Johnson v R

A draft indictment uploaded to the Crown Court Digital Case System is, under the post-2009 scheme, a preferred indictment. Once the statutory requirements are met, objections to non-compliance with procedural rules cannot be raised after trial has commenced by virtue of Administration of Justice (Miscellaneous Provisions) Act 1933, section 2(6ZA).

The existence of an earlier indictment does not prevent a fresh indictment being preferred, provided the prosecution elects which indictment to pursue. Failure formally to arraign a defendant on a contested fresh indictment does not itself invalidate the trial where the charges were read in the defendant’s presence and the trial proceeded on the basis of not-guilty pleas. Procedural defects require attention to fairness and the safety of the conviction, rather than technical nullity.

These were unconnected appeals from convictions in the Crown Courts at Lewes and Oxford. In each case, the prosecution uploaded a revised form of indictment to the Digital Case System. It added or altered counts, but the prosecution did not obtain a formal amendment of the original indictment and the applicants were not re-arraigned on the revised form.

Both applicants accepted that they had suffered no prejudice and received fair trials. They nevertheless contended that convictions on counts in the revised indictments were invalid, relying on R v Leeks [2009] EWCA Crim 1612. The central issue was whether, following the 2009 amendments to the statutory indictment regime, the revised forms were valid indictments and whether the procedural errors rendered the trials nullities. Johnson also sought leave to appeal an extended sentence.

1. The conviction appeals were dismissed. The revised draft indictments had been validly preferred when uploaded to the Digital Case System. Under the amended section 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933, a preferred draft became an indictment. The court applied the analysis in R v W(P) [2017] 4 WLR 79.

2. Section 2(6ZA) was a broad anti-technicality provision. Once the drafts had been preferred in accordance with sections 2(1) and 2(2), any objection to failure to comply with rules governing the manner or timing of preferment was barred after trial commenced.

3. The unamended original indictment did not invalidate proceedings on the fresh indictment. More than one indictment could be outstanding for the same offence, subject to an election by the prosecution. Here, the prosecution had plainly elected to proceed on the fresh indictments.

4. Although proper arraignment was required, the lack of formal arraignment on a charge which the defendant contested did not invalidate the proceedings. The revised indictments were read in the applicants’ presence and the trial proceeded on the stated basis that they had pleaded not guilty. The position remained different for a purported guilty plea, which required a proper personal arraignment.

5. R v Leeks [2009] EWCA Crim 1612 no longer represented the law. Its reasoning depended on the strict approach in R v Clarke and McDaid [2008] UKHL 8, which had been reversed by the 2009 statutory revision. Where an indictment procedure has gone wrong, the primary considerations are the fairness of the trial and the safety of the conviction, not technical validity.

6. The court did not condone informal practice. Parties and judges should ensure that amendments and re-arraignments are regularised before trial. The court did not decide whether section 5(1) of the Indictments Act 1915 permitted amendment after verdict.

7. Johnson’s application for leave to appeal sentence was refused. The seriousness of the offending and his substantial record supported the finding under section 229 of the Criminal Justice Act 2003 that he was dangerous. The extended sentence was neither wrong in principle nor manifestly excessive.

• Court of Appeal (Criminal Division): The court dismissed both conviction appeals in [2018] EWCA Crim 2485 and refused Johnson leave to appeal his sentence.

• Crown Court at Lewes: Johnson was convicted by a jury on 23 January 2018. On 8 May 2018 he received an extended sentence of 14 years’ imprisonment.

• Crown Court at Oxford: Burton was convicted by a jury on 8 March 2018 and sentenced on 15 March 2018 to concurrent terms of 12 months’ imprisonment.