Section 116: Indictment of offenders
549.The need for section 116 arises from the decision of the House of Lords in R v Clarke, R v McDaid [2008] UKHL 8. Under section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (the 1933 Act), a bill of indictment becomes an indictment upon which a trial on indictment may proceed only once the bill has been signed by a proper officer of the court. Where a trial proceeds without a bill of indictment having been signed, the House of Lords confirmed in these cases that those proceedings and any subsequent conviction and sentence will be invalid as signature of the bill of indictment is a necessary prerequisite to the Crown Court obtaining jurisdiction to try the case.
550.Section 116 removes from section 2 of the 1933 Act the requirement that a bill of indictment be signed by the proper officer of the court with the result that the bill becomes an indictment on being preferred (subsection (1)(a) and (b)). Subsection (1)(c) inserts into section 2 of the 1933 Act three new subsections which provide that objections to an indictment based on an alleged failure to observe procedural rules may not be taken after the start of the trial proper, that is, when the jury has been sworn. (For this purpose a preparatory hearing does not mark the start of trial.)
551.Subsection (1)(d) and (2) make consequential amendments.
552.Paragraph 26 of Schedule 22 provides that, for the purposes of any proceedings before a court after the Act is passed, the amendments are deemed always to have had effect. They apply even if the proceedings (including appeals) have begun before the Act was passed.
