6. Indictments

Question 1

what is an indictment?

Answer 1

document containing charges against the accused.

Question 2

when is a draft indictment served?

Answer 2

• accused sent for trial (s.51)
• HCJ consents to preferment of voluntary bill
• CC judge consents preferment of bill of indictment
• COA has ordered retrial

Question 3

what happens when a bill of indictment is preferred?

Answer 3

becomes an indictment

Question 4

when is an indictment classed as preferred?

Answer 4

uploaded to DCS or
if it has been served pursuant to CrimPR 10 (served, endorsed and dated)

Question 5

when is an officer required to endorse an indictment?

Answer 5

always unless court says otherwise

Question 6

what is done if multiple indictments are uploaded to DCS?

Answer 6

pros have to say which they are pursuing and which order D’s should be listed on indictment

Question 7

can time limit for serving bill of indictment be extended?

Answer 7

Yes. no rules for how to ask for it.

Question 7

who has the responsibility for drafting indictment?

Answer 7

prosecution have ultimate responsibility.

Question 8

apart from when it is done automatically on sending, when should draft indictment be served on crown officer?

Answer 8

within 20 business days of:
* copies of sending docs served or
* HCJ consented to preferment of voluntary bill

Question 9

what is the general layout of an indictment?

Answer 9

• each offence separate para/count (numbered if more than one)
• for each count - statement of offence, date and particulars of offence

Question 9

what counts may be included on indictment?

Answer 9

charges that can be included on original indictment rather than matters of joinder, severance, amendment

Question 10

can draft indictment include charges revealed by the papers?

Answer 10

yes, subject to rules of joinder, charges disclosed by evidence served can be included on indictment

Question 11

what date is put if the exact date is unknown?

Answer 11

on or about - evidence must show that this is a reasonable approximation

Question 12

what is the exception that each count can only allege one offence?

Answer 12

where an offence is regarded as a continuing offence which takes place over a period of time

Question 13

when can a multiple offending count be used?

Answer 13

when the incidents taken together amount to course of conduct

Question 14

examples of continuous offences?

Answer 14

• conspiracy
• theft where someone steals small sums/items over a lengthy period and not possible to give exact dates.

Question 15

examples of circumstances where multiple offending count used?

Answer 15

• victim same on every occassion
• incidents marked degree of repetition (method/location)
• incidents took place over clearly defined period (not usually more than a year)
• same defence applies to every alleged incident

Question 16

when will offences on same indictment be tried separately ?

Answer 16

if court is of opinion that
* D might be prejudiced/embarrassed in their defence or
* for any other reason it is desirable.

Question 17

when can offences be tried together?

Answer 17

• founded on same facts or
• form/are part of a series of offences of same or similar character

Question 18

when will an offence be a pre-condition of another?

Answer 18

later offences would not have been committed but for the commission of the earlier offence (i.e. intimidating witnesses).

Question 19

what does it mean if charges are founded on same facts?

Answer 19

arose out of a single incident or uninterrupted course of conduct. Common factual origin

Question 20

what does it mean if offences are a series or similar character?

Answer 20

2 offences can be a series
legal and factual similarity
feature in them that enables them to be described as a series

Question 21

when are specimen or sample counts used?

Answer 21

where person is accused of adopting systematic course of criminal conduct AND it is not appropriate to allege as continuous offence/multiple offending count

Question 22

what procedure is used with specimen counts?

Answer 22

• defence provided with list of all similar offences of which it is alleged that indictment ones are samples of
• evidence of some or all of these be led as evidence of system
• additional offences need not be referred to until G verdict entered on sample

Question 23

what is accused required to know when using specimen/sample counts?

Answer 23

with as much particularity as possible, the case that they have to meet

Question 24

when are accused joined?

Answer 24

when they are named together in counts or named individually on separate counts

Question 25

what are the rules when drafting a joint offender count?

Answer 25

• no need to distinguish between principals and others
• don’t expressly allege each act of each accused

Question 26

what verdicts can be returned on a joint count?

Answer 26

either acquit / convict both or
acquit one convict other.

Question 27

when is a joinder of accused acceptable?

Answer 27

if offences separately alleged against the accused are on the evidence so closely related by time or other factors that the interests of justice are best served by a single trial.

Question 28

can court order separate trials of accused properly joined?

Answer 28

yes. it is called severance

Question 29

when will the court order severance?

Answer 29

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 sever

Question 30

when can court order severance?

Answer 30

before trial or at any stage of the trial

Question 31

when will court order the postponement of trial?

Answer 31

postponement of the trial of a person accused is expedient as a consequence of the exercise of any power of the court (to sever)

Question 32

if the order of postponement is made during trial what happens?

Answer 32

jury are discharged from giving verdict on count/indictment to which it applies

Question 33

examples where severance might be justified?

Answer 33

• scandalous nature of evidence to one count
• number/complexity of counts

Question 34

can severance be exercised against those charged in a joint count?

Answer 34

yes.

Question 35

is there a presumption in favour of a joint trial?

Answer 35

yes, discretion to sever is with the judge. Decision should be in favour of joint trial unless risk of prejudice is unusually great.

Question 36

when can an indictment be amended?

Answer 36

before or at any stage of trial (even when jury deliberating) can be amended by direction of court

Question 37

when will the court make an order to amend an indictment?

Answer 37

where it is necessary to meet circs of case unless having regard to merits of case, the required amendments cannot be made without injustice (unfair prejudice).

Question 38

what can power to amend be exercised in respect of?

Answer 38

formal defects in wording of count (no statute etc) and
substantial defects such as divergences between allegations / missed evidence

Question 39

can indictments be amended to insert new counts?

Answer 39

yes. if after arraignment, new counts must be put to the accused for plea

amendments can be made after close of prosecution case (i.e. amendment following submission of no case to answer success)

Question 40

if an amendment raises something not foreshadowed by evidence what happens?

Answer 40

may be a ground for not allowing the amendment or adjourning to allow the amendment

Question 41

when is a voluntary bill of indictment used?

Answer 41

to reinstitute proceedings after charge has been dismissed but fresh evidence has come to light

Question 42

what is a voluntary bill of indictment?

Answer 42

simply means seeking an order from a High Court judge that the accused should stand trial in the Crown Court for the offence(s) set out in the application

Question 43

when should volunatry bill be sought?

Answer 43

when there is good reason for not commencing proceedings in the usual way.

Question 44

what form and content should an indictment have?

Answer 44

written
separate para for each count
statement of offence
particulars of conduct

Question 45

when can more than one incident be included on count?

Answer 45

amounts to course of conduct

Question 46

what counts can an indictment contain?

Answer 46

counts substantially same offence as one which they were sent
counts authorised by HCJ in draft indictment
count charging offence which CC can try that appears from pros evidence (including s.40 CJA summary offence)

Question 47

what are the general rules when indictments are generated automatically (CrimPR 10.3) ?

Answer 47

• each allegation = count
• allegation together = draft indictment
• before draft preferred - pros can amend count to same effect and charging same offence
• if pros have served evidence on which they rely and indictment not preferred - they can add or sub count charging substantially same offence and any other count that crown can try based on ev served

Question 48

if draft indictment is not electronically generated - when must the pros serve it?

Answer 48

serve on CC officer not more than 20 business days after serving pros evidence

Question 49

Draft indictment served by the prosecutor with a High Court judge’s permission must be served when?

Answer 49

not more than 20 business days after HCJ decision

Question 50

when pros wants to reinstitute proceedings when must draft indictment be served?

Answer 50

serve on CC officer not more than 3 months after proceedings were stayed

Question 51

when COA orders retrial when must Draft indictment be served?

Answer 51

not more than 28 days after that order