explain why it should be made. (3) A party who wants to make representations in response to the application must serve the representations on— (a) the court officer; and (b) each other party, not more than 14 days after service of the application.

Question 16

D11.63

Answer 16

The Rule

D11.63

The circumstances in which the prosecution may lawfully join two or more counts against one accused in a single indictment are prescribed by CrimPR 3.21(4), which replaces the test formerly contained in r. 9 of the Indictment Rules 1971. The court may order separate trials unless ‘the offences to be tried together (i) are founded on the same facts, or (ii) form or are part of a series of offences of the same or similar character’. That this is an exercise of the court’s discretion in this respect, as set out in the Indictment Act 1915, s. 5(3), is underlined by the amendment to CrimPR 3.21(4) by the most recent amendment to the rules (SI 2018 No. 132), which altered the test from a direction that the court must sever to a power that it may do so.

The procedure for applications for joint trials is set out in CrimPR 3.21 and 3.22 (see Supplement, R-27 and R-28). The crucial provision for these purposes is r. 3.21(4), which states:

Where the same indictment charges more than one offence, the court may exercise its power to order separate trials of those offences if of the opinion that—(a) the defendant otherwise may be prejudiced or embarrassed in his or her defence (for example, where the offences to be tried together are neither founded on the same facts nor form or are part of a series of offences of the same or a similar character); or (b) for any other reason it is desirable that the defendant should be tried separately for any one or more of those offences.

Question 17

, D11.64,

Answer 17

Application of the Rule

D11.64

Unsurprisingly, cases in which the application of the rule have been considered relate to r. 9 of the Indictment Rules 1971 rather than CrimPR 3.21(4). In particular, the leading case of Newland [1988] QB 402 must be read in the light of r. 3.21(4). In that case, N was charged in an indictment containing counts relating to drugs offences and assaults, which were entirely unconnected. At trial, when counsel for N submitted that the indictment was invalid, the judge held that he had power under s. 5(3) of the Indictments Act 1915 (see D11.76) to sever the indictment. The conclusions reached by the Court of Appeal, which have not all survived subsequent developments (in case law and under the CrimPR), were as follows:

(a) The power to sever under s. 5(3) applies only to a valid indictment (at p. 406C–D). It is at the least arguable that this aspect of the decision has been overtaken by CrimPR 3.21(4), which appears to recognise a power to sever without this qualification.
(b) The trial judge could have amended the indictment so as to delete either the drugs count or the assault counts. That having been done, the trial could validly have proceeded on what remained (at p. 406F). See also Follett [1989] QB 338.
(c) Given that no amendment had in fact been made, the unamended indictment was invalid by reason of the contravention of r. 9. Because it was capable of being rendered valid by an appropriate amendment, it was not a nullity (at p. 408C–D, applying Bell (1984) 78 Cr App R 305). But, even though the indictment itself was not a nullity, the fact of its being invalid was sufficient to render null the proceedings flowing from it (at p. 408E). This conclusion was disapproved in Smith [1997] QB 837. The Court of Appeal held that it was wrong to suggest that all proceedings flowing from an indictment containing a count improperly joined were a nullity (as opposed to the proceedings on the improperly joined count). Smith was approved and followed in Lockley [1997] Crim LR 455.

For a recent example of the application of CrimPR 3.21, see Hamou [2019] EWCA Crim 281, in which the Court of Appeal considered that joinder was inappropriate where one of those to be joined was absent, he had not been arraigned on the pre-joinder indictment, and evidence relating to him was prejudicial to the defendants who were present. In Toner [2019] EWCA Crim 447, the Court of Appeal observed that ‘where the evidence on one count would be properly admissible on the other as evidence of bad character it is difficult to argue that the defendant would be “prejudiced or embarrassed in his defence” by having both counts or sets of counts on the same indictment’ (at [13]).

Question 18

D11.65

Answer 18

First Limb of CrimPR 3.21(4): Charges Founded on the Same Facts

D11.65

The first limb of r. 3.21(4) is clearly satisfied if the offences alleged in counts joined in one indictment arose out of a single incident or an uninterrupted course of conduct (see, e.g., Mansfield [1977] 1 All ER 134, where the indictment against M was held to be properly joined where it contained counts for arson and murder relating to the same fire).

Question 19

d11.66

Answer 19

D11.66

Joinder where One Offence is a Precondition of the Second CrimPR 3.21(4), like its predecessor, is not restricted to offences that were committed contemporaneously or substantially contemporaneously with each other, as in Mansfield [1977] 1 All ER 134 (see D11.65), but extends to situations where later offences would not have been committed but for the prior commission of an earlier offence.

The leading authority is Barrell (1979) 69 Cr App R 250, where the appellants were charged jointly in counts 1 and 2 with affray and assault occasioning actual bodily harm, and W alone was charged in count 3 with attempting to pervert the course of justice. This third count related to an attempt by W to persuade the witness to counts 1 and 2 to ‘modify’ his evidence. On appeal it was submitted that count 3 did not arise from the same facts as counts 1 and 2. The argument was rejected by the Court of Appeal. Shaw LJ, giving the judgment of the Court, said (at pp. 252–3):

The phrase ‘founded on the same facts’ does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The test is whether the charges have a common factual origin. If the charge described by counsel as the subsidiary charge is one that could not have been alleged but for the facts which give rise to what he called the primary charge, then it is true to say for the purposes of rule 9 that those charges are founded, that is to say have their origin, in the same facts and can legitimately be joined in the same indictment.

If W had not been involved in the violence which gave rise to the charges of assault and affray, he would have had no motive for offering the witness a bribe. It followed that all three counts had a common factual origin and were properly joined in one indictment.

A factual connection between the counts is established by a coincidence of time and place. It is irrelevant that the accused’s explanation is different for each offence (Roberts [2008] EWCA Crim 1304, [2009] 1 Cr App R 20 (273)). See also Toner [2019] EWCA Crim 447, as to the relevance of cross-admissibility between counts to their joinder.

Question 20

and D11.70

Answer 20

Second Limb of CrimPR 3.21(4): Series of Offences of the Same or a Similar Character

D11.70

The circumstances in which two or more offences may be said to amount to a series of offences of the same or similar character within the meaning of the second limb of what is now CrimPR 3.21(4) were considered by the House of Lords in Ludlow v Metropolitan Police Commissioner [1971] AC 29. The indictment against L contained counts for (a) attempted theft at a public house in Acton on 20 August and (b) robbery at a different public house in Acton on 5 September. The trial judge refused an application that the two charges should be tried separately, and L was convicted on both counts. The case was considered by the House of Lords, where Lord Pearson delivered the leading opinion. The main points emerging from this opinion are as follows.

(a) Two offences are capable of constituting a ‘series’ for the purposes of the Indictment Rules 1971, r. 9 (see p. 38E–G confirming the Court of Appeal decision in Kray [1970] 1 QB 125).
(b) In deciding whether offences exhibit the similarity demanded by the rule, the court should take into account both their legal and their factual characteristics (at p. 39B). The prosecution submission (that the phrase ‘a similar character’ means exclusively of a similar legal character) and the defence submission (that the phrase means exclusively of a similar factual character) were each rejected.
(c) To show the existence of a series of offences, the prosecution must be able to point to some nexus between them. This means ‘a feature of similarity which in all the circumstances of the case enables the offences to be described as a series’ (at p. 39D). A nexus is clearly established if the offences are so connected that the evidence of one would be admissible to prove the commission of the other in accordance with the rules on similar fact evidence, but this is not essential (at p. 39D– F, quoting with approval from Kray and Clayton-Wright [1948] 2 All ER 763, and see observations to the same effect in Toner [2019] EWCA Crim 447).
(d) On the facts of Ludlow, the offences were similar in law in that they each had the ingredient of actual or attempted theft. They were also similar in fact because they involved stealing or attempting to steal in neighbouring public houses at a time interval of only 16 days. A sufficient nexus was therefore present to make the offences a series of a similar character within the meaning of r. 9, even though the similarity was not nearly striking enough to bring them within the similar fact evidence rule (at p. 39H).

Question 21

D11.36-11.38

Answer 21

Specimen or Sample Counts

D11.36

Where a person is accused of adopting a systematic course of criminal conduct, and where it is not appropriate to allege a continuous offence (see D11.32) or a multiple offending count (see D11.35), the prosecution sometimes proceed by way of specimen or sample counts. For example, where dishonesty over a period of time is alleged, a limited number of sample counts are included so as to avoid too lengthy an indictment.

Answer 22

D11.37

Procedure for Specimen Counts The practice which the prosecution ought to adopt in these circumstances is as follows:

(a) the defence should be provided with a list of all the similar offences of which it is alleged that those selected in the indictment are samples;
(b) evidence of some or all of these additional offences may in appropriate cases be led as evidence of system;
(c) in other cases, the additional offences need not be referred to until after a verdict of guilty upon the sample offence is returned (DPP v Anderson [1978] AC 964).

Answer 23

D11.38

Potential Problems with Specimen Counts Potential problems arise with specimen counts in relation to sentencing because the accused should not thereby be denied his right to be tried by a jury for offending for which he may ultimately be sentenced. This is discussed at D20.56 et seq.

In any event, it is crucial that the accused should know the case he has to meet (Evans [1995] Crim LR 245). In Rackham [1997] 2 Cr App R 222, the Court of Appeal emphasised that the indictment had to be drafted in such a way as to enable the accused to know, with as much particularity as the circumstances would admit, what case he had to meet.

Question 24

D11.72-11.75

Answer 24

Joinder of Accused

D11.72

Two or more accused may be joined in one indictment either as a result of being named together in one or more counts on the indictment, or as a result of being named individually in separate counts, albeit that there is no single count against them all. The procedure for applications for joint trials is set out in CrimPR 3.21 and 3.22 (see Supplement, R-27 and R-28).

Answer 25

Joint Counts

D11.73

All parties to a joint offence may be indicted for it in a single count. In drafting the count:

(a) There is no need to distinguish between principal offenders and secondary parties (Accessories and Abettors Act 1861, s. 8: see D11.42).
(b) The count need not expressly allege that the unlawful acts of each accused were done in aid of the others, as that allegation is implicit in the drafting of a single count (DPP v Merriman [1973] AC 584 per Lord Diplock at p. 607C).

Where the prosecution seek to join an accused to an indictment following an order that the accused in question be retried pursuant to the Criminal Appeal Act 1968, s. 7(2), then, in addition to the considerations of general application to an application for joinder, there is added the need to consider if the accused would be substantially adversely affected, so that joinder would represent an abuse of process (Booker [2011] EWCA Crim 7, [2011] 1 Cr App R 26 (330)). That said, there is no prohibition on the addition of counts to an indictment in such circumstances, where it is fair to do so (Feeley [2012] EWCA Crim 720, [2012] 1 WLR 3133).

In Marsh-Smith [2015] EWCA Crim 1883 the issue was whether the appellant should have been severed from his co-accused on a joint charge where one of the co-accused had implicated the appellant in interview. The Court of Appeal observed that the interests of justice were normally best served by allegations with a common thread being ventilated together, and this included issues between defendants, always assuming that injustice could be avoided by robust direction to the jury as to the uses to which parts of the evidence could, and could not, be put.

Answer 26

D11.74

Possible Verdicts on Joint Counts Notwithstanding that the accused have been charged in a single count, the jury may convict all or any of them on the basis that they committed the offence charged independently of the others. For example, in DPP v Merriman [1973] AC 584, Lord Diplock said (at p. 607F):

… whenever two or more defendants are charged in the same count of an indictment with any offence which men can help one another to commit it is sufficient to support a conviction against any and each of them to prove either that he himself did a physical act which is an essential ingredient of the offence charged or that he helped another to do such an act, and, that in doing the act or in helping the other defendant to do it, he himself had the necessary criminal intent.

In short, if two accused, A1 and A2, are charged in a joint count the jury may (a) acquit both, or (b) convict both, or (c) acquit one and convict the other.

Should they convict both it will usually be on the basis implicit in the joint count that they helped each other to commit the crime, but the jury may equally convict both where the evidence suggests that they acted independently of each other if they are satisfied that each accused committed the offence.

Similarly, if there is a split verdict, the verdict against the convicted accused is not open to challenge on the ground that the jury must have found that he acted alone without assistance either from his acquitted co-accused or anybody else. The argument that to uphold convictions on a single count in the absence of proof of joint enterprise contravenes the rule against duplicity was rejected in DPP v Merriman.

Despite this, the prosecution are well advised only to draft a joint count where the evidence reveals a joint enterprise. If the co-defendants were acting without reference to each other, separate counts are preferable.

Answer 27

Separate Counts

D11.75

The joining of two or more accused in one indictment notwithstanding the absence of a joint count against them is governed by the decision in Assim [1966] 2 QB 249. In that case, the indictment against the two accused, A and C, contained two counts. The first alleged that A had maliciously wounded W, and the second alleged that C, on the same day, had caused actual bodily harm to L. A and C both worked at the premises where the two assaults had allegedly occurred, a nightclub of which both the victims were customers.

On appeal, A argued that it was bad in law to charge two different people in one indictment with two different offences. Offenders could properly be joined in one indictment only as principals said to have jointly committed one offence, or as principals and accessories (see p. 251F–G for counsel’s argument). A five-judge Court of Appeal extensively reviewed the authorities, and (in a judgment given by Sachs J) reached the following conclusions:

(a) Questions of joinder, whether of offences or offenders, are ‘matters of practice on which the court has, unless restrained by statute, inherent power both to formulate its own rules and to vary them in the light of current experience and the needs of justice’ (at p. 258F). On the assumption that the rule (now CrimPR 3.21(4)) covers only joinder of offences, the propriety of the joinder of offenders is unaffected either by the Indictments Act 1915 or by any other legislation, whether subordinate or primary, passed since then (at p. 258E). Subsequently, Lord Widgery CJ in Camberwell Green Stipendiary Magistrate, ex parte Christie [1978] QB 602, said that Assim should be accepted as laying down a principle that joinder of offenders is a matter of the practice of the courts.
(b) Since joinder of offenders is merely a matter of practice, errors in the application of the relevant rules, though amounting to an irregularity in the proceedings, will not deprive the trial court of jurisdiction. Consequently, the Court of Appeal is entitled to dismiss an appeal against conviction advanced on this ground if there has been no miscarriage of justice (at p. 259D–E), and especially where there has been a failure by the defence to object to the joint trial.
(c) Sachs J ‘came to some general conclusions as to what would nowadays be an appropriate rule of practice on the basis that none of the rules of 1915 deal with the joinder of offenders’. In summary, joinder is appropriate if the offences separately alleged against the accused are, on the evidence, so closely related by time or other factors that the interests of justice are best served by a single trial. His lordship said (at p. 261B–F):

As a general rule it is, of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases.

Again, while the court has in mind the classes of case that have been particularly the subject of discussion before it, such as incidents which, irrespective of there appearing a joint charge in the indictment, are contemporaneous (as where there has been something in the nature of an affray), or successive (as in protection racket cases), or linked in a similar manner, as where two persons individually in the course of the same trial commit perjury as regards the same or a closely connected fact, the court does not intend the operation of the rule to be restricted so as to apply only to such cases as have been discussed before it.

(d) It was conceded by the appellant and accepted by the court that, where there is a joint count against two accused, that count may be followed by a separate count or counts against one or more of the accused even in relation to a distinct matter, provided that there is no breach of what is now r. 3.21(4) (at p. 257D, quoting Cox [1898] 1 QB 179). See also Barrell (1979) 69 Cr App R 250 at D11.66.
(e) On the facts of Assim, the joinder of A and C in one indictment was clearly proper, however narrowly any rule as to joinder of offenders might have been formulated (at p. 260G). Having regard to the rule of practice Sachs J had stated, the counts they faced were so closely related by time and other factors that indicting the accused jointly was the correct course.

Question 28

D11.76-11.79

Answer 28

Severance

D11.76

The court has the power to order the separate trial of accused or of offences that are properly joined in one indictment, pursuant to the Indictments Act 1915, s. 5(3). This is supplemented by:

(a) s. 5(4), which requires the court, following an order for severance under s. 5(3), to make such order for postponement of the trial as appears necessary and expedient; and
(b) s. 5(5), which provides that the procedure on the separate trial of a count following an order under s. 5(3) shall be the same in all respects as if the count had been preferred in a separate indictment.

The power to sever an indictment contained in s. 5(3) was held to apply only to valid indictments in Newland [1988] QB 402. However, the combined effect of CrimPR 3.21(4) and the decisions of the Court of Appeal in Smith [1997] QB 837 and Lockley [1997] Crim LR 455 have altered the effect upon the indictment where a count has been improperly joined (see D11.64). The procedure for such applications is set out in CrimPR 3.21 (see Supplement, R-27).

Answer 29

D11.77

Indictments Act 1915, s. 5

(3) Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.
(4) Where, before trial, or at any stage of a trial, the court is of opinion that the postponement of the trial of a person accused is expedient as a consequence of the exercise of any power of the court under this Act to amend an indictment or to order a separate trial of a count, the court shall make such order as to the postponement of the trial as appears necessary.
(5) Where an order of the court is made under this section for the postponement of a trial—
(a) if such an order is made during a trial the court may order that the jury (if there is one) are to be discharged from giving a verdict on the count or counts the trial of which is postponed or on the indictment, as the case may be; and
(b) the procedure on the separate trial of a count shall be the same in all respects as if the count had been found in a separate indictment, and the procedure on the postponed trial shall be the same in all respects (if the jury has been discharged under para (a)) as if the trial had not commenced; and
(c) the court may make such order as to granting the accused person bail and as to the enlargement of recognisances and otherwise as the court thinks fit.

Answer 30

Severance of Counts on an Indictment

D11.78

The proper exercise of the power was considered by Lord Pearson in Ludlow v Metropolitan Police Commissioner [1971] AC 29 (see also D11.70). Having held that the joinder of the counts against L for attempted theft and robbery was lawful, his lordship dealt with the appellant’s further argument that a single trial of the two offences inevitably prejudiced or embarrassed the accused in his defence since the jury heard evidence on count 1 that was inadmissible on count 2 and vice versa. Therefore, the trial judge should have ordered separate trials in exercise of the discretion given him by s. 5(3). In rejecting this argument Lord Pearson said (at pp. 40–2):

Before the Indictments Act 1915, it was a tenable theory … to say that any joinder of counts relating to distinct alleged offences was necessarily so prejudicial to the accused that such joinder ought not to be permitted. [His lordship then reviewed pre-1915 cases lending support to the theory.]

In my opinion, this theory — that a joinder of counts relating to different transactions is in itself so prejudicial to the accused that such a joinder should never be made — cannot be held to have survived the passing of the Indictments Act 1915. No doubt the juries of that time were much more literate and intelligent than the juries of the late 18th and 19th centuries, and could be relied upon in any ordinary case not to infer that, because the accused is proved to have committed one of the offences charged against him, therefore he must have committed the others as well. I think the experience of judges in modern times is that the verdicts of juries show them to have been careful and conscientious in considering each count separately. Also in most cases it would be oppressive to the accused, as well as expensive and inconvenient for the prosecution, to have two or more trials when one would suffice. At any rate, … the manifest intention of the Act is that charges which either are founded on the same facts or relate to a series of offences of the same or a similar character properly can and normally should be joined in one indictment, and a joint trial of the charges will normally follow, although the judge has a discretionary power to direct separate trials under section 5(3). If the theory were still correct, it would be the duty of the judge in the proper exercise of his discretion under section 5(3) to direct separate trials in every case where the accused was charged with a series of offences of the same or a similar character, and the manifest intention appearing from section 4 and [r. 9] would be defeated. The judge has no duty to direct separate trials under section 5(3) unless in his opinion there is some special feature of the case which would make a joint trial of the several counts prejudicial or embarrassing to the accused and separate trials are required in the interests of justice. In some cases the offences charged may be too numerous and complicated, … or too difficult to disentangle, … so that a joint trial of all the counts is likely to cause confusion and the defence may be embarrassed or prejudiced. In other cases objection may be taken to the inclusion of a count on the ground that it is of a scandalous nature and likely to arouse in the minds of the jury hostile feelings against the accused …

Answer 31

D11.79

Application of this Principle Thus, where counts for separate offences can be tried together (through compliance with CrimPR 3.21(4)), the trial judge is able to exercise his discretion to order separate trials, if their joint trial would be prejudicial or embarrassing for some reason (r. 3.21(4)(a)), or if some other feature makes that course desirable (r. 3.21(4)(b)). Although they are not intended to be exhaustive, examples of such features or reasons might include the following:

(a) The scandalous nature of the evidence as to one of the counts. For example in Laycock [2003] EWCA Crim 1477, the Court of Appeal warned that prosecutors should be careful not to charge counts that would prejudice an accused unless there was a real purpose to be served. In that case, the prosecution were criticised for including in a firearms indictment a count which showed that the accused had been sentenced to a previous sentence of imprisonment with the result that he was prohibited from possession of a firearm.
(b) The number and/or complexity of the counts. This may result in difficulties for a jury in disentangling evidence on one count from that on the other count or counts. In this regard, special considerations govern the trial of counts for sexual offences (see D11.80).

The fact that the accused wishes to give evidence in his own defence on one of the counts but not on the others is not, in the normal case, a sufficient reason for severance, even though non-severance will oblige him to choose between not testifying at all and exposing himself to cross-examination about all the charges (Phillips (1987) 86 Cr App R 18). See also Lanford v General Medical Council [1990] 1 AC 13.

Question 32

and D11.86-11.88

Answer 32

Discretion to Order Separate Trials of Accused

D11.86

The court has a discretion to order separate trials of accused who have properly been joined in one indictment pursuant to CrimPR 3.21(4) and in accordance with the principles stated in Ludlow v Metropolitan Police Commissioner [1971] AC 29 (see D11.70). The existence of the discretion was acknowledged by Sachs J in Assim [1966] 2 QB 249. His lordship said (at p. 261B–C):

Where … the matters which constitute the individual offences of the several offenders are upon the available evidence so related … that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together [emphasis added].

Although that was said in the context of an indictment which did not contain a joint count, it has never been doubted that the discretion may be exercised as much in respect of accused charged in a joint count as in respect of those charged in separate counts on one indictment. The discretion may be attributed either to the court’s inherent power to control its own proceedings or to the power to sever contained in the Indictments Act 1915, s. 5(3).

Answer 33

D11.87

Guidance as to the Exercise of the Discretion Because severance of the trial of jointly indicted accused is a matter of discretion, the way in which the discretion is exercised is unlikely to provide a successful ground of appeal (see D11.113). Guidance on ordering separate trials does, however, emerge from the decided cases. The following propositions summarise that guidance.

(a) Where the accused are charged in a joint count, the arguments in favour of a joint trial are very strong. These arguments include:
(i) severance will necessitate much or all of the prosecution evidence being given twice before different juries and increase the risk of inconsistent verdicts;
(ii) even if the accused are expected to blame each other for the offence (i.e. will run ‘cut-throat’ defences), the interests of the prosecution and the public in a single trial will generally outweigh the interests of the defence in not having to call each accused before the same jury to give evidence for himself which will incriminate the other (Grondkowski [1946] KB 369; Moghal (1977) 65 Cr App R 56; Edwards [1998] Crim LR 756; Crawford [1997] 1 WLR 1329).
(b) Where the prosecution case against one accused (A1) includes evidence that is admissible against him but not against his co-accused (A2), there is no obligation to order severance simply because the evidence in question might prejudice the jury against A2. However, the judge should balance the advantages of a single trial against the possible prejudice to A2, and should consider especially how far an appropriate direction to the jury is really likely to ensure that they take into account the evidence only for its proper purpose of proving the case against A1 (Lake (1976) 64 Cr App R 172; B [2004] EWCA Crim 1254, [2004] 2 Cr App R 34 (570); Miah [2011] EWCA Crim 945, [2012] 1 Cr App R (S) 11 (47)).
(c) Where a joint trial of numerous accused would lead to a very long and complicated trial, the judge should consider whether a number of shorter trials, each involving only some of the accused, might make for a fairer and more efficient disposition of the issues. This reason for severance is tied up with the rule against overloading indictments, which is considered at D11.91.
(d) There may be some distinction to be drawn between cases where the accused are jointly charged in a single count and those where they allegedly committed separate offences which were nonetheless sufficiently linked to be put in one indictment. In the latter situation, the cases against the accused are unlikely to be as closely intertwined as when a joint offence is alleged, and the public interest argument in favour of a single trial is correspondingly less strong. There should, therefore, be a greater willingness to order separate trials.

Answer 34

D11.88

Presumption in Favour of Joint Trial The authorities cited above indicate that the decision whether to grant severance is one within the discretion of the trial judge, and that the decision should be in favour of joint trial unless the risk of prejudice is unusually great. Thus in Josephs (1977) 65 Cr App R 253, where the same issue arose as in Lake (1976) 64 Cr App R 172, Lord Widgery CJ said (at p. 255, emphasis added):

… it is a very rare thing for this court to interfere with the trial judge’s decision about separate trials. Nothing is more peculiarly left to the trial judge as his concern with that particular point. Of course we have jurisdiction to interfere where something has clearly gone wrong, but it is very rare, and members of the court today cannot remember a case in which such an interference with the trial judge’s decision was made.

… the fact that some of [a co-accused’s] statements may rub off on the other accused … is just one of those things that happens in the course of a multiple criminal trial. The advantages of having co-defendants tried together is so great that the right to order a separate trial will not be granted unless there is good reason for it.

See also Marsh-Smith [2015] EWCA Crim 1883 for an application of the same approach, discussed at D11.73.

Question 35

D11.99-11.100,

Answer 35

Statutory Provision

D11.99

The power to amend an indictment, once it has been served, lies in the Indictments Act 1915, s. 5(1).

Indictments Act 1915, s. 5

(1) 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 for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice.

Answer 36

Extent of the Power to Amend

D11.100

The power to amend may be exercised both:

(a) in respect of formal defects in the wording of a count, for example when the statement of offence fails to specify the statute contravened or when the particulars do not disclose an essential element of the offence, and
(b) in respect of substantial defects such as divergences between the allegations in the count and the evidence foreshadowed in the material served under the regulations for the service of the prosecution case after the accused has been sent for trial or called at trial.

This was confirmed by the Court of Criminal Appeal in Pople [1951] 1 KB 53 at p. 54:

The argument for the appellants appeared to involve the proposition that an indictment, in order to be defective, must be one which in law did not charge any offence at all and therefore was bad on the face of it. We do not take that view. In our opinion, any alteration in matters of description, and probably in many other respects, may be made in order to meet the evidence in the case so long as the amendment causes no injustice to the accused person.

It followed that the trial judge in Pople had been entitled to allow an amendment at the close of the prosecution case to make the property allegedly obtained by deception from a building society a cheque rather than the sum of money. Furthermore, there was no injustice to the accused because the matter in which the indictment was defective was ‘the mere description of the thing obtained’, while ‘in substance, the charge was the same’.

Question 37

D11.103-11.104,

Answer 37

D11.103

Amendment by Insertion of a New Count As well as enabling amendments to be made to existing counts, s. 5(1) of the Indictments Act 1915 permits the insertion of an entirely new count into an indictment, whether in addition to or in substitution for the original counts (Johal [1973] QB 475), where Ashworth J said (at p. 481A), ‘there is no rule of law which precludes amendment of an indictment after arraignment, either by addition of a new count or otherwise’.

The words ‘after arraignment’ appear in the sentence quoted because the main point at issue in that case was whether the amendment was made too late, but obviously the addition of a count before arraignment is even less open to objection than a subsequent addition. Where the addition is made after arraignment, it will be necessary to put the new counts to the accused for him to plead to them. Amendment can be made even after the close of the prosecution case, as occurred in Rogers [2014] EWCA Crim 1680, [2015] 1 WLR 1017 (amendment following successful submission of no case to answer as to certain counts on the indictment).

The amendment to an indictment can be so extensive that the question arises whether it amounts to the substitution of a fresh indictment. This was the issue in Fyffe [1992] Crim LR 442, where the Crown amended an 11-count indictment so that it contained 27 counts. It was submitted on appeal that the 27-count indictment was a fresh indictment and therefore the judge should have gone through the procedural steps of staying the 11-count indictment and granting the prosecution leave to prefer the 27-count indictment out of time, whereupon the defendants should have been arraigned once more. The appeal was dismissed since, for all material purposes, the 27 counts reproduced what had appeared in the 11 counts. No new allegations had been added; the amendments were of form rather than substance and it was not necessary to go through the process of re-arraignment.

Answer 38

D11.104

Evidential Basis for the New Count A further question arises as to whether it is necessary for the amendment to be founded on the material disclosed under the regulations for the service of the prosecution case after the accused has been sent for trial. According to the Court of Appeal in Osieh [1996] 1 WLR 1260, a case decided in the context of committal proceedings, it is not necessary. However, it was held in that case that the amendment had been founded on evidence disclosed at committal, and this approach ran counter to dicta in Dixon (1991) 92 Cr App R 43 and Hall [1968] 2 QB 788. In Hall, Lord Parker CJ said (at p. 792) that, granted that there was power to amend, the question is really ‘whether the amendment asked for and granted was supported by evidence given at the committal proceedings’. The position has now been resolved in Thompson [2011] EWCA Crim 102, [2012] 1 Cr App R 12 (153). The Court of Appeal approved and adopted the approach in Osieh. The power to amend under s. 5 was held not to be limited by the evidence served at committal, and the question to be assessed before permission to amend is granted is whether or not the accused will be unfairly prejudiced by the amendment. The fact that an amendment raises for the first time something not foreshadowed in the documents may be a ground for not permitting the amendment, or permitting it only together with an adjournment (see Professor JC Smith, ‘Adding Counts to an Indictment’ [1996] Crim LR 889).

Question 39

first sub-paragraph of D11.105

Answer 39

Timing of Amendment

D11.105

The Indictments Act 1915, s. 5(1), makes clear that an indictment may be amended at any stage of a trial, whether before or after arraignment. This was demonstrated in the following cases:

(a) in Johal [1973] QB 475, where the insertion of the new counts occurred after arraignment but before the empanelling of the jury;
(b) in Pople [1951] 1 KB 53, where the amendment took the form of an alteration in the description of the property obtained by deception and was granted after the close of the prosecution case;
(c) in Collison (1980) 71 Cr App R 249, where the amendment was made after the jury had been out considering their verdict for over three hours — on appeal, counsel for C accepted ‘that the words in section 5(1) of the Indictments Act 1915 “at any stage of a trial” do permit amendment even after the jury have gone into retirement if the circumstances otherwise justify it and no injustice is caused to the defendant’ (at p. 253).

The later the amendment, the greater the risk of its causing injustice and therefore the less likely it is to be allowed. However, an indictment may be amended even at the stage of retrial, provided that no injustice is done (Swaine [2001] Crim LR 166; see also B (JJ) [2012] EWCA Crim 1440, adding an alternative count after the accused had given evidence was considered unfair, and Feeley [2012] EWCA Crim 720, [2012] 1 WLR 3133, adding counts to an indictment for a retrial was considered permissible). The procedure for amendment is contained in CrimPR 3.21 and 3.22 (see Supplement, R-27 and R-28).

Question 40

D10.65

Answer 40

Voluntary Bills of Indictment

D10.65

The Administration of Justice (Miscellaneous Provisions) Act 1933, s. 2(2)(b), provides that a bill of indictment may be preferred ‘by the direction or with the consent of a judge of the High Court’. Obtaining a ‘voluntary bill of indictment’ simply means seeking an order from a High Court judge that the accused should stand trial in the Crown Court for the offence(s) set out in the application. The principal use of this exceptional procedure is to allow proceedings to be reinstituted where a charge has been dismissed under the CDA 1998, sch. 3, para. 2 (see D10.23), but fresh evidence against the accused has subsequently come to light.

Question 41

and D10.69

Answer 41

Circumstances in which it is Appropriate to Apply for a Voluntary Bill

D10.69

CrimPD II, para. 10B.4 (see Supplement, PD-27), makes the point that the preferment of a voluntary bill is ‘an exceptional procedure’ and should be used only where ‘good reason to depart from the normal procedure is clearly shown and only where the interests of justice, rather than considerations of administrative convenience, require it’.

Specific provision is made for the use of the voluntary bill procedure where a charge transferred to the Crown Court (under the CDA 1998, s. 51) has been dismissed (under the CDA 1998, sch. 3, para. 2; see D10.23) and the prosecution wish to seek a trial nonetheless; indeed, in such circumstances, further proceedings may be brought on the dismissed charge(s) only by means of the preferment of a voluntary bill of indictment (para. 2(6)).

Question 42

CrimPR rules 10.1 to 10.8

Answer 42

When this Part applies
10.1. This Part applies where— (a) a magistrates’ court sends a defendant to the Crown Court for trial under section 51 or section 51A of the Crime and Disorder Act 1998(a); (b) a prosecutor wants a High Court judge’s permission to serve a draft indictment; (c) the Crown Court approves a proposed indictment under paragraph 2 of Schedule 17 to the Crime and Courts Act 2013(b) and rule 11.4 (Deferred prosecution agreements: Application to approve the terms of an agreement); (d) a prosecutor wants to re-institute proceedings in the Crown Court under section 22B of the Prosecution of Offences Act 1985(c); (e) the Court of Appeal orders a retrial, under section 8 of the Criminal Appeal Act 1968(d) or under section 77 of the Criminal Justice Act 2003(e).
[

Answer 43

The indictment: general rules
10.2.—(1) The indictment on which the defendant is arraigned under rule 3.24 (Arraigning the defendant on the indictment) must be in writing and must contain, in a paragraph called a ‘count’— (a) a statement of the offence charged that— (i) describes the offence in ordinary language, and (ii) identifies any legislation that creates it; and (b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant. (2) 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. (3) The counts must be numbered consecutively. (4) An indictment may contain— (a) any count charging substantially the same offence as one for which the defendant was sent for trial; (b) any count contained in a draft indictment served with the permission of a High Court judge or at the direction of the Court of Appeal; and (c) any other count charging an offence that the Crown Court can try and which is based on the prosecution evidence that has been served. (5) For the purposes of section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933— (a) a draft indictment constitutes a bill of indictment; (b) the draft, or bill, is preferred before the Crown Court and becomes the indictment— (i) where rule 10.3 applies (Draft indictment generated electronically on sending for trial), immediately before the first count (or the only count, if there is only one) is read to or placed before the defendant to take the defendant’s plea under rule 3.24(1)(d), (ii) when the prosecutor serves the draft indictment on the Crown Court officer, where rule 10.4 (Draft indictment served by the prosecutor after sending for trial), rule 10.5 (Draft indictment served by the prosecutor with a High Court judge’s permission), rule 10.7 (Draft indictment served by the prosecutor on re-instituting proceedings) or rule 10.8 (Draft indictment served by the prosecutor at the direction of the Court of Appeal) applies, (iii) when the Crown Court approves the proposed indictment, where rule 10.6 applies (Draft indictment approved by the Crown Court with deferred prosecution agreement). (6) An indictment must be in one of the forms set out in the Practice Direction unless— (a) rule 10.3 applies; or (b) the Crown Court otherwise directs. (7) Unless the Crown Court otherwise directs, the court officer must— (a) endorse any paper copy of the indictment made for the court with— (i) a note to identify it as a copy of the indictment, and (ii) the date on which the draft indictment became the indictment under paragraph (5); and (b) where rule 10.4, 10.5, 10.7 or 10.8 applies, serve a copy of the indictment on all parties. (8) The Crown Court may extend the time limit under rule 10.4, 10.5, 10.7 or 10.8, even after it has expired.

Answer 44

Draft indictment generated electronically on sending for trial
10.3.—(1) Unless the Crown Court otherwise directs before the defendant is arraigned, this rule applies where— (a) a magistrates’ court sends a defendant to the Crown Court for trial; (b) the magistrates’ court officer serves on the Crown Court officer the notice required by rule 9.5 (Duty of magistrates’ court officer); and (c) by means of such electronic arrangements as the court officer may make for the purpose, there is presented to the Crown Court as a count— (i) each allegation of an indictable offence specified in the notice, and (ii) each allegation specified in the notice to which section 40 of the Criminal Justice Act 1988 applies (specified summary offences founded on the prosecution evidence). (2) Where this rule applies— (a) each such allegation constitutes a count; (b) the allegation or allegations so specified together constitute a draft indictment; (c) before the draft indictment so constituted is preferred before the Crown Court under rule 10.2(5)(b)(i) the prosecutor may substitute for any count an amended count to the same effect and charging the same offence; (d) if under rule 9.15 (Service of prosecution evidence) the prosecutor has served copies of the documents containing the evidence on which the prosecution case relies then, before the draft indictment is preferred before the Crown Court under rule 10.2(5)(b)(i), the prosecutor may substitute or add— (i) any count charging substantially the same offence as one specified in the notice, and (ii) any other count charging an offence which the Crown Court can try and which is based on the prosecution evidence so served; and (e) a prosecutor who substitutes or adds a count under paragraph (2)(c) or (d) must serve that count on the Crown Court officer and the defendant.

Answer 45

Draft indictment served by the prosecutor after sending for trial
10.4.—(1) This rule applies where— (a) a magistrates’ court sends a defendant to the Crown Court for trial; and (b) rule 10.3 (Draft indictment generated electronically on sending for trial) does not apply. (2) The prosecutor must serve a draft indictment on the Crown Court officer not more than 28 days after serving under rule 9.15 (Service of prosecution evidence) copies of the documents containing the evidence on which the prosecution case relies.

Answer 46

Draft indictment served by the prosecutor with a High Court judge’s permission
10.5.—(1) This rule applies where— (a) the prosecutor applies to a High Court judge under rule 10.9 (Application to a High Court judge for permission to serve a draft indictment); and (b) the judge gives permission to serve a proposed indictment. (2) Where this rule applies— (a) that proposed indictment constitutes the draft indictment; and (b) the prosecutor must serve the draft indictment on the Crown Court officer not more than 28 days after the High Court judge’s decision.

Answer 47

Draft indictment approved with deferred prosecution agreement
10.6.—(1) This rule applies where— (a) the prosecutor applies to the Crown Court under rule 11.4 (Deferred prosecution agreements: Application to approve the terms of an agreement); and (b) the Crown Court approves the proposed indictment served with that application. (2) Where this rule applies, that proposed indictment constitutes the draft indictment

Answer 48

Draft indictment served by the prosecutor on re-instituting proceedings
10.7.—(1) This rule applies where the prosecutor wants to re-institute proceedings in the Crown Court under section 22B of the Prosecution of Offences Act 1985. (2) The prosecutor must serve a draft indictment on the Crown Court officer not more than 3 months after the proceedings were stayed under section 22(4) of that Act(a).
Draft

Answer 49

Draft indictment served by the prosecutor at the direction of the Court of Appeal
10.8.—(1) This rule applies where the Court of Appeal orders a retrial. (2) The prosecutor must serve a draft indictment on the Crown Court officer not more than 28 days after that order.

Question 50

, and CPD II,
paragraphs 10A.1 to 10A.5 and 10A.10.

Answer 50

10A.1 Section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 allows Criminal Procedure Rules to ‘make provision … as to the manner in which and the time at which bills of indictment are to be preferred’. CrimPR 10.2(5) lists the events which constitute preferment for the purposes of that Act. Where a defendant is contemplating an application to the Crown Court to dismiss an offence sent for trial, under the provisions to which CrimPR 9.16 applies, or where the prosecutor is contemplating discontinuance, under the provisions to which CrimPR Part 12 applies, the parties and the court must be astute to the effect of the occurrence of those events: the right to apply for dismissal is lost if the defendant is arraigned, and the right to discontinue is lost if the indictment is preferred.

Answer 51

Printing and signature of indictment

10A.2 Neither Section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 nor the Criminal Procedure Rules require an indictment to be printed or signed. Section 2(1) of the Act was amended by section 116 of the Coroners and Justice Act 2009 to remove the requirement for signature. For the potential benefit of the Criminal Appeal Office, CrimPR 10.2(7) requires only that any paper copy of the indictment which for any reason in fact is made for the court must be endorsed with a note to identify it as a copy of the indictment, and with the date on which the indictment came into being. For the same reason, CrimPR 3.22 requires only that any paper copy of an indictment which in fact has been made must be endorsed with a note of the order and of its date where the court makes an order for joint or separate trials affecting that indictment or makes an order for the amendment of that indictment in any respect.

Answer 52

Content of indictment; joint and separate trials

10A.3 The rule has been abolished which formerly required an indictment containing more than one f count to include only offences founded on the same facts, or offences which constitute all or part of a series of the same or a similar character. However, if an indictment charges more than f one offence, and if at least one of those offences does not meet those criteria, then CrimPR 3.21(4) cites that circumstance as an example of one in which the court may decide to exercise its power to order separate trials under section 5(3) of the Indictments Act 1915. It is for the court to decide which allegations, against whom, should be tried at the same time, having regard to the prosecutor’s proposals, the parties’ representations, the court’s powers under the 1915 Act (see also CrimPR 3.21(4)) and the overriding objective. Where necessary the court should be invited to exercise those powers. It is generally undesirable for a large number of counts to be tried at the same time and the prosecutor may be required to identify a selection of counts on which the trial should proceed, leaving a decision to be taken later whether to try any of the remainder.

Answer 53

10A.4 Where an indictment contains substantive counts and one or more related conspiracy counts, the court will expect the prosecutor to justify their joint trial. Failing justification, the prosecutor should be required to choose whether to proceed on the substantive counts or on the conspiracy counts. In any event, if there is a conviction on any counts that are tried, then those that have not been proceeded with can remain on the file marked ‘not to be proceeded with without the leave of the court or the Court of Appeal’. In the event that a conviction is later quashed on appeal, the remaining counts can be tried.

Answer 54

10A.5 There is no rule of law or practice which prohibits two indictments being in existence at the same time for the same offence against the same person and on the same facts. However, the court will not allow the prosecutor to proceed on both indictments. They cannot be tried together and the court will require the prosecutor to elect the one on which the trial will proceed. Where different defendants have been separately sent for trial for offences which properly may be tried together then it is permissible to join in one indictment counts based on the separate sendings for trial even if an indictment based on one of them already exists.

Question 55

1

Answer 55

Amending the content of the indictment

10A.10 Where the prosecutor wishes to substitute or add counts to a draft indictment, or to invite the court to allow an indictment to be amended, so that the draft indictment, or indictment, will charge offences which differ from those with which the defendant first was charged, the defendant should be given as much notice as possible of what is proposed. It is likely that the defendant will need time to consider his or her position and advance notice will help to avoid delaying the proceedings.