Stromberg v R. (Rev 1)

A writ of venire de novo is a remedy available to the Court of Appeal (Criminal Division) when, on an appeal against conviction, it determines that a fundamental irregularity invalidated the whole trial. It is not a separate route by which a convicted person may apply directly to the court.

A person seeking to annul a Crown Court conviction on the ground of nullity must appeal against conviction under Part I of the Criminal Appeal Act 1968. The statutory requirements concerning leave and time apply. The distinction between quashing and annulling a conviction concerns the remedy available after the court is properly seized of the appeal; it does not create a freestanding jurisdiction.

The applicant was convicted at Woolwich Crown Court in 2008 of conspiracy to commit an offence outside England and Wales. His earlier application for leave to appeal against conviction had been refused.

Later authority indicated that the Attorney General's consent, required before proceedings for the offence were instituted, had been given too late. The applicant sought a writ of venire de novo to annul the conviction and require a new trial. He expressly declined to renew his application for leave to appeal, which would have been substantially out of time.

The central issue was whether an application for the writ could be made independently of an appeal under Part I of the Criminal Appeal Act 1968.

1. The freestanding application was not admissible. The Court of Appeal (Criminal Division) has a single statutory jurisdiction to hear appeals against conviction. A writ of venire de novo is a remedy which the court may order after it has been seized of an appeal and has determined that the conviction cannot stand because the trial was invalid.

2. Section 53(2)(d) of the Senior Courts Act 1981 preserves the court's jurisdiction to order the writ. It does not confer a separate jurisdiction to entertain an application for it. The applicant's proposed distinction between a merits jurisdiction and a nullity jurisdiction therefore conflated the route to the court with the remedy available once the court has determined the appeal.

3. Until set aside, a Crown Court conviction is valid for all purposes. A person who seeks its annulment must appeal against conviction under section 1 of the Criminal Appeal Act 1968, and is consequently subject to its leave and time provisions. The fact that annulment, rather than quashing under section 2, may be the appropriate remedy does not avoid that statutory route.

4. Crane v DPP [1921] 2 A.C. 299 established that the historical writ could be used where a trial was a mistrial or nullity. R v Rose and others [1982] A.C. 822, and later decisions discussing it, were consistent with this remedy-based analysis. They did not establish a free-standing means of approaching the court.

5. The court did not determine whether the late Attorney General's consent ultimately invalidated this trial. It observed that the consequences of a procedural failure depend on Parliament's presumed intention, and that the effect of late consent had not been finally settled by the Welsh decisions. The applicant's conviction was factually safe, his trial fair, and the late consent had caused no prejudice.

• Court of Appeal (Criminal Division): The court held that the application for a writ of venire de novo could be pursued only through an appeal against conviction: [2018] EWCA Crim 561.

• Single Judge, Court of Appeal (Criminal Division): The applicant's earlier application for leave to appeal against conviction was refused. The grounds were not stated in the judgment.

• Crown Court at Woolwich: The applicant was convicted on 14 May 2008.