Stromberg v R. (Rev 1) [2018] EWCA Crim 561

[2018] EWCA Crim 561

Case No 200803060 C2

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT SITTING AT WOOLWICH

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/03/2018

Before

THE RT HON THE LORD BURNETT OF MALDON

LORD CHIEF JUSTICE OF ENGLAND AND WALES

THE HON MR JUSTICE SWEENEY

THE HON MR JUSTICE WILLIAM DAVIS

Between

Paul StrombergApplicant

ReginaRespondent

Jonathan Elystan Rees (instructed by Bowden Jones Solicitors) for Applicant

David Perry QC and Katherine Hardcastle (instructed by Crown Prosecution Service) for Respondent

Hearing Hearing date: 28 February 2018

Judgment Approved

The Lord Burnett of Maldon CJ:

Introduction

[1]This case raises questions concerning the scope, availability and procedure surrounding the issue of a writ of venire de novo. The issue we have to resolve is whether an application for a writ or order of venire do novo must be made in the course of application for leave to appeal against conviction (and then the subsequent appeal) brought under Part I of the Criminal Appeal Act 1968 [“the 1968 Act”] or whether it can be made as a freestanding application, and thus unconstrained by the need for leave or any time limits.

[2]The application first came before the court on 20 December 2017 and was made on behalf of Paul Stromberg by Mr Jonathan Elystan Rees in respect of his conviction of 14 May 2008 for an offence of conspiracy to commit an offence outside the United Kingdom. The respondent prosecutor was not represented at that hearing and had not been required to provide any written representations. The court concluded that full argument was required and delivered a short judgment to that effect: see

[2018] EWCA Crim 7

. At the resumed hearing we were assisted greatly by written and oral submissions from David Perry QC and Katherine Hardcastle instructed by the respondent as we were by Mr Rees. He made written and oral submissions on behalf of the applicant as he had at the initial hearing. We are very grateful to all counsel for the detailed research they have conducted in relation to the history of the writ and the jurisdiction of this Court to issue a writ of venire de novo. We now are in a position to reach a conclusion on the application.

[3]On 14 May 2008 Paul Stromberg was convicted of conspiracy to commit an offence outside England and Wales contrary to Section 1A of the Criminal Law Act 1977 [“the 1977 Act”]. The conspiracy concerned a planned importation of more than 300 kilos of cocaine into Europe from Venezuela. He had first appeared before the Westminster Magistrates’ Court on 5 April 2007 from where he was sent to the Crown Court at Woolwich for trial. The first hearing in the Crown Court was on 28 June 2007. Section 4(5) of the 1977 Act requires the consent of the Attorney General to be given to any prosecution pursuant to Section 1A of that Act before the proceedings are instituted. In the applicant’s case consent was given on 30 August 2007. In 2007 it was widely understood that consent pursuant to Section 4(5) validly could be given at any point prior to the effective Plea and Case Management Hearing. Thus, it was assumed that the consent in the applicant’s case was given in time.

[4]In Welsh

[2016] 1 Cr.App.R. 8

and Welsh and others

[2016] 1 Cr.App.R. 9

this court decided that, for the purpose of Section 4(5), proceedings in respect of an indictable only offence are instituted at the point of sending from the magistrates’ court to the Crown Court with the consequence that the consent of the Attorney General is required before the case is sent. The effect of failing to get the consent before that point was held by this court to invalidate the proceedings which followed. It follows that the consent of the Attorney General in this case was not given in time. Adopting the analysis in Welsh and others (supra) of the consequences of this failure, the applicant’s trial was a nullity. We shall return at the conclusion of this judgment to the concept of nullity in the context of trial on indictment.

[5]Following his conviction in 2008, the applicant applied for leave to appeal against his conviction. Leave to appeal was refused by the Single Judge. We have not seen the grounds on which the application for leave was based. Given the understanding then as to the point at which proceedings were instituted in respect of consent pursuant to Section 4(5) of the 1977 Act, we have no reason to suppose that they were directed to the issue of lack of consent.

[6]In October 2017 an application was made to this court on behalf of Stromberg for a writ of venire de novo. The order sought was to set aside and annul the conviction for conspiracy to commit an offence outside England and Wales and to require a new trial. The application was not put forward as a renewed application for leave to appeal. Such an application would have been more than 8 years out of time. Rather, it was said that it was a free-standing application to which the time limits in the 1968 Act did not apply. The application was made on the basis that Stromberg was not exercising any right of appeal under Section 1 of the 1968 Act.

[7]The Criminal Appeal Office took the view that a free-standing application of this kind could not be made and that any application in relation to the outcome of a trial on indictment required leave to appeal. In consequence the Registrar referred Stromberg’s application to the full court on the basis that it was a renewed application for leave to appeal albeit not on the same grounds as had been considered by the Single Judge. Mr Rees on behalf of Stromberg made it clear to us at the initial hearing that he had no instructions to renew any application for leave to appeal. He confirmed that this remained the position at the resumed hearing. Mr Rees recognised that, if the time limits in the 1968 Act applied to his application, he would be in very considerable difficulty in relation to any extension of time. If this were to be regarded as a “change of law” case akin to the many renewed applications for leave made in the light of Jogee

[2016] UKSC 8

[2017] AC 387

exceptional leave to appeal out of time would be required. The applicant would have to demonstrate that he would suffer “substantial injustice” were leave not to be granted: Johnson and others

[2016] EWCA Crim 1613

. If this were not a “change of law” case but it involved the raising of a ground of appeal not put before the single judge who refused leave, the hurdle for the Applicant would be a high one. The principles set out in James and others

[2018] EWCA Crim 285

at paragraph 38 would be applied. In those circumstances Mr Rees’s disavowal of any application for leave to appeal on the part of the applicant is entirely understandable.

[8]The respondent prosecutor supports the view adopted by the Criminal Appeal Office. Mr Perry and Miss Hardcastle submit that the Court of Appeal Criminal Division is a creature of statute and that the statutory provisions do not allow for any route to this court other than by way of application for leave to appeal. Before we consider the rival contentions it is necessary to consider the history of the writ of venire de novo and of the appellate jurisdiction in criminal proceedings.

Historical background

[9]It was not until 1848 that England and Wales had anything approaching a system of criminal appeal in the sense we recognise today. Up to and including the early part of the nineteenth century the verdict of the jury was treated with very great respect. Verdicts were only open to challenge if serious and obvious error could be demonstrated. In addition, great weight was attached to the principle that justice should be swift and final. The methods of control of jury verdicts and correcting obvious errors involved punishing jurors, restricting the issues on which juries made findings and, to a limited extent, ordering a new trial and/or annulling the proceedings leading to the relevant verdict.

[10]It is not necessary for the purposes of this judgment to review those various methods as they developed over the centuries. The method with which we are concerned is the writ of venire de novo or, to give the full title, venire facias juratores novo. It was a writ addressed to the sheriff ordering him to cause new jurors to try the case afresh. The writ was available to the court of trial after verdict when there was some irregularity in the proceedings generally connected to the composition of the jury. It was also available to a court of error, whether the judges of the Kings Bench Division or the Court for Crown Cases Reserved.

[11]The Court for Crown Cases Reserved was established by the Crown Cases Act 1848. The preamble to that Act was as follows:

“That when any Person shall have been convicted of any Treason, Felony, or Misdemeanour before any Court of Over and Terminal or Goal Delivery, or Court of Quarter Sessions, the Judge or Commissioner or Justices of the Peace before whom the Case shall have been tried may, in his or their Discretion, reserve any Question of Law which shall have arisen on the Trial for the Consideration of the Justices of either Bench and Barons of the Exchequer, and thereupon shall have Authority to respite Execution of the Judgment on such Conviction, or postpone the Judgment until such Question shall have been considered and decided, as he or they may, think fit…”

A case could only be referred to the Court for Crown Cases Reserved by the trial judge. The reference would be by way of case stated. At least five Justices or Barons were required to consider the reference. The court considered only points of law. It had the power to quash a conviction. It had no statutory power to order a retrial. However, it did have the power to issue a writ of venire de novo. The combined researches of counsel reveal that the Court did so in only one reported case: Yeadon and Birch 9 Cox C.C. 91 (1861). The defendants were tried for an assault occasioning actual bodily harm. The jury returned a verdict of guilty to common assault. The Chairman of the Quarter Sessions refused to accept the verdict whereupon the jury convicted of the full offence. The court concluded that there had been “a mistrial” and ordered a venire de novo. What the precise effect of the issue of the writ was in that case is not clear from the brief report but it appears to have rendered invalid the second verdict of the jury and required a retrial.

The Criminal Appeal Act 1907

[12]The Criminal Appeal Act 1907 [“the 1907 Act”] established the Court of Criminal Appeal. Section 3 of the 1907 Act set out the right of appeal under the Act:

“A person convicted on indictment may appeal under this Act to the Court of Criminal Appeal— (a) against his conviction on any ground of appeal which involves a question of law alone; and (b) with the leave of the Court of Criminal Appeal or upon the certificate of the judge who tried him that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal; and (c) with the leave of the Court of Criminal Appeal against the sentence passed on his conviction, unless the sentence is one fixed by law.”

Thus, an appeal on a question of law alone did not require the leave of the court. Appeals involving a question of fact or mixed fact and law or an appeal against sentence did require leave. However, whether the appeal required leave or not, the 1907 Act set a time limit for appealing or giving notice of application for leave to appeal. Section 7 insofar as is relevant was in these terms:

“Where a person convicted desires to appeal under this Act to the Court of Criminal Appeal, or to obtain the leave of that court to appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within ten days of the date of conviction…”

The court had the power to extend time if it thought fit, the power being exercisable within its discretion.

[13]The powers of the court were laid out in Section 4 of the 1907 Act:

“(1) The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal: Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred. (2) Subject to the special provisions of this Act, the Court of Criminal Appeal shall, if they allow an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.”

It follows that the Court of Criminal Appeal did not have any general power to order a retrial. But this was subject to the special provisions of the 1907 Act. They included Section 20(4) of the 1907 Act:

“(4) All jurisdiction and authority under the Crown Cases Act, 1848, in relation to questions of law arising in criminal trials which is transferred to the judges of the High Court by section forty-seven of the Supreme Court of Judicature Act, 1873, shall be vested in the Court of Criminal Appeal under this Act, and in any case where a person convicted appeals under this Act against his conviction on any ground of appeal which involves a question of law alone, the Court of Criminal Appeal may, if they think fit, decide that the procedure under the Crown Cases Act, 1848, as to the statement of a case should be followed, and require a case to be stated accordingly under that Act in the same manner as if a question of law had been reserved.”

That meant that any jurisdiction exercisable by the Court of Crown Cases Reserved (not otherwise abolished) was transferred to the Court of Criminal Appeal. Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.

[14]Since the Court of Crown Cases Reserved had the power to issue a writ of venire de novo, it appeared that the power vested in the Court of Criminal Appeal. This was confirmed by the House of Lords in Crane v DPP [1921] 2 A.C. 299. Crane had been indicted for an offence of receiving stolen goods. Another man was charged on a separate indictment with stealing the goods. They were tried together and convicted. They appealed on grounds unconnected to the fact that separate indictments were tried together. In the Court of Criminal Appeal this fact became apparent. The court ordered the conviction to be set aside and annulled and Crane to appear at the next Quarter Sessions to stand trial. Crane appealed on the basis that, by reference to Section 4 of the Act and given his conviction could not stand, an acquittal should have been entered.

[15]The House of Lords dismissed Crane’s appeal. It was held that his trial was a mistrial and a nullity. That did not disentitle him to appeal because he had been convicted within the meaning of Section 3 of the 1907 Act. One purpose of the Court of Criminal Appeal was to consider whether a conviction was valid. If it was not, the court was to deal with the conviction accordingly. In this case the Court of Criminal Appeal ordered Crane to stand trial because there had been no valid trial at all. The House of Lords agreed with that result. The majority concluded that the writ of venire de novo was available to the Court of Criminal Appeal. Whether the Court of Criminal Appeal in this case had purported to order such a writ was not clear. At page 329 Lord Atkinson said:

“In the present case what is ordered is not a venire de novo in so many words but a new trial, but where there has been a mis-trial and relief is demanded as a matter of strict legal right on a point of law, no appeal being made to the discretion of the Court, there is little if any difference between the two.”

Nonetheless, the judgment in Crane was taken to conclude that the writ of venire de novo was available to the Court of Criminal Appeal. Certainly that Court thereafter exercised the power to require the appellant to appear at the relevant Quarter Sessions or Assizes to stand trial having set aside the conviction e.g. Hancock

(1932) Cr.App.R. 16

[16]As is apparent from Crane the 1907 Act provided a right of appeal to the House of Lords from decisions of the Court of Criminal Appeal. The right was limited as set out in Section 1(6) of the 1907 Act:

“If in any case the Director of Public Prosecutions or the prosecutor or defendant obtains the certificate of the Attorney General that the decision of the Court of Criminal Appeal involves a point of law of exceptional public importance, and that it is desirable in the public interest that a further appeal should be brought, he may appeal from that decision to the House of Lords, but subject thereto the determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from that court to any other court.”

Since the Court of Criminal Appeal had the power to order a writ of venire de novo, there was a right of appeal against such an order should a point be certified.

The Criminal Appeal Act 1966

[17]The Court of Criminal Appeal was abolished by the Criminal Appeal Act 1966 [“the 1966 Act”]. The 1966 Act created a single Court of Appeal with two divisions. The jurisdiction exercisable by the Court of Criminal Appeal was transferred unchanged to the Court of Appeal Criminal Division. The 1966 Act repealed the Crown Cases Act 1848. That repeal did not affect the jurisdiction to order the issue of a writ of venire de novo. The jurisdiction to do so was expressly transferred to the Court of Appeal Criminal Division. This was statutory confirmation of the ratio in Crane.

The Criminal Appeal Act 1968

[18]The practical effect of the 1966 Act was limited. The Criminal Appeal Act 1968 was more wide ranging in its effect. It remains the basis of the jurisdiction and practice of the Court of Appeal Criminal Division. The Criminal Appeal Act 1995 made significant amendments to the grounds on which the Court of Appeal will allow an appeal against conviction i.e. the single issue now in relation to any conviction under consideration is whether it was unsafe. For the purposes of this case the 1968 Act is the critical piece of legislation.

[19]The 1968 Act is in three parts. Part I deals with appeals to the Court of Appeal. Part II concerns appeals to the House of Lords (now the Supreme Court) from the Court of Appeal (Criminal Division). Part III relates to miscellaneous matters of interpretation. As originally enacted Sections 1 and 2 of the 1968 Act were:

“Section 1 – Right of appeal. (1) …a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction. (2) The appeal may be— (a) on any ground which involves a question of law alone; and (b) with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal; But if the judge of the court of trial grants a certificate that the case is fit for appeal on a ground which involves a question of fact, or a question of mixed law and fact, an appeal lies under this section without the leave of the Court of Appeal. Section 2 — Grounds for allowing appeal under s. 1. (1) Except as provided by this Act, the Court of Appeal shall allow an appeal against conviction if they think— (a) that the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or (b) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law; or (c) that there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal: Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred. (2) In the case of an appeal against conviction the Court shall, if they allow the appeal, quash the conviction. (3) An order of the Court of Appeal quashing a conviction shall, except when under section 7 below the appellant is ordered to be retried, operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal.”

The procedure for commencing any appeal is in Section 18 of the 1968 Act:

“(1) A person who wishes to appeal under this Part of this Act to the Court of Appeal, or to obtain the leave of that court to appeal, shall give notice of appeal or, as the case may be, notice of application for leave to appeal, in such manner as may be directed by rules of court. (2) Notice of appeal, or of application for leave to appeal, shall be given within twenty-eight days from the date of the conviction, verdict or finding appealed against, or in the case of appeal against sentence, from the date on which sentence was passed or, in the case of an order made or treated as made on conviction, from the date of the making of the order. (3) The time for giving notice under this section may be extended, either before or after it expires, by the Court of Appeal.”

These are the time limits to which we already have made reference. (a) on any ground which involves a question of law alone; and (b) with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal; (a) that the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or (b) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law; or (c) that there was a material irregularity in the course of the trial, The 1968 Act also contained in Section 7 a limited general power to order a retrial (first introduced in cases of fresh evidence by section 1 of the Criminal Appeal Act 1964). In its current form (as amended by the Criminal

Justice Act 1988), section 7 provides a general power to order a retrial:

“(1) Where the Court of Appeal allow an appeal against conviction … and it appears to the Court that the interests of justice so require, they may order the appellant to be retried.”

The 1968 Act provided for a right of appeal to the House of Lords (now the Supreme Court). The right is less circumscribed than the right provided in the 1907 Act. It appears at the outset of Part II of the Act (as originally enacted):

“33.— Right of appeal to House of Lords. (1) An appeal lies to the House of Lords, at the instance of the defendant or the prosecutor, from any decision of the Court of Appeal on an appeal to that court under Part I of this Act … (2) The appeal lies only with the leave of the Court of Appeal or the House of Lords; and leave shall not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or the House of Lords (as the case may be) that the point is one which ought to be considered by that House. (3) Except as provided by this Part of this Act and section 13 of the Administration of Justice Act 1960 (appeal in cases of contempt of court), no appeal shall lie from any decision of the criminal division of the Court of Appeal. The 1968 Act set out in simple terms the powers of the House of Lords (now the Supreme Court) on any appeal: Section 35 – Hearing and disposal of an appeal. … (3) For the purpose of disposing of an appeal, the House of Lords may exercise any powers of the Court of Appeal or may remit the case to the Court.”

[20]The 1968 Act amended the statutory jurisdiction of the Court of Appeal Criminal Division as it first had been created in the 1966 Act. Schedule 5 to the 1968 Act substituted the provision in the 1966 Act which transferred unchanged the jurisdiction of the Court of Criminal Appeal with the following:

“…the criminal division which shall, subject to any such rules, exercise- (i) all jurisdiction of the Court of Appeal under Parts I and II of the Criminal Appeal Act 1968; and (ii) all other jurisdiction which was that of the Court of Criminal Appeal immediately before it ceased to exist (including the jurisdiction to order the issue of writs of venire de novo).”

The applicant’s case is that this is a critical statutory provision in the context of the jurisdiction of the Court of Appeal Criminal Division to order the issue of a writ of venire de novo. It was replaced by Section 53(2) of the Senior Courts Act 1981:

“(2) The criminal division of the Court of Appeal shall exercise— (a) all jurisdiction of the Court of Appeal under Parts I and II of the Criminal Appeal Act 1968; (b) the jurisdiction of the Court of Appeal under section 13 of the Administration of Justice Act 1960 (appeals in cases of contempt of court) in relation to appeals from orders and decisions of the Crown Court; (c) all other jurisdiction expressly conferred on that division by this or any other Act; and (d) the jurisdiction to order the issue of writs of venire de novo.”

Sections 53(2)(a) and (d) are in identical terms to the amendment introduced by Schedule 5 of the 1968 Act. exercise- (a) all jurisdiction of the Court of Appeal under Parts I and II of the Criminal Appeal Act 1968; (b) the jurisdiction of the Court of Appeal under section 13 of the Administration of Justice Act 1960 (appeals in cases of contempt of court) in relation to appeals from orders and decisions of the Crown Court; (c) all other jurisdiction expressly conferred on that division by this or any other Act; and (d) the jurisdiction to order the issue of writs of venire de novo.”

The competing arguments

[21]On behalf of the applicant Mr Rees accepts that, prior to the 1968 Act, the Court of Criminal Appeal and in turn the Court of Appeal Criminal Division exercised a single jurisdiction. Any appeal whether based on a substantive complaint about the trial or on an assertion that the court below had not had the power to act as it did had to commence in the same way i.e. by application for leave to appeal. Whatever the nature of the underlying complaint the application was the same in form and was subject to the time limits for giving notice. He argues that the amendment introduced by the 1968 Act divorced what he termed the merits jurisdiction from the lack of power jurisdiction. Where an appeal is directed to the safety of the conviction and/or an erroneous ruling of law and/or a material irregularity in the course of the trial, it falls within Part I of the 1998 Act. Any such appeal must commence with an application for leave in accordance with the statutory scheme. However, where it is said that some procedural or other failing has invalidated the trial process so as to render it null and void, Part I does not apply. The jurisdiction then to be exercised is the jurisdiction to order the issue of a writ of venire de novo. This is not a jurisdiction to which the time limits or leave requirement in Part I apply. This is a rational position because the jurisdiction is intended to deal with a trial which is void. It is appropriate that it can be exercised at any point. Otherwise, the convicted person will be unable to obtain relief even though the process which led to conviction was invalid and no conviction should ever have resulted at all. Mr Rees relies on the statutory language. Section 2(2) of the 1968 Act requires the court, if it allows the appeal brought within the provisions of Part I of the Act, to quash the conviction. In this case it is not said that the conviction should be quashed. Rather, it should be declared null and void and a writ of venire de novo should be issued so that the applicant can be retried. The procedure in Part I of the 1998 Act does not apply. In the absence of clear statutory language or other provision, rules or time limits cannot be inferred.

[22]Mr Perry’s argument is that a writ of venire de novo is a remedy. It is a remedy available from the Court of Appeal Criminal Division, which is entirely a creature of statute. The only statutory route by which an individual can come before the Court is by way of an application for leave to appeal. It may be that the applicant’s trial was null and void. That is a matter for the Court of Appeal Criminal Division to determine in the context of an appeal within the statutory framework. Unless and until the court determines otherwise, the applicant is a convicted person. He wishes to set aside that conviction. That can be done only in the context of an application for leave to appeal. It is only at the end of the appeal process that the court will determine that there has been an irregularity of a kind that renders the trial invalid. At that point the conviction will be annulled and the court will move on to consider whether to order the issue of a writ of venire de novo.

Discussion

[23]Mr Rees relies substantially on observations by Lord Diplock in R v Rose and others

[1982] A.C 822

. In Rose the trial judge had placed improper pressure on the jury to reach verdicts. The actions of the judge were a grave material irregularity in the course of the trial. Upon conviction, the defendants appealed. The Court of Appeal Criminal Division allowed the appeals. The prosecution applied for the issue of a writ of venire de novo. The application was refused because the irregularity was not such as to render the whole trial void. The prosecution appealed to the House of Lords. That appeal was dismissed on the basis that there was no power to issue a writ of venire de novo in the circumstances of the case. The certified question asked whether the Court of Appeal Criminal Division had a discretion to order a writ of venire de novo when the material irregularity occurred in the course of an otherwise regular trial. The answer to the certified question was “No”. Thus, the route by which an order for a writ of venire de novo properly should be obtained was not in issue.

[24]Lord Diplock reviewed the history of the writ in order to consider the proposition that, in the light of the 1968 Act, the ambit of the writ was in any way different from its ambit under the 1907 Act. He set out the authorities up to the commencement of the 1968 Act and then said at 832 to 833:

“Such then was the state of judicial authority as to the extent of the jurisdiction of the Court of Criminal Appeal to issue writs of venire de novo at the date of its abolition in 1966. That court could do so if there had been an irregularity of procedure which had resulted in there having been no trial that had been validly commenced. It could do so if the trial had come to an end without a properly constituted jury ever having returned a valid verdict. It could not do so because of an irregularity in the course of the trial occurring between the time when it had been validly commenced and the discharge of the jury after returning a verdict.”

Lord Diplock went on to conclude that the limits of the jurisdiction to order a writ of venire de novo had not changed with the advent of the 1968 Act. The substance of his speech concluded at 833 to 834:

“In those cases where the Court of Criminal Appeal, immediately before its abolition, would have had jurisdiction to issue a writ of venire de novo because there had been no valid verdict of guilty or not guilty by the jury, Part I of the Act of 1968 would have no application, since there would have been no conviction within the meaning of that Act, which (with the exception of appeals against verdicts of “not guilty by reason of insanity”) deals only with appeals against conviction. The court's jurisdiction to deal with this class of case, where there has not been any conviction, is derived exclusively from section 1 (2) (b) (ii) of the Act of 1966 as amended by the Act of 1968 and enables the Court of Appeal (Criminal Division) to issue a writ of venire de novo.”

Mr Rees argues that these observations, though strictly obiter given the issues in the case, are highly persuasive. They are unequivocal. Part I of the 1968 Act has no application to the situation in which the issue of a writ of venire de novo is appropriate. The jurisdiction is separate.

[25]Mr Rees says that his argument is supported by the observations of Henry LJ in R v Booth and others

[1999] 1 Cr.App.R. 457

and of Lloyd Jones LJ in R v Buttigieg [2016} 1 Cr.App.R. 18. In Booth the court was asked to consider the effect of its order when it had allowed an appeal due an irregularity vitiating the whole trial but it had not ordered a retrial or the issue of a writ of venire de novo. The appellants argued that they were entitled to an acquittal. The court rejected that argument. Henry LJ said that the court had followed the route provided by Section 53(2)(d) of the Senior Courts Act 1981. He said that “the venire de novo route of appeal is quite separate from the Section 2 of the Criminal Appeal Act 1968 route”. The court had a two-fold jurisdiction. He went on to explain at 462:

“Section 2 of the 1968 Act as amended deals with appeals against conviction, and here there was no valid conviction but a mistrial founded on an irregularity which vitiated the whole trial. Accordingly, as Rose makes clear, once we had reached the conclusion we did that “there was no valid indictment, there was no trial, no valid verdict and no valid sentence”, section 2 of the Criminal Appeal Act 1968 had no application, and we had no jurisdiction to use that section to grant these appellants a statutory acquittal under section 2(3) of the Act.”

[26]In Buttigieg (the facts of which are not relevant) Lloyd Jones LJ said:

“This court undoubtedly has, in addition to its statutory jurisdiction under the Criminal Appeal Act 1968, a power to issue a writ of venire de novo. (See s.53(2)(d) of the Senior Courts Act 1981.) The power is available in certain cases where there has been such a fundamental irregularity as to result in a nullity…”

Mr Rees says that, putting those various observations together, leads inevitably to the conclusion that the power to order the issue of a writ of venire de novo does not fall within Part 1 of the 1968 Act. It is a separate jurisdiction. It can be the subject of a free-standing application since there is no statutory basis to say otherwise.

[27]Mr Perry characterised the applicant’s argument as “ingenious but wrong”. We find ourselves in agreement. The key point to recognise is that the writ of venire de novo is a remedy. This was its historical origin. It remained a remedy with the advent of the Court of Criminal Appeal in 1907. Although its survival was not, perhaps, at first recognised it was used to enable the court to order a retrial. It was exercised by that court in the event that a conviction was found to be null and void. The provisions of Section 53(2) of the Senior Courts Act 1981 have not created a division between the merits and the vires jurisdiction of the Court of Appeal Criminal Division. The jurisdiction of the Court of Appeal Criminal Division with which we are concerned is to hear appeals against conviction. It is a single jurisdiction created by statute. It is exercised when a person applies to the court for leave to appeal. Once the application has been made and leave has been granted, the court will consider whether to allow the appeal or to uphold the conviction. It may determine that it cannot uphold the conviction because the conviction is null and void in the sense that the trial was invalid for some reason. The court then may order the issue of a writ of venire de novo. It is not then exercising some separate jurisdiction; rather it is dealing with the position by way of a particular remedy. The language of Section 53(2)(d) of the Senior Courts Act 1981 is the language of remedy. It refers to the jurisdiction to order the issue of the writ. It does not speak of a jurisdiction to apply for the issue of the writ.

[28]The observations in Rose and others, Booth and others and Buttigieg are consistent with this analysis. In Rose and others Lord Diplock expressly found that the availability of the writ of venire de novo had not changed notwithstanding the introduction of the 1968 Act. The Court’s jurisdiction to deal with cases of invalid trials arises from what is now Section 53(2)(d) of the Senior Courts Act 1981. The use of the words “deal with” by Lord Diplock is the language of remedy rather than jurisdiction. In Booth and others Henry LJ was concerned wholly with remedy. It was only when the Court had concluded that the trial was invalid that it was appropriate to consider what step to take thereafter. His observations were concerned with the position of an appellant seeking to be acquitted when that was not properly available under the court’s powers. Likewise, Lloyd Jones LJ was concerned with the court’s power once it had been determined that the trial had been subject to a fundamental irregularity, so as to render the whole trial invalid.

[29]Mr Rees responded to the proposition that the writ of venire de novo was a remedy by posing the question: why cannot someone in the applicant’s position apply for it? He argued that the applicant was obliged to apply for something inappropriate to his case, namely the quashing of his conviction, when he actually wanted the court to annul his conviction. But if a person wishes to argue that his conviction is invalid and should be annulled he can do so within the context of an application for leave to appeal. He will indicate the remedy he considers to be the appropriate one for the circumstances of his case.

[30]The applicant’s argument conflates the route by which an appellant comes before the Court of Appeal Criminal Division and what the court may do once it is seized of the appeal. In this case the applicant was convicted. That conviction is valid for all purposes until the contrary is determined by the Court of Appeal Criminal Division. The certificate of conviction and order of the court on sentence would be a complete answer to an application for a writ of habeas corpus; his continued detention in prison could not be challenged in the Divisional Court on the basis that the underlying conviction was in some way a nullity or void. He wishes the Court to set aside and annul his conviction. Therefore, in our judgment, he must appeal against his conviction. By virtue of Section 1 of the 1968 Act he is thereby subject to leave provisions and the associated time limits. Section 2 of the 1968 Act is concerned with the circumstances in which the Court may quash the conviction. As Mr Rees properly concedes he has no grounds on which to seek to quash the conviction. Rather, he contends that the conviction should be annulled, which is a distinct remedy. But it can only be provided by a court of competent jurisdiction seized of the case i.e. the Court of Appeal Criminal Division considering an appeal against conviction.

[31]Mr Perry pointed to a particular anomaly if Mr Rees were correct in his argument that an application for a writ of venire de novo falls outside Part 1 of the 1968 Act. Section 33 of the 1968 Act provides for an appeal to the House of Lords (now the Supreme Court) from any decision of the Court of Appeal Criminal Division on an appeal under Part 1 of the 1968 Act. Except for such a decision or an appeal in relation to cases of contempt of court, no appeal shall lie from any decision of the Court of Appeal Criminal Division. It would follow that there is no right of appeal against a decision to order (or not order) a writ of venire de novo assuming that the jurisdiction to do so falls outside Part 1 of the 1968 Act. This was not the position under the 1907 Act. There was a right of appeal to the House of Lords in relation to a writ of venire de novo as evidenced by the proceedings in Crane. The consequence of Mr Rees’s argument must be that the terms of Schedule 5 of the 1968 Act, as now reflected in Section 53(2) of the Senior Courts Act 1981, should be interpreted as not only removing an application for a writ of venire de novo from the usual appeal process from the Crown Court to Court of Appeal but also as removing any right of appeal to the Supreme Court in such a case. That would be a quite extraordinary consequence of a series of legislative changes (the 1966 Act and in this regard the 1968 and 1981 Acts) which were in truth technical and not designed to achieve fundamental change. There is no proper basis for interpreting the statutory change first enacted in the 1968 Act as having such far-reaching consequences in the absence of clear statutory language suggesting such a parliamentary intent.

[32]Mr Rees argued that it was rational for the legislature to have removed any general right of appeal to the Supreme Court given the narrow technical nature of the jurisdiction. We are unable to agree. The jurisdiction may be technical but exercise of it may have very significant consequences. Thus, in this case it has the potential to annul the conviction of a person who on the facts was found by a jury to have conspired to import many tonnes of Class A drugs into Europe. There is more than one example in recent times of the Supreme Court or its predecessor engaging with narrow technical points in relation to criminal procedure and their effect on convictions or penal orders.

[33]In dealing with the apparent anomaly Mr Rees argued that the Supreme Court would still have the jurisdiction to consider an appeal if the question raised in the appeal was the power of the Court of Appeal Criminal Division to make the order it did. He relied on Cain

[1985] A.C 46

to sustain this proposition. Cain was concerned with a statutory prohibition against an appeal in respect of the making of a criminal bankruptcy order. On the merits the appeal failed but the House of Lords agreed that it had jurisdiction to hear the appeal. The prosecution had argued that neither the Court of Appeal Criminal Division nor the House of Lords had any jurisdiction. The argument was rejected. This was because the appellate courts were required to distinguish between “merits” and “jurisdiction”. Notwithstanding the statutory prohibition an appeal lay if the court below had exceeded its power. It is difficult to see how that could arise in the context of a writ of venire de novo. The Court of Appeal Criminal Division has the power to order the issue of such a writ. Either it will exercise that power or it will not. The interpretation of the 1968 Act advanced by Mr Rees would remove any right of appeal to the Supreme Court, a problem which on this hypothesis went unnoticed by Lord Diplock in Rose.

Conclusion

[34]We are satisfied for all the reason we have given that an application for an order to issue a writ of venire de novo cannot be made as a free-standing application to this Court. The issue of such a writ is a remedy available to this court upon an appeal against conviction, subject to the ordinary rules relating to time limits and leave. We note that the researches of counsel have been unable to identify any previous case in which a free-standing application has been made. There have been instances where a writ of venire de novo has been issued following an appeal against sentence rather than conviction, the defect in the process only becoming apparent once the case had arrived before this court. But in those cases, the appellant has come before the Court by way of application for leave to appeal. Mr Rees argued that this was simply a reflection of the gradual sharpening of the boundaries between the different limbs of the court’s jurisdiction. If he is right, there was nothing gradual about the sharpening of the boundaries. On his argument in 1968 there was an abrupt divorce. The true reason for the absence of any instance of a free-standing application hitherto is that it is not a permissible route to the Court of Appeal Criminal Division.

[35]Finally, we return to the issue of nullity. It is a word which has caused conceptual difficulties, not least because in some contexts if something is truly a nullity, it may be ignored with legal impunity. That is not the position with a conviction in the Crown Court or the consequent sentence. Since we have concluded that the applicant’s application is not admissible by this court save within an application for leave to appeal, we are not required to consider the merits of this application. We repeat that the applicant does not seek to renew his long-ago rejected application for leave to appeal against conviction. In Welsh and others it was accepted that absence of consent at the appropriate time meant that the trial was a nullity notwithstanding the fact that consent had been given albeit late and that the proceedings otherwise had been fair and the convictions properly sustained on the evidence. In Williams

[2017] EWCA Crim 281

this Court gave some consideration to the consequences if a court failed to order separate trials contrary to the relevant provisions of the Crim PR though the issue did not arise for consideration in the circumstances of that case. Lord Thomas of Cwmgiedd CJ said:

“We would hope that in the future the court would take the view that the highly technical law in relation to nullity is an outdated concept that should no longer prevail, that a modern approach should be taken, which is to decide on the fairness of the trial, the prejudice to a defendant and the safety of the conviction. However, that is not a matter that arises here and there are different views….”

We consider that those observations could be transposed to the circumstances of this case. We have not had distinct argument on the effect of the failure of the Attorney General to give the necessary consent at the right point, although the case of Soneji [2006] 1 A.C. 340 was cited in the written materials. That case emphasised that the consequences of a failure to follow a procedural requirement were to be divined by reference to the presumed Parliamentary intention. The House of Lords considered the question in the context of the signing of an indictment as in Clarke and McDaid

[2008] 1 WLR 338

. The failure was sufficient to invalidate the trial that followed. The question surrounding the late provision of the Attorney General’s consent has not, in our view, been finally determined by the Welsh cases and may require further argument should the issue arise again. However, there can be little doubt that the applicant’s trial was fair, that his conviction was safe in factual terms and that the late giving of consent of itself caused him no prejudice.