R v Newland
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WATKINS |
| Judgment Date | 03 December 1987 |
| Judgment citation (vLex) | [1987] EWCA Crim J1203-3 |
| Docket Number | No. 4292/E1/87 |
| Court | Court of Appeal (Criminal Division) |
| Date | 03 December 1987 |
[1987] EWCA Crim J1203-3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Watkins
Mr. Justice Kenneth Jones
and
Mr. Justice Leonard
No. 4292/E1/87
MR. J. TURNER appeared on behalf of the Applicant.
MR.C. KEMP appeared on behalf of the Crown.
On 25th June 1987 in the Crown Court at Chichester before Mr. Chapman sitting as Assistant Recorder, after a preliminary issue concerning the validity of sole indictment had been disposed of, the appellant pleaded guilty of and was sentenced for the following offences thus: for possessing a Class B drug with intent to supply, twelve months' imprisonment; for an assault occasioning actual bodily harm, nine months' imprisonment to run consecutively; for a second assault occasioning actual bodily harm, nine months' imprisonment to run concurrently; for a third assault occasioning actual bodily harm, six months' imprisonment to run concurrently: twenty one months' imprisonment in all. There was an order for confiscation of a sum of £60.
The appeal on a point of law is against conviction.
The facts are these. On 28th November 1986 police officers executed a warrant under the Misuse of Drugs Act at the appellant's home in Chechester. They found 29 pieces of cannabis resin, each of them wrapped in cling film. There was another man there. He was holding a reefer. The total weight of the cannabis found was 100 grammes. That was enough to make about 600 reefers. The cost at street value of that was £250. A lot of pipes and scales and other things usually found at the homes of suppliers of drugs were discovered at the appellant's home, along with the £60 in cash already referred to.
The appellant was arrested. He was asked immediately about his activities. He admitted that he had been dealing in drugs for about two months, selling, he said, only to friends. People who had bought from him had come to his home. Everyone of them was known to him. He had never been dealing, he said, in large quantities. He was asked what he did with the money he received for the drugs, and he said that he had used it to buy drugs for his own consumption and for sale.
The assault charges arose out of these circumstances. On 18th December of the same year, police officers were called to a disturbance at an Indian restaurant in Chichester. The appellant was not involved in that disturbance. When the police officers were dealing with it, he, very stupidly and wrongly, interfered with them. He went up to one of them and called him a racist pig. That was ignored. He was asked to move away. He would not. He then became extremely abusive. He used foul language. He grabbed hold of a police officer's coat lapel and refused to let go.
He was arrested, as plainly he had to be, for threatening behaviour. He started to struggle and lash out. He either bit, kicked or butted at least three officers who sustained injuries, not of a serious kind.
It will be observed from what has been said that the drugs offences and the assault offences were entirely unconnected.
Why then were they in one indictment? The answer to that is apparently that the draftsman did not observe the Indictment Rules and the Indictment Act 1915. If he had followed the relevant provisions, the waste of time and money which has ensued from the bad drafting of the indictment would not have occurred. To that subject we will return a little later in this judgment.
What happened at the hearing was that learned counsel for the appellant, whose able arguments we have had the benefit of in this Court as indeed did the Assistant Recorder in the court below, submitted that the indictment in its then form was invalid, being contrary to the rules. Counsel for the appellant had warned counsel for the prosecution that he was going so to submit before they entered court. There was therefore before arraignment a discussion between Judge and counsel as to the validity of the indictment. Counsel for the prosecution very properly conceded that the indictment was invalid because of the misjoinder of these disparate offences. But he said that the learned Assistant Recorder could use a power to separate the trials upon the indictment: in other words to order independent trials of the drug offences and the assault offences.
Counsel for the appellant did not agree and by cogent argument endeavoured to persuade the Assistant Recorder that he had no such power as was asserted.
In the result the argument of counsel for the appellant failed. The appellant was arraigned, and upon advice he pleaded guilty as has been said.
The matter comes here so that the issue raised before arraignment may be ventilated and the opinion of this Court gained.
The Assistant Recorder said he gained the power to sever counts in the indictment from section 5(3) of the Act.
The relevant legislation can be referred to quite briefly. Section 4 of the Act, so far as material, provides: "Subject to the provisions of the rules under this Act charges ….. for more than one offence ….. may be joined in the same indictment."
The relevant rule which comes into play in the circumstances here is rule 9, and that states: "Charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character."
It is, as I have said, properly conceded by counsel for the prosecution, that the indictment fell foul of that rule.
Section 5(3) states: "Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment."
It was contended by counsel for the prosecution that the Assistant Recorder rightly derived the power he used from that subsection. But we are in no doubt, in accepting the contrary submission of counsel for the appellant, that that subsection can only apply to a valid indictment. It states what the Court may do by way of ordering separate trials of counts in a valid indictment in the interests of a fair trial for a defendant or defendants. The Assistant Recorder was, in our view, wrong in his interpretation of that subsection.
Where then, having regard to that, is this Court left?
Learned counsel for the appellant referred us to R. v. Thompson and Clein (1975) 61 Cr. App. R. 108. That was a case which was placed before the Assistant Recorder for his consideration, as well as the provisions of section 5(1) of the Act. That provides: "Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to...
To continue reading
Request your trial
-
R v Smith (Brian Peter)
...of cannabis resin can be made a complete nullity by the addition of counts contrary to Rule 9." 11 R -v- Bell was considered in R -v- Newland [1988] 87 Cr App R 118, another case of misjoinder under Rule 9 of the Indictment Rules, 1971. There Watkins LJ gave the judgment of the court. While......
-
R v Follett
...was not quashed nor were any of the counts in the original indictment amended out of that indictment. 10 Overnight the full report of R. v. Newland (1988) 87 Cr. App. R. 118, was obtained. Up to that time the Court had only been provided with The Times newspaper report of the judgment in th......
- R v Lewis
- R v O'Reilly
-
Court of Appeal
...on them. Couldthey have added the charges and then applied to sever them,making two indictments? In view of the decision in R. v. Newland[1988] Q.B. 402, that would be equally impossible, for severanceunder section 5(3) can apply only to a valid indictment. Thus, theonly way in which the pr......