Pritchett, R. v

An indictment which imperfectly pleads a charge may still charge a known and subsisting offence. It is not automatically a nullity merely because its particulars include a period before the offence was created. The decisive question is whether the conviction is unsafe.

For a continuing offence, the prosecution need not prove its commission throughout every day of the period alleged. Proof within the period after the relevant offence came into force is sufficient. Following a misdirection as to the material period, a conviction may be upheld only where a properly directed reasonable jury would inevitably have convicted on the admissible evidence.

The appellants were convicted at Wolverhampton Crown Court of keeping, managing, or assisting in the management of a brothel, contrary to section 33 A of the Sexual Offences Act 1956. The offence had been inserted by later legislation and applied only from 1 May 2004.

The indictment was amended before trial to allege offending between 15 October 1998 and 30 September 2005. The trial judge did not direct the jury to confine its consideration to conduct on or after 1 May 2004. Pritchett and Langston contended that the indictment was invalid and that their convictions were unsafe. The central issues were the effect of the defective period in the indictment and whether the misdirection could affect the safety of either conviction.

1. The appeals against conviction were dismissed. Langston was granted an extension of time and leave to appeal, but neither conviction was unsafe.

2. The amended indictment was irregular because it included a period before section 33 A came into force. It nonetheless purported to charge the existing offence of keeping or managing a brothel. It was therefore not a nullity. The court applied the distinction in R v Ayres [1984] AC 447 between an indictment disclosing no criminal offence and one that imperfectly pleads a subsisting offence.

3. The offence was continuing. The Crown did not have to prove that it continued throughout the entire period alleged. It was sufficient to prove offending after 1 May 2004. The modern question under section 2(1) of the Criminal Appeal Act 1968 was whether the convictions were unsafe, although the absence of prejudice or embarrassment remained relevant to that assessment.

4. The judge misdirected the jury by failing to identify the post-1 May 2004 period as the period in which the appellants had to be involved in management. The court applied the test in R v Stirland (1945) 30 Cr App R 40 and R v Davis, Rowe & Johnson [2001] 1 Cr App R 115: the conviction could stand only if a properly directed reasonable jury would inevitably have convicted.

5. Langston's management evidence substantially concerned the relevant period. A properly directed jury would still have convicted him. Pritchett's pre-commencement statements that he was managing the massage parlour remained capable of supporting an inference that he continued to manage it after commencement. Taken with his presence at the premises shortly after the raid, his control through the company owning them, his false explanation, and the absence of rebuttal evidence, that inference made conviction inevitable.

• Court of Appeal (Criminal Division): dismissed both appeals against conviction: [2007] EWCA Crim 586.
• Wolverhampton Crown Court: on 7 July 2006, before His Honour Judge Dudley, convicted both appellants of the section 33 A offence.