R v Llewellyn
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] EWCA Crim 154 |
| Year | 2022 |
| Court | Court of Appeal (Criminal Division) |
2021 Nov 30; 2022 Feb 11
Crown Court - Jurisdiction - Arraignment - Court of Appeal allowing defendant’s appeal against conviction and ordering retrial - Defendant arraigned on fresh indictment preferred outside two-month time limit - Whether retrial nullity -
The defendant was convicted of an offence of causing grievous bodily harm with intent but the Court of Appeal allowed his appeal and ordered a retrial pursuant to section 7(1) of the Criminal Appeal Act 1968F1. A new indictment was prepared and the defendant was arraigned some 4½ months later. He entered a not guilty plea, but subsequently applied to quash the indictment as a nullity on the basis that the arraignment had taken place outside the two-month time limit contained in section 8 of the 1968 Act. The judge refused that application, holding: (i) that since the Court of Appeal had a discretion under section 8 to grant leave to arraign out of time, the time limit was not absolute; (ii) that, having raised no objection to his arraignment outside the time limit, the defendant had waived his right to raise an irregularity concerning it; and (iii) that neither the lack of an arraignment nor a defective arraignment rendered invalid subsequent proceedings on the indictment. The defendant was convicted following his retrial and appealed against conviction on the ground that the retrial had been a nullity.
On the appeal—
Held, allowing the appeal, that, on a retrial ordered pursuant to section 7 of the Criminal Appeal Act 1968, the Crown Court’s jurisdiction was contingent on the fulfilment of the obligations in section 8(1), namely that the defendant was to be tried on a fresh indictment preferred by direction of the Court of Appeal and could not be arraigned on that fresh indictment after the end of two months from the date of the order for his retrial unless the Court of Appeal gave leave; that it followed that material non-compliance with the obligations contained in section 8(1) of the 1968 Act, rather than being a merely procedural failure, would mean that the court in a subsequent trial would have acted without jurisdiction, resulting in the total invalidity of the later proceedings; that the strict requirements of section 8(1) could not be waived by the defendant failing to apply under section 8(1A) to the Court of Appeal to set aside the order for retrial and to direct the Crown Court to enter a verdict of acquittal of the offence of which he was to be retried; that, further, there was no equivalence between a retrial following an arraignment which did not comply with section 8(1) (which was invalid) and a trial conducted in the absence of an arraignment in the ordinary course of events after the case had been sent by the magistrates’ court (which was valid), the critical distinguishing factor being the provisions of sections 7 and 8 which solely related to retrial; and that, accordingly, since the defendant had not been arraigned in accordance with section 8 of the 1968 Act, the retrial was a nullity and his conviction would be quashed (post, paras 39, 45–48).
The following cases are referred to in the judgment of the court:
D Ltd v A
R v Al-Jaryan
R v Ashton
R v F (S)
R v Horseferry Road Magistrates’ Court, Ex p Bennett [
R v Humphrys [
R v Johnson (Matthew)
R v Latif [
R v Pritchard (Craig)
R v Soneji
R v Umerji (Adam)
R v Williams (Roy) [
The following additional case was cited in argument:
R v Clarke
No additional cases were referred to in the skeleton arguments.
APPLICATION for leave to appeal against conviction
On 8 November 2019 in the Crown Court at Shrewsbury the defendant, Andrew Llewellyn, was convicted of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861. On 13 November 2019 he was sentenced to six years and 153 days’ imprisonment. On 14 May 2020 the Court of Appeal allowed the defendant’s appeal, quashed his conviction and ordered that he be retried, pursuant to section 7(1) of the Criminal Appeal Act 1968. Accordingly, a new indictment was preferred but the defendant was not arraigned until 30 September 2020, outside the two-month time limit contained in section 8(1). On 23 March 2021 in the Crown Court at Wolverhampton, before Judge Chambers QC and a jury, the defendant was convicted on the retrial and sentenced to six years and 153 days’ imprisonment.
The defendant applied for permission to appeal against conviction on the ground that the failure to comply with the section 8(1) time limit had rendered the proceedings a nullity. The application was referred to the full court by the Registrar of Criminal Appeals.
The facts are stated in the judgment of the court, post, paras 2–4.
Gurdeep Garcha QC and Kevin Jones (assigned by the Registrar of Criminal Appeals) for the defendant.
David Perry QC and Paul Jarvis (instructed by
The court took time for consideration.
11 February 2022. FULFORD LJ handed down the following judgment of the court.
Introduction1 This is an application for leave to appeal, the case having been referred to the full court by the Registrar. We grant leave.
2 In the light of the issue raised on this appeal the facts can be stated extremely briefly. At 11 pm on 7 April 2018, an ambulance crew attended an address in Market Drayton where they found the victim with serious injuries. It was not in dispute that he had been struck repeatedly in the face with a rock. He had multiple fractures to his jaw in addition to various cuts and bruises. The Crown’s case was that the defendant and his co-accused were jointly acting together when they attacked and caused this serious harm to the victim following a disagreement over drugs. The defendant accepted presence at the scene of the incident but he denied participation.
3 On 8 November 2019 in the Crown Court at Shrewsbury the defendant was convicted with two others, William Bratton and Marcus Supersad, of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861 (24 & 25 Vict c 100). On 13 November 2019 he was sentenced to six years and 153 days’ imprisonment.
4 On 14 May 2020, for reasons that it is unnecessary to rehearse, the defendant and his co-accused successfully appealed against their convictions. The court considered that the interests of justice required that they should be retried, pursuant to section 7(1) of the Criminal Appeal Act 1968 (“CAA”). The court’s order, in accordance with section 8(1) CAA, stipulated that a new indictment should be preferred and the defendants were to be arraigned within two months, that is by 14 July 2020. In the event, the defendant was not arraigned until 30 September 2020 when he pleaded not guilty. It is now submitted that the trial which followed, and which resulted in his conviction, was a “nullity”.
Chronology5 It is necessary to describe the relevant chronology.
6 On 20 May 2020 those representing the defendant applied for bail on his behalf in the Crown Court at Shrewsbury. The application was adjourned to 22 May 2020.
7 On 21 May 2020 a fresh indictment was uploaded to the Digital Case System (“DCS”) by the Crown.
8 On 22 May 2020 the adjourned bail hearing was held in the Crown Court at Shrewsbury and bail was granted by Judge Peter Barrie. The case was adjourned to the week commencing 6 July 2020 when the judge indicated arraignment would occur.
9 On 26 May 2020 Jeremy Baker J, a presiding judge of the Midlands Circuit, assigned Judge Chambers QC, the resident judge in the Crown Court at Wolverhampton, as the trial judge. Judge Chambers QC directed his list officer to arrange the transfer of the case.
10 On 27 May 2020 those representing the defendant sent a letter in which he applied to vary the conditions of his bail.
11 On 3 June 2020, the Crown Prosecution Service (“CPS”) replied, agreeing to the variation and indicated that the Crown wished to vary the bail conditions for all defendants. There was reference to a hearing date on 4 June.
12 On 12 June 2020, those representing the defendant wrote opposing the terms of the proposed variation to his bail.
13 On 22 June 2020 the CPS sent an email to the Crown Court at Shrewsbury requesting a pre-trial preparation hearing (“PTPH”). The court indicated that the case had been transferred to the Crown Court at Wolverhampton.
14 On 8 July 2020 the CPS sent an email to the Crown Court at Wolverhampton requesting a PTPH.
15 On 14 July 2020 the two-month time limit for arraignment imposed by the Court of Appeal expired. The Crown Court at Wolverhampton notified the CPS that they did not have the case number or details of the defendants on their system.
16 On 8 August 2020 the CPS again requested the Crown Court at Wolverhampton to list the case for a PTPH, now providing details of the defendants. The date of the hearing was shown as “to be...
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