Rape and Sexual Offences - Chapter 9: The Indictment
Key principles
Prosecutors are reminded of paragraph 6.1 of the Code for Crown Prosecutors, on the selection of charges.
Counts on the indictment must:
- Reflect the seriousness and extent of the offending supported by the evidence;
- Give the court adequate powers to sentence and impose appropriate post-conviction orders; and,
- Enable the case to be presented in a clear and simple way.
Changes in legislation and the range of offences, which might apply to a specific set of circumstances, make it difficult to identify the most appropriate charges in sexual offences cases. In addition to the 2003 Act which repealed most, but not all, of the previous legislation and introduced new sentencing options there have also been changes to the maximum sentencing powers and changes to sentencing provisions. Lawyers must therefore consider not only which provision was in force at the relevant time but also whether the maximum sentence has changed. Where a count crosses the date of the change in maximum sentence then the lower maximum sentence will apply.
Great care needs to be taken when drafting counts in non recent cases.
Alternative counts
Prosecutors should avoid using alternative counts where there is a clear complaint of rape. Charging an alternative of a section 9 offence is not considered to be good practice and may suggest the prosecution is not confident of its case and provide an easy option for the jury of convicting under section 9.
Where there are doubts concerning the issues, for example, if it is unclear whether the complainant was penetrated by a penis or another object then an alternative of assault by penetration would be appropriate.
If the Defendant denies any sexual impropriety at all but there is potentially an ambiguity over whether it was a penetrative assault then it may be appropriate to include assault by penetration and sexual assault in the alternative.
Form and content
The form, content and service of the indictment is governed by part 10 of the Criminal Procedure Rules 2020 with further guidance provided by the Criminal Practice Directions.
Rule 10.2 sets out the form of the indictment
Under 10 (2)(1) the indictment must describe the offence in ordinary language, identify the relevant legislation and sets out in the particulars what is alleged against the defendant.
- The particulars of the offence must therefore
- describe the nature of the assault of which the defendant is accused,
- specify whether the assault was penetrative and how the penetration occurred
- specify in counts of rape whether the mouth anus or vagina was penetrated
- specify the age of the victim, if age is a specific averment required by the legislation
Use of multiple incident counts
Rule 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.”
The Practice Direction gives further guidance on the circumstances when a course of conduct count may be appropriate
- Each incident must be of the same offence
- The victim on each occasion was the same (or there was no identifiable victim)
- The alleged incident involved a marked degree of repetition in method or location or both
- The incidents took place over a clearly defined period typically no more than (but not necessarily) a year
- The same defence applies to every alleged incident
The application was considered in R v A [2015] 2.Cr.App.R.(S) 12 CA which held that the prosecution should contain sufficient counts to enable the judge to sentence appropriately to reflect his criminality and the key features. Further the prosecution should state the minimum number of times the alleged offending took place. Where the judge directs that there must only be at least two instances of the offence then the sentence will have to be passed based on two instances.
Specific incidents of offending should be charged as separate counts where they can be identified from the evidence, for example, by reference to a date or other specific event such as a birthday, holiday or the very first incident.
Where consistency with the evidence permits it restricting individual counts in relation to child victims to offences between one birthday and the next is tidier and avoids mixing up different ages.
In the case of Harley [2012] 1 Cr App R 91 the Court of Appeal issued the following guidance for framing multiple incident counts:
- It is important to make clear where it is the case that what is charged is a course of conduct and make clear the period over which it is charged;
- Where it is possible that there was one incident during the period contained by the course of conduct count, a count alleging that incident should also be included in the indictment;
- Where specific incidents can be identified, it is appropriate for such a single incident to be indicted and particularised in such terms;
- Where the period of time over which the course of conduct is said to have occurred is long, it should be addressed by a series of counts covering the period (e.g. on a yearly basis).
Joinder
Rule 3.21(4) (a) provides that “where an indictment charges more than one offence, the court must exercise its power to order separate trials of those offences unless the offences to be tried together
- Are founded on the same facts, or
- Form or are part of a series of offences of the same or a similar character (i.e the former requirement in the rules for lawful joinder)”
What amounts to a series?
- For counts to be properly joined on an indictment there needs to be sufficient similarity or nexus between the offences for them to be regarded as a series
- Two or more offences can amount to a series
- In R v Baird (1993) 97 Cr.App.R.308 counts of assaults committed 9 years apart were held to form part of a series.
- In R v Benabbou [2012] EWCA Crim 1256 the refusal to sever an indictment containing offences one year apart was upheld by the Court of Appeal
- The greater the time gap the stronger the nexus required to establish a series.
- In the case of R v T [2008] EWCA Crim 183 it was held that there was not a sufficient nexus between a charge of Perverting the Course of Justice based on allegations of rape in 2005 which had not been charged and a rape allegation which occurred several months late
- Amendment at retrial post appeal R v PF [2012] 1 W.L.R 3133 The prosecution was permitted to amend the indictment at retrial following a successful appeal to include offences relating to a third victim. Further evidence had come to light and the requirement of then CPR 2011 r.14.2(3) (now Rule 3.30 of the Criminal Procedure 2020) were met – that the alleged offences were of the same or similar character. The application for joinder was deemed reasonable and proper.