Stocker, R v

In 2010, four young men came forward to allege that the appellant indecently assaulted them when they were aged between 10 and 16. The offences dated back to the period 1985 to 1997 and were, therefore, properly charged as indecent assault, contrary to section 15 (1) of the Sexual Offences Act 1956 (“the 1956 Act”). The appellant was prosecuted. However, during the first trial in July 2011, another young man E disclosed an allegation of anal rape. The jury was discharged and an investigation ensued. E claimed the rape occurred on New Year’s Day 2008 and the Appellant was, therefore, charged with rape contrary to section 1 (1) of the Sexual Offences Act 2003 (“the 2003 Act”).

The case was sent for trial at the Crown Court and the Crown Prosecution Service took on the responsibility for drafting the indictment. The indictment was produced electronically. Unfortunately, the prosecutor clicked in error on the Statement of Offence relevant to an offence of rape under section 1 (1) of the Sexual Offences Act 1956. The one count Indictment read:

A second trial was held at Truro Crown Court, before His Honour Judge Christopher Harvey Clark QC, on five counts of indecent assault contrary to section 15 (1) of the Sexual Offences Act and the one count of rape (with the Statement of Offence still showing the wrong year for the statute). The trial proceeded as if count 6, the rape charge, was properly brought under section 1 (1) of the Sexual Offences Act 2003. The judge directed the jury in appropriate terms for the indecent assault offences charged under the 1956 Act and the rape offence charged under the 2003 Act. At one stage (page 5 letters D-E of the summing up) he explained to the jury that the 1956 Act had “been repealed”, adding: “we are now subject to the Sexual Offences Act 2003”. Unfortunately, this did not trigger any appreciation of the error on the indictment.

On 30th March 2012 the appellant was convicted of all six counts. The trial was conducted with scrupulous fairness and nothing occurred (other than the error in the indictment) which could have formed the subject of an appeal. The trial judge imposed a term of imprisonment for public protection and specified a minimum term of 6 years. On 4th April 2012 he was persuaded to add a Sexual Offences Protection Order (“SOPO”) despite protestations from the defence that it was unnecessary.

Initially the appellant sought leave to appeal against the Sexual Offences Prevention Order only. The time period for the notice of appeal against conviction expired on 27th April 2012. On 6th September 2012 leave to appeal against sentence was granted. Defence Counsel, Mr Quaife, reviewed the indictment at that stage and noted that the wrong Act appeared in the Statement of Offence of count 6. He drafted grounds of appeal against conviction accordingly. The application has been referred to the full court and we give leave.

The issue in the appeal against conviction is simple to state: the Statement of Offence wrongly identified section 1(1) of the Sexual Offences Act 1956 as the statutory provision contravened. The offence was allegedly committed in 2008 and, therefore, the relevant provision was section 1 (1) of the Sexual Offences Act 2003. What are the legal consequences of the error?

Section 3 of the Indictments Act 1915 (the 1915 Act) provides:

“(1)

Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.

(2)

Notwithstanding any rule of law or practice, an indictment shall, subject to the provisions of this Act, not be open to objection in respect of its form or contents if it is framed in accordance with the rules under this Act.”

Section 2 of the Administration of Justice Act 1933 (“the 1933 Act”) provided the procedure to be followed for the preferring of a bill of indictment and declared that if a bill of indictment was preferred other than in accordance with its provisions the indictment was liable to be quashed. One of those provisions was the signing of the indictment by a proper officer of the court.

The current rules under the 1915 Act which apply are the Criminal Procedure Rules 2013. (“CPR 2013”). The CPR at the time of the present trial were in similar form to CPR 2013 in respect of Rules 1 and Rule 14 which are relevant here. Rule 1.1 provides:

“(1)

The overriding objective of this new code is that criminal cases be dealt with justly. ”

(2)

Dealing with a criminal case justly includes―

(a)

acquitting the innocent and convicting the guilty;

(b)

dealing with the prosecution and the defence fairly;

(c)

recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;”

Rule 14.2. (1) provides:

“An indictment must be in one of the forms set out in the Practice Direction and must contain, in a paragraph called a ‘count’—

a statement of the offence charged that—

describes the offence in ordinary language, and

(ii)

identifies any legislation that creates it; and

such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant….”

Mr Quaife’s submissions were succinct. He began by apologising profusely to the court for failing to spot the error until so late in the day. He accepted that it could have been corrected at any time during the trial. No-one was misled and no prejudice caused to the appellant. Nevertheless, he sought to persuade the court that the rape conviction must be quashed.

His argument is as follows: by virtue of section 3 of the 1915 Act and Rule 14.2 of the CPR 2013 both an accurate Statement of Offence and Particulars of Offence are conditions precedent to a valid indictment and so to a valid trial. Section 1 (1) of the Sexual Offences Act 1956 has been repealed for offences committed after the coming into force of the 2003 Act. The appellant has, therefore, been convicted following an “invalid trial” on an “invalid indictment” and of an offence “not known to law”.

Mr Quaife placed just three decisions before the court in support of this proposition. He relied first upon the general observations of Lord Bingham in R v Clarke and McDaid 2008 2 Cr App R 2 HL at paragraph17 to the effect that “where the state exercises its coercive power to put a citizen on trial for serious crime a degree of formality is not out of place.” In Clarke the failure to sign an indictment at the start of a trial, in breach of section 2 of the 1933 Act was deemed fatal to the conviction as a matter of statutory interpretation. The “inescapable conclusion” was that Parliament intended that the bill of indictment should not become an indictment unless and until it was duly signed by the proper officer. There could be no valid trial on indictment if there was no valid indictment (see paragraphs 18 and 19 of Lord Bingham’s speech). Parliament responded by enacting the Criminal Justice Act 2009 which amended section 2 of the 1933 Act. No objections to the indictment for a failure to observe rules as to the preferment of an indictment can now be taken after the commencement of the trial.

In R v Shields [2011] EWCA Crim 2343 the court was confronted with what Mr Quaife maintains was a similar situation to the present. Shields was convicted of rape and made subject to a SOPO under the 2003 Act. He was later indicted and convicted of a breach of a Sexual Offences Order (a “SOO”) under the Crime and Disorder Act 1998 (the relevant section of which had been repealed). The prosecution accepted theappellant had been convicted of an offence of which he could not have been guilty and the conviction could not stand. The only issue was whether or not the court was entitled to use its powers under section 3 of the Criminal Appeal Act 1968 (“the CAA”) to substitute a conviction for another offence, namely a breach of the SOPO. Rix LJ giving the judgment of the court stated at para 11:

“…………this was a case of an indictment which was not merely defective, leading to a possible issue on appeal as to whether a conviction was ‘unsafe’ or not for the purposes of section 2 of the Criminal Appeal Act 1968, but was a nullity charging an offence unknown to law. This is despite the fact that mere drafting defects are not favoured as invalidating an indictment.”

The court found that it had no power under section 3 to substitute a conviction for breach of a SOPO.

In R v MC [2012] EWCA Crim 213 the appellant was convicted of an offence of indecent assault contrary to section 14 (1) of the Sexual Offences Act 1956. By the date of the offence, section 14 (1) had been repealed and been replaced by the provisions in the 2003 Act. All parties including the judge proceeded on the basis the offence charged was an offence of indecent assault contrary to the 1956 Act. He was convicted of that offence. The prosecution did not attempt to uphold the conviction but focussed on the court’s powers under section 3 of the CAA. The court concluded that the appellant had been convicted of an offence not known to the law and that section 3 did not allow the court to substitute a verdict.

Mr Duncan Penny who appeared for the prosecution in this appeal, but was not trial counsel, took an entirely different course from the prosecuting advocates in Shields and MC. He did not invite us to have recourse to section 3. He focussed his efforts entirely on trying to persuade the court that the error in the Statement of the Offence did not mean the count was a nullity.

He sought to distinguish the facts of the instant case from the facts in Shields and MC; he relied heavily upon the fact that the judge here directed the jury according to the law applicable to an offence under section 1 (1) of the 2003 Act. Unlike the trial judges in Shields or MC, HHJ Clark placed all the relevant legal and factual issues before the jury. There was only the one error and that, he maintained, was of no true significance. It was a mistake which could have been corrected at any time without causing any prejudice.

His list of authorities was somewhat longer than Mr Quaife’s. He suggested that, overall, they supported his proposition that a technical defect of this kind should not obstruct justice. We have conducted our own researches to test that assertion. There are a large number of cases (many of which were reviewed by Lord Bingham in Clarke and McDaid in so far as they were relevant) in which an appellate court has considered the consequences of a defect in the pleading of an indictment. We shall not rehearse them all. On one view, they reveal a variation in approach from an insistence on a strict adherence to the rules to a less formalistic and more flexible approach, whereby the focus is on the absence of prejudice to the accused and safety of the conviction.

Application of the formalistic approach to defective indictments can be seen in the case of Taylor (1924)18 Cr. App. R. 105. The appellant was charged on an indictment of which the Statement of Offence read: “delivering a forged nomination paper contrary to s. 74 of the Municipal Corporations Act, 1882”. It was originally an offence under section 74 of that Act to deliver to a town clerk any forged nomination paper, but its provisions had been repealed and replaced by others. The court held that the wrong section had been stated in the indictment and the indictment must be quashed.

In Hyde (1934) 24 Cr. App. R. 149 (later disapproved) the appellant was convicted of arson contrary to section 7 Malicious Damage Act 1861. The Particulars of the Offence stated that he had “unlawfully and maliciously set fire to certain straw then being in a building”. They omitted the words “under such circumstances that if the building had been thereby set fire to the offence would have amounted to felony”. The court quashed the conviction and refused to apply the proviso under section 4 (1) of the Criminal Appeal Act 1907. Giving the judgment of the court, Lord Hewart LCJ observed (at p.151):

“This count does not disclose any offence at all. If setting fire to straw in a building were a crime, everyone who put some straw on his fire would be liable to conviction …… .

It may well be that if the indictment had been in the proper form and that if the summing-up had directed the jury to those crucial words—which it omitted to do—the verdict would have been the same. This, however, is not a case where the court can apply the proviso”.

In Meek v Powell 1952 K.B. 164 the defendant was convicted of unlawfully selling milk for human consumption that contained added water. The informations alleged contravention of section 24 Food and Drugs Act 1938. By the time of the alleged offences, this section had been repealed by Section 9 Food and Drugs (Milk, Dairies and Artificial Cream) Act 1950 and re-enacted in the same terms. Lord Goddard CJ considered what the situation would have been had the defendant be convicted on an indictment; at p. 168, he stated:

“…it seems clear that if the conviction took place without the indictment being amended, the Court of Criminal Appeal would have no option but to quash the conviction. That seems to have been decided in Rex v. Taylor, where a wrong section had been referred to in the indictment; although the particular section had been repealed and replaced by another section the Court of Criminal Appeal held that, as the wrong section had been mentioned in the indictment, the indictment must be quashed”.

In Franks (1950) 34 Cr. App. R. 222, the indictment charged the appellant with being concerned in dealing in goods the importation of which was prohibited or restricted, contrary to section 186 of the Customs Consolidation Act 1876. The Particulars of Offence omitted the words “with intent to evade the prohibition imposed”. The Court quashed the conviction on the basis that the count did not disclose an offence.

In R v Crook (1977) 65 Cr. App. R. 66 (later disapproved) the appellant was convicted of causing death by dangerous driving contrary to a section of the Road Traffic Act which had been repealed and replaced by an enactment in a subsequent statute. Giving the judgment of the Court, O’Connor J declared at p.66 that the cases of Taylor and Meek v. Powell were clear authority that where an indictment charges an offence under a section of a statute which has been repealed, the mere fact that it has been re-enacted in a later statute cannot save those proceedings. He observed:

“It is an absolute requirement that where a statutory offence is charged that the statute shall be named in the indictment and if the wrong one is named those proceedings on that indictment are a nullity”

In McKenzie v R [2011] EWCA Crim 1550, the appellant was convicted on indictment of charges of indecent assault contrary to section 14(1) Sexual Offences Act 1956. The Particulars of the Offence alleged that the appellant had indecently assaulted a named man. The offence under section 14(1) could only be committed against a woman. At paragraph 38 of the judgment, note was taken of the Court's “general deprecation, in relation to the safety or otherwise of convictions, of undue resort to technicality and/or reliance on drafting or clerical error or omission, or discrepancy, or departure from good or prescribed practice”. Further the court noted the distinction drawn between cases where on the facts pleaded and the evidence called at trial the offence charged could not be established and where the conviction was unsafe, and cases where partially defective particulars could be cured by amendment. Nevertheless, the Court held that the convictions were unsafe because, “neither the particulars pleaded in those Counts, nor the evidence of S, could possibly establish that the appellant had done the act charged in each case of indecent assault contrary to s.14(1) of the Act” (per Mr Justice Sweeney, at paragraph 41). Substitution of an offence under section 3 of the 1968 Act did not arise because the appeal was not an appeal against conviction, but an appeal under section 15 of the 1968 Act (appeals against finding of disability).

Finally, the most recent example of a decision we can find which might appear to support Mr Quaife’s argument is R v Abdul [2012] EWCA Crim 1788. The appellant was charged with an offence of possession of a false identity document with an improper intention, contrary to section 4(1) Identity Documents Act 2010. However, the appellant was indicted with, and convicted of, one count of possessing a false identity document with intent, contrary to section 25(1)(a) Identity Cards Act 2006. Section 25(1)(a) had been repealed at the date of the alleged offence. The Crown accepted that the appellant had been convicted of a non-existent offence and the conviction must be quashed in accordance with the principles in Shields and MC. The court went on to consider whether or not a conviction for an offence under section 4 could be substituted in accordance with section 3 Criminal Appeals Act 1968. At paragraph 11 of the judgment, the court held that it could not use this power because:

“[section 3] cannot be used in order to substitute a verdict of guilty of an offence for which the defendant could, if charged, have been convicted when the offence of which he was in fact convicted did not exist at the date when the alleged criminal conduct occurred”.

Meanwhile there are a number of examples of decisions where the court has taken a more flexible course. We begin with Thompson (1914) 9 Cr. App. R. 252 in which an objection was taken to the indictment on the grounds of duplicity. The objection was well-founded but the Court concluded there had been no prejudice or embarrassment to the defendantand applied the proviso. Giving the judgment of the Court, Issacs LCJ stated (at p. 260):

"One of the objects of section 4 was to prevent the quashing of a conviction upon a mere technicality which had caused no embarrassment or prejudice. Whilst giving the right of appeal upon any wrong decision of any question of law, the object of the legislature was that justice should be done in spite of a wrong decision and that the court should not interfere if it came to the conclusion that, notwithstanding the wrong decision, there had been no substantial miscarriage of justice. The court must always proceed with caution when it is of opinion that a wrong view of the law has been taken by the judge presiding at the trial, but when it is apparent, and indeed undisputed, as it is and must be in this case, that no embarrassment or prejudice had in fact been suffered in consequence of the pleader having made the manifest error above mentioned, the court must act upon the proviso in this section of the Act."

In R. v. Miller and Hanoman Ltd (1959) Crim. L.R. 50 the indictment was defective in that the Statement of Offence read “Being knowingly concerned in attempting to evade a prohibition on the export of goods contrary to section 56 (2) of the Customs and Excise Act 1952". This omitted the words “with intent to evade the prohibition”. The Court held that, because the offence was accurately described in the Particulars of Offence, there was no prejudice or embarrassment to the defendant, there had been no miscarriage of justice and the proviso was applied.

One of the most significant decisions in this line of authorities is R v McVitie (1960) 44 Cr. App. R 201 because it has been consistently approved and followed. The appellant was jointly charged on an indictment in which the Statement of Offence read "possessing explosives, contrary to the Explosive Substances Act 1883 s.4(1)". The Particulars of Offence read “had in their possession a certain explosive substance … under such circumstances as to give rise to a reasonable suspicion that it was not in their possession for a lawful object”. The Particulars omitted the word “knowingly”. It was conceded by the appellant that he was in no way embarrassed by the omission. However, he submitted that the indictment disclosed no offence. The Court dismissed the appeal, holding that the indictment did disclose a known offence but one with incomplete particulars. The appellant had admitted knowledge of the explosives and there could be no substantial miscarriage of justice. The proviso was applied.

In reaching its decision, the court in McVitie considered the effect of the breach of a provision similar in effect to the provisions of Rule 14 of the CPR. It required the indictment to give “such particulars as may be necessary for giving reasonable information as to the nature of the charge”. Donovan J, giving the judgment of the Court, stated (at p.210):

“In our opinion this did not make the indictment a bad indictment, but simply a defective or imperfect one. A bad indictment would be one disclosing no offence known to the law, for example, where it was laid under a statute which had been repealed and not re-enacted. In the present case the indictment described the offence with complete accuracy in the "Statement of Offence." Only the particulars, which merely elaborate the "Statement of Offence," were incomplete. The question of applying the proviso is to be considered, therefore, not upon the basis that the indictment disclosed no known offence but that it described a known offence with incomplete particulars.”

The Court also considered the decision in Hyde, disagreed with the court that the indictment in that case had disclosed no offence and declined to follow it.

In R v Nelson (1977) 65 Cr. App. R. 119 the Court considered the position of a defendant who had been convicted under an indictment which failed to specify the enactment under which the offence was created (as then required by rule 6 of the Indictment Rules 1971). The Court followed the judgment in McVitie, and held that the indictment was merely defective. The decision in Crook was held to have been made per incuriam because the Court had not considered McVitie and nor had it considered the distinction between indictments which were a nullity and indictments which were merely defective (under the latter, consideration could be given to the application of the proviso).

In R v Power (1978) 66 Cr. App. R. 159 the appellant was charged on indictment with perjury. The Statement of Offence read “Perjury contrary to section 5(a) of the Perjury Act 1911”. The Particulars of Offence read:“knowingly and wilfully made (otherwise than on oath) a statement false in a material particular, namely, that … he had not received any summons either by post or by personal service in respect of certain road traffic offences of which he had been convicted in his absence at [a magistrates' court] … the said statement being made in a statutory declaration pursuant to section 24 (3) of the Criminal Justice Act 1967 and the Statutory Declarations Act 1835”. The Court held that in breach of Rule 5 of the relevant Indictment Rules the offence charged was incorrect. It should have read “making a false declaration” and not “perjury”. The indictment was, therefore, defective. Giving the judgment of the Court, Roskill LJ stated (at p. 166):

“Clearly there was in this case an unfortunate error which amounted to a material irregularity within section 2(1)(c) of the Criminal Appeal Act 1968. But to suggest that there has been the slightest miscarriage of justice as a result is quite absurd. Indeed it would be a travesty of justice if we allowed the proper conviction of this man for what must have been quite deliberate lies in his statutory declaration to be quashed and his offence to go unpunished. In those circumstances we shall apply the proviso and dismiss the appeal”.

In R. v Molyneux (1981) 72 Cr. App. R. 111 the appellants were convicted on an indictment of one count of “conspiracy to defraud”, the particulars of which were that they “...conspired together to rob...”. Under section 5 (1) Criminal Law Act 1977 the offence of common law conspiracy was abolished, save for the offence relating to conspiracy to defraud. Section 1(1) of the Criminal Law Act 1977 created the statutory offence of conspiracy. Rule 6 of the Indictment Rules 1971 required that an indictment state any enactment allegedly contravened in the Statement of Offence (as here).The appellants argued that the count disclosed no offence known to law. The court declared the indictment defective but not a nullity and rejected this submission. At page116, Shaw LJ stated:

“..it cannot be said that it disclosed no offence known to law. Conspiracy to defraud is a common law offence which, by subsection (2) of section 5 of the 1977 Act is not affected by subsection (1) of that section. The particulars of offence described the statutory offence of conspiracy to rob. They complied with rules 5 and 6 of the Indictment Rules. Thus, the defect in the Statement of Offence consisted in mis-describing a statutory conspiracy as a common law conspiracy while the essential ingredients of the offence remained properly particularised”

In Regina v Ayres (1984) 78 Cr. App. R. 232, the House of Lords considered the circumstances of the conviction of appellants charged on an indictment containing one count of “Conspiracy to defraud”. The Particulars were that they “...conspired together and with [other persons] to defraud...”. The House held that, under the Criminal Law Act 1977, a statutory conspiracy could not be charged as a common law conspiracy, and a common law conspiracy to defraud must be construed as limited to an agreement which, if carried into effect, would not necessarily involve the commission of any substantive criminal offence by any of the conspirators. Consequently, a common law conspiracy can only be charged where the facts do not support a charge of a statutory conspiracy to commit an offence. The offences were mutually exclusive. The indictment did not, therefore, comply with the Indictment Rules 1971 and a material irregularity had occurred. Lord Bridge (with whom the other Law Lords agreed) expressly approved the approach adopted in McVitie describing it as the “foundation of the modern law”. However, he questioned the helpfulness of the distinction between indictments which were a nullity and indictments which were defective. At pages 244-5 he observed:

“I doubt if this classification provides much assistance in answering the question which the proviso poses. If the statement and particulars of the offence in an indictment disclose no criminal offence whatever or charge some offence which has been abolished, in which case the indictment could fairly be described as a nullity, it is obvious that a conviction under that indictment cannot stand. But if the statement and particulars of offence can be seen fairly to relate to and to be intended to charge a known and subsisting criminal offence but plead it in terms which are inaccurate, incomplete or otherwise imperfect, then the question whether a conviction on that indictment can properly be affirmed under the proviso must depend on whether, in all the circumstances, it can be said with confidence that the particular error in the pleading cannot in any way have prejudiced or embarrassed the defendant”………..

……..The particulars of offence in this indictment left no one in doubt that the substance of the crime alleged was a conspiracy to obtain money by deception. The judge in summing up gave all appropriate directions in relation to that offence. The co-accused...having pleaded guilty, the evidence amply proved that offence against the present appellant. The jury in returning a verdict of guilty must have been sure of his guilt of that offence...The misdescription of the offence in the statement of offence as a common law conspiracy to defraud had in the circumstances not the slightest practical significance”.

The House held there had been no miscarriage of justice and applied the proviso.

In R. v Pickford [1995] 1 Cr. App. R. 420 the appellant pleaded guilty to a count of inciting his step-son to commit incest with his mother (the appellant’s wife). The indictment alleged that the offence was committed between two dates, which covered a time-period before and after the step-son’s fourteenth birthday. At the time of the offence, it was a rule of law that a boy under the age of 14 was presumed to be incapable of having sexual intercourse. The Court held that the appellant had pleaded guilty to an offence on the indictment not known to law because the indictment failed to plead that the stepson was aged over 14 at the time of the offence. However, the appellant could have been properly indicted and convicted of inciting the mother to commit incest with the step-son and the Court decided to follow the Ayres approach. Laws J (giving the judgment of the Court) stated (at p.429): “we would apply the proviso on the footing that the appellant was plainly guilty of an offence with which, on the undoubted facts, he could have been charged upon an indictment somewhat differently drawn”.

On 1st January 1996, there was a significant change to this area of the law in that an amendment to section 2(1) Criminal Appeal Act 1968 came into force. The proviso was removed, and the sole test for allowing an appeal became the safety of the conviction. In R. v Graham [1997] 1 Cr. App. R. 302, the Court of Appeal considered the approach to be taken to errors on the indictment as a result of this amendment. Following the decision in R v Preddy [1996] 2 Cr App R 524, none of the appellants in Graham could have been guilty of the offences charged on the facts relied upon, because the property they were alleged to have obtained was not “property belonging to another”

At p.309 of the judgment, Lord Bingham reviewed the cases of Molyneux, Ayres, and Pickford and stated:

“These decisions were made at a time when, under section 2 of the 1968 Act, the Court could think that a conviction should be set aside on the ground that under all the circumstances it was unsafe but dismiss an appeal because the Court considered that no miscarriage of justice had actually occurred. In these four cases the Court did not find that the convictions were safe: it considered that no miscarriage of justice had actually occurred and applied the proviso. But now there is no proviso. Our sole obligation is to consider whether a conviction is unsafe. We would deprecate resort to undue technicality. A conviction will not be regarded as unsafe because it is possible to point to some drafting or clerical error, or omission, or discrepancy, or departure from good or prescribed practice. We would, for example, expect R. v. McVitie (1960) 44 Cr.App.R. 201, [1960] 2 Q.B. 483 to be decided under the new law in the same way as under the old. But if it is clear as a matter of law that the particulars of offence specified in the indictment cannot, even if established, support a conviction of the offence of which the defendant is accused, a conviction of such offence must in our opinion be considered unsafe. If a defendant could not in law be guilty of the offence charged on the facts relied on no conviction of that offence could be other than unsafe”.

In R v Ashton, R v Draz and R v O'Reilly [2006] EWCA Crim 794, [2007] 1 WLR 181, the court considered three appeals where there had been an irregularity in the way in which an accused came to be convicted and/or sentenced at the Crown Court. Fulford J gave the judgment of the court and provided a helpful analysis of recent decisions. At paragraph 4 he observed:

"4.

The outcome of each of these cases essentially depends on the proper application of the principle or principles to be derived from the decision of the House of Lords in R v Soneji [2006] 1 AC 340, together with the earlier decision of this court in R v Sekhon [2003] 1 WLR 1655. Indeed, these three applications demonstrate how far-reaching the effect of those authorities is likely to be whenever there is a breakdown in the procedures whereby a defendant's case progresses through the courts (as opposed to the markedly different situation when a court acts without jurisdiction). In our judgment it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised ('a procedural failure'), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.

5.

On the other hand, if a court acts without jurisdiction-if, for instance, a magistrates' court purports to try a defendant on a charge of homicide-then the proceedings will usually be invalid."

Later in the judgment when dealing with the individual case of Draz (whose case had been transferred to the Crown Court in accordance with the wrong procedure and there was no valid indictment in existence), he continued:

“74.

As Mr Perry has helpfully reminded us, there are several authorities which suggest that the absence of a valid indictment renders any subsequent trial a “nullity”: R v Thompson and Clein [1978] 1 WLR 1425; R v Cairns (1983) 87 Cr App R 287; R v Morais (1988) 87 Cr App R 9; R v Newland [1988] QB 402.

75.

In R v Morais, the Court of Appeal quashed the appellant’s conviction for supplying drugs and ordered a retrial on the basis that the indictment had not been signed by the officer of the Crown Court. In that case the court concluded that the proper officer’s signature was not “a comparatively meaningless formality” but a “necessary condition precedent to the existence of a proper indictment” (p. 14) and that in the absence of a proper indictment the trial was a nullity.

76.

The decision in Morais was distinguished in R v Jackson [1997] 2 Cr App R 497. The judge directed the proper officer to sign two indictments but she failed to do so. This court held that the proper officer’s signature was a “meaningless” clerical “formality” and she was deemed to have signed it. In R v Laming (1989) 90 Cr App R 450, the appropriate officer of the Crown Court signed the indictment on the front page rather than after the last count as required by the Indictment Rules 1971. On those facts, the court on appeal determined that the indictment was valid.

77.

As Mr Perry has submitted, it appears, therefore, that even before the decisions in Soneji and Sekhon not every defect in an indictment would necessarily render it invalid, although the earlier authorities consistently made it clear that the absence of a valid indictment had the effect of rendering the trial proceedings of no legal effect. That conclusion was reached because the primary focus of the court in each of the cases was on whether the breach was of a ‘mandatory’ statutory provision. As we have set out above, the sea-change wrought by the decisions in Soneji and Sekhon is that the court should concentrate in future on, first, the intention of Parliament (viz. was it intended that a procedural failure should render the proceedings invalid) and, second, the interests of justice and particularly whether the procedural failure caused any prejudice to any of the parties, such as to make it unjust to proceed further.

78.

Here, the judge and the parties proceeded on the basis that the charges before the court identified the criminality alleged by the prosecution and it was accepted there was no prejudice to the applicant in this particular case when the court dealt with him absent an indictment. We stress that usually a bill of indictment should be preferred and signed and our decision in this case should not be taken as any kind of encouragement to relax that important requirement: an indictment provides a critical safeguard in that it describes the charges an accused faces with clarity and finality. However, applying the test we have described above, there are no indications that Parliament intended that proceedings would be rendered automatically invalid because an indictment had not been preferred or signed, and given no prejudice or consequential injustice have been identified, we see no reason to quash these convictions.”

It is necessary to return at this point to Lord Bingham’s speech in Clarke and McDaid in which he considered, amongst others, the Ashton decision. At paragraph 14 he observed:

“The linch-pin of Mr David Perry QC's argument for the Crown is the recent decision of the Court of Appeal (Rose V P, Penry-Davey and Fulford JJ) in R v Ashton, R v Draz and R v O'Reilly [2006] EWCA Crim 794, [2007] 1 WLR 181, ………………………

R v Sekhon [2002] EWCA Crim 2954, [2003] 1 WLR 1655 concerned a number of errors in the conduct of confiscation proceedings, some of which were held to be excusable procedural errors and others to be errors depriving the court of jurisdiction. R v Soneji [2005] UKHL 49, [2006] 1 AC 340 concerned the same subject matter. The cases are significant in their rejection, building on dicta of Lord Hailsham of St Marylebone LC in London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182, 189-190, the judgment of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, para 93, and the decision of the Court of Appeal in R v Secretary of State for the Home Department, Ex p Jeyeanthan [2000] 1 WLR 354, of the old approach of asking whether procedural requirements were mandatory or directory, instead asking what Parliament intended the consequence to be of non-compliance with the requirement in question. While I would myself express the decision to be made rather differently, I would accept the general validity of the distinction drawn by Fulford J in the paragraphs of his judgment quoted above. Many errors pertaining to indictments fall squarely into the procedural category, as exemplified by cases such as R v Sheerin (1976) 64 Cr App R 68, R v Soffe (1982) 75 Cr App R 133, R v Farooki (1983) 77 Cr App R 257 and R v Laming (1989) 90 Cr App R 450.”

He continued at paragraph 20:

“The decisions in R v Sekhon and R v Soneji are valuable and salutary, but the effect of the sea-change which they wrought has been exaggerated and they do not warrant a wholesale jettisoning of all rules affecting procedure irrespective of their legal effect. This indeed the Court of Appeal recognised in R v Ashton, as earlier in R v Sekhon. I cannot, however, accept the basis upon which the court in R v Ashton distinguished its earlier decision in R v Morais. As is evident from the passage of Lord Lane's judgment from page 14 of the report quoted in paragraph 9 above, but not quoted in R v Ashton, a passage carrying all the authority of that distinguished judge, the court was not focusing on the mandatory/directory issue but was asking itself the right question. …….I can see no basis upon which the court in R v Ashton could properly depart from the precedent in R v Morais, which was clearly binding on it.”

Finally, in R v K [2007] 1 WLR 3190 [2008] 1 Cr. App. R. 1 the appellants had been charged and convicted of various conspiracies to commit money laundering offences in which the mens rea alleged was knowledge or reasonable suspicion that the money in question was illicit in origin. Subsequently the House of Lords declared that only knowledge would suffice for the mens rea. The safety of their convictions was challenged on the basis of a change in the understanding of the law. The court rejected the argument that, following Graham, the Particulars specified could not support a conviction for the conspiracy offences, and so the offences were unknown to law. The Court drew the important distinction between indictments which charge the wrong offence or an offence unknown to law, and those that are partially defective and could be cured by amending the Particulars of the Offence. The K case fell into the latter category. However, the convictions were quashed because of the way in which the counts had been left to the jury.

In our judgment, there is a clear judicial and legislative steer away from quashing an indictment and allowing appeals on the basis of a purely technical defect. The overriding objective of the Criminal Justice System is to do justice- to ensure the acquittal of the innocent and the conviction of the guilty. To that end, procedural and technical points should be taken at the time of the trial when they can be properly and fairly addressed.

However, the question for us is whether this is a purely technical defect or whether the count itself was fundamentally flawed because it breached Rule 14 (2) by failing to identify accurately the legislation allegedly contravened. The clear purpose of Rule 14 (2) is to ensure that an accused has sufficient information to know the case he has to meet and for all parties to know which statutory provisions apply. Here, the position could not have been clearer. Everyone understood and proceeded upon the basis that the appellant was charged with an offence under the 2003 Act committed in 2007 or 2008. The Particulars of the Offence which were read to the Appellant upon arraignment, the evidence served in advance of trial, the prosecution opening of the case, and the evidence called by the Crown all made it plain that the Crown’s allegation related to a rape committed on a day at the end of 2007 or beginning of 2008. (The date was in fact altered from 2007 to 2008 as a result of the complainant’s evidence). The appellant and his legal representatives knew all they needed to know about the case he had to meet and any relevant statutory provisions which applied.

The judge summed up to the jury as if the offence alleged in the Statement of Offence wasone of rape contrary to the 2003 Act (as opposed to the other counts alleging indecent assault contrary to the 1956 Act). He directed the jury on the law and factual issues relevant to an offence of rape contrary to the 2003 Act. The jury, in effect, convicted him of an offence of rape contrary to section 1 (1) of the Sexual Offences Act 2003. Rape had remained an offence in law throughout the period with which we are concerned. Thus, from beginning to end of the process, the charge here was, in substance, one of rape under the 2003 Act. As far as the judge, jury, prosecution and defence were concerned the appellant was tried on and convicted of the right offence (rape) under the right Act. The appellant was properly before the Crown Court, the indictment was in every other respect in proper form and, therefore, valid, and the Particulars of Offence could and did support a conviction of rape contrary to the 2003 Act. This was not a “bad indictment” or a “bad count” and the offence of which he was convicted was and is known to law.

The only error here was to click the 1956 box rather than the 2003 box. It could have been cured easily by an amendment at any time. That seems to us to be something of a pure technicality. It has caused no prejudice whatsoever. We have borne very much in mind Lord Bingham’s observations in Clarke and McDaid about not resorting to “wholesale jettisoning of all the rules affecting procedure” and we have focussed on the legal effect of the breach of the rules. Having done so, we cannot accept that an error in the date of the statute on these facts is so fundamental as to render the proceedings a nullity or that the draftsman of Rule 14 (2) (also the draftsman of the over riding objective) would have intended such an outcome for a breach of this kind.

The facts of this case are clearly distinguishable from the facts in Shields, MC and Abdul in which the appellants were, in every respect, convicted of the wrong offence charged under the wrong Statute.

In our judgment nothing has occurred during this trial to render the indictment a nullity and the conviction unsafe. In the circumstances, we do not need to consider our powers under and the application of section 3 of the CAA.

We turn to the appeal against sentence. In the light of his previous conviction for a similar offence and a catalogue of serious offending in grave breach of trust over many years, the judge rightly described the appellant as dangerous and predatory. Had he not been sentenced to an indeterminate term, there could be no argument that section 104 (1) (a) of the Sexual Offences Act 2003 was potentially engaged. The judge was duty bound to consider whether it was “necessary” to make a Sexual Offences Prevention Order (“SOPO”) for the purpose of protecting the public from serious harm.

The question is again simple to state: was the judge right to conclude it was “necessary” to make the SOPO on the facts here? The appellant had been sentenced to imprisonment for public protection and this court has declared more than once that where an offender is sentenced to an indeterminate term of custody, a SOPO would not normally satisfy the necessity requirement. This is because the offender’s release will inevitably be subject to whatever licence conditions are appropriate for the protection of the public. This principle was declared by the Vice President Court of Appeal Criminal Division in R V Smith and others 2011 EWCA Crim 1772 and endorsed in R v Instone and others 2012 EWCA Crim 1792 by Lord Judge CJ. He observed at paragraph 2:

“As a result of Smith it will be rare for a SOPO to be made simultaneously with an indeterminate sentence. Rare, of course, does not mean never.”

The question for us is whether or not this was one of those rare cases. The Judge found that an order under section 104(1)(a) was necessary and would not be academic because if the appellant appealed against sentence, the Court of Appeal might set aside the indeterminate sentence of imprisonment and substitute for it a determinate sentence. The appellant would then be released from prison without the kind of protection afforded to the public by a SOPO.

On that interpretation of Smith, a SOPO should be imposed in virtually all cases of dangerous offenders because there is always the possibility of an appeal. That cannot be right. The principle in Smith is clear. It bound the judge and it binds us. There is nothing exceptional about this case and, in the light of the indeterminate sentence of imprisonment, it was not necessary to make a Sexual Offences Prevention Order. The appellant will only be released from the indeterminate sentence when it is deemed “safe” to do so and he will be subject to appropriate conditions. We quash the order.