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Drafting the Indictment

Principle

The indictment is the document containing the charges against the defendant for trial in the Crown Court. 

This chapter provides general guidance on the law and procedure in respect of drafting indictments. 

For guidance in relation to charging practice and the drafting of particular counts for specific offences you should refer to that part of the Legal Guidance that relates to specific offences. 

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Responsibility

Preparation of the draft indictment is the reviewing lawyer's responsibility.  It is only in complex or sensitive cases that counsel for the prosecution should be asked to draft the indictment. 

The reviewing lawyer is responsible for the content of the indictment unless that lawyer is a Crown Prosecutor acting under supervision and is precluded from making the relevant casework decisions. 

If a Crown Prosecutor or Associate Prosecutor acting under supervision prepares the draft indictment, the  supervising lawyer has the ultimate responsibility. 

The draft indictment must be prepared at an early stage of the Crown Court case preparation process.  Only be in exceptional circumstances should it need to be re-drafted.   

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Rules

The Indictment Rules 1971 have been revoked and (by and large) incorporated into the Criminal Procedure Rules 2010 (CPR 2010). 

The form and content and the service of an indictment are governed by Rule 14 of the CPR 2010. 

Further guidance is contained in the Consolidated Criminal Practice Direction Part IV.34.   

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Form

Rule 14.2 requires that an indictment must be in one of the forms set out in the Consolidated Criminal Practice Direction  and must contain:

  • one or more 'counts'
  • 'particulars' of the conduct alleged 

A count is a statement of the offence that describes the offence in ordinary language, and identifies any legislation that creates it.

The counts must be numbered consecutively. 

The particulars must make it clear what the prosecutor alleges against the defendant. 

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Content

Offences

Rule 14.2 specifies that an indictment may contain any count charging substantially the same offence as one:

  • for which the defendant was sent for trial; or
  • on which the defendant was committed for trial; or
  • specified in a notice of transfer given by the prosecutor; or 
  • based on the prosecution evidence already served, and which may be tried by the Crown Court.

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Length

The type and number of counts to be included on the indictment will depend on an assessment of the evidence and the nature of each particular case. 

The counts in an indictment must be only those supported by the evidence, in accordance with the requirements of the Code for Crown Prosecutors

Sufficient counts must be included in the indictment to reflect the full criminality alleged and thereby enable the sentencing judge, in the event of conviction, to impose a sentence that properly reflects that criminality. 

It will rarely be necessary for all the alleged instances of offending to be indicted in order to reflect the full criminality demonstrated by the evidence. 

It may at times, however, be appropriate to make use of sample counts as permitted by sections 17- 21 of the Domestic Violence, Crime and Victims Act 2004. 

It will never be appropriate to include more counts than are necessary in order to encourage a defendant to plead guilty to a few.  Equally it will never be appropriate to include a more serious count in the indictment in the hope that this will encourage the defendant to plead guilty to a less serious count (paragraph 6.3 of the Code for Crown Prosecutors). 

The indictment should not be overloaded with an unnecessarily large number of counts.  See Consolidated Criminal Practice Direction Part IV.34.3

You should avoid trivial counts that add little, but in fact detract from the really serious nature of the case.  See R v Ambrose [1973] 57 Cr.App.R.538; R v N; R v D; R v L (Times law Reports 11th May 2010). 

In  R v N; R v D; R v L  the Lord Chief Justice (Lord Judge) provided a warning against unnecessary counts on an indictment and a helpful checklist for prosecutors.  He said the drafting of an indictment required close attention to:

  • the realities of the case - and none at all to the theoretical legal possibilities which might arise
  • the criminality involved
  • the evidence to support the allegation
  • the avoidance of duplication; and 
  • the risk of unnecessary complications for both the jury and the judge

In cases with a large number of defendants and complicated issues (for example, large public order cases) it may be desirable for there to be separate trials at the Crown Court.  In such cases, it may well be appropriate to divide the case into smaller parts by drafting two or more indictments and to prepare two or more Crown Court packages.

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Multiple offending

An indictment may contain more than one count if all the offences charged are:

  • founded on the same facts
  • form, or are part of, a series of offences of the same or a similar character.

An indictment may contain any count charging substantially the same offence as one specified in:

  • the notice of the offences for which the defendant was sent for trial or committed for trial; or 
  • a notice of transfer given by the prosecutor

An indictment may contain any other count (based on the prosecution evidence already served) that the Crown Court may try (Rule 14.2 CPR 2010. 

In multiple offending cases it will usually be sufficient for the counts on the indictment to reflect the overall period during which the offences occurred (as well as any variation in the type of offence).   

In cases involving multiple sexual offending it would usually be sufficient to indict three counts over each year for each type of offence that was committed, (although this is not intended to set a hard and fast rule). 

In cases involving a large number of thefts or fraud of small sums of money, the total sum proved to have been stolen or obtained is often an important factor in sentencing.  The period over which the offences occurred may also be a significant indicator of the overall criminality. 

Where the issue is the same across a number of separately identifiable appropriations, it may be acceptable to charge a series of continuous offences, each covering a part of the overall period; see Barton v DPP [2001] EWHC Admin 223 as approved in R v Tovey and Smith [2005] EWCA Crim 530. 

The Barton approach should not be stretched further to cases where the evidence for the prosecution and the defence raises different issues in relation to different counts. 

A defendant who pleads guilty to specific counts on an indictment, but who accepts that his/her criminality is wider than those specific counts reveal may be sentenced on that wider basis. This may be as a result of formally asking for offences to be taken into consideration, or on a written basis of plea, or other clear indication. 

Prosecutors will rarely be able to be sure that a defendant will take such a course at the time of lodging the indictment.    Therefore, even in cases where it is thought that a defendant may well take such a course ultimately, the indictment should nevertheless include sufficient counts to reflect the defendants overall alleged criminality following the principles set out above.

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Sample counts

Sections 17- 21 of the Domestic Violence, Crime and Victims Act 2004 provide for the prosecution of certain cases of multiple offending in a two-stage trial process.  (See: Prosecuting multiple offending: two stage trials elsewhere in legal guidance). 
The second stage enables the judge to determine questions of guilt in respect of offences linked to a sample count on which the defendant has been convicted.   

A specific form of indictment is prescribed by the Consolidated Criminal Practice Direction (click here for details).

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Acceptance of guilty pleas

Please refer to the Attorney General's Guidelines on the Acceptance of Pleas (2009) in respect of acceptance of guilty pleas  after charge in all cases.   

For advice on written plea agreements in serious fraud cases, please refer to the Director's Guidance to accompany the Attorney General's Guidelines on Plea Discussions in cases of Serious or Complex Fraud. 

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Consents

When drafting a count for an offence with which you are not completely familiar, you should the section on Consents to Prosecute elsewhere in legal guidance to check whether specific consent is required.  

Do not rely solely on the schedule linked to that guidance, but check the statute in each instance as to whether the consent of the Attorney-General or  DPP is required. 

If the consent of the DPP is required you should check whether the consent must be given personally or whether a Crown Prosecutor can give consent on behalf of the DPP. 

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Order of Defendants

In cases involving more than one defendant it is important to bear in mind that, if the case is contested at Crown Court, the defendants will be called to give evidence in the order in which their names appear on the indictment.  

This established Crown Court practice means that a tactical decision may need to be made as to the order of the defendants on the indictment, bearing in mind the evidence and the nature of the case. 

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Description of Persons

The defendant should be described in the indictment by first name(s) and surname.  If the defendant uses an alias the following formula can be used: 'A.B otherwise known as C.D'.  Do not use 'Mr', 'Mrs', or other such titles. 

If the case involves two defendants who are parent and child with the same name, they should be described as 'E.F and E.F the younger'. 

In a case where it is appropriate to refer to a complainant or loser of property then first name(s) and surname should be used. 

Where the name of a person to be included in a count is not known then the formula 'a person unknown' should be used.  The word 'another' may also be used and may be preferable where this word is used in the statute creating the particular offence.

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Age of defendant or victim

The age of the defendant or victim need not be stated unless proof of age is an essential ingredient of the offence.  For example, in many cases involving sexual offences, proof of the victim's age is vital.  (R v Hodgson [1973] 57 Cr.App.R.502.)

Refer to guidance on Rape and Sexual Offences: Indictments, elsewhere in this guidance. 

Where it is necessary to state an age, this must be stated in every count.

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Companies

Trading companies should be described by their proper corporate name or style, whether incorporated or not. 

If there is any doubt as to a company's correct title then the police should be asked to make enquiries.   

In cases of fraud by false representation (or deception for offences before 15 January 2007) a shop assistant or other employee may be involved.  Use the name of the person to whom the representation was made, where possible.  If it is not known, then the company's name may be used. 

When a company is committed for trial the magistrate is required to do so by an order in writing in accordance with section 46 and Schedule 3, Magistrates' Courts Act 1980.  You will need to ensure that such an order is drawn up because, without it, a company cannot be indicted. 

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Property

Ownership/Possession

Where property is in the hands of a bailee, it may be shown as belonging to that person or the person having title.  This is because, for example, theft can mean the taking of goods out of the possession of another.  (See section 5(1) of the Theft Act 1968). 

If property belongs to an unincorporated group of people, it should be shown as such in the particulars of offence without naming the individuals.  Examples include trustees, commissioners, members and officers of clubs. 

If the owner of the property is deceased, it may be shown as belonging to the executor or administrators of the estate. 

If the identity of the owner of the property is not known, it is sufficient to describe it as 'belonging to a person unknown'.

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Description

Property should be described in sufficiently ordinary language to identify it. It is not normally appropriate to use brand names, colours or other adjectives to describe property unless they are essential to identify the property. 

It is good practice to itemise the property: for example '... five rings; two bracelets; three watches'.  When a large quantity of property is involved, it may be grouped according to type rather than listing every item.  It should not be described as, for example '... a quantity of jewellery'.  It would be better to refer to '... 200 items of jewellery'. 

It is incorrect to itemise certain items and then to add '... and other items.'  (R v Yates (1920) 15 Cr. App. R. 15).  If the exact quantity of a particular type of property cannot be ascertained, the appropriate collective term should be used.  

Vague expressions such as 'a quantity of money' or 'a quantity of goods' may fall foul of rule 14.2 CPR 2010 as not making clear what the prosecutor alleges against the defendant.  

It is undesirable that on conviction the record should provide no indication of whether the defendant stole £5 or £5,000.  If the exact amount stolen is unknown then use words such as '... approximately'; or '... valued together at between £300 and £400'

It is not necessary to prove that all items mentioned, for instance, in a theft indictment have been stolen.  Proof of one item only is sufficient (Machent v Quinn [1970] 2 All E.R. 255) although it the jury must be agreed on which particular item was stolen (Brown K 79 Cr App.R.115 CA) and the sentence should relate only to the items proved to have been stolen.

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Value

You should not include the value of the property in the indictment except as required to provide clarity (see Description above), or where value is the essence of the offence: for example in certain offences under the Bankruptcy Act 1914. 

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Date

The date of the offence should be stated in the indictment as accurately as possible.  The date should be the day of the month and the year upon which the act is alleged to have been committed. 

Where the exact date is not known the formula '... on or about.' a specified  date or '... on a day between ...' specified  dates may be used.  

The '... between ...' formula must start with the day before the first day and end the day after the last day on which the offence could have been committed: thus '... on a day between 31st December and 1st February ...' includes the whole of January.

When (and only when) an offence can properly be categorised as 'continuing' the formula '... on divers days between ...' may be used.  

Such offences are exceptions and the formula should be used only with extreme caution as it can give rise to an application to quash for duplicity. 

Offences that may appear to have been committed either continuously or intermittently over a period may in fact be single offences.   Refer to Continuing and Continuous Offences and General Deficiencies later in this section for further guidance. 

When the exact date of commission of an offence is unknown, particular care is required when there has been an increase in penalty during the period specified in the indictment.  Where there is doubt as to whether an offence was committed before or after the date of an increase in penalty, the best option is to have two counts, appropriately worded: R v Cairns [1998] 1 Cr.App.R.(S) 434, CA. 

Care is required when drafting the appropriate counts on indictments where one or more of the offences alleged is a specified offence under Schedule 15 Criminal Justice Act 2003 and spans the commencement date (4 April 2005) of Part V of that Act.  The enhanced sentences provided for by the 2003 Act are operative only for offences found to have been committed on or after the commencement date.   (See Sentencing Dangerous Offenders elsewhere in this guidance and R v Robert Michael S and four others [2007] EWCA Crim 1622. 

In this case, the Court advised that where it could realistically be done, indictments should be drafted to reflect the significance of 4 April 2005.  When it was difficult to produce an indictment that avoided 'straddling' the commencement date, the judge should analyse the evidence and give reasons for concluding whether (or not) an offence was found to have taken place on or after 4 April 2005, and thus whether the dangerous offender provisions might apply. 

For general information about the effect of change in maximum sentence, see Archbold 2011 5-286. 

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Place

In the majority of cases it will not be necessary to refer to the place or location of an offence.  The exception will be cases where place/ location is an essential ingredient of the offence, as with, for example, burglary.  (R v Wallwork [1958] 42 Cr. App. R. 153). 

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Attempts

By virtue of section 6(3) and 6(4) of the Criminal Law Act 1967 it is not necessary to add counts for attempts when the full offences are charged.  Opinion differs as to whether it is never necessary.  Each case should be considered on its merits. 

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Alternatives

It may be necessary to consider whether to include a lesser or alternative count in the indictment.  Such consideration will include whether a lesser or alternative count would be likely to attract a plea of guilty and, if so, whether such plea would be acceptable.  Considerations/views should be recorded on the file. 

Although sections 6(3) and 6(4) of the Criminal Law Act 1967 permit a jury, in certain circumstances, to find a defendant guilty of a lesser or alternative offence, it is preferable to include any appropriate alternative counts in the indictment. 

The reason for this is to avoid reliance on the trial judge or prosecuting counsel in bringing any such alternatives to the jury's attention. 

A number of statutes enable alternative verdicts to be returned in relation to specific offences.  An example is where, on a count for theft, the jury are not satisfied that the defendant committed the offence charged but can convict for the offence of taking a motor vehicle without the owner's consent - section 12(4) of the Theft Act 1968. 

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Duplicity

No single count on an indictment should charge a defendant with two or more separate offences. 

CPR 2010 Rule 14.2(2) provides, however, that:

'... more than one incident of the commission of the 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'.

Nonetheless, common sense, fairness and good practice will sometimes dictate that separate instances of the same offence should be charged separately. 

Duplicity is an error in form, that is, it must be apparent in the wording of the count itself and not appear from a consideration of the evidence: see R v Greenfield (1973) 57 Cr. App. R. 849. 

The most common form of duplicity in an indictment is pleading the offence as having been committed '... on divers days'.  This form is acceptable only for continuing offences.  

Apart from this exception all other offences should be charged '... on a day between ... and ...' or on the specific date when this is known.  (See: Date above for further guidance).

If a count is bad for duplicity then it will be open to the defence to apply at the Crown Court for it to be quashed.  Although it may be possible to save the situation by seeking leave to amend the indictment, this possibility should not be relied upon and every effort should be made to ensure that a count is not duplicitous. 

The following guidelines emerge from the case law:

  • one offence should be charged in one count if it comprises a single act  - even if the offence has more than one victim or involves activities in respect of more than one item of property;
  • where two or more acts of a similar nature committed by one or more defendants are connected in time and place of commission, or by common purpose, they can be charged in a single count;
  • where the wording of the particular statute makes it clear that only one offence is created but provides two or more alternative ways of committing that one offence, then each alternative way should be made the subject of a separate count in the indictment.  The only exception to this is where case law has established that, in a particular case, the placing of alternative ways in the same count will not be regarded as bad for duplicity; and
  • in any case where there is doubt as to whether the language of the particular statute creates more than one offence, it will always be safer to charge two or more counts. 

If it is clear from the evidence that one of the alternative ways of committing an offence is the appropriate one, then the count on the indictment should be drafted accordingly.

Avoid unnecessary alternative counts.

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Continuing and Continuous Offences

There is very real distinction between the two classifications and they must not be confused.

Continuing offences

A continuing offence is one criminal activity that lasts over a period of time.  

Conspiracy is an example of a continuing offence which can be said to be committed by those involved throughout the planning stage.  

A continuing offence can be indicted as taking place '... between ...'  or on '... divers days between ...' two dates. 

If you ask yourself whether the total activity amounts to one offence only and the answer is 'yes', then it is likely that the offence is a continuing one.

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Continuous offences

The concept of a continuous offence is a legal device that permits the charging of a series of offences of the same type in one count.  This applies where it is not possible to state with certainty which particular activity occurred at a particular time. 

For example, in R v Cain (1983) Crim.L.R.802 the defendant had been found in possession of a quantity of goods stolen from his employer over a period of time with no evidence to establish when each item had been taken.  There was nothing wrong with charging all of the items in a single count.  

A continuous offence should be charged as occurring '... between ...' two dates.  The use of '... on divers days ...' is not appropriate and may give rise to an application to quash for duplicity. 

It may be permissible to charge a number of individually identifiable similar charges as one overall count, where the offences involve the same process and the defence case does not distinguish between differing instances.   See Barton v DPP [2001] EWHC Admin 223.  Care will be needed if such a course is taken.

See Joinder below.

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General Deficiencies

The rule here is an extension or variation of the continuous offence principle referred to above.  

The type of case to which the principle applies is where the defendant is responsible for the management or control of sums of money and/or property for which he has a duty at some time to account to another. 

At the time of the accounting a deficiency is seen but it is not possible to say when the defendant stole any particular sum of money or item of property.   In this situation it is appropriate to insert as the date of the offence the accounting date, rather than the dates covering the whole period of the criminal activity alleged.

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Joinder

When drafting an indictment, it is often necessary to consider the question of joinder.  See generally: section 4 of the Indictments Act 1915; and Rule 14.2(3) CPR 2010 which broadly repeats rule 9 of the revoked Indictment Rules 1971. 

There are four categories of joinder to consider.  One or more may be relevant in any particular case.  They are:

  • two or more defendants in one count;
  • different defendants in separate counts;
  • different offences in different counts in one indictment;
  • defendants separately committed for trial. 

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Two or more Defendants in one Count

It is an established rule that all defendants involved in a single offence may be joined in a single count.  This applies not only to principal offenders but also to those who assist or encourage the offence. 

Those defendants, therefore, who aid, abet, counsel or procure the offence should be indicted jointly as principal offenders.   For example, a defendant who acts as a lookout in a burglary committed by another defendant will be indicted jointly with the principal offender. 

Defendants charge jointly can be convicted of separately committing the offence: see DPP v Merriam [1972] 56 Cr.App.R.766. 
Where the principal offender is under a legal disability (for example a disqualified driver) but an aider and abettor is not, the following is suggested:

STATEMENT OF OFFENCE

DRIVING WHILST DISQUALIFIED contrary to section 103(1) of the Road Traffic Act 1988.

PARTICULARS OF OFFENCE

A.B., on 1 January 2009, drove a motor vehicle on a road while disqualified from holding or obtaining a driving licence, and C.D. on the same day aided, abetted, counselled or procured A.B. to commit the said offence.

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Different Defendants in Separate Counts

It is possible for an indictment to include two or more counts which charge different defendants with different offences, even though there is no one count common to all defendants.  However, there must be a sufficient linking factor between the separate offences to justify their joinder in the one indictment: for example, a series of assaults during a gang fight. 

Any number of persons may be charged in one indictment, with reference to the same theft, with having at different times or at the same time handled all or any of the stolen goods, and the persons so charged may be tried together.   See section 27(1) of the Theft Act 1978.  A thief and the handler may be joined in one indictment on the principal. 

When drafting an indictment, bear in mind the possibility of an application at the Crown Court for severance of the counts into separate trials.  Severance may be ordered where the admissibility of the evidence is not the same against each defendant or where the case would otherwise be too long and complicated.  Arguments in favour of a joint trial would include not just a saving of time and money but also that fairness dictates that the same verdict and same treatment be given to the defendants. 

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Several Offences in Different Counts in one Indictment

See Rule 14.2(3) of the CPR 2010

Charges for any offence may be joined in the same indictment if those charges are founded on the same facts or form or are part of a series of offences of the same or similar character. 

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Founded on the Same Facts

The simplest examples are when a single act by the defendant gives rise to several offences and where, in a continuous course of conduct, the defendant commits several offences. 

The offences set out in the counts do not necessarily have to be substantially contemporaneous. If one offence would not have occurred without the prior occurrence of another offence, then it can be said that the offences are founded on the same facts: R v Barrell [1979] 69 Cr. App.R.250. 

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Offences of the same or similar character

For two or more offences to form a series or part of a series of the same or a similar character there must be a connection between them. This must arise from a similarity both in law and in the facts constituting the offence: Ludlow v Met.Pol.Comm. [1970] 54 Cr.App.R.233. 

Two offences may constitute a series: R v Kray [1969] 53 Cr.App.R.569. 

A common element of dishonesty is not sufficient, in itself, to make the offences of a similar character: See R v Harwood [1981] 73 Cr.App.R.168 (conspiracy to defraud clearing banks and handling record equipment). 

For the consequences of misjoinder of offences see Misjoinder later in this guidance. 

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Defendants Separately Committed for Trial

In appropriate circumstances, it is possible and may well be desirable to join together at the Crown Court defendants who have been separately committed for trial: See Consolidated Criminal Practice Direction IV.  34.  2.

The above practice has been extended to cover the situation where the same defendant is committed for trial on different occasions.

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Misjoinder

Misjoinder of counts makes the indictment invalid.  (Rule 14(2) CPR 2010.) In such a case there are a number of alternative remedies:

  • seek leave to prefer two indictments out of time and to stay the original indictment: R v Follett [1989] 88 Cr.App.R.310, and
  • if the judge declined to grant leave to prefer the two indictments, seek leave to amend the existing indictment so as to delete the misjoined count(s) and proceed on the remaining count(s): R v Newland [1988] 87 Cr. App. R. 118;
  • in the circumstances at the second point above, if you wished to proceed with the deleted count(s), you would need to seek a new committal of those counts or to apply to a High Court Judge for a voluntary bill; or
  • if the judge refused leave to prefer indictments out of time or to amend the indictment and determines to quash the invalid indictment, you will need to seek a new committal for all counts or to apply for a voluntary bill. 

For guidance on voluntary bills refer to Voluntary Bills of Indictment elsewhere in Legal Guidance.

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Committal

Draft indictment

A list of charges drawn up in the form of a draft indictment should accompany the committal bundles served on the magistrates' court or the evidence served on the Crown Court in 'sending' or 'transfer' cases.  The draft indictment must be checked by a lawyer before it is included in the committal papers.  

Only in exceptional circumstances should such a draft indictment not accompany the committal bundles or the evidence served on the Crown Court.  There may be situations where, due to the complexity of the case, it is appropriate for a Crown Advocate or a member of the self-employed Bar to settle the indictment after committal, in which case a draft indictment is not necessary, but such occasions should be rare.

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Checking

Applications to the Court to amend the indictment because of error should never be necessary.  It is vital that the draft indictment is checked thoroughly both before and after committal or transfer, and before it is served on the Crown Court.  A defective or inaccurate indictment can lead to a failed prosecution.  

The reviewing lawyer is responsible for the accuracy of the indictment as to form and content and must carry out the checks personally. 

The checking procedure must be observed even in cases where counsel has drafted the indictment.  Counsel is also responsible for form and accuracy of the indictment and should check the indictment before arraignment. 

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Summary offences

The committal bundle should also contain a list of any summary offences to be committed to be dealt with at the Crown Court under section 41 Magistrates' Courts Act 1980 . 

The reviewing lawyer must prepare instructions for the advocate to use at committal proceedings to specify:

  • any changes there have been to the original charges, including new charges;
  • any submissions to be made on plea before venue on any new or substantially altered charges;
  • any summary only offences not to be committed to the Crown Court but to be dealt with by the magistrates. 

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The committal hearing

Where any offence on the draft indictment has not already appeared on a summons, requisition or charge sheet the advocate must lay an information (Rule 7 CPR 2010).   Her Majesty's Courts and Tribunal Service (HMCTS) agreed that the court will accept a new count on the draft indictment as the information for this purpose.   No separate charge sheet need be prepared. 
The court must conduct a plea before venue/mode of trial determination in respect of the new offence. 

Where the draft indictment amends an existing information, the advocate must apply to amend the information.  This is particularly important where the amendment is significant, such as going beyond minor changes to items stolen. 

The advocate must apply to withdraw (or have discharged) any information that does not form part of the draft indictment. 

Please note that the indictment has not yet been 'served' at this stage.   See Service below . 

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Post committal work

Prior to service of the indictment on the Crown court, the draft indictment should be checked again by the reviewing lawyer to ensure that it accurately reflects the offences on which it is proposed to try the defendant and contains no administrative or typographical errors.  Areas should build in checks to monitor quality of drafting and to ensure compliance with Core Quality Standards Monitoring. 

Although in most cases the committal charges will form the basis of the indictment to be served on the Crown Court, there may be times when the draft indictment will change between committal and service as permitted by Rule 14.2 CPR 2010.  Any such changes between committal and service of the indictment must be notified to the PNC Bureau.  See: Changes after committal below for the procedure to follow.

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Service

Legal provisions

Section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 ('the 1933 Act') provides the statutory authorisation for 'preferring a bill of indictment' (now referred to in the Criminal Procedure Rules as 'serving the draft indictment'). 

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Signature

There is no longer any requirement for the draft to be signed by the 'proper officer' of the court in order to convert it into the indictment. 

Section 2 of the 1933 Act was amended by section 116 Coroners and Justice Act 2009 to remove the former requirement for signature.  This amendment reversed the effect of R v Clarke and McDaid  [2007] UKHL 8 that an unsigned indictment was a nullity.

Rule 14.1 Criminal Procedure Rules 2010 still requires the officer of the court to sign and add the date of receipt on the indictment (unless the Crown Court directs otherwise) but this is for the purposes of court administration rather than anything that can affect the validity of the indictment.  (See: Amendments below)

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Time limits

Rule 14.1(1) requires the prosecutor to serve a draft indictment on the Crown Court not more than 28 days after:

  • service of the evidence in a case where the defendant is sent for trial;
  • the committal or transfer of the defendant for trial;
  • a High Court judge gives permission to serve a draft indictment (voluntary bill); or 
  • the Court of Appeal orders a retrial.

The Crown Court may extend the time limit, even after it has expired.

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Method of service

Rule 4.6 CPR 2010 allows for service of the indictment by e-mail.  This is now the standard method for service of indictments. 

The indictment should be served, in the correct form, as an attachment to an e-mail to a group inbox for the relevant Crown Court.  Please consult your local Crown Court or CPS business manager for details of the correct address.

A document sent by e-mail is deemed by Rule 4.10 CPR 2010 to have been served on the next business day after it was transmitted.  A 'business day' does not include a day on which the court office is closed. 

Where an indictment is served by e-mail there is no need to serve a paper copy.  It is advisable, however, to retain on the file a copy of the e-mail to which the indictment is attached, in case it is necessary to prove the date of service.

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Changes after committal

The CPS must:

  • notify the relevant Police National Computer (PNC) Bureau by e-mail of any significant difference between the served indictment and the charges committed or sent; and 
  • send a copy of the indictment as served.    

The reason for this procedure is to ensure that PNC accurately reflects the offences for which the defendant is before the court. 

This is not an idle point - the PNC is an essential tool for those responsible for maintaining public safety.  If it is inaccurate, critical decisions may be wrongly made through reliance on inaccurate information. 

Not every minor change - such as amendments to details of items stolen - needs to be notified.  You should, however, bear in mind the overall importance of ensuring the integrity and completeness of the PNC record.

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Effect of service

Once the draft indictment has been served, it immediately becomes the indictment 'for all purposes' (section 2.1 of the 1933 Act as amended). 

It is important, therefore, that the CPS file is endorsed so that it is clear which is the current indictment.

Any changes to the indictment after service will need to be dealt with by seeking leave to amend the indictment.  This must be done either at the Plea and Case Management Hearing or at a further hearing.  

Once the indictment has been served, the Crown Court becomes responsible for notifying PNC of any further amendments to the indictment.

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Amendments

Amending an indictment, by adding or amending counts, requires an express order of the court to comply with s5(1) of the Indictments Act 1915.  Where no formal order has been made, a count has not been properly added or amended.  Any subsequent proceedings in respect of that count are a nullity.  Failure to obtain formal leave to amend may therefore lead to an otherwise proper conviction being quashed.  (R v Leeks [2009] EWCA Crim 1612.)

The Court of Appeal in Leeks was not prepared to accept that leave to amend could be deemed from the fact that the prosecution and defence advocates and the trial judge had all proceeded as if the count had been properly added to the indictment.  The court did not, however, give any guidance on what (in the absence of an endorsement on the indictment) constituted an order.   

All CPS staff involved with the preparation and conduct of proceedings on indictment must therefore be vigilant to ensure that a formal order for leave to amend an indictment is always obtained. 

The advocate must make an application for leave to amend at the earliest opportunity and obtain an unequivocal order from the court and ensure that the brief is endorsed accordingly.  Where appropriate the advocate should check that the indictment has been endorsed in accordance with section 5(2) of the Act, as this provides clear evidence that the order has been made. 

The CPS file must be endorsed appropriately.  A copy of the endorsed amended indictment should be obtained from the court office. 

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Quashing

It is open to the prosecution or the defence to apply to the judge at the Crown Court to quash a count or complete indictment.

The effect of a successful application is that the defendant may not be tried on the quashed count or the quashed indictment.  This does not mean that he is acquitted and further proceedings may be brought for the same offence. The further proceedings would have to be by way of fresh committal or a voluntary bill. 

A motion to quash can be made in the following circumstances:

  • where the indictment is bad on its face, for example because of duplicity; or
  • where a count in the indictment has been preferred otherwise than in accordance with section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933; or
  • the indictment contains a count for an offence in respect of which the defendant was not committed for trial and the committal statements do not disclose a case to answer for that offence: R v Jones [1974] 59 Cr. App. R. 120

Provided that a count on the indictment follows a committal charge, the judge is not entitled to look beyond the indictment at the evidence.  The only exceptions to this are:

  • when the motion to quash is on the basis that the offence is not disclosed in the committal papers and there has been no committal for trial for that offence; or
  • when the motion is on the basis that a count is bad for duplicity. 

For further guidance on drafting indictments for particular offences see the combined index to Legal Guidance on Infonet. 

For information on summary offences that may be included on the indictment see section 40 Criminal Justice Act 1988.  For the power of the Crown Court to deal with summary offences where either way offences are committed for trial or indictable only offences are sent for trial, see section 41 Criminal Justice Act 1988.

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