House of Lords
Published February 7, 2008
Regins v Clarke Regina v McDaid
Before Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell and Lord Brown of Eaton-under-Heywood
Speeches February 6, 2008

Where there had been no signed indictment during most of a criminal trial, the proceedings were invalid.

The House of Lords allowed consolidated appeals by Ronald Augustus Clarke and James Andrew Francis McDaid from the dismissal by the Court of Appeal, Criminal Division (Lord Justice Pill, Mrs Justice Dobbs and Mr Justice Underhill) ([2006] EWCA Crim 1196), on references by the Criminal Cases Review Commission, of their appeals against their convictions on April 23, 1997 at Worces-ter Crown Court (Judge Mott and a jury).

Mr Joel Bennathan, QC and Mr Peter Wilcock for the appellants; Mr David Perry, QC and Mr Duncan Penny for the Crown.

LORD BINGHAM said that the appellants had each been convicted of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861 and sentenced to 12 years in prison. Mr Clarke had received a concurrent sentence for another offence, and Mr McDaid a consecutive sentence of two years for other offences, When their trial had begun, although leave to prefer voluntary bills had previously been given on two occasions, there had been no signed indictment before the court. The evidence had ended on Friday, April 18. On Monday, April 21, the appellants had been arraigned on an additional, but alternative, count of inflicting grievous bodily harm, contrary to section 20 of the 1861 Act. The existing form of indictment had then been amended by leave of the judge and a copy had been signed by the proper officer.

The questions were whether the absence of a signed indictment at the outset of and during most of the trial had had the legal effect of invalidating the proceedings, and, if so, whether such invalidity had been cured by the late signature. Historically, almost all cases had come before a judge and trial jury following consideration of the proposed charges by a grand jury, the charges being set out in what was called a bill of indictment. If the grand jury thought that the case should go to trial, they wrote on it “a true bill” and handed it down, when it became an indictment.

By the early 1930s grand juries were generally agreed to have outlived their usefulness. Section 1(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933 had abolished them. Section 2(1) provided for the preferment of bills of indictment and: “where a bill of indictment has been ... 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...” Subsection (2) 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...”

The answer given by section 2(1) to the question in the present case would appear to be very clear: a bill of indictment would become an indictment when duly signed by a a proper officer of the court. That reading was consistent with sections 1(1) and 2(3) and strengthened by the legislative history of those provisions.

There was, as the Court of Appeal had observed in R v Stewart ((1990) 91 Cr App R 301, 304, 306), a fundamental distinction between the preferment of a bill of indictment and the signing of the bill: it was the signing of the bill that converted it into an indictment.

It was always, of course, lamentable if defendants whose guilt there was no reason to doubt escaped their just deserts, although the present appellants had now served the operative parts of their sentences.

Technicality was always distasteful when it appeared to contradict the merits of a case, but the duty of the court was to apply the law, which was sometimes technical, and it might be thought that if a state exercised its coercive power to put a citizen on trial for serious crime a certain degree of formality was not out of place.

It was inescapable that Parliament had intended that a bill should not become an indictment unless and until it was duly signed by the proper officer and that, if there were no indictment, there could be no valid trial on indictment.

The decisions in R v Sekhon ([2003] 1 WLR 1655) and R v Soneji ([2006] 1 AC 340) were valuable and salutary, but they did not warrant a wholesale jettisoning of all rules affecting procedure irrespective of their legal effect. His Lordship could see no basis on which the Court of Appeal in R v Ashton ([2007] 1 WLR 181 could properly depart from the precedent in R v Morais ((1988) 87 Cr App R 9), which was clearly binding on it. The court in the present case had, as a result, been placed in a difficult position. The decision in R v Morais was correct.

The appellants having been arraigned and tried without a valid indictment, his Lordship did not think that the somewhat adventitious addition of a signature at the eleventh hour, without, one assumed, any consideration of the counts already in the document, could throw a blanket of legality over the invalid proceedings already conducted.

Parliament had had many opportunities to reverse the effect of Moraisand the cases preceding it but had not chosen to do so. It might now be prompted to.

Lord Scott agreed with Lord Bingham; Lord Rodger and Lord Brown delivered speeches agreeing with Lord Bingham and Lord Carswell delivered a concurring opinion.

Solicitors: Hadgkiss Hughes & Beale, Moseley, Birmingham; C rown Prosecution Service, Headquarters.

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