McGrath

Improper joinder of a count under section 40 of the Criminal Justice Act 1988 or the corresponding indictment rule invalidates the improperly joined count only. It does not invalidate convictions on other counts properly included in the indictment.

In a postponed contempt inquiry, a respondent who deliberately avoids service may be treated as knowing the allegations. However, a court should not proceed in that person’s absence unless the respondent has adequate notice of the hearing and its consequences, or the strict conditions permitting absence are otherwise met. Waiver requires informed and voluntary absence. These safeguards apply even to a disruptive and unrepresented respondent.

The appellant was convicted at Oxford Crown Court of ten dishonesty offences and sentenced to four years’ imprisonment. A criminal-damage count had initially appeared on the indictment but was severed before the trial that produced those convictions.

The trial judge later found the appellant guilty of eight alleged contempts committed during the trial. The judge conducted the postponed contempt hearing in the appellant’s absence and imposed a consecutive six-month sentence.

The appellant challenged the validity of the indictment, principally because the criminal-damage count had been improperly joined. He also challenged the contempt conviction on the ground that the notice requirements for a postponed inquiry had not been met and that it was unfair to proceed in his absence.

1. The appeal was allowed in part. The appeal against the dishonesty convictions was dismissed. The conviction for contempt of court was quashed.

2. The criminal-damage count had been lawfully committed because criminal damage remained an either-way offence. It was nevertheless improperly joined with the dishonesty counts. It neither arose from the same facts or evidence nor formed part of a series of offences of the same or similar character for the purposes of section 40(1) of the Criminal Justice Act 1988 and rule 14.2(3) of the Criminal Procedure Rules 2012.

3. The misjoinder did not invalidate the whole indictment. The binding line of authority beginning with R v Callaghan [1992] 94 Cr App R 226 established that only a conviction on the improperly joined count is nullified. Convictions on counts properly included remain valid. That consequence is the same whether the misjoinder results from section 40 or the equivalent rule. The court also treated section 2(3)(a) of the Administration of Justice (Miscellaneous Provisions) Act 1933 as supporting that conclusion.

4. The court did not apply the statutory time bar on objections to an indictment. The appellant had raised validity issues before trial, and there was no transcript or other evidence showing that his present objection had not been raised in time.

5. The appellant knowingly evaded service of the written particulars of the alleged contempts. That cured any complaint about service of those particulars. However, there was no evidence that he had been told when or where the postponed hearing would occur, or that it could proceed in his absence. The court accepted that he knew contempt could attract imprisonment, but that did not establish a waiver of his right to attend.

6. Applying the caution required by R v Jones (Anthony) [2002] 2 Cr App R 9 and R v O’Hare [2006] EWCA Crim 471, the court held that informed, voluntary absence had not been proved. Nor had the conditions in rule 62.2(2) of the Criminal Procedure Rules been met. Giving the appellant the missing information on the morning of the hearing was practicable. The resulting failure to observe an important safeguard made the contempt conviction unsafe and it was quashed.

• Court of Appeal (Criminal Division) Allowed the appeal against the contempt conviction and quashed it, but dismissed the appeal against the dishonesty convictions.

• Oxford Crown Court In December 2011, convicted the appellant of ten dishonesty offences and imposed four years’ imprisonment. In January 2012, after a postponed hearing conducted in the appellant’s absence, found him in contempt of court and imposed six months’ consecutive imprisonment.