Nelson & Anor, R v

Separate counts may properly be left to a jury where each addresses distinct legal elements and neither count substantially exhausts the alleged criminality. Counts are true alternatives only where they concern a single wrong and one offence contains the elements of the other with an additional or aggravating element.

Where distinct offences have material evidential overlap, sentencing must avoid double counting. The court must assess the extent of overlap, apply totality, and explain a total sentence exceeding the maximum for either individual offence. For an offence under section 16 of the Firearms Act 1968, a specific intent to kill is unnecessary; it suffices that the offender intentionally acted while knowing that life was endangered.

The appeals arose from gang-related offending in Hackney. Mubarak Shaibu pleaded guilty at the Central Criminal Court to possessing a firearm with intent to endanger life after firing a sub-machine gun at a uniformed PCSO while fleeing. He received an extended sentence which required him to serve 16 years before he could seek parole.

Scott Nelson was convicted by a jury of assisting Shaibu by concealing the firearm and of possessing the prohibited firearm. He received consecutive sentences totalling 12 years. Nelson renewed an application for leave to appeal against conviction, contending that the counts should have been left as alternatives, and appealed against sentence. The central issues were whether the counts were true alternatives and whether the aggregate sentence properly reflected their factual overlap.

1. Shaibu's appeal against sentence was dismissed. The sentencing judge had not found an intent to kill. The undisputed facts nevertheless showed that Shaibu deliberately fired a loaded sub-machine gun at a uniformed officer from about two metres away, having previously taken the weapon into rival gang territory. Under section 16 of the Firearms Act 1968, the prosecution did not need to establish a specific intent to kill. The guilty plea accepted intentional conduct which Shaibu knew endangered life, and a willingness to use the weapon if necessary. The risk of death, the weapon's lethal capacity, the ammunition available, and its use in a public place made the offence exceptionally grave. Although the judge should have made clearer the treatment of guilty-plea credit, the resulting 16-year custodial period and extended licence were within the proper range after totality.

2. Nelson's renewed application for leave to appeal against conviction was refused. R v John Harris (1969) 53 Cr App.R 376 concerned a lesser count which merged into the full offence because either count covered the complete criminal conduct. The proper approach, consistent with R (Dyer) v Watford Magistrates Court [2013] EWHC 547 (Admin), R v Akhtar [2015] EWCA Crim 176 and R v Bayode EWCA Crim 356, is that genuine, mutually exclusive alternatives should not produce two convictions for one wrong.

   The two counts against Nelson were not true alternatives. Assisting an offender required proof of knowledge or belief about Shaibu's use of the gun, assistance in its concealment, and intent to impede apprehension or prosecution. Possession was not a legal ingredient of that offence, while firearm possession required proof of possession alone. Both counts could therefore properly be left to the jury.

3. Nelson's appeal against sentence was allowed. Although the offences were legally distinct, their evidential overlap required particular attention to totality and to avoiding double counting. A total sentence may in an appropriate case exceed the maximum for either offence, but that course requires a clear explanation. The 12-year total was manifestly excessive. It was replaced by consecutive terms of five years for possession and four years for assisting an offender, totalling nine years' imprisonment.

• Court of Appeal (Criminal Division) — Shaibu's appeal against sentence was dismissed. Nelson's renewed application for leave to appeal against conviction failed, but his appeal against sentence was allowed and his total sentence was reduced from 12 years to nine years: [2016] EWCA Crim 1517.
• Central Criminal Court — HHJ Hone QC imposed an extended sentence on Shaibu following his guilty plea. Nelson was convicted of assisting an offender and possession of a prohibited firearm and received consecutive sentences totalling 12 years.