England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		4th October 2007

Thursday, 4th October 2007

1. MR JUSTICE AIKENS: This is a claim for judicial review of a decision of the Common Serjeant of London, made on 6th July 2007, to extend the claimant's custody time limits up to the start of a retrial in January 2008. Permission to apply for judicial review was granted by Walker J on 20th September 2007. The claimant wishes to set aside the order of the Common Serjeant extending the custody time limits so that he will be able to be admitted to bail in advance of the trial. The claimant accepts that the terms of any bail would be extremely stringent in the circumstances, when he is charged with very serious offences concerning Class A drugs.
2. The relevant facts which give rise to the claim are as follows. In March 2004, the claimant, Mr Recep Yilmaz, was convicted, with others, of offences concerning the supply of Class A drugs. He was sentenced to 30 years' imprisonment. On 25th January 2007 the Court of Appeal Criminal Division quashed that conviction. It ordered a retrial of the claimant and other appellants then before the Court of Appeal.
3. During the original trial Mr John Rae gave evidence in support of one defendant. That evidence implicated Mr Rae himself in the importation of class A drugs. He was subsequently tried and convicted. His appeal was also allowed.
4. At the end of the judgment of Hooper LJ in the Court of Appeal, he directed that there should be a retrial of the claimant. Hooper LJ said:

"We order that a fresh indictment be preferred. We direct that the appellants be rearraigned on the fresh indictment within two months."

5. Later in the discussion between the Court of Appeal and counsel for the appellants, it was again emphasised that the appellants should be rearraigned within the two month period.
6. In setting this two month period, the Court of Appeal was following the provisions of section 8(1) of the Criminal Appeal Act 1968, which provides that a person who is to be retried for an offence in pursuance of an order made under section 7 of that Act, (i.e. when an appeal is allowed and a retrial ordered):

"shall be tried on a fresh indictment preferred by direction of the Court of Appeal, but after the end of two months from the date of the order for his retrial he may not be arraigned on an indictment preferred in pursuance of such a direction unless the Court of Appeal gives leave."

7. In the discussion after the Court of Appeal's judgment, Mr Wright QC for the Crown explained that the plan was to have one single indictment for the retrial and that this indictment would include the charge against Mr Rae. The Court of Appeal also suggested (whilst leaving the matter finally to be decided by the Presiding Judge of the South Eastern Circuit) that it would be preferable for the case to be listed in the Central Criminal Court. The court further directed that applications for bail should be dealt with at the Central Criminal Court. The first trial had taken place at Woolwich Crown Court.
8. The claimant was then remanded in custody.
9. On 8th February 2007, the case was listed before HHJ Gordon at the Central Criminal Court on an application for bail by Mr John Rae, who had by now become a co-defendant of Mr Yilmaz.
10. In February 2007, Miss Jacqueline (Jacquie) Lawrence was a case worker employed by the Crown Prosecution Service. She had been allocated to the case of Mr Yilmaz and the other defendants who were to be retried.
11. On 8th February 2007 Mr Emlyn Jones of counsel, then acting for the prosecution, sent an e-mail to Miss Lawrence and also to her superior in the CPS, Miss Walsh. That e-mail, which was also copied to others, said:

"Dear all,

Attached for your info are the original trial case summary and opening note, as well as the original trial indictment (ie, the one containing Beysongu), as well as a proposed re-trial indictment which removes the acquitted Waller and Foy, and adds Rae who will need to be the subject of an application to join."

12. The next paragraph of the email continues:

"Jacquie: please serve the proposed re-trial indictment on the court as soon as possible. Thanks. I have gathered together the various other indictments in case you need any of them."

13. There is no need to read the remainder of the e-mail.
14. The heading of the e-mail refers to the attachments which are described as "Proposed Amended Indictment (16.7.03).doc; Retrial Proposed Indictment (8.2.07).doc; Yilmaz case summary.doc; Yilmaz opening drug trial.doc; Harrison opening.doc."
15. On the same day Miss Lawrence wrote a letter to the clerk to HHJ Gordon. The heading of the letter gives the name of the case and then states: "Next Hearing: Central Criminal Court - 8th February 2007 - Bail Application."
16. The body of the short letter states:

"I refer to the above matter and enclose 2 X copies of a proposed retrial indictment for the court's information."

17. Enclosed with the letter were two copies of the "proposed retrial indictment". They were each headed: "Proposed Joinder Retrial Indictment". Each was also headed: "In the Crown Court at Woolwich".
18. As I understand it, on 8 February 2007 Miss Lawrence hand-delivered this letter and the enclosure to, the list office at the Central Criminal Court, intending it to be handed to the clerk to HHJ Gordon. Miss Lawrence apparently obtained a receipt for the documents from someone in the Central Criminal Court List Office, called Miss Carr. The receipt states "Received Indictment Yilmaz and Ors." It is signed by Miss Carr. It is not known whether either of the copies of the indictment got to HHJ Gordon for the purposes of the bail application hearing. However, that hearing did take place on 8th February before HHJ Gordon.
19. On 12th February 2007 the papers which had been delivered by Miss Lawrence were returned to the Crown Prosecution Service representative by the List Office at the Central Criminal Court. There was an accompanying note which stated that the List Office believed that the papers ought to have been sent to Woolwich Crown Court instead. That was wrong. The Crown Prosecution Service representative spoke again to the clerk to HHJ Gordon. The same day the papers were hand-delivered to the Central Criminal Court List Office, for transmission to Judge Gordon's clerk. From that point up until 16th March 2007 neither of the copies of the "Proposed Joinder Retrial Indictment" were signed by any officer or judge of the Crown Court.
20. On 16th March 2007 there was a PCMH in the case. That was held by the Recorder of London. At that hearing, leading counsel for the prosecution, Mr Dennis QC, referred to a joint bill of indictment, which he described as a "Proposed Joinder Retrial Indictment". He said that this document had been passed to the Judge. Counsel asked for the bill of indictment to be preferred. The Judge asked if there were any objections, and there were none. It is clear that a bill of indictment in the form that had been sent to the clerk to HHJ Gordon on 8th February was then signed by an officer of the Crown Court and dated 16th March 2007. Upon the bill of indictment being signed and in accordance with the provisions of section 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933 ("the 1933 Act"), the bill of indictment thereupon became the indictment in this case.
21. It is not clear whether the bill of indictment was a new copy handed up by or on behalf of Mr Dennis QC for the Crown that day, or it was one of the copies that had been on the court file since 12th February 2007. On my view of the facts and the law, it is not necessary to decide that matter. However, I note that on two occasions in the course of the proceedings in this court, Mr Lyons, who was then junior counsel for Mr Yilmaz, and remains so, has stated in notes that Mr Dennis QC actually handed up a bill of indictment to the Recorder of London at the PCMH hearing on 16th March 2007.
22. The bill of indictment was called a "Joinder Retrial Indictment" because of the fact that the defendant, John Rae, had not been charged on the same indictment as the other defendants. As I have already noted, at the end of the appeal hearing before the Court of Appeal Criminal Division, counsel for the Crown had indicated that Mr Rae would have to be joined in a new indictment for the purposes of the retrial. Hence the expression "Joinder Retrial Indictment".
23. After preferment of the bill of indictment, the present claimant and all other defendants in the case were arraigned at the PCMH. All entered pleas of not guilty.
24. On 20th May 2007 the case was mentioned before Goldring J, who had by then been assigned as the trial judge. He fixed the trial date for the second week in January 2008.
25. On 28th June 2007, the Crown Prosecution Service ("CPS") served an application to extend the custody time limits in relation to the claimant and those other defendants in the case who had been remanded in custody. The CPS did so on the basis that the 112 day custody time limit had begun to run when the bill of indictment was produced and signed on 16th March 2007. Therefore, the time limit was, on the calculation of the CPS, due to expire on 6th July 2007.
26. When that application was made, Mr Lyons, who was acting for Mr Yilmaz, made various inquiries. These uncovered the sequence of events on 8th and 12th February and 16th March 2007 to which I have referred.
27. The application to extend custody time limits was heard by the Common Serjeant on 4th July 2007. The claimant and other defendants in custody opposed the application. The arguments put forward on their behalf were as follows:

(a) an application to extend the custody time limit can only be made before the present custody time limit has expired -- see section 22(3) of the Prosecution of Offences Act 1985;

(b) the relevant custody time limit in this case was 112 days, starting from the dated when the bill of indictment was "preferred against" the accused -- see paragraph 5(3) of the Prosecution of Offences (Custody Time Limits) Regulations (Statutory Instrument 299 of 1987) ("the 1987 Regulations");

(c) however, in this case the bill of indictment was preferred on 8th February 2007 when Miss Lawrence hand-delivered her letter and the proposed bill of indictment to the Central Criminal Court for transmission to the clerk to HHJ Gordon; so (d) the custody time limit had expired 112 days later, which was before the Crown Prosecution Service applied to extend the custody time limit; (e) therefore, the court had no jurisdiction to extend the custody time limit and so Mr Yilmaz and the other defendants must be released from custody and admitted to bail: see Olatu v Home Office [1997] 1 WLR 328.

28. The Common Serjeant heard argument over parts of two days, then he gave his ruling. In that he analysed the chronology of events carefully. He concluded, first, that in the circumstances of the delivery of the letter and draft bill of indictments on 8th February 2007, the bill of indictment was not then "preferred" for the purposes of paragraph 5(3) of the 1987 Regulations. Secondly, he concluded that the facts demonstrated that the only bill of indictment that was "preferred" for the purposes of those Regulations was the one presented by leading counsel for the prosecution at the PCMH on 16th March 2007, when the bill of indictment was signed. Thirdly, therefore, the 112 day period of the custody time limit only ran from 16th March 2007. Thus, the Crown Prosecution Service was in time in making its application to extend the custody time limit. As there was otherwise no objection to the extension of the custody time limit, the order sought by the prosecution should be granted.
29. In this claim for judicial review, the court is concerned only with the lawfulness of the decision of the Common Serjeant. It seems to me that the essential facts about what happened on 8th and 12th February and 16th March are not in dispute. Therefore, the short point of law that arises is whether, on the facts, on 8th February 2007 or on 12th February 2007 a bill of indictment was "preferred" within the meaning of paragraph 5(3) of the 1987 Regulations.
30. If the answer to that question is "yes, it was", then the Crown Prosecution Service must concede that the order of the Common Serjeant to extend the custody time limits has to be quashed. If answer is "no", then the order must stand.
31. The argument of Mr Wood QC, on behalf of the claimant, is that the steps taken by Miss Lawrence on 8th February and/or 12th February 2007 are consistent only with the "Proposed Joinder Retrial Bill of Indictment" being preferred within the meaning of paragraph 5(3) of the 1987 Regulations. In support of this argument, counsel relied upon the new Criminal Procedural Rules that came into force from April 2007 and the provisions in those Rules about "the service" of a "draft indictment" on the court. However, in my view those Rules and their new terminology are irrelevant for present purposes. This case must be decided on the wording of the rules and the procedure in force at the time, ie, February and March 2007.
32. Counsel's submission was that the bill of indictment is "preferred" if it is delivered to a proper officer of the Crown Court. No other formal steps need be taken for the bill of indictment to be "preferred". There need not be any particular intention that the bill of indictment that has been delivered should be scrutinised by the proper officer of the Crown Court with a view to seeing if the bill was regular and, if it was, signing it.
33. Counsel relied on the e-mail correspondence between junior counsel for the prosecution and Miss Lawrence on 8th February 2007, to which I have already referred. It was submitted that this e-mail showed that there was an intention on the part of junior counsel that the bill of indictment should be preferred as soon as possible. It was submitted that Miss Lawrence was carrying out the wishes of counsel in hand-delivering the proposed bill of indictment on 8th February 2007. Accordingly, it was submitted, the Common Serjeant had wrongly analysed the facts and applied the wrong test in law, thereby reaching the wrong conclusion as to when the bill of indictment was preferred. Therefore, his conclusion and order could not be upheld.
34. An indictment has, for centuries, been the formal document containing charges against a defendant. Formally speaking, a bill of indictment is a written accusation of a crime made by the Crown (representing the State), against one or more persons. In former times, a bill of indictment was "preferred" to a Grand Jury at Assizes. The Grand Jury would consider whether there was sufficient ground to put the accused on trial before a petty jury. If it was so satisfied, the Grand Jury endorsed the reverse of the bill of indictment with the words "true bill", and upon presentment of that bill by the Grand Jury, that bill would become the indictment itself. Grand Juries were abolished, effectively, by the Administration of Justice (Miscellaneous Provisions) Act 1933 (i.e. "the 1933 Act"). That Act also laid down the modern procedure in relation to bills of indictment, to which I must refer presently.
35. The English verb "to prefer" stems from the Latin verb praeferre, which means "to bear before" or "to bear in front of" someone or something. Dr Johnson, in his famous dictionary, gives one meaning of the verb "prefer" as being "to present ceremoniously". Given that meaning, the concept of a bill of indictment being preferred to a Grand Jury makes perfect sense. It was the formal act of presenting the written charges for the Grand Jury's consideration. I note that the New Oxford Shorter English Dictionary gives one meaning of the word "prefer" as "to submit formally (a statement, charge, claim) to an authority for consideration or approval".
36. The modern procedure for presenting a bill of indictment which charges a person with an indictable offence is set out in section 2 of the 1933 Act. Section 2(1) provides:

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

37. There is then a proviso which I need not read out.
38. Section 2(2)(b) of the 1933 Act states:

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

...

(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 ..."

The meaning of "preferred" in sub-sections (1) and (2) of section 2 of the 1933 Act must be the same.

39. The procedure for dealing with the bill of indictment is also governed by Criminal Procedure Rules. The former rule was Rule 4 of the Indictment Procedure Rules 1971. The rule in force from 4th April 2005 to 1st April 2007, which must be the relevant rule for the purposes of this case, is Rule 14 of the Criminal Procedure Rules 2005. That provides:

"Subject as hereinafter provided, a bill of indictment shall be preferred before the Crown Court by delivering the bill to the Crown Court officer:

Provided that where with the assent of the prosecutor the bill is prepared by, or under the supervision of, the court officer it shall not be necessary for the bill to be delivered to the court officer but as soon as it has been settled to his satisfaction it shall be deemed to have been duly preferred."

40. The distinction between the act of preferment of a bill of indictment and its signature has always been important. It was emphasised by the decision of the Court of Appeal Criminal Division in Stewart (1990) 91 Cr Ap R 301.
41. It seems to me that in the context of the 1933 Act and the 2005 Procedure Rules, the act of "preferring" a bill of indictment is a formal presentation of charges against a person "before a court in which the person charged may lawfully be indicted for" that offence or offences. It is, in my view, clear that the act of "preferring" or formally presenting the bill must be done with the intention that the bill of indictment will be scrutinised by "the proper officer of the court" to see if the requirements of section 2(2) of the 1933 Act have been complied with. If they have been, then under section 2(1) of that Act, the "proper officer" of the court "shall ... sign the bill and it shall thereupon become an indictment and be proceeded with accordingly".
42. In my view, the question of intention must be considered objectively. In other words, what to the informed but independent observer, would it appear that the intention of the person presenting the bill of indictment was at that time? Was it, objectively, being presented for the purposes of the process set out in the 1933 Act or not?
43. Paragraphs 5(2) and (3) of the 1987 Regulations set out the maximum period of custody in two different circumstances. Paragraph 5(2)(b) and 5(3)(b) deal with the circumstances where a bill of indictment has been ordered to be preferred by the Criminal Division of the Court of Appeal, pursuant to section 2(2)(b) of the 1933 Act. Those paragraphs of the 1987 Regulations use the expression "a bill of indictment is preferred against" either "a person" or "him" under section 2(2) of the 1933 Act.
44. In my view, the meaning of the phrase "a bill of indictment is preferred" in paragraphs 5(2) and (3) of the 1987 Regulations must be consistent with the statute to which they refer: viz the 1933 Act. Accordingly, when paragraph 5(3)(b) of the 1987 Regulations use the phrase "a bill of indictment is preferred against a person" it involves the same process coupled with the same intention as the procedure for indicting offences described in section 2(1) of the 1933 Act.
45. Given that construction of the phrase "where a bill of indictment is preferred" in paragraph 5(3) of the 1987 Regulations, it is now necessary to re-consider the facts in this case. The question is, in my view, whether there was a formal presentation of the bill of indictment to the Central Criminal Court on 8th February 2007, with the intention that the document presented should be scrutinised by an officer of the court to see whether it complied with the requirements of section 2(2) of the 1933 Act and with the further intention that if it did so an officer of the court should sign the bill, thus turning it into an indictment.
46. I have no hesitation in concluding that the "proposed Joinder Retrial Indictment" that was hand-delivered for transmission to the clerk to HHJ Gordon on 8th February 2007 was not "preferred" on that date for the purposes of paragraph 5(3) of the 1987 Regulations. I accept that counsel wished the proposed bill of indictment to be "served" on the Crown Court as soon as possible. But the precise circumstance in which the proposed bill of indictment was delivered to an officer of the Crown Court in the Listing Office was that there was to be a hearing of a bail application. There was no need for a bill of indictment to be preferred before or at that hearing. But the Judge would wish to see (if the bill of indictment was shown to him), what the proposed charges were and the fact that it was proposed that the defendant Rae would be joined with other defendants in one indictment.
47. Therefore, although I accept that the bill of indictment was delivered to a proper officer of the Crown Court, I cannot accept that, looking at the evidence objectively, this was done with the intention that the process set out in the 1933 Act should be undertaken. As the covering letter of Miss Lawrence makes plain, the proposed bill of indictment was enclosed for the court's information. It was in the context of a bail application hearing. I am certain that if the intention had been formally to prefer the bill of indictment at that stage, the letter would have said so in plain terms.
48. Therefore, I have concluded that the bill of indictment was not preferred on 8th February 2007. For the same reasons, I have concluded that there was no preferment of the bill of indictment on 12th February 2007. It was not re-sent to the Central Criminal Court with the formal purpose of being scrutinised then signed in order to turn it into an indictment.
49. The bill of indictment was preferred only at the PCMH before the Recorder of London on 16th March 2007. Hence, the Crown Prosecution Service applied in time to extend the custody time limits. Therefore, the Common Serjeant reached the correct conclusion and this claim must be dismissed.
50. LORD JUSTICE RICHARDS: I agree. On a small point of detail, I think that on 8th February and 12th February 2007 Miss Lawrence hand-delivered the documents in question not to the clerk to HHJ Gordon, but to the List Office with a view to their transmission to the Judge's clerk. Nothing turns on that, and I am satisfied that, for the reasons given by Aikens J, what was done by Miss Lawrence on those two dates did not amount to the preferment of the indictment and the indictment was not preferred until the plea and case management hearing on 16th March. Accordingly, the claim is dismissed.
51. MR WOOD: My Lord, may I just raise two matters. I am aware that it was the Legal Services Commission who authorised my attendance here, and that of Mr Lyons this morning. I regret to say, it is such a time since I have appeared in this court in this building --
52. LORD JUSTICE RICHARDS: You probably want a detailed assessment for public funding purposes, do you?
53. MR WOOD: I think I may do.
54. LORD JUSTICE RICHARDS: You can have it if you do, and I think you do.
55. MR WOOD: I am very grateful, my Lord. The second issue is this: both Mr Lyons and I would like to consider Aikens J's and your Lordship's agreed ruling with a view to seeing whether it is amenable to the certification of a point. There are seven days for doing so, my Lord. Could I ask your Lordship as to when your Lordships are together in the next seven days, or whether you would like to make any order of the provisions in writing, if one is made.
56. LORD JUSTICE RICHARDS: We are sitting together next week as well as this week. There is no reason to alter the seven days. You can put in an application in writing, if you wish to do so.
57. MR WOOD: I am very grateful.
58. LORD JUSTICE RICHARDS: Thank you.
59. MR JUSTICE AIKENS: Thank you.