Geoffrey Dillion [2019] EWCA Crim 853

**R v Geoffrey Dillion** [2019] EWCA Crim 853 concerned an appeal against conviction where the trial proceeded on an indictment that joined two offences without a formal court order having been made, and the Court of Appeal (Lord Justice Gross, Mr Justice Goose and His Honour Judge Kinch QC sitting as a judge of the CACD) dismissed the appeal, holding that the convictions were safe and that the indictment could not now be quashed.

Mr Dillion was convicted on 15 December 2016 in the Crown Court at Wolverhampton before His Honour Judge Tregilgas-Davey of acting in breach of a restraining order contrary to section 5(5) of the Protection from Harassment Act 1997 and making threats to kill contrary to section 16 of the Offences Against the Person Act 1861, and was sentenced to two years’ imprisonment. He later sought leave to appeal against sentence, which was refused on 16 August 2017. He then sought leave to appeal against conviction out of time, which was referred to the Full Court by the Registrar. The court granted the extension of time of 312 days and leave to appeal.

On 18 June 2016 police officers, including PC Francis, observed Mr Dillion entering a branch of Lidl. PC Francis knew the appellant and was aware that he was prohibited from entering the store by the terms of a restraining order made by Wolverhampton Crown Court on 12 October 2011 for five years. When Mr Dillion left the store he was arrested by PC Francis. Mr Dillion denied being Geoffrey Dillion. After arrest and whilst at the police station, Mr Dillion made repeated threats to kill PC Francis in the presence of witnesses, reinforcing the threat by stating that he knew the route PC Francis walked with his young daughter when taking her to school. In interview Mr Dillion accepted entering the Lidl store but denied being subject to the restraining order and denied making threats to kill PC Francis. The issues at trial were whether Mr Dillion was the person subject to the restraining order and whether he made the threats intending PC Francis would fear they would be carried out.

Mr Dillion was brought before magistrates on 20 June 2016 in custody and refused to confirm his name or address. The case was sent to the Crown Court. At the plea and trial preparation hearing on 18 July 2016 Mr Dillion, represented but appearing by video link, refused to identify himself or cooperate in attempts to arraign him. He talked over the judge, who ordered the audio turned off. The judge determined that Mr Dillion had refused to plead and entered not guilty pleas on two separate indictments, each charging one offence. At a pre-trial review on 15 September 2016 counsel indicated Mr Dillion had been uncooperative such that no defence case statement had been prepared. The two indictments were listed for separate trials, on 21 September and 5 October 2016 respectively. On both dates Mr Dillion refused to attend from prison. Various adjournments followed. On 18 November 2016, three days before the next hearing, His Honour Judge Webb raised on the Crown Court Digital Case System whether the two indictments could be joined and tried together. On 21 November 2016 Mr Dillion again refused to attend but was represented by counsel. The court ordered, after agreement between prosecution and defence, that there would be one trial listed on 14 December 2016, the intention being that the two existing indictments would be the subject of a formal joinder application. However, no formal application or ruling was made. On 22 November 2016 the prosecution uploaded to the DCS a single indictment charging both offences, despite no court order for joinder having been made. On 14 December 2016 Mr Dillion attended the court building but refused to leave his cell. As a result of the difficult circumstances, the parties and the court did not appreciate that the joinder application had not been made or granted, and the trial proceeded on the basis that it had. The judge correctly ruled that it was appropriate to proceed in the absence of Mr Dillion. The jury were carefully directed and Mr Dillion was convicted of both counts.

Mr Witcher, on behalf of Mr Dillion, advanced two grounds of appeal. First, the indictment and trial were, if not a nullity, unsafe because there should have been a formal application and order for joinder of the two indictments, and even if an application had been made the two offences could not properly have been joined. Secondly, Mr Dillion was unfairly prejudiced by the two sets of allegations being contained in a single indictment such that the convictions were unsafe. It was argued that the two offences could not be said to have been founded on the same facts nor did they form or were part of a series of offences of the same or similar character as required by CPR Part 3.21. The only nexus was that the arresting officer for the breach of the restraining order was the victim of the threat to kill at the police station. Further, even if the two offences could have been properly joined, the court should have severed them due to the prejudice Mr Dillion suffered in defending the breach charge where the key witness was the victim of the threat to kill, and the comment about the officer’s young daughter prejudiced a fair trial. Mr Swinnerton, for the respondent, accepted there was no written application or court order to join the indictments but submitted that section 2(3) of the Administration of Justice (Miscellaneous Provisions) Act 1933 meant the convictions should not be quashed, and relied on the recent decision in R v MJ [2019] 1 Cr App R 10.

The court held that the starting point was that Mr Dillion faced two valid indictments after being sent to the Crown Court by the magistrates, separately containing the two offences. The court proceeded on the basis that the indictments would be tried separately with different trial dates. Because of Mr Dillion’s refusal to cooperate, on 21 November 2016 both counsel and the judge were satisfied that a joint trial was necessary, although no formal application or order was made. At trial on 14 December 2016 the trial indictment was not defective by reason of any misjoinder of counts that should not have been on the same indictment, but because no joinder had taken place. No objection had been made on behalf of Mr Dillion to the proposed joinder. The defect in the trial indictment was that it tried two valid but separate indictments in the same trial without an order of the court. Had the problem been brought to the attention of counsel and the judge on 14 December 2016, it was almost certain no objection would have been raised and the order would have been granted.

The court considered the effect of this procedural defect on Mr Dillion’s conviction. The court distinguished the line of authorities beginning with R v Callaghan (1992) 94 Cr App R 226 through to R v McGrath [2013] EWCA Crim 1261, which concentrated on the effect of a misjoinder of counts to an otherwise valid indictment, whereas in this appeal the complaint was of misjoinder in the sense that no order was made by oversight of two valid indictments. The court found greater assistance from the recent decision in R v MJ [2018] EWCA Crim 2485, [2019] 1 Cr App R 10. In that case the court was concerned with two appeals involving defendants being tried on an indictment which differed from the one on which they had been arraigned, because amendments had been made to add additional counts without further arraignment. The court dismissed those appeals relying on section 2(3) of the Administration of Justice (Miscellaneous Provisions) Act 1933 as amended, which Sir Brian Leveson P described at paragraph 48 as a broad anti-technicality provision clearly intended by Parliament to prevent belated technical objections to the validity of a form of indictment and the proceedings which follow.

The court applied section 2(3) of the 1933 Act, which provides that if a bill of indictment has been preferred otherwise than in accordance with section 2(2) the indictment shall be liable to be quashed, but that if the bill contains several counts and the said provisions have been complied with as respects one or more of them, only those counts wrongly included shall be quashed, and where a person who has been sent for trial is convicted on any indictment or count the indictment or count shall not be quashed in any proceedings on appeal unless application was made at trial that it should be quashed. The court held that in this appeal Mr Dillion was sent for trial for two separate offences in respect of which no criticism could be made. The joinder of those offences in the trial indictment without a court order, whilst being preferred otherwise than in accordance with section 2(2), was not required to be quashed under section 2(3) because it was a bill containing several counts in respect of one of which there was compliance with the provisions of section 2(2). Further, Mr Dillion having been convicted on the trial indictment and no application having been made at trial to quash the counts or indictment, it could not be quashed now.

The court identified a further obstacle to quashing the trial indictment. The preparation of the trial indictment and its uploading to the DCS by the prosecutor on 22 September 2016 was in accordance with section 2(1) of the 1933 Act and it was the preferred indictment under CPR Part 10.2(5) as amended by the Criminal Procedure (Amendment No.2) Rules 2016, in force from 3 October 2016. Accordingly, under section 2(6ZA) of the 1933 Act, the trial indictment was a bill of indictment preferred in accordance with subsection (2) such that no objection to the indictment may be taken after the commencement of a trial by reason of a failure to observe any rule under the Criminal Procedure Rules. Since no objection was taken by Mr Dillion to the trial indictment before the commencement of the trial, notwithstanding that he was represented throughout, neither the indictment nor any count upon it could be quashed.

The court rejected the submission that the conviction was unsafe. The court did not accept that in the circumstances the breach of restraining order count and the threat to kill count should not have been joined on the same indictment. The court was satisfied that the offences arose out of the same facts, as the threat to kill was only made because Mr Dillion had been arrested by the victim after he breached the restraining order. The court also did not accept that Mr Dillion was caused prejudice so as to require severance of the indictment. The terms of the threat to kill, including its reinforcement by describing the victim’s child, could not be described as facts of such a nature as might cause unfairness to Mr Dillion in his trial upon the breach of restraining order offence. A jury would be properly directed to try the case dispassionately so as to alleviate any risk of prejudice.

Before concluding, the court echoed the comments made by Sir Brian Leveson P in R v MJ at paragraph 54, that the modern practice of uploading draft indictments onto the DCS, intended to be convenient and to improve efficiency, is capable of leading to confusion and serious error if care is not taken to ensure that appropriate steps are taken to apply for orders to amend existing indictments and to ensure re-arraignment. The risk of multiple versions and uncertainty as to which is the true bill is obvious. The court emphasised that it is the duty of both prosecution and defence representatives to ensure that steps are taken to regularise the position as the case progresses and, in particular, that the form of indictment used at trial has received all necessary consideration. It would also be good practice for trial judges to enquire of counsel whether there were any outstanding issues in relation to the indictment before it is read before the jury at trial.

In short, the court dismissed the appeal, holding that neither the trial indictment nor either count upon it should be quashed and that the convictions were safe.

R v MJ [2019] 1 Cr.App.R 10
R v Smith [1997] 1 Cr.App. R 390
Henry Paul McGrath [2013] EWCA Crim 1261
J and Burton [2018] EWCA Crim 2485
Dillion [2017] EWCA Crim 1293