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Rape and Sexual Offences:           Chapter 17: Indictments

Contents:

See Legal Guidance Drafting Indictments

For guidance on charging rape and sexual offences see Chapter 2 of this legal guidance

  • Prosecutors are reminded of paragraph 6.1 of the Code for Crown Prosecutors, on the selection of charges. It is important to apply the same principles when drafting the indictment. Counts on the indictment must:
    a) Reflect the seriousness and extent of the offending supported by the evidence;
    b) Give the court adequate powers to sentence and impose appropriate post-conviction orders; and
    c) Enable the case to be presented in a clear and simple way.
  • Where there is an ABE (Achieving best Evidence) interview the best way to ensure the indictment reflects the extent of the defendant's offending is by watching the DVD and noting down every allegation to which the complainant refers.
  • Prosecutors should specify in any count of rape whether the vagina, anus or mouth was penetrated.

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Historic cases

Real care needs to be taken when drafting indictments in historic cases because of the different offences and sentencing provisions applicable at different times. See Chapter 2h above for guidance on the most commonly charged offences from the Sexual Offences Act 1956 and Indecency with Children Act 1960.

The police frequently receive reports of historic sexual offending, often involving abuse over a number of years within a family, at a school or in residential care homes. A pattern of misconduct may have been established with an escalation from sexual assault, perhaps including touching over and then under clothing, to oral sex and full sexual intercourse. There may also be multiple complainants, groomed at different times by the defendant, often following a similar pattern of abuse.

 It is now widely accepted that delay in reporting is not indicative of a false allegation and prosecutors should be proactive in encouraging the police to investigate thoroughly to uncover any available supporting evidence. Not surprisingly victims may have problems recalling the precise details of each and every incident, especially in relation to dates. This poses a particular challenge to prosecutors drafting the indictment.

In R v John Hartley [2011] EWCA Crim 1299 the Court of Appeal reduced the appellant's sentence on appeal in a case involving historic child abuse where the two counts on the indictment did not support a course of conduct as suggested by the evidence. The Court then considered: ''whether any general assistance might be given to the framing of indictments''. Concluding that a general statement was not possible they said: ''Everything in reality depends on the facts of the individual case, on what is alleged and on what issue is raised by the defendant''. They then suggested:

''The problem of which this case is an example can normally be dealt with by the framing of an indictment which does not contain an enormous amount of counts but does contain sufficient to enable the judge to pass sentence on a basis which sufficiently represents what really happened. Generally it is necessary for those who are framing indictments to pay attention to any issues flagged up by what the defendant has said either in interview with the police or later in a defence statement. Ordinarily we would suggest where there is simply a complaint of a course of conduct over a period of months, often years, more than a single count for each period is usually appropriate, although one per year may well suffice if the alleged period is extended. But the overall principle is simply that regard must be had in an intelligent way to the possible views of the case at which a jury might arrive and to the position of the judge in due course should there be convictions.'

Specific Counts

These should be used to reflect particular occasions (as in the examples provided by the Court of Appeal in Hartley: ''the time the vase broke'', or ''the time we went by train to Brighton''). It is good practice to use specific counts for the first and last time the complainant was abused and for incidents that can be accurately dated or described (perhaps coinciding with starting a new school, moving house, around the time of a sibling's birth or some other notable event). Specific counts provide the key planks in the prosecution's case.

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Multiple incident, or ''course of conduct'' counts

The Criminal Procedure (Amendment) Rules 2007 permits the use of a single count that alleges more than one incident of the same offence. Part 14.2(2) of the Criminal Procedure Rules 2010 applies. In dispensing with the previous rule against duplicity the Criminal Procedure Rules Committee took account of the situation where a victim has been repeatedly assaulted in the same way over a period of time. The committee recognised that the use of a few sample counts could potentially give a misleading impression about the extent of the abuse from the victim's perspective.

Counts alleging multiple offending are not appropriate when:

  • The offending straddles periods when different legislative, including sentencing, provisions applied.
  • The defendant raises different defences in relation to different incidents rather than one defence (such as a blanket denial) in relation to all.

The Consolidated Criminal Practice Direction at IV.34.12 states that where: ''the complainant is able to identify specific incidents of the offence by reference to a date or other specific event, but alleges that in addition there were other incidents which the complainant is unable to specify, then it may be desirable to include separate counts for the identified incidents and 'multiple incidents' count or counts alleging that incidents of the same offence occurred 'many' times. Using a 'multiple incidents' count may be an appropriate alternative to using 'specimen' counts in some cases where repeated physical or sexual abuse is alleged''.
In Hartley (see above) the Court of Appeal drew attention to: ''the necessity that the result'' of any trial, ''is not a verdict which it is impossible to interpret'', and advised: ''In the often encountered case of allegations of a course of conduct over a long period where it is a possible conclusion that there was but a single incident, we suggest that it would normally be appropriate to consider including not only a course of conduct count but also a single count in relation to the same period so that the basis of any verdict is clear''.
''On occasions between (date) and (date) '' is an appropriate form of words to be used in a course of conduct count. Some prosecutors record on the indictment either at the beginning or end of the count that is a 'multiple incident' or 'rolled up' count under Part 14.2(2).

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Age

In many offences under the Sexual Offences Act 1956 and the Sexual Offences Act 2003 proof of the victim's age is essential. Where it is necessary to state age then this must be stated in every count.

Failure to state a complainant's age can result in the judge's sentencing powers being reduced. For example in a case of buggery prosecuted under the 1956 Act it may make the difference between a maximum sentence of two and ten years.

Where consistency with the evidence permits, restricting individual counts in relation to child victims to offences between one birthday and the next is tidier and avoids mixing up different ages.

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