Voluntary Bill of Indictment (Hansard, 27 November 2000)

The Solicitor-General

In the vast majority of cases, bills of indictment charging indictable offences are preferred following committal for trial, notice of transfers or where the person charged has been sent for trial under the new provisions in relation to indictable only offences. Exceptionally, bills are preferred by the direction of the Court of Criminal Appeal or by the practice directions or with the consent of a judge of the High Court. The latter are frequently referred to as voluntary bills.

The procedure for obtaining a voluntary bill is set out in rules 7 to 11 of the Indictments (Procedure) Rules 1971. The Rules are exacting, in that the prosecuting authority applying for a voluntary bill must not only supply to the judge or the High Court the evidence which is to be relied on, but also the reasons why the application is being made.

The Rules have been subject to various practice directions, the latest of which took effect on 2 August 1999. These directions state that the preferment of a voluntary bill is an exceptional procedure. Consent should only be granted where good reason to depart from the normal procedures is clearly shown and only where the interests of justice, rather than consideration of administrative convenience, require it.

Until 1999, there was no express requirement for a prosecuting authority applying for consent to the preferment of a voluntary bill to give notice of the application to the prospective defendant or to give him copies of the relevant documents; nor was it expressly required that the prospective defendant have any opportunity to make a submission to the judge.

On 29 July 1999, the Attorney-General issued guidance to prosecuting authorities to change existing practices in light of Article 6 of the European Convention on Human Rights (which guarantees a fair hearing in the determination of any criminal charge). The guidance was issued with the approval of the Lord Chief Justice, and was incorporated into the new practice direction. It was agreed that the prosecution will give notice to the prospective defendant that an application for a grant of a voluntary bill will be made on a specific date. At the same time a copy of all the material that will form part of the application will be served on the prospective defendant. The notice will invite the prospective defendant to send any written submissions or an application for oral submissions to the prosecution within nine working days of notice being given by the prosecution. The prosecution may apply to the judge ex parte to dispense with the notice procedure where there are sufficient grounds for doing so.

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Applications by the Crown Prosecution Service for voluntary bills are governed by the 1971 Rules, the practice directions and the guidance issued by the Attorney-General. The previous practice directions given in 1991 stated that, in exceptional circumstances, the Judge may invite written submissions on behalf of any defendant affected if, in his judgment, the interests of justice so require.

Applications for voluntary bills by the CPS can only be signed by a senior Crown Prosecutor.

There are many reasons why a prosecuting authority might want to apply for a voluntary bill, such as when justices have refused to commit and it is believed they were wrong in law or where a defendant disrupts committal proceedings to the extent that they cannot be continued. Whatever the reasons, there must always be good reason to depart from the normal procedures and the interests of justice must require it.

On 17 May 1999, a Metropolitan Stipendiary Magistrate, sitting at Bow Street Magistrates court, declined to commit Detective Inspector Redgrave for trial of aiding and abetting an offence contrary to section 4 of the Official Secrets Act 1989 and of conspiring with two others to pervert the course of public justice. The Magistrate was not satisfied that there was sufficient evidence to justify committal to the Crown court. Her judgment was carefully considered and, on the advice of leading Counsel, and having received further evidence, the Crown Prosecution Service applied for a voluntary bill in respect of the conspiracy charge only. It was believed that the evidence was sufficient to provide a realistic prospect of conviction and it was in the public interest to pursue the prosecution. The application was made mindful of the case of Brookes v. DPP (1994), which states that a preferment of a voluntary bill, where a charge has been dismissed at committal proceedings, requires that the decision of the magistrates should be treated with the greatest respect. The application made under the old procedure, which did not require notice to be given to Detective Inspector Redgrave, was refused on 8 June 1999.