The Law Commission

PART II

THE PROBLEMS

2.1      The problems we address in this report arise where the same type of offending conduct of the defendant is repeated many times – too many for each individual offence to be accommodated in a single trial.^[1] One way which had, in the past, been found of coping with such serial offending was to identify a manageable number of "sample" counts. The trial proceeded upon the sample counts and, following verdicts of guilty, the judge sentenced on the footing that the counts upon which the defendant had been found guilty were samples of the much larger number of offences committed. The defendant could thus be sentenced to a term commensurate with the totality of the offending and not merely for that represented by the sample counts.
2.2      In this way, sentencing on findings of guilt on sample counts mirrors the approach of the court (still available) where it sentences on pleas of guilty to a sample selection of offences but where, in addition, the defendant asks to have the court take into consideration other offences, set out in a schedule, to which no plea is formally entered but which are admitted. This enables the defendant to wipe the slate clean. The court can sentence for the totality of the offending represented both by the guilty pleas and the offences taken into consideration. The police are helped with their clear up rates – a benefit to all.
2.3      The pragmatic arrangement of proceeding in a contested matter with sample counts was thrown into disarray by the decision of the Court of Appeal in Kidd & ors.^[2] Kidd was a case involving a series of indecent assaults. The defendant was convicted on four counts and the judge treated these as sample or specimen counts for the purpose of sentencing for the entirety of the offending alleged.
2.4      Lord Bingham LCJ, in the Court of Appeal, took the position that it offended a fundamental legal principle for the defendant to be sentenced not only for the four specific offences of which he had been convicted after a trial, but also for others of which the four were specimens but of which he had been neither convicted, nor to which he had pleaded guilty nor agreed to have taken into consideration.^[3]
2.5      Mills^[4] and Bradshaw,^[5] both cases that were addressed in Kidd,^[6] demonstrate the problem regarding effective prosecution where defendants engage in a large number of similar fraudulent transactions.
2.6      In Mills, a co-accused named Price had been

convicted on a single count of corruptly accepting a sum of money of unspecified amount. The count was so framed because the prosecution were unable to specify what he had received and when. His own evidence made it plain that he had received cheques or £50 cash on numerous occasions, the total received being some £5,450. The judge at the trial, with the assent of the prosecution, took one £50 payment as a sample, but on conviction sentenced Price for receiving the aggregate sum of which he took the view the jury, by their verdict, had inevitably convicted him.^[7] (emphasis added)

2.7      The Court of Appeal approved that course in its decision in Mills, but in Kidd, Lord Bingham LCJ said that

if the single unamended count embraced a series of different payments on different dates it would appear to have infringed the rule that only one offence may be charged in each count of an indictment; if on the other hand, the single count was to be understood as charging a single receipt of £50, it is hard to see how Price was convicted of corruptly receiving any of the other payments, and since he did not admit any offences or ask for them to be taken into consideration the approved basis of sentence would seem hard to justify in principle.^[8]

2.8      Similarly, in Bradshaw,^[9] the defendant was convicted on five counts of theft from five specific investors, totalling £97,000. The overall loss caused by the scheme was £3 million. On appeal, Bradshaw complained that in sentencing him to six years' imprisonment the trial judge, though disclaiming any intention to do so, had sentenced on the basis of the overall deficiency. The Court of Appeal upheld the contention that guilty verdicts on the five counts would necessarily have involved guilty verdicts in relation to all the other victims had counts been present. In Kidd, however, the court differed from that conclusion, saying "we think it inconsistent with principle that a defendant should be sentenced for offences neither admitted nor proved by verdict".^[10] Lord Bingham said that the court had "reached the correct conclusion in Reg. v. Clark [1996] 2 Cr. App. R. 282",^[11] when it had held that it was not open to a sentencer to sentence on the basis that the offence of which the defendant had been convicted was aggravated by unproved, separate and distinct offences.
2.9      The logic and correctness in principle of this decision cannot be faulted and we do not seek to do so. However, at a stroke it created major problems for dealing with much high volume offending. Lord Bingham pointed out that:

Prosecuting authorities will wish, in the light of this decision and Reg. v. Clark, to include more counts in some indictments. We do not think this need be unduly burdensome or render the trial unmanageable. The indictment in Reg. v. Kidd provides a convenient example. It contained 18 counts alleging abuse of eight different girls. Most of the counts related to [a day during]^[12] a period of one or two calendar years.^[13]

2.10      While this is unlikely to create an insurmountable problem in sexual offence cases, the decision creates obvious problems in cases of multiple theft and deception where the total sum obtained is highly relevant to sentence. In such cases, the decision in Kidd^[14] precludes the use of trials based on sample offences followed by sentencing on the totality of offending. This has undercut the efficacy of a defendant asking for offences to be taken into consideration where the number involved could not sensibly be accommodated in a trial.^[15]
2.11      It poses an intractable dilemma for prosecutors and the courts. In essence it counterposes the inability of a court to deal with an indictment with hundreds of separate counts with the inability to sentence for the totality of offending in the absence of a decision on each instance of offending. Thus, unless a defendant volunteers to be dealt with by pleading guilty and asking for a schedule of offences to be taken into consideration, a person whose offending involves the commission of hundreds of offences, each perhaps involving a small amount, but whose overall gain might be considerable, could never be sentenced to a term which reflected the true extent of their offending.^[16] The defendant could only be sentenced to a term commensurate with the, perhaps relatively trivial, amount involved in the offending with which the trial process could cope. For example, the Serious Fraud Office recently told us of a case of advance fee fraud, where

the total amount involved is well over £1 million but where each victim parted with no more than £7,000. Neither conspiracy to defraud nor fraudulent trading are viable on the facts and we may not safely include more than ten individual counts on the indictment.^[17]

2.12      The problem is an important one because the consequence of the impracticability of prosecuting the full extent of dishonest offending in such cases is that the vast majority of such offending is not prosecuted and the offender thus escapes appropriate sanction. This cannot be right. If it were feasible to have a trial on hundreds of counts there would be no problem. It is generally accepted that it is not. Where hundreds of individual thefts, deceptions and obtainings occur it is impracticable to present each and every one of them as a separate count in a jury trial^[18] even though the prosecution will (and must) have all the evidence they need against the defendant.
2.13      Under the present system, where there is a limit to the number of separate counts, each containing a single offence, that can be managed within a jury trial, it is not possible to give full respect to each of the two fundamental principles set out below. To some degree, one is bound to yield to the other. The principles are:

(1) Defendants should only be sentenced for that which they have admitted, or which has been proved following a trial in which both sides can be examined on the evidence.

(2) It should be possible to sentence for the totality of an individual's offending. Defendants should not escape just punishment because the procedure cannot accommodate this.

2.14      In cases such as Mills^[19] and Bradshaw,^[20] it was the first of these principles which yielded to the second. Since the decision in Kidd,^[21] that position is reversed. In our recommendations, we strive to give recognition to both of these principles. We do this by addressing the aspect of the present system which lies at the crux of this tension – the impracticality of having a manageable jury trial on sufficient separate counts to reflect the overall criminality of the defendant. Accordingly, in formulating our new recommendations for more effective prosecution of multiple offences we have focused on different techniques to address this problem.
2.15      Our first recommendation, for a compound allegation, applies to those cases where the law already permits certain repeated offending to be tried as a single offence categorised as a single continuing transaction. This already enables certain limited categories of multiple offending to be dealt with in a single trial. Our recommendation would apply in the Crown Court and would enable the jury to inform the judge, for sentencing purposes, of its findings of the extent of the defendant's guilt where it has found him or her guilty of such a single count.
2.16      Our second recommendation, for a two stage trial procedure, recognises that there will be certain cases of multiple offending which cannot be encompassed in a single trial before a jury. Our recommendation combines familiar techniques of conducting a trial on sample counts and of judicial fact-finding for the purpose of sentencing. It adapts them so as to form a two stage trial process which will ensure that the defendant will be sentenced for the entirety of the proven wrongdoing but, only for those offences which have either been admitted or asked to be taken into consideration, or in relation to which there has been a conviction after trial.
2.17      Our third recommendation is to extend the ambit of the well established activity offence of fraudulent trading, contrary to section 458 of the Companies Act 1985, to cover non-corporate fraudulent traders.
2.18      These recommendations each give respect to the principle highlighted in Kidd,^[22] that in order to sentence in accordance with first principles the judge must know what conduct forms the basis of the defendant's conviction or admission of guilt. The first recommendation gives the jury the task of indicating the extent of the defendant's guilt; the second ensures that the defendant will only be sentenced for those offences of which he or she has been convicted after a two stage trial, or which he or she has asked the court to take into consideration after a first stage trial on sample counts. The third recommendation gives the jury the task of deciding whether it is sure that the defendant committed the proscribed activity offence.
2.19      Before making good our recommendations in detail we will first outline the present law which has influenced our thinking and identify the types of offence in respect of which difficulties stemming from this tension are faced.

Note 1    At common law there are rules against the overloading of indictments. The courts recognise that too many counts in a trial cause great difficulties, Novac [1977] 65 Cr App R 107, 118–19, per Bridge LJ, Kellard [1995] 2 Cr App R 134.    [Back]

Note 2    [1998] 1 WLR 604. This case is also frequently referred to asCanavan.     [Back]

Note 3    The outcome however was that the sentence remained unchanged. The court was not able to say that a sentence of 15 months’ imprisonment was manifestly excessive for just those four offences committed by a man who grossly abused his position of trust. There had been no guilty plea to mitigate the sentence.    [Back]

Note 4    (1979) 68 Cr App R 154.    [Back]

Note 5    [1997] Crim LR 239.    [Back]

Note 6    [1998] 1 WLR 604 at pp 607–608.    [Back]

Note 7    Ibid at p 607E–F.    [Back]

Note 8    Ibid at p 607G.    [Back]

Note 9    [1997] Crim LR 239.    [Back]

Note 10    [1998] 1 WLR 604 at p 608G. See also Rosenburg [1999] 1 Cr App R (S) 365.    [Back]

Note 11    [1998] 1 WLR 604 at p 609E.    [Back]

Note 12    Lord Bingham explained in the following paragraph of this report that the particulars of the offence specify that the assault took place “on a day between” 1 January 1999 and 31 December 1999. In view of this, the argument of appellant counsel that the count was intended to cover numerous assaults and offended against rule 4(2) of the Indictment Rules 1971 failed. It was in relation to sentence that the counts were treated as specimen counts.    [Back]

Note 13    [1998] 1 WLR 604 at p 609F.    [Back]

Note 14    [1998] 1 WLR 604.    [Back]

Note 15    The way in which it did this is illustrated well by the case of Evans [1999] Crim LR 758, see para 3.12, below.    [Back]

Note 16    The courts regard both the amount gained and the duration of the offending as highly relevant to the length of sentence.    [Back]

Note 17    Other typical examples of repetitious offending where these difficulties in prosecuting have been faced are benefit fraud, non-corporate fraudulent trading and fraud by those who exploit other opportunities to defraud, such as by overcharging for NHS work or by making door to door visits for the purpose of a scam, counterfeiting and internet child pornography.    [Back]

Note 18    See for example the judicial comments in Evans [1999] Crim LR 758, per Mantell LJ at pp 147 – 148.    [Back]

Note 19    (1979) 68 Cr App R 154.    [Back]

Note 20    [1997] Crim LR 239.    [Back]

Note 21    [1998] 1 WLR 604.    [Back]

Note 22    [1998] 1 WLR 604.    [Back]