Paul Stromberg v R
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon |
| Judgment Date | 22 March 2018 |
| Neutral Citation | [2018] EWCA Crim 561 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 200803060 C2 |
| Date | 22 March 2018 |
[2018] EWCA Crim 561
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT SITTING AT WOOLWICH
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RT HON The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HON Mr Justice Sweeney
and
THE HON Mr Justice William Davis
Case No: 200803060 C2
Jonathan Elystan Rees (instructed by Bowden Jones Solicitors) for the Applicant
David Perry QC and Katherine Hardcastle (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 28 February 2018
The Lord Burnett of Maldon CJ:
Introduction
This case raises questions concerning the scope, availability and procedure surrounding the issue of a writ of venire de novo. The issue we have to resolve is whether an application for a writ or order of venire do novo must be made in the course of application for leave to appeal against conviction (and then the subsequent appeal) brought under Part I of the Criminal Appeal Act 1968 [“the 1968 Act”] or whether it can be made as a freestanding application, and thus unconstrained by the need for leave or any time limits.
The application first came before the court on 20 December 2017 and was made on behalf of Paul Stromberg by Mr Jonathan Elystan Rees in respect of his conviction of 14 May 2008 for an offence of conspiracy to commit an offence outside the United Kingdom. The respondent prosecutor was not represented at that hearing and had not been required to provide any written representations. The court concluded that full argument was required and delivered a short judgment to that effect: see [2018] EWCA Crim 7. At the resumed hearing we were assisted greatly by written and oral submissions from David Perry QC and Katherine Hardcastle instructed by the respondent as we were by Mr Rees. He made written and oral submissions on behalf of the applicant as he had at the initial hearing. We are very grateful to all counsel for the detailed research they have conducted in relation to the history of the writ and the jurisdiction of this Court to issue a writ of venire de novo. We now are in a position to reach a conclusion on the application.
On 14 May 2008 Paul Stromberg was convicted of conspiracy to commit an offence outside England and Wales contrary to Section 1A of the Criminal Law Act 1977 [“the 1977 Act”]. The conspiracy concerned a planned importation of more than 300 kilos of cocaine into Europe from Venezuela. He had first appeared before the Westminster Magistrates' Court on 5 April 2007 from where he was sent to the Crown Court at Woolwich for trial. The first hearing in the Crown Court was on 28 June 2007. Section 4(5) of the 1977 Act requires the consent of the Attorney General to be given to any prosecution pursuant to Section 1A of that Act before the proceedings are instituted. In the applicant's case consent was given on 30 August 1977. In 2007 it was widely understood that consent pursuant to Section 4(5) validly could be given at any point prior to the effective Plea and Case Management Hearing. Thus, it was assumed that the consent in the applicant's case was given in time.
In Welsh [2016] 1 Cr.App.R. 8 and Welsh and others [2016] 1 Cr.App.R. 9 this court decided that, for the purpose of Section 4(5), proceedings in respect of an indictable only offence are instituted at the point of sending from the magistrates' court to the Crown Court with the consequence that the consent of the Attorney General is required before the case is sent. The effect of failing to get the consent before that point was held by this court to invalidate the proceedings which followed. It follows that the consent of the Attorney General in this case was not given in time. Adopting the analysis in Welsh and others (supra) of the consequences of this failure, the applicant's trial was a nullity. We shall return at the conclusion of this judgment to the concept of nullity in the context of trial on indictment.
Following his conviction in 2008, the applicant applied for leave to appeal against his conviction. Leave to appeal was refused by the Single Judge. We have not seen the grounds on which the application for leave was based. Given the understanding then as to the point at which proceedings were instituted in respect of consent pursuant to Section 4(5) of the 1977 Act, we have no reason to suppose that they were directed to the issue of lack of consent.
In October 2017 an application was made to this court on behalf of Stromberg for a writ of venire de novo. The order sought was to set aside and annul the conviction for conspiracy to commit an offence outside England and Wales and to require a new trial. The application was not put forward as a renewed application for leave to appeal. Such an application would have been more than 8 years out of time. Rather, it was said that it was a free-standing application to which the time limits in the 1968 Act did not apply. The application was made on the basis that Stromberg was not exercising any right of appeal under Section 1 of the 1968 Act.
The Criminal Appeal Office took the view that a free-standing application of this kind could not be made and that any application in relation to the outcome of a trial on indictment required leave to appeal. In consequence the Registrar referred Stromberg's application to the full court on the basis that it was a renewed application for leave to appeal albeit not on the same grounds as had been considered by the Single Judge. Mr Rees on behalf of Stromberg made it clear to us at the initial hearing that he had no instructions to renew any application for leave to appeal. He confirmed that this remained the position at the resumed hearing. Mr Rees recognised that, if the time limits in the 1968 Act applied to his application, he would be in very considerable difficulty in relation to any extension of time. If this were to be regarded as a “change of law” case akin to the many renewed applications for leave made in the light of Jogee [2016] UKSC 8, [2017] AC 387 exceptional leave to appeal out of time would be required. The applicant would have to demonstrate that he would suffer “substantial injustice” were leave not to be granted: Johnson and others [2016] EWCA Crim 1613. If this were not a “change of law” case but it involved the raising of a ground of appeal not put before the single judge who refused leave, the hurdle for the Applicant would be a high one. The principles set out in James and others [2018] EWCA Crim 285 at paragraph 38 would be applied. In those circumstances Mr Rees's disavowal of any application for leave to appeal on the part of the applicant is entirely understandable.
The respondent prosecutor supports the view adopted by the Criminal Appeal Office. Mr Perry and Miss Hardcastle submit that the Court of Appeal Criminal Division is a creature of statute and that the statutory provisions do not allow for any route to this court other than by way of application for leave to appeal. Before we consider the rival contentions it is necessary to consider the history of the writ of venire de novo and of the appellate jurisdiction in criminal proceedings.
Historical background
It was not until 1848 that England and Wales had anything approaching a system of criminal appeal in the sense we recognise today. Up to and including the early part of the nineteenth century the verdict of the jury was treated with very great respect. Verdicts were only open to challenge if serious and obvious error could be demonstrated. In addition, great weight was attached to the principle that justice should be swift and final. The methods of control of jury verdicts and correcting obvious errors involved punishing jurors, restricting the issues on which juries made findings and, to a limited extent, ordering a new trial and/or annulling the proceedings leading to the relevant verdict.
It is not necessary for the purposes of this judgment to review those various methods as they developed over the centuries. The method with which we are concerned is the writ of venire de novo or, to give the full title, venire facias juratores novo. It was a writ addressed to the sheriff ordering him to cause new jurors to try the case afresh. The writ was available to the court of trial after verdict when there was some irregularity in the proceedings generally connected to the composition of the jury. It was also available to a court of error, whether the judges of the Kings Bench Division or the Court for Crown Cases Reserved.
The Court for Crown Cases Reserved was established by the Crown Cases Act 1848. The preamble to that Act was as follows:
“That when any Person shall have been convicted of any Treason, Felony, or Misdemeanour before any Court of Over and Terminal or Goal Delivery, or Court of Quarter Sessions, the Judge or Commissioner or Justices of the Peace before whom the Case shall have been tried may, in his or their Discretion, reserve any Question of Law which shall have arisen on the Trial for the Consideration of the Justices of either Bench and Barons of the Exchequer, and thereupon shall have Authority to respite Execution of the Judgment on such Conviction, or postpone the Judgment until such Question shall have been considered and decided, as he or they may, think fit…”
A case could only be referred to the Court for Crown Cases Reserved by the trial judge. The reference would be by way of case stated. At least five Justices or Barons were required to consider the reference. The court considered only points of law. It had the power to quash a conviction. It had no statutory power to order a retrial. However, it did have the power to issue a writ of venire de novo. The combined researches of counsel reveal that the Court did so in only one reported case: Yeadon and Birch 9 Cox...
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