Clarke, Regina v; Regina v McDaid: HL 6 Feb 2008

An indictment had not been signed despite a clear statutory provision that it should be. The defects were claimed to have been cured by amendment before sentence.
Held: The convictions failed. Sections 1(1) and 2(1) of the 1933 Act which provided for a bill of indictment (which had of itself no legal standing save as a proposal of charges) to become an indictment when signed. It was common ground that a valid indictment was a pre-condition to a valid Crown Court trial. The court’s task is to ascertain from the terms of the legislation what Parliament intended to be the consequences if it is not complied with. Where the statutory provisions were clear in their terms, the court was bound to apply them, even if the consequence was that a defendant is enabled to obtain what might be regarded as an unmerited outcome. The effect of the decision in Morais could be reversed, if this was desired, by parliament alone.
Lord Bingham said: ‘Technicality is always distasteful when it appears to contradict the merits of a case. But the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place.’


Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood


[2008] UKHL 8, [2008] 1 WLR 338, [2008] 2 Cr App R 2, [2008] Crim LR 551, [2008] 2 All ER 665




Offences Against the Person Act 1861 18, Administration of Justice (Miscellaneous Provisions) Act 1933 1 2


England and Wales


CitedJane Denton’s Case 1823
Under the grand jury regime the indictment was authenticated by the delivery of the bill found to be a true bill by the grand jury. . .
CitedRegina v Stewart CACD 1990
The Court recalled the fundamental distinction between the preferment of a bill of indictment and the signing of the bill: it is the signing of the bill which converts it into an indictment. The court then accepted that the proper officer had . .
CitedGiuseppe Sidoli’s Case 1833
The court considered the validation of the indictment under the grand jury system. . .
CitedRex v Gee CCA 1936
The defendants appealed, complaining of defects in the commital procedure.
Held: The proceedings committing the defendants for trial were so defective that there was no lawful committal. It followed that the document purporting to be an . .
CitedRegina v Thompson 1975
The defendant appealed saying that the prosecution had broken the principle ‘that it is only once that an indictment can be preferred upon the basis of one committal’.
Held: The trial had taken place upon an invalid indictment not properly . .
CitedRegina v Price CACD 6-Nov-1985
The defendant appealed saying that after committal, the trial had proceeded on the basis of a voluntary bill of indictment, and he had been convicted on his own plea. He now appealed saying that the bill had not been signed as required.
Held: . .
CitedRegina v Hodges (George David) CACD 5-Jun-1981
The court considered a claim that the indictment was invalid.
Held: Peter Pain J said: ‘It seems to us that it is impossible for a criminal trial to start without there being a valid indictment to which the defendant can plead, and that the . .
CitedRegina v Morais CACD 1988
A High Court judge had given leave to prefer a voluntary bill against the appellant, who was arraigned on six counts in the voluntary bill. He pleaded not guilty, was convicted on four counts and was sentenced. Relying on section 2 of the 1933 Act, . .
CitedRegina v Newland CACD 1988
The trial had proceeded on an indictment which was invalid because it improperly contained unrelated counts. The defendant having pleaded guilty appealed.
Held: The proviso could not be applied, and the appeal must succeed. While recognising . .
CitedRegina v Cairns CACD 1983
The defendant was committed for trial on seven charges of fraud. An eighth was then added under a voluntary bill of indictment, and a circuit judge confirmed a new indictment with all the eight charges. He appealed.
Held: His appeal succeeded. . .
Appeal fromRegina v Anderson, Clarke, McDaid CACD 9-Feb-1998
The defendants appealed their convictions on the basis that the voluntary bills of indictment had not been signed as required under the 1933 Act. . .
ApprovedLiverpool Borough Bank v Turner 1860
The court considered how to decide what would be the consequences of failing to comply with a statutory requirement. Lord Campbell CJ said that the court should look at the importance of the provisions in question and to look at the real intention . .
CitedRegina v Jackson, Brady, Packer, Powell, and Kearns CACD 13-May-1997
The defendants had been charged in a 17 count indictment. Further indictments were properly added, and then yet further indictments. The judge had directed these last to be signed but they had not been. The defendants said that they were therefore . .
CitedChristie, Young, Scott v Her Majesty’s Advocate HCJ 26-Sep-2003
The defendants appealed against their convictions based upon a faulty indictment. The Act required the that when signing a bill of indictment, the signature should bear certain words signifying the authority of the signatory. The words used were . .
CitedHer Majesty’s Advocate v James Crawford HCJ 22-Nov-2005
The section required that indictments in proceedings before the sheriff sitting with a jury shall be signed by the procurator fiscal and that the words ‘By Authority of Her Majesty’s Advocate’ shall be prefixed to the signature of the procurator . .
CitedRegina v Janceski 18-Aug-2005
(Supreme Court of New South Wales) The NSW statute required that an indictment should be signed by any one of a number of persons specified in the section, including a person authorised by the Director of Public Prosecutions to sign indictments, and . .
CitedLondon and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
CitedAshton , Regina v; Regina v Draz; Regina v O’Reilly CACD 5-Apr-2006
The court considered three appeals where there had been a procedural irregularity, and where the judge had taken some step to overcome that irregularity. In two cases the Crown Court judge had reconstituted himself as a district judge to correct a . .
CitedRegina v Sheerin CACD 1976
The court considered a procedural error in an indictment. . .
CitedRegina v Soffe CACD 1982
The defendant sought leave to appeal saying that the 1971 rules had not been followed in preferring the bill of indictment.
Held: The breach was not a material irregularity. The application of the rules was a matter for the judge, and not for . .
CitedRegina v Farooki CACD 1983
The judge had allowed a 56 day extension to the time for preferring the bill of indictment against the defendant. There were further delays outside the extended period. The judge refused to quash the indictment at trial.
Held: The 1971 rules . .
CitedRegina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
CitedSekhon, etc v Regina CACD 16-Dec-2002
The defendants appealed against confiscation orders on the basis that in various ways, the Crown had failed to comply with procedural requirements.
Held: The courts must remember the importance of such procedures in the fight against crime, . .
CitedRegina v Secretary of State for the Home Department Ex Parte Jeyeanthan; Ravichandran v Secretary of State for the Home Department CA 21-May-1999
The applicant had failed to comply with the Rules in not using the form prescribed for appliying for leave to appeal against a special adjudicator’s decision to the Immigration Appeal Tribunal. The application, by letter, included all the relevant . .
CitedRegina v Laming CACD 1989
The defendant appealed saying that the court clerk had signed the indictment in the wrong place.
Held: The signature had been intended to validate the indictment. The appeal failed. . .

Cited by:

CitedR, Regina v CACD 4-Apr-2008
The defendant appealed his conviction for rape, saying that the complainant’s evidence had wrongfully been allowed to be given over a remote video link. Provisions to allow such means of giving evidence had been intended to be phased in only as . .
CitedNT, Regina v CACD 31-Mar-2010
The prosecutor appealed against a stay of the prosecution as an abuse. The prosecution had failed give the undertaking necessary on lodging the appeal to the court against whose ruling it wanted to appeal, that it agreed that the defendant should be . .
CitedLSA, Regina v CACD 16-May-2008
(Courts-Martial Appeals Court) The defendant had faced road traffic offence charges, but the court had discharged the case using the Forest of Dean case. The prosecutor sought to appeal but failed to give the undertaking with regard to taking no . .
CitedWhite v Regina CACD 15-Apr-2014
The defendant sought an extension of time for leave to appeal against his conviction for fraud. After his conviction there had been academic debate as to its basis, and the present application was not opposed. He had originally been charged under . .
CitedRahmdezfouli, Regina (on The Application of) v Crown Court Sitting At Wood Green and Another Admn 9-Oct-2013
The appellant challenged the refusal to allow him to vacate a guilty plea to a charge of failures to comply with a planning enforcement notice. It had been agreed that the magistrates had failed to ask the two questions required under the 1980 Act. . .
CitedWestminster City Council v Owadally and Another Admn 17-May-2017
Defendant must plea to charge, and not counsel
The defendants had, through their barrister, entered pleas of guilty, but the crown court had declared the convictions invalid because this had to have been done by the defendants personally, and remitted the cases and the confiscation proceedings . .
Referred toStapleton, Regina v CACD 15-May-2008
The appellant pleaded guilty to six offences of furnishing false information, contrary to the Theft Act 1968. She was committed to the Crown Court for sentence under the 2002 Act, with a view to a confiscation order being considered. She had made . .
CitedMcCool, Regina v SC 2-May-2018
The appellants complained that the recovery order made against them in part under the transitional provisions were unlawful. They had claimed benefits as single people but were married to each other and for a house not occupied. The difficulty was . .
CitedLalchan, Regina v CACD 27-May-2022
Conviction withoiut required Consent was Unsafe
Whether a conviction for an offence which requires the consent of the Attorney General before the proceedings are instituted can stand when no such consent was obtained.
Held: The appellant’s arguments were well-founded and his conviction on . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 30 June 2022; Ref: scu.264275