Indictments .docx

*[Subject 3 -- Indictments ]* - The ultimate purpose of an indictment is that it should be a document that clearly sets out the charge or charges against the defendant. *[D11.1 -- What is an indictment? ]* - The indictment is the document containing the charges against the accused...

*[Subject 3 -- Indictments ]* - The ultimate purpose of an indictment is that it should be a document that clearly sets out the charge or charges against the defendant. *[D11.1 -- What is an indictment? ]* - The indictment is the document containing the charges against the accused on which the accused is arraigned at the commencement of a trial on indictment. *[D11.2 -- What are the rules for an indictment? ]* No draft indictment may be served unless: - the accused has been sent for trial (pursuant to the CDA 1998, s. 51 or 51A); - a High Court judge has directed or consented to the preferment of a voluntary bill of indictment (the procedure relating to which is in CrimPR 10.9 and CrimPD II, para. 10B; see D10.66); - a Crown Court Judge has consented to the preferment of a bill of indictment following a declaration by the court approving a deferred prosecution agreement (pursuant to the CCA 2013, sch. 17, para. 8(1)); - The prosecutor wants to re institute proceedings in the CC (service of a draft indictment within 3 months of the date on which the Crown Court ordered the stay, or within such longer period as the court allows.) - the Court of Appeal has ordered a retrial. (require the arraignment of a defendant within 2 months) Where Cc orders a retrial indictment must eb served in 28 days. Preferring of the indictment in a case where there is a deferred prosecution agreement, which acts as the catalyst for the suspending of the proceedings pursuant to the terms of the agreement. A bill of indictment charging any person with an indictable offence may be preferred by any person before the \[Crown Court\] and it shall thereupon become an indictment and be proceeded upon accordingly. - must be in writing and must contain, in a paragraph called a 'count'--- - Becomes an indictment immediately before the accused is arraigned. - it was emphasised that an indictment that had been served pursuant to CrimPR Part 10 duly became 'the indictment' without the necessity for it to be signed. - the act of uploading such an indictment to the digital system is sufficient for that indictment to be preferred for the purposes of CrimPR 10.3 and 10.4. Draft indictment generated electronically on sending for trial), immediately before the first count (or the only count, if there is only one) is read to or placed before the defendant to take the defendant's plea). When the prosecutor serves the draft indictment on the Crown Court officer, An indictment must include at the head of the document in which it is set out the date of that document and a statement that it contains, as appropriate--- - the first indictment in the case, - a proposed amended indictment, - a substituted indictment, - an additional indictment, - a trial indictment, or - an indictment required by rule 25.16(3)(e) (substituted indictment for sentencing purposes) *[D11.3 -- Can indictments be electronically generated? ]* - In the majority of cases a draft indictment will be generated electronically when the case is sent, "based on the allegations before the magistrates' court, subject to substitution or amendment of the charges included by the prosecution". A draft indictment, by being uploaded to the digital system, had been 'preferred'. - Where the allegations are sent then these allegations of indictable offence turn into counts or any summary offence pursuant to s40. if under rule 3.19 (Service of prosecution evidence) the prosecutor has served copies of the documents containing the evidence on which the prosecution case relies then, before the draft indictment is preferred before the Crown Court under rule 10.2(5)(b)(i), the prosecutor may substitute or add--- - any count charging substantially the same offence as one specified in the notice, and - any other count charging an offence which the Crown Court can try and which is based on the prosecution evidence so served; and - CrimPR 10.2 requires that a draft indictment should be served on the court and endorsed by a court officer and that when the draft indictment is endorsed, the date of receipt should be added (r. 10.2(7)(a)), it is clear that a failure to satisfy these requirements does not impugn the validity of an electronically served indictment. - The officer of the Crown Court is required to endorse it, unless the court directs otherwise - it was the duty of prosecution and defence to regularise the position where more than one indictment had been uploaded by the time of trial and that, at trial, the court should inquire whether there were outstanding issues in relation to the indictment on which it was about to try an accused before proceeding to do so. - The court is directed to require the prosecution to identify which indictment they wish to pursue, including which order the defendants are to be listed in on the indictment, and to ensure the defendants understand and have been arraigned on that indictment. *[D11.6 -- Who has the responsibility of drafting an indictment? ]* - Ultimate responsibility for the indictment rests with counsel for the prosecution, who must ensure that it is in proper form before arraignment. *[D11.8 -- What are the time limits for serving an indictment? ]* Save in cases where the draft indictment has been generated automatically on the sending of the case; a draft indictment should be served on an appropriate officer of the Crown Court within 20 business days of the date on which: - copies of documents are served where a person is sent for trial under the CDA 1998, s. 51 - a High Court judge has consented to the preferment of a voluntary bill of indictment. If prosecution wants to add more counts which differ from or are additional to the basis on which the accused was sent then a draft indictment should be served quicker than the period above. The indictment to be served at least seven days before the PTPH, which itself takes place within 28 days of the case being sent to the Crown Court. *[D11.9 -- Can the time limit be extended? ]* - Crown Court to extend the time-limit, even after it has expired. no specific rules as to the means by which an application for an extension should be made, or what such an application should contain. *[D11.13 -- D11.14 -- What counts may include in the indictment? ]* - When the accused is sent under s51 -- and a bill of indictment can be preferred then it sent in conjunction with porvisio 1 of the sub section -- where the person charged has been sent for trial, the bill of indictment against him may include, either in substitution for or in addition to any count charging an offence specified in the notice under section 57D(1) of the CDA 1998, any counts founded on material which, in pursuance of regulations made under paragraph 1 of schedule 3 to that Act, was served on the person charged, being counts which may lawfully be joined in the same indictment'. - - any count charging substantially the same offence as one for which the defendant was sent for trial; - any count contained in a draft indictment served with the permission of a High Court judge or at the direction of the Court of Appeal; and - any other count charging an offence that the Crown Court can try and which is based on the prosecution evidence that has been served, including a summary offence to which section 40 applies. - Subject to the rules on when counts and/or defendants are sufficiently closely linked to be properly joined in a single indictment: "a draft indictment may include charges for any indictable offence disclosed by the evidence served under the regulations for the service of the prosecution case after the accused has been sent". - Usually counts in the indictment simply follow the original charges. - Where the drafter chooses to include a count for an offence in respect of which the accused was not sent, the drafter must be careful to ensure that the offence is in fact disclosed by the statements, so as to ensure compliance with the proviso to s. 2(2)(i). - as much notice as possible of such charges is provided to the accused. *[D11.23 -- What is the general form of an indictment? ]* - Each offence charged should be set out in a separate paragraph or count (r. 10.2(1)). If there is more than one count, they should be numbered (r. 10.2(3)). - Each count should be divided into a "statement of offence and particulars of offence" (r. 10.2(1)(a) and (b)). - The "statement of offence describes the offence shortly in ordinary language", and, if the offence is statutory, should specify by section and subsection the provision contravened (Indictments Act 1915, s. 3(1), and r. 10.2(1)(a)). - The particulars of offence should give 'such particulars as may be necessary for giving reasonable information as to the nature of the charge' (Indictments Act 1915, s. 3(1)). This is supplemented by r. 10.2(1)(b) which states that there should be included 'such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant'. - The counts must be numbered consecutively. *[D11.28 -- What is the date of the offence? ]* - Count should state the date on which the offence occurred insofar as it is known. day of the month, followed by the month, followed by the year. - If the precise date is unknown, it is sufficient to allege that the offence occurred 'on or about' a specified date (the evidence must show the offence to have been committed 'within some period that has a reasonable approximation to the date mentioned in the indictment'), or 'on a day unknown' before a specified date, or 'on a date other than the date in count one'. - 'on a day unknown between' two specified dates. If the last-mentioned formula is adopted, the days specified should be those immediately before the earliest and immediately after the latest days on which the offence could have been committed. *[D11.32 -- What about continuous offences? ]* - The rule against duplicity (i.e. each count may allege only one offence) requires that a count must allege that the offence occurred on one day, not on several days. If not, the only sensible interpretation of such an allegation would be that the accused had committed several distinct offences on different days. The prosecution are permitted to have one count for what are technically distinct criminal acts where those acts formed a single activity or transaction; the mention of more than one day (whether conjunctively or disjunctively) in the count is inconsistent with there having been a single activity on the accused's part. The exception to the general principle just stated is that where an offence is properly to be regarded as a continuing offence which may take place continuously or intermittently over a period of time, then a count may properly allege that it occurred on more than one day. *[D11.34 -- ]* - Conspiracy is a clear example of a continuous indictable offence. The offence begins when any two or more parties enter into the unlawful agreement and continues until it comes to an end. - a count for conspiring to cause explosions between 1 January 1968 and July 1971 was held not to be bad for duplicity. - A count for conspiracy to defraud a bank, suggested that the particulars could have begun '\[The defendants\] on divers days between ... and ... conspired together and with ...' - Theft is clearly not a continuous offence. Where the evidence is that the accused, on numerous separate occasions over a lengthy period, stole small sums or items of property, but it is not possible to particularise the exact days on which the appropriations occurred, it is possible to have a single count alleging that, on a day within the overall period, the accused stole all the relevant money or property. *[D11.35]* More than one incident of the commission of an 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. - It is possible to include more than one incident per count. *[D11.63 -- What about joinder of counts in indictment? ]* - The court may order separate trials unless 'the offences to be tried together (i) are founded on the same facts, or (ii) form or are part of a series of offences of the same or similar character'. That this is an exercise of the court's discretion in this respect. Where the same indictment charges more than one offence, the court may exercise its power to order separate trials of those offences if of the opinion that---(a) the defendant otherwise may be prejudiced or embarrassed in his or her defence (for example, where the offences to be tried together are neither founded on the same facts nor form or are part of a series of offences of the same or a similar character); or (b) for any other reason it is desirable that the defendant should be tried separately for any one or more of those offences. *[D11.64 -- ]* A power to sever without this qualification (not just to a valid indictment) The trial judge could have amended the indictment so as to delete either the drugs count or the assault counts. That having been done, the trial could validly have proceeded on what remained (at p. 406F). See also Follett \[1989\] QB 338. Given that no amendment had in fact been made, the unamended indictment was invalid by reason of the contravention of r. 9. Because it was capable of being rendered valid by an appropriate amendment, it was not a nullity. The indictment itself was not a nullity and it was wrong to suggest that all proceedings flowing from an indictment containing a count improperly joined were a nullity (as opposed to the proceedings on the improperly joined count). Joinder was inappropriate where one of those to be joined was absent, he had not been arraigned on the pre-joinder indictment, and evidence relating to him was prejudicial to the defendants who were present. Where the evidence on one count would be properly admissible on the other as evidence of bad character it is difficult to argue that the defendant would be "prejudiced or embarrassed in his defence" by having both counts or sets of counts on the same indictment'. *[D11.65 -- The first limb -- charges found on the same facts?]* Clearly satisfied if the offences alleged in counts joined in one indictment arose out of a single incident or an uninterrupted course of conduct. *[D11.66 -- What about when the offence is a pre-condition to the second? ]* CrimPR 3.29(4), like its predecessor, is not restricted to offences that were committed contemporaneously or substantially contemporaneously with each other, "but extends to situations where later offences would not have been committed but for the prior commission of an earlier offence". - The phrase 'founded on the same facts' 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. "If the charge described by counsel as the subsidiary charge is one that could not have been alleged but for the facts which give rise to what he called the primary charge", then it is true to say for the purposes of rule 9 that those charges are founded, that is to say have their origin, in the same facts and can legitimately be joined in the same indictment. A factual connection between the counts is established by a coincidence of time and place. It is irrelevant that the accused's explanation is different for each offence. *[D11.70 -- The second limb -- Series of Offences of the Same or a Similar Character? ]* - Two offences are capable of constituting a 'series'. - In deciding whether offences exhibit the similarity demanded by the rule, the court should take into account both their legal and their factual characteristics. To show the existence of a series of offences, the prosecution must be able to point to some nexus between them. This means 'a feature of similarity which in all the circumstances of the case enables the offences to be described as a series'. A nexus is clearly established if the offences are so connected that the evidence of one would be admissible to prove the commission of the other in accordance with the rules on similar-fact evidence, but this is not essential. *[D11.36 -- D11.38 What are specimen counts? ]* Where a person is accused of adopting a systematic course of criminal conduct, and where it is not appropriate to allege a continuous offence (see D11.32) or a multiple offending count (see D11.35), the prosecution sometimes proceed by way of specimen or sample counts. The practice which the prosecution ought to adopt in these circumstances is as follows: - the defence should be provided with a list of all the similar offences of which it is alleged that those selected in the indictment are samples; - evidence of some or all of these additional offences may in appropriate cases be led as evidence of system; - in other cases, the additional offences need not be referred to until after a verdict of guilty upon the sample offence is returned Potential problems arise with specimen counts in relation to sentencing because the accused should not thereby be denied the right to be tried by a jury for offending for which the accused may ultimately be sentenced. The indictment had to be drafted in such a way as to enable the accused to know, with as much particularity as the circumstances would admit, what case the accused had to meet. *[D11.72 -- D11.75 -- How to join two accused in the same indictment? ]* - Two or more accused may be joined in one indictment either as a result of being named together in one or more counts on the indictment, or as a result of being named individually in separate counts, albeit that there is no single count against them all. All parties to a joint offence may be indicted for it in a single count. In drafting the count: - There is no need to distinguish between principal offenders and secondary parties - The count need not expressly allege that the unlawful acts of each accused were done in aid of the others, as that allegation is implicit in the drafting of a single count Where the prosecution seek to join an accused to an indictment following an order that the accused in question be retried pursuant to the Criminal Appeal Act 1968, s. 7(2), then, in addition to the considerations of general application to an application for joinder, - there is added the need to consider if the accused would be substantially adversely affected, so that joinder would represent an abuse of process. There is no prohibition on the addition of counts to an indictment in such circumstances, where it is fair to do so. Whether D should have been severed from his co-accused on a joint charge where one of the co-accused had implicated the appellant in interview. The Court of Appeal observed that the interests of justice were normally best served by allegations with a common thread being ventilated together, and this included issues between defendants, always assuming that injustice could be avoided by robust direction to the jury as to the uses to which parts of the evidence could, and could not, be put. *[What about verdicts on joint counts? ]* - Notwithstanding that the accused have been charged in a single count, the jury may convict all or any of them on the basis that they committed the offence charged independently of the others. It is sufficient to support a conviction against any and each of them to prove either that he himself did a physical act which is an essential ingredient of the offence charged or that he helped another to do such an act, and, that in doing the act or in helping the other defendant to do it, he himself had the necessary criminal intent. If two accused, D1 and D2, are charged in a joint count the jury may (a) acquit both, or (b) convict both, or (c) acquit one and convict the other. Jury may equally convict both where the evidence suggests that they acted independently of each other if they are satisfied that each accused committed the offence. If there is a split verdict, the verdict against the convicted accused is not open to challenge on the ground that the jury must have found that the accused acted alone without assistance either from the acquitted co-accused or anybody else. *[What about joining on separate counts? ]* - The joining of two or more accused in one indictment notwithstanding the absence of a joint count against them is permitted. Questions of joinder, whether of offences or offenders, are 'matters of practice on which the court has, unless restrained by statute, inherent power both to formulate its own rules and to vary them in the light of current experience and the needs of justice. Since joinder of offenders is merely a matter of practice, errors in the application of the relevant rules, though amounting to an irregularity in the proceedings, will not deprive the trial court of jurisdiction. Dismiss an appeal against conviction advanced on this ground if there has been no miscarriage of justice. In summary, joinder is appropriate if the offences separately alleged against the accused are, on the evidence, so closely related by time or other factors that the interests of justice are best served by a single trial. where there is a joint count against two accused, that count may be followed by a separate count or counts against one or more of the accused even in relation to a distinct matter. *[D11.76 -- D11.79 -- How to sever counts? ]* The court has the power to order the separate trial of accused or of offences that are properly joined in one indictment -- - Which requires the court, following an order for severance under s. 5(3), to make such order for postponement of the trial as appears necessary and expedient; and - s\. 5(5), which provides that the procedure on the separate trial of a count following an order under s. 5(3) shall be the same in all respects as if the count had been preferred in a separate indictment. Apply only to valid indictments (but look at severance for invalid indictments in 11.64). Where, before trial, or at any stage of a trial, the court is of opinion that the postponement of the trial of a person accused is expedient as a consequence of the exercise of any power of the court under this Act to amend an indictment or to order a separate trial of a count, the court shall make such order as to the postponement of the trial as appears necessary. - If such an order is made during a trial the court may order that the jury (if there is one) are to be discharged from giving a verdict on the count or counts the trial of which is postponed or on the indictment, as the case may be; and - the procedure on the separate trial of a count shall be the same in all respects as if the count had been found in a separate indictment, and the procedure on the postponed trial shall be the same in all respects (if the jury has been discharged under para (a)) as if the trial had not commenced; and - the court may make such order as to granting the accused person bail and as to the enlargement of recognisances and otherwise as the court thinks fit. Where counts for separate offences can be tried together, pursuant to CrimPR 3.29(4), the trial judge is able to exercise discretion to order separate trials, if their joint trial would be prejudicial or embarrassing for some reason or if some other feature makes that course. In some cases the offences charged may be too numerous and complicated, ... or too difficult to disentangle, ... so that a joint trial of all the counts is likely to cause confusion and the defence may be embarrassed or prejudiced. - In this regard, special considerations govern the trial of counts for sexual offences In other cases objection may be taken to the inclusion of a count on the ground that it is of a scandalous nature and likely to arouse in the minds of the jury hostile feelings against the accused .... - In that case, the prosecution were criticised for including in a firearms indictment a count which showed that D had been sentenced to a previous sentence of imprisonment with the result that he was prohibited from possession of a firearm. The fact that D wishes to give evidence in his or her own defence on one of the counts but not on the others is not, in the normal case, a sufficient reason for severance, even though non-severance will oblige D to choose between not testifying at all and being exposed to cross-examination about all the charges. *[D11.86 -- D11.88 What is the discretion to order separate trials? ]* The court has a discretion to order separate trials of accused who have properly been joined in one indictment. Because severance of the trial of jointly indicted accused is a matter of discretion, the way in which the discretion is exercised is unlikely to provide a successful ground of appeal. Where the accused are charged in a joint count, the arguments in favour of a joint trial are very strong -- - severance will necessitate much or all of the prosecution evidence being given twice before different juries and increase the risk of inconsistent verdicts. - Even if the accused are expected to blame each other for the offence (i.e. will run 'cut-throat' defences), the interests of the prosecution and the public in a single trial will generally outweigh the interests of the defence in not having to call each accused before the same jury to give evidence for him or herself which will incriminate the other. Where the prosecution case against one accused (D1) includes evidence that is admissible against D1 but not against the co-accused (D2), there is no obligation to order severance simply because the evidence in question might prejudice the jury against D2. - The judge should balance the advantages of a single trial against the possible prejudice to D2, and should consider especially how far an appropriate direction to the jury is really likely to ensure that they take into account the evidence only for its proper purpose of proving the case against D1. Where a joint trial of numerous accused would lead to a very long and complicated trial, the judge should consider whether a number of shorter trials, each involving only some of the accused, might make for a fairer and more efficient disposition of the issues. There may be some distinction to be drawn between cases where the accused are jointly charged in a single count and those where they allegedly committed separate offences which were nonetheless sufficiently linked to be put in one indictment. In the latter situation, the cases against the accused are unlikely to be as closely intertwined as when a joint offence is alleged, and the public interest argument in favour of a single trial is correspondingly less strong. The decision should be in favour of joint trial unless the risk of prejudice is unusually great. *[D11.99 -- D11.100 -- What is the power to amend an indictment? ]* - Before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice. The power may be exercised- - In respect of formal defects in the wording of a count, for example when the statement of offence fails to specify the statute contravened or when the particulars do not disclose an essential element of the offence, and - In respect of substantial defects such as divergences between the allegations in the count and the evidence foreshadowed in the material served under the regulations for the service of the prosecution case after the accused has been sent for trial or called at trial. Any alteration in matters of description, and probably in many other respects, may be made in order to meet the evidence in the case so long as the amendment causes no injustice to the accused person. *[D11.103 -- D11.104 -- Can you amend by insertion of a new count? ]* - 'there is no rule of law which precludes amendment of an indictment after arraignment, either by addition of a new count or otherwise'. - Where the addition is made after arraignment, it will be necessary to put the new counts to the accused to enable the accused to plead to them. Amendment can be made even after the close of the prosecution case; Amendment following successful submission of no case to answer as to certain counts on the indictment. For all material purposes, the 27 counts reproduced what had appeared in the 11 counts. No new allegations had been added; the amendments were of form rather than substance and it was not necessary to go through the process of re-arraignment. Court of Appeal approved "the power to amend under s. 5 was held not to be limited by the evidence served at committal, and the question to be assessed before permission to amend is granted is whether or not the accused will be unfairly prejudiced by the amendment. The fact that an amendment raises for the first time something not foreshadowed in the documents may be a ground for not permitting the amendment, or permitting it only together with an adjournment". *[D11.105 -- What is the timing of the amendment? ]* - An indictment may be amended at any stage of a trial, whether before or after arraignment. where the insertion of the new counts occurred after arraignment but before the empanelling of the jury; Here the amendment took the form of an alteration in the description of the property obtained by deception and was granted after the close of the prosecution case; here the amendment was made after the jury had been out considering their verdict for over three hours --- on appeal, counsel for C accepted 'that the words in section 5(1) of the Indictments Act 1915 "at any stage of a trial" do permit amendment even after the jury have gone into retirement if the circumstances otherwise justify it and no injustice is caused to the defendant'. The later the amendment, the greater the risk of its causing injustice and therefore the less likely it is to be allowed. However, an indictment may be amended even at the stage of retrial, provided that no injustice is done. adding an alternative count after D had given evidence was considered unfair. *[D10.66 -- What are voluntary bills of indictment? ]* A bill of indictment may be preferred 'by the direction or with the consent of a judge of the High Court'. - Obtaining a 'voluntary bill of indictment' simply means seeking an order from a High Court judge that the accused should stand trial in the Crown Court for the offence(s) set out in the application. The principal use of this exceptional procedure is to allow proceedings to be reinstituted where a charge has been dismissed under the CDA 1998, sch. 3, para. 2 (see D10.23), but fresh evidence against the accused has subsequently come to light. *[D10.70 -- What circumstances would be good for applying a voluntary bill of indictment? ]* - the preferment of a voluntary bill is 'an exceptional procedure' and should be used only where 'good reason to depart from the normal procedure is clearly shown and only where the interests of justice, rather than considerations of administrative convenience, require it'. Specific provision is made for the use of the voluntary bill procedure where a charge transferred to the Crown Court (under the CDA 1998, s. 51) has been dismissed (under the CDA 1998, sch. 3, para. 2; see D10.23) and the prosecution wish to seek a trial nonetheless; indeed, in such circumstances, further proceedings may be brought on the dismissed charge(s) only by means of the preferment of a voluntary bill of indictment. *[CrimPD 10A.1 to 10A.5 and 10A.10 -- ]* - Where a defendant is contemplating an application to the Crown Court to dismiss an offence sent for trial, under the provisions to which CrimPR 9.16 applies, or where the prosecutor is contemplating discontinuance, under the provisions to which CrimPR Part 12 applies, the parties and the court must be astute to the effect of the occurrence of those events: *the right to apply for dismissal is lost if the defendant is arraigned, and the right to discontinue is lost if the indictment is preferred*. - No requirement to print and sign indictment. - Any paper copy of the indictment which for any reason in fact is made for the court must be endorsed with a note to identify it as a copy of the indictment, and with the date on which the indictment came into being. - Any paper copy of an indictment which in fact has been made must be endorsed with a note of the order and of its date where the court makes an order for joint or separate trials affecting that indictment or makes an order for the amendment of that indictment in any respect. - It is for the court to decide which allegations, against whom, should be tried at the same time, having regard to the prosecutor's proposals, the parties' representations, the court's powers under the 1915 Act (see also CrimPR 3.21(4)) and the overriding objective. It is generally undesirable for a large number of counts to be tried at the same time and the prosecutor may be required to identify a selection of counts on which the trial should proceed, leaving a decision to be taken later whether to try any of the remainder. Where an indictment contains substantive counts and one or more related conspiracy counts, the court will expect the prosecutor to justify their joint trial. Failing justification, the prosecutor should be required to choose whether to proceed on the substantive counts or on the conspiracy counts. In any event, if there is a conviction on any counts that are tried, then those that have not been proceeded with can remain on the file marked 'not to be proceeded with without the leave of the court or the Court of Appeal'. In the event that a conviction is later quashed on appeal, the remaining counts can be tried. There is no rule of law or practice which prohibits two indictments being in existence at the same time for the same offence against the same person and on the same facts. However, the court will not allow the prosecutor to proceed on both indictments. Different defendants have been separately sent for trial for offences which properly may be tried together then it is permissible to join in one indictment counts based on the separate sendings for trial even if an indictment based on one of them already exists.