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Home » Professionals » Legal Guidance » D to G » Drafting the Indictment

Drafting the Indictment

This Guidance was last updated 7th December 2007.

Principle

1 The indictment is the document containing the charges against the defendant for a trial in the Crown Court. Each charge is known as a 'count'.

2 An indictment must be signed by the proper officer of the Crown Court; until it has been so signed, it is a 'bill of indictment': Administration of Justice (Miscellaneous Provisions) Act 1933, section 2(1).

3 The draft indictment must be prepared at an early stage of the Crown Court case preparation process and it will only be in exceptional circumstances that this document will need to be re-drafted.

4 The preparation of the draft indictment is part of the reviewing lawyer's function. It is only in complex or sensitive cases that counsel for the prosecution should be asked to draft the indictment.

5 The count or counts to be included in the indictment should only be those which are supported by the evidence, in accordance with the requirements of the Code for Crown Prosecutors.

6 It will never be appropriate to include more counts than are necessary just 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 just in the hope that this will encourage the defendant to plead guilty to a less serious count <Code for Crown Prosecutors>.

7 The reviewing lawyer is responsible for the content of the indictment unless that lawyer is a Crown Prosecutor acting under supervision and is precluded from making the relevant casework decisions.

8 If a caseworker or Crown Prosecutor acting under supervision prepares the draft indictment, the responsibility remains that of the reviewing lawyer, who is ultimately accountable.

9 It follows that the responsible lawyer must personally check the draft indictment both before committal, sending or transfer, and immediately afterwards before the draft is lodged with the Crown Court for signature.

10 The guidance that follows is in relation to drafting indictments generally. For guidance in relation to charging practice and the drafting of particular counts you should refer to that part of the Manual which relates to specific offences.

Guidance

11 The form and content of an indictment are governed by rule 14.2 of the Crown Court Procedure Rules 2005 for cases in which one of the events listed in paragraphs (a) to (d) of rule 14.1 (service of case, committal or transfer, permission by HC to serve draft indictment or order of retrial by CA) took place on or after April 2nd, 2007.

Length of Indictment

12 The type and number of counts to be included on the indictment will depend on the assessment of the evidence and the nature of the case. You should bear in mind the following matters:

  • the indictment should not be overloaded with an unnecessarily large number of counts-see R v Novac (1976)65 Cr. App. Rep. 107; R v Thorne (1977) 66 Cr. App. Rep. 6; R v Kellard (1995) 2 Cr. App. Rep. 134; and generally Archbold 1-112 ; 1-180.
  • trivial counts which merely detract from the really serious nature of the case and which , in themselves, add nothing should be avoided-see R v Ambrose (1973) 57 Cr. App. Rep. 538 Archbold 1-112.
  • in cases where there are large numbers of defendants and complicated issues (for example, large public order cases) it may be desirable for there to be separate trials at the Crown Court. In such cases, it may well be appropriate to divide the case into smaller parts by drafting two or more indictments and to prepare two or more Crown Court packages. See Archbold 1-180.

Specimen Counts

13 The following guidelines, which are derived from the judgment of the Court of Appeal, Criminal Division in <R v Tovey and Smith [2005] EWCA Crim 530> should be followed when charging allegations of multiple offending and in drafting indictments in such cases. (See also the Guidance on Two Stage Trials).

14 Where the allegation is of a number of similar acts on different occasions, the prosecution should not proceed on the basis that a very small number of charges are said to be representative of the whole course of conduct. As Tovey and Smith confirms, the court may only sentence for offences in respect of which the defendant has been convicted, or which he/she has asked to be taken into consideration

15 In a case of multiple offending, therefore, the indictment should be drafted in accordance with the following principles:

  • 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 which properly reflects that criminality.
  • In multiple offending cases it will usually be sufficient for the counts on the indictment to reflect the overall period during which the offences occurred (as well as any variation in the type of offence).
  • It will only rarely be necessary for all the alleged instances of offending to be indicted in order to reflect the full criminality demonstrated by the evidence; but this will usually require that more offences are indicted than had previously been the practice when sample counts were allowed.
  • In cases involving multiple sexual offending it would usually be sufficient to indict three counts over each year for each type of offence that was committed, (although this is not intended to set a hard and fast rule).
  • In cases involving a large number of thefts, or obtaining by deception, of small sums of money, the total sum proved to have been stolen or obtained is often an important factor in sentencing, although 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.
  • 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.

16 As an exception to the general rule, it is possible for a defendant who pleads guilty to specific counts on an indictment but who accepts that their criminality is wider than those specific counts reveal (whether by formally asking for offences to be taken into consideration, by a written basis of plea, or other clear indication) to be sentenced on that wider basis. This follows from the decision of the Court of Appeal, Criminal Division in Re Attorney-General's Reference (No 82 of 2002) sub nom R v M [2003] 2 Cr.App.R.(S.) 115.

17 However, prosecutors will rarely be able to be sure that such a course will be taken by a defendant at the time of lodging the indictment. Therefore, even in cases where it is thought that a defendant may well take such a course ultimately, the indictment should nevertheless include sufficient counts to reflect the defendants overall alleged criminality following the principles set out above.

Consents

18 When drafting a count for an offence with which the author is not completely familiar, reference should be made the section on <Consents to Prosecute> elsewhere in this guidance. Do not rely solely on the schedule linked to that section, but check the statute in each instance as to whether a DPP or Attorney-General's consent is required.

Order of Defendants

19 In cases involving more than one defendant it is important to bear in mind that, if the case is contested at Crown Court, the defendants will be called to give evidence in the order in which their names appear on the indictment. This established Crown Court practice means that a tactical decision may need to be made as to the order of the defendants on the indictment, bearing in mind the evidence and the nature of the case.

Description of Persons

20 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.' 'Mr', 'Mrs', or other titles should not be used

21 If the case involves two defendants who are parent and child with the same name, they should be described as follows:-'E.F. and E.F. the Younger'.

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

23 Where the name of a person to be included in a count is not known then the formula 'a person unknown' should be used-rule 8 Indictment Rules 1971 (now revoked, but no change in approved practice) (Archbold 1-124a). The word 'another' may also be used and may be preferable where this word is used in the statute creating the particular offence.

Age

24 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 under Sexual Offences, proof of the victim's age is vital, see R v Hodgson (1973) 57 Cr. App. Rep. 502 and <refer to Sexual Offences, elsewhere in this guidance>.

25 Where it is necessary to state age then this must be stated in every count see (R v Martin referred to in Archbold 1-124(b)).

Companies

26 Trading companies should be described by their proper corporate name or style, whether incorporated or not.

27 If there is any doubt as to a company's correct title then the police should be asked to make enquiries. A telephone directory can be a useful source of information.

28 In a case where you have a statement from a shop assistant in, for example, a deception offence then the shop assistant's name rather than the company's name should be used as the person deceived. If the particular assistant or other employee concerned is not known then the company's name may be used.

29 When a company is committed for trial the magistrate is required to do so by an order in writing in accordance with section 46 and Schedule 3, Magistrates Courts Act 1980: see Archbold 1-242. Crown Prosecutors will need to ensure that such an order is drawn up because, without it, a company cannot be indicted.

Ownership/Possession of Property

30 Where property is in the hands of a bailee, 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- (Sect. 5(1) Theft Act 1968).

31 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.

32 If the owner of the property is deceased, it may be shown as belonging to the executor or administrators of the estate.

33 If the identity of the owner of the property is not known, it is sufficient to describe it as 'belonging to a person unknown'. See Indictment Rules 1971 Rule 8 (Archbold 1-124(a))

Description of Property

34 The principle was set out in rule 5 of the Indictment Rules 1971 (Archbold 1-116)

35 Property should be described in sufficient ordinary language to identify it but it is not normally appropriate to use brand names, colours or other adjectives to describe property

36 It is generally desirable to itemise the property, for example 'five rings, two bracelets, three watches' etc. When a large quantity of property is involved, it may be grouped according to type rather than listing every item, for example 'a quantity of jewellery, a quantity of silverware, 'etc. It is incorrect, however, to itemise certain items and then to add 'and other items' see R v Yates (1920) 15 Cr. App. Rep. 15. If the exact quantity of a particular type of property cannot be ascertained, the appropriate collective term should be used. It is a question of judgement as to which approach should be used but it is never acceptable merely to aver 'a quantity of property' as this may fall foul of rule 5: Archbold 21-7.

37 In a case where money is stolen but the amount is not known then the formula 'a sum of money' may be used. If the approximate figure is known then this should be stated, and the word 'approximately' may be used.

38 It is not necessary to prove that all items mentioned in a theft indictment, for instance, have been stolen. Proof of 1 item only is sufficient: see Machent v Quinn (1970) 2 All E.R. 255 (Archbold 21-7).

Value

39 You should not include the value of the property in the indictment except where value is the essence of the offence, for example, certain offences under the Bankruptcy Act 1914.

Date

40 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.

41 Where the exact date is not known the formula 'on a day between......' stated dates should be used. Exclusive dates should be chosen: i.e. "......day between 9th March and 18th March" when it is not known on which day between 10th and 17th March the offence was committed. Where an offence could have occurred either side of midnight the formula 'on or about' a specified date should be used.

42 Where an offence can properly be categorised as 'continuing' the formula 'on divers days between...' may be used. Such offences are, however, exceptions and although other offences may apparently be committed either continuously or intermittently over a period they remain single offences refer to 'Continuing and Continuous Offences'> and <'General Deficiencies'> later in this section.

43 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.

44 Where one or more of the offences alleged is a specified offence under Schedule 15 Criminal Justice Act 2003 and spans the commencement date (4th April 2005) of Part V of that Act (the dangerous offender provisions - see Sentencing Issues>Dangerous Offenders - elsewhere in this guidance), care is required when drafting the appropriate counts on indictments. The enhanced sentences provided for by the 2003 Act are only operative for offences found to have been committed on or after the commencement date.

45 The importance of this issue was considered by the Court of Appeal in R v Robert Michael S and 4 others [2007] EWCA Crim 1622 - see Policy Bulletin 74/2007 (LG/32) for further detail. In this case, the Court advised that where it could realistically be done, indictments should be drafted to reflect the significance of 4th 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 4th April 2005, and thus whether the dangerous offender provisions might apply.

46 For general information about the effect of change in maximum sentence, see Archbold 5-286.

Place/Location of Offence

47 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. See R.v. Wallwork 42 Cr. App. Rep. 153 (Archbold 1-125).

Attempts

48 By virtue of section 6(3) and 6(4) of the Criminal Law Act 1967 (Archbold 4-455) it is not necessary to add counts for attempts when the full offences are charged. Opinion differs as to whether it is never necessary. Each case should be considered on its merits.

Alternatives

49 You may need 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. Your view should be recorded on the file.

50 Although section 6(3) and 6(4) of the Criminal Law Act 1967 permits 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.

51 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.

52 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 - section 12(4) of the Theft Act 1968).

Duplicity

(Archbold 1-135)

53 The rule was that a count of the indictment must allege one offence and one offence only: rule 2, Indictment Rules 1971. A count which does not comply with this rule was bad for duplicity. Rule 14.2(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 frequently dictate that separate instances of the same offence should be charged separately: see Archbold 1-135.

54 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: see R v Greenfield (1973) 57 Cr. App. R. 849.

55 The most common form of duplicity in an indictment is pleading the offence as having been committed 'on divers days'. This is a form which is acceptable only in continuing offences. Apart from this exception all other offences should be charged 'on a day between...and ...' or on the specific date when this is known.

56 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 save 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.

57 There is considerable case law on this subject, which can be found in Archbold and Blackstone's. The following guidelines emerge:-

  • one offence should be charged in one count if it comprises a single act even if the offence has more than one victim or involves activities in respect of more than one item of property;
  • Where two or more acts of a similar nature committed by one or more defendants are connected in time and place of commission, or by common purpose, they can be charged in a single count.
  • where the wording of the particular statute makes it clear that only one offence is created but provides two or more alternative ways of committing that one offence, then each alternative way should be made the subject of a separate count in the indictment. The only exception to this is where case law has established that, in a particular case, the placing of alternative ways in the same count will not be regarded as bad for duplicity; and
  • in any case where there is doubt as to whether the language of the particular statute creates more than one offence, it will always be safer to charge two or more counts.

58 If it is clear from the evidence that one of the alternative ways of committing the offence is appropriate then the count on the indictment should be drafted accordingly. Unnecessary alternative counts should be avoided.

Continuing and Continuous Offences

59 There is very real distinction between the two classifications and they must not be confused:-

  • a continuing offence is one criminal activity which lasts over a period of time. Conspiracy is an example of a continuing offence which can be said to be committed by those involved throughout the planning stage. A continuing offence can be indicted as taking place 'between' two dates or on 'divers days between...' If you ask yourself whether the total activity relates to one offence only and the answer is 'yes' then it is likely that the offence is a continuing one.
  • the concept of a continuous offence is a legal device to deal with a different situation. The practice permits the charging in one count of a series of offences of the same type in circumstances where it is not possible to state which particular activity occurred at any particular time. For example in R v Cain (1983) Crim. L.R. 802 (Archbold 1-143) 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. The use of 'divers days' is not appropriate.

60 On the authority of the Divisional Court in Barton v Director of Public Prosecutions, Divisional Court, 13th March 2001 (see Inform, 4 May 2001) 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. Care will be needed before such a course is taken.

General Deficiencies

61 The rule here is an extension or variation of the continuous offence principle referred to in the preceding paragraph. The type of case to which the principle applies is where the defendant is 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.

62 At the time of the accounting a deficiency is seen 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.

Joinder

63 (See generally section 4 of the Indictment Act 1915 as amended (Archbold 1-154) and rule 14.2(3) of the Crown Court Procedure Rules 2005, which repeats in substance rule 9 of the Indictment Rules 1971 (Archbold 1-154(a))).

64 When drafting an indictment, it is often necessary to consider the question of joinder. There are four categories to be considered, one or more of which may be relevant in any particular case:-

  • two or more defendants in one count
  • different defendants in separate counts
  • several offences in different counts in one indictment
  • defendants separately committed for trial.

Two or more Defendants In one Count

65 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.

66 Those defendants, therefore, who aid, abet, counsel or procure the offence should be indicted jointly as principal offenders. For example, a defendant who acts as a lookout in a burglary committed by another defendant will be indicted jointly with the principal offender.

67 Where the principal offender is under a legal disability, for example a disqualified driver, but an aider and abettor 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 1st January 200, 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.

Defendants charged jointly can be convicted of separately committing the offence: see D.P.P. v Merriman (1972) 56 Cr. App. Rep. 766. and Archbold 1-164.

Different Defendants in Separate Counts

68 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.

69 Joinder of offenders is a matter of practice: R v Assim (1966) 50 Cr. App. Rep. 224.

70 Section 27(1) of the Theft Act 1978 should be noted: any number of persons may be charged in one indictment, with reference to the same theft, with having at different times or at the same time handled all or any of the stolen goods, and the persons so charged may be tried together.

71 A thief and the handler may be joined in one indictment on the principal in Assim - see above.

72 You should, 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.

Several Offences In Different Counts in one Indictment

(See rule 14.2(3) of the Criminal Procedure Rules 2005, and Archbold 1-154(a).

73 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.

Charges Founded on the Same Facts

74 The simplest examples 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.

75 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. Rep. 250.

Charges Founded on Facts of the Same or Similar Character

76 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 nexus 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. Rep.233 and (Archbold 1-158).

77 Two offences may constitute a series: R v Kray (1969) 53 Cr. App. Rep. 569.

78 A common element of dishonesty is not sufficient, in itself, to make the offences of a similar character: see R v Harwood (1981) 73 Cr. App. Rep. 168 (conspiracy to defraud clearing banks and handling record equipment).

79 For the consequences of misjoining offences see later in this section.

Defendants Separately Committed for Trial

80 In appropriate circumstances, it is possible and may well be desirable to join together at the Crown Court defendants who have been separately committed for trial: see Practice Direction (Indictment-joinder of counts - (1976) 61 Cr. App. Rep. 251), which followed the case of R.v. Groom (1976) 62 Cr. App.Rep.242, and (Archbold 1-218)

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

Misjoinder of Counts under rule 14.3 (formerly rule 9)

82 Misjoinder of counts makes the indictment invalid. In such a case there are a number of alternative remedies:-

(a) seek leave to prefer two indictments out of time and to stay the original indictment: R v Follett (1989) 88 Cr. App.Rep. 310 and Archbold 1-162;

(b) if the judge declined to grant leave to prefer the two indictments, seek leave to amend the existing indictment so as to delete the misjoined count(s) and proceed on the remaining count(s): R v Newland (1988) 87 Cr. App. Rep. 118 and Archbold 1-161.

(c) in the circumstances at (b) above, if you wished to proceed with the deleted count(s), you would need to seek a new committal of those counts or to apply to a High Court Judge for a voluntary bill; or

(d) if the judge refused leave to prefer indictments out of time or to amend the indictment and determines to quash the invalid indictment, you will need to seek a new committal for all counts or to apply for a voluntary bill.

83 For guidance on voluntary bills <refer to Voluntary Bills elsewhere in this guidance>.

Quashing an Indictment

84 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.

85 The effect of a successful application is that the defendant may not be tried on the quashed count or the quashed indictment. This does not mean that he is acquitted 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.

86 A motion to quash can be made in the following circumstances:-

  • where the indictment is bad on its face, for example because of duplicity; or
  • where a count in the indictment has been preferred otherwise than in accordance with section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933; or
  • the indictment contains a count for an offence in respect of which the defendant was not committed for trial and the committal statements do not disclose a case to answer for that offence: R v Jones (1974) 59 Cr. App. Rep. 120.

87 Provided that a count on the indictment follows a committal charge, the judge is not entitled to look beyond the indictment at the evidence. The only exceptions to this are:-

  • when the motion to quash is on the basis that the offence is not disclosed in the committal papers and there has been no committal for trial for that offence; or
  • when the motion is on the basis that a count is bad for duplicity.

For further guidance on drafting indictments for particular offences see the guidance for those particular offences.

For information on offences to be included in the indictment see under <Sections 40/41 Criminal Justice Act 1988> in this Guidance.

Procedure

88 Rules on preferring indictments are now contained in rule14 of the Criminal Procedure Rules 2005.

Checking the Indictment

89 A defective or inaccurate indictment can lead to a failed prosecution.

90 Applications to the Court to amend the indictment because of error should never be necessary. It is vital that the draft indictment is checked thoroughly both before and after committal or transfer, and before it is lodged with the Crown Court for signature.

91 Responsibility for the accuracy of the indictment as to form and content rests with the reviewing lawyer, who must carry out the checks personally.

92 The checking procedure must be observed even in cases where counsel has drafted the indictment.

93 As the final failsafe, counsel is also responsible for form and accuracy of the indictment and should check the indictment before arraignment.