4.1 The Indictment: Form, Content, Time Limits & Specimen Counts

4.1 The Indictment: Form, Content, Time Limits & Specimen Counts

Once a case reaches the Crown Court, the charge sheet drops away and the indictment takes over. It is the document on which the defendant is arraigned, on which the jury returns its verdicts, and by reference to which sentence is passed. Everything the Crown wants a jury to decide must appear on it.

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1. Preferring the bill

Under section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933, an indictment must be preferred before the Crown Court. The Criminal Procedure Rules set out how and when. A draft indictment constitutes a bill of indictment (CrimPR r.10.2(5)(a)), and it becomes the indictment at a point that depends on how it was generated:

The time limit. Where the prosecutor serves the draft after sending, it must be served on the Crown Court officer not more than 20 business days after service of the prosecution evidence under r.3.19 (CrimPR r.10.4(2)). Failure to meet the limit does not invalidate the indictment: r.10.2(8) lets the Crown Court extend the time limit under rr.10.4, 10.5, 10.7 or 10.8 even after it has expired. The modern position, confirmed by the case law on the 1933 Act, is that these are procedural requirements and a late indictment is not a nullity.

Responsibility for drafting rests ultimately with the prosecuting advocate, who must satisfy themselves that the counts reflect the evidence served and the criminality alleged.

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2. The form and content of a count

CrimPR r.10.2(1) requires the indictment to be in writing and to contain, in a paragraph called a count:

• (a) A statement of the offence that (i) describes the offence in ordinary language and (ii) identifies the legislation that creates it; and
• (b) Particulars of the conduct constituting the commission of the offence, "as to make clear what the prosecutor alleges against the defendant".

Counts are numbered consecutively (r.10.2(3)), and the indictment must be in one of the forms issued under the Practice Direction and headed to identify whether it is the first, amended, substituted, additional or trial indictment (r.10.2(6)).

What may be included

Rule 10.2(4) is generous. 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 in a draft 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 the Crown Court can try which is based on the prosecution evidence that has been served, including a summary offence to which s.40 of the Criminal Justice Act 1988 applies.

Paragraph (c) is the workhorse: the Crown is not confined to the offences on which the magistrates sent the case, so long as the new count is supported by the served evidence. Section 40 CJA 1988 separately allows a small closed list of summary offences (including common assault, taking a motor vehicle without consent and driving while disqualified) to be charged in the indictment where founded on the same facts or part of a series with an indictable offence — and there the jury tries them.

Duplicity and multiple incidents

The rule against duplicity is that a single count must charge a single offence. The historic exception for "continuous offences" is now codified: r.10.2(2) permits more than one incident of the commission of an offence to be included in one count "if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission". A single count of theft covering 40 small takings from the same till over three months is properly framed; a single count charging a theft in January and a wholly unrelated assault in June is bad for duplicity.

Date of offence. Particulars should give a date, or a specific period ("on a day between 1 January and 31 March"). A minor discrepancy between the date alleged and the date proved is not fatal unless date is a material element.

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3. Specimen and sample counts

Where a defendant is alleged to have committed the same offence hundreds of times, the Crown may select a manageable number of specimen (sample) counts rather than indicting every incident.

The problem is at sentence. The principle in Kidd (Canavan) is that an offender may not be sentenced for offences of which they have neither been convicted nor which they have asked to be taken into consideration. Conviction on six specimen counts therefore permits sentence for six offences, not six hundred — unless:

1. The defendant admits the wider course of conduct (in a basis of plea, or by asking for offences to be taken into consideration); or
2. The two-stage procedure under ss.17–21 of the Domestic Violence, Crime and Victims Act 2004 is used: the jury tries the sample counts, and if it convicts, the judge alone then tries the linked remaining counts.

Practical drafting therefore uses r.10.2(2) multiple-incident counts wherever the incidents genuinely form a course of conduct — that way the conviction itself covers the full course of conduct — and reserves true specimen counts for cases where it does not.

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Exam traps in this section

• The service deadline is 20 business days from service of the prosecution evidence, and it is extendable even after expiry. A late indictment is not a nullity.
• A count must identify the legislation creating the offence and describe it in ordinary language — both limbs.
• Rule 10.2(4)(c) allows counts not sent by the magistrates, provided the served evidence supports them.
• Kidd (Canavan): conviction on specimen counts alone does not authorise sentence for the uncharged remainder.