England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		10 July 1997

Thursday 10 July 1997

THE LORD CHIEF JUSTICE:

1. These three appeals raise a common issue of principle concerning specimen or sample counts in an indictment. The issue may be expressed as follows:

"If a defendant is indicted and convicted on a count charging him with criminal conduct of a specified kind on a single specified occasion or on a single occasion within a specified period, and such conduct is said by the prosecution to be representative of other criminal conduct of the same kind on other occasions not the subject of any other count in the indictment, may be court take account of such other conduct so as to increase the sentence it imposes if the defendant does not admit the commission of other offences and does not ask the court to take them into consideration when passing sentence?"

2. Recently decided cases offer differing answers to this question: see R v Clark [1996] 2 Cr App R(S) 351; R v Bradshaw [1997] Crim LR 239; R v Barry (30 July 1996 unreported). These cases summarise, with great clarity, the opposing arguments and the authorities relied on in support of each. The issue is one of great practical importance to those responsible for framing indictments and to sentencing courts. It is very desirable that a clear answer to the question should be given and any doubt dispelled.
3. For very many years prosecuting authorities have framed indictments including a small number of specimen or sample counts said to be representative of other criminal offences of a like kind committed by the defendant. This may, for example, be done where a defendant is said to have sexually abused a child victim frequently over a period, but the child is unable to particularise any specific occasions on which abuse occurred. Two or three counts, perhaps, may be included in the indictment; the prosecutor will make plain that there are specimen counts; and the victim will give evidence of the frequency with which the abuse occurred. The practice may also be adopted where, for example, a defendant is said to have obtained money by deception on numerous occasions: instead of burdening the indictment with numerous counts charging all the instances relied on, a few counts only may be included, and it will be made plain to the court and the jury that these are relied on as representative of a more extensive course of similar conduct. If, in a situation such as this, the jury convicts the defendant on one or more specimen counts, the practice of the court has been to pass a sentence which takes account not simply of the isolated instances specified in the counts but also of the conduct of which, on the evidence adduced by the prosecution, those counts are representative. This is undoubtedly a convenient and economical way of proceeding in cases of this kind, and when appeals have reached this Court against sentences passed on sample or specimen counts no objection has been raised to the practice. It is, however, submitted for the appellants that the practice is contrary to fundamental principle and inconsistent with recent statutory provisions.
4. A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence: see R v Anderson [1978] AC 964. If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit.
5. It is said that the trial judge, in the light of the jury's verdict, can form his own judgment of the evidence he has heard on the extent of the offending conduct beyond the instances specified in individual counts. But this, as it was put in R v Huchison (1972) 56 Cr App R 307 at 309, [1972] 1 WLR 398 at 400 is to "deprive the appellant of his right to trial by jury in respect of the other alleged offences." Unless such other offences are admitted, such deprivation cannot in our view be consistent with principle.
6. Sometimes, it is said, the verdict of the jury on one count inevitably involves a finding that the defendant has committed other offences for which he may therefore be properly sentenced. R v Mills (1979) 68 Cr App R 154 is relied on as such a case. One of the appellants in that case (Price) was convicted on a single count of corruptly accepting a sum of money of unspecified amount. The count was so framed because the prosecution were unable to specify what he had received and when. His own evidence made it plain that he had received cheques or £50 cash on numerous occasions, the total received being some £5450. The judge at the trial, with the assent of the prosecution, took one £50 payment as a sample, but on conviction sentenced Price for receiving the aggregate sum of which he took the view the jury, by their verdict, had inevitably convicted him. This Court approved that course, and since Price's explanation of all the receipts was the same it seems clear that the jury would have convicted him in relation to each receipt had each receipt been the subject of a separate count. It does, however, seem to us that there is a remaining problem: if the single unamended count embraced a series of different payments on different dates it would appear to have infringed the rule that only one offence may be charged in each count of an indictment; if, on the other hand, the single count was to be understood as charging a single receipt of £50, it is hard to see how Price was convicted of corruptly receiving any of the other payments, and since he did not admit any offences or ask for them to be taken into consideration the approved basis of sentence would seem hard to justify in principle.
7. R v Bradshaw, above, is relied on as a similar case. The defendant was alleged to have run a fraudulent investment scheme. He was convicted on five counts of theft, each count involving a specific sum received from a specific investor, the aggregate of the five counts being £97,000. The overall loss caused by the scheme was £3 million and the defendant was extradited on 138 individual charges of theft. In challenging a sentence of six years in total the defendant complained that the judge had in fact, although disclaiming an intention to do so, sentenced him on the basis of the overall deficiency and not the thefts of which he had been convicted. For the prosecution it was argued, on appeal, that guilty verdicts on the five counts "would inevitably have involved guilty verdicts in relation to all the other victims had counts been present in the indictment." The Court upheld that contention: distinguishing R v Clark, above, it approved the approach of the court below:

"The present case was presented and contested in such a way that the extent of the offending, although not admitted or proved by verdict, necessarily follows from the verdicts reached on the counts charged. In such a case, the Court is entitled to take into account the scale and multiplicity of offending as available information about the circumstances of the offences proved. Those offences were committed in the context of a fraud involving many victims and a very large sum of money, which in the present case should not be ignored. Provided the Court can adopt that approach, which in our view it can on the somewhat unusual facts of this case, the sentence of six years is appropriate."

8. Differing with respect from this conclusion, we think it inconsistent with principle that a defendant should be sentenced for offences neither admitted nor proved by verdict. Nor, also differing from the conclusion in R v Bradshaw, do we understand the Criminal Justice Act 1991 to legitimate the practice of sentencing for unindicted, unadmitted offences. Section 1(2) provides, so far as material

".... the court shall not pass a custodial sentence on the offender unless it is of the opinion --

(a) that the offence, or the combination of the offence and one or more offences associated with it, was so serious that only such a sentence can be justified for the offence; or

(b) where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from him."

9. As originally enacted, section 1(2)(a) referred to ".....the offence, or the combination of the offence and one other offence associated with it....." (our emphasis).

Section 2(2) provides that

"The custodial sentence shall be --

(a) for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it; or

(b) where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender."

Section 31(2) provides that

".... an offence is associated with another if --

(a) the offender is convicted of it in the proceedings in which he is convicted of the other offence, or (although convicted of it in earlier proceedings) is sentenced for it at the same time as he is sentenced for that offence; or

(b) the offender admits the commission of it in the proceedings in which he is sentenced for the other offence and requests the court to take it into consideration in sentencing him for that offence".

10. It is clear that "the offence" in sections 1 and 2 means an offence to which an offender has pleaded guilty or of which (in a trial on indictment) he has been convicted by a jury. The offences of which account may be taken when considering custody or determining the length of sentence are here clearly defined. They do not include unindicted, unadmitted offences.

In forming its opinion under subsection (2) of sections 1 or 2 a court, by section 3(3),

"(a) shall take into account all such information about the circumstances of the offence or (as the case may be) of the offence and the offence or offences associated with it, (including any aggravating or mitigating factors) as is available to it; and

(b) in the case of any such opinion as is mentioned in paragraph (b) of that subsection, may take into account any information about the offender which is before it."

11. This subsection enables the court to take full account of any factors which aggravate or mitigate the offence or offences for which the offender falls to be sentenced, and account may be taken of acts done in the course of committing that offence or offences, even where such acts might have been separately charged; in the case of violent and sexual offenders account may be taken of the offender's personal history and background and any psychiatric evidence there may be about the offender's personality and propensities. We cannot, however, read section 3(3) as entitling the court to base its opinion on the commission of offences not forming part of the offence or offences for which the offender is to be sentenced and not themselves the subject of prosecution.
12. We conclude that the Court reached the correct conclusion in R v Clark, and to the extent that that decision is at variance with other authority it is in our judgment to be preferred.
13. Prosecuting authorities will wish, in the light of this decision and R v Clark, to include more counts in some indictments. We do not think this need be unduly burdensome or render the trial unmanageable. The indictment in R v Kidd provides a convenient example. It contained 18 counts alleging abuse of 8 different girls. Most of the counts related to a period of one or two calendar years, or in some cases part of a calendar year. The defendant was ultimately convicted of four counts only, and we do not of course question the jury's verdict; but had there been convictions on other counts there would in our judgment have been enough proof of the defendant's criminality to enable the court to pass an appropriate sentence even without treating the counts as samples or specimens.
14. Counsel for the appellant Kidd does, however, raise a more fundamental objection to the counts in this indictment. Taking count 1 as an example, we find that the particulars are that the defendant

".... on a day between the 1st January 1991 and the 31st December 1991 indecently assaulted ...."

15. The victim, giving evidence, testified that such assaults had happened frequently: hence the presentation of this as a sample count. It was argued that since the count was intended to cover numerous indecent assaults it offended against Rule 4(2) of the Indictment Rules 1971 which requires each offence to be the subject of a separate count. This is in our judgment a bad argument. The particulars refer to "a day". The judge directed the jury that they had to be satisfied that the defendant had indecently assaulted the victim once during the calendar year. While there could, if the evidence supported it, have been more counts covering different periods of the year, this was not how the indictment was drawn and the direction to the jury was correct. It was only in relation to sentence that the counts were treated as sample counts.

We turn now to the individual appellants.

Kidd

16. The appellant Kidd was convicted on 27 November 1996 at Derby Crown Court before His Honour Judge Morrison of four counts of indecent assault and was sentenced to 15 months' imprisonment on one count and to concurrent sentences of 12 months' on each of the other three counts. There were other similar counts on which verdicts of not guilty were returned and others upon which the jury could not agree and on which, on the prosecution's decision not to proceed further, verdicts of not guilty were entered on the direction of the trial judge. The appellant appeals by leave of the single judge against his conviction. His application for leave to appeal against sentence was referred by the single judge to the full court.
17. The appellant was headmaster of a primary school in Derbyshire at which the two girls whom he indecently assaulted were pupils. The assaults were not the most serious of their kind but nor were they the most minor. The appellant put his hand over the private parts of each of the girls over their clothing on a number of occasions when he was in the classroom with them.
18. Each of the counts was put forward as a specimen of a greater number of indecent assaults against the girls named in them. None of the counts linked the offence charged to a particular occasion and the jury were directed that if they were sure there was at least one indecent assault upon the girl named during the period stated in the count under consideration they should convict upon that count.
19. Mr Tedd QC argues on behalf of this appellant that because the two complainants said the assaults upon them occurred in the classroom, whereas a witness said she had seen such assaults occur at a different location, there may not have been unanimity among the jury. A verdict of guilty, it is said, could have meant that some of the jury were satisfied only about an incident in one location and that others were satisfied only about a similar incident in another location so that they would not have been agreed on the same incident. The answer to this is that particulars of the offences were given by the prosecution stipulating the location as the classroom and it is clear from the way the case was conducted that that was the location about which the jury must have been sure before they convicted. This ground is rejected.
20. Next it is complained that although the prosecution did not suggest to the jury that the evidence in relation to one complainant might assist them in considering the evidence of another but said, on the contrary, that the evidence of each complainant should be considered separately the judge in summing up treated the evidence of each of them as similar fact evidence in relation to each of the others. In fact he directed the jury that they had to be sure the touching complained of, if it occurred, was not innocent. He invited them to consider whether, if it had occurred, it would be stretching coincidence too far to regard it as innocent. He added that save for that one point the evidence of the complainants had to be considered separately. In our view this point about which complaint is made was an obvious one for the jury to consider and they were properly entitled to consider it. This ground also fails.
21. Finally, complaint is made that when the judge gave a majority direction he spoke about the way in which a jury can be helped to reach a decision when its members listen to and consider each other's views and the reasons given for those views and said also that the appellant was entitled to know what was the jury's judgment of the facts. It is complained that in saying these things the judge put pressure on the jury to reach a verdict and that this was contrary to the clear warning against this contained in R v Watson (1988) 87 Cr App R 1, [1988] QB 690, repeated in R v Buono (1992) 95 Cr App R 338. We quite fail to see that the words complained of could have led the jury to feel they were under any pressure to reach verdicts. Clearly they were not, because four hours later they had reached only some verdicts and said through their foreman that there was no real possibility of reaching verdicts in respect of the remaining counts if given further time. We reject this ground.
22. Having rejected the grounds of appeal which have been argued before us there is in our judgment no ground for calling into question the safety of the convictions of this appellant and his appeal against conviction is dismissed.
23. We turn to his application for leave to appeal against sentence. The judge treated the counts as specimen counts for the purpose of sentencing in the way many judges have done before but which we have held to be impermissible. We have to consider, therefore, whether a sentence of 15 months' imprisonment was manifestly excessive for just these four offences -- three against one girl and one against the other -- by this man who was in a position of trust and authority over them and who so grossly abused that position.
24. We bear in mind his previous good character and the very high regard in which he was held by those who knew him as a man and as a teacher. We bear in mind also the devastating effect upon him of the fact of conviction with the consequent loss of career and reputation. It is important, though, that there should be confidence in the sexual propriety of school teachers in relation to pupils in their charge. There was not here the mitigation of a plea of guilty. We are quite unable to say that a sentence of 15 months' imprisonment for these four offences, not viewed for the purpose of sentencing as specimen counts, was manifestly excessive and we refuse this application for leave.

Canavan

25. At Liverpool Crown on 7 February 1997 this appellant was convicted by the jury and sentenced by His Honour Judge Hamilton as follows: count 1 Damaging property 12 months' imprisonment; count 2 Intimidating a witness 2 years' imprisonment -- concurrently; count 3 Assault occasioning actual bodily harm 2 years' imprisonment -- concurrently; count 4 Assault occasioning actual bodily harm 2 years' imprisonment -- concurrently; count 5 Wounding with intent 5 years' imprisonment -- consecutively to the sentences imposed on counts 1 to 4. The total sentence was therefore 7 years' imprisonment. His application for leave to appeal against sentence was referred to the full court by the Registrar as the sentence on count 1 was unlawful: the maximum sentence was 3 months' imprisonment. We granted leave.
26. The victim of counts 2 and 3 was Harbans Bining. With his wife and two sons Surrinder and Sarbjeet, who were respectively the victims of counts 4 and 5, he ran two general stores in Liverpool. In March 1996 one of the stores was the subject of an armed robbery and the Binings were due to give evidence against the robber. From the date of the robbery the appellant was said to have visited the shop repeatedly seeking to discourage them from giving evidence and threatening to shoot them. Early in the morning of 15 September 1996, which was the date specified in all the counts of the indictment, the appellant went into the shop, shouted "Paki I am going to burn your shop down" and interfered with a display of bread and milk, doing £8 worth of damage. This gave rise to count 1. At lunchtime, as Mr Bining was leaving the shop in his van, the appellant opened his door, seized his jacket and shouted "you're not going to court are you?" He dragged Mr Bining from the van, spat in his face and punched him several times so that he sustained heavy bruising to the face, a cut ear and loose teeth. This gave rise to counts 2 and 3. Surrinder Bining saw what was happening and ran over. The appellant punched him in the face repeatedly and was joined by two other males who also punched him. He sustained cuts and bruising to the face. This gave rise to count 4. Sarbjeet Bining heard the commotion. He ran over and was punched by the appellant's friends who shouted racist abuse. The appellant bit off part of his left ear and, with the two others, ran off laughing. When he was arrested a few days later the appellant admitted spilling the milk but said this was because he had been short changed. He denied making any threats or racially abusing the Bining family. It was the Binings who had shouted abuse at him and punched him. He admitted biting one of them and punching Mr Bining. He said he had suffered a cut to the nose and a hairline fracture but was unable to point out any injury. He agreed that he knew the man charged with the robbery but denied that he had threatened the family not to give evidence.
27. The appellant is 25 and has previous convictions including two for assault occasioning actual bodily harm. He has not previously been imprisoned.
28. In passing sentence, the judge said he had formed a very unfavourable view of the appellant, whose behaviour was of the kind that caused people to give up business. He accepted, as the jury must have done, that the appellant had threatened the family on numerous occasions as part of a determined campaign to stop them testifying.
29. For the appellant, Mr Driver submits that, in addition to passing an unlawful sentence on count 1, the judge was not entitled, when imposing the 2 year sentence for intimidating a witness, to do so on the express basis that the appellant had repeatedly visited the premises over a period of time, sometimes more than once a day. In the light of the principles which we have earlier enunciated we accept that this submission is well founded. Accordingly, we shall quash the sentence of 2 years' and substitute for it a sentence of 12 months' imprisonment. The sentence of 12 months' on count 1 is likewise quashed and we substitute for it a sentence of 3 months' imprisonment. As the sentences imposed on counts 1 and 2 were ordered to run concurrently with the 2 year sentences imposed on counts 3 and 4, which were consecutive to the 5 years' imposed on count 5, the total sentence of 7 years' imprisonment remains unchanged. To the limited extent indicated this appeal is allowed.

Shaw

30. On 25 October 1996 at Derby Crown Court this appellant, who is now 73, was convicted of 8 counts of indecent assault and 1 of rape in relation to six victims. He was acquitted of one count of rape in respect of one of those six victims, namely [C]. In relation to three other victims he was acquitted of three other counts of indecent assault and verdicts of not guilty were entered in relation to two counts of gross indecency with a child and one of indecent assault on a male. By a combination of concurrent and consecutive sentences of 18 months' or 2 years' imprisonment Judge Appleby QC sentenced him to a total of 8 years' imprisonment for the offences of indecent assault. He passed a sentence of 12 years' concurrently for the offence of rape. The total sentence was therefore 12 years'. He appeals against sentence by leave of the single judge.
31. The offences of which he was convicted related to his daughter [P] (when she was 5 he placed his hands inside her knickers and when she was 10 or 11 he inserted a finger into her vagina), his niece [G] (into whose vagina he inserted a finger when she was 6 or 7), his niece [S] (into whose vagina when she was about 8 he inserted a finger when she was in the bath and subsequently when she was in his car and he gave her money), his niece [L] (whom he kissed and fondled beneath her clothing when she was 5), an unrelated girl (with whom he had intercourse for money when she was 14), and [C] (an unrelated 6 year old into whose vagina he inserted his finger). The victim of the rape was his niece [L] whom he took to a hotel when she was about 13. The offences in relation to [L] were properly presented as specimen counts, that of indecent assault reflecting a course of conduct over 10 years and that of rape reflecting intercourse on about seven occasions over a two to three year period from about the age of 11. This 16 count indictment shows that it is possible, without excessive overloading, to confer on the judge adequate sentencing powers by way of sample counts, even though as many as nine victims were said to be involved in different offences over a very long period.
32. Before he passed sentence, the judge's attention was drawn to Clark. In passing sentence he referred to the 34 years spanned by the offences of which the appellant had been convicted, during which he had abused these children. He referred to a number of aggravating features including the abuse of his position of responsibility, the fact that the children were very young, the pleas of not guilty and the possibility of damage to the children. In relation to the offence of rape he referred to the defence that the girl had been between 16 and 17 and had seduced him. Mr Warren QC submits, rightly, that the judge should not have referred to the pleas of not guilty as aggravating features. He submits that the sentence of 12 years' was too long for a single offence of rape in the light of the appellant's age and very poor state of health: he suffers from epilepsy, emphysema, back pain, prostate trouble, occasional confusion and cataracts so that he cannot read. Mr Warren referred us to the case of Francis C (1993) 14 Cr App R(S) 562. The appellant, a man of 79, appealed against a sentence of 8 years' imprisonment. He had been convicted of a series of very serious sexual offences including buggery and rape on more than one occasion against his five grandchildren, over a period of 15 years. The appellant suffered from some ill-health and had a disabled wife. Lord Taylor CJ said that, had the appellant been younger, a sentence in the region of 12 years' would have been appropriate and the sentence passed was "as great a reduction as these appalling circumstances could permit".
33. We are satisfied that, in passing the sentence which he did for the offence of rape, the learned judge properly and in accordance with Clark imposed a sentence for the single offence rather than for a number of such offences. Taking into account the circumstances of the offence and the appellant's pitiful medical condition, we take the view that the sentence of 12 years' was too long. Accordingly, it will be quashed and there will be substituted for it a sentence of 8 years', so that the total sentence to be served will be 8 years'. To that extent his appeal is allowed.
34. MR TEMPLE: My Lord, may I rise to make an application under the provisions of section 33(2) of the Criminal Appeal Act 1968, firstly to invite your Lordships to certify that a point of law of general public importance is involved as is set out in the question you pose in the first page of the transcript? My Lord, that seems to me, if I may say so, precisely to identify the point in issue and any further drafting by counsel would not be necessary. Secondly, if your Lordships were minded to certify, would your Lordships grant leave?
35. THE LORD CHIEF JUSTICE: Thank you. Does anybody wish to contribute to that?
36. MR TEDD: No, thank you, my Lord.
37. MR WARREN: No, thank you, my Lord.
38. THE LORD CHIEF JUSTICE: We shall certify in the terms set out on page 1 of the written text. We shall not grant leave for two reasons: first, we think it is better that their Lordships study the matter and make their own decision as to whether they wish to entertain an appeal; secondly (and this is a subordinate point), we are not sure you have anything to appeal against since you have succeeded. I appreciate that you do not welcome the statement of the law that we have made. We shall certify, but we shall refuse leave. Thank you very much.

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