What is an indictment?
The indictment is the formal document which sets out the charge(s) to be tried in the Crown Court.
What does an indictment contain?
The indictment begins with a heading, which contains a unique reference number for the case, identifies the location of the Crown Court and the name of the defendant(s). 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 form and content of the indictment is governed by r.14.2 of the Criminal Procedure Rules and each count must contain:
- A statement of the offence charged that describes the offence in ordinary language and identifies 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.
Each count is therefore divided into two parts:
- The ‘Statement of Offence,’ which sets out the name of the offence and, where the offence is a statutory one, the statutory provision which creates the offence.
- The ‘Particulars of Offence,’ giving factual information about the charge; this must disclose the essential elements of the offence.
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
Rule 14.2(3) of the Criminal Procedure Rules provides that 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.
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. For a nexus to exist, the offences must be similar both legally and factually. It should be noted that 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, he or she 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 that the offences are sufficiently linked so that they can properly be joined under r14.2(3).
Discretion to order separate trials
The power to order separate trials of offences on an indictment is technically known as ‘serving the indictment.’ The burden rests on the defendant to show that exceptional circumstances merit separate trials. Relevant considerations include the following:
- 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 should not be joined together, because the rules for joinder are not satisfied, there is no power to sever the indictment. It follows that where there has been Misjoinder, the situation can be remedied in either of the two ways:
- Delete one or more counts from the indictment, leaving only counts which can properly be joined under r14.2(3); or
- Stay the existing indictment and allow the prosecution to prefer fresh indictments out of time, each indictment containing only counts which can properly be joined under r14.2(3).
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 has to be explained to the jury.
Amending the indictment
Under s 5(1) of the Indictments Act 1915, where, either before the trial or at any stage during the trial, it appears to the court that the indictment is defective, the court is empowered to make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case, unless having regard to the merits of the case, the required amendments cannot be made without injustice.