PART 10THE INDICTMENT
Contents of this Part | |
|---|---|
When this Part applies | rule 10.1 |
The indictment: general rules | rule 10.2 |
Draft indictment generated electronically on sending for trial | rule 10.3 |
Draft indictment served by the prosecutor after sending for trial | rule 10.4 |
Draft indictment served by the prosecutor with a High Court judge’s permission | rule 10.5 |
Draft indictment approved with deferred prosecution agreement | rule 10.6 |
Draft indictment served by the prosecutor on re-instituting proceedings | rule 10.7 |
Draft indictment served by the prosecutor at the direction of the Court of Appeal | rule 10.8 |
Application to a High Court judge for permission to serve a draft indictment | rule 10.9 |
When this Part appliesI710.1
This Part applies where—
a
a magistrates’ court sends a defendant to the Crown Court for trial under section 51 or section 51A of the Crime and Disorder Act 1998262;
b
a prosecutor wants a High Court judge’s permission to serve a draft indictment;
c
the Crown Court approves a proposed indictment under paragraph 2 of Schedule 17 to the Crime and Courts Act 2013263 and rule 11.4 (Deferred prosecution agreements: Application to approve the terms of an agreement);
d
a prosecutor wants to re-institute proceedings in the Crown Court under section 22B of the Prosecution of Offences Act 1985264; or
e
[Note. See also sections 3, 4 and 5 of the Indictments Act 1915267 and section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933268. Under section 2(1) of the 1933 Act, a draft indictment (in the Act, a ‘bill of indictment’) becomes an indictment when it is ‘preferred’ in accordance with these rules. See rule 10.2.
Part 3 contains rules about the court’s general powers of case management, including power to consider applications and give directions for (among other things) the amendment of an indictment and for separate trials under section 5 of the Indictments Act 1915. See in particular rule 3.29 (Application for joint or separate trials, etc.).
Under section 51D of the Crime and Disorder Act 1998269, the magistrates’ court must notify the Crown Court of the offence or offences for which the defendant is sent for trial. Part 9 (Allocation and sending for trial) contains relevant rules.
A Crown Court judge may approve a proposed indictment on approving a deferred prosecution agreement. Part 11 (Deferred prosecution agreements) contains relevant rules.
A prosecutor may apply to a High Court judge for permission to serve a draft indictment under rule 10.9.
Under section 22B of the Prosecution of Offences Act 1985, one of the prosecutors listed in that section may re-institute proceedings that have been stayed under section 22(4) of that Act270 on the expiry of an overall time limit (where such a time limit has been prescribed). Section 22B(2) requires the service of a draft indictment within 3 months of the date on which the Crown Court ordered the stay, or within such longer period as the court allows.
The Court of Appeal may order a retrial under section 8 of the Criminal Appeal Act 1968 (on a defendant’s appeal against conviction) or under section 77 of the Criminal Justice Act 2003 (on a prosecutor’s application for the retrial of a serious offence after acquittal). Section 8 of the 1968 Act and section 84 of the 2003 Act require the arraignment of a defendant within 2 months. See also rules 27.7 and 39.14.
Where a magistrates’ court sends a defendant to the Crown Court for trial under section 51 or 51A of the Crime and Disorder Act 1998, in some circumstances the Crown Court may try the defendant for other offences: see section 2(2) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (indictable offences founded on the prosecution evidence), section 40 of the Criminal Justice Act 1988271 (specified summary offences founded on that evidence) and paragraph 6 of Schedule 3 to the Crime and Disorder Act 1998 (power of Crown Court to deal with related summary offence sent to that court). An offence of theft under section 1 of the Theft Act 1968 which is low-value shoplifting under section 22A of the Magistrates’ Courts Act 1980272 is a summary offence unless the defendant chooses to be tried in the Crown Court.]
The indictment: general rulesI510.2
1
The indictment on which the defendant is arraigned under rule 3.32 (Arraigning the defendant on the indictment) must be in writing and must contain, in a paragraph called a ‘count’—
a
a statement of the offence charged that—
i
describes the offence in ordinary language, and
ii
identifies any legislation that creates it; and
b
such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.
2
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.
3
The counts must be numbered consecutively.
4
An indictment may contain—
a
any count charging substantially the same offence as one for which the defendant was sent for trial;
b
any count contained in a draft indictment served with the permission of a High Court judge or at the direction of the Court of Appeal; and
c
any other count charging an offence that the Crown Court can try and which is based on the prosecution evidence that has been served, including a summary offence to which section 40 of the Criminal Justice Act 1988 applies.
5
For the purposes of section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933—
a
a draft indictment constitutes a bill of indictment; and
b
the draft, or bill, is preferred before the Crown Court and becomes the indictment—
i
where rule 10.3 applies (Draft indictment generated electronically on sending for trial), immediately before the first count (or the only count, if there is only one) is read to or placed before the defendant to take the defendant’s plea under rule F1rule 3.32(1)(e),
ii
when the prosecutor serves the draft indictment on the Crown Court officer, where rule 10.4 (Draft indictment served by the prosecutor after sending for trial), rule 10.5 (Draft indictment served by the prosecutor with a High Court judge’s permission), rule 10.7 (Draft indictment served by the prosecutor on re-instituting proceedings) or rule 10.8 (Draft indictment served by the prosecutor at the direction of the Court of Appeal) applies,F3...
iii
when the Crown Court approves the proposed indictment, where rule 10.6 applies (Draft indictment approved by the Crown Court with deferred prosecution agreement) F4or
F2iv
when the prosecutor serves on the Crown Court officer a draft indictment to which rule 25.16(3)(e) applies (substituted indictment for sentencing purposes).
F56
An indictment—
a
must be in one of the forms F6issued under the Practice Direction unless—
i
rule 10.3 applies, or
ii
the Crown Court otherwise directs; and
b
must include at the head of the document in which it is set out the date of that document and a statement that it contains, as appropriate—
i
the first indictment in the case,
ii
a proposed amended indictment,
iii
a substituted indictment,
iv
an additional indictment,
v
a trial indictment, or
vi
an indictment required by rule 25.16(3)(e) (substituted indictment for sentencing purposes).
7
Unless the Crown Court otherwise directs, the court officer must—
a
endorse any paper copy of the indictment made for the court with—
i
a note to identify it as a copy of the indictment, and
ii
the date on which the draft indictment became the indictment under paragraph (5); and
b
where rule 10.4, 10.5, 10.7 or 10.8 applies, serve a copy of the indictment on all parties.
8
The Crown Court may extend the time limit under rule 10.4, 10.5, 10.7 or 10.8, even after it has expired.
[Note. Under section 2(6) of the Administration of Justice (Miscellaneous Provisions) Act 1933, Criminal Procedure Rules may provide for the manner in which and the time at which ‘bills of indictment’ are to be ‘preferred’.
Under rule 3.29 (Application for joint or separate trials, etc.), the court may order separate trials of counts in the circumstances listed in that rule.]
Draft indictment generated electronically on sending for trialI410.3
1
Unless the Crown Court otherwise directs before the defendant is arraigned, this rule applies where—
a
a magistrates’ court sends a defendant to the Crown Court for trial;
b
the magistrates’ court officer serves on the Crown Court officer the notice required by rule 9.5 (Duty of magistrates’ court officer); and
c
by means of such electronic arrangements as the court officer may make for the purpose, there is presented to the Crown Court as a count—
i
each allegation of an indictable offence specified in the notice, and
ii
each allegation specified in the notice to which section 40 of the Criminal Justice Act 1988 applies (specified summary offences founded on the prosecution evidence).
2
Where this rule applies—
a
each such allegation constitutes a count;
b
the allegation or allegations so specified together constitute a draft indictment;
c
before the draft indictment so constituted is preferred before the Crown Court under rule 10.2(5)(b)(i) the prosecutor may substitute for any count an amended count to the same effect and charging the same offence;
d
if under rule 3.19 (Service of prosecution evidence) the prosecutor has served copies of the documents containing the evidence on which the prosecution case relies then, before the draft indictment is preferred before the Crown Court under rule 10.2(5)(b)(i), the prosecutor may substitute or add—
i
any count charging substantially the same offence as one specified in the notice, and
ii
any other count charging an offence which the Crown Court can try and which is based on the prosecution evidence so served; and
e
a prosecutor who substitutes or adds a count under paragraph (2)(c) or (d) must serve that count on the Crown Court officer and the defendant.
[Note. An ‘indictable offence’ is (i) an offence classified as triable on indictment exclusively, or (ii) an offence classified as triable either on indictment or summarily. See also the note to rule 9.1 (Allocation and sending for trial: When this Part applies).
Section 40 of the Criminal Justice Act 1988 lists summary offences which may be included in an indictment if the charge—
a
is founded on the same facts or evidence as a count charging an indictable offence; or
b
is part of a series of offences of the same or similar character as an indictable offence which is also charged.]
Draft indictment served by the prosecutor after sending for trialI910.4
1
This rule applies where—
a
a magistrates’ court sends a defendant to the Crown Court for trial; and
b
rule 10.3 (Draft indictment generated electronically on sending for trial) does not apply.
2
The prosecutor must serve a draft indictment on the Crown Court officer not more than 20 business days after serving under rule 3.19 (Service of prosecution evidence) copies of the documents containing the evidence on which the prosecution case relies.
Draft indictment served by the prosecutor with a High Court judge’s permissionI610.5
1
This rule applies where—
a
the prosecutor applies to a High Court judge under rule 10.9 (Application to a High Court judge for permission to serve a draft indictment); and
b
the judge gives permission to serve a proposed indictment.
2
Where this rule applies—
a
that proposed indictment constitutes the draft indictment; and
b
the prosecutor must serve the draft indictment on the Crown Court officer not more than 20 business days after the High Court judge’s decision.
Draft indictment approved with deferred prosecution agreementI210.6
1
This rule applies where—
a
the prosecutor applies to the Crown Court under rule 11.4 (Deferred prosecution agreements: Application to approve the terms of an agreement); and
b
the Crown Court approves the proposed indictment served with that application.
2
Where this rule applies, that proposed indictment constitutes the draft indictment.
Draft indictment served by the prosecutor on re-instituting proceedingsI310.7
1
This rule applies where the prosecutor wants to re-institute proceedings in the Crown Court under section 22B of the Prosecution of Offences Act 1985.
2
The prosecutor must serve a draft indictment on the Crown Court officer not more than 3 months after the proceedings were stayed under section 22(4) of that Act273.
Draft indictment served by the prosecutor at the direction of the Court of AppealI110.8
1
This rule applies where the Court of Appeal orders a retrial.
2
The prosecutor must serve a draft indictment on the Crown Court officer not more than 28 days after that order.
Application to a High Court judge for permission to serve a draft indictmentI810.9
1
This rule applies where a prosecutor wants a High Court judge’s permission to serve a draft indictment.
2
Such a prosecutor must—
a
apply in writing;
b
serve the application on—
i
the court officer, and
ii
the proposed defendant, unless the judge otherwise directs; and
c
ask for a hearing, if the prosecutor wants one, and explain why it is needed.
3
The application must—
a
attach—
i
the proposed indictment,
ii
copies of the documents containing the evidence on which the prosecutor relies, including any written witness statement or statements complying with rule 16.2 (Content of written witness statement) and any documentary exhibit to any such statement,
iii
a copy of any indictment on which the defendant already has been arraigned, and
iv
if not contained in such an indictment, a list of any offence or offences for which the defendant already has been sent for trial;
b
include—
i
a concise statement of the circumstances in which, and the reasons why, the application is made, and
ii
a concise summary of the evidence contained in the documents accompanying the application, identifying each passage in those documents said to evidence each offence alleged by the prosecutor and relating that evidence to each count in the proposed indictment; and
c
contain a statement that, to the best of the prosecutor’s knowledge, information and belief—
i
the evidence on which the prosecutor relies will be available at the trial, and
ii
the allegations contained in the application are substantially true
unless the application is made by or on behalf of the Director of Public Prosecutions or the Director of the Serious Fraud Office.
4
A proposed defendant served with an application who wants to make representations to the judge must—
a
serve the representations on the court officer and on the prosecutor;
b
do so as soon as practicable, and in any event within such period as the judge directs; and
c
ask for a hearing, if the proposed defendant wants one, and explain why it is needed.
5
The judge may determine the application—
a
without a hearing, or at a hearing in public or in private; and
b
with or without receiving the oral evidence of any proposed witness.
6
At any hearing, if the judge so directs a statement required by paragraph (3)(c) must be repeated on oath or affirmation.
7
If the judge gives permission to serve a draft indictment, the decision must be recorded in writing and endorsed on, or annexed to, the proposed indictment.
[Note. See section 2(6) of the Administration of Justice (Miscellaneous Provisions) Act 1933274.]