J v The Queen
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P |
| Judgment Date | 08 November 2018 |
| Neutral Citation | [2018] EWCA Crim 2485 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 201800756B4; 2011802330B4; 201802970C1 |
| Date | 08 November 2018 |
[2018] EWCA Crim 2485
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Mr Justice Phillips
and
Mr Justice Edis
Case No: 201800756B4; 2011802330B4; 201802970C1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEWES
Her Honour Judge Barnes T20160506
AND ON APPEAL FROM THE CROWN COURT AT OXFORD
His Honour Judge Daly T20170255
Royal Courts of Justice
Strand, London, WC2A 2LL
Rebecca Upton for the Applicant Johnson
Nicholas Bleaney for the Applicant Burton
Duncan Atkinson QC, Jonathan Edwards and Paul Jarvis for the Crown
Hearing date: 9 October 2018
These unconnected cases were tried, in separate Crown Court proceedings, on a form of indictment which had been uploaded electronically by the prosecution onto the Crown Court Digital Case System (“the DCS”). In both cases the applicant was put in charge of the jury, which returned a verdict of guilty on counts contained in that form of indictment. It was only after conviction (but before sentence) that a court official realised that the form of indictment used at trial differed from the indictment on which the applicant had been arraigned, in particular, by adding one or more counts on which the jury had returned a guilty verdict but in respect of which the applicant had not entered a plea.
In each case, the prosecution's intention had been to apply to amend the original indictment under s.5 of the Indictments Act 1915 (“the 1915 Act”) (and, if necessary, to seek to have certain new counts sent to the Crown Court for trial), but by oversight no such application was made and therefore the applicant was not re-arraigned. All parties (including the trial judge), however, proceeded on the basis and understanding that the applicant had been properly arraigned on an indictment (duly amended or otherwise validly preferred) in the form used at trial.
By their counsel, the applicants both accept that they were not prejudiced in any way by the significant procedural errors outlined above and that they had a fair trial. Nevertheless, each contend that the form of indictment on which they were tried was a nullity, the only valid indictment being the unamended original, and that their convictions should accordingly be set aside or (perhaps more appropriately) declared to be invalid. The applicants rely, in particular, on R v Leeks [2009] EWCA Crim 1612; [2010] 1 Cr. App. R. 5, where a guilty plea to a count purportedly added to an indictment (but without any order for amendment in fact being made), was held to be a nullity and the conviction quashed. In so doing, the court followed the approach of the House of Lords in R v Clarke and McDaid [2008] UKHL 8; [2008] 1 WLR 338 to invalid indictments and proceedings based on them, the invalidity in the latter case being that the bill of indictment had not been signed.
The Crown contends that:
i) following the introduction of new statutory provisions governing the preferment of indictments in 2009 (in particular reversing the effect of Clarke and McDaid), the form of indictments used in these trials were valid and effective, or were deemed to be so;
ii) but in any event, in the light of those changes and the modern approach to procedural irregulates and their effect, Leeks no longer represents the law, the proper approach being to consider the fairness of the trial, prejudice to the defendant and the safety of the conviction, not the outdated concept of nullity.
The applications for leave to appeal against conviction accordingly raise important issues as to the modern law relating to the preferment and amendment of indictments. They were referred to this court by the Registrar. We grant leave. Johnson also applies for leave to appeal against sentence.
The Facts: R v Johnson
On 23 January 2018, in the Crown Court at Lewes before Her Honour Judge Barnes and a jury, Matthew Johnson was convicted of assault occasioning actual bodily harm (count 2 on the indictment used at trial), criminal damage (count 3), applying a corrosive fluid with intent (count 7) and sexual assault (count 8). He had previously pleaded guilty to Driving whilst Disqualified (count 9). On 8 May 2018, the judge having concluded that Johnson was dangerous within the meaning of s. 229 of the Criminal Justice Act 2003 for applying a corrosive substance with intent, he was made subject to an extended sentence of 14 years', comprising a custodial term of 10 years' and an extension period of 4 years'. Concurrent determinate terms of imprisonment were imposed for the other offences.
The provisions of the Sexual Offences (Amendment) Act 1992 apply in this case. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s. 3 of the 1992 Act.
The facts were as follows. In September 2015, Johnson and G became partners. Johnson moved into G's flat, where she lived with her 6-year old daughter. However, by March 2016, there were serious problems with the relationship and Johnson had been excluded from the flat, although he retained a key to the front door.
On 12 March 2016 Johnson forcibly entered the flat by unlocking the front door, then breaking the security chain which secured it. The prosecution case was that an incident ensued during which Johnson broke G's phone and threw the remains of it at her, only leaving the flat after his mother arrived and calmed him down. This resulted in a charge of criminal damage (count 1), of which he was acquitted.
The next day, 13 March 2016, Johnson returned and again unlocked the front door. He said, “I've come to get my things and I'm done with you.” G's landline phone rang, and he snapped it in half. He then rifled through her handbag; when she objected, he threw her across the room, and when she got up to get her handbag from him, he bit her cheek (count 2, of which he was convicted). G ran outside and Johnson followed with a bag of clothes she had packed for him to collect. He returned to the flat, took a set of kitchen scale weights and smashed the windscreen of G's car (count 3, convicted). G took her daughter to a friend's house and stayed the night. It was alleged that Johnson went to this friend's house demanding that G come outside, but she refused and called the police; he was later arrested but G did not pursue any allegation at that time and he was released without charge.
The relationship improved over the following months, but in late July G reported to the police that further incidents had occurred. She had been the subject of harassment on 16 July (part of an alleged course of conduct charged as count 6); she was assaulted and her mobile phone damaged on 17 July (counts 4 and 5). Johnson was arrested and interviewed; he provided a prepared statement denying the allegations. He was released on police bail with conditions of non-contact and a prohibition on travelling to the location of the G's flat. In the event, Johnson was acquitted of counts 4, 5 and 6.
At about 12:30 pm on 3 August 2016, Johnson phoned G to say he was going to hand himself in to the police, but that he wanted to meet her first; she agreed to meet and said she would take him to the police station. G drove to a public house where they met, but he said there were too many people there and suggested they drive away to talk. As G was driving, Johnson pulled on the steering wheel and forced the car into a car park. When she tried to open the door, he stopped her by grabbing her hair and hitting her in the face. When she managed to get out, Johnson came around and squirted a liquid in her face, saying that it was ammonia (count 7, convicted). She could not breathe and went to the ground, whereupon he kicked her in the head. He then put her in the back of the car, threatened her and drove to a petrol station to get water to clean her eyes, but that was not successful.
Johnson then drove back to the car park, where he made G masturbate him; she obliged out of fear and he ejaculated on the central console (count 8, convicted). He then drove her to the hospital, as she had promised not to disclose how she was injured, where she got out and he drove away. He was driving whilst disqualified (count 9, pleaded guilty). G was examined by a doctor and found to be badly injured, with a risk that she might suffer permanent damage to her eyes. At the time, she reported that an unidentified woman had thrown the liquid at her.
On the following day, 4 August, G told the police that Johnson was responsible for her injuries. After arrest, he provided a prepared statement denying the allegations, then giving no comment responses. The defence case at trial was that G was jealous and angry, and the allegations were attempted revenge on her part. On 3 August, Johnson said that he met G by arrangement and that he saw that she was injured. He wanted to take her to hospital but she refused and did not let him call the police.
On 5 August 2016 Johnson was charged with assault occasioning actual bodily harm (it not then being known what had been thrown at G), sexual assault, driving whilst disqualified and driving with no insurance (all in relation to 3 August) as well as harassment (in relation to the period 16 July to 3 August). On 6 August 2016 he appeared at the Brighton and Hove Magistrates Court, where his case was sent to the Crown Court.
On 16 August 2016 the original indictment was sent to Lewes Crown Court. On 5 September, at the Plea...
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