|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)
39. I would allow the appeals and quash the convictions. Since the appellants have served out the sentences, no question of a new trial arises.
LORD BROWN OF EATON-UNDER-HEYWOOD
40. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill and am in full agreement with it. As my Lords opinion so clearly demonstrates, the Court of Appeal in R v Morais (1988) 87 Cr App R 9, asked itself the correct question (consistently with the approach later more explicitly directed by the House in R v Soneji  1 AC 340) and gave the correct answer, and the same answer is compelled here. Of course this will produce from time to time unsatisfactory results. Guilty men may go free or if not free have to be retried following a venire de novo (as was ordered in Morais itself). A retrial will involve delay, expense and inconvenience and may cause particular witnesses (for example rape victims) considerable distress. But the problem is easily enough avoided and will only occur if the Crown is at fault. In any event Parliament can always alter the position if it chooses.
41. The one further authority which I think worthy of brief mention is Seal v Chief Constable of South Wales Police  1 WLR 1910, where the House by a majority held that civil proceedings brought without leave in respect of acts done pursuant to the Mental Health Act 1983 are of no effect. There, as here, Soneji was deployed to argue that Parliament cannot have intended such inconvenient and sometimes unjust results to follow from a failure to comply with the statutory requirement. There, as here, it was submitted that the procedural requirement in question was merely a formality. The argument failed. As Lord Bingham put it (at para 17):
...Parliament must, in legislating as it did, have recognised the risk that hard cases, such as Mr Seals, may occur, but have considered the occasional occurrence of such a case to be a price worth paying for the reassurance and protection given by [the relevant sections] to those whose very important and often difficult task it is to care for the mentally ill.
I myself (at para 74) described the requirement as being to safeguard prospective defendants from being faced with proceedings (which might not be sufficiently meritorious to deserve leave) unless and until a High Court judge thought it appropriate that they be issued.
42. I acknowledge, of course, that two members of the Committee reached the contrary conclusion but I would note that both of them thought there to be a material distinction in this context between criminal and civil proceedingsLord Woolf at para 34 and Baroness Hale at para 51. Neither questioned the correctness of cases like R v Angel  1 WLR 669 where criminal proceedings for a sexual offence brought without the required consent of the DPP were held to be a complete nullity notwithstanding they had proceeded to conviction and sentence. Not only is the present failure one in criminal proceedings but it is in any event to my mind closer in character to the failure in Seal than to that in R v Secretary of State for the Home Department ex parte Jeyeanthan  1 WLR 354which I described in Seal (also at para 74) as essentially a failure to use the prescribed form of application for leave to appeal with the consequential omission of a declaration of truth. Here, to paraphrase Lord Lane CJ in Morais, the legislation was designed to ensure that the proper requirements have been fulfilled before a trial proper can start, a fact to be certified by the signature of the proper officer indicating that he has properly satisfied himself that this is so. So, at least, it was perceived by those who enacted it. In short, the signature (which thereby translates a bill of indictment into an indictment) is no less a condition precedent to a proper trial than is the consent (whether of a High Court judge for a civil claim or the DPP for a criminal prosecution) required for the commencement of valid proceedings under the Mental Health Act.