England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Oxford Crown Court St Aldates Oxford OX1 1TL
		25 January 2017

THE LORD CHIEF JUSTICE:

1. On 16 May 2016, following a trial in the Crown Court at Gloucester before the Recorder of Gloucester (His Honour Judge Tabor QC) and a jury, the appellant was convicted of rape and was sentenced to six years' imprisonment. He had pleaded guilty to two other offences (one of taking a conveyance without authority and one of assault occasioning actual bodily harm) shortly before the trial, for which he was sentenced to a consecutive term of nine months' imprisonment.

The issue

2. The appellant appeals against conviction with the leave of the single judge on a narrow and highly technical basis. He contends that he was tried on an indictment which was a nullity and therefore, because it was a nullity, both the guilty pleas to the earlier counts and the count of which he was convicted should be set aside and the matter retried.
3. It is of particular importance to look at such a submission in the context of the 21st century. If the appellant's submission is correct what would be required is that the victim, who has given evidence of a serious sexual offence, would have to give her evidence for a second time in circumstances which are, as we shall explain, purely technical. There is no underlying merit whatsoever in any of the points advanced and the appellant has suffered no unfairness or prejudice whatsoever. It is necessary first to set out the facts and evidence relating to the matters in the indictment.

The evidence relating to the assault and the taking of the conveyance

4. The background to the offences to which he pleaded guilty is straightforward. In the early hours of 15 November 2015 (at about 4am) the appellant went to the house of "LS", a former girlfriend, in order to obtain some money to buy crack cocaine. She initially refused to give him anything. During the course of an argument, the appellant assaulted her, it is said, by grabbing her by the throat and obtained a small sum. That incident was initially charged as robbery in count 2, but a count of occasioning actual bodily harm was added as count 4. He pleaded guilty to that offence in count 4.
5. Having obtained the money, he left in LS's car to purchase the crack cocaine. That formed the basis of count 3 (taking a conveyance without consent). He also pleaded guilty to that offence.

The evidence relating to the rape

6. The evidence relating to the count of rape, count 1 on which he was tried, can be briefly summarised.
7. At about 7am the appellant pulled up outside the house of another former girlfriend, "SI". The appellant and SI had been in a casual sexual relationship since meeting earlier in 2015. SI alleged that during the relationship the appellant had twice put his hands around her throat. That was denied by the appellant.
8. At the time when the appellant arrived, SI was at home with another man with whom she had started a relationship. The appellant shouted her name. SI went out to see him. She got into the car and a conversation occurred, after which the appellant drove to a nearby car park. It was the evidence of SI that, after the car was parked, the appellant received a phone call. He told SI to remain quiet. When she said something audible, he put his hands around her neck. The call ended. Following a second brief call, the appellant started to engage in sexual advances to SI and eventually he raped her. After that, he took her home.
9. It is unnecessary to set out the further evidence that supported the Crown's case. It included the bad character evidence in relation to the incidents involving LS to which he had pleaded guilty.
10. The defence case was that SI had instigated the sexual activity and that the appellant had acted with full consent. She had given the appellant oral sex at his request and then voluntarily positioned herself on the driver's seat so that he could have sexual intercourse with her. He said that her account was entirely fictitious.
11. Having heard the evidence, the jury convicted the appellant.
12. The point that has arisen does not in any way concern anything that happened in the trial; no criticism is, or possibly could, be made of the fairness of the procedure, of the judge's rulings on bad character evidence, or his summing-up. It was a perfectly fair, lawful and proper trial.

The ruling on joinder

13. The point that has arisen is this. The indictment as preferred originally in the Crown Court contained three counts: the counts of robbery and taking the car, which related to the earlier of the incidents we have described, and the count of rape, which related to the second incident.
14. On 18 April 2016, an application to sever the counts relating to rape from the other two counts was made to His Honour Judge Cullum. It was no doubt made with the eloquence with which counsel for the appellant, Mr Worsley, has presented his arguments on this technical point to us today, for which we would like to pay tribute. The judge considered the position under the Criminal Procedure Rules (as they then were): Crim PR 10. 2(3) which provides:

"An indictment may contain more than one count if all the offences charged –

(a) are founded on the same facts; or

(b) form or are part of a series of offences of the same or similar character."

15. It was contended by Mr Worsley that the offences did not form a series of offences and that they were not of the same or similar character.
16. It is clear the offences plainly were a series of offences. They occurred within a very short temporal span of a few hours in the early hours of 15 November 2015. The more difficult point that was before the judge was whether they were offences of the same or similar character. In a short, eloquent ruling the judge said:

"The [appellant] was violent to both women. It is that that really brings the Crown to say that the matter is properly joined and should be tried together with features of the one being relevant to the jury's consideration of the second. Both women were subjected to a degree of violence and both were in the sense of being controlled on that occasion, the Crown say, by the [appellant]. The violence took a particular form, although only described briefly within the statements. It is suggested that both were the subject of being strangled to a degree by the [appellant]. That, in my judgment, is the unusual feature of the case. Putting the hands around the neck of a partner, or ex-partner, is a dramatic event, and here, within hours, the [appellant] is alleged by an amazing coincidence, the Crown would urge the jury to say, to have done the same thing to both complainants. Thus, in my judgment, [they are] allegations of violence towards women over whom the [appellant] had a physical control. In the first case, it manifested itself in stealing, and in the second in a sexual act – rape. Although they come from different Acts of Parliament, the underlying feel of this case is how the [appellant] was violent to those women."

The judge went on to say that, based on those factors, he was satisfied that the offences were of the same or a similar character.

17. We understand that the judge was referred to two of the leading authorities on the meaning of the words "same or similar character", namely, R v Kray [1971] QB 125, and Ludlow v Metropolitan Police Commissioner [1971] AC 29, as these cases decided under the then applicable Indictment Rules, continue to apply, as the wording is the same. In looking at these cases, it is important to bear in mind in respect of some passages in those cases that the law of evidence, as it pertained then, is very different to the law of evidence as it pertains now, particularly in the light of the bad character provisions of the Criminal Justice Act 2003. The importance of that will emerge in a moment. That apart, the two authorities govern our approach.
18. R v Kray was earlier in time and was considered by the House of Lords in Ludlow. Two relevant points emerge from Kray. The first is the citation of a passage from the judgment of Lord Goddard CJ in R v Clayton Wright [1948] 2 All ER 763 where the defendant had made claims against underwriters by setting fire to a vessel (charged also as arson) and falsely pretending a mink coat had been stolen from his car:

"One test, as the learned judge applied, was to consider whether or not the evidence with regard to the mink coat could be given in evidence on the other charges. He came to the conclusion that it could, and in the opinion of the court he came to the right conclusion."

19. The court in Kray commented on this approach as follows:

"Offences cannot be regarded as of similar character for the purpose of joinder unless some sufficient nexus exists between them. Such a nexus is certainly established if the offences are so connected that the evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases."

That was one of the bases on which this court in Clayton Wright held there was no misjoinder. However, bearing in mind the broad provisions today about the admission of bad character evidence, that would have to be applied with caution, though, as the court also said in Kray that it was desirable to have regard to the interests of the public as a whole, including the interests of witnesses.

20. The main ground on which the court in Clayton Wright held that there was no misjoinder is the following:

"The charge contained in the first three counts in substance was that the appellant fired the yacht with the idea of swindling underwriters. The charge with regard to the mink coat was a similar charge of swindling underwriters, and therefore one gets what I might call the nexus of insurance, the nexus of fraudulent acts to the prejudice of underwriters."

21. That passage, in our judgement, is helpful in the present case, because it shows that what the court must do in what is always a fact-sensitive approach is to look at the true nature of the character of the offences. They do not have to be the same type of offence in law. The important words in the passage which we have cited are: "the nexus of the fraudulent acts to the prejudice of underwriters". In our judgement, in the present case the nexus which should be taken into account is the violent acts of a very specific nature, namely putting hands around the throat, to the prejudice not of women in general, but of girlfriends or former girlfriends.
22. As regards the judgments in Ludlow, when considering whether offences are of the same or a similar character, the court is not concerned with the legal characterisation or exact similarity. The court takes into account the wider characteristics of the offence. In the present case, the wider characteristics are plainly the use of violence, and, on the facts here, the particular form of violence used against the particular persons.
23. Looking at the ruling, it seems to us that Judge Cullum had proper regard to the authorities. In our judgement, the conclusion to which he came was plainly right and cannot be criticised in any way. In our judgement, these counts were properly joined. The appeal must be dismissed.

The effect of misjoinder

24. However, it is right that we should make some further observations in the light of the arguments addressed to us. First the consequences which we spelt out at the outset need underlining. Had the application before Judge Cullum succeeded in this case, there would have been two indictments. In the result, the appellant would have pleaded guilty to what would have been one indictment, and contested the other. In fact, on the single indictment he pleaded guilty to two counts and there was before the jury an indictment in the form which contained a single count on which he was tried. The reality of the case, therefore, is that nothing would have happened differently, save for the technical existence of two indictments instead of one.
25. Secondly, it is clear from the ruling on bad character evidence by the trial judge, Judge Tabor (of which no criticism is made), that evidence in relation to the first incident was properly admissible as bad character evidence. If the argument which we shall consider in a moment had been right, that in consequence of a different decision by us the indictment had been a nullity, there could be no conceivable prejudice at all to anyone, except to the administration of justice in requiring the complainant, SI, to give evidence all over again.
26. The law, as it has been since October 2016, would not now require that to happen. That is because, in modernising the law and bringing it into line with the 21st century, the Criminal Procedure Rule Committee has amended the rules governing indictments. No doubt at some stage in the future proper consideration will be given as to whether, in the light of the changes to the way in which cases are committed, indictments still form any useful purpose, as distinct from the charges which are preferred in lower courts. But, leaving that question aside, Crim PR 10.2(4) now makes it clear that an indictment may contain

"… (c) any other count charging an offence that the Crown Court can try and which is based on the prosecution evidence that has been served".

27. It was accepted in Mr Worsley's eloquent submissions on behalf of the appellant that the problems which arose in this case could not arise in the future, as an improperly joined count would not make the indictment a nullity. The court expresses its appreciation to the Criminal Procedure Rule Committee for the modernisation of the law to cure the problem that might have arisen in this case for the future.
28. The question therefore arises: should we, in circumstances where we have concluded that the ruling of Judge Cullum was correct, address the question argued before us that might arise in cases that may remain to be decided under the old law as to whether, had our ruling been different, the indictment was a nullity? If it was a nullity, as we have explained, the count of rape would have to be tried again, and the guilty pleas which had already been taken would have to be dealt with again. That would appear to be the result for which Mr Worsley contended, based on R v Newland [1988] QB 402.
29. An argument has been advanced by Mr Thomas, on behalf of the Crown, based on R v McGrath [2013] EWCA Crim 1261, where a court presided over by Treacy LJ reviewed the authorities in connection with the joinder of a count to an indictment under section 40 of the Criminal Justice Act 1988. In that case the court concluded that the count that had been joined under section 40 had been improperly joined, but it would only nullify the conviction in relation to the improperly joined count.
30. It seems to us that it is not necessary for us to deal with the different case which is before us- not of one count being joined under section 40 to an existing indictment, but of three counts that were in one Crown Court indictment, and deciding which of those counts were to be treated as a nullity. We can see force in the argument presented by the Crown that we should look at the more serious offence, but that might not always provide the right solution.
31. A much better solution might be the much broader consideration as to whether the issue of nullity should continue to be the answer that the law provides. But as this issue does not arise now in the light of our decision in relation to this appeal, and as the law has been put right for the future, it is not right for us to try to solve this problem.
32. However, an issue may arise in relation to Crim PR 3.21(4) which has been in force since October 2016 and provides:

"Where the same indictment charges more than one offence,

(a) the court must exercise its power to order separate trials of those offences unless the offences to be tried together are –

(i) founded on the same facts, or

(ii) form or are part of a series of offences of the same or similar character."

33. The question may arise as to what happens if, in breach of what appears to be the Court's duty under Crim PR 3.21(4), a court wrongly exercises its power and fails to order separate trials where counts are not founded on the same or similar facts, and do not form or are part of a series of offences of the same or similar character. We would hope that in the future the court would take the view that the highly technical law in relation to nullity is an outdated concept that should no longer prevail, that a modern approach should be taken, which is to decide on the fairness of the trial, the prejudice to a defendant and the safety of the conviction. However, that is not a matter that arises here and there are different views: see, for example, the view in Archbold (2017) at paragraph 1-274 – 1-277. Those are differing views which a court will be free to accept or reject in the future. However, the Criminal Procedure Rule Committee might wish to consider pre-empting the position by expressly providing in the Rules what is to happen, if a court comes to a wrong conclusion and fails to order separate trials. It might well be said that this is not an issue that should never be left to the highly technical law and outmoded concept of nullity which we have discussed.
34. As we have already stated for the reasons we have given, this appeal against conviction is dismissed.

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