Unit 13 Indictments and PTPHs

Question 1

What is the indictment?

Answer 1

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.

Question 2

No draft indictment may be served unless what?

Answer 2

The requirement that an indictment be preferred. 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.

Question 3

What is the general principle of the requirement that an indictment be preferred?

Answer 3

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.

Question 4

How is an indictment “preferred”?

Answer 4

No longer needs to be signed by a proper officer of the Crown Court. The act of uploading such an indictment to the digital system is sufficient for that indictment to be preferred

Question 5

Are indictments generated electronically?

Answer 5

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.

Question 6

Can other counts be included on the indictment if the accused was not sent for them?

Answer 6

Yes. 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, any counts founded on material which, was served on the person charged, being counts which may lawfully be joined in the same indictment’

Question 7

Where the phrase “on or about” is used instead of a specified date, what must the evidence show?

Answer 7

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’

Question 8

What is the rule against duplicity?

Answer 8

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.

Question 9

What is the exception to the rule against duplicity? (each count may only allege one offence)

Answer 9

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. For example, conspiracy.

Question 10

Is theft a continuous offence?

Answer 10

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. The cases on this point are known as the general deficiency cases.

Question 11

What is a “multiple offending” count?

Answer 11

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 12

In what circumstances is it appropriate to use a “multiple offending” count?

Answer 12

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 without differentiation. Where what is in issue differs between 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.

Question 13

When shouldn’t a court order separate trials?

Answer 13

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’. 
(but does still have discretion)

Question 14

When may a court chose to exercise its discretion in ordering separate trials, even if based on the same facts?

Answer 14

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.

Question 15

What does it mean to “arise out of the same facts”?

Answer 15

If the offences alleged in counts joined in one indictment arose out of a single incident or an uninterrupted course of conduct. is not restricted to offences that were committed contemporaneously or substantially contemporaneously with each other, as in Mansfield [1977], but extends to situations where later offences would not have been committed but for the prior commission of an earlier offence.
A factual connection between the counts is established by a coincidence of time and place. It is irrelevant that the accused’s explanation is different for each offence.

Question 16

What does it mean for a series of offences to be “of the same of similar character”?

Answer 16

To show the existence of a series of offences, the prosecution must be able to point to some nexus between them. This means ‘a feature of similarity which in all the circumstances of the case enables the offences to be described as a series’
In deciding whether offences exhibit the similarity demanded by the rule, the court should take into account both their legal and their factual characteristics. The prosecution submission (that the phrase ‘a similar character’ means exclusively of a similar legal character) and the defence submission (that the phrase means exclusively of a similar factual character) were each rejected.

Question 17

What are specimen counts on an indictment?

Answer 17

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

Question 18

What is the procedure for specimen counts?

Answer 18

The practice which the prosecution ought to adopt in these circumstances is as follows:

1. 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;
2. evidence of some or all of these additional offences may in appropriate cases be led as evidence of system;
3. in other cases, the additional offences need not be referred to until after a verdict of guilty upon the sample offence is returned

Question 19

When may two or more accused be joined?

Answer 19

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.

Question 20

What are the key principles in drafting a joint offence?

Answer 20

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.
c. Where the prosecution seek to join an accused to an indictment following an order that the accused in question be retried, then, in addition, there is added the need to consider if the accused would be substantially adversely affected, so that joinder would represent an abuse of process

Question 21

What is the benefit of joinder?

Answer 21

The Court of Appeal observed that the interests of justice were normally best served by allegations with a common thread being ventilated together.

Question 22

What are the jury’s options if two accused are charged on a joint count?

Answer 22

if two accused, A1 and A2, are charged in a joint count the jury may (a) acquit both, or (b) convict both, or (c) acquit one and convict the other.
Should they convict both it will usually be on the basis implicit in the joint count that they helped each other to commit the crime, but the jury may equally convict both where the evidence suggests that they acted independently of each other if they are satisfied that each accused committed the offence.

Question 23

Can severance of joinder be ordered once the trial has started?

Answer 23

Yes, at any time before trial or at any stage of trial where there is reason that an accused may be prejudiced or embarrassed in their defence, the court may order separate trials.

Question 24

For what reasons may severance be appropriate?

read

Answer 24

a. The scandalous nature of the evidence as to one of the counts. For example, in Laycock [2003], the Court of Appeal warned that prosecutors should be careful not to charge counts that would prejudice an accused unless there was a real purpose to be served. In that case, the prosecution were criticised for including in a firearms indictment a count which showed that D had been sentenced to a previous sentence of imprisonment with the result that he was prohibited from possession of a firearm.
b. The number and/ or complexity of the counts. This may result in difficulties for a jury in disentangling evidence on one count from that on the other count or counts. In this regard, special considerations govern the trial of counts for sexual offences
c. The fact that the accused wishes to give evidence in his or her own defence on one of the counts but not on the others is not, in the normal case, a sufficient reason for severance, even though non-severance will oblige the accused to choose between not testifying at all and being exposed to cross-examination about all the charges.

Question 25

Can severance (or lack of) become a ground of appeal?

Answer 25

Because severance of the trial of jointly indicted accused is a matter of discretion, the way in which the discretion is exercised is unlikely to provide a successful ground of appeal (see D11.113). Guidance on ordering separate trials does, however, emerge from the decided cases. The following propositions summarise that guidance.
a. Where the accused are charged in a joint count, the arguments in favour of a joint trial are very strong. These arguments include:
I. severance will necessitate much, or all, of the prosecution evidence being given twice before different juries and increase the risk of inconsistent verdicts;
II. even if the accused are expected to blame each other for the offence (i.e. will run ‘cutthroat’ defences), the interests of the prosecution and the public in a single trial will generally outweigh the interests of the defence in not having to call each accused before the same jury to give evidence for him or herself which will incriminate the other
b. The judge should balance the advantages of a single trial against the possible prejudice to D2, and should consider especially how far an appropriate direction to the jury is really likely to ensure that they take into account the evidence only for its proper purpose of proving the case against D1.
c. Where a joint trial of numerous accused would lead to a very long and complicated trial, the judge should consider whether a number of shorter trials, each involving only some of the accused, might make for a fairer and more efficient disposition of the issues.
d. There may be some distinction to be drawn between cases where the accused are jointly charged in a single count and those where they allegedly committed separate offences which were nonetheless sufficiently linked to be put in one indictment. In the latter situation, the cases against the accused are unlikely to be as closely intertwined as when a joint offence is alleged, and the public interest argument in favour of a single trial is correspondingly less strong. There should, therefore, be a greater willingness to order separate trials.

Question 26

What is the presumption in favour of a joint trial?

Answer 26

The fact that some of [a co-accused’s] statements may rub off on the other accused is just one of those things that happens in the course of a multiple criminal trial. The advantages of having co-defendants tried together is so great that the right to order a separate trial will not be granted unless there is good reason.

Question 27

What is the statutory power to amend an indictment?

Answer 27

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 28

What is the extent of the power to amend an indictment?

Answer 28

The power to amend may be exercised both:

(a)      in respect of formal defects in the wording of a count, for example when the statement of offence fails to specify the statute contravened or when the particulars do not disclose an essential element of the offence, and
(b)      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 of the prosecution case after the accused has been sent for trial or called at trial.

Question 29

Is the court able to amend indictments by the assertion of a new count?

Answer 29

Yes. Where the addition is made after arraignment, it will be necessary to put the new counts to the accused to enable the accused to plead to them.

Question 30

Can amendment by the insertion of a new count occur after the close of the prosecution case?

Answer 30

Yes, as occurred in Rogers [2014] (amendment following successful submission of no case to answer as to certain counts on the indictment).

Question 31

Is the power to amend the indictment limited to the evidence served at the committal?

Answer 31

No. The power to amend under s. 5 was held not to be 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 a ground for not permitting the amendment, or permitting it only together with an adjournment.

Question 32

What is a voluntary bill of indictment?

Answer 32

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 exceptional procedure is to allow proceedings to be reinstituted where a charge has been dismissed, but fresh evidence against the accused has subsequently come to light.

Question 33

How often are voluntary bills of indictment used?

Answer 33

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, rather than considerations of administrative convenience, require it’.

Question 34

When is a draft or bill considered “preferred” and it becomes the indictment?

Answer 34

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

i. 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.
ii. Draft indictment served by the prosecutor on the Crown Court officer after sending for trial; Draft indictment served by the prosecutor with a High Court judge’s permission; Draft indictment served by the prosecutor on re-instituting proceedings; or, 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 (Draft indictment approved by the Crown Court with deferred prosecution agreement).

Question 35

Can two indictments exist for one person?

Answer 35

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 and on the same facts. However, the court will not allow the prosecutor to proceed on both indictments. They cannot be tried together, and the court will require the prosecutor to elect the one on which the trial will proceed. Where different defendants have been separately sent for trial for offences which properly may be tried together then it is permissible to join in one indictment counts based on the separate sendings for trial even if an indictment based on one of them already exists.

Question 36

What 3 orders may the court make if the accused is found unfit to plead and the jury find him guilty as charged?

Answer 36

1. a hospital order, for admission to such hospital as the Secretary of State specifies — such an order may be made the subject of a restriction order without limit of time;
2. a supervision order; or
3. an order for the accused’s absolute discharge.

Question 37

Can the court postpone the decision on the accused’s fitness to plead?

Answer 37

If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence.

Question 38

Is the question of fitness to plead dealt with in the presence of the jury?

Answer 38

No.

Question 39

What is the procedure if an accused is deemed unfit to plead?

Answer 39

2. he trial shall not proceed or further proceed but it shall be determined by a jury—
   a) on the evidence (if any) already given in the trial; and
   b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence, whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.
3. If as respects that count or any of those counts the jury are satisfied as mentioned in sub-section (2) above, they shall make a finding that the accused did the act or made the omission charged against him.
4. If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion.
5. Where the question of disability was determined after arraignment of the accused, the determination under subsection (2) is to be made by the jury by whom he was being tried.

Question 40

What is the arraignment?

Answer 40

The arraignment consists of the clerk of the court reading the indictment to the accused and asking whether the accused pleads guilty or not guilty to the counts contained therein. If there are several counts, a plea must be taken on each one separately immediately after it is read out; if, however, two counts are in the alternative and the accused pleads guilty to the first count, it is unnecessary to take a plea on the second. If there is a joint indictment against several accused, normal practice is to arraign them together. Separate pleas must be taken from each of those named in any joint count.

Question 41

Are the jury present for the arraignment?

Answer 41

No. It is now standard practice to exclude the jurors in waiting from court until after the arraignment has been completed. This avoids the possibility of potential jurors being prejudiced by hearing the accused plead guilty to some but not all the counts on the indictment. After the jury have been sworn, they are told by the clerk the counts to which the accused has pleaded not guilty, no mention being made of any matters to which the accused has pleaded guilty nor of any co-accused who may have pleaded guilty.

Question 42

If the accused fails to say the words “not guilty” on arraignment impact the validity of the plea?

Answer 42

It is not, however, essential to the validity of a trial that the accused formally says the words ‘not guilty’.
If an accused wilfully stays silent when arraigned, or fails to give a direct answer to the charge, or enters a plea which purports to be one of guilty but is in fact ambiguous, the court may and should enter a plea of not guilty on the accused’s behalf.

Question 43

What is the effect of a plea of not guilty?

Answer 43

A plea of not guilty puts the prosecution to proof of their entire case. The burden is therefore on them to satisfy the jury beyond reasonable doubt that the accused committed the actus reus of the offence (or aided, abetted, counselled or procured its commission), and that in doing so the accused had the necessary mens rea. Should the prosecution fail to adduce sufficient evidence as to any element of the offence, the accused is entitled to be acquitted on the judge’s direction following a submission of no case to answer made at the close of the prosecution case.

Question 44

What is the effect of a plea of guilty?

Answer 44

If the accused pleads guilty (CrimPR 25.4), the prosecution are released from their obligation to prove the case. There is no need to empanel a jury, and the accused stands convicted simply by virtue of the word that has come from his or her own mouth. The only evidence the prosecution then need call in the ordinary case is that of the accused’s antecedents and criminal record.
Exceptionally, there may be a dispute between the parties about the material facts of the offence. If the dispute is serious enough to have a significant effect on sentence, the prosecution must either call evidence in support of their own version at a so-called ‘ Newton hearing’ or allow sentence to be passed on the basis of the defence version.
However, even in such cases, the prosecution evidence goes to how the offence was committed, not whether it was committed, and the accused remains convicted by his or her own plea whatever the outcome of the Newton hearing.

Question 45

What is procedure if the accused enters mixed pleas on multiple counts?

Answer 45

If an accused enters mixed pleas on a multi- count indictment and the prosecution are not prepared to accept those pleas, sentencing for the counts to which the accused has pleaded guilty should be postponed until after the accused has been tried on the not guilty counts.

Question 46

What is a plea of guilty to a lesser offence?

Answer 46

Where the indictment contains a count on which, if the accued were to plead not guilty, the jury could find the accused not guilty as charged but guilty of an alternative (hereafter referred to as ‘lesser’) offence, the accused may enter a plea to the same effect, namely not guilty to the offence charged but guilty only of the lesser offence.
If the plea is accepted, the accused is treated as having been acquitted of the offence actually charged and the court proceeds to sentence the accused for the lesser offence

Question 47

Can the accused change their plea from not guilty to guilty?

Answer 47

The judge may allow the accused to change plea from not guilty to guilty at any stage prior to the jury returning their verdict. The procedure is that the defence ask for the indictment to be put again and the accused then pleads guilty. If the change of plea comes after the accused has been put in the charge of a jury, the jury should be directed to return a formal verdict of guilty.

Question 48

If the accused changes their plea from not guilty to guilty, can they change it back again?

Answer 48

In Poole [2001], the accused changed her plea to guilty on the second day of the trial. The judge discharged the jury without entering any verdict, and proceedings continued as though the accused had pleaded guilty on arraignment, with an adjournment for reports. The accused then wished to vacate her plea of guilty and, when this was refused, appealed against conviction. The Court of Appeal held that the course taken was permissible and resulted in a valid conviction.

Question 49

Can the accused change their plea from guilty to not guilty?

Answer 49

Discretion to Allow a Change: The judge has a discretion to allow the accused to withdraw a plea of guilty at any stage before sentence is passed.

a. The court has a discretion to allow a defendant to change a plea of guilty to one of not guilty at any time before sentence;
b. the discretion exists even where the plea of not guilty is unequivocal; and
c. the discretion must be exercised judicially

Question 50

What is the purpose of the PTPH?

Answer 50

Its purpose, where an accused has indicated a guilty plea either in the magistrates’ court at the time his case was sent or where such an indication has been given between that time and the PTPH, is for sentencing to occur (para. 3A.17). Otherwise, it is to ensure that all steps necessary for the proper preparation of a case for trial have been taken or are properly timetabled for future attention.

Question 51

What 3 things is the judge to be satisfied that the defendant understands at the PTPH?

Answer 51

a. the defendant understands that credit will be given for a guilty plea;
b. what the defendant’s plea is or is to be;
c. the defendant understands that if there is a trial, this can take place in the defendant’s absence, and the consequences in relation to bail if the defendant were to fail to attend court.

Question 52

Apart from proceeding to trial, what are the two other options available to the prosecution following a plea of not guilty?

Answer 52

To offer no evidence or to ask that the indictment remain on the court file.

Question 53

What happens where the prosecution offer no evidence?

Answer 53

Where a defendant arraigned on an indictment or inquisition pleads not guilty and the prosecutor proposes to offer no evidence against him, the court before which the defendant is arraigned may, if it thinks fit, order that a verdict of not guilty shall be recorded without the defendant being given in charge to a jury, and the verdict shall have the same effect as if the defendant had been tried and acquitted on the verdict of a jury.

Question 54

What happens where the prosecution let the counts lie on file?

Answer 54

As an alternative to offering no evidence, the prosecution may ask the judge to order that an indictment (or counts thereof) shall lie on the file, marked not to be proceeded with without leave of the court or of the Court of Appeal. Such a course is particularly appropriate where the accused pleads guilty to the bulk of the charges (whether contained in one indictment or several) but not guilty to some subsidiary charges. Leaving the latter on the file avoids the necessity of a trial, but also avoids the accused actually being acquitted on the ‘not guilty’ counts, which might seem inappropriate if the evidence against the accused is in fact strong.

Question 55

Can an entire indictment remain “on file”?

Answer 55

There is no objection to an entire indictment remaining on the file, as opposed to merely dealing with some counts of a multi-count indictment in that way.

Question 56

What is an application to dismiss?

Answer 56

The accused may (after the date when the accused is served with the documents containing the evidence on which the charge(s) are based, but before the date of the arraignment) apply orally or in writing to the Crown Court for the charge(s) to be dismissed.
Where such an application is made, the judge must dismiss any charge (and quash any count relating to it in the indictment) if it appears that the evidence against the applicant would not be sufficient to ensure a proper conviction (para. 2(2)).

Question 57

What is the procedure for applying for dismissal?

Answer 57

The accused may make an oral application for dismissal only after giving written notice of intention to do so.

Question 58

What tests can be applied by the judge in considering an application to dismiss?

Answer 58

It was held that, on an application to dismiss (under earlier legislation), the judge was required to take into account the whole of the evidence against the accused, and that it was not appropriate for the judge to view any evidence in isolation from its context and other evidence.
The judge is not bound to assume that a jury would make every possible inference capable of being drawn against the accused but, where the case depends on the inferences or conclusions to be drawn from the evidence, the judge must assess the inferences or conclusions that the prosecution propose to ask the jury to draw, and decide whether it appears that the jury could properly draw those inferences and come to those conclusions.