Court of Appeal’s “Very Regrettable” Forced Hand Following Indictment Errors in Historic Sex Trial
The complexities and care needed when prosecuting cases involving historic sex offences was brought to the fore this month in R v TF  EWCA Crim 2823. The Court of Appeal emphasised the need for all those involved in the preparation and conduct of criminal trials to check that the charges on the indictment are appropriate to the facts of the case, particularly in cases of historic sexual abuse where the relevant provisions have changed. This duty extends to prosecutors, solicitors, counsel and the judge because, as the case makes clear, simply substituting the correct offence will not always be an option.
This edict arose from the “very regrettable” outcome of two convictions for rape being quashed, a result that the Court of Appeal recognised was likely to cause the complainant in the case “a great deal of anguish”.
The appellant, TF, was convicted after trial of nine counts of indecent assault on males and two counts of rape to which the appeal related. The offences arose from events in the late 1980s to early 1990s when the appellant drove around London in his car targeting male teenagers for sexual encounters.
The appeal centred on the rape allegations relating to one of the boys, MR. The appellant was alleged to have penetrated MR’s anus with his penis on two occasions between 30 June 1991 and 29 June 1993, when MR was aged 15-16.
The appellant argued the rape counts should have been charged as buggery pursuant to section 12(1) of the Sexual Offences Act 1956, whereas they were in fact charged as rape pursuant to s 1(1) of the Sexual Offences Act 1956. It was said that this was an error because the offence of rape did not include anal penetration until the law was amended by s 142 of the Criminal Justice and Public Order Act 1994, which came into effect on 3 November 1994, which post-dated the offences of rape. Accordingly, it was argued, the convictions were unsafe and should be quashed.
The Crown properly conceded that counts of rape should not have been included in the indictment faced by the appellant at trial and the Court had no option but to quash the convictions. However, the Crown invited the Court to substitute guilty verdicts of buggery contrary to s 12(1) of the Sexual Offences Act 1956 pursuant to this Court’s powers under s 3 of the Criminal Appeals Act 1968 which provides as follows:
“3.— Power to substitute conviction of alternative offence.
(1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence to which he did not plead guilty and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.
(2) The Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity.
The Court considered the two stage test on the circumstances when substitution may, or may not, be appropriate from R v Graham  1 Cr App R 302. In summary, the Crown must establish (1) that the jury could, on the indictment, have found the appellant guilty of some other offence; and (2) the jury must have been satisfied of fact which proved the appellant guilty of that other offence. In considering what the appropriate outcome may have been in the present case the Court of Appeal considered the obiter dictum from R v D (A)  2 Cr App R 18, to be important and persuasive:
“In the light of the wording of the section and the authorities to which we have referred, we consider that it cannot be argued that the offence of indecent assault on a man could “ordinarily involve an allegation of” an indecent assault on a woman. On the contrary, the two offences are mutually exclusive. It is obvious that the jury must have been satisfied of facts which proved the defendant guilty of indecently assaulting his male victim, for the purposes of s.3 but this conclusion satisfies only the second limb of the test propounded by the court in Graham and not the first.”
This brought the Court of Appeal to the conclusion that this was not a case where a conviction under s 12(1) for buggery could be substituted for a conviction under s 1(1) for rape as rape of a woman by a man does not “ordinarily involve” an allegation of buggery by a man of another man (or boy) – the two offences are different, indeed mutually exclusive. As such it could not be said, by reference to the charges on the indictment for rape, that the jury must have been satisfied of the facts necessary to support a conviction for buggery. The convictions for rape, therefore, had to be quashed and convictions for buggery could not be substituted.
The deluge of historic sex trials in recent times have presented legal, as well as practical, complexities for those involved in such work. The impact of retrials in offences involving historic sex allegations is, perhaps, more acute than usual – indeed, although the Court of Appeal upheld the sentence of 18 years’ imprisonment on TF imposed for offences of indecent assault it was recognised the outcome of the appeal would be a blow to MR who had given evidence at trial and may now face the prospect of giving evidence at a re-trial. This case serves as a stark reminder that notwithstanding the cuts and time pressures faced by those working in the criminal justice system, the relevant law must be researched, checked and properly applied in every case.
Fiona Robertson has extensive trial experience and regularly defends cases across the spectrum of serious criminal offences including rape and murder.