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Multiple Prosecutions of Similar Offences.

This article looks at how a prosecutor might deal with traders, whose actions give rise to multiple offences, without laying an excessive number of informations and without laying informations which are duplicitous. Can the court sentence on the basis of similar offences not formally taken into consideration? First Published in the Justice of the Peace (2002) 166 JPN 140 & 162.

It is not unusual for criminals to commit the same type of offence many times over.  A burglar may enter a number of similar houses on the same night and steal similar items from each of them.  There is no doubt that, despite the similarity, each such burglary constitutes a separate offence.  In other areas of law, however, multiple prosecutions for similar offences have given rise to a number of challenges.  These have been on the basis that it is an abuse of process of the court to cause a person to stand trial more than once for what (it is said) amounts to the same offence.  A separate difficulty in relation to multiple offences arises for the prosecution if it only lays sample informations on the assumption that the court, when sentencing, can be apprised of the full extent of the offending.

A single act but many offences

In the business world a single action by an individual can have an impact on a large number of goods and on each consumer or potential consumer of those goods.  Likewise, a single commercial statement as to the provision of a service can reach an audience or readership of millions.  The same acts or statements can give rise to multiple offences either in the same place at the same time or in different places and/or at different times.

In Gateway Foodmarkets Ltd v Devon County Council [1989] COD 342, Gateway displayed some 527 tins of cat food on a shelf in one of its stores.  The tins were adjacent to a "shelf barker" which stated "Whiskas Cat Food Lge 36p".  About half of the tins were indeed priced at 36p but the rest were actually priced at 38p.  The prosecution laid eight informations – one for each of the eight varieties of the cat food displayed – alleging that Gateway had given a false price indication contrary to s 11 of the Trade Descriptions Act 1968 ("TDA").  Gateway contended that as there was only one shelf barker there was only one price indication and hence there could only be one offence.  Mustill LJ was unimpressed by that argument: "The goods which are being offered are the individual tins and … the shelf barker was an indication in relation to each individual tin.  So far as it was, in that respect, false, it created a series of offences rather than one."  Gateway raised the prospect of the prosecution being able to lay hundreds of informations in relation to a single price indication.  Mustill LJ did not think that there was any real danger of that but that, if that were to happen, the court would make any punishment for the offences "commensurate with the true fault of the defendant".  Section 11 of the TDA has since been repealed, but the offence of giving a misleading price indication lives on in s 20 of the Consumer Protection Act 1987 ("CPA"). [Note: Offences relating to misleading price indications are now caught by the Consumer Protection from Unfair Trading Regulations 2008.]

In R v Thomson Holidays Ltd [1974] 1 QB 592, Thomson's brochure falsely stated that a certain holiday hotel had a paddling pool, private swimming pool and a night club on the beach.  In July 1972, the company pleaded guilty at Stockport Magistrates' Court to three offences under s 14(1)(b) of the TDA.  In March 1973, they were tried at Manchester Crown Court on an indictment alleging three offences in identical terms, to the ones for which they had already been convicted, save only that the dates and places of offence were different.  Thomson unsuccessfully pleaded autrefois convict contending that they had already been convicted for the offences and that they could not be convicted of the same offences twice.  On appeal, Lawton LJ said that a statement, for the purposes of s 14, was made whenever it was communicated to someone.  The defendants had circulated "amongst the public two million copies of a brochure, each of which contained false statements intended by [the defendant to be read by, and to influence, one or more readers. ... With the printed word, the information would be given when the brochures were read. ... That was when the false statements were made, and they were made to each reader. ... On that construction of s 14(1)(b) the plea of autrefois convict could not be valid as there were as many offences as there were readers. … Multiple prosecutions in different areas arising from one course of conduct are not uncommon under regulating enactments. … Two prosecutions in respect of false statements in the same brochure cannot be said to be either an abuse of process or oppressive."

The House of Lords in Wings Ltd v Ellis [1985] 1 AC 272, expressed some disapproval of the decision in the above case, but only in so far as they considered that Lawson LJ's description of when a statement was made was too narrow.  Lord Scarman said: "I think R v Thomson Holidays Ltd was correctly decided, even though I do not accept the totality of the court's reasoning.  A statement can consist of a communication to another; and in the context of this Act and the circumstances of this class of business I have no hesitation in accepting the court's view that communication by an uncorrected brochure of false information to someone who is being invited to do business in reliance on the brochure is 'to make a statement' within s 14(1)(a).  But there can be statements which are not communicated to others.  It was unnecessary for the Court of Appeal to hold that communication was of the essence, and to that extent only I think the court erred."  Lord Hailsham LC agreed: "When in the course of a trade or business, a brochure containing a false statement is issued in large numbers through a chain of distribution involving several stages, and intended to be read and used at all or some of the stages, it does not follow that it is only 'made' at its ultimate destination.  It may be 'made' when it is posted in bulk, when the information is passed on by telephone or in smaller batches by post, and when it is read by the ultimate recipient, provided that at each stage what happens is in accordance with the original intention of the issuing house."  The House of Lords, therefore, made it clear that a single brochure could give rise to numerous offences of the same kind.  They upheld R v Thomson Holidays Ltd in so far as it sanctioned more than one prosecution arising out of the same false or misleading statement.  Lord Hailsham LC, however, did express the view that prosecutors should not be over enthusiastic in seeking to secure multiple convictions.  He said: "The respondents made a valiant attempt to induce your Lordships to declare that R v Thomson Holidays Ltd was wrongly decided.  In my view the attempt fails.  It does not follow from this that a prosecution policy of excessive zeal involving repeated attempts to convict a firm in respect of each separate communication of an individual copy of a brochure ought to meet with anything but reprobation from the courts.  That must depend on the circumstances."

North Yorkshire v Coleman

The propriety of multiple prosecutions was questioned again in North Yorkshire Trading Standards Service v Coleman [2001] EWHC Admin 818.  Mr Coleman was an independent agent, or third party contractor, who operated in the UK representing the interests of an Italian company of which he was not an employee.  He received and passed on samples of furniture and reports from the Italian company and negotiated for the sale of the furniture to companies in the UK.  One such company, "Furnitureland", was prosecuted in Cardiff for offences arising out of the furniture not complying with fire safety regulations.  Coleman was also prosecuted, it being alleged that the offences were due to his act or default.  He was acquitted, on a submission of no case to answer.  That submission was based on Lester v Balfour Williamson Merchant Shippers Ltd [1953] 2 QB 168.  The magistrates accepted the argument, on behalf of Coleman, that as he had sold as a broker there could be no act or default on his part.  Another prosecutor, the North Yorkshire Trading Standards authority, subsequently prosecuted a second company, Conroys Limited, who had purchased, and then sold, some of the Italian furniture.  Coleman had acted as agent for the Italian company in the sale to Conroys as he had done in the sale to Furnitureland in the Cardiff case.

Coleman was again charged that offences relating to the furniture not complying with fire safety standards (whilst purporting to do so) contrary to the CPA and the TDA, were due to his act or default.  Coleman had given Conroys assurances that the furniture complied with UK legislation.  He had passed to them a favourable fire test certificate but concealed previous test failures, for the same type of furniture, carried out only a month before the pass test.  Coleman also told Conroys that an article in a furniture trade journal which suggested that there were trading standards concerns over the furniture, and referring to a raid by officers in Cardiff, had been generated by rival suppliers.  Conroys pleaded guilty, but Coleman submitted that it would be an abuse of process for him to be tried for substantially the same allegations in respect of which he had already been acquitted in Cardiff.  The magistrates accepted that argument and permanently stayed the proceedings.  North Yorkshire appealed.

On appeal, Burton J said: "In R v Thomson Holidays Ltd the same statement was simply made in a brochure which was generally distributed.  There was no suggestion or evidence of oral assurances made on different occasions to different people. … It is clear from that case that the bringing of two prosecutions in such circumstances cannot amount to an abuse of process without more.  In this case there is less. … There is and was no arguable case whatever for an abuse of the process. … The decision in Cardiff is not, as [counsel for Mr Coleman] has accepted, in any way binding on the decision of the magistrates in North Yorkshire.  Instead it might well be that if they had heard legal submissions to a similar intent, even assuming similarity of the evidence, they might have reached a decision different from that reached by the magistrates in Cardiff.  Indeed, in my judgment it would be difficult to support the conclusions reached by the magistrates in Cardiff, but I say no more about that because the matter is not firmly before me today. … The right course would … be for the second lot of justices to hear evidence and argument and decide whether they come to the same conclusion [as the first]; and if they do not, and there are two inconsistent decisions, then the two decisions, or at any rate the second one, can be brought before this court and/or the Court of Appeal to see whether it or the earlier decision is right.  Without that, there never would be any opportunity to test the correctness, on similar facts, of the first set of justices, and it would in practice become binding where it otherwise should not."

Given that Burton J was not considering an appeal against the decision of the Cardiff justices, he came as close as he could to finding that they were wrong – "it would be difficult to support the conclusions reached".  It does indeed look as though the Cardiff magistrates got it wrong.  In Lester v Balfour Williamson Merchant Shippers Ltd, the act or default alleged against the broker (the equivalent of the independent agent) was the mere fact that he had sold the goods.  In law, however, the defendants "were not the sellers, but were simply selling as brokers."  In the instant case the act or default of Coleman was not that he sold the furniture, but that he had represented that it complied with UK legislation.

Whatever Coleman's liability for "act or default" (under s 40(1) CPA and s 23 TDA) might have been as an agent, it is abundantly clear from Burton J's judgment that there was not even an arguable case for abuse of process based on Coleman having been made the subject of two prosecutions in relation to similar activities.  An analogy which found favour with Burton J was that of an overloaded lorry on a journey from the north of England.  If the driver was stopped and his load weighed by a prosecutor in the north, but he continued down through the Midlands, with the same load, and was stopped again but he then carried on into the south of England to be stopped a third time, then he could be prosecuted for an identical offence by three prosecutors without it being oppressive.  Furthermore, if one of the prosecutions failed, because there was a fault in the weighing scales in one of the areas, there was unlikely to be any argument that it was an abuse to pursue the other prosecutions where reliance was placed on different weighing scales.

Burton J made no reference in his judgment to the House of Lords decision in Wings Ltd v Ellis.  Had he been referred to it, he could, however, (if that were possible) have only found R v Thomson Holidays Ltd to be even more compelling than he did.

Prosecuting cross-border offences

In both R v Thomson Holidays Ltd and North Yorkshire Trading Standards Service v Coleman, the defendant was prosecuted by more than one prosecutor for similar offences occurring in different geographical areas.  It makes sense in terms of time, effort, costs and public resources for, wherever possible, the prosecutor for one of the areas concerned to prosecute all such offences.  However, a co-ordinated multiple prosecution will not always be possible, particularly when there has been a significant lapse of time between the commission of the offences.  The first offence may have been prosecuted before all the elements of the second offence are committed.  Delaying the first prosecution until the second matter has been fully investigated may cause unacceptable delay and might put the first offence out of a statutory time limit for prosecution.  On other occasions, each prosecutor may have invested so much time in their own case that they wish to see it through themselves and not have it prosecuted by another authority.  The "home authority", i.e. the local authority from which a defendant primarily operates its business, may think it appropriate that it should conduct any prosecutions.  There is another reason why multiple cross-border offences are not prosecuted by a single prosecutor, and that is the belief held by many that such a course is not permissible.

In 1997, Oldham Borough Council brought a prosecution against Thomsons Tour Operations Limited alleging a total of 31 offences under the CPA.  Only one of those offences was alleged to have been committed within the Borough of Oldham.  The other 29 offences were said to have occurred in Wolverhampton, Swansea, Bordon (Hampshire), Newcastle upon Tyne and Great Yarmouth.  The stipendiary magistrate dismissed those 29 informations, accepting the defence contentions that Oldham Borough Council only had lawful authority to prosecute offences under the CPA which were committed within their own area.

Section 27(1)(a) of the CPA provides that "it shall be the duty of every weights and measures authority … to enforce within their area the … provisions … of this Act."  Similar provisions appear in other regulatory legislation such as in s 26 of the TDA.

Section 222(1) of the Local Government Act 1972 ("LGA") provides that "Where a local authority consider it expedient for the promotion or protection of the inhabitants of their area – (a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name."

Oldham Borough Council had argued that, notwithstanding the limited "duty" under s 27 CPA, it had a wide "power" under s 222 LGA to prosecute outside of its area, provided that it considered it to be in the interests of the inhabitants of its area.  The magistrate effectively held that the local authority's power under s 222 LGA was confined to prosecuting offences under legislation which it had a duty to enforce.  Oldham Borough Council sought a case stated, but, unfortunately, did not pursue an appeal to resolve this important point of law.  It is submitted that the magistrate was wrong and his error is apparent from the draft question of law which he posed for the opinion of the High Court.  He asked whether s 27 CPA is to be construed as imposing a duty on the local authority to prosecute offences under the CPA "committed only within that authority's area".  The answer to that question is undoubtedly "yes", but it does not take the matter any further.  The question fails to take account of s 222 LGA which is concerned not with the local authority's "duty" but with its "powers".

Subsequent case law has shown that the local authority's powers under s 222 LGA are quite extensive.  In R v Jarrett and Steward (1997) 161 JPN 816, a local authority prosecuted a car dealer for conspiracy to defraud purchasers of second-hand cars by reducing the odometer readings on some 24 cars.  The defendants were convicted and, on appeal, argued that there was no authority under which a weights and measures authority could bring a prosecution for conspiracy.  Section 26 TDA (as noted above) imposes a "duty" on a local weights and measures authority to enforce the provisions of that Act within its area, but gives no power to prosecute under common law.  The local authority's "power" under s 222 LGA was, so the defendants argued, limited to matters relating to the interests of local inhabitants such as nuisance, highways and boundary disputes.  Rose LJ decided that: "So far as [s 222 LGA] is concerned, there is … no warrant for limiting in any way the words of the section which, on their face, are extremely wide."

R v Richards [1999] Crim LR 598, was another case in which the prosecution obtained a conviction for conspiracy to defraud by the clocking of cars.  The defendant's appeal in that case was on the basis that the prosecution's scheme of delegation only authorised "any legal proceedings arising out of the statutes relating to Trading Standards, Consumer Protection …" and did not, therefore, enable a prosecution for conspiracy.  In rejecting this argument, Hidden J said: "What the County Council was in fact doing was accepting a more effective means of charging the specific offences charged against the [TDA] by putting them compendiously in a conspiracy to defraud at common law, which this Court has several times pointed out is a sensible way of dealing with an intricate and complicated conspiracy."  There was a second contention in the defendant's appeal.  The defence accepted, in the light of R v Jarrett and Steward, that the local authority could prosecute for conspiracy to defraud, but argued that the prosecution had not shown that it had given proper consideration to s 222 LGA before instituting the prosecution.  Hidden J, however, decided that: "The fact that [the informant] must have been considering what was expedient for the inhabitants of the area is to be inferred … from the fact that, after laying informations on a number of specific offences contrary to the [TDA] he then … as Assistant County Trading Standards Officer for and on behalf of Norfolk County Council Trading Standards Department, laid the information alleging the conspiracy to defraud.  It is hard … to consider any way in which he could have come to that decision without specifically taking into his consideration the interests of the inhabitants of the area in not being deceived by a conspiracy to defraud by clocking the second-hand cars that were exposed for sale to the inhabitants in the area.  We consider, in any event, that the presumption [given in the maxim omnia praesumuntur rite esse actum] arises in this case."  The maxim, that all things done are presumed to have been properly done, would apply equally where the local authority was obliged to consider whether prosecuting an offence outside of its area would be in the interests of its local inhabitants.

In Middlesborough Borough Council v Safeer [2001] 4 All ER 630, the defendant was convicted in the Magistrates' Court of using a motor vehicle without insurance.  On appeal, the Crown Court accepted his argument that the prosecution had no power to bring the prosecution.  The Crown Court accepted that s 4 of the Road Traffic Offenders Act 1988 ("RTOA") contained a complete list of offences under the Road Traffic Act 1988 in respect of which a local authority could "institute" proceedings.  The local authority had relied on its general power to prosecute under s 222 LGA, but the defence argued that the power to "prosecute" did not include the power to "institute" proceedings.  The local authority appealed to the Divisional Court where Silber J said: "The use of the word 'prosecute' means that the local authority is entitled to take all steps necessary to institute and pursue a prosecution.  I do not accept that the word 'prosecute' has any more limited meaning than that and, in particular, I do not accept that it excludes the institution of proceedings. … There is no statement, expressed or implied, in s 4 of the [RTOA] which states that it sets out the only circumstances in which the local authority can prosecute.  Thus, I conclude that s 4 has no effect on any other power given to the local authority to prosecute."  By the same token, there is nothing in s 27 CPA (or s 26 TDA) which states that the local authority's power to prosecute is limited to those circumstances where it has a duty to enforce that Act and s 27 CPA has no effect on the local authority's power to prosecute given by s 222 LGA.

In Nottingham City Council v Zain (a minor) [2001] EWCA Civ 1248; (2001) The Times August 29, a County Court judge struck out an action by the local authority for an injunction to restrain the defendant from entering a housing estate in its area.  The judge held that s 222 LGA did not empower the institution of proceedings unless the local authority was under a duty to enforce the relevant enactment (which, in this case was the Misuse of Drugs Act 1971) or was otherwise under a duty to protect the relevant interests of the local inhabitants.  Although this was a civil case, it can be seen that the judge adopted the same position as the stipendiary magistrate had done in the prosecution brought by Oldham Borough Council, namely that s 222 LGA only applied where the local authority had a duty to bring proceedings.  On the local authority's appeal, it was submitted on behalf of Zain that the local authority had not identified any enactment imposing a duty on it in relation to non-statutory public nuisances and that "in the absence of any express power to take action in relation to such non-statutory public nuisances a local authority was acting beyond its powers in busying itself with such matters."  To meet that submission the local authority put forward an argument, which it had not relied upon in the County Court, that it did have a statutory duty.  It submitted that the injunction sought was to prevent Zain from interfering with the public's use and enjoyment of the highway which the local authority had a duty to assert and protect under s 130 of the Highways Act 1980.  The Court of Appeal accepted that submission by the local authority and hence it became unnecessary to determine the question of whether, in the absence of a statutory duty, the local authority was acting beyond its powers.  Schiemann LJ nonetheless proffered his view.  He said: "In my judgment it is within the proper sphere of a local authority's activities to try and put an end to all public nuisances in its area provided always that it considers that it is expedient for the promotion or protection of the interests of the inhabitants of its area to do so in a particular case. … I consider that an authority would not be acting beyond its powers if it spent time and money in trying to persuade those who were creating a nuisance to desist."  It is evident, therefore, that the Court of Appeal considered (albeit obiter) that the absence of a statutory duty did not prevent a local authority exercising its powers under s 222 LGA.  Schiemann LJ also said, by way of obiter dictum, that "it is well established that when an authority is charged by statute with enforcing a particular criminal law it may make use of s 222 [LGA] to do so."

Applying the above authorities, it follows that a local authority can rely on its powers under s 222 LGA to prosecute for offences committed outside its area notwithstanding that such prosecution is brought under legislation which does not impose a duty to do so.  The authority must of course consider that prosecuting for an offence committed against one or more inhabitants of another local authority's area will protect its own inhabitants.  The fact that one offence by the defendant has been committed in the local authority's area should be sufficient.  It shows that it is expedient to put a stop to the activities of someone who could have committed all the offences in the local authority's area and may return to commit more. It is notable that in Surrey County Council v Burton Retail Ltd (1998) 162 JP 545, although there was no argument on the point, the local authority prosecuted Burton Retail Ltd for two offences.  One of those was for an offence in Guildford, but the other was an offence in Sunderland, somewhat outside of its area.  So far as the jurisdiction of the Magistrates' Court is concerned, there is no problem so long as the offences are indictable (or either way) or, if summary, at least one of the offences was committed within the Court's commission area (s 2 Magistrates' Courts Act 1980).

[Note: With effect from 1st April 2005, a new s 1(1) MCA was substituted by s 43(1) of the Courts Act 2003 such that an information may be laid before any justice of the peace and not just before a justice of the peace for the relevant commission area.

Note: With effect from 1st April 2005, a new s 2 MCA was substituted by s 44 of the Courts Act 2003 such that a magistrates' court has jurisdiction to try any summary or either way offence.

Note: The question of prosecuting cross border offences was looked at again in more detail in the subsequent article A Local Authoritiy's Ability to Prosecute Outside its Area (2003) 167 JPN 227.]

Sample or specimen offences

So far, we have looked at the position where a defendant is prosecuted for the same or similar offence and such offences were committed in different geographical areas.  Offenders will more often commit multiple similar offences in the jurisdiction of a single prosecutor.  The defendant may have applied a false trade description to a large number of vehicles by reducing the mileage history of each of them, he might have deceived a number of customers by the same or similar false or misleading statement, he may have had in his possession for supply a large quantity of counterfeit goods.  The prosecutor may think it excessive to lay a separate information for each offence.  Crown Court judges often disapprove of indictments containing more than 15 or so counts.  In Telford & Wrekin Council v Jordan (2001) 165 JP 107, Wright J expressed the view that to have five charges in relation to a single course of conduct was "questionable" and "the charge sheet was somewhat overloaded."  In that case there was only a total of five charges which were variously framed as offering to supply a car, supplying that car and applying a false trade description to that car, by different means, contrary to either s 1(1)(a) or (b) of the TDA.  A major ingredient of each offence was that a false mileage reading had been attributed to that same car.

Section 7.1 of the Code for Crown Prosecutors, to which all prosecutors should sensibly have regard, states that Crown Prosecutors should select charges which "(a) reflect the seriousness of offending; (b) give the court adequate sentencing powers; and (c) enable the case to be presented in a clear and simple way. … Crown Prosecutors should not continue with more charges than are necessary."  Whilst a prosecution of a few offences only may give the court sufficient sentencing powers, it may not be enough to make the court aware of the scale of the defendant's offending, particularly when the offending relates to a large number of different (albeit similar) items.  In the past, the answer has been to select a few matters to charge and to inform the court that such charges were only specimen ones.  That approach was ended by the Court of Appeal in R v Kidd, R v Canavan, R v Shaw [1998] 1 WLR 604; (1997) 161 JP 709.

R v Kidd

In R v Kidd, R v Canavan, R v Shaw, ante, Bingham LCJ said: "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 is undoubtedly a convenient and economical way of proceeding.  [But,] 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. … [It is] inconsistent with principle that a defendant should be sentenced for offences neither admitted nor proved by verdict."  So, how should the prosecution now proceed?  Bingham LCJ offered a partial solution, he said: "Prosecuting authorities will wish, in the light of this decision, … to include more counts in some indictments.  We do not think this need be unduly burdensome or render the trial unmanageable."  The forgoing words provide a useful shield in warding off some of the disapproval from Crown Court judges faced with what they consider to be overcrowded indictments.  Nonetheless, they do not provide a complete answer.  An offender, found in unlawful possession of thousands of similar items, who is charged in relation to 20, or even 50, of them could appear to the court as someone who was in unlawful possession of only 20 or 50 items.  The sentencing judge might guess that a greater number of items were involved, but that is not his function and he may guess wrongly.

Effect of R v Kidd

The following cases illustrate the consequences of R v Kidd, R v Canavan, R v Shaw, ante.

In R v Gorman (97/4529/X3), the defendant was convicted, following a 31 day trial, of 19 counts involving the counterfeiting of a million CDs over 18 to 20 months.  Four of the counts were for using a forged licence to produce CDs.  Gorman was sentenced to eighteen months imprisonment.  He appealed, the main ground being that the judge had wrongly sentenced on the basis of the evidential background rather than the specific charges on which Gorman had been convicted.  The matter came before Cazalet J who said: "In the light of R v Kidd, R v Canavan, R v Shaw this Court must … approach this case on the basis that the judge, in sentencing … erred in taking into consideration offences which had not been either identified specifically on the indictment or admitted in the appropriate way. … [However] we consider the number of counts in the indictment of themselves demonstrate a repetition of specific serious offences, as expressly found by the jury … over a significant period. … Adopting the correct approach by sentencing only in respect of the specific counts in the indictment, the sentence of eighteen months' imprisonment … cannot be said to be manifestly excessive."

Although Cazalet J considered that the sentence was warranted, even without a knowledge of the scale of Gorman's activities, it is quite likely that the sentencing judge would have imposed a lighter sentence had he not been aware of the full background.  On the lesser facts, the sentencing judge may well have aimed his punishment at a level which was moderate rather than not "manifestly excessive".

In R v Reading Crown Court ex p Woods (CO/653/98), the defendant pleaded guilty before the magistrates to 16 offences against s 14 of the TDA.  Woods was committed to Crown Court for sentence where the prosecution alleged, for the first time, that the 16 matters, which had a total value of £400, were specimens in a fraud worth £50,000.  When the judge's attention was drawn to R v Kidd, R v Canavan, R v Shaw, which made it clear that the defendant could only be sentenced for offences proved or admitted, he purported to remit the case back to the Magistrates' Court.  The prosecution then sought to proceed on two additional charges of conspiracy to commit offences under the TDA.  Woods sought judicial review of the judge's decision to remit.  Sullivan J held that "there was a valid committal for sentence by the magistrates and the learned judge had no power to remit the matter to them. … Secondly, [the defendant] was entitled to be sentenced by the Crown Court on the basis that the 16 counts to which he had pleaded guilty were not specimen offences."

A more recent sentencing appeal, R v Burns [2001] 1 Cr App R (S) 63, appears to have been decided without regard to R v Kidd.  In October 1998, Trading Standards Officers seized counterfeit clothing from Burns' shop.  In September 1999 they observed him taking counterfeit stock into his shop bearing such trade marks as Adidas, Ralph Lauren and Armani.  They seized 500 items, from his two shops, having a total estimated value of £15,000.  Burns pleaded guilty to 53 counts under the Trade Marks Act 1994 ("TMA") and was sentenced to twelve months' imprisonment.  Judgment in his appeal against conviction was given by His Honour Judge Rivlin (sitting as a judge of the Court of Appeal).  He observed that Burns had "two recent convictions for offences of trademark infringement when he was fined.  It is … a seriously aggravating feature … that he committed these offences shortly after those convictions, and that he went on to commit the 1999 offences having received the clearest possible warning about his conduct by the raid conducted by the Trading Standards Officers in October 1998.  We are told that [Burns] is genuinely remorseful, but, in the light of the history of his repeated offending, that is very difficult to accept. … A custodial sentence was fully justified in this case.  Indeed it was inevitable.  We cannot say that a total sentence of 12 months' imprisonment was in any way excessive."  Judge Rivlin was aware, however, that the offences were "specimen offences" and that no offences had been taken into consideration.  The counterfeit goods, which were the subject of the 53 charges, had an estimated value of only £1,300, but Judge Rivlin knew that Burns had, in his shops for sale, 500 counterfeit garments with an estimated value of £15,000.  It is possible, therefore, that had Judge Rivlin's knowledge been restricted to that relating to the 53 counts, he might have regarded the sentence as excessive.  The net cast by R v Kidd, R v Canavan, R v Shaw appears to have more holes than it should, but prosecutors must still proceed on the basis that they will be caught by it.  Prosecutors must, therefore, find a lawful way to present the court with a complete picture of offending without having to lay a seemingly excessive number of informations.  Whether or not the prosecutor in R v Burns was aware that it was not permissible to lay specimen informations, a 53 count indictment is somewhat heavy.

Composite charges

It is not permissible to lay informations as specimen or sample ones and it is not a realistic option to lay an information for every single offence.  It is, however, important that the court is aware of the true proportion of a defendant's offending.  Not only do prosecutors want the court to know the full extent of the defendant's operation, but the defence will not want the court to assume large scale offending in those cases where it is was in fact relatively minor.  It is always open to the defence, of course, to tell the court (if it is true) that the offences charged represent the total of the defendant's offending.  Where that is not done, however, the court is now more likely to presume that the matters charged represent only the (partial) tip of the iceberg.  The obvious answer is for the prosecution to lay only a relatively few informations, but make them representative of the pattern of offending and include reference to as much of the total offending as possible.  Did someone say "duplicity"?

It is axiomatic that an information will be bad for duplicity if it alleges more than one offence.  R 12(1) of the Magistrates' Courts Rules 1981 prohibits a Magistrates' Court from hearing an information which charges more than one offence.  R 12(3) provides that if "it appears to the court at any stage in the trial ... that the information charges more than one offence, the court shall call upon the prosecutor to elect on which offence he desires the court to proceed, whereupon the offence or offences on which the prosecutor does not wish to proceed shall be struck out of the information; and the court shall then proceed to try that information afresh".  If the prosecutor, having been called upon to make such an election, fails to do so then the information must be dismissed (r 12(4)).  The prohibition is on an information charging more than one "offence"; there is no prohibition on a single information charging a single offence which embraces an "activity" even if that activity could have been charged as a series of separate offences.  An information which, for example, alleges the theft of various items from a shop may appear to be alleging more than one offence but that will not be so if the theft was all part of one activity.  In Heaton v Costello (1984) 148 JP 688, a single information alleged the theft of cider, by means of label changing, and the theft of clothing by taking.  There was, therefore, not just the theft of more than one item, but two different methods of theft.  Goff LJ said :  "The appropriate test to apply in these cases is this: can the various acts properly and fairly be described, having regard to all the circumstances of the case, as forming part of one activity".  He said that the justices, in that case, had confused "the question whether there were two acts of theft, viz. the separate theft of the cider and the theft of the trousers and cardigan, with the question whether there was one activity embracing both acts of theft."

In R v Bristol Crown Court, ex parte Willets (1985) 149 JP 416, Willets was charged in one information with having five separate obscene video tapes, for publication for gain, contrary to s 2(1) of the Obscene Publications Act 1959.  The magistrates convicted him, but on appeal the Crown Court upheld a submission that the information was bad for duplicity.  The prosecution sought judicial review.  May LJ said: "I … found myself on the dictum of Widgery LCJ in [Jemmison v Priddle [1972] 1 All ER 539] and ask: What is the activity of which it is contended that [the defendant] has been guilty?  Does the indictment charge only one activity or does it charge more than one activity?  Posing those questions, I have no hesitation in concluding that what is charged in this information is only one activity.  It is the activity of having obscene articles for publication for gain.  The mere fact that a number of issues … may arise in the course of the trial cannot and does not in my view make what is prima facie only one activity into two, three or four activities, and thus render the information bad for duplicity."

Adopting the method employed in the Willets case, it is possible to charge, as one offence, unlawful dealings in a number of contraband articles in a single information.

In the Willets case May LJ considered the possibility that a composite charge could give rise to difficulties where a defendant was found guilty by a jury since it would not be known to the judge whether they had found all, some or only one of the videos to be obscene.  The answer, he said, was that where a composite charge was dealt with by trial at crown court and there is no concession on the part of a defendant that all the articles referred to are obscene, the prosecution could split up the indictment into separate counts.  Such a course would not be necessary in the Magistrates' Court since as the magistrates are both judge and jury they will always know on what basis they have found an information to have been proved and they can sentence, and deal with such issues as forfeiture, accordingly.  Furthermore, an indictment could be restricted to include composite counts, dealing with numerous items, only where the evidence in respect of each of them is identical and hence there is no real possibility that a jury can reach a different conclusion in respect of some of them.

The effect of R v Kidd on the decision in Gateway Foodmarkets Ltd v Devon County Council, ante, is that , in a similar case heard now, the court would not be aware that there were more than eight tins of cat food, to which the shelf barker gave a misleading price indication, rather than the 260, or so, tins which were actually mispriced by it.  Applying the principles of the Willets case, the prosecution could still lay eight informations, one for each variety of cat food, but can state in each such information the number of tins of that variety to which the shelf barker gave a misleading price indication.  The defence might then want the court to be aware that there were a further such number of tins which were correctly priced.  The court will thus become aware of all 527 tins.

Charging a pattern of offending as a continuous offence

In Anderton v Cooper (1981) 145 JP 128 an information charged that on "February 13, 1979, and other days between that date and ... March 15, 1979 [the defendant] did manage a Brothel".  Lane LCJ said: "If a case is one which charges a series of separate offences in one information, it is bad for duplicity.  If, on the other hand, it is one which charges one transaction, albeit taking place over a length of time, then ... that cannot be an allegation which is bad for duplicity. … [The words in the information] charge a single continuing transaction.  It might have been better if the words 'other days' had been omitted from the information, but the mere inclusion of those words cannot ... make this charge bad for duplicity."  If a series of offences amount to one activity can they, therefore, be alleged as one offence, even if that activity takes place over several months?  The answer appears to be "Yes".

The information in Barton v DPP [2001] EWHC Admin 223, alleged that Barton had, between 1st April 1998 and 31st March 1999 stolen £1,338.  Barton had in fact taken sums of money from the till on 94 occasions, over the course of that year.  Barton contended that the information was bad for duplicity and that she should have been charged separately with each alleged theft.  She was convicted.  On appeal Kennedy LJ said: " The prosecution case was … set out in a schedule with dates and amounts indicating what was involved.  Undoubtedly, each line in the schedule could have been charged as a separate offence, but had they been so charged, on average the amount involved would have been about £15.  Even if there had been ten informations the amount would still be under £200.  It simply would not represent the overall criminality which … amounted to a sum in excess of £1,300.  Specimen counts or specimen informations are no longer a possibility, in the light of relatively recent decisions of this Court and of the Court of Appeal Criminal Division.  To have 94 separate informations would have rightly been regarded as oppressive. … Each occasion, so far as [the prosecution] was concerned, involved the same process: the abstraction of money and an attempt to cover up that abstraction.  These incidents lasted over a period of 12 months and … interspersed between … honest transactions. … The magistrate was able to, and did in fact, give credit for the amount that he was not satisfied had been taken. … There was no discernible prejudice or unfairness to [Barton] in regarding this as a continuous offence."  Here, then, is a judgment endorsing a practical solution to overcome the difficulty created by R v Kidd.

Conspiracy

As already noted, R v Jarrett and Steward and R v Richards, ante, are authority for the proposition that a prosecutor can combine a number of specific offences within a single conspiracy to defraud.  In R v Jones [1974] ICR 310, James LJ said: "The offences charged on the indictment should not only be supported by the evidence … but they should also represent the criminality disclosed by that evidence.  It is not desirable to include a charge of conspiracy which adds nothing to an effective charge of a substantive offence.  But where charges of substantive offences do not adequately represent the overall criminality, it may be appropriate and right to include a charge of conspiracy."  In suitable cases a prosecutor may, therefore, draw the courts attention to the entirety of the defendant's offending by alleging conspiracy.  Such an approach will, of course, have to be confined to cases where the elements of conspiracy are fulfilled; not least, there must be a co-accused.

Proceeds of crime

There will be some cases where, despite R v Kidd, the court will legitimately be made aware of property which has come into the possession of the defendant as proceeds of crime, but which does not form the subject of a charge or an offence taken into consideration.  By virtue of s 72AA of the Criminal Justice Act 1988, in cases where the defendant has engaged in a course of criminal conduct (the main ingredients for which are that the defendant is convicted of at least two offences from which he has benefited) the court may, in determining the extent of the defendant's benefit for the purpose of making a confiscation order, make certain assumptions.  One such assumption is that any property held by the defendant, at the date of conviction, was received by him as a result of or in connection with the commission of the triggering offences for which he has been convicted.  The statement provided to the court by the prosecutor (under s 73 of the 1988 Act) as to the value of the defendant's benefit from his criminal conduct may well, therefore, give away the fact that the defendant's gain was derived from criminal activity for which he is not being sentenced.  The Crown Court has the power to make a confiscation order in relation to virtually any offence.  The power of the Magistrates' Court is limited to the few offences identified in schedule 4 to the 1988 Act.  Included there are offences under the TMA, relating to the unauthorised use of trade marks in relation to goods, but not offences under the TDA.

Forfeiture

An application for a forfeiture order is even more likely, than an application for a confiscation order, to make the court aware of the totality of the defendant's offending.  Section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 enables the court to make a forfeiture order, against a person convicted of "an" offence, in relation to any property, lawfully seized from him, or in his possession or control at the time he was apprehended for the offence, which has been used, or was intended to be used, to commit or facilitate the commission of "any" offence.  It can be seen that if an offender is convicted in relation to only one item, which was counterfeit or stolen or otherwise unlawfully in his possession, in applying for a forfeiture order in relation to all such items, the prosecutor will inevitably make the court aware of the entire offending.  Indeed, in considering whether to make a forfeiture order, the court must have regard to the value of the property and the likely financial and other effects the making of such an order would have on the offender.

In addition to the general power in s 143, ante, other specialised legislation, such as s 97 of the TMA, enables application to be made for the forfeiture of specific categories of item in respect of which the offender has not been convicted.

It should be noted that even where the court, through an application for a confiscation or forfeiture order, becomes aware of a pattern of offending, it should nonetheless only "sentence" on the basis of the convictions and matters formally taken into consideration.  In that respect R v Kidd prevails, and the extent to which the offender suffers a loss by being deprived of peripheral property will have some mitigating impact on the severity of sentencing.

Previous conduct

One thing the defendant may think he can rely on is that (other than by reference to previous convictions, formal cautions and matters taken into consideration) he will not be sentenced on the basis of his behaviour prior to the offences for which he is being sentenced.  That is not necessarily so, despite the decision in R v Sandhu [1997] JPL 853.

In R v Sandhu, the defendant was charged with causing works to be executed for the alteration of a listed building without authorisation, contrary to s 9(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.  Before opening its case in the Crown Court, the prosecution indicated that it proposed to adduce evidence that Sandhu had been clearly warned by the local authority, and also by his own surveyor, as to what he was permitted to do but that he had ignored those warnings.  It was submitted on behalf of Sandhu that such evidence was inadmissible as it did nothing to prove the strict liability offence but simply impugned Sandhu's motives.  The judge allowed the evidence to be called.  Sandhu was convicted and appealed.  Bingham LCJ, allowing the appeal, said: "An offence of strict liability is one which involves no proof of mens rea; it is complete when the specified elements of the offence are established.  To adduce evidence which goes beyond proof of those elements is not an optional extra, it is to adduce inadmissible evidence and to adduce inadmissible evidence which is prejudicial to the interests of the accused must in our judgment be objectionable. … Where evidence is irrelevant, inadmissible and damaging to a defendant, then it is in truth mere prejudice.  Its admission will serve no purpose other than to incline a jury to think badly of that particular defendant. … Evidence should not have been admitted to prove matters not relevant to establish the charges but which were simply likely to prejudice the jury's minds against [the defendant]."  It is often the case with strict liability offences that the statute creating them also provides a defence if the accused can prove certain matters.  In the instant case, Sandhu did not seek to avail himself of the statutory defence in s 9(3) of the 1990 Act.  Even if he had have done so, the "inadmissible" evidence would probably have remained inadmissible since it did not have any relevance to the defence available.  In the case of other strict liability offences, however, such as those under the TDA, evidence that the defendant has, for example, ignored advice may well be relevant and probative and not "mere prejudice" in countering a due diligence defence.

Irrespective of whether historical evidence, as to such things as previous warnings or advice, is admissible to prove the offence, there remains the separate question of whether it is relevant to sentencing once guilt has been admitted or proved.  Bingham LCJ said: "It was … bound to sway the jury against [Sandhu] and distract attention from the principal issue if the jury were told, as they were, that [Sandhu], before causing the execution of the alterations objected to, was warned and advised of the dangers, chose to ignore that advice, chose an incompetent builder, and was generally happy to ride roughshod over the regulations.  Those are all matters relevant to sentence; some of them could have been rendered admissible by an unskilful cross-examination on behalf of [Sandhu]."

So far as sentencing is concerned, the court can and should be made aware, if it be so, that the defendant committed the offences before the court in the face of warnings or advice; even if that would suggest that he may have committed previous offences for which he has not been charged.  Such information, however, is not presented to prove a prior record of criminal activity, but simply to show that the offences were committed in the knowledge that the activity in question constituted an offence.  Even where the defendant's state of mind is not relevant to whether he has committed the offence it will remain relevant to the question of how the court should deal with him.

To sum up

A single act can simultaneously create several identical offences in the same place at the same time (Gateway Foodmarkets Ltd v Devon County Council).  Multiple prosecutions for the same or similar offences in different courts are not, per se, an abuse of process (Wings Ltd v Ellis and North Yorkshire Trading Standards Service v Coleman).  The prosecution of similar cross-border offences by a single prosecutor ought to be less objectionable to the defendant than two or more prosecutions in different areas at different times.  Such a course is accordingly not an abuse of process and, in the case of a local authority prosecutor, it is submitted, is permissible under s 222 LGA.

The combined application of the decisions in R v Bristol Crown Court, ex parte Willets and Barton v DPP enables not only numerous items, which were perhaps seized by the prosecution on a single day, to be referred to in a single composite information as one activity, but also enables dealings in such items over a period of time to be charged as one continuing offence.  This is a clear benefit to the prosecution in overcoming its inability to lay specimen informations.  It is also of benefit to the court, which can then sentence on the reality of the situation rather than on a case which has been pruned to a quite unknown extent.  It is also potentially of benefit to the defence.  If a defendant can be charged with one offence in relation to a course of conduct, then (if the prosecution chooses to proceed by way of a single information) he may face the prospect of only one maximum penalty rather than such a penalty for each of the possible offences contained within the composite.

Evidence as to the giving of prior warnings or advice (in addition to formal cautions) will also be relevant to sentencing even where inadmissible to prove the offence.

VICTOR SMITH

 

[Postscript on duplicity in charges.

Rule 12 MCR, which prohibited the inclusion of more than one offence in an information, was preserved in the original formulation of r 7.3 of the CPR 2005, but r 7.3(1) no longer provides that it is the "information" which must describe "the offence". As from 6th October 2008 the requirement has been that the "allegation" of the offence within the information must describe "the offence". It is therefore now permissible for an information to charge more than offence so long as those offences are described within separate allegations.

See the notes to Euro Foods Group v Cumbria County Council.

R 7.3(2) CPR now provides:

"More than one incident of the commission of the offence may be included in the allegation if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission."

The words "a course of conduct" in r 7.3(2) capture the common law concept of a single activity which may encompass more than one act.

See also Duplicity Under the Criminal Procedure Rules.]