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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> S, R v [2007] EWCA Crim 2247 (7 September 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/2247.html Cite as: [2007] EWCA Crim 2247 |
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CRIMINAL DIVISION
Strand London, WC2A 2LL | ||
B e f o r e :
MR JUSTICE DAVIS
MR JUSTICE UNDERHILL
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R E G I N A | ||
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"CLERK: In respect of David Shaw on count 1 of arson being reckless as to whether life was endangered, has a verdict been reached on which at least ten of you are agreed?
FOREMAN: No.
JUDGE: Put count 2.
CLERK: In respect of David Shaw on count 2 of arson, has a verdict been reached on which at least ten of you are agreed?
FOREMAN: Yes."
"CLERK: Do you find the defendant guilty or not guilty on count 2?
FOREMAN: Guilty.
CLERK: Guilty. Is that the verdict of you all or by majority?
FOREMAN: All of us."
The judge then went on to address the jury as follows:
"I shall not ask you in respect of Luke Hutchison to produce a verdict on count 2 because, as you have appreciated, it is, as it were, within count 1. I address myself to you as chairing this jury. As you know, you have had 7 hours 22 minutes of deliberation. In respect of David Shaw on count 1, is it your sense that given some refreshments now and some more time that there is any reasonable prospect of you reaching a verdict, albeit a majority verdict, on count 1 in respect of David Shaw?
FOREMAN: Yes."
The judge therefore invited the jury to retire and continue their deliberations. At 14.26 the jury returned to find the applicant guilty on count 1 by a majority of 10 to 2.
"In respect of David Shaw on count 2 there is no separate penalty. That is clearly not a separate matter. It has been subsumed into the later conviction by the jury on count 1."
The court log in relation to count 2 records the applicant's plea as not guilty, the verdict as guilty, and in the column recording the court's sentence or order the log records:
"No separate penalty. This count to be subsumed into count 1 and the defendant be regarded as having only one specified count for this offence".
"You were convicted of two offences arising out of the same incident. Count 2 is, as stated by the judge, subsumed in count 1, the more serious offence. The convictions must therefore rank as only one for any future consideration of 'specified violent offences'. No separate penalty was imposed nor could it have been. The 'double conviction' by the jury does not render either unsafe."
Mr Owen submits that the double conviction on alternative counts is in itself an irregularity that should be corrected. His practical, as distinct from his academic, concern is that the applicant's printed antecedents now show him as having been convicted of two offences of arson.
"Where a jury is allowed inappropriately to return a verdict on a count in the indictment which has only been included in the indictment as an alternative to other more serious counts, the verdict in respect of the alternative is irregular. The judge is under a duty to take from the jury, and the jury entitled to give, their verdicts upon the more serious counts. If a verdict is prematurely returned on an alternative count before the jury have given their verdict or been discharged from giving their verdict upon a more serious count, the judge should decline to accept the verdict on the alternative count. If he accepts it, it should ordinarily be quashed on appeal as occurred in Hill and Sinnott, unreported December 16th 1994."