Clarke & Anor, R. v

A procedural failure does not automatically invalidate criminal proceedings unless Parliament intended that consequence. The court must assess the purpose of the requirement and whether the failure caused prejudice or consequential injustice.

Accordingly, an unsigned bill of indictment which was lawfully preferred is not necessarily fatal. Where the accused knew the charges, no prejudice or injustice is shown, and a properly signed amended indictment was used for conviction, the proceedings may stand.

The appellants had been convicted at Worcester Crown Court of causing grievous bodily harm with intent. Clarke was also convicted of perverting the course of justice, and McDaid of criminal damage offences.

The Criminal Cases Review Commission referred the convictions under section 9 of the Criminal Appeal Act 1995 because there was cogent evidence that the bill of indictment on which the trial began may not have been signed by a proper officer of the court. The court proceeded on that basis.

The central issue was whether the absence of the officer’s signature made the trial and convictions a nullity, despite the later signing of an amended indictment during the trial.

1. The appeals were dismissed. The court was bound by R v Ashton & Ors [2006] EWCA Crim 794, which applied the approach in Soneji [2005] UKHL 49.
2. The former mandatory-or-directory analysis was no longer decisive. The correct inquiry was whether Parliament intended the procedural breach to invalidate the proceedings, followed by an assessment of the interests of justice, especially prejudice to either party.
3. The bill had been lawfully preferred with a High Court judge’s consent. Although it was assumed that the proper officer had not signed it before trial, the lack of signature did not automatically invalidate the proceedings. There was no identified prejudice to either appellant and no consequential injustice.
4. The court therefore did not follow the strict consequence stated in R v Morais (1988) 87 Cr App R 9. The later signature of the amended indictment was also material. The convictions were entered on a properly signed indictment, and this independently validated the proceedings in the absence of prejudice.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, the court dismissed the appeals and upheld the convictions: [2006] EWCA Crim 1196.
• Crown Court at Worcester: The appellants were convicted before Judge Mott and a jury.
• Earlier appeal process: An application for leave to appeal against conviction was refused by a single judge and, on renewal, by the full court. The unsigned-indictment point was not then taken.