Tovey & Anor v R

There are, before this court, two appeals. The first is made by Peter John Smith. His case has been referred to this Court by the Criminal Cases Review Commission (“CCRC”). He was convicted on 4 January 2002 after a trial on three counts of a four-count indictment. The counts for which he was convicted were counts of indecent assault, contrary to s.14 (1) of the Sexual Offences Act 1956 on the victim, a child called CD, on different dates when she was respectively aged under eight, under nine and under eleven years of age. He was acquitted of a fourth count, which alleged indecency with the same child, contrary to s.1(1) of the Indecency with Children Act 1960. He was sentenced to three years’ imprisonment on count 1, five years’ imprisonment on count 2 and three years’ imprisonment on count 4. All the sentences were concurrent. When sentencing, the trial judge, His Honour Judge Cottle, said:

“Count 2 is the count that sets the tariff, it is the sample count of repeated indecent assaults over a substantial period of years. On that count the sentence will be five years.”

There was an application for leave to appeal against the sentence on the ground that the length of the sentence was manifestly excessive. This was refused by the single judge on 17 June 2002 and not renewed.

The reference is made by the CCRC because it is contended that, as a matter of law, HHJ Cottle was not entitled when sentencing Smith to treat count 2 as a “sample count of repeated indecent assaults”.

The second appeal is made by David Tovey. He pleaded guilty to 9 counts (counts 1 to 9) charging offences of possessing and making explosive substances, contrary to ss.1 and 5 of the Explosive Substances Act 1883 (counts 1 to 3) and unlawful possession of prohibited, disguised and altered weapons and ammunition contrary to s.1 and s.5 of the Fire Arms Act 1968 (counts 4 to 9). He was also convicted, after a trial on 3 October 2002, of two further counts (counts 10 and 11) of racially aggravated criminal damage to property contrary to s.30 of the Crime and Disorder Act 1998.

Counts 1 to 3, charged under s.4 of the 1883 Act, were said by the prosecution to be sample counts to reflect the substantial body of explosive substances that were found at Tovey’s home as specified in appendix A to the prosecution’s note on sentence. In addition, the prosecution presented counts 4 to 9 as sample counts, reflecting the substantial quantities of firearms and ammunition specified found in his home as specified in appendix B to the same note. In relation to those counts, it was apparently accepted by Tovey that counts 1 to 9 were sample counts of the wider offending described in appendices A and B, and no issue is raised on the appeal as to the judge’s right to sentence on that basis.

Counts 10 and 11 were counts alleging racially aggravated criminal damage, on two specific occasions. The prosecution’s case was that there had been a total of 17 separate, but strikingly similar, incidents of criminal damage involving racist graffiti in public lavatories in the Witney area of Oxfordshire between 6 August 2001 and 9 January 2002. Each occurrence was racially motivated and part of a campaign intended to engender hatred by white against black-skinned people. During the trial before Her Honour Judge Mowat, evidence of all the instances of damage was called as part of the prosecution case, and the prosecution presented counts 10 and 11 as sample counts. The appellant denied being responsible for any criminal damage and made no admission of any such offences after he was convicted by the jury. However, no objection was taken to evidence of occasions not covered by the two counts being given at the trial. In respect of counts 1 to 9, Tovey was sentenced to different periods of imprisonment to run concurrently, which totalled 8 years’ imprisonment. In respect of counts 10 and 11, he was sentenced to three years’ imprisonment to run concurrently with each other, but consecutively to the sentence on counts 1 to 9.

In her sentencing remarks in respect of counts 10 and 11, the trial judge said:

“The trial proceeded on the uncontested basis that the evidence of all 17 incidents was relevant and admissible. There really was, in my view in this case, a striking similarity between all the offences – that phrase much used by lawyers was utterly apt in this particular case.

I am well aware of the authority that says a man may be sentenced only for crimes he has admitted or crimes of which he has been convicted, but in my view to sentence on that basis in this particular case for just two out of 17 incidents would be such an affrontto common sense that I am not prepared to do it, and I sentence on the last two counts on the basis that they are two specimens of the 17.”

The appellant’s application for leave to appeal came before this Court on 23 September 2004 presided over by Lord Justice Hooper. He said, when giving leave to appeal, that he would not have been “minded to grant leave to appeal but for one point made by Mr Fenner on behalf of David Tovey.” He then referred to the sentencing remarks of the trial judge and added that it is submitted that the judge was wrong to take that approach, particularly in the light of, R v Canavan [1998] 1 Cr App R 70 and R v Clark [996] 2 Cr App R (S) 351. Hooper LJ added that “it appears to us on this renewed application, it was common ground that the same person was responsible for all the graffiti found in the different premises. Nonetheless it seems to us arguable that the judge was not entitled to take the other 15 (offences) into account”.

In these circumstances, Hooper LJ thought that the appeals of Smith and Tovey would provide useful vehicles to enable this Court to look again at the proper method of sentencing where sample offences are charged and it is alleged that there has been multiple offending by the defendant, this being a subject which has caused very considerable practical problems for the prosecution and trial judges when sentencing. The problem has received the attention of the Law Commission and is the subject of a report by the Commission entitled “Effective Prosecution of Multiple Offending” (presented to Parliament in October 2002 - Law Commission No. 277, CM 5609).

In their report, the Commission considered the relevant authorities, including the cases of Clark and Canavan to which we have made reference. The report of the Commission has an executive summary. Paragraphs 2 to 4 of the summary state:

“2.

The problems which we have sought to address here arise in cases where the offending conduct of the defendant is repeated many times – too many individual offences to be accommodated in a single trial. Formerly, such offending was dealt with by way of an indictment charging offences which were regarded as specimens of a wider range of offending. This pragmatic arrangement was thrown into disarray by the decision of the Court of Appeal in [Canavan]. In that case, Lord Bingham LCJ held that it offended a fundamental principle of sentencing for the defendant to be sentenced not only for the four specific offences of which he has been convicted after a trial, but also for other offences of which the four were specimens; offences of which the defendant had been neither convicted, nor to which he had pleaded guilty nor agreed to have taken into consideration.

3.

The logic and correctness in principle of that decision cannot be faulted and we do not seek to do so. The decision does, however, pose an intractable dilemma for prosecutors and the Courts in cases such as multiple thefts and multiple frauds. In essence, it counter-poses the inability of a Court to deal with an indictment with hundreds of separate counts with the inability to sentence for the totality of offending in the absence of a decision on each instance of offending. The problem is an important one, because the consequence of the impracticability of prosecuting the full extent of the dishonest offending in such cases is that the vast majority of such offending will not be prosecuted and the offenders will escape the appropriate sanction. We have been told that the practice of Fraud Squads faced with this problem is to charge merely a handful of offences, making no attempt to reflect the full criminality in any given case. Clearly, this is not a desirable solution. From the judiciary, we have heard that the present law is found to be “pedantic and unworkable” and the senior judges, whom we have consulted, recognise that “very real and inherent difficulties” exist.

4.

Under the present system (where there is a limit to the number of separate counts, each containing a single offence that can be managed within a jury trial) it is not possible to give full respect to each of the following two fundamental principles. To some degree, one is bound to yield to the other. The principles are:

i)

The defendant should only be sentenced for that which they have admitted, or which has been proved following a trial in which both sides can be examined on the evidence.

ii)

It should be possible to sentence for the totality of an individual’s offending, the defendant should not escape just punishment because the procedure cannot accommodate this.”

The Commission went on to identify principles relating to sentencing which need to be acknowledged. Those principles are:

After the completion of their research and investigations, which included looking at the situation in other common law and Commonwealth jurisdictions, the Commission stated that they had been unable to find any single solution to this complex problem. However, they made three separate recommendations, which they regarded as addressing the three constraints that they had identified. The recommendations were:

“(1)

We recommend the extension of the ambit of the offences of Fraudulent Trading in section 458 of the Companies Act 1985, to the non-corporate fraudulent trader. This would allow an individual to be prosecuted in a single count for the activity of fraudulent trading, although that activity may be made up of a number of otherwise discrete offences.

(2)

Where a defendant has been indicted in the Crown Court on a count citing conduct which under existing law may be regarded as a “continuous offence”, we recommend the use of special verdicts as a means of better informing judges, for the purpose of sentencing, of the extent of offending of which the jury is sure.

(3)

Where there are allegations of repetitious offending which are not apt to be described as a continuous offence but which, prior to Kidd, could have been dealt with by means of specimen counts we recommend a two stage trial procedure. The first stage of the trial will take place before judge and jury in the normal way, on an indictment containing specimen counts. In the event of conviction on one or more counts, the second stage of the trial may follow, in which the defendant would be tried by judge alone. The judge will, at that stage, determine question of guilt in respect of any scheduled offences linked, at a pre-trial hearing, to a specimen count of which the defendant has been convicted.”

We were greatly assisted by the argument in this case. This is particularly true of the argument advanced by Mr Ellison on behalf of the Crown. As part of his submissions, he had prepared for the Court a substantial skeleton argument which analysed all the relevant cases. The analysis covered those cases which had supported what could be described as the previous practice of relying on a specimen count to cover a number of offences. He also referred to the cases post-Canavan which revealed the problems arising out of that decision (which were greater than that Court had anticipated) and the attempts which had been made to overcome those difficulties on the facts of particular cases.

Having studied that analysis, we do not feel that it is necessary for the purposes of this judgment to repeat Mr Ellison’s recital of the authorities since we are satisfied that the judgment of the then Lord Chief Justice, Lord Bingham of Cornhill, is, as a matter of principle, correct and should be applied.

The approach, therefore, is that identified by Lord Bingham in Canavan at p. 245 - 246:

“[The defendant] 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: see Anderson [1978] A.C. 964. If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit.

It is said that the trial judge, in the light of the jury’s verdict, can form his own judgment of the evidence he has heard on the extent of the offending conduct beyond the instances specified in individual courts. But this, as it was put in Huchison (1972) 56 Cr.App.R. 307 at 309; [1972] W.L.R. 398 at 400 is to “deprive the appellant of his right to trial by jury in respect of the other alleged offences”. Unless such other offences are admitted, such deprivation cannot in our view be consistent with principle.”

This approach is not to be qualified based on reasonable inferences which the judge can draw from the evidence which he has heard. This Court in Canavan clearly appreciated that their decision would mean that prosecuting authorities would need to include more counts in their indictments, so that there would still be proof of sufficient criminality to enable the Court to pass an appropriate sentence, even without treating the counts as samples. They indicated that they did not “think this need be unduly burdensome or render the trial unmanageable”.

The Court in Canavan were dealing with the sections concerning sentencing contained in the Criminal Justice Act 1991. At the time, that Tovey and Smith were tried (2002), the applicable statutory provisions on sentencing were those contained in the Powers of Criminal Courts (Sentencing) Act 2000 ss.79 (2), 80(2) and 161(1). The most recent provisions are ss.153 and 154 of the Criminal Justice Act 2003 which will replace ss.79 and 80 of the 2000 Act. The difference in the language contained in the provisions does not affect those issues before us.

In R v Cheryl Evans [2000] 1 Cr App R (S) 144, this Court drew attention to the fact that, in that case, there would need to be 200 or more counts to reflect the full extent of the financial gain that the offender had obtained. The Court indicated that if an indictment were to be drafted containing that number of counts, it would be likely to prove unmanageable if tried by a jury. Moreover, they also indicated that it would now be unrealistic to expect a defendant to ask for other offences to be taken into consideration because to acknowledge the full extent of the fraud would be likely to result in heavier sentence. The Court justifiably regarded this situation as unsatisfactory.

This recommendation to improve the situation need not detain us. At this stage, it is a recommendation which appears to us to be sensible, but has not yet been implemented by the legislature providing the appropriate legislation.

We were referred to Barton v DPP [2001] EWHC Admin 223. In that case, the defendant appealed by way of case stated against the Stipendiary Magistrates’ decision that an information alleging theft of £1,338.23 over a period of years did not offend against the rule that an information should only allege a single offence. The evidence in support of the charge indicated that there had been 94 takings from the cash register covered by debit entries. The Divisional Court (Kennedy LJ and Astill J) reviewed the authorities on “continuous offences”. Despite the fact that the individual appropriations were each capable of being separately identified, the Divisional Court concluded that it was permissible to charge the whole course of conduct as a continuous offence because the defendant had no specific explanation for individual takings and put forward the same defence for all takings. The Magistrate accordingly was in a position to disregard any amount that he was unsure that the defendant had taken. As Kennedy LJ said:

“Here the prosecution’s case was, we understand, set out in a schedule with dates and amounts indicating what was involved. Undoubtedly, each line in the schedule could have been charged as a separate offence, but had they been so charged, on average the amount involved would have been about £15. Even if there had been 10 informations, the amount would still be under £200. It simply would not represent the overall criminality, which, as we have already indicated, amounted to a sum in excess of £1300. Specimen counts or specimen informations are no longer a possibility, in the light of the relatively recent decisions of this Court and of the Court of Appeal, Criminal Division. To have 94 separate informations would have rightly been regarded as oppressive.”

In Attorney General’s Reference No. 82 of 2002 [2003] 2 Cr App R (S) 115, this Court, presided over by the Vice-President, Rose LJ, who had been a member of the Court in Canavan, indicated that, provided that the admitted basis on which an offender pleads guilty embraces the wider course of conduct, then it was proper for a sentencing judge to proceed to pass sentence on that basis (paragraphs 24-30).

We have no difficulty with this approach of the Vice-President. If there is a clear acceptance by the offender that the Court can take into account the wider course of conduct, then that is the equivalent of an informal invitation to the Court to take into consideration other offences. There is no requirement to be excessively technical as long as there is a clear admission or finding of guilt. This is consistent with principle.

There are clear distinctions between trial by jury and trial by the judge who will also be responsible for sentencing. However, we do not consider that, as a matter of principle, this should make a difference. In Barton, it is clear from the judgment of Kennedy LJ that they were invited to consider numerous authorities. However, it appears to have been agreed by the lawyer for the appellant and the Director of Public Prosecution in that case that, while in principle it is normal to charge each alleged criminal act as a separate offence, there are occasions when this need not be done.

As to this there are two lines of authority. The first, dealing with a general deficiency and the second, with a “continuous offence”. So far as Magistrate’s Courts were concerned, it certainly appears that a more relaxed approach was adopted than in the Crown Court. In Jemmison v Priddle [1972] 56 Cr App R 229, Lord Widgery CJ indicated that “it is legitimate to charge on a single information one activity even though the activity may involve more than one act”. That observation was approved by two members of the House of Lords in DPP v Merriman [1973] AC 584. One of the judges who did so was Lord Diplock, who Kennedy LJ pointed out in Barton had said at p. 607:

“The rule against duplicity… had always been applied in a practical, rather than a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice as early as the eighteenth century to charge them in a single count of indictment. ”

Kennedy LJ also referred to a statement of Lord Roskill in Hodgetts v Chiltern District Council [1983] 2 AC 120 where he said at p.128a:

“It is not an essential characteristic of a criminal offence that any prohibited act or omission, in order to constitute a single offence, should take place once and for all on a single day. It may take place, whether continuously or intermittently, over a period of time.”

Kennedy LJ also prayed in aid the comments of Professor John Smith as to the case of DPP v McCabe [1993] 157 JP 443. Of that case, Professor John Smith said:

“If a thief walks around a house putting a series of articles into his swag bag, it is clear that he commits a separate theft with each appropriation. He could be charged with theft of any one of the articles appropriated. But it makes sense and involves no unfairness to the offender if he is charged with a single theft of all the articles taken on that occasion. It is regarded as a single ‘activity’ and it is legitimate to charge one activity in a single information even though it may involve more than one act.”

Finally, Kennedy LJ drew support from a judgment of May LJ in Cullen v Jardine [1995] Crim LR 668, where 90 trees were felled without a licence over a period of three days. May LJ said:

“It was entirely possible for magistrates to decide which trees were cut down illegally and which were not, and to impose penalties by reference to those findings. The mere fact that a number of issues may arise in the course of the trial does not turn one activity into two or more activities and thus render the information bad for duplicity… the question of duplicity is one of fact and degree…”

As we have seen, Kennedy LJ pointed out that to have 94 separate informations in his case would have been oppressive, and to even have had 10 informations would have been to establish only a sum under £200, whereas the level of overall criminality amounted to a sum in excess of £1,300 in that case.

It was a case where the defendant had no specific explanation to offer, which required the takings to be treated separately. The incidents were each set out in a schedule with dates and amounts indicating what was involved, the magistrate was able to, and did in fact, give credit for the amount that he was not satisfied had been taken, and it was the view of the Court that there was “no discernable prejudice and unfairness to the appellant in regarding this as a continuous offence”.

We are persuaded by the reasoning of Kennedy LJ that, in relation to trials in the Magistrates’ Court, the approach in Barton is perfectly acceptable. The approach should, however, as the Law Commission indicated, not be stretched further to cases where the evidence for the prosecution and the defence raises different issues in relation to different counts. As to the Crown Court, in the appropriate circumstances, the same approach could appropriately be applied. This would be subject to no unfairness being caused to the defendant. It is ensuring fairness to the defendant that is at the heart of the Canavan approach

However, unless resort was had to special verdicts, depending on the facts of a particular case, it would not be known if the jury were only satisfied that some and not other offences had been committed. Bearing in mind the complications that can arise from special verdicts, the approach in Barton can only safely be used if the case of both the prosecution and the defence was the same in respect of all the acts said to be part of the same activity.

The third recommendation contained in the Law Commission report has been implemented by ss.17-21 of the Domestic Violence, Crimes and Victims Act 2004. When that Act is brought into force, it should alleviate the situation. However, the Act’s beneficial effects should not be overestimated. There are strict conditions for its use and it does deprive the defendant of his right to have a jury trial. In addition, it involves two trials, one by a jury and the other by a judge. Unless the normal approach to framing an indictment is abandoned, it could require a massive indictment, which would waste Court time if all the identical offences have to be put separately to the defendant and a verdict taken on each count. We suspect the threat of reliance by the prosecution on the provisions of the new Act will usually result in the defendant holding up his hand and pleading guilty to the additional counts.

In the course of argument, we did discuss other possible ways of alleviating the problems that undoubtedly arise. However, we have reluctantly come to the conclusion, that, subject to what we say hereafter, there is no substantive proposal that we can usefully make. We are, therefore, forced to reiterate the advice, which has been given frequently by this Court in the past. That is that in the majority of situations, the problem will be most satisfactorily alleviated by the appropriate framing of an indictment. In preparing the indictment, the prosecution should always have in mind in a situation of multiple offending, the need to provide the sentencing judge, assuming that the defendant pleads or is found guilty, with sufficient examples (and no more) of the offending to enable the judge to impose a sentence which properly reflects the offender’s criminal behaviour. For this purpose, in the case of multiple offending, there will usually be no need to have counts reflecting every offence. Indeed, the presence of more counts than necessary will only result in concurrent sentences.

It is also important to draft the counts that are included in the indictment so as to establish the period during which the offending occurred. The fact that the offences on which there are convictions occurred regularly over a significant period, will be very telling as to the criminality involved, even if the offences are separated by many months. It is true that, especially with offences involving money, the total sum obtained can be an important factor in sentencing. However, the scale of offending normally can be demonstrated by having counts that indicate the pattern of offending. The period over which offences have occurred can be as significant as the total sum involved.

The decision of the Divisional Court in Barton demonstrates the importance of not falling into the error of allowing technicalities, as to the framing indictments to obstruct the administration of justice. The purpose of an indictment is to enable the defendant to know the crimes on which he will be tried. The principles identified in Canavan were not concerned with technicalities but with the basic requirement that a person should only be sentenced for an offence, which has either been proved, or which he has admitted.

There are different reasons why an indictment should not be over-burdened with counts. Sometimes it will make the task of the jury too complex. Sometimes it will make the scale of the case unmanageable. There are, however, situations where the traditional way of framing an indictment means that the inclusion of the number of counts which is necessary to achieve a just sentence becomes administratively cumbersome. The defendant may be required to plead to too many offences. The jury may be required to bring in verdicts in respect of too many counts. The indictment can be difficult physically to handle. The evidence, however, in support of a great many offences may be limited, and if there was a way of overcoming the administrative difficulties, justice could be served without prejudicing the defendant in any way. In this connection, we are grateful to Helen Chaytor, Senior Lawyer in the Office of this Court who drew the attention of the Court to the terms of Rule 5(2) of the Indictment Rules 1971 which provides:

“(2)

an indictment for a specific offence shall not be open to objection in respect of its form if it is framed in accordance with a form of indictment for that offence for the time being approved by the Lord Chief Justice.”

It is possible that Rule 5(2) could be used so as to mitigate the practical problems that we have identified that can arise when there is a multiplicity of offences which occurred regularly over a period of time.

The majority of the requirements as to the framing of an indictment are contained in the Indictment Rules and accordingly are subject to rule 5(2). However, s.3 of the Indictments Act 1915 contains statutory requirements which override the rules. S.3 provides:

“(i)

Every indictment shall contain and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.

(ii)

Notwithstanding any rule of law or practice, an indictment shall, subject to the provisions of this Act, not be open to objection in respect of its form or contents if it is framed in accordance with the rules under this Act.”

Any steps that have been taken would need to comply with s.3.

We now turn to the specific facts of the two appeals. We have already given an indication of the circumstances of both appeals but it is now necessary to set the circumstances out in more detail.

On 4 January 2002 at the Crown Court in Exeter (His Honour Judge Cottle) Smith, who contested his guilt, was convicted of three offences of indecent assault (Counts 1, 2 and 4.) He was acquitted of count3, an offence of indecency with a child. In each count the victim was a child called CD.

The victim was the daughter of Smith’s next door neighbour. So close was the friendship between the families that the child called Smith ‘Uncle Pete’: he was regarded as an honorary grandfather.

The prosecution alleged that between the child’s sixth and eleventh birthdays, when they were alone together, either at his house or in her home, Smith indecently assaulted CD on many occasions. He did so by putting his hand on her vagina under her clothing. He would then lick his fingers. There was no attempt at penetration. He did not physically harm her, nor did he threaten her. He did tell her “It was their secret” and she should tell no one.

The offences came to light on 8 June 2001, when the child’s mother found the appellant and her daughter in a compromising position. The appellant denied any sort of indecency. He pleaded ‘not guilty’ and gave evidence at trial.

Count 1 alleged an indecent assault on a day between 18 September 1996 and 18 September 1998, when CD was under the age of nine. Count 2 was in exactly the same terms. Count 4 alleged an indecent assault on 8 June 2001, when CD was under the age of 11. The child’s sixth birthday was on 18September 1996.

The prosecution case was that the first count represented the first act of indecency, and that the fourth count represented the last. Count 2 was said to represent the many occasions spoken of by the child that occurred between those two events.

On any basis, this indictment was unsatisfactory given that, as the Judge said in sentencing, it was meant to reflect a series of indecent assaults between the child’s sixth birthday and 8 June 2001, when she was ten and three-quarters. 18 September 1998 was in fact her eighth birthday.

What the learned judge said when he passed sentence was this:

“the picture that is painted by the evidence in this case and by those verdicts is that, from when C was about six or seven years of age until she was ten and three-quarters, you systematically and frequently abused her in just the way that she described on that video; it did not vary. Certainly there are worse cases of sexual abuse than this one in the sense that there was no actual penetration of her; but what you did was a terrible breach of trust that was placed in you to care for this girl. She was a little girl who looked upon you as a grandparent, and in doing what you did to her you destroyed something that was very precious to her. The details of a case like this are beyond the comprehension of most ordinary, decent people; and you must now pay for what you did.

I take into account in assessing the length of the sentence that you must inevitably serve, your age, the fact that you are of previous good character; your health is not good, and you are a family man, and your family will miss you greatly; and you are a former prison officer who is about to enter the prison system in a very different role.”

We have no doubt that this is an accurate summary of the evidence. This was the picture that the indictment should have reflected. He then dealt with the effect of the sentence he was about to pass before saying:

“Count 2 is the count that sets the tariff in this case; it is the sample count of repeated indecent assaults over a substantial period of years. On that count the sentence will be five years. On counts 1 and 4 the sentences will be three years, all the counts running concurrently – all the sentences running concurrently.”

In passing sentences in those terms the learned judge was being entirely consistent with the evidence. However, it is clear that in so doing, he was acting inconsistently with the indictment as drafted and with the principle set out in Clark and Canavan. He was put in that position by what we feel constrained to describe as the inadequacy of the indictment. It would have been a simple task to draft an indictment, which reflected more accurately the full scope of this appellant’s culpability. We accept it would not be practical to have a count to represent every occasion of offending.

We suggest that it would be preferable if there had been 3 counts for each year over the period of the offending.

If the learned judge had had his attention drawn to Canavan he would have been bound to sentence on the basis of the three incidents of indecent assault and those three incidents only. This would not have represented his offending behaviour and is an illustration of the importance that must be attached to the framing of an indictment.

Whilst a sentence of five years’ imprisonment might have been justified for this conduct given the extensive period over which it took place, the gross breach of trust it represented, and the absence of a plea of guilty, such a sentence cannot be upheld if it represents (as we have found it must) three isolated incidents. One has only to look at some of the specific cases denoted in the Attorney General’s References 37, 38, 44, 54, 51, 53, 35, 40, 43, 45, 41, and 42 of 2003 [2003] EWCA Crim 2973 to see that the learned judge’s sentencing on counts 1 and 4 were sentences appropriate for this level of indecent assault. In our judgment, had he treated Count 2 as an individual offence, he would have passed a concurrent sentence of three years.

It follows that the sentence of 5 years on count 2 must be quashed and a sentence of three years substituted, all sentences to be concurrent.

David Tovey is 37 years old. As we stated at the outset of this judgment on 3 October 2002, he was convicted by a jury after a trial in the Oxford Crown Court, on two counts of racially aggravated criminal damage (counts 10 and 11). He had pleaded guilty to 9 counts relating to the possession of weapons, ammunition and explosives (counts 1-9). On 22 November 2002, he was sentenced by HHJ Mowat to a total of 11 years’ imprisonment, comprising 8years’ imprisonment for the matters concerning weapons, ammunitions and explosives and 3years’ imprisonment, consecutive, in respect of the racially aggravated criminal damage. The sentence of eight years represented a sentence of eight years for the three counts concerning explosives, together with various lesser sentences relating to weapons and explosive, all these sentences being concurrent. Various other ancillary orders were also made.

Leave to appeal against sentence was initially refused by the single judge but was later granted by the full court on 23 September 2004. Although the appellant had faced and been convicted on two counts only of racially aggravated criminal damage, the judge had sentenced on the basis that the two counts were, in reality, “specimen counts”, comprising simply two incidents out of a total of 17 similar offences. As to the other 15 “offences”, no charges had been included in the indictment and the appellant had made no admission in that regard. Counsel for the appellant contended that the judge’s approach was wrong, in the light of the authorities to which reference has already been made in this judgment. Essentially, the full court took the view that, given the difficulties to which specimen counts gave rise, the case afforded an opportunity to revisit those authorities and hence gave leave.

Between 6 August 2001 and 9 January 2002, graffiti was found in toilets in Witney on 15 occasions, Charlbury once and Stratford-upon-Avon once. The graffiti appeared to be racist. It included wording offensive to whites such as “all whites are shit”. In all instances, the words were written in black with what appeared to be a marker pen; the words “BLACK POWA” appeared regularly; occasionally, the attack on the World Trade Centre on 11 September 2001 was “celebrated”.

A man fitting the appellant’s description was seen leaving some of the toilets in question and, in one of the toilets, a compact disc was found which the appellant had borrowed from Witney Library.

On 14 February 2002, as a result of police inquiries into the graffiti campaign and the eventual identification of the appellant, police went to the appellant’s home in Carterton to arrest him, on what became counts 10 and 11. Thereafter, an extensive search was made of the premises and an arsenal of explosives, weapons and ammunition were found, ultimately giving rise to counts 1-9. Books and videos were found on the subjects of firearms, explosives, poisons and “booby-traps”, together with military style clothing such as camouflage jackets and trousers. Also found was material indicating that the appellant was a racist. He had kept the registration numbers of cars which in the main belonged to blacks or Asians and, in some cases, their home addresses. When interviewed, his sister and those who knew him at the Witney Gun Club, said that they had heard the appellant make racist remarks and were aware that he had strong views that blacks and Asians should not be allowed into the country and those here should be “sent home”.

As to the course of the trial, counts 1-3 and 4-9 were presented by the prosecution as sample counts to reflect the substantial quantity of explosive substances, firearms and weapons found, as specified by the prosecution in two appendices attached to an Opening Note for Sentence. In this regard, it has been accepted by the appellant that counts 1-9 were samples of the wider offending specified in those appendices. Accordingly, no point arises on this appeal in connection with the use of counts 1-9 as sample counts.

As to counts 10-11, the prosecution case was that there had been a total of 17 separate but strikingly similar incidents of criminal damage involving racist graffiti in public lavatories, in the Witney area, over the relevant period of time. They amounted to a racially motivated campaign intended to engender hatred by white against black people. Evidence of all these incidents was called as part of the prosecution case and the specific allegations in counts 10 and 11 were presented by the prosecution as sample counts. At the time, trial counsel raised no objection to this course. For his part, the appellant denied being responsible for any of the criminal damage and made no admission in relation to the other 15 incidents after he was convicted by the jury. The issue was one of the identity of the person responsible which would be the same for all 17 incidents.

By the time the sentencing stage had been reached, trial counsel for the appellant had reminded himself of the authorities (discussed above) disapproving of or circumscribing the use of specimen counts. Counsel’s position was now that a defendant could not lawfully be punished for offences for which he had not been indicted, and which he had denied or declined to admit. Given the course that the trial had followed, the judge was placed in an unenviable position.

When sentencing, the judge began with a careful review of the dramatically divergent cases on counts 1-9. In a nutshell, the prosecution contended that with the light shed on these counts by the appellant’s conviction on counts 10 and 11, given the right catalyst, he could well have formed the intention to use the arsenal. The defence, by contrast, argued that he was simply an eccentric, albeit one with an illegal fascination; the evidence belied any intention to use the weaponry.

In the event, the judge concluded that the appellant was secretive and with an unusual capacity to deceive. He had made a “cold and calculated” attempt to lie his way out of counts 10 and 11. He was also a racist; the fact that the appellant had a Chinese wife, a Jamaican girlfriend and various other relationships, did not disprove this; instead they provided evidence of “an attitude of arrogant superiority” on his part. The judge said:

“I am fortified in this conclusion by the fact that it was, on his own evidence, in company with his white girlfriend of nine years’ standing, that he was driving around the countryside noting or getting her to note, the car numbers of a significant number of people who as it turned out were black or brown or dark looking. That someone could be responsible for or party to noting descriptions on such jottings like ‘nigs’, ‘niggers’, ‘Pakis’, ‘Paki bastard’, ‘black bastard’, signifies to me certainly emotions of gut racism or at the very least somebody taking pleasure in a private or shared episode of racist abuse.”

It was also significant that the appellant had applied to join the British National Party.

As to the graffiti, the judge concluded that they were meant to look as if they had been written by someone black or non-white, in sympathy with the terrorists who had perpetrated the World Trade Centre atrocity. The motive must have been to stir up fear, resentment and hatred in the white community; the aim was to create racial tension in the hope of exciting hostility against black or non-white people.

The appellant was not mentally ill but had an obsession with perceived grievances. The “graffiti campaign” (emphasis added) suggested that the appellant was beginning to act out his fantasy life of a “lone commando”. Against this background, the judge concluded that though it would be quite wrong to say that the appellant was dreaming of, or preparing for, a one-man race war, the right catalyst might well provoke him into acting out his fantasy by way of an act of actual violence against property or persons.

The judge reminded herself that the appellant had not actually used his arsenal, or indeed completed any explosive device; the charges were of simple possession only. She also reminded herself of the appellant’s guilty plea to counts 1-9, but this counted for little, not least given the discovery of the items in his house. Her sentence on these counts was designed to reflect public anxiety about “guns, bombs and racially inflammatory words or deeds, whether the former be interconnected with the latter or not”.

Turning to counts 10-11, these were minimal in terms of financial loss or damage but “serious in their potential inflammatory effect”. The judge then made the remark already set out in paragraph 7 above.

Mr Fenner, who did not appear at the trial, advanced, in summary, the following submissions. First, the sentence of 8 years’ imprisonment, in respect of the explosives, weapons and ammunition, was manifestly excessive in light of the fact that the arsenal was never used, the appellant’s plea and the fact that he was hitherto of good character. Secondly, it was wrong in principle for the judge to treat counts 10 and 11 as specimen counts. Thirdly, on the basis that counts 10 and 11 were no more than two individual counts of racially aggravated criminal damage, the sentence of 3 years’ imprisonment, consecutive, was manifestly excessive; contrast, for example, O’Brien [2003] EWCA Crim 302, where, in a case concerning actual damage to property, a sentence of 14 months was reduced on appeal to one of 6 months.

Counts 1-9: Notwithstanding Mr Fenner’s succinct submissions, in our judgment, no proper criticism is to be made of the judge’s sentence on these counts, essentially for the reasons she gave, which we have already summarised. The judge was entitled to conclude that the appellant was not simply a harmless eccentric. Possession of an arsenal including high-grade explosives and a Sten sub-machine gun amply warranted the sentence passed. On no view was it manifestly excessive.

Counts 10-11: here, we have great sympathy for the predicament in which the judge was placed by the course which the trial had followed. We also understand her observation as to common sense being affronted. However, for the reasons already given, her treatment of counts 10 and 11 as specimen or sample counts representing 17 offences, is unsustainable having regard to the terms of the indictment.

It does not, however, follow that the sentence for these counts must be reduced. True it is that they are to be approached as two individual counts. But, even as such, it is appropriate to have regard to the context. First, we have already highlighted the evidence of the appellant’s racism, including in particular the somewhat sinister car journey and the noting of the registration numbers of vehicles belonging to apparently non-white people. Secondly, the context includes the possession of the arsenal forming the subject of counts 1-9. Thirdly, taking counts 10 and 11 alone (not as specimens) but in the context we have already set out, it is permissible to infer that the appellant’s motive was to excite inter-communal tension and hostility. Accordingly, these counts have a wider impact than the (admittedly more serious physical) damage done in cases such as O’Brien. Against this background, it follows that it would be artificial and wrong to view counts 10 and 11 as nothing other than two trivial incidents of graffiti daubing; even putting the other 15 incidents out of our minds, counts 10 and 11 form part of a wider picture of an altogether more grave and disturbing nature.

In all these circumstances, though for reasons which differ from those given by the judge, we conclude that, the sentence of 3 years’ imprisonment concurrent for counts 10 and 11, but consecutive to the sentence passed in respect of counts 1-9, is justified and not manifestly excessive.

The appeal in the case of Tovey must be dismissed.