R v Kidd; R v Canavan; R v Shaw

JurisdictionEngland & Wales
JudgeTHE LORD CHIEF JUSTICE
Judgment Date10 July 1997
Judgment citation (vLex)[1997] EWCA Crim J0710-1
Docket NumberNo. 97/1484/Z2
CourtCourt of Appeal (Criminal Division)
Regina
and
Darren Canavan
Philip Richard Kidd
Dennis Shaw

[1997] EWCA Crim J0710-1

Before:

The Lord Chief Justice of England

(Lord Bingham of Cornhill)

The Vice President

(Lord Justice Rose) and

Mr Justice Jowitt

No. 97/1484/Z2

97/0546/X5 & 96/7852/X5

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2

MR STUART DRIVER appeared on behalf of THE APPELLANT DARREN CANAVAN

MR REX TEDD QC appeared on behalf of THE APPELLANT PHILIP KIDD

MR JOHN WARREN QC appeared on behalf of THE APPELLANT DENNIS SHAW

MR VICTOR TEMPLE QC and MR SIMON LAWS appeared on behalf of THE CROWN

1

Thursday 10 July 1997

THE LORD CHIEF JUSTICE
2

These three appeals raise a common issue of principle concerning specimen or sample counts in an indictment. The issue may be expressed as follows:

3

"If a defendant is indicted and convicted on a count charging him with criminal conduct of a specified kind on a single specified occasion or on a single occasion within a specified period, and such conduct is said by the prosecution to be representative of other criminal conduct of the same kind on other occasions not the subject of any other count in the indictment, may be court take account of such other conduct so as to increase the sentence it imposes if the defendant does not admit the commission of other offences and does not ask the court to take them into consideration when passing sentence?"

4

Recently decided cases offer differing answers to this question: see R v Clark [1996] 2 Cr App R(S) 351; R v Bradshaw [1997] Crim LR 239; R v Barry (30 July 1996 unreported). These cases summarise, with great clarity, the opposing arguments and the authorities relied on in support of each. The issue is one of great practical importance to those responsible for framing indictments and to sentencing courts. It is very desirable that a clear answer to the question should be given and any doubt dispelled.

5

For very many years prosecuting authorities have framed indictments including a small number of specimen or sample counts said to be representative of other criminal offences of a like kind committed by the defendant. This may, for example, be done where a defendant is said to have sexually abused a child victim frequently over a period, but the child is unable to particularise any specific occasions on which abuse occurred. Two or three counts, perhaps, may be included in the indictment; the prosecutor will make plain that there are specimen counts; and the victim will give evidence of the frequency with which the abuse occurred. The practice may also be adopted where, for example, a defendant is said to have obtained money by deception on numerous occasions: instead of burdening the indictment with numerous counts charging all the instances relied on, a few counts only may be included, and it will be made plain to the court and the jury that these are relied on as representative of a more extensive course of similar conduct. If, in a situation such as this, the jury convicts the defendant on one or more specimen counts, the practice of the court has been to pass a sentence which takes account not simply of the isolated instances specified in the counts but also of the conduct of which, on the evidence adduced by the prosecution, those counts are representative. This is undoubtedly a convenient and economical way of proceeding in cases of this kind, and when appeals have reached this Court against sentences passed on sample or specimen counts no objection has been raised to the practice. It is, however, submitted for the appellants that the practice is contrary to fundamental principle and inconsistent with recent statutory provisions.

6

A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence: see R v Anderson [1978] AC 964. If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit.

7

It is said that the trial judge, in the light of the jury's verdict, can form his own judgment of the evidence he has heard on the extent of the offending conduct beyond the instances specified in individual counts. But this, as it was put in R v Huchison (1972) 56 Cr App R 307 at 309, [1972] 1 WLR 398 at 400 is to "deprive the appellant of his right to trial by jury in respect of the other alleged offences." Unless such other offences are admitted, such deprivation cannot in our view be consistent with principle.

8

Sometimes, it is said, the verdict of the jury on one count inevitably involves a finding that the defendant has committed other offences for which he may therefore be properly sentenced. R v Mills (1979) 68 Cr App R 154 is relied on as such a case. One of the appellants in that case ( Price) was convicted on a single count of corruptly accepting a sum of money of unspecified amount. The count was so framed because the prosecution were unable to specify what he had received and when. His own evidence made it plain that he had received cheques or £50 cash on numerous occasions, the total received being some £5450. The judge at the trial, with the assent of the prosecution, took one £50 payment as a sample, but on conviction sentenced Price for receiving the aggregate sum of which he took the view the jury, by their verdict, had inevitably convicted him. This Court approved that course, and since Price's explanation of all the receipts was the same it seems clear that the jury would have convicted him in relation to each receipt had each receipt been the subject of a separate count. It does, however, seem to us that there is a remaining problem: if the single unamended count embraced a series of different payments on different dates it would appear to have infringed the rule that only one offence may be charged in each count of an indictment; if, on the other hand, the single count was to be understood as charging a single receipt of £50, it is hard to see how Price was convicted of corruptly receiving any of the other payments, and since he did not admit any offences or ask for them to be taken into consideration the approved basis of sentence would seem hard to justify in principle.

9

R v Bradshaw , above, is relied on as a similar case. The defendant was alleged to have run a fraudulent investment scheme. He was convicted on five counts of theft, each count involving a specific sum received from a specific investor, the aggregate of the five counts being £97,000. The overall loss caused by the scheme was £3 million and the defendant was extradited on 138 individual charges of theft. In challenging a sentence of six years in total the defendant complained that the judge had in fact, although disclaiming an intention to do so, sentenced him on the basis of the overall deficiency and not the thefts of which he had been convicted. For the prosecution it was argued, on appeal, that guilty verdicts on the five counts "would inevitably have involved guilty verdicts in relation to all the other victims had counts been present in the indictment." The Court upheld that contention: distinguishing R v Clark, above, it approved the approach of the court below:

"The present case was presented and contested in such a way that the extent of the offending, although not admitted or proved by verdict, necessarily follows from the verdicts reached on the counts charged. In such a case, the Court is entitled to take into account the scale and multiplicity of offending as available information about the circumstances of the offences proved. Those offences were committed in the context of a fraud involving many victims and a very large sum of money, which in the present case should not be ignored. Provided the Court can adopt that approach, which in our view it can on the somewhat unusual facts of this case, the sentence of six years is appropriate."

10

Differing with respect from this conclusion, we think it inconsistent with principle that a defendant should be sentenced for offences neither admitted nor proved by verdict. Nor, also differing from the conclusion in R v Bradshaw, do we understand the Criminal Justice Act 1991 to legitimate the practice of sentencing for unindicted, unadmitted offences. Section 1(2) provides, so far as material

"…. the court shall not pass a custodial sentence on the offender unless it is of the opinion —

(a) that the offence, or the combination of the offence and one or more offences associated with it, was so serious that only such a sentence can be justified for the offence; or

(b) where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from him."

11

As originally enacted, section 1(2)(a) referred to "…..the offence, or the combination of the offence and one other offence associated with it….." (our emphasis).

12

Section 2(2) provides that

"The custodial sentence shall be —

(a) for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it; or

(b) where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender."

13

...

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