Drafting the Indictment

|Legal Guidance

Principle

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

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

For guidance on charging practice and the drafting of particular counts for specific offences you should refer to the relevant Legal Guidance for that offence. 

Sending

Magistrates’ Court powers to send a defendant to the Crown Court for trial are contained in section 51 of the Crime and Disorder Act 1998.

The sending procedure is set out in Part 9 CrimPR.

In making decisions on venue, Prosecutors should note the Sentencing Council Allocation Guideline. This requires either way offences to be tried summarily unless:

  • The outcome would clearly be a sentence in excess of the Court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or
  • Where the case involves unusual legal, procedural or factual complexity.

The Court should bear in mind its power to commit for sentence after a trial and may retain jurisdiction notwithstanding that the likely sentence might exceed its powers.

Sending for Trial

An either-way/summary offence charged against an adult (s51(3) (b) and 51(11)) or youth (s51A(5) and 51A(9)) can be sent for trial if it appears to be related to an indictable or either way offence sent for trial. A summary offence can only be sent if it is punishable with imprisonment or disqualification from driving.

If the person is convicted on the indictment, a plea can be entered to the summary offence in the Crown Court. If the person pleads guilty, he can be sentenced but only in a manner in which a Magistrates' Court could have dealt with him. If he does not plead guilty, the powers of the Crown Court cease. The Court can dismiss the offence if the Prosecution offers no evidence or the court can remit the offence for trial in the Magistrates’ Court - para 6 Sch.3 Crime and Disorder Act 1998.

However, if the summary offence is one to which s40 CJA 1988 applies (see above), the Crown Court can try the offence and sentence in a manner in which the Magistrates’ Court could have dealt with him.

By example, Common Assault can be tried in the Crown Court as it falls within s.40 CJA 1998. Assaulting a Police Constable in the Execution of his Duty, contrary to s.89 Police Act 1996, does not fall within s.40 CJA 1998 and therefore the Court will have more limited powers as detailed above.

Section 89 should be charged where appropriate and remitted to the Magistrates’ Court for trial - R v Adgyei [2016] EWCA Crim 1405.

Draft indictment generated electronically on sending for trial

After sending, CrimPR 9.5 requires the Magistrates’ Court to send a notice to the Crown Court. That notice will include details of each offence sent for trial in accordance with CrimPR 9.3.

CrimPR 10.3 (1) (c) refers to electronic arrangements that may be brought into effect. Where such arrangements are introduced, Court users will be informed (and the fact will become apparent on the sending for trial). Where those arrangements exist and the notice is sent to the Crown Court, the offences sent for trial will constitute a draft indictment. This draft indictment is preferred before the Crown Court and becomes the indictment immediately before the first count is read to or placed before the Defendant to take the Defendant’s plea – CrimPR 10.2(5)(b)(i). The Prosecutor may substitute for any count an amended count to the same effect and charging the same offence before the draft indictment is preferred – CrimPR 10.3(2)(c).

See CrimPD 10A.6, 10A.7 and 10A.10 for further details on the above.

Joinder of summary offences – s.40 Criminal Justice Act 1988

The summary offences listed below may be joined in an indictment if the offence is founded on the same facts or evidence as a count charging an indictable offence; or is part of a series of offences of the same or similar character as an indictable offence which is also charged (s40 Criminal Justice Act 1988)

  • Common assault;
  • Assaulting a prisoner custody officer – s.90(1)Criminal Justice Act 1991;
  • Assaulting a secure training centre custody officer – s.13(1) Criminal Justice and Public Order Act 1994;
  • Assaulting a secure college custody officer - paragraph 14 or 24 of Schedule 10 Criminal Justice and Courts Act 2015;
  • Taking motor vehicle or other conveyance without authority etc. – s.12(1) Theft Act 1968;
  • Driving a motor vehicle while disqualified – s.103(1)(b) Road Traffic Act 1988;
  • Criminal damage etc. which would otherwise be triable only summarily by virtue of s.22(2) Magistrates’ Courts Act 1980

The summary offence is to be tried as if it were an indictable offence. However, the Crown Court can only deal with the offender in a manner in which a Magistrates' Court could have dealt with him (s.40(2) CJA 1988).

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.

Responsibility

Preparation of the draft indictment is the Reviewing Lawyer's responsibility. Building an indictment follows on from a careful review of the evidence after charge. In complex or sensitive cases counsel’s input to the review may assist in drafting the indictment. The indictment should normally be created using the Compass Case Management System that contains count precedent codes for most offences.

Preferment and Service

The Indictment Rules 1971 have been revoked and incorporated into Part 10 of the Criminal Procedure Rules (CrimPR). 

Section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 provides statutory authorisation for ‘preferring a bill of indictment’. A bill of indictment (or draft indictment) can be preferred in accordance with CrimPR 10.3, 10.4, 10.5, 10.6 and 10.8.

  • CrimPR 10.3 - Draft indictment generated electronically on sending for trial
  • CrimPR 10.4 - Draft indictment served by the prosecutor after sending for trial
  • CrimPR 10.5 Draft indictment served by the prosecutor with a High Court judge’s permission (voluntary bill). The Prosecutor must serve the draft indictment on the Crown Court officer not more than 28 days after the High Court judge’s decision – CrimPR 10.5. Such service constitutes preferment before the Crown Court and becomes the indictment - CrimPR 10.2(5)(b)(ii).
  • CrimPR 10.6 Draft indictment approved by the Crown Court with deferred prosecution agreement
  • CrimPR 10.8 Draft indictment served by the prosecutor at the direction of the Court of Appeal. Where the Court of Appeal orders a retrial, the Prosecutor must serve a draft indictment on the Crown Court officer not more than 28 days after that order
  • CrimPR 10.8. Such service constitutes preferment before the Crown Court and becomes the indictment - CrimPR 10.2(5)(b)(ii).

CrimPR10.2.5(b) clarifies that the draft indictment becomes the indictment

  • Where 10.3 applies - immediately before the first count is read to or placed before the defendant to take the defendant’s plea under rule 3.24(1)(c) – see R. v J R. v Burton (Ricky Sean) [2018] EWCA Crim 2485 below.
  • Where 10.4, 10.5 and 10.8 applies - when the prosecutor serves the draft indictment on the Crown Court officer
  • Where rule 10.6 applies - when the Crown Court approves the proposed indictment,

CrimPR 10.7 is not in force because it refers to an overall time limit that has not been commenced.

Draft indictment served by the Prosecutor

The Prosecution must serve evidence of its case no more than:

  • 50 days after sending for trial, where the defendant is in custody.
  • 70 days after sending for trial, where the defendant is on bail.

(Regulation 2 Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005)

Where CrimPR 10.3 (Draft indictment generated electronically on sending for trial) does not apply, the Prosecutor must serve a draft indictment on the Crown Court officer no more than 28 days after service of Prosecution evidence - CrimPR 10.4 (2). The Crown Court may extend that time limit - CrimPR 10.2(8). In every case a draft indictment must be served at least 7 days before the plea and trial preparation hearing, whether the time prescribed by the rule will have expired or not - CrimPD 3A.16. Such service constitutes preferment before the Crown Court and becomes the indictment - CrimPR 10.2(5)(b)(ii).

Method of Service

CrimPD 10A.8 notes that in most instances service will be by electronic means, usually by making use of the Crown Court digital case system to which the prosecutor will upload the draft (which at once then becomes the indictment, under s.2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 and CrimPR 10.2(5)(b)(ii)).

Amendments

Amending an indictment, by adding or amending counts, requires an express order of the Court to comply with s5(1) Indictments Act 1915. Where no formal order has been made, a count has not been properly added or amended.

Amendment has been allowed

  • to add a new count to an indictment before arraignment R. v. Martin [1962] 1 Q.B. 221
  • to add a count reflecting the evidence R. v. Hall [1968] 2 Q.B. 787
  • when it has been preferred under the voluntary bill procedure and does not include a charge in respect of an offence disclosed on the material before the judge who granted leave to prefer the voluntary bill: R. v Wells (Derek) [1995] 2 Cr. App. R. 417
  • to join a defendant who might properly be joined in the indictment: R. v. Ismail , 92 Cr.App.R. 92, CA

Section 2(6ZA) of the 1933 Act provides that if a draft indictment is preferred in accordance with s.2(1) and 2(2), no objection can be taken to the indictment after commencement of trial because of any failure to observe the Rules. This is intended to prevent belated technical objections to the validity of an indictment and the ensuing proceedings.

R v Williams (Malachi Lloyd) [2017] 2 Cr. App. R. 7 confirms that an improperly joined count does not make the indictment a nullity.

This has been confirmed in R. v J R. v Burton (Ricky Sean) [2018] EWCA Crim 2485. The case involved conjoined appeals. Indictments were sent to the crown court and defendants were arraigned at Plea and Trial Preparation Hearings. CPS proposed to amend indictments and notified defence as well as uploading the amended indictments onto the Crown Court Digital Case System. The new indictments were read at commencement of the trials. It was after conviction that it became apparent that no application had been made to amend the original indictment and that there had been no arraignment on the new version.

In holding the indictments on which the trial had proceeded valid, the court observed that s. 2(6ZA) of the 1933 Act provides that if a draft indictment is preferred in accordance with s.2(1) and 2(2), no objection can be taken to the indictment after commencement of trial because of any failure to observe the Rules. CrimPR10.2.5(b) clarifies that the draft indictment becomes the indictment where 10.3 applies - immediately before the first count is read to or placed before the defendant for plea under CrimPR 3.24(1)(c). The indictments had been read before the trial commenced and no objection had been taken. There had been a clear election to proceed with the fresh indictments so the existence of the unamended indictment on which the appellants had been arraigned also did not render the indictment or the proceedings a nullity.

The court warned that its decision did not condone a lax or informal approach to the preferment of draft indictments, or amendments to indictments or arraignments. Uploading draft indictments onto the DCS can lead to confusion and serious error if appropriate steps are not taken to apply to amend existing indictments and/or to ensure rearraignment. The risk of multiple versions and uncertainty is obvious. Prosecution and defence representatives must ensure that steps are taken to regularise the position as the case progresses and, in particular, that the indictment used at trial had received all necessary consideration. It would also be good practice for trial judges to enquire of counsel whether there were any outstanding issues prior to the indictment being read before the jury at trial.

However, if, notwithstanding such obligations and practices, a trial proceeds on the basis of an indictment which had not been properly dealt with, the primary consideration would be the fairness of the trial and the safety of the conviction, not the technical validity of the indictment

All CPS staff involved with the preparation and conduct of proceedings on indictment must 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 s.5(2) of the Act, as this provides clear evidence that the order has been made.

CMS and records must be endorsed appropriately.

Application to dismiss offence sent for trial

Regulation 2 of Schedule 3 Crime and Disorder Act 1998 and CrimPR 9.16 sets out the procedure for an application for dismissal after sending. An application, in writing, with reasons for dismissal, can be made within 28 days of service of prosecution evidence with provision for a prosecution response within 14 days. Regulation 2(2) of Schedule 3 provides power for the judge to dismiss a charge (and accordingly quash any count relating to it in any indictment preferred against the applicant) which is the subject of any such application if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted.

Note, however, that the right to apply for dismissal is lost if the defendant is arraigned, and the right to discontinue is lost if the indictment is preferred - CrimPD 10A.1

Drafting Specimen and Multiple Incident Counts

An indictment can be drafted where a person has committed a significant number of offences, of the same or similar character, on different occasions over a sustained period of time whether days, weeks, months or years.

The Code for Prosecutors requires a selection of charges which properly reflect the seriousness and extent of the offending, give the court adequate sentencing powers, and enable the case to be presented in a clear and simple way.

Options available to a prosecutor include:

  • Prepare counts that cover all offences disclosed on the papers.
  • Counts for sample or specimen offences in accordance with the principles set out in R v Tovey & Smith. Where the allegations are admitted a further option exists to seek to have the balance of the offences taken into consideration.
  • A multiple incidents count or a general count for conspiracy if appropriate.
  • Charge sample counts in accordance with the 2 stage procedure under the Domestic Violence Crime and Victims Act 2004 (DVCV) if the criteria can be met.

Counts that cover all offences disclosed on the papers

This approach covers every incident of offending clearly and succinctly. The jury’s task is simplified and the trial judge, in the event of a conviction, knows exactly upon what basis to sentence the offender. It leaves the victim and defendant in no doubt as to the position.

Counts for sample/specimen offences disclosed on the papers

To avoid overloading the indictment, prosecutors may limit the counts on the indictment to include only a number which are representative of the larger number of offences that the evidence discloses the defendant has committed:

  1. If a defendant is charged with a representative number of sample offences, and he denies those offences but is convicted of them, the sentencing tribunal is not entitled to sentence him on the basis that he is guilty of all offences alleged by the prosecution but not reflected in the indictment. - R v Canavan [1997] EWCA Crim 1773
  2. The prosecution should provide a sentencing judge with sufficient examples (and no more) to allow a sentence which properly reflects the offender's criminal behaviour. The presence of more counts than necessary would only result in concurrent sentences. Counts should be included to establish the offending period - R v Tovey and Smith [2005] EWCA Crim 530.
  3. In R v Younas [2017] EWCA Crim 1, guilty pleas had been entered to two counts of rape. Count 1 alleged rape between 17 January 2013 and 31 October 2103. Count 2 alleged rape on 3 November 2013. There is nothing in such drafting to suggest that the two counts are specimen counts or multiple incident counts (see multiple incident counts below). The defendant will be sentenced for two offences. Another example would be “Count 1: Supplying a controlled drug of Class A to another, contrary to section 4(3)(a) of the Misuse of Drugs Act 1971, the particulars being that between 16 June 2014 and 16 June 2018, he supplied a quantity of cocaine to X”. A guilty plea or verdict of guilt against this count would represent a finding that the offending behaviour occurred on only a single occasion. If that is how the prosecution put their case, that may be appropriate, but it does not reflect multiple incident offending.
  4. R. v Hobson [2013] EWCA Crim 819 - 5 specimen counts and two specific counts of indecent assault. In their evidence on two of the specimen counts, the complainants spoke with some particularity about individual occasions, describing incidents in their bedroom, in the garden shed and on a patio. Where the complainant gave evidence identifying specific occasions an obvious solution was for the prosecution to apply to amend the indictment and add the particular incident or incidents as separate counts on the indictment.

A general offence count covering the extent of the offending

CrimPR10.2 (2) provides that 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.

This is supplemented by CrimPD10A.13 - For some offences, particularly sexual offences, the penalty for the offence may have changed during the period over which the alleged incidents took place. In such a case, additional “multiple incidents” counts should be used so that each count only alleges incidents to which the same maximum penalty applies.

Circumstances, which are not exhaustive, where such a count can be considered, are:

  • The victim on each occasion is the same, or there was no identifiable individual victim as, for example, in a case of unlawful importation of controlled drugs or of money laundering.
  • The alleged incidents involve a marked degree of repetition in the methods employed or in the location or both.
  • The alleged incident 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 without differentiation. Where what is in issue differs between 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.
  • If the complainant can give specific dates of some incidents but not of others then individual counts should be drafted to reflect the incidents known in detail and a multiple incidents count drafted to reflect the remaining incidents which cannot be specified in detail.
  • In cases such as theft or money laundering there will often be documented evidence of each individual taking/transfer but the sheer number of them will make it desirable that they are covered in one multiple incidents count.

Case law:

  • A multiple incidents count would not be properly drafted unless it specifies a minimum number of occasions on which the offending was alleged to have happened - R v A [2015] EWCA Crim 177.
  • A multiple incident count alleging, for example, “on not less than five occasions” with an alternative of one or more specimen counts relating to single incidents for the jury to consider if they were unsure the offending had occurred on multiple occasions, is preferable as it allows an appropriate sentence to be imposed - R v A [2015] EWCA Crim 177.
  • In sexual offences care should be taken to ensure that each incident which makes up a multiple incidents count attracts the same maximum penalty - see R v Forbes (Stephen John) [2016] EWCA Crim 1388 at [30] – [33].
  • The court set out the practice to be adopted for the drafting of indictments for offences relating to indecent images of children in R v Thompson [2004] EWCA Crim 669

Domestic Violence Crime and Victims Act 2004 sample counts

Where justice cannot be done without charging a large number of separate offences and the allegations against the defendant appear to fall into distinct groups by reference to the identity of the victim, by reference to the dates of the offences, or by some other distinction in the nature of the offending conduct alleged, sections 17 to 21 of the Domestic Violence, Crime and Victims Act 2004 can apply.

A sample count is to be regarded as a sample of other counts where the defendant in respect of each count is the same, the evidence in respect of each count is admissible at the trial of the sample count, and the judge considers that the sample count is a sample of the other counts.

The court may order that the trial of certain counts will be by jury in the usual way and, if the jury convicts, that other associated counts will be tried by judge alone. Before making such an order the judge must be satisfied that

  • The number of counts in the indictment is such that a trial by jury involving all of the counts would be impracticable.
  • Each count or group of counts which would be tried by a jury if the order were made can be regarded as a sample of counts which could, accordingly, be tried without a jury.
  • It is in the interest of justice for the order to be made.

it is essential to make clear from the outset the association asserted by the prosecutor between those counts to be tried by a jury and those counts which it is proposed should be tried by judge alone, if the jury convict on the former. A special form of indictment is prescribed for this purpose.

The effect of an order under section 17 is that where the jury, following a trial, find the defendant guilty of a count which is a sample of other counts to be tried in those proceedings, those other counts may be tried without a jury in those proceedings – s.19 DVCV.

An important limitation to the operation of the provision is that a prosecutor who wishes to apply for a 2 stage trial must apply under CrimPR 3.15 for a preparatory hearing.

Such a hearing may only be ordered in serious and complex fraud cases under the Criminal Justice Act 1987 if it appears to the judge that it is a case of such seriousness or complexity that substantial benefits are likely to accrue from a preparatory hearing. Such a hearing may be also be ordered in any other types of case, under CPIA 1996, if it meets the same threshold by reason of complexity, seriousness or likely length.

Examples will include sexual abuse targeted at specific victims over a number of months or years and repeated thefts or frauds from the same or a range of employers using the same method over a similar period.

Offences not indicted taken into consideration

The practice of taking into consideration [TIC] offences that have not been the subject of any charge has no statutory authority. It is an accepted convention that where the court, when passing sentence upon an offender for an offence,

  • Is informed that there are outstanding allegations (which may or may not be the subject of a charge) against the defendant and
  • The defendant admits each of them and asks for them to be taken into consideration.

The court may formally take them into consideration, and pass a longer sentence than would be the case if the court were only dealing with the counts on the indictment or the schedule of charges - R v Batchelor 1952 36 C.A.R. 64.

A defendant may plead guilty to a small number of specimen charges after admitting to a very much larger number of offences in interview. Unless those number of offences are formally itemised on a schedule and admitted in court, or form a specific basis of plea which is explicit as to the defendant’s acknowledgement of the true extent of his offending, the sentencing tribunal cannot take them into account when sentencing - R v Canavan [1997] EWCA Crim 1773. See also R v Graeme John Pardue [2003] EWCA Crim 1562.

The prosecutor must ensure an appropriate balance between counts charged and offences to be taken into consideration when drafting the indictment. A useful approach is to consider whether there will be sufficient sentencing powers to reflect the seriousness of the offending behaviour on the indictment if the defendant at the door of the court withdrew consent to having offences taken into consideration.

The defendant must be asked personally (not through his representative) by the court whether he has received the list and, if so, whether he admits each of the offences and, if so, whether he wishes them to be taken into consideration.

Content

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 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.

Form

CrimPR 10.2 requires that an indictment must contain one or more 'counts' and 'particulars' of the conduct alleged. CrimPR 10.2 (6) requires that an indictment must be in one of the following forms as set out in the Forms section of CrimPR 10:

Counts must be numbered consecutively - CrimPR 10.2 (3) and particulars in a count must make it clear what the Prosecutor alleges against the defendant – CrimPR 10.2 (1) (b).

Offences

CrimPR 10.2 (4) specifies that an indictment may contain any count:

  • Charging substantially the same offence as one for which the Defendant was sent for trial
  • Contained in a draft indictment served with the permission of a High Court judge or at the direction of the Court of Appeal
  • Charging an offence that the Crown Court can try and which is based on the prosecution evidence that has been served

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. An indictment should not be overloaded with an unnecessarily large number of counts. 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.

In R v N; R v D; R v L [2010] 2 Cr.App.R.14 the Lord Chief Justice (Lord Judge) provided a warning against unnecessary counts on an indictment. The drafting of an indictment requires close attention to:

  • The realities of the case, rather than 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

The prosecutor may be required to identify a selection of counts on which the trial should proceed, leaving a decision to be taken later whether to try any of the remainder - see the Criminal Practice Directions (CrimPD) 10.A.3 – 10A.6.

It may at times, be appropriate to make use of sample counts as permitted by sections 17- 21 of the Domestic Violence, Crime and Victims Act 2004 – CrimPD 10.A.15 – 10A.20.

Signature

There is no longer any requirement for the draft to be signed by the ‘proper officer’ of the Court to convert it into the indictment.

Section 2 of the 1933 Act was amended by s.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.

CrimPR 10.2(7) and CrimPR 3.22 require that any paper copy made for the Court must be endorsed with a note and date to identify it as a copy of the indictment. Also see CrimPD 10A.2.

Order of Defendants

In joint trials, the Crown Court must obtain the Prosecutor’s confirmation, in writing or orally, of the order in which the Defendants’ names are to be listed in the indictment – CrimPR 3.24(1)(a)(ii)

It is important to bear in mind that Defendants are called to give evidence in the order in which their names appear on the indictment. This means that a tactical decision may need to be made as to the order of Defendants on the indictment, bearing in mind the evidence and the nature of the case.

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.

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

Where the name of a person to be included in a count is not known 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.

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)

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

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 sent for trial the Magistrate’s Court is required to do so by an order in writing in accordance with s.46 and Schedule 3, Magistrates' Courts Act 1980. You will need to ensure that such an order is drawn up as, without it, a company cannot be indicted.

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)

Property - Ownership/Possession

Where property is in the hands of a person without ownership, 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 s.5(1) 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'.

Property - 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 CrimPR 10.2 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 the jury must be agreed on which particular item was stolen and the sentence should relate only to the items proved to have been stolen.

Consent

When drafting a count for an offence with which you are not completely familiar, you should read 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.

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. However, each case should be considered on its merits.

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 – s.12(4) of the Theft Act 1968.

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 date should be stated as being on or about a particular date, or on a day unknown between two stated dates, so as to isolate the date of the offence alleged as accurately as possible. 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 -'… on a day between 31st December and 1st February…' includes the whole of January.

A continuing offence is one criminal activity that lasts over a period of time such as failing to comply with a planning enforcement notice. Conspiracy is an example of a continuing offence, which can be said to be committed by those involved throughout the planning stage. 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. A continuing offence can be indicted as taking place ‘…between…' as above.

Duplicity

The Court of Appeal held in R. v. Greenfield [1973] 1 W.L.R. 1151 that 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. The rule was that generally no single count on an indictment should charge a defendant with two or more separate offences.

CrimPR 10.2(2) now provides 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.

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 remedy 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.

CrimPD 10A.11 clarifies CrimPR 10.2(2). A single count can allege more than one incident of the commission of an offence in certain circumstances. Each incident must be of the same offence. The circumstances in which such a count may be appropriate 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; and
  • 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).

For some offences, particularly sexual offences, the penalty for the offence may have changed during the period over which the alleged incidents took place. In such a case, additional “multiple incidents” counts should be used so that each count only alleges incidents to which the same maximum penalty applies – CPD 10A.13 and 10A.14.

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 but accepts that his or her criminality is wider than the specific counts detail 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. 

However, an indictment should always include sufficient counts to reflect the Defendant’s overall alleged criminality, even where there is an indication that the Defendant may ask for offences to be taken into consideration.

Joinder

When drafting an indictment, it is often necessary to consider the question of joinder. See generally section 4 of the Indictments Act 1915 as amended and CrimPR 10.2(2), which broadly repeats rule 9 of the revoked Indictment Rules 1971.

Joinder of Counts

CrimPR 10.2 (2) provides 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.

CrimPD 10A.11 sets out circumstances in which such a count may be appropriate such as

  • the victim on each occasion was the same
  • alleged incidents involved a marked degree of repetition in the method employed or in their location, or both;
  • alleged incidents took place over a clearly defined period

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.

Founded on the same facts

Founded on the same facts refers to counts that have a common factual origin. The most obvious examples falling within this factor 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.

However see R. v. McGrath [2014] Crim.L.R. 144. Here, a charge of criminal damage was found to be improperly joined to the indictment under the Criminal Justice Act 1988 s.40(1), with charges under the Theft Acts 1968 and 1978, where the damage took place in the Defendant’s cell following his arrest for the other matters. It was held that any conviction recorded in relation to the improperly joined count was nullified but the indictment as a whole was not invalidated.

A series of offences of the same or similar character

Charges for any offence may be joined in the same indictment if those charges are part of a series of 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. Harward [1981] 73 Cr.App.R.168 (conspiracy to defraud clearing banks and handling record equipment).

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.

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.

In some cases the Defendant may be 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 accounting a deficiency is identified 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

Where what is in issue differs in relation to different incidents, a single “multiple incidents” count will not be appropriate.

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. See CrimPD 10A.13

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.

In R. v Harries (Michael John) [2007] EWCA Crim 1622, 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 further reading on indictment drafting for sexual offences, refer to Rape and Sexual Offences: Indictments, to CrimPD 10A.13 and 10A.14 and R. v A [2015] EWCA Crim 177

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 - CrimPR 3.21(4)(a).

Joinder of Defendants

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. For example, a Defendant who acts as a lookout in a burglary committed by another Defendant will be indicted jointly with the principal offender.

Where the matters constituting the individual offences of several offenders are so related in time or by other factors that the interests of justice are best served by their being tried together, then the court may try them together even though the indictment does not contain a joint count charging them with having acted in concert – R v Assim [1966] 2 Q.B. 249

Defendants charged 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 the secondary party 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.

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.

For theft, any number of persons may be charged in one indictment with having at different times or at the same time handled all or any of the stolen goods. See section 27(1) of the Theft Act 1978.

Defendants separately sent 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 sent for trial: See CrimPR 3.21.

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

Severance

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.

 CrimPR 3.21(4) sets out a power to order separate trials by severing the indictment.

Under CrimPR 10.2(4)(c), an indictment can contain "any other count charging an offence that the Crown Court can try and which is based on the prosecution evidence that has been served". An improperly joined count no longer makes the indictment a nullity - R. v Williams (Malachi Lloyd) [2017] 2 Cr. App. R. 7.

Severance results in two or more separate indictments and the Prosecution will have to decide on how to proceed if faced with the possibility of two trials.

See CrimPD 10A.3 to 10A.5.

Williams (Malachi Lloyd) considered a scenario where the Court wrongly exercised its power and failed to order separate trials where counts were not founded on similar facts and did not form a series. Notes under CrimPR 3.21(4) now state that ‘Any issue arising from a decision under this rule may be subject to appeal to the Court of Appeal’.

See Smith [1997] 1 Cr. App. R. 390; Lockley [1997] Crim. L.R. 455; McGrath [2014] Crim. L.R. 144

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. However, this is not an acquittal 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.

See the Prosecution Rights of Appeal Legal Guidance

Annex - Voluntary Bill of Indictment

Section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (the Act) provides that a bill of indictment is preferred if:

  • A person is sent for trial (s.51 or s.51A Crime and Disorder Act 1998)
  • The Court of Appeal orders a re-trial (s.8 Criminal Appeal Act 1968 or s.77 Criminal Justice Act 2003)
  • On application by a Prosecutor a High Court judge directs or consents to preferment - “Voluntary Bill of Indictment”
  • The bill is preferred with the consent of a judge of the Crown Court following a declaration by the Court under paragraph 8(1) of Schedule 17 to the Crime and Courts Act 2013 - court approval of a deferred prosecution agreement

CrimPR 10.2(5)(b) sets out when a bill of indictment (a draft indictment) is preferred to become an indictment.

Deferred Prosecution Agreements - Paragraph 2(1) Schedule 17 Crime and Courts Act 2013 provides that a prosecutor must commence proceedings by bringing charges against an organisation for the alleged offence in the Crown Court by way of a modified procedure for preferring a voluntary bill of indictment.

Application

Where a charge is dismissed following a sending for trial under s.51or 51A, Schedule 3 Regulation 6 Crime and Disorder Act 1998 provides that no further proceedings may be brought on the dismissed charge or charges, except by means of the preferment of a voluntary bill of indictment.

The Prosecution will have to show that exceptional circumstances apply, such as a dismissal:

  • without regard to a relevant statutory provision or judicial authority
  • where the Prosecutor has new evidence that could not be put before the Court at the time of the dismissal hearing which, together with the existing evidence provides the Prosecution with a sustainable factual basis for the charge such that it is in the interests of justice for a voluntary bill to be preferred. It is necessary to consider the merits of the application to decide on the interests of justice
  • that was decided without a rational foundation
  • on the basis of a technicality, particularly one that the prosecution reasonably failed to anticipate.

The preferment of a voluntary bill is an exceptional procedure. In R v Arfan [2012] EWHC 2450 (QB), the Court, in dismissing an application for leave to prefer a voluntary bill of indictment, held that the Prosecution had not suggested that the judge had applied the wrong test, ignored relevant legislation or authority, erred in law or shown any other reason why the case was exceptional and, in those circumstances, it would not be proper to grant leave. Also see SFO v Evans [2014] EWHC 3803 (QB); Gadd [2014] EWHC 3307 (QB) and Muse [2007] EWHC 2924 (QB).

There may be other exceptional circumstances in which a voluntary bill might be appropriate, but it should be used sparingly and be very rare.

Trial

CrimPD10A.3 confirms that the rule which formerly required an indictment containing more than one count to include only offences founded on the same facts, or offences which constitute all or part of a series of the same or a similar character has been abolished. However, if an indictment charges more than one offence, and if at least one of those offences does not meet those criteria, then CrimPR 3.21(4)(a) requires the court to order separate trials; thus maintaining the effect of the long-standing principle. Subject to that, it is for the court to decide which allegations, against whom, should be tried at the same time, having regard to the prosecutor’s proposals, the parties’ representations, the court’s powers under s.5(3) of the Indictments Act 1915 (see also CrimPR 3.21(4)(b)) and the overriding objective.

Prior to these changes the prosecutor had to bring fresh proceedings for a deleted count or to apply for a voluntary bill.

Authorisation

An application for consent to prefer a voluntary bill must be sought from the CCP (or equivalent) and must be signed by the CCP or an officer designated by him/her.

Prosecutors should note that the service 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, apply.

Procedure

Section 2(6) of the Administration of Justice (Miscellaneous Provisions) Act 1933 authorises the making of rules of procedure for voluntary bills of indictment and these are contained in Rules 6–10 of the Indictment (Procedure) Rules 1971. The procedure is duplicated at CrimPR 10.9.

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 require an application:

  • To be in writing and signed
  • To be served on the Defence together with the evidence and the proposed bill. A copy of any indictment on which the Defendant already has been arraigned or a list of any offence or offences for which the Defendant already has been sent for trial must also be served.
  • To explain why the application is made, whether any application has previously been made and the result of any such application
  • To contain a statement that, to the best of the Prosecutor’s knowledge, information and belief, the evidence on which the Prosecutor relies will be available at the trial, and that the allegations contained in the application are substantially true.

The applicant can ask for a hearing but must explain why it is needed. The Defence can make representations as soon as practicable and within any time allowed by the judge and can ask for a hearing with an explanation as to why that is needed.

A decision is made by a judge either with or without a hearing.

See CrimPD 10A.15; 10B.1 – 10B.6.