White v R.

An appeal after a guilty plea may exceptionally be entertained where the admitted facts could not in law establish the offence charged. A defective indictment is not a nullity merely because its particulars fail to plead the facts constituting the offence, where it charges an offence known to law and has caused no material unfairness.

Under section 3A of the Criminal Appeal Act 1968, a guilty plea may be substituted only if the alternative offence was available on the indictment and the plea admits facts proving it. A charge of fraudulent non-disclosure cannot be converted into a charge of false representation unless the original allegation includes that representation.

The appellant pleaded guilty in the Crown Court at Southwark to three counts of obtaining a pecuniary advantage by deception under the Theft Act 1968 and one count of fraud under the Fraud Act 2006. He received concurrent sentences which were reduced on a sentence appeal: [2011] EWCA Crim 2280. A confiscation order was subsequently made.

More than two years later, following criticism of the legal basis of the charges, he sought leave to appeal against conviction. The Crown did not oppose leave and invited the court to substitute legally valid offences for three counts. The central issues were whether the indictment was a nullity, whether substitution was available after guilty pleas, and whether the fourth count could be replaced by an offence of fraud by false representation.

1. The court granted an extension of time and leave to appeal, and allowed the appeal in part. The guilty pleas were to counts which were legally defective. Following R v Preddy [1996] 2 Cr App R 524, a mortgage loan was not a pecuniary advantage within section 16(1) of the Theft Act 1968. The fourth count alleged a failure to disclose unemployment, but the appellant was under no legal duty to make that disclosure.

2. An appeal following a guilty plea remains exceptional. The court applied the principle in R v Forde (1923) 17 Cr App R 99: the admitted facts could not in law support the offences charged. Although a correct indictment could readily have been substituted at trial and no practical injustice arose, the charging errors were sufficiently serious to justify exceptional intervention.

3. The indictment was not a nullity. R v Clarke & McDaid [2008] UKHL 8 concerned a failure in the legal requirements for preferring an indictment. Here each count alleged an offence known to law, but the particulars failed to allege facts constituting it. Consistently with R v Stocker [2013] EWCA Crim 1993, the court rejected a purely technical approach where there was no material unfairness.

4. Applying section 3A of the Criminal Appeal Act 1968 and the two-stage approach in R v R [2007] 1 Cr App R 10, substitution was available for counts 1–3. The alternative offences under section 15A of the Theft Act 1968 were necessarily available on the indictment, and the guilty pleas admitted facts proving dishonest money transfers by deception. The court therefore substituted those convictions.

5. No substitution could be made for count 4. An allegation of failing to disclose unemployment did not include an allegation that the appellant falsely represented that he was employed. Count 4 was quashed. The concurrent two-year sentences for the substituted convictions remained unchanged.

6. The confiscation benefit figure was recalculated in accordance with R v Waya [2013] 1 AC 294. It was reduced to £74,441.25. The available amount of £55,640.15, and the default period, remained unchanged.

• Court of Appeal (Criminal Division): granted an extension of time and leave to appeal, then quashed count 4 and substituted convictions on counts 1–3: [2014] EWCA Crim 714.
• Court of Appeal (Criminal Division): on an earlier appeal against sentence, reduced the concurrent sentence from 30 months to two years: [2011] EWCA Crim 2280.
• Crown Court at Southwark: the appellant pleaded guilty on 17 March 2011. The court later made a confiscation order after finding criminal benefit and an available amount.