Llewelyn v R.

Factual and Procedural Background

At 11 pm on 7 April 2018, an ambulance crew attended an address in The City where they found the victim with serious injuries, including multiple fractures to the jaw caused by being struck repeatedly in the face with a rock. The prosecution alleged that the Appellant and co-accused jointly inflicted this grievous bodily harm following a disagreement over drugs. The Appellant admitted presence at the scene but denied participation.

On 8 November 2019, at the Crown Court at The City, the Appellant was convicted with two others of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861. He was sentenced to over six years' imprisonment.

On 14 May 2020, the Appellant and co-accused successfully appealed their convictions. The court ordered a retrial under section 7(1) of the Criminal Appeal Act 1968 (CAA), stipulating arraignment within two months, by 14 July 2020. However, the Appellant was not arraigned until 30 September 2020, pleading not guilty. The Appellant submitted that the subsequent trial was a nullity due to this delay.

The chronology of events reveals multiple procedural steps, including bail applications, transfer of the case between courts, and delays attributed in part to COVID-19 restrictions and understaffing. The trial proceeded on 15 March 2021, leading to conviction and sentencing of the Appellant.

Legal Issues Presented

1. Whether the Crown Court had jurisdiction to proceed with the trial despite arraignment occurring outside the two-month period stipulated by section 8(1) of the Criminal Appeal Act 1968 without leave from the Court of Appeal.
2. Whether failure to comply with the section 8(1) time limit renders the subsequent trial a nullity or invalid.
3. Whether the Appellant waived any irregularity regarding the late arraignment by failing to object before trial.
4. The proper interpretation and application of the provisions of sections 7 and 8 of the Criminal Appeal Act 1968 concerning retrial and arraignment.

Arguments of the Parties

Appellant's Arguments

• The power to arraign outside the two-month period is exclusively within the jurisdiction of the Court of Appeal, not the Crown Court.
• Section 8(1) of the CAA constitutes an absolute bar to arraignment outside the time limit without Court of Appeal leave; no such leave was sought or granted.
• The prosecution failed to act with all due expedition, a statutory requirement for any extension.
• The trial following the late arraignment was therefore unlawful and a nullity.
• The decision in R v Muner Al-Jaryan underscores the sanctity of Court of Appeal orders and supports this position.
• Although no prejudice was suffered by the Appellant, the trial proceeded without the required judicial authorization under section 8.

Respondent's Arguments

• The Crown Court did not act without jurisdiction despite the late arraignment, as no application under section 8(1) or (1A) was made by either party.
• Failure to arraign within the time limit does not necessarily invalidate subsequent proceedings; irregularities can be waived if no objection is raised.
• Cited authorities establish that trials without formal arraignment can still be valid if the accused does not object.
• Parliament did not intend failure to apply under section 8(1) to automatically invalidate the trial.
• The Appellant failed to make a section 8(1A) application to set aside the retrial order.
• The Appellant did not suffer prejudice as a result of the irregularity, and the trial was fair.
• The Crown does not condone ignoring section 8 but submits the procedural failure should not nullify the trial.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by emphasizing the statutory framework governing retrials under sections 7 and 8 of the Criminal Appeal Act 1968. Section 7 empowers the Court of Appeal to order retrials when justice requires, while section 8 imposes a mandatory two-month time limit for arraignment following such an order, unless leave to extend is granted by the Court of Appeal.

The court acknowledged that the purpose of section 8 is to ensure retrials occur promptly, with arraignment serving as a critical procedural step to bring the case under judicial control. The court noted that the exclusive jurisdiction to grant leave for late arraignment rests with the Court of Appeal, and that the prosecution must act with "all due expedition" to comply.

The court analyzed the procedural history, including delays largely attributable to COVID-19 related understaffing and court capacity issues, but stressed that such difficulties do not excuse overlooking the statutory deadline.

While the Crown Court judge had taken the view that the Appellant waived any irregularity by failing to object to the late arraignment, the court rejected this reasoning. It held that the protections in section 8 are substantive and cannot be circumvented by waiver or procedural oversight. The court distinguished the present case from ordinary arraignment irregularities, emphasizing that the statutory scheme for retrials is unique and strictly regulated.

Applying established precedents, the court considered whether the failure to comply with section 8 rendered the Crown Court proceedings a nullity. It concluded that Parliament intended non-compliance with section 8 to result in loss of jurisdiction and invalidity of the trial, given the exclusive role of the Court of Appeal in authorizing out-of-time arraignment and the protections afforded to the accused.

The court further clarified that abuse of process applications do not provide a substitute remedy for the statutory protections under section 8, as such applications require proof of prejudice and are rarely successful.

In sum, the court found that the Crown Court lacked jurisdiction to proceed with the trial due to failure to comply with section 8, and that this procedural failure could not be remedied by waiver or subsequent proceedings.

Holding and Implications

The court quashed the Appellant's conviction.

The direct effect of this decision is to invalidate the trial and conviction obtained following the late arraignment without Court of Appeal leave. The ruling reinforces the mandatory nature of the section 8 time limit and the exclusive jurisdiction of the Court of Appeal to grant extensions. It underscores the importance of strict compliance with statutory retrial procedures to protect the rights of defendants and maintain the integrity of the judicial process.

No broader precedent beyond the strict application of sections 7 and 8 of the Criminal Appeal Act 1968 and related principles was established. The decision serves as a clear reminder to courts and parties of the consequences of procedural non-compliance in retrial cases.