Chapter 10: Indictments Chapter 10.3: Drafting the indictment (pp 463 ...
Chapter 10: Indictments
Chapter 10.3: Drafting the indictment (pp 463-464)
The effect of the decision of the House of Lords in R v Clarke [2008] UKHL 8 is effectively reversed by s 116(1)(a) and (b) of the Coroners and Justice Act 2009, which amends s 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 by removing the requirement that a bill of indictment (draft indictment) must be signed by the proper officer of the court. The result is that the bill becomes an indictment on being preferred (i.e. sent to the Crown Court). After amendment, s 2(1) reads as follows:
Subject to the provisions of this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before a court in which the person charged may lawfully be indicted for that offence and it shall thereupon become an indictment and be proceeded with accordingly.
Section 116(1)(c) inserts into s 2 of the 1933 Act three new subsections (subs (6ZA)-(6ZC)) which provide that objections to an indictment based on an alleged failure to observe procedural rules may not be taken after the start of the trial (i.e. when the jury has been sworn); for this purpose a preparatory hearing does not mark the start of trial.
Paragraph 26 of Schedule 22 to the 2009 Act provides that, for the purposes of any proceedings before a court after the Act is passed, the amendments are deemed always to have had effect. They therefore apply even to proceedings (including appeals) which began before the Act was passed.
Chapter 10.8: Indictments – joinder (pp 469-473)
In R v Roberts [2008] EWCA Crim 1304; [2009] 1 Cr App R 20, police officers searched the defendant's home. A bag containing drugs was found in the kitchen. Two firearms were found in the bedroom. The defendant was charged with unlawful possession of drugs and with firearms offences. He argued that the drugs counts and firearms counts should not appear on the same indictment. The Court of Appeal held that the phrase 'founded on the same facts' in r 14.2 of the Criminal Procedure Rules does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The
test is whether the charges have a common factual origin. In the present case, joinder was proper. At [12] and [13], Latham LJ said:
… the facts upon which each of the counts was based was (sic) the finding in the one premises at the same time of the drugs and the firearms. In our judgment, that … falls into the category of case where the factual connection is established by the coincidence of time and place, in other words it meets the concept of being "virtually contemporaneous"…
The counts on the indictment all alleged offences of being in illicit possession of prohibited items. These were continuing offences. As it turned out, it was to be the Appellant's case … that different people, who had access to his premises, had secreted these items in the wardrobe without his knowledge on earlier and separate occasions. If it had been his case that he came into possession of all the items in the same way and on the same occasion, there could have been no argument that the counts were improperly joined. The question whether counts have been properly joined cannot, in our judgment, depend upon the explanation given by the Defendant. It is not for the Crown to try and predict what the defence is likely to be at the time that the indictment is drawn. The propriety of the indictment must be judged when it is drawn.
In R v Ferrell [2010] UKPC 20; [2011] 1 All ER 95, the defendant had been convicted of two counts of possession of a controlled drug (counts 1 and 3), two counts of possession of a controlled drug with intent to supply (counts 2 and 4), and nine counts of concealing or transferring the proceeds of drug trafficking (counts 7 to 15). One of the issues raised on appeal was whether counts 7 to 15 were properly joined with counts 1 to 4. At para 9, Lord Clarke noted that the question was “whether, in the circumstances of this case there is a sufficient nexus between the offences charged in the money laundering counts and in the drugs counts”. His Lordship went to say that the Privy Council accepted that there was both a legal and factual nexus between the two sets of counts. Counts 1 to 4 all dealt with the supply of drugs; the drugs would have been sold for money, which would then require to be banked and, in all likelihood, laundered. The prosecution would have to show that, in the case of each of the money laundering counts, some at least of the money derived from drug dealing. On facts, it was open to the jury to infer that the money was indeed the proceeds of drug dealing. This was so even though all the money laundering counts related to transactions that pre-dated the possession of the drugs in the drugs counts; in the absence of a credible explanation to the contrary, it was open to the jury to infer that the defendant had had a system of selling drugs and laundering the money over an extended period (paras 10 and 11). It was open to the jury to reject the defendant’s explanation (that the money derived from smuggling tobacco, not drugs) and to conclude that there was no reasonable doubt that the money came from earlier dealing in drugs (at [12]). The Privy Council was therefore satisfied that the two sets of counts charged a series of offences of a similar character which could and should be tried together, and so were properly joined (at [14]). This decision may appear somewhat surprising on its facts, but in Marsh (1985) 83 Cr App R 165, Mustill LJ said, at p. 171, that:
‘It is noteworthy that Lord Pearson [in Ludlow] did not suggest that two separate hurdles had to be surmounted, but simply that both the law and the facts should be taken into account in considering whether the offences are similar or dissimilar. Obviously, if the offences do not have any similar legal characteristics, then strong similarities of fact will have to exist to permit joinder under the rule. But we do not understand Lord Pearson to be suggesting that the absence of legal similarity as opposed to factual similarity necessarily means that the offences cannot be described as similar in character.
In this connection it is noteworthy that Lord Pearson quoted with approval from the judgment of this Court in Kray (1969) 53 Cr App R 569, to the effect that: ‘All that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a prima facie case that they can properly and conveniently be tried together’.
The decision on joinder necessarily has to be taken by the judge before the start of the trial, and before the jury will have had a chance to consider any explanation put forward by the accused. It is submitted that prosecutors should err on the side of caution and draft separate indictments where there is any uncertainty as to whether the counts could be properly joined in the same indictment.
Chapter 10.9: Indictments – discretion to order separate trials (pp 473-477)
In R v Miah [2011] EWCA Crim 945, the Court of Appeal proceeded on the basis that it is only in ‘very exceptional’ cases that a judge should exercise his judgment in favour of ordering a separate trial for one or more defendants pursuant to s 5(3) of the Indictment Act 1915. At [59], Aikens LJ said that:
the fact that a co-defendant is running a “cut throat” defence is common and is very seldom a successful ground, standing alone, for severance. Nor is the fact that one co-defendant has implicated another in the offences charged in the course of a police interview, which is denied by that second codefendant and which is not admissible as evidence against him. Further, there is always the possibility that a co-defendant who has made an exculpatory statement in interview but at the same time has implicated co-defendants will decide not to give evidence at the trial and rely on just his police interview. Those factors are commonplace.
Chapter 10.12: Amending the indictment: re-trials (pp 483-485) In R v Booker [2011] EWCA Crim 7; [2011] 3 All ER 905, the Court of Appeal considered amendments to an indictment which had been drawn up following an order for re-trial under s 7 of the Criminal Appeal Act 1968. In this case, the amendment was to add a codefendant. Pill LJ (at [24]) said that a ban on adding a defendant to the indictment does not
appear in the wording of s 7(2) of the 1968 Act, and s 5(1) of the Indictments Act 1915 Act should not be applied as if it did. His Lordship said that there is no general principle that previously absent co-conspirators cannot be tried with a conspirator who is subject to a retrial. However, there may be circumstances in which an application to join a defendant at a retrial could amount to an abuse of the process of the court (see Chapter 1.3): if a court found that the prosecution were manipulating the process of the court, and hence the fairness of the retrial, by attempting to add a defendant, then the court would not permit it.
In R v Thompson [2011] EWCA Crim 102, the sole issue was whether an indictment can be amended to add counts in respect of matters which have arisen after the date of the committal proceedings. Thomas LJ quoted from R v Osieh [1996] 1 WLR 1260, where Schiemann LJ had concluded that:
The fact, if it be a fact, that the proposed amendment raises for the first time something not foreshadowed in the committal documents may be a potential ground for not permitting the amendment or, alternatively, only permitting it on terms as to an adjournment. It does not, however, operate as an absolute bar preventing a judge from permitting the amendment. The protection for an accused which is given by s 2 of the Act of 1933 is, in effect, replaced by the judge's discretion which, of course, has to be exercised within the confines of the Indictments Act 1915 and the rules made thereunder.
Thomas LJ concluded (at [29]) that: ‘Although, in our judgment, there is the power to amend the indictment to add matters subsequent to the committal, we agree ... that circumstances in which it might be done are likely to be rare’. His Lordship added (at [32]) that the real issue ‘is whether there is any prejudice or injustice to a defendant or to the fair and proper conduct of an orderly trial if this is done’.
Chapter 10.13: Quashing the indictment (pp 485-486)
In R v FB [2010] EWCA Crim 1857; [2011] 1 WLR 844, it was held that a Crown Court judge has no power to quash an indictment simply because he does not believe that the proceedings should have been brought. Moreover, the case management provisions of the Criminal Procedure Rules cannot be regarded as conferring such a power.
Chapter 10.3: Drafting the indictment (pp 463-464)
The effect of the decision of the House of Lords in R v Clarke [2008] UKHL 8 is effectively reversed by s 116(1)(a) and (b) of the Coroners and Justice Act 2009, which amends s 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 by removing the requirement that a bill of indictment (draft indictment) must be signed by the proper officer of the court. The result is that the bill becomes an indictment on being preferred (i.e. sent to the Crown Court). After amendment, s 2(1) reads as follows:
Subject to the provisions of this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before a court in which the person charged may lawfully be indicted for that offence and it shall thereupon become an indictment and be proceeded with accordingly.
Section 116(1)(c) inserts into s 2 of the 1933 Act three new subsections (subs (6ZA)-(6ZC)) which provide that objections to an indictment based on an alleged failure to observe procedural rules may not be taken after the start of the trial (i.e. when the jury has been sworn); for this purpose a preparatory hearing does not mark the start of trial.
Paragraph 26 of Schedule 22 to the 2009 Act provides that, for the purposes of any proceedings before a court after the Act is passed, the amendments are deemed always to have had effect. They therefore apply even to proceedings (including appeals) which began before the Act was passed.
Chapter 10.8: Indictments – joinder (pp 469-473)
In R v Roberts [2008] EWCA Crim 1304; [2009] 1 Cr App R 20, police officers searched the defendant's home. A bag containing drugs was found in the kitchen. Two firearms were found in the bedroom. The defendant was charged with unlawful possession of drugs and with firearms offences. He argued that the drugs counts and firearms counts should not appear on the same indictment. The Court of Appeal held that the phrase 'founded on the same facts' in r 14.2 of the Criminal Procedure Rules does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The
test is whether the charges have a common factual origin. In the present case, joinder was proper. At [12] and [13], Latham LJ said:
… the facts upon which each of the counts was based was (sic) the finding in the one premises at the same time of the drugs and the firearms. In our judgment, that … falls into the category of case where the factual connection is established by the coincidence of time and place, in other words it meets the concept of being "virtually contemporaneous"…
The counts on the indictment all alleged offences of being in illicit possession of prohibited items. These were continuing offences. As it turned out, it was to be the Appellant's case … that different people, who had access to his premises, had secreted these items in the wardrobe without his knowledge on earlier and separate occasions. If it had been his case that he came into possession of all the items in the same way and on the same occasion, there could have been no argument that the counts were improperly joined. The question whether counts have been properly joined cannot, in our judgment, depend upon the explanation given by the Defendant. It is not for the Crown to try and predict what the defence is likely to be at the time that the indictment is drawn. The propriety of the indictment must be judged when it is drawn.
In R v Ferrell [2010] UKPC 20; [2011] 1 All ER 95, the defendant had been convicted of two counts of possession of a controlled drug (counts 1 and 3), two counts of possession of a controlled drug with intent to supply (counts 2 and 4), and nine counts of concealing or transferring the proceeds of drug trafficking (counts 7 to 15). One of the issues raised on appeal was whether counts 7 to 15 were properly joined with counts 1 to 4. At para 9, Lord Clarke noted that the question was “whether, in the circumstances of this case there is a sufficient nexus between the offences charged in the money laundering counts and in the drugs counts”. His Lordship went to say that the Privy Council accepted that there was both a legal and factual nexus between the two sets of counts. Counts 1 to 4 all dealt with the supply of drugs; the drugs would have been sold for money, which would then require to be banked and, in all likelihood, laundered. The prosecution would have to show that, in the case of each of the money laundering counts, some at least of the money derived from drug dealing. On facts, it was open to the jury to infer that the money was indeed the proceeds of drug dealing. This was so even though all the money laundering counts related to transactions that pre-dated the possession of the drugs in the drugs counts; in the absence of a credible explanation to the contrary, it was open to the jury to infer that the defendant had had a system of selling drugs and laundering the money over an extended period (paras 10 and 11). It was open to the jury to reject the defendant’s explanation (that the money derived from smuggling tobacco, not drugs) and to conclude that there was no reasonable doubt that the money came from earlier dealing in drugs (at [12]). The Privy Council was therefore satisfied that the two sets of counts charged a series of offences of a similar character which could and should be tried together, and so were properly joined (at [14]). This decision may appear somewhat surprising on its facts, but in Marsh (1985) 83 Cr App R 165, Mustill LJ said, at p. 171, that:
‘It is noteworthy that Lord Pearson [in Ludlow] did not suggest that two separate hurdles had to be surmounted, but simply that both the law and the facts should be taken into account in considering whether the offences are similar or dissimilar. Obviously, if the offences do not have any similar legal characteristics, then strong similarities of fact will have to exist to permit joinder under the rule. But we do not understand Lord Pearson to be suggesting that the absence of legal similarity as opposed to factual similarity necessarily means that the offences cannot be described as similar in character.
In this connection it is noteworthy that Lord Pearson quoted with approval from the judgment of this Court in Kray (1969) 53 Cr App R 569, to the effect that: ‘All that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a prima facie case that they can properly and conveniently be tried together’.
The decision on joinder necessarily has to be taken by the judge before the start of the trial, and before the jury will have had a chance to consider any explanation put forward by the accused. It is submitted that prosecutors should err on the side of caution and draft separate indictments where there is any uncertainty as to whether the counts could be properly joined in the same indictment.
Chapter 10.9: Indictments – discretion to order separate trials (pp 473-477)
In R v Miah [2011] EWCA Crim 945, the Court of Appeal proceeded on the basis that it is only in ‘very exceptional’ cases that a judge should exercise his judgment in favour of ordering a separate trial for one or more defendants pursuant to s 5(3) of the Indictment Act 1915. At [59], Aikens LJ said that:
the fact that a co-defendant is running a “cut throat” defence is common and is very seldom a successful ground, standing alone, for severance. Nor is the fact that one co-defendant has implicated another in the offences charged in the course of a police interview, which is denied by that second codefendant and which is not admissible as evidence against him. Further, there is always the possibility that a co-defendant who has made an exculpatory statement in interview but at the same time has implicated co-defendants will decide not to give evidence at the trial and rely on just his police interview. Those factors are commonplace.
Chapter 10.12: Amending the indictment: re-trials (pp 483-485) In R v Booker [2011] EWCA Crim 7; [2011] 3 All ER 905, the Court of Appeal considered amendments to an indictment which had been drawn up following an order for re-trial under s 7 of the Criminal Appeal Act 1968. In this case, the amendment was to add a codefendant. Pill LJ (at [24]) said that a ban on adding a defendant to the indictment does not
appear in the wording of s 7(2) of the 1968 Act, and s 5(1) of the Indictments Act 1915 Act should not be applied as if it did. His Lordship said that there is no general principle that previously absent co-conspirators cannot be tried with a conspirator who is subject to a retrial. However, there may be circumstances in which an application to join a defendant at a retrial could amount to an abuse of the process of the court (see Chapter 1.3): if a court found that the prosecution were manipulating the process of the court, and hence the fairness of the retrial, by attempting to add a defendant, then the court would not permit it.
In R v Thompson [2011] EWCA Crim 102, the sole issue was whether an indictment can be amended to add counts in respect of matters which have arisen after the date of the committal proceedings. Thomas LJ quoted from R v Osieh [1996] 1 WLR 1260, where Schiemann LJ had concluded that:
The fact, if it be a fact, that the proposed amendment raises for the first time something not foreshadowed in the committal documents may be a potential ground for not permitting the amendment or, alternatively, only permitting it on terms as to an adjournment. It does not, however, operate as an absolute bar preventing a judge from permitting the amendment. The protection for an accused which is given by s 2 of the Act of 1933 is, in effect, replaced by the judge's discretion which, of course, has to be exercised within the confines of the Indictments Act 1915 and the rules made thereunder.
Thomas LJ concluded (at [29]) that: ‘Although, in our judgment, there is the power to amend the indictment to add matters subsequent to the committal, we agree ... that circumstances in which it might be done are likely to be rare’. His Lordship added (at [32]) that the real issue ‘is whether there is any prejudice or injustice to a defendant or to the fair and proper conduct of an orderly trial if this is done’.
Chapter 10.13: Quashing the indictment (pp 485-486)
In R v FB [2010] EWCA Crim 1857; [2011] 1 WLR 844, it was held that a Crown Court judge has no power to quash an indictment simply because he does not believe that the proceedings should have been brought. Moreover, the case management provisions of the Criminal Procedure Rules cannot be regarded as conferring such a power.
