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The Indictment Notes

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This is an extract of our The Indictment document, which we sell as part of our BPTC Criminal Litigation Notes collection written by the top tier of City Law School students.

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The indictment??

The indictment = the document containing the charges that D faces in Crown Court,
on which he is arraigned at the commencement of a trial on indictments. It only exists in Crown Court.
Law on indictments: Indictments Act 1915 & CrimPR Part 10 & CrimPD II.
Each charge is contained in a 'count' on the indictment.
NB, 'indictable offences' includes both indictable-only offences and 'either-way'
offences.

General form/layout of an indictment (CrimPR 10.3)
-Indictments must be in writing
-(a) Each offence charged should be set out in a separate count (/paragraph)
-(b) If more than one count, they should be numbered
-(c) Each count must be divided into two parts (a statement of offence & particulars of offence)
o (1) 'Statement of offence': a statement of the offence charged that describes the offence in ordinary language & identifies any legislation that creates it;
-EG: 'causing grievous bodily harm with intention, contrary to s18
OAPA 1861'.
o (2) 'Particulars of Offence': such particulars as necessary for giving reasonable information as to the nature of the charge; should include such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against D.
-EG: 'Daniel Parker, on the 1st day of June 2017, unlawfully and maliciously caused gbh to Stephen Holmes, with intent to do him gbh'.
-Date of the offence:
-Each count should state the date on which offence took place

Normal practice: give day then month; then year ('on 1st day of Jan 2016')
-If precise date is unknown: it can be said that the offence occurred:
o 'on or about' a specific date;
-If 'on or about' a date is used: the evidence must show the offence to have been committed 'within some period that has a reasonable approximation to the date mentioned in the indictment'.
o or on a 'day unknown' before a specific date;
o or 'on a date other than the date in count one'.
o Or 'on a day unknown between' two specified dates:
-If used, the days specified should be those immediately before the earliest, and immediately after the latest, days on which the offence could have been commission.
-EG: if accused is found in possession of stolen goods on 31 Dec 2016 and prosecution case is that the goods were stolen on 1 Jan 2015, the count would allege he received the goods 'on a day unknown between 31 Dec 2014 and 1 Jan 2017'. ?

Draft Indictment ("Bill of Indictment") ? requirement that an indictment be signed

CrimPR 10.3: In majority of cases, a draft indictment will be generated electronically when the case is sent from m' court to Crown Court, based on the allegations before the m' court, subject to substitution or amendment of the charges included by the prosecution.
o Nonetheless, under r10.2: Unless court directs otherwise, a (paper copy) of the draft indictment should be: (1) served on the court, and (2) endorsed by a Crown Court officer (by a note to identify it as a copy of the indictment),
and (3) date of receipt should be added when it is endorsed & (4) serve a copy on all parties.
-'Crown Court Officer' =a Crown Court employee with the requisite authority)
-Crown Court officer is required to endorse it, unless court directs otherwise.
-nB, no requirement that an indictment be printed or signed.
o Crown Court officer should be satisfied that: No draft indictment must be served unless either:
a) The accused has been sent for trial (under s51 or s51A CDA 1998); OR
b) A High Court judge has directed/consented to preferment of a voluntary bill of indictment; OR
c) CA has ordered a retrial.Once a bill of indictment is served/'preferred' by any person before the Crown
Court ? the indictment then comes into being, and is no longer a draft

[[this removes the statutory prerequisite that an indictment came into being only once it was signed by a proper officer of the Crown Court.
Preferring the indictment (CPD II 10A.1):
o CrimPR 10.2(5) lists the events which constitute 'preferment' (when a draft bill of indictment is 'preferred' and becomes the indictment':
-(1) Where r10.3 applies (generated electronically on sending for trial)
?'preferment' happens immediately before the first count is read to the D to take D's plea;
-(2) when the prosecutor serves the draft indictment on the Crown
Court Officer, where rule 10.4 [draft indictment served by Prosecutor after sending for trial, 5 [voluntary bill of indictment], 7 [served by prosecution on re-instituting proceedings], 8 [served by Prosecutor on direction of Court of Appeal] applies.
-(3) When the Crown Court approves the proposed indictment, where rule 10.6 applies (draft indictment approved by Crown Court with deferred prosecution agreement).
Where a D is contemplating an application to Crown Court to dismiss an offence sent for trial,; OR where prosecutor is contemplating discontinuance

? the parties and court must be astute to the effect of the occurrence of those events: the right to apply for dismissal is lost if the D is arraigned, and the right to discontinue is lost if the indictment is preferred.? ?Ultimate responsibility for drafting an indictment: rests with counsel for the prosecution, who must ensure it is in proper form before arraignment.
CPD II, 10A.10): where prosecutor wishes to substitute/add counts to a draft indictment, so that the draft indictment will charge offences which differ from those with which D first was charged ? D should be given as much notice as possible of what is proposed. It is likely that D will need time to consider his/her position and advance notice will help avoid delaying the proceedings.

Time limit for serving indictment???

UNLESS the draft indictment has been generated automatically (under CrimPR

10.3) when case is sent for trial from m' court
-the draft indictment must be served (by the Prosecutor on the Crown Court)
within 28 DAYS of the date on which:
o (a) copies of docs are served (service of prosecution evidence) where a person is sent for trial under s51 CDA; OR
o (b) a High Court judge has given permission to the preferment of a voluntary bill of indictment under r10.5 (see below).
o (c) CA orders a re-trial.
If prosecution intends to include different or additional counts to those which form the basis on which accused was sent from m' court

? the draft indictment should, where possible, be served more quickly than the 28-day-limit.
Practice Direction: the indictment should be served at least 7 days prior to the PTPH
(which itself takes place within 28 days of the case being sent to the Crown Court).
Prosecution counsel has ultimate responsibility for ensuring that the indictment is in proper form before arraignment
EXTENSION of time-limit: The Crown Court can extend this 28-day limit, even after it has expired

[[no specific rules re the means by which an application for extension should be made, or what such application should contain]].

Voluntary Bills of indictment???'voluntary bills of indictment': examinable material is limited to knowledge of the fact that such a procedure exists; and the circumstances in which it is appropriate to use it]].
The usual way for an indictment to come into being is after a case is sent to Crown
Court.
But another way is by 'voluntary bill of indictment'.
Administration of Justice (Misc Provisions) Act 1933, s2(2)(b) : a bill of indictment may be preferred 'by the direction or with the consent of a judge of the High
Court'.
Is an exceptional procedure which involves applying to a High Court Judge for leave to direct the preferment of a voluntary bill.
Note it is an 'exceptional procedure'.
Circumstances where this procedure can be used: where:
o (1) There must be 'good grounds' for an application Good grounds could be, eg:
further significant evidence coming to light following the dismissal of the case;
-or where Crown Court Judge did not have a crucial authority or statutory provisions brought to his attention.
o & (2) it must be in interests of justice to grant it (rather than simply considerations of administrative convenience).
Can also be used following a successful application to dismiss:
o There is specific provision to make use of voluntary bill procedure, where a charge transferred to Crown court (under s51) has been dismissed (after a successful defence application to dismiss under Sch 3 Para 2 CDA)
o if the prosecution wish to seek trial nonetheless;
o in such circumstances, further proceedings may be brought on the dismissed charge(s) only by means of the preferment of a voluntary bill of indictment.
o the defence have made a successful application to dismiss an indictment in the Crown court.
Procedure: Prosecutor must:
o Apply in writing;
o Serve application on: (a) court officer and (b) the proposed Defendant
(unless judge directs otherwise); and

Ask for a hearing if Pros wants one and explain why it is needed.
o Attached the proposed indictment and copies of evidence relied on.
o A proposed D served with the application who wants to make representations to judge must serve the representations on court officer and
Pros as soon as practicable, and ask for a hearing if wanted.
o Judge may determine the application: without a hearing, in public or private,
without or without receiving any oral evidence of any proposed witness.??

Joinder of Counts??

More than one count can be included on a single indictment
Rules of joinder in CrimPR r3.21(4).
The Court must order separate trials UNLESS:
o The offences to be tried together:
-(i) are founded on the same facts; OR
-(ii) form or are part of a series of offences of the same or similar character.
So you have to analyse the facts of each case to determine.

Effect of Misjoined counts (i.e. not complying with 3.21(4):?

Any indictment containing counts not linked in such a way -> misjoinder ? the indictment is invalid (though not a nullity) ? and any conviction returned on such an indictment is liable to be quashed.
Proceedings flowing from an improperly joined count are a NULLITY:
o Remember (see below) the power to sever under s5(3) applies only to a valid indictment ?

o And remember a trial judge can amend an indictment, in case of misjoinder,
so leave a valid indictment

If no amendment is made, so the indictment is invalid by reason of misjoinder:
o the indictment (containing a misjoined count) is not itself a nullity;
o and not all proceedings flowing from the whole indictment containing a count improperly joined are a nullity;
o But the proceedings flowing from an improperly joined COUNT are a nullity,
o I.e. effectively no valid trial ever commenced regarding that count [thus court power to quash a conviction & sentence under Crim Appeal Act 1968 does not come into play; instead, CA has to exercise its inherent power at common law to quash convictions]]
o So convictions on an improperly joined count will be quashed (but not necessarily for the whole indictment).
Consequences of misjoinder when proceeds to trial -- If a trial proceeds on an indictment containing a misjoined count ? the conviction on the count wrongly joined will be quashed (R v Lockley).

(i) Offences 'founded on the same facts'
-This is clearly satisfied where: the offences alleged arise out of a single incident or an uninterrupted course of conduct.
o EG, where offences having a common factual origin: D driving along, drives his car at his worst enemy. Enemy dives out of way. D then stops his car,
jumps out and attacks the victim, causing a broken jaw and bruising. There are number of offences founded on the same facts: (1) Dangerous Driving; (2)
GBH. They could joined, as founded on same facts.
-Offences do NOT have to be committed contemporaneously:
-The rule includes cases where the later offences would not have been committed
'but for' the earlier offence

Eg, R v Barrell: HELD: a count for attempting to pervert course of justice could be properly joined on the same indictment as counts alleging affray and assault).
-Eg, R v Roberts:
o Police searched appellant's home and found: one bag of cocaine, another of cannabis; two air rifles. D charged with 2 drugs offences with intent to supply,
and 2 counts of possessing a firearm when prohibited. All four counts were joined in same indictment.
o Appellant argued that the four counts were not properly joined because the prosecution had not suggested there was any connection between the drugs and guns, they simply happened to have been discovered on the same premises.
o HELD: the phrase 'founded on the same facts' does NOT mean that the facts in relation to each charge have to be identical in substance, or virtually contemporaneous.
-The test = whether the charges have a common factual origin, i.e. there must be a factual connection between the counts by a coincidence of time and place;
-it is irrelevant that the accused's explanation is different for each offence. (ii) Offences that form, or are part of, a series of offence of same/similar character
-Ludlow v MPC, main points:
a) Two offences (and no more) are sufficient to constitute a 'series'
b) Both the legal and factual characteristics should be considered in determining whether offences are 'similar in character'.
c) To have a 'series of offences' there must be some 'nexus' between them = a
'feature of similarity which, in the all the circumstances, enables the offences to be described as a series'.
d) Facts of Ludlow: involves counts for (a) attempted theft on 20 August and (b)
robbery at a different pub on 5 September. Held: offences were similar in law
(both had ingredient of theft); and also similar in fact (involved stealing from neighbouring pubs just 16 days apart). There was sufficient nexus to make the offences of 'similar character'.
-where the evidence of one offence is admissible in evidence to assist in proving the other (in accordance with the rules on similar fact evidence)? that is sufficient nexus, even where there is a considerable gap between them (this is sufficient, but is not essential to find a sufficient nexus)
-Generally, the further apart in time the offences are ? the more difficult it is to establish a 'nexus'.
-EG
o D is arrested in a nightclub for selling cocaine. ? obvious count is Supplying a
Controlled Drug to Another.
o Following arrest, his flat is searched and a large quantity of cocaine is recovered ? could add second count of possession of a controlled drug with intent to supply.
-This second offence is of a 'similar character' to the first (drugs supply), and two offences are sufficient to form a 'series'.
o If D was then released on bail and caught dealing drugs again, this time
MDMA, could add a third count of drugs supply.
-There is a clear nexus between these offences, as all relate to drugs,
committed within a relatively short period of time.
o Then on another search of his flat, a stolen credit card is recovered.
-On the face of it, there is no nexus between this offence of Handling
Stolen Goods and the 3 drugs offences. Prosecution would struggle to argue that they formed part of a series of offences of same/similar character OR that they were founded on the same facts.
-So prosecution would serve two indictments, one containing the drugs offences, the other containing the Handling Stolen Goods
Offence.
-If D pleaded not guilty ? would face a separate trial on each indictment.

Summary only offences on an indictmentAn indictment only exists in Crown Court ? so an indictment will always contain an indictable offence (either indictable-only or either-way).

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