Goldstone & Ors, R. v

A High Court judge’s common-law power to permit a Voluntary Bill of Indictment is preserved by statute. After charges have been dismissed following transfer to the Crown Court, the power is exceptional and cannot be used as a general appeal on the evidence or as a means of reviewing alleged irrationality in the lower court’s assessment.

Exceptional circumstances may include an obvious error of law, serious procedural error, or significant fresh evidence which, viewed with the existing evidence, provides a satisfactory case for trial. The absence of an interlocutory prosecution appeal under the Criminal Justice Act 2003 reinforces the restrictive approach. A challenge based only on alleged Wednesbury unreasonableness falls outside the proper scope of the power.

The Crown applied for Voluntary Bills of Indictment against Goldstone, Ponder, Naghibossadat and Frost after charges of cheating the public revenue had been dismissed by His Honour Judge Higgins under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998. The proposed charges concerned alleged missing trader intra-community VAT fraud involving mobile telephones.

The Crown did not allege a basic error of law, significant fresh evidence or procedural irregularity. Its case was that the dismissals were Wednesbury unreasonable and that a jury could properly convict. The central issue was whether that alleged error in evaluating the evidence justified the exercise of the High Court’s power to permit Voluntary Bills.

1. The applications for Voluntary Bills of Indictment were dismissed.
2. The power of a High Court judge to prefer a Voluntary Bill is a common-law power preserved, rather than created, by statute. Its statutory preservation does not widen the circumstances in which the power should be exercised.
3. The dismissal test under paragraph 2(2) of Schedule 3 to the Crime and Disorder Act 1998 is materially the same as the test applied on a submission of no case to answer. The judge must evaluate the whole of the evidence and ask whether a jury could properly convict. This is an exercise of judgment, not discretion, and the judge must assess the sufficiency and possible inferences from the evidence without substituting his own verdict for that of the jury.
4. Following transfer or sending to the Crown Court, a decision dismissing or refusing to dismiss a charge concerns trial on indictment and is not amenable to judicial review. The defendant’s safeguards lie in the trial process and, after conviction, appeal.
5. After dismissal following transfer, a Voluntary Bill should be permitted only in an exceptional case. Examples include an obvious error of law, serious procedural error, or significant fresh evidence which, taken with the evidence as a whole, provides a satisfactory body of evidence for trial. A general attack on the lower judge’s evaluation of the evidence, even if described as irrational or Wednesbury unreasonable, is insufficient.
6. The absence of a prosecution right of interlocutory appeal after dismissal following transfer, contrasted with the limited appeal introduced by section 58 of the Criminal Justice Act 2003, supports the restrictive approach. Allowing general merits review would create delay, cost and uncertainty in criminal proceedings.
7. On the limited material before the court, the lower judge’s conclusions were not shown to be erroneous or irrational in any event.