England and Wales Court of Appeal (Criminal Division) Decisions

Nos:9602931 W3,9602933 W3,

9603103 W3, 9603104 W3, 9603106 W3

Royal Courts of Justice

The Strand

London WC2

Tuesday, 13th May 1997

B E F O R E :

LORD JUSTICE JUDGE

MR JUSTICE LONGMORE

and

MR JUSTICE BRIAN SMEDLEY

- - - - - - - - - - - -

R E G I N A

- v -

ANDREW DAVID JACKSON

MICHAEL WAYNE BRADY

THOMAS JAMES PACKER

DAVID POWELL

and

PATRICK JOSEPH KEARNS

- - - - - - - - - - - -

Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 831 3183 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

- - - - - - - - - - - -

MR J PRICE appeared for the Appellants Jackson.

MR SIMON BRAND appeared on behalf of the Crown.

- - - - - - - - - - - -

JUDGMENT

( As Approved )

- - - - - - - - - - - -

J U D G M E N T

LORD JUSTICE JUDGE: On 1st April 1996 these five appellants were sentenced to substantial terms of imprisonment following convictions for conspiracy to rob shops and post offices between 12th August and 13th September 1994, and for possession of a prohibited weapon between the same dates. Three, Jackson, Brady and Packer were found guilty by the jury on that date. Powell pleaded guilty on 6th March 1996 and Kearns changed his pleas to guilty on 11th March.

An indictment containing a count of conspiracy to handle stolen goods against all five appellants was left on the file.

A number of grounds of appeal against conviction have been advanced by Jackson, Brady and Packer. However all three of them, together with Powell and Kearns, appeal against their convictions on the basis that their trials were a nullity because the indictment on which they were convicted was not properly signed. We heard argument on this single point last week on the basis that if it were successful the remaining grounds of appeal against conviction would not require any further consideration. If however this and the remaining grounds of appeal against conviction are unsuccessful, then the sentences in relation to possessing a prohibited weapon apparently exceeded the permitted statutory maximum and leave to appeal against sentence was granted to each appellant and adjourned for hearing.

In the course of this judgment we shall therefore consider the single ground based on the failure by the proper officer to sign the indictment. The single judge gave leave to appeal, referring to the decision of this court in R v Morais [1988] 87 CAR 9, on the basis of more limited information available to him than the evidence available to us.

The relevant facts are straightforward. On 5th May 1995 these appellants appeared before Her Honour Judge Alton at Birmingham Crown Court. They faced a seventeen count indictment which was properly signed. The prosecution then prepared two fresh indictments. One contained a single count from the seventeen count indictment which concerned Brady alone. The second contained three counts taken in substance from the seventeen-count indictment. The three-count indictment was treated as amending the seventeen-count indictment. Both these indictments were duly signed by the proper officer of the court. Each appellant was arraigned and pleaded not guilty to each of the three counts. The single count indictment concerning Brady alone needs no further mention in the course of this judgment.

The three-count indictment was then adjourned for trial. On 6th March 1996 it was listed for trial before His Honour Judge Farrer QC at Birmingham Crown Court. After hearing lengthy submissions that counts 1 and 2 were wrongly joined with count 3 he concluded that there was insufficient nexus between the counts alleging conspiracy to rob and conspiracy to handle stolen property to justify the joinder. Towards the end of the argument he said:

"The answer is, Mr Brand [that is counsel for the Crown], if I were to hive off under 5(3) it is much safer for you to prefer two separate indictments and for me to stay. It has the same effect. It merely preserves count 3 if you wish to proceed with it."

The learned judge then said:

"I would be against you under section 5(3) even if I were in your favour on rule 9. I am not. I am against you on rule 9 because I do not think this forms part of a series of offences of a same or similar character... I reject the thesis that there is a legal nexus between these matters and I still don't follow the factual nexus."

He then asked:

"I would ask you to prefer two indictments. Counts 1 and 2 on one indictment. Count 3 on another. So that I can then stay the main indictment. If you are going to stick to your submission and refuse to do that then I would quash count 3."

After lunch Mr Brand returned to court and applied for leave to prefer two fresh indictments out of time. The first would follow counts 1 and 2 and the second count 3 of the three-count indictment. No objection was taken. The Judge ruled:

"I grant leave for two fresh indictments. The first indictment will be counts 1 and 2 of the earlier indictment. The second indictment will be count 3."

He gave leave for service to be effected and directed that the indictment be signed out of time. He stayed the three-count indictment and ordered that the appellants should be re-arraigned on the fresh indictments. Powell pleaded guilty to both counts on the first fresh indictment and not guilty to the second. The other appellants pleaded not guilty to both indictments.

In taking this course Judge Farrer was following the course approved by the Court of Appeal in R v Follett [1989] QB 338 where a virtually identical situation had arisen; that is the wrongful joinder of counts which lacked the necessary nexus to comply with the relevant rules, followed by a stay of that indictment rather than its quashing or amendment. Lord Lane CJ said:

"... there was nothing to prevent the court in this case taking the course which it did, that is to say, giving leave to the prosecution to prefer out of time fresh indictments which conformed with the Rules, despite the existence of the original invalid indictment, and then staying proceedings on the invalid indictment and proceeding to trial on the others."

Thereafter the trial proceeded. Kearns pleaded guilty shortly after it began. The remaining appellants were convicted by the jury. They were all sentenced by Judge Farrer. There was an appeal against conviction by Jackson, Brady and Packer. The single judge considering their applications observed that the indictment on which they had been convicted had not been signed. The matter was investigated. The clerk of the court on that day (who would have been the proper officer for the purpose of signing the indictment) accepted that she had not in fact signed either of the fresh indictments, despite the judge's unequivocal direction that she should do so.

She says in a letter dated 26th July 1996:

"Leave was given to stay the original indictment and to proffer two new indictments. Such indictments were to be signed and served out of time... I must confess that in the confusion of making sure I was working to the same indictments as counsel I forgot to sign my copies of the indictments before I arraigned the defendants."

It follows from this letter that when the appellants were arraigned on the fresh indictments the clerk of the court was using the original three-count indictment as a guide in order to give effect to the judge's order in relation to re-arraignment. That much is obvious from the documents. However she had not and did not comply with his direction that the fresh indictments should be signed. Everyone involved in the trial, understandably, remained ignorant of her omission.

Her oversight forms the foundation for Mr Price's submission on behalf of all the appellants that the convictions were and are nullities. He relied on Morais to support his submission that the signature of the proper officer of the court is a mandatory requirement which cannot be ignored or overlooked. Mr Price was the first to acknowledge that none of the appellants suffered any prejudice and that in relation to this ground of appeal at any rate there is no reason to doubt the safety of the convictions. However, if his primary submission is right such matters are irrelevant.

The submission requires analysis in the light of section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 which sets out the"procedure for indictment" of offenders. It provides:

"Section 2(1): Subject to the provisions of this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before a court in which the person charged may lawfully be indicted for that offence, and where a bill of indictment has been so preferred the proper officer of the court shall, if he is satisfied that the requirements of the next following subsection have been complied with, sign the bill and it shall thereupon become an indictment and be proceeded with accordingly."

Then comes this important proviso:

"Provided that if the judge or chairman of the court is satisfied that the said requirements have been complied with, he may, on the application of the prosecutor or of his own motion, direct the proper officer to sign the bill and the bill shall be signed accordingly."

Then subsection (2) provides:

"Subject as hereinafter provided no bill of indictment charging any person with an indictable offence shall be preferred unless either

(a) the person charged has been committed for trial for the offence;

or (aa) the offence is specified in a notice of transfer under section 4 of the Criminal Justice Act 1987 (serious and complex fraud); or (ab) the offence is specified in a notice under section 53 of the Criminal Justice Act 1991 (violent or sexual offences against children) or (b) the bill is preferred [by the direction of the Criminal Division of the Court of Appeal] or by the direction or with the consent of a judge of the High Court."

There then follow various provisos applicable to bills of indictment which need no further recitation. Section 2(1) and section 2(2) distinguish between the bill of indictment and the indictment itself, a distinction sometimes overlooked. In the present context it is perhaps more significant that the trial judge has an independent jurisdiction of his own in connection with the "procedure for indictment".

In Morais a voluntary bill of indictment had been preferred with the leave of a High Court judge but had not been properly signed by the proper officer. It was argued that as the proper officer had not signed the bill it had never become an indictment. Rejecting the argument by the Crown that the language of section 2 of the 1933 Act is directory and not mandatory Lord Lane CJ concluded:

"It seems to us that this Act was intended, so to speak, to fill the gap which was left by the abolition of the grand jury. It was intended to ensure not only that the proper requirements had been fulfilled before a trial proper could start, but that also there should be a certification by way of the signature of the proper officer to indicate that he had inquired into the situation and satisfied himself that the requirements of the subsection had properly been complied with. We have come to the conclusion, therefore, that it is not merely a comparatively meaningless formality that the proper officer's signature should be appended, but it is, as the words of the Act itself prima facie indicate, a necessary condition precedent to the existence of a proper indictment that the bill should be signed and only then and thereupon does it become an indictment.

Therefore in the present case there was no valid indictment, there was no trial, no valid verdict and no valid sentence."

Morais cannot be distinguished on the basis that it was concerned with a voluntary bill of indictment rather than a bill prepared as a result of a valid committal for trial. There are however two further and crucial distinctions.

First, in the present case the purpose of requiring the signature of the proper officer was fulfilled; the seventeen-count indictment and then the three-count indictment had been duly signed. If the purpose was to check that there had been a valid committal that had been achieved and applied equally to the two "fresh" indictments as it did to the three-count indictment. Therefore the appropriate requirements of the section had been met.

Second, and more important, before arraignment on the two fresh indictments Judge Farrer had exercised the discretion granted to him as the trial judge by the proviso to section 2(1) of the 1933 Act and, as he was entitled, of his own motion had directed in open court that the proper officer should sign the fresh indictments. (For present purposes, the fact that he did not expressly distinguish between the bill of indictment and the indictment is irrelevant.)

These considerations simply did not arise in Morais, nor so far as we can ascertain in any other reported case. We are not surprised: the situation, if not unique, must be very rare indeed. The single question which remains is whether the fact that the proper officer failed to comply with the direction which the judge was entitled to give, and with which she was in law bound to comply, rendered the trial a nullity. In accordance with Morais we accept that the procedures laid down by section 2(1) and section 2(2) of the 1933 Act and in particular those required of the proper officer when carrying out his own obligations are mandatory. However we do not regard it as authority for the proposition that the separate jurisdiction given to the trial judge in connection with the appropriate procedures can be frustrated and indeed rendered valueless merely because the proper officer of the court, for whatever reason, refuses or fails to sign the bill in accordance with the judge's directions. If such a direction is given by the judge the proper officer ceases to have any independent jurisdiction of his own: his signature must follow. In the present case the decision -- that is that the bill of indictment should be signed -- had been taken by the judge in accordance with his statutory jurisdiction: all that was required of the proper officer was the clerical step of the application of her signature. Once the judge made the direction he did she had no other function.

In this very unusual situation her signature was indeed to adapt the language used by Lord Lane in Morais, a "meaningless" clerical "formality". We have concluded that the correct approach to what happened is that as the proper officer had no alternative but to sign in accordance with the judge's direction she should be deemed to have appended her signature to the bill of indictment prior to arraignment. Accordingly the indictment on which the appellants were tried and convicted was not invalid and the trial was not a nullity. The appeal on this ground is dismissed.

----------------