Indictments. Joinder of counts and the consequences of misjoinder Flashcards
Joinder of Counts in an Indictment
The Rule
The procedure for applications for joint trials is set out in CrimPR 3.29 and 3.30.
The circumstances in which the prosecution may lawfully join two or more counts against one accused in a single indictment are prescribed by CrimPR 3.29(4).
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’.
This is an exercise of the courts discretion.
CrimPR 3.29(4) now 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.
Application of the Rule
Cases in which the application of the rule have been considered relate to r. 9 of the Indictment Rules 1971 as well as CrimPR 3.29(4), and should be approached with a degree of caution as a result.
Case of Newland In that case, D was charged in an indictment containing counts relating to drugs offences and assaults, which were entirely unconnected.
At trial, when counsel for D submitted that the indictment was invalid, the judge held that he had power under s. 5(3) of the Indictments Act 1915 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 3.29(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.
(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. 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. 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).
A recent example of the application of CrimPR 3.29
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.
‘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’.
First Limb of CrimPR 3.29(4):
Charges Founded on the Same Facts
The first limb of r. 3.29(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.
The indictment against D was held to be properly joined where it contained counts for arson and murder relating to the same fire.
Joinder where One Offence is a Pre-condition of the Second
CrimPR 3.29(4), like its predecessor, is not restricted to offences that were committed contemporaneously or substantially contemporaneously with each other, 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 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.
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
Second Limb of CrimPR 3.29(4):
Series of Offences of the Same or a Similar Character
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 3.29(4) were considered by the House of Lords in Ludlow v Metropolitan Police Commissioner.
The indictment against D 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 D was convicted on both counts.
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.
(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. 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’. 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.
(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.
