BDZ v R (Indictment misstating age of child victim of sexual offences)

On 07 June 2023 in the Crown Court at Preston (His Honour Judge Guy Mathieson) the Appellant (then aged 52) was convicted (by a majority of 10/2) of 11 counts relating to sexual abuse of his stepdaughter. He now seeks leave to appeal against conviction and sentence. He requires a long extension of time because he was 286 days out of time lodging his own grounds of appeal against conviction and 301 days late in relation to sentence. The single judge referred one ground raised by those applications to the full court. The Appellant had advanced that ground in two ways, which, she said, came to the same thing. She refused leave in respect of other grounds which have not been renewed. Counsel, Mr Julian Nutter, was instructed after the case was considered by the single judge, further to a representation order made by her. Mr Nutter was not trial counsel and we are grateful to him for his assistance in this case. He has refined the grounds settled by the Appellant when acting in person and seeks to advance the ground of appeal against conviction which the single judge referred, and to make some further submissions in the event that that succeeds.

The name of the Appellant is anonymised to avoid any identification of his victim. We have added a phrase to the name of the judgment in brackets to assist in distinguishing it from other anonymised judgments. That phrase is descriptive only and is not an aid to the interpretation of the judgment itself.

The essence of the referred ground is that the evidence of the victim was that all offences committed against her by the Appellant were committed before her 13^th birthday. The Indictment charged counts 1-5 as offences against a child under the age of 13, but counts 6-11 as offences without the element reflecting the age of the victim. The offences were as follows:-

The single judge referred the application for leave to appeal against the convictions on counts 6-11 to the full court, together with applications for a long extension of time and leave to appeal against sentence. The total sentence was a required special custodial sentence for certain offenders of particular concern of 13 years, pursuant to section 278 Sentencing Act 2020; comprising a custodial term of 12 years and an extended licence period of 1 year. The application for leave to appeal against that sentence is predicated on the success of the appeal against conviction. If all convictions are quashed, sentence will not require further consideration. If all convictions are upheld it is not arguable that the sentence was manifestly excessive and leave to appeal against sentence will be refused. If, however, some convictions are quashed and others remain then it may be necessary to consider sentence afresh. That is why the single judge referred the application in relation to sentence, and her reasoning is impeccable.

Mr Nutter’s reformulated grounds of appeal against conviction are as follows:-

GROUND 1: The applicant’s conviction upon Counts 6 – 11, was unsafe because the evidence of the complainant child was clear that no offences occurred after her 13^th Birthday.

GROUND 2 (Not put before the Single Judge and contingent upon the success of Ground 1):

The prejudice from the allegations set out in Counts 6 -11 should and would never have been introduced into the trial of Counts 1 – 5 and renders the convictions on those counts unsafe in all of the circumstances of the case.

We will consider Ground 1 first because if it fails there is no need to consider Ground 2 or the application for leave to appeal against sentence.

It will be convenient start his analysis by setting out two counts, counts 1 and 6, as examples of the way in which the complainant’s age was dealt with in all the counts on the indictment and during the trial. These two counts were framed as follows:-

Count 1

STATEMENT OF OFFENCE

ASSAULT OF A CHILD UNDER 13 BY PENETRATION, contrary to section 6(1) of the Sexual Offences Act 2003.

PARTICULARS OF OFFENCE

[BDZ] between the [date of V’s 12^th birthday in] 2019 and the [day before V’s 13^th birthday in] 2020 intentionally penetrated the vagina of V, a child under the age of 13, that is 12 years of age, with a part of his body, namely his finger or fingers, and the penetration was sexual.

Count 6

STATEMENT OF OFFENCE

ASSAULT BY PENETRATION, contrary to section 2 of the Sexual Offences Act 2003.

PARTICULARS OF OFFENCE

[BDZ] between the [V’s 13^th birthday in] 2020 and the 9th day of November 2020 intentionally penetrated the vagina of V, a child aged 13, with part of his body, namely his finger or fingers, the circumstances being that the penetration was sexual, V did not consent to it, and [BDZ] did not reasonably believe that V consented.

The complaint is that BDZ has been convicted of count 6 which alleged that V was aged 13, when her evidence was quite clear that all offending stopped before her 13^th birthday. That is true, but the question for us is whether the convictions on counts 6-11 are thereby rendered unsafe.

It is not necessary or desirable when considering the short point identified at [7] above to set out the facts in any detail. On the face of it, it is surprising that the situation we have described occurred. It is surprising that the Indictment was drawn as it was, when V was clear that the offending stopped when she ran away from home at the end of the period during which it had occurred. She was clear, and right, in saying that she ran away from home before her 13^th birthday. It is also surprising that this error in drafting the Indictment was not identified during the trial. It is necessary to give a little information about the events at trial to put that surprise in context.

The prosecution served a Respondent’s Notice in these appeal proceedings which suggested that V’s evidence about her age at the time when the offending stopped was not as clear as we have suggested. Mr Michael Scholes, who appeared at trial and before us, did not seek to advance this contention in oral submissions. It seems reasonable, nonetheless, to accept that when the Indictment was drafted the author took a different view of the evidence on this question than that which became apparent on closer examination of it.

The speaking note for the prosecution opening which was uploaded to the Digital Case System said this in introducing the counts on the Indictment to the jury:-

“[V] was born on [birth date] so the indictment covers a period from when V was aged between 12 to 14 years old.

“Explain Indictment (i.e. offences and wording of counts and the date span). Explain the offences for children under and over 13.

“There are 11 counts:-

COUNTS 1-2 relate to allegations of digital penetration (finger in vagina) from [V]’s 12^th to 13^th birthday.

COUNTS 3+4 self-explanatory

COUNT 5 (explain on an occasion other than)

COUNT 6 -7 are same type of behaviour as Counts1 +2 but relate to incidents after age of 13 and therefore different offence.

COUNT 8-11” [relevant part of the Speaking Note ends here]

The defence case at trial was that there was no sexual offending at all at any time, and the complaints were made up. Consent was not an issue. As a comparison of counts 1 and 6 reveals, consent is a material difference between an offence contrary to section 6(1) of the Sexual Offences Act 2003 (child under 13) and contrary to section 2 of the same Act (all other victims). In the latter case, the prosecution must prove lack of consent and of a reasonable belief in consent, in the former case no such requirement exists.

Enquiries of the legal team who appeared for the Appellant at trial have been made by the Registrar, and have revealed that there was no examination in evidence at trial of the dates of the offences by reference to the 13^th birthday of V. This was because of the nature of the defence case. The evidence on that question was not the subject of any attention during the trial at all. Since there was no issue as to consent, everyone treated it as irrelevant. The issue was whether it had happened, not when it happened.

The evidence of V was adduced by her video recorded interview being played to the jury as her evidence in chief and by a recording of her cross-examination being played to the jury immediately afterwards. That recording had been created at an earlier hearing before a different judge when V was cross-examined. A successful application was made at trial for some further cross-examination about a document which the Appellant had just produced and which he said V had given him during the period when V says he was offending against her. He wished to suggest that it was unlikely that she would have given him this scrap book as a Father’s Day present if he was behaving as she now alleged. The judge gave leave for some further cross-examination about this. Neither then, nor at the earlier hearing when cross-examination had taken place, was there any questioning about whether any offending had taken place after she was 13.

The judge’s legal directions reflected the way the trial had been conducted. On the Burden and Standard of Proof, he said this:-

“Burden and Standard of Proof

The Prosecution must prove that the Defendant is guilty. He does not have to prove his innocence. The burden of proving the Defendant’s guilt is on the Prosecution.

So for example count 1, that means that the Prosecution must prove that the Defendant placed his finger in the vagina of [V] when she was under 13 years of age and that that penetration was sexual.”

In directing the jury about the need for separate consideration of the different counts, the judge included this:-

“There are 11 counts relating to allegations made by [V] on the indictment for you to consider. You must consider the case against and for the Defendant on each count separately. You must assess whether or not you are sure that the Defendant is guilty on each individual count.

There is [typographical error in original] different types of offending on different occasions.

However, the issue on all counts is the same – it happened / nothing inappropriate or sexual ever happened. [V] says that this was a course of conduct over two years or so. The Defendant says that he has never touched her inappropriately or sexually in whatever circumstances.”

The effect of the judge’s directions on the difference between the counts on the basis of age was to explain why they were different, but that the difference required no further consideration by the jury. He said:-

Elements of Offences

There are offences alleged to have been committed when [V] was 12 and when she was 13. In law, that is a [typographical error in original] age change that affects which charge is appropriate – hence some counts that state that it is an offence against a child U13 and some with no such age factor. The difference is that in law a child under the age of 13 is deemed unable to consent to sexual activity of any type. Issues of consent can arise in cases where the child is 13 or over. This difference is reflected in the elements of the counts on the indictment. However, on all counts in this case, you do not need to consider the issue of consent.

In respect of counts 1-5 the judge directed the jury that, among other things, the prosecution was required to prove that the offence occurred when V was under the age of 13. He did not direct the jury in relation to counts 6-11 that there was any requirement on the prosecution to prove her age at the time of those offences. He did, however, direct the jury that the prosecution must prove that the offence took place “between the dates alleged”. The date range in each of those counts was “between the [V’s 13^th birthday in] 2020 and the 9th day of November 2020”. He did give the jury full directions about consent in relation to those later counts.

At the start of the hearing before us it appeared that there was a measure of agreement between counsel that Ground 1 was soundly based. That, of course, was a matter for the court to decide, and we explored the issue in argument with both Mr Scholes and Mr Nutter. Mr Nutter’s submission was that it was clear that no offences at all had been committed between the dates given in counts 6-11 and yet the Appellant had been convicted on those counts. It must follow, he said, that the convictions were unsafe.

This is a referred application for leave to appeal. We consider that Ground 1 of Mr Nutter’s application raises an arguable point. We grant the extension of time and grant leave.

The current edition of Archbold contains this passage:-

“1-222

In Wallwork, § 1-220, it was held that the lack of precision as to place in the particulars did not invalidate the indictment because the place of commission of the offence was not material to the charge.

Despite the old authorities to the effect that the date of the offence must be shown in the indictment it never seems to have been necessary for the date shown to be proved by the evidence unless time is of the essence of the offence. In other cases, a variance between the indictment and evidence of the time when the offence was committed was not material: Aylett, § 1-220; Dossi, § 1-221. In Dossi it was held that a date specified in an indictment is not a material matter unless it is an essential part of the alleged offence; the defendant may be convicted although the jury finds that the offence was committed on a date other than that specified in the indictment. Amendment of the indictment is unnecessary, although it will be good practice to do so (provided there is no prejudice, see § 1-223) where it is clear on the evidence that if the offence was committed at all it was committed on a day other than that specified.”

The Criminal Procedure Rules are not prescriptive about the content of a count on an indictment and do not require that a date of offence is stated in all cases, although no doubt it almost always should be. Rule 10.1.1 is in these terms:-

“The indictment: general rules

1.1.

—a) The indictment on which the defendant is arraigned under rule 3.32 (Arraigning the defendant on the indictment) must be in writing and must contain, in a paragraph called a ‘count’—

(a)

a statement of the offence charged that—

(i)

describes the offence in ordinary language, and

(ii)

identifies any legislation that creates it; and

(b)

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

This case concerns a misstated date in counts 6-11 which alleged offences contrary to sections of the Sexual Offences Act 2003 where the age of the victim was not an element of the offence. Counts 1-5, on the other hand, alleged offences against a child under the age of 13 which, if proved, meant that the prosecution did not have to prove absence of consent. We are content to proceed on the basis that there would be no case to answer on those counts if the evidence had shown unequivocally that any such offending had occurred after the victim’s 13^th birthday. This is because essential questions which would fall for decision on those facts, lack of consent or of a reasonable belief in consent, were not left to the jury because of the mistake as to the age of the victim at the time of the offending. This is not an issue which arises for decision in this case, because there was evidence to prove all the elements of counts 1-5 (including the age of the victim) and the jury was correctly directed about that.

However, it does not follow that the error as to age in counts 6-11 has the same effect. The consequence of the error which actually occurred in this case was that the jury was directed that the prosecution had to prove lack of consent and lack of reasonable belief of consent in those cases when that issue did not in truth arise. It is impossible to see that this is capable of rendering the convictions unsafe. No relevant issue was withdrawn from the jury, but an irrelevant one was left to them. No adverse consequence flowed to the Appellant from the error which was made.

The very fact that the error was made and not detected supports this analysis. The real issue was whether these sexual offences had been committed not when. The participants in the trial focussed on that because it was the thing which mattered.

The date of the offences in counts 6-11 was not a “material averment”, in the old language. The judge’s direction that the prosecution was required to prove that these offences had occurred between the dates alleged was incorrect in law for these counts. The inconsistency between V’s evidence and the dates in the Indictment appears to have escaped the notice of the jury, as it had everyone else. Any juror who noticed it may have concluded that it obviously did not matter because neither counsel nor the judge had drawn their attention to the relevant evidence of V.

We have highlighted the words “for these counts” in the previous paragraph in order to ensure that the limited scope of this decision is clear. We have said that a different conclusion may have followed had an error of a similar kind occurred in respect of counts 1-5. Equally, there are other situations when a date in an indictment alleging a sexual offence may be material. Perhaps the obvious example is the use of specimen counts and specific counts where the jury is being required to determine not only whether sexual offending occurred but also how frequently it occurred. In that situation inconsistencies between the evidence and the allegation as formulated in the Indictment may be very material because it may be unclear what the jury has actually decided. It is not necessary to attempt to identify all cases where errors of this kind may give rise to doubts about the safety of a conviction. It is only necessary to decide, as we do, this in this case the error in framing counts 6-11 gives rise to no such doubts. Those convictions are safe.

In these circumstances, Mr Nutter’s Ground 2 in his conviction appeal, and his ground of appeal against sentence do not arise. They are both expressly said to be contingent on the success of Ground 1 of the conviction appeal which has failed.

In these circumstances, where we have dismissed the only arguable point on the merits, there is no need to give any separate consideration to the application for an extension of time. We have allowed the Appellant to present his case in full, notwithstanding the lapse of time before it was lodged.

For these reasons, this appeal is dismissed, and leave to appeal against sentence is refused.