England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CANTERBURY CROWN COURT
HIS HONOUR JUDGE VAN DER BIJL
T20050041

		Royal Courts of Justice Strand, London, WC2A 2LL
		24 May 2007

Lord Justice Thomas :

1. After a two month trial, the appellant and his wife were convicted at the Crown Court at Canterbury before HH Van Der Bijl and a jury of various offences (including obtaining property by deception, forgery and facilitating illegal entry) relating to the illegal entry into the United Kingdom of Romanian immigrants. Sentences of varying duration, some of them consecutive, amounting in total to seven years were passed on the appellant.
2. His application for leave to appeal against conviction, as originally formulated, contained a very significant number of grounds. That application was referred to the Full Court on the understanding that, if leave to appeal was granted, a full hearing would follow; we granted leave to appeal. The grounds of appeal were significantly revised and can be grouped under three headings

i) The admissibility of misconduct on other occasions and the directions given in the summing up in the light of the bad character provisions of the Criminal Justice Act 2003 (CJA 2003).

ii) The need for a direction on unanimity on the forgery counts.

iii) The validity of count 12 - the charge of facilitating illegal entry.

The most important of these, both to the appellant and generally, was the first.

3. As can be appreciated from the length of the trial, the circumstances in which the offences were committed and the evidence adduced by the prosecution were complex.

The factual background and evidence

4. However for the purposes of the appeal we consider the background circumstances can be summarised briefly.

i) The appellant was a Romanian national. He came to the United Kingdom in August 1993; after marriage to a British national, he was granted indefinite leave to remain in this country. That marriage was dissolved. On 13 June 2002 he married his co-defendant; prior to the marriage, using the name of Denise Dupont, she had lived with him in the United Kingdom at 9a Chancelot Road, Abbey Wood, London from November 2000 until June 2003. From June 2003 the appellant and his co-defendant lived at 85 Chandlers Drive, Erith and then at 33 Wallhouse Road, Erith.

ii) In September 2002 the appellant obtained from a bureau in London, by payment of £440, what purported to be a degree of Bachelor of Laws with Honours in Criminal Law granted by Trinity College, Delaware, USA. He was granted British citizenship in May 2003.

iii) It was the prosecution case that he had become involved by December 2002 in illegal immigration and was posing as a solicitor. On his arrest there was found in his possession business cards with the inscription of the appellant's name, and "LLb(Hons), solicitor, of Tiko Solicitors, 24 Hr. Criminal Emergency Services" with an address in Dartford. There were no such solicitors.

5. He was not charged with conspiracy, but with a number of specific counts in the indictment. The essence of the main allegations can again be summarised briefly.

i) In count 1 of the indictment, he was charged, with his second wife, of making, or procuring the making, of a false French identification card in the name of Denise Dupont. The evidence relied on for this was the discovery by the police when searching the premises at 85 Chandlers Drive of a document purporting to be a French identify card in the name of Denise Dupont; when it was forensically examined, it was found to be counterfeit. The prosecution case was that Denise Dupont was the appellant's wife and that the appellant made or procured the making of the false identity card. There was no issue that it was counterfeit; the issue was whether there was a Denise Dupont or whether the person for whom the card was to be used was the appellant's wife and who procured or made the false identity card.

ii) In counts 8-12 of the indictment the appellant was charged with a number of offences in relation to Monica Halarescu;

a) Obtaining two sums of £3,500 from her by deception.

b) Making or procuring the making of a false British passport in the name of Monica Halarescu;

c) Making or procuring the making of a forged certificate of British naturalisation in the name of Monica Halarescu (Counts 10 and 11);

d) Facilitating the illegal entry of Monica Halarescu (Count 12).

It was the prosecution case that he had falsely represented to her that he was a qualified solicitor, worked for the Home Office, was authorised to facilitate her application for a certificate of British nationality and a British passport, could supply such documents and was acting in good faith. The prosecution called Monica Halarescu and Nicolae Bilbie as their principal witnesses. Monica Halarescu's evidence was she had met through Nicolae Bilbie a man who had said he was "Cornel Tirnaveanu" and that he was a lawyer working at the Home Office. It was the prosecution case that this individual was the appellant. Various representations were made to her as a result of which she handed over a total of £7,000 to that man and received from that man a UK passport and UK certificate of naturalisation. She went to Romania using the documents. On arrival the fact that the documents were forged was discovered; the fact that they were forged was not in issue. Bilbie's evidence was he had given Monica Halarescu photographs of himself and personal details. When the police searched the appellant's address, photographs of Bilbie were found at his house. Bilbie never met the lawyer who was to obtain a British passport for him.

iii) In counts 13 to 18 of the indictment, the appellant was charged with obtaining £5,000 from Stefan Iamandi, Irina Iamandi and Ion Iordache by making representations similar to those made to Maria Halarescu and attempting to obtain a further £5,000 from each of them. All three were Romanians who had entered the UK illegally in 1998. Their evidence was that they had been told of a lawyer with connections with the Home Office who could help obtain a British passport and certificate of naturalisation. In June or July 2003 they were introduced to a person they understood to be Cornel Tirnaveanu. The prosecution contended that this man was the appellant. The three had expected to meet an English lawyer but were surprised that he was a Romanian. He made various representations to them about his ability to obtain a passport and each handed to him £5,000 together with their passport photographs and details. They then learnt that a friend who had introduced them to Cornel Tirnaveanu and who had obtained a passport from him had been arrested for being in possession of a forged passport. When they were telephoned by Cornel Tirnaveanu with news that the passport was ready, they met him at a coffee shop but did not bring any money to the meeting. They were shown documents but on discovering that they had not brought the money Cornel Tirnaveanu refused to hand over the documents. When the police searched 85 Chandlers Drive they found details of these three together with photographs of Iordache. The police thereafter contacted them.

iv) There were four further counts of facilitating illegal entry (counts 19, 20 and 21) and of forgery of a photocard driving licence (count 22). It is not necessary at this stage to refer to the details of those further matters.

6. In his interviews with the police and in his defence case statement, the appellant denied each and every allegation. He put the prosecution to proof. He also claimed he was not involved. An elaborate conspiracy had been set up to "frame him" as the person who was acting as the lawyer. If he had been involved, then there was no dishonesty as those who paid him for documents, must have realised that it was all a "scam". In the event, neither the appellant nor his wife gave evidence at trial.
7. In addition to the evidence to which we have referred, a substantial number of other witnesses were called. It is in relation to that evidence that the first group of grounds of appeal arose.

(1) Admission of evidence of misconduct on other occasions and the directions to the jury

(a) The nature of the evidence

8. In order to meet the appellant's case that it was not him, but some other person, who was involved in the provision of forged passports or false documents or in the illegal assistance of immigrants, the prosecution primarily relied upon the evidence of those witnesses directly relating to the counts which we have set out above. However during a search of the appellant's properties, the police discovered a significant amount of paperwork relating to other Romanians whom the prosecution contended were illegal immigrants. We have already referred to the paperwork in connection with Bilbie at paragraph 5 (ii) above and that in relation to Iamandi and Iordache at paragraph 5 (iii) above. No objection was taken to the admissibility of that evidence.
9. However, the prosecution wished to go further and to adduce:

i) Evidence in relation to other documents found at the appellant's houses which contained details referable to illegal immigrants. The prosecution wanted to call, in connection with those documents, evidence from the immigrants and evidence from immigration officers in relation to such immigrants.

ii) Evidence of others to show that the appellant was acting as a lawyer and dealing with illegal immigrants. This second category of evidence can be illustrated by the evidence of Colin Martin, a British national now living in Romania. He was involved, on his own admission, in assisting Romanians to enter the UK illegally. At the end of November 2002 8 out of a group of 10 illegal immigrants who were being brought into the UK by Martin were caught at Dover; a telephone call was placed to a lawyer called Cornel Tirnaveanu who subsequently met with Martin at Dover and gave him a document advertising a 24 hour non stop helpline which had on it the appellant's telephone number and a business card with the appellant's name on it to which we have referred at paragraph 4.iii). It was Martin's evidence that the person who met him admitted to Martin that he was involved in assisting the illegal entry of immigrants into the UK, including the provision of passports. The description given by Martin of the person he met did not coincide with the appellant; nor did Martin pick out the appellant at an identification parade. The prosecution sought, however, to prove that the person who met Martin was indeed the appellant by showing that the appellant's mobile telephone (subsequently found at his address) was in Dover on the day when Martin met the lawyer at Dover. They also sought to prove that the appellant was the lawyer who, when visiting the Oakington Immigration Reception Centre, had assisted another illegal immigrant, Mocanu, whom Martin had brought into the country.

10. The prosecution sought through this further evidence (examples of which we have set out) to prove that it was in fact the appellant who was engaged as a lawyer in assisting illegal Romanian immigrants and that it was not another person purporting to be the appellant as the appellant claimed.

(b) The appellant's contentions

11. Submissions were made on behalf of the appellant that this further evidence should not be admitted. Although the judge ruled that some of the evidence was inadmissible, a substantial amount of the evidence was ruled to be admissible. That evidence was duly heard in the course of the trial and directions given in respect of it by the judge in his summing up.
12. It was contended on behalf of the appellant that the judge was wrong to admit the evidence and, having admitted it, had failed to give proper directions to the jury. The ruling made by the learned judge was on 5 October 2005 and the summing up delivered on 13 December 2005. Although by that time the bad character provisions of the Criminal Justice Act 2003 had come into force, there was little authority to guide the judge. Moreover, it is apparent, as was observed in Chopra [2006] EWCA Crim 2133, that the sea change in the law effected by the CJA 2003 had not been fully appreciated. Since that time this court has given guidance on these provisions and we are grateful to counsel for their marshalling of the authorities.

(c) The approach in the light of the CJA and the authorities

13. It may be helpful therefore if we set out the way in which we consider the issue of admissibility and the summing up should have been approached in the light of those authorities and examine the effect of the judge's ruling and the summing up on that basis. We do not think it necessary to consider the way in which the judge approached admissibility in detail; the issues can, we think, be addressed by 6 questions which we considered during the course of argument on the hearing of the appeal.

(i) Was the evidence relevant?

14. In approaching the evidential issues in this case, it was necessary first of all to establish that the evidence was relevant. It is usually essential, when seeking to establish relevance, to consider the specific issue in the case to which the evidence is relevant.
15. In the present case it is clear that, as we have set out, the evidence in relation to the other immigrants was highly relevant to proving that it was the appellant who had committed the offences charged and not some other person posing as the appellant, as the appellant claimed.
16. It was contended by counsel for the appellant before us that the prosecution did not need this evidence as it had the evidence of those who had been the victims of the specific conduct complained of. However as long as the appellant was putting forward the defence that it was some other person and not him, the evidence was plainly relevant and the prosecution were entitled to call other evidence to strengthen their case, provided it was admissible.

(ii) Was the evidence of "bad character"?

17. Once it was established that the evidence was relevant, it was next necessary to consider whether the evidence was evidence of "bad character" as defined by Chapter I of Part 11 of the CJA 2003, because, if it was, that statutory regime governed all further issues of admissibility and abolished the common law rules. "Bad character" has a very far reaching definition.
18. S. 98 of the CJA 2003 provides:

""Bad character"

References in this Chapter to evidence of a person's "bad character" are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which –

a) has to do with the alleged facts of the offence with which the defendant is charged, or

b) is evidence of misconduct in connection with the investigation or prosecution of that offence.

S. 112 (1) defines misconduct as "the commission of an offence or other reprehensible behaviour".

19. There may initially have been some doubt as to whether an allegation of misconduct untested by a judicial finding was within the provisions. But as is clear from decisions of this court in R v Edwards; R v Fysh [2005] EWCA Crim 1813 ([2006] 1 Cr.App.R.3) at paragraphs 71 to 77, R v Weir [2005] EWCA Crim 2866 ([2006] 1 Cr.App.R.19) at paragraph 94, R v Edwards and Rowlands [2006] EWCA Crim 3244 ([2006] 2 Cr App 4 at paragraphs 77-81 and R v Leslie B. [2006] EWCA Crim 2150 at paragraph 51, evidence that alleges the commission of an offence or other reprehensible behaviour is within the scope of the definition of misconduct.
20. It was not in issue on this appeal that the evidence the prosecution sought to adduce was evidence of misconduct within the statutory definition.

(iii) Was the evidence "to do with the alleged facts of the offence"?

21. S. 98 of the CJA 2003 excludes from the definition of bad character, misconduct on the part of a defendant which has "to do with the alleged facts of the offence with which the defendant is charged". The contention of the prosecution was that the evidence was "to do" with the offences with which the appellant was charged. The consequence of that argument was that if the evidence was within the exclusion, then it was not for the purposes of the statutory provisions evidence of bad character and, as this court said in R v Edwards and Rowlands (at paragraph 1(i)) (as qualified in Watson [2006] EWCA Crim 2308 at paragraph 19), the evidence "may be admissible without more ado".
22. There is very little authority on the extent of this exclusion. In R v Machado [2006] EWCA Crim 1804, the defendant charged with robbing a victim wished to use evidence that the victim had taken an ecstasy tablet shortly before the attack and immediately before the attack had offered to supply him drugs. This court held that the matters were in effect contemporaneous and so closely connected with the alleged facts of the offence and so were "to do" with the facts of the offence. In Edwards and Rowlands, this court observed at paragraph 23 that the term was widely drawn and wide enough to cover the finding of a pistol cartridge at the home of one of the defendants when it was searched in connection with the drugs offences with which the defendants were charged. In McIntosh [2006] EWCA Crim 193, this court held that a matter immediately following the commission of the offence was "to do with the offence". In Watson, an assault committed was held to do with the charge of rape committed upon the same person later in the day. Professor J R Spencer, QC in his useful monograph, Evidence of Bad Character at paragraph 2.23 suggested that it clearly covered acts which the defendant committed at the same time and place as the main offence and presumably covered acts by way of preparation for the main offence and an earlier criminal act which was the reason for the main crime.
23. The basis on which it was contended before us by the prosecution that the evidence which they sought to adduce was "to do" with the facts of the alleged offence was that it was evidence which was central to the case in that it related to proving that the appellant was the person who had committed the offences charged in the various counts. We do not accede to that submission. As counsel for the prosecution accepted, if his submission was right, then in any case, where the identity of the defendant was in issue (including, by way of example, cases of sexual misconduct), the prosecution would be able to rely on this exclusion to adduce evidence of misconduct on other occasions which helped to prove identity. It seems to us that the exclusion must be related to evidence where there is some nexus in time between the offence with which the defendant is charged and the evidence of misconduct which the prosecution seek to adduce. In the commentary in the Criminal Law Review to R v T [2007] Crim LR 165, it was argued that the court in Machado and McIntosh had taken too narrow a view of s.98 thereby permitting prejudicial evidence to be admitted on the threshold test of relevance alone with no gateway having to be satisfied. We do not agree – the application of s.98 is a fact specific exercise involving the interpretation of ordinary words.
24. We respectfully agree with Professor J R Spencer, QC Evidence of Bad Character at paragraph 2.23 where he suggests that there is a potential overlap between evidence that has to do with the alleged facts of the offence and evidence that might be admitted through one of the gateways in section 101(1). As he observes in relation to the example he took of prior misconduct being the reason for the commission of the offence, such evidence could be admitted either as "to do" with the offence or as important explanatory evidence under s.101(1)(c):

"In practice nothing of any legal significance depends on which of these two routes it is by which the evidence comes in".

(iv) Was the evidence admissible under one of the gateways in s. 101(1)?

25. As the evidence was not "to do" with the alleged facts of the offence, then the next issue to consider was whether the evidence was admissible through one of the gateways in s. 101(1).
26. It was not seriously disputed that the further evidence in this case was admissible under s. 101(1)(d), as it was relevant to an important matter in issue between the defendant and the prosecution – whether it was the appellant who had committed the offences and not some other person.

(v) Would the evidence have such an adverse effect on the fairness of the proceedings that it ought not to be admitted?

27. There are two relevant statutory provisions:

i) S. 101(3) of the CJA 2003

"The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

ii) 78(1) of the Police and Criminal Evidence Act 1984 (PACE):

"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings the court ought not to admit it."

As was made clear in Highton and Weir (at paragraph 44), where the CJA 2003 does not permit s. 101(3) to be relied on, s.78 of PACE should be considered. In this instance the relevant provision is s. 101(3).

28. The difference in the wording of the statutory provisions appears to relate solely to the question of whether the court has a discretion; s 101(3) of the CJA 2003 provides that the court must exclude the evidence if the condition is satisfied whilst s.78(1) of PACE appears to give the court a discretion. However, as is clear from the decision of this court in R v Chalkley & Jeffries [1998] 2 Cr.App.R.79, this is a distinction without a difference as the court under s. 78(1) of PACE has no discretion once the condition is in its view satisfied: the court said at page:

"We have put the words "exercise of discretion" in this context in quotation marks because, as the court said in Middlebrook and Caygill (unreported), February 18, 1992, the task of determining (in)admissibility under section 78 does not strictly involve an exercise of discretion. It is to determine whether the admission of the evidence:

"having regard to all the circumstances, including the circumstances in which the evidence was obtained, … would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

If the court is of that view, it cannot logically "exercise a discretion" to admit the evidence, despite the use of the permissive formula in the opening words of the provision that it "may refuse" to admit the evidence in that event."

29. In Weir at paragraphs 38 and 46 the court gave guidance on how the issue under s. 101(3) is to be approached by a balancing exercise; in Edwards and Rowlands at paragraph 82, the importance of the broad nature of the judge's function was emphasised and the undesirability of descending into satellite litigation. However, for the reasons we have given we consider, unlike the court in Weir (whose attention was not drawn to Chalkley & Jeffries), that there is no difference between that section and s.78(1) of PACE and the guidance should be the same.
30. We have carefully considered the potential effect of the evidence on the fairness of the proceedings and the undesirability of the jury having too many other matters to consider as against the powerful evidence in relation to the issue as to who committed the acts charged in the various counts. We consider the judge was right to decide to admit the evidence and that he correctly performed the balancing act. It was powerful and important evidence which in our judgment did not in any way affect the fairness of the proceedings.

(vi) Did the jury need help in the summing up as to how to use this evidence?

31. As this court observed in R v Hanson [2005] EWCA Crim 824 ([2005] 2 Cr App R 21) and in subsequent decisions, particularly R v Edwards; R v Fysh at paragraphs 3 and 77, Highton [2005] EWCA Crim 1985 ([2006] 1 Cr App R 7) at paragraphs 11 and 38-43, R v Edwards and Rowlands at paragraphs 1(ii) and 1(iv) and MM [2006] EWCA Crim 2317 at paragraph 14, it was important to consider, when evidence was admitted under the bad character provisions, what help by way of any directions needed to be given to the jury. The bad character provisions are most commonly used to admit evidence of previous convictions and, following the decision in Hanson, the Judicial Studies Board have provided guidance in relation to the directions to be given in such a case. Those directions primarily deal with the evidence which is relevant to propensity.
32. But as the decisions of this court indicate, the important question that a court must consider, when deciding what help may be need to be given to the jury in the summing up, is the relevance of the evidence which was admitted. If the evidence has been admitted for a particular purpose, the jury may, depending on the circumstances, need to be told how they should use that evidence and the issue to which it goes.
33. Furthermore, as is clear from the decision of this court in Highton at paragraphs 9 and 10, evidence admitted through one gateway can be used, once admitted, as relevant evidence on other issues. Moreover, as this court emphasised in Chopra [2006] EWCA Crim 2133 at paragraph 14, the provisions of the Act also have to be brought into account when considering directions on cross-admissibility of evidence on one count in relation to other counts. In short, when a court is dealing with evidence admitted under the "bad character" provisions, the relevance and purpose for which the evidence is being used by the end of the trial should be clear and, where appropriate, a direction in simple and clear terms given as to its relevance and the use the jury may make of it.
34. In the present case, the prosecution did not rely upon the cross-admissibility of evidence between one count and the other. A direction was given by the judge to treat each count separately. No criticism was made of the judge in this respect. Nor did the purpose for which the evidence was admitted change; it remained evidence that went to the issue of whether it was the appellant or some other person who had committed the offences charged.
35. The judge considered, prior to summing up, the nature of the direction to be given and it was raised with counsel. It is clear from the summing up that the judge considered that the appropriate direction he should give was one in relation to circumstantial evidence. Before referring to the further evidence in his summing up, he referred to it as "background and circumstantial evidence produced by the prosecution." Much earlier in his summing up he had given a direction in relation to circumstantial evidence in terms based upon the guidance given by the Judicial Studies Board. He said,

"This simply means that the prosecution is relying upon evidence of various circumstances relating to the charges and to the defendant that you are dealing with, which the Crown say, when taken together, will lead to the sure conclusion that it was that defendant who committed the offence. Circumstantial evidence can be powerful evidence, but it is important that you examine it with care and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence you should consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case."

36. It was submitted to us on behalf of the appellant that the judge should have told the jury that the evidence in question was evidence which the prosecution sought to rely upon to prove that it was the appellant who had committed the offences in question and not some other person; that the jury should first consider in respect of each piece of that evidence whether they were sure that it was the appellant who had been involved and it was only if they were sure that they should use that material in considering whether it was the appellant who had committed each of the offences with which he was charged.
37. In our judgment the learned judge should have set out in clear and simple terms the relevance of the evidence of other conduct and the way in which the jury should have approached it; this could have been done in a simple sentence or two. However, in our view, there can be little doubt that at the end of a trial extending over two months the jury had at the forefront of their minds the relevance of the other evidence and the use they could make of it – namely to show that it was the appellant who was engaged in the offences charged and that it was not some other person purporting to be him. That that was the issue was also clear from the general directions given in the summing up; the judge told the jury that they had to be sure of the reliability of that other evidence before they could use it in determining the appellant's guilt of the offences charged.
38. It was also submitted to us on behalf of the appellant that the judge should have given a specific direction that the jury were not to use the evidence of the other conduct as evidence of propensity. It was submitted that a jury might feel that if they heard evidence of misconduct in relation to other matters they might consider that this showed the appellant was someone who is engaged in criminal activity and convict him on that basis.
39. We do not consider that a direction in such terms was either appropriate or necessary. There was no doubt that the person who was in fact engaged in the conduct specifically charged in the differing counts in the indictment was guilty of the offences; the issue in the case was one of identity, not propensity. Moreover, the judge did in fact give a good character direction, as the appellant had no previous convictions.
40. We therefore consider, approaching the issues on the basis of the six questions, that the judge was clearly correct in admitting the evidence. Although the judge should have given a simple and brief direction on the use the jury could make of the further evidence, in our view, it must have been very clear to the jury the issue to which that evidence went and that therefore the failure of the judge to give a specific direction did not make the conviction unsafe. This ground of appeal therefore fails

(2) Was a Brown direction on unanimity necessary in relation to the forgery counts?

41. In counts 1, 10 and 11 the indictment charged the appellant under section 1 of the Forgery and Counterfeiting Act 1981 of making or procuring the making of a false instrument; in count 1 it was the identity card, in count 10 a passport and in count 11 a certificate of British naturalisation. The particulars to each of the counts were in the same form; taking Count 10 as an example, the particulars stated:

"Cornel Tirnaveanu, on a day between 1^st day of January 2003 and the 27^th day of November 2003 made or procured the making of a false instrument, namely a document purporting to be a British passport, in the name of Monica Halarescu, with the intention that she or another should use it to induce somebody to accept it as genuine and by reason of so accepting it to do some act, or not to do some act, to their own or another person's prejudice."

42. We were told that the prosecution framed the particulars in that way, as it was unclear to them whether the appellant had been the principal offender by making the false instrument or a secondary party by procuring the making of it. It was submitted by them that the different ways of committing the offence were properly joined in the indictment on the basis of the decision in Gaughan [1990] 155 JP 235.
43. It was not disputed by the appellant that it was possible to join in the same count the allegation that the appellant had acted either as the principal in making the false passport or as a secondary party in procuring it, but contended, however, that this was a case when a direction should have been given of the kind set out in R v Brown (K) (1984) 79 Cr App R 115 as to the necessity of the jury being unanimous as to whether he was a principal or secondary party. The prosecution contended that such a direction was not necessary.
44. In Brown, the court made clear it was a fundamental principle that in arriving at their verdict, the jury, even if they were not agreed as to part of the evidence, had to be unanimous that each ingredient necessary to constitute the offence had been established. The position was summarised by Eveleigh LJ at page 119:

"Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to majority direction). 2. However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one is capable of doing so, then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly, and it should be made clear to them as well that that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged."

45. It was submitted that, as it was an essential ingredient of the offence that the appellant had either made the false instrument or had procured the making of the instrument, the jury had therefore to be agreed as to which it was.
46. We do not accede to that submission. Where a person is indicted both as a principal and as a secondary party and the prosecution cannot say which, then the jury is entitled to convict if they are satisfied that he committed the offence as a principal or, if he did not, he was a secondary party (who procured or encouraged the commission of the offence). They can do so only if there is no relevant or material difference in relation to the issues between these alternatives. A Brown direction is in such circumstances not necessary. This it seems to us follows from the decision in R v Giannetto [1997] 1 Cr App R 1, where a defendant was charged with killing or procuring the killing of his wife. After an extensive review of the authorities, Kennedy LJ giving the judgment of the court concluded at page 8:

"Having considered the authorities with some care we are satisfied that in the circumstances of this case the trial judge was right not to direct the jury that before they could convict they must all be satisfied either that the appellant killed his wife or that he got someone else to do so. They were entitled to convict if they were all satisfied that if he was not the killer he at least encouraged the killing, and accordingly this ground of appeal fails.

There are two cardinal principles. The first is that the jury must be agreed upon the basis on which they find a defendant guilty. The second is that a defendant must know what case he has to meet. When the Crown allege, fair and square, that on the evidence, the defendant must have committed the offence either as principal or as secondary offender, and make it equally clear that they cannot say which, the basis on which the jury must be unanimous is that the defendant, having the necessary mens rea, by whatever means caused the result which is criminalised by the law. The Crown is not required to specify the means, because the legal definition of the crime does not require it; and the defendant knows perfectly well what case he has to meet. Of course, if (as will very often be so) the Crown nail their colours to a particular mast, their case will, generally, have to be established in the terms in which it is put. Our judgment should give no encouragement to prosecutors casting around for alternative possibilities where the essential evidence does not show a clear case against the defendant. But the facts of the present appeal are by no means an instance of that.

47. In reaching its decision, the court referred, with approval, to a comment in the Criminal Law Review by the late Professor Sir John Smith QC at [1990] Crim.L.R. 881 on Gaughan, the case to which we referred at paragraph 42:

"It is fundamental that the defendant should be told as precisely as possible what he is alleged to have done and that he should not be charged with doing one thing and convicted of doing something else. There will be occasions, however, when it is impossible to specify the mode of participation before the trial and where the case may have to be left to the jury on the basis that the defendant was either a principal or an accessory. It has long been established that this is permissible: Swindall v. Osborne (1846) 2 C. & K. 230."

48. However, as is illustrated by the two cases to which we were referred by the appellant, a Brown direction may be necessary where there are two or more clear alternatives open to the jury where there is a relevant or material difference as to the issues and therefore the basis on which the jury might convict:

i) In R v Carr [2000] Cr App R 149, it was the prosecution case that the defendant had either karate kicked the deceased or struck him with his fist. On the facts of the case, if the crucial blow was the punch, then the issue for the jury was whether it was a punch but if it was the karate kick, the issue was one of identification. The Court concluded that in the circumstances the judge should have told the jury that they must reach a unanimous verdict on the deliberate act which they found proved and the unlawfulness of the act:

"There was in our judgment a real risk that some jurors might have found the defendant to have kicked the deceased and others found him to have delivered a punch, feeling themselves entitled to convict because the judge had told them that the defendant could be convicted on either basis. Had that happened there would have been six jurors not satisfied that the defendant had delivered the fatal kick and six jurors not satisfied that the deceased had been felled by a punch by the appellant. The absence of such a direction on the facts of this case was in our judgment a fatal flaw and we consider that that real risk existed. We wish to make it plain that we are not seeking to lay down any general rule. There will often be minor differences between the facts alleged and the evidence given by various witnesses, and there is no need for agreement between all jurors on fine factual differences. Here, however, the difference between the two forms of assault did not depend on fine factual differences, but on a stark difference in the evidence of witnesses describing the two events, those two forms of assault giving rise to very different defences."

ii) In R v D [2001] 1 Cr App R 13, a defendant was charged with indecent assault on various occasions. The counts particularised the different occasions, but not the four different ways in which the indecent assaults were said to have happened on some or all of the occasions. No Brown direction was given. As the court pointed out, the failure opened up the possibility of a conviction on one or more counts when not only might juror A and juror B have differed in their view as to what had happened on the particular occasion represented by the count, but the view of juror A as to what occurred might relate to a time or occasion different from that on which the view of juror B was based.

49. In our view this was a case where there was no difference in the issues or the defence to the charges under counts 1, 10 and 11; the issue was who made or procured the making of the instrument and in addition, in relation to Count 1 whether there was a person called Denise Dupont. This was not a case where there were fine factual differences or other relevant difference between the alternatives where the jury could disagree as to the basis on which they might convict. As between the two alternatives of principal and secondary party, the position was that, if it was not the first alternative – making the false instrument- then it must be the second - procuring the making. There was no relevant difference in these alternatives. In such circumstances therefore there was no need for unanimity as to which of these alternatives it was; a Brown direction was not necessary. In our view this was a case which fell within the principles set out in Giannetto. The difference in the basis for conviction was immaterial for the reasons fully explained by the late Professor Sir John Smith QC in an article in the Criminal Law Review, Satisfying the Jury [1988] Crim LR 335, referred to recently by this court in R v Morton [2003] EWCA Crim 1501. He took the facts of Stapylton v O'Callaghan [1973] 2 All ER 782 as an illustration of the applicable principle:

"But the hypothetical case was put, suppose half of a jury were satisfied that the defendant was the original thief and half satisfied that he was the subsequent receiver."

It is now quite impossible to say that the jury is satisfied that he was the thief on occasion (a); and equally impossible to say that it is satisfied that he stole on occasion (b). Indeed, it follows by necessary implication that six jurors are satisfied that he was not the thief on occasion (a); and six are satisfied that he did not steal on occasion (b). The case is, however, distinguishable from that which arose in Brown. The jurors are all presumably satisfied that the property was stolen by someone on occasion (a) and that the defendant was soon afterwards found in possession of it. They are all satisfied as to the same primary facts. The whole jury has dismissed any innocent explanation of the incriminating circumstances the defendant may have offered and is satisfied that he acted dishonestly in the matter. It seems to follow that the jurors who are satisfied beyond reasonable doubt that he stole on occasion (a) are also satisfied that, if they are wrong about that, he stole on occasion (b); and vice versa. The whole jury is satisfied that he stole the property in question either on occasion (a) or on occasion (b). The situation is significantly different from Brown. The jurors there could not say, "But if deception (a) was not proved, then deception (b) was." It is true that the prosecution have failed to satisfy the jury as to which of two possible occasions was the occasion of the theft but it seems not unreasonable to regard that matter as immaterial. This, indeed, is the situation in Stapylton v. O'Callaghan itself.

Professor Sir John Smith QC concluded:

"It is submitted that the principle stated in Brown is right and of general application. It should not, however be stretched to situations like that in Stapylton v. O'Callaghan where, as demonstrated above, it does not properly apply. It does apply, however, when the prosecution allege more than one factual basis for the crime charged and it is not possible to say, "If it was not the one, then it must have been the other." When Brown applies then, it is submitted, the jury should always be directed that they must all be satisfied as to the one basis or all satisfied as to the other, or both. In More ([1988]1 WLR 1578), having stated the requirement of unanimity, Lord Ackner added: "It is equally essential that a jury should be directed in a manner that is easily comprehensible and devoid of unnecessary complications."

No one could quarrel with that but the question remains, what is an unnecessary complication? Any complexity which is necessary to enable the jury to understand that they must be unanimous on any issue on which the law requires unanimity is a necessary complication."

50. For these reasons therefore the second ground of appeal also fails.

(3) The validity of count 12 - the charge of facilitating illegal entry

51. Until 10 February 2003, s. 25(1) of the Immigration Act 1971 provided:

"Any person knowingly concerned in making or carrying out arrangements for securing or facilitating –

(a) the entry into the United Kingdom of anyone whom he knows or has reasonable cause for believing to be an illegal entrant;

(b) the entry into the United Kingdom of anyone whom he knows or has reasonable cause for believing to be an asylum claimant; or

(c) the obtaining by anyone of leave to remain in the United Kingdom by means which he knows or has reasonable cause for believing to include deception,

shall be guilty of an offence, punishable on summary conviction with a fine of not more than the prescribed sum or with imprisonment for not more than six months, or with both, or on conviction on indictment with a fine or with imprisonment for not more than ten years, or with both."

52. With effect from 10 February 2003, s. 143 of the Nationality Immigration Asylum Act 2002 substituted a new s. 25 replaced s.25(1) and provided by the new (1) and (2):

"(1) A person commits an offence if he –

(a) does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union,

(b) knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by the individual, and

(c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union.

(2) In subsection (1) "immigration law" means a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of the State, entitlement to –

(a) enter the State,

(b) transit across the State, or

(c) be in the State."

53. The penalty under the original s. 25 was 10 years; under the section 25 substituted from 10 February 2003, the penalty was 14 years.
54. Count 12 on the indictment charged the defendant with facilitating illegal entry into the United Kingdom contrary to s. 25 of the Immigration Act 1971. It gave the following particulars of the offence:

"Cornel Tirnaveanu between the 1^st day of January 2003 and 27^th day of November 2003 was knowingly concerned in making or carrying out arrangements for facilitating the obtaining of leave to remain in the United Kingdom by Monica Halarescu by means which he knew to include deception, namely by supplying her with a false British passport and a false certificate of British naturalisation."

55. As can be seen from the wording of the indictment the particulars of the offence related to the way s. 25 was framed prior to 10 February 2003, but the appellant was charged with an offence between 1 January and 27 November 2003. After 10 February 2003 the offence charged was different and therefore the particulars should therefore necessarily have been different.
56. If Parliament had, instead of substituting provisions of s. 25, created a different numbered section, there should have been no confusion. One count would have charged the activity under the old provision and another count would have charged the activity under the new provision. The confusion that seems to have arisen in this case is because the section number remained the same but the offence was changed. That makes no difference to the principle involved. The alleged activity prior to 10 February 2003 should have been charged in one count and the activity after 10 February 2003 should have been charged in a different count, as it would constitute a different offence. A count spanning the period and charging in one count two quite different offences was impermissible.
57. In Pritchett & Langston [2007] EWCA Crim 586, an indictment charged the defendant with keeping a brothel contrary to s.33A of the Sexual Offences Act 1956 between 5 October 1998 and 30 September 2005; s.33A of the Sexual Offences Act 1956 was added to that Act by s.53 of the Sexual Offences Act 2003 and only came into effect on 1 May 2004. The indictment therefore charged the two defendants over part of a period where the offence with which they were charged was not an offence at law. The court held that, although the indictment gave rise to an irregularity, the indictment was not a nullity as, if the prosecution could prove the commission of the offence between 1 May 2004 and 30 September 2005, the defendants could be convicted under the indictment. The court considered that there was sufficient evidence which had enabled the prosecution to do this. In our view the present case is very different in the way in which the indictment was framed for the reasons we have set out. Furthermore the prosecution did not suggest that they could in the present case prove that an offence had been committed on the basis set out in Pritchett and Langston.
58. We will allow the appeal on count 12 on this ground and quash the conviction on that count. We should add that other grounds were advanced in relation to this count, including the failure to give a direction on the meaning of the words "leave to remain". No such direction was given. If count 12 had not suffered from the deficiency to which we have referred, there would have been a serious issue for our consideration as to whether the failure to give such a direction made the conviction unsafe, but it is not in the circumstances necessary for us to determine the point.

Conclusion

59. We have considered the overall safety of the convictions and in particular the approach the jury may have followed which resulted in the acquittal on Count 7. We consider that the convictions are safe, except that on Count 12 where the indictment charged the appellant in an impermissible manner; on the other counts on which he was convicted there was compelling evidence which underpins the jury's verdict. In the result, therefore, we consider that the conviction on count 12 must be quashed, but the appeal on the other counts is dismissed. As the sentence on count 12 was concurrent, this makes no difference to the overall term of imprisonment which the appellant must serve.