#10507 - The Indictment - Criminal Procedure and Evidence

Indictment: formal document w/ list of charges against the accused to which he pleads guilty/not guilty at the beginning of the trial.

Sources of law are primarily the Indictments Act 1915 (IA) and Crim PR Part 14.

• Offences set out in separate counts, each count containing 1 offence.

  • Indictment might contain 2+ counts against accused

  • 2+ accused might be charged in a single count if the prosecution argue they acted together to commit the offence

  • 2+ can be charged in a single indictment even though not alleged to have committed a single offence together – generally where all offences in same incident.

• Rules on preferring the draft indictment

  • Should be preferred within 28 days of committal etc. (Crim PR r.14.1) but in practice rules allow Crown Court officer to extend 28 day period even after expiry.

• What charges may be included

  • Drafter not bound by the offences for which D was committed by the magistrates in committal proceedings.

  • Can include any counts for indictable offences he considers to be disclosed by the evidence.

    • But power to include count for offence mag court expressly refused to commit should be exercised exceptionally – Dawson.

Contents of the count

• Statement of the offence, giving short name, the statute contravened if statutory, and the particulars of the offence.

• s.3 IA – ‘such particulars as may be necessary for giving reasonable information as to the nature of the charge’.

  • & crim PR r.14.2(1) – any legislation and the particulars of the conduct constituting the commission of the offence making clear what prosecution allege.

• Guidance from case law:

  • Include name – error in name not good grounds of appeal unless D couldn’t be identified from it.

  • Date of offence – also not necessarily grounds of appeal.

  • Mention elements but don’t need to say them all in full.

  • If property involved, the owner of the property

  • Place should be mentioned if the offence requires it to have been committed in particular place.

Rule against duplicity – Indictment can contain several counts but each count can only allege one offence.

• if 2+ offences alleged in 1 count, D can bring motion to quash

• e.g. “A murdered or unlawfully killed B” – bad for duplicity.

• Applied practically, so ‘A stole a dress belonging to S on 1 January and a coat belonging to M on 5 January’ wouldn’t be okay, but one saying ‘A stole a dress and coat a belonging to S on 1 January’ would be.

• Crim PR r14.2(2) – acts must amount to a course of conduct to include more than one incident in a count.

• When count is not bad for duplicity since it only alleges 1 offence, but pros evidence shows it was more than one activity, correct remedy is to ask judge to amend and split into several counts.

  • Failure to amend = grounds for appeal.

General deficiency cases – where person suspected of having, for example, stolen from V on number of separate occasions but specific dates + amounts not specified. Can allege one count that accused stole x amount on day/days unknown during whole period over which the offences must have occurred.

Sample/specimen counts – person accused of systematic course of criminal conduct, prosecution case can use specimen or sample counts (eg. Series of indecent assaults in child abuse cases).

Example of where you can do it – DVCVA s.17.

Course of conduct:

Crim PR r 14.2(2) – “More than one incident 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 the commission”.

Joinder of Counts on Indictment

• Circumstances in which several counts against D can be put in one indictment – Crim PR r.14.2(3).

  • “if those charges are founded on the same facts, or form or are part of a series of offences of the same or a similar character”

  • Mansfield: could join counts for arson at 3 different hotels + murder for deaths in one of the fires.

• “Founded on the same facts” = factual nexus

  • Simple application where D does one thing and it gives rise to several offences, and where he commits several offences in continuous course of conduct.

  • Don’t need substantial contemporaneity – can be far apart but if one would not have happened without the other then on same facts.

  • Barrell and Wilson: W indicted for assault and affray at a club and attempting to pervert the course of justice.

    • Pros argued W tried to bribe witnesses not to testify against him, which was after the incident at the club but would not have happened if he was not being prosecuted.

    • CA held that time-lag did not prevent charged being founded on same facts.

• “Charges form part of a series of offences of the same or similar character” = factual and legal link

  • Ludlow v Metropolitan Police Commissioner: charges for attempted theft (L seen emerging from window of pub) and robbery (2 weeks later, L paid for drink in pub then took money back and punched the barman) in separate counts.

    • HL said they were of sufficient similarity to be joined in one indictment – seems odd because it was incidental that they were both in pubs, though they did have elements of theft in them.

    • So only need a slight similarity in fact to satisfy r.14(2)(3)(b) it seems.

  • “series” – need some limit as to time

• Requirements not that strict but sometimes do limit joinders

  • Harward: indictment containing a conspiracy count and a count of handling stolen goods. CA quashed it because there was not enough similarity in law or fact – there was merely the requirement of dishonesty in both.

Discretion to order separate trials:

• Judge has s.5(3) power to order separate trials for the counts if he thinks the accused ‘might be prejudiced or embarrassed in his defence’ through single trial, or other reason makes separate trials desirable.

• But you cannot use this to cure an invalidly joined indictment

  • Instead, if indictment is invalid the prosecution must ignore it and prefer a fresh, separate indictment out of time. They then elect to proceed on new indictment and judge quashes the old one.

• Ludlow: will only use s5(3) when there is a special feature making joint trial prejudicial or embarrassing. Not enough that jury will know of 2 charges.

Alternative counts – when clear that indictable offence committed but not clear which one, indictment can include counts for all offences that could be proven and leave it to jury to decide what to convict on.

Joinder of Defendants in an Indictment

• Counts in an indictment can charge 2+ defendants with single offence OR 2+ counts on an indictment might charge different Ds with separate offences even though no one count against them collectively.

• Joint Counts: All parties to single offence can be charged in single count

  • Includes principals and accessories.

  • Judge always has discretion to order separate trials of Ds who are accused of committing an offence jointly but there are reasons for single trial (fuller picture, saves time, differing verdict risk).

  • Grondowski: fact that A and B will put forward defences in which the blame the entire offence on each other does not necessitate separate trials.

• Separate counts: might be separate counts, each naming diff D, none being joined in single count. Joint trial when in interests of justice

  • Need a linking factor to justify the one indictment

  • Assim: D1 and D2 charged in single indictment – one w unlawfully wounding X and the other with assaulting Y. Ds were working at same nightclub and X and Y were customers leaving w/o paying = same time and place, same motive.

• Overloading indictments: judges reluctant to quash on ground that judge did not sever the indictment, but warn against overloading them

  • Thorne: 14 Ds tried together in indictment with 3 counts for robbery and numerous other offences. Trial lasted 111 days, w/ 27 counsel and 10 solicitors firms + 12 day summing up from the judge. CA did not quash but felt shorter trials would have been preferable.

Applications concerning indictment

• Application to sever: if defence thinks counts should be tried separately. Should be pre-trial...