The Indictment Notes

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)

  • (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’.

  • (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 1^st 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 1^st day of Jan 2016’)

• If precise date is unknown: it can be said that the offence occurred:

  • ‘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’.

  • or on a ‘day unknown’ before a specific date;

  • or ‘on a date other than the date in count one’.

  • 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.

  • 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.

  • Crown Court officer should be satisfied that: No draft indictment must be served unless either:

    1. The accused has been sent for trial (under s51 or s51A CDA 1998); OR

    2. A High Court judge has directed/consented to preferment of a voluntary bill of indictment; OR

    3. 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):

  • 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:

  • (a) copies of docs are served (service of prosecution evidence) where a person is sent for trial...

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