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Invalidity of The Indictment Post R. V. Newland
Published online by Cambridge University Press: 16 January 2009
Extract
It is uncontroversial to state that the Court of Appeal (Criminal Division) has never been sympathetic to unmeritorious appeals. Numerous cases may be cited where the appellant, having made out a valid ground of appeal based purely upon a technical defect in the trial, is met with the rejoinder that the appeal is wholly without merit and that the conviction will be upheld by the application of the proviso to section 2(1) of the Criminal Appeal Act 1968. Serious defects in the trial including the failure of the trial judge to give a direction on the standard of proof, wrongful admission of the defendant&s previous bad character, and even conviction for an offence which technically did not exist, have all been amenable to the application of the proviso on the ground that, despite the defect, no injustice has been done.
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References
1 See Spencer “Criminal Appeals: The Tail that Wags the Dog” [1982] Crim.L. R. 26 who suggests that the Court of Appeal has avoided upholding unmeritorious appeals at the expense of clarity in the law.
2 R. v. Edwards [1983] 77 Cr.App.R. 5.
3 Stirland v.D.P.P. [1944] A.C. 315.
4 R. v. Ayres [1984] A.C. 447.
5 (1988) 87 Cr.App.R. 118.
6 per Watkins L.J. at 121.
7 Rule 9 of the Indictment Rules 1971 provides: “Charges for any offences may be joined in the same indictment if those charges are founded on the same facts or form or are part of a series of offences of the same or similar character.”
8 Section 5(3) states: “Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment the court may order a separate trial of any count or counts of such an indictment.”(Emphasis added.)
9 at 12.
10 at 124.
11 On the power of the Court of Appeal to order a venire de novo see Cooke, R. B., “Venire de Novo”(1955) 71 L.Q.R. 100, cited with approval by Lord Diplock in R. v. Rose [1982] A.C. 822.Google Scholar
12 The Court of Appeal has long had a discretion to quash the conviction and refuse a retrial on the grounds that it would be oppressive: R. v. Golathan (1915) 11 Cr.App.R. 79; R. v. King (1920) 15 Cr.App.R. 13; R. v. McDonnell (1928) 20 Cr.App.R. 163; R. v. Wilde (1933) 24 Cr.App.R. 98; R. v. Olivo (1942) 28 Cr.App.R. 173; R. v. Heyes [1951] 1 K.B. 29. (See further Cooke, op.cit., 119.) In Rose (ante, note 11) the respondent's counsel argued that where a mistrial occurs, there is an inherent jurisdiction to restrain the prosecution from further proceedings. It is suggested that if the prosecution relied upon the original indictment for a subsequent trial without instruction from the Court of Appeal, the attempted re-prosecution would amount to an abuse of process of the court and would be stopped. The defendant cannot, however, rely upon autrefois acquit or convict.
13 (1990) 90 Cr.App.R. 40.
14 Section 5(1) provides: “Where, before trial or at any stage of the trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case.”
15 The leading case where the indictment was a nullity because it was preferred without authority is R. v. Morais (1988) 87 Cr.App.R. 9. (The indictment was not signed by the appropriate officer of the court). See also R. v. Jones and Jones [1993] Crim.L.R. 780 and R. v. Laming (1990) Crim.L.R. 416.
16 References to an invalid indictment in Newland and O'Reilly must refer to a defective indictment as the misjoined indictment can be cured by amendment under section 5(1). (See Newland at 122). As the Indictments Act only refers to defective indictments this term is adopted in the following analysis.
17 (1960) 44 Cr.App.R. 201 (the case was considered by a five-man Court of Appeal).
18 (1977) 65 Cr.App.R. 119 (possession of an offensive weapon contrary to Section 1 of the Prevention of Crime Act 1953). Rule 6 of the Indictment Rules 1971 provides: “Where a specific offence with which an accused person is charged by or under an enactment then…(a) the statement of the offence shall contain a reference to the section of the Act creating the offence in the case of an offence created by a provision of the Act.”
19 See further R. v. Molyneux and Farnborough (1981) 72 Cr.App.R. 111; R. v. McLaughlin (1983) 76 Cr.App.R. 42; R. v. Ayres [1984] A.C. 477. In each the proviso was applied to an appeal on a defective indictment.
20 The Editors of Archbold (44th ed.), in attempting to reconcile Newland with the majority of cases on defects in the indictment, suggest (at 1–217): “It may be that rule 9 is a special case because it is a permissive rule; there being no power to join separate charges laid against a defendant otherwise than in accordance with that rule.”
21 On unanimity see, inter alia, R. v. Brown (1984) 79 Cr.App.R. 115; R. v. More (1988) 86 Cr.App.R. 234 and J.C. Smith [1988] Crim. L.R. 335.
22 see ante note 8.
23 In contrast to the prejudice inherent in duplicity a defendant who pleads guilty to a misjoined indictment suffers no prejudice. Where the defendant pleads not guilty, misjoinder “might embarrass a man in the trial if he was accused of several things at once and frequently the mere fact of accusing of several things, was supposed to increase the probability of being found guilty” per Blackburn, Lord in Castro v. R. (1881) L.R. 6 A.C. 229 at 244–245. (emphasis added). The likelihood of this prejudice was doubted by Lord Pearson in Ludlow v. M.P.C. (1970) 64 Cr.App.R. 233 at 244.Google Scholar
24 [1914] 2 K.B. 99.
25 In the majority of cases the proviso will not be applied to duplicity cases because of the potential prejudice to the defendant. See Williams, G. “The Duplicity Rule and the Count System” [1966] Crim. L.R. 255 and see R. v. Wilmot (1933) 24 Cr.App.R. 63.Google Scholar
26 (1986) 82 Cr.App.R. 123.
27 In R. v. Ballysingh (1953) 37 Cr.App.R. 28, a case involving “a small campaign of shoplifting”, Lord Goddard L.C.J. held, applying Thompson, that there was no embarrassment or prejudice to the defendant and that “it would reduce the law to a matter of technical absurdity if the appellant could… ask the court to set aside the verdict on the ground that there ought to have been separate counts”(at 30). The proviso was applied. It was considered significant that “the defendant's counsel had agreed to fight the case on an indictment as it stood”(at 30). As in Asif there would be little risk of prejudice. They may be contrasted with O'Reilly (ante) where the failure to re-arraign, despite the agreement of defence counsel that it was not necessary, was considered fatal and rendered the proceedings a nullity.
28 Appeals on the indictment are on point of law and are therefore one of the few appeals that do not require leave from the Court of Appeal. See Criminal Appeal Act 1968, s. 1(2)(a). The remedy of ordering a venire do novo is frequently inadequate as it involves the expense and delay of a retrial. In criminal courts, already seriously overloaded, it is likely that it will be reserved for only the most serious offences and many culpable defendants, such as in Newland, will have their convictions quashed and no further action taken.
29 (1984) 78 Cr.App.R. 305.
30 (1986) 83 Cr.App.R. 38.
31 [1982] A.C. 822.
32 32 at 833.
33 at 122.
34 (1989) 88 Cr.App.R. 310.
35 Ibid. at 314.
36 [1921] 2 A.C. 299.
37 at 831.
38 Similarly, trying two or more indictments simultaneously results in nullity as there is no jurisdiction to arraign a defendant upon two indictments: R. v. Morton (1920) 15 Cr.App.R. 13; R. v. McDonnell (1928) 20 Cr.App.R. 163; R. v. Wilde (1933) 24 Cr.App.R. 98; R. v. Olivo (1942) 28 Cr.App.R. 173.
39 [1993] Crim. L.R. 533.
40 As in R. v. Morais (1988) 87 Cr.App.R. 9. Consider also R. v. Thompson and Clein (1975) 61 Cr.App.R. 108 where a circuit judge, in want of jurisdiction, purported to give leave to prefer a bill of indictment; the resulting trial was null. Similarly see R. v. Lombardi (1989) Cr.App. R. 179 (indictment preferred by prosecution contrary to section 2(2) of the Administration of Justice (Miscellaneous Provisions) Act 1933).
41 In Williams the court expressed its regret in the lack of merit in the appeal when quashing the conviction but did not consider avenire de novo to be appropriate.
42 Where misjoinder occurs in future, leave may be given to prefer fresh (valid) indictments covering the offences in question. The prosecution may then elect which indictment to proceed upon and the original defective indictment may be stayed. See R. v. Follett (1989) 88 Cr.App.R. 310.Google Scholar
43 Attempts have been made to limit the potential application of Newland in relation to joinder of summary offences to indictable offences under section 40 of the Criminal Justice Act 1988. InR. v. Callaghan (1992) 95 Cr.App.R. 226 it was held that misjoinder under section 40 (though not under rule 9) did not render arraingment upon the indictment a nullity.Google Scholar (For a contrary decision see R. v. Lewis (1992) 95 Cr.App.R. 131). In R. v. Simon [1993] Crim. L.R. 444 it was suggested that Lewis was per incuriam Callaghan and that section 40 misjoinder did not render arraignment upon the whole indictment a nullity.Google Scholar
44 Amended by Criminal Justice Act 1988, s. 43. Retrial may now be ordered following any successful appeal.