Power and legality

Formalism, technicality, the principle of legality versus substantive justice: when can statutory requirements concerning court procedures be overlooked?

In R v Clarke [2008] UKHL 8 (6 February 2008) the failure of a court official to sign an indictment was held to invalidate the ensuing trial and to require the quashing of the convictions on that invalid indictment.

Lord Bingham delivered the leading opinion; at para 17 he observed:

“…It is always, of course, lamentable if defendants whose guilt there is no reason to doubt escape their just deserts, although the present appellants, refused leave to appeal (on other points) by the single judge in 1977 and the full court in 1998, have now served the operative parts of their sentences. 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. …”

The approach to the procedural breach was to ask two questions: what did the legislature intend the consequences of the breach to be as far as the document in question was concerned, and, if the document was void, what did parliament intend the consequences to be as far as the trial was concerned.

Here, the legislation and the history of judicial application of it (in the main), led inescapably to the conclusion that an unsigned indictment was void and a trial upon a void indictment was not valid.

A difficulty, requiring clarification, was recent Court of Appeal departure from its own authority, R v Morais (1988) 87 Cr App R 9. Morais, upheld in the present case, had not been followed in R v Ashton, R v Draz and R v O'Reilly [2006] EWCA Crim 794, [2007] 1 WLR 181. Ashton had been greeted by a number of academic authorities as “a victory of substance over formalism” (para 17). Lord Bingham concluded (para 20):

“…I cannot, however, accept the basis upon which the court in R v Ashton distinguished its earlier decision in R v Morais. …”

In Ashton the Court of Appeal had made the mistake of turning the question of the intention of the legislature into a search for prejudice to the defence, and a use of the lack of any such prejudice as grounds for treating the statutory requirement as a technicality.

It is not unusual to hear judges ask counsel for the defence to identify what prejudice the accused will suffer from the departure from a requirement of procedure. In such cases, the question will be, what was the intention behind the establishment of the procedure. Absence of prejudice will often, but not always, be an answer to an irregularity.