Dillion, R. v

A procedural defect in joining valid indictments does not itself make a later conviction unsafe. Under Administration of Justice (Miscellaneous Provisions) Act 1933, section 2(3), an indictment containing several counts is not quashed on appeal where the statutory requirements were met for at least one count and no application to quash was made at trial. Section 2(6ZA) also bars a post-commencement objection founded on non-compliance with the Criminal Procedure Rules.

Counts may in any event be joined where they arise from the same facts. Severance requires real unfair prejudice. A properly directed jury can try connected allegations dispassionately where the evidence on one count is not inherently unfairly prejudicial on the other.

The appellant was convicted at Wolverhampton Crown Court of breaching a restraining order and making threats to kill. Two valid indictments had initially been listed for separate trials. Following agreement that there should be a joint trial, the prosecution uploaded a single two-count indictment, but no formal application or court order joined the indictments.

The appellant, who was represented but did not participate in the trial, was convicted on both counts. He appealed against conviction, contending that the procedural defect rendered the indictment a nullity or made the convictions unsafe. He also submitted that the counts could not properly have been joined and that their combination caused unfair prejudice.

1. Appeal dismissed. The trial indictment and neither of its counts should be quashed, and the convictions were not unsafe.

2. The defect was not a misjoinder of counts which ought never to have appeared together. It was the absence, through oversight, of a formal order joining two otherwise valid indictments. Applying the approach in R v MJ, [2018] EWCA Crim 2485, the court held that section 2(3) of the Administration of Justice (Miscellaneous Provisions) Act 1933 did not require the indictment to be quashed. The appellant had been sent for trial on both offences. The statutory requirements had therefore been met for at least one count, and no application to quash had been made at trial.

3. Further, the uploaded trial indictment was a bill preferred in accordance with section 2(1). By section 2(6ZA), no objection based on a failure to comply with the Criminal Procedure Rules could be taken after the trial had begun. The appellant had been represented throughout and no timely objection had been made.

4. The convictions were safe in any event. The offences arose from the same facts: the threat was made after the appellant was arrested for breaching the restraining order. The threat, including the reference to the officer's child, did not create unfair prejudice requiring severance. A jury could be directed to decide each allegation dispassionately.

5. The court strongly endorsed the procedural warning in R v MJ: prosecution and defence representatives must ensure that indictments are properly regularised, and trial judges should check for outstanding indictment issues before the indictment is read to the jury.

• Court of Appeal (Criminal Division): Extended time, granted leave, and dismissed the appeal against conviction in [2019] EWCA Crim 853.

• Court of Appeal (Criminal Division): A renewed application for leave to appeal against sentence was refused: [2017] EWCA Crim 1293.

• Crown Court at Wolverhampton: On 15 December 2016, the appellant was convicted after trial of breaching a restraining order and making threats to kill, and was sentenced to two years' imprisonment.