Wright, R v

For a specimen count alleging repeated offending, the required jury direction depends on the nature of the charge, the prosecution and defence cases, and the live issues. Where the prosecution relies on separately identifiable incidents, the jury must agree that the offence was committed on the same identified occasion. Where repeated acts cannot be distinguished by date, place or other feature, a conviction may rest on the jury being sure that an occasion occurred on which the offence was committed as charged. A further unanimity direction about an unidentifiable occasion is unnecessary.

The appellant was convicted in the Crown Court at Birmingham of four counts of rape, including one count of anal rape, and two counts of robbery. He received a total sentence of 15 years’ imprisonment. His appeal against sentence was dismissed on 13 May 2003, but he later received leave to appeal against conviction.

The prosecution alleged repeated rape and other offending against several women. The relevant rape counts were specimen counts. The appellant accepted relationships with the complainants but maintained that sexual activity had been consensual. The issue was whether the judge’s direction on specimen counts wrongly failed to require the jury to agree on the same occasion of offending.

1. Appeal dismissed. The trial judge’s direction on specimen counts was correct and did not permit a conviction without the necessary jury agreement.

2. Each ingredient of an offence must be proved to the satisfaction of every juror, subject to any majority direction. Whether an additional direction requiring agreement as to an occasion or factual basis is needed depends on the charge, the prosecution case, the defence and the live issues.

3. A direction of the kind contemplated in R v Brown (1983) 79 Cr App R(S) 155 will normally be needed in two situations. First, where the prosecution advances alternative factual bases for a necessary ingredient of the offence, the jury must agree on the relevant basis. Secondly, where the prosecution relies on separate and identifiable incidents, the jury must agree on which identified occasion constituted the offence.

4. Here, the prosecution did not seek to distinguish the repeated alleged rapes by date, place or other identifying feature. The defence was that no sexual activity had occurred without consent. In relation to the indistinguishable repeated acts, the jury could properly convict if all were sure that there had been an occasion on which the appellant committed the offence charged. They could not meaningfully be required to select between separate occasions where none could be identified. The judge correctly contrasted that position with identifiable incidents, for which he expressly required agreement on the particular occasion.

• Court of Appeal (Criminal Division): Leave to appeal against conviction was granted on 24 February 2004. The appeal was dismissed in [2004] EWCA Crim 2043.
• Court of Appeal (Criminal Division): The appellant’s appeal against his 15-year sentence was dismissed on 13 May 2003.
• Crown Court at Birmingham: In May and June 2002, the appellant was convicted of four rape counts and two robbery counts and sentenced to 15 years’ imprisonment.