Neutral Citation No:  NICA 43
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
McCLOSKEY LJ (delivering the judgment of the court)
"… erred in law in failing to accede to the defence application to enter a No Bill under section 2(3) of the Grand Jury (Abolition)(NI) 1969."
The Prosecution Case
"(1) If a person who has been released on bail fails without reasonable cause to surrender to custody, he shall be guilty of an offence.
(2) If a person who -
(a) Has been released on bail, and
(b) Has, with reasonable cause, failed to surrender to custody,
fails to surrender to custody at the appointed place as soon after the appointed time as is reasonably practicable, he shall be guilty of an offence."
The single offence specified in the indictment was formulated in these terms:
"Breach of bail, contrary to Article 5(1) of the Criminal Justice (NI) Order 2003.
Particulars of offence
Charles Stephen Valliday, having been released on bail from Maghaberry Prison at 10am on the 9th day of November 2017, failed without reasonable cause to surrender to custody at 3pm that afternoon."
"The Applicant shall be released from 10am on Thursday 09 November 2017 to 3pm on Thursday 09 November 2017 to attend the funeral of his aunt Sarah Valliday, subject to the Applicant being released into the custody of his surety (Emmanuel Valliday) who shall collect the Applicant from Her Majesty's Prison Maghaberry. The surety shall bring the Applicant directly to 10 Jude Street and from there to the requiem mass at St Peter's Cathedral and thereafter to Milltown Cemetery for the interment. The surety shall then immediately return the Applicant to the Governor of Her Majesty's Prison Maghaberry on or before 3pm on Thursday 09 November 2017. He must remain in the company of his surety throughout the period of his release."
This is followed by certain restrictive conditions relating to the non-consumption of alcohol and other matters of no consequence in the present context.
(i) Prison Officer Ferguson deposed:
"On 09/11/17 I was [Senior Officer in Charge of] reception. At approx 09.50 hours I read Conditions of Bail Release 09/11/17 from 10.00 hours to 15.00 hours to prisoner Valliday A184. He signed the recognisance papers to state he understood the conditions and I signed to confirm I read them to him. He was released a short time later. Prisoner Valliday, DOB 26/12/71 was committed to HMP Maghaberry on 11/10/17."
(ii) The two depositions of Constable Speedy describe the events surrounding the Appellant's arrest on 30 April 2018. The details are unimportant. In short the Appellant was arrested in a fortuitous and unplanned manner on the occasion of an arrest operation relating to another person. This witness was aware that the Appellant was "wanted for arrest".
(iii) Next there are two depositions of the arresting officer.
(iv) The sixth and last of the depositions is that of a police constable who describes administering a caution to the Appellant at 11.25 hours on 10 August 2018 and the suspect's mute reaction.
Trial and conviction
"… a short additional statement would rectify the issue concerned …
A short additional statement would rectify that problem that is evident in the papers but not evident in reality."
"I am the above named person, currently employed as security in HMP Maghaberry. I have checked Prison records and I can confirm that on 9th November 2017 Charles Valliday did not return at 15.00 hours as per his bail conditions. The matter was reported to the PSNI at 15.36 on the same date."
Sequentially, the next material event unfolded on 6 December 2019 when the arraignment of the Appellant proceeded and he pleaded guilty. As noted sentencing was carried out on 16 January 2020. In passing, during the intervening period a pre-sentence report was commissioned and this recorded inter alia:
"While Mr Valliday accepts that he did not return to Maghaberry Prison, having been released on compassionate grounds, he advises that he believes that his legal representatives intend to lodge an appeal in this matter … he made an impulsive decision not to return … he spent six months at large, staying in the homes of friends and associates … he had made contact with his solicitor to voluntarily return to custody on the date that he was detected."
The Central Ground of Appeal
"(a) There was no admissible evidence within the depositions that the accused failed to return to HMP Maghaberry at 3pm on 09 November 2017 as alleged in the Bill of Indictment. Without such evidence the offence could not be made out.
(b) There was no admissible evidence that the accused had failed to surrender to bail, the essential element necessarily pre-requisite to the perfection of the charge against him.
(c) The depositions did not disclose a case sufficient to justify putting the accused on trial."
In a further passage it is contended that the judge –
"… erred in law in determining that the evidential deficit in the depositions amounted merely to a formal defect …."
As our analysis, to follow, will make clear the central issue of law in this appeal is whether the judge, having determined that the statutory test of insufficiency of evidence was satisfied, erred in law in exercising his statutory discretion to nonetheless reject the "No Bill" application. If this question is resolved in favour of the Appellant it will follow that his conviction is unsafe (see infra).
The 1969 Act
"The judge presiding at the Crown Court shall, in addition to any other powers exercisable by him, have power to order an entry of 'No Bill' in the Crown book in respect of any indictment presented to that court after the commencement of this Act if he is satisfied that the depositions or, as the case may be, the statements mentioned in subsection (2)(i), do not disclose a case sufficient to justify putting upon trial for an indictable offence the person against whom the indictment is presented."
This statutory provision has been considered in several decided cases in this jurisdiction.
"Formerly the Grand Jury required to be satisfied that there was a prima facie case before finding a true bill. Here the onus is reversed because the trial ought to proceed unless the judge is satisfied that the evidence does not disclose a case sufficient to justify putting the accused on trial."
Thus, whereas the onus is plainly on the prosecution at the committal for trial stage, this does not apply in a subsequent 'No Bill' application. Whether either party bears any onus of proof in a section 2(3) application is debatable. We venture not beyond this observation, as the questions whether there is any onus at all in play and if so the standard of proof do not arise for determination in this appeal.
"Concluding, as we do, that the endorsement of the witness's declaration demanded by the [legislation] is mandatory and that the unendorsed statements of witnesses were inadmissible at the preliminary enquiries and were wrongly received in evidence, we have already noted that without these unendorsed statements there was not evidence to justify the magistrate's committal for trial in any case. In all cases the Defendants were committed for trial and no order to enter 'No Bill' was made by a judge under section 2(3) of the [1969 Act]. Each Defendant was arraigned. One pleaded guilty and two not guilty; those two were tried and found guilty and all three were sentenced and have appealed to this court. We now proceed to examine the legal effect of this nexus of events."
The Lord Chief Justice continued at 365 E:
"To put the question simply …
Can the convictions be annulled on the ground that the admissible evidence before the Magistrate did not justify committal for trial?"
Following an extensive review of the relevant jurisprudence Lord Lowry stated at 375 C/E:
"There is, accordingly, substantial authority for, and none against, the proposition that the validity of a committal for trial cannot be challenged on the ground of want of evidence. But there is yet another point which seems to put beyond the reach of argument any contention that the appellants have any remedy based on the allegedly defective committals, now that they have been arraigned, tried and convicted. To convict a person summarily, or to commit him for trial, on evidence which does not support the charge is an error of law in the exercise of jurisdiction and not an example of the absence or excess of jurisdiction. Therefore the committals, assuming that they are challengeable at all, are not void but voidable and it is therefore of no avail for the Appellants to challenge the committals after they have been convicted. There is abundant authority that this is the kind of error which we are now dealing with."
"After all this discussion, the matter can again be reduced to simple terms. An indictment is a pre-requisite to the trial and conviction. By reason of section 2(2)(a) of the [1969 Act], since the stated exceptions are irrelevant, an indictment can be presented only against a person who has been committed for trial. The Appellants have on the face of it been committed for trial, but there was no admissible evidence to justify committal. That deficiency does not destroy the jurisdiction to commit or render the committal null and void. Therefore the committal, indictment, trial and conviction were valid and the convictions appealed from cannot be upset on the jurisdiction point."
There follows a discrete passage of note, at 380 C/D:
"Finally, if a presiding judge is in the future confronted with irregularly admitted statements it would, in our opinion, be open to him, if that is the sole defect, to refrain from ordering 'No Bill', because he can see that, when the hearing commences, the Crown will be able to present a case: admittedly, as we have seen, the defectively completed written statements could not themselves be put in evidence. Alternatively the Crown could serve notice, when the defect is discovered, of intention to give evidence in the terms of the statements."
We observe that this passage is obiter. The reason for this is that the sole defect in play in Campbell was that of "irregularly admitted statements" i.e. witness statements which failed to comply with the governing statutory requirements and should, therefore, not have been admitted in evidence at the committal stage. Campbell was an appeal against conviction with no "No Bill" element. In the event all of the appeals against conviction were dismissed.
"(i) The trial ought to proceed unless the judge is satisfied that the evidence does not disclose a case sufficient to justify putting the accused on trial.
(ii) The evidence for the Crown must be taken at its best at this stage.
(iii) The court has to decide whether on the evidence adduced a reasonable jury properly directed could find the Defendant guilty and in doing so should apply the test formulated by Lord Parker CJ when considering applications for a direction set out in Practice Note  1 All ER 448."
Hart J reiterated these principles in R v Shoukri and Others  NIJB 120 at .
"However when one looks at the reference to this in the text it does not mean that the Lord Chief Justice was permitting fundamental, as opposed to procedural, gaps in evidence to be filled by this means. A criminal statute must be strictly interpreted. The margin of appreciation left to a judge is limited to the terms of the section and the section is clearly a protection for the individual."
The judge ordered a No Bill on the ground that the "missing" evidence was "a basic proof": see .
"I am satisfied from this passage that where there is a purely formal defect in the Crown case the judge has a discretion to refrain from ordering a No Bill, if that defect is one which can simply be corrected when the hearing commences by delivering a statement of additional evidence."
This passage chimes with its analogue in Allison (supra).
The Appeal Test
"1. A person convicted on indictment may appeal to the Court of Appeal against his conviction—
(a) with the leave of the Court; or
(b) if, within 28 days from the date of the conviction, the judge of the court of trial grants a certificate that the case is fit for appeal.
Grounds for allowing appeal against conviction
2. (1) Subject to the provisions of this Act, the Court of Appeal—
(a) shall allow an appeal against conviction if it thinks that the conviction is unsafe; and
(b) shall dismiss such an appeal in any other case.
(2) If the Court allows an appeal against conviction it shall quash the conviction.
(3) An order of the Court quashing a conviction shall, except when under section 6 of this Act the appellant is ordered to be retried, operate as a direction to the chief clerk acting for the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal."
In short, as confirmed by R v Pollock  NICA 34, the sole question for this court is whether it considers the conviction under challenge to be unsafe. It is well established that this entails the application of the test of whether this court, on appeal, has a sense of unease, or a lurking doubt, about the safety of the relevant conviction.
The Parties' Competing Contentions
Section 2(3) Analysed
"It is well established that the guarantee of a fair trial under Article 6 is absolute: a conviction obtained in breach of it cannot stand. R v Forbes,  2 WLR 1, 13, para 24. The only balancing permitted is in respect of what the concept of a fair trial entails: here account may be taken of the familiar triangulation of interests of the accused, the victim and society. In this context proportionality has a role to play. …………………………………."
(R v A (No 2)  1 AC45 at )
"It is always, of course, lamentable if defendants whose guilt there is no reason to doubt escape their just desserts …
Technicality is always distasteful when it appears to contradict the merits of a case. But the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place."
Lord Carswell, to like effect at , emphasised that the introduction of the statutory procedure requiring the proper officer's signature on the Bill was not "a matter of mere administrative convenience" but was, rather, "a significant step which could not be omitted without the validity of the procedure being affected".
"Now that the test for allowing an appeal is simply the safety or otherwise of the conviction, is it competent for the court to consider evidence entertained after the wrongful rejection of a submission of no case to answer? …
What if a submission is wrongly rejected but the Defendant is cross examined into admitting his guilt? Should the conviction be said to be unsafe? We think it should. The Defendant was entitled to be acquitted after the evidence against him had been heard. To allow the trial to continue beyond the end of the prosecution case would be an abuse of process and fundamentally unfair. So even in the extreme case the conviction should be regarded as unsafe …."
In short, the conviction was adjudged unsafe because the Defendant had been denied his entitlement to a judicial directed jury verdict of not guilty at the close of the prosecution case.
"This court is not concerned with guilt or innocence of the appellants; but only with the safety of their convictions. This may, at first sight, appear an unsatisfactory state of affairs, until it is remembered that the integrity of the criminal process is the most important consideration for courts which have to hear appeals against conviction. Both the innocent and the guilty are entitled to fair trials. If the trial process is not fair; if it is distorted by deceit or by material breaches of the rules of evidence or procedure, then the liberties of all are threatened."
In similar vein, in R v Martin  1 Cr App R 347 both Lord Lloyd of Berwick (at p 353) and Lord Hope of Craighead (at p 356) espoused the (inexhaustive) test of whether the trial process had been "… such as to threaten either basic rights or the rule of law".
(i) Every application to the court for a "No Bill" entry under section 2(3) of the 1969 Act must, procedurally, be made and determined in a manner compliant with all relevant procedural requirements, whether express or implied.
(ii) The parties should normally provide the court with a draft timetabling/case management order, to be approved or modified as the judge considers appropriate.
(iii) Such order will make provision for reasonable notice to both the prosecutor and the court and will also address matters such as skeleton arguments.
(iv) All concerned should, from the outset, have in contemplation the possibility of the two stage exercise arising and the practical and procedural implications which this may entail. Adherence to the foregoing requirements will ensure that the prosecutor makes all of the necessary advance preparations, taking into account in particular, but again inexhaustively, the two illustrations provided in  above. All concerned must at all times be alert to the imperatives of (a) a fair procedure, (b) the avoidance of unnecessary delay and (c) ensuring that the court is properly equipped to lawfully exercise its discretion in every case where the second stage of the statutory exercise arises. Particular care will be required to ensure that, at the first stage, the court is equipped with nothing other than the committal papers.
The Instant Case
"[It is] clear to me that ……….. a short additional statement would rectify the issue concerned …
I am satisfied that a short additional statement would rectify that problem that is evident in the papers but not evident in reality. Therefore I decline to exercise my jurisdiction …."
It is clear from the preceding exchanges between the judge and prosecuting counsel that the prosecution advanced (a) a primary submission that all essential ingredients of the relevant offence were established in the committal papers and (b) an alternative submission that any defect was a merely formal one which could be rectified by service of additional evidence. This passage further illustrates what we have said in  above.