The importance of implementing the letter of the law should not be underestimated, say Peter Wilcock and Joel Bennathan QC
In the recent case of R v Clarke & McDaid (2008) The Times, 7 February the House of Lords unanimously confirmed that the absence of a signed indictment, as required by s 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933, had the legal effect of invalidating the proceedings. In doing so their lordships confirmed the approach to procedural irregularities set out in the well-known cases of R v Sekhon (2003) 1 WLR 1655, [2002] All ER (D) 233 (Dec) and R v Soneji (2006) 1 AC 340, [2006] All ER (D) 390 (Mar) as “valuable and salutary”, but stated that “the effect of the sea-change which they wrought has been exaggerated and they do not warrant a wholesale jettisoning of all rules affecting procedure irrespective of their legal effect”.
Thus the implications of this decision are not confined to the narrow issue of the effect of a failure to sign an indictment but also have a bearing on the approach of the courts to technical breaches as a whole. As the House of Lords noted, “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” (Para 17).
THE RECENT APPROACH TO PROCEDURAL ERRORS
Criminal practitioners will be familiar with the trend identified by Lord Woolf CJ in Sekhon when he stated that “we would expect a procedural failure only to result in a lack of jurisdiction if this was necessary to ensure that the criminal justice system served the interests of justice and thus the public or where there was at least a real possibility of the defendant suffering prejudice as a consequence of a procedural failure.” Indeed, recent cases exemplifying what Professor Ormerod has called “the new, flexible, justice-driven approach to procedural error” are all predicated on an assumption that the “interests of justice” required the various procedural errors identified in those cases to be retrospectively rectified so that the court was still able to deal with the defendant (see Fehily v Governor of Wandsworth Prison [2003] 1 Cr App R 10, C (2006) EWCA 2132; and Thwaites (2006) EWCA Crim 3235, [2006] All ER (D) 313 (Nov)).
It was in this context that the Court of Appeal in the conjoined appeals of R v Ashton; R v Draz and R v O’Reilly (2006) 2 Cr App R 15 concluded that following Sekhon and Soneji “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”.
Thus in Draz the appellant’s conviction was upheld even though the effect of the procedural error in that case was that there was no indictment before the crown court at the time the appellant was proceeded against. When Clarke & McDaid came before the Court of Appeal, Lord Justice Pill stated that “the implications of the approach 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”. Having considered this approach the appeal judges concluded that they were bound to follow Ashton and uphold the appellant’s conviction since “no prejudice or consequential injustice” to the appellants had been identified.
PARLIAMENTARY INTENTION
The problem in Clarke & McDaid arose because of the assertion by the Court of Appeal in Draz (para 77) that “there are no indications that Parliament intended that proceedings would be rendered automatically invalid because an indictment had not been preferred or signed...”. Until this decision it had been settled authority that “a necessary condition precedent to the existence of a proper indictment, [was] that the bill should be signed and only then and thereupon does it become an indictment” (R v Morais (1988) Cr App R 9).
The irony of the rejection of Morais in Ashton was that it ignored the fact that, somewhat presciently, the decision in Morais was not based on a pre-Soneji analysis of whether the provisions requiring an indictment to be signed were directory or mandatory. Rather Morais was based on an analysis of Parliament’s intention in requiring an indictment to be signed exactly as Soneji was to advocate many years later. As Lord Lane stated in Morais:
“It seems to us that (the requirement of an Indictment to be signed) 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, [s 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933] 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.”
As their lordships set out in detail in Clarke & McDaid the legislative history of these provisions strengthened the conclusion that absent the required signature there is no formal indictment. Therefore the intention of Parliament was that failure to ensure a defendant was tried on a signed indictment would result in any subsequent proceedings being invalidated. Indeed they pointed out that Parliament has had many opportunities over the past two decades to reverse the effect of R v Morais had it chosen to do so. It has not. As such it was not for the courts to erode Parliament’s clear intention by “piecemeal judicial decisions”.
ENFORCING PROCEDURAL REQUIREMENTS
Criminal practitioners will be aware that procedural default in the prosecution of criminal proceedings “appears, regrettably, to be by no means exceptional” (Fehily at para 50). Indeed, for every decision that individual procedural or technical errors do not invalidate criminal proceedings there is an accompanying plea that those decisions should not tempt anyone on behalf of the Crown to feel that it can relax and enjoy a safety net notwithstanding its breach of the statutory requirements. As has been observed by other legal commentators, the recent shift in attitude to procedural error exemplified by Ashton is partly a response to individual examples of professional and judicial failure to keep abreast of constantly changing criminal justice legislation bolstered by “popularist reasoning that Parliament could not have intended that the guilty should go free on a technicality. The other way of looking at it is that Parliament assumed that the rules it laid down for bringing citizens compulsorily before the courts for possible conviction and punishment would be capable of being understood and adhered to by prosecutors and judges alike and furthermore intended that they should be” (James Richardson, Criminal Law Week, issue 15, 24 April 2006).
FUNDAMENTAL IMPORTANCE
This was certainly the case when Parliament required an indictment to be signed before a valid trial could commence. While all their lordships all expressed sympathy with an approach that “eschews formalism and technicality” they were nevertheless clear that the requirement for an indictment to be signed was fundamental to the criminal process. Their lordships recognised that their decision “will produce from time to time unsatisfactory results. Guilty men may go free or if not free have to be retried following a venire de novo [as was ordered in Morais itself]. A retrial will involve delay, expense and inconvenience and may cause particular witnesses...considerable distress”. On the other hand, they observed that “the problem is easily enough avoided and will only occur if the Crown is at fault”. The decision in Clarke & McDaid is thus a timely reminder that not all procedural requirements are mere technicalities so as to enable them to be ignored without real consequence. There are a core bundle of formalities which have to be observed if the law is to be a regulated and formal process as the robust adversarial nature of the English legal tradition requires.
It may well be that the facts of this individual case are swiftly met by an amendment to the next Criminal Justice Act allowing unsigned indictments to found convictions.
Such an Act is (just for a change) currently wending its way through the legislative process. Yet the fundamental importance of so authoritative a reassertion of respect for formality will remain. Unless Parliament is willing to draft an Act that will allow the courts to avoid the words of a statute, Clarke & McDaid will continue to catch out judges or prosecutors who fail to understand or implement the letter of the law.
