R v Clark (Paul John) ; R v Bentham (John Preston)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Henry |
| Judgment Date | 05 December 1997 |
| Judgment citation (vLex) | [1996] EWCA Crim J0228-5 |
| Docket Number | No:95/2789/Y2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 05 December 1997 |
[1996] EWCA Crim J0228-5
In The Court of Appeal
Criminal Division
Lord Justice Henry
Mr Justice Alliott
and
Mr Justice Owen
MR J PAVRY appeared on behalf of the Appellant
On 8th March 1995 in the Crown Court at Isleworth (His Honour Judge Miller) the appellant was convicted after a two–day trial on a single count of indecent assault on a male person, and on 5th April was sentenced to five years' imprisonment. He now appeals against sentence with the leave of the Full Court.
The point on which he got leave is a fundamental one, going both to the practice and the jurisdiction of the Court. The single count on which he was tried and convicted was, to the Defence's knowledge, put forward by the Crown as a specimen or sample count, reflecting a series of offences over the period in question. The appellant never at any time admitted any sexual offence within the period covered by the indictment. The judge in sentencing him said:
“Your counsel has urged me to pass sentence on the basis of one offence. I am not doing that and I state this so the position is clear. I am passing sentence on you for a series of indecent assaults on this boy between the ages of fourteen and sixteen. It was clearly opened to the jury that this one count was a specimen count.”
Counsel for the appellant submits that the judge was not entitled to sentence on the basis of a series of offences. He relies on the statement of principle to be found in “Thomas on Current Sentencing Practice” Volume 2, page 110212 at L2–1D:
“Where an offender is convicted or pleads guilty in respect of one or more related offences, the sentencer must not sentence him on the basis that he is guilty of further offences of a similar nature, of which the offences charged are representative or sample counts, unless the offender admits that this is so.”
Mr Pavry (for the appellant) does not dispute that it was “realistic” for the judge to sentence on the basis of a series, but submits that he had not the power to do so. He has put the point with tactful firmness.
The Particulars of Offence alleged in the indictment were:
“Raymond Dennis Clark on a day between the 19th day of May 1987 and the 18th day of May 1989 indecently assaulted Michael Crosby a male person.”
The Crown's case as to the facts of the offending was as follows. In 1987 the appellant was 45, and the victim, a boyhood friend of the appellant's son was 14. The dates in the indictment ran from the victim's fourteenth birthday to his sixteenth birthday. The significance of the latter date is that section 15(2) of the Act provides that once the victim is 16, consent may be a defence. The victim's witness statement disclosed a regular series of offences committed by the appellant against him from the time when he was 13, ending only when he went to university aged 20.
The Prosecution had at all times made clear what the wording of the indictment did not:that they were alleging a series of offences over that period. An indictment alleging assaults “on divers dates between” (which would more accurately have expressed the Crown's case) would have been bad for duplicity – see R v Thompson [1914] 2 KB 99. At a pre–trial hearing, the Prosecution had sought to amend the indictment to add a specimen count for the year when the boy was 13, and to split the original specimen count intotwo, one covering when he was 14 and the other covering when he was 15. However, the judge (not the trial judge) refused that application on the basis that on the committal there was no evidence as to dates or to the victim's age at any point.
The case was contested. The Crown's case was a continuous course of criminal conduct starting before and extending for the duration of the indictment period, and not of a single isolated act. No objection was taken by the defence to the admission of the evidence of the series of offences, occurring roughly weekly. The defence was an admission that there had been a long–term series of sexual encounters between the appellant and the victim but that these occurred after the victim's sixteenth birthday – or to put it another way, the defence was a total denial of any criminal sexual act in the period covered by the indictment.
The jury convicted. There is no appeal against that conviction. Counsel then submitted to the judge that he was only empowered to sentence on the basis of a single isolated act. This submission owed nothing to any analysis of the evidence called, but simply flowed from the wording of the indictment, and the fact that his client had never admitted (or asked to have taken into consideration) any unlawful sexual conduct whatsoever. The judge, as we have seen, rejected that submission. The question before us is whether he was right to do so.
The first question is: what have the jury found the appellant guilty of? They cannot have found him guilty of more than the single act alleged in the indictment, because their verdict only relates to that count. Nor can it make any difference that the evidence actually called before them (and which they apparently accepted) was of a series of offences. While we do not know how they were directed, it would be a proper direction to tell them that to convict they need only be satisfied that the defendant had committed only one isolated indecent assault within the period.
That would seem clear as a matter of principle, and is confirmed by the authorities. The first case is R v Huchison [1972] 56 Cr App R 307. There the appellant was charged with incest, the indictment being in like form to that in this case, one count alleging a single act in an 18–month period. He pleaded guilty, and his mitigation was on the basis that it was a single isolated act. This was contradicted by the complainant's statement. So the trial judge heard evidence from the complainant and from the defendant (as though it were a Newton hearing –which it was not for reasons given below). He believed that there had been more than one isolated incident, and sentenced on that basis. The Court of Appeal (presided over by Lord Widgery CJ) found he was wrong to do so:
“…the appellant was in effect deprived of trial by a jury in regard to the additional offences suggested by the daughter … The learned judge ought, if he thought he could not do justice by adopting the appellant's admission of one incident and one incident only, either to have allowed the prosecution to prefer a voluntary bill charging the other instances as stated by the daughter, or to have allowed the indictment to be amended and then to deal with the whole matter at a later date.”
That approach has for the most part been followed by the Court since. By way of example we mention two cases. First, R v McKenzie [1984] 6 Cr App R (S) 99. There the appellant was charged with seven specimen counts of dishonesty involving £640. He was invited to ask the court to take a further 240 offences (totalling £11,000) into consideration. He refused. It was held that he could only be sentenced in respect of the counts to which he had pleaded guilty.
The case of R v Burfoot [1990] 12 Cr App R (S) 252 is even clearer. There the appellant was charged and pleaded guilty to an indictment containing six counts of burglary. They were specimen counts, put forward in the expectation that he was going to plead guilty to some 600 other offences. But when those offences were put to him at a pre–trial review, he refused to do so. So the indictment was redrafted to include 19 further counts, but they too were specimen counts. He was convicted on all 19. They also had been put forward as specimen charges. The Court held that the sentencing judge did not have jurisdiction to take into account the offences which the appellant had not admitted and which he did not ask the Court to take into consideration. He could only be sentenced for those matters for which he had been convicted.
These authorities reflect the principle laid down in the House of Lords in Anderson v DPP [1978] AC 964. That case concerned the making of a criminal bankruptcy order. The court had jurisdiction to make such an order where the aggregate amount of the loss from the offences of which the defendant has been convicted, or the court takes into consideration, exceeds £15,000. In this case the defendant was convicted of 13 counts, but evidence of 20 similar instances was given in the trial to establish system. The total for the 13 counts was under £15,000, but when the similar instances were added that figure was...
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