CF v R.

A conviction on a specimen count is unsafe where the indictment spans a period before the charged offence existed unless the evidence enables the jury to be sure that conduct of that particular kind occurred after the offence came into force. Acceptance of evidence of a continuing course of abuse is insufficient if it does not safely locate the conduct charged by an individual count within the operative period. Probability that the conduct occurred after commencement cannot cure that defect.

A defective indictment of this kind is not a nullity. The appellate question is whether the defect makes each conviction unsafe.

The appellant, aged 16, was convicted at Manchester Crown Court of five counts of rape of a male child under 13, contrary to section 5(1), and two counts of inciting a child under 13 to engage in sexual activity, contrary to section 8(1), of the Sexual Offences Act 2003. He received concurrent 30-month detention orders under section 91 of the Powers of the Criminal Courts (Sentencing) Act 2000.

Before trial, the Crown amended the specimen-count indictment so that every count covered a period beginning on 5 August 2003. That period preceded 1 May 2004, when the 2003 Act came into force. The issue was whether the defect rendered the convictions unsafe, given the evidence of a continuing course of abuse and the need to identify post-commencement conduct for each charged category.

1. Appeal allowed in part. The court granted leave to appeal and held that the indictment was defective because its particulars covered months during which the offences under the Sexual Offences Act 2003 did not exist. Following R v Ayres [1984] AC 447, however, the defect did not make the indictment a nullity. The question was whether it made the convictions unsafe.

2. The court accepted the principle identified in R v C [2005] EWCA Crim 3533: conviction under the 2003 Act required proof that the relevant act occurred after 1 May 2004. A jury's acceptance of a general account of prolonged abuse could not safely sustain a particular specimen count unless conduct of the specific kind charged could be attributed unequivocally to the post-commencement period. The possibility that later conduct probably occurred was insufficient.

3. The evidence did not safely establish that any anal rape or section 8(1) conduct occurred after 1 May 2004. Those convictions could not stand. By contrast, the complainant gave unequivocal evidence of oral rape, on more than one occasion, at Inverness Road after January 2005. The court therefore regarded the relevant oral-rape convictions as safe.

The supplied text contains an internal inconsistency: the reasoning identifies counts 4 and 5 as safe, while the formal final sentence states that all convictions save counts 3 and 4 were quashed. The latter is the court's stated operative order.

• Court of Appeal (Criminal Division): In [2008] EWCA Crim 994, leave was granted and the appeal against conviction was allowed in part. The court quashed the convictions other than those preserved by its formal order.
• Crown Court at Manchester (Minshull Street): On 27 July 2007, the appellant was convicted on five counts under sections 5(1) and 8(1) of the Sexual Offences Act 2003. On 26 October 2007, he received concurrent 30-month detention orders.