West Law Report

Omission of ‘intent’ not fatal to indictment

Posted in Guilty pleas, intention, Times Law Report by mrkooenglish on May 14, 2008

From The TimesApril 30, 2008

Omission of ‘intent’ not fatal to indictment
Regina v Hodgson Regina v Pollin in the Court of Appeal
Court of Appeal

Published April 30, 2008

Regina v Hodgson Regina v Pollin

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Wilkie and Mr Justice Openshaw

Judgment April 8, 2008

Where appellants had originally been charged with attempted murder but after discussion agreed to admit a lesser charge, the fact that “intent” was omitted from the indictment was not a fatal flaw.

The Court of Appeal, Criminal Division, so held sitting in Newcastle upon Tyne, when dismissing appeals by Liam Hodgson and Craig Pollin against their conviction, following pleas of guilty, at Newcastle Crown Court before Judge Faulks, on March 17, 2006, for inflicting grievous bodily harm, contrary to section 18 of the Offences against the Person Act 1861.

Mr Roger Moore, assigned by the Registrar of Criminal Appeals, for Hodgson; Mr David Callan, assigned by the Registrar of Criminal Appeals, for Pollin; Mr Christopher Knox for the Crown.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the appellants had originally been charged with attempted murder but, after discussions, it was agreed that they would tender, and the prosecution accept a plea to causing grievous bodily harm with intent, contrary to section 18.

The new count was added to the indictment. The statement of offence read “Inflicting grievous bodily harm, contrary to section 18” of the 1861 Act. The particulars provided that on September 21, 2005 they “unlawfully inflicted grievous bodily harm on” the victim.

Each appellant pleaded guilty. Neither took any point on the form of the indictment.

However, the Criminal Appeal Office noticed the shortcomings in its drafting and invited counsel to appeal on the ground that the appellants had pleaded guilty to an offence unknown to law.

That argument was based on the false premise that if the indictment did not spell out the mental element of a crime it was to be read as if the crime had no mental element.

It might well be that, at least in some offences, it was desirable practice to state the mental element in the indictment. But if the mental element was not stated expressly, it might be implicit from the statement of offence and the particulars that were given.

The critical issue was whether the indictment contained sufficient information as to the nature of the charge.

Section 18 created an offence that could be committed with more than one specific intent.The indictment did not identify the particular intent alleged.

The indictment was amended expressly to enable the appellants to plead guilty to a specific offence under section 18. They were well aware that the mental element of that offence was that they had intended to cause the victim serious bodily harm.

Was it implicit where an offence under section 18 was alleged, without reference to intent, that the defendant not merely caused grievous bodily harm but intended to do so? Their Lordships had concluded that it was.

In the present case, the form of the indictment could properly be criticised as having been defective in that it did not spell out the mental element of the offence.

It did not follow, however, that it did not give reasonable information as to the nature of the charge, let alone that it charged an offence unknown to law.

Solicitors: CPS, Durham.

R (EDWARDS-SAYER) v HOME SECRETARY

Posted in Guilty pleas, judicial review, Westlaw Reports by mrkooenglish on May 2, 2008

Last updated: 7:12 PM BST 09/04/2008
Divisional Court
Richards LJ, Swift J
March 13, 2008

Convictions – Guilty pleas – Prisoners – Remand – Meaning of “convicted prisoner” in R. 2(1) Prison Rules 1999 – R. 2(1) Prison Rules 1999

FACTS

The claimant prisoner (S) applied for judicial review of his treatment as a convicted prisoner whilst held on remand awaiting sentence. S had been remanded in custody charged with offences of dishonesty. Over a year later he pleaded guilty to the offences and sentencing was adjourned. From that date S was treated within the prison system as a convicted prisoner, with the result he lost the rights and privileges enjoyed by unconvicted prisoners. Sentencing took place over two years later when he was sentenced to ten years’ imprisonment. S submitted that

  1. (1) on the true construction of the definition of “convicted prisoner” in the Prison Rules 1999 r. 2(1), he remained an unconvicted prisoner after he had entered his pleas of guilty and was on remand awaiting sentence and became a convicted prisoner only when he was sentenced;
  2. (2) the loss of rights and privileges associated with the change of status from unconvicted to convicted prisoner might operate as a deterrent to submitting an early plea of guilty.

ISSUE

Whether S was a “convicted prisoner” for the purposes of the Prison Rules 1999 r. 2(1).

HELD (application refused)

(1) S had been lawfully treated as a convicted prisoner following his pleas of guilty. The definition of convicted prisoner in r. 2(1) of the Rules referred to a conviction in the narrow sense, namely a verdict of guilty or acceptance of a plea of guilty. The words used in r. 2(1) focused on the actual finding of guilt rather than on the final disposal of the case, S (An Infant) v Recorder of Manchester [1971] AC 481 HL applied.

(2) Whilst the loss of status as an unconvicted prisoner might discourage early pleas of guilty, that was likely in practice to be outweighed by the credit that was given to an early plea in the sentencing process. There was no suggestion that S was discouraged from entering guilty pleas. The disadvantages of the regime to which S was subjected were expressly taken into account by the sentencing judge, who reduced the sentence imposed accordingly. That was a further way in which any disincentive that arose from the change in a prisoner’s status, following a plea of guilty, might be counteracted.

Flo Krause (instructed by Cartwright King, Nottingham) for the claimant. Ian Hutton (instructed by Treasury Solicitor) for the defendant.