England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WINCHESTER CROWN COURT
His Honour Judge Robert Pryor QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st January 2004

Lord Justice Rix:

1. On 19 June 2002 in the Crown Court at Winchester before HH Judge Robert Pryor QC and a jury the appellant, Christopher John Mintern, was convicted on two counts of conspiracy and a further count of attempting to damage property being reckless as to whether life would be endangered. On 12 July 2000 he was sentenced to a total of ten years imprisonment. The three counts were count 3, conspiracy to commit burglary, for which he was sentenced to six years, count 4, conspiracy to commit arson, for which he was given a consecutive sentence of 4 years, and count 5, attempting to damage property, for which he was given a concurrent sentence of four years. Mintern appealed against conviction with the leave of the single judge. On 5 December 2003 we heard his appeal and dismissed it, but reserved our reasons which are now contained in this judgment.
2. Mintern was indicted with ten other co-defendants on an indictment which had originally contained 17 counts. By the time the indictment reached the jury the counts had been reduced to seven and had been re-numbered. Counts 3, 4 and 5 had originally been numbered 4, 5 and 7.
3. Count 3 alleged that in the fifteen or so months between 13 January 2000 and 25 April 2001 Mintern and five co-accused had conspired together and with other persons unknown to enter buildings as a trespasser with intent to steal. The five co-accused were Danny Stevens, Joseph Smith, Paula Hinckley, David Clothier and Richard King. Stevens was found not guilty by the direction of the judge following a submission of no case to answer at half-time. Hinckley, who was Mintern's girl-friend, was acquitted. Smith, as well as Mintern, was convicted. King pleaded guilty to a further conspiracy on count 8 and no evidence was offered against him on count 4. Clothier was also acquitted, the Crown offering no evidence against him but accepting a plea to offences of going equipped.
4. Count 4 alleged that in the same fifteen month period Mintern had conspired with Stevens, Smith and Hinckley and with other persons unknown to destroy or damage by fire motor vehicles belonging to others. Stevens and Hinckley were both found not guilty by the direction of the judge following a submission of no case to answer. Count 5 related to a substantive offence arising out of a police car chase on 10 October 2000.
5. Stevens was a major criminal who had already received a life sentence at an earlier trial. He was also indicted at this trial, in addition to counts 3 and 4 (the 2000 conspiracies) on which he was acquitted, on two further conspiracies to burgle and steal, one relating to dates in 1999 (the 1999 conspiracy) and one relating to later dates in 2001 (the 2001 conspiracy). To these he pleaded guilty by a change of plea at trial, and was sentenced to a total of 8½ years imprisonment. The trial was opened by the Crown on the basis that Stevens was a key player who lived on a caravan site which provided the metaphoric and geographic hub of the offences.

The prosecution case

6. We can take the relevant factual background to this appeal in large part from the advice and perfected grounds drawn up by Mr Keith Hadrill, who appeared for Mintern at trial and again on this appeal.
7. The two conspiracy counts alleged against Mintern were based around "ram-raid" burglaries which involved the use of stolen vehicles, often of the Range Rover 4x4 type, to ram the windows of commercial premises and to dislodge and make off with automatic telling machines (ATMs). The stolen ATM would then be moved to another location, either using the same 4x4 or another stolen vehicle, and the ATM would be cut open to get at the cash inside. The stolen vehicles would then often be set on fire and burned out, sometimes leaving the ATM inside or nearby. This was done to destroy evidence and founded the arson conspiracy. These operations occurred in Hampshire, Surrey and Berkshire.
8. Count 5 related to a specific incident on 10 October 2000 when the police chased a stolen Mercedes estate containing three people wearing balaclavas. During the chase, the police car was rammed by the Mercedes operating in reverse in an attempt to disable the pursuing vehicle. Items such as sledgehammers, bolt croppers and a disc cutter were thrown out of the back of the Mercedes for the same purpose. The Mercedes was pursued down a track in Bracknell Forest and crashed. Its occupants fled. Mintern was found by a dog-tracker close by the abandoned Mercedes and there was a balaclava lying on the ground near where he was arrested. He was wearing mesh-type gardening gloves.
9. The particulars of the counts 3 and 4 conspiracies given on the indictment merely alleged that the co-accused

"between the 13^th day of January 2000 and the 25^th day of April 2001 conspired together and with other persons unknown"

respectively to burgle and to damage or destroy by fire vehicles belonging to others. However, at the outset of the trial the prosecution placed before the jury a schedule (the "original schedule") which itemised the events which were said to form the particulars of the conspiracy counts. Items 5/25 on that schedule related to the two counts which made up the 2000 conspiracies. There were 21 such items the earliest of which was dated to 13 March 2000 and the last of which was dated to 9 March 2001. All 21 items involved burglaries or attempted burglaries, and a smaller number involved arson to vehicles involved in the burglaries.

10. As for Mintern's involvement in the conspiracies, the prosecution sought to prove that in particular by evidence falling under six main heads: a footprint, a jacket, a cigarette butt, a trip to New Milton, the Mercedes car chase, and association with two other vehicles, F223 KHO and G900 XFH.
11. The footprint: A ram-raid occurred on 24 March 2000 at Southsea and an ATM was stolen. A Subaru bearing foreign number plates was seen driving away with its boot open and a bulky item in the back. A Subaru Impreza and an ATM were later found burned out in Bramshill Forest near Camberley. A shoe later seized from Mintern's home in Camberley on 14 April 2000 was found to have the same tread pattern as a print lifted from the crime scene.
12. The jacket: A ram-raid took place at the HSBC branch in Wokingham on 5 April 2000. CCTV evidence showed one of the participants wearing a dark jacket with silver or white stripes down the sleeves. A jacket similar in appearance was later found at Mintern's home on 14 April 2000. There was no forensic scientific link between the jacket and the crime.
13. The cigarette butt: On 28 June 2000 police officers lay in wait at a shop called Supermacs at Horndean Road, Bracknell. A ram-raid took place involving four vehicles and five people. One of the vehicles was a dark Mondeo, S747 MBK, which was detained at the scene. Four men were arrested, including a nephew of Hinkley, one Danny Coombes. The fifth man escaped in a stolen Shogun, but the description given for him did not fit Mintern. This Mondeo was alleged to have been used in two previous ram-raids (in May or June). The contents of its ashtray were analysed, and Mintern's DNA was found on one cigarette butt and Hinkley's on two other butts.
14. The New Milton trip: Police surveillance at the home of Hinckley revealed that Mintern and others drove from there to New Milton in the New Forest on the evenings of 15 and again 17 August 2000. The car used on 15 August belonged to Hinckley and that used on 17 August belonged to Mintern. There was an attempted burglary on a store in New Milton on 31 August. The earlier trips were said to be by way of reconnoitre.
15. The Mercedes car chase: We have already described this above. It occurred on 10 October 2000.
16. Vehicles F223 KHO and G900 XFH: On 16 November 2000 F223 KHO, a Vauxhall Cavalier, was observed on Hinckley's driveway, a few days after a ram-raid burglary at King and Sons in Sandhurst. The car was forensically linked to the burglary because fibres from it as well as glass from the burgled premises were both linked to the co-defendant Smith. On 29 November 2000 G900 XFH, a Vauxhall Belmont, was involved in a road traffic accident near Crowthorne in Berkshire. In a carpark close to the accident was a Citroen AX, which had been stolen only two hours before the accident and was on fire. Two weeks earlier the Vauxhall Belmont had been observed both outside Mintern's home address and also outside Smith's home. Indeed, Smith had a key to it. It was alleged that the Citroen was part of the conspiracy to commit arson and that the Belmont was to enable the conspirators to leave the area.

The applications at the close of the prosecution case

17. At the close of the prosecution case counsel on behalf of Stevens made a submission of no case to answer on the conspiracy counts 3 and 4 on the basis that there was nothing to link him to the co-accused. The judge ruled in favour of that submission, saying that the evidence revealed more than one set of conspirators. The Crown responded with an application to amend the indictment to include two separate pairs of counts to cover the 2000 conspiracies: one pair against Mintern, Smith and Hinckley and persons unknown and another pair of counts against Stevens and persons unknown.
18. The judge considered and rejected the prosecution's application to amend the indictment so as to split the allegations of conspiracy as against Stevens and as against the other three co-defendants respectively. He was satisfied that there would have been no technical difficulty with an original indictment in that form, but that it would not be fair to the defendants as a whole to permit such an amendment at the close of the prosecution case, on the basis of their counsel's assertion ("without it appearing quite unsupportable") that that would have affected the way in which they would have conducted their case.
19. Mr Hadrill, on behalf of Mintern, for his part submitted that if the original conspiracies charged were now each to be seen as potentially covering two conspiracies, then the indictment was bad for duplicity and Mintern should also be acquitted on counts 3 and 4.
20. The judge rejected that application. He said:

"I concentrate on those two particular counts because they are the ones which have led to the decision I made earlier today to conclude that there was no evidence to go before a jury to establish that Danny Stevens was part of either of the conspiracies alleged…But what emerged was that whatever evidence there might be as to Danny Stevens' activities, there was nothing of any significance which could be placed before the jury to tie him in with the activities of the other three alleged conspirators…

In effect, what one is left with is evidence which does not establish the existence of a single conspiracy in which Danny [Stevens] can be shown to have been involved. If it establishes conspiracy, it establishes two conspiracies (or possibly more) but at least two….

I should go on from there to consider where that leaves the other three defendants, because it has been forcefully argued by Mr Hadrill on behalf of Christopher Mintern that if I direct the acquittal of one defendant to that conspiracy I really in logic should direct the acquittal of all of them on the basis that the conspiracy that the prosecution set out to prove has not been proved and therefore the case should not go on against the other three defendants. I do not accept that argument. I think that the effect of my order is to say that the evidence does not prove that Danny Stevens was involved with a conspiracy with the other three. It does not follow that the other three were not themselves involved in a conspiracy to carry out burglaries."

21. The judge then referred to R v. Griffiths [1965] 49 Cr App R 275, [1966] 1 QB 589 and R v. Greenfield [1973] 57 Cr App R 847, [1973] 1 WLR 1151 and found that the following dictum from the latter authority met the prima facie facts of the case as they had been revealed so far, where Lawton LJ had said (at 857):

"At the end of the prosecution's case the evidence may be as consistent with the accused, or some of them, having been members of the conspiracy which was not the one charged as with the one charged. In such a situation the trial judge should rule that there is no case to answer. But if at the end of the prosecution's case there is evidence on which, if uncontradicted, a reasonably minded jury could convict the accused, or two or more of them, of the conspiracy charged (despite evidence of the existence of another conspiracy) then the trial judge should let the case go to the jury."

22. The judge next considered Mr Hadrill's alternative submission on behalf of Mintern that to continue against the background of all the evidence which the prosecution had led would be unfair to Mintern and place him at some disadvantage: but the judge did not accept that submission. He said:

"The evidence remains the same. All it does is fail to prove the case of conspiracy against Danny Stevens. Its failure lies in failing to tie him into an agreement, not in failing to adduce evidence which might lead to the conclusion that he has been involved in ramraiding."

23. The judge also accepted an application on behalf of Hinckley of no case to answer on count 4, which was not resisted by the prosecution. Mr Hadrill in his written submissions described this as an "unexpected success". As a result, a similar application was made on behalf of Mintern, but this was opposed by the prosecution and failed.

The grounds of appeal

24. In these circumstances Mintern has essentially three grounds of appeal. The first and second arise out of Stevens' acquittal at half time on counts 3 and 4, the third out of Hinckley's acquittal at half time on count 4. The first is that when the prosecution evidence disclosed two pairs of conspiracies, one pair involving Stevens and the other pair not involving him, the judge erred in not directing an acquittal in respect of all the defendants on the ground that the counts charged against them were duplicitous. The second is that the judge erred in any event in not discharging the jury but allowing the case to continue against the defendants other than Stevens in circumstances where he had ruled that it would have been unfair to amend the indictment as requested by the prosecution. It is said that that unfairness embraced count 5 as well. The third ground is that the judge erred in not acceding to the parallel application on behalf of Mintern to find no case to answer on count 4, since the evidence against Hinckley was effectively the same as against him.

The consequences of the judge's rulings

25. The judge took care to inform the jury, when they returned to court, about the results of the submissions that he had been hearing at half time in their absence. He told them:

"So the conclusion that I have arrived at is that it is right for you to consider all the evidence that exists to see whether there is an agreement at all on both counts 3 and 4 and, if so, whether any of the defendants alleged was involved in it. But I am directing you now that on the evidence that exists at the moment the prosecution has not proved that Danny Stevens, whatever else he may have done, was not – the prosecution has not proved that he was involved in any agreement with the others."

26. The prosecution immediately set about amending the schedule of itemised events which were said to make up the subject matter of the conspiracies on counts 3 and 4 (the "amended schedule"). There were now only 10 robberies or attempted robberies, between 24 March and 23 November 2000, together with their associated car burnings. The prosecution made it clear that they were confining the evidence on which they relied to the items scheduled in the amended schedule. That the schedule would have to be amended was recognised at the time of the submissions which had led to the judge's rulings.
27. In due course in his summing up, about which no criticism is made, the judge emphasised the need, before convicting any of the three co-defendants remaining in respect of counts 3 or 4, to find a single conspiracy to which each was linked; and he also emphasised the restricted case the prosecution was now making under those counts. Thus he said (at pages 20/21 of the transcript):

"Finally on this, it is important to remember this. That where, as in counts 3 and 4 in this indictment particularly, you have an allegation that the defendants took part in a conspiracy over a long period, it is important to remember that the prosecution must prove a single conspiracy. That is what has been charged and that is what the prosecution must prove. You have been told that more than once.

So if you have two alleged conspirators, A and B, and there is no evidence to link them into the same conspiracy, they cannot be convicted of conspiring together in that conspiracy. Whatever evidence there may be against each of them individually, they still cannot be convicted of conspiring unless they are linked together in the way I have indicated. That is why I directed you at the end of the prosecution's case to acquit Danny Stevens. I concluded as a matter of law that there was not enough evidence of the link between him and the others to enable you to convict him as being involved in a single conspiracy with them. When a judge reaches a conclusion of that kind, it is his duty to direct the jury to acquit the defendant in question…It remains for you to consider whether the remaining defendants, or any of them, conspired together or with others in a single conspiracy. What the prosecution seeks to prove under counts 3 and 4 is that there was a longstanding agreement to carry out ram raids as and when the opportunity arose, and that each of the three defendants under count 3 and the two defendants charged under count 4 played some part in the course of conduct which had been agreed."

28. He went on, in dealing with the evidence, to address the jury solely by reference to the amended schedule, to which he referred in terms (at p 48 of the transcript).

The first ground: duplicity

29. On behalf of Mintern, Mr Hadrill submitted that counts 3 and 4 were duplicitous, or charged what he described as "rolled-up" conspiracies. In effect he argued that when the judge found that the prosecution's evidence under counts 3 and 4 prima facie revealed two separate (pairs of) conspiracies, the duplicitous form of the indictment was revealed. It then became impossible to know whether the counts charged a conspiracy or conspiracies against Stevens (with persons unknown but not the other three accused, Mintern, Smith and Hinckley) or a separate conspiracy or conspiracies against Mintern, Smith and Hinckley (and persons unknown but not Stevens). Who was to say that the indictment charged the conspiracies which remained in the charge of the jury, as distinct from the conspiracies which, of the original accused, only involved Stevens? After all, the prosecution's schedule which had begun by particularising 21 events between March 2000 and March 2001 became an amended schedule particularising only 10 events between March and November 2000. It was submitted that the evidence revealed that the counts had charged duplicitous pairs of conspiracies, that it was impossible to say that the conspiracies which remained in the charge of the jury were the conspiracies alleged in the indictment, and that in effect the prosecution had achieved an amendment of the indictment by restricting it to only part of what the prosecution had earlier presented to the jury as demonstrating the conspiracies alleged.
30. On behalf of the Crown, however, Mr Stephen Parish submitted that duplicity was a pure matter of form, the indictment was not duplicitous in form and it did not matter that the evidence had revealed more than one conspiracy or that there was no evidence to link Stevens into a conspiracy involving the other three. Thus the conspiracies of which Mintern had been convicted were the conspiracies charged in the indictment even if some of the incidents previously relied on were abandoned half-way through the trial. Essentially all that had happened was that it had been determined at the half-way stage that one of the four alleged conspirators had not been party to the conspiracies charged.
31. Both counsel submitted that Griffiths and Greenfield supported their respective cases. We therefore turn to those authorities.
32. The usual point for which Griffiths is cited is that the practice of adding a "rolled up" conspiracy count to a number of counts charging substantive offences should be discontinued (at 288/9). It is in this sense that one speaks of a conspiracy count as "rolling up" a number of substantive counts, whether charged or not charged. The prosecution was castigated as overburdening the jury. The case is also authority for the proposition that a "wheel conspiracy", where each conspirator is alleged to conspire with a central conspirator but not with the other named conspirators, is unknown to the law. A number of farmers had been accused of conspiring to defraud the government in the matter of lime subsidy. Each, however, had acted independently of the other farmers, although they had all bought from the same supplier. The farmers' convictions were therefore quashed. The judgment of Paull J went on to consider nevertheless whether the convictions of the two central characters could stand, but it was held that they could not, on the ground that the judge's summing-up had been defective and their convictions were therefore unsafe. Nothing was said about a duplicitous indictment. The judgment ended as follows (at 296/7):

"The fundamental mistake was even to attempt to try the matter as one case. In addition the learned judge was certainly not helped either by the somewhat confused way in which the case was developed for the prosecution by way of submissions, nor by the fact that no counsel for the defence even suggested that the conspiracy charge could not stand on the evidence presented by the prosecution, nor suggested that, in fairness to the accused, the case should not be tried as one conglomerate whole. The fact, however, is that the trial of this case and the summing-up are so unsatisfactory that none of the verdicts can possibly stand. The case started as a fraud by under-delivery of lime. When the whole of the prosecution evidence had been tested on this basis, the case began to change to lime for the cost of the subsidy. It was then seen that this would not do, at least in many of the cases, and the case then changed to a case of the parties exaggerating the value of the goods taken in exchange. Not only were the precise charges which finally remained never explained to the jury, but, as was pointed out by Lord Goddard C.J. in the case of ABBOTT (1955) 39 Cr.App.R. 141, at p. 151; [1955] 2 Q.B. 497, at p.506: "It cannot be right for a judge to leave a case to the jury where the whole structure upon which the prosecution has been built up to that moment collapses and falls, for that is what happened in this case.""

33. That passage was relied upon by Mr Hadrill, but in our judgment any relevance it has is primarily or exclusively to the second ground of appeal.
34. In Greenfield the defendants had been charged inter alia with conspiracy to cause explosions. A ground of appeal was that that conspiracy count was bad in law. The prosecution sought to prove the conspiracy by calling evidence about 25 explosions or attempted explosions within the 3½ year period of the conspiracy alleged. A schedule was prepared. In the course of the trial the prosecution, while maintaining their original case that all 25 incidents were the responsibility of the same persons, also developed an alternative case viz that at least half of those incidents were "and that all the accused had conspired to effect those incidents" (at 853). Lawton LJ explained the matter as follows (at 855):

"Mr Lowry submitted that count 1 was bad in law because, as the trial progressed, the evidence was consistent with the existence of more than one conspiracy. In our judgment that did not make the count bad in law. A conspiracy count is bad in law if it charges the accused with having been members of two or more conspiracies. This is elementary law. We have had to consider whether count 1 did charge more than one conspiracy. It referred to one conspiracy only…Mr Matthew's opening made clear that the prosecution was alleging that there was only one conspiracy which all the accused had joined. We mention this incident because judges may be in doubt as to what they should consider before deciding whether a conspiracy count is bad for duplicity. They should look first to the count itself. In most cases it will be unnecessary to look at any other material. If particulars of the count have been requested and given, these too should be considered…

Duplicity in a count is a matter of form; it is not a matter relating to the evidence called in support of the count..."

35. Lawton LJ then went on to give two examples of counts which were bad for duplicity. One was in R v. West [1948] 32 Cr App R 152, [1948] 1 KB 709, where the count alleged conspiracy to infringe Defence Regulations which had changed over the course of time: it followed necessarily that such a conspiracy could not have been formed all at one time. The other example given was R v. Davey [1960] 45 Cr App R 11, [1960] 1 WLR 1287: the 11 year conspiracy there alleged to defraud certain companies again could not have been formed all at one time, for some companies had not been incorporated and some had already been wound up at times when some of the alleged conspirators had not been said to have joined it. In contrast to these two cases Lawton LJ cited Griffiths as an example where the conspiracy alleged had not been duplicitous (at 856):

"…the conspiracy count alleged one conspiracy and was not bad for duplicity; but the evidence led to support that count wholly failed to prove the conspiracy charged. Instead of proving that the accused had all conspired together for a common purpose, it proved that many of them had conspired with one of their number for their own purposes. No such common purpose as charged was ever established and so, as a matter of proof, there had to be an acquittal."

36. Lawton LJ then returned to the case before him (at 856/7):

"In our judgment, the distinction which exists between form and proof is the clue to the problem provided by this case. The prosecution was alleging that these appellants and the other accused had had a common purpose to cause explosions. All the accused in their several ways challenged this basic allegation of a common purpose; and they did so by alleging that the evidence revealed the possibility that those charged may have had in relation to some of the incidents purposes which were not common at all. What they were doing was challenging the existence of the conspiracy as charged, which is but a way of saying that they were denying that the prosecution had proved their case. A charge which is not bad for duplicity when the trial starts does not become bad in law because evidence is led which is consistent with one or more of the accused being a member of a conspiracy other than the one charged. Such evidence may make it impossible for the prosecution to establish the existence of the conspiracy charged. GRIFFITHS (supra) was such a case. At the end of the prosecution's case the evidence may be as consistent with the accused, or some of them, having been members of a conspiracy which was not the one charged as with the one charged. In such a situation the trial judge should rule that there is no case to answer. But if at the end of the prosecution's case there is evidence on which, if uncontradicted, a reasonably minded jury could convict the accused, or two or more of them, of the conspiracy charged despite evidence of the existence of another conspiracy, then the trial judge should let the case go to the jury.

"That was happened in this case. James J. allowed the case to go to the jury and directed them in the clearest terms that before convicting anyone they had to be sure that the prosecution had proved the existence of the conspiracy charged. Thus at the outset of his summing-up he said this: "Remember this, the longer a conspiracy is alleged to have lasted, the more important it is that one should look with care, to make sure it is one and the same agreement that is being alleged and not a different number of agreements within that one period. The Crown say here that there was one and the same throughout." This direction was repeated over and over again during the long summing-up which this lengthy trial made necessary. In our judgment the conspiracy count was not bad in law and the direction to the jury on it was correct."

37. Mr Hadrill submitted that in this case the judge's acceptance that the evidence prima facie demonstrated two separate pairs of conspiracies to only one of which the accused other than Stevens might belong caused a situation which went beyond what Lawton LJ was contemplating in Greenfield. It is true that in that case the alternative cases presented by the prosecution remained only that, cases for the jury to consider. Even so, for that very reason the matters there presented went beyond the present, because they permitted the possibility that the incidents which did not form part of the alternative case were caused by an alternative conspiracy. In the present case the judge's ruling and the prosecution's reaction to it, the amendment of their schedule, ensured that what was presented to the jury was a single conspiracy only, embracing part of the original incidents scheduled (as in Greenfield), to which all the accused still left in to answer counts 3 and 4 were alleged to be party. Moreover, the essential distinction drawn by Lawton LJ, between a count which is duplicitous in form and one which merely turns out to be so when the evidence is in, as he put it "despite evidence of another conspiracy", entirely supports the lawfulness of the present counts 3 and 4. Mr Hadrill does not submit that those counts were duplicitous in form. While we think that the distinction between conspiracies which are duplicitous in form and those which are not may in certain cases be difficult to draw, as will often arise with a formal test, we were not asked to consider further the cases of West and Davey cited by Lawton LJ, and the possibility that counts 3 and 4 could be interpreted as being duplicitous in form was in any event not contended for.
38. In our judgment, the true ground on which the conduct of the trial and its convictions are to be challenged, if at all, is the second ground which raises the question of the fairness of the proceedings when once it had emerged that the evidence presented to the jury and the incidents scheduled by the prosecution did indeed cover two separate (pairs of) conspiracies. This is we think indicated by those passages in both Griffiths and Greenfield in which the fairness of the proceedings and of the judge's directions was considered. It is also indicated by the cases referred to in a separate passage in Archbold, 2004 ed, at para 7-78 (cf para 1-135 where Griffiths and Greenfield are discussed), to which the court drew attention but which otherwise were not cited.
39. Thus in R v. Thompson [1914] 2 KB 99 an objection taken at trial that a count was duplicitous was dismissed and a conviction was obtained, but on appeal although it was held that the indictment had indeed been duplicitous in that it had charged more than one offence in each count nevertheless the conviction was upheld under the proviso. That case concerned incest. Sir Rufus Isaacs CJ, giving the judgment of a five judge court of criminal appeal, said (at 104/5):

"If we had thought that any embarrassment or prejudice had been caused to the appellant by the presentment of the indictment in this form we should have felt bound to quash the conviction whatever our views might be as to the merits of the case. It must not be thought that we are deciding that such objections should not be allowed to prevail either at the trial or in this Court. An indictment so framed might undoubtedly hamper the defence, and if it did we should undoubtedly give effect to the objection…One of the objects of section 4 [the proviso] was to prevent the quashing of a conviction upon a mere technicality which had caused no embarrassment or prejudice."

40. In R v. Wilmot [1934] 24 Cr App R 63, on the other hand, a duplicitous indictment in a driving case led to the quashing of a conviction without more ado and even though the point had not been taken at trial. It was indicated that the vice of duplicity was that the defendant cannot know with precision with what he is charged and of what he is convicted and may be prevented on a future occasion from pleading autrefois acquit. In R v. Jones [1974] 59 Cr App R 120 one of the counts charged several incidents of affray in a single duplicitous count. The point had been taken even before arraignment and the conviction was quashed: James LJ said (at 128):

"If satisfied that no injustice would have been caused, [the judge] should have directed an amendment of the indictment. Alternatively he should have put the Crown to election as to the affray in respect of which the Crown would proceed. He did not do so. In those circumstances there was an error of law."

41. Coming to modern times, R v. Levantiz [1999] 1 Cr App R 465 reviewed these and many other cases. The appellant had been convicted on a count of supplying heroin which this court assumed for the sake of argument had duplicitously combined a series of separate supplies. Buxton LJ pointed out that Thompson "is an authority of this Court that has stood for more than 80 years and has been followed on a number of occasions" of which he gave examples (at 475). He then turned to cases such as Wilmot and Jones which had been relied on for the submission that a duplicitous indictment could not lawfully lead to a conviction or one that could be sustained as safe and demonstrated that they did not support such a conclusion contrary to the authority of Thompson. He also concluded that no injustice or handicap had been done to the appellant there, whose conviction was upheld despite the assumption of duplicity made in his favour.
42. Mr Hadrill did not dispute this principle, recorded in Archbold in the passage just cited, but sought to show in his second ground that Mintern had suffered an injustice. We mention the principle here for it seems to us to support the distinction drawn by Lawton LJ between initial formal duplicity and the development of evidence at trial. If an indictment is formally defective because duplicitous, that should be identified and rectified for all the reasons (referred to above in Wilmot) why duplicitous counts may cause difficulties at trial and thereafter. If, however, an indictment is not duplicitous but evidence reveals that where one offence had been thought to have been charged there had emerged more than one or the possibility of more than one, then special precautions may need to be taken to ensure that the difficulties of duplicity are avoided. There was no duplicity in Griffiths, but the case as it developed at trial ran into the gravest difficulties which were never overcome, if indeed they were not insuperable. There was no duplicity in Greenfield, but the emerging problems at trial were addressed by what this court regarded as suitable directions. In other cases, like Thompson and Levantiz, there was duplicity, real or assumed, but there was on the facts no embarrassment or prejudice at trial, and convictions were upheld. A trial should not begin with a legally defective indictment, but in all cases it is the substance of the quest for fairness and not the mere form that is important. The question is how these considerations affect the present appeal, and we therefore turn to Mr Hadrill's second ground.

The second ground: unfairness

43. Mr Hadrill's submission under this ground is that the question of fairness had really been answered by the judge's own decision that it would have been unfair to have permitted the prosecution to amend the indictment to introduce a new pair of counts against Stevens and thus formally to separate him and the other accused on counts 3 and 4. He submitted that the judge should have permitted the amendments requested and then, on the basis of his finding of unfairness, discharged the jury so that separate re-trials could be conducted. As it was, the three defendants including Mintern left in on counts 3 and 4 were prejudiced.
44. Our difficulty, however, is in understanding how the three defendants were in fact or could in theory have been prejudiced or embarrassed, and nothing that Mr Hadrill said made this matter clearer. It seemed that his main complaint was that Stevens, who on his own admission in an intercepted conversation which had been put before the jury by the Crown was the biggest burglar in that region, had been acquitted of the 2000 conspiracies, while the three other defendants remained on trial. Thus the submission made was that in fairness if one defendant was successful at half-time, then all should have been. On an altogether contrary tack, reliance was placed on evidence subsequently introduced by Stevens (through the relevant investigating police officer) of a further 65 ram-raids carried out in the same area over the same time-scale, of which he said he was innocent: it was suggested that this could have thrown suspicion on the co-defendants and complaint was made that the prosecution could well have re-examined the police officer to show that such cases could be traced to Stevens through either relatives or other associates of his.
45. However, we are wholly satisfied that there was no unfairness to Mintern or his remaining co-defendants on counts 3 and 4. As was submitted on behalf of the Crown, we consider that if anything Mintern was assisted by the establishment in evidence led by the Crown that Stevens, with other persons unknown – for it was plain that ram-raiding could not be carried out by one person – but not the co-defendants, was implicated in incidents which had been originally scheduled against the accused but had now been dropped from the Crown's amended schedule. In other words, ram-raids were not so unusual that any evidence linking Mintern to one such raid would necessarily link him to other raids too. The co-defendants were in a position to place any and all raids still blamed on them at the door of Stevens and his gang. In the meantime the Crown accepted, by the amendment of their schedule, that Mintern had nothing to do with the raids now omitted from the amended schedule. As for the judge's ruling against an amended indictment, it seems to us that his predominant concern was of any unfairness to Stevens, who was otherwise entitled to an acquittal on these counts. In any event, the judge had to decide in the balance of his discretion whether in the absence of an amendment to charge Stevens with two new counts of conspiracy it would be right to discharge the jury in respect of the existing counts against the other three defendants, once the prosecution schedule had itself been amended. We do not think that he can be shown to have erred in the exercise of that discretion.
46. Finally, we have in mind the judge's clear and helpful comments and directions to the jury both at the time of explaining what he had done in directing acquittals on counts 3 and 4 in favour of Stevens and in his later summing-up. At the end of the day, the case made against Mintern and his two remaining co-defendants was a limited and restricted one in circumstances where the Crown had to accept that other ram-raids were being carried out pursuant to other conspiracies not involving them: and the jury were so directed.
47. As for count 5, whatever ramifications it had for the other counts, the evidence against Mintern there was extremely strong and seems to us to be wholly unconnected with the arguments raised on the other counts.
48. We therefore found that Mintern's second ground failed as well.

The third ground: Hinckley's acquittal on count 4

49. We think that there is no substance in this ground. In effect, Mr Hadrill's submission is that the evidence against Hinckley and Mintern on count 4 was essentially the same, so that if a submission of no case to answer was accepted on Hinckley's behalf, it should have borne fruit for Mintern as well. We do not agree. The judge was entitled to think that the evidence against Mintern went beyond that against Hinckley; and in any event, if Hinckley was lucky in having the Crown not oppose the submission in her case, that says nothing for the situation where Mintern is concerned. A submission was only made in Mintern's case when Hinckley's was accepted. That is consistent with our way of looking at the matter. In our judgment there was ample evidence in Mintern's case to justify the judge's decision to refuse to direct his acquittal on count 4 at half time.

Conclusion

50. It follows that we reject all three grounds for the reasons given above. In the circumstances Mintern's appeal was dismissed.