Drafting multiple offender indictments

In the light of the latest set of amendments to the Criminal Procedure Rules 2005 [CPR] and the enactment of section 17 Domestic Violence Crime and Victims Act 2004, René Barclay seeks to explain and summarise the current options available to a prosecutor when drafting an indictment in relation to a multiple offender.

For the purposes of this article a multiple offender is a person who has committed a significant number of offences, of the same or similar character, on different occasions over a sustained period [days, weeks, months or even years].

The offences may involve one/more than one targeted victim [corporate or human] or no identifiable victim at all.

Typical examples include the professional robber/burglar, the serial car thief, cases involving the repeated siphoning of bank account funds/cash, the repeated supply of controlled drugs or the large scale downloading/production of child pornography, and cases of sexual assault covering perhaps years of abuse.

Basic principles

Two issues of cardinal importance must be borne in mind when drafting the indictment.

•Firstly, in any given case the charges selected by prosecutors must be correct in law, and evidentially supportable so as to provide a realistic prospect of conviction.

•Secondly, the charges must properly reflect the seriousness of the offending, give the court adequate sentencing powers, and enable the case to be presented in a clear and simple way. (See Paragraph 7.1 Code for Crown prosecutors)

There are five possible options or mechanisms available to a prosecutor for the purposes of meeting the requirements of paragraph 7.1. They are as follows:

1.Charge all offences disclosed on the papers.

2.Charge sample [specimen] offences disclosed on the papers in accordance with R v Canavan; Kidd; Shaw 1998 1 C.A.R.79 as applied in R v Tovey & Smith [2005] EWCA Crim 530.

3.Charge a general offence [ for example conspiracy or a “multiple incident” offence within Rule 14 (2) CPR] covering the extent of the offending disclosed on the papers.

4.Charge sample [specimen] offences disclosed on the papers where the case falls within sections 17-21 DVCV

5.Seek to have those offences not charged taken into consideration (TICd) by the court when sentencing a defendant for the charged offences.

The most appropriate option [or options] in any given case will crucially depend on the nature of the available evidence and the anticipated plea. There is little point, for example, in seeking to have offences taken into consideration when it is known the defendant is contesting the case. Equally, there is no point in seeking to adopt the procedure set out in DVCV if it is known the defendant is pleading guilty.

The options are set out in more detail in the following paragraphs.

1. Charge all offences

In most cases involving a few incidents of offending (say three assaults in the space of an hour, four robberies committed in one night or six instances of tendering a stolen credit card during the course of a day) it is a relatively straightforward task to draft appropriate charges so as to cover every incident of offending clearly and succinctly.

If this is achieved, the jury’s task is simplified and the trial judge, in the event of a conviction, knows exactly upon what basis they must sentence the offender. Most importantly it leaves the victim and defendant in no doubt as to the position.

In cases involving multiple offenders, however, the result of charging large numbers of counts is a likelihood that the indictment will become overloaded; the court will find it difficult to deal fairly and accurately with the case and, in a trial, the task of a jury may be formidable and beyond what is reasonable to expect of them.

There is no magic formula for determining when an indictment is overloaded but it is suggested that, in general terms and as a rough guide, an indictment which contains more than say 15 counts, excluding proper