REGINA v Canavan & Ors

Factual and Procedural Background

This opinion addresses three appeals raising a common legal principle concerning the use of specimen or sample counts in indictments. The central factual context involves defendants convicted on counts charging criminal conduct on single occasions or within specified periods, where those counts are said to represent other similar conduct not separately charged. The appeals challenge whether courts may lawfully take such unproven or unadmitted conduct into account to increase sentences. The appellants include individuals convicted of indecent assault, intimidation, and sexual offences, with sentences imposed by various Crown Courts. The opinion also references the procedural posture of appeals against conviction and sentence, including leave granted or refused.

Legal Issues Presented

1. Whether a court may consider unadmitted or uncharged offences, said to be represented by specimen counts on an indictment, in determining the length of sentence when the defendant neither admits those offences nor asks the court to consider them.
2. Whether the practice of sentencing on the basis of specimen counts that represent a wider course of conduct is consistent with fundamental legal principles and statutory provisions, particularly the Criminal Justice Act 1991.
3. Whether the Criminal Justice Act 1991 permits sentencing for offences not charged or admitted but associated with the offences of which the defendant is convicted.
4. The proper interpretation and application of statutory provisions regarding sentencing for offences associated with the offence of conviction.

Arguments of the Parties

Appellants' Arguments

• The practice of relying on specimen or sample counts to represent multiple uncharged offences is contrary to fundamental principles of criminal law, particularly the right to trial by jury on each charged offence.
• Sentencing should be limited to offences either admitted by the defendant or proved by the jury verdict; it is impermissible to increase sentence based on unproven, unindicted conduct.
• Recent statutory provisions, including the Criminal Justice Act 1991, do not legitimize sentencing for unindicted, unadmitted offences.
• In one case, it was argued that jury unanimity was compromised due to conflicting evidence about the location of offences, potentially undermining the safety of conviction.
• It was contended that the judge's summing up improperly pressured the jury to reach verdicts, contrary to established case law.

Respondent's Arguments

• The prosecution submitted that verdicts on specimen counts necessarily imply guilt for the broader course of offending conduct, justifying the court's consideration of the wider conduct for sentencing purposes.
• It was argued that the Criminal Justice Act 1991 allows courts to take into account the seriousness of the offence combined with associated offences, including those represented by specimen counts.
• In one appeal, it was contended that the judge was entitled to consider the repeated nature of offending conduct when imposing sentence for intimidation, even if not separately charged on each occasion.
• The prosecution maintained that the jury's verdicts were safe and that the judge's directions were proper and did not unduly pressure the jury.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Clark [1996] 2 Cr App R(S) 351	Supports principle that sentencing must be based only on offences admitted or proved by verdict; specimen counts cannot justify sentencing for unproven conduct.	The court preferred this decision as correctly stating the law over conflicting authorities.
R v Bradshaw [1997] Crim LR 239	Held that sentencing can reflect the overall scale of offending where verdicts on sample counts imply guilt for wider offences.	The court respectfully disagreed with this approach as inconsistent with principle and statutory provisions.
R v Barry (30 July 1996 unreported)	Summarised arguments for and against sentencing on specimen counts.	Used to illustrate divergent views on the issue.
R v Anderson [1978] AC 964	Basic principle that a defendant may only be sentenced for offences proved or admitted.	Supported the court's rejection of sentencing for unproven offences.
R v Hutchison (1972) 56 Cr App R 307; [1972] 1 WLR 398	Sentencing on uncharged offences deprives defendant of right to trial by jury.	Confirmed this principle as fundamental and inconsistent with sentencing on unproven conduct.
R v Mills (1979) 68 Cr App R 154	Example where a single count was taken to represent multiple offences for sentencing.	The court identified problems with this approach but noted its approval in that case.
R v Watson (1988) 87 Cr App R 1; [1988] QB 690	Warning against pressuring juries to reach verdicts.	Rejected appellant's claim that judge pressured the jury in the present case.
R v Buono (1992) 95 Cr App R 338	Reiterates warnings against jury pressure.	Applied to reject claims of undue pressure on the jury.
Francis C (1993) 14 Cr App R(S) 562	Consideration of appropriate sentence length for elderly offenders with serious sexual offences.	Used to support sentence reduction for appellant with poor health.

Court's Reasoning and Analysis

The court began by framing the central legal question regarding the permissibility of sentencing based on specimen counts representing wider uncharged conduct. It recognized longstanding prosecutorial practice of using specimen counts in indictments to avoid overloading trials with numerous individual charges, particularly in cases involving repeated offences such as sexual abuse or fraud.

However, the court emphasized fundamental criminal law principles: a defendant must only be convicted of offences proved beyond reasonable doubt or admitted, and sentenced only for those offences or for offences admitted and requested to be taken into account at sentencing. It rejected the notion that a trial judge may, on the basis of a jury's verdict on specimen counts, lawfully sentence for other unproven offences without admission or jury verdict, as this infringes the defendant's right to trial by jury on each offence.

The court reviewed statutory provisions in the Criminal Justice Act 1991, particularly sections 1, 2, and 31, clarifying that "offences associated with" the offence of conviction must be offences either convicted of in the same proceedings or admitted and requested to be taken into account. Unindicted, unadmitted offences fall outside this definition and thus cannot be considered for sentencing purposes.

While acknowledging cases like R v Bradshaw where courts have taken the overall scale of offending into account under certain facts, the court disagreed with that approach as inconsistent with principle and statutory interpretation.

The court also addressed procedural and evidential issues raised by appellants, including jury unanimity and alleged jury pressure, rejecting these claims based on the record and proper jury directions.

In relation to individual appellants, the court applied these principles to assess the safety of convictions and the appropriateness of sentences absent reliance on specimen counts. It allowed some sentence reductions where sentences were excessive or unlawful but upheld convictions and other sentences.

Holding and Implications

The court held that it is impermissible to impose a sentence based on offences not admitted by the defendant or proved by the jury verdict. Specimen or sample counts in indictments may be used to represent a course of conduct, but sentencing must be confined to the offences actually charged and proved or admitted. The Criminal Justice Act 1991 does not authorize sentencing for unindicted, unadmitted offences.

The direct effect of this decision is to require prosecuting authorities to include adequate counts in indictments to cover the full extent of alleged offending to ensure proper sentencing powers. The court indicated this should not be unduly burdensome. The decision clarifies and reinforces fundamental principles of criminal law and sentencing, but does not create new precedent beyond affirming the correctness of R v Clark and rejecting contrary authorities such as R v Bradshaw.

Applications for leave to appeal were granted or refused as appropriate, with some sentence modifications made to comply with the clarified legal principles. The convictions were upheld where no safety concerns existed.