In The Supreme Court of Bermuda
Civil Jurisdiction 2005 No. 93
Criminal Jurisdiction 2005 No. 18
Criminal Code Act 1907, s. 485
Indictments (Procedure) Rules 1948
Bermuda Constitution Order, s. 6
In the matter of s. 15 of the Bermuda Constitution Order 1968
BETWEEN:
Javon Ernest Gardner
1st Plaintiff and
Kenneth Sinclair Durrant
2nd Plaintiff
The Director of Public Prosecutions
Defendant
Dated the 1st June
2005
Ground, CJ
Ms V. Pearman for the 1st Plaintiff
Mr C Attridge for the 2nd Plaintiff
The DPP for the Defendant
Mr M Douglas for the Attorney General
JUDGMENT of Ground, CJ
Introduction
The plaintiffs in the civil action are themselves defendants in the criminal matter. According to their brief
Statement of Facts in support of the relief claimed in the Originating Summons, the plaintiffs were charged in the Magistrates Court on 20th December 2004 with various conspiracies. The papers were served on them and eventually1 2005 they elected a long form preliminary inquiry which was set down for 28th and 29th March
2005. However, before that could be heard, on 24th February 2005 the plaintiffs were informed that a judge had consented to the preferment of a voluntary bill against them. The file shows that such consent was given by Greaves J on 22nd February, and that the indictment was signed by the Registrar on the 25th February. On

1st March the plaintiffs appeared and were arraigned on that indictment, on which occasion they were not required to plead on the basis that a motion to quash the indictment was to be made.
This matter came before me on:
1 There is a dispute over the date when they made the election, but nothing turns on it.
(i) the plaintiffs' Originating Summons of 19th April 2005 for a stay of the criminal prosecution and for declarations -
(a) that the statutory provisions which govern the process by which a voluntary bill of indictment is preferred before the Supreme Court are unconstitutional; and
(b) that the manner in which the DPP has preferred the voluntary bill of indictment in this matter is unconstitutional.
(ii) A Notice of Motion of 1st April 2005 by the defendants in the criminal proceedings that the indictment be quashed on the grounds that:
(a) it is formally defective in that it charges an offence which is not disclosed on the papers placed before the
Court; and
(b) that the Court may have been misled in that information which is vital to any determination of a prima facie conspiracy may have been omitted from the file placed before the Court when the Director of Public
Prosecutions sought consent for the voluntary bill in question.
The matter first came before me on 27th April, when the DPP submitted that, as the Originating Summons sought to attack legislation, the Attorney General should be given notice and, if he wished, be heard. I acceded to that, and ordered service on the Attorney General. However, I considered it important that the matter proceed quickly because it concerned (i) a Constitutional issue; and (ii) a criminal matter, in which the plaintiffs were in custody, and were refusing to plead until their various challenges to the indictment had been considered.
The matter was then listed for hearing on 6th May, when it proceeded, the Attorney General being represented.
On that date I rejected a preliminary point taken by counsel on behalf of the Attorney General that the
Originating Summons in the civil matter was not supported by an affidavit. The point was technically valid, but I thought it a poor one when all the material facts were within the knowledge of the prosecutor, and indeed were effectively admitted in an affidavit of 5th May filed on behalf of the DPP.
More substantially, it was objected by the DPP at the outset that I did not have jurisdiction to hear any of these matters, either on the Constitutional application or on the application to quash the indictment. It was said that a
Judge had no jurisdiction to review the decision of another Judge of co-ordinate jurisdiction. However, I did not rule on the point at the outset, as it was not immediately clear that that was what I was being asked to do.
Having heard full argument I came to the decision that it was proper for me to hear the Constitutional challenge to the legislation itself, as that did not involve a review of the decision of a fellow judge. Even then I thought that the point was finely balanced, but as the Supreme Court has original jurisdiction in Constitutional matters, I came down on the side of entertaining the application.
However, I thought the second limb of the Constitutional challenge (that the manner in which the DPP had preferred the voluntary bill was unconstitutional) was really a veiled attack on the way the Judge determined to handle the matter - for it was always open to him to order service of the defendants. I consider that it is a fundamental principle that one Judge of the Supreme Court cannot sit in appeal from, or review the decisions of, another. Thus Judicial Review does not generally lie against the Supreme Court (see White Book, 1999 ed.,

note 53/14/26). That principle has been specifically applied to voluntary bills: in R v Raymond [1981] 2 All
ER 246 CA at 255 a - b the Court of Appeal expressed "a tentative belief that it is for this court, and not another High Court judge or circuit judge, to review a decision made by a High Court judge on an application to him for leave to prefer a bill of indictment." That has been firmed up since then, it having been held that the
Divisional Court has no jurisdiction to review the decision of a High Court Judge to give leave to prefer a voluntary bill: see Archbold, para. 1 - 214 citing R v Manchester Crown Court ex p. Williams and Simpson
[1990] Crim. L.R. 654 DC. By the time of the decision in R v Crown Court at Snaresbrook ex p. Director of the Serious Fraud Office (The Times, 26 October 1998) (see infra) the Court of Appeal seems to have taken it for granted that:
". . . the decision of a High Court judge to grant a voluntary bill of indictment is neither appealable nor reviewable."
On consideration, therefore, I came to the view that the second limb of the Constitutional challenge was not a proper application to come before me, and I dismissed it peremptorily on that basis. However, were I wrong on that I would still have refused it for the reasons set out below.
In respect of the application to quash the indictment, as the learned Judge would have had a copy of the proposed indictment in front of him when he considered the application and the evidence filed in support of it, any argument that the indictment charges an offence not disclosed in the papers is an invitation to review the correctness of the Judge's decision in consenting to its preferment. For that reason it too should be dismissed in limine.
The plaintiffs also sought, at the outset, disclosure of the application to the judge and the supporting affidavit.
The DPP objected to this. After consideration I refused that disclosure on the basis that it was irrelevant to the
Constitutional challenge, and could only be relevant to an impermissible review of the Judge's decision on its merits, of the sort foreshadowed by the Motion to quash the indictment.
The Statutory Provisions
An indictment preferred with the leave of a Judge, rather than after a committal by the Magistrates Court, is commonly referred to as a 'voluntary bill'. The provisions governing voluntary bills are found in section 485 of the Criminal Code Act 1907, which provides:
Preferment of indictment
485 (1) Subject to this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before the Supreme Court, and where a bill of indictment has been so preferred the
Registrar shall, if he is satisfied that the requirements of subsection (2) have been complied with, sign the bill, and it shall thereupon become an indictment and be proceeded with accordingly:
Provided that if a judge is satisfied that such requirements have been complied with, he may, on the application of the prosecutor or of his own motion, direct the Registrar to sign the bill and the bill shall be signed accordingly.
(2) Subject as hereinafter provided, no bill of indictment charging any person with an indictable offence shall be preferred unless -
(a) the person charged has been committed for trial for the offence in pursuance of the Indictable Offences Act
1929; or
(b) in the case of a bill charging any person with perjury, the person charged has been committed for trial by the Supreme Court; or

(c) the bill is preferred by the direction or with the consent of a judge:
(4) The Supreme Court may make rules for carrying the provisions of this section into effect, and in particular for making provisions as to the manner in which and the time at which bills of indictment are to be preferred before the Supreme Court and the manner in which application is to be made for the consent of a judge for the preferment of a bill of indictment.
Rules have been made under subsection (4), being the Indictments (Procedure) Rules 1948. Insofar as is material those rules provide:
Application for consent
4 An application under section 485(2)(c) of the Criminal Code [title 8 item 31] for consent to the preferment of a bill of indictment by the judge shall be in writing, shall be signed by the applicant or by counsel in his behalf and shall be delivered to the Registrar.
Decision of Judge
7 (1) Unless the judge otherwise directs in any particular case, his decision on the application shall be signified in writing without requiring the attendance before him of the applicant or any of the witnesses, and if the judge thinks fit to require the attendance of the applicant or of any of the witnesses, their attendance shall not be in the open court.
(2) Unless the judge specially gives a direction to the contrary, where an applicant is required to attend as aforesaid, he may attend by counsel.
The rules also contain detailed provisions requiring the application to be accompanied by the proposed bill of indictment; the evidence in support; a statement that the evidence will be available at trial; and a statement that the case disclosed by the evidence is, to the best of the knowledge, information and belief of the applicant, substantially a true case.
The Issues
It is the plaintiffs' case that the procedure by way of voluntary bill infringes their right to a fair trial as guaranteed by section 6 of the Constitution, and particularly by section 6(1), which provides:
"Provisions to secure protection of law
6 (1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."
The plaintiffs argue that that provision should be interpreted in the light of the European Convention on
Human Rights ("the ECHR"), which has been extended by the United Kingdom to Bermuda. In particular it is said that the principle of 'equality of arms' requires that the application for a voluntary bill should be made on notice, and they point to the practice direction currently in force in the UK which requires that2. The DPP relies upon a series of reported cases in which it has been held that no notice is required, because the provisions are procedural.
Conclusions
The leading case on voluntary bills is Brooks (Lloyd) v Director of Public Prosecutions xyzzy Anor. (1994) 44
WIR 332, a decision of the Privy Council on appeal from the Court of Appeal of Jamaica. In that case there

had been a preliminary inquiry before a Magistrate, who after 16 days ruled that no prima facie case had been made out, and discharged the defendant. The DPP then applied to a Supreme Court Judge for his consent to a voluntary bill, which was given. The appellant was given no notice of the application, nor any opportunity to be heard upon it. The Privy Council held that the exercise of the powers of a judge to consent to a voluntary bill was a procedural step which did not require, either at common law or under the Jamaican Constitution, prior notice to the proposed defendant. The judgment of the Privy Council on this point was given by Lord
Woolf, and is worth quoting in full:
"The natural justice issue
The judge in exercising his powers under section 2(2) is doing no more than giving his indorsement to the initiation of proceedings. This is a procedural step which is not required by principles of fairness, the common law or the Constitution to be the subject of prior notice to the person who is to be the subject to the proceedings. If guidance as to the position at common law is required, then it is provided by the decisions of the House of Lords in Wiseman v Borneman [1969] 3 All ER 275 and R v Raymond [1981] 2 All ER 246. The
Constitution adds nothing to the position at common law.
The judge has a residual discretion which he can exercise in exceptional circumstances to require a defendant to be notified and to consider any representations which a defendant may wish, but this case is certainly far from
2 For the current version see Archbold 2004 ed., para. 1 - 227 and [2003] 1 WLR 2870. being a case where such action was necessary or even desirable. The judge in order to come to his decision could do no more than study the depositions of the proceedings before the resident magistrate. These were placed before the judge as an exhibit to the affidavit of Crown counsel in the office of the Director of Public
Prosecutions and the judge no doubt had proper regard to them. No more was required. There is nothing in this issue."
Although a text of the Jamaican Constitution was not before me, it was accepted that there is no material difference between it and the Bermuda equivalent3. Before me it was argued that Brooks could be distinguished because the ECHR had not been extended to Jamaica. It was said that if modern European jurisprudence were applied to the same constitutional material it would produce a different result, and I was taken to various judgments of the European Court of Human Rights in support of that. However, I do not think that any of those cases are in fact in point, and they provide me with no basis on which to distinguish Brooks, which, as a judgment of the Privy Council, is otherwise strictly binding upon me.
I should add that I consider that the plaintiffs' approach is in any event precluded by the following dicta of the
Court of Appeal in BIU v Bas-Serco Limited, [Civ. App. 2003 #16] 22nd Dec. 2003, per Clough JA at page 39
(although as the case was not cited at the hearing, I do not in fact decide the matter on this basis):
"114. Although the ECHR was applied to Bermuda by the United Kingdom (before the 2nd June 1968 when the Bermuda Constitution Order 1968 took effect) no domestic legislation has been passed to implement specifically the ECHR in Bermuda. It is therefore the Constitution (and not the ECHR) which has the force of law to be applied by the Bermuda courts."
It was also argued that Brooks should be distinguished because in that case, the magistrate having discharged him, the appellant was not a person charged with a criminal offence, and so was not within the literal terms of the Constitutional safeguard. I rejected that argument because it would produce the incongruous result that a person who had been discharged at a preliminary inquiry was in a worse position that a person in respect of whom a preliminary inquiry had not yet been held. Nor do I think it a real distinction.
In summary, therefore, I think that I am bound by the decision of the Privy Council in Brooks to hold that neither the legislation permitting a judge to consent to the preferment of a voluntary bill, nor the practice of

making and deciding an application for such consent ex parte, offend the Constitutional guarantee of a fair trial. Brooks was a decision on the similar provisions of the Constitution of Jamaica, and there are no real grounds for distinguishing it.
I think it appropriate, however, to add one thing. To the extent that Brooks affirmed that the judge has a residual discretion to require that notice be given, and to entertain submissions, it was applying observations in
R v Raymond [1981] 2 All ER 246. It may be that, since that time, the common law on that point has evolved.
The modern position in England xyzzy Wales is set out in R v Crown Court at Snaresbrook ex p. Director of the Serious Fraud Office (The Times 26 October 1998), a transcript of which was helpfully placed before me by Mr. Douglas on behalf of the Attorney General. At p. 9 Brooke LJ, giving the judgment of the Court, said:
"This is not to say that a defendant may not or should not be heard by the judge to whom an application for a voluntary bill is made. The Practice Direction (Crime: Voluntary Bills) [1991] All ER 288, [1990] 1 WLR
1633 says only:
"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."
3 A full text can be found at www.georgetown.edu. Section 20(1) provides:
"(1) Whenever any person is charged with a criminal offense he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."
The Court of Appeal which decided R v Raymond in 1980 considered departures for ex parte procedures to be
"extremely rare". It is within the experience of both members of this court, however, that the practice of many
Queen's Bench judges has in the intervening years moved steadily towards the kind of inter partes process which justice ordinarily requires (despite the absence of any reference to such procedure either in the Act of
1933 or in the Indictments (Procedure) Rules 1971), without apparent injury to the useful purpose which a voluntary bill serves. Defence submissions may occasionally alert a judge to a potential injustice were a voluntary bill to be granted. This is why many judges have increasingly over recent years chosen to invite written submissions from defendants or intended defendants before granting a voluntary bill and, if the written submissions seem to call for it, inviting the attendance of both parties in order to make oral submissions, as
Bell J did in the present case.
Because there is an inbuilt potential for unfairness in any ex parte procedure, the courts ordinarily contemplate it only when the exigencies of time and apparent merit create a risk of greater injustice if for the time being they do not proceed ex parte. The voluntary bill process does not generally have this justification, and with the increasing sensitivity of courts to art 6 of the European Convention on Human Rights, which guarantees a fair hearing in the determination of any criminal charge, the justification for routinely rather than exceptionally putting the defence on notice has increasingly been recognised by judges."
It was argued by Mr. Douglas that that has no application here, as it derives from an English Practice Direction which we do not have in Bermuda, and which requires the giving of notice. I think, with respect, that that is not right. The Practice Direction referred to by Mr. Douglas is the current one, which was first promulgated by
Lord Bingham in 1999: see [1999] 2 Cr. App. Rep. 442 4. It does indeed endorse the DPP's guidelines of the same date, which required prosecutors to give notice to defendants of such applications. The judgment of the
Court of Appeal in Snaresbrook was pronounced on 16 October 1998, and therefore both it, and the change in practice which it records, predate that Practice Direction. The Practice Direction in force at the time of the judgment (and set out in it) merely reiterated the common law as derived from Raymond.
It seems to me that the modern approach, recognised in Snaresbrook, is a salutary one, and that a Judge considering an application for a voluntary bill should normally consider whether or not notice and a chance to make written submissions should be afforded to the defendant. That is an approach which I adopted in a recent

application which I considered: see R v Lambert xyzzy Ors. Criminal Case No. 17 of 2005. However, whether to do so or not is a matter for the discretion of the individual judge, and its exercise is not something which is reviewable by another Judge of the Supreme Court whether on a Constitutional motion or an application to quash the subsequent indictment.
In summary, therefore, I dismissed both the Constitutional Motion and the application to quash the Indictment, and remanded the defendants in custody to the next arraignment session, when their pleas could be taken.
4 For the up-to-date version see note 1 above.
[2005] Bda LR 21