Lunn, R v

A single count may allege numerous incidents of the same offence where, taken together, they constitute a course of conduct under Criminal Procedure Rules rule 10.2(2). The associated Practice Direction gives flexible guidance, not rigid limits. Fairness depends on effective case management, clear particulars and directions that enable the jury to identify a common core of proved incidents.

A multiple-incident course-of-conduct count is not a specimen count. Following conviction, the sentencing judge may assess the culpability and harm of the proved course of offending conventionally. The judge is not confined to the minimum number of incidents identified in a jury direction.

Following a retrial in the Crown Court at Southwark, the appellant was convicted by unanimous verdicts of four counts of cheating the Revenue contrary to common law. Count 1 alleged a continuing system of overstating clients’ deductible accountancy fees. Counts 2 and 3 concerned the use of losses and fictitious trading by two companies. Count 4 concerned allegedly exaggerated charges for services said to have been supplied by the appellant’s wife’s company.

The appellant received five years’ imprisonment in total. He appealed against conviction and sentence. He challenged the form and management of the multiple-incident count, the adequacy of directions, the sufficiency of the evidence on count 4, and the basis upon which loss and harm had been assessed for sentence.

1. The appeals against conviction and sentence were dismissed.

2. Count 1 properly charged one continuing and systemic cheat. The alleged incidents were capable of amounting collectively to a course of conduct under rule 10.2(2) of the Criminal Procedure Rules. The Revenue was the common victim and the alleged method displayed marked repetition. The extended period did not itself require the indictment to be divided into yearly counts. The Practice Direction’s reference to a period of about a year is qualified and does not create an inflexible rule.

3. The trial judge had fairly managed the practical consequences of the broad count. The prosecution was confined for conviction purposes to transactions involving 15 named persons, although other evidence could be considered on knowledge, participation and dishonesty. The jury was correctly directed that it had to agree on the same minimum three transactions and be sure of every element of the offence. The appellant had adequate notice and was not unfairly disadvantaged.

4. Cheating the Revenue may be a conduct offence or a result offence. Where it is a conduct offence, actual financial loss need not be proved. In this case, however, the prosecution had assumed the burden of proving a net loss. The directions on the appellant’s personal involvement, knowledge, intention, dishonesty and the asserted home-as-office offset gave the jury an adequate basis for deciding count 1.

5. Counts 2 and 3 sufficiently alleged one linked fraudulent course of conduct. The jury’s question was whether the arrangements were an honest and legitimate tax-saving scheme when viewed overall. On count 4, there was evidence from which a properly directed jury could infer that the claimed value of the services was false. Expert valuation evidence was not indispensable, and the burden of proof was not reversed.

6. The sentencing judge correctly distinguished representative specimen offending from a course-of-conduct count. The principle in Canavan, Kidd & Shaw [1998] 1 Cr App R 79 did not confine sentence to three transactions. The verdict established guilt of the charged continuing cheat, permitting a conventional assessment of harm and culpability. The judge’s favourable assumptions for the appellant and use of harm category 5 on count 1 disclosed no error or unfairness.

• Court of Appeal (Criminal Division) — dismissed the appellant’s appeals against conviction and sentence in [2017] EWCA Crim 34.
• Crown Court at Southwark — following a retrial, convicted the appellant of four counts of cheating the Revenue and imposed a total sentence of five years’ imprisonment.