R v O'Brien
| Jurisdiction | England & Wales |
| Judgment Date | 20 March 2000 |
| Date | 20 March 2000 |
| Court | Court of Appeal (Criminal Division) |
COURT OF APPEAL Criminal Division
Before Lord Justice Rose, Mr Justice Klevan and Mr Justice Jackson
Criminal procedure - joining counts widely separated in time - whether sufficient nexus
When joining counts in an indictment relating to offences widely separated in time, the longer the gap in time between the relevant events, the clearer must be the nexus required both to constitute a sufficient relationship between the events to give rise to a series of offences within rule 9 of the Indictment Rules (SI 1971 No 1253) and to give rise to the admissibility of evidence in relation to one period as proof of the commission of offences in another period.
The Court of Appeal, Criminal Division, so held in allowing an appeal by Robert O'Brien against his conviction on February 2, 2000, at Preston Crown Court (Judge Duckworth and a jury) of five counts of indecent assault for which he was sentenced to a total of three years imprisonment.
Mr Edward Fitzgerald, QC and Mr J. Jackson for the appellant; Mr Alistair Webster, QC and Miss Elizabeth Nicholls for the Crown.
LORD JUSTICE ROSE, giving the judgment of the court, said that all the counts related to boys aged between 11 and 13 who were pupils at a school where the appellant had been headmaster. Counts 1, of which the appellant was acquitted, 2 and 3 related to events between 1972 and 1975 whereas counts 4, 5 and 6 were concerned with events between 1994 and 1998.
The primary ground of appeal was that the trial judge had fallen into error in ruling that the 1970s and 1990s events should be tried together.
Mr Fitzgerald referred their Lordships to the following authorities:Ludlow v Metropolitan Police CommissionerELR ([1971] AC 29), R v KrayELR([1971] QB 127), R v ChapmanUNK (unreported, February 1, 1993), R v BairdUNK ((1992) 97 Cr App R 308), R v SimsUNK ((1946) 31 Cr App R 158),Director of Public Prosecutions v PELR ([1991] 2 AC 447) and R v BoardmanELR ([1975] AC 421).
Mr Webster submitted, rightly in their Lordships' judgment, that three principles were to be elicited from the authorities:
1 Time was a factor for consideration, but not a determinative factor, as to whether counts should be joined;
2 There had to be a sufficient nexus between offences widely separated in time before they became a series, and
3 The nexus would be established if the evidence in relation to those widely separated offences was cross-admissible.
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