R v Jan

An indictment may properly be amended to add a count where the evidence supports it, the amendment creates no new issue or unfairness for the defence, and it clarifies the case to be tried.

On a multi-count indictment, a jury that is sure of guilt on one count may use that conclusion when considering another count if the evidence discloses a sufficiently close relationship. A specific "fingerprint" or signature direction is not invariably required. The jury must nevertheless consider the counts stage by stage and be sure of guilt on each count. An omission from the usual separate-count direction will not render convictions unsafe unless it undermines their safety in the circumstances.

Following a retrial in the Crown Court at Middlesex Guildhall, the appellant was convicted of public nuisance and two counts of arson with intent to endanger life. He received concurrent life sentences. The sentencing judge considered Powers of Criminal Courts (Sentencing) Act 2000, section 82A, and did not set a tariff because of exceptional circumstances.

The conviction appeal challenged the addition, before the retrial, of a count concerning an arson at a councillor's home. It also challenged the use of evidence across the public-nuisance and arson counts, the directions on secondary participation, and several further directions. The central issue was whether those matters rendered the arson convictions unsafe.

1. The conviction appeals were dismissed. The sentence appeal was adjourned generally and was to be restored when submissions on the statutory sentencing structure and principle could be heard.

2. The judge correctly permitted the indictment to be amended to add the arson count concerning Elizabeth Brookes. The pre-trial material had already disclosed the evidence linking the appellant to that arson. There was sufficient evidence for the count, it raised no new issue, and it caused no prejudice or practical difficulty for the defence. The amendment therefore achieved proper clarity without unfairness.

3. The jury had been adequately directed on the permissible use of the evidence across counts. They were told to proceed stage by stage, to be sure of guilt on a particular count before using that conclusion in relation to another count, and to assess the whole evidence for a sufficiently close relationship between the occurrences. In the context of a sustained campaign against identified victims, proof of the public-nuisance count could permissibly assist the jury in deciding responsibility for the arsons.

4. The court rejected the contention that a direction using a fingerprint or signature formulation from DPP v P [1991] 2 AC 447 was necessary. Although the judge should preferably have given the standard reminder that proof of public nuisance did not automatically establish any arson count, the deficiency was negligible and did not undermine the safety of the convictions.

5. The direction that the appellant could be guilty as an arsonist or by counselling or procuring another was properly left to the jury. It was supported by the evidence and by the appellant's own account that others had committed some activities for him. It did not alter the Crown's primary case or invalidate the use of the evidence across counts. The remaining complaints were unarguable, and the evidence on the two arson counts was overwhelming.

• Court of Appeal (Criminal Division) — dismissed the appeals against conviction in [2006] EWCA Crim 2314; the appeal against sentence was adjourned generally.
• Crown Court at Middlesex Guildhall — following a retrial before His Honour Judge Blacksell QC and a jury, convicted the appellant of public nuisance and two counts of arson with intent to endanger life, and imposed concurrent life sentences.