AD, R. v [2016] EWCA Crim 454

[2016] EWCA Crim 454

Case No 201500783 B4

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

Venue ON APPEAL FROM CROWN COURT AT CARDIFF

His Honour Judge Hughes

T20117951

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 29/04/2016

Before

LORD JUSTICE DAVIS

MR JUSTICE TURNER

MRS JUSTICE ELISABETH LAING

Between

REGINAAppellant

ADRespondent

Mr Michael Jones (instructed by Crown Prosecution Service) for Appellant

Mr Mark Barlow for Respondent

Hearing Hearing dates : 18 th March 2016

Judgment

INTRODUCTION

[1]On 28 June 2012 in the Crown Court at Cardiff the appellant was convicted by the jury on all 11 counts of the indictment laid against him. He appeals, out of time, against conviction and sentence with the leave of this Court.

[2]The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. No matter relating to the complainants in this case shall during their lifetime be included in any publication if it is likely to lead members of the public to identify them as the victim of these offences.

THE OFFENCES

[3]There were two alleged victims of the appellant’s offending. They were his son and daughter to whom we shall refer as LF and TD respectively. The appellant’s former wife was the mother of the complainants. We refer to her as AH. They all lived together as a family until 1994 when the appellant and his wife separated and, subsequently, divorced.

[4]On 9 July 2011, the appellant was arrested in relation to sexual offences which he was alleged to have committed against both LF and TD when they were young children between 1990 and 1994. In interview he denied all of these allegations and the matter duly proceeded to trial.

THE COUNTS ON THE INDICTMENT

[5]Counts 1 and 2 alleged gross indecency with a child relating to repeated occasions when the appellant had allowed his daughter to masturbate him. Counts 3 and 4 alleged attempted buggery relating to repeated occasions upon which the appellant had attempted to penetrate his daughter’s anus with his penis. Counts 5 and 6 alleged indecent assault on a female relating to repeated occasions upon which the appellant had touched his daughter’s vagina. Count 7 alleged gross indecency with a child relating to an occasion when the appellant allowed his daughter to kiss his penis. In respect of the first seven counts on the indictment the Court passed concurrent sentences in the total of 5 years imprisonment. The remaining counts related to offences alleged to have been perpetrated by the appellant against his son. Counts 8 and 9 alleged indecent assault relating to repeated occasions when the appellant had touched his son’s penis. Counts 10 and 11 alleged gross indecency with a child relating to repeated occasions when the appellant had allowed his son to touch his penis. In respect of counts 8 to 11 inclusive the Court passed sentences concurrent to each other in the total of three years imprisonment but to run consecutively to the sentences imposed in respect of the offences which he had committed against his daughter, thereby giving a total of eight years imprisonment.

THE FIRST GROUND OF APPEAL

[6]Under the first ground of appeal, the appellant asserts that two of the counts on the indictment suffered from such fatal drafting flaws that the convictions thereunder are unsafe and must be quashed. The relevant counts are 8 and 9 and relate to the allegations that between 1990 and 1994 the appellant had indecently assaulted his son on at least two occasions:

“Count 8 STATEMENT OF OFFENCE INDECENT ASSAULT, contrary to section 14(1) of the Sexual Offences Act 1956. PARTICULARS OF OFFENCE [D], between 13th May 1993 and the 1st August 1994, indecently assaulted [TD], a boy under the age of 14 years. Count 9 STATEMENT OF OFFENCE INDECENT ASSAULT, contrary to section 14(1) of the Sexual Offences Act 1956. PARTICULARS OF OFFENCE [D], between 13th May 1993 and the 1st August 1994, other than in Count 8, indecently assaulted [TD], a boy under the age of 14 years.”

Such conduct as particularised amounted to indecent assault on a boy contrary to section 15 of the Sexual Offences Act 1956. Regrettably, the Statement of Offence in relation to each of these counts referred not to section 15 but to section 14 of the 1956 Act as the relevant section. STATEMENT OF OFFENCE PARTICULARS OF OFFENCE STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE

[7]Section 14 provides:

“14 Indecent assault on a woman. It is an offence…for a person to make an indecent assault on a woman.”

Self-evidently, the appellant could not have perpetrated an offence under section 14 against his son. It is an offence…for a person to make an indecent assault on a woman.”

[8]Unhappily, this drafting error was not spotted by either of the parties or by the Court at any stage before, during or after the trial. Indeed, it came to light only when the papers were reviewed by the Registrar when the appellant was seeking leave to appeal on other grounds. Thus, the question now arises as to whether this mistake is fatal to the safety of the convictions under these two counts.

[9]At the relevant time, the procedural position was governed by the Criminal Procedure Rules 2011: “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.” (i) describes the offence in ordinary language, and (ii) identifies any legislation that creates it; and

[10]It is to be noted that the Indictment Rules 1971, which were repealed on 2 April 2007 by rule 3 of the Criminal Procedure (Amendment) Rules 2007/699, had been, in some respects at least, more prescriptive as to the required form and contents of the indictment than the new rules which replaced them:

“5.-(1) Subject only to the provisions of rule 6 of these Rules, every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence with which the accused person is charged describing the offence shortly, together which such particulars as may be necessary for giving reasonable information as to the nature of the charge… 6. Where the specific offence with which an accused person is charged in an indictment is one created by or under an enactment, then (without prejudice to the generality of rule 5 of these Rules)- (a) the statement of the offence shall contain a reference to- (i) the section of, or the paragraph of the Schedule to, the Act creating the offence in the case of an offence created by a provision of an Act; (ii) the provision creating the offence in the case of an offence created by a provision of a subordinate instrument; (b) the particulars shall disclose the essential elements of the offence: Provided that an essential element need not be disclosed if the accused person is not prejudiced or embarrassed in his defence by the failure to disclose it; (c) it shall not be necessary to specify or negative an exception, proviso, excuse or qualification.” (a) the statement of the offence shall contain a reference to- (i) the section of, or the paragraph of the Schedule to, the Act creating the offence in the case of an offence created by a provision of an Act; (ii) the provision creating the offence in the case of an offence created by a provision of a subordinate instrument; (b) the particulars shall disclose the essential elements of the offence: Provided that an essential element need not be disclosed if the accused person is not prejudiced or embarrassed in his defence by the failure to disclose it; (c) it shall not be necessary to specify or negative an exception, proviso, excuse or qualification.”

[11]In R v Clarke

[2015] 2 Cr. App. R. 6

this Court was considering an appeal in respect of the adequacy of the relevant Particulars of Offence and concluded at paragraph 18:

“As is pointed out at para.D11.23 of Blackstone, the Crim PR now require less than was required under r.6(b) of the Indictment Rules 1971. The sole question is whether the particulars make clear what the prosecutor alleges against the defendant. In the present case there can be no doubt that it was clear what was alleged. The indictment was not therefore insufficient, though it was very, very poorly drafted and ought to have been amended.”

[12]In Clarke, however, there was and could have been no criticism of the Statement of Offence which had correctly identified the relevant legislation under which it was alleged the appellant had offended.

[13]The question arises as to whether the change in the wording of the rules relating to the contents of the Statement of Offence also calls for a similar broadening of the test of sufficiency as was found in Clarke to apply to the Particulars of Offence. In our view, it does not. The identification of “any legislation that creates” the offence charged (under the new Rules) is no more than a shorthand way of referring to the relevant section of the statute or provision of the subordinate instrument referred to under the 1971 Rules. Any other interpretation would lead to the absurd conclusion that so long as the right statute or subordinate instrument is identified in the Statement of Offence then the indictment is compliant with the rules however inapposite the specific section or provision relied upon.

[14]This conclusion is not, however, determinative of the issue. In R v Nelson

(1977) 65 Cr. App. R. 119

, this Court held that the terms of the 1971 rules should be interpreted as being directory rather than mandatory. There could be no suggestion that the Criminal Procedures Rules, in so far as they relate to the form and content of indictments, should be approached in any more inflexible way. Accordingly, the question arises as to the circumstances in which a breach of the terms of CPR 14.2 can properly be regarded as being inconsistent with the safety of a conviction which has been secured upon a defective indictment.

[15]In R v Graham

[1997] 1 Cr App R 302

at p 309 the Court observed:

“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…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 an 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.”

[16]R v McKenzie [2011] 1 W.L.R. 2807 was decided on facts not dissimilar to the circumstances of the instant appeal. The defendant in that case had been committed for trial on an indictment which included seven counts of indecent assault. By the time the matter was listed to be heard, however, his mental health had deteriorated to the extent that he was not fit to be tried. Accordingly, pursuant to section 4A of the Criminal Procedure (Insanity) Act 1964 (as amended), a jury was empanelled to determine whether the defendant had done the acts charged. All seven counts were defective. The allegations related to sexual assaults on a male but, as in the instant case, the Statements of Offence each referred to section 14 rather than section 15 of the 1956 Act. The jury found that the defendant had done the acts charged. The jury’s findings were challenged on appeal on the basis that the indictment was irremediably flawed as a result of these errors.

[17]In allowing the appeal, the Court held at paragraph 34:

“It seemed to us that the wording of section 4A is clear. To return a finding the jury must be satisfied that the accused did the act (or made the omission) charged against him as the offence. In this case the act charged against the defendant as the offence was indecent assault contrary to section 14(1) of the 1956 Act—ie indecent assault on a woman. The actus reus of that offence could not possibly be proved by evidence that the defendant had indecently assaulted S, who was a young man, even though the particulars asserted that that was what he had done.”

The Court, having referred to Graham went on to observe at paragraph 41:

“In this case neither the particulars pleaded in those counts, nor the evidence of S, could possibly establish that the defendant had done the act charged in each case of indecent assault contrary to section 14(1) of the 1956 Act. Thus we concluded that it was beyond argument that the findings of the jury in relation to the seven counts of indecent assault were unsafe.”

The appellant relies on this case to support his contention that his conviction under the two relevant counts was unsafe.

[18]The respondent counters this approach with reference to the more recent authority of R. v Stocker

[2014] 1 Cr. App. R. 18

. In that case, the defendant was correctly charged with a number of offences of indecent assault, contrary to s.15(1) of the Sexual Offences Act 1956, after four young men alleged that he had indecently assaulted them between 1985 and 1997. At trial, another young man made an allegation of anal rape which he claimed had occurred on New Year’s Day 2008. The jury was discharged, an investigation ensued and, as a result, the defendant was also charged with rape, contrary to s.1(1) of the Sexual Offences Act 2003. The Crown Prosecution Service drafted the indictment, which was produced electronically and the prosecutor clicked, in error, on the statement of offence relevant to an offence of rape under s.1(1) of the 1956 Act, rather than under the 2003 Act. The defendant was tried on five counts of indecent assault contrary to s.15(1) of the 1956 Act and one count of rape, with the statement of offence still showing the wrong statute. The evidence served in advance of trial, the particulars of the offence which were read to the defendant upon arraignment, the prosecution opening of the case and the evidence called by the prosecution all made it plain that the allegation related to a rape committed on a day at the end of 2007 or beginning of 2008 and the trial proceeded as if the rape charge had been properly brought under the 2003 Act. The judge directed the jury in appropriate terms for the indecent assault offences charged under the 1956 Act and for a rape offence charged under the 2003 Act. The defendant was convicted of all six counts. After the defendant was granted leave to appeal against sentence, the error in the indictment was noticed and the defendant applied for leave to appeal against the rape conviction out of time.

[19]Granting the application for leave but dismissing the appeal, the Court held:

“42 In our judgment, there is a clear judicial and legislative steer away from quashing an indictment and allowing appeals on the basis of a purely technical defect. The overriding objective of the criminal justice system is to do justice—to ensure the acquittal of the innocent and the conviction of the guilty. To that end, procedural and technical points should be taken at the time of the trial when they can be properly and fairly addressed. 43 However, the question for us is whether this is a purely technical defect or whether the count itself was fundamentally flawed because it breached r.14(2) by failing to identify accurately the legislation allegedly contravened. The clear purpose of r.14(2) is to ensure that an accused has sufficient information to know the case he has to meet and for all parties to know which statutory provisions apply. Here, the position could not have been clearer. Everyone understood and proceeded upon the basis that the appellant was charged with an offence under the 2003 Act committed in 2007 or 2008. The particulars of the offence, which were read to the appellant upon arraignment, the evidence served in advance of trial, the prosecution opening of the case, and the evidence called by the Crown all made it plain that the Crown’s allegation related to a rape committed on a day at the end of 2007 or beginning of 2008. (The date was in fact altered from 2007 to 2008 as a result of the complainant’s evidence). The appellant and his legal representatives knew all they needed to know about the case he had to meet and any relevant statutory provisions which applied. 44 The judge summed up to the jury as if the offence alleged in the statement of offence was one of rape contrary to the 2003 Act (as opposed to the other counts alleging indecent assault contrary to the 1956 Act). He directed the jury on the law and factual issues relevant to an offence of rape contrary to the 2003 Act. The jury, in effect, convicted him of an offence of rape contrary to s.1(1) of the Sexual Offences Act 2003. Rape had remained an offence in law throughout the period with which we are concerned. Thus, from beginning to end of the process, the charge here was, in substance, one of rape under the 2003 Act. As far as the judge, jury, prosecution and defence were concerned, the appellant was tried on and convicted of the right offence (rape) under the right Act. The appellant was properly before the Crown Court, the indictment was in every other respect in proper form and, therefore, valid, and the particulars of offence could, and did, support a conviction of rape contrary to the 2003 Act. This was not a “bad indictment” or a “bad count” and the offence of which he was convicted was and is known to law. 45 The only error here was to click the 1956 box rather than the 2003 box. It could have been cured easily by an amendment at any time. That seems to us to be something of a pure technicality. It has caused no prejudice whatsoever. We have borne very much in mind Lord Bingham’s observations in Clarke and McDaid about not resorting to “wholesale jettisoning of all the rules affecting procedure” and we have focused on the legal effect of the breach of the rules. Having done so, we cannot accept that an error in the date of the statute on these facts is so fundamental as to render the proceedings a nullity or that the draftsman of r.14(2) (also the draftsman of the overriding objective) would have intended such an outcome for a breach of this kind. 46 The facts of this case are clearly distinguishable from the facts in Shields, MC and Abdul in which the appellants were, in every respect, convicted of the wrong offence charged under the wrong statute. 47 In our judgment, nothing has occurred during this trial to render the indictment a nullity and the conviction unsafe. In the circumstances, we do not need to consider our powers under and the application of s.3 of the CAA .”

[20]There is undeniably a tension between the cases of McKenzie and Stocker with the latter case pointing in the direction of a growing prioritisation of substance over form. More recent cases have continued this trend.

[21]In R v White

[2014] 2 Cr. App. R. 14

this Court observed at paragraph 20:

“Furthermore, the recent trend has been to look at indictments purposively, that is to say, as safeguards against unfairness. Where no material unfairness whatsoever is caused to the defendant, the courts are increasingly reluctant to take too technical or formalistic an approach. Thus, in R v Stocker [2013] EWCA Crim 1993; [2014] 1 Cr. App. R. 18 (p.247) , this court surveyed the authorities on nullity, and noted (per Hallett LJ at [42]) “a clear judicial and legislative steer away from quashing an indictment and allowing appeals on a purely technical defect”

. We reject the argument that the indictment was a nullity.”

[22]The determination of which any defects in any given indictment are properly to be categorised as “fundamentally flawed” rather than amounting to “a mere drafting or clerical error” is bound to be a particularly fact sensitive issue. A useful illustration of this is provided by the case of R v Boateng

[2016] EWCA Crim 57

. The indictment in that case was riddled with errors some of which were held on appeal to be fatal and others to be merely technical.

[23]In respect of two of the counts on the indictment, the Statement of Offence and Particulars of Offence were both drafted so as to refer to an offence of which, on the evidence, the appellant could not have been guilty. The Court observed at paragraph 15:

“We do not find it necessary to resolve either the evidential issue or the interpretation issue in relation to s.10 because, in our judgment, the pleading issue cannot possibly be regarded as “a mere drafting or clerical error” or “a purely technical defect”

. The counts were “fundamentally flawed” (Stocker at [43]). They breached what was then Rule 14.2 of the Criminal Procedure Rules in that they did not identify the correct legislation and did not contain such particulars of the conduct constituting the commission of the offence as to make it clear what the prosecutor was alleging against the defendant. Each count alleged the wrong subsection in the statement of offence and the wrong details in the particulars of offence. The jury could not have been given any legal directions in relation to the counts as pleaded. The judge would have had to direct the jury to ignore everything that appeared on the face of the indictment in relation to these counts. No direction could have been given that the appellant could be convicted of an offence under s.24A(1)(b) by way of alternative to an offence under s.24A(1)(a). It is not an alternative offence. Further, it was never suggested by the prosecution in the lower court that s.24A(1)(b) was the offence it intended to pursue. The possibility was not raised until after the appeal had been instituted. Ground 1 in relation to counts 2 and 12 succeeds.”

[24]The feature of central importance on this analysis is that it was not a matter of inadvertence that the relevant counts referred to the wrong section. The prosecution intended to allege a breach of s.24A(1)(b) and the drafting of the indictment perfectly reflected that intention. The form was flawless. It was the substance which was misconceived.

[25]This key distinction is well illustrated by the approach of the Court in Boateng to a third count in the indictment which, although defective, was found not to have led to an unsafe conviction. The Statement of Offence correctly referred to the offence of facilitating the breach of UK immigration law by a non-EU citizen. In the Particulars of Offence, the law which the prosecution alleged had been broken was section 10(1)(c) of the Immigration Act 1999.

[26]There were two errors here. The first was that the Act was wrongly named. It should have been identified as the Immigration and Asylum Act 1999 and not the Immigration Act 1999. The appellant, however, realistically conceded that this was a mere technical error. The second error was more serious. The Particulars of Offence referred to the wrong section of the Act. It ought to have alluded to section 3(1)(b) but instead rested upon section 10(1)(c). The section actually referred to was purely procedural in content and could never have constituted a provision breach of which could have fallen within the parameters of the offence referred to in the Statement of Offence. Nevertheless, the Court found that this error did not vitiate the safety of the conviction and observed:

“Mr Douglas-Jones concedes that the particularised breach of immigration law alleged in count 3, namely s.10(1)(c), was wrongly identified. The breach of immigration law of facilitating AKB remaining in the UK without leave to remain stemmed from s.3(1)(b) of the 1999 Act and not s.10(1)(c). Strictly, therefore, it was that section that should have been referred to in the particulars of offence. Nonetheless, the statement of offence was correct and S.10(1)(c) provided the mechanism of removal under s.3(1)(b) and was therefore not irrelevant. Furthermore, although the reference to s.10(1)(c) was in error, the particulars of offence were otherwise accurate and, if the appellant was not sure which Act was alleged to have facilitated the commission of an immigration law, he could have sought further particulars and would then have been referred to s.3. 19. In our judgment, the errors in the drafting of count 3 are less significant than those already referred to in counts 2 and 12. In the context of Rule 14.2, the statement of offence identified the correct legislation and the particulars of offence contained particulars of the conduct constituting the commission of the offence so as to make it clear what was being alleged against the appellant. In the context of Graham and Stocker, the error in relation to s.10(1)(c) was akin to a “mere drafting or clerical error” and did not invalidate the count. Ground 2 in relation to count 3 fails.”

[27]Taking a similar approach to that adopted in Boateng, we would identify the following particularly salient features of the instant appeal: i) The mistake was undoubtedly no more than a simple drafting or clerical error. It is to be noted in this specific regard that the mistake in the present case had not been made in the original summons which had correctly identified the relevant section. There had evidently been a mere clerical slip at the stage of drafting the indictment. Such a slip falls comfortably within the same category of error as the inadvertent clicking of the wrong box in Stocker and indeed of a kind as alluded to in Graham itself. ii) By analogy with Stocker, from the beginning to end of the process the charge here was, in substance, one of indecent assault under section 15 of the 1956 Act. As far as the judge, jury, prosecution and defence were concerned, the appellant was tried on and convicted of the right offence (indecent assault) under the right Act. The appellant was properly before the Crown Court, the indictment was in every other respect in proper form and, therefore, valid and the particulars of offence could, and did, support a conviction of indecent assault contrary to section 15 of the 1956 Act. The trial, and defence case, would have been conducted in precisely the same way, irrespective of the errors in the Statements of Case. Indeed, it may plausibly be suggested that the defect in Stocker was more serious than in the instant case. At least the offence under section 14 was known to law at the time of this appellant’s offending, whereas the offence of rape (in its significantly different pre 2003 form) had been removed from the statute book some three years and nine months before the date of Mr Stocker’s offending. iii) McKenzie, has to be read in the light of the subsequent decision in Stocker and in any event was a case which involved a determination under s. 4A of the Criminal Procedure (Insanity) Act 1964. iv) The appellant was undoubtedly guilty on the verdict of the jury of committing an offence of indecent assault. This is not a case in which the offence identified in the Statement of Offence differs so significantly in substance from the actual nature of the offending proved that it would be objectionable for the matter safely to remain on the appellant’s record in its present form. The gender of the victim was, in the circumstances of this case, the only material difference between the scope of operation of the offences under sections 14 and 15 respectively. Further, under paragraphs 17 and 18 respectively of the second schedule to the 1956 Act the statutory maximum sentences in respect of each section were identical at the level of ten years imprisonment. v) There was, and could have been, no suggestion that the slip in the drafting of the Statement of Offence(i) has caused any prejudice whatsoever to the appellant,

(ii) has caused a breach of his Convention rights or

(iii) has otherwise rendered the trial process unfair. In this context, the Court must have at the forefront of its mind Rule 1.1 of the Criminal Procedure Rules which post-dates Graham and provides:

“(1) The overriding objective of this new code is that criminal cases be dealt with justly. (2) Dealing with a criminal case justly includes— (a) acquitting the innocent and convicting the guilty; (b) dealing with the prosecution and the defence fairly; (c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights.” (a) acquitting the innocent and convicting the guilty; (b) dealing with the prosecution and the defence fairly; (c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights.”

Against this background, a finding that the wholly technical flaws in the drafting of the two counts under consideration on this appeal should mandate the quashing of the convictions thereunder would be starkly inconsistent with the overriding objective which now directly governs the proper interpretation of the rules relating to the forms and contents of indictments.

[28]We are therefore satisfied on the facts of the present appeal that the defects in the indictment, while reflecting a degree of culpable oversight on the part of those whose responsibility it was to get it right, did not render the convictions thereunder unsafe.

[29]This finding renders it strictly unnecessary for us to go on to consider a further issue relating to the now hypothetical scope of the application of section 3 of the Criminal Appeal Act 1968 to the circumstances of this appeal. However, since the matter was argued before us and the Court in Stocker gave no guidance on the matter we can see some merit in expressing our views.

[30]Section 3 provides:

“Power to substitute conviction of alternative offence. (1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence [to which he did not plead guilty] 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.”

[31]In Graham the Court identified the scope of this provision thus:

“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. As to (2) this Court has only the verdict of the jury to go on. The fact that the jury did not have a proper direction as to offence B is a highly relevant consideration, as is the question whether there are reasonable grounds for concluding that the conduct of the defence would have been materially affected if the appellant had been charged with offence B. Examination of previous practice indicates that the power in section 3 of the 1968 Act has usually been exercised in relation to offence of violence or public order offences by substituting a lesser offence for the offence charged, there being in such instances a clear hierarchy of offences at common law or by statute.”

[32]In R v Shields [2012] 1 Cr App 9, the defendant had by a slip been charged with an offence of being in breach of a Sexual Offences Order under the Crime and Disorder Act 1998, rather than, as he should have been, breach of a Sexual Offences Prevention Order under the Sexual Offences Act 2003 . He was convicted but the conviction was quashed on appeal. The Court of Appeal held that such an error could not be cured by resort to section 3 of the Criminal Appeal Act 1968. The jury could not, on the indictment, have found the defendant guilty of some other offence. The indictment could not be taken to include, by implication, an allegation of breach of a Sexual Offences Prevention Order under the 2003 Act.

[33]In the light of the wording of the section and the authorities to which we have referred, we consider that it cannot be argued that the offence of indecent assault on a man could “ordinarily involve an allegation of” an indecent assault on a woman. On the contrary, the two offences are mutually exclusive. It is obvious that the jury must have been satisfied of facts which proved the appellant guilty of indecently assaulting his male victim, for the purposes of section 3 but this conclusion satisfies only the second limb of the test propounded by the Court in Graham and not the first.

[34]Accordingly, we would have concluded that if (contrary to our actual findings on this appeal) the defects in the relevant counts on the indictment had rendered the convictions thereunder unsafe, section 3 would not have enabled the Court to substitute convictions under section 15 of the 1956 Act.

THE EVIDENCE AT TRIAL

[35]The remaining grounds of appeal relate to the admissibility of certain evidence and the directions which the trial judge gave to the jury in respect thereof during the course of his summing up. The examination of these grounds, therefore, now calls for a somewhat more detailed description of the evidence relied upon by the prosecution and defence at trial.

[36]The appellant’s daughter gave an achieving best evidence (“ABE”) interview on 20 May 2011. A DVD recording of the interview was played as her evidence in chief at trial. During that interview, she said that her father was a heavy drinker, and from around the time she was 7 years old, it was her job to tuck her father into bed when he came home from the pub. She would get into bed with him and he would make up a bedtime story for her. She would touch his penis and her father would ask her to keep on doing it. These allegations related to counts 1 and 2 on the indictment.

[37]She went on to say that he would on occasion pull her pyjamas down and try to “poke” her anus with his penis trying, albeit unsuccessfully, to penetrate her. The applicant never actually penetrated her because she kept her legs as tight as possible, and clenched her buttocks. These allegations related to counts 3 and 4 on the indictment.

[38]She also said that he would pull her pyjamas down and run his hands between her legs and over her vagina. These allegations related to counts 5 and 6 on the indictment.

[39]On one occasion, when she was about 9 years old, he pulled her head down onto his penis and she had to kiss the top of it. This allegation related to count 7 on the indictment.

[40]LF said that the incidents of sexual abuse took place around two or three times a week and that each episode lasted for around an hour. She thought that this had taken place when she was between the ages of 7 and 10.

[41]She said that when she was 10 years old she told her mother that her private parts were sore although she did not tell her what her father had been doing. She recalled that she was taken to see a female doctor and had been prescribed some cream. Under cross-examination, her mother confirmed that she remembered a time when LF came to her because she was sore and so she took her to the doctor. The diagnosis was of thrush.

[42]The abuse stopped abruptly when LF’s parents separated and divorced. Thereafter, when she was about years old 12, LF told a school friend that she had been sleeping with her father but that they had not had sex. At that time she had asked her mother whether she was a virgin “because of dad” and her mother had cried in response. Her mother’s evidence was to the effect that LF came home from school one day and said her friend had told her that because she had slept with her father she was no longer a virgin. She said she told her not to be silly and at that stage honestly did not think that anything untoward had happened.

[43]In 2007, LF told the whole family what had happened including her brother, TD. TD confirmed in evidence that this conversation had indeed taken place. In her evidence, LH’s mother said that when her daughter was at university her boyfriend told her that LF had told him that she had been sexually abused by her father. She then arranged for LF to see a counsellor, Pauline Craig.Ms Craig gave evidence to the effect that she saw LF between August and November 2007 on a weekly basis. Although AH would bring her to the sessions, she always saw LF on her own. She did, however, see AH separately on two occasions. She said her recollection was that LF said her father drank a lot, came home drunk, went to bed and her mother would send her up to say goodnight. Then the abuse would occur. He would ask her to play with him and he would touch her as well. She told her it happened frequently.

[44]After she had undergone counselling, LF wrote a letter to her father referring to his abuse which she and her brother delivered to his address. She had written the letter because she could not cope anymore. She told her brother that she had been abused but did not go into detail. He did not mention to her at that time that he had also been abused. Her brother gave evidence to the effect that he had never talked to his sister about the detail of the letter. After they had delivered the letter, TD said that his father’s new wife had telephoned and wanted to talk to him and LF about it but he could hear his father in the background so he told her that there was nothing to talk about.

[45]Shortly afterwards the appellant sent his daughter a text message in which he said that he could not remember that far back because he had been drunk but that he was sorry if he had hurt her. She kept the message for a while but she subsequently lost her phone and, with it, the message.

[46]TD gave evidence to the effect that once or twice a week his father would put him to bed. When he was in bed, the applicant would touch his penis and try to masturbate him. This allegation related to counts 8 and 9 on the indictment.

[47]He said his father would also take hold of his hand and place it on his (the appellant’s) penis and tell him to move it up and down. This allegation related to counts 10 and 11 on the indictment.

[48]TD said that, at the time, he did not realise that anything was wrong with what had happened. However, when he was about 13 years old he began to realise that it was not normal. He did not speak to his father about what had happened at that stage because, despite everything, he continued to look up to him.

[49]Between 2007 and 2010 however, TD was drinking too much and taking drugs. He contemplated suicide. In October 2010 he wrote a letter to his mother in which he had told her that LF was not the only child the applicant had abused. His mother confirmed that she had received this letter.

[50]The appellant denied all of the allegations made against him and said that his son and daughter had fabricated them. He speculated that his son was taking revenge because he had refused to give him money with which to buy a car and that his daughter was punishing him for neglecting her after he had separated from her mother. The defence called the appellant’s second wife, his step daughter and his son by his second marriage in support of some aspects of his case.

GROUND TWO

[51]This ground is concerned with the admissibility of the evidence as we have outlined it relating to the communications made by the victims to the various third parties concerning what had happened to them in the context of the applicant’s alleged offending.

[52]The appellant complains that the judge ought to have analysed each of these communications to determine whether or not section 120 of the Criminal Justice Act 2003 applied. Thereafter, he should have given the jury bespoke directions as to the way in which to approach each communication depending upon whether or not it fell within the parameters of section 120.

[53]The rationale behind this complaint is that before section 120 came into force evidence of complaints could only be relied upon by the prosecution as evidence of consistency going to the credibility of the complainant. They could not be relied upon as evidence of the truth of the contents of the complaint.

[54]Section 120 changed all that. It provides, in so far as is material:

“Other previous statements of witnesses (1) This section applies where a person (the witness) is called to give evidence in criminal proceedings. (2) If a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible… (4) A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if (a) any of the following three conditions is satisfied, and (b) while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth. (5) The first condition is that the statement identifies or describes a person, object or place. (6) The second condition is that the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them, and cannot reasonably be expected to remember them, well enough to give oral evidence of them in the proceedings. (7) The third condition is that— (a) the witness claims to be a person against whom an offence has been committed, (b) the offence is one to which the proceedings relate, (c) the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence… (e) the complaint was not made as a result of a threat or a promise, and (f) before the statement is adduced the witness gives oral evidence in connection with its subject matter…” (a) any of the following three conditions is satisfied, and (b) while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth. (a) the witness claims to be a person against whom an offence has been committed, (b) the offence is one to which the proceedings relate, (c) the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence… (e) the complaint was not made as a result of a threat or a promise, and (f) before the statement is adduced the witness gives oral evidence in connection with its subject matter…”

[55]The appellant contends that not all of the communications admitted into evidence fell within the scope of section 120 and that therefore there was a danger that the jury might impermissibly have treated the contents of those not covered by the section as evidence of their truth and not merely as evidence of consistency going to credibility.

[56]A closer look at the summing up, however, reveals these concerns to be unfounded. In fact, the judge did not invite the jury to approach the communications on the basis that any of them were evidence of the truth of their contents. On the contrary, he specifically directed them only on the basis that they were relevant to consistency. Thus, in this regard his summing up was in effect more favourable to the defence than it would have been had the judge identified some of the communications as capable of being taken into account on the issue of the truth of what was said.

[57]In any event, we are entirely satisfied that these communications would have been admissible as evidence of any matter stated on the basis that they all fell within section 114 (d) of the Criminal Justice Act 2003 Act as hearsay evidence that was admissible in the interests of justice. This factor alone would have been a sufficient basis upon which to conclude that the matters complained of did not render the convictions unsafe.

[58]It was further argued under this ground that the judge ought to have directed the jury that evidence of the complaints made by LF and TD could not provide independent support to their respective allegations because the source in each case remained the witness. However, the learned judge said this:

“During the case you have heard evidence, not only from [LF] and [TD] about what they say happened to them, but also from other witnesses, for example, their mother and [LF’s school friend] of what they were told by [LF] and [TD] had happened to them, and I will remind you of that evidence shortly. When a person gives evidence of what they were told by a complainant, that person does not become a witness as to what actually happened because obviously they were not present themselves to witness the events. They simply reporting what a complainant told them about them.” [Emphasis added].

This passage, in our view, provides a complete answer to the appellant’s contentions on this point. The judge was plainly not limiting his observations to the two witnesses he had expressly identified. He was referring to them specifically as examples of those witnesses to whom his general direction applied. It cannot realistically be argued that the jury could reasonably have concluded that the other witnesses to whom complaints were made could, in contrast to those which the judge took as his examples, be treated as if they were witnesses to what had actually happened.

[59]Indeed, we would go so far as to say that even if the judge had not given a warning in the terms which he did then, although by no means ideal, it would not, in the particular circumstances of this appeal, have rendered the convictions unsafe. After all, as we have already observed, the judge did not even direct the jury, as he could have done, that the evidence of any of the complaints could support the truth of what the victims were saying. He limited his directions in this regard to the issues of consistency and credibility. There was, therefore, no danger that the jury would venture into the obviously irrational speculation that the persons to whom the complaints were made could be treated as if they were actually independent witnesses of the abuse.

GROUND 3

[60]Under this ground, complaint is made that the trial judge ought not to have allowed evidence of repeated complaints to be adduced before the jury. For example, it is contended that the evidence of what LF told Ms Craig should not have been admitted because it amounted to no more than a repetition of complaints which she had made earlier.

[61]It is to be noted, however, that there is no rule of evidence precluding the admission of repeated complaints. By way of example, in R v MH

[2012] EWCA Crim 2725

this Court made no criticism of the admission into evidence of repeated complaints by a child victim of sex offences.

[62]Each case must, of course, be decided on his own facts but it is to be noted that it was left open to the jury in the instant case to treat the repeated complaints as not being supportive of the credibility of the complainants but, alternatively, as undermining it. As the trial

judge said in his summing up:

“If what they reported to others previously is consistent with what they say in court, you may think that supports their credibility as a witness. On the other hand, if it were the case that the complaints to others made by the two of them were different from what they said in court, then you might think that that would, in some way, undermine their credibility as witnesses…”

[63]For example, it would have been open to the jury to have concluded, had they thought it right so to do, that LF’s failure in her first complaints to tell her mother that she had been sexually assaulted by her father undermined the credibility of her later accusations. This was not, therefore, a case in which the admission of the repeated complaints necessarily redounded to the disadvantage of the appellant. As a matter of fairness, it was entirely right to leave it to the jury to determine what weight should be given to them and whether such weight should tell in the balance for or against the appellant.

[64]In addition, many years had elapsed in this case between the time when the offences were alleged to have been committed and the date when the appellant was arrested. If the jury had been precluded from hearing how the allegations had gradually come to light and what complaints had been made over this period and with what persistence, then they would have been left with a potentially misleading vacuum of information. There would arise a real risk, however carefully they might have been directed not to speculate, that the passage of time otherwise wholly unaccounted for in the years leading to trial would serve to hinder rather than help them reach fair and just conclusions on the evidence.

GROUND 4

[65]Finally, the appellant criticised the judge for omitting to tell the jury that the diagnosis of thrush was not, in itself, evidence that LF had been sexually abused.

[66]This argument is devoid of merit. There had been no suggestion whatsoever from the prosecution or any other source during the course of the trial that the diagnosis of thrush could support the allegation of abuse. In his summing up, the judge gave not the slightest hint or indication that this could have been the case. There can, therefore, in the circumstances of this case be no basis upon which to suggest that any reasonable jury could have misled themselves so badly as to reach a baseless conclusion advocated by no one and wholly unsupported by any evidence.

CONCLUSION

[67]We are, therefore, satisfied that none of the grounds relied upon in this appeal reveal these convictions to have been unsafe and this appeal is dismissed.

[68]For the sake of completeness, we note that the appellant would have contended that if his first ground of appeal relating to the defects in the indictment had succeeded and the other grounds had not then this should have resulted in an overall reduction to his sentence of one year. The first ground of appeal having failed, however, it cannot be argued that the sentence could otherwise be said to have been manifestly excessive. Indeed, even if it had been successful we would not have interfered with the total sentence of eight years imprisonment which was fully merited by the gravity of the offences committed under the remaining nine counts. Accordingly, we also dismiss the appeal against sentence