The Law Commission

PART IV

AMBIT OF PROBLEM

INTRODUCTION

4.1      The decision in Kidd^[1] could, in theory, affect any type of case involving an offence which is capable of being committed repeatedly. In practice, however, the impact of the procedural limitations on prosecuting offences which have been committed repeatedly will vary between different offences and, consequentially, the decision in Kidd has had a greater impact on sentencing for some types of offending than for others.
4.2      Various factors can be identified which may affect the extent to which the Kidd principle is likely to be problematic. The type of evidence involved, the likelihood of being able to commit numerous offences without being caught, the propensity of the offence to be committed on a mass scale and the sentencing options available are all relevant.

EXAMPLES OF OFFENCES OTHER THAN THEFT/FRAUD WHERE THE KIDD APPROACH MAY CAUSE PROBLEMS

Drug dealing

4.3      This type of offence will frequently occur on a large number of occasions before the person is caught. On occasion, drugs offences appear to have raised problems of the type identified in Kidd.^[2] However, in the reported cases the problem has been a failure on the part of the trial judge to direct the jury correctly, or to act consistently with the approach required by Kidd on sentencing, rather than any inherent difficulty in drafting an effective indictment that would allow a sentence which reflects, in full, the criminality of the defendant.
4.4      Brown,^[3] for example, concerns a conviction for possessing a Class B drug with intent to supply (count 1) and a further conviction for being concerned in the supply of a Class B drug (count 3). The Court of Appeal stated that the important question of whether or not the offence in count three could be classed as an activity offence was not relevant to the appeal before them because the judge had clearly and specifically directed the jury that they need only be satisfied that the offence of supply had taken place on one occasion in order to convict. In view of that direction, the judge should not have sentenced on the basis of the "wider picture", but, in accordance with the decisions in Kidd^[4] and Evans,^[5] should have confined himself to the single occasion, on which the jury's conviction was based.
4.5      The inference which may be drawn from this judgment is that if the trial judge had not directed the jury that they need only be sure of one instance of the offending in order to convict, it is arguable that such drug dealing could be classed as an activity offence, and the problem of overloading the indictment with hundreds of counts reflecting every deal would not arise. Khan^[6] is another drugs case, involving two co-defendants, both charged with possessing a Class A drug with intent to supply. The sentence was imposed before Kidd had been decided and the court, on appeal, stated that Kidd made it quite clear that the defendants should only have been sentenced for the specific offence of which they had been convicted, namely, possession of heroin worth £2,700.

Sex offences

4.6      The case of Kidd^[7] was one involving sex offences. This type of offending will often occur in circumstances in which the principles in Kidd are apposite. They are offences of low 'visibility'. This sort of 'covert' offending is more likely to be able to continue over a long period of time without being detected. The offences may be less easy to detect because they are carried out in private and the offender is skilled in covering his or her tracks and dissuading the victim from complaining. Often such offences go unreported for a length of time. Children who are abused repeatedly by adults may suffer the abuse for years before reporting it. By way of contrast, for example, it is unlikely that a person will suddenly be discovered to have been committing public order offences over a long period without anyone having noticed.
4.7      Although, superficially, the case of Kidd may be thought to raise the same problem in sex offences as in multiple dishonesty offending, the drawing up of indictments and the conduct of trials in cases of serial child abuse present a very different set of problems.
4.8      In cases of multiple fraud there is invariably a great deal of evidence to support the extent of the offending with great particularity. The problem at trial is how to cope with, or best present, that amount of material. If each transaction had to be the subject of a separate decision by the jury it would require hundreds of separate counts.
4.9      In cases of sex abuse, the evidence will invariably be based on the recall of a victim, of events often many years before, which will be lacking in particularity as to dates, times and frequency of the offending. Indeed, where evidence in chief is presented through the medium of a video, there are practical, though not rigid, limits on the time during which a child may be interviewed, limiting the quantity of evidence which is likely to be available.^[8] Thus, frequently, in order to tailor the offence to the available evidence, the indictment has to be drawn so as to cover a small number of occasions during a period of time, say a year, multiplied, perhaps, by the number of years during which the abuse has continued and by the number of children involved. Thus it is less likely in a trial of serial sex abuse that the evidence would require an indictment to be clogged up with a very large number of counts.
4.10      Moreover in sex offences there is much less likelihood of there being a problem in sentencing an offender to a level of sentence which is commensurate with the true extent of his or her offending. Because of the serious nature of each individual offence of child abuse, it will usually be possible to sentence a serial offender to a substantial sentence which reflects the extent of his or her offending, for which there is the evidence, after a trial which has been manageable.^[9] It may be that it is for this reason that Lord Bingham in Kidd^[10] was confident that the principle he was asserting would not give rise to serious problems for the courts in sentencing multiple offenders. In the sex offence cases which have been reported, such as T,^[11] the problem is more that the principle in Kidd has been disregarded rather than that it has created any insurmountable problem. In T, difficulties were caused initially by inadequate drafting of the indictment and subsequently by the judge, who had taken into account, when determining sentence, offending beyond that of which the defendant had been convicted.^[12]

Child pornography

4.11      The Sentencing Advisory Panel published a consultation paper relating to the sentencing of offences involving child pornography in January 2002,^[13] and invited views on "any ways in which the possession or distribution of a large volume of indecent images can be reflected in a single indictment".^[14] It has recently issued Advice to the Court of Appeal, ^[15] following that consultation, and in it reiterated its view at the consultation stage that

[a]lthough we do not consider the quantity of material to be one of the primary factors in determining the seriousness of an offence, it seems … self-evident that the amount of indecent material involved must have some effect on the seriousness of an offence. (emphasis in original)^[16]

4.12      The Panel points out that determining what consitutes a large or small amount when defendants may possess hundreds or thousands of images is an imprecise task, and recognises the additional problem in prosecuting such offences raised by the decision in Kidd:^[17]

There is a more serious difficulty about the use of quantity as a criterion in a case where the defendant has been indicted on a small number of charges as sample counts representing a larger number of alleged offences. If … the defendant disputes the allegations which are not included as counts in the indictment, then the sentencer must pass sentence only on the basis of the specific counts in the indictment of which the defendant has been convicted (R v Canavan; R v Kidd; R v Shaw [1998] 1 Cr App R 79).^[18]

4.13      The Panel suggests that one solution may be to treat the possession of one file containing numerous images as a single offence. This method would not, however, be available where the defendant is charged with making an indecent photograph,^[19] since each act of downloading would have to be treated as a separate offence.
4.14      Thus, when compared with offences of theft and fraud, the volume of offending is perhaps less determinative in deciding the level of sentence. The Panel were represented at our recent seminar and in the Seminar Paper sent to them, we drew attention to the first of the two recommendations that we make in the latter part of this policy paper.^[20] They now state in their Advice:

It appears that the new procedures proposed by the Law Commission may also be applicable to child pornography offences, and we await the outcome of the Commission's work on this issue.^[21]

Counterfeiting

4.15      The case of Gorman^[22] shows the potential problems faced by prosecutors in counterfeiting cases. However, it also shows that, for the purposes of sentence, it may be possible, by careful drafting of the indictment, in such cases, to demonstrate sufficient "repetition of specific serious offences, as expressly found by the jury … over a significant period".^[23] Although, when sentencing, the judge was not free to take into account the whole picture, which in that case involved one million CDs, nonetheless, the level of criminality shown by the indictment justified the sentence of 18 months' imprisonment imposed at the Crown Court.

OTHER MULTIPLE OFFENDING WHERE KIDD DOES NOT PRESENT A PROBLEM

4.16      There is scope in certain cases for a single count or information to be charged in relation to the aggregate activity, even though the evidence discloses that offending behaviour occurred on two or more occasions. This is possible at common law^[24] and by virtue of certain statutory offences, such as fraudulent trading and the evasion of excise duty,^[25] or harassment.^[26] The fact that a single count may comprise this multiple activity provides a solution to the Kidd^[27] problem in such cases.
4.17      In some other types of multiple offending, it is purely practical difficulties that prevent there being a problem. Motoring offences such as speeding, for example, may be committed regularly, but it is only when drivers are caught in the act that they are prosecuted.

CONCLUSION

4.18      Although, in theory, Kidd^[28] could create problems in the prosecution of different types of offences, in practice, a number of factors limit its impact, and theft and fraud are likely to remain the main area in which it presents serious problems. There is a possible problem in relation to some of the offences under section 1(1) of the Protection of Children Act 1978 (as amended).^[29] This would, however, be capable of being addressed were the offending involved regarded as capable of being categorised as a single continuing offence.
4.19      When the problem of being unable to impose a sentence that is appropriate for the overall offending does occur, it has an immediate impact on the perception that justice is being done in the instant case. In addition, it has a knock on effect. If the offender comes before the court again, the antecedent record of convictions and sentence will not adequately reflect the level of past offending.

Note 1    [1998] 1 WLR 604.    [Back]

Note 2    Ibid.    [Back]

Note 3    [2000] 1 Cr App R (S) 300.    [Back]

Note 4    [1998] 1 WLR 604.    [Back]

Note 5    [2000] 1 Cr App R (S) 144.    [Back]

Note 6    [1998] Crim LR 830.    [Back]

Note 7    [1998] 1 WLR 604.    [Back]

Note 8    The one hour ‘rule of thumb’, which was added to the “Memorandum of Good Practice in Video Recorded Interviews With Child Witnesses For Criminal Proceedings” at the last minute, following the Orkney Inquiry, has now been abandoned. New guidance, “Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable and Intimidated Witnesses, Including Children”, was issued on 24 January 2002. This allows the interviewer to decide how long the interview should last, based on a variety of factors. There is no longer any absolute length stipulated. The factors relate to developmental issues, age, the number of incidents to be described, how long it takes to establish rapport and how forthcoming the child is at interview.    [Back]

Note 9    An additional issue to the need to be able to impose sentences that are commensurate with the defendant’s criminality, in cases relating to numerous victims, such as the systematic abuse of children in care homes in North Wales, (Lost in care: Report of the Tribunal of Inquiry into the abuse of children in care in the former county council areas of Gwynedd and Clwyd since 1974, HC 201 (“the Waterhouse Report”)), is that individual victims may also wish to see perpetrators convicted for the offences carried out against them.    [Back]

Note 10    [1998] 1 WLR 604.    [Back]

Note 11    [1999] Crim LR 95.    [Back]

Note 12    See also BT [2002] 2 Cr App R (S) 2 (5) where the indictment charged only one count of vaginal rape, one of anal rape and an indecent assault as “specimen counts” intended to reflect a course of conduct over a year, including almost daily rapes. Sentences of 13, 13 and 8 years’ imprisonment, concurrent respectively on conviction were manifestly excessive; sentences of 9, 9 and 4 years’ imprisonment were substituted. A defendant is not to be sentenced for any offence unless and until his guilt is proved [or admitted].    [Back]

Note 13    Sentencing Advisory Panel Consultation Paper issued in January 2002. See “Sentencing of Offences Involving Child Pornography: A Consultation” (2002) vol 166, Justice of the Peace, 46.    [Back]

Note 14    Ibid, para 44.    [Back]

Note 15    Sentencing Advisory Panel, Advice to the Court of Appeal (10): Offences involving Child Pornography (2002).    [Back]

Note 16    Ibid, para 41.    [Back]

Note 17    [1998] 1 WLR 604.    [Back]

Note 18    Sentencing Advisory Panel, Advice to the Court of Appeal (10): Offences involving Child Pornography (2002), para 42.    [Back]

Note 19    Contrary to the Protection of Children Act 1978, s 1(1), as amended, see para 6.9 n 12, below.    [Back]

Note 20    That is the proposal relating to “compound allegations”. Although the seriousness of the child pornography offences reflects the social policy of indirectly aiming to protect vulnerable children who might become involved as victims were the child pornography market to continue, the offence itself is not committed against those children. The offence is against a society that wishes to protect children. At common law, the criteria for a continuous offence of theft or fraud require that there is a common victim of the offences. It may be that in relation to child pornography, there is an argument that this requirement should be varied to meet the different circumstances of that offence.    [Back]

Note 21    Sentencing Advisory Panel, Advice to the Court of Appeal (10): Offences involving Child Pornography (2002) at para 43.    [Back]

Note 22    16 December 1997, 97/4529/X3 (unreported). The defendant admitted having been involved in the importation of about a million counterfeit and bootlegged compact discs and making a profit of £100,000. The full extent of this offending had not, however, been the subject of counts in the indictment. It was held by the Court of Appeal that in the light of Kidd, the trial judge “erred in taking into consideration offences which had not been either identified specifically on the indictment or admitted to in the appropriate way” (at p 15). Taking that wider picture into account, the judge had sentenced the defendant to a total of 18 months’ imprisonment in respect of counts 1 - 8 of the indictment, counts 1 - 4 of which related to sending a forged licence (under which 24,000 discs had been supplied) and counts 5-8, to importing an infringing copy of a copyright work. The Court of Appeal held, however, that the total sentence of 18 months’ imprisonment for the specific offences in counts 1- 8 (without reference to the wider picture), concurrent with other sentences that were not in issue, was not manifestly excessive.    [Back]

Note 23    16 December 1997, 97/4529/X3 (unreported) at p 15.    [Back]

Note 24    Where there has been a conspiracy to defraud, or theft where there has been a “general deficiency”, or where the conduct constitutes a “continuous offence”.    [Back]

Note 25    See para 5.5, below.    [Back]

Note 26    Protection from Harassment Act 1997, s 2.    [Back]

Note 27    [1998] 1 WLR 604.    [Back]

Note 28    [1998] 1 WLR 604.    [Back]

Note 29    See para 6.9 n 12, below.     [Back]