Clarke, R v

The House held that under sections 1 and 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 a bill of indictment does not become an indictment until it has been signed by the proper officer. In the absence of such a signature there was no indictment and therefore no valid trial; late signature during the course of a trial could not cure the fundamental defect. The court relied on the statutory language, the legislative history of the 1933 Act and established authorities such as R v Morais. The Court of Appeal decisions which treated some failures as capable of being validated where no prejudice was shown (notably R v Ashton) were disapproved insofar as they conflicted with the 1933 Act and the established line of authority.

Background and facts:

The appellants were convicted in April 1997 in the Crown Court at Worcester of offences contrary to section 18 of the Offences against the Person Act 1861 and sentenced to lengthy terms. At the start and during most of the trial there was no signed indictment: voluntary bills had been given leave previously but no proper officer had signed an indictment before trial commenced. An amended form of indictment was signed by the proper officer late in the trial and the jury convicted (not on the late-added count). The Criminal Cases Review Commission referred the appeals to the Court of Appeal, which dismissed them, and leave to appeal to the House of Lords was granted.

Nature of the application and issues:

• The appellants sought quashing of their convictions on the ground that, in the absence of a bill signed by the proper officer as required by the 1933 Act, there was no indictment and therefore no valid trial.
• The principal issues were (i) whether the absence of a proper officer's signature rendered proceedings invalid and (ii) whether a late signature during the trial could validate proceedings already in progress.

Procedural path:

Trial and conviction in the Crown Court at Worcester (April 1997); referral to the Court of Appeal by the Criminal Cases Review Commission; Court of Appeal dismissal [2006] EWCA Crim 1196; appeal to the House of Lords.

Court's reasoning:

• The court examined sections 1 and 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 and the legislative history. The proper officer's signature was intended to replicate the authentication role formerly performed by the grand jury and was a necessary step for a bill to become an indictment.
• The court reviewed prior authorities (including R v Gee, R v Thompson, R v Morais) which treated the absence of a valid indictment as rendering a trial a nullity, and considered later authorities (notably R v Ashton and decisions applying R v Soneji) which emphasised assessing legislative intent and prejudice rather than a mandatory/directory dichotomy.
• The House concluded that, here, Parliament intended the signature requirement to be indispensable and that late signature during trial could not cure the absence of an indictment at the outset. The Court of Appeal was wrong to treat R v Ashton as permitting validation in these circumstances.

Relief sought and outcome:

The appellants sought quashing of their convictions; the House allowed the appeals and quashed the convictions. The court noted the undesirable consequences for finality and victims but emphasised that the procedural requirement was clear and for Parliament to change if it wished.

Appeal allowed. The House held that under sections 1 and 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 a bill of indictment does not become an indictment until signed by the proper officer; without such signature there was no indictment and no valid trial, and a late signature during an already conducted trial did not validate the proceedings.

Convictions at Crown Court at Worcester (April 1997). Appeals referred to the Court of Appeal by the Criminal Cases Review Commission; Court of Appeal dismissed the appeals on 25 May 2006 ([2006] EWCA Crim 1196). Leave to the House of Lords was granted and the House allowed the appeals ([2008] UKHL 8).