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Specimen and Multiple Incident Counts

An indictment can be drafted where a person has committed a significant number of offences, of the same or similar character, on different occasions over a sustained period of time whether days, weeks, months or years.

The Code for Crown Prosecutors requires a selection of charges which properly reflect the seriousness and extent of the offending, give the court adequate sentencing powers, and enable the case to be presented in a clear and simple way.

Options available to a prosecutor include:

• Prepare counts that cover all offences disclosed on the papers. 
• Counts for sample or specimen offences in accordance with the principles set out in R v Tovey & Smith. Where the allegations are admitted a further option exists to seek to have the balance of the offences taken into consideration.
• A multiple incident count or a general count for conspiracy if appropriate.
• Charge sample counts in accordance with the 2 stage procedure under the Domestic Violence Crime and Victims Act 2004 (DVCV) if the criteria can be met.

Counts that cover all offences disclosed on the papers

This approach covers every incident of offending clearly and succinctly. The jury's task is simplified and the trial judge, in the event of a conviction, knows exactly upon what basis to sentence the offender. It leaves the victim and defendant in no doubt as to the position.

Counts for sample/specimen offences disclosed on the papers

To avoid overloading the indictment, prosecutors may limit the counts on the indictment to include only a number which are representative of the larger number of offences that the evidence discloses the defendant has committed:

1. If a defendant is charged with a representative number of sample offences, and he denies those offences but is convicted of them, the sentencing tribunal is not entitled to sentence him on the basis that he is guilty of all offences alleged by the prosecution but not reflected in the indictment. - R v Canavan [1997] EWCA Crim 1773.
    
2. The prosecution should provide a sentencing judge with sufficient examples (and no more) to allow a sentence which properly reflects the offender's criminal behaviour. The presence of more counts than necessary would only result in concurrent sentences. Counts should be included to establish the offending period - R v Tovey and Smith [2005] EWCA Crim 530.
    
3. In R v Younas [2017] EWCA Crim 1, guilty pleas had been entered to two counts of rape. Count 1 alleged rape between 17 January 2013 and 31 October 2103. Count 2 alleged rape on 3 November 2013. There is nothing in such drafting to suggest that the two counts are specimen counts or multiple incident counts. The defendant will be sentenced for two offences. Another example would be "Count 1: Supplying a controlled drug of Class A to another, contrary to section 4(3)(a) of the Misuse of Drugs Act 1971, the particulars being that between 16 June 2014 and 16 June 2018, he supplied a quantity of cocaine to X". A guilty plea or verdict of guilt against this count would represent a finding that the offending behaviour occurred on only a single occasion. If that is how the prosecution put their case, that may be appropriate, but it does not reflect multiple incident offending.
    
4. R. v Hobson [2013] EWCA Crim 819 - 5 specimen counts and two specific counts of indecent assault. In their evidence on two of the specimen counts, the complainants spoke with some particularity about individual occasions, describing incidents in their bedroom, in the garden shed and on a patio. Where the complainant gave evidence identifying specific occasions an obvious solution was for the prosecution to apply to amend the indictment and add the particular incident or incidents as separate counts on the indictment.

A general offence count covering the extent of the offending

CrimPR 10.2  provides that more than one incident of the commission of an 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.

This is supplemented by CrimPD 10A.11-14 . For some offences, particularly sexual offences, the penalty for the offence may have changed during the period over which the alleged incidents took place. In such a case, additional "multiple incidents" counts should be used so that each count only alleges incidents to which the same maximum penalty applies.

Circumstances, which are not exhaustive, where such a count can be considered, are:

• The victim on each occasion is the same, or there was no identifiable individual victim as, for example, in a case of unlawful importation of controlled drugs or of money laundering.
• The alleged incidents involve a marked degree of repetition in the methods employed or in the location or both.
• The alleged incident took place over a clearly defined period, typically (but not necessarily) no more than about a year
• 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.
• If the complainant can give specific dates of some incidents but not of others then individual counts should be drafted to reflect the incidents known in detail and a multiple incidents count drafted to reflect the remaining incidents which cannot be specified in detail.
• In cases such as theft or money laundering there will often be documented evidence of each individual taking/transfer but the sheer number of them will make it desirable that they are covered in one multiple incidents count. 

Case law:

• A multiple incidents count would not be properly drafted unless it specifies a minimum number of occasions on which the offending was alleged to have happened - R v A [2015] EWCA Crim 177.
• 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 for the jury to consider if they were unsure the offending had occurred on multiple occasions, is preferable as it allows an appropriate sentence to be imposed - R v A [2015] EWCA Crim 177.
• In sexual offences care should be taken to ensure that each incident which makes up a multiple incidents count attracts the same maximum penalty - see R v Forbes (Stephen John) [2016] EWCA Crim 1388 at [30] – [33].
• The court set out the practice to be adopted for the drafting of indictments for offences relating to indecent images of children in R v Thompson [2004] EWCA Crim 669

Domestic Violence Crime and Victims Act 2004 sample counts

Where justice cannot be done without charging a large number of separate offences and the allegations against the defendant appear to fall into distinct groups by reference to the identity of the victim, by reference to the dates of the offences, or by some other distinction in the nature of the offending conduct alleged, sections 17 to 21 of the Domestic Violence, Crime and Victims Act (DVCVA) 2004 can apply.

A sample count is to be regarded as a sample of other counts where the defendant in respect of each count is the same, the evidence in respect of each count is admissible at the trial of the sample count, and the judge considers that the sample count is a sample of the other counts.

The court may order that the trial of certain counts will be by jury in the usual way and, if the jury convicts, that other associated counts will be tried by judge alone. Before making such an order the judge must be satisfied that

• The number of counts in the indictment is such that a trial by jury involving all of the counts would be impracticable.
• Each count or group of counts which would be tried by a jury if the order were made can be regarded as a sample of counts which could, accordingly, be tried without a jury.
• It is in the interest of justice for the order to be made.

It is essential to make clear from the outset the association asserted by the prosecutor between those counts to be tried by a jury and those counts which it is proposed should be tried by judge alone, if the jury convict on the former. A special form of indictment is prescribed for this purpose.

The effect of an order under section 17 DVCVA is that where the jury, following a trial, find the defendant guilty of a count which is a sample of other counts to be tried in those proceedings, those other counts may be tried without a jury in those proceedings – s.19 DVCVA.   

An important limitation to the operation of the provision is that a prosecutor who wishes to apply for a 2 stage trial must apply under CrimPR 3.29  for a preparatory hearing.

Such a hearing may only be ordered in serious and complex fraud cases under the Criminal Justice Act 1987 if it appears to the judge that it is a case of such seriousness or complexity that substantial benefits are likely to accrue from a preparatory hearing. Such a hearing may be also be ordered in any other types of case, under Criminal Procedure and Investigations Act (CPIA) 1996, if it meets the same threshold by reason of complexity, seriousness or likely length.

Examples will include sexual abuse targeted at specific victims over a number of months or years and repeated thefts or frauds from the same or a range of employers using the same method over a similar period.

Offences not indicted taken into consideration

The practice of taking into consideration [TIC] offences that have not been the subject of any charge has no statutory authority. It is an accepted convention that where the court, when passing sentence upon an offender for an offence,

• Is informed that there are outstanding allegations (which may or may not be the subject of a charge) against the defendant and 
• The defendant admits each of them and asks for them to be taken into consideration.

The court may formally take them into consideration and pass a longer sentence than would be the case if the court were only dealing with the counts on the indictment or the schedule of charges - R v Batchelor 1952 36 C.A.R. 64.

A defendant may plead guilty to a small number of specimen charges after admitting to a very much larger number of offences in interview. Unless those number of offences are formally itemised on a schedule and admitted in court, or form a specific basis of plea which is explicit as to the defendant's acknowledgement of the true extent of his offending, the sentencing tribunal cannot take them into account when sentencing - R v Canavan [1997] EWCA Crim 1773. See also R v Graeme John Pardue [2003] EWCA Crim 1562.

The prosecutor must ensure an appropriate balance between counts charged and offences to be taken into consideration when drafting the indictment. A useful approach is to consider whether there will be sufficient sentencing powers to reflect the seriousness of the offending behaviour on the indictment if the defendant at the door of the court withdrew consent to having offences taken into consideration.

The defendant must be asked personally (not through his representative) by the court whether he has received the list and, if so, whether he admits each of the offences and, if so, whether he wishes them to be taken into consideration.

Content

The counts in an indictment must be only those supported by the evidence, in accordance with the requirements of the Code for Crown Prosecutors.  Sufficient counts must be included in the indictment to reflect the full criminality alleged and thereby enable the sentencing judge, in the event of conviction, to impose a sentence that properly reflects that criminality. It will never be appropriate to include more counts than are necessary in order to encourage a defendant to plead guilty to a few. Equally it will never be appropriate to include a more serious count in the indictment in the hope that this will encourage the defendant to plead guilty to a less serious count.