Local Government - July 2009

Prosecuting in the Magistrates Court – the effect of procedural irregularities

The case of R v Clarke and McDaid [2008] 1WLR 338 serves as a reminder to any prosecuting Authority of the importance of ensuring that procedural rules are followed.  Below, we consider the decision of the House of Lords in this case and review some of the procedural obligations upon a prosecuting Authority at the commencement of proceedings and the extent of the powers of the court to allow procedural irregularities or errors to be rectified during the course of proceedings.

Clarke and McDaid

In Clarke and McDaid, the two defendants were convicted of an offence of causing grievous bodily harm and other separate offences.  Both defendants were sentenced to a total of 12 years imprisonment in April 1997.

The case was referred to the Court of Appeal by the Criminal Cases Review Commission (CCRC).  During the trial, at the conclusion of the evidence, the indictment was amended by leave of the trial judge. The amended indictment, upon which the jury proceeded to convict the defendants, was signed by an officer of the court.  However the evidence reviewed by the CCRC suggested that the original trial indictment had not been appropriately signed, as required by section 2(1) of Administration of Justice (Miscellaneous Provisions) Act 1933.

The Court of Appeal considered the appeals on the basis that the first signed indictment was that of 21 April 1997, after the evidence had been concluded.  In reaching its decision, the Court of Appeal followed a line of recent authorities including R v Sekhon, R v Soneji and R v Ashton  and found that where no prejudice or consequential injustice had been identified as a consequence of the procedural irregularity, there was no reason to quash the convictions.  This “more flexible approach” to procedural requirements was deemed by the Court to be beneficial. 

The House of Lords, however, disagreed.   The House of Lords emphasised that the line of authorities considered by the Court of Appeal did not warrant a “wholesale jettisoning of all rules affecting procedure irrespective of their legal effect.”  The Court unanimously agreed that the failure to ensure that the trial indictment was signed by an officer of the court meant that there had been no trial indictment, thus rendering the trial proceedings invalid.  The convictions of the defendants were quashed. The House of Lords expressed regret that the convictions were to be quashed on what would be regarded by most as a technicality.  However the Court argued that it was bound to follow the intention of Parliament and that amendment to such procedural requirements was a matter for the legislature and not the Court.

Procedural requirements

There are a number of procedural requirements relevant to the commencement of proceedings in the Magistrates Court which, if not followed, may undermine the validity of the prosecution and result in the prosecutor being forced to withdraw the proceedings or a conviction being quashed by a higher court.

Authority to Prosecute / Delegation of Authority to Prosecute - The general power for Local Authorities to bring a criminal prosecution is contained within s222 Local Government Act 1972. However, where an officer is to appear in court on behalf of the Authority in relation to such proceedings, written authority must be provided by the Authority in accordance with section 223 of the Act.  In practice, the written authority should form part of the prosecution file so that it can be readily disclosed to the Court and defence upon request.  Failure to ensure that the relevant authority is in place is likely to render the prosecution invalid. 

Laying the Informations - Many prosecutions are commenced by the service of a written Information. When laying an Information, the Information must be laid by the prosecutor authorised by the Authority in accordance with rule 7.2 of the Criminal Procedure Rules 2005.  Written Informations should not be signed by and in the name of the Local Authority itself.  In the event that such an error is made, the court has the power to allow the information to be amended during the course of the proceedings.  However failure to rectify such an error may give rise to an appeal on the grounds of the validity of the Information laid.

Contents of the Informations - An Information or charge must contain a statement of the offence that describes the offence in ordinary language and makes it clear what the prosecutor alleges against the defendant in accordance with rule 7.3(1) Criminal Procedure Rules 2005.  Although the court has the discretion to allow a prosecutor to amend the details contained within the Information, the court must consider any prejudice or injustice to the defendant. An Information which fails to disclose an offence will be invalid.

Defects in an Information / Summons - A summons can not be amended in circumstances where the Information / summons discloses the name of the wrong defendant.  If a summons is addressed and served on the wrong company, the court has no power to permit the substitution of the name of another company.  Similarly the court can not allow an amendment from a company name to that of the company secretary.   Amendments that relate to the spelling of the name of the defendant (as opposed to naming the wrong defendant), the date of the offence and the place of the offence have previously been allowed by the court however this will be subject to the consideration of whether there is prejudice to the accused and whether the amendment is in the interests of justice.

Variation in Evidence and Different Offences  - The court has the power to allow an amendment to a summons until the function of the court ceases in relation to the proceedings.  Accordingly a prosecutor may apply to the court to amend a summons during or at the conclusion of a trial when the evidence has been heard.  In the event that the evidence heard by the court is in variation to the particulars contained within the summons, for example in relation to the period over which an offence continued, if the variance can not be said to cause prejudice to the accused, the court should allow the case to continue of the existing summons. If the prosecution wish to amend a summons to reflect a different offence, this will only be permitted where it can be established that the offence arises from the same wrong doing and that there is no prejudiced to the accused.

Comment

Although the court has a discretion to allow Prosecuting Authorities to correct some procedural irregularities during the course of proceedings, the decision in Clarke and McDaid  shows that even the most technical procedural error, if not corrected, may result in a prosecution being invalid.  In addition the power to correct such errors will often be dependant on the interests of justice and the possible prejudice to the accused.  Despite the “overriding objective” of criminal proceedings to deal with cases justly, acquitting the innocent and convicting the guilty, it remains that a prosecutor must be extra vigilant in ensuring that procedural requirements are adhered to and where appropriate, amendments are sought in a timely manner to prevent challenge to the validity of the proceedings.

Hazel Padmore
Associate
Weightmans LLP