Indictments. Time limits, structure and format Flashcards
The Indictment
The indictment is the document containing the charges against the accused on which the accused is arraigned at the commencement of a trial on indictment. The law on indictments is contained principally in the Indictments Act 1915,
Requirement that an Indictment be Preferred
The Rule
The Administration of Justice (Miscellaneous Provisions) Act 1933, s. 2(2), provides that no draft indictment may be served unless:
(a) the accused has been sent for trial
(b) a High Court judge has directed or consented to the preferment of a voluntary bill of indictment
(c) a Crown Court Judge has consented to the preferment of a bill of indictment following a declaration by the court approving a deferred prosecution agreement.
(d) the Court of Appeal has ordered a retrial.
An indictment may also be preferred where a prosecutor reinstitutes proceedings after custody time-limits have expired.
Provision is also made for the preferring of the indictment in a case where there is a deferred prosecution agreement, which acts as the catalyst for the suspending of the proceedings pursuant to the terms of the agreement.
Subject to the provisions of this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before the [Crown Court] and it shall thereupon become an indictment and be proceeded upon accordingly.
The effect of this amendment is to remove the previous prerequisite that an indictment came into being only once it was signed by a proper officer of the Crown Court.
It was emphasised that an indictment that had been served pursuant to CrimPR Part 10 duly became ‘the indictment’ without the necessity for it to be signed.
It was confirmed that the act of uploading such an indictment to the digital system is sufficient for that indictment to be preferred for the purposes of CrimPR 10.3 and 10.4.
Electronically Generated Indictments
Under CrimPR 10.3, in the majority of cases a draft indictment will be generated electronically when the case is sent, based on the allegations before the magistrates’ court, subject to substitution or amendment of the charges included by the prosecution.
A draft indictment, by being uploaded to the digital system, had been ‘preferred’,
While CrimPR 10.2 requires that a draft indictment should be served on the court and endorsed by a court officer and that when the draft indictment is endorsed, the date of receipt should be added.
it is clear that a failure to satisfy these requirements does not impugn the validity of an electronically served indictment.
The officer of the Crown Court is required to endorse it, unless the court directs otherwise.
It is the duty of prosecution and defence to regularise the position where more than one indictment had been uploaded by the time of trial and that, at trial, the court should inquire whether there were outstanding issues in relation to the indictment on which it was about to try an accused before proceeding to do so.
It is the duty of prosecution and defence to regularise the position where more than one indictment had been uploaded by the time of trial and that, at trial, the court should inquire whether there were outstanding issues in relation to the indictment on which it was about to try an accused before proceeding to do so
Responsibility for Drafting an Indictment
Ultimate Responsibility
Ultimate responsibility for the indictment rests with counsel for the prosecution, who must ensure that it is in proper form before arraignment.
Time-Limit for Serving a Bill of Indictment
The Rule
Save in cases where the draft indictment has been generated automatically on the sending of the case for trial a draft indictment should be served on an appropriate officer of the Crown Court within 20 business days of the date on which:
(a) copies of documents are served where a person is sent for trial under the CDA 1998, s. 51 (Crime and Disorder Act 1998, Sending cases to the Crown Court: adults).
(b) a High Court judge has consented to the preferment of a voluntary bill of indictment under r. 10.5(2) .
CrimPD 5.2.1 requires the indictment to be served at least seven days before the PTPH, which itself takes place within 28 days of the case being sent to the Crown Court.
Extension of the Time-limit
CrimPR 10.2(8) permits the Crown Court to extend the time-limit, even after it has expired. Moreover, there are no specific rules as to the means by which an application for an extension should be made, or what such an application should contain.
Counts Which May be Included in an Indictment
These paragraphs deal with which charges may be included in the original draft of the indictment, rather than matters of joinder, severance or amendment to the indictment which may alter its content between the original drafting and the trial
Charges Revealed by the Papers
The Administration of Justice (Miscellaneous Provisions) Act 1933, s. 2(2)(a), allows a bill of indictment charging an offence to be preferred if the person charged has been sent for trial, pursuant to the CDA 1998, s. 51 and sch. 3, in each case in conjunction with proviso (i) to the subsection.
The proviso is: ‘where the person charged has been sent for trial, the bill of indictment against him may include, either in substitution for or in addition to any count charging an offence specified in the notice under section 57D(1) of the CDA 1998, any counts founded on material which, in pursuance of regulations made under paragraph 1 of schedule 3 to that Act, was served on the person charged, being counts which may lawfully be joined in the same indictment’.
Subject to the rules on when counts and/or defendants are sufficiently closely linked to be properly joined in a single indictment, a draft indictment may include charges for any indictable offence disclosed by the evidence served under the regulations for the service of the prosecution case after the accused has been sent.
Usually the counts in the indictment simply follow the original charges.
Where the drafter chooses to include a count for an offence in respect of which the accused was not sent, the drafter must be careful to ensure that the offence is in fact disclosed by the statements, so as to ensure compliance with the proviso to s. 2(2)(i).
The drafter must also ensure that as much notice as possible of such charges is provided to the accused.
General Form of an Indictment
Layout
Save where generated electronically, the form must normally be one of those set out in the CrimPD, but in fact no such form is now set out there. Despite this, the basic requirements as to the layout of an indictment are as follows:
(a) Each offence charged should be set out in a separate paragraph or 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 give ‘such particulars as may be necessary for giving reasonable information as to the nature of the charge’. There should be included ‘such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant’.
Components of the Particulars
Date of the Offence
The count should state the date on which the offence occurred insofar as it is known. Normal practice is to give the day of the month, followed by the month, followed by the year.
If the precise date is unknown, it is sufficient to allege that the offence occurred ‘on or about’ a specified date, or ‘on a day unknown’ before a specified date, or ‘on a date other than the date in count one’.
Where the formula ‘on or about’ a date is used, the evidence must show the offence to have been committed ‘within some period that has a reasonable approximation to the date mentioned in the indictment’.
An alternative permitted formulation is ‘on a day unknown between’ two specified dates. If the last-mentioned formula is adopted, the days specified should be those immediately before the earliest and immediately after the latest days on which the offence could have been committed.
Continuous Offences
In most instances, the rule against duplicity (i.e. each count may allege only one offence) requires that a count must allege that the offence occurred on one day, not 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.
Although the prosecution are permitted to have one count for what are technically distinct criminal acts where those acts formed a single activity or transaction, the mention of more than one day (whether conjunctively or disjunctively) in the count is inconsistent with there having been a single activity on the accused’s part.
The difference here is between an offence being committed once between a start and end date, and the offence having been committed repeatedly but separately on a number of days.
The exception to the general principle just stated is that where an offence is properly to be regarded as a continuing offence which may take place continuously or intermittently over a period of time, then a count may properly allege that it occurred on more than one day.
Application of the Principle
Conspiracy is a clear example of a continuous indictable offence. The offence begins when any two or more parties enter into the unlawful agreement and continues until it comes to an end.
(i) Greenfield [1973] 3 All ER 1050 (and see D11.46), where a count for conspiring to cause explosions between 1 January 1968 and July 1971 was held not to be bad for duplicity;
(ii) Landy [1981] 1 All ER 1172, where the Court of Appeal, in indicating how the prosecution should have drafted a count for conspiracy to defraud a bank, suggested that the particulars could have begun ‘[The defendants] on divers days between … and … conspired together and with …’.
(d) 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 days on which the appropriations occurred, 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.
Effect of CrimPR 10.2(2)
More than one incident of the commission of an offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.
Before this form of words was incorporated into the CrimPR, it had been argued that it was usually possible to allege only one incident per count, as to allege more than one incident in a count fell foul of the rule against duplicity.
CrimPD 2015 II, para. 10A.11, stated that circumstances in which it is suggested to be appropriate to use r. 10.2(2) to charge a ‘multiple offending count’ include, but are not limited to, the following:
(a) the victim on each occasion was the same, or there was no identifiable individual victim as, for example, in a case of the unlawful importation of controlled drugs or of money laundering;
(b) the alleged incidents involved a marked degree of repetition in the method employed or in their location, or both;
(c) the alleged incidents took place over a clearly defined period, typically (but not necessarily) no more than about a year;
(d) in any event, the defence is such as to apply to every alleged incident. Where what is in issue differs in relation to different incidents, a single ‘multiple incidents’ count will not be appropriate (though it may be appropriate to use two or more such counts according to the circumstances and to the issues raised by the defence).
