Unit 6 Indictments

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

Who bears ultimate responsibility for drafting the indictment? Who does not?

Answer 2

Ultimate responsibility rests with counsel - does NOT rest with the CPS

Question 3

What is “arraignment”?

Answer 3

The process whereby the charges in the indictment are formally put to the defendant in the Crown Court and the defendant enters a plea of either guilty or not guilty to the charges.

Question 4

What does it mean to ‘prefer an indictment’?

Answer 4

‘Preferring an indictment‘ = to serve it on the CC

Question 5

Describe the process leading up to service of the indictment. What is the time limit that applies to preferment of the indictment?

Answer 5

(1) In most cases, the draft indictment is generated electronically when the case is sent to CC, based on allegations before Mags, subject to amendment by P

(2) The draft indictment then has to be endorsed

• This involves the CC officer checking that the case is allowed to be in the CC. I.e. one of the following applies:
• (1) A has been sent for trial (pursuant to s.51) or
• (2) HC judge has directed/consented to preferment of voluntary bill of indictment or
• (3) CC judge has consented to preferment of bill of indictment following court declaration approving deferred P agreement or
• (4) CoA has ordered a retrial
• If everything is ok the officer will endorse and date it

(3) Then the draft indictment must be served

• Time limit: within 28 days of the date on which (a) P evidence was served if A was sent to CC under s. 51, or (b) HC consented to preferment of a voluntary bill of indictment (I don’t know what the time limits are for any other methods of ending up in the CC)
• Also no later than 7 days before PTPH

Question 6

What is the time limit for serving a draft indictment?

Answer 6

• Time limit: within 28 days of the date on which (a) P evidence was served if A was sent to CC under s. 51, or (b) HC consented to preferment of a voluntary bill of indictment (I don’t know what the time limits are for any other methods of ending up in the CC)
• Also no later than 7 days before PTPH
• If counts are added to the indictment, then it should be served more quickly!

P must serve all material required for the PTPH at least 7 days before the PTPH, so it makes sense that P also has to serve the draft indictment by then

Question 7

Can the CC extend the time limit for preferring (i.e. serving) an indictment?

Answer 7

Yes - even after the time has expired

Question 8

What happens/does not happen if any rules in relation to indictments are not complied with?

Answer 8

Failure to satisfy these rules does not impugn the validity of the indictment

Question 9

How is an indictment “preferred”?

Answer 9

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 10

Which counts can be included in an indictment?

Answer 10

(1) Original charges put forth at Mags

(2) Charges revealed by the papers → subject to the rules on joinder in a single indictment, draft indictment may include charges for any indictable offence disclosed by the evidence served in P case after A has been sent

Question 11

What do we mean by ‘count’ in the context of indictments?

Answer 11

Count = charge

Question 12

What are the formatting requirements of indictments?

Answer 12

(1) Each offence charged set out in a separate paragraph / count

(2) If there is more than one count, numbered.

(3) Each count divided into:

• (a) statement of offence: describes the offence shortly in ordinary language, and, if offence statutory, should specify by section and subsection the provision contravened
• (b) particulars of offence: should make clear what P alleges against D, incl. name of A, date, act, name of V, state of mind which P must establish

Question 13

What is the rule against duplicity?

Answer 13

Each count may allege only one offence

Question 14

What exceptions are there to the rule against duplicity?

Answer 14

(1) Continuous offences

• If offence took place continuously or intermittently over a period of time, may be alleged to have occurred on more than one day

(2) Course of conduct / multiple offending count

• If more than one incident of commission of an offence amount to a course of conduct, may be included in same count
• Includes: (1) same victim – such as in money laundering; (2) incidents involve repetition in method/location; (3) incidents took place over clearly defined period (typically no more than a year); (4) same defence applies to every alleged incident without differentiation

Question 15

What are ‘general deficiency cases’ and how are they dealt with in an indictment?

Answer 15

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 16

What do you do if the evidence supports a count of a more and a less serious offence of the same kind?

Answer 16

You only include the most serious offence and not lesser offences that apply to the same facts. E.g. if you put ‘robbery’ on the indictment, you don’t also add ‘burglary’ because a robbery is a burglary and robbery is the more serious one.

Question 17

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

Answer 17

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 18

Under what circumstances does the court have the power to sever an indictment that includes multiple counts against one D?

Answer 18

It has a power to sever and order separate trials, which it may exercise if:

(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 19

When should the court not exercise its discretion to order separate trials?

Answer 19

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

(i) Founded on the same facts:

• Does not necessarily mean that the offences were committed contemporaneously
• It’s about whether they have a common factual origin (e.g. if the first offence is a precondition for the happening of the later offence)

(ii) Form or are part of a series of offences of the same or similar character:

• Must be some ‘nexus’ between the offences
• Nexus = feature of similarity which in all circumstances of the case enables offences to be described as a series
• Nexus clearly established if evidence of one offence would be admissible to prove the commission of the other (but not essential)

Question 20

What are specimen counts on an indictment? When is it appropriate to use them?

Answer 20

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
• instead of listing all of the individual instances in which A has abused someone sexually, you list a few examples to illustrate the course of conduct over time

Question 21

What should P do where they seek to include specimen counts on the indictment?

Answer 21

D should be provided with a list of all similar offences of which it is alleged that those selected in the indictment are samples

Question 22

Where P uses specimens counts, can P still lead evidence in respect of instances that aren’t listed?

Answer 22

Yes - but it’s not necessary in all cases to refer to the additional offences until after the G verdict

Question 23

Can more than one A be named in an indictment?

Answer 23

Yes - within the indictment they can be either in the same or in separate counts

Question 24

What is the test for determining whether more than one A should be in one count?

Answer 24

Test = the As are parties to a joint offence

Question 25

Does the fact that As are joined in a single count mean that they either all have to be convicted or all acquitted?

Answer 25

No - the drafting of the indictment in this form has no bearing on the finding of guilt or innocence in the end

Question 26

What is the test for determining whether more than one A should be in one indictment but NOT in the same count?

Answer 26

• Offences so closely related by time or other factors that the interests of justice are best served by a single trial
• E.g. D1 assaults A; B tries to intervene; D2 assaults B

Good way to think about this: the reasoning behind putting multiple Ds in the same count is pretty straightforward - they’re co-Ds to the same offence(s). It’s a bit less obvious why you would put them in one indictment but not in the same count (i.e. why put them in the same indictment if the allegation is not that they committed the same crime). So that’s where this test comes in.

Question 27

What guidance do we have regarding the severance of indictments that mention more than one A?

Answer 27

(1) If As charged in joint count -> strong argument in favour of a joint trial. Public interest in a joint trial is less where the indictment contains separate offences for the Ds, as opposed to a joint count.

(2) Where P’s case against A1 includes evidence inadmissible against A2, no obligation to sever simply because it might prejudice the jury against A2

• However, judge must balance advantages of single trial against extent of possible prejudice to A2

(3) Where joint trial would be very long/complicated, judge should consider a number of shorter trials

Question 28

What are potentially good reasons for severing an indictment?

Answer 28

(a) scandalous nature of evidence as to one count;

(b) number and/or complexity of counts = difficult to disentangle. Both of these may mean that D is prejudiced in their defence.

Question 29

Can severance of a joint indictment be ordered once the trial has started?

Answer 29

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 30

What can the court do if it is presented with a defective indictment?

Answer 30

Shall make such order for amendment as it thinks necessary unless the amendments cannot be made w/o injustice

Question 31

When can the court exercise the power to amend an indictment and what kinds of amendments can the court make?

Answer 31

Time: Can be exercised before or at any stage of trial (although later = greater risk of causing injustice and less likely to be permitted)

Extent: can be exercised both for (1) formal defects in wording (e.g. element of offence not disclosed; e.g. statute omitted) and (2) substantial defects (e.g. divergences between allegations in the count and evidence served)

Question 32

Can the court insert a new count in an indictment by way of amendment?

Answer 32

Yes - can insert a wholly new count or substitute an existing count for a new one

But the new count must be based upon the case as foreshadowed in the documents served under the regulations for the service of the prosecution case after the defendant has been sent for trial.

Question 33

What does the judge have to do if a new count is added after arraignment?

Answer 33

• If new count added after arraignment, must be put to D for plea
• If new count so drastic as to amount to new indictment, judge must go through process of re-arraignment

Question 34

What is a voluntary bill of indictment? What is its principal use?

Answer 34

• 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 35

How often are voluntary bills of indictment used?

Answer 35

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’.