R v Keith Anthony Stocker

JurisdictionEngland & Wales
JudgeLady Justice Hallett
Judgment Date13 November 2013
Neutral Citation[2013] EWCA Crim 1993
Docket NumberCase No: 201205764B3
CourtCourt of Appeal (Criminal Division)
Date13 November 2013
Between:
Regina
Respondent
and
Keith Anthony Stocker
Appellant

[2013] EWCA Crim 1993

Before:

Lady Justice Hallett

Vice President of the Court of Appeal (Criminal Division)

Mr Justice Sweeney

His Honour Judge Zeidman QC

Case No: 201205764B3

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM Truro Crown Court

His Honour Judge Clark QC

T2010073

Royal Courts of Justice

Strand, London, WC2A 2LL

Ramsay Quaife for the Appellant

Duncan Penny for the Respondent

Lady Justice Hallett

Background

1

In 2010, four young men came forward to allege that the appellant indecently assaulted them when they were aged between 10 and 16. The offences dated back to the period 1985 to 1997 and were, therefore, properly charged as indecent assault, contrary to section 15 (1) of the Sexual Offences Act 1956 ("the 1956 Act"). The appellant was prosecuted. However, during the first trial in July 2011, another young man E disclosed an allegation of anal rape. The jury was discharged and an investigation ensued. E claimed the rape occurred on New Year's Day 2008 and the Appellant was, therefore, charged with rape contrary to section 1 (1) of the Sexual Offences Act 2003 ("the 2003 Act").

2

The case was sent for trial at the Crown Court and the Crown Prosecution Service took on the responsibility for drafting the indictment. The indictment was produced electronically. Unfortunately, the prosecutor clicked in error on the Statement of Offence relevant to an offence of rape under section 1 (1) of the Sexual Offences Act 1956. The one count Indictment read:

STATEMENT OF OFFENCE

Rape, contrary to section 1 (1) of the Sexual Offences Act 1956section 1 (1) of the Sexual Offences Act 1956

PARTICULARS OF OFFENCE

KEITH ANTHONY STOCKER on the 1st day of January 2008 raped (E) a boy under the age of 16 years.

This count was then added to the previous indictment by way of amendment to become count 6.

3

A second trial was held at Truro Crown Court, before His Honour Judge Christopher Harvey Clark QC, on five counts of indecent assault contrary to section 15 (1) of the Sexual Offences Act and the one count of rape (with the Statement of Offence still showing the wrong year for the statute). The trial proceeded as if count 6, the rape charge, was properly brought under section 1 (1) of the Sexual Offences Act 2003. The judge directed the jury in appropriate terms for the indecent assault offences charged under the 1956 Act and the rape offence charged under the 2003 Act. At one stage (page 5 letters D-E of the summing up) he explained to the jury that the 1956 Act had "been repealed", adding: "we are now subject to the Sexual Offences Act 2003". Unfortunately, this did not trigger any appreciation of the error on the indictment.

4

On 30th March 2012 the appellant was convicted of all six counts. The trial was conducted with scrupulous fairness and nothing occurred (other than the error in the indictment) which could have formed the subject of an appeal. The trial judge imposed a term of imprisonment for public protection and specified a minimum term of 6 years. On 4th April 2012 he was persuaded to add a Sexual Offences Protection Order ("SOPO") despite protestations from the defence that it was unnecessary.

5

Initially the appellant sought leave to appeal against the Sexual Offences Prevention Order only. The time period for the notice of appeal against conviction expired on 27th April 2012. On 6th September 2012 leave to appeal against sentence was granted. Defence Counsel, Mr Quaife, reviewed the indictment at that stage and noted that the wrong Act appeared in the Statement of Offence of count 6. He drafted grounds of appeal against conviction accordingly. The application has been referred to the full court and we give leave.

Appeal against conviction

6

The issue in the appeal against conviction is simple to state: the Statement of Offence wrongly identified section 1(1) of the Sexual Offences Act 1956 as the statutory provision contravened. The offence was allegedly committed in 2008 and, therefore, the relevant provision was section 1 (1) of the Sexual Offences Act 2003. What are the legal consequences of the error?

Statutory framework

7

Section 3 of the Indictments Act 1915 (the 1915 Act) provides:

"(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."

8

Section 2 of the Administration of Justice Act 1933 ("the 1933 Act") provided the procedure to be followed for the preferring of a bill of indictment and declared that if a bill of indictment was preferred other than in accordance with its provisions the indictment was liable to be quashed. One of those provisions was the signing of the indictment by a proper officer of the court.

9

The current rules under the 1915 Act which apply are the Criminal Procedure Rules 2013. ("CPR 2013"). The CPR at the time of the present trial were in similar form to CPR 2013 in respect of Rules 1 and Rule 14 which are relevant here. Rule 1.1 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;"

10

Rule 14.2. (1) provides:

"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 statement of the offence charged that—

describes the offence in ordinary language, and

(ii) identifies any legislation that creates it; and

such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant…."

Discussion

11

Mr Quaife's submissions were succinct. He began by apologising profusely to the court for failing to spot the error until so late in the day. He accepted that it could have been corrected at any time during the trial. No-one was misled and no prejudice caused to the appellant. Nevertheless, he sought to persuade the court that the rape conviction must be quashed.

12

His argument is as follows: by virtue of section 3 of the 1915 Act and Rule 14.2 of the CPR 2013 both an accurate Statement of Offence and Particulars of Offence are conditions precedent to a valid indictment and so to a valid trial. Section 1 (1) of the Sexual Offences Act 1956 has been repealed for offences committed after the coming into force of the 2003 Act. The appellant has, therefore, been convicted following an "invalid trial" on an "invalid indictment" and of an offence "not known to law".

13

Mr Quaife placed just three decisions before the court in support of this proposition. He relied first upon the general observations of Lord Bingham in R v Clarke and McDaid 2008 2 Cr App R 2 HL at paragraph17 to the effect that "where the state exercises its coercive power to put a citizen on trial for serious crime a degree of formality is not out of place." In Clarke the failure to sign an indictment at the start of a trial, in breach of section 2 of the 1933 Act was deemed fatal to the conviction as a matter of statutory interpretation. The "inescapable conclusion" was that Parliament intended that the bill of indictment should not become an indictment unless and until it was duly signed by the proper officer. There could be no valid trial on indictment if there was no valid indictment (see paragraphs 18 and 19 of Lord Bingham's speech). Parliament responded by enacting the Criminal Justice Act 2009 which amended section 2 of the 1933 Act. No objections to the indictment for a failure to observe rules as to the preferment of an indictment can now be taken after the commencement of the trial.

14

In R v Shields [2011] EWCA Crim 2343 the court was confronted with what Mr Quaife maintains was a similar situation to the present. Shields was convicted of rape and made subject to a SOPO under the 2003 Act. He was later indicted and convicted of a breach of a Sexual Offences Order (a "SOO") under the Crime and Disorder Act 1998 (the relevant section of which had been repealed). The prosecution accepted the appellant had been convicted of an offence of which he could not have been guilty and the conviction could not stand. The only issue was whether or not the court was entitled to use its powers under section 3 of the Criminal Appeal Act 1968 ("the CAA") to substitute a conviction for another offence, namely a breach of the SOPO. Rix LJ giving the judgment of the court stated at para 11:

"…………this was a case of an indictment which was not merely defective, leading to a possible issue on appeal as to whether a conviction was 'unsafe' or not for the purposes of section 2 of the Criminal Appeal Act 1968, but was a nullity charging an offence unknown to law. This is despite the fact that mere drafting defects are not favoured as invalidating an indictment."

The court found that it had no power under section 3 to substitute a conviction for breach of a SOPO.

15

In R v MC [2012] EWCA Crim 213 the appellant was convicted of an offence of indecent assault contrary to section 14 (1) of...

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