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: The court ordered a venire de novo so that the case would be tried again. It considered the overall justice of the case without close attention to the jurisdictional question and without considering whether the words in section 1 of the Act were mandatory or directory. Prosecuting counsel submitted that the absence of a signature was of no consequence since, with the form signed by the High Court judge in his possession, the proper officer had had nothing to consider and had had no choice but to sign it.
Lord Lane CJ said: ‘It seems to us that that argument to some extent tends to beg the question. Either the words are mandatory or they are not. If they are mandatory, it does not matter that there is nothing left for the proper officer to do except to sign. If on the other hand they are not mandatory, then it does not matter that there is something left for the officer to do and he still does not sign the indictment.’
Applying Liverpool Borough Bank, he said: ‘The answer, we feel, is to be found in the intentions of the draftsman in the first place. It seems to us that this Act was intended, so to speak, to fill the gap which was left by the abolition of the grand jury. It was intended to ensure not only that the proper requirements had been fulfilled before a trial proper could start, but that also there should be a certification by way of the signature of the proper officer to indicate that he had inquired into the situation and satisfied himself that the requirements of the subsection had properly been complied with. We have come to the conclusion therefore that it is not merely a comparatively meaningless formality that the proper officer’s signature should be appended, but it is, as the words of the Act itself prima facie indicate, a necessary condition precedent to the existence of a proper indictment, that the bill should be signed and only then and thereupon does it become an indictment.
Therefore in the present case there was no valid indictment, there was no trial, no valid verdict and no valid sentence.’
Judges:
Lord Lane CJ
Citations:
Unreported, 6 November 1985
Statutes:
Administration of Justice (Miscellaneous Provisions) Act 1933 2(2)
Jurisdiction:
England and Wales
Citing:
Applied – Liverpool 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 . .
Cited by:
Distinguished – Regina 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, . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 02 September 2022; Ref: scu.267623
