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.