|Judgments - R v Clarke (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) R v McDaid (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (Consolidated Appeals)
HOUSE OF LORDS
 UKHL 8
on appeal from:  EWCA Crim 1196
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
R v Clarke (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
R v McDaid (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
Lord Bingham of Cornhill
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
Joel Bennathan QC
(Instructed by Hadgkiss Hughes & Beale)
David Perry QC
Duncan Perry QC
(Instructed by Director of Public Prosecutions)
28 NOVEMBER 2007
WEDNESDAY 6 FEBRUARY 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
R v Clarke (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
R v McDaid (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
 UKHL 8
LORD BINGHAM OF CORNHILL
"1.-(1) Subject to the provisions of this section grand juries are hereby abolished, but where a bill of indictment has been signed in accordance with the provisions of this Act, the indictment shall be proceeded with in the same manner as it would have been proceeded with before the commencement of this Act if it had been found by a grand jury, and all enactments and rules of law relating to procedure in connection with indictable offences shall have effect subject only to such modifications as are rendered necessary by the provisions of this section and of the section next following.
(2) Where at the commencement of this Act any person has obtained the direction or consent in writing of a judge of the High Court for the preferment of an indictment under the Vexatious Indictments Act 1859, the direction or consent shall have effect as if it were a direction or consent for the preferment of a bill of indictment under this Act.
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:
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.
(2) 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
(b) the bill is preferred by the direction or with the consent of a judge of the High Court or pursuant to an order made under section nine of the Perjury Act 1911:
(i) where the person charged has been committed for trial, the bill of indictment against him may include, either in substitution for or in addition to counts charging the offence for which he was committed, any counts founded on facts or evidence disclosed in any examination or deposition taken before a justice in his presence, being counts which may lawfully be joined in the same indictment;
(ii) a charge of a previous conviction of an offence or of being a habitual criminal or a habitual drunkard may, notwithstanding that it was not included in the committal or in any such direction or consent as aforesaid, be included in any bill of indictment.
(3) If a bill of indictment preferred otherwise than in accordance with the provisions of the last foregoing subsection has been signed by the proper officer of the court, the indictment shall be liable to be quashed:
(a) if the bill contains several counts, and the said provisions have been complied with as respects one or more of them, those counts only that were wrongly included shall be quashed under this subsection; and
(b) where a person who has been committed for trial is convicted on any indictment or any count of an indictment, that indictment or count shall not be quashed under this subsection in any proceedings on appeal, unless application was made at the trial that it should be so quashed
(5) For the purposes of this section the expression 'judge or chairman' includes a deputy recorder, deputy chairman, or acting chairman, and the expression 'proper officer' means in relation to a court of assize the clerk of assize, and in relation to a court of quarter sessions the clerk of the peace, and also includes in relation to any court such officer as may be prescribed by rules made under this section "
"It seems to us that it is impossible for a criminal trial to start without there being a valid indictment to which the defendant can plead, and that the bill of indictment does not become an indictment until it is signed".
By contrast, the court derived no assistance from another unreported decision (R v Price, 6 November 1985) in which the facts were similar save that the defendant had pleaded guilty: the court on that occasion had considered the overall justice of the case without close attention to the jurisdictional question and without considering whether the words in section 1 of the 1933 Act were mandatory or directory. Prosecuting counsel submitted that the absence of a signature was of no consequence since, with the form signed by the High Court judge in his possession, the proper officer had had nothing to consider and had had no choice but to sign it. Lord Lane, however, observed (p 13):
"It seems to us that that argument to some extent tends to beg the question. Either the words are mandatory or they are not. If they are mandatory, it does not matter that there is nothing left for the proper officer to do except to sign. If on the other hand they are not mandatory, then it does not matter that there is something left for the officer to do and he still does not sign the indictment".
Prosecuting counsel went on to cite Liverpool Borough Bank v Turner (1860) 2 De GF&J, 502 at pp 507-508, 45 ER 715, 718, where the court was enjoined by Lord Campbell LC to look at the importance of the provisions in question and to look at the real intention of the legislature in deciding what the consequences of non-compliance were intended to be. This was the approach which the court followed. As Lord Lane put it (at p 14 of his judgment)
"The answer, we feel, is to be found in the intentions of the draftsman in the first place. 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."
Recognising the technicality of the defect, the court ordered a venire de novo so that the case would be tried again.
"4. The outcome of each of these cases essentially depends on the proper application of the principle or principles to be derived from the decision of the House of Lords in R v Soneji  1 AC 340, together with the earlier decision of this court in R v Sekhon  1 WLR 1655. Indeed, these three applications demonstrate how far-reaching the effect of those authorities is likely to be whenever there is a breakdown in the procedures whereby a defendant's case progresses through the courts (as opposed to the markedly different situation when a court acts without jurisdiction). In our judgment it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised ('a procedural failure'), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.
5. On the other hand, if a court acts without jurisdiction-if, for instance, a magistrates' court purports to try a defendant on a charge of homicide-then the proceedings will usually be invalid."
R v Sekhon  EWCA Crim 2954,  1 WLR 1655 concerned a number of errors in the conduct of confiscation proceedings, some of which were held to be excusable procedural errors and others to be errors depriving the court of jurisdiction. R v Soneji  UKHL 49,  1 AC 340 concerned the same subject matter. The cases are significant in their rejection, building on dicta of Lord Hailsham of St Marylebone LC in London & Clydeside Estates Ltd v Aberdeen District Council  1 WLR 182, 189-190, the judgment of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, para 93, and the decision of the Court of Appeal in R v Secretary of State for the Home Department, Ex p Jeyeanthan  1 WLR 354, of the old approach of asking whether procedural requirements were mandatory or directory, instead asking what Parliament intended the consequence to be of non-compliance with the requirement in question. While I would myself express the decision to be made rather differently, I would accept the general validity of the distinction drawn by Fulford J in the paragraphs of his judgment quoted above. Many errors pertaining to indictments fall squarely into the procedural category, as exemplified by cases such as R v Sheerin (1976) 64 Cr App R 68, R v Soffe (1982) 75 Cr App R 133, R v Farooki (1983) 77 Cr App R 257 and R v Laming (1989) 90 Cr App R 450.
"(1) Subject to paragraph 13 below, this paragraph applies where -
(a) a person has been sent for trial under section 51 of this Act but has not been arraigned; and
(b) the person is charged on an indictment which (following amendment of the indictment, or as a result of an application under paragraph 2 above, or for any other reason), includes no offence that is triable only on indictment
(3) The court shall cause to be read to the accused each count of the indictment that charges an offence triable either way "
Counsel for the Crown (then as now Mr Perry) accepted (para 66) that the procedure envisaged by paragraph 7 of Schedule 3 was premised on the existence of an indictment, but argued that the absence of an indictment, of itself and without more, did not affect the validity of the proceedings because this would not accord with the intention of Parliament and no prejudice had been caused to the defendant such as to make it unjust for the convictions to stand. Fulford J in his judgment recited the terms of section 2(1) of the 1933 Act and continued:
"74 As Mr Perry has helpfully reminded us, there are several authorities which suggest that the absence of a valid indictment renders any subsequent trial a 'nullity': R v Thompson  1 WLR 1425; R v Cairns (1983) 87 Cr App R 287; R v Morais (1988) 87 Cr App R 9; R v Newland  QB 402.
75 In R v Morais 87 Cr App R 9, the Court of Appeal quashed the appellant's conviction for supplying drugs and ordered a retrial on the basis that the indictment had not been signed by the officer of the Crown Court. In that case the court concluded that the proper officer's signature was not 'a comparatively meaningless formality' but a 'necessary condition precedent to the existence of a proper indictment' (p 14) and that in the absence of a proper indictment the trial was a nullity.
76 The decision in R v Morais was distinguished in R v Jackson (Andrew)  2 Cr App R 497. The judge directed the proper officer to sign two indictments but she failed to do so. This court held that the proper officer's signature was a 'meaningless' clerical 'formality' and she was deemed to have signed it. In R v Laming (1989) 90 Cr App R 450, the appropriate officer of the Crown Court signed the indictment on the front page rather than after the last count as required by the Indictment Rules 1971 (SI 1971/1253). On those facts, the court on appeal determined that the indictment was valid.
77. As Mr Perry has submitted, it appears, therefore, that even before the decisions in R v Soneji  1 AC 340 and R v Sekhon  1 WLR 1655 not every defect in an indictment would necessarily render it invalid, although the earlier authorities consistently made it clear that the absence of a valid indictment had the effect of rendering the trial proceedings of no legal effect. That conclusion was reached because the primary focus of the court in each of the cases was on whether the breach was of a 'mandatory' statutory provision. As we have set out above, the sea change wrought by the decisions in Soneji and Sekhon is that the court should concentrate in future on, first, the intention of Parliament (viz was it intended that a procedural failure should render the proceedings invalid) and, second, the interests of justice and particularly whether the procedural failure caused any prejudice to any of the parties, such as to make it unjust to proceed further.
78. Here, the judge and the parties proceeded on the basis that the charges before the court identified the criminality alleged by the prosecution and it was accepted there was no prejudice to the defendant in this particular case when the court dealt with him absent an indictment. We stress that usually a bill of indictment should be preferred and signed and our decision in this case should not be taken as any kind of encouragement to relax that important requirement: an indictment provides a critical safeguard in that it describes the charges an accused faces with clarity and finality. However, applying the test we have described above, there are no indications that Parliament intended that proceedings would be rendered automatically invalid because an indictment had not been preferred or signed, and given no prejudice or consequential injustice have been identified, we see no reason to quash these convictions."
Leave was accordingly refused.
"30. The implications of the approach advocated in Soneji will need to be worked out in the many different circumstances in which parties rely on breaches of the rules, whether the rules appear in a statute or elsewhere. The case does, however, weaken the strict distinction between mandatory and directory requirements, consideration of which was at the heart of the decision in Morais. Whatever its implications in other circumstances, we consider that, in the present situation, we are bound by the decision of this court in Ashton, which is based on Soneji.
31. If the principle covers Ashton, where there was not even a document which purported to be an indictment, it covers the present situation in which a bill of indictment has been lawfully preferred with the consent of a High Court Judge, who initialled the bill accordingly, but the bill has simply not been signed by the officer of the court. The absence of that signature was a situation specifically contemplated by the court in Ashton, at paragraph 78. Applying Ashton, the proceedings are not rendered automatically invalid because the indictment had not been signed. No prejudice or consequential injustice having been identified, the convictions should stand.
32. We add that, given the 'sea-change' identified in Ashton, the signature, in the course of the trial, of an amended indictment by the proper officer of the court, is material. It was upon an indictment signed, and properly so-called, that convictions were entered. In the absence of prejudice to the defendants, we would also hold that the proceedings were thereby validated. That approach has something in common with the approach of the court in Jackson where a fiction was employed to create an indictment within the meaning of section 2(1) of the 1933 Act."
LORD SCOTT OF FOSCOTE
LORD RODGER OF EARLSFERRY
"The grand jury sit by themselves and hear the witnesses one at a time, no one else being present except the solicitor for the prosecutor if he is admitted. The name of each witness examined before the grand jury is initialled by the foreman; and when they have heard enough to satisfy themselves that a prima facie case is or is not made out against the prisoner, they endorse upon the indictment ' a true bill,' or ' no true bill,' as the case may be (in the days of law Latin the endorsements were 'Billa Vera', or 'Ignoramus'), and come into court and hand the indictments to the clerk of assize or clerk of the peace, who says, 'Gentlemen, you find a true bill,' or 'no true bill' as the case may be, 'against A. B. for felony or misdemeanour.' If the finding is 'no true bill,' the matter drops and the prisoner is discharged, though he is liable to he indicted again. If the finding is 'a true bill,' the trial proceeds and the 'bill' becomes an indictment."
The indorsement of the grand jury was parcel of the indictment and the perfection of it: Huband, op cit, p 188; R v Ford ( 1607) Yelverton 99. The bill had to be delivered in open court as the finding of the grand jury: Huband, p 189; R v Thompson (1846) 1 Cox CC 268. In some assize courts in Northern Ireland it was literally handed down from the gallery of the court, placed in a clip at the end of a long pole held by a tipstaff in the body of the court. It was the affirmation of the bill in court which constituted the indictment, not the words of the indorsement, which were only evidence of the assent or dissent of the grand jury: 2 Hale PC 162. Accordingly the bill was good even if not signed by the foreman, when it had been delivered in court and read in his presence: Giuseppe Sidoli's Case (1833) 1 Lewin 55, and cf Jane Denton's Case (1823) 1 Lewin 53.
"Subject to the succeeding provisions of this section, an indictment may, notwithstanding anything to the contrary in any enactment or rule of law, be presented to [the Crown Court] although not found by a grand jury."
Section 2(2), which is similar to section 2(2) of the English 1933 Act, specifies the conditions one of which must be satisfied before an indictment may be presented, the most important of which are that the person charged has been committed for trial or that the indictment is presented with the leave of a judge. Subsection (3) gave specific power to a judge to order an entry of "No Bill" in the Crown book if satisfied that the depositions or committal statements do not disclose a case sufficient to justify putting the accused on trial. Finally, subsection (8) preserved the procedure formerly adopted, save as provided by section 2. That procedure was governed by the Indictments Act (Northern Ireland) 1945 and the rules made thereunder, now replaced by the Crown Court Rules (Northern Ireland) 1979. Nowhere in these provisions is there any requirement for the bill of indictment to be signed by any person, nor has there ever been a practice of signature, save that a judge giving leave to present a voluntary bill generally signs the bill at the conclusion of the leave hearing.
LORD BROWN OF EATON-UNDER-HEYWOOD
"...Parliament must, in legislating as it did, have recognised the risk that hard cases, such as Mr Seal's, may occur, but have considered the occasional occurrence of such a case to be a price worth paying for the reassurance and protection given by [the relevant sections] to those whose very important and often difficult task it is to care for the mentally ill."
I myself (at para 74) described the requirement as being "to safeguard prospective defendants from being faced with proceedings (which might not be sufficiently meritorious to deserve leave) unless and until a High Court judge thought it appropriate that they be issued."