Stromberg [2018] EWCA Crim 561

R v Stromberg [2018] EWCA Crim 561 was an application concerning the scope and procedure for seeking a writ of venire de novo, in which the Court of Appeal held that such a writ cannot be obtained by free-standing application but must be sought within an appeal under Part I of the Criminal Appeal Act 1968, subject to the ordinary requirements of leave and time limits.

The applicant Paul Stromberg had been convicted on 14 May 2008 of conspiracy to commit an offence outside England and Wales contrary to section 1A of the Criminal Law Act 1977. The charge related to a planned importation of more than 300 kilograms of cocaine into Europe from Venezuela. He had first appeared before Westminster Magistrates’ Court on 5 April 2007 and was sent to the Crown Court at Woolwich. The Attorney General’s consent required by section 4(5) of the 1977 Act was not given until 30 August 2007, after the first hearing in the Crown Court on 28 June 2007. At the time it was widely understood that consent could validly be given at any point before the effective Plea and Case Management Hearing, and accordingly the proceedings were considered regular. Following conviction the applicant applied for leave to appeal, which was refused by the single judge on grounds unconnected to the timing of the Attorney General’s consent.

In Welsh [2016] 1 Cr.App.R. 8 and Welsh and others [2016] 1 Cr.App.R. 9 the court decided that for the purposes of section 4(5) proceedings in respect of an indictable-only offence are instituted at the point of sending from the magistrates’ court to the Crown Court, with the consequence that the Attorney General’s consent must be obtained before that point. Failure to obtain consent in time was held to invalidate the proceedings. Applying that analysis, the Attorney General’s consent in this case had not been given at the proper time and the applicant’s trial was a nullity.

In October 2017, more than eight years after the refusal of leave by the single judge, an application was made on behalf of Mr Stromberg for a writ of venire de novo to set aside and annul the conviction and require a new trial. Mr Rees, appearing for the applicant, submitted that this was a free-standing application not governed by the time limits in the 1968 Act and that he was not exercising any right of appeal under section 1 of that Act. The Criminal Appeal Office took the view that such a free-standing application could not be made and that any application concerning the outcome of a trial on indictment required leave to appeal. The Registrar referred the matter to the full court, treating it as a renewed application for leave to appeal. Mr Rees maintained that he had no instructions to renew any application for leave and recognised that if the time limits applied he would face considerable difficulty obtaining an extension of time, whether the case were treated as a “change of law” case under the principles in Jogee or as the raising of a new ground under the principles in James and others.

The court provided a detailed review of the historical development of the writ of venire de novo. Before 1848 there was no system of criminal appeal as understood today. The writ of venire de novo, addressed to the sheriff ordering him to cause new jurors to try the case afresh, was available to the court of trial or to a court of error when there was some irregularity in the proceedings, generally connected to the composition of the jury. The Court for Crown Cases Reserved, established by the Crown Cases Act 1848, could issue such a writ, as evidenced in Yeadon and Birch (1861) 9 Cox C.C. 91, though it did so rarely.

The Criminal Appeal Act 1907 established the Court of Criminal Appeal with statutory powers set out in sections 3 and 4. Section 7 imposed time limits for giving notice of appeal or application for leave to appeal. Section 4 provided that the court should allow an appeal on specified grounds and otherwise dismiss it, and if the appeal were allowed should quash the conviction and direct a judgment and verdict of acquittal. The court did not have any general power to order a retrial, but section 20(4) transferred to it all jurisdiction and authority vested in the judges of the High Court under the Crown Cases Act 1848, including the power to issue a writ of venire de novo. This was confirmed by the House of Lords in Crane v DPP [1921] 2 A.C. 299, where it was held that a mistrial was a nullity but that the defendant remained a convicted person within the meaning of section 3 of the 1907 Act and was entitled to appeal, and that where there had been no valid trial the Court of Criminal Appeal could order the defendant to stand trial afresh. The 1907 Act provided a limited right of appeal to the House of Lords requiring certification by the Attorney General that the decision involved a point of law of exceptional public importance.

The Criminal Appeal Act 1966 abolished the Court of Criminal Appeal and created a single Court of Appeal with two divisions. The jurisdiction exercisable by the Court of Criminal Appeal was transferred unchanged to the Court of Appeal Criminal Division, including expressly the jurisdiction to order the issue of writs of venire de novo. The Criminal Appeal Act 1968, which remains the basis of the jurisdiction and practice of the Criminal Division, provided in sections 1 and 2 for a right of appeal against conviction on grounds of law alone or with leave on other grounds, and for the court to quash the conviction if the appeal were allowed. Section 7 introduced a limited general power to order a retrial where the interests of justice so required. Section 18 required notice of appeal to be given within twenty-eight days, extendable by the court. Schedule 5 to the 1968 Act provided that the Criminal Division should exercise all jurisdiction of the Court of Appeal under Parts I and II of the 1968 Act and all other jurisdiction which had been that of the Court of Criminal Appeal immediately before it ceased to exist, including the jurisdiction to order the issue of writs of venire de novo. This provision was replaced in identical terms by section 53(2) of the Senior Courts Act 1981. Section 33 of the 1968 Act provided for a right of appeal to the House of Lords from any decision of the Court of Appeal on an appeal under Part I, subject to certification and leave, and stated that no appeal should lie from any other decision of the Criminal Division.

Mr Rees submitted that the 1968 Act divorced what he termed the merits jurisdiction from the lack-of-power jurisdiction. Where an appeal was directed to the safety of the conviction or an erroneous ruling of law or a material irregularity in the course of the trial, it fell within Part I of the 1968 Act and required leave in accordance with the statutory scheme. However, where it was said that some procedural or other failing had invalidated the trial process so as to render it null and void, Part I did not apply and the jurisdiction to be exercised was that to order the issue of a writ of venire de novo, to which the time limits and leave requirement did not apply. He relied on the statutory language, noting that section 2(2) required the court to quash the conviction if it allowed the appeal, whereas in this case the conviction should be declared null and void and a writ issued. He placed particular weight on observations of Lord Diplock in R v Rose [1982] A.C. 822, where at pages 833 to 834 Lord Diplock said that in cases where the Court of Criminal Appeal would have had jurisdiction to issue a writ of venire de novo because there had been no valid verdict, Part I of the 1968 Act would have no application since there would have been no conviction within the meaning of that Act, and the court’s jurisdiction to deal with such cases was derived exclusively from section 1(2)(b)(ii) of the 1966 Act as amended by the 1968 Act. Mr Rees also relied on observations of Henry LJ in R v Booth [1999] 1 Cr.App.R. 457, where it was said that “the venire de novo route of appeal is quite separate from the section 2 of the Criminal Appeal Act 1968 route”, and of Lloyd Jones LJ in R v Buttigieg [2016] 1 Cr.App.R. 18, where it was said that the court had in addition to its statutory jurisdiction under the 1968 Act a power to issue a writ of venire de novo under section 53(2)(d) of the 1981 Act.

Mr Perry, appearing for the respondent, submitted that a writ of venire de novo was a remedy, that the Court of Appeal Criminal Division was entirely a creature of statute, and that the only statutory route by which an individual could come before the court was by way of an application for leave to appeal. Unless and until the court determined otherwise, the applicant was a convicted person who wished to set aside that conviction, which could be done only in the context of an application for leave to appeal. It was only at the end of the appeal process that the court would determine whether there had been an irregularity rendering the trial invalid, at which point it might order the issue of a writ. The court was not then exercising a separate jurisdiction but dealing with the position by way of a particular remedy. Mr Perry pointed to an anomaly in the applicant’s argument: section 33 of the 1968 Act provided for an appeal to the House of Lords from any decision of the Court of Appeal on an appeal under Part I, and stated that no appeal should lie from any other decision. If the jurisdiction to order a writ of venire de novo fell outside Part I, there would be no right of appeal against a decision to order or refuse such a writ, even though there had been such a right under the 1907 Act as evidenced by Crane. This would be an extraordinary consequence of legislative changes in the 1966 and 1968 Acts which were technical in nature and not designed to achieve fundamental change, and there was no proper basis for such an interpretation in the absence of clear statutory language.

The court agreed with Mr Perry. The Lord Chief Justice, giving the judgment of the court, stated that the key point to recognise was that the writ of venire de novo was a remedy. It had been a remedy historically and remained so with the advent of the Court of Criminal Appeal in 1907, used to enable the court to order a retrial where a conviction was found to be null and void. The provisions of section 53(2) of the 1981 Act had not created a division between the merits and the vires jurisdiction of the Court of Appeal Criminal Division. The jurisdiction with which the court was concerned was to hear appeals against conviction, a single jurisdiction created by statute and exercised when a person applied for leave to appeal. Once leave had been granted the court would consider whether to allow the appeal or uphold the conviction, and might determine that it could not uphold the conviction because it was null and void, at which point it might order the issue of a writ of venire de novo. It was not then exercising some separate jurisdiction but dealing with the position by way of a particular remedy. The language of section 53(2)(d) was the language of remedy, referring to the jurisdiction to order the issue of the writ, not a jurisdiction to apply for it. The observations in Rose, Booth and Buttigieg were consistent with this analysis and were concerned with remedy rather than jurisdiction. The applicant’s argument conflated the route by which an appellant came before the court and what the court might do once seized of the appeal. The applicant’s conviction was valid for all purposes until the contrary was determined by the Court of Appeal Criminal Division. If he wished the court to set aside and annul his conviction he must appeal against it, thereby becoming subject to the leave provisions and time limits in section 1 and section 18 of the 1968 Act. Section 2 was concerned with circumstances in which the court might quash a conviction, but annulment of a conviction was a distinct remedy which could only be provided by a court of competent jurisdiction seized of the case.

The court rejected Mr Rees’s response that the applicant was obliged to apply for something inappropriate to his case, namely the quashing of his conviction, when he wanted annulment. A person wishing to argue that his conviction was invalid and should be annulled could do so within the context of an application for leave to appeal, indicating the remedy he considered appropriate. The court also rejected the suggestion that it was rational for the legislature to have removed any general right of appeal to the Supreme Court given the narrow technical nature of the jurisdiction, noting that exercise of such jurisdiction might have very significant consequences and that the Supreme Court had engaged with narrow technical points of criminal procedure in recent times. The researches of counsel had been unable to identify any previous case in which a free-standing application had been made. Instances where a writ had been issued following an appeal against sentence rather than conviction, the defect only becoming apparent once the case had arrived before the court, involved cases where the appellant had come before the court by way of application for leave to appeal.

The court noted that the applicant did not seek to renew his long-ago rejected application for leave to appeal and therefore it was not required to consider the merits of the application. The court observed that in Welsh the absence of consent at the appropriate time had been held to render the trial a nullity notwithstanding that consent had been given albeit late and that the proceedings had otherwise been fair and the convictions properly sustained on the evidence. The court referred to observations of Lord Thomas of Cwmgiedd CJ in Williams [2017] EWCA Crim 281 expressing the hope that in future the court would take the view that the highly technical law in relation to nullity was an outdated concept that should no longer prevail and that a modern approach should be taken, deciding on the fairness of the trial, the prejudice to a defendant and the safety of the conviction. The court considered that those observations could be transposed to the circumstances of this case. It had not had distinct argument on the effect of the failure of the Attorney General to give the necessary consent at the right point, though Soneji [2006] 1 A.C. 340 had been cited, emphasising that the consequences of a failure to follow a procedural requirement were to be divined by reference to presumed Parliamentary intention. The question surrounding late provision of the Attorney General’s consent had not been finally determined by the Welsh cases and might require further argument should the issue arise again, but there could be little doubt that the applicant’s trial had been fair, that his conviction was safe in factual terms and that the late giving of consent of itself caused him no prejudice.

In short, an application for a writ of venire de novo must be made within an appeal under Part I of the Criminal Appeal Act 1968, subject to the ordinary requirements of leave and time limits, and cannot be brought as a free-standing application unconstrained by those requirements.

Crane v DPP [1921] 2 A.C. 299
Rose & Ors [1982] AC 822
R v Booth and others [1999] 1 Cr.App.R. 457
Cain [1985] AC 46
Soneji and Another [2005] UKHL 49; [2006] 2 Cr App R 20; [2006] 1 AC 340
Welsh [2015] EWCA Crim 1516; [2016] 4 WLR 13; [2016] 1 Cr. App. R 9, CA.
Lewis Johnson and Others [2016] EWCA Crim 1613
Jogee ; Ruddock v The Queen [2016] UKSC 8; [2016] 2 All ER 1; [2016] 2 WLR 681; [2016] 1 Cr App R 31, [2017] AC 387
Williams [2017] EWCA Crim 281
James and others [2018] EWCA Crim 285, [2018] 1 WLR 2749

Umerji [2021] EWCA Crim 598
Lalchan [2022] EWCA Crim 736