Shields, R. v

Under section 3 of the Criminal Appeal Act 1968, an appellate court may substitute an alternative conviction only where the indictment itself expressly or impliedly alleges that alternative offence, and the jury must have found the facts proving it. A count alleging breach of a repealed statutory order cannot be treated as alleging breach of a different order made under replacement legislation merely because the prohibited conduct was the same. The conviction must therefore be quashed where the statutory conditions for substitution are not met.

The appellant was convicted at Lewes Crown Court of breaching a Sex Offender Order said to have been made under the Crime and Disorder Act 1998. In fact, the order made against him in 2005 was a Sexual Offences Prevention Order under the Sexual Offences Act 2003; the statutory provisions for making the earlier type of order had already been repealed.

On appeal, the Crown accepted that the appellant had been convicted of an offence he could not have committed. It submitted, however, that the court could substitute a conviction for breach of the actual order under section 3 of the Criminal Appeal Act 1968. The central issue was whether the erroneous indictment expressly or impliedly included that alternative offence.

1. Appeal allowed and conviction quashed. The indictment charged breach of a Sex Offender Order under section 2(8) of the Crime and Disorder Act 1998. No such order had been made against the appellant. By January 2005, the provisions for making such orders had been repealed and replaced by the Sexual Offences Prevention Order regime under the Sexual Offences Act 2003.

2. Section 3 of the Criminal Appeal Act 1968 permitted substitution only if the jury could, on the indictment, have convicted of the alternative offence and must have found the facts proving it. Applying R v Graham [1997] 1 Cr App R 302, the first condition requires the count, read without recourse to the evidence, to contain an express or implied allegation of the alternative offence.

3. The second condition presented no practical factual difficulty: the jury’s finding of the prohibited conduct could equally have supported breach of a properly pleaded Sexual Offences Prevention Order. But the first condition failed. The count expressly alleged breach of a Sex Offender Order under the 1998 Act and identified an order which did not exist. It could not expressly or impliedly allege breach of the distinct 2003 Act order actually imposed.

4. The court did not finally decide whether the indictment was merely defective or a nullity, although it expressed the view that it charged an offence unknown to law. The Crown did not seek a retrial. The second ground of appeal concerning interview directions therefore required no decision.

• Court of Appeal (Criminal Division) — allowed the appeal and quashed the conviction: [2011] EWCA Crim 2343.
• Court of Appeal (Criminal Division) — the full court granted limited leave to appeal and identified an arguable, indeed clear, error that the charged offence was unknown to law: [2011] EWCA Crim 1460.
• Lewes Crown Court — on 17 March 2011, convicted the appellant of breach of a Sex Offender Order under the Crime and Disorder Act 1998 and sentenced him to nine months’ imprisonment.