England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOD GREEN
HIS HONOUR JUDGE ADER
HER HONOUR JUDGE DEAN
T20120174

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/02/2015

Sir Brian Leveson P :

1. On 21 December 2012, in the Crown Court at Wood Green before His Honour Judge Ader and a jury, the appellant was convicted, by a majority of 11:1, of possession of an offensive weapon, namely a petrol bomb, contrary to s. 1(1) of the Prevention of Crime Act 1953. Failing to agree, the jury were discharged from returning a verdict on what was count 1, which charged him with having an article, namely a petrol bomb, with intent to destroy or damage property contrary to s. 3 of the Criminal Damage Act 1971. This count was the subject of a retrial at the same court before Her Honour Judge Dean when, again by a majority of 11:1, he was convicted. On 14 June, he was sentenced to terms of 5 years imprisonment on count 1 and 3 years imprisonment concurrent on count 2; the petrol bombs were ordered forfeit. He now appeals against both convictions by leave of the full court.
2. The facts can be shortly summarised. On Wednesday 9 August 2011, during the course of the violent disturbances that were then taking place across the country, a police carrier was on duty patrolling the London Borough of Newham. At approximately 1.20 am, the vehicle turned into Esk Road in E13 when the occupants observed a group of 4-6 males by the gates of at the rear of Plaistow police station. They were all wearing hoods and dark clothing, with the exception of Itzaz Akhtar, the appellant, who was wearing a distinctive white striped Adidas jacket.
3. On seeing the police carrier, the appellant fled on foot but the remainder of the group managed to get into a Mercedes A class motor vehicle parked nearby: they escaped. The appellant was arrested for possession of an offensive weapon in Gardner Road, E13 by an officer (Constable Neocleus) who had given chase. Another officer (Sergeant Hall) observed that a pair of gloves had been discarded by the appellant into a garden during the chase. The appellant also smelt of petrol. An examination of the area at the back of Plaistow police station led to the recovery of four abandoned petrol bombs, that is to say, bottles filled with petrol with some kind of a slow burning ignition or paper wick stuffed into it.
4. In interview, the appellant denied the offence claiming that he had been walking towards his girlfriend's house when he was confronted by a group of young men wearing gloves and masks; he denied that the vehicle in which the men had fled was his, that he had discarded gloves or that he had ever seen the petrol bombs. Further enquiries revealed that much of what he had said was untrue.
5. At the first trial, the prosecution opened the case on the basis that the counts on the indictment were alternatives. In relation to count 2, the case was put on the basis that the appellant was in possession of petrol bombs and, at trial, had admitted pouring petrol into the bottles. It was also contended that he was involved in a joint enterprise, intending to use the petrol bombs to destroy or damage property.
6. The prosecution relied on the following features:

i) The presence of the appellant with a group of males, wearing hoods and dark clothing, in suspicious circumstances, congregating under the cover of darkness at the back of a police station where petrol bombs were abandoned, at a time when there were riots and violent disturbances across London. On seeing the police vehicle, the appellant had run away, discarded his gloves and, on arrest, smelt of petrol which he admitted using to fill the bottles.

ii) Unchallenged cell site evidence showed that between 8.36 pm and 8.40 pm, the appellant's phone had been in the vicinity of a BP petrol station from which photographs or stills from CCTV showed him sitting in the front passenger seat of his Mercedes car and paying for the petrol. It was this car which was used by the other males to make their escape from the police station.

iii) The appellant had admittedly lied in interview (in particular in relation to his ownership of the Mercedes and his discarding of the gloves). His defence was implausible, inconsistent with the cell site evidence, raised very late in proceedings and included an allegation that the police had threatened to stick a pen in his eye.

7. The defence was one of duress. In relation to possession (Count 2), he said that he was not in custody or control of the petrol bombs because he was himself being controlled by others and, in any event, had a reasonable excuse for any possession because he was forced to fill the bottles with petrol and be at the scene.
8. The appellant gave evidence that he had been out in his Mercedes with his friend when he went to the BP petrol station. After dropping his friends off, he was on his way to his girlfriend's home via Upton Park station, when he was confronted by males to whom he owed money for cannabis. They forced him to go to Catherine Road and he was then put in the boot of a car and he was then assaulted and made to make petrol bombs. He was given the gloves to wear which were the same ones he discarded during the police chase. He was then taken to the back of the police station. When he saw the police arrive he was relieved. He ran because he did not realise it was the police chasing him. He said that the police immediately assaulted him and threatened to stick a pen in his eye. He admitted lying to police but he was too scared to tell the truth: had he done so, he would have been kidnapped and killed. In that regard, he relied on evidence of the injuries he had suffered and which he had reported to police.
9. It was common ground that the petrol bomb was an offensive weapon and the issue for the jury was whether they could be sure that the appellant was in possession of a petrol bomb (which was sufficient for count 2) and whether he intended to use a petrol bomb in his possession to destroy or damage property (necessary for count 1). The counts were put on the basis that they were alternatives in that the prosecution did not seek verdicts in relation to both charges: that was made clear in the opening and repeated during the summing up.
10. The jury was told that if they came to the conclusion that the intention in count 1 was not satisfied, "the prosecution say move to count 2 and consider whether the defendant simply had these items with him, items which fall into the category of an offensive weapon". In the event, the jury could not reach a majority verdict on count 1 but indicated that they had a majority verdict on count 2. Counsel did not demur from the proposition that this verdict should be received, the judge observing that the Crown could "think again" about count 1. Thus, the verdict of guilty on count 2 was received.
11. After reflection, the Crown indicated that it would pursue count 1 to a retrial; thereafter, on 16 January 2013, Miss Hussain for the defendant submitted before His Honour Judge Carr that continued prosecution on count 1 should be stayed on the grounds that it constituted an abuse of process. Following argument, the judge ruled that the proceedings would not be stayed. He recognised that although the two offences came under different statutory regimes, they had been opened and left by Judge Ader on the basis of being alternatives. Having noted that defence counsel had not objected to the verdict on count 2 being received and considering the decision in Saunders [1988] AC 148, he concluded that there was nothing wrong in what the jury had done. Having recognised that it had not followed the judge's direction only to consider count 2 having reached a conclusion on count 1, he went on:

"It seems to me entirely proper and appropriate they went on to consider count 2 and prepare the verdict that they did. They, having granted [sic] that verdict, there seems nothing wrong at all in the Crown going ahead on count 1, either in principle or on the particular facts of the case [which] could begin to amount to an abuse or anything like an abuse. The position is that the jury, seized of the facts, having indicated that they are sure that he was in possession of, in this case, a petrol bomb, such that the defence of duress did not arise, but were unsure on what was a potential alternative and more serious offence, in which I am told and obviously accept it wasn't simply an issue of duress, but also the fact that he indicated he had assisted in the construction of petrol bombs he had no intention himself of doing any damage or destruction to property with them. It therefore renders the conclusion on count 2 even more logical than the position would otherwise have been ..."

12. The retrial later proceeded before Her Honour Judge Dean with the prosecution contending that the appellant intended to use the petrol bombs which were in his possession (and which he had admitted making), to cause damage to the police station. In addition to the features set out above, with the leave of the judge, the prosecution also relied on the conviction of the appellant for possession of an offensive weapon, namely, the petrol bombs: this ruling led to an admission that the appellant was in possession of the bombs.
13. The defence was that the appellant had no intention to use the petrol bombs or causing any damage and he was present at the police station under duress. The appellant gave evidence that he lied to the police out of fear and because he did not think his account would be believed. He had been out with his friends that day before dropping them off and smoking a joint (of cannabis). He was then confronted about a drug debt and he was driven around in the back seat of his car. He was extremely frightened. He was forced to hold the bottles when the petrol was poured into them but he had no intention of using them or causing damage to the police station. He further relied on the fact that no lighter was found on him on his arrest; he would therefore have been unable to light the petrol bombs.
14. The issue for the jury was limited to the appellant's intention and, in particular, whether he intended to use the petrol bomb in his possession to damage property; in that context, the defence of duress fell to be considered. In the event, the second jury, also by majority, convicted him of this offence also.
15. In this court, Mr Joel Bennathan Q.C. for the appellant argues that the prosecution for possession of the petrol bombs with intent to damage property should not have been permitted pursuant to what he describes as the rule in Bayode. He also submits that there was a material misdirection in the first trial in that the jury should have had to find proved that the petrol bomb was an offensive weapon, that is to say, made to cause injury to a person; this was inconsistent with what was described as the more serious allegation of an attack designed to damage property. Mr Mark Heywood Q.C. for the Crown argues that both convictions are safe.
16. We deal with the second ground first because if the conviction for possession of an offensive weapon cannot be supported and must be quashed, the fact of its admission at the retrial for possession of an article with intent to destroy or damage property would, without more, render that conviction unsafe. The argument is very shortly stated. Mr Bennathan submits that neither the parties nor the judge addressed the question whether a petrol bomb was properly characterised as an offensive weapon: it was assumed by all that it was and the issue was not left to the jury.
17. In support of the argument, he points to the fact that the alternative offence alleged by the Crown in count 1 required an intent to cause damage to property and points to the definition of offensive weapon contained in s. 1(4) of the Prevention of Crime Act 1953 (as amended) as focussing on injury. It provides:

"In this section … "offensive weapon" means any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him or by some other person."

18. Mr Heywood recognises that Judge Ader did not leave the issue to the jury but underlines that there was no dispute that the petrol bombs were offensive weapons per se (or at the very least were intended for use in causing injury by those others present). On the evidence, they had been adapted for use during the disturbances and carried to a location at the rear gate of the police station which gave access to a secure yard through which police personnel passed in vehicles.
19. In R v Simpson 78 Cr App R 115, Lord Lane CJ identified three possible categories of offensive weapon in these terms:

"[F]irst of all the weapon made for use for causing injury to the person, that is a weapon offensive per se as it is called, for instance a bayonet, a stiletto or a handgun; the second category is the weapon which is adapted for such a purpose: the example usually given is the bottle deliberately broken in order that the jagged end may be inserted into the victim's face; and the third category is an object not so made or adapted but one which the person carrying intends to use for the purpose of causing injury to the person."

20. The court was considering whether a flick knife was offensive per se and recognised that in R v Williamson (1978) 67 Cr App R 35, Lord Lane CJ had observed that whether the object in any case could properly be described as an offensive weapon was not for the judge but for the jury to decide. The analysis in Simpson continued to the effect that:

"the mere fact that a particular weapon can be, and perhaps often is, used for an innocent purpose does not necessarily take it out of the offensive per se category."

21. Lord Lane went to speak of the "scope for unevenness in the administration of the law" and the risk that an identical weapon may be subject of different decisions by different juries. He then referred to the concept of judicial notice and concluded that this doctrine did operate to identify that flick knives came into the category of a weapon offensive per se which permitted the jury to be directed to that effect.
22. What is the position of a petrol bomb? It is specifically made to be easily portable, for use in public disorder, easily lit and thrown so as to cause explosion with resulting injury and damage. The fact that an offensive weapon might be used for an innocent purpose, as Lord Lane observed in relation to flick knives, is not to the point. Indeed, this case is a fortiori to that: it is difficult to see an innocent purpose to which a petrol bomb could be put. In the circumstances, we have come to the conclusion that a petrol bomb is offensive per se and we venture to the view that the public would be astonished if the courts did not consider that to be clear.
23. As a result, although there is no material to suggest that this type of analysis was undertaken, whether or not it was is neither here nor there. The case was conducted by all on the basis that the petrol bombs were offensive weapons and Judge Ader did not leave that question to the jury. Although his explanation to the jury (which revolved around damage) is flawed, the conclusion that the jury did not have to consider whether the petrol bombs fell within the reach of this legislation is not. Finally, although we recognise that a petrol bomb is an explosive substance for the purposes of the Explosive Substances Act 1993 (see R v Bouch 76 Cr App R 11), so that other offences might have been capable of being charged, that fact does not affect our analysis. This ground of appeal is rejected.
24. The more substantial ground of appeal concerns the procedural consequences of taking a verdict on count 2 (possession of an offensive weapon) and then permitting a re-trial on count 1 (possession with intent to cause damage). In short, Mr Bennathan submits that, having taken a verdict on what had been described as the alternative count 2, the Crown was barred from further pursuing the appellant on count 1.
25. Mr Bennathan relies on what he describes as a general concept or principle of law that the Crown should not seek to convict a defendant more than once for the same conduct and points to three examples of that principle. These are, first, the concept of autre fois convict or autre fois acquit which, subject to irrelevant statutory exception, provides that a man cannot be tried for a crime in respect of which he has previously been acquitted or convicted or could, on some previous indictment, have been acquitted or convicted: see Connelly v DPP [1964] AC 1254 further discussed in R v Beedie [1997] 2 Cr App R 167 The second example comes from the rule in Elrington [1861] 1 B & S 688 in which Lord Cockburn said that "whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form". Third, and particularly relevant to this appeal, is the principle to be derived from R. v Bayode [2013] EWCA Crim 356 which he contends prevents a second trial once an accused has been convicted of one of two alternatives citing the observations of Hughes LJ (as he then was) at para. 25:

"It is in the very nature of alternative charges meaning a greater offence with a lesser included alternative, that there can be a conviction only for one or the other and not for both."

26. Although it is not suggested that this case falls within the bounds either of autre fois or Elrington, in order to elucidate the underlying abuse that is addressed, it is appropriate to say a little more about each. As for autre fois, there is no question of the offence of possession of an article with intent to cause damage to property being an offence for which he could have been convicted on a charge of possession of an offensive weapon, or, indeed, vice versa. In short, it is not the same offence, the legal ingredients being different: see the explanation provided by Sir John Thomas P (as he then was) in R v J(F) [2013] EWCA Crim 569 when he explained:

"It is well recognised that it is by no means easy to determine what the ratio in Connelly was ... In our view the majority decision is contained in the speech of Lord Devlin. Lord Reid (at 199 and 1295) and Lord Pearce (at 283 and 1368) agreed with Lord Devlin, rather than Lord Morris, even though Lord Morris' speech is sometimes treated as authoritative. It follows that the scope of autre fois is narrow and the offence, as well as the facts, must be the same for the plea of autre fois to apply."

27. Similarly, further prosecution for the offence of possession with intent is not a breach of the principle in Elrington which prevents the commencement of a prosecution for a more serious offence subsequent to conviction (or acquittal) of a minor offence on the same facts. The critical feature is that the second attempted prosecution follows the result of the first. That much is clear from the more recent decision in R v Beedie [1997] 2 Cr App R 167 in which a landlord who had been prosecuted, convicted and sentenced for health and safety offences following the death of a tenant from carbon monoxide poisoning was thereafter prosecuted for manslaughter on identical facts. This court rejected the suggestion that the rule of autre fois was in play but held per Rose LJ (at 176)

"A stay should have been ordered because the manslaughter allegation was based on substantially the same facts as the earlier summary prosecutions and gave rise to a prosecution for an offence of greater gravity, no new facts having emerged."

28. In Bayode, Hughes LJ explained the principle in these terms (at para. 22):

"The Crown must ordinarily decide once and for all what charges are appropriate to alleged criminal misconduct and must prefer them. It is not normally open to it to proceed first for a minor offence and then later to charge a more serious one arising out of the same facts."

29. That is not, of course, what the Crown sought to do in this case which says nothing about the further prosecution of any count included in the same indictment as that in which the conviction or acquittal was recorded which is said to found the basis of the bar. Thus, Mr Bennathan was right not to pursue either of these limbs.
30. Turning to the principle that once an accused has been convicted of the lesser of two alternatives, a further trial is an abuse of process, the starting point is the decision of the House of Lords in R v Saunders [1988] AC 148. The accused had stood trial for murder but the jury was unable to agree and were permitted to return a verdict on the alternative, lesser, offence of manslaughter contained within the murder count, without any additional count being added. The appeal was based on the proposition that the judge was not able to take such a verdict because there was no such count on the indictment and there had been no acquittal of murder whereas s. 6(2) of the Criminal Law Act 1967 provided only that on an indictment for murder a person found not guilty of murder may be found guilty of manslaughter. The House of Lords rejected that argument on the basis that the provision had no application to the case as it dealt with a jury that had acquitted and not one that had simply failed to agree. Lord Ackner put the matter in this way (at 161G):

"Before the judge took the course that he suggested, he invited the views of the prosecution and the defence. The course he had proposed had their joint support. He concluded that it would be a just determination of the trial to accept a verdict of guilty on the alternative offence of manslaughter, avoiding as it would the burden of a retrial with all the anxiety which this would entail. I shall perhaps add that if, having invited the prosecution's submissions, these proved hostile to the course contemplated by the judge, he in the proper exercise of his judicial discretion would be fully entitled, having considered those submissions, to adhere to the course he proposed. In such circumstances, there could be no question of the prosecution re-indicting for murder. To attempt to do so would clearly be an abuse of the process of the court and the indictment would be stayed: see Connelly v. DPP...."

31. For the reasons identified above, it is difficult to see the relevance of the principle of autre fois and Mr Bennathan cites the case as an example of a broader abuse of process.
32. Turning to Bayode, the facts were identical to those in Saunders in that the jury were unable to agree on a verdict in relation to a count of murder. In this case, however, a count of manslaughter was then added and a guilty verdict to that count subsequently recorded. It was clear at the time that both the court and prosecution counsel were of the view that such a procedure would not bar a further trial for murder but the judge, having subsequently considered Saunders, changed his mind and refused to allow the prosecution to proceed. An appeal to this court from this terminating ruling was rejected. The court recognised that the case fell outside the principles of autre fois and those identified in Elrington as enunciated in Beedie but considered that the "key feature" of the case was (at para. 25):

"that the charges of murder and manslaughter were from the beginning alternatives one to the other. It is in the very nature of alternative charges, meaning a greater offence with a lesser included alternative, that there can be a conviction only for one or the other and not for both."

33. The court rejected the argument that a verdict of the jury (as opposed to an admission of guilt) did not stand as a 'complete conviction' until sentence was passed; it was always open to a defendant to vacate a plea but there is no power in a trial judge to refuse to accept, or to set aside, a regular and unambiguous jury verdict. Hughes LJ continued (at para 33):

"But whether there is one count or two, there cannot be convictions for both of two offences which are properly mutually exclusive alternatives. If there were two counts and no plea of guilty, the jury would try the defendant on both, but would not be permitted to return verdicts of guilty on more than one. In our view, the course now proposed by the Crown in this case would offend against this fundamental concept of alternative charges."

34. But were these offences (possessing an article with intent to cause damage and possession of an offensive weapon) truly alternatives? As a matter of strict law, Mr Bennathan conceded that they were not, but argued that the effect of the way in which the case had been opened and left to the jury (with the prosecution asserting in opening and the judge directing that they were alternatives) meant that they had to be treated as such. At best, they were 'forensic' alternatives: if the jury convicted on count 1, the prosecution did not require consideration to be given to count 2. As Mr Heywood submitted, they were certainly not 'mutually exclusive alternatives' because they were not precisely the same in factual or legal description or in the mischief to which they were directed.
35. Possession of an offensive weapon can be and is a complete offence prior to any formation of the intention to cause damage and the two offences can be considered as separate in time: the offensive weapon offence was complete when the petrol and wicks were put into the bottles whereas the intention to cause damage need only have been formed later. Similarly, the two counts are totally different from classic mutually exclusive alternatives (such as theft and handling stolen goods) and different from murder and manslaughter (which was the subject of Saunders and Bayode) because both depend on the same act, namely the killing, without any potential for a subsequent intent. Finally, they were not related to each other as a lesser included offence (whether at common law or by operation of s. 6(2) or 6(3) of the Criminal Law Act 1967).
36. Dyer v Watford Magistrates Court [2013] EWHC 547 (Admin) can be similarly characterised as an example of true mutually exclusive alternatives. The magistrates had convicted both of causing racially aggravated fear or provocation of violence (contrary to s. 31(1)(a) of the Crime and Disorder Act 1998) and the lesser form of the same offence namely causing fear or provocation of violence (contrary to s. 4 of the Public Order Act 1986): it was the same act that led to both charges, the aggravating element being specific words used. The reason for both was that if a conviction had been recorded only for the former, a successful appeal would not have permitted the Crown Court to substitute the latter: see Director of Public Prosecutions v Gane [1991] JP 846. In the Divisional Court, Laws LJ observed that the position could have been protected by adjourning consideration of the alternative offence until after any appeal. The conviction itself was unfair as a criminal record should reflect what the offender had done, no more and no less and to convict twice for a single wrong offended this basic rule. Hickinbottom J added (at para. 14):

"It seems to me to be repugnant to justice and not the law of this jurisdiction for a defendant to be found guilty of two offences arising from the same facts where one offence contains all the elements of the other, together with an additional or aggravating element."

37. Mr Bennathan points to a different line of authority which does not involve alternative offences but which is based on what is perceived to be the overall interests of justice. In R v Harris 53 Cr App R 376, the Court of Appeal (Lord Parker CJ, Edmund Davies LJ, Caulfield J) considered an application for leave to appeal a conviction of indecent assault and buggery. Leave to appeal the conviction for indecent assault was granted on the basis that there was "no suggestion of any indecent assault ... except that which formed the preliminary to and was followed very shortly thereafter by the commission of the full act of buggery". Edmund Davies LJ went on (at p. 379):

"It does not seem to this court right or desirable that one and the same incident should be made the subject matter of distinct charges, so that hereafter it may appear to those not familiar with the circumstances that two entirely separate offences were committed. Were this permitted generally, a single offence could frequently give rise to a multiplicity of charges and great unfairness could ensue."

38. With great respect, the description of the facts does not entirely bear out that criticism. It was not alleged that the indecent assault consisted of the buggery or was part of the act of preparation for the buggery in which case the criticism would be well made. Rather the allegation was that the 14 year old complainant had woken up to find the defendant playing with his private parts, that is to say, he was attempting sexually to stimulate the boy. The defendant then buggered the boy doubtless for his own sexual satisfaction. For our part, we do not construe them other than as separate offences either in fact or in law. If the indecent assault had proceeded the buggery by any lapse of time, it is difficult to see how the contrary would be arguable: how little time must elapse before the offences are separate? It may not be irrelevant, therefore, that this application for leave was heard without the applicant being present or represented and without counsel for the Crown. On any showing, however, it must depend very much on the facts as the court understood them to be and cannot therefore be of general application; the vice that concerned the court can now be resolved by a sentence of 'no separate penalty'.
39. The other decision to which our attention was drawn was R v Pollett [2013] EWCA Crim 359. The appellant had been convicted of conspiracy to defraud and making misleading statements contrary to s. 397(2) Financial Services and Markets Act 2000. This court concluded that these two allegations were not alternatives (a necessary ingredient of making a misleading statement being dishonest concealment which is not required for conspiracy to defraud) but it was clear from the summing up that (as here) a common approach had been that the counts were alternative: in the event, the judge imposed no penalty for the lesser offence. Notwithstanding that approach, Rafferty LJ went on (at para 45):

"However, we are persuaded that Pollett should not have on his record a conviction for two offences which for all practical purposes reflect the same criminality. It is unnecessary to say more than that Count 2, on these facts, is otiose. To that limited extent, Pollett endures some prejudice and we therefore quash the conviction on Count 2."

40. On the face of it, we recognise that making misleading statements may have been the mechanism whereby the appellant put the conspiracy of which he was convicted into effect. Further, different issues arise when allegations of conspiracy and substantive offences are included within the same indictment. It is beyond argument, however, that conspiracy and substantive offences are specimens of overt acts and the Crown will not necessarily be bound to elect: see Archbold, Criminal Pleading Evidence and Practice, 20-15 at para. 33.59. A good example comes from the Great Train Robbery in which convictions for conspiracy to rob and robbery were upheld (although in the reported case, R v Boal (1964) 48 Cr App R 342, the conviction for robbery was quashed for other reasons). Much turns on the specific facts of the case and we do not derive any general principle from Pollett.
41. There are other examples. Thus, convictions for theft and false accounting are frequently pursued although the latter is the mechanism for covering up the former and may well form at least part of the circumstantial basis for the theft allegation. Furthermore, although not alternatives as a matter of law, it is not uncommon for them to be put before the jury as forensic alternatives. The same can be said of allegations of manslaughter and breaches of health and safety legislation. Although we recognise the concern expressed in Pollett that a conviction for both counts which reflects the same criminality might be otiose, the fact that no separate penalty can be imposed does reflect the extent of the criminality.
42. In our judgment, a different approach is entirely justifiable between those cases which are true alternatives (such as Bayode) and those cases, described as forensic alternatives, which are not even though they are presented by the Crown (and by the judge reflecting that approach) to the jury as such. In the circumstances, we conclude that although Judge Carr could have discouraged the prosecution from pursuing a re-trial on count 1 (requiring further consideration of the public interest in the light of any comment he might have chosen to make), there was no impediment in law to the course which he took. In those circumstances, the appeal against conviction in relation to count 1 is also dismissed.
43. That does not bring a consideration of this case to an end for although there is no appeal against sentence (and no basis for interfering with the 5 year term imposed on count 1), being loyal to the reasoning which we have articulated in relation to the existence of both counts, we grant permission out of time to appeal the sentence of 3 years imprisonment imposed on count 2, allow the appeal and impose in its place no separate penalty. We appreciate that this does not affect the position of the appellant in any way but does, at least, better reflect the overall criminality.