Alternative Charges: Help or Hindrance?
A look at the potential pitfall for the prosecution in alleging a lesser offence as an alternative to a more serious one. First published in the Criminal Law & Justice Weekly (2012) 176 JPN 329.
Alternative charges within the same legislation
There can be considerable advantage to the prosecution in laying alternative informations for offending arising out of the same facts where it is unclear which offence is the correct or more appropriate to charge. Such situations commonly arise where a statute provides similar yet distinct offences.
In Ross Hillman Ltd v Bond [1974] 2 All ER 287, the defendant company was found guilty of "causing" a vehicle to be overloaded, contrary to s 40(5)(b) Road Traffic Act 1972 (now s 41A Road Traffic Act 1988), notwithstanding that there was no evidence that it had any knowledge that its driver had overloaded the vehicle. It was held that the statutory provision provided three distinct offences of "using", "causing" or "permitting" a vehicle to be used on a road in breach of the regulations which outlawed overloading. The offences of "causing" and "permitting" both required proof of mens rea which had not been proved in this case. Had the prosecution alleged "using", the company would probably have been guilty as vicariously liable for the acts of its employee. May J said: "Prosecutors must use the correct offence in law with which to charge defendants; if they are genuinely in doubt they can always lay informations in the alternative."
Alternative charges from different legislation
Sometimes the prosecution will lay alternative informations, alleging offences derived from quite different legislation, because it is not known which elements of the respective offences will be challenged. Hence, a Trading Standards authority may allege both a regulatory offence, requiring proof that the defendant is a trader but not that he is dishonest, and an offence of fraud which is not dependent upon the defendant being a trader but does require proof of dishonesty.
In R (London Borough of Newham) v Stratford Magistrates' Court [2004] EWHC 2506 (Admin), the prosecution laid fourteen informations against a defendant, but the Clerk to the Justices, refused to issue summonses in relation to five of them. Three of the refused charges alleged that the defendant had dishonestly obtained money by deception, contrary to s 15(1) of the Theft Act 1968, by selling cars with reduced odometer readings. The three corresponding charges, which were allowed, alleged the application of false trade descriptions to the cars, contrary to s 1(1)(a) of the Trade Descriptions Act 1968 ("TDA"). Upon the prosecution's application for judicial review, Davis J said that magistrates ought generally to issue summonses pursuant to informations, on the face of it properly laid, unless there were compelling reasons, such as abuse of the process or impropriety, not to do so. Such reasons were not evident in this case. He noted that the reason for not issuing the summonses was the view that there was duplicity between the charges alleging a false trade description and those alleging deception; "it being noted that the only difference was that dishonesty played a part." Davis J, however, said that that did not constitute duplicity: "There is a clear distinction between the charges of obtaining property by deception and the charges by reference to s 1 [TDA]. ... There is a clear rationale for [the prosecution] including these two groups of charges intended to be pursued in the alternative, depending upon how the facts actually turned out at trial. After all, amongst other things [the prosecution] could not know what stance the defendant ... might adopt. If he came up with potentially cogent evidence that he had not been acting in the course of trade or business, but if there had indeed been dishonest deception involved, it would have been positively necessary for [the prosecution] to have included the charges under s 15 of the Theft Act 1968 if true and full justice was to be achieved. [Furthermore] ... there may be cases where [the prosecution] may think that to restrict the offences charged to those under the [TDA] might not give rise to the appropriate sentence in total, having regard to the limits on the court's jurisdiction for offences of this kind under the [TDA]."
Procedure for dealing with alternative charges
In R (CPS) v Blaydon Youth Court [2004] EWHC 2296 (Admin), the defendant was charged with alternative offences both alleging that he caused harassment, alarm and distress with intent, contrary to s 4A of the Public Order Act 1986. One of the informations, however, alleged the offence in the racially aggravated form provided by s 31(1) of the Crime and Disorder Act 1988. The justices considered the informations to be duplicitous and required the prosecution to "nail your flag to the mast" and proceed on one only. Upon the prosecution's application for judicial review of that decision the justices abandoned their contention of duplicity, but the defendant contended that the power to try two or more informations together in the magistrates' court could not be exercised where the charges are brought in the alternative. To allow that, it was argued, could result in the defendant being convicted on both charges since s 9(2) of the Magistrates Court Act 1980 ("MCA") provides that "the court after hearing the evidence from the parties shall convict the accused or dismiss the information". Keene LJ said: "Director of Public Prosecutions v Gane [1991] Crim LR 711, ... held that the justices, when dealing with alternative offences, could adjourn the lesser charge sine die or, alternatively, convict but impose a nominal sentence. ... S 10 [MCA] enables the court to adjourn 'at any time' and to do so sine die. Alternatively, the defendant could be given an absolute discharge which would not count as a conviction, although I emphasize that this would be unwise until the time for an appeal against the more serious conviction has expired and magistrates should bear that in mind. Moreover the possibility of a defendant pleading guilty to a lesser alternative offence specifically charged and then subsequently being convicted of the more serious alternative can always arise. ... Thus in R v Cole (1965) 2 QB 388, the Court of Criminal Appeal held that in such circumstances the proper course is to allow the charge to which the defendant pleaded guilty to remain on the file and not to proceed to sentence him. ... I therefore do not accept that there is any objection in principle to, or any inherent and inevitable injustice in, the magistrates' court hearing alternative charges contained in separate informations."
Pitfalls
Whereas the ability to lay alternative informations can be invaluable in ensuring that a defendant does not escape justice because, although guilty, their conduct does not meet the particular criteria of the offence charged, the recent decision in R v Stone and Moore [2012] EWCA Crim 186, shows that the prosecution must proceed with great care. An ill-informed decision not to proceed with a more serious charge, of which the defendant is clearly guilty, will tie the court's hands in sentencing solely on the basis of the elements of the lesser charge.
In Stone and Moore, ante, Stone was the sole director of a company, "Reo", and Moore was its sales manager responsible for training the sales staff. Reo's staff, made cold telephone calls to elderly people on the pretext of seeing if they were eligible for a free mobility assessment. They would then arrange to visit the person in the guise of a "mobility adviser". Once in the elderly person's home, Reo's salesman would seek to persuade them to purchase mobility aids upon which the salesman would receive commission. They would lie as to the suitability of the products, pretend to arrange special deals and falsely represent that the products could be sold at a reduced price if an order was placed immediately. They would commonly outstay their welcome such that the elderly people became exhausted and agreed to a sale just to get rid of them. Stone and Moore, and their two co-accused, were charged with conspiracy to defraud. Stone and Moore were also charged that they had engaged in various unfair commercial practices contrary to reg 12 Consumer Protection from Unfair Trading Regulations 2008 ("CPUTR") and that they had engaged in aggressive commercial practices contrary to reg 11 CPUTR. It was significant that the CPUTR offences were not alleged directly against Stone and Moore, but against Reo (presumably under reg 15 CPUTR), it being said that Stone and Moore were guilty as the offences were attributable to their neglect. All four defendants pleaded not guilty to the conspiracy charge. The prosecution did not proceed with that charge against the two co-accused because they faced other proceedings elsewhere and they did not proceed with it against Stone and Moore because Stone pleaded guilty to 14 counts under the CPUTR and Moore pleaded guilty to 10 such counts. Stone was sentenced by the Recorder to a total of three years' imprisonment. Moore was sentenced to a total of four years' imprisonment. Moore's sentence was more severe because he had composed the "script" followed by Reo's sales staff. They both appealed against sentence. The judgment of the Court of Appeal, the constitution of which included Judge LCJ, was given by Openshaw J who observed that the offences under the CPUTR did not import any suggestion of dishonesty. He said: "It is plain to us that this was a thoroughly disreputable business. It may have been that there was very strong evidence which might have justified proceeding against all four defendants upon the original charge of conspiracy to defraud. ... But that was not done. The prosecution laid lesser charges to regulatory offences charging only a neglect of duty and accepted pleas to those offences." It was noted that the basis of plea by Stone was that he had been negligent of his duties as a director. In response, the Recorder had said "it is an affront to justice and common sense to sentence either of these defendants on the basis that they did not know perfectly well what was going on. If there was negligence, it was the product of voluntary blindness." He said it was "derisory" for Stone to suggest he was a mere figurehead and "risible" for Moore to suggest he did not know he was doing anything wrong. He considered that the sentencing guidelines closest to the offending, although not a direct comparison, were for confidence frauds and that he bore those in mind. Openshaw J, however, made plain the basis on which the defendants should have been sentenced. He said: "We have already observed that the appellants were perhaps fortunate that the prosecution chose not to pursue the charge of conspiracy to defraud. If the appellants had been convicted of such an offence, then maybe the total sentences passed would have been justified. But the offences to which they pleaded guilty and the basis upon which they fell to be sentenced are offences of neglect of duty only. Dishonesty is not a component of the regulatory offences. We think that the Recorder was wrong to sentence them upon the basis that dishonesty was alleged in the charge, let alone that it had been admitted. Furthermore, in our judgment, the Recorder was also plainly wrong to seek guidance from the Sentencing Council's Guidelines on Fraud, which is also predicated upon dishonesty. The appellants can be sentenced only for what is alleged against them in the particulars of the offence." For the correctly ascribed offending, of persistent and serious neglect of duty as company officers, the Court of Appeal considered that substantial immediate custodial sentences were warranted, but Stone's sentence was reduced to a total of two years' imprisonment and Moore's was reduced to 30 months' imprisonment.
There appears to have been good evidence upon which the prosecution could have proceeded with the count of conspiracy to defraud (or, had it been charged, with fraudulent trading contrary to s 993 of the Companies Act 2006) thereby establishing dishonesty and justifying the original more severe sentence. If the prosecution had assumed that the Crown Court was free to sentence for the CPUTR offending on the full facts including the aggravating feature of mens rea, one can see why they would have been content with those guilty pleas. However, it is now clear that, in sentencing, the court must disregard dishonesty where it is not an element of the offence it is dealing with.
The future
It will remain tempting, and indeed good practice, for enforcement authorities to lay informations against defendants for mainstream criminal offences such as fraud with the "safety net" of an alternative regulatory offence should the dishonesty elements of the mainstream offence not be proved. However, prosecutors should ask themselves from the outset what they would do if the defendant were to plead guilty to the lesser offence. If the answer is that they would not proceed with the mainstream offence, they should then ask themselves whether such an outcome would be too lenient and not in the public interest given the strength of the evidence available to prove dishonesty. Where there is a strong evidence to prove fraud, including the dishonesty element (which will often be the case where there is evidence to both prove a CPUTR offence and see off a due diligence defence), it may be appropriate for prosecutors to target the serious criminality from the outset in order to ensure the "true and full justice" of which Davis J spoke in R (London Borough of Newham) v Stratford Magistrates' Court, ante.
Consideration should also be given to the prospect that the defendant does not plead guilty to either offence and hence that what may well be the cumbersome elements of regulatory offences, as well as the elements of the more serious offence have to be thoroughly understood by perhaps lay magistrates or a jury.
In R v N, D & L [2010] EWCA Crim 941, the defendants subjected a 14 year old virgin to a "sexual ordeal" at N's home. D was convicted of 3 counts of rape, and N and L of aiding and abetting that rape. After considerable time spent on discussion with counsel, the judge directed a "puzzled" jury on the interrelationship between the facts relating to the sexual offences and the further count of false imprisonment alleged against N. N was convicted of false imprisonment and appealed against that conviction only. Judge LCJ said: "[The] count of false imprisonment was makeweight. It was quite unnecessary. ... The question for the jury was: what had happened to the girl when she underwent her dreadful ordeal and who was involved in it? If the count for false imprisonment had not been included in the indictment, none of the argument by counsel at trial, none of the careful preparation by the judge of the appropriate directions to give in the context of a trial which proceeded on two counts against N, nor for that matter the time the jury spent in considering it would have been necessary. Much unnecessary work was required because of the inclusion of that count, and for what it is worth, none of the resources of this court would have been deployed in relation to something which had little point. ... [We] cite this case as an example of the care with which indictments should be drafted." Judge LCJ also noted that "careful attention" should be given "to the criminality which has resulted in the case coming to trial, as well as the evidence to support the allegation." There should, he said, be an "avoidance of duplication and the risk of unnecessary complications both for the jury and for the judge, and the ultimate wasting of scarce and valuable resources." Although the charge of unlawful imprisonment in R v N, D & L, was an additional rather than an alternative one, the strictures of Judge LCJ appear to apply equally to the latter situation.
See also the article The Causation Shift: Fraud, Unfair Trading and Europe.
And see:
R v Dunn [2021] EWCA Crim 439 – S 1(1) CLA.
1) autrefois only applicable where two offences the same as a matter of law.
2) Elrington principle only applicable where major charge preferred after minor charge, not where both charges preferred from outset.
3) alternative charges. - distinction between "mutually exclusive alternatives" or "true alternatives" and "forensic alternatives". - distinction in charges between a belief and a mere suspicion not de minimis.
4) potential injustice caused by conviction for both forensic alternatives avoided by appropriate sentencing.
Related case digests
- R v Stone and Moore [2012] EWCA Crim 186 – CPUTR (FA – CA).
- sentencing – when more serious alternative offence not pursued. - D can only be sentenced for what is alleged in the particulars of offence. - where D is convicted of offence not involving dishonesty he should not be sentenced by analogy with fraud.