Topic 5- Indictment

Question 1

What is an indictment?

Answer 1

This is the document containing the charges against the accused on which the accused is arraigned on trial of indictment

Question 2

When may a draft indictment be served?

Answer 2

Where the accused has been sent for trial in Crown Court

Voluntary bill of indictment by High Court

Crown Court has ordered a re-trial

Question 3

When will an electronically generated indictment be made?

Answer 3

It is in the majority of cases that it will be made

Question 4

Who takes responsibility for drafting an indictment?

Answer 4

The prosecution will take responsibility for ensuring it is in the proper form before arraignment

Question 5

Time limit for serving the draft indictment on the Crown Court from when a person is sent to trial from MC

Answer 5

Within 20 business days

Question 6

Can the time limit of serving an indictment be extended?

Answer 6

Yes, the CC permits the extension, even after expiry

There is no specific rules as to how long the extension should be

Question 7

What will the bill of indictment include?

Answer 7

The charges made against him

Question 8

What is the basic layout for a bill of indictment?

Answer 8

1- each offence charged- should be set out in separate counts if more than one

2- each count should be divided into a statement of offence and particulars of offence

3- the statement of offence describes the offence

4- particulars of offence give the necessary information as to the nature of the charge

Question 9

How should the date of the offence be included on the indictment?

Answer 9

The count should state the date

If the precise date is unknown, it is sufficient to allege that the offence occurred “on or about”, or “on a day unknown”

Question 10

What happens if the date of an offence is unknown?

Answer 10

If the precise date is unknown, it is sufficient to allege that the offence occurred “on or about”, or “on a day unknown”

Question 11

What is the rule against duplicity?

Answer 11

Each count on an indictment may only allege one offence

Also states that the offence occurred on one day

Question 12

What is the exception to the rule against duplicity?

Answer 12

Where there has been continuing offences

These must take place continuously or intermittently over a period of time

This means that the count alleges it occurred on more than one day

Question 13

Example of a continuous offence

Answer 13

Conspiracy- it happens across a period of time

Question 14

When will theft be a continuous offence?

Answer 14

When the accused stole small sums of items over a lengthy period of time, but it is not known the exact days it occurred

Question 15

Can more than one incident of an offence be included in one count?

Answer 15

Yes, if they amount to a course of conduct, and happened in the same location or repetition

Must have also taken place within about a year

This is a multiple incidents count

Question 16

What is a multiple offending count?

Answer 16

Where more than one incident of an offence can included in a single count

Question 17

What are the circumstances for allowing a multiple offending count on the indictment?

Answer 17

The victim on each occasion was the same

There was a marked degree of repetition

Occurred over a period of time no longer than a year

Question 18

What are specimen or sample counts?

Answer 18

Where a person is accused of adopting a systematic course of criminal conduct, and where is it not appropriate to allege a continuous offence or multiple offending count

The pros can then use specimens counts

Question 19

Example of a specimen count

Answer 19

Allegation was of repeated rapes over a 2 year period

Question 20

Procedure for using Specimen Counts

Answer 20

The defence should be provided with a list of all the similar offences

Evidence of the offences where appropriate

Question 21

Problems with specimen counts

Answer 21

If all the offences are put together on one count, the accused will not know the case they have to meet

Question 22

What is a joinder of counts in an indictment?

Answer 22

Where there is a joint trial for separate offences

Question 23

Requirements for a joint trial of offences

Answer 23

The offences to be tried together must be-

• Founded on the same facts
• Form part of a series of offences of the same or similar character

Question 24

Can the court sever an indictment if there is a joinder of counts that may be inappropriate?

Answer 24

Yes, they may sever the indictment

Question 25

What does it mean in a joint trial where the offences are founded on the same facts?

Answer 25

If the offences alleged arose out of a single incident or an uninterrupted course of conduct Eg, counts for arson and murder in the same fire

Question 26

What does it mean in a joint trial where the offences are of same or similar character?

Answer 26

Where the offences constitute as a series of offences Where there are factual and legal characteristics and a feature of similarity Eg, a series of robberies

Question 27

What is a joinder of accused?

Answer 27

Where two or more accused may be joined in one indictment

Question 28

When will two or more accused be joined in one indictment?

Answer 28

Where they have been named together in one or more counts on the indictment OR Where they have been named individually in separate counts

Question 29

What must the court consider when joining two accused?

Answer 29

If the accused would be substantially adversely affected, so that it could result in an abuse of process Is it in the interests of justice to join them

Question 30

How does a jury verdict work for a joint count on two accused?

Answer 30

The jury may convict all or any of them Eg, may acquit both or, convict both, or acquit one and convict the other

Question 31

Can two accused be joined on an indictment if they have committed separate counts?

Answer 31

Yes, where the offences separately alleged, but are closely related by time or other factors that it is in the interests of justice to join them together

Question 32

Can the court order a separate trial of two joint accused?

Answer 32

Yes, if one accused may be prejudiced or embarrassed by the other accused charged

Question 33

How does the court justify severance of two accused on an indictment?

Answer 33

Where one accused may prejudice or embarrass another accused if in the same trial Also if the counts are highly complex or numerous

Question 34

Is there a presumption in favour of joint trials?

Answer 34

Yes, unless there is a high risk of prejudice

Question 35

Can the indictment be amended?

Answer 35

Yes, at any stage before trial, the court can make an order for amendment

Question 36

When will the court order amendment of an indictment?

Answer 36

Where there may be a defect in the wording of a count, or defects between the allegations and evidence served

Question 37

Can the court amend an indictment by inserting a new count?

Answer 37

Yes Evidence should be given to reason why

Question 38

Which stage of a trial can the indictment be amended?

Answer 38

At any stage of trial, whether before or after arraignment However, the later the amendment, the less likely it will be approved

Question 39

Can the indictment be amended on retrial?

Answer 39

Yes

Question 40

What is a voluntary bill of indictment?

Answer 40

Where a party applies to the High Court for the accused to stand trial in the Crown court This document is called a voluntary bill of Indictment

Question 41

When will a voluntary bill of indictment be applied for?

Answer 41

It is exception, but can be applied for where a charge to the Crown Court has been dismissed, therefore the prosecution seek a trial

Question 42

Is there a presumption in favour of a joint trial?

Answer 42

Yes, there is always a presumption in favour of a joint trial, unless the risk of prejudice is very high

Question 43

If two accused are expected to blame each other for an offence in a joint trial, will they be separated in trial?

Answer 43

Unlikely, as the interests of the prosecution in a single trial outweigh the interests of the defence

Question 44

What are the arguments in favour of having joint trials of accused?

Answer 44

Potentially inconsistent verdicts with two trials Interests of the prosecution and public outweighs the interests of the defence for a single trial * There will always be a presumption in favour of a joint trial

Question 45

If two co-accused are blaming each other during trial, and one asks for permission to appeal on the ground that he should have been tried separately, will this be allowed?

Answer 45

No, as it was at the judge's discretion and the presumption in favour of joint trial is strong

Question 46

If an accused has been charged with four separate offences, all arising out of the same set of facts, what should be put on the indictment?

Answer 46

One trial All four counts on one single indictment

Question 47

James and Rose are co-accused and facing a joint trial. The indictment includes a joint count against both Defendants of robbery (Count 1), a separate count of attempted arson against James only (Count 2) and a count of possession of a prohibited firearm against Rose only (Count 3). James wants to give evidence at trial in respect of Count 1, but is not at present willing to answer questions relating to Count 2. His aim is to use a ‘cut throat defence’ on Rose in respect of the robbery. Rose gave inconsistent statements in respect of the robbery charge, giving rise to evidence which is admissible against her, but not against James. Rose has instructed that she will be giving evidence on Counts 1 and 3 at trial. Which basis for an application to sever the indictment and order separate trials of James and Rose is most likely to succeed? [A] That the Defendants are likely to accuse each other in respect of Count 1. [B] That James wishes to give evidence only on Count 1 and not on Count 2. [C] That evidence admissible against Rose will prejudice James. [D] That James and Rose are facing separate charges on the indictment.

Answer 47

D This is because cases where the accused committed separate offences which were sufficiently linked to be put into one indictment are distinct as from those where the accused are charged in a single count. In this case Rose and James are charged jointly in one count however for the other two counts they are charged separately. The cases against Rose and James are less entwined as a result and therefore the public interest argument in favour of a single trial is less strong. Accordingly, the judge is more likely to order separate trials.

Question 48

In relation to indictments, which of the following matters should NOT be contained in a count? (i) The particulars of the offence. (ii) The statute and section contravened. (iii) The name of the Defendant. (iv) The maximum penalty for the offence. (v) Statement of the offence. (vi) The classification of the offence.

Answer 48

(v) Statement of the offence. (vi) The classification of the offence All the rest will contained in a count

Question 49

If you are half-way through examining witnesses, and you find out the dates of the offence are wrong, is it too late to amend the indictment?

Answer 49

No, the indictment can be amended at any stage of the proceedings Just need to apply As long as it doesn't unfairly prejudice the accused