No: 200701667 C3 
Neutral Citation Number: [2007] EWCA Crim 2247
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Friday, 7th September 2007
 
B e f o r e:

LORD JUSTICE TOULSON 

MR JUSTICE DAVIS 
 
MR JUSTICE UNDERHILL 
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R E G I N A 

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Computer Aided Transcript of the Stenograph Notes of  
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MR H OWEN appeared on behalf of the Appellant
The Crown was not represented
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J U D G M E N T
1.	LORD JUSTICE TOULSON:  David Shaw renews an application for permission to appeal following refusal by the single judge.  In November 2006 he and a co‑accused, Luke Hutchison, stood trial at Nottingham Crown Court before His Honour Judge Head and a jury on an indictment containing two alternative counts of arson.  The first count charged them with arson being reckless as to whether life was endangered.  
2.	The particulars were that on 14th April 2006 without lawful excuse they damaged by fire a dwelling house belonging to Anthony Wright, intending to destroy or damage such property or being reckless as to whether such property was destroyed or damaged, and being reckless as to whether the life of another would thereby be endangered.  Count 2 charged them with simple arson in relation to the same property.  Both defendants pleaded not guilty to both counts.  
3.	At the end of the trial the jury by a majority found Hutchison guilty on count 1 and no issue arises in relation to him.  The jury also found this applicant guilty by a similar majority on count 1, but they took longer to reach their verdict and before doing so they returned an unanimous verdict that he was guilty on count 2.  How this came about will shortly be described.  The judge treated the jury's verdict on the lesser alternative as subsumed within its verdict on the greater one and sentenced him for a single offence, namely reckless arson. 
4.	The applicant does not seek to challenge his conviction or sentence on count 1.  However, he does seek leave to appeal after refusal by the single judge on the basis that there has been an irregularity in that he has received a double conviction on alternative counts, although no penalty was imposed on count 2.  This has given rise to an interesting argument, but first the course of events at the trial needs to be explained in a little more detail to understand how the situation arose.
5.	The facts giving rise to the charges are immaterial.  No criticism is made of the summing up.  The judge began by explaining the ingredients of count 2.  He went on to explain that count 1 was a greater charge because it contained an important additional ingredient.  If the jury was, in the case of a particular defendant, unsure that he was guilty on count 2, then he would automatically be not guilty on count 1, because count 2 was a necessary part of count 1.  If, however, the jury found a particular defendant guilty on count 2, then they would have to go on and consider whether he was guilty of the graver offence under count 1.  All of this was spelled out for the jury with great clarity.  The judge also explained that they would be asked first to deliver their verdicts on count 1.  If the verdict on count 1 in respect of a particular defendant was guilty, then because, in the judge's words, count 2 was "part of count 1" they would not be asked for a separate verdict on count 2.  If they were sure of guilt on count 2 but not count 1, then the verdict would be not guilty on count 1 but guilty on count 2.  The judge suggested that in their deliberations they should approach the counts in reverse order.
6.	The jury retired on Thursday 9th November 2006 at 11.34.  The trial had begun on the previous Monday morning.  They were still deliberating at the end of the day.  At 15.50 the jury were given a majority direction.  At 16.19 they were sent home overnight.  They resumed their deliberations on the Friday morning at 10.24.  The jury returned at 13.12.  In the case of Luke Hutchison, who was the first defendant on the indictment, they announced that they found him guilty on count 1 by a majority.  The following exchange then took place:  
"CLERK: In respect of David Shaw on count 1 of arson being reckless as to whether life was endangered, has a verdict been reached on which at least ten of you are agreed? 
FOREMAN: No.   
JUDGE: Put count 2.   
CLERK: In respect of David Shaw on count 2 of arson, has a verdict been reached on which at least ten of you are agreed? 
FOREMAN: Yes." 
7.	Mr Owen who appeared for the applicant before this court, as he appeared at the trial, makes no criticism of what took place up to that point.  He accepted that it was reasonable for the judge to try and find out how far the jury had reached in their deliberations, given that they had now been considering the matter for a lengthy time.  If matters had stopped there it would, of course, have been obvious to everybody concerned that the jury must have decided that the applicant was guilty on count 2, because if they had reached a verdict of not guilty on count 2, following the judge's directions they would automatically have concluded that he was not guilty on count 1.  
8.	The problem arises from the next question.  The proceedings continued as follows: 
"CLERK: Do you find the defendant guilty or not guilty on count 2? 
FOREMAN: Guilty. 
CLERK: Guilty.  Is that the verdict of you all or by majority? 
FOREMAN: All of us." 
The judge then went on to address the jury as follows: 
"I shall not ask you in respect of Luke Hutchison to produce a verdict on count 2 because, as you have appreciated, it is, as it were, within count 1.  I address myself to you as chairing this jury.  As you know, you have had 7 hours 22 minutes of deliberation.  In respect of David Shaw on count 1, is it your sense that given some refreshments now and some more time that there is any reasonable prospect of you reaching a verdict, albeit a majority verdict, on count 1 in respect of David Shaw? 
FOREMAN: Yes." 
The judge therefore invited the jury to retire and continue their deliberations.  At 14.26 the jury returned to find the applicant guilty on count 1 by a majority of 10 to 2.
9.	The case was adjourned for sentencing to 21st January 2007.  At the end of his sentencing remarks the judge said: 
"In respect of David Shaw on count 2 there is no separate penalty.  That is clearly not a separate matter.  It has been subsumed into the later conviction by the jury on count 1." 
The court log in relation to count 2 records the applicant's plea as not guilty, the verdict as guilty, and in the column recording the court's sentence or order the log records: 
"No separate penalty.  This count to be subsumed into count 1 and the defendant be regarded as having only one specified count for this offence".
10.	Mr Owen submits that there has been an irregularity which this court should now correct.  The irregularity arises from the jury being asked specifically whether they found the applicant guilty on count 2 and their answer that they did.  He submits that this has now given rise to a conviction on two alternative counts and that the conviction for the lesser count remains on the record.  It ought therefore to be quashed.  
11.	The single judge refusing leave to appeal said: 
"You were convicted of two offences arising out of the same incident.  Count 2 is, as stated by the judge, subsumed in count 1, the more serious offence.  The convictions must therefore rank as only one for any future consideration of 'specified violent offences'.  No separate penalty was imposed nor could it have been.  The 'double conviction' by the jury does not render either unsafe." 
Mr Owen submits that the double conviction on alternative counts is in itself an irregularity that should be corrected.  His practical, as distinct from his academic, concern is that the applicant's printed antecedents now show him as having been convicted of two offences of arson.
12.	We were referred by Mr Owen in his written and oral submissions to a number of authorities, including Cummerson [1968] 2 QB 534, Hill [1992] 96 Cr.App.R 456 and Fernandez [1997] 1 Cr.App.R 123.  It is well established that where a defendant is charged with alternative counts he should not be convicted of both.  That principle applies not only where the alternatives are mutually exclusive but also where the more serious offence necessarily includes the lesser alternative.  It not infrequently happens, of course, that a defendant charged with alternative offences may plead guilty to the lesser alternative.  The prosecution and the judge are not bound to accept that plea as determinative of the full extent of the offending.  If the prosecution proceeds on the greater charge, the unaccepted plea to the lesser offence is treated in the meantime as not amounting to a conviction.  If the defendant is in due course found guilty of the greater offence, he will therefore be convicted on that count alone, notwithstanding his earlier entry of a plea of guilty to the lesser offence.  If the defendant pleads not guilty to both the greater and the lesser counts, the proper course is not to ask the jury to announce whether they find the defendant guilty on the lesser count until they have announced their verdict on the greater.  If the jury finds him guilty on the more serious count, the alternative becomes redundant.
13.	But what happens if, for some reason, the jury does announce its verdict on the lesser count before doing so on the greater charge?  That question was addressed by this court in Fernandez.  In that case the defendant was charged with a number of offences, including robbery on count 3 and handling stolen goods on count 5, the latter count being an alternative to count 3.  After the jury had been out for a number of hours, they were asked whether they had reached verdicts on which they were all agreed on any counts.  They answered that they had reached unanimous verdicts on all counts except counts 3 and 4.  They were then asked, without anybody objecting, to deliver their verdicts on the counts where they had reached decisions.  These included a guilty verdict on count 5, the count of handling stolen goods.  Overnight, counsel for the prosecution realised that this had been an irregularity because the jury had yet to reach a verdict on the more serious alternative contained in the robbery count.  The judge in those circumstances directed the jury that as a matter of law he could not accept their verdict on count 5 until he had received their verdicts on count 3.  In due course, the jury convicted the defendant of robbery.
14.	He appealed to this court on the ground that once the jury had convicted him of the lesser alternative on count 5, the judge ought to have discharged the jury from giving a verdict on the more serious charge.  That argument was rejected.  Giving judgment, Hobhouse LJ said at page 133: 
"Where a jury is allowed inappropriately to return a verdict on a count in the indictment which has only been included in the indictment as an alternative to other more serious counts, the verdict in respect of the alternative is irregular.  The judge is under a duty to take from the jury, and the jury entitled to give, their verdicts upon the more serious counts.  If a verdict is prematurely returned on an alternative count before the jury have given their verdict or been discharged from giving their verdict upon a more serious count, the judge should decline to accept the verdict on the alternative count.  If he accepts it, it should ordinarily be quashed on appeal as occurred in Hill and Sinnott, unreported December 16th 1994." 
15.	An important point which emerges from that decision is that this court did not regard there as having been a conviction on count 5 merely because the jury had returned a verdict of guilty on count 5, anymore than there would have automatically been a conviction on the lesser count merely because the defendant entered a plea of guilty to the lesser count.  Accordingly, in this case the proper course for the judge would have been to make it clear to the parties that he was not accepting the jury's verdict on count 2 as itself constituting a conviction on count 2 pending their decision on count 1.  It may indeed be that that is what the judge intended.  We do not suggest that it would have been necessary for the judge to have explained the technicalities of the matter to the jury.  That would merely have held up their deliberations on count 1.  But the formal position ought to have been made explicitly clear so that the parties and court officials responsible for recording the proceedings knew exactly where matters stood.
16.	Although it may well be that the judge did not intend there to be a conviction accepted by the court by reason of the jury's verdict on count 2 until the entire proceedings had been concluded (and that is certainly one reading of his subsequent remarks about the verdict on count 2 being subsumed within count 1), we have to accept that there is at least an ambiguity in what occurred.  Certainly the single judge, in the comments to which we have referred, understood there to have been what she referred to as a "double conviction".  It would be unfortunate for the matter to be left in a state of confusion.  
17.	During the course of this hearing the case lawyer contacted the Crown Prosecution Service.  They have indicated in writing that there is no Crown objection to the quashing of count 2.  In all the circumstances, we think that the safe course is to treat there as having been formally a conviction on count 2, whether the judge actually intended that or not.  In those circumstances, we give leave to appeal and quash the conviction on count 2.  That will leave the matter free of any possible doubt.
18.	Thank you very much, Mr Owen.  It follows also from the granting of leave that you should have a representation order.
19.	MR OWEN:  I am grateful.