K, G & M, R. v

A jury must be unanimous on every ingredient of an offence. A Brown direction is required only where there is a realistic risk that jurors may aggregate different factual findings and thereby fail to agree on an essential ingredient.

For conspiracy to defraud, the criminal conduct is a sufficiently certain dishonest agreement to defraud. The precise representations intended or made are not ordinarily ingredients of that offence. Particulars in an indictment which merely give reasonable information about the prosecution case, or identify overt acts from which an agreement may be inferred, do not require separate unanimity. Different consequences follow where the indictment itself defines the alleged agreement through specific stages or detailed terms: those terms must be proved.

The appellants were convicted at Southwark Crown Court, after a lengthy trial, of conspiracy to defraud investors in a company by falsely representing its position and prospects. G received two years’ imprisonment and M a community punishment order. K had not been sentenced.

The appeal principally challenged the judge’s direction that the jury need not unanimously agree on at least one of the twelve representations particularised in the indictment. The central issue was whether those particulars defined essential terms of the alleged conspiracy, or merely described the prosecution case and the matters from which the dishonest agreement could be inferred.

1. Appeal dismissed. The convictions were safe. The trial judge did not misdirect the jury by declining to require unanimity on one or more of the individual representations in the particulars.

2. The court reaffirmed the principle in Brown (1984) 79 Cr App R 115 that the jury must agree on every ingredient of an offence. A direction requiring agreement on a particular alternative matter is nevertheless exceptional. It is needed where there is a realistic danger that jurors may combine different factual routes to guilt without agreeing on the ingredient that establishes the offence.

3. Conspiracy to defraud is constituted by a sufficiently certain agreement dishonestly to deprive another of property or prejudice a proprietary right. The agreement itself is the criminal conduct. On the facts, an agreement to induce potential shareholders to part with money by dishonest representations about the company’s state of affairs was sufficiently certain. It was unnecessary to prove agreement on the precise representations to be made.

4. The indictment’s twelve particulars did not purport to define separate terms of the agreement. Applying the rationale of R v Landy [1981] 1 WLR 355 and following Hancock [1996] 2 Cr App R 554, they supplied reasonable information about the nature of the charge and the principal overt acts relied on. They therefore were not ingredients requiring separate jury unanimity.

5. The court distinguished Bennett, where the indictment had particularised a three-stage agreement. Where an indictment itself defines a complex agreement by detailed stages or terms, those details form part of what the prosecution must prove. Future indictments should clearly separate the agreement alleged from additional particulars supplied for information.

6. The renewed applications for leave on the remaining grounds were refused. The court also criticised the disproportionate length of the trial, but left defence-cost issues for further representations.

• Court of Appeal (Criminal Division): Dismissed the appeals against conviction and refused the renewed applications for leave on the remaining grounds: [2004] EWCA Crim 2685.
• Southwark Crown Court: On 23 October 2002, convicted the appellants of conspiracy to defraud. No citation for that decision was stated.