Unit 13 - Indictments and PTPHs (6 and 7 BSB)

Question 1

What is an indictment?

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

The Rule

The Administration of Justice (Miscellaneous Provisions) Act 1933, s. 2(2), provides that no draft indictment may be served unless:

Answer 2

(a) the accused has been sent for trial (pursuant to the CDA 1998, s. 51 or 51A);

(b) a High Court judge has directed or consented to the preferment of a voluntary bill of indictment (the procedure relating to which is in CrimPR 10.9 and CrimPD II, para. 10B);

(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 (pursuant to the CCA 2013, sch. 17, para. 8(1));

(d) the Court of Appeal has ordered a retrial.

Question 3

Indictment: custody time-limits

Answer 3

An indictment may also be preferred where a prosecutor reinstitutes proceedings after custody time-limits have expired

Question 4

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

Question 5

The CAJA 2009, s. 116, amended s. 2(1) of the 1933 Act, so that it reads:

Answer 5

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 CC).

Question 6

Does the indictment need to be signed?

Answer 6

Lord Chancellor v McCarthy (2012), it was emphasised that an indictment that had been served pursuance to CrimPR part 10 duly became ‘the indictment’ without the necessity for it to be signed.

Question 7

Electronically generated indictments:

CrimPR 10.3:

[LAW]

Answer 7

(1) Unless the Crown Court otherwise directs before the defendant is arraigned, this rule applies where—

(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 rule 9.5 (Duty of magistrates’ court officer); and

(c)by means of such electronic arrangements as the court officer may make for the purpose, 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 section 40 of the Criminal Justice Act 1988 applies (specified summary offences founded on the prosecution evidence).

Question 8

Electronically generated indictments:

In majority of cases a draft indictment will be generated electronically when the case is sent, based on the allegations before the mags court, subject to substitution or amendment of the charged included by the prosecution.

MJ (2018) - draft indictment by being uploaded to the digital system, has been preferred because CrimPR part 10 had been complied with.

Question 9

Although CrimPR 10.2 states that a draft indictment must be served to the court and endorsed by a court officer, with the date of receipt added upon endorsement, failing to comply with these requirements does not affect the validity of an electronically served indictment.

Question 10

CrimPR 3.32 and 25.2(2).

[LAW]

Answer 10

1) The indictment on which the defendant is arraigned under rule 3.32 (Arraigning the defendant on the indictment) must be in writing and must contain, in a paragraph called a ‘count’—

(a)a statement of the offence charged that—

(i)describes the offence in ordinary language, and

(ii)identifies any legislation that creates it; and

b)such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.

(2) More than one incident of the commission of the 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.

(3) The counts must be numbered consecutively.

(4) An indictment may contain—

(a)any count charging substantially the same offence as one for which the defendant was sent for trial;

(b)any count contained in a draft indictment served with the permission of a High Court judge or at the direction of the Court of Appeal; and

(c)any other count charging an offence that the Crown Court can try and which is based on the prosecution evidence that has been served, including a summary offence to which section 40 of the Criminal Justice Act 1988 applies.

(5) For the purposes of section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933—

(a)a draft indictment constitutes a bill of indictment; and

b)the draft, or bill, is preferred before the Crown Court and becomes the indictment—

(i)where rule 10.3 applies (Draft indictment generated electronically on sending for trial), immediately before the first count (or the only count, if there is only one) is read to or placed before the defendant to take the defendant’s plea under rule 3.32(1)(d),

(ii)when the prosecutor serves the draft indictment on the Crown Court officer, where rule 10.4 (Draft indictment served by the prosecutor after sending for trial), rule 10.5 (Draft indictment served by the prosecutor with a High Court judge’s permission), rule 10.7 (Draft indictment served by the prosecutor on re-instituting proceedings) or rule 10.8 (Draft indictment served by the prosecutor at the direction of the Court of Appeal) applies, or

(iii)when the Crown Court approves the proposed indictment, where rule 10.6 applies (Draft indictment approved by the Crown Court with deferred prosecution agreement).

(6) An indictment must be in one of the forms set out in the Practice Direction unless—

(a)rule 10.3 applies; or

(b)the Crown Court otherwise directs.

(7) 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.

Question 11

When more than one indictment had been uploaded by the time of trial - duty of P and D:

Answer 11

It was stressed in MJ that it was 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.

Question 12

Who has the ultimate responsibility for the drafting of the indictment?

Answer 12

Prosecution!!!

Question 13

What must the prosecution ensure about the indictment?

Answer 13

• proper form before arraignment

Newland (1988) - The responsibility of ensuring that the indictment was in proper form before arraignment lay with counsel. Reinstating this practice, which is not generally followed, would be beneficial for everyone involved, reduce the Crown Court staff’s perceived responsibility, and result in fewer appeals to the court based on defective indictments.

Question 14

Time-limit for serving a bill of indictment

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 CC within …

Answer 14

20 business days!!

Question 15

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 CC within 20 business says of the date on which:

Answer 15

Copies documents are served where a person is sent for trial under CDA 1988, s. 51

A High Court judge has consented to the preferment of a voluntary bill of indictment under r. 10.5(2).

Question 16

CrimPD II, para. 10A makes it clear that 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.

CrimPD I, para 3A.16 requires the indictment to be served at least 7 days before the PTPH, which itself takes place within 28 days of the case being sent to the CC.

Question 17

Extension of time-limit

CrimPR 10.2(8) permits the Crown Court to extend the time-limit

Answer 17

• even after it has expired
• no specific rules in regards to EOT app

Question 18

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 1988, s. 51 and sch. 3 (permits the submission of a bill of indictment for an offense if the accused has been sent for trial under the CDA 1998, section 51 and schedule 3, with proviso (i) that allows additional counts in the indictment based on material provided to the accused, as long as those counts can be lawfully joined in the same indictment).

CrimPR 10.2(4):

(4) An indictment may contain—

(a)any count charging substantially the same offence as one for which the defendant was sent for trial;

(b)any count contained in a draft indictment served with the permission of a High Court judge or at the direction of the Court of Appeal; and

(c)any other count charging an offence that the Crown Court can try and which is based on the prosecution evidence that has been served, including a summary offence to which section 40 of the Criminal Justice Act 1988 applies.

Question 19

The draft indictment can include charges for any indictable offense based on the evidence served after the accused has been sent, as long as the rules for joining counts and/or defendants are followed. Typically, the counts in the indictment are the same as 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 statement, so as to ensure compliance with the provision to s. 2(2)(I). = D should be given as much notice as possible
of what is proposed.

Question 20

Layout of Indictment

The layout of an indictment should substantially follow the form given in the CrimPR and the Indictments Act 1915 (save where generated electronically under CrimPR 10.3).

Question 21

Layout of Indictment

Basic requirement

Answer 21

Each offence charged should be set out in a separate paragraph or count. If more than one count, they should be numbered.

Each count should be divided into a statement of offence and particulars of offence.

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.

The particulars of offence should give ‘such particulars as may be necessary for giving reasonable information as to the nature of the charge.’ R. 10.2(1)(b) - (This is supplemented by r. 10.2(1)(b) which states that 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 22

Date of the Offence - Each count should state the date on which offence took place. This can be done in the following formula:

Answer 22

1) Normal practice: give day then month; then year (‘on 1st day of Jan 2016’)

2) If date is unknown = “on or about” - evidence must show the offence been committed “within some period that has a reasonable approximation”

3)on a “date unknown” before a specific date

Question 23

Date of the Offence - Each count should state the date on which offence took place:

Where the formula ‘on or about’ a date is used, the evidence must show:

Answer 23

the offence to have been committed ‘within some period that has a reasonable approximation to the date mentioned in the indictment’

Question 24

Date of the Offence - Each count should state the date on which offence took place:

If the formula ‘on a day unknown between’ two specified dates is used:

Answer 24

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 25

What is the rule against duplicity?

Answer 25

Each count may allege only one offence!

This requires that a count must allege that the offence occurred on one day, not on several days!!

Question 26

What is the exception of duplicity?

Answer 26

Continuous offences!

Question 27

What is continuous offences?

Answer 27

where the offence is properly 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 1 day

Question 28

What is an example of a continuous offence?

Answer 28

CONSPIRACY!

The offence begins when any two or more parties enter into an unlawful agreement and continues until it comes to an end.

e.g:

i. Greenfield [1973] 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] 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 …’

Question 29

Is theft an example of a continuous offence?

Answer 29

NO!

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 appropriation 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.

Question 30

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.

Answer 30

Circumstances in which it is suggested to be appropriate to use r. 10.2(2) to charge a ‘multiple offending count’ are identified in CrimPD II, para. 10A.11

Question 31

Joint trials

The procedure for applications for joint trials is set out in CrimPR 3.29 and 3.30

[THE LAW]

Answer 31

3.29.—(1) This rule applies where a party wants the Crown Court to order

(a)the joint trial of—

(i)offences charged by separate indictments, or

(ii)defendants charged in separate indictments;

(b)separate trials of offences charged by the same indictment;

(c)separate trials of defendants charged in the same indictment; or

(d)the deletion of a count from an indictment.

(2) Such a party must—

(a)apply in writing—

(i)as soon as practicable after becoming aware of the grounds for doing so, and

(ii)before the trial begins, unless the grounds for the application do not arise until trial;

(b)serve the application on—

(i)the court officer, and

(ii)each other party; and

(c)in the application—

(i)specify the order proposed, and

(ii)explain why it should be made.

(3) A party who wants to make representations in response to the application must serve the representations on—

(a)the court officer; and

(b)each other party,

not more than 10 business days after service of the application.

(4) 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.

3.30.—(1) This rule applies where the Crown Court makes an order—

(a)on an application to which rule 3.29 (Application for joint or separate trials, etc.) applies; or

(b)amending an indictment in any other respect.

(2) Unless the court otherwise directs, the court officer must endorse any paper copy of each affected indictment made for the court with—

(a)a note of the court’s order; and

(b)the date of that order.

Question 32

Joint trials

The procedure for applications for joint trials is set out in CrimPR 3.29 and 3.30

The court may order separate trials unless ‘the offences to be tried together:

Answer 32

(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 33

Joint trials

This is an exercise of the court’s discretion in this respect, as set out in the Indictment Act 1915, s. 5(3)

Question 34

Joint trials

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. [LAW]

Answer 34

In particular, the leading case of Newland [1988] QB 402 must be read in the light of r. 3.29(4). 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 (see D11.76) 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 (at p. 406F). See also Follett [1989] QB 338.

(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 (at p. 408C–D, applying Bell (1984) 78 Cr App R 305). 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 (at p. 408E). This conclusion was disapproved in Smith (Brian Peter) [1997] QB 836. 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). Smith was approved and followed in Lockley [1997] Crim LR 455.

Question 35

First Limb of CrimPR 3.29(4): Charges Founded on the Same Facts

Answer 35

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 indictment or an uninterrupted course of conduct.

Question 36

Joinder where One Offence is a Pre-condition of the Second

Offences do NOT have to be committed contemporaneously FOR IT TO BE FOUNDED ON THE SAME FACTS: The rule includes cases where the later offences would not have been committed ‘but for’ the earlier offence

• The leading authority is Barrell (1979)

Answer 36

R v Barrell: HELD: a count for attempting to pervert course of justice could be properly joined on the same indictment as counts
alleging affray and assault).

Question 37

This principle is established in the leading case of Barrell (1979) =

[CASE LAW]

Answer 37

where it was held that charges can be joined in the same indictment if they have a common factual origin, even if they are not identical in substance or contemporaneous. The case concerned charges of affray, assault occasioning actual bodily harm and attempting to pervert the course of justice, and the Court of Appeal held that all three counts had a common factual origin and were properly joined in one indictment. The connection between the counts can be established by a coincidence of time and place, and the accused’s different explanations for each offence are irrelevant. The case also established the relevance of cross-admissibility between counts to their joinder.

Question 38

Second Limb of CrimPR 3.29(4):

Series of:

Offences of the Same

or

a Similar Character

Answer 38

This was considered in Ludlow v MPC:

i. Two offences (and no more) are sufficient to constitute a ‘series’

ii. Both the legal and factual characteristics should be considered in determining whether offences are ‘similar in character’.

iii. To have a ‘series of offences’ there must be some ‘nexus’ between them = a ‘feature of similarity which, in the all the circumstances, enables the offences to be described as a series’.

Question 39

Facts of Ludlow: involves counts for

(a) attempted theft on 20 August and
(b) robbery at a different pub on 5 September.

Answer 39

Held: offences were similar in law (both had ingredient of theft); and also similar in fact (involved stealing from neighbouring pubs just 16 days apart). There was sufficient nexus to make the offences of ‘similar
character’.

Question 40

Specimen/Sample counts = counts designed to show just one example of a D’s repeated conduct;

When does the prosecution sometimes proceed by way of specimen or sample counts?

Answer 40

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

This is to avoid overloading an indictment (making it too lengthy)

Question 41

Procedure for Specimen Counts

Answer 41

a) Prosecution should provide D with a list of all the similar offences to which the sample counts relate.

b) Evidence from these additional offences can sometimes be used in the trial by the prosecution, to show evidence of system, where appropriate.

c) In other cases, these additional offences need not be referred to until after a verdict of guilty (upon the sample offence) is returned, when D falls to be sentenced

Question 42

Potential Problems with Specimen Counts

Answer 42

• Potential problems arise re sentencing, because the accused should not thereby be denied his right to be tried by a jury for offending for which he may ultimately be sentenced
• Particularly when the Defence dispute the other occasions on which similar offences are alleged (this will restrict the basis on which a D can be sentenced, for example).

In any event, it is crucial that the accused should know the case he or she has to meet (Evans [1995]).

COA emphasised that the indictment had to be drafted in such a way as to enable the accused to know, with as much particularity as the circumstances would admit, what case the accused had to meet

Question 43

WHAT IS: JOINDER OF ACCUSED

Answer 43

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, albeit that there is no single count against them all. The procedure for applications for joint trials is set out in CrimPR 3.29 and 3.30

Question 44

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

Answer 44

There is no need to distinguish between principal offenders and secondary parties

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 45

Joint Counts

Where the prosecution seek to join an accused to an indictment following an order that the accused in question be retried pursuant to the Criminal Appeal Act 1968, s. 7(2), then, in addition to the considerations of general application to an application for joinder, there is added the need to consider:

Answer 45

if the accused would be substantially adversely affected, so that joinder would represent an abuse of process

But, IF FAIR, there is no prohibition on the addition of counts to an indictment in such circumstances.

Question 46

Joint Counts: the need to consider if accused would be substantially adversely affected [CASE LAW]

Answer 46

Marsh-smith (2015) the issue was whether D should have been severed from his co-accused on a joint charge where one of the co-accused has implicated the appellant in interview. The COA observed that the interests of justice were normally best served by allegations with a common thread being ventilated together, and this included issues between defendants, always assuming that injustice could be avoided by robust direction to the jury as to which parts of the evidence could, and could not be put.

Question 47

Possible verdicts on joint counts:

The jury may convict all of any of them on the basis that they committed an offence charged independently of the others.

Answer 47

DPP v Merriman, Lord Diplock - If two or more defendants are charged with an offense they helped each other to commit, any one of them can be convicted if it is proven that they did the physical act necessary for the offense or helped someone else do it, with the necessary criminal intent.

Question 48

Joint counts: When considering a case with 2+ Defendants on the same count on an indictment = a jury would still consider the case against each separately

Jury has the power to:

Answer 48

Acquit them both or

Convict them both

Acquit one and convict the other.

Question 49

If they convict both: it will usually be on the basis implicit in the joint
count that they helped each other to commit the crime

Answer 49

but the jury may equally convict both where the evidence suggests
they acted independently of each other, if they are satisfied that
each accused committed the offence.

Question 50

If there is a split verdict: the verdict against the accused is not open to challenge on the ground:

Answer 50

that the jury must have found he acted alone without assistance either from his acquitted co-accused or anybody else

Question 51

Separate Counts
(multiple Defendants in same indictment, named individually in
different counts)

According to CrimPR 3.29, accused individuals can be joined in one indictment even if there is no joint count against them.

Answer 51

R v Assim, CA, principles re such joinder where no joint count: where the matters which constitute the individual offences of the several offenders are, upon the available evidence, so related, whether in time or by other factors, that the interests of justice are best served by their being tried together

= then they can be the subject
of counts in one indictment and can be tried together (subject to discretion of the
court).

Question 52

Separate Counts
(multiple Defendants in same indictment, named individually in
different counts)

Principles:

Answer 52

a) Joinder is appropriate IF the offences separately alleged against the accused are ‘so closely related, by time or other factors, that the interests of justice are best served by their being tried together’ = if so, the counts can be in same indictment and tried together.

This rule includes cases where there is evidence that several offenders acted in concert with each other, but is not limited to such cases.

Some cases it might apply to (but not restricted to):
- Incidents which are contemporaneous (eg, something in the nature of an affray

• Incidents which are successive (as in protection racket cases)
• Incidents linked in a similar manner (eg, where two persons
  individually in the course of the same trial commit perjury, as regards the same or a closely connected fact).

[irrespective of whether there appears a joint charge in the
indictment]

Question 53

Separate Counts (multiple Defendants in same indictment, named individually in
different counts)

Principles: The joinder of offenders is a matter of the practice of the courts

Answer 53

• Since joinder of offences is merely a matter of practice, errors in the application of the relevant rules will not deprive the trial court of jurisdiction (hence the CA can dismiss an appeal against conviction advanced on this ground if there has been no miscarriage of justice, especially if D did not object to the joint trial).

Question 54

Separate Counts (multiple Defendants in same indictment, named individually in
different counts)

Principles:
c) Where there is a joint count against 2 accused, there may ALSO be followed by a separate count(s) against one or more of the accused, even in relation to a distinct matter, provided there is no breach of r10.2(3)

Answer 54

[ASSIM]

On the facts of the case: the joinder of A and C in one indictment was clearly proper; the counts they faced were so closely related by time and other factors,
that indicting the accused jointly was the correct course.

Facts: one count alleged that A had maliciously wounded W;
the second alleged that C, on same day, had caused ABH to L.
A and C both worked at the premises where the 2 assaults had
allegedly occurred, a nightclub, where both victims were
customers.

Question 55

What is severance?

Answer 55

(where indictment is valid, i.e. where counts/defendants are
properly joined)

but where joined counts would cause prejudice or embarrassment to a D

Question 56

Severance: what has the court the power to:

Answer 56

The court has the power to order the separate trial of accused or of offences that are properly joined in one indictment (Indictments Act 1915, s. 5(3)). This is supplemented by:

Section 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

Section 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 has been preferred in a separate indictment.

Question 57

Severance: the defence are still entitled, in appropriate circumstances, to apply to judge for ‘severance’, i.e. to :

Answer 57

a) (where jointly charged counts): to order a separate trial of a joined count(s) [i.e. to sever the count from the indictment]];

OR

b) (where jointly charged accused): to order separate trials for each D

Question 58

Indictments Act 1915, s. 5

[LAW]

Answer 58

(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.

Question 59

Application for Severance-

Indictments Act 1915, s. 5

[summary]

Answer 59

Where the same indictment charges more than one offence, the court may (before trial or at any stage of trial) exercise its power to order separate trials of those offences if of the opinion that:

a) a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence on same indictment;

OR

b) 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(s) of such indictment.

Question 60

Court Makes an Order for Severance

Answer 60

S5(4), if court makes an order for severance

=

court must make such an order for postponement of the trial as
appears necessary and expedient

Question 61

If a separate trial is ordered following a severance order = the procedure on the separate trial of a count will be the same as if the count had been preferred in a separate indictment. S5(5)–Where court orders postponement of
trial:

Answer 61

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.

Question 62

If application to sever is successful:

Answer 62

the count or accused will be severed from the original indictment and a new
indictment will be preferred. The new indictment (containing the severed count or accused) will be tried separately.

Question 63

Severance

Where counts for separate offences can be tried together (CrimPR 3.29(4)) the trial judge is able to exercise discretion to order separate trial, if their joint trial would be prejudicial or embarrassing for some reason, or if some other features makes that course desirable.

Answer 63

Scandalous nature of the evidence to one of the counts – Laycock (2003), the COA warned that prosecutors should be careful not to charge counts that would prejudice an accused unless there was a real purpose to be served.

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/s.

The fact that D wishes to give evidence in his own defence on one of the counts but not the others is not a sufficient reason for severance (non- severance will oblige D to choose between not testifying at all and being exposed to cross exam of all the charges).

Question 64

Severance of Counts on an Indictment

Ludlow Principles (1/2)

Answer 64

i. It is wrong to say that: a joinder of counts relating to different transactions is in itself so prejudicial to the accused
that such a joinder should never be made. Juries today are able to be careful & conscientious in
considering each count separately
[and deal with problem that evidence on count 1 is inadmissible on count 2
and vice versa]

ii. Indeed, in most cases it would be oppressive to the accused (as well as expensive and inconvenient for the prosecution) to have 2+ trials when one would suffice.

iii. Under Indictments Act 1915, charges which are:

a) founded on same facts or
b) relate to a series of offences of
same/similar character -> can and normally should be joined in one indictment, and a joint trial of the charges will normally follow (subject to judge discretionary power to sever under s5(3)).

Question 65

Severance of Counts on an Indictment

Ludlow Principles (2/2)

Answer 65

iv. Judge should only direct separate trials where 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.

v. SO, if counts for separate offences have been validly joined in one indictment (under Indictments Act 1915 – same facts or series of offences of same/similar character) = the
normal consequence is that they will be tried together. Trial judge should exercise discretion to order separate trials only if there’s a special feature making a single trial prejudicial/embarrassing.

Question 66

Severance: Presumption in favour of joint trial:

Answer 66

The decision to grant severance in a joint trial is usually up to the discretion of the trial judge, who should generally favour a joint trial unless the risk of prejudice is unusually high. The court is reluctant to interfere with the trial judge’s decision unless something has clearly gone wrong. It is rare for a separate trial to be ordered, as the advantages of a joint trial are significant. The fact that statements of a co-accused may affect others is a normal occurrence in multiple criminal trials, and a separate trial will only be granted if there is a good reason for it.

Question 67

Amending the indictment
Indictments Act 1915, s. 5:

[THE LAW]

Answer 67

(1) 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 68

Amending the indictment
Indictments Act 1915, s. 5:

The power to amend may be exercised both:

Answer 68

In respect of formal defects in the wording of a count, for example when the statement of offence fails to specify the statue contravened or when the particulars do not disclose an essential element of offence and

In respect of substantial defects such as divergences between the allegations in the count and the evidence foreshadowed in the material served under the regulations for the service or the p case after accused has been sent for trial or called at trial.

Question 69

Amendment by insertion of a new count:

Answer 69

S5(1) permits insertion of an entirely new count into an indictment (whether in addition or substitution for the original counts).

Question 70

Amendment by insertion of a new count: If new count(s) are added after arraignment =

Answer 70

the new counts will need to be put
to the defendant for him to plead to them.

Question 71

Amendment by insertion of a new count: can amendment be made even after close of prosecution case?

Answer 71

yes

Question 72

Amendment by insertion of a new count: If the amendment is so extensive, a question arises whether it amounts to the
substitution of a fresh indictment:

Answer 72

in Fyffe, where Crown amended an 11-count indictment so that it contained 27 counts. This was allowed: for all material purposes, the 27 counts reproduced what had appeared in the 11 counts. No new allegations were added; the amendments were of form rather than substance, and was not
necessary to go through the process of re-arraignment.

Question 73

Amendment by insertion of a new count:

EVIDENTIAL BASIS for the new count:

It is not necessary for the amendment to be founded on the material disclosed/served at committal (i.e. under the regulations for the service of the
prosecution case after the accused has been sent for trial);

Answer 73

o the power to amend is not limited to evidence served at committal.

o The question to be assessed before permission to amend is whether or not the accused will be unfairly prejudiced by the amendment.

o The fact that an amendment raises for the first time something not foreshadowed in the documents may be a ground for not permitting the amendment, or permitting it only together with an adjournment.

Question 74

Timing of Amendment

Answer 74

Under s5 = an indictment may be
amended at ANY stage of a trial
before a verdict, whether before or after arraignment; even after the close of the prosecution case (as long as no injustice is caused).

Question 75

Voluntary Bills of indictment

[examinable material is limited to knowledge of the fact that such a
procedure exists; and the circumstances in which it is appropriate to use it].

Answer 75

i. The usual way for an indictment to come into being is after a case is sent to Crown Court.

ii. But another way is by ‘voluntary bill of indictment’.

Question 76

Obtaining a ‘voluntary bill of indictment’ simply means …

Answer 76

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.