McGrath [2013] EWCA Crim 1261

Case No 201200402 C3201204259 C3[2013] EWCA Crim 1261
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Oxford Crown Court
HHJ Eccles QC
T20100367/S20120017
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/07/2013
Before
LORD JUSTICE TREACYMR JUSTICE MACDUFFMR JUSTICE DINGEMANS
Between
ReginaCrownHenry Paul McGrathDefendant
Mr G Logan (instructed by Registrar of Appeals) for AppellantMr T Boswell (instructed by Crown Prosecution Service) for RespondentHearing Hearing dates : 25th June 2013
Judgment

Introduction

[1]There are two linked matters before the court. The first relates to the Appellant’s conviction for matters of dishonesty, the second relates to the judge’s finding of contempt of court committed during the course of the trial.[2]In December 2011 in the Crown Court at Oxford the Appellant was convicted of ten offences of dishonesty. On 19th December 2011 he was sentenced to a total of four years imprisonment. There were five counts of handling, four counts of making off without payment and one offence of theft. The charges arose from the discovery the police made when they arrested the Appellant in September 2010 in the vicinity of a site near Oxford used by travellers. The details of those charges are irrelevant to the matters before this court.[3]The Appellant had been committed for trial on 22nd November 2010. Amongst the charges for which he was committed was a charge of criminal damage. This was an allegation of damaging a cell wall by smearing his own excrement on it after his arrest.[4]The Appellant was originally arraigned on a fifteen count indictment which contained four counts alleging thefts or burglaries against the Appellant, being the precursors to some of the handling charges. The criminal damage charge appeared on this indictment. The Appellant pleaded not guilty.[5]The matter came on for trial on 7th March 2011, by which time the Crown had prepared a twelve count indictment which omitted the four theft and burglary charges already mentioned. The allegation of criminal damage was included as Count 12 on this indictment. The Appellant was arraigned on the new indictment. He maintained his pleas of not guilty. An application to sever Count 12 was refused. This trial did not reach conclusion as the jury had to be discharged shortly after it began.[6]The next relevant date is 19th September 2011. By now Mr McGrath was representing himself. At a hearing before a judge he raised the issue of the validity of the indictment. He was ordered to serve a skeleton argument, but in fact failed to do so. The case came on for trial on the 5th December 2011. The trial judge severed Count 12 and the trial proceeded on an eleven count indictment. The Appellant represented himself at the trial, having dismissed fresh counsel at the outset.[7]At the close of the prosecution case the Appellant argued that the indictment was invalid because, amongst other reasons, Count 12, the criminal damage charge, had been improperly joined in the first place. The judge ruled against him.[8]On 16th December 2011 the Appellant was convicted on ten counts on the indictment. The Appellant was due to be sentenced on 19th December 2011. However, he refused to come out of the cells at court and the judge sentenced him in his absence to four years imprisonment.[9]During the course of the trial the Appellant had repeatedly behaved in a manner which the judge regarded as potentially amounting to contempt of court. He repeatedly sought to control the Appellant’s behaviour, but the Appellant continued regardless. The judge made clear that he intended to hold a contempt of court hearing once the trial was concluded.[10]On 19th December the judge had drafted a document containing particulars of alleged contempt for service on the Appellant. The court clerk visited the cells so as to serve these particulars on the Appellant. The Appellant refused to accept service of the written document, although it is conceded that he knew what it was. The judge, having sentenced in relation to the indictment, decided to adjourn the contempt matter so as to give the Appellant time to reflect since the Appellant was refusing to leave his cell. The matter came back before the judge on 20th January 2012. Again the Appellant refused to come up from the cells. The judge decided to proceed in his absence. He found the eight particulars relating to contempt set out in the document proved and passed a sentence of six months imprisonment to be served consecutively to the four years.[11]The judge also said on more than one occasion that the Appellant could use the slip rule provisions under Section 155 of the Powers of Criminal Courts Sentencing Act 2000 to bring the matter back before the court and have sentence reconsidered.[12]As to the trial itself, the issue before us relates to the validity of the indictment. In relation to the contempt matter, the issue relates to asserted non-compliance with Criminal Procedure Rule 62.7 and the asserted unfairness of proceeding in the absence of the Appellant.

Validity of the Indictment

[13]Dealing with the validity of the indictment, it was firstly argued in the grounds that on 7th March 2011 the wrong procedure was adopted. It is said that the original fifteen count indictment was quashed before the second, twelve count indictment was preferred. If this was the case, then as R v Thompson & Clein [1975] 61 Cr App R 108 makes clear, the second indictment would not be valid, since once the original indictment upon which the committal was based was quashed, the court had no power to proceed on a further indictment then preferred.[14]As to the first matter, namely whether the original indictment was quashed before the second indictment was brought into being, we have seen transcripts of what took place before the Recorder on 7th March, and considered the court log. On the basis of those materials we have come to the conclusion that the procedure adopted involved the bringing into being of the second indictment prior to the quashing of the original. Accordingly, the situation does not mirror that in R v Thompson and Clein, and this basis of appeal must fail. Mr Logan, on instructions, did not pursue this ground before us.[15]The second argument relates to the presence of the criminal damage charge on Count 12 of the new indictment. The argument runs as follows. The offence of criminal damage is listed in Section 40(3)(d) of the Criminal Justice Act 1988 as an offence mentioned in Schedule 2 to the Magistrates’ Court Act 1980. On the face of it a charge of criminal damage, the value of which is less than £5,000.00, may be included in an indictment by virtue of Section 40(1) if it:
“(a) Is founded on the same facts or evidence as a count charging an indictable offence; or (b) is part of a series of offences of the same or similar character as an indictable offence which is also charged.”
[16]It is argued that criminal damage in the circumstances of this case could not be joined with the other offences on the indictment under Section 40(1). It did not arise out of the same facts or evidence as the dishonesty offences, nor was it part of a series of offences of the same or similar character. The decision in R v Walton [2011] EWCA Crim 2832 was cited as an example of this principle. See also R v Lewis [1992] 95 Cr App R 131.[17]Accordingly, Section 40(1) of the Criminal Justice Act 1988 could not justify the inclusion of the criminal damage charge on the indictment, nor could Rule 14.2(3) of the Criminal Procedure Rules 2012 (previously Rule 9 of the Indictment Rules 1971), which is couched in similar terms to Section 40(1).[18]If that is correct, the question arises as to how the joinder of the criminal damage charge affects the validity of the remainder of the indictment. The Appellant contends that the result is an invalid indictment. He relies on R v Newland [1988] 87 Cr App R 118. In that case Watkins LJ, giving the court’s judgment, held that contravention of Rule 9 rendered the indictment invalid. Since a valid indictment is a condition precedent to a valid trial on indictment, the whole trial with its ensuing convictions was a nullity. This was unaffected by the fact that by the time the jury came to try the fresh indictment, Count 12 had been severed. The indictment had been invalid from the start and severance could not cure that.[19]It will be seen that the point is a highly technical one. It is devoid of substantive merit since joinder of the criminal damage charge in no way impinged upon the trial of the allegations of dishonesty. That said, the point taken is a legitimate one, since it raises the question of whether or not the trial was properly constituted.[20]Mr Logan, for the Appellant, argues that since the question of joinder goes to the validity of the indictment, it should not be regarded as a procedural defect which may be considered solely by reference to prejudice or substantive merit. We are prepared to accept that latter submission.[21]Mr Boswell, for the Crown, began by submitting that contrary to the submissions of Mr Logan, the criminal damage charge had lawfully been committed to the Crown Court. Even assuming in the Appellant’s favour that the value of the damage done appeared to the Justices to be less than £5,000.00, Section 22(2) of the Magistrates’ Court Act 1980 provides:
“If…it appears to the court clear that, for the offence charged the value involved does not exceed the relevant sum, [£5,000.00], the court shall proceed as if the offence were triable only summarily…”
[22]In the light of R v Fennell [2000] 2 Cr App R 318, notwithstanding the terms of Section 22(2), criminal damage remains an either way offence. Thus, the committal was lawful. However, it is still necessary to consider whether the criminal damage charge was properly joined to the indictment containing the dishonesty charges whether pursuant to Rule 14.2(3) or Section 40.[23]The trial judge had ruled that the criminal damage could be regarded as founded on the same facts as the dishonesty matters on the basis that the Appellant had been arrested for offences appearing on the indictment and was alleged to have committed the offence of criminal damage in his cell following that arrest.[24]Mr Boswell now concedes, and we accept that he was right to do so, that that analysis by the judge cannot be sustained. We are clear therefore that for this reason the count of criminal damage was not properly joined to the indictment, as neither Rule 14.2(3) nor Section 40(1) were satisfied. The key question therefore is what is the effect of this? Does it invalidate the whole indictment?[25]As noted above, Mr Logan relied on a chain of authority starting with Newland, then going to R v Lewis, and ending in R v Clarke & McDaid [2008] 2 Cr App R 2. The Crown argued that this chain of cases does not represent the law and that Newland is not to be followed.[26]Newland was considered by a court also presided over by Watkins LJ in R v Callaghan [1992] 94 Cr App R 226. There the court considered Newland, a case where the indictment fell foul of Rule 9 (the precursor to CPR Rule 14.2(3)), and held in a case where the provisions of Section 40 of the Criminal Justice Act 1988 were not satisfied, that the wrongful joinder of a summary offence led to the quashing of the conviction on that charge, but not of the convictions on the remaining counts on the indictment. The court cited Lord Lane CJ in R v Bell [1984] 78 Cr App R 305 where he stated at page 311:
“In our view it cannot be the law that a perfectly proper indictment containing one count alleging unlawful possession of cannabis can be made a complete nullity by the addition of counts contrary to Rule 9.”
In Callaghan the question of a breach of Rule 9 did not arise.[27]R v Lewis was heard about six weeks after Callaghan. Newland was cited, but Callaghan was not. A count alleging common assault at a police station after arrest for threats to kill and criminal damage was held to have been wrongly joined to the indictment under Section 40(1). The court held that the indictment was defective and quashed all convictions. The misjoinder would have offended what was then Rule 9 as well as Section 40.[28]In R v Simon [judgment 27th January 1992] [1992] Crim. LR 444, a constitution presided over by Lord Lane CJ commented on the difference between the cases of Callaghan and Lewis. It observed that Callaghan was not drawn to the attention of the court in Lewis and that had that happened, the court was satisfied that the constitution in Lewis would have found itself bound to follow the decision of the court in Callaghan. The court was thus clearly indicating that Callaghan was to be preferred, with Lewis, which in turn was based on Newland, being regarded as per incuriam. However, on the facts, the court held that there was no misjoinder under Section 40(1), so that these observations although strongly persuasive are, strictly speaking, obiter.[29]In R v Smith [1997] 1 Cr App R 390 Henry LJ applied Callaghan and disapproved Newland and Lewis. Callaghan was stated to be binding authority, and the court having held that two counts on the indictment having been improperly joined under Section 40, only those counts should be quashed, with convictions on the remaining counts being maintained. The misjoinder did not render proceedings on those counts a nullity due to improper joinder of other counts. Newland was criticised as asserting a proposition without advancing reasons or principle justifying it.[30]In R v Lockley & Sainsbury [judgment 17th January 1997] [1997] Crim. LR 455 the court considered the earlier authorities, referring to the “previously somewhat confused and inconsistent state of the law” as having been recently clarified in R v Smith. The court referred both to Section 40 and Rule 9. Whilst Lockley was a case of invalid joinder by reason of a breach of Rule 9 in contrast to Smith which was concerned with a failure to satisfy the terms of Section 40, the court observed that in all material respects, the terms of the two provisions were the same. The court stated that the observations of Henry LJ as to the status of Callaghan was intended to and did apply equally to cases where a misjoinder results either from a failure to meet the requirements of the rules (now Rule 14.2(3)) or Section 40. The court also referred back to Bell, cited above. The court therefore held that misjoinder of one count did not nullify proceedings on another.[31]In R v Ashton & Others [2006] 2 Cr App R 15 the court held that proceedings would not be rendered automatically invalid because an indictment had not been signed, the court considering in that context that the decisions in R v Soneji [2006] 2 Cr App R 20 and R v Sekhon & Others [2003] 1 Cr App R 34 validated an approach which did not focus on whether procedural requirements were mandatory, but rather on(a) whether Parliament intended a procedural failure to render proceedings invalid and(b) an assessment of whether the procedural failure caused prejudice to any party.[32]In R v Clarke & McDaid the House of Lords held that Ashton was wrongly decided, and that the decisions in Sekhon and Soneji did not warrant “a wholesale jettisoning of all rules affecting procedure irrespective of their legal effect”. The court referred to Newland in passing, but was not concerned with the issues which have arisen in this case, and specifically did not consider the chain of decisions subsequent to Newland beginning with Callaghan.[33]In Clarke & McDaid the decision was whether the initial absence of a signed indictment invalidated the proceedings at trial. Their Lordships held that it did, by reason of the express provision of Sections 1 and 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933, (“the 1933 Act”), so that any subsequent convictions were rendered a nullity. The decision does not address the matters before this court, and we do not consider that it can avail the Appellant. It is clear to us that the chain of authority starting with Callaghan and culminating in Lockley & Sainsbury is binding authority upon us with the effect that failure to satisfy the provisions of Section 40 or Rule 14 will nullify any conviction recorded in relation to an improperly joined count, but not one recorded on other counts properly on the indictment. The indictment as a whole is not invalidated, only the counts improperly joined.[34]We do not consider that the distinction sought to be drawn between misjoinder under Section 40(1) and misjoinder contrary to Rule 14.2(3) to which Mr Logan drew our attention in highlighting observations contained at paragraph 1-244 of the 2013 edition of Archbold can be sustained. It is clear to us from the line of authorities referred to above, that the same consequence will apply whether there is non-compliance with the statute or the rule.[35]Mr Boswell also drew support for his contention that only the misjoined count is affected as opposed to the whole indictment, by reference to Section 2(3) of the 1933 Act. That provides:
“If a Bill of Indictment has been preferred otherwise than in accordance with the provisions of the last foregoing subsection…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;”
[36]This provision was not considered in Newland or Callaghan, or indeed the other cases cited above. In R v T & K [2001] 1 Cr App R 446 there had been a transfer for trial of either way offences and a summary only count of common assault had been wrongly included on the indictment, since at that time Section 40 only applied where there had been a committal. T was tried, both on the either way offences, and on the invalid common assault count.

(a) and (b), and at paragraph 21 said:

“For these reasons, we are satisfied that the trial of the common assault count was invalid and that accordingly T’s conviction on a count that could not be tried in the same indictment cannot stand and must be quashed. It is accepted on both sides that this does not invalidate the rest of the trial and we must therefore consider the separate arguments advanced on behalf of each appellant in respect of the convictions for indecent assault.”
[37]It seems to us that Section 2(3)(a) does indeed provide support for the conclusion we have reached and that R v T & K is an illustration of its application.[38]The Crown also placed reliance on Section 2(6ZA) of the 1933 Act. This is a provision inserted into the 1933 Act by Section 116(1)(c) of the Coroners and Justice Act 2009 after the decision in Clarke & McDaid. The new subsection provides that objections to an indictment based on an alleged failure to observe procedural rules may not be taken after the start of the trial, that is, when the jury has been sworn. Accordingly, it was submitted that the argument as to the validity of the indictment raised by the Appellant at the close of the prosecution case was too late, since this provision operates as a form of guillotine.[39]We are not persuaded that this provision should apply to this case. It is apparent that at a hearing on 19th September 2011, the Appellant, representing himself, raised an issue or issues concerning the validity of the indictment. However, there is no transcript available of those proceedings, and without clear evidence to the contrary, which the Crown concedes it cannot produce, we do not consider it would be right to use this provision additionally to defeat the Appellant’s argument.[40]In the circumstances the appeal against conviction fails and is dismissed.

Contempt of Court

[41]In relation to the conviction for contempt of court, it is submitted that the provisions of Part 62 of the Criminal Procedure Rules, and in particular Part 62.7(3) were not complied with; and that as a consequence, the judge was wrong to proceed with the hearing in the absence of the Appellant.[42]It is not contended that the conduct complained of and set out in the judge’s document of 19th December 2011 was wrongly held to amount to a contempt of court. Nor is there any complaint about the decision of the judge to postpone the enquiry into the alleged contempt. The complaint relates to an asserted failure of procedure. Rule 62.7 provides as follows:
“(1) This rule applies where the Court of Appeal or the Crown Court postpones the enquiry. (2) The court must arrange for the preparation of a written statement containing such particulars of the conduct in question as to make clear what the Respondent appears to have done. (3) The court officer must serve on the Respondent – (a) that written statement, (b) notice of where and when the postponed enquiry will take place; and (c) a notice that – (i) reminds the Respondent that the court can impose imprisonment, or a fine, or both, for contempt of court, and (ii) warns the Respondent that the court may pursue the postponed enquiry in the Respondent’s absence if the Respondent does not attend.”
[43]Mr Logan submits that whilst a statement compliant with Rule 62.7(2) was drawn up, it was not served on the Appellant. Moreover, that document did not contain anything, and no notice was served, relating to the place and date of the contempt hearing, or warning of the potential penalties, or of the fact that the court might proceed in the Appellant’s absence if he did not attend. He points out that the language of the rule is mandatory as to service of the requisite notices, and that the rule exists so that the Appellant is in a position to make an informed decision. Mr Logan points out that whilst the court clerk made an effort to serve the document containing details of the alleged contempt on 19th December, no further efforts appear to have been made to serve those particulars or the other information required by Rule 62.7.[44]The transcript of the hearing of 20th January reveals that prosecuting counsel informed the judge that the Appellant was refusing to come up from the cells. He suggested that a written statement complying with the relevant part of the rules had been provided, and that the judge should consider whether the Appellant had voluntarily absented himself from the proceedings. The judge responded:
“What I will do [is] proceed and just give a judgment in the matter.”
[45]The judge then gave a judgment finding Mr McGrath in contempt. In the course of his ruling, he recorded that on 19th December the Appellant had refused to come from the cells for sentence and refused to accept service of the document giving particulars of contempt when the court clerk went down to the cells in an attempt to serve him. He recorded Mr McGrath’s refusal to come into court on that day, 20th January 2012, and continued:
“The question arises then as to whether a further attempt should be made to serve the written charge of contempt and the particulars upon him. I take the view that in the light of his conduct on 19th December and in the light of his refusal to come into court today, it would be entirely otiose to try and serve this document upon him in the cells. In my judgment he has by his conduct on 19th December and today clearly waived his right to have service of the notice of the allegations upon him and waived his right to be present at this hearing where the allegations of contempt will be considered by me.”

The judge then said that he had decided to proceed rather than adjourn further.

[47]It is clear to us from what transpired at the hearing before us, including observations made to the court by the Appellant himself, that he deliberately evaded service of the particulars of misconduct on 19th December and knew what that document contained. In those circumstances no complaint can be made about non-service of the written statement containing the particulars of his alleged misconduct.[48]However, that document did not contain the information specified at Rule 62.7(3)(b) and (c). The Crown acknowledges that those requirements were not satisfied, but asserts that the Appellant knew of the matters which should have been contained in a notice or notices.[49]On examination of the position, however, it is far from clear that this was the case. We are prepared to accept that the Appellant was aware of the potential sanctions for contempt of court, and thus not materially affected by a failure to comply with Rule 62.7(3)(c)(i). The Appellant is well experienced in the ways of the criminal courts, and there are observations which he made during the trial which the judge recorded in his judgment which show that the Appellant was alive to the possible consequences of contempt at a time when the judge was trying to rein in his behaviour in the face of the court.[50]However, there is no evidence or material before us to show any of the following: i) Notification that the contempt hearing was to take place on 19th December. ii) Any information conveyed by the court clerk at the time of the abortive attempt to serve the notice of particulars on 19th December. iii) Any notification to the Appellant that the judge had adjourned the contempt proceedings from 19th December. iv) Any notification that the new date for the contempt hearing had been fixed for 20th January 2012. v) Any information conveyed to the Appellant on 20th January 2012 that the contempt matter was to be heard on that day. vi) Any warning at any stage of the proceedings in relation to contempt that if the Appellant did not attend, the court might proceed in his absence.[51]Since contempt of court, if proven, carries with it sanctions up to and including imprisonment, such formalities are not to be taken lightly. Before the court proceeds in the absence of a Defendant, the process should be no less rigorous than would occur in the case of a Defendant who did not attend his trial. The decision of the House of Lords in R v Jones (Anthony) [2002] 2 Cr App R 9 demonstrates the need for a judge to exercise great caution in deciding to proceed with or continue a trial in a Defendant’s absence. This must be particularly so where a Defendant is unrepresented, even if he is experienced in criminal proceedings.[52]This court reiterated the position in R v O’Hare [2006] EWCA Crim 471. Thomas LJ cited with approval the observations of Rose LJ in this court in Jones that whilst a Defendant has, in general, a right to be present at his trial and a right to be legally represented, those rights can be waived by a Defendant if, knowing or having the means of knowledge as to where and when his trial is to take place, he deliberately and voluntarily absents himself. Thomas LJ said that an analysis of the speeches in the House of Lords in Jones pointed to the conclusion that, if waiver is to be established, then knowledge of, or indifference to the consequences of being tried in absence would have to be proved.[53]Given the absence of material to show us that this Appellant was made aware of the time and place of his contempt hearing or that such proceedings could continue in his absence if he failed to attend, we do not consider that he can be said to have waived his rights under Rule 62.7 or at common law. We acknowledge that the judge was faced with a difficult situation on 20th January, but we do not consider that his conclusion that this Appellant had clearly waived his right to be present at the hearing when the allegations of contempt were due to considered can be sustained in the absence of evidence to show that the Appellant had been informed at any point of the matters relating to time and place of the hearing and the potential consequences of non-attendance. If steps had been taken on the morning of 20th January 2012 to ensure that the Appellant was apprised of the court’s intention to deal with the contempt proceedings that day and of the consequences of non-attendance in court, then the necessary conditions for waiver might well have been established, and the failure to comply with Rule 62.7 might have been of no consequence.[54]We have considered Rule 62.2(2) which provides:
“The court must not proceed in the Respondent’s absence unless – (a) the Respondent’s behaviour makes it impracticable to proceed otherwise; or (b) the Respondent has had at least 14 days notice of the hearing, or was present when it was arranged.”
[55]There is no evidence which would enable us to find that subparagraph (b) had been complied with. As to subparagraph (a), considerations of impracticability have to be set against the factual context which shows that the Appellant’s refusal to come into court from the cells took place in circumstances where he had not had due notice of important matters, and where the step of giving him relevant information and warning on the morning of the hearing itself was perfectly practicable. We do not consider that this provision can avail the Crown, when it seeks to persuade us that non-compliance with Rule 62.7 has not led to unfairness in this case.[56]This Appellant’s case is an undeserving one and arouses no sympathy. His refusal to come into court on 19th December and 20th January represented a continuation of his disruptive attitude to the proceedings as a whole. However, an important safeguard as to the fairness of the contempt proceedings was not observed. It would be wrong for this court to brush it aside on the basis that this Appellant is an undeserving case. Our conclusion is that the conviction of contempt of court cannot properly be sustained for the reasons given above. Accordingly, we quash that conviction.

Cited in 4 later judgments