Indictable offence

In many common law jurisdictions (e.g. England and Wales, Ireland, Canada, Hong Kong, India and Australia), an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury (in contrast to a summary offence). In the United States, a crime of similar severity and rules is called a felony, which also requires an indictment.

England and Wales

In relation to England and Wales, the expression "indictable offence" means an offence which, if committed by an adult, is triable on indictment, whether it is exclusively so triable or triable either way; and the term "indictable", in its application to offences, is to be construed accordingly. In this definition, references to the way or ways in which an offence is triable are to be construed without regard to the effect, if any, of section 22 of the Magistrates' Courts Act 1980 on the mode of trial in a particular case.

An either way offence allows the defendant to elect between trial by jury on indictment in the Crown Court and summary trial in a magistrates' court. However, the election may be overruled by the magistrates' court if the facts suggest that the sentencing powers of a magistrates' court would be inadequate to reflect the seriousness of the offence.

In relation to some indictable offences, for example criminal damage, only summary trial is available unless the damage caused exceeds £5,000.

A youth court has jurisdiction to try all indictable offences with the exception of homicide and certain firearms offences, and will normally do so provided that the available sentencing power of two years detention is adequate to punish the offender if found guilty.

History

See section 64 of the Criminal Law Act 1977.

Grand juries were abolished in 1933.

Offences triable only on indictment

Some offences such as murder and rape are considered so serious that they can only be tried on indictment at the Crown Court where the widest range of sentencing powers is available to the judge.

The expression indictable-only offence was defined by section 51(1) of the Crime and Disorder Act 1998, as originally enacted, as an offence triable only on indictment. Sections 51 and 52 of, and Schedule 3 to, that Act abolished committal proceedings for such offences and made other provisions in relation to them.

When the accused is charged with an indictable only offence, he is sent to the Crown Court for trial. The rules are different in England and Wales in respect of those under 18 years of age.

See also section 14(a) of the Criminal Law Act 1977.

New Zealand

In New Zealand, a 2011 reform of criminal procedure did away with the distinction between summary offences and indictable offences, though the term persists in a few places such as the title of the Summary Offences Act 1981. Criminal offences in New Zealand are now divided into four categories.

A category 1 offence is an offence that cannot be lawfully punished by imprisonment.

A category 2 offence is an offence that can be punished by a term of imprisonment of less than two years.

Category 3 and category 4 offences can be punished by life imprisonment, or by imprisonment for a term of at least two years. These two categories taken together correspond roughly to an indictable offence in other jurisdictions. Category 4 comprises a list of those offences regarded as most severe, for example homicide (both murder and manslaughter); crimes against the State such as treason, mutiny and espionage; and crimes against international laws and norms like piracy, slave trading and war crimes. While category 1 and 2 offences are tried in front of a judge alone, a defendant may opt for a jury trial if charged with a category 3 offence, and a jury trial is the default for a category 4 offence, a judge-alone trial being permitted only in very specific circumstances. Another difference is that for categories 1 to 3, the ordinary trial court is the District Court, while the trial court for all category 4 offences is the High Court.

Canada

For differences between indictable offences and summary offences see summary offences.

See also

• Federal crime
• Felony
• Indictment
• Summary offence