Walker, R. v

An appellate court must determine whether a conviction is safe where an indictment contains an error. A purely technical or clerical error will not ordinarily make a conviction unsafe. The court must identify the drafter’s true intention, consider how the trial was conducted, and decide whether the accused knew the case to meet.

A count is fundamentally flawed where it fails to identify a prosecutable offence or the applicable statutory basis. Such a defect cannot be cured after conviction by treating it as a different offence whose elements the jury could not have found on the indictment. Conversely, an incorrect statutory reference confined to the indictment may be one of form where the intended offence was clear, its elements were tried, and no prejudice arose.

Two applications concerning historic sexual offences were heard together. Coatman had been convicted at the Central Criminal Court of two counts described as gross indecency contrary to section 13 of the Sexual Offences Act 1956. Walker had been convicted at Leeds Crown Court of several offences, including three counts similarly described, and was sentenced to 13 years’ imprisonment.

Section 13 prosecutions were time-barred. The court considered whether the mistaken statutory references on the indictments were defects of form or substance. It also considered whether any conviction could be substituted, whether Coatman’s proceedings were a nullity, and Walker’s application for leave to appeal sentence.

1. Coatman. The court gave leave to appeal and declared the proceedings on the two gross-indecency counts a nullity. The prosecution and police had proceeded throughout on incorrect offences. A charge under section 1 of the Indecency with Children Act 1960 was unavailable because of the complainant’s age at the relevant time. A charge under section 13 of the Sexual Offences Act 1956 was time-barred.

2. The defect was therefore one of substance, not a clerical or technical error. The indictment did not allege indecent assault, and the parties had not proceeded on the basis that such a charge was before the court. The court could not substitute an offence under section 15 of the Sexual Offences Act 1956 under section 3 of the Criminal Appeal Act 1968, because indecent assault was not an offence of which the jury could have convicted on the indictment. It would also have been wrong to amend the indictment and record after conviction to substitute that more serious offence.

3. The court declined the Crown’s request for a writ of venire de novo. Although it accepted that the power exists in some circumstances, it was not sufficiently confident that it extended to proceedings pursued from start to finish on a statute-barred offence. It left open a possible application for a voluntary bill of indictment.

4. Walker. The appeal against conviction was dismissed. The intended and original police charges were under section 1 of the Indecency with Children Act 1960. The incorrect reference to section 13 of the Sexual Offences Act 1956 appeared only on the indictment. The particulars, the conduct of the trial and the jury directions made clear that the jury could convict only if satisfied of the elements of the intended section 1 offences. Walker suffered no prejudice, so the error was one of form.

5. Leave to appeal Walker’s sentence was refused. No application to adjourn sentence had been made when the sentencing judge could consider any further material, and nothing before the court suggested that the total sentence was excessive. The court directed that the perfected judgment be sent to the Director of Public Prosecutions.

• Court of Appeal (Criminal Division): In [2017] EWCA Crim 392, Coatman’s proceedings on the defective counts were declared a nullity. Walker’s conviction appeal was dismissed and his application for leave to appeal sentence was refused.
• Central Criminal Court: Coatman was convicted before His Honour Judge Hone QC of two counts of gross indecency. Sentence had been adjourned pending the appeal application.
• Crown Court at Leeds: Walker was convicted before His Honour Judge Batty QC and received a total sentence of 13 years’ imprisonment.