R v Clark

Date

28 February 1996

Legislation

Sexual Offences Act 1956, s.15

Keywords

indictments; specimen counts; sample counts; sentencing

Counsel

J. Pavry for Clark, the Crown was unrepresented

Solicitors:

unknown.

Judge:

Henry LJ, Alliott and Owen JJ.

Court:

Court of Appeal (Criminal Division)

Reported:

[[1996] 2 Cr App R(S) 351

Summary:

Clark was convicted of the indecent assault of a 14 year-old boy and sentenced to five years imprisonment. He was tried on a single specimen count reflecting a series of offences over the period in question. Clark never admitted any sexual offences within that period. He was, however, sentenced for the full series as the prosecution had made it clear during the trial that they were alleging a number of offences.

At trial the defence admitted that there had been a long-term series of sexual encounters between Clark and the victim but that these had only occurred after the victim’s 17th birthday. There was thus a total denial of any criminal sexual acts in the period covered by the indictment.

Clark appealed against sentence only.

Decision

The Appeal Court concluded as follows:

• the jury had only found Clark guilty of the single sexual act alleged in the indictment;
• it made no difference that the evidence called before them related to a series of offences; and
• it is acceptable to permit a judge to sentence on his view of the gravity of the ingredients of the offence of which the jury have convicted, but quite unacceptable to permit them to sentence on the basis of unproved and separate offences which are denied by the defendant and considered by the judge as aggravating factors to the offence which is indicted.

In this case Clark could only be sentenced on the basis of the single convicted offence and the other offences could not be taken into account in his sentencing. Consequently Clark’s sentence was reduced from 5 years to 2 years for that single offence.

On conviction for specimen counts in trade mark offences there is a reasonable likelihood that the defendant will admit the other alleged offences. However, aside from an exception which operates in sexual cases, it is necessary for prosecutors to charge a sufficient number of offences fairly to reflect the criminality of the offending in question.