England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 12 May 2011

1. THE VICE PRESIDENT: This defendant was convicted after trial of two counts of sexual abuse of the daughter of a neighbour committed at the beginning of the 1980s. He was sentenced to eight years' imprisonment on each count. The submission on his behalf by Mr Johnson is that in arriving at that sentence the judge departed from the law as it is laid down in R v Canavan [1998] 1 CrAppR 79 and imposed a sentence which was measured not by the two offences of which the defendant had been convicted, but rather by a course of conduct spread over a long period up to two years and, therefore, involving more than two offences.
2. The history is this. The defendant is now just short of 60. He is not a man of good character because he was convicted some time ago of the smuggling of a very large quantity of cigarettes and went to prison for three years. That is not entirely irrelevant because compared with a man who has led an entirely respectable life and enjoys that repute, he is a different subject for sentencing. However, it was a long time ago and there is certainly no offence involving either sex or any form of violence. It also is apparent that despite that conviction he appears to have been in regular work more or less throughout his life.
3. He and his wife lived in the same village as the complainant child and her family. The child was only 11 then. He was at the time 28 or 29 and a married man with a wife who was expecting their first child.
4. The conduct complained of, according to the complainant, fell into two periods. First, in the summer of 1980 when she was 11, she and her friends had got into the habit of being occasional visitors to the home of the defendant and his wife - in part that seems to have been because there was a new puppy to be admired and a friend of the complainant lived next door. Taking the opportunity, the defendant plainly singled the girl out, flattered her and seduced her. According to her, over the period of a few months they had sexual intercourse two or three times a week.
5. There came a time in November of that year when she was told by her mother that she should no longer continue visiting the defendant's house. It was clear from the evidence that mother warned her off as a result of approaches made by the defendant's wife and the defendant's mother-in-law - in other words people had become suspicious. She did stop visiting but, she said, the defendant began, after an interval, to follow her about in his car and some months later, by now in 1981, he created the opportunity to give her a lift, she was persuaded to agree, she met him on a subsequent occasion and the association resumed over a period of some months during that year, 1981. By then she was 12 but still very young indeed. It continued, she said, until some time just before she was 13. Again, according to her in this second period there were repeated acts of sexual intercourse, often in his car at a secluded car park at a nature reserve.
6. That being the story as recounted by the complainant and in due course given by her to the jury, the indictment charged two counts only. The first count was related to the first period and the second count was related to the second. Neither was of an identifiable specific occasion. Sometimes it is possible to identify the occasion, sometimes it is not. In this case it was not and the counts were unspecific examples of what had happened.
7. The defendant's case was that there had never been any sexual contact between the two of them at all. The allegations which were made were, he said, false. The jury heard the evidence on both sides. They believed the complainant and they did not believe the defendant.
8. When the judge came to approach sentence, Mr Johnson reminded him on the defendant's behalf that the defendant had been convicted simply of two offences, no more. He did not at that stage identify the decision that he no doubt had in mind, namely the decision in Canavan.
9. The judge in passing sentence rejected the submission that he was dealing with two incidents only, saying this:

"I am not dealing with isolated activity. I have to take into account the whole period of time that is involved here. There are two specific counts on the indictment but from the evidence I have heard from her I take into account that what we are encompassing is a relationship that you developed with this girl and created over a two year period."

Had the judge been reminded that Canavan was clear authority for the otherwise unassisted proposition that had been made on behalf of the defendant, no doubt he would not have said what he did.

10. For the Crown, Mr Gittins accepts that Canavan is clear authority for saying that a defendant can only be sentenced for what he has been convicted of. In particular, if counts are framed which are extracted from an alleged course of conduct, conviction on those counts cannot be taken to be a conviction of multiple additional unframed counts which have never appeared on the indictment. That, said this court in Canavan, would be to deprive the defendant of the opportunity of the right to have his guilt determined by a jury. That decision was binding on the judge and it is binding on us.
11. Mr Gittins for the Crown contends that this was an example of what is really the only exception to that rule, namely that the defendant had assented to the two counts on the indictment being treated as representative of a longer course of conduct and to any verdict being taken to be a verdict of guilt of the entire course of conduct. There is no doubt that if that is explicitly accepted it is a perfectly permissible approach. We accept without hesitation that from the beginning the Crown presented the case from its point of view as one of specimen or representative counts and we have little doubt, although we have not seen the summing-up, that the judge left the case to the jury on the same basis. Where we are unable to accept Mr Gittins' persuasive submission, however, is that it seems to us without question that if it is to be suggested that a defendant has assented to such an approach he must do so explicitly and there is no question of that here.
12. Alternatively, Mr Gittins contends that the counts as framed fell within the Criminal Procedural Rules 14.2(2) which are to be found conveniently set out in Archbold at paragraph 1-188. That rule does permit a count on an indictment to contain an allegation of more than one incident of the commission of an offence if the incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission. That is a departure from the common law and to that extent a modification of what used to be called the rule against duplicity.
13. We regret that it is clear that these counts on this indictment did not charge a course of conduct. They charged single offences. In order for an indictment to be laid within the rule which we have set out, it is plain that the indictment must make it clear that what is charged is a course of conduct and indeed the period over which it is charged. Such a count may, we suggest, in some cases be of assistance in a case of allegations of a course of sexual misbehaviour persisted in over a period, but we would draw attention to the necessity that the result is not a verdict which it is impossible to interpret. In the often encountered case of allegations of a course of conduct over a long period where it is a possible conclusion that there was but a single incident, we suggest that it would normally be appropriate to consider including not only a course of conduct count but also a single count in relation to the same period so that the basis of any verdict can be clear.
14. Accordingly, we are obliged to accept that in the respect identified by Mr Johnson he is right and Mr Gittins is in this instance wrong; the judge did fall into the error identified in R v Canavan. He was accordingly in error in thinking that he could sentence on the basis of more than the two offences which were charged and of which the defendant had been convicted.
15. The question for us is whether it follows that the sentence that he passed was manifestly excessive. Given the error of approach, it is accepted before us that we have to approach the question of sentence afresh.
16. These were offences under the Sexual Offences Act 1956 before the change to maximum sentences made, now some years ago, by the Sexual Offences Act 2003. The guidelines issued by the Sentencing Guidelines Council relate to the 2003 Act. They do not accordingly apply directly, although they are perhaps relevant as of some assistance to the general relative level of sentences as between different forms of offending.
17. The cases from the pre-2003 period show, as has been said in a number of them, quite a wide range of sentences for this kind of offence. That is wholly unsurprising. The facts vary a good deal. Some of these offences of sexual offences involving complainants of very tender years are nevertheless events which took place in the context of a sexual relationship between young people which was fundamentally that of boyfriend and girlfriend, however inappropriate, given age. Some, significantly more serious, are of casual encounters, either one or a few incidents. Some are of frank abuse, but of those too the circumstances vary. Some involve the exploitation of an opportunity given to an adult to have a child in his care, whether as teacher or tutor or coach or minder; others do not. Some result in pregnancy or the danger of it; others do not. Some have a lasting impact on the child; others do not. There are a great many more variables beyond those simple ones which we have identified.
18. In the present case, although the judge was wrong to deal with it on the basis of more than two offences, there was much about the circumstances of those offences about which he was not only entitled to make up his own mind but bound to do so. He had presided over the trial. He had heard the evidence and he had seen both the complainant and the defendant. He could and should make up his own mind on all matters which could not be made the subject of the jury's verdict by the addition of further counts. There is nothing in Canavan which impacts upon that duty of the trial judge.
19. Accordingly, in this case the judge was entitled to conclude, as he did, that there were a number of features which made this offence rather the worse. First, it was frank seduction. The defendant had persuaded the little girl that he loved her. That it was nonsense to say so given his married status and her age would not have meant anything to her at the time. In other words, he played with and exploited not only her body but also her emotions. Secondly, there was a good deal of what is these days called 'grooming', persuading her into the relationship - seduction is what it used to be called - and in this case it included giving her money from time to time, small sums but significant to a child. Thirdly, the second offence (importantly) came after the defendant had been warned off. He must have known that she had been told not to come any longer, particularly since the sources of the request were his wife and mother-in-law. Certain it was that there was an interruption which at the very least should have given him pause but he continued to seek her out afterwards as a man of nearly 30. Fourthly, he was following her about. 'Stalking' is probably an over-statement, but he was engineering opportunities to encounter her. Fifthly, it is clear that by the time of the second period, and thus of the second offence, she had begun her periods and she told him so. His response was simply that they would have to be more careful. He seems to have acted on the unreliable basis that early withdrawal would suffice and it followed that there was a clear risk of pregnancy, though mercifully it did not ensue. Sixth, on the second occasion he got the girl to suck him - a familiarity which she did not like. Seventh, he committed the second offence, placed somewhere in the second period, knowing that she had by then met a young man of her own age, a boyfriend who later became her husband, and he not only carried on nevertheless but used to ask her questions about what the two of them did together.
20. Those are significant features of the case and we have little doubt that for the two offences which were charged the sentence ought not to have been less than one of six years. In those circumstances, we shall quash the sentence of eight years and replace it with a sentence of six years.
21. When the full court gave leave for this appeal to be brought it invited this court to consider whether any general assistance might be given to the framing of indictments. This is not a new problem. We accept that it is very common situation and we accept that Canavan does create significant difficulties for courts and thus also for prosecutors. That is particularly so in cases of sexual offending because a great many of them are of allegations of a course of conduct involving multiple but unidentified instances; probably rather more are of that kind than are of single incidents.
22. We do not think that it is possible to attempt any general statement of how indictments ought to be framed in the very wide range of cases that come before the courts. Everything in reality depends on the facts of the individual case, on what is alleged and on what issue is raised by the defendant. We have been reminded that their exist two new potential procedures. One we have already referred to, the Criminal Procedure Rules and we add nothing to what we have said about those. There is also now in existence the Domestic Violence (Crime and Victims) Act 2004 which in sections 17 to 19 does provide in some cases for an order to be made for representative counts to remain on the indictment and in the event of conviction for guilt of outstanding instances to be determined by the judge without the jury. Those provisions are set out in Archbold at paragraph 4-267H, but we draw attention to the fact that they are limited in application. There are strict conditions for when they can be employed and in particular they can be employed only where otherwise the indictment would be of such a size as to be impracticable for the jury to cope with. It seems to us much more likely that in general terms the problem of which this case is an example can normally be dealt with by the framing of an indictment which does not contain an enormous number of counts but does contain sufficient to enable the judge to pass sentence on a basis which sufficiently represents what really happened. More than that we do not attempt to say, beyond perhaps this. Where specific indents are capable of identification, however exiguously, for example "the time the vase broke", or "the time we went by train to Brighton", then ordinarily we would expect the indictment to contain a count referable and identifiably referable to that event so that the jury can determine it. That of course is subject to not, if there are hundreds of them, overloading the indictment with more counts than the jury can be expected to determine. Generally it is necessary for those who are framing indictments to pay attention to any issues flagged up by what the defendant has said either in interview with the police or later in a defence statement. Ordinarily we would suggest where there is simply a complaint of a course of conduct over a period of months, often years, more than a single count for each period is usually appropriate, although one per year may well suffice if the alleged period is extended. But the overall principle is simply that regard must be had in an intelligent way to the possible views of the case at which a jury might arrive and to the position of the judge in due course should there be convictions. If thought is given to those questions we have little doubt that it will normally be possible to frame an indictment in a manner which enables the sentencing to be realistic and complies with the strict rules of law as set out in R v Canavan.
23. To the extent that we have explained, this appeal is accordingly allowed.
24. MR JOHNSON: May I make an application for a defendant's costs order under section 16(4) of the 1985 Prosecution of Offences Act. My client is not legally aided.
25. THE VICE PRESIDENT: For today?
26. MR JOHNSON: For the appeal, my Lord, yes. For today and 9th February.
27. THE VICE PRESIDENT: An appeal against sentence is within the rules, is it not?
28. MR JOHNSON: Yes, my Lord, it is section 16(4) of the 1985 Act.
29. THE VICE PRESIDENT: Just remind me where it is in Archbold.
30. MR JOHNSON: My Lord, I am afraid I am working from Blackstone. If I may borrow my learned friend's.
31. THE VICE PRESIDENT: Your problem is that he is not legally aided, is it?
32. MR JUSTICE BEATSON: Hooper LJ tried to give you one.
33. MR JOHNSON: My Lord, he did. I did not take up the very kind offer because we had not received a sentence variation, so that was why section 16--
34. THE VICE PRESIDENT: You are not asking for a representation order, you are asking for costs from central funds?
35. MR JOHNSON: My Lord, yes.
36. THE VICE PRESIDENT: Let us make sure we have the right power.
37. MR JOHNSON: My Lord, it is section 16(4).
38. THE VICE PRESIDENT: Yes, paragraph 6-4 or 6-5 of Archbold.
39. MR JOHNSON: Yes, my Lord. Under (c) where on appeal against sentence a court exercises its power where the court should be sentenced differently for an offence for which he was dealt with by the court below.
40. THE VICE PRESIDENT: That is not this power, is it? Yes, it is. That is the general power to deal with appeal against sentence.
41. MR JOHNSON: My Lord, I believe it is. Otherwise there would be major holes in the provisions of an appeal against conviction who could receive a defendant's costs order an appeal against sentence could not.
42. THE VICE PRESIDENT: We have the application. Thank you very much.
(Pause)

Yes, Mr Johnson.

43. MR JOHNSON: My Lord for the judgment, might I make one observation?
44. THE VICE PRESIDENT: Yes, have I got something wrong?
45. MR JOHNSON: My Lord in so far as the bringing the attention of the court so far as Canavan is concerned, the judge agreed, it seems, he was sentencing on two counts only. That is why it was not taken further.
46. THE VICE PRESIDENT: I am sorry, say that again.
47. MR JOHNSON: Canavan was not mentioned. I informed the judge when sentencing there were two separate counts and he seemed to accede to that.
48. THE VICE PRESIDENT: Yes, but when he came to pass sentence he did not, so clearly he had not taken it on board.
49. MR JOHNSON: The more important point perhaps is point 6 of the aggravating features. My Lord, that about the oral sex. That of course had been an offence under the Indecency with Children Act and so accordingly it would not have been within the power of the court to make that finding.
50. THE VICE PRESIDENT: I do not know about that, Mr Johnson, it is an incident of the offence.
51. MR JOHNSON: I say no more.
52. THE VICE PRESIDENT: Thank you for the submission.