Dunn & Anor, R. v

Charges described to a jury as alternatives do not necessarily prevent a retrial on one count after a conviction on the other. The bar applies to true, mutually exclusive alternatives, whose legal and factual elements make convictions for both impossible. It does not apply to forensic alternatives, even where the counts overlap and the judge directs that one should be considered only after the other.

A conspiracy offence requiring agreement and intention is materially distinct from participation in organised crime under Serious Crime Act 2015, section 45, which may be committed on reasonable suspicion and without proof that the defendant joined an agreement. A broad, proportionate Serious Crime Act 2007 prevention order may restrict all water-going vessels where that is necessary to protect the public.

Henry Dunn and Christian King were involved in a conspiracy to bring four Vietnamese nationals without lawful entitlement into the United Kingdom by rigid-hulled inflatable boat. At the first trial, Dunn was convicted of participation in the criminal activities of an organised crime group. The jury could not agree on the conspiracy count. He was retried and convicted on that count.

Both men received nine-year sentences for conspiracy to facilitate a breach of immigration law. King also received a Serious Crime Prevention Order. Dunn appealed against conviction and renewed his application for leave to appeal against sentence. King renewed his application for leave to appeal against sentence, including the terms of his order.

The central issue was whether retrial of Dunn on the conspiracy count was an abuse of process after his conviction on the other count, which had been left to the jury as an alternative.

1. The court dismissed Dunn’s appeal against conviction. It refused both renewed applications for leave to appeal against sentence and refused the related extensions of time.

2. There was no plea in bar. The two offences were not the same in law. Nor did the principle in R v Elrington (1861) 1 B & S 688 apply. The prosecution had preferred the more serious conspiracy charge from the outset; it had not first disposed of a minor charge and then escalated the prosecution.

3. The counts were not true, mutually exclusive alternatives of the kind considered in R v Bayode [2013] EWCA Crim 356. They were forensic alternatives. Conspiracy required proof of an agreement, the defendant’s participation in it, knowledge and intention. Participation under section 45 of the Serious Crime Act 2015 required participation in an organised crime group’s activities with knowledge or reasonable suspicion, but no proof that the defendant was party to an agreement.

4. The distinction between reasonable suspicion and belief was substantial. The distinct elements and statutory maximum sentences confirmed that the counts were different offences. The jury could rationally have been sure that Dunn participated in organised crime while being unable to agree that he controlled the phones said to establish his participation in the conspiracy. Applying R v Akhtar [2015] EWCA Crim 176, there was therefore no abuse in retrying the conspiracy count. Any unfairness from two convictions could be addressed at sentence, and no separate penalty had been imposed for the section 45 conviction.

5. The nine-year sentences were neither wrong in principle nor manifestly excessive. The planning, commercial motivation, danger to the migrants, and need for deterrence justified the sentences. The court also upheld King’s Serious Crime Prevention Order. Registration of any water-going vessel was a proportionate measure to protect the public, since a vessel designed for internal waters could be used in a future smuggling operation.

• Court of Appeal (Criminal Division): By this judgment, [2021] EWCA Crim 439, dismissed Dunn’s appeal against conviction and refused both defendants leave to appeal against sentence.
• Crown Court at Snaresbrook: Dunn was convicted of participation in organised crime on 25 March 2019 and, after retrial, of conspiracy on 23 September 2019. King was convicted of conspiracy on 25 March 2019. HHJ Lees sentenced each to nine years’ imprisonment on 5 December 2019 and imposed a Serious Crime Prevention Order on King.