R v Thompson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JAMES |
| Judgment Date | 10 April 1975 |
| Judgment citation (vLex) | [1975] EWCA Crim J0410-6 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 161/A/74 |
| Date | 10 April 1975 |
[1975] EWCA Crim J0410-6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice James
Mr. Justice Ashworth
and
Mr. Justice Bristow
No. 161/A/74
No. 167/A/74
MR. P. BAKER, Q.C. and MR. M. WOLFF appeared as Counsel for the Appellant W. Thompson.
MR. J. GILCHRIST appeared as Counsel for the Appellant E.M. Clein.
MR. B.A. HYTNER, Q.C. and MR. R. CHERRILL appeared as Counsel for the Crown.
On 13th December 1973 at the Liverpool Crown Court before his Honour Judge Bingham, Q.C., William Thompson, a general medical practitioner, and Edwin Marshall Clein, a chemist, were each convicted of obtaining property by deception on a number of counts in an indictment. On 18th December they were dealt with in respect of those convictions.
Each applied to this court for leave to appeal against the conviction. With the consent of Mr. Baker, who appears for Mr. Thompson, and Mr. Gilchrist, who appears for Mr. Clein – there being no objection by Mr. Hytner who now appears for the Crown – we shall deal with the hearing by way of giving leave to appeal to each of the appellants and treating the hearing as the hearing of the appeal.
In view of the development that occurred in the course of the argument in this court, it is unnecessary to cite at any length the facts giving rise to the prosecution, or the arguments in support of the appeal, other than the argument in relation to one the matter upon which we propose to dispose of the appeal.
The grounds put forward by the appellants, whilst not exactly the same in each case, amount to this in total: that the judge wrongly admitted in the exercise of his discretion evidence of some 14 witnesses of whom the Crown said that they gave evidence of facts similar to the facts supporting the charges in this indictment and therefore under the rules such evidence was admissible evidence; that the verdicts of the jury on counts 3. 4 and 5 were inconsistent in that they acquitted on counts 3 and 5, and convicted on count 4; a further ground, subsequently abandoned by Dr. Thompson but not by Mr. Clein, related to what was said to be a material irregularity in regard to the conduct of the jury: the supervision of the jury while they were in retirement at a hotel at the conclusion of the summing-up until such time as they returned their verdict.
There is one other ground which can be broadly described as relating to the conduct of the case on the part of the advocates participating in it. At the outset of the hearing today we ventured to describe this ground as not being a justiciable ground of appeal, for the very reason it would be quite impossible for this court to investigate those matters which would have to be investigated if one was to arrive at a determination of the issues raised by that ground.
Mr. Baker, in opening the appeal on behalf of Dr. Thompson, gave this court the chronological history of the trial. It commenced on 15th October, 1973, and some time was taken up in submissions relating to the counts charged in the indictment. Both appellants, through their counsel, contended that the counts were bad. The appellants had been committed for trial by a magistrates' court under the procedure whereby certain witnesses were called to give evidence and statements of other witnesses were read. There was a perfectly valid committal for trial. That committal was a committal in relation to specified charges, but when the indictment was preferred to the court it did not include a single one of the charges upon which the appellants had been committed. In substitution for those charges were others in relation to which the Defence made an objection and moved to quash the indictment.
After hearing arguments the trial judge stated that the indictment was liable to be quashed for reasons which to this court seem perfectly proper reasons. He gave to the Crown an opportunity - before announcing the decision to quash the indictment - to amend the counts, if that were possible, in order to make that indictment an unobjectionable indictment. Counsel for the Crown did formulate amendments, but did not succeed in persuading the judge that in the exercise of his discretion he should give leave to amend. The defending counsel's submission that the amendments ought not to be allowed was upheld. We are quite satisfied, despite some suggestion in the papers to the contrary, that at that stage the judge quashed the indictment. The record of the court which is before us reads: "17th October 1973, indictment quashed. Defendants' costs to be taxed and paid by the Prosecution", and there are some other matters there relating to costs. Finally: "Application to present new indictment granted."
Counsel then appearing for the Prosecution presented an indictment which contained six counts. Before any arraignment took place upon that indictment, it would appear - whatever the technical position was - that the first count which alleged a conspiracy disappeared from the scene. On arraignment the appellants were required to answer to an indictment with re-numbered counts, numbering 1 to 5, each of them alleging fraudulent obtaining of payment by false pretences. The pretence in each case related to the obtaining of sums of money from the appropriate authority in relation to prescriptions signed by the doctor and dispensed from the chemist's shop.
It appears that the indictment which was secondly presented containing the six counts, and the amended form of that indictment which had five counts re-numbered, were not endorsed with the usual words "Leave to Prefer" and the initials of the judge giving leave to prefer. It was only as a matter of an incident in the chronology that Mr. Baker referred to his surprise to see that on the face of the indictment apparently leave had not been obtained to prefer that indictment from a High Court judge, and that it appeared the matter had been dealt with by the circuit judge. Mr. Baker raised this matter with some diffidence. He was not disposed to make it a ground of appeal for it had not appeared in the grounds of appeal settled by Counsel who had appeared at the trial for Dr. Thompson and Mr. Clein; the Prosecution had not been given any notice of it and, indeed, the information necessary to sustain argument upon it was not readily available. The court sensed that the point was an important point, indeed a fundamental point, and urged Mr. Baker to take it. Had he not done so, the court would have taken it of their own motion. It is this point which in our view is conclusive of the outcome of this appeal.
We have already referred to the fact that this was a trial before his Honour Judge Bingham, Q.C. who is a circuit judge and...
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...because the underlying committal, or nowadays sending, albeit originally valid, has subsequently fallen away. This is illustrated by R v Thompson [1975] 1 WLR 1425 (as explained by Lord Lane CJ in R v Follett [1989] QB 338.) In Thompson the committal for trial was valid (see page 1427C.) ......
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