R v Bellman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL |
| Judgment Date | 22 May 1987 |
| Judgment citation (vLex) | [1987] EWCA Crim J0522-15 |
| Docket Number | 6413/C/86 |
| Court | Court of Appeal (Criminal Division) |
| Date | 22 May 1987 |
[1987] EWCA Crim J0522-15
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Neill
Mr. Justice Bush
and
Mr. Justice Kennedy
6413/C/86
MR. N. PURNELL, QC. and MS. L. ORME appeared on behalf of the Appellant/Defendant.
MR. D. FISHER appeared for the Prosecution.
Bush J. is not able to be present today, but he has considered this judgment with us and concurs in it.
On 13th October 1986 the appellant, Andre Patrick Bellman, was convicted of four offences of obtaining property by deception. On 21st October 1986 he was sentenced to terms of two years and six months' imprisonment on each count concurrent. In addition, for failing to appear at court on 10th October 1986, he was sentenced to a consecutive term of seven days' imprisonment. On the same occasion the appellant was acquitted on the remaining six counts in the indictment which comprised three offences of conspiracy, two offences of obtaining property by deception and one offence of attempting to obtain property by deception. He now appeals against conviction by leave of the single judge.
The appellant was originally charged with two other men, Macalesher and Ford, in an indictment containing 22 counts. Macalesher and Ford, however, pleaded guilty to some of the offences alleged against them and the court then ordered that the remaining counts against these two men should not be proceeded with without the leave of the court or of the Court of Appeal (Criminal Division). The offences to which Macalesher pleaded guilty included three offences of obtaining property by deception with which he was jointly charged with the appellant and of which the appellant was later convicted on 13th October 1986. These offences were the subject-matter of counts 5, 6 and 7 in the original indictment and counts 6, 7 and 8 in the indictment as re-numbered for the purpose of the appellant's trial. We propose hereafter to refer to the counts by reference to the re-numbered indictment. The appellant was convicted on counts 5, 6, 7 and 8 and acquitted on counts 1, 2, 3, 4, 9 and 10.
The main question which arises in this appeal is whether the prosecution were entitled to seek verdicts from the jury on alternative counts which were described as being "mutually exclusive". The primary case for the Crown at the trial was that the appellant had obtained sums of money from various individuals by means of false representations that the money would be used for the importation of controlled drugs into the United Kingdom. The alternative case was that the appellant had conspired with others to evade the prohibition on the importation of controlled drugs: this alternative case, it was submitted, involved the proposition that the representations relied on were not false but true. This question is directly relevant to the appellant's appeal on counts 6, 7 and 8. Count 5 falls into a different category and we shall consider it separately.
In counts 6, 7 and 8 of the indictment the appellant was charged with obtaining sums of money (£10,000, £5,000 and £3,000 respectively) on various dates in June 1983 by means of false representations. The person alleged to have been deprived was a man called Cannon. The total number of representations alleged in the three counts was eleven. In both counts 6 and 7 the main representation was that the money would be used to purchase luxury cars in the United States which would be imported into the United Kingdom. No mention of drugs was made in the Particulars of Offence in these two counts. In count 8 the main false representation alleged was that "the money would be used to facilitate the importation of controlled drugs from the USA into the UK".
In count 10 (which was treated at the trial as the alternative count to counts 6, 7 and 8) the Particulars of Offence were in these terms:
"[The appellant] on days between the 1st day of August 1982 and the 22nd day of May 1985 conspired together with (Macalesher) and with other persons to contravene section 170(2) of the Customs and Excise Management Act 1979 by being knowingly concerned in the fraudulent evasion of the prohibition on importation of controlled drugs imposed by section 3(1) of the Misuse of Drugs Act 1971."
Further Particulars were sought under this count as to the identity of the "other persons" and of the nature of the drugs. The answer alleged that Cannon (among others) was one of the conspirators and that the nature of the controlled drugs was not known.
It seems clear from the representations alleged in counts 6 and 7 that the prosecution might have contended that these counts were not true alternatives to count 10 at all, but in view of the manner in which the case was opened at the trial and in the light of the summing-up we consider that we must proceed on the basis that all the relevant deception counts were treated, and are now to be treated, as relating to the importation of drugs. Thus in the summing-up the judge, who invited the jury to consider the conspiracy counts first, said this (Vol. 3, page 2):
"Now, members of the jury, let me turn to the counts of deception. Counts one, three, four, five, six, seven and eight are counts of deception. They are alternative to counts two, nine and ten. If, but only if, you convict the defendant on count one, then you need not return a verdict on count two; if, but only if, you convict the defendant on count nine, then you do not return a verdict on counts three and four; if, but again, only if, you convict the defendant on count ten, you do not return a verdict on counts six, seven and eight. Therefore, if you acquit the defendant on the conspiracy, you then consider the related count or counts of deception."
It is also to be noted that following argument at the trial the judge ruled that the prosecution could not "run what one might call a hybrid" (Vol. 1, page 95), which we understand to mean that the judge rejected a submission that representations other than those relating to the importation of drugs could be relied on quite separately.
It is against this background that we must come to examine the arguments which were addressed to us on the hearing of this appeal. The submissions which were put forward on behalf of the appellant were on the following lines:
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(1) That as a matter of general principle an accused person was entitled to know precisely what charge was being made against him and that, subject to certain exceptions, he was only liable to be convicted of that charge and not of some other charge. This general principle was a necessary incident of an adversarial system of criminal justice.
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(2) That there was a common law exception to the rule that a person was only liable to be convicted of the offence with which he was charged. In accordance with this exception a conviction of a lesser offence than that charged was permissible provided that the definition of the greater offence necessarily included the definition of the lesser offence, and that both the offences were of the same degree, that is, felony or misdemeanor.
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(3) That the common law exception had been superseded by the provisions of s.6 of the Criminal Law Act 1967. S.6(2) was concerned with alternative verdicts on an indictment for murder. S.6(3), which had been recently considered by the House of Lords in R. v. Wilson [1983] 77 Cr.App.R.319 was of more general application. It provided as follows:
"Where, on a person's trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence."
In addition s.6(4) contained provisions relating to attempts. These provisions however, had no application in the present case.
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(4) That even where s.6(3) of the Act of 1967 did not apply there were nevertheless many circumstances where a jury could find a defendant guilty of an alternative offence provided that a separate count was included in the indictment. This was only permissible, however, where the prosecution alleged and sought to prove either a greater and a lesser charge depending on the same factual basis or two generically similar charges depending on such basis.
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(5) That the only circumstances in which distinct and apparently mutually exclusive offences may be left to the jury as alternatives are the offences of theft and dishonest handling. The practice of charging theft and handling in the alternative when the evidence might point to one or other of these offences, though it had attracted some adverse comment from academic writers, had long been recognised as proper: R. v. Seymour [1954] 38 Cr.App.R.68; R. v. Shelton [1986] 83 Cr.App.R.379, but these offences were generically similar and provided an illustration of the last part of the proposition in (4) above.
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(6) That in the present case, however, the prosecution had at the same time sought to prove two mutually exclusive offences which were not generically similar. The proof of the conspiracy count involved the disproof of the deception count and vice-versa.
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(7) That the situation was similar to that in cases where the prosecution alleged that A or B had committed an offence but could not prove which was guilty. In that event both A and B had to be acquitted: R. v. Lane [1986] 82 Cr.App. R.5.
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(8) That accordingly in the...
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