Where a defendant charged with a serious crime is to be tried on indictment in the Crown Court, they will usually be sent, transferred or committed by the magistrates for jury trial by way of an indictment.
In exceptional cases, for instance, where the CPS believes magistrates were wrong not to send the defendant to the Crown Court for trial on indictment, there is an alternative route under section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933. This allows the preferment (service) of a bill of indictment with the consent of a judge of the High Court. Essentially, a High Court judge can order that the defendant be tried on indictment.
However, this is an exceptional procedure and consent must only be granted where good reason to depart from the normal procedure has been clearly shown; and that it is in the interests of justice – rather than for reasons of administrative convenience.
What is the application procedure?
The procedure for applications for voluntary bills of indictment is set out in the Indictments Procedure Rules 1971. These requirements must be strictly complied with, and include the following.
The application must be in writing and bear the signature of the applicant – for instance, the chief crown prosecutor at the CPS. Unless there have already been unsuccessful committal proceedings, the application should also state why it is being made. The application should include copies of any charges on which the defendant has been committed for trial.
The application must be accompanied by documents, including:
- a copy of any charges on which the defendant has been committed for trial
- a copy of any charges on which his committal for trial was refused by the magistrates’ court
- the bill of indictment it is proposed to refer
- proofs of evidence from the proposed prosecution witnesses and/or depositions taken and statements tendered at the committal proceedings if such have taken place
The application and accompanying documents/evidence will be lodged at court.
The defendant must be given notice of the application having been made; and must also be served with a copy of all documents delivered to the judge which have not already been served on him or her. The defendant must also be told of their right to make written submissions to the judge within 9 working days of being given notice of the application.
The application is considered by the judge alone, and the judge makes his/her decision ‘in chambers’.Normally, neither the prosecution nor defence attend and the judge comes to a decision solely on the basis of the information provided.
Whilst the defence does not have the right to make written representations to the judge, if such representations have been prepared and offered– the judge has the discretion to receive and consider them.
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 judge’s decision is reached, all the parties are notified in writing.
Is there a right of appeal?
Where a bill of voluntary indictment has been preferred with the consent of a judge of the High Court, it is binding on the trial judge. In addition, the Court of Appeal will not inquire into the exercise of the judge’s discretion, so long as it is clear that the judge had jurisdiction to deal with the application. In addition, the High Court judge’s decision is not subject to judicial review.