#19559 - 13. Criminal Litigation 2023 2024 Indictments And Ptph’ - BPC Criminal Litigation (formerly BPTC) 2024/2025

The time limits for preferring a bill of indictment:

• An indictment is a written accusation of crime made by P against D.

• P must serve the draft indictment on the Crown Court officer not more than 28 days (and a draft indictment within 20 business days after documents served for trial or High Court has consented to the preferment of a voluntary bill of indictment) after:

  • D has been committed or transferred for trial;

  • Service of a notice of transfer;

  • Copies of the documents containing the evidence against D have been served on the Crown Court and D (where D has been sent for trial);

  • A High Court has given permission to serve the indictment;

  • The Court of Appeal orders a retrial.

• The Crown Court may extend this time limit, even after it has expired.

• The Crown Court officer will date and sign the indictment upon receipt, and then serve it upon all parties. This is not a statutory requirement but required by CrimPR.

The format of a count:

• Each count is divided into 2 parts:

  • The statement of offence, which describes the offence and identifies any creating statute;

  • The particulars of offence, which contain the facts of the charge and detail the essential elements of the offence.

Counts which can be lawfully joined on the indictment:

• An indictment:

  • Must contain counts which are substantially the same as the offences for which D has been sent for trial;

  • May contain any count based on the evidence served and triable in the Crown Court.

• An indictment may contain multiple counts if:

  • Each count is founded on the same set of facts. There must be a common factual origin e.g:

    • The offences occurred in the same incident;

    • One offence could not have occurred, unless the other had already been committed.

  • Or

    • The counts form or are part of a series of offences which are similar in nature, e.g a string of burglaries.

• Summary offences which may included on the indictment:

  • S.40 offences:

    • Common assault;

    • Criminal damage less than 5000;

    • Taking a motor vehicle without consent; and

    • Driving while disqualified.

The rules relating to duplicity, specimen counts and overloading:

• Duplicity:

  • No single count should charge D with two or more separate offences. If it does, it is said to be bad for duplicity. However, a count may contain multiple incidents if those incidents amount to a single course of conduct in relation to time, place or purpose.

  • If statute creates a single offence which may be committed in more than one way, it is acceptable to include all the ways in which the offence was committed in a single count. However, if the statute creates more than one offence, then there must be a separate count for each offence.

  • If a count is bad for duplicity, D may apply to have it quashed, but normally P will be permitted to amend it.

• Specimen counts:

  • Where the evidence reveals that D committed a large number of offences in a systematic manner, it is sometimes not appropriate or not possible to include a count for all. Instead, sample counts will be used, called specimen counts. This method is generally used when:

    • P is unable to supply particulars of all the offences committed by D, perhaps because V alleges criminality against him on many occasions and cannot give precise details of each one. P will allege a single offence of each type committed in the relevant time period, and will rely on the “course of conduct” evidence to prove it; or

    • P can supply particulars of all offences but they are so numerous and similar that it would render a trial unworkable. P will choose a small number of sample offences which represent the whole.

  • Specimen counts are often used in sexual abuse cases and in complex financial cases involving many transactions.

  • If specimen counts are used, D must know the case he has to meet. So, P should provide:

    • A list of all the offences D is alleged to have committed and from which the specimen counts have been selected; and

    • Evidence of the other offences, if appropriate.

  • D may only be sentenced on the basis of the counts of which he has been convicted (or which he admits); to do otherwise would deny him his right to a trial. For this reason, enough specimen counts should be used to reflect the full criminality of D.

• Overloading:

  • P has a duty not to overload the indictment with too many charges and/or D’s. Even if it is technically permissible to include all of the counts in a single indictment, P should use a number of shorter indictments if a single indictment will:

    • Result in an unduly long or complicated trial;

    • Place an unfair burden on the jury;

    • Not be in the interests of justice.

  • In complicated cases, P may be required to identify the counts on which it will proceed to trial and leave the rest to lie on the file.

  • If P has overloaded the indictments, the court has the power to intervene on its own accord and order separate trials.

The joinder of defendants on an indictment:

• It is possible to have multiple D’s on an indictment if;

  • All D’s participated in the same offence; or

  • Although the D’s are not charged with the same offence, the offences are sufficiently linked to be joined.

Applications to sever the indictment:

• The court has the power to sever an indictment and order separate trials for specific counts. This power can only be used if the counts are properly joined on the original indictment: it cannot be used to remedy misjoinder.

• Typically the application to sever will be made by a D who faces multiple counts and who seeks separate trials for separate offences, or by co-D’s in a multi-D trial who seek to be tried separately.

• The normal position is that counts properly joined will be tried together. The discretion to sever will only be exercised if:

  • A single trial would prejudice or embarass D in the conduct of his defence;

  • It is desirable for some other reason.

• There is a presumption in favour of a joint trial for multiple D’s because this avoids:

  • The risk of inconsistent verdicts;

  • Witnesses having to give the same evidence on multiple occasions;

  • The expense of multiple trials.

• If multiple D’s wish to have separate trials it is necessary for them to show that there is no chance of a fair trial otherwise.

The consequences of misjoinder:

• If an indictment has been misjoined, there is no power to sever it and hold separate trials.

• The situations can only be rectified by:

  • Deleting counts as required, so that the indictment only contains properly joined counts;

  • Staying the misjoined indictment and P serving new indictments which are properly joined.

• Misjoinder does not nullify the whole indictment. Therefore, if D challenges a misjoined indictment, only the wrongly joined counts will be quashed.

Applications to amend indictments:

• An application to amend a defective indictment can be made before or at any stage of the trial, provided this will not cause injustice.

• Amendments can include:

  • Adding new D’s

  • Adding new counts

  • Substituting new counts for existing ones.

Applications to quash and stay indictments:

• An application to quash an indictment is the most common means of challenging a defective indictment. It is normally made before D has pleaded to the indictment, and can be made by either P or D. The indictment will be quashed if the application is well founded and there is no means of correcting the defect. P can normally defeat a D application to quash the indictment simply by amending it so that it is correct.

  • 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)...