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Clarke, R v

Clarke, R v

Case [2008] UKHL 8

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On 23 April 1997 in the Crown Court at Worcester each of the appellants was convicted by a jury of causing grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861. For that offence each was sentenced to 12 years' imprisonment. The first appellant received a concurrent sentence for another offence and the second appellant received a consecutive sentence of 2 years' for other offences, making a total sentence in his case of 14 years'. For the purposes of this appeal, referred to the Court of Appeal by the Criminal Cases Review Commission, it is accepted that when the trial of the appellants began in April 1997, although leave to prefer voluntary bills had previously been given on two occasions, there was no signed indictment before the Crown Court. The evidence at the trial ended on Friday 18 April. On Monday 21 April 1997 the appellants were 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 was then amended by leave of the trial judge, a copy of the form as amended was signed by the proper officer of the court and the amended form was treated as the indictment upon which the jury convicted (although not on the added count). The short questions to be resolved in this appeal thus arise: whether the absence of a signed indictment at the outset of and during most of the trial had the legal effect of invalidating the proceedings? And, if so, whether such invalidity was cured by the late signature of the proper officer?

At the heart of the issues to be decided lie sections 1 and 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 which, as enacted and omitting provisions not immediately germane to this appeal, provide:

"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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] UKHL 8
Decision Date