England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEWES CROWN COURT
HIS HONOUR JUDGE HAYWARD
T20101105

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/10/2011

Lord Justice Rix :

1. This appeal concerns an error in an indictment which has charged the appellant, David Shields, with an offence which he could not commit instead of charging him with an offence which it appears he did commit but with which he has not been charged and of which he has not been convicted.
2. The history begins with the appellant's conviction on 3 February 1993 for an offence of rape for which he received a sentence of 10 years' imprisonment. In the light of that conviction and certain other matters arising in June and July 2004 (referred to below) the Chief Constable of the Sussex Police applied to the Sussex Eastern Magistrates' Court, pursuant to section 104(5) of the Sexual Offences Act 2003 (the "2003 Act"), for a Sexual Offences Prevention Order ("SOPO"). On 24 January 2005 the magistrates adjudged that the appellant's behaviour since the date of his conviction for the rape (which constituted the appellant a qualifying offender) made it necessary to make a SOPO against him to protect the public from serious sexual harm. They therefore made a SOPO under section 104(1) of the 2003 Act, which prohibited him inter alia from –

"1. Behaving or conducting himself in a manner that causes, or is likely to cause, fear, harassment, alarm or distress to any female person."

That SOPO remains in place, for it was made until further order.

3. The matters about which the magistrates were satisfied were that on 16 June 2004 the appellant had exposed his penis at a middle aged woman walking on the beach near Galley Hill Cliff, East Sussex; that on 22 June 2004 he had loitered around and entered into the female toilets at Bexhill; and that on 9 July 2004 he had made lewd and suggestive remarks to a girl of 14 at Bexhill railway station.
4. We now come to the matter which has brought the appellant back before the courts again. In the late afternoon of 31 August 2010, the complainant was on the beach near the Old Town, Hastings. The appellant was also present on the beach. The complainant went for a swim, and on returning from the sea noticed that the appellant was sitting near to where she had left her belongings. They began conversing, initially about an injured gull. At the appellant's suggestion they moved to another area of the beach. The appellant brought up the subject of nudist beaches, and the complainant said that her mother was a naturist. He then removed his shorts so that he was completely naked. She decided it was time to leave, and began to dress over her swimming costume. She alleged that he then attempted to kiss her, and that when she said "No" he reached out and touched her breast briefly with his hand. She then departed, saying "No means no…". When she got home and told her boyfriend, he took the matter seriously and called the police. The appellant was arrested later that day, and when in police custody told an officer: "I touched her but it wasn't an assault." On 1 September 2010 the complainant attended a formal identification parade and identified the appellant as the man who had tried to kiss her and had touched her breast on the beach. In interview the appellant made no comment to all the questions put to him. At his trial, he gave evidence that he had merely engaged the complainant in a friendly chat, that his removal of his shorts and the attempted kiss had been with her consent, that the touching of her breast was entirely accidental, and that he could not have in the circumstances caused her any fear, harassment, alarm or distress.
5. Although there is a second ground of appeal concerning the directions given by the judge at trial relating to the appellant's failure to answer the questions put to him in interview, the primary ground of appeal concerns the error made in drawing up the indictment against him. The intention was no doubt to charge him with a breach of the SOPO which had been made under the 2003 Act: but in error the indictment charged him instead with breach of a Sexual Offences Order (or "SOO") made under the Crime and Disorder Act 1998 (the "1998 Act"). The indictment read:

"STATEMENT OF OFFENCE

BREACH OF A SEX OFFENDER ORDER, contrary to section 2(8) of the Crime and Disorder Act 1998.

PARTICULARS OF OFFENCE

DAVID JAMES SHIELDS on the 31^st day of August 2010 without reasonable cause, behaved in a manner that caused or was likely to cause harassment, alarm or distress to a female person, which he was prohibited from doing by a Sex Offender Order made under section 2 of the Crime and Disorder Act 1998 on 24^th January 2005 by Sussex (Eastern) Magistrates Court."

6. The provisions of section 2 of the 1998 Act for the making of a SOO, and for taking proceedings for breach of a SOO, were repealed and replaced by sections 104 and 113 of the 2003 Act with effect from 1 May 2004. At the time of the making of the SOPO in the appellant's case, therefore, only a SOPO could be made, under the 2003 Act. However, proceedings for breach of a SOO made under section 2 of the 1998 Act before its repeal can still be taken, but only under section 113(1)(d) of the 2003 Act, no longer, as the indictment stated, under section 2(8) of the 2003 Act. Therefore the offence with which the appellant was sought to be indicted was not, in one sense, an offence unknown to law: a breach of a SOO could be prosecuted, but only under the 2003 Act. However, the offence with which the appellant was in fact indicted, namely breach of a SOO "contrary to section 2(8) of the Crime and Disorder Act 1998" was unknown to law, for it had been repealed, albeit replaced by an offence under section 113(1)(d) of the 2003 Act. In any event, the indictment was defective because the appellant had never had a SOO made against him under the 1998 Act, the order referred to in the indictment did not exist, and, for good measure, it would not have been possible on 24 January 2005, the date referred to in the indictment, to have made a SOO under section 2 of the 1998 Act, since that had been repealed. To that extent as well, the offence as particularised in the indictment, was unknown to law.
7. The defect in the indictment was not noticed before or during the appellant's trial. Mr Tom Little, who represents the Crown on this appeal, but did not appear at trial, frankly accepts that it should have been noticed by the prosecution advocate. Ms Pamela Rose, who represented the appellant at his trial and appeared on his behalf again on this appeal, to her embarrassment, also overlooked the defective indictment. The trial took place before HHJ Hayward and a jury in the crown court at Lewes on 17 March 2011, when the appellant was convicted of the offence for which he had been indicted (breach of a SOO contrary to section 2(8) of the 1998 Act) and sentenced to 9 months imprisonment. His plea of not guilty to a separate count of sexual assault was ordered to remain on file on the usual terms.
8. The appellant now appeals against that conviction with the limited leave of the full court, [2011] EWCA Crim 1460. In his judgment for the court given on that occasion, Maddison J accepted Ms Rose's assurance that she did not herself spot the error and that this was not therefore a case of her observing the error, and, as it were, sitting on it in order to be able to rely upon it on appeal in the event of conviction. As Maddison J then also said, it is "disappointing, to put it mildly, that this serious error was not spotted by anyone associated with the conduct of the trial". We cannot but agree. Maddison J also expressed the view that it was not only arguable but "clear that the offence charged was not one known to law at the relevant time".
9. On this appeal, Mr Little accepts on behalf of the Crown that the indictment was defective, that the appellant was convicted of an offence of which he could not have been guilty, and that therefore the conviction cannot stand. He submits however that the indictment was not a nullity, because the offence of breach of a SOO could still be indicted under section 113 of the 2003 Act. He submits therefore that a conviction for breach of the SOPO in fact imposed on the appellant pursuant to section 104 of the 2003 Act can be substituted for the unlawful conviction under section 2 of the 1998 Act, in reliance on the provisions of section 3 of the Criminal Justice Act 1968. However, he accepts that unless such a substitution can be made, then this appeal must be allowed and the conviction quashed.
10. Section 3 provides as follows:

"(1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.

(2) The Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity."

11. In circumstances where the submissions made before us at the hearing of this appeal did not seek to take us into the law and jurisprudence concerning defective indictments, for the purpose of establishing whether or not the indictment here in question was merely defective or rather amounted to a nullity, we do not propose to decide that issue. We would merely opine, in conformity with what appeared to be clear to Maddison J and the full court which gave leave to appeal in this case, that this was the 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 the law. This is despite the fact that mere drafting defects are not favoured as invalidating an indictment. See R v. Taylor [1925] 18 Cr App R 105, Meek v. Powell [1952] 1 KB 164, DPP v. Bhagwan [1972] AC 60, and DPP v. Withers [1975] AC 842: cf R v. McVitie [1960] 44 Cr App R 201, R v. Molyneux [1981] 72 Cr App R 111 and R v. McLaughlin [1983] 76 Cr App R 42.
12. We turn to section 3 of the Criminal Appeal Act 1968. The leading case is R v. Graham [1997] 1 Cr App R 302, which is also a leading case on the meaning of section 2 of the same Act and the concept of an "unsafe" conviction. As to section 2, Lord Bingham CJ, giving the judgment of this court, said (at 309D/E, reflected in headnote (1)):

"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 QB 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 the 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."

13. Mr Little in effect concedes that that rationale applies to this case, unless section 3 rides to the rescue. McVitie, to which we have also referred above, concerned a merely defective indictment which in its particulars had omitted the word "knowingly" from a statement of the offence: this court held that the indictment was not rendered invalid in the sense of disclosing no offence known to law, but was merely defective in that it described a known offence with incomplete particulars.
14. In Graham, a case which followed on the difficulties created by the decision in R v. Preddy [1996] 2 Cr App R 524, [1996] AC 815, the defendants had been convicted of obtaining or attempting to obtain property by deception under section 15(1) of the Theft Act 1968. They had been accused of so-called "mortgage fraud". Preddy had demonstrated that section 15 did not work in such circumstances, for the fraudster did not obtain property which had ever belonged to the lender. It was argued for the Crown that nevertheless the convictions were not "unsafe", for the criminality of the defendants was clearly established. That ground of opposition to the appeal failed. In this case, Mr Little in effect concedes that any similar ground of opposition to Mr Shield's appeal must similarly fail. Mr Little has not suggested that the deficiency in the indictment could be cured by amendment after conviction so as to render lawful and proper the conviction for the offence charged.
15. However, in Graham the Crown had a second riposte, under section 3, which succeeded. Thus this court substituted for the jury conviction pursuant to section 15(1) of the Theft Act a conviction under section 20(2) of the Theft Act, for the offence of procuring the execution of a valuable security by deception, in cases where a cheque was obtained from the lender. Lord Bingham's judgment set out the principles upon which such a substitution could, in the court's discretion, be made. He said (at 312G/313A):

"Before this Court could substitute a conviction of an alternative offence the prosecution would have to establish two requirements: (1) that the jury could on the indictment have found the appellant guilty of some other offence (offence B) and (2) that the jury must have been satisfied of facts which proved the appellant guilty of offence B. As to (1) it would be sufficient if looking at the indictment (not the evidence) the allegation in the particular count in the indictment expressly or impliedly included an allegation of offence B. A count charging offence A impliedly contains an allegation of offence B if the allegation in the particular count would ordinarily involve an allegation of offence B and on the facts of the particular case did so…"

16. We are concerned with requirement (1). Requirement (2) here was regarded at the appeal as presenting no factual problems, on the ground that the same conduct by the appellant, which the jury by their verdict found proved to their satisfaction, would have equally well supported the finding of a breach of a SOPO as of a SOO, at any rate if drafted in the same terms. There is a certain incoherency in supposing the Order which was presented to the jury as a SOO as being in fact a SOPO. We assume, however, that all that is here required under requirement (2) is that the jury be satisfied that the prohibited conduct, which was specified in the indictment's particulars, albeit that prohibition was ascribed to a misnamed Order, had been carried out by the appellant.
17. The statutory test for requirement (1) is that "the jury could on the indictment have found him guilty of some other offence". The critical words there are "could on the indictment". Lord Bingham explains that test by requiring that "the indictment expressly or impliedly included an allegation of offence B". That test was met in Graham because the indictment, although referring to section 15(1) and the wrong offence, particularised the offending conduct in terms which reflected the wording of section 20(2), in particular by alleging that the defendant had "by deception…obtained…a cheque", thereby implicitly tracking the terms of section 20(2).
18. However, in the present case it seems impossible to fit the indictment within Lord Bingham's test. The indictment expressly refers to a breach of a SOO contrary to the 1998 Act, and the particulars again expressly refer to a SOO made under the 1998 Act. It is impossible to see how that indictment expressly or impliedly included or could be regarded as ordinarily including an allegation of breach of the 2003 Act by reference to a SOPO made under that Act.
19. We have tested that conclusion by reference to a number of cases which have since referred to Graham or section 3. None of them are entirely on all fours with the present case, but they in general support our conclusion or do not throw doubt on it. Thus in R v. Beck [2003] EWCA Crim 2198 the defendant was indicted for breach of an invalid restraining order when the indictment could have charged another, valid, restraining order in identical terms. This court held that there could be no substitution, even though mere misstating of a valid order's date would not in itself have made a conviction unsafe (at para 29). In R v. K [2007] EWCA Crim 1888, [2008] 1 Cr App R 1, an indictment was defective but not invalidly so in its statement of the ingredients of conspiracy; but a substantive offence could not be substituted for the offence of conspiracy charged (at para 101). In R v. Sahin [2009] EWCA Crim 2616 the defendant was charged with (witness) intimidation contrary to section 51(1) of the Criminal Justice and Public Order Act 1994. As a result of the way in which that offence was indicted and presented to the jury, the conviction could not be sustained. It was submitted that a conviction could be substituted under section 39 of the Criminal Justice and Police Act 2001, which established a similar offence but in relation to civil rather than criminal proceedings. Lord Justice Leveson rejected the submission, saying that it was in the nature of section 39 of the 2001 Act that it was not open to the jury to convict on an indictment alleging breach of section 51 of the 1994 Act. He said: "The former deals only with non-criminal proceedings and the latter only with criminal proceedings."
20. It is unfortunate that an error in drafting the indictment, and the failure to observe it, have rendered the proceedings against the appellant futile. However, the SOPO remains in effect. For that reason, and because the appellant had already served 2 months of his sentence, Mr Little did not seek a retrial, when we gave our decision allowing the appeal at its hearing and then quashed the conviction. At that time we reserved our reasons, which are now contained in this judgment.
21. In the circumstances, it is not necessary to say anything about the appellant's second ground of appeal.