Consideration of the principles to be applied to a defective indictment.
Mr Coatman was convicted of two counts of Gross Indecency contrary to section 13 of the Sexual Offences Act 1956 ("SOA 1956"). These were committed in 1973. Mr Walker was convicted of three counts of Gross Indecency contrary to section 13 of the SOA 1956, together with other offences contrary to the SOA 1956. These were committed between 1999 and 2002.
Both Appellants appealed against their convictions on the basis that the prosecution were time barred under section 7 of the SOA 1967 and the repeal of the limitation imposed by section 7 in Schedule 6 of the SOA 2003 did not apply retrospectively.
The Court considered whether the defects in the indictments were errors of form or substance. In doing so, the Court summarised the principles derived from previous authorities to be applied when there is a defective indictment:
1. The test for the court remains one of safety of the conviction.
2. There is a judicial and legislative steer away from quashing an indictment and allowing appeals on the basis of a purely technical defect. Procedural and technical points should be taken at the time of the trial when they can be properly and fairly addressed.
3. The question is whether the error is a purely technical defect or whether the count itself is fundamentally flawed because it breaches Rule 14.2 of the Criminal Procedure Rules because it fails to identify sufficiently the legislation allegedly contravened. The defendant needs to be able to have clarity as to what is the case they must meet.
4. The determination of which defects are to be categorised as "fundamentally flawed' will be a fact sensitive issue.
5. It is necessary to discern the true intention of the draftsman and the effect of the error upon the conduct of the trial.
The Particulars of the Offences referred to acts of gross indecency committed with a male under the age of 14. However, the conduct involved sexual acts committed by the Appellant on the Complainant. There was no reference in the Particulars to the nature of the gross indecency or to an indecent assault. Therefore, although the counts of gross indecency may have been flawless in form, they were fundamentally flawed in substance, wholly undermining both counts of which the Appellant was convicted. Accordingly, the Court declared the proceedings a nullity.
The Statement of Offence included averments closer to an offence under section 1 of the Interference with Children Act 1960 ("IWCA 1960") rather than under section 13 of the SOA 1956. The trial was conducted on the basis that the Appellant was accused of gross indecency with a child. The Judge's directions ensured that the jury could not convict unless they were satisfied of the elements of an offence under section 1 of the IWCA 1960. The Appellant was not prejudiced in any way by the error. The Court was therefore satisfied this error was one of form not substance. Appeal dismissed.
14 June 2017