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You are here: BAILII >> Databases >> The Law Commission >> EFFECTIVE PROSECUTION OF MULTIPLE OFFENDING [2002] EWLC 277(6) (01 October 2002) URL: http://www.bailii.org/ew/other/EWLC/2002/277(6).html Cite as: [2002] EWLC 277(6)

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PART VI

COMPOUND ALLEGATIONS

Cases which are suitable to be tried by way of compound allegations

6.1      Where it is alleged that the same offence has been committed on a large number of occasions, usually against the same victim, in the same way and raising the same issues between prosecution and defence, it is invariably clear that once a person is guilty or not guilty of one he or she is going to be guilty or not guilty of all.^[1] In such a case, and where, within the general uniformity, there may be a separate issue which affects a small number of the occasions, the totality of the alleged offending may be charged as a single continuing offence. This type of case was exemplified in Barton.^[2] It is in relation to such patterns of offending that we make our recommendation relating to compound allegations.
6.2      The concept of a continuous offence has been developed at common law as a legitimate way, amongst others, of categorising a series of closely connected acts. The test for a single continuous offence, enunciated by the House of Lords,^[3] is:

Where a number of acts of a similar nature committed by one or more defendants [are] connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count an indictment.^[4]

6.3      The doctrine of the continuous offence is long established. In the case of Henwood^[5] D had been found in possession of, and charged in one count of stealing from his employer, a number of articles which he had stolen during the previous nine years. There was no evidence when they had been stolen or whether on one or several occasions. Bovill CJ pointed out that there was nothing in the case inconsistent with the articles having been taken all at the one time or in such a way as to form one continuous transaction but went on to say:

Had there been evidence of distinct takings it would have made no difference, for the case would then have been similar to the taking of coal at different times in a mine (R v. Bleasdale (1848) 2 C&K 765), and the case of cutting trees at such times as to form one continuous taking (R v. Shepherd (1868) 11 Cox 119), and to the taking of gas for a long time in succession (R v. Firth (1869) 11 Cox 234).^[6]

6.4      More recently, the continuous offence principle was applied in DPP v McCabe.^[7] McCabe had 76 library books at his home which he had taken from one or more of the 32 different branches of a county library. He was convicted of a single offence of theft in relation to those books.
6.5      The concept of a continuous offence has been described as a "legal fiction".^[8] We would prefer rather to regard it as a proper description of conduct which can legitimately be analysed in two ways. A continuous activity can be perceived as the same conduct occurring on a series of separate occasions or as the same repeated conduct which, looked at in the round, may properly be regarded as one activity. Either analysis is legitimate. The perception of a number of nominally separate acts as part of a single transaction is no more artificial in the criminal context than, in commercial life, the making of regular payments under a mortgage, or pursuant to a lease, being regarded as part and parcel of a single continuing transaction.
6.6      The expression "continuous offence" is, perhaps, not the most helpful description. It suggests that the offence is committed without any interval and in that sense may confuse. We prefer the description "compound allegation". Nonetheless, we believe that the concept is both useful and legitimate. It is right that, where the defendant raises a common defence, the courts should be able to categorise such patterns of repeat offending in a special way so as to allow one count on an indictment to embrace the repeated behaviour. Although this approach will only be possible in a narrow range of cases, it provides a useful tool where it applies. For example it may apply to

(1) an employee fraud, by an employee who repeatedly purchases books on a library account and never enters them into the library system, but keeps the library books as personal books;

(2) false accounting and theft by an employee at a bank who repeatedly makes false entries in a certain account, whilst stealing an equivalent sum from that account;^[9]

(3) NHS frauds, such as repeated spectacle orders for fictitious patients, dental work claims in respect of work not done;

(4) repeated, regular fraudulent claims for reimbursement of expenses by an employee by use of false receipts, for example, from a supplier of fuel.

6.7      We recommend a procedure for informing the sentencer in the Crown Court of the true extent of the guilt of a defendant who is found guilty by the jury of compound allegation. It would only be used where the conditions recognised at present for the concept of the continuous offence exist. The conditions for its application, adapting DPP v Merriman,^[10] are:

(1) two or more similar offences;

(2) connected by time and place of commission or common purpose (typically, the same act committed against the same victim), so that;

(3) they can fairly be recognised as forming part of the same transaction or criminal enterprise; and

(4) having regard to the allegations made and the defence put forward that, save for particular marginal issues, it may fairly be said to be an "all or nothing" case.

6.8      In Barton,^[11] the fact that numerous transactions of the same type were committed against the same victim provided the crucial connecting factor. For cases of dishonesty that would, in our view, almost invariably be the case. In other types of case, however, identity of victim may not be a factor. Indeed the offences may not, in truth, have a direct victim. For example, in repetitious down-loading of pornographic images of different, anonymous, children, (charged as making an indecent photograph,) the "victim" is not directly the child in the photograph but it is an offence against public morality and children at large.
6.9      In our view, offending, such as the down-loading of pornographic material involving children, in breach of the Protection of Children Act 1978,^[12] which satisfies the conditions listed in paragraph 6.7, is capable under the present law of being charged by way of a compound allegation. If it is thought appropriate to crystallise these principles so as to make them clearly applicable to offending other than theft or fraud it may be achieved by a change in the Indictment Rules.

Effective communication of jury's decision to the judge

6.10      The problem in cases of multiple offending which are prosecuted in the Crown Court as a continuous transaction is how to establish accurately for sentencing purposes the extent of offending. For example, the case of Rowlands^[13] was charged as "… between 1 day of January 1989 and the 1 day of June 2000, stole a sum not exceeding £1,775,782.55 …". It was treated as a continuous offence. The period covered by that single offence was so long (eleven years) that a guilty verdict could in theory have related to a figure as small as the lowest sum diverted in a month or as high as £1.7 million. Thus, if the defendant had pleaded not guilty and been convicted after trial, the judge would have had to second guess the extent of offending forming the basis of the jury's verdict so that the appropriate sentence could be imposed.
6.11      In our view, there should be a special procedure to enable the jury to inform the judge of the extent of the wrongdoing of which the defendant is guilty so as to enable the judge to sentence accurately. Such a case will have been identified at a pre-trial stage as appropriate for the use of a compound allegation. The criteria for such classification will mean that, for the bulk of the individual offences included in the compound allegation, a finding of guilt, or non-guilt, on one occasion will virtually inevitably result in a finding of guilt or non-guilt on all.
6.12      We recommend that, in such a case, the judge should sum the case up on the basis that the jury must consider all the evidence and decide first whether all (or at least 10) are sure that the defendant committed the alleged offence on at least one occasion identified within the count. If so, they would convict of that count.
6.13      The judge should explain to the jury that the nature of the offence is such that if the defendant is found by them to be guilty of one of the alleged occasions of offending, they will not then be asked to return a separate verdict on each of the others. They should, however, consider whether, on the basis of the evidence and arguments they have heard, there is any particular allegation, or group of allegations, making up the continuing offence, in respect of which they are unable to agree that they are sure of the guilt of the defendant. If so they will be asked to identify them. That is to say they will be asked to identify any allegation(s) of which they are not all (or at least 10) sure of guilt.
6.14      If it has been the case that, in the evidence, there were any occasions, or sets of occasions, of alleged offending where a specific issue has arisen which separates that, or them, from the generality, the judge may agree with counsel specifically to draw the jury's attention to those as matters which it may wish particularly to consider on this issue.^[14]

Compound allegation procedure

The preliminary hearing

6.15      It will be important to ensure that the use of the compound allegation in the indictment is limited only to those cases where the allegations may properly be drawn up as a single continuing offence without breaking the rules on duplicity. The early identification of cases potentially suitable for this procedure will not prove a problem as there will be a number of occasions prior to the plea and directions hearing when the prosecution will be able to take stock to see whether the similarities in the offences and the issues involved are such as to make this procedure potentially appropriate. First, the repetitious nature of the offending will often be apparent from the investigation so as to raise the question in the prosecution's mind at an early stage, probably before arrest. Second, in most cases the defendant will have given his or her account in the course of the interview which will precede charge so as to enable the essential issues to be identified. Third, the disclosure requirements in the Criminal Procedure and Investigations Act 1996 make it unusual for the prosecution not to know at an early stage post charge, what are the essential features of the defence case sufficient for them to decide whether to frame the indictment as a compound allegation or as a series of specimen counts making use of the two stage procedure that we recommend,^[15] or in the ordinary way.
6.16      For the purposes of a trial on indictment, the accused is required to provide a defence statement,^[16] setting out the nature of the defence in general terms,^[17] but in sufficient detail to enable "the prosecution [to] have the opportunity to investigate facts relied on by the opposite party and so to reduce the risk of a miscarriage of justice by wrongful conviction or wrongful acquittal".^[18] Such a statement is required in Crown Court trials^[19] where the prosecution have themselves, in accordance with the statutory duty to do so, provided primary disclosure or a statement to the effect that there is no advance material to be disclosed.^[20] A defence statement is compulsory unless the prosecution have failed to discharge these obligations and in practice, therefore, the accused will, in the vast majority of Crown Court trials, be required to reveal the nature of his or her defence in reasonable detail.^[21] In practice, at the Crown Court, the defence statement will in the great majority of cases be served either before or on the occasion of the plea and directions hearing at which the court can make arrangements for a preliminary hearing at which argument may be heard about the appropriate form of indictment.
6.17      We recommend that, if the Crown were minded to draw the indictment so as to include a count or counts comprising a compound allegation, a ruling should be sought at a preliminary hearing on the appropriate form of the indictment. Depending on the seriousness, or length, or complexity of the matter, the preliminary hearing may well take the form of a preparatory hearing so as to attract a right of interlocutory appeal for either side in the light of a ruling by the judge. It would be open to the defence to argue that the indictment is bad for duplicity if they think that it is inappropriately drawn. The basis for the judge's ruling should be whether the offence may fairly be regarded as forming part of the same transaction or criminal enterprise, having regard to the identity of the victim, the repetitious modus operandi of the offence, the nature and variety of the issues between prosecution and defence^[22] and whether it would be in the interests of justice for the case to proceed on such a form of indictment.^[23]

Evidence

6.18      The evidence presented by the prosecution in support of a given compound allegation is likely to relate to all offending occasions encompassed within the count which contains the compound allegation. Thus, our recommendation would not necessarily reduce the volume of evidence presented to the jury. We do not regard this as a shortcoming. If the compound allegation is used only where it should be, that is to say where each transaction is virtually identical, then, although the volume of evidence may be substantial, its repetitious nature will enable it to be presented in a manageable form. It will routinely be presented by one or a small number of witnesses producing evidence in the form of records which will, in themselves, be easy to present or which will be capable of being reduced to easily manageable schedule form.^[24]

The burden of proof

6.19      The compound allegation proposal is designed to enable the jury to deal with the question of guilt where the conduct may properly be categorised as comprising a single offence, but in a way which makes transparent the basis upon which the court should sentence the person who has been found guilty of that offence. It makes transparent the thought processes which may currently be inferred when a fact-finder, be it District Judge (Magistrates' Court) or a bench of magistrates, currently sentences a person for a continuous offence or for a general deficiency offence.
6.20      Our recommendation does not involve a shift in the burden of proof. It will be for the Crown to prove that on at least one occasion the defendant committed the alleged offence. Whilst the defendant can be convicted of the count containing the compound allegation on this basis, the defendant cannot be sentenced for the full extent of offending alleged unless the further offending occasions have also been proved by the Crown so that the jury is sure. If one or more jurors (or up to three or more, after a majority direction) is not sure about any offending occasion then, under the special procedure, the judge would be so notified and it would not be taken into account for the purpose of sentence. Consequently, this proposal is very much to the defendant's advantage. The final outcome of the trial will be a sentence which will disregard those occasions of offending upon which there is a "failure to agree".

At the close of evidence

6.21      Upon consultation we were impressed with the view expressed by a number of respondents that it would be highly desirable for a jury in such a case to have a written, structured, "steps to verdict" set of directions. Whilst the precise questions would have to be discussed with counsel before the summing up, having regard to the particular facts of the case, we have set out below, the type of summing up we would expect, from which written questions could be extracted.

Special verdicts and directions to the jury

Special verdict

6.22      The use by the courts of the special verdict, or the posing of questions to the jury, has not been encouraged in recent years. In our judgement, however, its use is entirely justifiable in appropriate circumstances to illuminate the otherwise opaque verdict of the jury, the better to inform the sentencer and thereby to enable an accurate sentence to be passed.
6.23      Sir Robin Auld, in the report of the Criminal Courts Review,^[25] identified the need for a fundamental and practical review of the structure and necessary content of the summing up:

with a view to shedding rather than incorporating the law and to framing simple factual questions that take it into account.^[26]

Under the simpler scheme that I have in mind, the judge's prime function would be to put a series of written factual questions to the jury, the answers to which could logically lead only to a verdict of guilty or not guilty … Each question would be tailored to the law as the judge knows it to be and to the issues and evidence in the case.^[27]

6.24      Although the Government has not accepted this particular recommendation, the difference between his recommendation and ours is that we would ask questions of the jury to illuminate the verdict of guilty in order to aid sentencing, not to expose the thinking of the jury which has led to the verdict. In order to explain how the taking of a verdict might work, we will go step by step through the possible decisions to which the jury might come in the normal course of events. We will then see how the additional questions that the jury may have to answer for this special verdict would fit in.
6.25      As in any trial the jury must reach its verdict either unanimously or by "a majority" (ie normally at least 10:2 after a minimum period of deliberation without unanimity). Thus, in order to convict, all (or at least 10) must be sure of guilt. In order to acquit, all (or at least 10) must be less than sure of guilt. If at the end of their deliberations the position is that there is no agreement, either unanimous or of at least 10, either to convict or acquit, then there will be a "failure to agree" or "a hung jury" and the jury will be discharged. There may, or may not, be a re-trial with a different jury.
6.26      In the case of the compound allegation the jury will be considering (i) a verdict of guilty or not guilty on one count relating to a number of occasions of offending, and (ii) in the event of a verdict of guilty, whether there are any occasions upon which it is unable to agree that the defendant committed an offence. The prosecution will, in addition to the indictment, have provided the jury with a schedule to use when considering its verdict and, if appropriate, the supplemental question. The judge may have agreed with counsel to draw to the attention of the jury specific occasion(s) of offending, in relation to which a particular issue was taken at trial. Thus, the judge, where appropriate, will have explained to the jury which of the listed offences it may consider are principal contenders for it to indicate that it is unable to agree on the defendant's guilt notwithstanding its verdict of guilty on the compound allegation count in the indictment.
6.27      At the end of their deliberations:

(1) In order to convict of the count containing the compound allegation, all (or at least 10) of the jury must agree that they are sure that the defendant committed the alleged offending on at least one (the same) occasion.

(2) In order to acquit, all (or at least 10) of the jury must agree that they are less than sure that the defendant committed the alleged offence on any occasion at all. In practice, as these are going to be "all or nothing" cases, this would not be as daunting an undertaking as it might, at first blush, appear.

(3) If the position is that the jury is unable to attain the level of agreement either to convict or acquit, then there will be a hung jury and (possibly) a retrial.

(4) If, but only if, the jury has convicted in accordance with paragraph (1) above then the special verdict procedure we propose for the compound allegation will come into play. The jury will be asked, for sentencing purposes, to clarify the extent of that offending by identifying any occasion(s) of alleged offending where it is unable, by a sufficient majority, to agree that it is sure of guilt. Any occasion so identified will be discounted by the judge in measuring the appropriate sentence.

6.28      It is important to emphasise that at this stage the jury is not being asked whether it would acquit the defendant in respect of those other occasions. That would require unanimity (or at least 10 to agree) that they were less than sure of guilt. What the judge will be asking is whether, and if so upon which occasions, the jury has failed to reach a sufficient level of agreement to convict. The defendant will not be sentenced for offending which includes these offending occasions because he or she will not be regarded as having been convicted of them.
6.29      Thus, the defendant will have the benefit of having the sentencer discount alleged occasions of offending in respect of which the jury would have been unable to base a conviction because of a failure to agree. If, contrary to the characterisation of the case, as all or nothing, the jury were to conclude that it was sure of guilt only on one occasion then it would so inform the judge who would sentence accordingly.

Directions to the jury

6.30      The jury direction will need to include a Brown direction,^[28] to avoid any complications arising as to whether all, or a sufficient majority of the jury, was agreed about guilt of at least one particular offending occasion.
6.31      We will now provide, as an illustration, a possible formulation of a direction of the type that the judge would be expected to give in a compound allegation case. We take a case where a defendant has pleaded not guilty to a compound allegation of theft. The circumstances of the offence are that the defendant, the Financial Director of a company, was alleged to have falsely inflated his expenses claim by sums in the order of £600 each month, for a period of six years. The total loss to the company was some £43,000. The expenses related to hotel accommodation charges that the Crown say were not incurred by him because during these periods the defendant occupied a flat that he owned. The defence was that he was entitled, as a "perk", to claim hotel expenses even though he had never incurred them. As a side issue, in the course of his evidence, the defendant also claimed that for three months of the relevant period he had been off from work on sick leave and therefore was unable to have made the claims which were apparently revealed by the records. Thus there is a single "all or nothing issue" in respect of all the claims he made but there is, in addition, a small subset of issues in respect of the problematic three months of his absence from work through illness.
6.32      In summing up such a case, the judge might direct the jury on the following lines:

Members of the jury, the offence in count one is known as a "compound allegation". Although you might think the facts relate to the large number of alleged occasions of theft identified in the schedule, the law permits them to be charged as one single offence of theft. This is because the alleged victim, the company, is identical and the method of alleged offending on each occasion is identical. In the circumstances the law treats it as an allegation of one offence of theft committed over a period of time.

It is a necessary condition of its being treated as one offence that the main issues raised by the prosecution and defence are identical for each alleged occasion, so that you might well think that a decision that the defendant is not guilty on one occasion would necessarily involve a decision that he is not guilty on all of them and, conversely, that a decision that he is guilty on one occasion would involve a decision that he is guilty on all. In other words it is, in this sense, "all or nothing".

In this case the main issues common to each alleged occasion of theft which make it in that sense "all or nothing" are

(1) whether monthly claims were lodged by the defendant in relation to accommodation charges described as having been incurred by the defendant at the Executive Hotel;

(2) whether, as the Crown say, the Executive Hotel is correct in saying that the defendant never visited or stayed at that establishment during that period and that the defendant was never asked to pay nor did he ever pay any sum to the hotel;

(3) whether, as the Crown say, during this period the defendant was the owner of a flat that he occupied during the monthly business trips and so had no need to stay at the Executive Hotel;

(4) whether the defendant may be right when he says that he was entitled to claim these hotel expenses as a "perk" even though he never stayed there and did not make any payments to the hotel.

In this case there are certain particular alleged occasions where specific and different issues have been raised and which, you may think, prevent those particular occasions from being simply "all or nothing". I will identify these in due course.

Because this count is placed before you as a compound allegation, as I have described, I will ask you, when you retire, initially to consider only one question on this particular count, namely, are you sure that the defendant has committed the alleged offence of theft on at least one - the same - occasion. If so, you will convict the defendant of this count.^[29] This is a decision upon which you must all (or at least 10 of you) agree.

Conversely, in order to acquit the defendant of this count you must all (or at least 10 of you) agree that you are less than sure of the defendant's guilt on each of the occasions on which it is alleged he committed the offence of theft. Although this may seem to be a daunting requirement, you must bear in mind always what I have said to you that in this case a decision on one of the alleged occasions of theft contained in this compound allegation as "all or nothing" will, in effect, be a decision on each of them.

Were you to convict, and in order to assist me in sentencing, you would, after announcing your verdict, then be asked to tell me if there were any particular occasions of alleged theft where you have been unable to agree that the defendant is guilty.

If, therefore, you decide to convict the defendant of this count, you should go on to consider whether, notwithstanding the fact that you have found the defendant guilty, there are any particular alleged occasions where you are not able to agree that you are sure of his guilt so as to inform me when I ask you.

In particular, and to help you in this task, I now call to your attention the side issue I have already mentioned in respect of particular occasions of alleged theft which, it has been suggested are not simply "all or nothing".

The defendant has produced medical evidence showing that for a period of three months, whilst recuperating from an operation, he was unable to travel. The defendant states that he was away from work during that period and denies having presented any accommodation claims relating to that period. You have to decide whether you are sure that the claims that the Crown say were lodged by the defendant relating to that period were in fact lodged and by him. If you are sure, your verdict of guilty will, no doubt, extend to that period of offending. If you are not sure, or you are unable to agree what is your view of these occasions, you must inform me of that so as to clarify the extent of his guilt after returning your initial verdict.

Article 6 of the ECHR

6.33      Article 6(2) provides:

Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.

6.34      We have taken care to ensure that our recommendation will respect this right. The structure of the compound allegation procedure is that the Crown will bear the burden of proving the defendant's guilt of the compound allegation. The verdict will be that on a date or dates between two specified dates, the defendant, for example, stole not less than £X and not more than £Y.^[30] The procedure will ensure that the jury illuminates this finding by being asked whether there are any of the alleged occasions upon which the Crown has failed to discharge its burden of proof. Furthermore, the jury will have its attention drawn to any specific occasion, or series of occasions where, in accordance with the evidence, such a separate issue might arise.
6.35      Professor Elliot in his seminar response was in no doubt that our proposal would, in relation to one compound offence, satisfy Article 6(2). He explained that:

If the jury find that the D committed the offence on one occasion, it will follow that they are satisfied that he committed it on all the occasions specified, other than those on which they say they are not satisfied. The judge can safely sentence for the whole alleged wrongdoing, as has been the position for years. The only change, which is an improvement, is that the jury are able to tell the judge what he must not sentence for. … I do not think that it can seriously be suggested that the scheme would offend Article 6(2) of the Convention and the presumption of innocence.

6.36      The use of the compound allegation will only arise where the trial judge is satisfied that the connection between the occasions of offending is such that it is a prima facie inference that if a person is guilty of one he or she will be guilty of all,^[31] but the Crown will remain burdened with proving guilt of the one offence.^[32] Where there is evidence to suggest that there are any particular offending occasions upon which a different conclusion might be reached, the jury will be directed to address those occasions specifically as well as considering whether there are any others where the Crown has not established guilt. The closest the procedure would come to infringing the presumption is that the sentencer will be able to sentence on the basis that if there is a verdict of guilty and no indication otherwise, then the judge can sentence on the basis that the defendant is guilty of all the alleged offending. This is and has been the position for many years where there has been a general deficiency or where there has been a single continuous offence. Our recommendation would improve the position of the defendant by enabling him or her to have the advantage of the jury telling the sentencer not to sentence on the basis of the entirety of the allegation but only on part of it. In effect we are replicating in overt form in the Crown Court the kind of process which informed the sentence of the Stipendiary Magistrate in Barton.^[33]

Method of introducing this change of procedure

6.37      Under section 84 of the Supreme Court Act 1981, rules of court may be made by way of secondary legislation for the purpose of regulating and prescribing the practice and procedure to be followed in the Crown Court and the Criminal Division of the Court of Appeal.^[34] The question which is the most suitable method of effecting a change in the law in any given case, be it by way of a Practice Direction, rules of court, or primary legislation, is a subject which we do not explore in this paper.^[35] However, we would be surprised if it was thought that these recommended changes in practice and procedure in the Crown Court would require primary legislation.

Should indictments be allowed to contain an unlimited number of counts?

6.38      We have considered whether, as an alternative approach to that of the compound allegation, it would be preferable to allow indictments to be drawn without limiting the number of counts so as to include perhaps hundreds of occasions of individual offending. That might be a more direct means of addressing the problem than making use of the developed case law relating to the concept of the 'continuous offence' as a basis for our recommended compound allegation procedure. It has been suggested that in the age of word processors, there may be no need for the courts to be constrained by rules relating to overloading which developed in a different age. That would have the attraction of providing a direct approach to ascertaining accurately the level of offending which the prosecution has established to the required standard. It would, however, give rise to a different problem. The judge in summing up would need to direct the jury separately to the evidence on each of potentially hundreds of offences, a task which anyone with experience of summing cases up would recognise as being daunting, not to say impossible. The jury, a lay body with no particular expertise in organising material, or taking collective decisions, would then be asked to make hundreds of separate decisions.
6.39      It might be thought that these problems could be overcome by the various techniques now available to enable juries in serious fraud cases to have presented to them masses of documentary evidence and to receive directions on diffuse and complex transactions sufficient to enable them confidently to address the questions of guilt. The difference between that type of case and the ones which we are considering is the much smaller number of counts and decisions required of the jury even in a lengthy, serious and complex fraud case. We have to recognise, in making our recommendations, that the courts are firm in their view, based on long experience, that in practice, a trial of a large number of separate counts of anything much over about 30, is untenable. This view is based on the established opinion of the courts not only that the jury, comprising twelve randomly selected people, is not a body that is able to make a larger number of separate decisions, but also that it is beyond the practical competence of prosecution, defence and the judge to present such a number of individual decisions to the jury so as to enable them sensibly to deal with them.^[36] Thus, whilst it might in theory be possible to suggest that trials could be organised so that jury members could be expected to apply their minds to a larger number of individual separate decisions, in practice we have no doubt that such a proposal would be rejected as unrealistic by the bodies which have experience of, and responsibility for the conduct of such trials.
6.40      We have also considered whether, in the case of an indictment setting out numerous offences that are sufficiently closely linked so that they fall within the "single continuous offence" concept, the jury could be directed to say whether it found the defendant guilty of, for example theft, and whether that was on each of the occasions listed or whether, on some of the occasions, the defendant was found not guilty. This would avoid the need for the jury to recite solemnly, 52 times, for example, that it found the defendant guilty of the offence of theft. An alternative approach would be for the jury to say that the defendant was found guilty of theft on all the dates shown, except for specific instances which it identifies.
6.41      We are concerned that this suggestion might go further than is appropriate in inviting decisions of the jury based on an assumption of guilt. It would be envisaged that the judge would tell the jury that, because of the all or nothing nature of the offending, they should not worry about taking substantive decisions on each of the individual counts, because guilt of one will mean guilt of them all, save for any specifically separate issue that might be raised. Nonetheless the judge would still require them, in one form or another, to return separate verdicts (of guilty) in relation to each count even though they may not have specifically considered them. If that were to be our recommendation, we fear that it would be liable to be criticised as an apparently explicit derogation from the presumption of innocence.
6.42      There is room for disagreement on whether our minimalist approach of giving effect to the existing law is correct. A third option would be to change the Indictment Rules to permit more than one offence to be charged in a single count upon which a single verdict can be returned. This would only apply in very limited circumstances, namely where two or more similar offences, connected by time and place of commission or common purpose so that they can fairly be recognised as forming part of the same transaction or criminal enterprise, are alleged, and any defence raised makes it an "all or nothing" case. We have raised this possibility in paragraph 6.9, above. In our view the present law can be used without the need to change the Indictment Rules but doing so is an alternative route.
6.43      The approach we recommend is, we think, more consistent with principle and practicality. It will result in a single verdict. If guilty, this will reflect the reality that the jury are sure that the defendant is certainly guilty of, at least, one offence. The remaining question will be about sentence. The advantage of our proposal over the present situation is that the judge, when sentencing, will know, from the jury, if there are any particular matters for which the defendant should not be sentenced. The defendant will not have to be found "not guilty" to have the advantage of not being sentenced for such alleged offences. Mere jury disagreement will suffice. Further, the jury will be better equipped to apply its mind to the genuine potential exceptions to the general conclusion rather than being swamped with the task of coping with the large number of undifferentiated offending occasions which may result in the true exceptions being overlooked or ignored.

Conclusion

6.44      The consensus of views received favoured our proposal for a compound allegation procedure which we now recommend.^[37] As we have explained above at paragraph 6.18 this proposal is not intended to solve the difficulties that arise in voluminous and complex cases. It is intended to improve the present procedure for prosecuting repeated offending that can be categorised as a continuous offence. This procedure would be an improvement on the present position because it would enable a judge in the Crown Court to understand more fully the meaning of a guilty verdict. It would also complement our recommendation for a two stage trial procedure for use in certain cases which would not fall within the "compound allegation". The existence of both procedures would mean that defendants who have been charged with multiple offences, which are neither complex nor unduly voluminous, could have their guilt or innocence of the full extent of their alleged multiple offending determined by a jury to the maximum extent possible, thereby diminishing to the minimum extent necessary the use, under our two stage trial procedure, of a fact-finder other than a jury.^[38]

Recommendation

6.45      Where a defendant has been convicted in the Crown Court of conduct which under existing law may be regarded as a "continuous offence", we recommend the use of a special verdict as a means of enabling judges to be better informed about the extent of offending of which the jury is sure.

Note 1    This will, for example, be because the defence issue is identity, or that a defendant was being paid for services, or was not dishonest because his or her supervisor/employer had given permission so that if the jury disbelieves the defendant on that issue, the defendant would have no defence to any of the offences.    [Back]

Note 2    [2001] EWHC Admin 223. See para 3.6, above.    [Back]

Note 3    In DPP v Merriman [1973] AC 584.    [Back]

Note 4    Ibid at p 607C.    [Back]

Note 5    (1870) 11 Cox 526.    [Back]

Note 6    (1870) 11 Cox 526 at p 528.    [Back]

Note 7    [1992] Crim L R 885.    [Back]

Note 8    By Professor Sir John Smith in his role as consultant on the fraud project.    [Back]

Note 9    See for example, the case of Rowlands, discussed at para 3.8.    [Back]

Note 10    [1973] AC 584.    [Back]

Note 11    [2001] EWHC Admin 223.    [Back]

Note 12    It is an offence for a person (a) to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child; or (b) to distribute or show such indecent photographs or pseudo-photographs; or (c) to have in his possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself or others; or (d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs or intends to do so. (Protection of Children Act 1978, s 1(1), as amended by the Criminal Justice and Public Order Act 1994, s 84(2)(a)–(b) and s 168(3), Sched 11). In many cases the use of a compound allegation may not be necessary. Where for example the charge is one of possession, or possession with intent, it would be legitimate to plead all the images recovered at the same time from the same place in one count. The count would not be duplicitous, as it would allege one act of possession at a particular time and place, of a number of images.    [Back]

Note 13    Brief facts of this case have been given above at para 3.8.    [Back]

Note 14    After conviction on a compound allegation charge, and after the jury has given the judge any indication it wishes on the extent of offending encompassed within that count, a defendant may wish to have taken into consideration on sentence, a wider range of offending than was encompassed in the indictment. There is no reason why the existing practice of taking offences into consideration should not continue to be available to the defendant. This practice was described by Lord Goddard CJ in Batchelor (1952) 36 Cr App R 64 at pp 67–68, as a convention under which, if a court is informed that there are outstanding charges against a prisoner who is before it for a particular offence, the court can, if the prisoner admits the offences and asks that they should be taken into account, take them into account, which means that the court can give a longer sentence than it would if it were dealing with him only on the charge mentioned in the indictment.    [Back]

Note 15    See discussion in Part VII of this report.    [Back]

Note 16    Such a statement is voluntary for a summary trial, Criminal Procedure and Investigations Act 1996, s 6.    [Back]

Note 17    Criminal Procedure and Investigations Act 1996, s 5(6)(a).    [Back]

Note 18    Tibbs [2000] 2 Cr App R 309 at p 315.    [Back]

Note 19    The Criminal Procedure and Investigations Act 1996, s 5(1)(a) provides that a defence statement is compulsory in the circumstances set out in s 1(2), which govern the application of Part I. Read in conjunction with one another, these sections require a defence statement where a person has been committed for trial on an indictable matter, where a person is to be tried at the Crown Court by virtue of a notice of transfer under either the Criminal Justice Act 1987, s 4 or the Criminal Justice Act 1991, s 53 or where a summary matter is included within an indictment, or a bill of indictment charging a person with an indictable offence is preferred.    [Back]

Note 20    The Criminal Procedure and Investigations Act 1996, s 3 stipulates that the prosecution must provide one or the other.    [Back]

Note 21    Certain circumstances, set out within the Criminal Procedure and Investigations Act 1996, s 5(2) and (4) negate the obligations of the accused. These mainly relate to failures to comply with procedural requirements, for example, where the notice of transfer in a serious or complex fraud has not been complied with.    [Back]

Note 22    The question for the court will be whether these demonstrate sufficient connection in time and place of commission or common purpose (see para 6.7 above).    [Back]

Note 23    A CPS delegate raised the question of whether this procedure could easily apply to the offence of deception where the effect of the defendant’s action on the mind of the victim is a factor. In our view, that would depend on the circumstances of any particular case. For example, the repeated presentation of a forged receipt for expenses, using a pad of receipts stolen from a service station, is no less susceptible than was Barton [2001] EWHC Admin 223 to this treatment. It should be a matter for the judge on applying an interests of justice test.    [Back]

Note 24    This is to be contrasted with cases which would not be susceptible to either of our proposals where the evidence may well be diffuse, complex and difficult to reduce to a manageable form or proportions. It is in respect of trials of serious and complex fraud cases, where, in many instances neither of our proposals will be appropriate, that the Auld Review recommends removing juries entirely (Auld LJ, Review of the Criminal Courts of England and Wales (2001) ch 5, paras 173-206). In the White Paper responding to Auld the Government appears minded to implement this recommendation though without the participation of “lay assessors”, as the Auld Review has recommended.    [Back]

Note 25    Auld LJ, Review of the Criminal Courts of England and Wales (2001) ch 11.    [Back]

Note 26    Ibid, para 49.    [Back]

Note 27    Ibid, para 50.    [Back]

Note 28    (1983) 79 Cr App R 115. It is a fundamental principle that a jury must agree that every ingredient necessary to constitute the offence has been established. This will require in the case of a compound allegation either unanimity or a relevant majority of the jury agreeing that the defendant is guilty of the same instance of offending.    [Back]

Note 29    Normally the instruction that the jury must reach a unanimous decision on guilt or acquittal (averting, in certain circumstances, to the possibility of a majority direction) will be given at the end of the summing up. In compound allegation cases it might be appropriate, as we have done, to indicate at this stage that their decision on guilt or acquittal must be unanimous. This will enable the judge to distinguish for the jury the decision on guilt from the special approach to an indication for the purpose of sentencing.    [Back]

Note 30    In such an example X would relate to the least amount stolen on one occasion that was known, and Y to the total. This is different from the general deficiency where the only sum known with certainty is the total sum because the prosecution is unable to identify any particular occasion upon which any particular amount is stolen.    [Back]

Note 31    For example where the issue is dishonesty and the jury does not accept the defendant’s explanation of why the conduct was claimed to be honest.    [Back]

Note 32    To date, the courts have recognised that, in sentencing a defendant who has been convicted of a single continuous offence, all the continuous offending included within that single offence can properly be taken into consideration, if that is the sentencer’s view of the facts, because it is all within the ambit of the finding of guilt. To do so is not regarded as sentencing a defendant for an offence of which he or she has neither been convicted nor has asked to have taken into consideration. We are aware that on 1 March 2002 the High Court certified that there was a point of law of general public importance in Barton v DPP [2001] EWHC Admin 223. However, the High Court refused leave to appeal to the House of Lords. To date, we are not aware of any application to the House of Lords having been made for leave to appeal.    [Back]

Note 33    [2001] EWHC Admin 223.    [Back]

Note 34    Section 86 of the Act vests these powers in a rule committee. The Crown Court Rules 1982 (SI 1982/1109, as amended ) were issued pursuant to these provisions.    [Back]

Note 35    For an example in which each of this range of options has been used in connection with one issue, consider the law and practice relating to the giving of witness evidence by way of a video. This is governed by the Youth Justice and Criminal Evidence Act 1999, ss 16-17, 24 and 27-8, the Crown Court Rules 1982, as amended by SI 1997/701, and by a Practice Direction [1992] 1 WLR 839. Although these provisions deal with different aspects of the procedure, it is not absolutely clear, particularly between primary and secondary legislation, which type of provision would be used for which particular purpose. The Practice Direction is, however, more obviously concerned with uncontroversial aspects of this type of procedure, for example, what to do when the equipment breaks down, how video evidence should be played and that it should be edited in accordance with the directions of the judge.    [Back]

Note 36    “To have 94 separate informations would have rightly been regarded as oppressive”, per Kennedy LJ in Barton [2001] EWHC Admin 223, para 22.    [Back]

Note 37    In addition, the scheme for returning verdicts envisaged by Lord Justice Auld would fit well with our proposal for compound allegation(s). Indeed, the Justices’ Clerks’ Society responded that [t]he Society has little difficulty with this proposal. The approach suggested at 1.55 [of the Seminar Paper, relating to compound allegations] would seem to the Society to be the correct approach in such cases. The link with the scheme envisaged in the Auld [review] is timely and well made.    [Back]

Note 38    The recommendation for a two stage trial procedure is addressed in detail in Part VII.    [Back]