England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		14th February 2007

1. LORD JUSTICE KEENE: On 7th July 2006 at Wolverhampton Crown Court, before His Honour Judge Dudley, the appellant and the applicant were convicted of one count of keeping a brothel used for prostitution, contrary to section 33A of the Sexual Offences Act 1956. The appellant, Pritchett, was subsequently sentenced to 2 years' imprisonment and the applicant, Langston, to a community order of 180 hours unpaid work. Mr Pritchett now appeals against conviction by leave of the Single Judge and Mr Langston's application for an extension of time and for leave to appeal against conviction has been referred to this Court by the Registrar. We grant his applications and we therefore treat both men as appellants. A co-defendant at the Crown Court, Susan Richards, changed her plea to one of guilty and was given a community order with 250 hours of unpaid work required.
2. Section 33A of the Sexual Offences Act 1956 was in fact inserted into that statute by an amendment contained in the Sexual Offences Act 2003, section 55. That makes it an offence to keep, or to manage or act or assist in the management of a brothel to which people resort for practices including prostitution. This new provision came into effect on 1st May 2004 and it is not contended that it has retrospective effect so as to catch activities taking place before that date.
3. In the form in which the indictment in the present case was originally worded and signed, no problem arose. It alleged that the three named defendants, on 29th September 2005, had kept, or managed, or acted or assisted in the management of a brothel, namely "Cuddles", 497 Hagley Road, Bearwood. That charge arose out of a police raid on those premises on that date in September 2005. There was ample evidence that the premises were being used as a brothel within the terms of section 33A on that date. For example, police found a number of scantily clad women on the premises, condoms, wet Tampons and a couple who were having sexual intercourse. There was further evidence to similar effect.
4. The central issue at trial was whether these appellants knowingly managed or assisted in the management of those premises as a brothel. In order to help prove their case on this issue, the prosecution wished to rely on certain documentation earlier than the date of the police raid, and they applied, at a pre-trial hearing, to amend the indictment. That amendment was unopposed and it was duly granted. As amended the indictment charged the appellants and their co-defendant with committing the section 33A offence "between the 15th October 1998 and the 30th day of September 2005". Nobody appears to have woken up to the fact that such an offence could only relate to 1st May 2004 and later, possibly because the new provision appears in the 1956 Act. In any event this defect remained unnoticed throughout the trial. Only after sentence had been passed, on 30th August 2006, did counsel for the appellant Pritchett realise that there was a defect. It is the consequences of that defect and of the judge's directions to the jury which form the basis of these appeals.
5. The first ground advanced on behalf of both appellants is that the indictment did not comply with the Indictments Act 1915, section 3, and Rules 5 and 6 of the Indictment Rules 1971. Section 3(1) of the 1915 Act requires an indictment to contain a statement of the specific offence or offences charged "together with such particulars as may be necessary for giving reasonable information as to the nature of the charge". Rule 6 of the 1971 Rules requires the particulars of the offence to "disclose the essential elements of the offence." There then follows a proviso in these terms: "provided that an essential element need not be disclosed, if the accused person is not prejudiced or embarrassed in his defence by the failure to disclose it."
6. On behalf of the appellants, Mr Stirling argues that the particulars given in this indictment included a period when the offence complained of did not exist, that is to say the period prior to 1st May 2004. In consequence, it is said, the indictment was and is invalid. The particulars cannot extend beyond the period covered by the statute. Moreover, submits Mr Stirling, a defendant is entitled to know when the alleged offence is taking place and the case which he has to meet. No authority has been cited to us on behalf of the appellants in support of the proposition that the error identified in the present case in the particulars of offence render the indictment null and void.
7. It seems clear to this Court that the way in which the indictment was ultimately formulated did give rise to an irregularity. That, however, is not the end of the matter. The question is whether that defect renders the indictment automatically a nullity, so that the convictions must be seen as unsafe for that reason. Normally the date of an alleged offence is not to be regarded as a material averment in an indictment (see R v Dossi (1918) 13 Cr App R 158). There may however be situations where the dates given simply do not disclose a criminal offence because, for example, the offence in question did not exist at all on the date set out. That would have been the case with the present indictment, had the period cited been entirely before section 33A came into effect. That however was not the case here. Offences of this kind have been held to be continuing offences (see R v Anderton and Cooper (1980) 72 Cr App R 232). It does not have to be established by the Crown in such a situation that a continuing offence of that kind continued throughout the whole of the period. It would suffice if the Crown was able to prove the commission of the offence in the period from 1st May 2004 onwards.
8. It remains, of course, the fact that the wording of the particulars of offence here produced an irregularity, as we have indicated. But, in our judgment, this did not render the indictment itself a nullity. Guidance on that aspect is to be found in the decision of the House of Lords in the case of R v Ayres [1984] AC 447. There, Lord Bridge of Harwich, giving the only substantive judgment, said this at page 460H to 461B:

"If the statement and the 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 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."

That reference in the passage quoted to "prejudiced or embarrassed the defendant" reflects the same approach as is found in the wording of Rule 6 of the 1971 Rules. But in any event, the words were being used by Lord Bridge in that passage as a way of applying the proviso, which at that time existed, in the wording of section 2(1) of the Criminal Appeal Act 1968. That proviso has since gone but has been replaced by the test which this Court is now required to apply by virtue of section 2(1), as it is now worded, namely whether this Court thinks the conviction is unsafe. That will not always produce the same result as the earlier test under the original proviso (see the decision in R v Graham [1997] 1 Cr App R 302). Nonetheless, it seems to us that the approach of the House of Lords in Ayres, as expressed by Lord Bridge is, on the facts of the present case, relevant to the issue of the safety of these convictions. We shall turn to those in a moment.

9. Before we do so, it is necessary to summarise the evidence at trial, particularly the evidence of the involvement of the appellants. Both of them were found by a police officer in the kitchen of the premises at 2.30 am of the morning immediately following the evening raid by the police on 29th September 2005. There was evidence that they said to a police officer that they were cleaners.
10. So far as Mr Pritchett is concerned, the Crown also relied at trial on evidence that he took possession of the copy of the search warrant intended and marked for the owner/ occupier of the premises and was the director and main share holder of the company CP Limited, which was the freehold owner. He had the keys to a car parked outside, a Mercedes. He did not declare employment as a cleaner to the Revenue and he had a previous conviction, in 1990, for living on immoral earnings which was said to show propensity. All of those factors could be said to concern the situation at or around the time of the police raid in September 2005. In addition, the Crown relied on evidence that he had made a witness statement on 27th March 2004, in which he describe himself as "just filling in as the manager" at Cuddles Massage Parlour. There was a second witness statement by him to like effect, dated 22nd April 2004.
11. In the case of Langston, he did not declare employment as a cleaner to the Revenue. His home was owned by CP Limited, but most strikingly, there was a sign on the notice board in the premises, at the time of the police raid, with a telephone number saying to call "Nathan" if there were any problems. Nathan was Mr Langston's first name. He sought to explain this in interview on the basis that the notice was there in case there were any maintenance problems. Of some significance, it is to be observed that neither appellant gave evidence at trial.
12. With that summary of the evidence, we can turn to the issue of the safety of the convictions. In the case of the appellant, Pritchett, this is bound up with the second ground of appeal, which asserts a misdirection by the judge in his summing-up. The grounds of appeal in Langston's case do not rely on such a ground for reasons to which we will come. The alleged misdirection arises because the judge never sought to get the jury to focus on the period from 1st May 2004 onwards. He spelt out the two issues for the jury in the following terms:

"The prosecution, first of all, have to prove that the premises concerned were acting as a brothel, and, secondly, if they are going to succeed against the defendant, they have to prove the other aspect, that they managed or assisted in the management of the brothel."

13. In so far as the judge dealt with what period of time was relevant for these issues he said, at page 5H onwards:

"Dates are never a really important or rarely a really important element of a criminal charge, because it doesn't, in one way, really matter when it was. The question is: did it happen? Are you sure that it happened? The prosecution have selected a fairly wide bracket, which looks as if it goes about the time of the incorporation of the company CP Limited, until the 30th September, and of course 30th September was the day after the police raid.

The prosecution don't have to prove that each of these defendants was involved on every single hour of every single day between those dates. They have to prove to your satisfaction, so that you are sure, that the defendant whose case you are considering was involved in the management of or assisting in the management of the brothel at some stage during that very wide period. And of course, as has already been pointed out, the bulk of the evidence in the case comes from one day -- comes from 29th September. It goes beyond that, we know, from notices and things that were found on the premises. But don't worry about the dates: concentrate on whether the prosecution have proved the two important elements in the case."

14. The omission of any reference to the period "from 1st May 2004 onwards", so far as whether these premises were a brothel, is not said to be of significance. There was clear and vivid evidence that they were being so used on 29th September 2005, at the time of the police raid, and in contrast there was only limited evidence that they were being so used before 1st May 2004.
15. But on the issue of the involvement of the appellants in the management of premises and particularly the appellant, Pritchett, the omission is said to be significant. Mr Stirling submits that the judge failed to direct the jury that they had to be satisfied that the offence was committed on or after 1st May 2004, and that this appellant was involved in the management at that time. The conviction, it is said, cannot be seen as safe. It is contended that there was here a clear misdirection. So far as the safety of the conviction is concerned, it is argued on behalf of Mr Pritchett that, as at 29th September 2005, the evidence against him was merely his arrival at the premises with 15.1. Mr Langston, there describing themselves as cleaners and Mr Pritchett accepting the warrant. Such other evidence as there was consisted simply of Mr Pritchett's connection with others involved and the two witness statements which he had given to the police, in March and April 2004, referring to himself in some terms as "manager". Mr Stirling draws attention to the fact that Crown described those witness statements as "very compelling evidence" if accurate. It is submitted there could be no doubt that such evidence would have been very significant for the jury. As for the safety of the conviction of the appellant, Pritchett, as now to be judged by this Court, Mr Stirling submits that none of the evidence shows his involvement in 2005 in the management. There is, it is said, no evidence to that effect and this Court cannot be sure that a reasonable jury would have convicted, if they had been properly directed on the evidence as it stood.
16. For the Crown, Mr Butterfield accepts that there was a misdirection and also that some of the evidence about Mr Pritchett and his involvement in the management related to such involvement before 1st May 2004. But he submits that the conviction is nonetheless safe. The evidence from before that date was, it is said, still relevant and admissible, given that there was no evidence to suggest that the position had changed after that date and, in addition, there was also evidence specifically relating to the period after the statutory provision came into effect on that date. Mr Butterfield refers, in that connection, to Mr Pritchett's presence at the premises in the small hours of the morning on 29th September, to his taking and retaining the search warrant and to the absence of any rebuttal evidence from him. It is submitted on behalf of the Crown that it is inconceivable that the jury would not have found Mr Pritchett guilty in respect of his management of the brothel after 1st May 2004.
17. We can deal, first and briefly, with the position concerning the appellant, Langston. Very little of the evidence about his involvement in the management of the premises related to the period before 1st May 2004. Consequently there can be no doubt that, if the jury had been properly directed to consider that involvement at the relevant time (namely on or after that date), they would still have convicted. This, no doubt, is why this line of argument does not form one of his grounds of appeal.
18. The position in respect of the appellant, Pritchett, is somewhat more complicated. The evidence from which his involvement in the management at the relevant time could be deduced does relate to the time both before and after the date when section 33A came into effect: the mere fact that evidence emanates from before that date does not render it irrelevant. Mr Butterfield is right in saying that the evidence before that date has relevance, in so far as the jury might infer this appellant's involvement after that date. They were not, of course, directed to consider whether such an inference could properly be drawn.
19. The evidence from the period after 1st May 2004 consisted, as we have indicated, of Mr Pritchett's presence at the premises in the early morning after the raid, his explanation at the time that he was a cleaner, the absence of any tax return declaring his employment there, his role in the company owning the freehold of the premises and his taking of the owner/occupier's copy of the search warrant. The fact that the car he used was outside at the time, seems to us, to add very little, if anything, to this, although it may be unusual for a cleaner to be driving a Mercedes. His conviction for living on immoral earnings, in 1990, was also relevant, though it was of some antiquity when considered 15 years later.
20. The jury must have been influenced by Mr Pritchett's witness statements in early 2004, in which he effectively described himself as "managing the massage parlour." This evidence was indeed described by the judge in summing-up as "very compelling evidence". Certainly it was, if one was considering the period in the indictment from 1998 to September 2005, though, as we have already said, it is not without potential significance, even if one's consideration is confined to the period from 1st May 2004 onwards. A jury would be entitled to draw an inference from that evidence, that he was still a manager in 2005, unless there was some evidence to cast doubt on that.
21. The question for this Court is whether we are satisfied that, if the jury had been properly directed about how to approach all this evidence, the only reasonable and proper verdict in the case of the appellant, Pritchett, would have been one of guilty (see the decision in R v Stirland (1945) 30 Cr App R 40 and R v Davis, Rowe & Johnson [2001] 1 Cr App R 115, at 132). In other words: must any reasonable jury have been sure, if properly directed on the evidence, that Mr Pritchett was indeed involved in the management of this brothel in the period between 1st May 2004 and 30th September 2005?
22. We have concluded that any such jury would inevitably have been sure of this appellant's guilt. They would have been entitled to take into account his earlier witness statements, as we have indicated, together with the absence of any evidence to suggest that the position had changed since then. When that is added to the appellant's presence on the premises, shortly after the police raid, along with the appellant, Langston, his ownership through the company CP Limited of the premises, his false explanation for his presence there, namely that he was cleaner, and the fact that he gave no evidence at trial to rebut the Crown's case, this Court is satisfied that any reasonable jury would have been bound to convict. That being so, these appeals against conviction are dismissed.