S, R v

Where a defendant is charged on alternative counts, the jury should give its verdict on the greater count before any verdict on the lesser count. A defendant should not be convicted of both alternatives, including where the greater offence necessarily includes the lesser offence.

A verdict prematurely returned on a lesser alternative is irregular and does not itself constitute a conviction unless accepted by the court. If it has been accepted and the defendant is later convicted of the greater alternative, the lesser conviction should ordinarily be quashed on appeal.

The applicant and a co-accused were tried at Nottingham Crown Court on alternative counts of reckless arson endangering life and simple arson. Both pleaded not guilty. The jury unanimously found the applicant guilty of simple arson before resuming its deliberations and later finding him guilty, by majority, of the graver count.

The judge imposed sentence only for reckless arson and treated the simple-arson count as subsumed. The applicant did not challenge that conviction or sentence, but renewed an application for permission to appeal because the record showed convictions on both alternative counts. The issue was whether the lesser conviction should be quashed.

Appeal allowed. The court granted leave and quashed the conviction for simple arson on count 2. The conviction for reckless arson on count 1 was unaffected.

1. A defendant charged with alternative counts should not be convicted of both. This applies both to mutually exclusive alternatives and where the greater offence necessarily includes the lesser one. Where the jury finds the defendant guilty of the greater count, the lesser alternative is redundant.

2. The proper course is to obtain the jury's verdict on the greater count first. A guilty verdict on the lesser count returned before the jury has given, or been discharged from giving, its verdict on the greater count is irregular. Following Fernandez [1997] 1 Cr.App.R 123, the judge should decline to accept that premature verdict pending the verdict on the greater count. The premature verdict does not itself create a conviction.

3. The trial judge should therefore have made the formal position clear to the parties and court staff. It was unnecessary to explain the technical position to the jury, whose deliberations on the greater count could continue.

4. There was ambiguity whether the judge had accepted the count 2 verdict as a conviction. The single judge had described a double conviction, and the court record showed a guilty verdict on count 2. With no Crown objection, the safe course was to treat count 2 as having resulted in a formal conviction and to quash it, leaving no doubt that the applicant had only the conviction on count 1.

• Court of Appeal (Criminal Division) Granted leave to appeal and quashed the conviction on count 2: [2007] EWCA Crim 2247.
• Single judge Refused permission to appeal, treating the two recorded convictions as effectively one because count 2 was subsumed within count 1.
• Nottingham Crown Court The jury convicted the applicant of reckless arson on count 1 by majority and simple arson on count 2 unanimously. The judge imposed no separate penalty on count 2.