R v Raymond
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WATKINS,LORD JUSTICE WARKINS |
| Judgment Date | 16 October 1980 |
| Judgment citation (vLex) | [1980] EWCA Crim J1016-5 |
| Docket Number | No. 5056/B/78 |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 October 1980 |
[1980] EWCA Crim J1016-5
Lord Justice Watkins
Mr. Justice Boreham
and
Mr. Justice Hodgson
No. 5056/B/78
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. L. BLOM-COOPER Q.C. and MR. G. ROBERTSON appeared as Counsel on behalf of the Appellant.
MR. H. POWNALL Q.C. and MR. A. SUCKLING appeared as Counsel on behalf of the Crown.
(Delivered by Lord Justice Watkins in the absence of Mr. Justice Boreham and Mr. Justice Hodgson)
On 10th October, 1978 at the Central Criminal Court the appellant, who raises points of law in this Court, was convicted of three counts of theft and sentenced by his Honour Judge Gibbens to 10 years' imprisonment on each count, to run concurrently. In addition, a restitution order was made against him for a camera, a briefcase, and 12,072.85 Swiss francs, in favour of the Trade Development Bank, London, EC2, and a criminal bankruptcy order in the sum of £78,000 was made.
The appellant's trial lasted almost four weeks. During much of it he defended himself. At the close of the prosecution case he asked for, and was granted, the assistance of leading counsel. -Thereafter Mr. Blom-Cooper appeared for him and made detailed submissions in applying to quash the indictment. The learned Judge rejected this submission and refused the application. Mr. Blom-Cooper then departed, leaving the appellant, of his own choice, to resume his defence by himself.
At the outset of the trial he denied that he had stolen any of the monies contained in the three counts of which he was convicted. Later he admitted taking the monies, but contended that he had done so only because he had been the victim of duress. This defence eventually became the only issue remaining in the trial. The duress relied upon was a threat made by a number of desperate criminals to shoot the appellant if he did not do what they asked of him. The threats were said to have been made in a gravel pit at Tunbridge Wells and also in the back of a motor car. The appellant, who is a highly intelligent and very articulate man, was obviously disbelieved by the jury, though not before he had extended almost to the limit the vast patience of the Judge, who handled a most difficult trial with consummate skill. The appellant appeals against his convictions upon the following grounds:
- "(1) That his trial was a nullity in that the Bill of Indictment preferred against him had been obtained otherwise than in accordance with section 2 (2) of the Administration of Justice Act 1933 - namely, that leave to prefer a Bill of Indictment on the written application of 5th October 1977 of the Director of Public Prosecutions in accordance with rule 8 of the Indictment (Procedure) Rules 1971 was granted by the Hon. Mr. Justice Michael Davies, in Chambers, on 25th October 1977 without the learned Judge hearing the defendant or counsel on his behalf.
- "(2) The learned trial Judge wrongly refused to quash the Bill of Indictment in accordance with section 2 (3) of the Administration of Justice Act 1933 on the grounds that either (a) that in the absence of any express statutory authority to the contrary the courts will always insist on the observance of the rule audi alteram partem for the determination of any issue in legal proceedings, particularly in criminal proceedings and that, to the extent that the 1971 rules permit an ex parte determination of the question of leave to "prefer a Bill of Indictment the Rules are ultra vires of the 1933 Act, or (b) the 1933 Act by virtue of section 2 (6) in delegating the power to the Lord Chancellor to determine the manner in which Bills of Indictment shall be preferred, is to be interpreted to mean that such rules will be made subject to the rule of audi alteram partem."
Those grounds of appeal were drafted by counsel. The appellant has himself drafted many other grounds of appeal. He has abandoned all of them, and is content to rely now on those drafted by counsel, which have been argued for him in this Court by Mr, Blom-Cooper.
The thefts committed by the appellant were the result of a carefully conceived plan which was most skilfully executed by him with the assistance of a number of other people. The facts, very briefly stated, are as follows: A company called Puralator (Services) Limited specialises in the carriage of currency and other valuable articles. One of its clients is the Trade Development Bank. At the beginning of May, 1976 Puralator advertised in the well-known newspaper The Evening News for a person who was fully experienced in the import and export business through Heathrow Airport. This job provided, so it was stated, an excellent opportunity for the right person. The advertisement caught the eagle eye of the appellant, who soon became a trusted servant of Puralator.
The strong-rooms at Heathrow contain from time to time much valuable cargo. On 26th June, 1976, 48 days after the appellant had become employed by Puralator, that cargo included about two and a quarter million pounds' worth of currency in sterling and French francs. All of it was contained in packages which could be carried away with comparative ease by one or two men. The strong-rooms are heavily and carefully guarded. However, by the use of forged documents and other strategems and his position as an employee of Puralator, the appellant on 26th June was enabled to enter a strong-room and steal from there the whole of the two and a quarter million pounds' worth of currency which was the property of the Trade Development Bank.
He then left Heathrow Airport to join his collaborators. Soon afterwards he travelled to Zurich via Dublin. The alertness of a shop assistant in Zurich brought about his downfall. She had read of the Heathrow theft. One day the appellant, whom she did not, of course, know, entered the shop where she worked and immediately began spending a great deal of money; so much that she became suspicious of him and informed the local police about his activities. As a result he was arrested, and in June, 1977 extradited from Switzerland and brought back to this country under escort. In his prolonged absence abroad those others who had in one way and another allegedly participated in the crime were arrested, tried and, all save one, convicted of theft or of handling stolen property.
Thus it was that the appellant alone appeared for committal for trial at the Crown Court at Staines Magistrates' Court on 29th September, 1977. There he gave such unmistakeable indications of an intention seriously to disrupt the committal proceedings as to make a mockery of them that counsel for the Crown decided to abandon them and to seek leave to prefer a bill of indictment from a High Court Judge. He informed the appellant's solicitor, who seems to have been in sympathy at the time with what he meant to do. The committal proceedings were thereupon abandoned, and leave to prefer a bill of indictment was sought.
The appellant's solicitor on 17th October 1977 wrote to the Courts Administrator at the Central Criminal Court, informing him that it was the appellant's intention to oppose the application; and he asked leave to instruct counsel to attend upon the occasion when a High Court Judge would consider the application to prefer a bill of indictment, in order to oppose it with the object of reinstating the committal proceedings. The solicitor was informed that his observations would be made known to the High Court Judge who would be invited to consider the application.
The application, together with the solicitor's letter and the reply to it, were placed before Michael Davies, J., whose own observations were, at his request, afterwards made known to the appellant's solicitor. The learned Judge stated:
"I have given full consideration to the defendant's solicitor's letter of 17th October, 1977 but in all the circumstances I am satisfied that the interests of justice require me to grant leave to prefer. Furthermore, there would have been no justification for me to have departed from the usual practice of dealing with the application on the documents without hearing counsel for the prosecution or the defendant."
Mr. Blom-Cooper submits that, since the defendant, by himself or by someone on his behalf, had a right to be heard upon the application if he wished to do so, the learned Judge was wrong to deny him that right. Accordingly, in giving leave to the Crown to prefer the bill of indictment, he acted without jurisdiction. So the indictment is, and always has been, a nullity, for which good reason it should have been quashed by his Honour Judge Gibbens at the trial at the Central Criminal Court at the end of the prosecution's case, if not sooner.
In order to deal comprehensively with the submissions it is necessary to trace in outline the historical development of the creation of a bill of indictment.
Prior to the enactment of the Administration of Justice (Miscellaneous Provisions) Act 1933 a grand jury was responsible for deciding whether a bill of indictment preferred against a person accused of crime was a true bill upon which an accused should stand trial. If the grand jury found a true bill the accused faced trial at Assizes or Quarter Sessions on that indictment. If it did not find a true bill the grand jury threw the bill out, and the accused was thereupon discharged.
A bill presented to a grand jury could emanate from anyone of the following lawful sources.
-
(a) From a committal for trial of an accused by magistrates at which the accused was present with a right to be heard. The finding of a true bill by a grand jury from a committal by magistrates had by the year 1933 become a...
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