invalidity of the indictment post r. v. newland

Editorial Committee of the Cambridge Law Journal

Invalidity of the Indictment Post R. v. NewlandAuthor(s): Nigel PorterSource: The Cambridge Law Journal, Vol. 53, No. 1 (Mar., 1994), pp. 63-70Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4507902 .

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C.L.J. Invalidity of the Indictment 63

INVALIDITY OFTHE INDICTMENT POST R. v. NEW LAND

NlGEL PORTER

I. The Appeal "Without Merit"

It is uncontroversial to state that the Court of Appeal (Criminal

Division) has never been sympathetic to unmeritorious appeals.1 Numerous cases may be cited where the appellant, having made out

a valid ground of appeal based purely upon a technical defect in the

trial, is met with the rejoinder that the appeal is wholly without merit

and that the conviction will be upheld by the application of the

proviso to section 2(1) of the Criminal Appeal Act 1968. Serious

defects in the trial including the failure of the trial judge to give a

direction on the standard of proof,2 wrongful admission of the

defendant's previous bad character,3 and even conviction for an

offence which technically did not exist,4 have all been amenable to

the application of the proviso on the ground that, despite the defect, no injustice has been done.

II. Appeal upon the Indictment

A common form of "unmeritorious appeal" is based upon a defect in

the indictment. In light of the willingness of the court to apply the

proviso to other kinds of technical defect it would be unsurprising to find the court upholding convictions in cases where the only ground of appeal is based upon a defective indictment which caused no

injustice to the appellant. However the decision of the Court of

Appeal in R. v. Newland,5 perhaps the paradigm ofthe unmeritorious

appeal, has effectively tied the court's hands in this area leaving only a fresh trial as a remedial measure.

The Decision in Newland

Mark Anthony Newland was arrested for a variety of offences

connected with the supply of cannabis. He was released on bail but

in the following month he was arrested again following a disturbance in a restaurant during which he "either bit, kicked or butted at least

See Spencer "Criminal Appeals: The Tail that Wags the Dog" | I982J Crim.L.R. 26 who suggests that the Court of Appeal has avoided upholding unmcritorious appeals at the expense of clarity in the law.

: R. v. Edwards |1983J 77 Cr.App.R. 5 1 Stirlandw. D.P.P. J1944) A.C. 315. ' R. v. Ayres [\984] A.C 447. ' (1988) 87 Cr.App.R. 118.



C.L.J. Invalidity of the Indictment 65

relative triviality of the offences in question, the court declined to do

this and simply quashed the conviction freeing the defendant who

had served the greater part of his sentence.12 Newland was applied in

R. v. OfReilly.13 The defendant was arraigned on an invalid indictment

containing five counts: four of offences of defrauding by forgery and

one count of burglary. He pleaded guilty to three of the forgery counts. The trial judge quashed the burglary count for misjoinder. With the acquiescence of his counsel, the defendant was not re-

arraigned. The Court of Appeal found it impossible to distinguish Newland and held that no valid trial was commenced because the

proceedings which ensued flowed from pleas made by the appellant to an invalid indictment. Again the lack of merit in the appeal was

stressed and in this case the court considered a venire de novo to be

appropriate.

III. The Implications of Newland

It will be remembered that the court in Newland stresses that the

misjoined indictment was invalid. It was not however a nullity as it

was capable of being made good by amendment under section 5(1) of the Indictments Act 1915.14 Arraignment upon an indictment that is a nullity has long robbed the trial of its essential validity and has

led to the application of the principles of mistrial.15 Newland is a

novel departure in that arraignment upon a defective indictment may now be a sufficient irregularity in the commencement of the trial to

render the ensuring proceedings a nullity or mistrial.16 If arraignment upon a misjoined indictment is a recipe for the

The Court of Appeal has long had a discretion to quash the conviction and refuse a retrial on the grounds that it would be oppressive: R. v. Golathan (1915) 11 Cr.App.R. 79; R. v. King (1920) 15 Cr.App.R. 13; R. v. McDonnell (1928) 20 Cr.App.R. 163; R. v. Wilde (1933) 24 Cr.App.R. 98; R. v. Olivo (1942) 28 Cr.App.R. 173; R. v. Heyes [1951] 1 K.B. 29. (See further Cooke, op.cit., 119.) In Rose (ante, note 11) the respondent's counsel argued that where a mistrial occurs, there is an inherent jurisdiction to restrain the prosecution from further proceedings. It is suggested that if the prosecution relied upon the original indictment for a subsequent trial without instruction from the Court of Appeal, the attcmpted re-prosecution would amount to an abuse of process of the court and would be stopped. The defendant cannot, however, rely upon autrefois acquit or convict. (1990) 90 Cr.App.R. 40. Section 5(1) provides: "Where, before trial or at any stage of the trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case." The leading case where the indictment was a nullity because it was preferred without authority is R. v. Morais (1988) 87 Cr.App.R. 9. (The indictment was not signed by the appropriate officer of the court). See also R. v. Jones and Jones (1993] Crim.L.R. 780 and R. v. Laming (1990) Crim.L.R. 416. References to an invalid indictment in Newland and O'Reilly must refer to a defective indictment as the misjoined indictment can be cured by amendment under section 5(1). (See Newland at 122). As the Indictments Act only refers to defective indictments this term is adopted in the following analysis.



C.L.J. Invalidity ofthe Indictment 67

others on another.21 Although a defendant could be validly tried in a

series of counts in one indictment a duplicitous count covering the

same offences robs the defendant of the chance of arguing for

discretionary severance of the counts under section 5(3) of the

Indictments Act.22

It would seem that duplicity is a sufficiently serious defect to

render trial upon such an indictment a nullity by analogy with

Newland.23 However there is strong authority against this. In R. v.

Thompson24 the proviso was applied to a conviction based upon a

highly duplicitous indictment. Thompson was charged under the

Punishment of Incest Act 1908. The first count in the indictment

charged him with having committed the offences "on divers days between the month of January 1909 and the 4th day of October 1910". The second count charged him "on divers days between the 4th day of October 1910, and the end of February, 1913". The court

held that no miscarriage of justice had taken place and therefore

applied the proviso to the Criminal Appeal Act 1907.25

In R. v. Asif26 the Court of Appeal disapproved of tactical

postponement of a motion to quash the indictment on grounds of

duplicity in order to develop a ground of appeal. In such a case the

court would be inclined to apply the proviso as no injustice would be suffered by the defendant as his counsel would be aware during trial of the defect. This further supports the view that arraignment upon a

duplicitous indictment will provide a ground of appeal but will not

render the proceedings flowing from the arraignment a nullity.27

21 On unanimity see, inter alia, R. v. Brown (1984) 79 Cr.App.R. 115; R. v. More (1988) 86 Cr.App.R. 234 and J.C Smith [1988] Crim. L.R. 335.

22 see ante note 8. 23 In contrast to the prejudice inherent in duplicity a defendant who pleads guilty to a misjoined

indictment suffers no prejudice. Where the defendant pleads not guilty, misjoinder "might embarrass a man in the trial if he was accused of several things at once and frequently the mere fact of accusing of several things, was supposed to increase the probability of being found guilty" per Lord Blackburn in Castro v. R. (1881) L.R. 6 A.C. 229 at 244-245. (emphasis added). The likelihood of this prejudice was doubted by Lord Pearson in Ludlow v. M.P.C. (1970) 64 Cr.App.R. 233 at 244.

24 [1914] 2 K.B. 99. 25 In the majority of cases the proviso will not be applied to duplicity cases because of the potential

prejudice to the defendant. See G. Williams "The Duplicity Rule and the Count System" (1966] Crim. L.R. 255 and see R. v. Wilmot (1933) 24 Cr.App.R. 63.

26 (1986) 82 Cr.App.R. 123. 27 In R. v. Ballysingh (1953) 37 Cr.App.R. 28, a case involving "a small campaign of shoplifting",

Lord Goddard L.C.J. held, applying Thompson, that there was no embarrassment or prejudice to the defendant and that "it would reduce the law to a matter of technical absurdity if the appellant could . . . ask the court to set aside the verdict on the ground that there ought to have been separate counts" (at 30). The proviso was applied. It was considered significant that "the defendant's counsel had agreed to fight the case on an indictment as it stood" (at 30). As in Asif there would be little risk of prejudice. They may be contrasted with O'Reilly (ante) where the failure to re-arraign, despite the agreement of defence counsel that it was not necessary, was considered fatal and rendered the proceedings a nullity.



70 The Cambridge Law Journal [1994]

as in Newland and O'Reilly. This may be explained as follows. If a

count is to be added at the request of the prosecution then it must

come under the proviso to section 2(2) of the Administration of

Justice (Miscellaneous Provisions) Act 1933 in that it must be an

offence that can be lawfully joined with the other counts. In absence

of a voluntary bill of indictment there is no jurisdiction in the court

to join further unrelated offences. Here the purported joinder of

such an offence rendered the indictment a nullity. Thus, Williams

provides an example of preferment of a null indictment,40 rather than

arraignment upon a defective indictment as in O'Reilly.41 As such

Williams supports the traditional analysis of the situations where an

indictment that is a nullity in itself may cause a nullity in the

subsequent trial and does not support the extension of the principles of mistrial to defective indictments exemplified by O'Reilly.

V. Conclusion

At a time when the Court of Appeal (Criminal Division) is overloaded

and backlogged it seems unfortunate to deny it the power to apply the proviso in the case tnat most deserves it: the wholly unmeritorious

appeal. By adopting the preceding analysis, and limiting the ratio of

Newland to its facts,42 the Court of Appeal may rid the law of an

anomalous and unsupportable exception,43 and may be free to

continue to apply the proviso in all cases of defects in the indictment

if the defendant has suffered no injustice. Exceptionally, where the

proviso is inappropriate, the court retains the power of retrial, not by reliance upon venire de novo but by the extended powers of retrial to

be found in section 7 of the Criminal Appeal Act 1968.44

40 As in R. v. Morais (1988) 87 Cr.App.R. 9. Consider also R. v. Thompson and Clein (1975) 61 Cr.App.R. 108 where a circuit judge, in want of jurisdiction, purported to give leave to prefer a bill of indictment; the resulting trial was null. Similarly see R. v. Lombardi (1989) Cr.App.R. 179 (indictment preferred by prosecution contrary to section 2(2) of the Administration of Justice (Miscellaneous Provisions) Act 1933). 41 In Williams the court expressed its regret in the lack of merit in the appeal when quashing the conviction but did not consider a venire de novo to be appropriate. 42 Where misjoinder occurs in future, leave may be given to prefer fresh (valid) indictments covering the offences in question. The prosecution may then elect which indictment to proceed upon and the original defective indictment may be stayed. See R. v. Follett (1989) 88 Cr.App.R. 310.

43 Attempts have been made to limit the potential application of Newland in relation to joinder of summary offences to indictable offences under section 40 of the Criminal Justice Act 1988. In R. v. Callaghan (1992) 95 Cr.App.R. 226 it was held that misjoinder under section 40 (though not under rule 9) did not render arraingment upon the indictment a nullity. (For a contrary decision see R. v. Lewis (1992) 95 Cr.App.R. 131). In R. v. Simon [1993] Crim. L.R. 444 it was suggested that Lewis was per incuriam Callaghan and that section 40 misjoinder did not render arraignment upon the whole indictment a nullity. 44 Amended by Criminal Justice Act 1988, s. 43. Retrial may now be ordered following any succcssful appeal.



invalidity of the indictment post r. v. newland

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