Chaney, R. v

Where an indictment spans the commencement of two statutory regimes and the evidence does not enable the jury to determine which regime governed the alleged offending, a conviction cannot stand. The alternative charging procedure under section 55 of the Violent Crime Reduction Act 2006 can address that difficulty only if the offence has been charged under both regimes.

An imprisonment for public protection sentence under section 225 of the Criminal Justice Act 2003 is unavailable for an offence not alleged to have been committed after its commencement. On a sentence appeal, the court may restructure concurrent and consecutive determinate terms to reflect overall seriousness, but must comply with the statutory limit on increasing the sentence beyond that available on the indictment.

The appellant was convicted at Cardiff Crown Court of eleven offences arising from his sexual abuse and exploitation of a vulnerable young woman. He received imprisonment for public protection for rape and concurrent determinate sentences for the other offences.

The appeal concerned counts 6, 7 and 8, each alleged to have occurred between 4 April 2003 and 3 April 2005. That period crossed the commencement of the Sexual Offences Act 2003, but the evidence did not identify when the offences occurred. It also preceded the commencement of the imprisonment for public protection regime. The central issues were the safety of those convictions and the lawful overall sentence after any convictions were quashed.

1. The court granted leave to appeal against conviction and sentence, treated the hearing as the appeal, and allowed it in part. The convictions on counts 6, 7 and 8 were quashed.

2. The imprisonment for public protection sentence for rape was unlawful. Section 225 of the Criminal Justice Act 2003 came into force on 4 April 2005 and did not apply to the rape count, which alleged offending only up to 3 April 2005.

3. The indictment period for counts 6, 7 and 8 also covered the change from the former sexual-offence regime to that introduced by the Sexual Offences Act 2003. The evidence could not establish on which side of the change the offences occurred. Applying R v A (Prosecution Appeal) [2006] 1 Cr App R 28 and F v The Queen [2008] EWCA Crim 994, the convictions were unsafe. Section 55 of the Violent Crime Reduction Act 2006 could not cure the defect because the counts had not been charged in the alternative under the old and new regimes.

4. The court was constrained by section 11(3) from passing a sentence greater than could have been imposed on the indictment. It nevertheless concluded that the trial judge, if imposing determinate sentences, would have marked the seriousness of the surviving offending by making some terms consecutive. The five-year sentences for indecent assault remained concurrent. The drug sentences remained concurrent with each other, but were made consecutive to them, producing a determinate sentence of eight years. The other orders remained in force.

• Court of Appeal (Criminal Division) Granted leave, allowed the appeal in part, quashed convictions on counts 6, 7 and 8, and substituted an overall determinate sentence of eight years: [2009] EWCA Crim 52.
• Crown Court at Cardiff On 7 August 2007, the appellant was convicted after trial on eleven counts. On 8 August 2007, he was sentenced to imprisonment for public protection for rape and concurrent determinate sentences for the remaining offences.