Mintern, R. v

A conspiracy count is bad for duplicity only if, properly construed from the count and any particulars, it charges two or more conspiracies. Duplicity is a matter of form, not of the evidence later called. Evidence capable of showing another conspiracy may instead raise a question whether the charged conspiracy has been proved.

Where evidence remains on which a properly directed jury could find the single conspiracy charged, the trial may continue. The court must ensure practical fairness by restricting the case where appropriate and by clear directions that the jury must find one agreement involving the accused. The decisive consideration is prejudice or embarrassment, not technical form.

The appellant was convicted at Winchester Crown Court of conspiracy to commit burglary, conspiracy to commit arson and attempting to damage property recklessly as to whether life would be endangered. He received a total sentence of ten years’ imprisonment.

During the prosecution case, the trial judge directed the acquittal of a co-defendant, Stevens, on the two conspiracy counts because there was insufficient evidence linking him to an agreement with the remaining defendants. The prosecution then confined the incidents relied upon to an amended schedule. The appellant appealed his convictions, contending that the counts had thereby been shown to be duplicitous, that the continued trial was unfair, and that he should also have been acquitted on the arson-conspiracy count after another co-defendant’s acquittal.

1. Appeal dismissed. The conspiracy counts were not bad for duplicity. Whether a count is duplicitous depends principally on its form and, where relevant, its particulars. The counts alleged one conspiracy each, and the appellant did not contend that they were formally duplicitous.

2. Following R v. Greenfield [1973] 1 WLR 1151, evidence that may reveal another conspiracy does not turn a valid single-conspiracy count into a bad count. It may instead mean that the prosecution has failed to prove the conspiracy charged. Here, after Stevens’s acquittal and the restriction of the prosecution case to the amended schedule, the jury were left to decide whether the remaining defendants participated in one conspiracy charged by each count.

3. The proper question was therefore fairness. The appellant suffered no prejudice or embarrassment. The Crown accepted that he was not implicated in the omitted incidents; the remaining case was limited; and the jury received clear directions that they could convict only if satisfied that a single agreement had been proved. The judge did not err by declining to discharge the jury.

4. The evidence against the appellant on the substantive count was strong and unconnected with the alleged unfairness. There was also ample evidence to justify refusing a half-time acquittal on the arson-conspiracy count, notwithstanding the unopposed acquittal of another defendant.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against convictions entered in the Crown Court at Winchester.
• Winchester Crown Court: the appellant was convicted and sentenced to a total of ten years’ imprisonment.