Phillips, R v

Jury unanimity is required as to every ingredient of an offence, but not as to every evidential route by which an ingredient may be proved. A Brown direction is required only where there is a realistic risk that jurors may rely on different matters which each independently constitute an ingredient or distinct incident. A single count may properly allege a continuing criminal enterprise carried out at several premises where the prosecution alleges one enterprise and the defence is non-involvement throughout.

In alternative sentencing reasoning, the court confirmed that, if a verdict permits more than one factual interpretation, the judge must determine the factual basis to the criminal standard. Only if the judge is not sure must sentence proceed on the interpretation most favourable to the defendant.

The appellant was convicted in the Crown Court at Winchester of being concerned in the production of cannabis, contrary to Misuse of Drugs Act, section 4(2)(b), and of transferring criminal property, contrary to Proceeds of Crime Act 2002, section 327(1)(d). The prosecution alleged that he participated with two co-accused in a continuing cannabis-production enterprise at three premises.

At the close of the evidence, both parties supported an amendment which would have divided the drug-production count into three counts. The trial judge refused it. On appeal, the appellant contended that the single count was defective or required a R v Brown (K) direction, and that the judge had therefore sentenced on an impermissibly adverse factual basis.

1. Appeals dismissed. The trial judge was entitled to refuse the late amendment. The indictment alleged one continuing enterprise involving the appellant and his co-accused, rather than separate enterprises at each property. The appellant's defence at trial was likewise that he had not participated in cannabis production at all. Different evidence and explanations concerning the individual premises did not make the count legally defective.
2. Jury unanimity was required only as to the ingredients of the offence. The contested ingredient was whether the appellant was concerned in cannabis production. The locations were not alternative particulars, each of which could independently found a conviction. The situation was therefore materially different from that in R v Brown (K) 79 Cr App R 115.
3. A Brown direction is exceptional. It is needed where there is a realistic danger that jurors may convict while relying on different matters which each separately constitute the relevant ingredient, or on distinct incidents giving rise to different defences. It was unnecessary here. The court also relied on the warning in R v Mitchell 26 HLR 394 against overburdening juries with unnecessary directions.
4. The conviction on count 1 was not unsafe. As all parties accepted that count 2 stood or fell with count 1 for this purpose, the appeal against the conviction for transferring criminal property also failed.
5. In alternative reasoning on sentence, the court applied the approach stated in R v King [2017] 2 Cr App R(S) 6. Where a verdict permits more than one interpretation, the sentencing judge may determine the factual basis to the criminal standard. The favourable interpretation is required only where the judge is not sure. The judge had been able to make the necessary findings, and the five-year sentence was neither manifestly excessive nor wrong in principle.

• Court of Appeal (Criminal Division) Dismissed the appeals against conviction and sentence: [2019] EWCA Crim 577.
• Crown Court at Winchester Convicted the appellant of being concerned in the production of cannabis and transferring criminal property, and imposed concurrent sentences of five years and 18 months' imprisonment.