Misstated Indictment Dates/Age Are Not “Material Averments” Where Time/Age Is Not an Element: Convictions Remain Safe

3.1 Precedents Cited

The judgment drew heavily on the orthodox law of “variance” between indictment particulars and proof at trial, as summarised in Archbold. While Archbold is not itself a precedent, the Court adopted the principles reflected in the authorities cited there:

Wallwork

The Court referred to Wallwork for the proposition that lack of precision in particulars (there, as to place) does not invalidate an indictment where the particular is not material to the offence. The use in BDZ is analogical: if “place” may be immaterial, so too may “date” be immaterial, depending on the legal elements and issues in dispute.

Aylett

The Court noted the traditional position (as reported in Archbold) that it was “never” necessary for the date in the indictment to be proved unless time is “of the essence” of the offence. Aylett is cited to support the broader rule that a variance as to time is often non-material.

Dossi

Dossi was used for the more explicit proposition that a date specified in an indictment is not material unless it is an essential part of the alleged offence, and that a defendant may be convicted even if the jury finds the offence occurred on a different date than that specified. The Court in BDZ aligned counts 6–11 with this category: time/age within that window was not an essential part of the offences as charged.

The combined effect of these authorities is the reaffirmation of a practical dividing line: (i) where a particular goes to an essential element or a live issue, variance can be fatal; (ii) where it does not, variance does not ordinarily undermine safety.

3.2 Legal Reasoning

(a) The structural distinction between counts 1–5 and counts 6–11

The Court’s reasoning turned on the legal difference between:

• Counts 1–5: offences “against a child under 13” (e.g., count 1 under section 6(1) of the Sexual Offences Act 2003), where the victim’s age is a critical component and consent is legally irrelevant because a child under 13 is deemed incapable of consenting.
• Counts 6–11: offences charged under provisions (e.g., count 6 under section 2 of the Sexual Offences Act 2003) where age as such is not an element in the same way, and the prosecution must prove lack of consent and lack of reasonable belief in consent.

This distinction mattered because the legal consequences of a misdescribed age/time differ depending on whether the misdescription affects the elements to be proved or the issues left to the jury.

(b) No prejudice: the error added an unnecessary prosecution burden

The Court acknowledged the factual mismatch: V’s evidence was that offending stopped before 13, yet counts 6–11 pleaded a post-13 window. However, the Court held the mismatch did not render the convictions unsafe because:

• The defence was a total denial (“it did not happen”), not a case turning on dates or consent.
• For counts 6–11, the trial judge directed the jury that the prosecution had to prove lack of consent and lack of reasonable belief—matters that, if the conduct really occurred when V was under 13, did not truly arise. Far from harming the appellant, this placed an additional burden on the prosecution.
• Critically, the Court found that no relevant issue was withdrawn from the jury. Instead, an irrelevant issue (consent, on the assumed facts) was left to them.

(c) The “material averment” concept and the judge’s “between the dates alleged” direction

The Court held that, in relation to counts 6–11, the date range was not a “material averment.” Consequently, the judge’s direction that the prosecution must prove the offences occurred “between the dates alleged” was, strictly, incorrect in law for these counts, because time was not essential. Yet that misdirection did not affect safety on the facts of this case, as the case was tried (and apparently understood) as focusing on whether any abuse occurred, not its precise timing.

(d) Careful limitation of the ruling

The Court explicitly confined its conclusion to this context. It warned that a different outcome might follow where:

• A similar error affected counts where age/time is an element (as could have been the case for counts 1–5 if the evidence placed offending after 13, because consent issues would then become essential but would not have been left to the jury).
• The indictment structure requires the jury to decide frequency or differentiate “specimen” and “specific” counts; in such settings, inconsistencies between pleaded particulars and evidence may generate uncertainty as to what the jury decided.

This limitation is significant: the decision is not a blanket tolerance of poor drafting, but a reaffirmation of the principle of materiality and prejudice in assessing conviction safety.

3.3 Impact

The judgment’s practical and doctrinal impacts include:

• Appeals based on date/particulars variance: It reinforces that a mismatch between indictment dates and evidence will not automatically render a conviction unsafe unless the date is material to the offence or to the issues the jury must resolve.
• Indictment drafting discipline: Although the convictions stood, the Court’s expressed “surprise” that the indictment was drafted as it was, and that the error went unnoticed, underlines that prosecutors should still amend indictments where appropriate—both to avoid confusion and to prevent arguments about materiality in more complex cases.
• Trial management and directions: The case illustrates how a trial’s “real issue” (here, occurrence vs denial) shapes what becomes material. But it also warns judges against giving blanket “between the dates alleged” directions where the law does not make time an essential element.
• Sexual offences charging choices: The decision highlights the high stakes of correctly charging “under 13” offences (where consent is legally irrelevant) versus “over 13”/general offences (where consent is an element). Errors can be harmless in one direction (adding burdens) but potentially fatal in the other (removing necessary elements from the jury’s consideration).