Friday Law Report: Problems posed by sample counts

25 June 1999

Regina v Evans

Court of Appeal, Criminal Division (Lord Justice Mantell, Mr Justice Blofeld and Judge Fabyan Evans) 27 May 1999

THE COURT considered the problems encountered when sentencing a defendant who had been charged in an indictment containing sample counts.

The Court of Appeal allowed the appeal of Cheryl Eleanor Evans against concurrent sentences of three years' imprisonment passed in respect of each count in an indictment containing 24 counts, charging offences of furnishing false information and procuring the execution of securities by deception. She had pleaded guilty to four counts, and had been convicted on the remaining 20 counts.

The defendant had been engaged in a housing benefit fraud which was said to have netted at least pounds 25,000. The Crown had proceeded on an indictment containing sample counts which in total alleged a sum of no more than pounds 2,807.81. In passing sentence the judge referred to the fact that the fraud had involved at least pounds 25,000. The defendant appealed against sentence on the ground that the judge had erred in sentencing her for crimes of which she had not been convicted and which she had not admitted.

Nicholas Lobbenberg (Registrar of Criminal Appeals) for the defendant.

Lord Justice Mantell said that the question of sentencing on an indictment containing sample counts had been the subject of review by the Court of Appeal on a number of occasions in recent years. It was at the centre of the consolidated appeals in R v Canavan; R v Kidd and another [1998] 1 Cr App R (S) 243, in which the court had held that where a defendant was charged in sample counts the court might not take account, so as to increase the sentence it imposed, of other criminal conduct of the same kind on other occasions, which was not the subject of any count in the indictment, and which the defendant had not admitted and had not asked to be taken into consideration.

In the present case their Lordships had some sympathy with the trial judge when he came to pass sentence. The prosecution had presented their case against the defendant in 24 counts. Their Lordships had been told that, had every cheque which had been procured been included in the indictment as a separate offence, there would have been 200 counts or more. No judge would have embarked upon a trial with a jury in those circumstances with any degree of enthusiasm and without firmly insisting that the number of counts be substantially reduced.

Likewise, it might well be considered unacceptable to proceed on a number of separate indictments. Furthermore, it would be unrealistic to expect any defendant who had contested a case of the nature of the present case, upon being convicted, to ask for offences to be taken into consideration which he had hitherto denied. The consequences of that might well be that a defendant who had pleaded guilty and confes-sed to the full extent of his fraud might be treated more harshly than a defendant who had contested the matter but had only been convicted in respect of so-called specimen counts.

No doubt that anomaly would be exploited by those who otherwise had no answer to a multitude of charges, a tactic of which the present case was an acute illustration. It might also be that some would attempt to apply the logic of Canavan to other situations, perhaps in connection with Newton hearings, or other occasions when hitherto the judge had been able to form his own view of the facts.

It was not, however, within the province of the court and certainly not on the present occasion to suggest any solution. It might be that it was something which could be overcome by the ingenuity of those who framed indictments. For the time being, however, their Lordships simply remarked that the position was unsatisfactory.

In view of the earlier decision referred to above, it seemed clear that the trial judge, faced with the indictment in the present case, had not been entitled to pass sentence on the basis that the loss had been pounds 25,000. The sentence would, accordingly, be quashed, and a sentence of two years' imprisonment concurrent on each count would be substituted.