England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Southhampton Crown Court
His Honour Judge Hope
T20127186

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/02/2015

Lord Justice Fulford :

Introduction

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to some of the offences charged in this case. No matter relating to the victim shall, during her lifetime, be included in any publication if it is likely to lead members of the public to identify her as the victim of the relevant alleged crimes. This prohibition applies unless waived or lifted in accordance with s.3 of this statute.
2. On 17 April 2013 in the Crown Court at Southampton before Judge Hope and a jury the appellant, A (who is now aged 29), was convicted of rape and sexual assault by penetration (counts 2 and 4 respectively). He was acquitted of threats to kill (count 5). On 22 May 2013 he was sentenced to 16 years' imprisonment on count 2 and to a concurrent term of 8 years' imprisonment on count 4.
3. C, the appellant's mother, was convicted of witness intimidation (count 8) and was sentenced to 18 months' imprisonment. She was acquitted of threats to kill (count 7).
4. B, the appellant's father, was convicted of sexual assault on a female (count 3) and sentenced to 2 years' imprisonment. The jury were unable to reach a verdict on the separate count of rape that he faced (count 1). He was acquitted of making threats to kill (count 6)
5. Before this court the appellant appeals against his sentence by leave of the single judge. Furthermore, he renews his application for leave to appeal against his conviction following refusal by the single judge. When the case was listed on 9 July 2014, the Full Court (Fulford LJ, Foskett J and the Recorder of Bristol) adjourned the hearing and a request by the appellant to introduce fresh evidence in order to give the prosecution an opportunity to investigate the material on which the appellant proposed to rely in support of his application for leave to appeal against conviction. The court ordered the prosecution to file any relevant evidence by 13 August 2012. The appellant was afforded until 27 August 2014 to file his skeleton argument, with the prosecution's response to be filed 7 days thereafter.
6. The directions hearing took place on 14 November 2014 before the present constitution. Mr Singh, on behalf of the appellant, informed the court that he wished to call Harjap Singh (statement dated 7 July 2014) and Balwinder Singh Chahal (statement dated 8 July 2014). The prosecution applied to call the complainant (statement dated 8 August 2014). Mr Richards, for the Crown, conceded that the court should hear the evidence of the appellant's witnesses, Singh and Chahal. The court, in the result, granted leave to appeal, and directed that the three witnesses were to give evidence.

The Facts

7. The appellant was married to the complainant. They lived with the appellant's parents (his co-accused) in Southampton. The appellant and the complainant had one child, born in 2010. She had been married before – this was said to have been a love match - and the complainant believed that she was treated badly by the appellant's family because of this earlier marriage. The complainant alleged that the appellant had an extramarital affair during their marriage with a woman who lived in Birmingham, with the apparent knowledge and consent of his parents.
8. The complainant's evidence, which included video-recorded interviews with the police, was to the effect that the appellant did not show consideration towards her even during what she described as the occasions when they had consensual sexual relations. Their marriage deteriorated over time, and the appellant behaved violently towards the complainant; she told him that she did not wish to have physically intimate relations with him because he did not treat her well. Ultimately, she considered she had no choice but to submit to his demands – frequently wholly against her will – and she informed him that if he persisted in abusing her in this way it would be the equivalent of having sex with a dead body. She maintained that from at least March or April 2012, the appellant raped her every few days, and the couple had numerous fights and arguments about sex. These events involved anal and oral rape. The complainant suggested that he was extremely persistent about having sexual relations with her, and she said that he beat and attacked her if she resisted his demands. His behaviour deteriorated when he had been drinking. Once he hit her very hard on her back and she showed the officers a long mark on her right hand inflicted when she tried to push the appellant away. Additionally, he pulled her hair, twisted her arms and threatened to cause unobservable internal injuries.
9. Although the complainant gave some particulars of the occasions when, and the circumstances in which, she was raped or sexually assaulted, in the main the allegations were broadly similar in nature, albeit she set out in considerable detail the various ways in which her husband repeatedly mistreated her. Therefore, the incidents of rape and assault constituted more of a pattern of behaviour on the part of the appellant, as opposed to clearly identifiable individual incidents.
10. As to the complaint that he sexually assaulted her, the complainant additionally asserted that whilst they were at home he frequently inserted his fingers into her vagina and anus without her consent.
11. The complainant's account as regards at least some of the incidents changed during the course of her evidence – for instance, there was an occasion when the appellant taunted her on his return from visiting his girlfriend in Birmingham and although her original account was that he raped her, in evidence she suggested that she successfully resisted his violence on this occasion. Similarly, she described an incident in the communal hall in greater detail during her evidence than in the pre-trial interviews. It is relevant to note that she was tested on these changes during the course of her cross- examination.
12. On 6 July 2012 the police were called to deal with an incident involving the appellant and the complainant. She alleged that the appellant and her father-in-law, B, had raped her. Over the following weeks the police conducted a number of interviews with the complainant during which she accused both men of raping her over a period of 3 years. It is to be noted that she had made previous complaints, including the allegation that her father-in-law had raped her, but this was the first allegation of this kind against her husband.
13. Turning, briefly, to the position of her father-in-law, B, she alleged that his sexual assaults began with a considerable amount of touching. This progressed to a particular incident of sexual assault (count 3) and then rape (count 1) after she was persuaded to give him a leg and head massage in his bedroom. Thereafter, he sexually assaulted and raped her on a regular basis.
14. The prosecution relied principally on the complainant's account. This included evidence from three women with whom she spoke concerning these events: Eileen Levi, Amerjitand Jennifer. They each suggested that the complainant told them that her husband and father-in-law were raping her, and they said they had seen bruising to her body. D, the husband of the appellant's lover, claimed that both the appellant and his father had had sexual intercourse with his wife.
15. It is of relevance to note at this stage that the prosecution included three "multiple incident counts" (counts 1, 2 and 4) in the indictment. In adopting this approach, the Crown relied on the Practice Direction then in force, Practice Direction (Criminal Proceedings: Arraignment) [2008] 1 WLR 154 at IV.34.14, which provides:

In […] cases, such as sexual or physical abuse, a complainant may be in a position only to give evidence of a series of similar incidents without being able to specify when or the precise circumstances in which they occurred. In these cases, a "multiple incidents" count may be desirable. If on the other hand, the complainant is able to identify particular incidents of the offence by reference to a date or other specific event, but alleges that in addition there were other incidents which the complainant is unable to specify, then it may be desirable to include separate counts for the identified incidents and a "multiple incidents" count or counts alleging that incidents of the same offence occurred "many" times. Using a "multiple incidents" count may be an appropriate alternative to using "specimen" counts in some cases where repeated sexual or physical abuse is alleged. The choice of count will depend on the particular circumstances of the case and should be determined bearing in mind the implications for sentencing set out in R v Kidd [1998] 1 WLR 604.

16. The present iteration of the Criminal Practice Directions [2013] 1 WLR 3164; [2013] EWCA Crim 1631 repeats this text essentially unchanged at paragraph 14A.13. This part of the practice direction supplements Rule 14.2(2) of the Criminal Procedure Rules which permits the prosecution to include counts in the indictment that allege a course of conduct:

(2) More than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.

17. The judge's direction to the jury was as follows:

Now, as you can see, in fact, three of these counts, Count 1, Count 2 and Count 4, are what is described in the statement as multiple incident counts pursuant to a criminal procedure rule. In those three counts, members of the jury, to be guilty of such a count, a multiple incident count, the defendant concerned who is charged in the indictment on that count must be proved so that you are sure to have carried out the activity alleged in the count on more than one occasion during the period specified in the date set out in the particulars of the offence. So, two such occasions would be sufficient in law for that criteria to be met, maybe a lot more but there has to be at least two under a multiple incident count.

If, members of the jury, in any case in any one of those three counts, Counts 1, 2 or 4, you were sure that the activity alleged in the count happened but it only happened on a single occasion, if that was the case it would be open to you to say, "Not guilty as charged, but guilty to a single incident count." So that is how to look at those multiple incident allegations.

18. We turn to the implications of his approach as regards sentence later in this judgment.

The Defence Case

19. The appellant denied the allegations when interviewed. The defence case was that the allegations had been fabricated. The appellant accepted that there had been disharmony in the household, dating back to when the complainant had been given "leave to remain" by the Home Office. However, he maintained that their sexual relationship had been entirely consensual.

The Fresh Evidence

20. Balwinder Chahal has been at various time the General Secretary of the Gurdwara Nanaksar. The individual who occupies this role gives general advice and assistance to members of the community.
21. He met the complainant for the first time in the Gurdwara Nanaksar (in the dining hall) in February 2014 when she asked for his help because she wanted to be reconciled with her husband. Mr Chahal said it is usual for members to ask members of the Gurdwara committee for guidance, albeit he was not acting as General Secretary at this particular point in time. The complainant had previously attended another temple on the same street. She told him about her family and their problems. She said her daughter missed her father and she considered that his sentence was too long. She indicated she felt guilty about what had happened. The complainant said the appellant had raped her but nonetheless indicated it would be better if they got back together as a family.
22. Mr Chahal met her on a second occasion with Harjap Singh, the then General Secretary. The complainant repeated much of what she had said on the first occasion and she mentioned the sexual assaults by her father-in-law. When they asked why she wanted to be reconciled after these events, she said she had lied "a little" because a woman called Eileen had persuaded her that otherwise her husband might go free. Mr Chahal did not know how many lies she had told or the subject matter of the lies, and he said it was not his duty to investigate these matters. She said her husband and father-in-law had gone to prison respectively for raping and sexually assaulting her. She repeated her belief that the appellant had received a very severe sentence. She indicated that her daughter wanted her father and she wanted to be reconciled with her husband for her sake.
23. She asked Mr Singh to write a letter which was to be sent to the police and the court. Contact was made with the appellant's family, who indicated that they were prepared to be reconciled with their daughter-in-law.
24. Harjap Singh gave broadly corroborative evidence, save he did not suggest the complainant alleged that her husband had raped her, although he recalled she said the appellant had been horrible to her. Instead, she alleged that her father-in-law had raped her. She indicated that her husband had been imprisoned for 16 years and she felt guilty. She had not realised that he would be punished so severely. She told him that an Indian lady called Eileen had advised her that she needed to tell a "little lie" because otherwise he would get away scot-free. As a result, she had told a few lies in court. As with Mr Chahal, this witness did not enquire as to the extent or the nature of the lies. She indicated that she wanted to make up with the appellant even if he did not forgive her.
25. Mr Singh helped by writing two letters that were aimed at assisting the appellant, albeit they indicated he had treated the complainant badly. The main difference between them was that the second letter reflected the fact that the couple were divorced. However, the complainant never sent them and in due course she indicated that she did not want to take the matter any further.
26. The complainant denied in her evidence before us that she had sought the help of Messrs Chahal or Singh in order to effect a reconciliation, and instead she testified that she had told them about her concern that the appellant would be unchanged following his release from prison. Mr Chahal indicated that it would be a good deed if she organised her husband's release, but she did not wish to live with him again. She said that it was Mr Chahal's idea to write the letter referred to above, and he tried to persuade her to send it. She said that Eileendid not advise her about how to give her evidence or what to say. She did not suggest to the complainant that she should lie but instead provided her with support and assistance, particularly on an occasion when her husband was very drunk and telephoned the police.

The Grounds of Appeal Against Conviction

Inconsistency

    Submissions

27. The ground of appeal against conviction for which leave was refused is that the verdicts are fatally inconsistent as between the appellant and his father, and that as a result the convictions of the former on counts 2 and 4 are unsafe. It is suggested that no reasonable jury could properly have reached different conclusions as regards the two accused, given the case against them was based on the same evidence and the jury was confronted with a continuing and essentially undifferentiated scenario involving both men (albeit they were not charged with joint offences). Mr Singh emphasises that following the jury's disagreement as regards the complaint's father-in-law, a not guilty verdict was entered at the direction of the judge, and he contends that in all the circumstances there is a lurking doubt as to the safety of the appellant's convictions.

    Discussion

28. The single judge observed, when refusing leave on this ground, that:

It is indeed notoriously difficult to challenge the verdict of the jury on the grounds that their verdicts are inconsistent. In sexual cases in particular, it is the common experience that juries may be sure of part of a complainant's evidence and convict upon it but yet not be sure of another part and therefore acquit; that is the position even when there is but one defendant. In this case, however, there were two defendants: the jury were sure and convicted upon the evidence of the complainant which bore against her husband (the applicant A) but yet were not sure in relation to the allegations made against her father in law B (they did not acquit Mohan but, except upon one count of sexual assault, they were unable to agree and in particular they were unable to agree upon the 'multiple incident' count of rape laid against him).

I see nothing in the least inconsistent in the jury being sure of the charges as against Mandeep but yet not sure of the charges as against Mohan. The defendants would have a valid complaint if the judge directed the jury that the verdicts would have to be the same: they were obliged to consider the case against each defendant separately and were entitled to be sure as against one but not the other.

Accordingly, I reject the application for leave to appeal against conviction.

29. We agree with that assessment of the single judge. In our view, this proposed ground of appeal is unarguable. The appellant was charged separately from his father and the allegations against the two men were dissimilar as regards the circumstances of the offences. As against her husband, the complainant gave a lengthy history in which she described the detail of the way he forced her to have sexual relations during their marriage. The incidents involving her father-in-law occurred on different occasions and the two men were not alleged jointly to have assaulted her. The appellant and his father-in-law individually gave evidence in their own defence, and the jury would have been entitled to reach differing conclusions as to their credibility. The jury were sure that the appellant had raped the complainant but they were unable to return a verdict as regards the multi-incident rape allegation concerning her father-in-law, albeit he was convicted of sexual assault (an offence that was said to have preceded the first allegation of rape). The jury's inability to be sure as against one defendant on a count of rape whilst convicting another defendant on a separate count of rape does not reveal any logical inconsistency, even if both counts were essentially dependent on evidence given by the same witness. This is particularly the case when there are multi-incident counts, because the jury need to be sure that the victim had been raped by the accused at least twice.
30. We emphasise, therefore, that it is suggested on the appellant's behalf that the jury reached irreconcilable conclusions. That is not the case. They reached a conclusion to the criminal standard as against one defendant and they were unable to reach a conclusion as regards another defendant. The father-in-law was not acquitted; instead, the jury did not reach a verdict. This is not a situation, therefore, where there is a logical inconsistency between verdicts; instead, as against one defendant there was a guilty verdict and as against the other defendant there was no verdict at all. It is very rare for this court to find that a conviction on one count and a failure to agree on another will provide a ground of appeal. In R v Formhals [2013] EWCA Crim 2624; [2014] 1 Cr App R 35 , Davis LJ observed:

28. It will be a rare case indeed where a failure to reach a verdict can be said to be logically inexplicable when contrasted with or set against a verdict or verdicts which have been reached. If such an argument is to be run, it will have to be run in cases which will call for the closest scrutiny by the court. Moreover, such an argument has to be run in circumstances where the principles applicable to inconsistent verdicts (in the true sense of the words) are—as has long been established—themselves very tightly prescribed: see, amongst other cases, R. v Dhillon [2010] EWCA Crim 1577, [2011] 2 Cr App Rep 112 where the main relevant principles are helpfully summarised by Elias L.J. at [33] of the judgment of the court, and as further amplified by the judgment of the court delivered by Jackson L.J. in the case of R. v Dobson [2011] EWCA Crim 1856 The bar is thus set high for the application of the principle of inconsistent verdicts. It can be set no less high, and perhaps is set higher, where the attempt is to compare and contrast a verdict of guilt with a failure by the jury to agree.

31. This ground has no merit.

Fresh Evidence

Submissions

31. Mr Singh argues that if the evidence of Messrs Chahal and Singh had been available at trial it would have been admissible. He suggests that their testimony is capable of being believed and it has direct relevance on the main issue in the case: the credibility of the complainant. He submits that even if a jury only concluded that she possibly wished to be reconciled with her husband and his family, this might have affected their view of her evidence in a critical way. However, he argues that if they went further and accepted she may have told some "small lies", the verdicts would inevitably be unsafe. Mr Singh suggests that although it is for this court to assess their accounts, in reality it is unsustainable to contend that the evidence of these two witnesses does not undermine the safety of the appellant's convictions.
32. For the Crown, Mr Richards contends that if the complainant had told the two men that she had "lied a little", they would inevitably have questioned her about the nature, extent and importance of the lies.

Discussion

33. As described above, there were some anomalies in the complainant's various descriptions of her treatment at the hands of the appellant. Indeed, it has been an important part of his case that she has been inconsistent in her account as to what occurred. In particular, the appellant alleged at trial that there are some notable differences between the various versions she has provided of her sexual mistreatment. The evidence of the two witnesses to the effect that she admitted telling some small lies needs to be viewed in that critical context. By the time she spoke with Mr Chahal and Mr Singh, she had been cross-examined during the trial on these differences in her account and she had been clearly and repeatedly accused of lying. We stress that, according to the two witnesses, they did not ask a single question in order to establish the content or context of these "small lies". Given the absence of other evidence as to what she meant by this statement, the most likely explanation – and the only explanation for which there is evidential support – is that the complainant was referring to these changes or developments in her account on which she had been tested and challenged in cross-examination. The jury were entirely aware of these differences in her narrative, and they would have made an assessment of whether they amounted to lies on her part, small or otherwise, and, if so, their significance. Therefore, the fresh evidence put before this court by the appellant – which for these purposes we accept is credible and admissible – would not have added to the jury's understanding of the case or materially affected their view of the complainant's reliability or credibility as a witness.
34. It follows that in our judgment the fresh evidence does not render these verdicts unsafe.

The Grounds of Appeal Against Sentence

The Sentence

35. Turning to the appeal against sentence, the judge paid heed to the fact that the appellant was 28 and he was treated as being of good character. However, the judge observed the complainant was a very vulnerable individual and that the appellant had dealt with her in an appalling fashion: he had treated her almost as if she was property. In all the circumstances, there had been a serious breach of trust. The victim continued to struggle in her everyday life. The psychological effect on her had been serious and repeated, and only ended when she left the matrimonial home. The judge noted that in his conversations with the author of the pre-sentence report as well as in a letter he had sent to the court, the appellant continued to denigrate the complainant and was in complete denial as to what he had done. Of critical significance given the central argument raised on the appeal against sentence, the judge found that he had committed multiple rapes against the complainant. He had also committed further acts of degradation on the complainant by penetrating her vagina with his finger on several occasions.
36. The judge considered that the offending fell within the most serious categories as regards both offences for the purposes of the sentencing guidelines.

Submissions

37. This appeal is argued on the basis that the sentence of 16 years imprisonment was excessive and wrong in principle. It is suggested there was a fundamental problem in sentencing the appellant in these circumstances because the extent of his criminality was uncertain, not least because the complainant gave differing accounts about his conduct.
38. It is contended that the judge had no information as to the basis upon which the jury convicted the appellant other than they must have accepted that there were at least two incidents respectively of rape and indecent assault. It is argued that the judge was obliged to accept that scenario as the least serious credible basis for sentencing.
39. Therefore, it is said that although there had been more than one incident of rape, thereby placing this offence within category 1 of the Sentencing Guidelines, the appellant should have been sentenced at the lower end of the range on the basis that the offence occurred towards the end of the relationship. Alternatively, it is suggested this should have been treated as a category 2 offence because category 1 is not intended for circumstances such as the present case. In this regard it is argued that although the jury found that there was more than one rape, it was perpetrated over a very short period in the context of a marriage breaking down, with a husband forcing himself on his wife on two occasions against a background of a continuing consensual sexual relationship.
40. In all the circumstances it is suggested a sentence of 10 years would have been sufficient to reflect the seriousness of the allegations.

The Single Judge

41. The single judge observed:

1 turn then to the appeal against sentence. The form of the indictment, to which no objection seems to have been taken, was a so-called 'multiple incident' count laid pursuant to CrimPR part 14.2 (2). I have serious doubts as to the suitability of a 'multiple incident' count in such circumstances. The judge directed the jury that they could convict only if they were sure that he raped his wife M 'on more than one occasion ... So, two such occasions would be sufficient for that criteria to be met, maybe a lot more but there has to be at least two under a multiple incident count' […]. He further directed them that if they were sure that it happened only once, they could return a special verdict to that effect of 'Not guilty as charged but guilty to a single incident' […]. The same point arises in connection with the 'multiple incident' count charging him with sexual assault upon M.

In fact the jury convicted him of both counts. How then was the judge to sentence him? In accordance with the judge's direction, the jury may have found just two such incidents proved. But the judge found as a fact […] that his abuse was 'serious and repeated'. Since he passed a sentence of 16 years, he must, in effect have found a campaign of rape against her. Such a finding might have been justified had there been a serious of counts laid against him but the full Court should have the opportunity of considering whether such a finding should — or even could - have been made upon this indictment. Indeed, I consider it to be at least arguable that the appellant should have been sentenced upon the basis that the jury might have found only two such incidents proved against him.

NOTE:

I invite the prosecution to attend to explain and justify —if they can - the form of the indictment and to make representations as to the judge's findings of fact.

Discussion

42. There is a long-established rule that it is for the judge to determine the factual basis of sentencing, apart from the rare cases in which the jury is asked to return a special verdict when he will be guided by their decision. But there is an undoubted difference between establishing the facts that are relevant to the charge on which the accused has been convicted, on the one hand, and deciding how many times a defendant committed the crimes for which he is to be sentenced, on the other. Generally, when the prosecution allege that a defendant has perpetrated a number of similar acts on different occasions, it is impermissible for the accused to be charged with a single offence as representing, or constituting, the entire course of conduct for the purposes of sentence. The cardinal rule is that the judge may sentence only for those offences in respect of which the accused has been convicted, or which he has asked to be taken into consideration on sentence. As the headnote in R. v Canavan [1998] 1 Cr App R 79 sets out:

Where a defendant is convicted on an indictment charging him with offences said to be representative of other similar criminal offences committed by him, it is inconsistent with principle that the court should take into account such other offences so as to increase the sentence if the defendant does not admit the commission of other offences and does not ask the court to take them into consideration. Nor does [statute] legitimate the practice of sentencing for unindicted, unadmitted offences.

43. As a result, the prosecution needs to have formulated a clear charging strategy in advance of the Plea and Case Management hearing. In R. v Hartley [2011] EWCA Crim 1299; [2012] 1 Cr App R 7 this court (Hughes LJ VP) set out the following:

12. … Criminal Procedural Rules 14.2(2) … 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.

[…]

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 there exist two new potential procedures. One … [is] … the Criminal Procedure Rules …. 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 …, 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 incidents 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.

44. Thus, the prosecution must choose how to apply or adapt the three distinct possible approaches:

a) To include a count or counts in the indictment pursuant to Criminal Procedure Rules 14.2(2), alleging a course of conduct:

(2) More than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.

b) To request that the judge resorts to sections 17 - 19 Domestic Violence (Crime and Victims) Act 2004 which enables the judge in particular circumstance to try the outstanding allegations following conviction on sample counts; or

c) To include sufficient counts to enable the judge to impose a sentence which sufficiently represents what happened, but care is needed not to overload the indictment.

45. The problem that this case has highlighted is how does the court deal with a course of conduct count under the Criminal Procedure Rules 14.2(2) when the extent, seriousness and timespan of the defendant's offending is unclear from the jury's verdict. There were no means by which the judge was able to interpret the jury's decision in this regard.
46. In our judgment, the central answer to this problem is to be identified in the purpose underpinning multiple counts: it is to enable the prosecution to reflect the defendant's alleged criminality when the offences are so similar and numerous that it is inappropriate to indict each occasion, or a large number of different occasions, in separate charges. This provision allows the prosecution to reflect the offending in these circumstances in a single count rather than a number of specimen counts. However, when the prosecution fails to specify a sufficient minimum number of occasions within the multiple incident count or counts, they are not making proper use of this procedure. In cases of sustained abuse, it will often be unhelpful to draft the count as representing, potentially, no more than two incidents. Indeed, in this case, if there had been a multiple incident count alleging, for example, "on not less than five occasions" with an alternative of one or more specimen counts relating to single incidents for the jury to consider if they were unsure the offending had occurred on multiple occasions, the judge would have had a solid basis for understanding the ambit of the jury's verdict and he would been able to pass an appropriate sentence. Therefore, the prosecution needs to ensure that there are one or more sufficiently broad course of conduct counts, or a mix of individual counts and course of conduct counts, such that the judge will be able to sentence the defendant appropriately on the basis of his criminality as revealed by the counts on which he is convicted. In most cases it will be unnecessary for the counts to be numerous, but they should be sufficient in number to enable the judge to reflect the seriousness of the offending by reference to the central factors in the case: e.g. the number of victims, the nature of the offending and the length of time over which it extended. Therefore, in drafting the indictment, a balance needs to be struck between including sufficient counts to give the court adequate sentencing powers and unduly burdening the indictment. As the editors of Archbold Criminal Pleading Evidence and Practice 2015 at paragraph 1- 225 have observed, the indictment must be drafted in such a way as to leave no room for misinterpretation of a guilty verdict and regard must be had to the possible views reached by the jury and to the position of the judge, so as to enable realistic sentencing.
47. In the present case the judge dealt with the appellant in breach of the requirement that he should not be sentenced for crimes of which he has not been convicted. The only fair approach to the course of conduct counts which he faced (counts 2 and 4) is that he should have been sentenced on the basis that he had committed two offences of rape and two offences of sexual assault by penetration. The overall sentence of 16 years' imprisonment was excessive, particularly since the jury may have convicted on a limited approach to the complainant's account, namely that the offending occurred at the end of the relationship in the context of ongoing consensual sexual activity. Given this offending came towards the bottom end of category 1, and bearing in mind that for each count the jury must have found that the rape or the assault occurred at least twice, we substitute a sentence of 12 years' imprisonment on count 2 and a concurrent term of 6 years' imprisonment on count 4. To that extent only this appeal is allowed. The overall sentence is 12 years' imprisonment.