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Indictment Errors – Substance over Form

R v Walker: R v Coatman [2017] EWCA Crim 392 is the latest in a line of exasperated judgments from the Court of Appeal addressing defective indictments where drafting errors went unnoticed during the trial process[1]. Although the authority demonstrates the Court’s continued resistance to technical and procedural grounds of appeal, it does provide a useful example of substance over form.

 

In separate proceedings, Mr Walker and Mr Coatman were charged and convicted with offences of gross indecency. The counts on the indictment were defective as the statement of offence erroneously pleaded an offence contrary to section 13 of the Sexual Offences Act 1956 (SOA 1956), which was time-barred.

 

The Court extracted five general principles from the authorities:

 

i.        The test for the 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 a purely technical defect. Procedural and technical points should be taken at the time of trial.

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 rule 10.2 CrimPR 2015 in that it fails to identify sufficiently the legislation allegedly contravened.

iv.       The assessment of defects are a particularly fact sensitive issue.

v.       It is necessary to discern the true intention of the draftsman and the effect of the error upon the conduct of the trial.

 

In applying these principles a distinction was drawn between the merits of the two appeals.

 

In the case of Mr Coatman the CPS had intended to charge the offence of gross indecency, contrary to section 1 of the Indecency with Children Act 1960 (IWCA 1960) however the police charged offences, contrary to section 13 SOA 1956. This was replicated in the indictment and court record. Both offences were in error. The age of the complainant precluded a charge under Section 1 IWCA 1960 and a charge under section 13 SOA 1956 was time barred. The conduct alleged in fact amounted to an assault and should have been charged as an indecent assault, contrary to section 15 SOA 1956.

 

The prosecution, although conceding there were serious errors, invited the Court to take a purposive approach by directing the correction of the indictment and the court record to reflect an indecent assault conviction. That was a step too far for the Court of Appeal who held that this was not a mere technicality but a fundamental flaw which amounted to a serious error in substance. However the Court, recognising that if it quashed the convictions, it could not order either a re-trial, or substitute the conviction for section 15 SOA 1956 pursuant to section 3 of the Criminal Appeal Act 1968, instead declared the proceedings to be a nullity and encouraged the prosecution to make an application for a voluntary bill of indictment to institute fresh proceedings for offences of indecent assault.


Mr Walker fell on the other side of the line. He was originally charged with a valid offence contrary to section 1 IWCA 1960. The only error was in the statement of offence on the indictment which alleged a contravention contrary to Section 13 SOA 1956. The court record showed convictions pursuant to section 1 IWCA 1960. The trial was conducted on the basis that the appellant was accused of gross indecency with a child and the jury directed accordingly. In such circumstances, the Court of Appeal were satisfied that the error was one of form not substance and the appeal was dismissed.


There is an unedifying post script to this judgment where the prosecution provide apologies and assurances that steps have been put in place to prevent these particular errors being repeated. Although the prosecution are prepared to resource appeals, as in this case, through the instruction of Queens Counsel, insufficient attention is being paid at first instance. Just in the last twelve months I have experienced a number of glaringly defective indictments including time-barred offences and the indicting of a defendant from the age of nine. What is clear is that it is incumbent upon the defence to highlight these defects in order to avoid uncertain litigation on appeal.



[1] Recent examples include Rv Forbes [2016] EWCA 1388 ; R v  AD [2016] EWCA Crim 454 ; R v Boateng [2016]; R v Silverwood and Chapman [2015] EWCA Crim 2401; R v Clarke [2015] EWCA Crim 350; R v White [2014] EWCA Crim 714; R v Stocker [2013] EWCA Crim 1993


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