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The indictment consists of the charge or charges preferred against the defendant by the prosecution once the case is begun.
Indictment is defined by the Indictments Act 1915, s 3 as 'a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge'. Ultimate responsibility for the drafting of the indictment, the charges therein and whether they are appropriate rests with the counsel for the prosecution (Newland [1988] QB 402, per Watkins LJ at p. 409). It must be served on an officer of the Court within 28 days of the accused is committed (or transferred) for trial. Once served, the power to cure any defects lies with the Indictments Act 1915, s 5(1) where the indictment appears defective, making such changes as are 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.
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DPA suitability checklist Court's oversight of the interests of justice and fairness, reasonableness and proportionality The UK deferred prosecution agreement (DPA) regime provides for judicial oversight of DPAs. After negotiations as to the terms of a DPA have commenced and before it has been concluded, the court must determine: • whether it is likely to be in the interests of justice, and • that its proposed terms are fair, reasonable and proportionate Therefore, each factor must be supported by clear and persuasive proof in order to seek to persuade the court to approve the DPA. The declarations given under Schedule 17 Part 1, para 8 to the Crime and Courts Act 2013 (CCA 2013) to date provide insight into the court's approach as to when a DPA is suitable and this has, in turn, fed into the prosecutor's approach (see Practice Note: The SFO's approach to Deferred Prosecution Agreements (DPAs) [Archived]). For detailed information on DPAs in general, the process followed by the court when considering whether to...
Deferred Prosecution Agreements entered into to date—checklist A Deferred Prosecution Agreement (DPA) is a voluntary agreement between an organisation and a designated prosecutor which enables the prosecutor to defer a criminal prosecution by staying an indictment on specific terms agreed with the organisation (see Practice Note: Deferred prosecution agreements). It is therefore a means of alternative disposal for criminal offences. It involves the: • prosecutor inviting the organisation to enter negotiations for a DPA • organisation agreeing to comply with a range of terms and conditions which are monitored • prosecutor agreeing to start but then halt criminal proceedings for the alleged offence • prosecutor applying to the court for approval of the DPA No proceedings in relation to the matters covered by the DPA may be instituted against the organisation while the DPA remains in force and is complied with. Should the organisation breach the terms of the DPA, the prosecutor may apply to the court to restart the original criminal prosecution. DPAs are only available to organisations in...
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The rules relating to the form of indictments and the procedure for their creation and adoption are contained in the following: •the Indictments Act 1915 (IA 1915)•section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (AJ(MP)A 1933), and•Parts 3, 10 and 25 of the Criminal Procedure Rules 2020 (CrimPR 2020), SI 2020/759For information on what an indictment must contain, its form, dealing with defects and amending indictments, see Practice Note: The indictment—content, form, defects and amendments.What is an indictment?An indictment is the formal document containing the list of charges against a defendant which is preferred (formally served) in the Crown Court. This is a different document to the written charge or information produced by the prosecution in order to commence the prosecution in the magistrates' court. See Practice Notes: Commencing criminal proceedings—applying for the issue of a summons and Commencing criminal proceedings—written charge and requisition or single justice procedure notice.The indictment is traditionally drafted by the prosecutor, eg the Crown Prosecution Service (CPS) or other prosecuting authority. In...
Voluntary bill of indictmentAn indictment may, exceptionally, be preferred (ie served on a Crown Court) by the direction or with the consent of a High Court judge under the Administration of Justice (Miscellaneous Provisions) Act 1933 (AJ(MP)A 1933). This is also known as a 'voluntary bill'. These are rare because a voluntary bill can only be preferred in certain limited circumstances:•if the bill is preferred by the direction of the Court of Criminal Appeal or by the direction or with the consent of a judge of the High Court•with the consent of a judge of the Crown Court following a declaration by the court under paragraph 8(1) of Schedule 17 to the Crime and Courts Act 2013 (CCA 2013) (court approval of deferred prosecution agreement) •if the charge, or any of the charges, against the applicant is dismissed and ◦no further proceedings may be brought on the dismissed charge or charges, except by means of the preferment of a voluntary bill, and◦unless the applicant is in custody otherwise than on...
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Memorandum on directors’ responsibilities and potential liabilities in respect of an AIM admission document 1 Introduction 1.1 This memorandum has been prepared for those persons who are to be named in the document to be published by [insert name of company] (the Company) as directors or proposed directors of the Company (the Directors) in connection with the proposed admission (the Admission) of the ordinary shares of the Company to trading on AIM, a market operated by the London Stock Exchange plc (the LSE). 1.2 An AIM admission document (the Admission Document) is required to be prepared by the Company in connection with the application for the Admission. The Admission Document will disclose financial and other information about the Company[ and its subsidiaries] and must be prepared in accordance with the requirements of the AIM Rules for Companies published by the LSE (the AIM Rules). 1.3 The Directors (among others) are responsible for the contents of the Admission Document and a...
Memorandum to board/senior management accompanying financial sanctions policy Financial sanctions are measures which restrict dealings in money and the provision of financial services—they can include the prohibition of funds transfers to certain countries, individuals or entities. The Sanctions and Anti-Money Laundering Act 2018 (SAMLA 2018) is the UK’s primary sanctions legislation, which defines the types of sanctions that may be imposed and the purposes for which they may be imposed. It empowers ministers to make various regulations about them, and imposes duties to ensure proper scrutiny and protection of the rights of those affected by them. Specific sanctions regulations made under SAMLA 2018 can provide for a variety of different types of sanctions measures, including financial, trade, immigration, transport, etc. Financial sanctions usually cover prohibitions on dealing with assets, or making funds or economic resources available to or for the benefit of designated persons. There can also be sectoral sanctions which prohibit and restrict specified financial and investment activities. For our business it is essential that we comply...
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If a person is committed for contempt of court and is sentenced to prison, will this appear on their criminal record? As was noted in Phonographic Performance Ltd v Ellis (t/a Bla Bla Bar), the power to imprison for contempt of court arises out of the inherent jurisdiction of the Court, but is subject to the provisions of the Contempt of Court Act 1981 (CCA 1981). By virtue of CCA 1981, s 14 a sentence of imprisonment may be imposed for contempt of court, but for no more than two years (see also Palmer v Tsai). This is limited to a period of one month for committal ordered by the inferior courts. Further, specific statutory powers may limit the period further. The CCA 1981 does not expressly make contempt of court a criminal offence. Whether the contempt is a criminal offence is a question of whether the form of contempt is a civil or criminal contempt. As was noted in Re: Yaxley-Lennon: ‘It is...
What guidance have the courts recently given on the sentences to be imposed on offenders found guilty of handling stolen goods? Handling stolen goods This Q&A covers the offence of handling stolen goods and the offence under section 22 of the Theft Act 1968. It also considers the guidance published by the Sentencing Council on handling stolen goods and on reported case law from the Court of Appeal Criminal Division, as cases before the Magistrates’ and Crown Court are not formally reported. There is also additional consideration of offences which may be committed in connection with handling stolen goods, and how these may be treated for sentencing purposes. Following summary conviction, the maximum penalty is six months’ imprisonment or a fine or both. For trial on indictment, the maximum penalty is 14 years’ imprisonment. The sentencing guidelines derive from the Court of Appeal’s decision in R v Webbe with an increasing scale for sophisticated or professional offences. For further information on the offence, see Practice Note:...
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Corporate Crime analysis: The Court of Appeal combined three separate otherwise unrelated cases to consider the approach to totality when sentencing a defendant for an offence contrary to the Proceeds of Crime Act 2002 (POCA 2002) which represents a criminal benefit for other substantive offences. The court reviewed the authorities in respect of totality and whether a sentence should be consecutive or concurrent. The court identified the following principles when approaching the sentencing exercise—the overriding consideration will be whether the overall sentence is the shortest term that is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it; where the POCA 2002 offending adds nothing to the culpability and harm of the substantive offending, it will be appropriate to impose a concurrent sentence with no upward adjustment; where POCA 2002 offending involves additional criminality (either culpability or harm) then there ought to be an increase in sentence either by way of an aggravated sentence for the substantive offending or...
Corporate Crime analysis: The defendant applied for permission to appeal a fine of £640,000 following a guilty plea to one count of failing to prevent access to dangerous parts of machinery, contrary to regulation 11 of the Provision and Use of Work Equipment Regulations 1998 (PUWER 1998) and section 33(1)(c) of the Health and Safety at Work etc Act 1974 (HSWA 1974). Permission to appeal was sought on three potential grounds: (1) whether the offender’s breach was a significant cause of actual harm; (2) the discount for guilty plea; and (3) whether a strict liability offence under the regulations should attract a lesser fine than a fine imposed for a breach of HSWA 1974. The application was refused: (1) the judge was entitled to uplift for actual harm; (2) the discount of 20% for guilty plea was not arguably wrong; (3) strict liability was only relevant to the issue of culpability. Written by Fiona Canby, barrister at Temple Garden Chambers.
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