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Cite as: [2013] WLR(D) 404, [2014] Cr App R 127, [2014] 2 WLR 1180, [2014] 1 Cr App R 127, [2014] Crim LR 368, [2014] 1 Cr App R 10, [2014] QB 704, [2013] EWCA Crim 1780, [2014] 1 QB 704

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		Neutral Citation Number: [2013] EWCA Crim 1780
		Case No: 2012/01123D1

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BLACKFRIARS CROWN COURT
HH Judge Richardson
T20100172

Royal Courts of Justice
Strand, London, WC2A 2LL

23/10/2013

B e f o r e :

LORD JUSTICE GROSS
MR JUSTICE MACDUFF
and
RECORDER OF CHESTER HHJ ELGAN EDWARDS
____________________

Between:

	Michael Wilson	Appellant
	- and -
	R	Respondent

____________________

Richard Lissack QC and Robert Dickason (instructed by Benchmark Solicitors) for the Appellant
Sarah Le Fevre (instructed by London Fire and Emergency Planning Authority) for the Prosecution
Hearing date: 13th December 2012 and 13th June 2013
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Gross:

This is the judgment of the court to which all members of the court have contributed. In particular paragraphs 1 to 43 were written by MacDuff J. There will be seven sections to this Judgment:

(i) Introduction.

(ii) The Regulatory Reform (Fire Safety) Order 2005

(iii) The Indictment and the crown's case

(iv) This appeal

(v) The original appeal

(vi) Does article 32(8) create a discrete offence?

(vii) Is that defect remediable?

Introduction

On 6th December 2011 in the Crown Court at Blackfriars the appellant Michael Wilson was convicted of six offences charged under article 32(8) of the Regulatory Reform (Fire Safety) Order 2005 (hereafter "the Order") before His Honour Judge Richardson and a jury. He was later sentenced by way of substantial fines with terms of imprisonment in default. Other consequential orders were made which we need not consider.

There was a co-defendant Chumleigh Lodge Hotel Limited ("the company") which was also convicted of six offences under different articles of the Order. The company was charged and convicted of the odd numbered counts on a twelve count indictment; the appellant was convicted of the even numbered counts.

The appellant appeals against conviction by leave of the single judge. No complaint is made of the conviction of the company. However, for reasons which will become clear, it will be necessary for us to consider the case against the company.

We do not need to consider the background facts in any detail. Chumleigh Lodge Hotel, situated in Finchley London N3, was owned by the appellant. He was the sole director of the company. On 18th May 2008 a fire broke out on the premises. This had been started by a guest in one of the bedrooms carelessly disposing of a lighted cigarette. The Fire Brigade attended and extinguished the fire. The circumstances of the fire were investigated and the company and the appellant were charged with the offences.

Regulatory Reform (Fire Safety) Order 2005

The relevant provisions of the Order are as follows:

(i) Article 3 provides the definition of "responsible person". It is not necessary to consider this article as it is common ground that the company was, in this instance, the "responsible person".

(ii) Article 5(1) provides that the responsible person must comply with the duties contained within articles 8 to 22.

(iii) Articles 8 to 22 inclusive set out the duties with which the responsible person, that is to say in this case the company, must comply. Of relevance:

a) Article 9(1) requires the making of a suitable and sufficient risk assessment.

b) Article 13 (1) requires that the premises be equipped with (inter alia) fire detectors.

c) Article 14(1) requires that routes to emergency exits be kept clear

d) Article 17(1) requires that premises, facilities, equipment and devices be maintained in efficient working order and in good repair.

e) Article 21(1) requires the provision of adequate safety training for staff.

(iv) Article 32(1) (a) provides, insofar as relevant, as follows:

"It is an offence for any responsible person … to (a) fail to comply with any requirement or prohibition imposed by articles 8 to 22 … where that failure places one or more relevant persons at risk of death or serious injury in case of fire".

(v) Article 32(3) to 32(7) makes provision for penalties. It is not necessary to recite these provisions. It may be noted that the penalty for breach of articles 8 to 22 is to be found within article 32(3).

(vi) Article 32 (8) provides:

"Where an offence under this Order committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director … of the body corporate … he as well as the body corporate is guilty of that offence and is liable to be proceeded against and punished accordingly".

(vii) Article 33 provides, so far as relevant:

"In any proceedings for an offence under this Order … it is a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence".

The Indictment and the Crown's Case

It was the prosecution case that six offences had been committed under the Order by the company. The company was the "responsible person". The six counts against the company were as follows:

(i) Count one: Failing to make a suitable and sufficient risk assessment contrary to articles 9(1) and 32(1) (a)

(ii) Count three: Failing to provide staff with adequate safety training contrary to articles 21(1) and 32(1) (a)

(iii) Count five: Failing to ensure that routes to emergency exits were kept clear contrary to articles 14(1) and 32(1) (a)

(iv) Count seven: Failing appropriately to equip the premises with fire detectors contrary to articles 13(1) and 32(1) (a)

(v) Count nine: Failing to ensure that premises, facilities, equipment and devices were maintained in efficient working order and in good repair contrary to articles 17(1) and 32(1) (a)

(vi) Count eleven: A like offence to count nine in respect of different equipment and devices contrary to the same articles.

Thus it can be seen how the hotel company was charged. The duty was created by the various articles: 9(1), 13(1) 14(1) 17(1) and 21(1). The company was the responsible person under article 3. By article 5, the duties were to be performed by the responsible person and article 32(1) (a) made it an offence if the responsible person failed to comply.

Insofar as the odd numbered counts are concerned, the company was convicted by the jury following a trial and does not appeal. It had – as the jury found – committed the six offences.

It is now necessary to consider the case against the Appellant. Article 32(8) is set out at paragraph 6(vi) above. There was no issue that the hotel company was a body corporate. It had committed the six offences. The Appellant was a director. If it could be proved that (i) he consented to the offence and/ or (ii) he connived at the offence and/ or (iii) the commission of the offence was attributable to neglect on his part, by virtue of article 32(8) he as well as the body corporate would be "guilty of that offence and… liable to be proceeded against and punished accordingly".

Article 33, set out above at paragraph 6(vii), provided what may be called a statutory defence. At the trial it was the appellant's case that he had taken all reasonable precautions and exercised all due diligence; he relied upon this defence (as did the company). The burden was upon him to establish the defence to the civil standard. In summing up the case against the appellant, the learned judge did not direct the jury fully about this defence. He took the view that, if the jury could be satisfied to the criminal standard that the appellant was guilty of neglect, connivance or consent, it could not then be open to them to conclude that he had exercised all due diligence. We may note in parentheses that he did sum up the defence as advanced by the company.

We may now return to the indictment. The charges were in pairs. So the case against the appellant in count two was that he had consented and / or connived and / or been guilty of neglect in respect of count one. The same applied to counts three and four; and so on for the length of the indictment.

For the purpose of this appeal we need to consider only one pair of charges. The same considerations apply to each pair of charges through the indictment. So we may limit ourselves to looking at counts one and two. As already noted, under count one the hotel company was convicted of failing to make a suitable risk assessment contrary to articles 9(1) and 32 (1) (a).

We now reproduce the first two counts of the indictment in the form in which it went before the jury.

Count 1

Statement of offence

FAILURE TO MAKE A SUITABLE AND SUFFICIENT ASSESSMENT OF RISK, contrary to articles 9(1) and 32(1) (a) of the Regulatory Reform (Fire Safety) Order 2005

Particulars of offence

CHUMLEIGH LODGE HOTEL LTD on 18th May 2008 at the Chumleigh Lodge Hotel 226-228, Nether Street, Finchley, N3 1HU, being a responsible person, failed to make a suitable and sufficient assessment of risk, which failure placed one or more relevant persons at risk of death or serious injury in case of fire.

Count 2

Statement of offence

CONSENT OR CONNIVANCE IN THE COMMISSION OF AN OFFENCE UNDER THE REGULATORY REFORM (FIRE SAFETY) ORDER 2005 ["the Order"] OR NEGLECT TO WHICH THAT OFFENCE WAS ATTRIBUTABLE, contrary to article 32(8) of the Order

Particulars of offence

On 18th May 2008 at the Chumleigh Lodge Hotel, 226-228 Nether Street, Finchley N3 1HU, Chumleigh Lodge Hotel Ltd ["the company"] committed the offence particularised in count 1 and this offence was committed with the consent or connivance or was attributable to the neglect of MICHAEL WILSON, Michael Wilson being a director of the company".

It should be noted that the allegation against the appellant was that he was complicit in the offence under count one by virtue of article 32(8). He was charged with a breach of article 32(8). He was not charged directly with a breach of article 9(1); failing to make a suitable risk assessment. And – as already noted – exactly the same applied to the other five pairs of counts lower down the indictment. These were drafted in exactly the same way. Whereas the company was charged with breaches of six different articles, the appellant was charged with six breaches of the same article. Furthermore, the indictment (so far as concerned the appellant) made no mention of article 32(1) (a). We now return to the words of article 32(8).

"Where an offence under this Order committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director … of the body corporate … he as well as the body corporate is guilty of that offence and is liable to be proceeded against and punished accordingly" (our emphasis).

We pause to note that, at first blush, the words "that offence" would appear to mean the offence under article 9(1). Insofar as the appellant was shown to have consented or connived (or to have been neglectful) he would be guilty of the same offence as the company. We emphasise also the words: "as well as the body corporate." In respect of count two this would be an offence of failing to make a suitable risk assessment in breach of article 9(1).

This appeal

We should now deal with the history of this appeal. At the trial, no point was taken upon the wording of article 32(8). No point was taken about the indictment. Nor was any point taken within the original grounds of appeal when the case was first listed on 13th December last year. There were just two grounds. The first was narrowly focussed and amounts to this. Under the Order, the Appellant was entitled (as was the company) to maintain the statutory defence under article 33. He had sought to do so during the trial but the learned judge, for reasons which he explained (and which we have mentioned above) neglected to place this defence before the jury. The second ground was wider ranging and alleged that the learned judge summed up the case adequately in respect of the counts against the company but not in respect of the counts against the appellant. In effect the whole of the summing up was concerned with the odd numbered counts; there was little reference to the counts against the appellant. That is just a brief summary of the two grounds of appeal within the Appellant's Notice as originally presented.

However, when the matter first came before this court, it appeared to us that there was potentially a more fundamental objection to these convictions. It appeared to us, at least on a first reading, that article 32(8) does not create a stand-alone offence. If a director is in breach of the article, he would stand to be convicted of the same offence as the company, in this case article 9(1). If that analysis is correct, he should be charged under article 9 (1).

At the first hearing of the appeal on December 13th 2012, we raised this concern with counsel; we invited and received oral argument; we reserved judgment; and we invited further written submissions. In particular, we invited supplemental written submissions addressing the following two points; (i) were the offences wrongly charged and (ii) if so, would this be remediable. Since then, further things have happened. The appellant has instructed Mr Richard Lissack QC to represent him. Further extensive written submissions have been lodged with the court on both sides, supported by bundles of documents and authorities. And amended grounds of appeal have been filed, adding a new ground; that the offences were unknown to law.

In summary, the Appellant submits that the he should have been charged with the like offences as the company – under articles 9(1), 21(1) and so on. Article 32(8) does not create a discrete offence of "consent or connivance … etc". Nor can the matter be remedied. There is no power to amend the indictment after verdict. The conviction can only stand if it is safe. It cannot be safe where the offence charged is unknown to law. And there is no power to substitute an alternative offence; that may only be done where the jury could on the indictment as drafted have convicted of some other offence.

The Respondent submits that the indictment was correctly framed – that article 32(8) creates a discrete offence; an offence of consenting, conniving and so on. Miss Le Fevre relies upon a number of reported decisions to support this assertion. In the alternative, she submits that the error (if error it be) is merely one of labelling. All that the indictment omitted was a reference to Art. 32(1) (a) and/or Art. 9 of the Order. The indictment was not a nullity; the irregularity (if any) did not render the conviction unsafe. In any event rectification is possible by substituting convictions for the offences with which he should have been charged.

The original appeal

Before considering these matters, we should deal with the two grounds of appeal as originally framed and as briefly summarised in paragraph 17 above. The first ground asserts that the learned judge failed to allow the Appellant to rely upon the "due diligence" defence provided by article 33 which (as set out in paragraph 6(vii) above) provides:

"in any proceedings for an offence under this Order … it is a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence".

The learned judge expressly decided not to place this potential defence before the jury. The reasoning behind that decision is as follows. Before considering the defence, the jury would have had to be satisfied, to the criminal standard of proof, that the Appellant had consented or connived in the commission of the offence by the company, or that the company's offence was attributable to his neglect. How, it may be asked, can the jury on the one hand be sure that there had been such consent connivance or neglect and on the other hand consider that the Appellant could prove that he had exercised that due diligence? This was a defence which was only available if and when the jury was sure that there had been consent connivance or neglect. If they were sure of that, the issue of due diligence could not possibly arise. In our judgment the point is obvious and this ground fails. It may be that the learned judge could have mentioned it to the jury en passant ("you may think that, if you have reached this point, the defence cannot possibly avail the Defendant because it would be inconsistent with your finding that he had consented connived ….." or similar words). But we fully understand his reasons for not doing so, and it is axiomatic that his failure to do so cannot possibly render the conviction unsafe.

The second ground as originally presented was that the learned judge inadequately summarised the evidence in respect of the Appellant. We are satisfied also that there is no merit in this ground. It is true that, when summarising the evidence, the judge did so in the context of the case against the company. As against the Appellant there were two limbs; first that the company be found guilty; second that the offence had been committed with the Appellant's consent or connivance, or was attributable to his neglect. In our judgment a repetition of the evidence in respect of the allegations leading to the breaches of the Regulations was entirely unnecessary. Two things were needed: a proper summary of the evidence leading to the convictions of the company; and a proper direction as to consent connivance and neglect. These were adequately provided and there is no merit in this ground of appeal.

We may return to the remaining ground; whether article 32(8) creates a discrete offence and, if not, what are the consequences.

Does article 32(8) create a discrete offence?

We will attempt to summarise the competing submissions. As already noted, Miss Le Fevre submits that the appellant was correctly convicted of six different breaches of article 32(8). Her submissions rest largely upon a consideration of reported cases where the court had to consider section 37(1) of the Health and Safety at Work &c Act 1974. That section is drafted in precisely similar terms to article 32(8). Section 37(1) provides:

"Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director … of the body corporate … he as well as the body corporate is guilty of that offence and is liable to be proceeded against and punished accordingly"

Miss Le Fevre has referred us to a number of reported decisions which, she submits, demonstrate that section 37(1) creates its own offence. Principally she relies upon Wotherspoon v HM Advocate [1978] JC 74; R v P Ltd [2007] EWCA Crim 1937 and R v Chargot Ltd [2008] UKHL 73 which were all cases where a director or directors were prosecuted for consenting or conniving etc in an offence committed by a corporate defendant and where section 37(1) – the equivalent of article 32(8) – was invoked. On the basis of her analysis – set out between paragraphs 13 and 17 of her main submissions – she asserts that section 37 does create its own offence and that a director or other officer is to be prosecuted under that section.

We need to consider those decisions. A part of the headnote in Wotherspoon v HM Advocate (supra) reads:

"A managing director of a company which had failed to guard machinery in contravention of statutory provisions was convicted of two charges under section 37(1) of the 1974 Act."

That case was concerned with whether the trial judge had directed the jury properly upon the meaning of the words "attributable to any neglect" and, to that extent is not relevant to the point at issue. But, Miss Le Fevre relies upon the statement that the director had been "convicted of two charges under section 37(1) of the 1974 Act." Taken at face value those words would suggest that there can be a discrete offence under that section. Miss Le Fevre has also referred us to a part of the judgment of the Lord Justice General (at page 78) where he was dealing with the interpretation of the word "neglect" which is said to support the submission that section 37(1) creates a stand alone offence (paragraph 14 of her main written submissions). However, we note that the learned Lord Justice General referred to neglect to which the commission of "an offence within a specified category" was attributable and we are unable to see that this part of the judgment supports the Respondent's submission. The judgment begins:

"The indictment to which this application relates contained four charges. Each was directed against Singer Company (UK) Limited, the applicant, and a Mr Cole. So far as the company was concerned, each libelled a commission … of certain statutory offences relating to the absence of fencing of certain parts of machines in their factory, and each charge ended with the words "and these offences were committed with the consent and connivance of, or were attributable to the neglect of you John Maxwell Wotherspoon, then managing director … of the said company, contrary to section 37(1) of the Health and Safety at Work &c Act 1974".

Mr Lissack submits that that makes the matter clear. There were four charges against the company. The applicant (as was Mr Cole) was jointly charged on the same four counts of the indictment. It is clear that the statement of offence was the same against each defendant. The charge alleged against the applicant arose from the combined effect of the substantive charge and section 37(1). To put that a different way, Mr Wotherspoon was not separately charged under section 37(1) with an offence of consenting or conniving and so on. He was charged with the same offence as the company and the particulars made it clear that, insofar as he was concerned, consent connivance or neglect was an ingredient of the offence alleged against him. That, submits Mr Lissack, is also clear from the following extract from the headnote: "The jury … found the applicant guilty in terms of section 37(1) of the two charges to which the company had pled guilty". Emphasis is placed on "the two charges to which the company had pled guilty". He had been jointly charged with the same two charges as the company.

R v P [2008] EWCA Crim 1937 as the Respondent's submissions make clear (paragraph 15) takes this matter no further. But reliance is placed upon R v Chargot Ltd [2009] 1 WLR 1 where we are referred to the following part of the judgment:

"The offence which section 37 creates is not an absolute offence. The officer commits an offence under this section only if the body corporate committed it with his consent or connivance or its commission was attributable to any neglect on his part. These are things relating to his state of mind that must be proved against him."

Miss Le Fevre points to the words "the offence which section 37 creates". On the other hand it is also clear that the judge is referring to the same offence as the body corporate has committed (The officer commits an offence under this section only if the body corporate committed it with his consent … etc); our underlining. "It" is the offence committed by both. This was a case where the first and second defendants were companies. The third defendant was managing director of the second defendant. The second and third defendants were jointly charged with contravening section 3(1) of the Health and Safety at Work &c Act 1974. Again the case was concerned with a different issue. But what is clear from a reading of the report is that the third defendant was charged as a director in reliance upon section 37(1). But, as is also clear, he was charged with a breach of section 3(1) and not an offence under section 37(1).

In paragraphs 18 to 28 of her main written submissions, Miss Le Fevre makes observations on what she calls the structure of the indictment. We can agree with much of what she says and we would not dissent from her assertion that the particulars of offence set out accurately and completely the misconduct which the prosecution was required to prove. The next paragraphs (29 to 37) deal with aiding and abetting and the way that indictments may be framed. We do not disagree with what is said within these paragraphs. Mr Lissack submits that these submissions are beside the point. If an offence is indicted in this way, this can only be in conjunction with the substantive offence said to be aided or abetted.

The next paragraphs (43 to 65) of the submissions are most helpful. They provide access to model indictments used in various different locations and by different prosecuting authorities. They also provide, in some cases, copies of indictments (sometimes partly redacted) used in specific cases. We do not understand Mr Lissack to dissent from any of this. He submits that what is important is not whether a party can be shown to have been charged with "conduct contrary to section 37(1) of the Health and Safety at Work Act" but whether the indictment charged the substantive offence under the Act – that is to say the same offence of which the body corporate was charged. His submission is this: that the authorities and indictments supplied by the Respondent demonstrate that the "secondary" liability under section 37(1) or article 32(8) cannot stand alone. In all the authorities and indictments (with a single exception) the relevant counts included the substantive offence (that is to say the same offence as that which was charged against the body corporate). This included the cases of Wotherspoon [1978] JC 74, R v P [2008] EWCA Crim 1937, Tuck v Robson [1970] 1 WLR 741, R v Chargot [2009] 1 WLR 1, Motor Depot Ltd v Wilkinson [2012 EWHC 3257 (Admin), R v T [2005] EWCA Crim 3511, and Knowles v Department for Business Enterprise [2009] EWHC 3889 (Admin). In this last case, May LJ confirmed at paragraph 27 that "the offence was correctly alleged to be contrary to section 23 of the Act", which was the substantive offence, notwithstanding that the prosecution case had been put on the basis of attributable neglect. Also the model indictments provided at tabs 17 and 18 of the Respondent's bundle all charge the substantive offence.

We mentioned above that there was a singular exception. This was a case (R v Lion Steel Equipment Ltd and others) tried before the Recorder of Manchester where count 4 charged a director of a company with "neglect contrary to section 37 of the Health and Safety at Work Act". The principal defendant was Lion Steel Equipment Ltd. The case is not reported and was not considered by this court but the indictment has been provided as one of the samples. Mr Lissack submits that that count suffers from the same defect as alleged here. There is no indication that the point was ever considered. With this exception, all cases and specimen indictments are consistent in charging the substantive offence, whether or not the secondary liability provision is also included. It is submitted on behalf of the Appellant that this is because, far from being an unnecessary gloss, the substantive offence is the crime actually committed and is necessarily the key ingredient in any valid indictment.

In our judgment article 32(8) does not create its own offence. So far as the company was concerned, the offence under count one was created by a combination of articles 9(1) and 32(1) (a). These were correctly pleaded in the indictment. So far as the appellant is concerned on count two, the offence is created by a combination of articles 9(1) and 32(8) and it should have been so charged and particularised. We can see from the material with which we have been provided that this is the way indictments are drafted in practice when the crown relies upon section 37(1) of the Health and Safety at Work &c Act in order to prosecute a director.

We also note this. Within articles 32(3) (4) (5) (6) and (7) (the penalty provisions) there is no provision for a penalty for a breach of article 32(8). There are prescribed penalties for all other offences. This goes to confirm that article 32(8) does not create its own offence.

We are also grateful to Mr Lissack for referring us to other legislation where there are similar – almost identical – statutory provisions which make directors, managers and/ or other officers liable for a substantive offence. These include Section 18(1) of the Theft Act 1968 which provides that:

"where an offence committed by a body corporate under [section 17] of this Act is proved to have been committed with the consent or connivance of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence, and shall be liable to be proceeded against and punished accordingly."

Section 12 of the Fraud Act 2006 provides another example. We do not burden this Judgment with the wording of section 12 which is effectively in identical terms. The accompanying Explanatory Note states that: "[t]his section repeats the effect of section 18 of the Theft Act 1968. It provides that if persons who have a specified corporate role are party to the commission of an offence under the Act by their body corporate, they will be liable to be charged for the offence as well as the corporation" (Mr Lissack's emphasis).

Section 18(1) of the Terrorism Act 2006 and section 18(1) of the Safeguarding Vulnerable Groups Act 2006 are in similar terms and there is a similar explanatory note in respect of the latter.

Of some real interest is section 14 of the Bribery Act 2010.

(1) This section applies if an offence under section 1, 2 or 6 is committed by a body corporate or a Scottish partnership.

(2) If the offence is proved to have been committed with the consent or connivance of—

(a) a senior officer of the body corporate or Scottish partnership, or

(b) a person purporting to act in such a capacity,

the senior officer or person (as well as the body corporate or partnership) is guilty of the offence and liable to be proceeded against and punished accordingly.

The Explanatory Note expressly confronts the point with which we are concerned: "[i]t should be noted that in this situation, the body corporate or Scottish partnership and the senior manager are both guilty of the main bribery offence. This section does not create a separate offence of "consent or connivance" (our emphasis).

We are entirely satisfied that this explanatory note correctly states the law in this area and is equally relevant to article 32(8) of the Regulatory Reform (Fire Safety) Order 2005. There is no discrete stand alone offence of consent connivance etc as alleged in the indictment in this case.

We now need to move to consider the parties' submissions upon whether the matter can be rectified.

Is that defect remediable?

Introduction

Having concluded that the appellant was wrongly charged, we turn to consider whether that error is remediable. It is common ground or at all events indisputable that the appellant was in no way prejudiced by the error. It is indeed a striking feature of this appeal that the point as to charging was neither raised by the appellant in the Crown Court nor in his Grounds of Appeal before this Court. The point first surfaced when MacDuff J very properly drew attention to it immediately before the first hearing of the appeal.

Nonetheless, as already foreshadowed, Mr. Lissack QC submits that, regardless of the "merits", the error is incurable. Again as already outlined, Ms. Le Fevre resists any such conclusion.

Before proceeding further, we can dispose of one matter. By the end of the appeal hearings before us, it was common ground that if the indictment was a nullity, then the conviction of the appellant could not be saved by recourse to s.3 of the Criminal Appeal Act 1968 ("the CAA 1968"), which furnishes this Court with power to substitute a conviction of an alternative offence. No more need be said of s.3.

The framework

As explained by the opening words of Archbold 2013 (at para. 1-1), a bill of indictment contains the "…written or printed accusation of crime made at the suit of the Crown against one or more persons."

S.3 of The Indictments Act 1915 ("the 1915 Act") provides as follows:

"3. General provisions as to indictments:

(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."

In turn, rule 14.2(1) of the Criminal Procedure Rules 2012 ("the CPR") is in these terms:

"Form and content of indictment

14.2 (1) 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) 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."

In the light of s.2, CAA 1968, as amended, it is now clear that there is a single basis for this Court allowing an appeal: namely, that the conviction is unsafe. S.2(1), as amended, provides as follows:

"(1) Subject to the provisions of this Act, the Court of Appeal –

(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and

(b) shall dismiss an appeal in any other case."

It follows that there is no longer a "proviso", empowering the Court to dismiss an appeal where the conviction has entailed no miscarriage of justice. It is important to read cases decided under the proviso with this change of the law well in mind – while also recognising that aspects of those decisions may well remain of relevance even under s.2, CAA as amended.

Principle and Authority

The underlying principle is straightforward: when an indictment is a nullity, the error is incurable and, whatever the "merits", a conviction based thereupon cannot stand. Conversely, even where there has been a material irregularity in the drafting of the indictment, where the error constitutes what has been described as "mis-labelling", the conviction may well be safe subject, of course, to any unfairness occasioned to the appellant by reason of the error. The key question here is thus not one of high level principle but of determining on which side of the line this case falls.

Mr. Lissack referred us to a number of authorities where the indictment had purportedly charged the respective defendants with offences unknown to law. In all these cases the convictions were quashed.

Thus in R v Bhagwan [1972] AC 60, the Respondent, a Commonwealth citizen, who knew that he was liable to be refused admission to the United Kingdom on examination by an immigration officer under the relevant statute, acted in combination with other persons and chose to land at a place where an immigration officer was unlikely to be encountered. The Respondent was charged with conspiracy to evade the control on immigration imposed under the Commonwealth Immigrants Act 1962. He submitted that the indictment disclosed no offence known to law; his submission was rejected, whereupon he pleaded guilty. The Respondent's appeal was allowed by this Court and the Crown's appeal to the House of Lords was dismissed. So far as here relevant, the ratio of the decision appears sufficiently from the following passage in the speech of Lord Diplock (at p.82):

"It is no offence under the law of England to do or to agree with others to do acts which, though not prohibited by legislation nor criminal nor tortious at common law, are considered by a judge or by a jury to be calculated to defeat, frustrate or evade the purpose or intention of an Act of Parliament. If it were otherwise, freedom under the law would be but an empty phrase. "

In R v Withers [1975] AC 842, the defendants, in the course of their business as an investigation agency, made reports for clients about the status and financial standing of third parties. To obtain the necessary information, they made inquiries of banks, building societies, government departments and local authorities and, to induce the officials or public servants to disclose confidential information, pretended to be acting in an official capacity. The defendants were charged with conspiracy to effect a public mischief. The defendants were convicted and appealed, alleging that the counts in question did not disclose an offence known to the law. This Court upheld their convictions but their appeals were allowed in the House of Lords, the House holding that the law knew no such generalised offence as conspiracy to effect a public mischief.

R v Whitehouse [1977] 1 QB 868 involved a defendant's plea of guilty to two charges of inciting his daughter, aged 15, to commit incest with him. On appeal this Court raised the concern that it was possible that the offences of which he had been convicted were unknown to the law. The prosecution conceded that the common law offence of incitement consisted of inciting another to commit a crime and that a girl aged 15 was incapable of committing the crime of incest under the relevant statutory provision. However, the prosecution sought to uphold the conviction by submitting that the indictment could be read to charge the defendant with inciting his daughter to aid and abet him to have unlawful sexual intercourse with her, contrary to another statutory provision. This Court rejected the prosecution's various contentions. As the daughter was incapable of committing the crime of incest, the defendant could not be guilty of the common law offence of incitement. Further, given the statutory context, the daughter could not in law have aided and abetted her father to commit incest with her. It followed that there was no offence known to the law of a man inciting a girl under the age of 16 to aid and abet him to have unlawful sexual intercourse with her. Accordingly, as the indictment did not disclose an offence known to the law, the decision of the trial judge to accept the defendant's pleas of guilty was wrong in law and, with regret, the appeal was allowed.

R v Shields [2011] EWCA Crim 2343; [2012] 1 Cr App R 9 concerned a defendant who was indicted , erroneously, for a breach of a sexual offences order made under the Crime and Disorder Act 1998 contrary to s.2(8) of that Act. The difficulty lay in the fact that at the time the defendant was indicted, s.2 of the 1998 Act (at least insofar as material) had been repealed. The defendant should have been indicted for a breach of a Sexual Offences Prevention Order ("SOPO") under the Sexual Offences Act 2003. The defendant was convicted. This Court allowed his appeal, though it is worth noting the arguments deployed and not deployed. On appeal, the Crown accepted that the indictment was defective and that the appellant had been convicted of an offence of which he could not have been guilty and that, therefore, the conviction could not stand. The Crown did, however, argue that the indictment was not a nullity and that a conviction for breach of a SOPO could be substituted under s.3 of the CAA 1968; if no such substitution could be made the Crown accepted that the appeal had to be allowed and the conviction quashed. The Court rejected the argument under s.3. As would appear from the judgment of Rix LJ (at [11]), the Crown did not develop any arguments as to whether the indictment was a nullity or merely defective. For its part, the Court expressed the view (ibid) that the indictment was not merely defective but was a nullity charging an offence unknown to law, despite observing "…that mere drafting defects are not favoured as invalidating an indictment".

Pausing there, we would at once observe that the cases of Bhagwan, Withers and Whitehouse ...all supra) are far removed from the problem posed by the present case. They do not raise at all the question of deciding whether an error in the indictment resulted in it being a nullity or merely defective, leaving open the possibility of the conviction surviving as not unsafe under s.2, CAA 1968. There was no error, still less drafting error, in the indictment to speak of; the problem was instead one of substantive law. Shields (supra) does come significantly closer to the facts in issue here. That said, Shields concerned an offence which had been repealed and, moreover, as has already been respectfully suggested, was decided (it would appear) on incomplete argument.

Mr Lissack also highlighted the speech of Lord Mustill in R v Mandair [1995] 1 AC 208. The facts were these. The defendant was charged with causing grievous bodily harm with intent, contrary to s.18 of the Offences Against the Person Act 1861 ("the 1861 Act"). During the trial it was agreed between the judge and counsel that, pursuant to s.6(3) of the Criminal Law Act 1967 ("the 1967 Act"), the jury could be instructed that it was open to them to convict on the lesser offence of inflicting grievous bodily harm, contrary to s.20 of the 1861 Act. It may be noted that whereas s.18 refers to causing grievous bodily harm, s.20 speaks of inflicting grievous bodily harm. However, when directing the jury, the judge referred to the s.20 offence as "causing" grievous bodily harm. The jury acquitted the defendant on the s.18 charge and, having been asked by the clerk if they had reached a verdict "on the alternative charge of causing grievous bodily harm contrary to section 20", returned a guilty verdict.

The defendant appealed successfully to this Court which held that he had been convicted of an offence unknown to law and quashed the conviction. The House of Lords allowed the Crown's appeal. The House held, unanimously, that it was open to a jury under s.6(3) of the 1967 Act to convict a defendant of an offence under s.20 of the 1861 Act as an alternative to a charge under s.18 of the that Act. The House went on to hold, by a majority, Lord Mustill dissenting, that the expression "causing grievous bodily harm" was wide enough to include "inflicting grievous bodily harm" and that the jury's verdict of causing grievous bodily harm contrary to s.20 could only be read as meaning that the causing of grievous bodily harm was contrary to s.20 in that it consisted of inflicting grievous bodily harm upon another person. Accordingly, the defendant had not been convicted of an offence unknown to law.

Mr. Lissack placed particular reliance upon the passage in the speech of Lord Mustill (at pp. 228-229), dissenting on this part of the case, in which his Lordship formulated the following five propositions:

"…1. For the purpose of deciding whether an indictment charges an offence not known to the law what matters is the statement of offence.

2. If the statement of offence purports to charge the defendant under a statute in language which does not reflect the terms of the relevant statute it is [a] nullity and the defendant cannot properly be put in charge of the jury upon it.

3. If the statement of offence correctly identifies an offence which does exist but the particulars of offence do not accurately reproduce the words of the statute the count is not a nullity but is irregular.

4. If the count is a nullity: (a) a verdict of guilty returned upon it is not a conviction; (b) the purported conviction cannot be upheld on appeal by the use of the proviso since there is no conviction to uphold; (c) even if the appellate court is sure that the jury would have convicted of an offence that does exist, the court cannot substitute a conviction for that offence in place of the invalid verdict.

5. If the count is irregular because of an error in the particulars of offence: (a) It may be cured by amendment. (b) The verdict returned in respect of it is not void. (c) If the circumstances of the case, including the evidence adduced and the direction given to the jury, are such that the irregularity has not misled the jury the proviso may properly be applied."

Plainly, given their provenance, these observations are entitled to great respect. We are, however, unable to read them as forming part of the ratio of Mandair. Over and above the fact that the passage in question forms part of Lord Mustill's dissent, we can find no support for these propositions as such in the speeches of the majority. The leading speech expressing the majority view was that of Lord Mackay of Clashfern LC. He said this (at p.215 D-E):

" ….Obviously it is highly desirable in matters of this sort involving the liberty of the subject that the precise words of the statute, so far as relevant, should be used in the jury's verdict but where, as here, the jury has actually returned a verdict which ….read as a whole is capable of having a clear meaning it is a technicality to decline to give it meaning because the word 'cause' is not used in the section and thereby it is said that he defendant was convicted of an offence unknown to the law. A contravention of section 20 is certainly not an offence unknown to the law….."

It is fair to acknowledge that Lord Mackay (at p. 216 D-E), having regard to the Indictment Rules 1971, stated that a reference to the section in the statute creating the offence appeared to be "an essential part of the indictment" and had to be so "since it is guilt of a contravention of the statute that gives the court power to impose punishment". Lord Mackay immediately went on to observe that the verdict of the jury was that the defendant had caused grievous bodily harm contrary to s.20 of the 1861 Act and, on the majority's reasoning, that verdict satisfied the requirement for a statement of offence in the Indictment Rules 1971.

In our judgment, first, this passage from the speech of Lord Mackay falls well short of endorsing Lord Mustill's propositions, including in particular, the stark distinction drawn between the statement of offence and the particulars. Secondly, while it is plainly to be expected that an indictment charging a statutory offence will make reference to the section creating the offence, Mandair did not have to consider the problem which arises when reference is made to the wrong section – still less the consequences which follow. The problem encountered in Mandair was very different to that which arises in the present case; not least in Mandair, there was no charge on the indictment dealing with the s.20 offence. Thirdly, the pragmatic tenor of the majority speeches in Mandair points to resistance to technicalities: apart from the passage in Lord Mackay's speech (at p.215, already cited), see too Lord Templeman, at p.219 F-G.

Pulling the threads together, while Mandair plainly merits careful and respectful consideration, we are unable to accept that it is binding authority determining the outcome of the present case. In considering the persuasive guidance to be obtained from Mandair, we need to do so having regard to a number of authorities (also of high authority) to which Ms Le Fevre referred us.

We start with R v McLaughlin (1983) 76 Cr App R 42. There, the intention had been to charge the defendant with conspiracy to cause explosions under s.3 (a) of the Explosive Substances Act 1883 ("the 1883 Act"). In the event, however, counsel drafted the indictment charging the defendant under s.1 of the Criminal Law Act 1977 ("the 1977 Act"). The defendant appealed, inter alia and so far as here relevant, on the ground that the mistake in the statement of offence meant that he had not been charged with any offence known to the law – given that the statutory provisions precluded utilising the 1997 Act to charge an offence under the 1883 Act - and was thus a nullity. The appeal was dismissed. The essence of the Court's reasoning appears from the following passage in the judgment of O'Connor LJ (at p.47):

"We are satisfied that this indictment was defective and not a nullity. The particulars of offence were entirely apt to particularise an offence against section 3(a) of the 1883 Act. If an application had been made at the trial to amend the statement of offence in the indictment the judge would have had power to grant the application. The appellant was in no way prejudiced or embarrassed by the defect in the indictment. In our judgment it is quite plain that this is a case for applying the proviso"

As the indictment was not a nullity, it was "valid for some purposes" and one of those purposes was "to save a conviction which is in truth a conviction for conspiracy contrary to section 3 of the 1883 Act…": ibid. We accept that the reasoning as to the proviso is no longer (at least) directly applicable. However, it seems clear that the Court did not rest its decision on the proviso alone. To the contrary, questions as to the proviso only arose because the Court answered the anterior question by concluding that the indictment was defective but not a nullity. That reasoning remains valid for present purposes.

In R v Ayres [1984] 1 AC 447, the indictment charged a common law conspiracy to defraud whereas the defendant ought to have been charged with a statutory conspiracy under s.1 of the 1977 Act. The defendant was convicted and his appeals to both the Court of Appeal and the House of Lords were dismissed. The principal speech in the House of Lords was given by Lord Bridge of Harwich. He did not pause to consider the "nullity" point and was of the opinion that the appeal should be dismissed as the misdescription of the offence had not been of the slightest practical significance (at p.462); there had been no miscarriage of justice and the conviction would be upheld under the proviso. For reasons already explained, considerations going simply to the proviso, are no longer capable (of themselves) in advancing the argument before us. However, earlier in his speech, Lord Bridge had said this (at pp. 460 – 461):

"In a number of cases where an irregularity in the form of the indictment has been discussed in relation to the application of the proviso a distinction, treated as of crucial importance, has been drawn between an indictment which is a 'nullity' and one which is merely 'defective'. For my part, 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"

As it seems to us, with respect, Ayres is relevant to the present debate insofar as:

a) It focuses on the particulars as well as the statement of offence; it will be recalled that McLaughlin (supra) spoke to the same effect.

b) It is implicit in Lord Bridge's speech, albeit plainly not the ratio of his decision, that the error in the indictment did not render it a nullity.

In R v Searle [1995] 3 CMLR 196, Lord Taylor LCJ considered both Lord Mustill's speech in Mandair (supra) and Ayres (supra). The case related to the alleged evasion of sanctions legislation concerning Serbia and Montenegro. The defendants pleaded guilty after their application to quash the indictment had been rejected. Their appeal to the Court of Appeal was dismissed.

On behalf of the appellants, it was argued (see, at [84]) that if the statement of offence incorrectly identified the statutory basis for the prohibition in question, or would have done so if it had referred to it at all, the counts in the indictment were a nullity. Lord Taylor LCJ said this:

"[85] The difficulty with this submission is that Lord Mustill's propositions about the circumstances in which the statement of offence would be regarded as a nullity were limited to allegations of 'an offence not known to law'. In fact the statement of offence in each of the relevant counts expressly identified an offence known to the law, either under the 1979 Act or under the Order…..

[86] In Ayres, notwithstanding the fact that the statement of offence did not accurately allege 'the only offence' for which a conviction could be entered, and omitted any reference whatsoever to the appropriate statutory provision, the House of Lords upheld the conviction. It is unnecessary to consider further whether in his observations about the validity of the statement of offence Lord Mustill adopted an approach different from the formulation of principle in Ayres [set out above], which was neither referred to nor cited. To the extent that any conflict in relation to the statement of offence may be discerned this Court regards itself as bound by the principle in Ayres.

[87] As section 3 of the Indictment Act provides, and Ayres and Lord Mustill in Mandair underline, the essential requirement in the particulars of offence is that the defendant should be provided with reasonable information about the 'nature' of the charge brought against him. The criticisms in the present case are that although correctly identifying the criminality of each appellant, namely wrongful importation or export of prohibited goods to and from Serbia, the particulars of offence incorrectly identified the legal source of the prohibition. However by their pleas the appellants accepted that they acted criminally with full knowledge of the existence of a lawful prohibition against what they were doing…..The 'nature' of the charge to which the appellants pleaded guilty was clear to them.

[88] In Ayres the misdescription of the offence in the statement of offence itself had 'not the slightest practical significance'. In our judgment precisely the same conclusion would be appropriate in relation to any wrong choice between the Order and the Regulations in the particulars of offence, and so far as Borjanovic and BYE are concerned, in the statement of offence in counts 1, 3-8, 10 and 11. As there would have been no miscarriage of justice in either case we would have applied the proviso. "

Pulling the threads together from Searle:

(i) This Court regarded itself as bound by Ayres rather than the speech of Lord Mustill in Mandair insofar as there was any conflict between them as to the statement of offence.

(ii) Albeit that the reasoning was (understandably) focused on the proviso, it is implicit in the judgment of Lord Taylor LCJ that a misdescription of the source of criminality, whether in the statement of offence or the particulars, will not or not necessarily result in the nullity of the indictment.

It remains to consider two decisions, both post-dating the amendment of the CAA 1968. The first is R v Graham [1997] 1 Cr App R 302. The defendants, accused of "mortgage fraud", had been convicted of obtaining or attempting to obtain property by deception under s.15(1) of the Theft Act 1968. The difficulty was that, by reason of the decision in R v Preddy [1996] AC 815, s.15 could not be relied upon in such circumstances – as the fraudster did not obtain property which had ever belonged to the lender. On appeal, the Crown contended, inter alia, that the convictions were not unsafe because the defendants' criminality had been clearly established. That argument failed.

Giving the judgment of the Court, Lord Bingham LCJ (as he then was) explained the consequences of the amendment to the CAA 1968 as follows (at p.309):

"… 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] 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 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"

For our part, we have, with great respect, no quibble whatever with the decision in Graham on the argument in question. As a matter of substance, the defendants had been charged with and convicted of an offence of which, by reason of the decision in Preddy (supra), they could not in law have been convicted. Those facts are, as it seems to us, considerably removed from those of the present case.

We turn to R v Mohammed [2004] EWCA Crim 678. The indictment had charged the defendants with conspiracy to defraud at common law. On the first day of the trial, counsel obtained leave (without opposition from defence counsel) to amend the indictment. In the event, amongst the changes introduced, the statement of offence in the amended indictment now charged the defendants with conspiracy to defraud, contrary to s.1 of the 1977 Act. The difficulty was that s.1 was inapplicable to conspiracy to defraud, by virtue of s.5 (2) of the 1977 Act. As Bodey J, giving the judgment of the Court expressed it (at [19]) "….the appropriate derivation of the offence was the common law, as had been originally charged." It was common ground that the change to the statement of offence was a slip; it went unnoticed by anyone and the defendant Mohammed was convicted; the co-accused had earlier pleaded guilty. On appeal, the appellants submitted that the conviction was unsafe; all counsel accepted that the error, though rendering the indictment defective, did not mean it was a nullity: see the judgment, at [25].

The Court reviewed a number of authorities, including Ayres and Graham, both supra. The judgment of the Court continued as follows, beginning with a reference to the passage from the judgment in Graham, set out above:

" 29.…Notwithstanding the last sentence cited, to which the appellants pin their colours, that extract plainly shows that drafting or clerical errors or discrepancies are not to be such as to cause a conviction to be 'unsafe' (provided of course, and this hardly needs to be stated, that there is no suggestion of prejudice, unfairness or injustice to the accused).

30. Here there was a drafting error par excellence; one which did not in the result plead an offence unknown to law (as has been suggested at some stages on behalf of the appellants) but rather one which pleaded an offence known to law, but which was accidentally wrongly labelled.

31. When my Lord, Lord Justice Kay asked Mr. McCrindell for Mohammed what about 'section 17' of the Offences Against the Person Act, instead of section 18, or what about the Theft Act '1969' in mistake for 1968, Mr. McCrindell submitted that in such circumstances an appeal would have to be allowed because the conviction would on that basis be unsafe, there being no such precise offence known to law.

32. We do not agree. In our judgment the key to 'safety' where (a) there was a mere error of labelling of an existing offence known to law and (b) where the particulars of offence were entirely good and accurate and (c) where the conduct of the trial was wholly unaffected by the slip, is as to whether or not there was any possible prejudice or injustice to the defendant. If so, then clearly an appeal would be allowed. If not, then we consider that a conviction can and should be upheld as being safe. That is the situation ….here. It goes without saying….that every case turns on its own facts and may involve questions of degree.

33. In our judgment what happened here was precisely the sort of thing which Lord Bingham would have had in mind when he referred to drafting errors and when he deprecated resort to undue technicality.

34. We recognise that upholding these convictions will have the less than ideal effect of leaving the defendants on paper convicted or a mis-labelled offence…..But we comment that in the absence of power to amend the indictment, a power which the Court of Appeal does not have…. this is an inevitable concomitant of our not regarding the convictions as unsafe. It was the same when the 'proviso' was applied pre-1995."

We acknowledge at once the concession in Mohammed that the indictment was not a nullity – though observing that it appears to have had no or no significant impact on the argument nonetheless advanced. We underline that the Court did not confine its attention to the statement of offence in the indictment but instead included in its consideration the particulars of the offence. We draw particular attention to the Court's analysis of the judgment of Lord Bingham LCJ in Graham and its application of the law to the facts of the case before it. In our judgment, the reasoning of this Court in Mohammed has very considerable resonance when addressing the facts of the present case.

Discussion

Having reviewed the authorities at some length, we can now state our conclusions relatively briefly.

It is of course right that the accuracy of an indictment should be closely scrutinised. Where the State is seeking to impose criminal sanctions, high standards ought to be demanded. It is further indisputable that where the consequence of an error is that the indictment is a nullity, then, regardless of the "merits", a conviction cannot stand.

However, not every error in an indictment renders it a nullity. Where an indictment is merely defective but not a nullity, a conviction may not be unsafe. As Mohammed (supra) makes clear, whether it is unsafe or not must be a question of fact and degree, in which considerations of prejudice or unfairness to the defendant will, at the least, loom large.

In our judgment, the reference to art. 32(8) of the Order in the statement of offence in the even numbered counts here did not render the indictment a nullity so far as concerned the appellant. Our reasons follow.

First, the particulars of offence were impeccable. They made clear, beyond peradventure, the nature of the appellant's criminality and correctly cross-referred to the offences committed by the company. Indeed, we did not understand Mr. Lissack to make any complaint as to the particulars of offence. As will be recollected, his submission was instead that defects in the statement of offence could not be cured by the particulars. With respect, however, that submission cannot stand with the approach of the Courts in Ayres, Searle and Mohammed (all supra). For the reasons already given, we are not deterred from this conclusion by the observations contained in the speech of Lord Mustill in Mandair (supra). We add this; for our part, we cannot see what legitimate interest would be served by declining to consider the particulars of offence and confining our focus to the statement of offence, when considering the consequences of an error in the indictment. As it seems to us, it is the whole that matters – and ought to matter.

Secondly and properly analysed, the error here in the statement of offence of the even numbered counts was one of labelling. Having regard to Ms Le Fevre's candid response to our inquiries, we cannot properly describe the error as identical to that which featured in Mohammed. Ms Le Fevre's diligence led her, with respect, mistakenly, to opt for art. 32(8) in the respective statement of offences. Nonetheless, the true nature of the error remained one of mis-labelling, rather than a substantive error of the kind encountered in decisions such as Bhagwan, Withers, Whitehouse and Graham (all supra). The indictment here did not seek to charge an offence which did not exist or which had been emphatically disapproved in a previous House of Lords decision. To the contrary, the error lay in wrongly labelling the offence as falling under art. 32(8) rather than under a different article or articles in the (same) Order. We do not think that a distinction can properly be drawn between the error in drafting in this case and those found in McLaughlin (supra) or, ultimately, Mohammed (supra). We ask ourselves whether it can or should make all the difference to charge an offence on which a conviction could not follow (McLaughlin and Mohammed) or to charge an article which does not give rise to a self standing offence. We do not think it does or should and are satisfied that authority does not constrain us to reach a contrary conclusion. For completeness, it is to be underlined that the ratio in McLaughlin included the conclusion that the indictment was defective; unlike the decisions analysed in Graham (at pp. 308-9), McLaughlin could not be said to turn on the proviso alone. Had McLaughlin been decided under the CAA 1968 as amended, the reasoning of the Court points plainly to the conclusion that the conviction would have been safe.

Thirdly, as was common ground or in any event indisputable, the error in the statement of offence in the even numbered counts manifestly occasioned no unfairness or prejudice to the appellant whatsoever. For our part, we think that the statement of offence in the even numbered counts ought to have referred expressly to the article contained in the matching odd numbered count and in every instance to art. 32(1) (a) of the Order. Thus, taking count 2 as an example, the statement of offence ought to have read:

"Failure to make a suitable and sufficient assessment of risk, contrary to articles 9(1), 32(1) (a) and 32(8) of the Regulatory Reform (Fire Safety) Order 2005."

Mutatis mutandis, the other even numbered counts ought to have been drafted in the same fashion. To repeat, however, the absence of the reference to articles 9(1) and 32(1) (a) made not a jot of difference to the fairness of the proceedings and did not cause even the slightest prejudice to the appellant. As already highlighted, no mention was made of this error until it was raised by MacDuff J.

Fourthly, like the Court in Mohammed, we think that reliance on the error here would involve a "resort to undue technicality" of the sort deprecated in Graham. On the facts of the present case – and such decisions are decisions of fact and degree - to allow the appeal would place an undue and unacceptable premium on technicality.

Fifthly, again echoing the Court in Mohammed (at [34]), we accept that upholding the appellant's conviction "….will have the less than ideal effect" or leaving the defendant on paper convicted or a mis-labelled offence. So be it. The appellant's conviction was not, in our judgment unsafe. The indictment here was not a nullity; it was defective but the defect occasioned neither unfairness nor prejudice. This appeal must be dismissed.