Indictments

Question 1

What’s an indictment?

Answer 1

Doc setting out charges against A in case before CC

• Each charge = contained in a count
• Ultimate responsibility = with counsel for P, who must ensure in proper form before arraignment

Question 2

What does preferring a draft (bill of) indictment means?

Answer 2

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

Question 3

When does a draft indictment becomes ‘preferred’?

Answer 3

When uploaded to digital system

• It’s subject to amendment by P before preferment

Question 4

Indictment must be endorsed by CC officer and dated. What does the CC officer checks?

Answer 4

*(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

*NB: no/longer needs to be printed or signed; electronic copy is OK (becomes ‘indictment’ immediately before arraignment

Question 5

When does a preferred draft becomes indictment?

Answer 5

The draft indictment is preferred before the CC and becomes the indictment immediately before the first count is read to or placed before the defendant to take the defendant’s plea

Question 6

What’s the time limit for P to serve indictment on Court & A?

Answer 6

Unless generated electronically, draft indictment should be served on CC officer within 20 business days of the date on which:

(1) copies of docs served where person sent for trial under CDA s 51,

or

(2) HC judge consents to preferment of a voluntary bill of indictment

Question 7

What’s the time limit where P seeks to include counts, different forms or additional to those counts on basis of which A was sent?

Answer 7

should be served more quickly than 20 days (+ give A as much advance notice as possible of new charges, as below)

Question 8

Indictments must be served at least 7 days before PTPH - is this statement true?

Answer 8

Yes

Question 9

Is CC permitted to extend time-limit?

Answer 9

Yes

CC permitted to extend time-limit, even after it has expired
- no specific rules re: means by which app for extension should be made / what should contain)

NB: failure to satisfy these rules does not impugn validity of indictment

Question 10

Which counts may be included in an an (original draft) indictment?

Answer 10

(1) Original charges put forth at Mags [& for which A sent for trial]

(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

• Where P chooses to add a count for an offence in re: of which A was not sent, he must:
  (a) Thus be careful to ensure that offence is in fact disclosed by statements, and
  (b) Ensure that A given as much notice as possible of the new charges

(3) Certain summary offences — s 40 CJA ( Common assault, criminal damage less than 5k, taking a motor vehicle w/o consent and disqualified driving)

Question 11

What’s the format of an indictment (layout)?

Answer 11

Either (1) generated electronically or (2) follow form given in CrimPD

Basic requirements:
(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, and
(b) particulars of offence

Question 12

What’s the format of a count?

Answer 12

(1) Statement of offence
- Describes the offence shortly in ordinary language & if offence statutory, should specify by section / subsection the provision contravened

(2) Particulars of offence
- So as to make clear what P alleges against D
- Incl. name of A, date of offence , act constituting offence, name of V, state of mind which P must establish

Question 13

On particulars of indictment - how can the date of the offence be stated?

Answer 13

Ways to state:

a) “on 1st day of January 2020”
b) “on or about” (if precise date unknown – but requires evidence to show this)
c) “on a day unknown before X”
d) “on a date other than the date in count one”
e) “on a day unknown between X & Y”

Question 14

What the rule against duplicity?

Answer 14

Each count may allege only one offence (= can only allege offence occurred on one day), w/ two exceptions:

1) Continuous offences
2) Course of conduct/multiple offending count

Question 15

The rule against duplicity american horror story 2 exceptions. What are they?

Answer 15

(1) Continuous offences
- If offence took place continuously / intermittently over a period of time, may be alleged to have occurred on more than one day

Includes:
(1) conspiracy
(2) general deficiency cases –

e.g. if evidence that A stole small sums or items of property over lengthy period, but not possible to particularise exact days = can have single count alleging that on one day within overall period, A stole all relevant money/property

(2) Course of conduct / multiple offending count
- If more than one incident of commission of an offence taken together (having regard to time/place/purpose of commission) amount to a course of conduct = may be included in same count

Includes:
(1) same V each time/no identifiable individual V – e.g. in money laundering

(2) incidents involve marked degree of repetition in method employed and/or location

(3) incidents took place over clearly defined period (typically but not necessarily no longer than a year)

(4) in any event, same defence will apply to every alleged incident w/o differentiation (if not = exception inapplicable)

Question 16

What’s the rule of joinder of counts in an indictment?

Answer 16

For counts to be properly joined, the offences charged must:

(1) be founded on the same facts, or
(2) form or be part of a series of offences of the same/similar character

Question 17

Court may order separate trials of two offences (im)properly joined if?

Answer 17

(1) D otherwise may be prejudiced/embarrassed in his defence (e.g. b/c offences not founded on same facts nor form part of a series of offences), or

(2) for any other reason = desirable that D should be tried separately for one or more of those offences

• Power to sever applies to misjoinder (i.e. not confined to a ‘valid’ indictment)
• If indictment capable of being rendered valid by proper amendment = not a nullity

Question 18

What’s the effect of having a conviction flowing from mis-joined indictment ?

Answer 18

A conviction on the improperly joined count will be quashed

Question 19

Can charges founded on the same facts be jointer of counts in an indictment?

Answer 19

A factual connection must be established

(1) Offences arose out of a single incident or uninterrupted course of conduct

(2) [Offences not committed contemporaneously, but] one offence was a precondition of the second

• Irrelevant that A’s explanation is different for each offence
• i.e. ‘but for’ the first offence, the second would not have been committed = in this sense have a ‘common factual origin’ (e.g. if D had not been involved in violence which gave rise to charges of assault & affray, he would have had no motive for offering the witness a bribe = latter properly joined to former)

Question 20

Can a series of offences of same/similar character be jointer of counts in an indictment?

Answer 20

Yes where:

(1) Two offences are capable of constituting a ‘series’

(2) In assessing similarity, both legal & factual characteristics of offences relevant

(3) 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 offences so connected that evidence of one offence = admissible to prove the commission of the other, in accordance w/ rules on similar fact evidence, i.e. ‘striking similarity’ (but not essential)

Question 21

Where A is accused of adopting a systematic course of criminal conduct & not appropriate to allege continuous offence/multiple offending count - Can P proceed by including specimen counts?

Answer 21

Yes

E.g. course of dishonesty, or series of sexual offences against one or other Vs, over a period of time = limited number of specimen counts included

Question 22

What’s the procedure for specimen counts by P?

Answer 22

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

(b) evidence of some/all additional offences may in appropriate cases be held as evidence of system;

(c) in other cases, the additional offences need not be referred to until after G verdict upon the sample offence is returned

Question 23

What are the potential problems with specimen counts?

Answer 23

Problems with sentencing

A should not be denied his right to be tried by a jury for offending for which he may ultimately be sentenced

• Thus, indictment must be drafted to enable A to know case he must meet

Question 24

What are specimen counts?

Answer 24

They can be made when an individual is being charged with numerous violations of the same offence. It is used to simplify charging the person, as they would otherwise have to be charged with each individual offence.

Question 25

Two or more As may be joined in one indictment where (2)?

Answer 25

(1) named together in 1+ counts,

or

(2) named individually in separate counts

• NB no requirement that all counts on a joint indictment should be against all Ds

Question 26

What’s the power to join two or more accused in one indictment on 1 count?

Answer 26

[generally where evidence shows Ds acting in joint enterprise]

Test = all parties to a joint offence

In drafting the count:
(a) No need to distinguish between principal & secondary offenders

(b) Count need not expressly allege that each A aided the others (as this is implicit in the drafting of a single count)

Question 27

What are the jury’s options where there’s a joinder of As in 1 count?

Answer 27

Jury may:
1) acquit all
2) convict all
3) acquit one & convict the other

*verdict against D1 cannot be challenged on ground that jury must have found he acted alone w/o assistance from D2

*Even if one co-A implicates another, severance not required – court can give robust direction to jury

Question 28

What’s the test for a joinder of A’s in separate counts?

Answer 28

Test = offences separately alleged against several Ds so closely related by time / 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

• A matter of practice for the courts

Question 29

On Applications to sever indictments ( counts or Ds), what’s the generable presumption?

Answer 29

General = presumption in favour of joint trial

• So judge will use discretion to sever only if an unusually great risk of prejudice to As if no severance

Question 30

What’s the applicability of rule for severance (separate trials of offences)?

Answer 30

Rule: if same indictment charges more than one offence (even if properly joined), court may order separate trials of those offences if:

(1) D otherwise may be prejudiced/embarrassed in his defence
- E.g. scandalous nature of evidence as to one count, likely to arouse in jury hostile feelings towards A
- E.g. number and/or complexity of counts = difficult to disentangle evidence re: one count from that re: anor, cause confusion

(2) for any other reason, desirable that D should be tried separately for one or more of those offences

Question 31

Is the fact that A wishes to give evidence in defence on one count but not the others, a sufficient reason for severance?

Answer 31

No

Question 32

What’s the effect of severance and what must the court order?

Answer 32

(1) Court must make order for postponement of trial as necessary/expedient

2) Effect of severance = severed count tried as if had been preferred in separate indictment

Question 33

What’s the applicability of the rule of severance for separate trials of As?

Answer 33

General = presumption in favour of joint trial

So judge will use discretion to sever only if an unusually great risk of prejudice to As if no severance

Question 34

What’s the guidance as to exercise of discretion for severance - separate trials of As?

Answer 34

(1) If As charged in joint count = v strong arguments in favour of a joint trial

(i) Severance will necessitate same P evidence given twice before different juries & increase risk of inconsistent verdicts

(ii) Even if co-As expected to blame/incriminate each other for the offence in evidence before jury (‘cut-throat defences’), interests of the co-As = still generally outweighed by interests of P & the public in having single trial

(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 should balance advantages of single trial against extent of possible prejudice to A2 + extent to which an appropriate jury direction likely to ensure evidence only taken into account for proper purpose (of proving D1 case)

(3) Where joint trial would be very long/complicated, judge should consider a whether a number of shorter trials = fairer/more efficient disposition of issues

(4) Public interest in a joint trial less strong where the indictment contains separate offences for the Ds, as opposed to a joint count (= cases against As less likely to be as closely intertwined as in latter case)

Question 35

What’s the statutory power to amend indictment that have been served?

Answer 35

Where indictment appears defective = court shall make such order for amendment as it thinks necessary unless, having regard to merits of the case, the required amendments cannot be made w/o injustice

Question 36

Can the court amend an indictment by inserting a new count?

Answer 36

Yes, court can insert entirely new count

• Whether in addition to or in substitution for the original counts

Question 37

Where the amendments to indictment are so drastic as to amount in substance to substitution of a new indictment - what should the judge do?

Answer 37

judge should (if necessary) grant P leave to prefer new indictment out of time, go through process of re-arraignment, etc

Question 38

If new count added after arraignment, what happens?

Answer 38

The new count must be put to D for plea

Question 39

What’s the courts power on extent to amend an indicment?

Answer 39

Extent → can be exercised both for:

(1) Formal defects in wording of a count
· E.g. particulars fail to disclose some essential element of offence
· E.g. relevant statute omitted

(2) Substantial defects
· E.g. divergences between allegations in the count and evidence served, such as wrong date

Question 40

What’s the evidential basis for the a new count?

Answer 40

Q = whether or not A will be unfairly prejudiced

So, not necessary for new count to have evidential basis in P case on A’s sending to trial –

however

fact that an amendment raises something for the first time not foreshadowed in documents might be ground of prejudice for not permitting it (or, permitting it together w/ an adjournment)

Question 41

What’s the time limit for amending an indictment?

Answer 41

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

Question 42

What’s a (obtaining) voluntary bill of indictment?

Answer 42

Is seeking an order from a HC judge that A should stand trial in the CC for the offence(s) set out in the application

Question 43

What’s the principal use of a voluntary bill of indictment ?

Answer 43

To allow proceedings to be re-instituted where a charge transferred to CC has been dismissed, but fresh evidence against A has subsequently come to light

Question 44

Where will the High Court give consent to obtaining a voluntary bill of indictment?

Answer 44

HC will only give consent where:

(1) Good reason to depart from usual procedure,

and

(2) interests of justice (as opposed to considerations of administrative convenience) require it

NB: it is the only method by which the proceedings can be re-instituted once an application to dismiss has been successful

Question 45

What’s the procedure where P wants to joint indictments of co-As but on unrelated charge?

Answer 45

1) apply for joinder of indictments

2) apply for severance of unrelated charge

3) arraignment

Question 46

How is an indictment drafted when the offence involves a person who allegedly aided/abetted the commission of an offence?

Answer 46

Those engaged in committing the same crime but play different roles would be engaged in a joint enterprise and would be jointly indicted on the same count. An example would be a burglary where one man goes into the house, one stands outside as lookout and the other is the getaway driver. All are guilty of burglary.

Question 47

How wide is the discretion to order a separate trial of the accused?

Answer 47

The discretion is very wide and will be based on any given judge being persuaded that a joint trial would be prejudicial or embarrassing to any defendant.

The appellate courts will usually only interfere with the trial judge’s decision on grounds of Wednesbury unreasonableness.

• In exercising discretion on severance, the essential task of the trial judge is to achieve a fair resolution of the issues in the case.

Under s5 (3) of the Indictments Act 1915, it states: “Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.”

Question 48

What are P’s powers in amending of an indictment? Under s.5 Indictments Act 1915

Answer 48

Power to amend an indictment:
1) in respect of substantial and formal defects

2) to amend formal defects on the wording of the statute

3) There’s power to amend but no power to add a new count or counts

4) at any stage of trial

5) add a new count that is not necessarily based upon the case foreshadowed in the documents served under the regulations for the service of P’s case after D has been sent for trial;
- although, the fact that the new count was not disclosed by the original documents may be a reason for the court to exercise its discretion not to allow the amendment, or to permit the amendment but with an adjournment (so that the defendant has time to consider and meet the allegations made in the new count).

6) not limited to docs served under regulation for the service of P case after D has been sent for trial

NB: consider whether or not D will be unfairly prejudiced by the amendment