TF, R. v

Under section 3 of the Criminal Appeals Act 1968, substitution of an alternative conviction requires both that the jury could have convicted of that offence on the indictment and that its findings necessarily proved that offence. An historic charge of rape of a woman by a man could not support substitution of buggery involving a male complainant. The offences were different and mutually exclusive.

The statutory limits on ordering a retrial likewise prevented the Court of Appeal from ordering a trial for buggery. Quashing the two erroneous convictions did not require a further reduction of the remaining sentences where the sentencing judge had already made an appropriate allowance for totality.

Following a trial at Inner London Crown Court, the appellant was convicted of a series of historic sexual offences against male complainants, including two counts of rape involving anal penetration of a male complainant. He received a total sentence of 21 years’ imprisonment and was later made subject to a Sexual Harm Prevention Order.

On a renewed application for leave, the appellant challenged the rape convictions because, at the time of the alleged offences, anal penetration of a male was buggery rather than rape. The Crown accepted that the rape convictions had to be quashed, but sought substituted convictions for buggery under section 3 of the Criminal Appeals Act 1968.

The central issues were whether substitution or a retrial was legally available, and whether the remaining 18-year sentence and the Sexual Harm Prevention Order should stand.

1. The court extended time, granted leave, and allowed the appeal against conviction on the fresh ground. Counts 9 and 10 had wrongly charged rape under section 1(1) of the Sexual Offences Act 1956. At the material time, the alleged anal penetration of a male complainant was buggery under section 12(1), not rape.

2. The court quashed both rape convictions and refused substitution. The two-stage test in R v Graham [1997] 1 Cr App R 302 required the Crown to show both that the jury could have convicted of the alternative offence on the indictment and that its verdict necessarily established the facts of that offence. Rape of a woman by a man did not ordinarily involve buggery by a man of a male complainant. The offences were distinct and mutually exclusive, so neither statutory condition was met.

3. The court could not order a retrial. Section 7(2)(b) of the Criminal Justice Act 1968 did not encompass buggery because it was not an offence of which the appellant could have been convicted on the rape indictment. Any decision whether to institute fresh proceedings rested with the CPS. The court nevertheless expressed grave concerns as to the fairness of any future trial.

4. The appeal against sentence was allowed only to quash the concurrent 11-year sentences on counts 9 and 10. The remaining sentences properly reflected totality. The judge had already adjusted the individual sentences for totality, and the removal of the two counts did not justify a greater reduction. The erroneous reference to a sentencing guideline for count 4 was not materially adverse to the appellant. The 18-year total sentence was not manifestly excessive.

5. The Sexual Harm Prevention Order remained necessary because the offending showed a lengthy and predatory pattern of sexual abuse. The remaining sentence and order therefore stood, producing a total term of 18 years’ imprisonment.

1. Court of Appeal (Criminal Division) In [2018] EWCA Crim 2823, the court allowed the conviction appeal on the fresh ground, quashed the two rape convictions, and refused both substitution and an order for retrial. It allowed the sentence appeal only to quash the sentences on those counts.
2. Inner London Crown Court Following trial before HHJ S Wright, the appellant was convicted on nine counts of indecent assault and two counts of rape, and was sentenced to a total of 21 years’ imprisonment. A Sexual Harm Prevention Order was later imposed.