#16770 - Prosecutorial Discretion & Review, The Plea, Burdens, Indictment, Jury - Criminal Procedure and Evidence

the indictment

Governed by Indictment Act 1915 (rough framework) & Criminal Procedure Rules Pt 10 (detailed)

s.3 IA 1915: every indictment shall contain & be sufficient if it contains a statement of specific offence(s) with which D charged, together with particulars as necessary

r10.2 CPR: indictment must be in form of Practice Direction & must contain in a para called ‘count’: a) statement of offence charged with a) describes offence in ordinary language

identifies any legislation that creates it

and such particulars of conduct constituting offence o make clear what P alleges

Indictment important - explains clearly to D what charges are

Needs be sufficiently detailed in order to allow D make defence/plea

How much precision required?

Hodgson 08: Ds in violent altercation - charged with attempted murder then indictment amended to add ‘inflicting GBH under s.18 OAPA’ but ‘inflicting’ is in s.20! CA criticised but couldn’t lead to quashing

Ds admitted their intent & had enough notice of what being charged for conviction be safe - seems technical issues can be overlooked as long as fair overall

Bear in mind Art 6 ECHR probability

A6(3)(a): everyone charged with a crim offence has the right be informed promptly, in language he understands and in detail, of the nature & cause of accusation against him

There is a general rule against duplicity

Duplicity: 2 different offences in 1 count or 2 distinct allegations of the same offence in 1 count

Governing concern: each possible offence should be treated separately - even if a no. of counts relating to the same occasion

Is because judge needs be sure that jury were all agreed on the same matter

Marchese 08: 2 instances of same offence in 1 count - question was about whether AR/MR would line up - was bit problematic but CA said conviction safe - a matter of form rater than substance

Then -> change in the rules - 10.2 CPR: more than 1 incident of same offence may be included in count if, taken together, amount to course of conduct having regard to time/place/purpose

overwhelming shift away from technicalities towards overriding justice (Stark)

Marchese would now be ok

Dhupar 15 D accused of fraud by abuse of position against elderly lady - appealed saying trial unfair because counts bad for duplicity - CA held: no reason why not put the many small transactions of same type against same V into same count - was rational & comprehensible - case divided manageably for jury & summing up v clear -> underlying issue is fairness - no prejudice to D here - condition safe

Joinder: charges for more than 1 misdemeanour may be joined in same indictment (IA s.4)

10.2(3) CPR: the indictment may contain more than 1 count if all the offences charged

1. are founded on same facts; or

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

   founded on same facts

   Barrell & Wilson 79: charged with affray & ABH, W offered V to change story, so added charge of ‘perverting course of justice’ to indictment

   CA held founded on same facts because only ‘prevented’ due to assault etc - said need a ‘common factual origin’

   contrast McGrath 13: D charged with 11 offences of dishonesty - could vandalism in cell be added? Dishonesty did give D opportunity vandalise but said Barrell doesn’t stretch this far! Not about causation - is about reasoning - dishonesty didn’t give M reason to vandalise but assault did give W a reason to ‘pervert’

   form/are part of series of offences of same/similar character

   Ludlow v MPC 71: said would be same/similar character where there was a ‘factual or legal nexus’ - here attempted theft in 1 pub, then different day alleged robbery at diff pub within 16 days - sufficient

   Marsh 86: sometimes legal similarity enough if not factual & vice-versa

   Baird 93: indecent assaults on 2 diff boys 9yrs apart - CA said similar in nature & legally identical thus valid

   Mutually contradictory counts - Bellman 89 says can be on same indictment (validly joined)

   B either tricked people into giving him to import drugs or he agreed to go to US & get drugs

   Thus was either conspiracy or obtaining money by deception - ok to join as long as P can present prima facie case on both - up to jury decide which

   How many counts on 1 indictment?

   General concern to avoid trivial counts - keep the focus on serious offences so as to not distract jury/wear them down/prejudice D - jury may see lots of offences and jump to conclusions!

   Ambrose 73: indecent assaults & damaged cell door (crim damage) - CA criticised P for latter - may influence the jury - might also think being treated too harshly so let off - trivial!

   Clark 96: need avoid over-bading injury & causing prejudice - sample/specimen counts can be used (isolate examples) but must give judge adequate sentencing powers if D convicted - need get balance because uncharged conduct cant be sentenced

   s.17 Domestic Violence, Crime & Victims Act 04: sample counts can go before jury but judge considers others - allows adequate sentencing w.o prejudice

• show if put all counts before jury, would last too long, cost too much & give rise to prejudice

• samples must be representative & in interests of justice

• but is it ever in interests of justice have trial w.o jury?!

  McGrath 13: counts joined inappropriately won’t necessarily mean successful appeal against conviction - the incorrectly joined count was quashed (crim damage) but to quash the other, would need to show the crim damage counts prejudiced him for dishonesty charges

  Co-defendants: can counts relating to separate Ds be joined in same indictment? Yes - efficient!

  2 ways: Joint counts (X & T did crime A) or Separate counts founded on similar facts (X did crime A, Y did crime B)

1. Joint counts: multiple Ds on same count/s:

• e.g joint enterprise, aiding, abetting, procuring

• doesn’t mean they all need be convicted/acquitted - jury has consider accounts against each D separately

• DPP v Merriman 73: HL said Ds accused of GBH could be joined because avoids duplicity evidence, juries reaching diff conclusions in same circs - just need consider each separately & be sure who was who! (primary & secondary)

• Also said any/all can be convicted on basis they acted independently from other(s) charged

• Generally in interests of justice have 1 trial of all Ds; separate trials ordered

1. In exceptional cases (Moghal 77), or

2. If there are lots of Ds (Thorne 78) - 14 too many!

• On facts of Moghal is easy see why courts not keen order sep trials - increases chance of D being able lie (unchecked) to jury & prevents them from getting overall picture

• M’s gf S had been severed to a sep trial on her own, everything unravelled!

2. Separate counts: multiple Ds on diff counts

• Matter of court’s discretion, but need linking factor between offences to justify joinder on 1 indictment

• e.g Assim 66: both worked in night-clubs & assaulted customers in sep incidents - no involvement - CA said generally should try diff allegations on 1 but interests of justice required it here

• Same type of attack within similar time/place

• Even if properly joined, judicial discretion whether then severed for a separate trial (Johnson)

• Note can have some counts against both & some separate as long as some proximity

• If have 6 indictments don’t necessarily sever into 6 but could go into 2/4 etc

• Another possibility for existing indictment to be amended is to add a new D (s.5(1) Indictment Act 15)

• Can be done unless injustice caused

• Booker: not wrong per se to join later found D, even if disadvantages one of original Ds

• When should severance be allowed?

• If prejudice caused to D1 by presence of D3 e.g Townsend D3’s defence was hostile to D1 - conviction on that count unsafe

• note solution would’ve been to allow the joinder but then sever D3 to be tried separately!

• Walker 16: court refusing extension of time on basis no prejudice of having trial with co-D in a murder

• Williams 17: court has little time for technicalities relating to joinder - unless can show real prejudice won’t quash for technicalities!

• As having witness statements from young/elderly etc can’t just quash and say do it again - needs be sufficiently prejudicial

  Can validly joined counts be separated?

  s.5(2) where court of opinion (before or during trial) that D may be prejudiced/embarrassed in his defence by reason of being charged with more than 1 offence in same indictment or that for any other reason is desirable direct that the person should be tried separately for any 1/more offences charged, court may order separate trial of any count(s)

  note must be validly joined in 1st place! Follett 89: severance not allowed where improperly joined (but P can apply to start again with fresh indictment)

  essence is, if these counts heard together, will D have fair go at running his defence? e.g where 1 count v shocking (like child sex) & other is dishonesty, can understand 1 w.o other so separate trials fair - jury could be prejudiced because of child sex e.g

  Blackstock 79: charged with 2 separate robberies - argued should sever counts to avoid confusion - CA said trial judge discretion - if gave clear directions, wouldn’t interfere

  takes some explaining - don’t use evidence from count 1 in count 2 etc

  D 03: 2 sex offences - judge didn’t make 1 clear so convictions unsafe

  but in these cases risk is that diff juries may reach diff conclusion thus prejudice/embarrassment need be at v high level

  Can Ds on the same indictment ask for separate trials? Only if validly joined - same test of prejudice/embarrassment

  B(C) 04:...