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)

(back to preceding text)

15.  Having reviewed the relevant legislation, the judge turned to the three individual cases. The defects in the case of R v O'Reilly were held (para 42) to be clearly and wholly jurisdictional in nature, given that the court had no power to deal with the defendant. Leave to appeal was accordingly granted and the conviction was quashed. In the case of R v Ashton the procedural failure was judged to be minor and leave was refused. The case of R v Draz was more immediately germane to the present case since the second and third questions posed for consideration (para 65) were whether the judge had been correct to conclude, when following the procedure under paragraph 7 of Schedule 3 to the Crime and Disorder Act 1998, that it was unnecessary for an indictment to be preferred and, if an indictment should have been preferred, whether the absence of a signed indictment was fatal to the validity of the proceedings. Paragraph 7 of Schedule 3 to the 1998 Act opened:

“(1) Subject to paragraph 13 below, this paragraph applies where -

(a) a person has been sent for trial under section 51 of this Act but has not been arraigned; and

(b) the person is charged on an indictment which (following amendment of the indictment, or as a result of an application under paragraph 2 above, or for any other reason), includes no offence that is triable only on indictment …

(3)  The court shall cause to be read to the accused each count of the indictment that charges an offence triable either way …”

Counsel for the Crown (then as now Mr Perry) accepted (para 66) that the procedure envisaged by paragraph 7 of Schedule 3 was premised on the existence of an indictment, but argued that the absence of an indictment, of itself and without more, did not affect the validity of the proceedings because this would not accord with the intention of Parliament and no prejudice had been caused to the defendant such as to make it unjust for the convictions to stand. Fulford J in his judgment recited the terms of section 2(1) of the 1933 Act and continued:

“74  As Mr Perry has helpfully reminded us, there are several authorities which suggest that the absence of a valid indictment renders any subsequent trial a ‘nullity': R v Thompson [1978] 1 WLR 1425; R v Cairns (1983) 87 Cr App R 287; R v Morais (1988) 87 Cr App R 9; R v Newland [1988] QB 402.

75  In R v Morais 87 Cr App R 9, the Court of Appeal quashed the appellant’s conviction for supplying drugs and ordered a retrial on the basis that the indictment had not been signed by the officer of the Crown Court. In that case the court concluded that the proper officer’s signature was not ‘a comparatively meaningless formality’ but a ‘necessary condition precedent to the existence of a proper indictment’ (p 14) and that in the absence of a proper indictment the trial was a nullity.

76  The decision in R v Morais was distinguished in R v Jackson (Andrew) [1997] 2 Cr App R 497. The judge directed the proper officer to sign two indictments but she failed to do so. This court held that the proper officer’s signature was a ‘meaningless’ clerical ‘formality’ and she was deemed to have signed it. In R v Laming (1989) 90 Cr App R 450, the appropriate officer of the Crown Court signed the indictment on the front page rather than after the last count as required by the Indictment Rules 1971 (SI 1971/1253). On those facts, the court on appeal determined that the indictment was valid.

77.  As Mr Perry has submitted, it appears, therefore, that even before the decisions in R v Soneji [2006] 1 AC 340 and R v Sekhon [2003] 1 WLR 1655 not every defect in an indictment would necessarily render it invalid, although the earlier authorities consistently made it clear that the absence of a valid indictment had the effect of rendering the trial proceedings of no legal effect. That conclusion was reached because the primary focus of the court in each of the cases was on whether the breach was of a ‘mandatory’ statutory provision. As we have set out above, the sea change wrought by the decisions in Soneji and Sekhon is that the court should concentrate in future on, first, the intention of Parliament (viz was it intended that a procedural failure should render the proceedings invalid) and, second, the interests of justice and particularly whether the procedural failure caused any prejudice to any of the parties, such as to make it unjust to proceed further.

78.  Here, the judge and the parties proceeded on the basis that the charges before the court identified the criminality alleged by the prosecution and it was accepted there was no prejudice to the defendant in this particular case when the court dealt with him absent an indictment. We stress that usually a bill of indictment should be preferred and signed and our decision in this case should not be taken as any kind of encouragement to relax that important requirement: an indictment provides a critical safeguard in that it describes the charges an accused faces with clarity and finality. However, applying the test we have described above, there are no indications that Parliament intended that proceedings would be rendered automatically invalid because an indictment had not been preferred or signed, and given no prejudice or consequential injustice have been identified, we see no reason to quash these convictions.”

Leave was accordingly refused.

16.  The appeal in the present case was dismissed by the Court of Appeal (Pill LJ, Dobbs and Underhill JJ) on 25 May 2006. Giving the judgment of the court, Pill LJ summarised the contentions of the parties and concluded:

“30.  The implications of the approach advocated in Soneji will need to be worked out in the many different circumstances in which parties rely on breaches of the rules, whether the rules appear in a statute or elsewhere. The case does, however, weaken the strict distinction between mandatory and directory requirements, consideration of which was at the heart of the decision in Morais. Whatever its implications in other circumstances, we consider that, in the present situation, we are bound by the decision of this court in Ashton, which is based on Soneji.

31.  If the principle covers Ashton, where there was not even a document which purported to be an indictment, it covers the present situation in which a bill of indictment has been lawfully preferred with the consent of a High Court Judge, who initialled the bill accordingly, but the bill has simply not been signed by the officer of the court. The absence of that signature was a situation specifically contemplated by the court in Ashton, at paragraph 78. Applying Ashton, the proceedings are not rendered automatically invalid because the indictment had not been signed. No prejudice or consequential injustice having been identified, the convictions should stand.

32.  We add that, given the ‘sea-change’ identified in Ashton, the signature, in the course of the trial, of an amended indictment by the proper officer of the court, is material. It was upon an indictment signed, and properly so-called, that convictions were entered. In the absence of prejudice to the defendants, we would also hold that the proceedings were thereby validated. That approach has something in common with the approach of the court in Jackson where a fiction was employed to create an indictment within the meaning of section 2(1) of the 1933 Act.”

17.  Mr Perry drew attention to the approval of R v Ashton expressed by a number of distinguished academic authorities, who saw it as a victory of substance over formalism. It is always, of course, lamentable if defendants whose guilt there is no reason to doubt escape their just deserts, although the present appellants, refused leave to appeal (on other points) by the single judge in 1997 and the full court in 1998, have now served the operative parts of their sentences. Technicality is always distasteful when it appears to contradict the merits of a case. But the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place. In this case, as in Crawford v HM Advocate, above, the duty in question was easy to perform, although here the failure to perform it was entirely the fault of the proper officer.

18.  What did Parliament intend the consequence to be, when it enacted sections 1 and 2 of the 1933 Act, if a bill of indictment was preferred but not signed by the proper officer? That, as I think both parties agree, is the question to be answered in this case. Although section 1 has been repealed and section 2 has been amended, it is not suggested that the answer to the question has changed. The “always speaking” principle has no application. The answer to the question now is the same as should have been given then. It is inescapable: Parliament intended that the bill should not become an indictment unless and until it was duly signed by the proper officer.

19.  It is necessary to ask a second question. What did Parliament intend the consequence to be if there were a bill of indictment but no indictment? The answer, based on the language of the legislation and reflected in 70 years of consistent judicial interpretation, is again inescapable: Parliament intended that there could be no valid trial on indictment if there were no indictment. Parliament has never enacted, with reference to proceedings on indictment, a provision comparable with section 123 of the Magistrates’ Courts Act 1980, but even that section has received a restrictive interpretation: see New Southgate Metals Ltd v London Borough of Islington [1996] Crim LR 334-335.

20.  The decisions in R v Sekhon and R v Soneji are valuable and salutary, but the effect of the sea-change which they wrought has been exaggerated and they do not warrant a wholesale jettisoning of all rules affecting procedure irrespective of their legal effect. This indeed the Court of Appeal recognised in R v Ashton, as earlier in R v Sekhon. I cannot, however, accept the basis upon which the court in R v Ashton distinguished its earlier decision in R v Morais. As is evident from the passage of Lord Lane’s judgment from page 14 of the report quoted in paragraph 9 above, but not quoted in R v Ashton, a passage carrying all the authority of that distinguished judge, the court was not focusing on the mandatory/directory issue but was asking itself the right question. Pill LJ, although a party to the earlier decision, erred in thinking otherwise. I can see no basis upon which the court in R v Ashton could properly depart from the precedent in R v Morais, which was clearly binding on it. The court in the present case was, as a result, placed in a difficult position. The decision in R v Morais was, in any event, correct.

21.  Neither party attached great significance in argument to the late signing of the amended bill in this case, the appellants because (in their submission) it could not validate an invalid trial almost concluded, the crown because (in its submission) the proceedings called for no validation. The appellants’ submission is to be preferred. The appellants having been arraigned and tried without a valid indictment, I do not think the somewhat adventitious addition of a signature at the eleventh hour, without (one assumes) any consideration of the counts already in the document, could throw a blanket of legality over the invalid proceedings already conducted.

22.  Parliament has had many opportunities over the past two decades to reverse the effect of R v Morais and the cases which preceded it had it chosen to do so. It has not. It may now be prompted to do so. Such legislation would no doubt seek to address not only the problems raised by the present case and R v Morais but also, for instance, cases where the bill of indictment is signed late, or signed by someone who is not the proper officer, or partially signed, and so on. These are matters better addressed in legislation than by piecemeal judicial decisions.

23.  The appeals must be allowed and the appellants’ convictions quashed. They are entitled to their costs in the Court of Appeal and the House out of central funds, to be assessed in the usual way.

LORD SCOTT OF FOSCOTE

My Lords,

24.  I have had the advantage of reading in advance the opinion prepared by my noble and learned friend Lord Bingham of Cornhill. I regret but agree with his conclusion that the appeals of the two appellants must be allowed and their convictions quashed and agree with the compelling reasoning that has led him to that conclusion. My regret is that their convictions have had to be quashed on account of a defect in the proceedings that most would regard as a technicality.

LORD RODGER OF EARLSFERRY

My Lords,

25.  I have had the advantage of considering the speech of my noble and learned friend, Lord Bingham of Cornhill, in draft. I am in complete agreement with it. Accordingly, for the reasons which he gives, along with the additional observations of my noble and learned friend, Lord Brown of Eaton-under-Heywood, I too would allow the appeals.

26.  In my view, the decision of the Court of Appeal in R v Morais (1988) 87 Cr App R 9 was plainly correct. The whole scheme of the legislation shows that without an indictment there cannot be a valid trial and, on the express language of section 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933, the only step which changes a bill of indictment into an indictment is the signing of the bill by the proper officer of court. That step is accordingly indispensable.

27.  The Court of Appeal’s decision to the contrary appears to have been based on the significance which their Lordships attached to the decision of this House in R v Soneji [2006] 1 AC 340, as interpreted and applied in R v Ashton [2007] 1 WLR 181, where, at p 205, para 77, Fulford J described it as contributing to a “sea change” in the approach of the courts.

28.  The true significance of the decision in Soneji lies, however, in the approval of the view that any classification into mandatory or directory is the end of the relevant inquiry, not the beginning, and that the better test is to ask “whether it was a purpose of the legislation that an act done in breach of the provision should be invalid": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 390, para 93, per McHugh, Gummow, Kirby and Hayne JJ.

29.  In R v Soneji, having applied that approach, for the reasons given in the speeches, the House concluded that it was not a purpose of the legislation that confiscation orders imposed without respecting the requirements of the statute should be invalid. In R v Morais (1988) 87 Cr App R 9, Lord Lane CJ adopted essentially the same approach, but concluded, at p 14, that, for the legislature, the requirement for the court officer’s signature to be appended was a necessary condition precedent to the existence of a proper indictment. As Lord Bingham has shown, that was not only a correct, but an inevitable conclusion both from the language of the statute and from the legislative history.

LORD CARSWELL

My Lords,

30.  Having been convicted in 1997 of serious crimes and sentenced to substantial terms of imprisonment, the appellants now seek to have their convictions quashed on the ground that the voluntary bills of indictment had not been signed by the proper officer. The Court of Appeal was of opinion that compliance with the requirement of such signature was not necessary in every case. They considered that where no prejudice to the appellants had been caused by the omission it would not have been the intention of Parliament that their conviction should be quashed as invalid. The argument presented on behalf of the appellants, which has been accepted by your Lordships, is that the requirement of signature by the proper officer is an integral and essential element in the presentation of an indictment and that its omission is fatal to the validity of a conviction on a charge contained in that indictment.

31.  I see much attraction in the decision of the Court of Appeal, for the prevailing trend is in general against regarding procedural steps as mandatory requirements and in favour of the conclusion that in the absence of prejudice to any party Parliament did not intend that failure to observe the requirement of signature should entail invalidity. I am sympathetic to this approach, which dictated the conclusion of the Court of Appeal in this appeal and in R v Ashton [2006] EWCA Crim 794, [2007] 1 WLR 181, but I have been persuaded by the appellants’ arguments and agree with your Lordships that the appeals should be allowed. In considering these issues I have derived assistance from the history of the function of the grand jury in its presentment of indictments and from comparison with the parallel legislation in Northern Ireland.

32.  The procedure of the grand jury in the presentment of crimes was founded almost wholly upon ancient usage and not upon statutory enactment: Huband, Juries in Ireland (1896) p 116. It was closely similar in Ireland to that obtaining in England, as the institution was imported from English law. The grand jury, or jury of presentment, was of great antiquity, having been created by Henry II in the Assize of Clarendon in 1166. It evolved over time from its early function of presenting an accusation against an accused based on the jurors’ own knowledge into its later form. In that form, which was the prevailing procedure in England until 1933 and in Northern Ireland until 1969, any person could appear before the grand jury with a bill of indictment, although in more recent times that was almost invariably the function of the prosecuting authority. The indictment found by the grand jury and presented to the court was the foundation of the record in all criminal cases, being the statement on oath by the grand jury that the prisoner committed the offence charged.

33.  A bill, or draft indictment, was indorsed with the names of the witnesses whom it was proposed to call before the grand jury and taken by the solicitor for the prosecution to the grand jury room. The steps then followed were set out in Stephen, A History of the Criminal Law of England (1883), vol I, p 274:

“The grand jury sit by themselves and hear the witnesses one at a time, no one else being present except the solicitor for the prosecutor if he is admitted. The name of each witness examined before the grand jury is initialled by the foreman; and when they have heard enough to satisfy themselves that a prima facie case is or is not made out against the prisoner, they endorse upon the indictment ‘ a true bill,’ or ‘ no true bill,’ as the case may be (in the days of law Latin the endorsements were ‘Billa Vera', or ‘Ignoramus’), and come into court and hand the indictments to the clerk of assize or clerk of the peace, who says, ‘Gentlemen, you find a true bill,’ or ‘no true bill’ as the case may be, ‘against A. B. for felony or misdemeanour.’ If the finding is ‘no true bill,’ the matter drops and the prisoner is discharged, though he is liable to he indicted again. If the finding is ‘a true bill,’ the trial proceeds and the ‘bill’ becomes an indictment.”

The indorsement of the grand jury was parcel of the indictment and the perfection of it: Huband, op cit, p 188; R v Ford ( 1607) Yelverton 99. The bill had to be delivered in open court as the finding of the grand jury: Huband, p 189; R v Thompson (1846) 1 Cox CC 268. In some assize courts in Northern Ireland it was literally handed down from the gallery of the court, placed in a clip at the end of a long pole held by a tipstaff in the body of the court. It was the affirmation of the bill in court which constituted the indictment, not the words of the indorsement, which were only evidence of the assent or dissent of the grand jury: 2 Hale PC 162. Accordingly the bill was good even if not signed by the foreman, when it had been delivered in court and read in his presence: Giuseppe Sidoli’s Case (1833) 1 Lewin 55, and cf Jane Denton’s Case (1823) 1 Lewin 53.

34.  I have dwelt upon the grand jury procedure at some length because I think that it illuminates the purpose of Parliament in passing section 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933, providing for the signature of the proper officer to a bill of indictment. The legislative history, set out in paragraph 6 of the opinion of my noble and learned friend Lord Bingham of Cornhill, confirms that the introduction of this procedure was not a matter of mere administrative convenience. It was to be the step by which the bill of indictment, which is only a draft, became converted into the indictment, which was and is the foundation of the criminal trial of the accused. It was intended to replace the finding by the grand jury and its presentment of the indictment in open court. As such it appears clear that it was regarded by Parliament as a significant step which could not be omitted without the validity of the procedure being affected.

35.  The procedure adopted by the Parliament of Northern Ireland forms a contrast. Grand juries were finally abolished (having gone from quarter sessions in 1926) by section 1 of the Grand Jury (Abolition) Act (Northern Ireland) 1969. Section 2(1) provided, as amended:

“Subject to the succeeding provisions of this section, an indictment may, notwithstanding anything to the contrary in any enactment or rule of law, be presented to [the Crown Court] although not found by a grand jury.”

Section 2(2), which is similar to section 2(2) of the English 1933 Act, specifies the conditions one of which must be satisfied before an indictment may be presented, the most important of which are that the person charged has been committed for trial or that the indictment is presented with the leave of a judge. Subsection (3) gave specific power to a judge to order an entry of “No Bill” in the Crown book if satisfied that the depositions or committal statements do not disclose a case sufficient to justify putting the accused on trial. Finally, subsection (8) preserved the procedure formerly adopted, save as provided by section 2. That procedure was governed by the Indictments Act (Northern Ireland) 1945 and the rules made thereunder, now replaced by the Crown Court Rules (Northern Ireland) 1979. Nowhere in these provisions is there any requirement for the bill of indictment to be signed by any person, nor has there ever been a practice of signature, save that a judge giving leave to present a voluntary bill generally signs the bill at the conclusion of the leave hearing.

36.  This shows that there is no a priori requirement that some defined step be taken in order to convert a bill into an indictment, nor did the abolition of the grand jury leave a gap which necessarily required the provision of something to fill it. That conversion may under the Northern Irish legislation take place through presentment of the bill to the Crown Court, although the indictment will not be valid unless one of the conditions set out in section 2(2) of the 1969 Act is satisfied. It also shows, however, that when the 1933 Act was brought into law in respect of the courts in England and Wales Parliament deliberately required the interposition of such a defined step, viz the signature of the bill by the proper officer.

37.  The Court of Appeal felt able to follow its previous decision in R v Ashton [2006] EWCA Crim 794, [2007] 1 WLR 181 rather than the earlier decision in R v Morais (1988) 87 Cr App R 9. It may be noted, however, as Lord Bingham has pointed out (para 20 above), that in his judgment in the latter case Lord Lane CJ did pose the question in terms of the intention of the draftsman and did not confine himself to considering the dichotomy between mandatory and directory provisions. It may therefore be open to question whether the court in Ashton was free to decline to follow Morais. That is, however, of lesser consequence now that the matter has come before the House, which is in a position to determine the issue for itself.

38.  I am, as I have stated, sympathetic to an approach which eschews formalism and technicality, and if a proper construction of section 2 of the 1933 Act permitted, I should be very ready to hold that the absence of a signature did not invalidate the indictment and the trial of the appellants. I too have found the conclusion inescapable, however, that in enacting section 2 Parliament intended that the affixing of the signature of the proper officer should be more than a technicality and that it should constitute an essential part of the procedure of presentation or preferment of an indictment to the court. I am accordingly unable to hold that the legislative intention was that the indictment and trial could be valid in the absence of the signature.

 
Continue  Previous