When Might Two Offences be Founded on the Same Course of Conduct?
Published date | 01 August 2023 |
DOI | http://doi.org/10.1177/00220183231199726 |
Author | Neil Parpworth |
Date | 01 August 2023 |
When Might Two Offences be
Founded on the Same Course
of Conduct?
R v Hamer [2023] EWCA Crim 516
Keywords
Possession of a knife, two offences charged, guilty pleas, whether double conviction unjust,
oppressive and duplicitous
On 25
th
April 2022, the appellant was in possession of a lock-knife in a box which he had passed to a 14-year-old
boy. The transfer was captured on cctv footage. In respect of the incident, the appellant was charged with two
offences: (i) of having an article with a blade or point, contrary to s.139(1) of the Criminal Justice Act 1988; and
(ii) of being in breach of a Knife Crime Prevention Order (KCPO), contrary to s.29 of the Offensive Weapons
Act 2019. At his trial, it was argued on his behalf that if he were to plead guilty to breach of the Order, this should
resolve the case as the first count was founded on the same conduct. Following the rejection of this submission
by the trial judge, the appellant entered guilty pleas in respect of both offences.
The appellant subsequently applied to vacate his guilty plea to count 1. On the basis of written sub-
missions from both sides as well as oral argument, Judge Dodd ruled that since the two offences were
separate and distinct from one another, there was no basis to vacate either guilty plea. Following an
adjournment to allow for the preparation of a pre-sentence report, a hearing took place before HHJ
Deacon KC. She sentenced the appellant to 15 months’imprisonment on count 1 (the s.139(1)
offence), and six months’imprisonment for breaching the KCPO, the sentences to run concurrently.
The present appeal against conviction was concerned with a fundamental issue: the circumstances in
which it is appropriate for a court to permit the prosecution of a defendant for two charges in respect of a
single piece of conduct. On behalf of the appellant, it was submitted that a line of authority established the
general principle that a defendant ought not to stand to be convicted of two alternative offences. Whilst
the principle was accepted by the respondent, it was contended that it had no application on the facts.
HELD: DISMISSNG THE APPEAL, that although the two offences were founded on the same
course of conduct, they were sufficiently legally distinct as to be capable of being properly pursued by
the prosecution. Whereas the first offence involved a substantive criminal act, the second offence
related to the breach of a previous court order. Although the two offences had similarities there were
also a number of differences, such as in relation to the terms of their defences. Thus, while it was entirely
possible to act in a way so as to commit both offences simultaneously, as the appellant had demonstrated,
there were also courses of conduct that would entail the commission of one rather than both offences.
Commentary
Introduction
While the judgement in Hamer is relatively brief (a mere nineteen paragraphs), it is nevertheless con-
cerned with an important issue which arises from time to time in criminal trials, i.e., whether a defendant
is liable to be convicted for alternative offences in respect of the same conduct. The willingness of
Case Note
The Journal of Criminal Law
2023, Vol. 87(4) 290–293
© The Author(s) 2023
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DOI: 10.1177/00220183231199726
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