R v Frank Mooney

Under section 5 of the Indictments Act 1915, an indictment is defective where it alleges offending that the evidence cannot support. The power to amend is flexible and may be exercised at any stage, including after the close of the prosecution case. The decisive question is whether amendment would cause injustice to the defendant.

A reduction in the number or scope of allegations will not itself cause injustice where the essential evidential case and the defence to be met remain unchanged. Questions about the weight of a complainant’s evidence are ordinarily for the jury where the evidence, if accepted, is capable of proving the amended charges. In sentencing for multiple offences, the court must apply totality and assess the overall sentence, rather than aggregate guideline starting points arithmetically.

The appellant was convicted at the Crown Court at St Albans of four multiple-incident sexual offences against a child, C1, contrary to the Sexual Offences Act 2003. C1 was entitled to lifetime anonymity under the Sexual Offences (Amendment) Act 1992.

After the prosecution case, the trial judge permitted the Crown to replace an eight-count indictment with four multiple-incident counts. The amendment removed unsupported single-incident counts and reduced the minimum alleged occasions of offending. The appellant was sentenced to 17 years for the lead rape count, comprising 16 years’ custody and a one-year extension period, consecutive to three years for separate violent offences.

On appeal, he challenged the amendment, the safety of the convictions, an intervention during his closing speech, the summing-up, and the overall sentence. The central issue was whether the post-evidence amendment caused injustice or rendered the convictions unsafe.

1. The appeal against conviction was dismissed. The court held that section 5 of the Indictments Act 1915 gives a flexible power to cure an indictment that alleges offending not supported by the evidence. A defect is not confined to a technically invalid indictment. Amendment may occur after arraignment and after the prosecution case has closed, provided that it is necessary to meet the circumstances and can be made without injustice.

2. The trial judge applied that test correctly. The original indictment materially overstated the extent of offending that the evidence could establish. The amendment reduced the case to allegations that the jury could properly consider. It did not alter the essential nature of the case or the appellant’s complete-denial defence. Any forensic disadvantage arising from the Crown’s overcharging was rhetorical rather than material prejudice.

3. C1’s evidence was capable of establishing at least five instances of the first two forms of offending and at least two instances of the remaining forms. The adequacy and weight of that evidence were matters for the jury. The court also upheld the intervention in defence counsel’s closing speech because counsel had moved from commenting on absent evidence to asserting facts not proved in evidence.

4. The renewed application for leave to appeal against sentence was refused. Although youth is inherent to some extent in these offences, the victim’s extreme youth and circumstances entitled the judge to place the lead offending in Category 2. The judge properly considered totality, mitigation and good character. In a multiple-offence case, the guideline figures for single offences could not be applied arithmetically. The resulting overall sentence was just, proportionate, and neither wrong in principle nor manifestly excessive.

• Court of Appeal (Criminal Division) — by [2023] EWCA Crim 1232, dismissed the appeal against conviction on the ground for which leave had been granted. The convictions stood. It refused the renewed applications for leave on the remaining conviction grounds and on sentence.
• Crown Court at St Albans — on 11 November 2022, HHJ Foster convicted the appellant of four multiple-incident sexual offences. On 2 March 2023, the judge imposed 16 years’ custody and a one-year extension period for the lead sexual offending, consecutive to three years for separate violent offences.