Multiple Incident Allegations
When a count in an indictment alleges multiple incidents of offending and results in a conviction, how does the sentencing court know which incidents the jury found proved? Victor Smith considers the Court of Appeal's guidance in R v A. First published in the Criminal Law & Justice Weekly (2015) 179 JPN 336.
The rule against duplicity
The original enactment of the Criminal Procedure Rules ("CPR") in 2005, continued the prohibition, formerly contained in r.12(1) of the Magistrates' Courts Rules 1981, on an information charging more than one offence. A similar rule in r.4(2) of the Indictment Rules 1971 restricted each count in an indictment to one offence. That changed when the Criminal Procedure (Amendment) Rules 2007 created a new r.14.2(2) CPR providing that: "More than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission." A new r.7.3(2) CPR, inserted by the Criminal Procedure (Amendment) Rules 2008, made it clear in a virtual replica of r.14.2(2) CPR that more than one incident could also be contained in "the allegation" of an offence in an information or charge. This was not an entirely novel concept as the House of Lords in DPP v. Merriman [1973] AC 584, 136 JP 659, had already adopted the guidance of Widgery LCJ, in Jemmison v. Priddle [1972] 1 QB 489, (1972) 136 JP 230, that a single charge could be brought "in respect of what might be called one activity even though that activity may involve more than one act". New or not, there is now express statutory authority for the legitimacy of "multiple incident" counts in an indictment as well as for "multiple incident" allegations in a charge or information.
The Criminal Practice Direction
Paragraph 14A.10 of the Criminal Practice Direction ("CPD") [2013] EWCA Crim 1631, under the heading "Multiple offending: count charging more than one incident", states: "Rule 14.2(2) [CPR] allows a single count to allege more than one incident of the commission of an offence in certain circumstances. Each incident must be of the same offence. The circumstances in which such a count may be appropriate include, but are not limited to, the following:
(a) the victim on each occasion was the same, or there was no identifiable individual victim as, for example, in a case of the unlawful importation of controlled drugs or of money laundering;
(b) the alleged incidents involved a marked degree of repetition in the method employed or in their location, or both;
(c) the alleged incidents took place over a clearly defined period, typically (but not necessarily) no more than about a year;
(d) in any event, the defence is such as to apply to every alleged incident without differentiation.
Where what is in issue differs between different incidents, a single "multiple incidents" count will not be appropriate, though it may be appropriate to use two or more such counts according to the circumstances and to the issues raised by the defence."
Paragraph 14A.13 CPD cautions that: "The choice of count will depend on the particular circumstances of the case and should be determined bearing in mind the implications for sentencing set out in R. v. Canavan; R. v. Kidd; R. v. Shaw [1998] 1 W.L.R. 604, (1997) 161 JP 709." In that case, the Court of Appeal had to consider whether a court, when sentencing a defendant for a single offence, could take account of other criminal conduct of a similar kind committed on other occasions, but which the defendant had not admitted and asked to be taken into consideration. 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. ... Prosecuting authorities will wish, in the light of this decision, ... to include more counts in some indictments." The new statutory ability to charge multiple incident allegations ought to mean that, in cases of repetitive or plural offending, it is possible to have a limited number of allegations and yet still enable the court to sentence on the full range of criminality. But, as illustrated by the recent case of R. v. A [2015] EWCA Crim 177, care needs to be taken when drafting a multiple incident allegation to ensure that, although not duplicitous, it clearly sets out the parameters of the offending such that a court in due course is able to sentence only on what has been proved or admitted.
R. v. A
In R. v. A, ante, A was convicted of two multiple incident counts. They respectively alleged the rape and sexual assault by A of his wife on occasions over a stated period. In his summing up to the jury, the trial judge said that, in order to convict A on the multiple incident counts they would have to be sure that he had carried out the alleged activity on at least two occasions. However, when sentencing A to 16 years imprisonment for the rape (and 8 years concurrent for the sexual assault), the judge did so on the basis that the abuse was "serious and repeated" effectively finding that there had been a campaign of rape. On A's appeal against sentence, the Court of Appeal held that the judge had breached the requirement that the defendant should not be sentenced for crimes of which he had not been convicted. As the jury may have convicted A on the limited basis that he had committed just two offences of rape and two offences of sexual assault, he should have been sentenced on that basis. A's overall sentence was reduced to 12 years imprisonment.
Drafting the allegation
The predicament faced by the sentencing judge in R. v. A, ante, of not knowing the extent of the jury's findings, could have been avoided had more care been taken over the drafting of the allegations. Fulford LJ said that "when the prosecution fails to specify a sufficient minimum number of occasions within the multiple incident count or counts, they are not making proper use of [the] procedure". If there was an allegation of sustained abuse it was unhelpful to draft a count which potentially alleged no more than two incidents. He suggested that the problem might have been avoided on the facts of R. v. A, if there had been a multiple incident count alleging, for example, "on not less than five occasions" with an alternative of one or more specimen counts relating to single incidents. He did not think it was normally necessary to have a large mix of course of conduct counts and single incident counts but opined that there should be sufficient "to enable the judge to reflect the seriousness of the offending by reference to the central factors in the case: e.g. the number of victims, the nature of the offending and the length of time over which it extended". A balance needed to be struck between giving the court adequate sentencing powers and overburdening the indictment.
Multiple Incident Allegations in the Magistrates' Court – 4 out of 10 cats
In Nash v. Birmingham Crown Court [2005] EWHC 338 (Admin), (2005) 169 JP 157, Nash was convicted in the Magistrates' Court of causing unnecessary suffering to 75 domestic cats. She was given a conditional discharge with a condition that she could not look after more than two cats at any one time. She appealed to the Crown Court which upheld her conviction. She then appealed, by way of case stated. One of the questions for the opinion of the High Court was: "Did the reference to '75 domestic cats' in the information preclude … finding the information proved when we were satisfied on the evidence that the presence of ammonia at the premises as a result of large amounts of cat's urine caused distress and unnecessary suffering to the cats suffering from respiratory disease?" The Crown Court had found that only 30 of the 75 cats were suffering from respiratory disease and hence that there was unnecessary suffering to just 40% of the cats specified in the information. Stanley Burnton J said: "I unhesitatingly reject the submission that it is incumbent on, or necessary for, the [prosecution] to apply for a separate summons for each animal alleged to have been caused unnecessary suffering. Identified conduct causing such suffering to a number of animals may be the subject of a single charge and a single summons. ... Clearly a charge … that the conduct of the appellant led to the accumulation of large amounts of ammonia which caused unnecessary suffering to 75 cats, would be proved, even if the suffering in question on the evidence was found to be limited to a smaller number."
This again shows that, even before r.7.3(2) CPR, it was permissible for there to be a multiple incident charge in relation to a single course of activity. More significantly, it shows that the offence can be made out even when less than half of the incidents are proved. Indeed, as the statute (in that case the then Protection of Animals Act 1911) made it an offence for unnecessary suffering to be caused to a single animal, the actual number of animals specified was not an element of the offence and was not a material averment which had to be proved. But, what of the requirement that the court should only sentence for the offending proved or admitted?
The appeals in Nash, ante, were against conviction, not sentence, and whether it was in respect of 30 cats or 75 cats the sentence of a conditional discharge would doubtless have been the same, reflecting as it did that there was no deliberate cruelty. However, the really significant point is that Nash was tried firstly by a District Judge and then, on her first appeal, by a Crown Court Judge and two lay Magistrates; there was no jury. However many incidents of offending make up a multiple incident charge or information, the bench trying it will make its own findings of fact before determining sentence. Magistrates are able to sentence on what they themselves actually find to have been proven and do not have the uncertainty of pondering the extent of the criminality as found by a jury. If there is a guilty plea to a multiple incident charge or information, there will be no finding of guilt, but the basis of plea will indicate the extent of the defendant's admission and there may be an agreed amendment to the charge, before pleas are entered, to define what is admitted. The only occasion where there might be doubt as to how many incidents, in a multiple incident charge or information, were found proved could be where the magistrates, having convicted for an either way offence, determine that the offence was so serious that its powers of punishment were insufficient and hence remit the case to the Crown Court for sentence. Whereas s.174 Criminal Justice Act 2003 requires the court to give reasons for and to explain the effect of sentence, there is no express duty to give reasons for a committal to Crown Court. Arguably, in such circumstances, the right to a fair trial imposed by article 6 of the European Convention on Human Rights, would require that the court give its reasons for such a committal including its finding on how many of the alleged incidents it had found proved. Curiously, however, although r.42.10 CPR requires certain specified documents, such as a note of the evidence and statements introduced in evidence, to be transmitted to the Crown Court when a case is committed to it for sentence, there is no requirement for the magistrate's reasons or findings of fact to be included. Potentially, therefore, the Crown Court could be in the same position as if the conviction had been by a jury.
Clarity of allegation
Even if there is less of a need for multiple incident informations and charges to be as clear as to the number of incidents involved as for counts in an indictment, there are other compelling reasons why the clarity advocated by R. v. A is desirable. Rule 7.3(1)(b) CPR requires that an allegation of an offence in an information or charge must contain "such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant." If a multiple incident charge does not give at least a good approximation of the number of incidents of offending being alleged, it cannot be clear to either the defendant or the court what case has to be met. Furthermore, if convicted, the defendant could be saddled with a criminal record which suggests far more incidents of offending than were actually proved. A menu of alternative allegations, whether in the Crown Court or Magistrates' Court, as suggested in R. v. A, ante, may initially give an illusion of greater complication, but will in reality provide more clarity, fairness and ultimately justice.
[NB: As from CPR 2015, r 14 CPR became r 10 CPR - r 14.2(2) became r 10.2(2). Note also that as from 5th October 2015 the Criminal Procedure Rules are to be referred to, when in abbreviated form, as the CrimPR.]