R v Clarke (Ronald Augustus) and McDaid

JurisdictionUK Non-devolved
JudgeLORD CARSWELL,LORD BINGHAM OF CORNHILL,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD RODGER OF EARLSFERRY,LORD SCOTT OF FOSCOTE
Judgment Date06 February 2008
Neutral Citation[2008] UKHL 8
CourtHouse of Lords
Date06 February 2008
R
and
Clarke
(Appellant) (On Appeal from the Court of Appeal (Criminal Division))
R
and
McDaid
(Appellant) (On Appeal from the Court of Appeal (Criminal Division) (Consolidated Appeals)

[2008] UKHL 8

Appellate Committee

Lord Bingham of Cornhill

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood

HOUSE OF LORDS

Appellants:

Joel Bennathan QC

Peter Wilcock

(Instructed by Hadgkiss Hughes & Beale)

Respondents:

David Perry QC

Duncan Perry QC

(Instructed by Director of Public Prosecutions)

LORD BINGHAM OF CORNHILL

My Lords,

1

On 23 April 1997 in the Crown Court at Worcester each of the appellants was convicted by a jury of causing grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861. For that offence each was sentenced to 12 years' imprisonment. The first appellant received a concurrent sentence for another offence and the second appellant received a consecutive sentence of 2 years' for other offences, making a total sentence in his case of 14 years'. For the purposes of this appeal, referred to the Court of Appeal by the Criminal Cases Review Commission, it is accepted that when the trial of the appellants began in April 1997, although leave to prefer voluntary bills had previously been given on two occasions, there was no signed indictment before the Crown Court. The evidence at the trial ended on Friday 18 April. On Monday 21 April 1997 the appellants were arraigned on an additional (but alternative) count of inflicting grievous bodily harm contrary to section 20 of the 1861 Act. The existing form of indictment was then amended by leave of the trial judge, a copy of the form as amended was signed by the proper officer of the court and the amended form was treated as the indictment upon which the jury convicted (although not on the added count). The short questions to be resolved in this appeal thus arise: whether the absence of a signed indictment at the outset of and during most of the trial had the legal effect of invalidating the proceedings? And, if so, whether such invalidity was cured by the late signature of the proper officer?

2

At the heart of the issues to be decided lie sections 1 and 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 which, as enacted and omitting provisions not immediately germane to this appeal, provide:

"1.-(1) Subject to the provisions of this section grand juries are hereby abolished, but where a bill of indictment has been signed in accordance with the provisions of this Act, the indictment shall be proceeded with in the same manner as it would have been proceeded with before the commencement of this Act if it had been found by a grand jury, and all enactments and rules of law relating to procedure in connection with indictable offences shall have effect subject only to such modifications as are rendered necessary by the provisions of this section and of the section next following.

(2) Where at the commencement of this Act any person has obtained the direction or consent in writing of a judge of the High Court for the preferment of an indictment under the Vexatious Indictments Act 1859, the direction or consent shall have effect as if it were a direction or consent for the preferment of a bill of indictment under this Act.

2.–(1) Subject to the provisions of this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before a court in which the person charged may lawfully be indicted for that offence, and where a bill of indictment has been so preferred the proper officer of the court shall, if he is satisfied that the requirements of the next following subsection have been complied with, sign the bill, and it shall thereupon become an indictment and be proceeded with accordingly:

Provided that if the judge or chairman of the court is satisfied that the said requirements have been complied with, he may, on the application of the prosecutor or of his own motion, direct the proper officer to sign the bill and the bill shall be signed accordingly.

(2) 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 or with the consent of a judge of the High Court or pursuant to an order made under section nine of the Perjury Act 1911:

Provided that-

  • (i) where the person charged has been committed for trial, the bill of indictment against him may include, either in substitution for or in addition to counts charging the offence for which he was committed, any counts founded on facts or evidence disclosed in any examination or deposition taken before a justice in his presence, being counts which may lawfully be joined in the same indictment;

  • (ii) a charge of a previous conviction of an offence or of being a habitual criminal or a habitual drunkard may, notwithstanding that it was not included in the committal or in any such direction or consent as aforesaid, be included in any bill of indictment.

(3) If a bill of indictment preferred otherwise than in accordance with the provisions of the last foregoing subsection has been signed by the proper officer of the court, the indictment shall be liable to be quashed:

Provided that-

  • (a) if the bill contains several counts, and the said provisions have been complied with as respects one or more of them, those counts only that were wrongly included shall be quashed under this subsection; and

  • (b) where a person who has been committed for trial is convicted on any indictment or any count of an indictment, that indictment or count shall not be quashed under this subsection in any proceedings on appeal, unless application was made at the trial that it should be so quashed…

(5) For the purposes of this section the expression 'judge or chairman' includes a deputy recorder, deputy chairman, or acting chairman, and the expression 'proper officer' means in relation to a court of assize the clerk of assize, and in relation to a court of quarter sessions the clerk of the peace, and also includes in relation to any court such officer as may be prescribed by rules made under this section …"

3

The genesis of these provisions is amply documented and is not in doubt. Historically, almost all cases came before a judge and trial jury following consideration of the proposed charges by a grand jury. The charges which it was proposed to prosecute were set out in what was called a bill of indictment, and that was laid before the grand jury. It heard witnesses and decided whether the case should go to trial or not. If the grand jury thought it should, they wrote on it "a true bill" (formerly billa vera) and handed it down. The bill so endorsed and handed down thereupon became an indictment. If they decided the case should not go to trial they marked it "no true bill" (formerly ignoramus): in that case there was no indictment and the case did not go to trial on the presentation of that grand jury.

4

By the early 1930s grand juries were generally agreed to have outlived their usefulness and a Committee on the Business of the Courts under the chairmanship of Lord Hanworth MR, in an Interim Report published in March 1933, recommended their abolition. By this time almost all cases came to trial by jury following a committal by justices or stipendiary magistrates after detailed consideration of the evidence, or by the leave of a High Court judge to prefer a voluntary bill, again after detailed consideration of the evidence. (Proceedings pursuant to a coroner's inquisition under section 5 of the Coroners Act 1887 were a small and only partial exception). The perfunctory consideration given by the grand jury was recognised to cause delay, expense and inconvenience and to add little save the occasion for a social junket. But the abolition of the grand jury posed a problem: how was a bill of indictment, in itself a document of no legal effect, to become an indictment upon which a defendant would stand trial (perhaps, in 1933, for his life) before judge and jury? This was not a trivial question since, as Sir James Fitzjames Stephen had said, in A History of the Criminal Law of England (1883), vol I, p 274, "The indictment is the foundation of the record in all criminal cases".

5

The answer given by section 2(1) to the question just posed would appear to be very clear: a bill of indictment would become an indictment when duly signed by a proper officer of the court. That is what the subsection provides: "where a bill of indictment has been so preferred the proper officer of the court shall, if he is satisfied that the requirements of the next following subsection have been complied with, sign the bill, and it shall thereupon become an indictment and be proceeded with accordingly". This reading is entirely consistent with the provision in section 1(1) that "where a bill of indictment has been signed in accordance with the provisions of this Act, the indictment shall be proceeded with" as if found by a grand jury. It is also consistent with section 2(3): only if the bill of indictment has been signed by the proper officer is there an indictment which is liable to be quashed. There is, as the Court of Appeal observed in R v Stewart (1990) 91 Cr App R 301 at 304, 306, a fundamental distinction between the preferment of a bill of indictment and the signing of the bill: it is the signing of the bill which converts it into an indictment.

6

The legislative history of these provisions strengthens this reading. As originally drafted, clause 1(1) of the Bill laid before Parliament referred to "an indictment presented" but made no reference to signing....

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