AD, R. v

A conviction is not unsafe merely because an indictment contains a clerical error in its statement of offence. The statement must accurately identify the statutory provision creating the offence, but the court must assess whether the defect was substantive or technical, whether the accused and trial participants understood the case, and whether unfairness or prejudice resulted.

Repeated complaints by a complainant are not inadmissible merely because they repeat earlier accounts. Their weight, including any consistency or inconsistency, is ordinarily for the jury. A direction is unnecessary where there was no evidential basis for the jury to draw the suggested inference.

The defendant was convicted at Cardiff Crown Court of 11 historic sexual offences against his son and daughter, and received a total sentence of eight years’ imprisonment.

On appeal, he challenged two convictions for indecent assault on his son because the indictment mistakenly cited section 14 of the Sexual Offences Act 1956, which concerned assault on a woman, rather than section 15. He also challenged the admission and treatment of evidence that the complainants had made complaints to others, the admission of repeated complaints, and the absence of a direction concerning a diagnosis of thrush.

The central issue was whether those matters rendered any conviction unsafe.

1. Appeal against conviction dismissed. Rule 14.2 of the Criminal Procedure Rules 2011 required the statement of offence to identify accurately the legislative provision creating the offence. The more flexible approach to particulars of offence did not remove that requirement. Nevertheless, the Rules were not to be applied inflexibly, and the ultimate question was whether the conviction was unsafe.
2. The wrong reference to section 14 of the Sexual Offences Act 1956 was a clerical drafting error, not a substantive mispleading. The original summons had identified the correct provision. Throughout the trial, all participants understood that the defendant faced allegations of indecent assault on a boy under section 15. The particulars supported that offence, the defence would have been conducted identically, and the error caused neither prejudice nor unfairness. Applying the substance-over-form approach illustrated by R v Stocker [2013] EWCA Crim 1993 and R v Boateng [2016] EWCA Crim 57, the convictions were safe.
3. Obiter: if the counts had been unsafe, section 3 of the Criminal Appeal Act 1968 could not have permitted substituted convictions under section 15. The alternative offence had to be expressly or impliedly alleged by the count. Indecent assault on a man and indecent assault on a woman were mutually exclusive offences, so the first condition for substitution was absent.
4. The judge had directed the jury to use the complaint evidence only when assessing consistency and credibility. That was more favourable to the defence than a direction permitting some statements to prove their truth under section 120 of the Criminal Justice Act 2003. In any event, the statements were admissible in the interests of justice under section 114(d). The judge also made clear that witnesses who repeated complaints were not witnesses of the alleged abuse itself.
5. There was no rule excluding repeated complaints. Their significance, including whether inconsistencies weakened credibility, was for the jury. Nor was a direction required that thrush did not prove sexual abuse, since no evidence or submission suggested that inference. The appeal against sentence was also dismissed.

• Court of Appeal (Criminal Division) Dismissed the defendant’s out-of-time appeals against conviction and sentence: [2016] EWCA Crim 454.
• Crown Court at Cardiff On 28 June 2012, a jury convicted the defendant on 11 counts. He received concurrent and consecutive terms amounting to eight years’ imprisonment. No lower-court citation was stated.