What is an indictment?
The indictment is the formal document setting out all criminal charges against the defendant to be tried in the Crown Court.
The indictment begins with a heading containing the case’s unique reference number, the location of the Crown Court, and the name of all defendants. Importantly, each charge faced by the defendant is contained in a separate ‘count.’
What does a count contain?
Section 3(1) of the Indictments Act 1915 provides that the indictment must contain ‘a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.’
The Criminal Procedure Rules sets out the requirements for the form and content of the indictment. Each count must be divided into:
- A statement of the offence charged, describing the offence in ordinary language and identifying any legislation that creates it, and
- Such particulars of conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant
Who draws up the indictment?
The indictment is normally drafted by the Crown Prosecution Service. Where there is more than one defendant, the order in which the names of defendants are placed on an indictment is the responsibility of the prosecutor, who has a discretion as to that order.
Joinder of counts
An indictment may contain more than one count if all the offences charged are founded on the same facts, or form (or are part of) a series of offences of the same or a similar character. There are four types of joinder: where two or more defendants are charged in one count; different defendants are charged in separate counts; different offences in different counts in one indictment; and defendants separately committed for trial.
Founded on the same facts
Two offences are founded on the same facts if they arise from a single incident or are part of the same ‘transaction.’ One offence can also arise from the same facts as another if one would not have been committed but for the other.
Series of similar offences
For two offences to belong to a series of similar offences there must be a ‘nexus’ between them. This means the offences must be similar both legally and factually, however, two offences do not form a series merely because evidence relating to one offence is uncovered during the investigation into the other.
Joinder of defendants
A count in an indictment can name more than one defendant if it is alleged that there was more than one participant. Where one person aided and abetted the other, they can either be charged specifically with aiding and abetting the offence, or as a principle. In practice, secondary participants are usually charged as principle offenders. It is also permissible to join defendants in an indictment even if the defendants are not charged with the same offence, provided the offences are sufficiently linked so that they can properly be joined.
Discretion to order separate trials
The power to order separate trials of offences on an indictment is technically known as ‘serving the indictment.’ It is for the defendant to show that exceptional circumstances merit separate trials. Relevant considerations include:
- How easy or difficult will it be for the jury to disentangle the evidence relating to the different counts?
- Is one of the counts likely to arouse hostility in the minds of the jurors, creating a risk that they will not approach the other counts with open minds?
- Is the strength of the evidence relating to the counts disproportionate?
- Is the evidence on all the counts weak, creating a risk that the jury may convict on the basis of an overview of the case rather than considering the evidence in respect of each count separately?
If an indictment contains counts which should not be joined together because the rules for joinder are not satisfied, there is no power to sever the indictment. However, this ‘misjoinder’ can be remedied in either of two ways:
- Delete one or more counts from the indictment, leaving only counts which can properly be joined under the rules, or
- Stay the existing indictment and allow the prosecution to issue fresh indictments out of time, each containing only counts which can properly be joined under the rules
It is possible for counts to appear on an indictment in the alternative. For example, the indictment might contain one count alleging wounding with intent, and a separate count alleging unlawful wounding. This is appropriate where the prosecution is unsure whether there is sufficient evidence to prove the more serious offence. Nothing on the face of the indictment indicates that the counts are alternatives, so this fact must be explained to the jury.
Amending the indictment
Under s 5(1) of the Indictments Act 1915, where it appears to the court that the indictment is defective, the court has power to order amendment of the indictment as it thinks necessary to meet the circumstances of the case. However, it will not do so if it decides the required amendments cannot be made without injustice.