6. The Indictment

Question 1

What is the indictment?

Answer 1

The document containing the charges against the accused on which the accused is arraigned at the commencement of a trial on indictment

Question 2

Where is the law on indictments contained?

Answer 2

Indictments Act 1915 and CrimPR Part 10.

Question 3

When can an indictment be preferred?

Answer 3

A draft indictment may not be served unless:
(a) The accused has been sent for trial (CDA 1998 s51/51A)
(b) A High Court judge has directed or consented to the preferment of a voluntary bill of indictment
(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
(d) The court of appeal has ordered a retrial
(e) Where a prosecutor reinstitutes proceedings after custody-time limits have expired

Question 4

When does a bill of indictment become the indictment?

Answer 4

The bill of indictment becomes the indictment when preferred by any person before the Crown Court, so long as this has been served pursuant to Part 10.
The uploading of an indictment to the digital case system is sufficient for preferring.
Equally, an electronically generated indictment, generated when the case is sent, is also preferred when sent, even where not served and endorsed by a court officer.
Where the Crown Court approves the indictment where it is subject to a deferred prosecution agreement
Or where served where it is a substituted indictment for sentencing purposes

Question 5

What should the court officer do when receiving an indictment?

Answer 5

They are required to endorse it, although the court can direct otherwise and not have them endorse it.
To endorse it, they must put on a paper copy with a note to identify it as the indictment and the date on which it became the indictment, and serve it on all parties.

Question 6

What is the duty of the court, prosecution and defence where there is more than one indictment?

Answer 6

Pros and defence should regularise the position
Court should enquire whether there are any outstanding issues on the indictment before proceeding for trial
The court is directed to require the prosecution to identify which indictment they are pursuing, which order defendants are to be listed, and to ensure the defendants understand and have been arraigned on that indictment.

Question 7

Whose responsibility is it to draft the indictment?

Answer 7

Counsel for the prosecution, who must ensure it is in proper form before arraignment.

Question 8

What is the time limit for serving a bill of indictment?

Answer 8

Save in cases where an indictment has been generated automatically on sending of the case, a draft indictment should be served within 20 business days of the date on which:
(a) Copies of documents are served, where a person is sent for trial; or
(b) A High Court judge has consented to preferment of a voluntary bill
And not more than 28 days if CoA has ordered a re-trial
And not more than 3 months if the CPS wish to institute fresh proceedings after stay for a time limit for the relevant part of the proceedings being expired.

Question 9

Can the time-limit for service of a bill of indictment be extended?

Answer 9

Yes, even after it has expired.
There are no specific rules as to the means by which an application for extension should be made or even what such an application should contain.

Question 10

Where is the power to amend indictments contained?

Answer 10

S5 Indictments Act 1915.

Question 11

What charges may be contained within the original indictment?

Answer 11

(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 based on the served prosecution evidence
If adding a count for which the accused was not sent, the drafter must be careful to ensure the offence is in fact disclosed by the evidence served, so as to ensure compliance with the proviso that it is disclosed by the evidence. They must also give as much notice as possible.

Question 12

What guidance is there on the prosecution adding counts to the indictment after it has been sent for trial?

Answer 12

(a) Any counts added must be disclosed by the evidence served, but
(b) Cannot prefer an indictment consisting entirely of counts for charges the accused was not sent for trial for, even where disclosed by the evidence.
(c) They cannot prefer counts which would run foul on the rules of joinder.

Question 13

What is the general form of the indictment?

Answer 13

it should substantially follow the form given in the CrimPr and Indictments Act, such as:
(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(3)).
(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 14

What must be contained at the head of the indictment?

Answer 14

A statement, alongside setting out the date, which tells us whether it is:
(i) the first indictment in the case,
(ii) a proposed amended indictment,
(iii) a substituted indictment,
(iv) an additional indictment,
(v) a trial indictment, or
(vi) an indictment required by rule 25.16(3)(e) (substituted indictment for sentencing purposes).

Question 15

What should the particulars of offence in the indictment contain?

Answer 15

the names of the defendants charged in the count;
(b) the date of the offence (or the dates of the period within which it occurred if the precise date is not known);
(c) the act constituting the offence (e.g., ‘stole’ such and such an item of property, or ‘inflicted grievous bodily harm’ on such and such a person);
(d) the name of the victim of the offence (e.g., the owner of the property stolen or the person wounded or assaulted); and
(e) the state of mind on the part of the accused which the prosecution must establish in order to secure a conviction.

Question 16

What should the indictment state as regard to date?

Answer 16

It should state the date insofar as it is known, in the format of 1st Day of January 2020.

If the precise date is unknown, it is sufficient to allege the offence occurred on or about a specified date or on a day unknown before a specified date or on a date other than in count one.

Where ‘on or about’ is used, the evidence must show the offence to have been committed within some period that has reasonable approximation to the date mentioned in the indictment.

Alternatively, another formulation is ‘on a day unknown between’.

Question 17

Can an indictment allege an offence has been committed over several different days?

Answer 17

No, unless the offence can be properly regarded as a continuing one, as otherwise it might be bad for duplicity.

Question 18

May conspiracy be indicted as a continuing offence?

Answer 18

Yes, this is a clear example of one.
Wording can include:
‘[The defendants] on divers days between … and … conspired together and with …’

Question 19

Can theft be indicted as a continuing offence?

Answer 19

Yes, where the evidence is that the accused on numerous separate occasions over a length period stole small sums or items of property but it is not possible to particularise those days.
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.

Question 20

DO NOT READ THE BELOW UNLESS STRUGGLING: What is the effect of Crim PR 10.2(2)?

ONLY READ IF STRUGGLING:

This is on continuing offences in indictments

Answer 20

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.

Question 21

When should CrimPR 10.2(2) for a multiple offending count be used?

Answer 21

(a) On each occasion the victim was the same or there was no identifiable individual victim
(b) The incidents involved a marked degree of repetition in location or method
(c) The alleged incidents took place over a clearly defined period, no more than about a year
(d) The defence is such as to apply to every alleged incident. Where it does not, a single count will not be appropriate.

Question 22

Where the indictment has been generated electronically on sending, how are counts made in the indictment?

Answer 22

(a) each such allegation constitutes a count;
(b) the allegation or allegations so specified together constitute a draft indictment;

Question 23

Where are the rules governing joinder of counts kept?

Answer 23

CrimPR 3.29 and 3.30

Question 24

What is the test for whether counts can be joined?

Answer 24

CrimPR 3.29(4):
(a) The court may order separate trials where of the opinion that
a. The defendant may be prejudiced or embarrassed in his or her defence (for example, where the offences are not founded on the same facts or form part of a series of offences of the same character); or
b. For any other reason making it desirably to do so.

Question 25

Can the court sever an invalid indictment?

Answer 25

Potentially, yes.

Question 26

Can the court amend an indictment to remove some counts so as to make the indictment valid?

Answer 26

Yes.

Question 27

Are all proceedings flowing from an indictment containing an improperly joined count a nullity?

Answer 27

No, only those for the improperly joined counts.

Question 28

Is joinder appropriate where a defendant is absent?

Answer 28

No, especially where he had not been arraigned on the pre-joinder indictment and evidence relating to him was prejudicial to the present defendants.

Question 29

Where evidence on one count would be properly admissible on the other as evidence of bad character, would a defendant be prejudiced or embarrassed in his defence if the indictment is not severed?

Answer 29

No.

Question 30

Is it appropriate in terms of joinder to try a defendant for two charges arising out of the same conduct?

Answer 30

Yes, where they were legally distinct and alternatives.

Question 31

Where are charges ‘founded on the same facts’ for the purposes of joinder?

Answer 31

Where they arose out of a single incident or uninterrupted course of conduct.
Equally, where one offence is a pre-condition of the second.
The test is whether they have a common factual origin.
A factual connected is established by a coincidence of time and place. It is irrelevant that the explanation is different for each offence.

Question 32

Where are charges ‘offences of the same or a similar character’ for the purposes of joinder?

Answer 32

(a) Two offences are capable of constituting a ‘series’
(b) In deciding whether offences exhibit the similarity, the court should take into account both their legal and factual characteristics
(c) To show existence of a series, the prosecution must be able to point to some nexus between them, with nexus meaning a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.
(d) The nexus need not be nearly as striking enough to bring them within the similar-fact evidence rule.

Question 33

What are specimen counts?

Answer 33

Where the prosecution limit the counts on the indictment to only include a representative number of offences which are representative of the larger amount.

Question 34

Where should specimen counts be used?

Answer 34

Where a person is accused of adopting a systematic course of criminal conduct and it is not appropriate to allege a continuous offence or multiple offending count.
Where this is used will depend upon the particular circumstances of the case.
Prosecutors should bare in mind issues with sentencing that may be presented.
Prosecutors should also make sure the indictment is drafted in such a way to enable the accused to know the case he has to meet.

Question 35

What is the procedure for specimen counts?

Answer 35

(a) The defence should be provided with a list of all the similar offences of which it is alleged that those selected 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 on the sample.

Question 36

Can two accused be charged in the same indictment?

Answer 36

Yes, as either the result of being named together in one or more counts or by being named individually in separate ones.

Question 37

How should parties to a joint offence be indicted?

Answer 37

They can be indicted in a single count.
There is no need to distinguish between principal offenders and secondary offenders.
The count need not expressly allege the unlawful acts by each accused were done in aid of the others.

Question 38

Can an accused be joined to an indictment following a retrial order?

Answer 38

Yes, but only after considering general relevance and whether the accused would be substantially adversely affected so that joinder would represent an abuse of process.

Other than that, there is no prohibition on the addition of counts to an indictment in such circumstances, where it is fair to do so.

Question 39

Can two accused be indicted in a joint count where there are issues between the defendants?

Answer 39

Yes, assuming that any injustice could be avoided by robust directions to the jury as to the uses of each part of the evidence.

Question 40

What verdicts can be given on joint counts?

Answer 40

The jury may convict all or any of them. i.e. the jury may (a) acquit both, (b) convict both, or (c) convict one and acquit the other.
A split verdict is not open to challenge on the ground that the jury must have found the accused acted alone without assistance from the co-accused or anybody else.

Question 41

What is best practice on joint counts for the prosecution?

Answer 41

To only draft them where the evidence reveals a joint enterprise. Otherwise, it should be separate counts.

Question 42

What guidance is there on joinder of offenders?

Answer 42

Joinder of offenders is a matter of practice of the courts.
As it is a matter of practice, errors in this application will not deprive the trial court of jurisdiction, so the CoA can dismiss appeals advanced on this ground where there has been no miscarriage of justice and especially where the defence did not object to the joint trial.
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 one trial.
Joint counts can be followed by separate counts even in relation to a distinct matter, so long as the offences can be properly joined.

Question 43

When can the indictment be severed?

Answer 43

Where, before trial, or at any stage of a trial, the court is of opinion that:
(a) a person accused may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or
(b) 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.

Question 44

What should the court do where it severs the indictment?

Answer 44

(a) Make any such order for postponement of trial as appears necessary and expedient; and

(a) Discharge any jury for the count or counts the trial of which is postponed; and
(b) Make such order as to bail as the court thinks fit

Question 45

What else can the court do where postponing a trial date after severing the indictment?

Answer 45

(a) Discharge any jury for the count or counts the trial of which is postponed; and
(b) Make such order as to bail as the court thinks fit

Question 46

What is the procedure on trial like where the indictment was severed?

Answer 46

It shall be the same in all respects as if the count has been found in a separate trial, and, for those counts for which a jury was discharged, the trial shall be as if no trial had commenced

Question 47

Must the indictment be severed where joinder would mean the jury would hear evidence as to count 1 which is inadmissible in respect of count 2?

Answer 47

No. 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.

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).

Juries are generally intelligent enough to be trusted, except where the scandalous nature of the evidence as to one of the counts would mean a jury may have hostile feelings against the accused. One such example is including in a firearms indictment a count which showed D had been sentenced to a previous sentence of imprisonment with the result that he was prohibited from possession of a firearm.

Equally, the number and/or complexity of the counts may mean that severing is appropriate.

Question 48

What features may justify severance of counts in an indictment?

Answer 48

where the scandalous nature of the evidence as to one of the counts would mean a jury may have hostile feelings against the accused. One such example is including in a firearms indictment a count which showed D hadd been sentenced to a previous sentence of imprisonment with the result that he was prohibited from possession of a firearm.

Equally, the number and/or complexity of the counts may mean that severing is appropriate.

That D wishes to give evidence on one of the counts but not on the others is not normally a sufficient reason for severance.

Question 49

Is there no discretion as to whether an indictment is severed where counts are properly joined?

Answer 49

No, there is massive discretion! They can be tried together ALWAYS SUBJECT to the discretion of the court to sever.

Question 50

What guidance is there as to the discretion to sever the indictment?

Answer 50

(a) Where the accused are charged in a joint count, the arguments in favour of a joint trial are very strong:
a. Because of time/money and risk of inconsistent verdicts
b. Even where they are blaming each other, the interests of the prosecution and public will generally outweigh the interests of the defence.
(b) There is no obligation on severing where the prosecution case against one accused includes inadmissible evidence against the co-accused, but the judge should balance the advantages of a single trial against any prejudice, taking into account how far a direction is really likely to ensure they have not used it
(c) Where one trial would be very long an complicated, whether a number of shorter trials might make for a fairer and more efficient disposition of issues.
(d) There may be a distinction drawn between cases of joint charge and merely separate charges linked. In the latter case, the argument to order separate trials is less strong.

Question 51

Is there a presumption in favour of either a joint or separate trial?

Answer 51

There is a presumption in favour of a joint where except where the risk of prejudice is unusually great.

Question 52

When would the CoA interfere with a decision to either separate or to not separate a trial?

Answer 52

Only where something has clearly gone wrong. They will be very reluctant to interfere.

Question 53

Where is the power to amend indictments contained?

Answer 53

Indictments Act 1915 s5

Question 54

Where can an indictment be amended?

Answer 54

(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.
Defects include:
1. Formal defects in the wording of a count
2. In respect of substantial defects such as diverges between the allegations and the evidence foreshadowed in the material served. (i.e. to meet the evidence in the case)
Late amendments have been allowed where it is merely to change the description of the things obtained, while the charge was the same in substance.

Question 55

How can amendments be made?

Answer 55

Either to an existing count or
To insert an entirely new count, whether in addition or substitution for the original, even after arraignment.

Question 56

Where a new count is inserted into the indictment via amendment, what should happen with the accused?

Answer 56

It should be put to the accused to enable them to plead to them.

Question 57

When can amendments be made?

Answer 57

After arraignment.
After the close of the prosecution case, such as where there was an amendment after a successful submission of no case to answer to certain counts on the indictment.
After the jury had been out considering their verdict for three hours.
Even at retrial.

Question 58

Can an amendment be so extensive that it amounts to a substitution of a fresh indictment?

Answer 58

Certainly not where it is of form rather than substance. In such circumstances it is not necessary to go through the process of re-arraignment.

Question 59

Where amending the indictment, is it necessary for the amendment to be founded on the material disclosed?

Answer 59

No, the evidence is not limited to that given at committal. The question to be assessed is whether or not the accused will be unfairly prejudiced.
The fact an amendment raises something for the first time not foreshadowed in the documents may be a ground for not permitting the amendment or only permitting it with an adjournment.

Question 60

What is the relevance of the lateness of amendment to the indictment?

Answer 60

Generally the greater its risk of causing injustice and therefore the less likely it is to be allowed, although it can be amended at any point, provided injustice is not done.

Question 61

What does obtaining a ‘voluntary bill of indictment’ mean?

Answer 61

Seeking an order from a High Court judge that the accused should stand trial in the CC for the offence(s) set out in the application.

Question 62

When would the voluntary bill procedure be used?

Answer 62

Such as where a charge has been dismissed if it would not be sufficient to ensure a proper conviction but now fresh evidence has come to light.

It is an exceptional procedure.