Arfan, R. v

A voluntary bill of indictment is an exceptional procedure. Leave should be granted only where good reason to depart from the normal procedure is clearly shown and the interests of justice, rather than administrative convenience, require it. Relevant circumstances may include an error of law in dismissing the charge, significant new evidence, or a decision lacking a rational foundation. The ordinary threshold for dismissing a charge is whether the evidence would be insufficient for a proper conviction, equivalent in substance to a submission of no case to answer. A statutory right to seek a voluntary bill does not remove the requirement to demonstrate exceptional circumstances.

The prosecution sought leave to prefer a voluntary bill of indictment against Mohammed Arfan after Trafford Magistrates Court sent him for trial on a charge under section 18 of the Offences Against the Person Act 1861. On 3 August 2012, Judge Khokhar dismissed the charge against him. The prosecution sought to revive that charge and to add a count of violent disorder, while three co-defendants remained due to stand trial. The application required the court to decide whether the statutory and procedural conditions for a voluntary bill were met and whether exceptional circumstances justified reopening the prosecution.

1. Application refused. The prosecution complied with the formal requirements governing voluntary bills, but it failed to establish exceptional circumstances justifying departure from the ordinary procedure.
2. Section 2(6) of the Administration of Justice (Miscellaneous Provisions) Act 1933 authorised procedural rules, which were contained in rules 6–10 of the Indictment (Procedure) Rules 1971. The prosecution could invoke the procedure notwithstanding dismissal of the charge under Schedule 3 paragraph 2 of the Crime and Disorder Act 1998. That statutory route was expressly contemplated by paragraph 2(6), and its use was not an abuse of process.
3. The governing approach was that a voluntary bill was exceptional. Consent required a clearly demonstrated good reason to depart from normal procedure and the interests of justice had to require it, rather than administrative convenience. The authorities identified circumstances which might justify leave, including an error of law, significant new evidence, or a dismissal lacking a rational foundation. The list was not exhaustive.
4. The dismissal test under Schedule 3 paragraph 2(2) was whether the evidence against the applicant would be insufficient for a proper conviction. In substance, that was the same test as a submission of no case to answer. The prosecution did not contend that Judge Khokhar had applied the wrong test, ignored relevant legislation or authority, acted irrationally, or otherwise erred in law.
5. The proposed violent-disorder count had not been included originally, and the prosecution gave no exceptional explanation for introducing it through a voluntary bill. Leave was therefore refused.

The judgment records that Trafford Magistrates Court sent the defendant for trial on 30 January 2012. On 3 August 2012, Judge Khokhar dismissed the charge against him. The prosecution then applied in the High Court for leave to prefer a voluntary bill of indictment. The application was refused.