The nature of preferment of a bill of indictment
Whenever a person is accused of a serious crime and is to be tried on indictment, in majority of cases he is sent, transferred or committed by the magistrates for a trial before a jury. There is an alternative route through section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 which allows the preferment of a bill of indictment with the consent of a judge of the High Court. The essence of that procedure is that a High Court judge orders that the accused be tried on indictment.
In theory the prosecution can apply in every case to a High Court judge for a voluntary bill. However, a recent Criminal Practice Directions governing the applications process emphasises that preferment is an exceptional procedure and consent should only be granted where good reason to depart from the normal procedure is clearly shown. Further, the rules require that such bill should only be granted where the interest of justice, rather than considerations of administrative convenience require it.
The application procedure
The procedure for voluntary bills of indictment is set out in the Indictments Procedure Rules 1971. Those rules require for the application to be in writing and bearing the signature of the applicant or alternatively his solicitor. Unless there have already been unsuccessful committal proceedings, the application should also state why it is being made. Further, the application should include copies of any charges on which the defendant has been committed for trial.
In addition, the application needs to be accompanied with:
(a) the bill of indictment it is proposed to refer
(b) proofs of evidence from the proposed prosecution witnesses and/or depositions taken and statements tendered at the committal proceedings if such have taken place
With the above documents, there must also be an affidavit verifying that the statements contained in the application are true to the best of the applicant’s knowledge and belief. As an exception, this does not apply where the prosecutor is the Director of Public Prosecutions.
After the application is filled and all further information gathered, all the evidence is lodged at court. The application is considered by the judge alone and the decision whether there should be a voluntary bill is taken by the judge in chambers. Normally neither the prosecution nor defence attend and the decision is made solely on the basis of the information before the judge.
Further, the defence do not have a right to make written representations to the judge. However, if such representations have been prepared and offered to the judge, the case law has confirmed that the judges have discretion to receive those materials. Their significance and use after receipt are within the discretion of the judge.
Oral representations are allowed only in exceptional circumstances. If the judge wants to hear from one of the parties, the oral submission should be made on notice to the other party, who should be allowed to attend the hearing.
Once the decision is reached, all the parties are notified in writing.
Appeal from a decision to prefer a bill of indictment
Where a bill has been preferred with the consent of a judge of the High Court, the divisional court has no jurisdiction to review that decision. In addition, the Court of Appeal will not inquire into the exercise of the judge’s discretion, so long as it is clear that he had jurisdiction to deal with the application for leave to prefer the bill.
A judge who is not a judge of the High Court has no jurisdiction to direct or consent to the preferment of a voluntary bill. Therefore, if he has purported to do so, any proceedings that result would be a nullity.
However, a judge who is not a judge of the High Court does have the power to amend an indictment preferred under the voluntary bill procedure so as to add a defendant who has been separately committed for trial on the same charge.