In many common law jurisdictions (e.g. the Republic of Ireland, Canada, Hong Kong, India, Australia, New Zealand), 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 is a felony, although it too proceeds after an indictment.
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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.[1]
In English law, the term refers to either way and indictable only offences.
An either way or hybrid offence allows the defendant to elect between trial by jury on indictment in the Crown Court and summary trial in the Magistrates' Court. However, the election may be overruled by the court of first instance if the facts suggest that the sentencing powers of a Magistrates' Court would be inadequate to represent 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 murder, and will normally do so provided that the available sentencing power of 2 years detention is adequate to punish the offender if found guilty.
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The expression indictable-only offence was defined by section 51(1) of the Crime and Disorder Act 1998, as originally enacted, as an offence triable only on indictment.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.
See section 64 of the Criminal Law Act 1977.
Similarly in New Zealand, a rape or murder charge will be tried at the High Court, while less serious offences such as theft, will be tried at the District Court.
For differences between indictable offences and summary offences see summary offences.
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