Indictments. Sever indictments Flashcards
Severance
The court has the power to order the separate trial of accused or of offences that are properly joined in one indictment, pursuant to the Indictments Act 1915, s. 5(3). This is supplemented by:
(a) s. 5(4), which requires the court, following an order for severance under s. 5(3), to make such order for postponement of the trial as appears necessary and expedient; and
(b) s. 5(5), which provides that the procedure on the separate trial of a count following an order under s. 5(3) shall be the same in all respects as if the count had been preferred in a separate indictment.
Indictments Act 1915, s. 5
(3) Where, before trial, or at any stage of a trial, the court is of 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, or 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.
(4) Where, before trial, or at any stage of a trial, the court is of opinion that the postponement of the trial of a person accused is expedient as a consequence of the exercise of any power of the court under this Act to amend an indictment or to order a separate trial of a count, the court shall make such order as to the postponement of the trial as appears necessary.
(5) Where an order of the court is made under this section for the postponement of a trial—
(a) if such an order is made during a trial the court may order that the jury (if there is one) are to be discharged from giving a verdict on the count or counts the trial of which is postponed or on the indictment, as the case may be; and#
(b) the procedure on the separate trial of a count shall be the same in all respects as if the count had been found in a separate indictment, and the procedure on the postponed trial shall be the same in all respects (if the jury has been discharged under para (a)) as if the trial had not commenced; and
(c) the court may make such order as to granting the accused person bail and as to the enlargement of recognisances and otherwise as the court thinks fit.
Severance of Counts on an Indictment
Where counts for separate offences can be tried together, pursuant to CrimPR 3.29(4), the trial judge is able to exercise discretion to order separate trials, if their joint trial would be prejudicial or embarrassing for some reason (r. 3.29(4)(a)), or if some other feature makes that course desirable.
The proper exercise of the power to sever under the Indictment Act 1915, s. 5, was considered by Lord Pearson in Ludlow.
In that case, having held that the joinder of the counts against D for attempted theft and robbery was lawful, his lordship dealt with D’s further argument that a single trial of the two offences inevitably prejudiced or embarrassed D in his defence since the jury heard evidence on count 1 that was inadmissible on count 2 and vice versa. Therefore, the trial judge should have ordered separate trials in exercise of the discretion given him by s. 5(3).
In rejecting this argument Lord Pearson said
Also in most cases it would be oppressive to the accused, as well as expensive and inconvenient for the prosecution, to have two or more trials when one would suffice. At any rate, … 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).
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. In some cases the offences charged may be too numerous and complicated, … or too difficult to disentangle, … so that a joint trial of all the counts is likely to cause confusion and the defence may be embarrassed or prejudiced. In other cases objection may be taken to the inclusion of a count on the ground that it is of a scandalous nature and likely to arouse in the minds of the jury hostile feelings against the accused …
Application of this Principle
Although they are not intended to be exhaustive, examples of the features identified in CrimPR 3.29(4) to justify severance might include the following:
(a) The scandalous nature of the evidence as to one of the counts. For example in Laycock, the Court of Appeal warned that prosecutors should be careful not to charge counts that would prejudice an accused unless there was a real purpose to be served. In that case, the prosecution were criticised for including in a firearms indictment a count which showed that D had been sentenced to a previous sentence of imprisonment with the result that he was prohibited from possession of a firearm.
(b) 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.
The fact that D wishes to give evidence in his or her own defence on one of the counts but not on the others is not, in the normal case, a sufficient reason for severance, even though non-severance will oblige D to choose between not testifying at all and being exposed to cross-examination about all the charges.
Discretion to Order Separate Trials of Accused
The court has a discretion to order separate trials of accused who have properly been joined in one indictment pursuant to CrimPR 3.29(4) and in accordance with the principles stated in Ludlow
Where … the matters which constitute the individual offences of the several offenders are upon the available evidence so related … that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together.
Although that was said in the context of an indictment which did not contain a joint count, it has never been doubted that the discretion may be exercised as much in respect of accused charged in a joint count as in respect of those charged in separate counts on one indictment. The discretion may be attributed either to the court’s inherent power to control its own proceedings or to the power to sever contained in the Indictments Act 1915, s. 5(3).
Guidance as to the Exercise of the Discretion
Because severance of the trial of jointly indicted accused is a matter of discretion, the way in which the discretion is exercised is unlikely to provide a successful ground of appeal
Guidance on ordering separate trials does, however, emerge from the decided cases. The following propositions summarise that guidance.
(a) Where the accused are charged in a joint count, the arguments in favour of a joint trial are very strong. These arguments include:
(i) severance will necessitate much or all of the prosecution evidence being given twice before different juries and increase the risk of inconsistent verdicts;
(ii) even if the accused are expected to blame each other for the offence (i.e. will run ‘cut-throat’ defences), the interests of the prosecution and the public in a single trial will generally outweigh the interests of the defence in not having to call each accused before the same jury to give evidence for him or herself which will incriminate the other.
(b) Where the prosecution case against one accused (D1) includes evidence that is admissible against D1 but not against the co-accused (D2), there is no obligation to order severance simply because the evidence in question might prejudice the jury against D2. However, the judge should balance the advantages of a single trial against the possible prejudice to D2, and should consider especially how far an appropriate direction to the jury is really likely to ensure that they take into account the evidence only for its proper purpose of proving the case against D1.
(c) Where a joint trial of numerous accused would lead to a very long and complicated trial, the judge should consider whether a number of shorter trials, each involving only some of the accused, might make for a fairer and more efficient disposition of the issues. This reason for severance is tied up with the rule against overloading indictments.
(d) There may be some distinction to be drawn between cases where the accused are jointly charged in a single count and those where they allegedly committed separate offences which were nonetheless sufficiently linked to be put in one indictment. In the latter situation, the cases against the accused are unlikely to be as closely intertwined as when a joint offence is alleged, and the public interest argument in favour of a single trial is correspondingly less strong. There should, therefore, be a greater willingness to order separate trials.
Presumption in Favour of Joint Trial
The authorities cited above indicate that the decision whether to grant severance is one within the discretion of the trial judge, and that the decision should be in favour of joint trial unless the risk of prejudice is unusually great.
… it is a very rare thing for this court to interfere with the trial judge’s decision about separate trials. Nothing is more peculiarly left to the trial judge as his concern with that particular point. Of course we have jurisdiction to interfere where something has clearly gone wrong, but it is very rare, and members of the court today cannot remember a case in which such an interference with the trial judge’s decision was made.
… the fact that some of [a co-accused’s] statements may rub off on the other accused … is just one of those things that happens in the course of a multiple criminal trial. The advantages of having co-defendants tried together is so great that the right to order a separate trial will not be granted unless there is good reason for it.
