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Indictments - Coggle Diagram

- - - - In most instances, the rule against duplicity (i.e. each count may allege only one offence, requires that a count must allege that the offence occurred on one day, not on several days
      - Were it to be otherwise, the only sensible interpretation of such an allegation would be that the accused had committed several distinct offences on different days
        
        Although the prosecution are permitted to have one count for what are technically distinct criminal acts where those acts formed a single activity or transaction
        
        Discretion to Order Separate Trials of Accused
        
        The court has a discretion to order separate trials of accused who have properly been joined in one indictment
        
        Where the matters which constitute the individual offences of the several offenders are upon the available evidence so related
        
        That the interests of justice are best served by their being tried together,
        
        Then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together
        
        Although that was said in the context of an indictment which did not contain a joint count,
      - The mention of more than one day (whether conjunctively or disjunctively) in the count is inconsistent with there having been a single activity on the accused's part
      - The difference here is between an offence being committed once between a start and end date, and the offence having been committed repeatedly but separately on a number of days
      - The exception to the general principle just stated is that, where an offence is properly to be regarded as a continuing offence which may take place continuously or intermittently over a period of time, then a count may properly allege that it occurred on more than one day
        
        Severance of Counts on an Indictment
        
        Where counts for separate offences can be tried together
        
        The trial judge is able to exercise discretion to order separate trials
        
        Either Way Offences under s. 51
        
        There are various steps which must be taken where the offence is triable either way (unless notice is given
        
        Plea before venue': the accused is asked to indicate an intention to plead guilty or not guilty;
        
        In the event of an indication of a not guilty plea (or no indication), the allocation (mode of trial) procedure
        
        The prosecution and, if they wish, the defence make representations as to whether the case is suitable for summary trial and the court then decides whether to accept jurisdiction and offer summary trial to the accused;
        
        If the magistrates' court declines jurisdiction, or if the accused elects trial on indictment, the case is sent for trial to the Crown Court under
        
        If their joint trial would be prejudicial or embarrassing for some reason
        
        Or if some other feature makes that course desirable
    - - Where an adult appears or is brought before a magistrates' court charged with an offence to which these provisions apply
      - The court must send the accused 'forthwith' to the Crown Court for trial for the offence
      - This is, however, subject to the magistrates' power to adjourn if necessary
      - These provisions apply where the offence is triable only on indictment
      - Or where the offence is triable either way and the allocation hearing (sometimes known as the 'mode of trial' hearing) has resulted in a decision in favour of trial on indictment
      - Either because the magistrates have declined jurisdiction or else the accused has elected Crown Court trial rather than summary trial
      - The magistrates must also send the accused forthwith to the Crown Court where notice has been given (serious fraud cases) or (child witness cases)
- - - - Second Limb of CrimPR 3.29(4): Series of Offences of the Same or a Similar Character
        
        The circumstances in which two or more offences may be said to amount to a series of offences of the same or similar character within the meaning of the second limb
        
        Two offences are capable of constituting a 'series' for the purposes of the Indictment Rules 1971, r. 9
        
        In deciding whether offences exhibit the similarity demanded by the rule
        
        The court should take into account both their legal and their factual characteristics
        
        The prosecution submission (that the phrase 'a similar character' means exclusively of a similar legal character) and the defence submission (that the phrase means exclusively of a similar factual character) were each rejected
        
        To show the existence of a series of offences, the prosecution must be able to point to some nexus between them
        
        This means 'a feature of similarity which in all the circumstances of the case enables the offences to be described as a series'
        
        A nexus is clearly established if the offences are so connected that the evidence of one would be admissible to prove the commission of the other in accordance with the rules on similar-fact evidence, but this is not essential
        
        Presumption in Favour of Joint Trial
        
        The decision should be in favour of joint trial unless the risk of prejudice is unusually great
        
        Voluntary Bills of Indictment
        
        Provides that a bill of indictment may be preferred 'by the direction or with the consent of a judge of the High Court'
        
        Obtaining a 'voluntary bill of indictment' 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
        
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- - - - Two or more accused may be joined in one indictment either as a result of being named together in one or more counts on the indictment
      - Or as a result of being named individually in separate counts, albeit that there is no single count against them all
        
        Extent of the Power to Amend
        
        The power to amend may be exercised both:
        
        In respect of formal defects in the wording of a count
        
        For example when the statement of offence fails to specify the statute contravened or when the particulars do not disclose an essential element of the offence, and
        
        In respect of substantial defects such as divergences between the allegations in the count and the evidence foreshadowed in the material served under the regulations for the service of the prosecution case after the accused has been sent for trial or called at trial
        
        In order to be defective, must be one which in law did not charge any offence at all and therefore was bad on the face of it
        
        We do not take that view
        
        Voluntary Bills of Indictment
        
        Provides that a bill of indictment may be preferred 'by the direction or with the consent of a judge of the High Court'
        
        Obtaining a 'voluntary bill of indictment' 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
        
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- - - - The layout of an indictment should substantially follow the form given
      - Save where generated electronically states that the form must normally be one of those set out in the CrimPD, but in fact no such form is now set out there
      - Despite this, the basic requirements as to the layout of an indictment are as follows:
        
        Each offence charged should be set out in a separate paragraph or count
        
        Possible Verdicts on Joint Counts
        
        The jury may convict all or any of them on the basis that they committed the offence charged independently of the others
        
        Where two or more defendants are charged in the same count of an indictment with any offence which men can help one another to commit
        
        It is sufficient to support a conviction against any and each of them to prove either that he himself did a physical act which is an essential ingredient of the offence charged or that he helped another to do such an act, and,
        
        That in doing the act or in helping the other defendant to do it, he himself had the necessary criminal intent
        
        In short, if two accused, D1 and D2, are charged in a joint count the jury may acquit both, or
        
        convict both,
        
        acquit one and convict the other
        
        Should they convict both it will usually be on the basis implicit in the joint count that they helped each other to commit the crime
        
        But the jury may equally convict both where the evidence suggests that they acted independently of each other if they are satisfied that each accused committed the offence
        
        Similarly, if there is a split verdict, the verdict against the convicted accused is not open to challenge on the ground that the jury must have found that the accused acted alone without assistance either from the acquitted co-accused or anybody else
        
        Despite this, the prosecution are well advised only to draft a joint count where the evidence reveals a joint enterprise. If the co-defendants were acting without reference to each other, separate counts are preferable
      - If there is more than one count, they should be numbered
        
        Each count should be divided into a statement of offence and particulars of offence
      - The statement of offence describes the offence shortly in ordinary language, and, if the offence is statutory, should specify by section and subsection the provision contravened (Indictments Act 1915, s. 3(1), and
        
        The particulars of offence should give 'such particulars as may be necessary for giving reasonable information as to the nature of the charge' (Indictments Act 1915, s. 3(1))
        
        Evidential Basis for the New Count
        
        A case decided in the context of committal proceedings, it is not necessary
        
        However, it was held in that case that the amendment had been founded on evidence disclosed at committal, and this approach ran counter
        
        The power to amend under s. 5 was held not to be limited by the evidence served at committal, and the question to be assessed before permission to amend is granted is whether or not the accused will be unfairly prejudiced by the amendment
        
        The fact that an amendment raises for the first time something not foreshadowed in the documents may be a ground for not permitting the amendment or permitting it only together with an adjournment
      - There should be included 'such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant'
- - - - Rule 10.2(2) states:
      - More than one incident of the commission of an offence 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 commission
      - Before this form of words was incorporated into the CrimPR, it had been argued that it was usually possible to allege only one incident per count, as to allege more than one incident in a count fell foul of the rule against duplicity
      - The circumstances in which it is suggested to be appropriate to use to charge a 'multiple offending count' include, but are not limited to, the following:
        
        The victim on each occasion was the same, or there was no identifiable individual victim as, for example, in a case of the unlawful importation of controlled drugs or of money laundering;
      - The alleged incidents involved a marked degree of repetition in the method employed or in their location, or both;
      - The alleged incidents took place over a clearly defined period, typically (but not necessarily) no more than about a year;
        
        In any event, the defence is such as to apply to every alleged incident. Where what is in issue differs in relation to different incidents
        
        A single 'multiple incidents' count will not be appropriate (though it may be appropriate to use two or more such counts according to the circumstances and to the issues raised by the defence)
        
        Joint Counts
        
        All parties to a joint offence may be indicted for it in a single count
        
        In drafting the count:
        
        There is no need to distinguish between principal offenders and secondary parties
        
        The count need not expressly allege that the unlawful acts of each accused were done in aid of the others, as that allegation is implicit in the drafting of a single count
        
        Where the prosecution seek to join an accused to an indictment following an order that the accused in question be retried
        
        Then, in addition to the considerations of general relevance to an application for joinder
        
        There is also the need to consider if the accused would be substantially adversely affected, so that joinder would represent an abuse of process
        
        That said, there is no prohibition on the addition of counts to an indictment in such circumstances, where it is fair to do so
        
        Amendment by Insertion of a New Count
        
        It also permits the insertion of an entirely new count into an indictment
        
        Whether in addition to or in substitution for the original counts
        
        'There is no rule of law which precludes amendment of an indictment after arraignment, either by addition of a new count or otherwise'
        
        The words 'after arraignment' appear in the sentence quoted because the main point at issue in that case was whether the amendment was made too late
        
        But obviously the addition of a count before arraignment is even less open to objection than a subsequent addition
        
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    - - The court has the power to order the separate trial of accused or of offences that are properly joined in one indictment
      - Which requires the court, following an order for severance
      - to make such order for postponement of the trial as appears necessary and expedient; and
      - Which provides that the procedure on the separate trial of a count following an order shall be the same in all respects as if the count had been preferred in a separate indictment
      - The power to sever an indictment was held to apply only to valid indictments
- - - - Cases in which the application of the rule have been considered relate to r. 9 of the Indictment Rules 1971 and should be approached with a degree of caution as a result
      - In that case, D was charged in an indictment containing counts relating to drugs offences and assaults, which were entirely unconnected
      - At trial, when counsel for D submitted that the indictment was invalid,
        
        The judge held that he had power of the Indictments Act 1915 to sever the indictment
        
        The conclusions reached by the Court of Appeal, which have not all survived subsequent developments , were as follows:
      - The power to sever applies only to a valid indictment
      - It is at the least arguable that this aspect of the decision has been overtaken, which appears to recognise a power to sever without this qualification
        
        The trial judge could have amended the indictment so as to delete either the drugs count or the assault counts
      - That having been done, the trial could validly have proceeded on what remained
        
        Given that no amendment had in fact been made, the unamended indictment was invalid by reason of the contravention Because it was capable of being rendered valid by an appropriate amendment, it was not a nullity
        
        Sending Cases from the Magistrates' Court to the Crown Court
        
        All adults accused in criminal cases make their first appearance in the magistrates' court
        
        If the offence is triable only in the Crown Court, the accused must be sent to that court for trial
        
        If it is triable either way, the accused will be sent to the Crown Court for trial only if the accused indicates
        
        Or is deemed to indicate, a not guilty plea at the 'plea before venue' hearing and the allocation ('mode of trial') hearing that follows results in a decision in favour of Crown Court trial
        
        In either case, the case is sent for trial to the Crown Court
        
        Circumstances in which it is Appropriate to Apply for a Voluntary Bill
        
        An application for a voluntary bill should be regarded as exceptional, only to be sought where there is a good reason for not commencing proceedings in the usual way
        
        However, specific provision is made for the use of the voluntary bill procedure where a charge transferred to the Crown Court has been dismissed and the prosecution wish to seek a trial nonetheless;
        
        Indeed, 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
- - - - The cases on this point (known as the general deficiency cases)
        
        Separate Counts
        
        The joining of two or more accused in one indictment notwithstanding the absence of a joint count against them is now permitted
        
        In that case, the indictment against D1 and D2 contained two counts
        
        The first alleged that D1 had maliciously wounded W, and the second alleged that D2, on the same day, had caused actual bodily harm to L
        
        D1 and D2 both worked at the premises where the two assaults had allegedly occurred, a nightclub of which both the victims were customers
        
        On appeal, D1 argued that it was bad in law to charge two different people in one indictment with two different offences
        
        Offenders could properly be joined in one indictment only as principals said to have jointly committed one offence, or as principals and accessories
        
        A five-judge Court of Appeal extensively reviewed the authorities, and (in a judgment given by Sachs J) reached the following conclusions:
        
        Questions of joinder, whether of offences or offenders, are 'matters of practice on which the court has, unless restrained by statute, inherent power both to formulate its own rules and to vary them in the light of current experience and the needs of justice'
        
        Since joinder of offenders is merely a matter of practice, errors in the application of the relevant rules, though amounting to an irregularity in the proceedings, will not deprive the trial court of jurisdiction. Consequently
        
        The Court of Appeal is entitled to dismiss an appeal against conviction advanced on this ground if there has been no miscarriage of justice and especially where there has been a failure by the defence to object to the joint trial
    - - An indictment may be amended at any stage of a trial, whether before or after arraignment
- - - - The court may order a separate trial of any count or counts of such indictment
- - - - The first limb is clearly satisfied if the offences alleged in counts joined in one indictment arose out of a single incident or an uninterrupted course of conduct
        
        Joinder where One Offence is a Pre-condition of the Second
        
        CrimPR 3.29(4), is not restricted to offences that were committed contemporaneously or substantially contemporaneously with each other,
        
        But extends to situations where later offences would not have been committed but for the prior commission of an earlier offence
        
        For example, where the appellants were charged jointly in counts 1 and 2 with affray and assault occasioning actual bodily harm, and W alone was charged in count 3 with attempting to pervert the course of justice
        
        This third count related to an attempt by W to persuade the witness to counts 1 and 2 to 'modify' his evidence
        
        Guidance as to the Exercise of the Discretion
        
        Because severance of the trial of jointly indicted accused is a matter of discretion
        
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        Where the accused are charged in a joint count, the arguments in favour of a joint trial are very strong
        
        These arguments include:
        
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        There is no obligation to order severance simply because the evidence in question might prejudice the jury against D2
        
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        And should consider especially how far an appropriate direction to the jury is really likely to ensure that they take into account the evidence only for its proper purpose of proving the case against D1
        
        Where a joint trial of numerous accused would lead to a very long and complicated trial
        
        The judge should consider whether a number of shorter trials, each involving only some of the accused, might make for a fairer and more efficient disposition of the issues
        
        This reason for severance is tied up with the rule against overloading indictments
        
        On appeal it was submitted that count 3 did not arise from the same facts as counts 1 and 2
        
        The phrase 'founded on the same facts' does not mean that for charges to be properly joined in the same indictment
        
        The facts in relation to the respective charges must be identical in substance or virtually contemporaneous
        
        The test is whether the charges have a common factual origin
        
        If the charge described by counsel as the subsidiary charge is one that could not have been alleged but for the facts which give rise to what he called the primary charge
        
        Then it is true to say for the purposes of that those charges are founded, that is to say have their origin, in the same facts and can legitimately be joined in the same indictment
        
        If W had not been involved in the violence which gave rise to the charges of assault and affray, he would have had no motive for offering the witness a bribe
        
        It followed that all three counts had a common factual origin and were properly joined in one indictment
        
        A factual connection between the counts is established by a coincidence of time and place
        
        It is irrelevant that the accused's explanation is different for each offence
      - Where the indictment against D was held to be properly joined where it contained counts for arson and murder relating to the same fire)
- - - - The procedure for applications for joint trials
      - The aim of these rules is to replace areas of earlier dispute about the validity of indictments and trials conducted pursuant to them wherever practicable
        
        The circumstances in which the prosecution may lawfully join two or more counts against one accused in a single indictment are prescribed
      - The court may order separate trials unless 'the offences to be tried together
      - Are founded on the same facts, or
      - Form or are part of a series of offences of the same or similar character'
      - That this is an exercise of the court's discretion in this respect, as set out in the Indictment Act 1915, s. 5(3), is underlined by the amendment
      - Then in force, from a direction that the court must sever to a power that it may do so
        
        Application of this Principle
        
        Although they are not intended to be exhaustive, examples to justify severance might include the following:
        
        The number and/or complexity of the counts
        
        This may result in difficulties for a jury in disentangling evidence on one count from that on the other count or counts
        
        In this regard, special considerations govern the trial of counts for sexual offences
        
        The fact that D wishes to give evidence in his or her own defence on one of the counts but not on the others is not, in the normal case a sufficient reason for severance
        
        Even though non-severance will oblige D to choose between not testifying at all and being exposed to cross-examination about all the charges
      - CrimPR 3.29(4) now states:
      - Where the same indictment charges more than one offence
      - The court may exercise its power to order separate trials of those offences if of the opinion that—
      - The defendant otherwise may be prejudiced or embarrassed in his or her defence
      - For example, where the offences to be tried together are neither founded on the same facts nor form or are part of a series of offences of the same or a similar character); or
        
        For any other reason it is desirable that the defendant should be tried separately for any one or more of those offences
    - - Whether the offence is triable either way or triable only on indictment
      - The accused's first appearance will be in a magistrates' court