Indictments

Question 1

What is an indictment?

Answer 1

The formal document which sets out the charge or charges the defendant faces in a CC trial.

Question 2

Who drafts the indictment?

Answer 2

Prosecution

Question 3

Where to find the wording for particular offences

Answer 3

Blackstone’s and Archbold

Question 4

What elements must each count contain?

Answer 4

1. Statement of the offence charged, describing it in ordinary language and identifying any legislation that creates it
2. Particulars of the conduct constituting the commission of the offence, making clear what the prosecution allege against D, including the date of the offence

Question 5

Substitution or addition of offences from those sent up by the Mags

Answer 5

Prosecution can either substitute a different offence (e.g. replace burglary with theft) or add any other count, as long as it is indictable (indictable only or either way), disclosed in the evidence served on D and court, and can properly be joined in the same indictment (sufficient connection with another offence on the indictment).

Question 6

Service of draft indictment

Answer 6

May be generated electronically when D sent for trial, or else must be served by P on defence and court within 28 days of service of the evidence on which the prosecution case is based. Time limit may be extended.

Question 7

Service of indictment

Answer 7

Indictment should be served at least 7 days before PTPH. Appropriate court officer must endorse any paper copy made for court with a note identifying it as a copy of the indictment and showing the date on which the draft indictment became the indictment. Service takes pace when it is entered electronically on the court’s digital system.

Question 8

Any objections to the form of the indictment

Answer 8

Must be made before start of the trial

Question 9

Amendment of indictment

Answer 9

Court may permit so long as injustice is not done to the defendant. Much depends on the stage at which the amendment is sought. For example, if prosecution evidence has already been heard, a key question is whether the defence would have cross-examined prosecution witnesses differently had the amendment been made earlier.

Question 10

Amendment after the jury has retired to consider their verdict

Answer 10

Amendment can even take place after the jury have retired to consider their verdict, so long as no injustice is caused to D. Consideration will be given to whether defence would have cross examined prosecution witnesses differently or would have adduced different defence evidence.

Question 11

Example of a late amendment case

Answer 11

Case where jury could not reach a verdict and, because they could not agree on an acquittal for the offence on the indictment, could not convict of a lesser included offence. Judge allowed lesser offence to be added to indictment. Not unjust to D because lesser offence was included within offence on indictment and so defence case would not have been presented differently.

Question 12

Course of conduct offences

Answer 12

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 time, place, or purpose of commission. Library books example: 35 counts would overload the indictment, so it would be better to have one count alleging theft of 35 books between the two dates.

Question 13

When would the course of conduct approach not be permissible?

Answer 13

If D were to raise different defences in respect of the taking of different books.

Question 14

Where the same indictment charges more than one offence, when may the court exercise its discretion to order separate trials?

Answer 14

If the defendant may otherwise be prejudiced or embarrassed in their defence, e.g. the offences are neither founded on the same facts nor form or are part of a series of offences or the same or similar character, or for any other reason it is desirable that D should be tried separately for any one or more of the offences. So, should not be joined on the same indictment unless founded on same facts (so amounting to single transaction or otherwise having common factual origin), or form or are part of a series of offences of the same or a similar character, having regard to both legal and factual characteristics.

Question 15

Two cases where there would be separate trials and one where there would not be

Answer 15

E.g. Criminal damage founded on same facts as burglary because took place in order to commit the burglary.
E.g.2. Witness intimidation would not have occurred but for the burglary, so founded on the same facts.
E.g.3 Both shoplifting but in different places —Probably not.

Question 16

Listed summary offences may appear on the indictment if linked, but court retains jurisdiction…

Answer 16

To try the summary offence even if the indictable offence with which it is linked is no longer before the court at the time of the trial, such as because the prosecution has discontinued the prosecution or D has pleaded guilty.

Question 17

Severance

Answer 17

When indictment contains more than one count, defence can ask for counts to be tried separately by different juries. Presumption against severance where there is a strong link between the counts unless some special feature can be showed. Potential arguments may be based on scandalous nature of the evidence on one of the counts, such that the jury would be prejudiced against the defendant if they convicted on that count, or the number and complexity of counts making the case too difficult for the jury to cope with.

Question 18

In summing up, the judge will direct the jury…

Answer 18

To consider each count separately and not to convictive defendant on a count simply because they’ve convicted on another count.

Question 19

Joinder of defendants

Answer 19

Depends on whether the offences can be joined: Are the assaults founded on the same facts or do they form (part of) a series of offences of the same or similar character? Contrast a pub fight with two fights in a pub.

Question 20

What if one defendant wants to sever?

Answer 20

E.g. burglary they are alleged of committing together and one D says they didn’t do it. Presumption in favour of joint trial. Judge will order separate trials only in very exceptional cases. Fact Ds are blaming each other for the offence is not enough to justify an order for separate trials.