Indictments (W7)

Question 1

D11.1 - ‘Indictment’ definition

Answer 1

The document containing the charges against the accused on which the accused is arraigned at the commencement of a trial on indictment.

Question 2

D11.2 - No draft indictment may be served unless…

Answer 2

(a) the accused has been sent for trial under CDA 1998 s.51 or 51A
(b) a High Court judge has consented to or directed the preferment of a voluntary bill of indictment
(c) a Crown Court Judge has consented to the preferment of a voluntary 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.
(s. 2(2) Administration of Justice (Miscellaneous Provisions) Act 1933)

Question 3

D11.2 - s.116 CAJA 2009 amendment to s.2(2) Administration of Justice (Miscellaneous Provisions) Act 1933

Answer 3

‘A bill of indictment charging any person with an indictable offence may be preferred by an person before the Crown Court and it shall thereupon become an indictment and be proceeded upon accordingly.’
- The effect of this is to remove the previous prerequisite that an indictment came into being only once it had been signed by a proper officer of the Crown Court.

Question 4

D11.3 - Electronically generated indictments (CrimPR 10)

Answer 4

• In the majority of cases, a draft indictment will be generated electronically when the case is sent, based on the allegations before the mags, subject to substitution or amendment of the charges included by the prosecution.
• A draft indictment is ‘preferred’ by being uploaded to the digital system.
• The officer of the Crown Court is required to endorse it, unless the court directs otherwise.
• It is the duty of the prosecution and defence to regularise the position where more than one indictment has been uploaded by the time of trial
• At trial, the court should inquire whether there are outstanding issues in relation to the indictment on which it is about to try an accused before proceeding to do so.

Question 5

D11.6 - Ultimate responsibility for the indictment

Answer 5

Ultimate responsibility rests with counsel for the prosecution, who must ensure that the indictment is in proper form before arraignment.

Question 6

D11.8 - Time limit for serving a bill of indictment

Answer 6

Save for 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 s.51 CDA 1998
(b) a High Court Judge has consented to the preferment of a voluntary bill of indictment under r.10.5
- The draft indictment should be served more quickly than this period if the prosecution will be seeking to include counts on the indictment which differ from or are additional to the counts on the basis of which the accused was sent.
- The indictment must be served at least 7 days before the PTPH, which itself takes place within 28 days of the case being sent to the Crown Court.

Question 7

D11.9 - Extension of the time limit for serving a bill of indictment

Answer 7

CrimPR 10.2(8) permits the Crown Court to extend the time limit, even after it has expired. There are no specific rules as to the means by which such an application should be made, or what such an application should contain.

Question 8

D11.14 - Counts on the indictment

Answer 8

• 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.
• 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.
• The drafter must also ensure that as much notice as possible of such charges is given to the accused.

Question 9

D11.23 - Layout of an indictment

Answer 9

(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 in ordinary language and if the offence is statutory, specifies the section and subsection of 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.’

Question 10

D11.28 - Date of offence

Answer 10

• The count should state the date on which the offence occurred insofar as it is known.
• 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’ 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. The days specified should be those immediately before the earliest and immediately after the latest days on which the offence could have been committed.

Question 11

D11.32 - Continuous offences

Answer 11

• In most instances, the rule against duplicity (i.e. each count may only allege one offence) requires that a count must allege that the offence occurred on one day, not on several days.
• The exception to the general principle is 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.

Question 12

D11.34 - Application of the continuous offences principle

Answer 12

• Determining whether an offence is to be treated as continuous will require detailed analysis of the offence-creating provision.
• It may be preferable to avoid potential complications by stating that the offence occurred on one day, unless the continuation of the misconduct adds significantly to the gravity of the case.
• 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.
• 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, 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 property.

Question 13

D11.35 - CrimPR 10.2(2)

Answer 13

‘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.’

Question 14

D11.35 - Circumstances in which it is suggested to be appropriate to use CrimPR 10.2(2)

Answer 14

(a) the victim on each occasion was the same, or there was no identifiable individual victim as, for example, in a case of unlawful importation of drugs or money laundering;
(b) the alleged incidents involved a marked degree of repetition in the method employed, 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 without differentiation.

Question 15

D11.63 - Circumstances in which the prosecution may lawfully join two or more counts against one accused in a single indictment

Answer 15

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.’

Question 16

D11.63 - Circumstances in which court may exercise discretion to sever the indictment and order separate trials

Answer 16

CrimPR 3.29(4):

Where the same indictment charges more than one offence, the court may exercise its power to order separate trials of those offences if it is of the opinion that – (a) the defendant otherwise may be prejudiced or embarrassed in his or her defence; or (b) for any other reason it is desirable that the defendant should be tried separately for any one or more of those offences.

Question 17

D11.64 - Examples of application of CrimPR 3.29(4)

Answer 17

• Hamou: Joinder was inappropriate where one of those to be joined was absent, had not been arraigned on the pre-joinder indictment, and evidence relating to him was prejudicial to the defendants who were present.
• Toner: ‘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’

Question 18

D11.65 - Charges founded on the same facts (first limb of CrimPR 3.29(4))

Answer 18

Satisfied if the offences alleged in counts joined in one indictment arose out of a single incident or an uninterrupted course of conduct (e.g. Mansfield - indictment was held to be properly joined where it contained counts for arson and murder related to the same fire)

Question 19

D11.66 - Joinder where one offence is a precondition of the second

Answer 19

• Crim 3.29(4) is not restricted to offences committed at the same time as each other, but extends to situations where later offences would not have been committed but for the prior commission of an earlier offence.
• ‘The test is whether the charges have a common factual origin’ so for example in Barrell, charges of assault and ABH were properly joined with attempting to pervert the court of justice because if D had not been involved in the assaults, he would have no motive for trying to bribe a witness.

Question 20

D11.70 - Series of offences of the same or a similar character (second limb of CrimPR 3.29(4))

Answer 20

Ludlow v MPC:

(a) Two offences are capable of constituting a ‘series’
(b) In deciding whether offences exhibit the similarity required, the court should take into account both their legal and factual characteristics.
(c) The prosecution must be able to point to ‘a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.’ This is clearly established if offences are so connected that evidence of one would be admissible to prove the commission of the other, but this is not essential.
(d) On the facts of Ludlow, the offences were similar in law because they each had the ingredient or theft/attempted theft (attempted theft and robbery) and they were similar in fact because they both involved stealing or attempting to steal at pubs in a time interval of only 16 days.

Question 21

D11.36 - Specimen or sample counts

Answer 21

Where a person is accused of adopting a systematic course of criminal conduct, and where it is not appropriate to allege a continuous offence, the prosecution sometimes proceed by way of specimen or sample counts, e.g. where dishonesty over a period of time is alleged, a limited number of sample counts are included as to avoid a too lengthy indictment.

Question 22

D11.37 - Procedure for specimen counts

Answer 22

(a) The defence should be provided with a list of all the similar offences of which it is alleged that those selected in the indictment are samples;
(b) Evidence of some or all of these additional offences may in appropriate cases be led as evidence of system;
(c) in other cases, the additional offences need not be referred to until after a verdict of guilty on the sample offence is returned.

Question 23

D11.38 - Potential problems with specimen counts

Answer 23

• Issue with sentencing as the accused should not be denied the right to be tried by a jury for offending for which the accused may ultimately be sentenced.
• The CoA emphasised that the indictment has to be drafted in such a way as to enable the accused to know, which as much particularity as the circumstances permit, the case the accused has to meet.

Question 24

D11.72 - Joinder of accused

Answer 24

Two or more accused may be joined in one indictment either as a result of being named together in one or more counts on the indictment, or as a result of being named individually in separate counts.

Question 25

D11.73 - Joinder of accused: Joint counts

Answer 25

All parties to a joint offence may be indicted for it in a single count. In drafting the count:

(a) There is no need to distinguish between principal offenders and secondary parties
(b) The count need not expressly allege that the unlawful acts of each accused were done in aid of the others, as that allegation is implicit in the drafting of a single count.

Question 26

D11.73 - Seeking to join an accused to an indictment following an order that the accused in question be retired pursuant to the Criminal Appeal Act 1968 s.7(2)

Answer 26

In addition to the general considerations for a joinder, the court is required to consider if the accused would be substantially adversely affected, so that joinder would represent an abuse of process.

Question 27

D11.74 - Possible verdicts on joint counts

Answer 27

• If two accused are charged in a joint count, the jury may:
  (a) acquit both
  (b) convict both
  (c) acquit one and convict the other
• Despite this, the prosecution are advised only to draft a joint count where the evidence reveals a joint enterprise. If the co-defendants were acting without reference to each other, separate counts are preferable.

Question 28

D11.75 - Joinder of accused: Separate counts

Answer 28

• Joinder of two or more accused in one indictment notwithstanding the absence of a joint count against them is governed by the decision in Assim.
• Conclusions in Assim:
  (a) Joinder of offenders is a matter of the practice of the courts.
  (b) Errors in the application of the relevant rules, though amounting to an irregularity in proceedings, will not deprive the trial court or jurisdiction. So the CoA is entitled to dismiss an appeal against conviction advanced on this ground if there has been no miscarriage of justice, and especially where there has been failure by the defence to object to the joint trial.
  (c) Joinder of offenders is appropriate if the offences separately alleged are, on the evidence, so closely related by time or other factors that the interests of justice are best served by a single trial.
  (d) Where there is a joint count against two accused, that count may be followed by a separate count that counts against one or more accused even in relation to a distinct matter.

Question 29

D11.76 - Court’s power to order the separate trial of accused or of offences that are properly joined in one indictment

Answer 29

• pursuant so s.5(3) Indictments Act 1915 and supplemented by:
• s.5(4): following an order for severance under s.5(3), the court can make such order for postponement of the trial as appears necessary and expedient;
• s.5(5): procedure on the separate trial of a count following an order under s.5(3) should be the same in all respects as if the count had been preferred on a separate indictment in the first place.

Question 30

D11.78 - When counts can be severed on an indictment

Answer 30

Ludlow v MPC:

• Charges which either are founded on the same facts or relate to a series of offences of the same or 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 s.5(3)
• The judge has no duty to direct separate trials under s.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.

Question 31

D11.79 - Application of the principle in s.5(3)

Answer 31

• Judge is able to exercise discretion to order separate trials, if a joint trial would be prejudicial or embarrassing for some reason, or if some other feature makes that course desirable.
• Examples of such reasons:
  (a) The scandalous nature of the evidence as to one of the counts
  (b) The number and/or complexity of the counts - special considerations govern the trial of counts for sexual offences.
• The fact that the accused wants 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 the accused to choose between not testifying at all and being exposed to cross-examination about all the charges.

Question 32

D11.86 - Discretion to order separate trials of accused

Answer 32

Court always has such a discretion.

Question 33

D11.87 - Guidance as to the exercise of the court’s discretion to order separate trials of the accused

Answer 33

(a) Where the accused are charged in a joint count, the arguments in favour of a joint trial are very strong: (i) severance will necessitate much/all of prosecution evidence being given twice before different juries and increase the risk of inconsistent verdicts and (ii) even if the accused 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/herself which will incriminate the other.
(b) Where the prosecution case against D1 includes evidence that is admissible against D1 but not against D2, there is no obligation to order severance simply because the evidence 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 how far an appropriate direction to the jury to ensure that they take into account the evidence only for its proper purpose of proving the case of D1 is really likely to ensure that.
(c) Where a joint trial would lead to a very long and complicated trial, the judge should consider whether a number of shorter trials might make for a fairer and more efficient disposition.
(d) There may be a distinction to draw between cases where the accused are jointly charged in a single count and where they allegedly committed separate offences which were sufficiently linked to be put in one indictment. The latter cases are more likely to induce a greater willingness to order separate trials.

Question 34

D11.88 - Presumption in favour of joint trial

Answer 34

• It is indicated by authorities that the decision whether to grant severance is within the discretion of the trial judge, and that the decision should be in favour of a joint trial unless the risk of prejudice is unusually great.
• It is very rare for the CoA to interfere with such a decision unless something ‘has clearly gone wrong’

Question 35

D11.99 - Power to amend the indictment

Answer 35

Indictment Act 1915, s.5
- ‘Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice.’

Question 36

D11.100 - Extent of the powers to amend an indictment

Answer 36

The power to amend may be exercised both:

(a) in respect of formal defects in the wording of a count; and
(b) in respect of substantial defects e.g. divergences between the allegations in the count and the evidence foreshadowed in the material served under regulations for service of the prosecution case.

Question 37

D11.103 - Amendment by insertion of a new count

Answer 37

• s.5(1) Indictments Act 1915 permits the insertion of an entirely new count into an indictment, whether in addition to or in substitution for the original counts.
• the addition of a count before arraignment is even less open to objection than a subsequent addition. Where the addition is made after arraignment, it will be necessary to put the new counts to the accused so that they can plead to them. Amendment can be made even after the close of the prosecution case.

Question 38

D11.104 - Evidential basis for new counts added by amendment

Answer 38

The power to amend under s.5 is not limited by the evidence served at committal, and the question to be assessed before permission to amend is granted is whether or not the accused will be unfairly prejudiced by the amendment. The fact that an amendment raises for the first time something not foreshadowed in the documents may be grounds for not permitting the amendment, or permitting it only with an adjournment.

Question 39

D11.105 - Timing of an amendment

Answer 39

An indictment may be amended at any stage of a trial, whether before or after arraignment.

Question 40

D10.65 - Voluntary bills of indictment

Answer 40

Obtaining a ‘voluntary bill of indictment’ simply means seeking an order from a High Court judge that the accused should stand trial in the Crown Court for the offence(s) set out in the application. The principal use of this is to allow proceedings to be re-instituted where a charge has been dismissed under CDA 1998, sch 3, para 2 but fresh evidence against the accused has subsequently come to light.

Question 41

D10.69 - Circumstances in which it is appropriate to apply for a voluntary bill of indictment

Answer 41

• CrimPD II para 10B.4: The preferment of a voluntary bill is ‘an exceptional procedure’ and should be used only where ‘good reason to depart from the normal procedure is clearly shown and only where the interests of justice require it.’
• Specific provision is made for the use of the voluntary bill procedure where a charge transferred to the Crown Court (CDA 1998 s.51) has been dismissed (CDA 1998 sch.3 para.2) has been dismissed and the prosecution wish to seek a trial nonetheless.

Question 42

CrimPR 10.1 - When Part 10 applies

Answer 42

Where –

(a) a magistrates court sends a defendant to the Crown Court for trial under s.51 or s.51A CDA 1998
(b) prosecutor wants a High Court judge’s permission to serve a draft indictment;
(c) Crown Court approves a proposed indictment under para 2 sch 17 Crime and Courts Act 2013
(d) a prosecutor wants to re-institute proceedings in the Crown Court under s.22B Prosecution of Offences Act 1985
(e) CoA orders a retrial under s.8 Criminal Appeal Act 1968 or s.77 Criminal Justice Act 2003

Question 43

CrimPR 10.2 - Indictment general rules

Answer 43

• must be in writing
• must contain, in a para called a ‘count’: (i) description of offence in ordinary language, (ii) any legislation that creates it; and (iii) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.
• Counts must be numbered consecutively.
• An indictment must be in one of the forms set out in the Practice Direction unless (a) Rule 10.3 applies; (b) the Crown Court otherwise directs
• Unless the Crown Court otherwise directs, the court officer must – (a) endorse any paper copy of the indictment made for the court with (i) a note to identify it as a copy of the indictment, and (ii) the date on which the draft indictment became the indictment under paragraph (5) and (b) where rule 10.4, 10.5, 10.7 or 10.8 applies, serve a copy of the indictment on all parties.
• The Crown Court may extend time limit under rule 10.4, 10.5, 10.7 or 10.8 even after it has expired.

Question 44

CrimPR 10.3 - Draft indictment generated electronically on sending for trial

Answer 44

• Unless the Crown Court otherwise directs before D is arraigned, this rule applies when (a) a magistrates court sends a defendant to the Crown Court for trial; (b) the magistrates court officer serves on the Crown Court officer the notice required by CrimPR 9.5; and (c) by means of such electronic arrangements as the court officer may make, there is presented to the Crown Court as a count (i) each allegation of an indictable offence specified in the notice, and (ii) each allegation specified in the notice to which s.40 CJA 1988 applies (specified summary offences)
• Where this rule applies: (a) each allegation constitutes a count, (b) the allegations together constitute a draft indictment, (c) before the draft indictment is preferred before the Crown Court, the prosecutor may substitute for any count an amended count; (d) if the prosecutor has served copies of the documents containing the evidence on which the prosecution case relies, before the draft indictment is preferred before the Crown Court, the prosecution may substitute or add (i) any count charging substantially the same offence as one specified in the notice, and (ii) any other count charging an offence which the Crown Court can try and which is based on the prosecution evidence so served.
• A prosecutor who substitutes or adds a count must serve that count on the Crown Court officer and the defendant.

Question 45

CrimPR 10.4 - Draft indictment served by the prosecutor after sending for trial

Answer 45

• Applies where (a) a magistrates court sends a defendant to the Crown Court for trial, and (b) rule 10.3 does not apply
• The prosecutor must serve a draft indictment on the Crown Court officer not more than 20 business days after serving copies of the documents containing the evidence on which the prosecution case relies.

Question 46

CrimPR 10.4 - Draft indictment served by the prosecutor after sending for trial

Answer 46

• Applies where (a) a magistrates court sends a defendant to the Crown Court for trial, and (b) rule 10.3 does not apply
• The prosecutor must serve a draft indictment on the Crown Court officer not more than 20 business days after serving copies of the documents containing the evidence on which the prosecution case relies.

Question 47

CrimPR 10.5 - Draft indictment served by the prosecutor with a High Court judge’s permission

Answer 47

• Applies where prosecutor applies to High Court Judge under CrimPR 10.9 and the judge gives permission to serve a proposed indictment.
• The proposed indictment constitutes the draft indictment and the prosecutor must serve the draft indictment on the Crown Court officer not more than 20 business days after the High Court judge’s decision.

Question 48

CrimPR 10.6 - Draft indictment approved with deferred prosecution agreement

Answer 48

• Applies where the prosecutor applies to the Crown Court under rule 11.4 and the Crown Court approves the proposed indictment served with that application
• The proposed indictment constitutes the draft indictment

Question 49

CrimPR 10.7 - Draft indictment served by the prosecutor on re-instituting proceedings

Answer 49

• Applies where the prosecutor wants to re-institute proceedings in the Crown Court under s.22B Prosecution of Offences Act 1985
• The prosecutor must serve a draft indictment on the Crown Court officer not more than 3 months after the proceedings were stayed under s.22(4) of the Act

Question 50

CrimPR 10.8 - Draft indictment served by the prosecutor at the direction of the Court of Appeal

Answer 50

• Applies where the Court of Appeal orders a retrial

- The prosecutor must serve a draft indictment on the Crown Court officer not more than 28 days after that order.

Question 51

CrimPR 10.9 - Application to a High Court judge for permission to serve a draft indictment

Answer 51

• Applies where a prosecutor wants a High Court judge’s permission to serve a draft indictment
• Such a prosecutor must (a) apply in writing, (b) serve the application on (i) the court officer and (ii) the proposed defendant, unless the judge otherwise directs, and (c) ask for a hearing, if the prosecutor wants one, and explain why it is needed.
• The application must: (a) attach (i) the proposed indictment, (ii) copies of the documents containing evidence on which the prosecutor relies, (iii) a copy of any indictment on which the defendant has already been arraigned and (iv) if not contained in the indictment, a list of any offences for which the defendant has already been sent for trial, (b) include (i) a concise statement of the circumstances in which and the reasons why the application is made, (ii) a concise summary of the evidence contained in the documents, and (c) contain a statement that to the best of the prosecutor’s knowledge, information and belief, (i) the evidence on which the prosecutor relies will be available at trial and (ii) the allegations contained are substantially true, unless the application is made on behalf of the DPP or the Director of the Serious Fraud Office.
• A proposed defendant served with an application who wants to make representations to the judge must (a) serve the representations on the court officer and the prosecutor, (b) do so as soon as practicable, and in any event within such period as the judge directs, and (c) ask for a hearing, if the proposed defendant wants one, and explain why it is needed.
• The judge may determine the application (a) without hearing, or at a hearing in public or in private; and (b) with or without receiving oral evidence of witnesses.
• At any hearing, if the judge so directs, the prosecutor’s statement must be repeated on oath or affirmation.
• If the judge gives permission to serve a draft indictment, the decision must be recorded in writing and endorsed on or annexed to the proposed indictment.

Question 52

CPD III para 10A.1 - Dismissing the offence or discontinuance

Answer 52

The right to apply for dismissal is lost if the defendant is arraigned and the right to discontinue is lost if the indictment is preferred.

Question 53

CPD III para 10A.2 - Printing and signature of the indictment

Answer 53

• It is not required for an indictment to be printed and signed.
• For the potential benefit of the Criminal Appeal Office, CPR 10.2(7) requires only that any paper copy of the indictment must be endorsed with a note to identify it as a copy of the indictment, and with the date on which the indictment came into being.

Question 54

CPD III para 10A.3 - Joint and separate trials

Answer 54

• It is for the court to decide which allegations, against whom, should be tried at the same time, having regard to the prosecutor’s proposals, the parties’ representations, the court’s powers under the 1915 Act and the overriding objective.
• Where necessary, the court should be invited to exercise those powers
• It is generally undesirable for a large number of counts to be tried at the same time and the prosecutor may be required to identify a selection of counts on which the trial should proceed.

Question 55

CPD III para 10A.4 - Conspiracy counts

Answer 55

• Where an indictment contains substantive counts and one or more related conspiracy counts, the court will expect the prosecutor to justify their joint trial.
• Failing justification, the prosecutor should be required to choose whether to proceed on the substantive counts or the conspiracy counts.
• If there is a conviction on any counts that are tried, those that have not been proceeded with can be left on file marked ‘not to be proceeded with without the leave of the court or the Court of Appeal.’ In the event that a conviction is later quashed on appeal, the remaining counts can be tried.

Question 56

CPD III para 10A.4 - Conspiracy counts

Answer 56

• Where an indictment contains substantive counts and one or more related conspiracy counts, the court will expect the prosecutor to justify their joint trial.
• Failing justification, the prosecutor should be required to choose whether to proceed on the substantive counts or the conspiracy counts.
• If there is a conviction on any counts that are tried, those that have not been proceeded with can be left on file marked ‘not to be proceeded with without the leave of the court or the Court of Appeal.’ In the event that a conviction is later quashed on appeal, the remaining counts can be tried.

Question 57

CPD III para 10A.5 - Two indictments

Answer 57

• There is no rule of law or practice which prohibits two indictments being in existence at the same time for the same offence against the same person on the same facts.
• However, the court will not allow the prosecutor to proceed on both indictments. The prosecutor has to elect the one on which the trial will proceed.

Question 58

CPD III para 10A.10 - amending the content of an indictment

Answer 58

The defendant should be given as much notice as possible of what is proposed.