R v Clarke (Appellant) (On Appeal from the Court of Appeal (Criminal Division))R v McDaid (Appellant) (On Appeal from the Court of Appeal (Criminal Division))(Consolidated Appeals)

Under sections 1 and 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933, a bill of indictment becomes an indictment only when signed by the proper officer. The signature is an indispensable condition precedent, rather than a dispensable procedural formality.

A trial on indictment begun without a signed indictment is invalid. The absence of prejudice cannot cure the defect, and signing an amended bill near the end of the trial does not validate the earlier proceedings retrospectively. The modern inquiry into the legislative consequences of procedural non-compliance does not remove statutory conditions essential to the court's authority to conduct a trial on indictment.

The appellants were convicted in the Crown Court of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861. Although leave to prefer voluntary bills had been granted, no bill had been signed by the proper officer when the trial began or during most of the evidence. An amended bill was signed only after the evidence had concluded and shortly before the convictions.

The Criminal Cases Review Commission referred the convictions to the Court of Appeal. That court dismissed the appeals in [2006] EWCA Crim 1196, holding that the omission caused no prejudice and that the late signature validated the proceedings.

The consolidated appeals asked whether the absence of a signed indictment invalidated the trial and, if so, whether the late signature cured that invalidity.

1. The appeals were allowed and the convictions quashed. Lord Bingham delivered the leading speech. Lord Scott, Lord Rodger, Lord Carswell and Lord Brown agreed that the proper officer's signature was indispensable.

2. Per Lord Bingham, sections 1 and 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 draw a fundamental distinction between preferring a bill and signing it. A preferred bill has no legal effect as an indictment. Under section 2(1), it becomes an indictment only when the proper officer signs it after satisfying himself that the statutory requirements have been met. The signature replaced the former authentication and presentment of a true bill by a grand jury.

3. Parliament intended two consequences. First, an unsigned bill does not become an indictment. Secondly, without an indictment there can be no valid trial on indictment. These conclusions followed from the statutory language, legislative history and the long-standing authorities culminating in R v Morais.

4. The approach in R v Soneji, [2005] UKHL 49, requires the court to ask whether invalidity was an intended consequence of breach, rather than merely classifying a requirement as mandatory or directory. Per Lord Bingham and Lord Rodger, that approach supported rather than displaced R v Morais. It did not authorise the wholesale disregard of procedural rules irrespective of their legal effect.

5. The contrary conclusion in R v Ashton, R v Draz and R v O'Reilly, [2006] EWCA Crim 794, could not stand. That court had misunderstood R v Morais and had no proper basis for departing from a binding decision. The absence of prejudice could not make an unsigned bill an indictment.

6. R v Jackson remained correctly decided on its exceptional facts. The relevant charges had already appeared in signed indictments, and the trial judge had directed the proper officer to sign the replacement bills. Those circumstances did not exist in the present appeals.

7. The signature added near the end of the trial did not retrospectively validate the arraignment and evidence conducted without an indictment. Lord Carswell agreed that the signature was an essential part of preferment. Lord Brown regarded it as a condition precedent comparable to a statutory consent required before valid proceedings may begin.

1. House of Lords: The consolidated appeals were allowed unanimously in [2008] UKHL 8. The convictions were quashed.
2. Court of Appeal (Criminal Division): The appeals referred by the Criminal Cases Review Commission were dismissed in [2006] EWCA Crim 1196. The court held that the omission of the signature caused no prejudice and that the subsequent signature validated the proceedings.
3. Crown Court at Worcester: Each appellant was convicted of causing grievous bodily harm with intent under section 18 of the Offences against the Person Act 1861. The trial began without a signed indictment; an amended bill was signed after the evidence had concluded.