Stocker, R v

An error in an indictment’s statement of offence will not make the proceedings a nullity merely because it identifies a repealed statutory provision. The decisive questions are whether the count, read in substance with its particulars and the conduct of the trial, charged a known and subsisting offence, gave the defendant clear notice, and caused prejudice.

A Sexual Offences Prevention Order will rarely be necessary where an offender receives an indeterminate sentence. Release will be conditional on public-protection measures. The possibility that an appellate court might later substitute a determinate sentence does not itself establish necessity.

The appellant was convicted at Truro Crown Court of five historic indecent assaults and one rape. The rape allegedly occurred in 2008 and was tried throughout as rape under the Sexual Offences Act 2003. However, the electronically drafted indictment mistakenly described the count as rape contrary to section 1(1) of the Sexual Offences Act 1956.

He received imprisonment for public protection with a minimum term of six years. The judge later imposed a Sexual Offences Prevention Order. The appeal raised whether the error made the indictment and trial a nullity, and whether the order was necessary despite the indeterminate sentence.

1. The appeal against conviction was dismissed. The erroneous reference to section 1(1) of the Sexual Offences Act 1956 did not make count 6 a nullity or render the rape conviction unsafe. The purpose of rule 14.2 of the Criminal Procedure Rules 2013 is to ensure that the accused and the parties know the allegation and the applicable statutory provisions. That purpose was fully met.
2. The particulars, the evidence, the prosecution case, the defence case and the summing-up all made clear that the alleged rape occurred in 2007 or 2008 and was charged and tried under section 1(1) of the Sexual Offences Act 2003. The jury received the correct legal directions and in substance convicted the appellant of that known offence. The indictment was otherwise valid, the particulars supported the conviction, and the error could readily have been amended without prejudice.
3. The court distinguished cases in which an accused was charged with, tried for and convicted of an offence that did not exist at the relevant time. A court must not treat every error in an indictment as a nullity, but must assess its legal effect, Parliament’s apparent intention and any resulting injustice. The court did not need to consider substitution under section 3 of the Criminal Appeal Act 1968.
4. The appeal against sentence was allowed to the extent of quashing the Sexual Offences Prevention Order. Section 104(1)(a) of the Sexual Offences Act 2003 requires necessity for protection from serious harm. A concurrent order will rarely be necessary with an indeterminate sentence because release will occur only when safe and will be subject to appropriate licence conditions. The prospect of a successful sentence appeal and substitution of a determinate sentence was not an exceptional feature capable of satisfying that requirement.

• Court of Appeal (Criminal Division): appeal against conviction dismissed; appeal against sentence allowed only by quashing the Sexual Offences Prevention Order.
• Truro Crown Court: the appellant was convicted on 30 March 2012 of five counts of indecent assault and one count of rape. He received imprisonment for public protection with a six-year minimum term. A Sexual Offences Prevention Order was imposed on 4 April 2012.