R v AWG

A misdirection on a specimen count does not automatically make a conviction unsafe. The court must assess the whole evidence and ask whether, with a correct direction, the only reasonable and proper verdict would have been guilty.

Where allegations describe an unparticularised pattern of similar conduct, a jury may generally convict if sure that the offence occurred at least once. A same-occasion direction is required where there is a realistic possibility that the jury could reach its verdict by combining different occasions. If the conviction stands, sentencing must reflect the offending established by the verdict.

Following a trial at Maidstone Crown Court, the applicant was convicted of sexual offences against a child and offences involving indecent photographs. Before sentence, it was discovered that the judge had directed the jury on three specimen counts that it need only be sure that the conduct occurred on at least one occasion, although each count alleged at least five occasions.

The applicant sought permission to appeal, arguing that the error created doubt about the safety of the convictions and had affected the verdicts on other counts. The Crown submitted that the verdicts remained safe. The central issues were whether the misdirection rendered the convictions unsafe and on what basis sentence should proceed.

The Court of Appeal (Criminal Division) rejected the application for permission to appeal. The convictions remained in force, but the case was remitted for sentence.

1. Effect of the misdirection. A misdirection is not necessarily fatal where, having regard to the whole of the facts and evidence, a correctly directed jury could only reasonably and properly have returned guilty verdicts. The failure of counsel to identify an error in draft directions is relevant to assessing its significance. Here, the evidence provided a legitimate basis for the indictment, the jury’s verdicts were not undermined by the error, and the appellant’s probability arguments were jury points which had been rejected.
2. Specimen counts. The court considered R v Hobson ([2013] EWCA Crim 819). Where a complainant alleges a pattern of similar conduct without identifying a distinct occasion, there may be no sensible basis for requiring agreement on the same occasion. A same-occasion direction is required where there is a realistic possibility that the jury could reach its verdict by focusing on different occasions. The court treated the factual circumstances in Hobson as distinguishable from the unanchored allegations in this case.
3. Sentence and final order. The directions meant that the verdicts on counts 1 to 3 established one occasion of sexual assault on each count, rather than at least five occasions. Sentence therefore had to proceed on that basis. The case was remitted to the trial judge for sentence accordingly.

• Court of Appeal (Criminal Division): In [2025] EWCA Crim 564, the court rejected the application for permission to appeal and remitted the case for sentence on the basis that counts 1 to 3 related to one occasion each.
• Crown Court at Maidstone: On 5 December 2024, the applicant was convicted of the relevant sexual offences and offences involving indecent photographs. Sentence had not yet taken place.