Multiple offenders

CHAPTER 8
Multiple offenders
This chapter, like Chapter 6,deals with some of the problems posed by the sen-
tencing of persistent offenders. Its focus, however, is on offenders who come before
the courts in a different context. In Chapter 6 the main concern was with the
sentencing of recidivists – those who offend repeatedly, despite the fact that they
have experienced criminal sanctions. The main concern here is with offenders who
commit a number of offences before they are detected and convicted, so that the
court has to sentence them on one occasion for several offences. Not all the offend-
ers whom the courts have to sentence for several crimes could be described as
‘persistent offenders’, for in some cases the offender has been involved in a sin-
gle incident which gives rise to a number of charges and convictions. But many
‘multiple offenders’, whom the courts have to sentence for more than one offence,
are people who have been committing offences over a period of weeks, months or
even years before they appear in court, and they then face a number of charges.
The criminal record of such multiple offenders may vary: some of them will be
recidivists too, having experienced a number of criminal sanctions in the past,
whilst others will fall into that seemingly incongruous category of ‘persistent first
offenders’ – those who, when they are convicted for the first time, are convicted of
several offences which show that they are accustomed to lawbreaking, if not to the
criminal process.
The focus of this chapter, then, will be on multiple offenders, some of whom
are being sentenced for a number of offences arising from a single incident, but
most of whom will be being sentenced for offences committed at different times
during the period before their court appearance. Wherever proportionality between
the seriousness of the case and the severity of the sentence is a leading principle,
multiple offenders give rise to difficulties both theoretical and practical. It is one
thing to compare a residential burglary with a rape; it is quite another thing to draw
comparisons of gravity between two, four or six residential burglaries and a single
rape. Before tackling these problems, however, the various procedural methods of
dealing with multiple offenders must be briefly explained.

239
240 Multiple offenders
8.1 Charging the multiple offender
What approach should the police and prosecutors take when it emerges that a
suspected offender may have committed more than one offence? A full answer to
this question would import a mass of technical detail; for present purposes, a sketch
of the four main avenues open to the prosecution should provide a sufficient basis
for the remainder of the discussion.
8.1.1 Charge all offences
The straightforward approach is to charge all the offences of which the prosecu-
tion have sufficient evidence. This has the disadvantage that the indictment could
be so long as to make it very difficult for the court to deal fairly and accurately
with the various charges against the defendant. If there is a plea of not guilty, the
task of a jury dealing with a lengthy indictment may be formidable and beyond
what is reasonable to expect of them. For this reason, it has long been accepted
that the prosecution may, and indeed ought to, bring no charge in respect of rela-
tively trivial incidents where the defendant already faces a number of more serious
charges.
1
To some extent it remains in the prosecution’s interest to bring a num-
ber of charges against a defendant, since they may then agree not to proceed with
some of the charges in exchange for the defendant’s agreement to plead guilty to
the others. Where a defendant does plead guilty to some charges and it appears to
the prosecution that he is likely to receive a broadly appropriate sentence for those
offences, it will usually be right for the prosecution to drop any further charges to
which he pleads not guilty. This requires, and will usually receive, the trial judge’s
consent.
2
8.1.2 Charge specimen offences
Where the prosecution have evidence of a course of offending over a considerable

period, usually but not necessarily against the same victim (e.g. sexual offences
against children, thefts from an employer), they may decide to charge only a few
incidents as ‘specimen counts’. The chosen ‘specimen counts’ should relate to the
most serious of the alleged offences,andthepurpose is to avoid complicating a single
trial with too many charges and to avoid the need for several trials, while giving
the judge a sufficient basis for a proportionatesentence. This is obviously easier
for the prosecution, since it spares them the burden of adducing evidence in relation
to each one of a long series of offences. But if the defendant is unwilling to admit
to the offences not charged, can the court sentence as if they were proved, simply
because the prosecution described its charges as specimens (of a longer course of
offending)? In the leading decision of Canavan and Kidd (1998),
3
Lord Bingham
CJ declared that
1 E.g. LawtonLJinAmbrose (1973) 57 Cr App R 538.
2 Broad (1979) 68 Cr App R 281. 3 [1998] 1 Cr App R (S) 243.
8.1 Charging the multiple offender 241
Adefendant is not to be convicted of any offence with which he is charged unless
and until his guilt is proved. Such guilt may be proved by his own admission or (on
indictment) by the verdict of a jury. He may be sentenced only for an offence proved
against him (by admission or verdict) or which he has admitted and asked the court to
take into consideration when passing sentence. If, as we think, these are basic principles
underlying the administration of the criminal law, it is not easy to see how a defendant
can lawfully be punished for offences for which he has not been indicted and which he
has denied or declined to admit.
He added that ‘prosecuting authorities will wish, in the light of this decision . . .
to include more counts in some indictments’, and expressed the view that this would
not be unduly burdensome. Although the principle thus enunciated is an important
principle of fairness, it was not always followed at trials.
4

However, Parliament has
now introduced a new procedure for cases in which the prosecution wish to prefer
specimen charges. Under s. 17 of the Domestic Violence, Crime and Victims Act
2004, the prosecution may apply to a Crown Court judge to have some of the counts
in an indictment tried by judge alone, while others are tried by jury. This means that
the prosecution may charge a considerable number of offences, and then satisfy the
judge that some of them may fairly be regarded as samples of the others. If the judge
decides that trial by jury of every count would be impracticable, that the counts to
be tried by jury are a sample, and that it is in the interests of justice to proceed in
this way, the judge may make an order for trial of the other counts by judge alone.
The jury trial then proceeds, and if the defendant is convicted ‘on a count which can
be regarded as a sample of other counts to be tried in those proceedings’, the judge
may then try the defendant on the other counts, giving a reasoned judgment (s. 19).
In most cases the defendant will probably change the plea to guilty of these other
offences, but the new procedure gives the prosecution an opportunity to circumvent
the problem of principle presented by Canavan and Kidd.
8.1.3 Prefer a general charge
Another approach, when there is evidence of a course of offending over a long
period, is to frame a general charge. If two or more people have been involved, a
charge of conspiracy may have procedural advantages for the prosecution and open
the way to higher sentences. Similar advantages may flow from a ‘general deficiency’
count in cases of repeated defalcation.
8.1.4 Offences taken into consideration
The prosecution may invite a defendant to ask the court to take other offences into
consideration when sentencing him for the crimes charged. The House of Lords has
laid down that a defendant should be informed explicitly of each offence and asked
to consent to the court taking each one into consideration when sentencing.
5
The
4 One of the many decisions finding a breach was Pardue [2004] 1 Cr App R (S) 105.

5 DPP v. Anderson [1978] AC 964.
242 Multiple offenders
offences thus taken into consideration do not rank as convictions, but the court is
likely to increase the sentence in order to take account of them, and the procedure
is a relatively informal and expeditious way of disposing of a long series of offences
which are not especially serious in nature.
8.2 Concurrent or consecutive?
At the outset, the limitations of any theoretical discussion of the sentencing of mul-
tiple offenders must be openly avowed. Because of the wide variety of combinations
of offences in particular cases, and the equally wide variations in the time-span of
the offending with which the court has to deal, it would unwise to adopt too dog-
matic an approach. Indeed, David Thomas, after identifying two general principles,
recognized the existence of decisions ‘which do not lend themselves to any general-
ization’.
6
On the other hand, this wide variation in the circumstances in which courts
may be confronted with the problem of sentencing a multiple offender should not
be allowed to stifle the search for some general principles.
Just as the straightforward approach to prosecuting is to bring a charge in respect
of each offence of which there is prima facie evidence, so the straightforward
approach to sentencing is to impose a sentence for each offence of which there
is a conviction. The offender who is convicted of one crime receives one sentence;
the offender who is convicted of three crimes receives three sentences, each one
additional to the others. The logic of this approach, however, is far from perfect. It
begins to appear less straightforward when it is realized that, in certain instances,
the law may provide (and the prosecution charge) a number of offences where in
theory one would suffice, and in other instances the law may provide (and the pros-
ecution charge) one offence where it would be natural to think of two or three. For
example, the offence of aggravated burglary contrary to s. 10 of the Theft Act 1968
is apt to cover a case where a person commits burglary and has with him a firearm,

an offensive weapon or an explosive; therefore it is not necessary to charge such
aperson on one count with burglary and on a separate count with the offence of
possessing a firearm, offensive weapon or explosive substance. The law provides a
single offence, aggravated burglary, and the sentencer will naturally take account of
both elements of the crime (the burglary and the possession offence) in his calcula-
tions. On the other hand, crimes such as manslaughter and robbery do not specify
the use of a weapon; whilst prosecutors will usually add a charge under the Firearms
Act 1968 if the accused was carrying a firearm, it would be unusual to add a charge
of possessing an offensive weapon to a charge of manslaughter or robbery (since
the maximum penalty for offensive weapons is four years’ imprisonment).
From the point of view of calculating the total sentence, it should be immaterial
whether a firearms charge is added in such a case or not. The sentencer has all
the facts, the maximum sentence for manslaughter or robbery is sufficiently high to
6Thomas (1979), p. 55.
8.2 Concurrent or consecutive? 243
allow full account to be taken of any such aggravating factor, and it is highly unlikely
that these features of the case would be overlooked. But there would be a choice
as to how the sentence is expressed. If only manslaughter or robbery were charged,
obviously there would be a single sentence. If there were an additional conviction
under the Firearms Act, in theory the sentencer has a choice: if the decision is that,
say, nine years is the appropriate total sentence, this total be expressed in terms of
two consecutive sentences (e.g. six years for robbery, three years for the firearm)
or in terms of two concurrent sentences (e.g. nine years for robbery, with three
years concurrent for the firearm). The straightforward approach cannot deal with
this kind of problem, since it overlooks the vagaries of prosecutorial discretion and
of the shape of English criminal law. In some fields of activity the law provides
several separate offences, in other fields a single encompassing crime. Merely to add
asentence for each conviction ignores these quirks of history and convention.
This is not necessarily to suggest that prosecutors are abusing the criminal process
if, for example, they add a firearms charge to a principal charge of robbery or

manslaughter when it is perfectly clear that the maximum sentence for the principal
crime can accommodate any sentence the court might wish to pass. There are at least
four independent reasons for adding a charge relating to firearms (or explosives).
It ensures (i) that the user or carrier of firearms is clearly and separately labelled, in
court, in public and in his criminal record, as an offender willing to resort to such
means: if consistency can be attained among prosecutors and sentencers, then the
form of a criminal record will become a reliable indicator of whether or not the
offender is concerned with firearms, and this may assist in subsequent sentencing
(and parole) decisions; (ii) that the defendant has a distinct opportunity to challenge
this aspect of the prosecution case; and (iii) that if for some reason he is acquitted on
the principal charge, he maynevertheless be convicted on this ground; and (iv)in any
event the firearms offence might also relate to times and places other than those of
the principal offence. The second point might be met by more rigorous fact-finding
procedures before sentence, and the fourth by regarding this as a ‘fringe’ activity
which does not justify cluttering the indictment where there are much more serious
charges. But the first point may be considered important: the special heinousness
of firearms offences should be marked, even if the principal charge is very serious
in itself. If this is accepted, then the offender will be convicted of two crimes as a
result of a single incident. This bare fact – whether he is convicted of two separate
crimes, or the whole incident is brought under the umbrella of one crime – should
have no influence on the total sentence, despite the procedural questions about the
most appropriate approach.
8.2.1 The idea of concurrence
7
Where a court has to pass sentence for two or more offences, the sentences might
in theory be made concurrent or consecutive. Taking the question at the level of
7For a learned analysis of this notion in continental law, see Jareborg (1998).
244 Multiple offenders
principle, what does the notion of concurrence imply? Its most obvious reference is
temporal: offences committed concurrently ought to receive concurrent sentences.

Of course, concurrence in time is not a precise concept: if one offence follows
immediately upon another, or even rapidly upon another, one might be tempted to
refer to them as occurring at the same time and to treat them as parts of the same
incident. On the other hand, the longer an incident continues, the more serious it
usually is; therefore, irrespective of the procedural issue of whether a continuing
series of offences is thought to call for concurrent or consecutive sentences, it is
surely right that such a series of offences should be regarded ceteris paribus as a more
serious manifestation of criminality than a single such offence and as justifying a
greater total sentence.
Even where there is exact temporal concurrence, however, there might be other
reasons for arguing that concurrent sentences would be inappropriate. Consider
a case of burglary in which the offender enters the house, begins to steal items
and to pack them into a bag, is surprised by the occupier and strikes the occupier
in order to make good his escape. It would generally be said that the offence of
violence was committed at the same time as the burglary (although in strict legal
terms the offence of burglary might have been complete at the time he entered the
house);
8
in principle an offence of burglary accompanied by violence ought to be
regarded as more serious than burglary without violence; the crime of burglary
is not sufficiently broad to encompass all cases of violence;
9
therefore, it could
be both logically and morally appropriate to pass consecutive and not concurrent
sentences. Although the offences were concurrent in point of time, they violated
different kinds of legal prohibition (i.e. offences against property, offences against
the person). The offender ought to be labelled both as a property offender and as a
violent offender, and his criminality should be viewed more seriously than if he had
committed the property offence alone. However, there are still conceptual problems
(do violent offences and sexual offences violate the same or different interest?),

10
and these should be noted as an early indication of the problems to be encountered
throughout this chapter.
8.2.2 The general principle
English courts broadly follow the approach outlined above, so that where two or
more offences are separately charged and they form part of a ‘single transaction’, the
court should generally impose concurrent sentences. It is very difficult to construct
aworkable definition of a ‘single transaction’, especially since it seems to be little
more than a pragmatic device for limiting overall sentences rather than a reflec-
tion of a sharp category distinction. However, there are some clear cases, of which
8This would be true if the burglary were charged under s. 9(1)(a) rather than s. 9(1)(b) of the Theft
Act 1968.
9Burglary contrary to s. 9(1)(b) includes the infliction of grievous bodily harm, but no lesser form
of violence. Aggravated burglary (s. 10) involves the carrying, not the use, of a weapon.
10 Wells (1992), ch. 2.