Neutral Citation Number: [2017] EWCA Crim 392
Case No: 2016/05097/B1, 2016/04390/B1
2016/04450/C3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge Hone QC (Coatman)
AND ON APPEAL FROM THE CROWN COURT AT LEEDS
His Honour Judge Batty QC (Walker)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/04/2017
Before :

THE RIGHT HON LADY JUSTICE HALLETT DBE
 Vice President of the Court of Appeal (Criminal Division)
MR JUSTICE  SPENCER
SIR DAVID MADDISON
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Between :

	R	Respondent	
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	Simon Walker	Appellant	
	
And Between
		
	R	Respondent	
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	John Coatman	Appellant	

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Mr Mark McCone instructed for Simon Walker     
Mr Patrick Maggs instructed for John Coatman 

Mr John Price QC instructed for the Respondent.     

Hearing date: Tuesday 21st February 2017
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Judgment Approved
The Rt Hon Lady Justice Hallett DBE : 
Background 
1.	Over the last few years this court has issued repeated warnings about the dangers of poor drafting of indictments in cases of alleged ‘historic sexual abuse’. We have two more examples before us. The Registrar has referred Coatman’s application for leave to appeal against conviction and Walker’s applications for an extension of time and leave to appeal conviction and sentence. They have been heard together because the ground of appeal against conviction is the same in each case, namely that prosecution of the offences of which they were convicted was time barred. 
2.	On 26 August 2016, the applicant Coatman was convicted at the Central Criminal Court of two counts of Gross Indecency contrary to section 13 of the Sexual Offences Act 1956 (“SOA 1956”).  He was acquitted of an offence of buggery. Sentence was adjourned first for reports and then pending the outcome of this application for leave to appeal conviction.  We have been invited by both parties to depart from our normal practice to await sentence and to hear the application.  
3.	On 20 June 2016 in the Crown Court at Leeds the applicant Walker was convicted of six offences of indecent assault of a male contrary to section 15 of the SOA 1956, an offence of attempted rape and three counts of gross indecency with a boy contrary to section 13 of the SOA 1956. He was sentenced to a total of 13 years. 
Appeals against conviction 
4.	In June 2015 Coatman was charged with two offences of gross indecency, allegedly committed in 1973. They became counts 2 and 3 on the indictment. In July 2015 Walker was charged with offences allegedly committed between 1999 and 2002.   Three of them became counts 3, 6 and 9 on the indictment. All five counts are defective in that in each case the “Statement of Offence” pleads a contravention of section 13 of the SOA 1956. Prosecution of such an offence was time-barred by section 7 of the SOA 1967. The repeal of the limitation imposed by section 7 in Schedule 6 of the SOA 2003 did not operate retrospectively: see R v Silverwood and Chapman [2015] EWCA Crim 2401. The ground is therefore undoubtedly arguable. We give leave. 
5.	To put the ground into proper context and to determine whether the errors in the two indictments were errors of form or substance, it is necessary to rehearse in greater detail the history of the prosecution of each of the appellants. Mr Price QC instructed by the Respondent on this appeal has provided a very helpful analysis. We are much indebted to him. 
6.	First, it is worth noting the provisions of each of the sections under consideration as they applied at the relevant time. Section 13 provided under the heading “Indecency with Men”: 
“It is an offence for a man to commit an act of gross indecency with another man, whether in public or private, or to be a party to the commission by a man of an act of gross indecency with another man, or to procure the commission by a man of an act of gross indecency with another man.” 
The maximum penalty was five years’ imprisonment.
7.	Section 15 provided, where relevant, under the heading “Indecent assault on a Man”: 
“(1) It is an offence for a person to make an indecent assault on a man.
(2) A boy under the age of sixteen cannot in law give any consent which would prevent an act being an assault for the purposes of this section.”
The maximum penalty was ten years’ imprisonment.
8.	Section 1 of the Indecency With Children Act, 1960 ("IWCA") provided: 
“1) Any person who commits an act of gross indecency with or towards a child under the age of fourteen ….. shall be liable on conviction on indictment to imprisonment for a term not exceeding two years ……..”
The maximum penalty was later raised to ten years. 
Coatman
9.	In the decision of the Crown Prosecution Service (“CPS”) to prosecute the appellant Coatman dated 30 March 2015, the conduct that later became the subject of count 2 was the masturbation of the complainant X by the appellant; the conduct that later became the subject of count 3 was an act of oral sex on the complainant. It was said that the appellant should be prosecuted for offences of “gross indecency” but no statutory provision was specified.
10.	The draft of the proposed charges was as follows: -
“Code: IC60001.
Offence: Gross indecency with a boy under sixteen years of age (01/01/1973 - 31/12/1973) 
Particulars: between 01/01/1973 and 31/12/1973 committed an act of gross indecency towards X a boy under the age of 16.
Code: IC60001
Offence: Gross indecency with a boy under sixteen years of age (01/01/1973 - 31/12/1973)
Particulars: between 01/01/1973 and 31/12/1973 committed an act of gross indecency towards X, a boy under the age of 16.
Code: IC600001 refers to the offence created by Section 1 of the IWCA. 
11.	On the 9 June 2015, the police charged Coatman with two offences of:
"Gross indecency with or towards a boy under the age of sixteen years.
Between 01.01.73 and 31.12.73 you committed an act of gross indecency towards X a boy under the age of sixteen years.
Contrary to Section 13 SOA 1956”
12.	Counts 2 and 3 alleged a contravention of Section 13 of the SOA 1956 in the Statement of Offence and the material part of the Particulars of Offence read:
“...between 01.01.73 and 31.01.73 being a man of or over the age of 21 committed an act of gross indecency with X a male person under the age of 18, namely of the age of fourteen years.”
13.	The court record in relation to each count records a conviction for an offence of Gross Indecency, code “SX56087”.  This code relates to a contravention of Section 13 SOA 1956 by a male aged 21 or over with a male aged under 18. 
Walker 
14.	In the CPS’ decision to prosecute the appellant Walker made on 15 July 2015 the conduct that became counts 3, 6 and 9 were acts of oral sex by Y upon the applicant and the penetration of the appellant’s anus by Y’s penis.
15.	The CPS lawyer stated that the appellant should be prosecuted for offences of “gross indecency with a child under the age of 13/14” but no statutory provision was specified. The proposed charges included a number of charges of “Gross indecency with a boy under the age of fourteen years of age” with the code H9821 and two offences of: 
“Inciting a boy under sixteen years of age to commit an act of gross indecency” with the code H540. Code H9821and H540 are references, in different forms, to the offence created by Section 1 IWCA 1960. H9821 relates to gross indecency with a boy under the age of fourteen years of age. H540 relates to Inciting a boy under sixteen years of age to commit an act of gross indecency.
16.	On the 16 July 2015, the appellant was charged by the police with four offences of gross indecency with a child that read as follows:
“between 01/01/1999 to 31/12/2002 at Leeds committed an act of gross indecency with or towards Y  a boy under the age of 14
 Legislation:  'Contrary to Section 1(1) of the Indecency with Children Act 1960.'
17.	He was also charged with two offences of incitement: 
“between 01/01/1999 to 31/12/2002 at Leeds incited Y a boy under the age of 14, to commit an act of gross indecency with yourself
Legislation:  'Contrary to section 1(1) of the Indecency with Children Act 1960.'
18.	The counts on the indictment relating to gross indecency alleged a contravention of Section 13 of the SOA 1956 in the Statement of the Offence and the material part of the Particulars of Offence read:
“Count 3”
“..between the 1st day of January 1999 and the 31st day of December 2002 being a man of or over the age of 21 years, committed an act of gross indecency with Y a male person under the age of 18 years, namely under 14 years. (complainant's penis in defendant's anus)”
Count 6 [sample]
“between the 1st day of January 1999 and the
31st day of December 2002 being a man of or over the age of 21 years, committed an act of gross indecency with Y a male person under the age of 18 years, namely under 14 years. (complainant's penis in defendant's anus)”
Count 9 [sample]
“between the 1st day of January 1999 and the
31st day of December 2002 being a man of or over the age of 21 years, committed an act of gross indecency with Y a male person under the age of 18 years, namely under 15 years. (putting complainant's penis in defendant's anus)”
19.	The court record has recorded in each case, a conviction for an offence of “IC60005”, a reference to an offence contravening Section 1 IWCA 1960.
The appellants’ submissions
20.	Both Mr Maggs and Mr McKone invited the court to follow the course adopted in Silverwood and Chapman, which was simply to declare the convictions for gross indecency unsafe and quash them, without substituting an alternative offence under section 3 of the Criminal Appeal Act 1968 (“CAA”).  However, the judgment in Silverwood and Chapman, for understandable reasons (the prosecution made concessions) does not provide any detail of the history of the prosecution. We assume the court concluded the error was one of substance not form.
21.	In R v Forbes and others [2016] EWCA Crim 1388 the court was faced with a similar problem in respect of the appellant Warren. It concluded at paragraphs 56 to 59 of the judgment that in his case the drafting of the counts as offences contrary to section 13 of the SOA 1956, rather than contrary to section 1 of the IWCA 1960, was a simple error of form not substance. The error could be corrected by amending the court record, if necessary, to ensure it accurately recorded the offences that the prosecution intended to charge and the appellant Warren intended to admit, namely offences contrary to the IWCA. Mr Price who also appeared for the prosecution on the Forbes appeals informed us that in fact the court record did not require amending. 
22.	The appellants Coatman and Walker sought to distinguish the facts of Warren in that the intention of the parties in Warren was clear, Warren pleaded guilty and counsel for Warren expressly disavowed reliance on the point. The error on the indictment was no more than a clerical error. 
The respondent’s submissions
23.	In the Coatman appeal Mr Price conceded the limitation point and brought to our attention an additional difficulty in the way the case had been prosecuted. The documents suggest the CPS intended to charge a contravention of Section1 IWCA 1960. This was in itself wrong. At the time of the alleged offences in 1973, the complainant X was either fourteen or fifteen years of age. The amendment to Section 1 of the IWCA 1960, increasing the age threshold for an offence from “under the age of fourteen” to “under the age of sixteen” introduced by Section 39 Criminal Justice and Courts Services Act 2000, did not come into force until 11 January 2001. No offence under section 1 was or could have been committed by Coatman in 1973. 
24.	Even if X had been under the age of fourteen, the conduct alleged in each case clearly amounted to an “assault” contravening Section 15 SOA 1956. A charge that began as an offence committed towards X (consistent with an offence under section 1 of the IWCA) became in the indictment an offence committed with X.  This would be inapt for what was allegedly an offence of sexual assault on a child by an adult male. 
25.	Accordingly, Mr Price accepted the errors relating to the form of the indictment are serious. Coatman should have been charged with the only offence available, indecent assault contrary to section 15 of the SOA 1956. However, offences under that section cannot now be substituted pursuant to section 3 of the Criminal Appeal Act 1968 (“CAA”) because an offence under section 15 is not an offence of which “….the jury could on the indictment have found him guilty.” (Silverwood and Chapman supra at para 13).  The elements of indecent assault and gross indecency are not necessarily the same and an offence of gross indecency does not expressly or impliedly include an offence of indecent assault.
26.	Nevertheless, Mr Price sought to persuade us that in every respect that matters Coatman was prosecuted for an offence of indecently assaulting a child contrary to Section 15 SOA 1956 and the substance of the allegation was far closer to section 15 than it was to section 1 or section 13.  The trial was effectively conducted upon the basis that the appellant was facing two allegations of indecently assaulting a boy contrary to Section 15 SOA 1956. The judge’s directions to the jury left them with only one live issue on each of Counts 2 and 3: was it proved that the act alleged had occurred? If the jury was satisfied the acts occurred the appellant was guilty. To convict, the jury must have been sure that Coatman had in fact “indecently assaulted” X. In those circumstances Mr Price invited us to take the purposive approach to technical errors recommended by this court on a number of occasions and to direct the correction of the indictment and the record (post conviction) so that they reflect convictions contrary to section 15 of the SOA. However, he was unable to identify the source of such a power, other than the judgment in Forbes and others. 
27.	If the court felt unable to follow that course, he urged us not to quash the convictions as unsafe because we would have no power to order a re-trial. The court’s powers to order a re-trial under section 7 of the CAA presupposes “a trial” on a valid indictment. If the defects in process have led to the appellant being tried for and “convicted” of an offence for which he could not lawfully be prosecuted, then there has been no trial and the proceedings in the Crown Court are a nullity. Accordingly, he invited us to declare the proceedings a nullity and issue a writ of venire de novo so that the prosecution can re-commence proceedings in the Crown Court on a proper footing with an arraignment on a valid indictment. 
28.	In the Walker appeal, Mr Price believed himself on stronger ground. He pointed to the fact that at the time the decision to prosecute the applicant was made, the CPS intended to charge a contravention of section 1 IWCA 1960. This was the correct charge. The applicant was then charged with offences contrary to section 1. The only errors came on the indictment. Even there, there is another indicator of the true prosecutorial intention. In counts 3 and 6 the actual age of “under fourteen” is pleaded and in count 9 the actual age of “under fifteen” is pleaded. Such averments would have been essential to a charge contrary to Section 1 IWCA 1960 and unnecessary to a charge contrary to Section 13 SOA 1956, whenever committed. In each case the acts are alleged to have been committed “with” Y .  This would be apt to a contravention of either section 1 IWCA 1960 or section 13 SOA 1956 but the Particulars pleaded in each case are much closer and more appropriate to a contravention of section 1 of the IWCA 1960 than to section 13 of the SOA 1956. 
29.	Mr Price conceded, only to dismiss, another potential difficulty in his path. The offences in counts 3, 6 and 9 straddle the period when the age threshold under section 13 was reduced by the SO(A)A 2000 from 18 years to 16 years. The higher threshold applied until 8 January 2001 when section 2 Sexual Offences (Amendment) Act 2000 came into force. For at least part of the period, therefore it would have been necessary to prove that the complainant Y was under sixteen. Accordingly, the age threshold pleaded was wrong. It matters not because the complainant was in fact under that age. He did not reach the age of 14 until 18 January 2001 after the threshold had been raised. Having regard to the way the jury was directed on the three counts, the jury must have found that Y was “under” the actual age stated: fourteen in counts 3 and 6 and fifteen in count 9. 
30.	Accordingly, the errors relating to the indictment are as to form only. If there was any prejudice, there was none to the appellant Walker. From the outset, the only real issue was whether it could be proved that the acts alleged had occurred. The applicant conducted his case throughout upon that basis. He was convicted because the jury was sure that those acts had occurred and Y was of the stated age. 
Conclusions on appeals against conviction
31.	In addition to the cases to which we have already referred, we were taken to a number of decisions of this court in which this problem in various guises has been addressed. We do not intend to conduct, yet again, the kind of comprehensive review on the effect of defects in an indictment as was conducted in R. v Stocker [2013] EWCA Crim 1993. [2014] 1 Cr. App. R. 18 and  R. v AD [2016] EWCA Crim 454.
32.	We extract from them the following principles: 
i)	The test for this court remains one of safety of the conviction.
ii)	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.” (Stocker at paragraph 42).
iii)	The question for the court is whether the error in the indictment is a purely technical defect or whether the count itself is fundamentally flawed because it breaches R.14.2 of the Criminal Procedure Rules in that it fails to identify sufficiently the legislation allegedly contravened. The clear purpose of the relevant parts of R.14.2 is to ensure that an accused has sufficient information to know the case he had to meet and for all parties to know which statutory provisions applied. (Stocker at paragraph 43).
iv)	The determination of which defects are properly to be categorised as “fundamentally flawed” rather than amounting to “a mere drafting or clerical error” is, “a particularly fact sensitive issue”. (AD at paragraph 22). 
v)	It is necessary to discern the true intention of the draftsman and the effect of the error upon the conduct of the trial. (AD at paragraphs 23 and 24 and Forbes at paragraphs 56-59)
Conclusions re Coatman
33.	There can be no doubt, the prosecution intended to charge gross indecency contrary to section 1 of the IWCA and the police charged gross indecency contrary to section 13 of the SOA 1956. Both were wrong. The appellant could not be charged with offences under section 1 because of the age of the complainant at the time and could not be charged with offences under section 13 because they were time barred. 
34.	The error was repeated on the indictment. The Statement of Offence referred to an offence of Gross Indecency contrary to section 13 and the Particulars referred to an act of gross indecency committed with a male under the age of 14. No reference was made to the nature of the gross indecency or to an indecent assault. As counts of gross indecency contrary to section 13, they may have been flawless in form; but they were fundamentally flawed in substance. The court record reflects the indictment. From the beginning to end of the process, therefore, the allegations were gross indecency and not indecent assault. The error on the indictment was not a simple clerical error, as was the case in Stocker. It was not a mere technicality; nor can it be said that the judge the prosecutor and the defendant all proceeded on the basis the correct charge was before the court, as was the case in Forbes.
35.	The appellant has been convicted of an offence of gross indecency with a statutory maximum penalty of five years. We are being asked to amend the indictment and the record post conviction (but before sentence) so that he stands convicted of an offence of indecent assault with a statutory maximum of ten years. Even if we do have such a power (and we note the point was not argued in Forbes), it would not be right to exercise it.  In those circumstances, whilst we acknowledge the clear “judicial and legislative steer” away from technicalities we cannot follow the approach adopted in Stocker, AD and Forbes. 
36.	In this case, there was a serious error of substance and the error fundamentally undermines both the counts of which the appellant was convicted. We have no power to quash and order a re-trial and no power to substitute an offence of indecent assault contrary to section 15 of the SOA 1956 pursuant to section 3 of the CAA.  This is not a case where there are other valid counts left on the indictment that adequately reflect a proven pattern of offending. Mr Price conceded that in those circumstances, the prosecution will have to start again on a proper footing.  
37.	Accordingly, we have no choice but to declare the proceedings a nullity. We can see no reason why the prosecution should not now proceed with charges under section 15 of the SOA. We expect the CPS, who are responsible for this deeply regrettable state of affairs, to proceed with all expedition, in the interests of both the complainant and the appellant. 
38.	At the time of preparing the first draft of this judgment we had not been persuaded of our power to issue a writ of venire de novo or the necessity for such a writ on these facts. The argument before us was limited. We provided  a copy of the draft to the parties and allowed Mr Price to make further submissions in writing as to our powers. He relied on the judgment in Booth and others 1999 1 Cr App R 457  in support of his assertion that we do have the necessary power and that it would be in the interests of justice to exercise it. Mr Maggs remained neutral on this issue.  
39.	We have conducted our own researches. There are several decisions of potential relevance. Suffice it to say that although we accept this court has the power to issue a writ of venire de novo in certain circumstances, we are not as confident as Mr Price as to the existence of the power to issue a writ where, as here, the prosecution proceeded on the basis of a statute barred offence from start to finish. We note, for example, the approach adopted in Gordon S 2015 EWCA Crim 1663. 
40.	We feel we should not determine the issue without hearing full oral argument, based on a proper review of all the decided cases.  There are, therefore, three options available to us. First, we could proceed on the assumption we have the power, with the risk of yet more proceedings on the issue in the future. Second we could re-convene for another hearing which will take time and resources. Third, we could decline to grant the Crown’s request. We have decided the most sensible course, in the interests of justice and expedition, is to take the third course. We decline to grant the writ.  However, the prosecution may wish to consider whether it would be appropriate to make an application for a voluntary bill of indictment. If such an application is made, Spencer J is prepared to consider it. 
Walker 
41.	There can be no doubt the intention was to prosecute under section 1 of the IWCA 1960. Walker was charged with offences under that Act. The only error appeared on the indictment in which a contravention of section 13 of the 1956 Act was alleged in the Particulars of Offence. The Statement of Offence included averments relevant to a contravention of section 1 of the IWCA and closer to an offence under section 1 than under section 13. The trial was conducted on the basis that Walker was accused of gross indecency with a child. The judge’s directions ensured that the jury could not convict unless the jury was satisfied of the elements of an offence under section 1 of the IWCA. 
42.	The appellant was not in any way prejudiced by the error. On the contrary he had the advantage of what appeared to the judge to be a lower maximum penalty available. The facts that the appellant Warren in Forbes pleaded guilty and that Walker’s counsel, unlike Warren’s counsel, has sought to argue the point do not amount to a sufficient reason, in our view, for us to adopt a different approach from that adopted in Forbes. 
43.	We are satisfied, therefore, the error was one of form not substance. The convictions have been correctly recorded. The appeal is dismissed. 
Walker’s application for leave to appeal sentence. 
44.	The applicant does not contend that the sentence passed was excessive or wrong in principle for the sustained and repeated abuse of a thirteen year old boy whose life has been irreparably damaged. He asserts that there is information about him relevant to sentence that should have been obtained before sentence was passed. That information is still not available and we were invited to adjourn the application for enquiries to be made.  
45.	We can dispose of the applications for an adjournment and for leave swiftly. The issue of whether more information was required for the purposes of sentencing was raised with the judge and he was the person best placed to resolve it. If there was relevant material that the defence wished the judge to consider, an application to adjourn sentence should have been made. Walker and his lawyers were in possession of all the information they needed to make such an application and to assess whether it was likely to be fruitful. No application for an adjournment was made. We see no reason to adjourn the application now to find out more. There is therefore nothing before us to suggest that the overall sentence imposed was in any way excessive and the application for leave is rejected. 
Postscript
46.	Both the trials with which we are concerned took place in 2106. It seems that the warnings this court has given on previous occasions to prosecutors have gone unheeded until very recently. When a conviction is quashed and a re-trial ordered or where proceedings are declared a nullity, a great deal of time and money is wasted. Most importantly, witnesses and defendants are caused significant unnecessary distress. 
47.	We have been informed that irrespective of the outcome of these appeals, the respondent profoundly regrets the errors made and wished the court to be aware that a series of remedial steps have been taken by the CPS to ensure they never re-occur. They include: 
i)	A note has been sent to all heads of CPS Rape and Serious Sexual Offences (RASSO) units across the country instructing them to remind all prosecutors of the unavailability of Section13 offence.
ii)	RASSO units have been instructed to check all existing cases and to take steps to address any defective indictments currently before the courts 
iii)	Misleading, out of date information relating to Section 13 has been removed from the CPS legal guidance on rape and sexual offences.
iv)	The Section 13 “precedent” on the electronic case management system (which is used to draft indictments) has been removed.
These steps should have been taken years ago. We direct that a copy of this judgment when perfected is sent to the Director of Public Prosecutions so that she can satisfy herself that nothing further needs to be done.