The indictment: lawful counts, joinder, severance and amendment

Read the document at three different levels

A countGlossary termCount alleges a particular offence. The indictmentGlossary termIndictment collects the counts to be pursued in the Crown Court. To check it properly, ask separately: Is each count intelligible? Is there a lawful basis to include it? Is it fair and manageable to try these counts or defendants together? Confusing these questions produces both wrongful objections and overlooked prejudice. CrimPR 10.2, 3.29 and the Indictments Act 1915, section 5 provide different controls.

Under CrimPR 10.2(1), each count must state the offence in ordinary language, identify any legislation creating it, and give enough particulars of the alleged conduct to make the accusation clear. A common-law offence does not require an invented statutory section. Particulars ordinarily identify what the defendant allegedly did, to whom or what, and the relevant occasion or period with enough clarity for the defence and court to understand the allegation. The necessary precision depends on the offence and evidence; a date range is not automatically defective, but cannot be used to conceal which conduct is charged.

One count and a course of conduct

The ordinary unit is one offence in a count. Duplicity is the defect of charging more than one offence in a single count. CrimPR 10.2(2) permits more than one incident in a count where the incidents, taken together, amount to a course of conduct having regard to their time, place or purpose. This is an exception that needs a genuine factual basis, not a device for combining unrelated offences because they involve the same defendant. Number the counts consecutively under 10.2(3) and ensure that the structure permits understandable pleas and verdicts.

For example, repeated dishonest withdrawals carried out through the same arrangement over a defined period may require consideration of the course-of-conduct rule. By contrast, “assaults on two people at unspecified unrelated locations over six months” does not establish that basis merely by using a single date range. The correct response is to identify the alleged incidents and consider proper particulars, separate counts or amendment; a vague count does not automatically establish innocence or require an acquittal. CrimPR 10.2(1)–(2); Indictments Act 1915, section 5.

Count inclusion is not the old universal same-facts test

Under CrimPR 10.2(4), more than one count can be included if the offences are substantially the same as those for which the defendant was sent, were included in an indictment for which the relevant High Court permission or Court of Appeal retrial order was given, or are offences the Crown Court can try based on prosecution evidence already served. The rule expressly accommodates the statutory route for specified summary offences under section 40 of the Criminal Justice Act 1988. This does not give the Crown Court general jurisdiction over every summary offence.

Do not replace those inclusion routes with a universal rule that every pair of counts must be founded on the same facts or form a series of similar offences. In the current rules, absence of that connection is an important example of possible prejudice in the separate-trial analysis under 3.29(4). Particular statutory gateways, including the section 40 summary-offence route, retain their own conditions. Thus “same facts or series is never relevant” is as wrong as “same facts or series is always the count-inclusion gate”.

Preferring an indictment means bringing it formally before the Crown Court through the applicable route; it is not a synonym for a judge approving the prosecution’s factual case. Part 10 distinguishes the electronic process from other service routes. Under 10.2(5) and 10.3, an electronic draft is preferred immediately before the first count is read or placed before the defendant for a plea. Other specified routes depend on service on the Crown Court officer or the relevant approval. The non-electronic sending route in 10.4 ordinarily requires service of the draft within 20 business days after service of the prosecution evidence. The separate Court of Appeal retrial route in 10.8(2) now also uses 20 business days, following the operative April 2026 amendment, not the superseded 28-day wording. None of these routes permits an unintelligible accusation or removes the defendant’s opportunity to challenge it.

Joinder and severance: organise the trial fairly

JoinderGlossary termJoinder concerns bringing counts or defendants together for trial; severanceGlossary termSeverance separates their trials. A joint trial can allow the jury to understand the whole transaction, reduce repetition and avoid inconsistent presentation. A separate trial can be needed where a defendant would be prejudiced or embarrassed in presenting the defence or where separation is otherwise desirable. CrimPR 3.29(4); Indictments Act 1915, section 5(3). Efficiency is relevant, but does not answer the fairness question by itself.

Consider the extent of factual connection, overlap of witnesses, volume and complexity, whether the jury can keep the allegations and defendants separate, and whether evidence admissible against one defendant or on one count creates a real difficulty in the combined trial. The existence of an adverse confession by a co-defendant does not by itself determine severance: identify against whom it is admissible, what directions or presentation can protect fairness, and the remaining prejudice. Those admissibility rules are taught in the evidence chapters; the preparation task is to place the actual problem before the court rather than assert that all joint trials are either compulsory or unfair.

Under CrimPR 3.29(1)–(3), a party seeking joint trials of separate indictments, separate trials of counts or defendants on one indictment, or deletion of a count applies in writing as soon as practicable, ordinarily before trial unless the grounds arise only during it. Serve the court officer and each other party, specify the proposed order and explain why it should be made. A party responding serves representations within 10 business days of service of the application, subject to the court’s applicable variation power. A passing oral mention is not the ordinary prescribed application.

Amendment repairs a charge; it is not a substitute for a fair trial

Under section 5(1) of the Indictments Act 1915, where an indictment is defective before or during trial, the court makes the amendment required by the circumstances unless it cannot be made without injustice. The practical question is not simply whether the prosecution can devise better wording. Will the defendant understand the changed allegation and have a fair opportunity to meet it? Does it require new instructions, investigation, witnesses, a different plea or more preparation? Can particulars, separation or a postponement cure the problem? Section 5(4) provides for the postponement made necessary by amendment or a separate-trial order.

A spelling error or genuinely non-prejudicial correction and a new allegation requiring unavailable evidence are not equivalent. An amendment early enough for a proper defence may be permissible where the same change at the end of a trial would cause injustice. The court must assess the actual circumstances. The order and its date must be properly reflected in the affected indictment; CrimPR 3.30 governs endorsement of paper copies unless the court directs otherwise. Do not leave the parties and jury using inconsistent versions.