Hobson v R.

For a specimen count alleging repeated offending, a direction that the offence need have occurred only once is sufficient where no distinct incident can be identified. Where the evidence identifies particular incidents and there is a realistic possibility that jurors may rely on different incidents, the jury must be directed that they can convict only if they are sure of the same occasion. Otherwise, unanimity on an essential element is not established and the conviction is unsafe.

A summing-up on a defendant’s silence must be read as a whole. An unhelpful additional observation will not make a verdict unsafe if the jury were correctly directed that they must first find a case to answer and that silence cannot alone prove guilt.

The appellant was convicted after a retrial at Teesside Crown Court of two specimen counts of indecent assault against two sisters, based on allegations of repeated sexual touching many years earlier. He was acquitted of two further specimen counts and the jury did not reach verdicts on three other counts.

He appealed against conviction and sentence. The principal successful ground concerned the directions on the specimen counts. Each complainant described a general pattern of conduct but also gave evidence of particular incidents. The issue was whether the jury had been directed sufficiently to ensure unanimity on the same alleged occasion.

1. The appeal against conviction was allowed. The convictions on the two specimen counts were quashed. The prosecution’s application for a retrial was refused because a further trial would be oppressive and contrary to the public interest, given the two previous trials, the age of the allegations, the acquittals, time served, and the absence of later similar offending.
2. The complaint about the direction on silence was rejected. The judge had correctly set out the safeguards in Cowan [1996] QB 373, including that the prosecution case had first to justify an answer and that silence could not alone prove guilt. Although the later suggestion that the jury decide early whether silence strengthened the prosecution case was unhelpful, the summing-up read as a whole did not create a real risk of confusion.
3. On specimen counts, a jury may ordinarily be directed that it can convict if sure that the offence occurred at least once. That approach is apt where the complainant can describe only a general pattern and no particular occasion can sensibly be isolated.
4. However, where the evidence identifies distinct occasions within the alleged pattern, and a reasonable jury could accept one occasion while rejecting another, the prosecution should ordinarily consider separate counts. If it does not do so, the judge must direct that a conviction requires unanimity that the offence occurred on the same occasion, whether a particularised occasion or an occasion within the unparticularised pattern. A specimen count comprises multiple alleged offences; it is not one offence capable of commission by alternative means.
5. Here, the distinctive patio, bedroom and shed allegations gave rise to a realistic possibility that different jurors had relied on different occasions. The omission of a same-occasion direction therefore rendered the convictions unsafe. Although unnecessary to the result, the court added that sentencing a specimen count as repeated offending requires the defendant’s express agreement; otherwise sentence must proceed on the basis of a single offence and, where relevant, the basis most favourable to the defendant.

• Court of Appeal (Criminal Division): In Hobson v R. [2013] EWCA Crim 819, the court allowed the appeal against conviction, quashed both convictions and refused a retrial.
• Crown Court at Teesside: Following a retrial before His Honour Judge Bowers in June 2012, the appellant was convicted on two specimen counts of indecent assault and sentenced to four years’ imprisonment on one count and 12 months concurrent on the other. No citation for that decision was stated.