Indictments

Question 1

What is an 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

Whose responsibility is the indictment?

Answer 2

Ultimate responsibility for the indictment rests with counsel for the prosecution, who must ensure that it is in proper form before arraignment.

Question 3

Who must the draft indictment be served upon?

Answer 3

An appropriate officer of the Crown Court

Question 4

By when must a draft indictment be served?

Answer 4

within 20 days of service of of the prosecution case

Question 5

When should the indictment be served quicker than the general period of 20 days

Answer 5

When 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.

Question 6

Is there any other time limit for serving the indictment?

Answer 6

Yes, the indictment must also be served at least 7 days before the PTPH

Question 7

Within what period will the PTPH take place for a case which has been sent to the Crown Court

Answer 7

Within 28 days of the case being sent to the Crown Court

Question 8

Can the time limit for serving the indictment be extended, if so when?

Answer 8

Yes, it cant be extended, even after is has expired.

Question 9

How does one apply to extend the time limit for serving the indictment?

Answer 9

There are no specific rules as to how an application should be made, or what such application should contain.

Question 10

What must the drafter do if they choose to include a count for an offence which the accused was not originally sent for?

Answer 10

They must be careful to ensure that the offence is in fact disclosed by the statements.

They must also ensure that as much notice as possible of such charges is provided to the accused.

Question 11

What are the basic requirements as to the layout of an indictment?

Answer 11

(a) each offence charged should be set out in a separate count. If there is more than one count they should be numbered
(b) each count should be divided into a statement of offence and particulars of offence
(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
(d) the particulars of offence should make clear what the accused is alleged to have done

Question 12

Does the indictment state the date on which the offence occurred?

Answer 12

Yes

Question 13

What should be on the indictment if the precise date of the offence is unknown?

Answer 13

it is sufficient to allege that the offence occurred

• ‘on or about’ a specified date
• ‘on a date unknown’ before a specified date
• ‘on a date other than the date in count one’
• ‘on a day unknown’ between two specified dates

Question 14

What is meant by duplicity?

Answer 14

A count which alleges more than one offence.

Duplicity is bad.

Question 15

How does the rule against duplicity affect the date of the offence on the indictment?

What is the exception to this rule?

Answer 15

the rule against duplicity requires that a count must allege that the offence occurred on one day, nor 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.

The exception to the general principle is that where there is a continuing offence, then a count may properly allege that it occurred on more than one day.

Question 16

Give two examples of what may be considered a continuing offence

Answer 16

Conspiracy is a clear example of a continuous offence. The offence begins when any two or more parties enter into the unlawful agreement and continues until it comes to an end

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 dates, 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 17

When can a count allege more than one incident?

Answer 17

When those incidents amount to a course of conduct having regard to the time, place or purpose of commission.

Question 18

What is meant by joinder of counts?

Answer 18

When two or more counts against one accused are contained in a single indictment

Question 19

When will there be a joinder of counts in an indictment?

Answer 19

when the offences

(i) are founded on the same facts, or
(ii) form or are part of a series of offences of the same or similar character

Question 20

Where the indictment charges more than one offence, when may the court exercise its power to order separate trials of those offences?

Answer 20

when the court is of the opinoin that
(a) there defendant otherwise may be prejudiced or embarrassed in his defence (e.g. 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 similar nature

(b) for any other reason, it is desirable that the defendant should be tried separately for any one or more of those offences

Question 21

There may be a joinder of counts when the offences are founded on the same facts, do these offences have to be substantially contemporaneous with each other?

Answer 21

No, it can also be situations where one offence is a precondition of the second offence

E.g. the accused was charged with ABH. He then interferes with witnesses and is now accused of perjury. The ABH is a precondition of the perjury, and therefore the offences are founded on the same facts and may be joined in the indictment.

Question 22

How does the court determine whether a series of offences are of the same or a similar character?

Answer 22

the court should take into account both their legal and their factual characteristics.

Question 23

What are specimen counts?

Answer 23

Sample counts which are used to larger pattern of criminal conduct.

Question 24

When may it be more appropriate to use a multiple incidents count instead of specimen counts?

Answer 24

In cases where repeated sexual or physical abuse is alleged.

Question 25

How will it be decided whether specimen or multiple incident counts will be used and what should be considered when making the decision?

Answer 25

The choice of count will depend on the particular circumstances of the case and should be determined bearing in mind the implications for sentencing.

Question 26

What should the prosecution do when using specimen counts?

Answer 26

• should provide the defence with a list of all the similar offences of which it is alleged that the specimen counts are samples of
• evidence of some or all of the additional offences may in appropriate cases be used as evidence of systematic criminal conduct
• in other cases, the additional offences need not be referred to until after a verdict of guilty upon the sample offence.

Question 27

What are the potential problems with specimen counts?

Answer 27

the accused should not be denied the right to be tried by a jury for the offending which they may ultimately be sentenced for

Question 28

When can two or more accused be joined in one indictment?

Answer 28

as a result of either:

• being named together in one or ore 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

Question 29

How should the indictment appear when the accused are joint in one count.

Answer 29

there is no need to distinguish between principal offenders and secondary parties

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

Question 30

Who may be convicted when two or more accused are joint in one count.

Answer 30

The jury may convict all or any of them on the basis that they committed the offence charged independently of the others.

Question 31

When will the court sever an indictment to have counts tried separately?

Answer 31

When the court is of the opinion that:

• 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
• for any other reason it is desirable to direct that the person should be tried separately for the offences

Question 32

At what stage of proceedings may the court sever the indictment

Answer 32

before trial or at any stage of a trial

Question 33

What is the general presumption when it comes to severance.

Answer 33

There is a presumption in favour of a joint trial.

Severance is a rarity, the starting point of the court is that they will hear everything together (both join accused and join counts), it is fairly unusual for the judge to order separate trials.

Question 34

When is the court likely to order severance of counts

Answer 34

when one of the counts has evidence of a scandalous nature

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

Question 35

If D is charged with 2 counts in the indictment, can he testify against only one of the counts, if so what is the effect of this?

Answer 35

Yes he can testify against only one count, but by choosing to testify against one count he is exposed to cross examination about all of the charges.

Question 36

At what stage of proceedings can the indictment be amended?

Answer 36

before trial or at any stage of a trial

Question 37

In what circumstances will the indictment be amended?

Answer 37

When it appears to teh court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary.

Question 38

When will the indictment not be amended, even when it is defective?

Answer 38

When the required amendments cannot be made without injustice.

Question 39

Which type of defects may be amended in the indictment?

Answer 39

• formal defects regarding the wording of a count

- substantial defects such as the allegations etc

Question 40

Can a new count be added to the indictment during amendment?

Answer 40

Yes, there is no rule which precludes amendment of an indictment after arraignment, either by addition of a new count or otherwise

Question 41

What is a voluntary bill of indictment

Answer 41

When the Crown Court do not allow an indictment (e.g. the proceedings have been stayed), the prosecution can go to to the high court asking them to reinstate the indictment.

Question 42

How likely is it that the prosecution will obtain a voluntary bill of indictment?

Answer 42

The prosecution will need a very good reason for this to happen. They will have to explain why the case wasn’t ready, why it took them so long to get the evidence etc.

Question 43

What will the High Court consider when determining whether to grant a voluntary bill of indictment?

Answer 43

They will way up whether the defendant will be prejudiced.