#10395 - Indictments - BPC Criminal Litigation (formerly BPTC) 2024/2025

INDICTMENTS

GENERAL RULES ON INDICTMENTS

• general

  • contents

    • statement of offence (Act contravened)

    • particulars of offence (allegation)

  • pros responsible for drafting + ensuring proper form

  • the process

1. pros draft

2. pros send draft indictment to CC

3. CC officer checks and signs

• requirement for signing

  • draft indictment must be signed by court officer of CC, unless court directs otherwise (r14.1(3))

  • court officer should add date of receipt (r14.1)(3)(a))

  • consequences of defective signing

    • unsigned indictment = invalid

    • merely procedural failure will NOT necessarily render indictment invalid e.g. signing on front page rather than end

    • CANNOT object after commencement of trial if indictment properly served (see below)

• service

  • no draft indictment may be served unless:

1. D sent for trial under s51 CDA 1998; OR

2. notice of transfer given to relevant mags'; OR

3. HC judge directed / consented to voluntary bill; OR

4. CA has ordered a retrial

   • time limits

     • (CPS usually) take all reasonable steps to serve CC copy on CC officer within 28 days of date: of notice of transfer / HC judge directs or consents to voluntary bill / copies of documents served where person sent for trial under s51 (r14.1)

     • serve quicker if pros seeking to include additional / different counts than those on basis of which D sent to CC

     • extension of time limit

       • CC may extend, even if expired

       • no specific rules for applications

     • breach of time limits

       • NOT ground for appeal

       • judge can exercise discretion to allow service out of time unless there is an "inordinate delay which has clearly caused / is likely to cause prejudice to D"

• counts which may be included in an indictment

  • indictable offences

    • definitions

      • committal offence = offence for which D IS sent to CC under s51

      • non-committal offence = offence for which D NOT sent to CC under s51

    • contents of indictment (s2(2) AJ(MP)A; r14.2(5) CrimPR)

      • may contain:

  1. any count charging substantially the same offence as that for which D sent for trial (i.e. committal offences - usually just contains these); AND

  2. any other indictable offence (i.e. non-committal offence) based on pros evidence already served (i.e. based on pros WSs) only if offence is:

     • in substitution for offences sent for trial; OR

     • could lawfully be joined in the indictment which results from sending original offences to CC (i.e. satisfy r14.2(3) - see joinder below)

  • certain summary offences (s40 CJA 1998)

    • can be included if:

      1. D sent for trial for indictable offence; AND

      2. s40 applies to summary offence:

         • common assault + battery

         • assaulting custody officer

         • taking motor vehicle without owner's consent

         • driving whilst disqualified

         • criminal damage under 5k

      3. summary offence founded on same facts / evidence OR part of series of offence of same / similar character as indictable offence; AND

      4. facts / evidence relating to summary offence disclosed to mags' inquiring into offence / by material served on D as part of s51 procedure

    • effect: summary offence tried as if were indictable BUT if D convicted, max sentence limited to that mags' could've imposed

    • N.B. s51(3) CDA 1998

The rule against duplicity

• the rule

  • = each count must allege only 1 offence AND 1 day

    • decided by looking at wording WITHOUT reference to prosecution evidence

    • if evidence at trial establishes more than 1 offence BUT only 1 offence charged in count, D entitled to acquittal subject to amendment of indictment

  • effect of breach

    • definitions

      • true duplicity = wording alleges 2+ offences

      • quasi duplicity = 2+ counts become evidence after pros evidence called

    • true duplicity

      • defence should apply to quash before D arraigned (CANNOT do for purely tactical reasons)

      • pros can defeat by requesting amendment

    • quasi duplicity

      • defence ask judge to split count at end of pros case

• exceptions

  • if D's separate acts form a single activity or transaction / 'amount to a course of conduct (CrimPR r14.2(2)) (see below)

  • continuous offence (see below)

  • several items of property affected by single act

  • counts in the alternative

    • does NOT offend rule if 1 provision = 1 offence capable of being committed in number of ways

    • DOES offend rule if 1 provision = several separate offences

FORM OF THE INDICTMENT

Layout + contents

• each offence separate para / count

• if more than 1 count, should be numbered

• divide each count into:

  • statement of offence - describes offence, if statutory gives provision contravened)

  • particulars of offence - what D alleged to have done, such that nature of pros case is clear, defence may ask for additional particulars:

    • include following:

      • names of Ds charged, if not known 'person unknown' e.g. Joe Bloggs

      • date of offence / period if precise date not known e.g. on 1st day of January 2014 / on or about

        • error NOT fatal to conviction, unless determines outcome of case

        • CANNOT occur over more than 1 day, unless offence is continuous (see below)

      • act constituting offence e.g. 'stole' X

      • name of V (separate count for each V)

      • state of mind required for pros to establish conviction

      • place of offence ONLY if = essential ingredient of crime

      • if money / property offence, reasonable particulars of property

    • offences involving a course of criminal conduct

      • several options, so can include more than 1 day / incident in single count (= exceptions to rule against duplicity - above):

1. continuous offence / offence occurring intermittently - e.g. conspiracy, several thefts over a period where no evidence as to when individual thefts took place (DPP v McCabe)

2. multiple offending count - distinct criminal acts form single activity or transaction (CrimPR r14.2(2))

   • other options if systematic course of criminal conduct and (a) or (b) unsuitable:

3. specimen counts - but provide list to defence of all offences

4. split trials - some offences tried before jury, others by judge alone

JOINDER, SEVERANCE, AMENDMENT, QUASHING

Joinder, severance + misjoinder

• joinder of counts (crimPR r14.2(3))

  • indictment may contain more than 1 count if all offences charged:

1. are founded on the same facts;

   • test: do charges have a 'common factual origin'?

     • arise from single incident OR part of same transaction;

     • one offence would not have been committed but for the other

-------OR-------

2. form / are part of a series of offences of same / similar character

   • test: is there a nexus between the charges i.e. are they so legally and factually similar as to establish a prima facie case that they can properly and conveniently be tried together?

     • evidence relating to one offence uncovered during investigation of the other

   • applies even if there are multiple Ds

• joinder of Ds

  • count can name more than 1 D if:

1. alleged more than 1 participant in the offence; OR

2. r14.2(3) applies (see above)

   • aiding, abetting etc. offences (joint counts)

1. charge as principal - use same words as against principal offender i.e. charge jointly in same count, without describing aider's role (usual); OR

2. charge specifically with aiding and abetting

• discretion to order separate trials (severance) (s5(3) Indictments Act 1915)

  • the rule

    • when is the issue raised

      • usually at PCMH before arraignment

    • court may order separate trial of any count(s) if before / at any stage of trial if

1. D may be prejudiced / embarrassed in his defence by reason of being charged with more than 1 offence in the same indictment; OR

2. for any other reason desirable to direct person should be tried separately

   • presumption: should be tried together unless D can show a special feature justifying separate trials (burden on D) (Ludlow), taking into account:

     • difficulty for jury in disentangling evidence on separate counts

     • one count likely to arouse hostility in jurors' minds (jury may not approach others with an open mind)

     • strength of evidence relating to counts disproportionate (jury may think if D G of charge supported by stronger evidence, must be G of that for which evidence weaker)

     • evidence on all counts weak (jury may convict on overview of case rather than considering evidence for each count separately)

     • whether judge can make directions to minimise risk

   • applies to:

     • D seeking separate trials for number of offences

---------AND---------

• co-Ds seeking separate trials

  • must be shown that fair trial CANNOT be achieved without severance

  • rare if Ds charged with same offence, even if some pros evidence admissible against D1 but NOT D2 / Ds running cut throat defences

• pros have responsibility to ensure indictment is NOT overloaded (i.e. trial would be too long + complex)

• misjoinder

  • severance can only be exercised if counts properly joined under r14.2(3) + CANNOT be used to cure defectively joined counts

  • if has been misjoinder, judge can remedy situation by:

    • deleting 1+ counts leaving only counts which can be properly joined under r14.2(3)

      • pros must bring fresh proceedings / seek voluntary bill for deleted allegations

----OR----

• staying existing indictment and allowing pros to serve fresh indictments containing only counts which can properly be joined under r14.2(3)

• effect of misjoinder

  • does NOT nullify whole indictment - only wrongly joined counts should be quashed (see quashing below)

Amending the indictment

• the rule

  • test: appears to court that indictment defective, court may make such order for amendment as necessary to meet circumstances of case UNLESS, having regard to merits of case, required amendments CANNOT be made without injustice (s5 Indictments Act 1915)

  • time for amendment

    • before / at any stage during trial, even after jury go out

    • the...