The Law Commission

The Law Commission

(LAW COM No 277)

THE EFFECTIVE PROSECUTION OF MULTIPLE OFFENDING

Report on a reference under section 3(1)(e) of the Law Commissions Act 1965

Presented to the Parliament of the United Kingdom by the Lord High Chancellor
by Command of Her Majesty

October 2002

Cm 5609

The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Honourable Mr Justice Toulson, Chairman^[1]
Professor Hugh Beale QC
Mr Stuart Bridge
Professor Martin Partington CBE
Judge Alan Wilkie QC

The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.

The terms of this report were agreed on 3 July 2002.

The text of this report is available on the Internet at:

http://www.lawcom.gov.uk

CONTENTS

Executive Summary	Summary
Part I: INTRODUCTION	Part I
Part II: THE PROBLEMS	Part II
Part III: PRESENT LAW	Part III
Introduction	3.1
The Indictment	3.2
Duplicity issues and overloading	3.2
The Evans conundrum	3.11
Verdicts and sentence – the role of the judge in sentencing	3.15
The limits of the judge's creative role in sentencing	3.17
Other common law jurisdictions	3.22
Sentencing principles	3.23
Use of substantive offences as a means of prosecuting multiple offending	3.34
Conclusion	3.38
Part IV: AMBIT OF PROBLEM	Part IV
Introduction	4.1
Examples of offences other than theft/fraud where the Kidd approach may cause problems	4.3
Drug dealing	4.3
Sex offences	4.6
Child pornography	4.11
Counterfeiting	4.15
Other multiple offending where Kidd does not present a problem	4.16
Conclusion	4.18
PART V: THE WAY FORWARD	PART V
Analysis	5.1
Consultation	5.3
The Consultation Paper	5.3
Informal consultation – July 2000	5.4
Seminar paper and seminar held in February 2002	5.10
Impact of our recommendations on resources	5.16
Part VI: COMPOUND ALLEGATIONS	PART VI
Cases which are suitable to be tried by way of compound allegations	6.1
Effective communication of jury's decision to the judge	6.10
Compound allegation procedure	6.15
The preliminary hearing	6.15
Evidence	6.18
The burden of proof	6.19
At the close of evidence	6.21
Special verdicts and directions to the jury	6.22
Special verdict	6.22
Directions to the jury	6.30
Article 6 of the ECHR	6.33
Method of introducing this change of procedure	6.37
Should indictments be allowed to contain an unlimited number of counts?	6.38
Conclusion	6.44
Recommendation	6.45
Part VII: TWO STAGE TRIAL PROCESS	Part VII
Introduction	7.1
Preparatory hearing	7.7
Stage one procedure	7.9
The outcome of stage one proceedings	7.10
Acquittal on a sample count	7.11
Conviction on a sample count	7.14
Should the trial judge have the power to overrule a prosecution wish to proceed to the second stage?	7.16
Ruling based on adequacy of sentencing powers	7.17
Ruling based on merits	7.21
What powers should the judge have regarding linked offences not proceeded with?	7.25
Ruling not to proceed with stage two – implication onconfiscation powers	7.29
Should the trial judge have a power at the end of stage one proceedings to certify that the case is fit for appeal?	7.30
Should the Crown have a right of appeal against a judge's ruling that the trial will not proceed to stage two?	7.31
Discount for guilty plea	7.35
Second stage of two stage procedure	7.37
Safeguards	7.37
(i) Requirement of evidence based on similar fact evidence	7.38
(ii) Rules of evidence and procedure	7.39
(iii) Reasoned rulings and verdicts	7.40
Who should preside over the court in the second stage of proceedings?	7.43
Should it be the same judge as presided at the first stage or a different judge?	7.43
Should the judge sit alone for the second stage of the trial or would it be necessary for that judge to sit with assessors?	7.53
Reference at the second stage to evidence adduced at the first	7.59
Relevance of first stage convictions in second stage proceedings	7.60
Would the judge at the second stage be free to make his or her own decisions?	7.63
Inconsistent verdicts	7.69
Our response to issues arising from our recommendation	7.76
Dispensing with jury trial in respect of some of the charges	7.76
Abolition of jury trial by stealth	7.80
Conviction by a single judge	7.82
Would the two stage procedure reduce the time taken to deal with a case?	7.86
Lying on the file: ECHR issues	7.90
Benefits of two stage process	7.98
Conclusion	7.103
Recommendation for a two stage trial procedure	7.104
Part VIII: FRAUDULENT TRADING	Part VIII
The present law	8.3
Extending section 458 of the Companies Act 1985	8.8
Recommendation	8.15
Part IX: OUR RECOMMENDATIONS	Part IX
APPENDIX A: CONSULTATION SCHEDULE	Appendix A
APPENDIX B: PERSONS AND ORGANISATIONS WHO COMMENTED ON CONSULTATION PAPER NO 155 ISSUES 10 AND 11 AND ON OUR INFORMAL CONSULTATION IN JULY 2000	Appendix B

Note 1    At the date this report was signed, the Chairman of the Commission was the Right Honourable Lord Justice Carnwath CVO.    [Back]