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Voluntary Bills of Indictment

This Guidance was last updated 20th November 2007

Principle

(Archbold 1-65)

In the vast majority of cases, bills of indictment charging indictable offences are preferred following committal for trial, notice of transfers or where the person charged has been sent for trial under s51 CDA 1998.

Exceptionally, bills are preferred with the consent of a judge of the High Court.

Section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 allows the preferment of a bill of indictment by the direction or with the consent of a judge of the High Court. Bills so preferred are known as "voluntary bills".

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Authority Levels

In such cases, an application for consent to prefer a voluntary bill must be sought from the CCP (or equivalent), and must be signed by them, the Head of the Trial Unit, or an officer designated by them.

Prosecutors should note that the preferment of a voluntary bill is an exceptional procedure. Consent to prefer such a bill of indictment should only be given where:

  • good reason to depart from the normal procedure is clearly shown; and;
  • where the interests of justice, rather than considerations of administrative convenience, require it.

A voluntary bill should not be sought solely to deprive a defendant unjustifiably of his/ her right to committal proceedings.

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Preparing the Application

There are standard forms to be used to cover the various situations in which application may be made for a voluntary bill. They are set out in the National Forms Register: - Forms V.B.1 - V.B.

The procedure for obtaining a voluntary bill is set out in rules 6 to 11 of the Indictments (Procedure) Rules 1971. ) (Archbold 1-226)

The Rules are exacting, in that the prosecuting authority applying for a voluntary bill must not only supply to the judge or the High Court the evidence which is to be relied on, but also the reasons why the application is being made.

The Rules have been subject to various practice directions, the latest of which took effect on 2 August 1999. See para. 3 (Practice Direction (Crime: Voluntary Bills of Indictment) 1999 2 Crim.App.R. 442) ( Archbold 1-227)

(Voluntary Bills of Indictment: Procedure to be adopted by Prosecuting Authorities)

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Procedure

Applications by the Crown Prosecution Service for voluntary bills are governed by the 1971 Rules, and the practice directions and the guidance issued by the Attorney-General.

The guidance directs prosecuting authorities for England and Wales seeking judicial consent to the preferment of voluntary bills, to follow certain procedures:

  • to give notice to the prospective defendant that such application has been made;
  • at about the same time, to serve on the prospective defendant a copy of all the documents delivered to the judge (save to the extent that these have already been served on him);
  • to inform the prospective defendant that he may make submissions in writing to the judge provided that he does so within 9 working days of the giving of notice under (1) above.

Applications for such consent must not only comply with each paragraph of the Indictments (Procedure) Rules 1971 but must also be accompanied by:

  • a copy of any charges on which the defendant has been committed for trial;
  • a copy of any charges on which his committal for trial was refused by the magistrates' court;
  • a copy of any existing indictment which has been preferred in consequence of his committal;
  • a summary of the evidence or other document which
    • identifies the counts in the proposed indictment on which he has been committed for trial (or which are substantially the same as charges on which he has been so committed), and
    • in relation to each other count in the proposed indictment, identifies the pages in the accompanying statements and exhibits where the essential evidence said to support that count is to be found;
  • marginal markings of the relevant passages on the pages of the statements and exhibits identified under 2(d)(ii) above.

These requirements should be complied with in relation to each defendant named in the indictment for which consent is sought, whether or not it is proposed to prefer any new count against him

Prosecutors are reminded that these procedures should be followed unless there are good grounds for not doing so, in which case prosecutors will inform the judge that the procedures have not been followed and seek leave to dispense with all or any of them. Judges have been advised they should not give leave to dispense unless good grounds are shown.

Any application should be sent to the judge by post or by personal delivery to his/ her clerk.

The defendant's solicitors must be given notice of the application and told of their rights to make representation as set out in the Practice Direction and associated note set out above. See National Forms Register Form V.B. 6

A judge to whom application for consent to the preferment of a voluntary bill is made will of course wish to consider carefully the documents submitted by the prosecutor and any written submissions made by the prospective defendant, and may properly seek any necessary amplification.

The judge may invite oral submissions from either party, or accede to a request for an opportunity to make such oral submissions, if the judge considers it necessary or desirable to receive such oral submissions in order to make a sound and fair decision on the application. Any such oral submissions should be made on notice to the other party, who should be allowed to attend.

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Circumstances When Voluntary Bills of Indictment should be Preferred

There are several circumstances where an application for a voluntary bill might be desirable:

  • following the committal of some defendants, other defendants are charged and Prosecutors wish to join them together for trial on the same indictment without having the delay of committal proceedings, usually because the date set for the trial of the committed defendants is imminent. See National Forms Register Form V.B. 1.
  • the magistrates have refused to commit, and Prosecutors believe that they were wrong in doing so. See National Forms Register Form V.B. 2 Brookes v DPP (1994), which states that a preferment of a voluntary bill, where a charge has been dismissed at committal proceedings, requires that the decision of the magistrates should be treated with the greatest respect.
  • the magistrates have refused to commit, and new evidence becomes available. See National Forms Register Form V.B. 3
  • after committal, new evidence is obtained and Prosecutors wish to add counts to the existing indictment which cannot be founded on the evidence served for committal or as the Crown's case, or, for example, a victim dies after the assailant has been committed for trial for an assault. See National Forms Register Form V.B. 4
  • when, for technical reasons, the defendant may be discharged after committal and before arraignment. See National Forms Register Form V.B. 5
  • There may be circumstances which arise during the course of a trial when Prosecutors may need to prefer a new bill of indictment, for example, if counts have been wrongly joined on one indictment and there should have been two, then the indictment is invalid. In this case:
    • Prosecutors should ask the judge for his/her consent for Prosecutors to prefer two new indictments out of time and then ask him/ her to stay the original, See R v Follett (1989) 88 C.A.R. 310,(Archbold 1-207)
    • If the judge declines to give consent for the preferment of new indictments, Prosecutors should ask to be allowed to amend the existing indictment so as to delete the mis-joined count(s) and proceed only on the remaining one(s). See R v Newland (1988) 87 C.A.R. 87, Archbold 1-161
    • in order then to proceed with the deleted count(s), Prosecutors would need to commence new committal proceedings or apply to a High Court Judge for consent to prefer a voluntary bill.
    • if the judge declines to give consent both to preferment out of time and also to amendment and is determined to quash the invalid indictment, Prosecutors will need to start the proceedings afresh. Whether at this stage it is by new committal proceedings or by voluntary bill application will depend upon the circumstances then applying in each individual case.

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