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Judgments - R v Clarke (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) R v McDaid (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (Consolidated Appeals)


SESSION 2007-08

[2008] UKHL 8

on appeal from: [2006] EWCA Civ 1196




R v Clarke (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

R v McDaid (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

(Consolidated Appeals)

Appellate Committee

Lord Bingham of Cornhill

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood



Joel Bennathan QC

Peter Wilcock

(Instructed by Hadgkiss Hughes & Beale)


David Perry QC

Duncan Perry QC

(Instructed by Director of Public Prosecutions)

Hearing date:

28 NOVEMBER 2007






R v Clarke (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

R v McDaid (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

(Consolidated Appeals)

[2007] UKHL 8


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. Clause 2(1) similarly made no express reference to signing: the bill of indictment was to be submitted to the judge or chairman of the court and certified under the hand of the clerk or other officer of the court as having been so submitted, and was thereupon to become an indictment. These clauses were criticised as lacking clarity, and the amended clauses were introduced to put the matter beyond doubt.

7.  Under the superseded grand jury regime the indictment was authenticated by the delivery of the bill found to be a true bill by the grand jury: Jane Denton’s Case (1823) 1 Lewin 53, 168 ER 956; Giuseppe Sidoli’s Case (1833) 1 Lewin 55, 168 ER 957. With the abolition of the grand jury it was thought necessary to substitute a new means of authentication. This was the role of the proper officer under section 2(1) of the 1933 Act. He was to sign the bill, but only “if he is satisfied that the requirements of the next following subsection have been complied with", namely that the person charged has been committed for trial or that the bill has been preferred at the direction or with the leave of a High Court judge or pursuant to an order under section 9 of the Perjury Act 1911. It is furthermore incumbent on the proper officer in an appropriate case to have regard to the provisos to subsection (2), in particular to ensure that any counts in the bill charging offences for which the defendant has not been committed are founded on evidence disclosed in depositions and are properly joined. Thus the role of the proper officer was not envisaged as purely formal, although it would be so where the judge or chairman, himself satisfied that the requirements of subsection (2) had been complied with, directed the proper officer to sign the bill. In R v Stewart, above, p 307, the Court of Appeal accepted that the proper officer had satisfied himself that the person charged had been committed for trial for the offence contained in the indictment or had been the subject of a voluntary bill or an order under section 9 of the Perjury Act in compliance with section 2(2) of the 1933 Act. This is how the procedure was intended to operate. In most cases, no doubt, the proper officer’s task would be routine, but it would not always be so.

8.  Until recently, the jurisdictional requirements of section 2 of the 1933 Act were strictly insisted upon. In R v Gee [1936] 2 KB 442 the proceedings committing the defendants for trial were held by the Court of Criminal Appeal (Lord Hewart CJ, du Parcq and Goddard JJ) to be so defective that there was no lawful committal. It followed that the document purporting to be an indictment was not an indictment and the appellants could not be tried on it. Giving the judgment of the court (pp 446-447), Goddard J said: “Considering that since 1933 a committal by magistrates is substituted for a presentment by a grand jury, it is of the greatest importance that there should be no deviation from the requirements of the Statute". The convictions were quashed. In R v Thompson [1975] 1 WLR 1425, 1430, the prosecution fell foul of the principle “that it is only once that an indictment can be preferred upon the basis of one committal". It followed on the facts of the case that the trial had taken place upon an invalid indictment not properly founded on a committal nor preferred by leave of a High Court judge and the trial was therefore a nullity. The convictions were quashed. In R v Cairns (1983) 87 Cr App R 287 a High Court judge had given leave “to prefer this bill of indictment containing one count initialled by me". The trial judge, rightly thinking that this and other counts should be tried together, authorised an entirely new indictment containing these other counts and the count in the voluntary bill. While recognising the point as technical and devoid of merit, the Court of Appeal held that the judge had had no jurisdiction to act as he had under section 2(2) of the 1933 Act. It followed that the appellant had been tried on an indictment which was a nullity, and his conviction was quashed. In R v Newland [1988] QB 402 the trial had proceeded on an invalid indictment. While recognising (p 406) that there was no merit in the appeal at all, the appellant having pleaded guilty, his appeal was allowed and his conviction quashed.

9.  The authority closest on its facts to the present is R v Morais (1988) 87 Cr App R 9. A High Court judge had given leave to prefer a voluntary bill against the appellant, who was arraigned on six counts in the voluntary bill. He pleaded not guilty, was convicted on four counts and was sentenced. Relying on section 2 of the 1933 Act, he appealed on the short ground that the voluntary bill had never been signed by the proper officer: without a signature, he argued, there could be no indictment, and without an indictment there could be no valid trial. In a judgment given by Lord Lane CJ, sitting with McCowan and Pill JJ, the Court of Appeal upheld that submission. The court found considerable value in an unreported judgment of the Court of Appeal in R v Hodges (George David), 5 June 1981, in which Peter Pain J had said:

“It seems to us that it is impossible for a criminal trial to start without there being a valid indictment to which the defendant can plead, and that the bill of indictment does not become an indictment until it is signed".

By contrast, the court derived no assistance from another unreported decision (R v Price, 6 November 1985) in which the facts were similar save that the defendant had pleaded guilty: the court on that occasion had considered the overall justice of the case without close attention to the jurisdictional question and without considering whether the words in section 1 of the 1933 Act were mandatory or directory. Prosecuting counsel submitted that the absence of a signature was of no consequence since, with the form signed by the High Court judge in his possession, the proper officer had had nothing to consider and had had no choice but to sign it. Lord Lane, however, observed (p 13):

“It seems to us that that argument to some extent tends to beg the question. Either the words are mandatory or they are not. If they are mandatory, it does not matter that there is nothing left for the proper officer to do except to sign. If on the other hand they are not mandatory, then it does not matter that there is something left for the officer to do and he still does not sign the indictment".

Prosecuting counsel went on to cite Liverpool Borough Bank v Turner (1860) 2 De GF&J, 502 at pp 507-508, 45 ER 715, 718, where the court was enjoined by Lord Campbell LC to look at the importance of the provisions in question and to look at the real intention of the legislature in deciding what the consequences of non-compliance were intended to be. This was the approach which the court followed. As Lord Lane put it (at p 14 of his judgment)

“The answer, we feel, is to be found in the intentions of the draftsman in the first place. It seems to us that this Act was intended, so to speak, to fill the gap which was left by the abolition of the grand jury. It was intended to ensure not only that the proper requirements had been fulfilled before a trial proper could start, but that also there should be a certification by way of the signature of the proper officer to indicate that he had inquired into the situation and satisfied himself that the requirements of the subsection had properly been complied with. We have come to the conclusion therefore that it is not merely a comparatively meaningless formality that the proper officer’s signature should be appended, but it is, as the words of the Act itself prima facie indicate, a necessary condition precedent to the existence of a proper indictment, that the bill should be signed and only then and thereupon does it become an indictment.

Therefore in the present case there was no valid indictment, there was no trial, no valid verdict and no valid sentence.”

Recognising the technicality of the defect, the court ordered a venire de novo so that the case would be tried again.

10.  The authority of R v Morais was not questioned in R v Jackson [1997] 2 Cr App R 497 although, on the special facts of that case, the Court of Appeal (Judge LJ, Longmore and Smedley JJ) reached a different conclusion. A number of defendants were charged in a 17 count indictment (“indictment 1”) which was duly signed. The prosecution then brought forward two fresh indictments, one (“indictment 2”) containing a single count against a single defendant and the other (“indictment 3”) containing 3 counts, substantially drawn from indictment 1, against all the defendants. The 3 counts in indictment 3 were: conspiracy to rob (count 1), possession of a prohibited weapon (count 2) and conspiracy to handle stolen goods (count 3). Indictments 2 and 3 were duly signed. Doubts then arose whether there was sufficient nexus between count 3 and counts 1 and 2 in indictment 3 to justify its joinder in the same indictment. The judge gave leave to prefer two fresh indictments, one (“indictment 4”) to contain counts 1 and 2 in indictment 3, the second (“indictment 5”) to contain count 3 in indictment 3. The judge gave leave for service of indictments 4 and 5 to be effected and directed the proper officer to sign those indictments out of time. The defendants were arraigned on indictments 4 and 5, and the trial proceeded on indictment 4, some of the defendants pleading guilty and the others being convicted. They received substantial sentences. But a problem arose because the proper officer, although directed by the judge to do so, omitted to sign the bills of indictment. The Court of Appeal rejected (p 503) the suggestion that R v Morais could be distinguished on the basis that it had involved a voluntary bill, but found two further and crucial distinctions. First, the counts on which the defendants had been convicted in indictment 4 had both been included in indictments 1 and 3, both of which had been signed and for that purpose, so far as necessary, checked by the proper officer. Secondly, the judge had exercised the discretion granted to him by the proviso to section 2(1) of the 1933 Act to direct the proper officer in open court to sign indictments 4 and 5 and she had been obliged to do so, lacking (as a result of the direction) any independent jurisdiction of her own. The court declined to accept that the lawful direction of the trial judge could be frustrated and rendered valueless because the proper officer, for whatever reason, failed to follow his direction. It was not suggested in argument that this case was, on its facts, wrongly decided, and I would for my part endorse it.

11.  The House was referred to two cases recently decided in other jurisdictions. The first was Crawford v HM Advocate 2006 JC 57, a decision of the High Court of Justiciary (the Lord Justice Clerk (Gill), Lord Osborne and Lord Johnston). Section 64(4) of the Criminal Procedure (Scotland) Act 1995 requires that indictments in proceedings before the sheriff sitting with a jury shall be signed by the procurator fiscal and that the words “By Authority of Her Majesty’s Advocate” shall be prefixed to the signature of the procurator fiscal. In the case under appeal the indictment bore a signature by a person described as “Acting Procurator Fiscal” but the words “By Authority of Her Majesty’s Advocate” did not appear. Distinguishing Christie v HM Advocate 2004 JC 13 in which the words “By Authority” above the signature were held to be sufficient, the court held the omission to be fatal to the indictment. The court pointed out that this unsatisfactory result was entirely the fault of the Crown and allowed the appeal.

12.  The second authority was R v Janceski [2005] NSWCCA 281, (2005) 64 NSWLR 10, a decision of the Court of Criminal Appeal of New South Wales, sitting as a five judge court under the chairmanship of Spigelman CJ. Section 126 of the Criminal Procedure Act 1986 required an indictment to be signed by any one of a number of persons specified in the section, including a person authorised by the Director of Public Prosecutions to sign indictments, and empowered the DPP by order in writing to authorise persons to sign indictments for him and on his behalf. The appeal concerned an indictment presented at trial which had been signed by a barrister in private practice not authorised by the DPP in writing to sign indictments on his behalf. Having examined the matter in great detail, and taken account of much authority including both R v Morais and R v Jackson, the court unanimously held the indictment to be invalid. Remedial legislation has since been introduced.

13.  In a notably able and attractive argument for the appellants Mr Joel Bennathan QC relied on the language of the 1933 Act, construed in its historical setting, and on the construction consistently put on it, until recently, by the courts to make a simple but compelling submission. Sections 1 and 2 of the 1933 Act require a bill of indictment to be signed by the proper officer before it can become an indictment. The task of the court is to ascertain from the terms of the Act what Parliament intended the consequence to be if a bill of indictment is not duly signed. Setting aside extraordinary facts such as those considered in R v Jackson, the answer is clear: if a bill is not signed, it does not become an indictment; if there is no indictment, there can be no valid trial on indictment. Parliament did not intend that a defendant could be tried on indictment without an indictment.

14.  The linch-pin of Mr David Perry QC’s argument for the Crown is the recent decision of the Court of Appeal (Rose V P, Penry-Davey and Fulford JJ) in R v Ashton, R v Draz and R v O'Reilly [2006] EWCA Crim 794, [2007] 1 WLR 181, which must be examined in a little detail. Before the court were three applications for leave, and the facts of the three cases were different. Giving the judgment of the court, Fulford J addressed in paragraphs 4 and 5 what he described as the central issue of principle:

“4.  The outcome of each of these cases essentially depends on the proper application of the principle or principles to be derived from the decision of the House of Lords in R v Soneji [2006] 1 AC 340, together with the earlier decision of this court in R v Sekhon [2003] 1 WLR 1655. Indeed, these three applications demonstrate how far-reaching the effect of those authorities is likely to be whenever there is a breakdown in the procedures whereby a defendant’s case progresses through the courts (as opposed to the markedly different situation when a court acts without jurisdiction). In our judgment it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised (‘a procedural failure’), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.

5.  On the other hand, if a court acts without jurisdiction-if, for instance, a magistrates’ court purports to try a defendant on a charge of homicide-then the proceedings will usually be invalid.”

R v Sekhon [2002] EWCA Crim 2954, [2003] 1 WLR 1655 concerned a number of errors in the conduct of confiscation proceedings, some of which were held to be excusable procedural errors and others to be errors depriving the court of jurisdiction. R v Soneji [2005] UKHL 49, [2006] 1 AC 340 concerned the same subject matter. The cases are significant in their rejection, building on dicta of Lord Hailsham of St Marylebone LC in London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182, 189-190, the judgment of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, para 93, and the decision of the Court of Appeal in R v Secretary of State for the Home Department, Ex p Jeyeanthan [2000] 1 WLR 354, of the old approach of asking whether procedural requirements were mandatory or directory, instead asking what Parliament intended the consequence to be of non-compliance with the requirement in question. While I would myself express the decision to be made rather differently, I would accept the general validity of the distinction drawn by Fulford J in the paragraphs of his judgment quoted above. Many errors pertaining to indictments fall squarely into the procedural category, as exemplified by cases such as R v Sheerin (1976) 64 Cr App R 68, R v Soffe (1982) 75 Cr App R 133, R v Farooki (1983) 77 Cr App R 257 and R v Laming (1989) 90 Cr App R 450.