Clarke & Anor, R. v [2006] EWCA Crim 1196

[2006] EWCA Crim 1196Case No 2005/02375 &2005/02376/B4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WORCESTER CROWN COURT
HIS HONOUR JUDGE MOTT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25 May 2006
Before
LORD JUSTICE PILLMRS JUSTICE DOBBS DBEMR JUSTICE UNDERHILL
Between
RRespondentRONALD AUGUSTUS CLARKE &AppellantJAMES ANDREW FRANCIS McDAIDAppellant
MR W RICKARBY for RespondentMR K A METZGER for Appellant R A ClarkeMR J BENNATHAN for Appellant J A F McDaidHearing Hearing date : 4 May 2006
Judgment
[1]On 23 April 1997, in the Crown Court at Worcester before His Honour Judge Mott and a jury, Ronald Augustus Clarke and James Andrew Francis McDaid were each convicted of causing grievous bodily harm within intent, contrary to Section 18 of the Offences Against the Person Act 1861 (Count 6). Clarke was also convicted of doing a series of acts tending and intended to pervert the course of justice (Count 9). McDaid was also sentenced to an offence of damaging property being reckless as to whether life was endangered (Count 4) and an offence of damaging property (Count 5). No verdicts were taken on other counts.[2]On Count 6, each of them was sentenced to 12 years imprisonment. Clarke was also sentenced to 18 months imprisonment, concurrent, on Count 9. McDaid was also sentenced to 2 years imprisonment, consecutive, on Count 4, and 3 months imprisonment, concurrent, on Count 5. The total sentence on Clarke was therefore one of 12 years imprisonment and on McDaid 14 years imprisonment. They have each completed the custodial part of the sentence imposed[3]This is a reference to the Court by the Criminal Cases Review Commission (“CCRC”) under Section 9 of the Criminal Appeal Act 1995 (“the 1995 Act”). In each case, the sole ground for reference is “that there is cogent evidence that suggests that the indictment upon which [the defendants’] trial proceeded was not signed and that the trial and conviction may be rendered a nullity in consequence.”[4]On 17 September 1994, an application for leave to appeal against conviction had been refused by the single judge and, on later renewal, by the full court. The present point was not taken.[5]The offence under Section 18 was committed on 24 February 1995 when a group of men entered The Plough, a public house in Rubery, and attacked Mr Jacobs as a result of which his hands were partially severed. It was alleged that the appellants were members of the group. The grounds of appeal in 1997 were based mainly on identification issues and alleged misdirections in the judge’s summing-up. Following the refusal of leave to appeal, the appellant Clarke applied to the CCRC for a review. The application was made on several grounds, but the reference has been made on the single ground already stated.[6]The Commission has made very considerable enquiries into the document upon the basis of which the trial took place. At different stages, following committal for trial, there were different bills of indictment, leave to prefer an indictment having been given on one occasion by Thomas J and on another later occasion by Latham J. Each of the appellants was arraigned in October 1996. The trial began and witnesses were called on 4 April 1997. Following their enquiries, to which we do not propose to refer in detail, the Commission concluded; “Whilst it is not possible to conclude with certainty that [the appellants] [were] tried on an unsigned indictment, the Commission considers that the evidence discussed above is cogent and that the preponderance of the evidence points to the conclusion that the “Latham bill of indictment” was not signed by an officer of the court. In these circumstances, the Commission considers that there is a real possibility that the Court of Appeal would resolve this factual issue in [the appellants] favour”.[7]It has not been possible to find the documents which were before the trial court. What is clear is that on 21 April 1997, after the conclusion of evidence, the appellants were arraigned on an alternative count of inflicting grievous bodily harm (Section 20). The indictment had been amended by leave of the trial judge and copy of the indictment upon which the jury then proceeded to convict was signed by an officer of the court.[8]Our own enquiries, at the hearing, which were inevitably limited, did not produce any further relevant information. While we are not entirely convinced that the “Latham bill of indictment” had not been signed by an officer of the court, we have come to the conclusion that we should consider these appeals on the basis that the first relevant signed document was that of 21 April 1997. The prosecution, along with the appellants, invite the court to take that view.[9]Section 2(1) of the Administration of

Justice (Miscellaneous Provisions) Act 1933 (“the 1933 Act”) provides:

“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 … 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.”
[10]The situations in which a bill of indictment charging any person with an indictable offence may be preferred are defined, and limited, by Section 2(2) of the 1933 Act. They include, at paragraph (b), when “the bill is preferred by … the direction or with the consent of a judge of the High Court”, as well as when, at paragraph (a), “the person charged has been sent [formerly committed] for trial for the offence.” There are other situations which are not material for present purposes.[11]In this case, the requirements of Section 2(2) were, within the meaning of Section 2(1), complied with but the bill was not signed by the proper officer of the court so as to become an indictment. It is not suggested that the initials or signature of the judge authorising preferment of a voluntary bill satisfies the requirement of the section.[12]The appellants’ submission is that, in those circumstances, there was no indictment and the trial was accordingly a nullity. Reliance is placed on the decision of this court in R v Morais, (Lord Lane CJ, McCowan J and Pill J) (1988) 87 Cr App R 9. The bill of indictment, which had been preferred by direction of a High Court Judge, and initialled by him, was not signed by the proper officer of the court. The prosecution argued that the words in Section 2(2) were merely directory. Lord Lane CJ stated, at page 13:
“Either the words are mandatory or they are not”
. Lord Lane stated, at page 14:
“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 the 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 has 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.”
[13]The defendant in that case had pleaded guilty and been sentenced to 4 years imprisonment. The court directed a venire de novo and that the matter be tried again. The court’s power to order the issue of writs of venire de novo was preserved by Section 53(2)(d) of the Supreme Court 1981.[14]The issue arose in a stark and uncomplicated way in Morais. The implications of the ruling were small in that the lapse of time between the trial and the ruling in this court was short and the appellant was likely to plead guilty to an indictment signed by the officer of the court as he had pleaded guilty to a bill which was not.[15]The facts are sometimes more complicated. In Morais itself, reference was made to the case of Price (unreported, 6 November 1985), Watkins LJ presiding. The court was prepared to uphold a conviction based on an indictment which had not been signed by the proper officer of the court. The defendant pleaded guilty in the course of the trial and had suffered no prejudice from the failure to “attend to the proper procedures for producing an indictment upon which a person can lawfully be tried”. The court in Morais commented, at page 13, that the court in Price had been considering the overall justice of the case rather than the particular question of whether the words in Section 2(1) of the 1933 Act are mandatory or directory. The case was said not to provide assistance on the present issue.[16]In R v Jackson & Ors [1997] 2 Cr App R 497, following submissions that counts had been wrongly joined in an indictment, fresh indictments were preferred. The judge directed that the indictments be signed out of time but the clerk of the court failed to do so. As in Morais, the bill of indictment concerned was a voluntary bill and not a bill preferred following a committal for trial.[17]The court, Judge LJ presiding, distinguished Morais, first, on the ground that the earlier indictment had been signed so that one of the purposes of the rule, to check there had been a valid committal, had been achieved. The court continued, at page 503C:
“Second, and more important, before arraignment on the two fresh indictments Judge Farrer had exercised the discretion granted to him as the trial judge by the proviso to section 2(1) of the 1933 Act and, as he was entitled, of his own motion had directed in open court that the proper officer should sign the fresh indictments … If such a direction is given by the judge the proper officer ceases to have any independent jurisdiction of his own: his signature must follow …”
The court accepted, at 503E, that the procedures laid by Section 2 of the 1933 Act are mandatory.[18]The court held, at page 503G:
“In this very unusual situation her signature was indeed to adapt the language used by Lord Lane in Morais, a “meaningless” clerical “formality”
. We have concluded that the correct approach to what happened is that as the proper officer had no alternative but to sign in accordance with the judge’s direction she should be deemed to have appended her signature to the bill of indictment prior to arraignment. Accordingly the indictment on which the appellants were tried and convicted was not invalid and the trial was not a nullity.” Thus there was compliance with Section 2(1) on the basis of a deemed signature. The emphasis in Morais on considering whether a requirement is mandatory appears to have been maintained.[19]Counsel for the appellants submit that the principle in Morais should be applied in the present case. They rely upon the provision in Section 2 of the 1933 Act that it is upon signature by the proper officer of the court that the document becomes an indictment and can be proceeded with. The indictment necessary for a valid trial is created only if there is such a signature. This principle accords, it is submitted, with the legitimate requirement that certain core formalities need to be observed before there can be a valid trial.[20]Formality is necessary to ensure a properly constituted and fair trial, it is submitted. The core formalities include:(a) any necessary consent to a prosecution having been obtained (Angel [1968] 52 Cr App R 280,(b) that the judge has been properly appointed (Cronin [1940] 27 Cr App R 179), and(c) that the jury has been properly selected (Tarrant [1998] C.L.R 342). The further core formality(d) is that a bill of indictment has been properly preferred and has, by the signature of the proper officer of the court, become an indictment.[21]Further, the court is bound by the decision in Morais, a decision made upon a consideration of the statute and the origin of its provisions in the abolition of the grand jury. In Crawford [2005] Scot HC HCJAC 89, a strict view was taken in the Appeal Court, High Court of Judiciary, of the requirement in the Criminal Procedure (Scotland) Act 1995, Section 64(4) that:
“Indictments in proceedings before the sheriff sitting with a jury shall be signed by the procurator fiscal and the words ‘By Authority of Her Majesty’s Advocate’ shall be prefixed to the signature of the procurator fiscal.”
The “complete failure” to comply with the requirement to show authority was held to require that a plea to the competency be sustained.[22]A strict view has also been taken of the need for a High Court Judge to consent to any preferring of a voluntary bill under Section 2(2)(b) of the 1933 Act. In Thompson & Clein [1975] 61 Cr App R 108, a bill of indictment preferred by leave of a Circuit Judge was held to be invalid and the resulting trial a nullity.[23]The prosecution, who, until shortly before the hearing of the appeal, were proposing not to oppose it but to seek a retrial, now claim that the court is no longer bound by Morais because of the recent decision of this court in Ashton & Ors [2006] EWCA Crim 794, Rose LJ, Vice President, presiding. The issue arose because in Draz, one of the cases considered, a defendant was erroneously sent to the Crown Court for trial under Section 51 of the Crime and Disorder Act 1998 so that the requirements of Section 2(2) of the 1933 Act were not met. The error made by the Magistrates’ Court was recognised in the Crown Court and the defendant made it clear that he wanted his case nonetheless to proceed. In the absence of an indictment, the judge followed the procedure in paragraph 7 of Schedule 3 to the Crime and Disorder Act 1998, to which it is unnecessary to refer for present purposes, and concluded that it was unnecessary for an indictment to be preferred. One of the issues on appeal was whether the absence of a signed indictment was fatal to the validity of the proceedings.[24]The court referred to cases, including Haye [2002] EWCA Crim 2476, in which a strict view had been taken of procedures to be followed in the criminal courts. Giving the judgment of the court, Fulford J stated, at paragraph 69:
“However, that said, each of those cases predate the decisions of the House of Lords in Soneji [2005] UKHL 49 and this court in Sekhon[2003] 1 Cr App R 34, and we are confident that if Haye was decided now the result would have been the other way. We are keenly aware of the extent to which this constitutes a significant departure from the way in which these issues have been dealt with and decided in the past, but we have no doubt that a new test and a new approach are now to be applied”
[25]It was held that the erroneous use of the Section 51 procedure did not deprive the Crown Court of its ability to deal with the defendant. The court added, at paragraph 72:
“We accept Mr Perry’s submission that the facts of this case provide a good illustration of how an inflexible invalidity-rule is contrary to the interests of the accused and the prosecution, as well as running contrary to the public interest in the fair administration of criminal justice.”
[26]The court went on to consider Section 2(1) of the 1933 Act and referred to cases including Morais and Jackson. The court stated:
“77. As Mr Perry has submitted, it appears, therefore, that even before the decisions in Soneji and Sekhon 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 applicant 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.”
It was also held, at paragraph 87, that “in most cases the (informed) acquiescence of the accused will be a significant relevant factor when assessing the twin issues of prejudice and whether or not it is just for the proceedings to continue”.[27]The court referred to the approval by Lord Steyn in Soneji of the approach of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355 where it was stated, at paragraph 21:
“... a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.”
Lord Steyn stated, at paragraph 23, that:
“The rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness”
. Lord Carswell also referred, at paragraphs 65 and 67, to the “doctrine of substantial performance”.[28]The court in Ashton, having cited Soneji, stated at paragraph 9:
“… absent a clear indication that Parliament intended jurisdiction automatically to be removed following procedural failure, the decision of the court should be based on a wide assessment of the interests of justice, with particular focus on whether there was a real possibility that the prosecution or the defendant may suffer prejudice. If that risk is present, the court should then decide whether it is just to permit the proceedings to continue ”
The court referred to the “far reaching” effect of Soneji and of Sekhon.[29]For the prosecution, it is submitted that the door has been opened to proceedings being upheld as valid notwithstanding failure to comply with the rule stated in section 2(1) of the 1933 Act, provided there is no prejudice to the accused. For the appellants, it is submitted that the principles established in Soneji do not apply to the core requirements for a criminal trial. Confiscation orders, the subject of consideration in Soneji, are ancillary to a trial and, unlike an indictment, are not the very basis of it. An enduring fundamental principle had been established in Morais. The words of the statute are meaningless if they can be ignored. As to the signature on 21 April, it is submitted that an indictment validating proceedings, otherwise invalid, cannot be created during the trial, and accidentally so, by a signature following the addition, with leave, of a further count.[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.[33]For the reasons given, these appeals are dismissed. The more flexible approach to the rules which emerges from Soneji and Ashton is likely to have the further beneficial effect of releasing resources of the CCRC to consideration of situations in which the possibility of real injustice has been perceived. That is not intended to be a criticism of the CCRC, whose enquiries in the present case preceded the decision in Ashton.

Cited in 3 later judgments