Williams, R. v

For joinder under Criminal Procedure Rules, offences need not have the same legal classification or be exactly alike. The court must identify their true and wider characteristics and decide, fact-sensitively, whether a sufficient nexus makes them offences of the same or similar character.

A nexus may arise from distinctive conduct directed at a particular class of victim. The admissibility of evidence on each count may establish a nexus, but that consideration requires caution under the modern law of bad-character evidence.

The appellant was convicted by a jury at Gloucester Crown Court of rape and was sentenced to six years’ imprisonment. Shortly before trial, he had pleaded guilty to assault occasioning actual bodily harm and taking a conveyance without authority, receiving consecutive sentences of nine months’ imprisonment.

The original indictment joined the rape count with counts arising from an earlier incident involving another former girlfriend. Before trial, the appellant unsuccessfully sought severance. He appealed on the technical ground that the counts had been improperly joined, making the indictment a nullity and requiring both his guilty pleas and conviction to be set aside.

The central issue was whether the offences formed a series of offences of the same or similar character for the purposes of the joinder rule.

1. Appeal dismissed. The counts had been properly joined. The court rejected the contention that the indictment was a nullity.
2. Under Crim PR 10.2(3), offences may be joined where they form part of a series of offences of the same or similar character. The inquiry is fact-sensitive. It is not confined to the offences’ legal labels or to exact factual similarity.
3. R v Kray [1971] QB 125 and Ludlow v Metropolitan Police Commissioner [1971] AC 29 governed the approach. A sufficient nexus may be established by cross-admissible evidence, although that consideration requires caution in light of modern bad-character evidence. More generally, the court must identify the true nature and wider characteristics of the offending.
4. There was a sufficient nexus here. Within a short period, the appellant was alleged to have used distinctive violence, namely putting his hands around the throat, against girlfriends or former girlfriends over whom he sought physical control. That shared feature was capable of making the offences similar in character, although one incident involved assault and the other rape.
5. The court declined to decide the hypothetical consequences of a misjoinder under the former rules. It noted that Crim PR 10.2(4) had since broadened the permissible contents of an indictment. It also observed, without deciding the point, that any future question arising from a failure to order separate trials should focus on trial fairness, prejudice and the safety of the conviction rather than a technical doctrine of nullity.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2017] EWCA Crim 281.
• Crown Court at Gloucester — the appellant was convicted of rape following a jury trial and had previously pleaded guilty to assault occasioning actual bodily harm and taking a conveyance without authority.