Indictments Flashcards
What is the primary legislation for indictments?
Indictments Act 1915
What are the 4 topics in indictments?
Rules on form; composition (charges included); alteration by joinder severance or amendment; rules for objecting an indictment.
How many scenarios can lead to the serving of a draft indictment?
4
Administration of Justice Act 1933, s.2(2)?
Lays out circumstances in which an indictment can be served
What circumstances can an indictment be served in?
Where accused is sent for trial; High Court judge consents to a voluntary bill of indictment; CC judge consents to preferment of a bill, CoA orders retrial.
s.2(1) AJ as amended by CAJA 2009, s.116?
Indictment charging any person with an indictable offence may be preferred by any person before the CC and … will become an indictment and be proceeded upon.
What is the function of CAJA s.116?
Removed the old rule that an indictment began existence once signed by a court officer - now, uploading it to computer is sufficient as being “preferred”.
What is the common way of generating indictments?
Majority of them are electronically created upon sending based on allegations at magistrates subject to amendment or substitution by prosecution
What should be done when the indictment is served?
Once served to CC, date of receipt should be added by the officer of the court - although not doing this doesn’t impugn the validity
What must the courts verify upon receipt of an indictment?
Must require the prosecution to identify which indictment they wish to pursue including which order the defendants are to be listed on the indictment and that Ds understand it.
Who bears ultimate responsibility for drafting the indictment?
The prosecution must make sure it’s in the proper form.
What is the time limit for serving an indictment?
Draft indictments should be served to CC officer within 20 business days from a s.51 sending or judicial consent to a voluntary bill.
When should an indictment be served faster than 20 business days?
Indictments should be served faster where prosecution intend to put counts on the indictment different or additional to the counts they were sent on.
What is the latest an indictment can be served?
An indictment must be served at least 7 days before PTPH (which occur within 28 days of sending to CC)
CrimPR 10.2(8)?
CC can extend the indictment serving time-limit, even if it has expired, and there are no specific rules on how to apply.
Indictment Act 1915, s. 5?
Contains the power to amend the indictment.
What is permitted prior to an indictment being preferred (aka approved)?
The indictment may in addition or substitute any count founded on material served on the accused as counts that may be lawfully joined.
What can be included on an indictment?
Subject to requirements for joinder, an indictment can include any indictable offence disclosed by evidence served to D by the prosecution.
What must be done when unsent charges are put on an indictment?
Drafter must ensure the offence is disclosed by the statements and that the accused is given ample notice of the new additional charges.
How many rules for the layout of a indictment are there?
4
What is the first rule for how to lay out an indictment?
Each offence charged should be set out in a separate paragraph (count), if multiple, these should be numbered.
What is the second rule for how to lay out an indictment?
Each count should be divided into a statement of offence and particulars of offence.
What is the third rule for how to lay out an indictment?
The statement of offence should describe it shortly in ordinary language, and if statutory, should list the provisions contravened.
What is the fourth rule for how to lay out an indictment?
The particulars of offence should give reasonable information as to the nature of the charge and the conduct constituting the commission.
How should indictments counts be dated?
Indictments should be dated “1st day of January 2020”
How should ambiguous offence dates be written in the indictment?
If the precise date of an offence is unknown, use “on or about XYZ”, “on a day unknown before”, “before a specified date”, “on a date other than the date in count 1”, “on a day unknown between”
Hartley [1972]?
Where an indictment says an offence happened “on or about” there must be evidence that it was committed within reasonable approximation of the date.
How does the rule against duplicity apply to indictments?
Each count may only allege one offence. So, an account can only be alleged on one day, not several days.
What is the exception to the duplicity rule in indictments?
When there is a continuing offence which occurs throughout or intermittently over a period of time it can have occurred multiple days.
What is an example of a permitted continuous indictable offence?
Conspiracy: beings when 2 or more parties enter into unlawful agreement until end
What is an example of a non-continuous multiple day offence?
Theft. Offences on numerous separate occasions over a lengthy period difficult to particularise can be included in a single count where there’s a pattern.
CrimPR 10.2(2)?
More than 1 commission of an offence may be included in a count if those incidents TAKEN TOGETHER AMOUNT TO A COURSE OF CONDUCT having regard to time place or purpose of commission (a pattern).
When may a single count allege more than one incident of the commission of an offence?
Where it was the same victim, there was marked repetition in method or location, all occurred in a defined period (usually <1 year), or where defence can apply to every incident without differentiation.
When should an accused’s offences be joined on indictment?
When the offences are (i) founded on the same facts (ii) or form a series of offences of the same or similar character.
What type of power is joinder of an accused’s offences?
It is at the court’s discretion
Before using their discretion to join an accused’s offences what must the court evaluate?
- whether D would be prejudiced or embarrassed in defence (i.e. inconsistent, unclear); 2. for any other reason it would be desirable to have a separate trial.
What is the leading case on joinder of counts?
Newland [1988]
What did Newland [1988] establish?
Trial judges may amend indictments that have insufficiently connected charges
Smith [1997]?
Proceedings flowing from an indictment containing a count improperly joined are not nullified.
CrimPR 3.29(4)?
The court may order separate trials for joined offences due to prejudice or embarrassment or other reason.
When is there prejudice or embarrassment of an accused?
When the multiple counts joined did not arise out of the same facts or course of conduct.
Barrell [1979]?
The court may order separate trials for joined offences wouldn’t have been committed but for the prior commission of an earlier offence.
In joinder of counts, what is meant by ‘founded on the same facts’?
Facts don’t have to be identical in substance or contemporaneous, but simply share a COMMON FACTUAL ORIGIN.
How is a factual connection between counts established?
Through coincidence in time or place or type.
Ludlow [1971]?
Two or more offences may amount to a series of the same or similar character. (of law and of fact).
What is a sentencing issue with using specimen counts?
Accuseds should never be denied jury trial for an offence they may ultimately be sentenced for.
In joinder, how is a series of offences proven?
There must be a feature of similarity- the evidence of one offence would usually be admissible to prove commission of the other. Could also be similar in LAW.
What is an alternative to charging a continuous offence?
The prosecution may use specimen or sample counts. e.g. sexual abuse.
What is the procedure for using specimen counts?
Defence should get a list of all additional offences, evidence of all may be used as evidence of a system. Although sometimes this isn’t necessary until guilty verdict is returned.
How is the sentencing issue with specimen counts mitigated?
By drafting the indictment in a way that makes clear with particularity to the circumstances what case must be met by the defence.
What is the basic rule for joining multiple accuseds?
2+ may be joined on indictment as a result of being named together on 1+ counts or named individually on separate counts.
What needn’t be included when indicting parties on a single count?
No need to distinguish between principal offenders and secondary parties or expressly state that parties were acting in aid of each other.
How do verdicts work in joint trials?
A jury may convict all or any of the accused on the basis that they committed the offence charged independently of the others.
Marsh-Smith [2015]?
Accuseds may still be jointly charged even if they implicate (give evidence) against each other, as long as jury are well directed.
Can you join an accused person that is being re-tried?
Yes, but as well as normal rules to joinder of parties must consider if joinder of the retrying party would have an adverse effect.
What are the implications of one co-accused being found guilty but not another?
If there’s a split verdict, the guilty party cannot challenge simply on grounds of their co-accused being acquitted.
Assim [1966]?
The court has inherent power to formulate and vary rules on joinder - so errors in CPR compliance do not nullify.
Indictments Act 1915, s. 5(3)?
Court has power to order separate trials of accused or offences even if they are properly joined on the indictment.
Indictments Act 1915, s.5(4)?
When the court makes an order for severance they must issue an order of postponement of trial as necessary and expedient.
Indictments Act 1915, s.5(5)?
Procedure for separate trials of previously joined charges must be the same in all respects as if it began as its own indictment.
What is the judicial responsibility towards severance?
The judge has no duty to direct separate trials of offences or accuseds under s.5(3) unless they believe it necessary in interest of justice.
What are examples of features in a trial that might justify severance?
Scandalous nature of evidence (e.g. Laycock 2003) (how is this different from bad character??) or number and/or complexity of counts.
What offences are specially treated with regard to number or complexity of counts?
Sexual offences e.g. historic child abuse
What are the chances of appeal against severance?
Slim, as the power to sever is discretionary - although there is some guidance on how to exercise it.
Ordinarily, how should accuseds of the same count be treated?
Accuseds charged in a joint offence should usually have a joint trial. Otherwise same evidence will be repeated. Even if they blame each other for the commission.
Ordinarily, how should accuseds named on the same indictment be treated?
If the case against D1 has evidence not useful against D2, there’s no obligation to sever based on prejudice to D2.
Ordinarily, how should trials of innumerate accuseds be treated?
Where there’s so many defendants that it would create a long and complex trial, judge should consider if numerous short trials would be more fair AND efficient.
When is it more likely for a judge to order separate trials?
Judges should be more willing to order separate trials when defendants are listed for separate linked offences than for the same count.
What is the overall way of exercising discretion to sever trial?
A judge’s decision to sever should lean in favour of joint trial unless the risk of prejudice is unusually great.
Indictments Act, 1915, s.5(1)?
Before or during trial, if the indictment is defective, the court can make any necessary amendments unless it would cause injustice.
What two circumstances may amendments be used in?
Where the indictment has formal defects (e.g. no statute mentioned or particulars not entire) or substantial defects such as difference between indicted offence and evidence served by prosecution.
Pople [1951]?
Any alteration in description can be made in order to meet the prosecution evidence served as long as it causes no injustice to the accused.
Johal [1973]?
Section 5(1) IA permits insertion of an entirely new count into an indictment whether in addition or substitution for original counts.
What must happen if an indictment is amended after arraignment?
New counts after arraignment must be put to the accused so that they may plead.
When is arraignment?
At the plea and trial preparation hearing at CC (first hearing)
How late can amendments to an indictment be made?
An indictment can be amended even after the close of the prosecution case.
Must an amendment be founded on prosecution’s disclosed material?
No, it needn’t be. the question is only whether the amendment will lead to the accused being unfairly prejudiced.
When should copious amendments to an indictment require re-arraignment?
If amendments are of great substance, the accused should be re-arraigned. But even an increase of 16 counts, if simply changing form, don’t create new allegations that require new pleas.
When may amendments to indictments occur?
At any stage of trial - before or after plea. Even if the jury are in deliberation, as long as it doesn’t cause injustice.
What is the impact of late amendments to indictments?
The later an amendment to an indictment occurs in trial, the more likely it is to cause injustice and therefore not be allowed.
What does ‘obtaining a voluntary indictment’ mean?
Applying for an order from a High Court judge that the accused should stand in CC for offences set out in the application.
What is the main use of voluntary indictments?
To allow proceedings to be re-instituted where a charge has been dismissed but fresh evidence has come to light.
CDA 1998 sch.3 para. 2?
Provides for the dismissal of charges at CC.
When should voluntary bills of indictment be used?
Exceptionally, only with good reason and when in the interest of justice not just administrative convenience.
What is the time limit for serving a draft indictment to re-institute proceedings?
To re-institute proceedings an indictment must be served not more than 3 months after proceedings were stayed under s.22(4) POA.
What is the time limit for serving a draft indictment when CoA orders retrial?
Prosecutor must serve indictment within 28 days of a retrial order.
What is the difference between electronic and paper indictments?
Only paper copies of indictments require signatures, a note endorsing the copy, and date of receipt.
Can multiple indictments for the same person and offences exist?
Yes, there’s no rule against it. But the prosecutor will only be permitted to continue trial on one.
What must be remembered about prosecutorial responsibilities for joinder on indictment?
If prosecution join substantive counts and one or more related conspiracy counts, they will be required by the court to justify their joint trial
