Michael David Salmon v R

A late amendment of an indictment after guilty pleas will not ordinarily amount to an abuse of process merely because the prosecution had accepted those pleas. The result depends on whether there was a promise or plea bargain, prejudice, or an affront to public justice. Where the accused pleaded on a full-facts basis, no compromise of criminal liability was made, and the added counts introduce no new factual case, amendment may properly ensure that sentence reflects the overall culpability.

On a sentence appeal, totality requires a realistic assessment of the aggregate term. A sentence is not excessive merely because consecutive terms are imposed for separate victims where the judge has adjusted the overall term for proportionality.

The appellant pleaded guilty in the Crown Court at Teesside to sexual offences involving several child victims. After the sentencing judge questioned why blackmail had not been charged, the Crown obtained leave to add five blackmail counts. The appellant pleaded guilty to those counts and received a total of nine years’ imprisonment.

He renewed his application for leave to appeal against conviction, contending that the late amendment was an abuse of process. He also appealed against sentence, arguing that the judge had insufficiently applied totality and had adopted excessive starting points for some blackmail offences. The central issues were whether the amendment rendered the convictions unsafe and whether the overall sentence was manifestly excessive or wrong in principle.

1. Appeals dismissed. The court granted leave to appeal against conviction but held that the convictions founded on the five blackmail pleas were safe.
2. There was no abuse of process. The appellant had entered pleas on a full-facts basis. The Crown’s acceptance of those pleas did not promise that further charges would not be brought, nor did it compromise criminal liability. The appellant knew that the conduct amounting to blackmail would be relied on as substantially aggravating the sexual-communication offences under the Sexual Offences Act 2003. The new counts introduced no new factual case. In those circumstances, formal amendment was not an affront to justice; failing to sentence the appellant for his full culpability would have been the greater affront.
3. The authorities relied upon were fact-specific. R v Bloomfield [1997] 1 Cr App R 135 concerned a prosecution statement to the court that it would offer no evidence. R v Edgar concerned a plea bargain under which other charges were to be abandoned. R v Love and Hyde [2013] EWCA Crim 257 concerned vacation of pleas after a minor amendment, and R v Jordan Antoine [2014] EWCA Crim 1971 concerned charges after sentence. None governed this case.
4. For sentence, the judge had wrongly adjusted for totality before applying guilty-plea credit. The error, however, favoured the appellant. Although some blackmail counts were less serious than others, the aggregate approach was reasonable. The blackmail was materially aggravated by the concurrent offending, two counts involved threats to kill, and substantial totality reductions had been made.
5. The concurrent treatment of the possession offences also showed that the judge had stood back to test proportionality. The overall term of nine years was neither manifestly excessive nor wrong in principle.

• Court of Appeal (Criminal Division) — in [2024] EWCA Crim 44, granted leave to appeal against conviction but dismissed the appeals against conviction and sentence.
• Crown Court at Teesside — permitted amendment of the indictment to add five blackmail counts. Following guilty pleas, imposed a total sentence of nine years’ imprisonment.