R v Bell
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 28 February 1984 |
| Judgment citation (vLex) | [1984] EWCA Crim J0228-2 |
| Docket Number | No. 6757/C/83 |
| Court | Court of Appeal (Criminal Division) |
| Date | 28 February 1984 |
[1984] EWCA Crim J0228-2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Mustill
and
Mr. Justice Skinner
No. 6757/C/83
MR. N. SHEPHERD appeared on behalf of the Appellant.
MR. J. CARTER-MANNING appeared on behalf of the Crown.
REASONS FOR JUDGMENT
We have already dismissed the appeal against conviction and refused the application for leave to appeal against sentence. We now give our reasons.
On 4th November 1983 this appellant pleaded guilty before Judge Rubin at Kingston-upon-Thames Crown Court to four counts of an indictment, alleging against him in count 1 unlawful possession of cannabis resin and in the other three counts handling stolen goods. He now appeals against conviction by leave of this Court.
This is a somewhat unusual case. The chronology of events is important. Count 1 arose from the fact that on 24th May 1983 the appellant was found in possession of 1.47 grammes of cannabis resin. As to the remaining counts (2 - 4), the appellant was arrested on 3rd June and eventually admitted that he had been guilty of three offences of handling stolen goods knowing them to have been stolen.
These handling offences were part of a chain of events involving a series of burglaries of warehouses and theft. There were some nine or ten other people involved.
On 13th September 1983 the appellant was committed by the Justices on his own for trial on the four charges, namely the one count of possessing cannabis and the three handling counts.
The prosecution however were anxious to deal with all the men involved in the burglaries, thefts and consequent handlings at the same time in the interest of efficiency and economy. They therefore preferred an indictment against the appellant alone containing the one count only relating to the possession of cannabis. The various other men involved in the burglaries were committed separately and indictments had already been preferred against some of them.
When the case came on for hearing on 4th November 1983, the prosecution applied to prefer a consolidated indictment charging the various men involved in the burglaries and kindred offences and including as counts 7, 8 and 9 the three charges against this appellant of handling, counts on which the Justices had committed him for trial. Thus what was proposed was that there should be two indictments against this appellant reflecting the charges on which he had been committed by the Justices without duplication, enabling the appellant to be tried on his own so far as the cannabis was concerned, and together with others so far as the handling was concerned.
This on the face of it seemed to be a satisfactory and sensible proposal. However the trial Judge refused to allow the consolidated indictment to be preferred. Counsel for the prosecution relied on the wording of the Administration of Justice (Miscellaneous Provisions) Act 1933, section 2(2), as amended by the Criminal Appeal Act 1964, section 5 and Schedule II. That enactment reads as follows: "Subject as hereinafter provided no bill of indictment charging any person with an indictable offence shall be preferred unless either – (a) the person charged has been committed for trial for the offence: or (b) 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….".
Counsel for the prosecution further drew to the Judge's attention the Practice Direction by Lord Widgery, Chief Justice, which is set out at (1976) 2 All E.R. 326. This direction appears not only to sanction what the Crown was seeking to do in the present case, but also to go a good deal further.
It provides as follows: "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 on the same facts. But the court will not allow the prosecution to proceed on both such indictments. They cannot in law be tried together and the court will insist that the prosecution elect the one on which the trial shall proceed. Where different persons have been separately committed for trial for offences which can lawfully be charged in the same indictment it is permissible to join in one indictment the counts founded on the separate committals despite the fact that an indictment in respect of any one of those committals has already been signed."
The learned Judge came to the conclusion that despite that Practice Direction he was bound by the decision of the Court of Appeal(Criminal Division) in R. v. Thompson and Clein (1975) 2 All E.R. 1028. The learned Judge took the view that the decision of the Court in that case was inconsistent with the Practice Direction issued by the Lord Chief Justice and that accordingly he, the Judge, was bound to disregard the Practice Direction.
Thereafter at the suggestion, if not the insistence, of the Judge, although both counsel for the prosecution and for the defence were, to say the least, unhappy about the proposal, the prosecution applied for and obtained leave to amend the existing one count indictment by adding the three counts of handling to it. The appellant was then arraigned and pleaded guilty to all four counts.
The appellant now appeals against his conviction on the grounds that the addition of the three handling counts to the single count indictment was in breach of the Indictments Act 1915 and the rules made thereunder. He goes on to submit that the indictment as amended was a nullity, or at least that the three handling counts, being in breach of the Act and rules, were a nullity and that accordingly his conviction and sentence on those three counts should be quashed.
It will be seen that there are two substantial problems which have to be solved. First, was the learned Judge correct in coming to the conclusion that R. v. Thompson and Clein obliged him to refuse the prosecution's request for leave to prefer the consolidated indictment against the appellant and others? Secondly, what was the effect of the amendment of the single count indictment to include the handling counts in the light of the fact that it was conceded that there was no connection between the possession of cannabis and the handling counts?
In view of the learned Judge's reliance on R. v. Thompson and Clein, it is necessary to see precisely what it was that that case decided. The facts were these. There had been a valid committal for trial on a number of charges. The indictment which was eventually preferred contained none of those charges. The defence objected to the fresh charges and moved to quash the indictment. The Circuit Judge acceded to that request and the indictment was quashed. Thereafter the Circuit Judge granted an application by the Crown to present a new indictment upon which the appellants were, after a trial, convicted.
One reason for quashing the conviction was stated by Lord Justice James to be that what the Judge had done was to purport to give his consent to the preferment of the Bill of Indictment, when, by virtue of the Administration of Justice (Miscellaneous Provisions) Act 1933, section 2(2), as amended by the Criminal Appeal Act 1964, section 5 and Schedule II, that power only lies in the hands of the Court of Appeal or a Judge of the High Court, and so the indictment was not lawfully preferred. However Lord Justice James, at page 1032 of the report, said this: "For my part, I would prefer to base the...
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