Graham & Ors, R. v [2004] EWCA Crim 2755

Case No 200402967/A7[2004] EWCA Crim 2755
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 22nd October 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE AULD
MR JUSTICE OWEN
MR JUSTICE HEDLEY
Between
R E G I N ACrown-v-
Between
CHERYL ANGELA GRAHAM AND ALBERT JOHN WHATLEY
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR L P MOLL appeared on behalf of GRAHAMMR R CIFONELLI appeared for CROWN IN THE APPEAL OF GRAHAMMISS C DAVENPORT appeared on behalf of WHATLEYMR S EARNSHAW appeared for CROWN IN THE APPEAL OF WHATLEY
J U D G M E N T
[1]Mr Justice Owen: These appeals raise the issue of the appropriate sentence in cases of benefits fraud and, in particular, of the continued applicability of the sentencing guidelines set by this Court in Stewart (1987) Cr App R(S) 135. In granting leave in Whatley the single

judge commented that:

"Stewart is generally regarded by sentencers as somewhat dated in the current climate of pervasive benefit fraud." echoing the observation of Rose LJ in Bendris [2000] 2 Cr App R(S) 183 at 184: "
It may be that, in the not very distant future it will be necessary for this Court to reconsider the level of sentences indicated in Stewart in the light of the continuing and increasing prevalence of social security fraud during the 13 years since that case was decided."[2]The appeal of Whatley also raises again the question of the proper approach to sentence in a case in which a defendant has been convicted on a number of specimen or sample counts, a situation which will often arise in cases of benefits fraud.[3]The Stewart Guidelines. In Stewart the judgment of the Court was given by Lord Lane CJ. He pointed out that there had been a sharp drop in the number of prosecutions for social security offences between 1980 and 1981 and 1983/1984, and explained that this was attributable to a change of policy, adding that:
"Nowadays the policy is for cases involving small amounts not to be prosecuted except where there are special features such as repeated fraud, or the necessity to provide a deterrent to a particular type of fraud prevalent in a particular locality."
[4]Secondly he observed that it was only a small proportion of offences of this nature that were dealt with in the Crown Court and that the deterrent effect of any Crown Court sentence was unlikely to be great. Lord Lane then indicated the appropriate level of sentence in such cases in the following terms:
"In some cases immediate unsuspended imprisonment (or youth custody) is unavoidable. At the top of the range, requiring substantial sentences, perhaps of two and a half years imprisonment and upwards, are the carefully organised frauds on a large scale in which considerable sums of money are obtained, often by means of frequent changes of names or address or of forged or stolen documents. Examples are Adams (1985) 7 Cr App R(S) 411, to which we have referred in the course of the appeals and applications today, and Dennehy which is a case in our list today. These offenders are in effect professional fraudsters, as is often apparent from their previous records. They have selected the welfare departments as an easy target for their depredations and have made a profitable business out of defrauding the public in this way. The length of the custodial sentence will depend in the first instance on the scope of the fraud. Of course, as in all fraud cases, there may be a variety of mitigating circumstances and in particular a proper discount for a plea of guilty should always be given. These cases bear little relation to the average offender in this area. As to the remainder, who form the great majority of those appearing in the Crown Court, the sentence will depend on an almost infinite variety of factors, only some of which it is possible to forecast ... Other considerations which may affect the decision of the Court are: (i) a guilty plea; (ii) the amount involved and the length of time over which the defalcations were persisted in (bearing in mind that a large total may in fact represent a very small amount weekly; (iii) the circumstances in which the offence began (e.g. there is a plain difference between a legitimate claim which becomes false owing to a change of situation and on the other hand a claim which is false from the very beginning); (iv) the use to which the money is put (the provision of household necessities is more venial than spending the money on unnecessary luxury; (v) previous character; (vi) matters special to the offender, such as illness, disability, family difficulties et cetera; (vii) any voluntary repayment of the amounts overpaid. Before sentencing the offender the court should consider the following questions which were set out in Clarke (1982) 4 Cr App R(S) 197 at 200: (i) is a custodial sentence really necessary? The fraud cases dealt with in the Crown Court (as already indicated) are likely to be relatively serious and a non-custodial sentence will often be appropriate; (ii) if a custodial sentence is necessary, can the court make a community service order as an equivalent to imprisonment, or can it suspend the whole sentence? It seems to us that a suspended sentence or (especially) a community service order may be an ideal form of punishment in many of these cases; (iii) if not, what is the shortest sentence the court can properly impose? If immediate imprisonment is necessary, a short term of up to about nine or 12 months will usually be sufficient in a contested case where the overpayment is less than, say, £10,000."
[5]Lord Lane's observations as to the aggravating and mitigation features of such offences do not require any modification. But there are three issues that have been raised for our consideration: first, whether the figure of £10,000 suggested by Lord Lane as a guide to the appropriate level of sentence should be updated; secondly, whether it remains the case that deterrence is a factor of limited application in such cases; and, thirdly, whether the guidelines reflect current sentencing practice.[6]The Effect of Inflation. As to the first there has been a substantial fall in the value of money since 1987. In Clark [1998] 2 Cr App R(S) 95, a case involving a theft and breach of trust, this Court adjusted the figures by reference to which guidelines were set in Barrick (1985) 7 Cr App R(S) 142, to take account of inflation. In Barrick Lord Lane CJ advanced guidelines defined by reference to the figures of £10,000, £50,000 and £100,000. In giving the judgment of the Court in Clark, Rose LJ said that:
"The effect of inflation since Barrick means that approximately £17,000, £85,000 and £170,000 are the present day equivalents of respectively £10,000, £50,000 and £100,000."
[7]The Court went on to adjust the guidelines by reference not only to the effect of inflation on the guidelines in Barrick, but also to other considerations, such as the increase in the scale of white collar crime and the changes in the law with regard to remission and parole in the following terms:
"Where the amount is not small, but is less than £17,500, terms of imprisonment from the very short up to 21 months will be appropriate; cases involving sums of between £17,500 and £100,000, will merit two to three years; cases involving sums between £100,000 and £250,000, will merit three to four years; cases involving between £250,000 and £1 million will merit between five and nine years; cases involving £1 million or more, will merit ten years or more."
[8]The decision in Clark is not only relevant to the need for sentencers to be aware of the effect of inflation on sentencing guidelines, but is also relevant to the relationship of sentences for benefit frauds to sentences for other types of fraud, a point to which we shall return. As to the effect of inflation, the inflation table in Kent and Kent Volume 1 0-1189 indicates that the current value of £1.00 in January 1987 is approximately £1.80. If the Stewart guidelines are to continue to apply, then plainly the figure of £10,000 should be revised.[9]The Deterrent Element. The second issue is whether it remains the case that deterrence is a factor of limited application in sentencing such offenders. In Stewart, and having considered the statistics as to such offences, and the policy adopted by prosecuting authorities, Lord Lane said:
"We have ventured to go into matters at some length to show that it is only a small proportion of offences of this nature which are dealt with in the Crown Court and to demonstrate that the deterrent effect of any Crown Court sentence is unlikely to be great. This is because any one minded to embark upon this sort of fraud, unless he had a large scale operation in mind, or the fraud is blatant, is unlikely to find himself in the Crown Court. If prosecuted at all, the run of the mill offence is almost certain to be before the Magistrates."
[10]He continued at page 140:
"For the reasons we have mentioned earlier in this judgment, we do not think that the element of deterrence should play a large part in the sentencing of this sort of case in the Crown Court."
[11]As Lord Lane said in Stewart, such offences are easy to commit and difficult and expensive to detect, as is illustrated by the facts of both the appeals before us. Furthermore, and as Rose LJ observed in Bendris, social security fraud is increasingly prevalent. In our judgment, there will be cases in which courts will be justified in taking the view that a sentence should contain a deterrent element.[12]Relevant Decisions Since Stewart. The third issue is whether the guidelines reflect current sentencing practice. As to that, it is first necessary to consider a number of decisions of this Court in cases of benefit fraud since the decision in Stewart. Current Sentencing Practice B6-33F22 provides a helpful selection of such decisions, but there are a number of other decisions that are of assistance.[13]In Bolarin the appellant pleaded guilty to 11 counts of obtaining money by deception, having made fraudulent claims for income support and unemployment benefit over a period of 21 months obtaining a total of £18,500. The claims were fraudulent from the outset. He was sentenced to two years imprisonment, but on appeal the sentence was reduced to 15 months in the light of Stewart.[14]Jowitt J, who gave the judgment of the Court, indicated that the case plainly went some considerable way beyond the nine to 12 month bracket in Stewart falling:
"Somewhere between the worst kind of case and that kind of case near the worst kind of case."
[15]In Browne the appellant pleaded guilty to 15 counts of obtaining by deception and false accounting, and asked for 68 offences to be taken into consideration. He had obtained a total of £5,208 over a period of 18 months by making fraudulent claims for benefit in the names of his brother and another man. He was sentenced to a total of 18 months imprisonment. Guided by the decision in Bolarin the Court reduced the sentence to a total of one year.[16]In Tucker (1994) 15 Cr App R(S) 349, the appellant pleaded guilty to four counts of obtaining by deception, and asked for 43 similar offences to be taken into consideration. The appellant claimed supplementary benefit when her husband left her. Five years later she became employed, but continued to obtain benefit order books by representing that her circumstances had not changed. She drew benefit to which she was not entitled for about 18 months. The sum involved was approximately £1,500. She was sentenced to six months imprisonment. The appellant was a woman of mature years of previous good character with responsibilities for her family. She had pleaded guilty and had started, to the best of her ability, to repay what she had dishonestly obtained. In giving the judgment of the Court Judge J, as he then was, said that the sentencing judge had fairly balanced such mitigating features against the aggravating features of the case, namely:
"... deliberate, persistent, and, it must be said, systematic fraud which involved dishonest acquisition of thousands of pounds of public money."
Her appeal was dismissed.[17]In Weild the appellant pleaded guilty to eight counts of obtaining by deception and asked for 283 offences to be taken into consideration. She claimed benefit in various forms over a period of three years by failing to disclose that she was co-habiting, that she was working during part of the relevant period, and that she had capital assets, receiving a total of just under £15,000. She was sentenced to 15 months imprisonment, a sentence that was upheld on appeal.[18]In Adewuyi [1997] 1 Cr App R(S) 254, the appellant was convicted of ten offences of theft and five of obtaining services by deception. She had made false claims for child benefit, income support and housing benefit over a period of four years. The claims had been made both in her own name and in other names. The total sum involved was in excess of £100,000. She was sentenced to four years imprisonment, a sentence that was upheld on appeal.[19]Nwoya and others [1997] 2 Cr App R(S) 1, was a case of conspiracy to defraud the DSS by making false claims for benefit. A total of 59 claims were made over a period of 21 months. Payments in excess of £300,000 were obtained. The fraud was facilitated by means of information obtained from a DSS computer by one of the appellants, an employee of the Department. Two of the appellants, including the employee of the Department, were sentenced to six years imprisonment, a third to four years. In giving the judgment of this Court, McKinnon J indicated that by reference to the level of sentences for mortgage fraud:
"It does seem to us that the appropriate sentence on a plea of guilty in cases of this kind is one of three and a half years to four years imprisonment which would mean, after a contested trial, a proper sentence would be of the order of six years imprisonment."
[20]In Oyediran [1997] 2 Cr App R(S) the claimant made false applications for benefit over a period of three years, stating that he had no other source of income when he was at one stage in receipt of a student grant and subsequently employed on a part time basis. He obtained £18,105 and was sentenced to 18 months imprisonment. His appeal was dismissed. In giving the judgment of the Court Lord Bingham CJ said:
"In our judgment the sentence which the judge imposed was severe but not manifestly excessive. Were it to be reduced at all, it would be reduced by so small an amount as to lay the Court open to justified reproach. In our judgment the sentence is not one with which this Court should interfere."
[21]In Armour and Sherlock [1997] 2 Cr App R(S) 240, the appellants conspired to obtain money from the DSS by obtaining and using stolen benefit books. One admitted obtaining a total of £1,300, the other £809. Both were sentenced to 18 months imprisonment. The sentences were upheld on appeal, the Court expressly taking account of the increased prevalence of this type of offence and of the degree of organisation and sophistication involved.[22]In Ellison [1998] 2 Cr App R(S) 382, the appellant pleaded guilty to five counts of obtaining by deception and asked for 88 other offences to be taken into consideration. He had claimed income support over a period of years on the basis that neither he nor his wife were working, when in fact his wife had worked throughout the period. Benefits fraudulently obtained amounted to £10,948. He was sentenced to a total of 15 months imprisonment. The principal ground of appeal was that the total sentence was outside the guidelines set in Stewart. It was also argued that the Court should take account of the effect of inflation. The Court came to the conclusion that the sentence was too high in the light of Stewart and should be reduced to a total of ten months imprisonment.[23]In Rosenburg [1999] 1 Cr App R(S) 365, the appellant was convicted on nine counts of obtaining by deception. The total sum involved in the counts was approximately £2,000 paid by way of income support, when in fact the appellant had been operating a business known as the UK Glamour Models and Entertainment Limited by which he acted as agent for aspiring dancers throughout the relevant period. The evidence adduced at trial also demonstrated that during the relevant period he was living an extravagant lifestyle, driving a Porsche motor car and acquiring two properties which were let to tenants. He was sentenced to 30 months imprisonment. On appeal this Court concluded that, given the sums involved in the counts upon which the appellant was convicted, the sentences imposed upon him were manifestly excessive. They were reduced to sentences totalling two years imprisonment.[24]In Bendris [2002] Cr App R(S) 183, the appellant pleaded guilty to conspiracy and to obtaining by deception. He had conspired fraudulently to claim income support and job seekers allowance for a period of over four years. The claim had been made on the basis of a fictitious unemployed person, a false passport bearing the appellant's photograph being used to support the claim. He was sentenced on the basis that £10,000 had been paid in benefits as a result of his activities. In giving the judgment of the Court, Rose LJ indicated that the Court was approaching the matter in accordance with Ellison, and on that basis reduced the sentence to ten months imprisonment.[25]Finally in Cheryl Eleanor Evans [2000] 1 Cr App R(S) 144, the appellant pleaded guilty to four counts on an indictment containing 24 counts and was convicted on the remaining counts. The offences related to involvement in a housing benefit fraud. She had claimed housing benefit in respect of premises where she lived, when in fact the house was the property of the local council. Claims were also made in false names, supported by false details of a fictitious landlord, in respect of several further addresses. She was sentenced to three years imprisonment on each count concurrently. As Mantell LJ observed in giving the judgment of the Court:
"... this was a persistent and sophisticated fraud which displayed considerable guile on the appellant's part."
But the sums involved in the offences for which she was convicted totalled only £2,807. With the decisions of Stewart and Adewuyi in mind, the Court allowed the appeal, albeit with some misgivings, and reduced the sentence to two years imprisonment concurrently on each count.[26]Mr Earnshaw, who appeared for the Crown in Whatley, helpfully provided us with some statistics as to the incidence of such fraud derived from the 31st report of the Public Accounts Committee published in 2002. The Department of Works and Pensions then estimated that more than £2 billion per annum is lost in benefit fraud. Secondly, he informed us that last year between 12,000 and 14,000 cases of benefit fraud were prosecuted by the Department with 80 per cent being dealt with in the Magistrates' Court. Less than 150 defendants were sent to prison, the average sentence in such cases being in the bracket of six to nine months. Those figures suggest that the overwhelming majority of such offences are committed by omission, that is to say where the defendant has been lawfully in receipt of benefit but fails to inform the Department of changes of circumstances affecting their entitlement, and by those who are able to pray in aid substantial mitigation, persons of good character, often with dependent children for whom the conviction has had a devastating effect.[27]Sentencing guidelines for comparable offences. We have already referred to Barrick in the context of the effect of inflation on sentencing guidelines. But it is noteworthy that in Olusoji (1994) 15 Cr App R(S) 356, a case of benefit fraud, a court presided over by Lord Taylor CJ indicated that the Barrick guidelines were relevant when considering deliberately persistent frauds involving public money. All will depend on the circumstances of the individual case, but as a general proposition benefit frauds will be less serious an offence than frauds committed in breach of trust, the subject of the Barrick guidelines.[28]In this context Miss Davenport, who appeared for the appellant Whatley, also referred us to the guidelines involving the evasion of duty on tobacco and alcohol recently set in Czyzewski [2004] 1 Cr App R(S) 49 at 289. The Court indicated that following trial for a defendant with no relevant previous convictions and disregarding any personal mitigation, the following starting points were appropriate:
"(i) where the duty evaded was less than £1,000, and the level of personal profit was small, a moderate fine, if there is particularly strong mitigation, and provided that there had been no earlier warning, a conditional discharge might be appropriate; (ii) where the duty evaded by a first time offender is not more than £10,000 ... or the defendant's offending is at a low level ... a community sentence or curfew order enforced by tagging, or a higher level of fine; the custody threshold is likely to be passed if any of the aggravating features ... is present. (iii) where the duty evaded is between £10,000 and £100,000, whether the defendant is operating individually or at a low level within an organisation, up to nine months custody ... (iv) when the duty evaded is in excess of £100,000, the length of the custodial sentence will be determined, principally, by the degree of professionalism of the defendant and the presence or absence of other aggravating features; subject to this, the duty evaded will indicate starting points as follows: £100,000 to £500,000, nine months to three years; £500,000 to £1 million, three to five years; in excess of £1 million ... five to seven years."
[29]Excise duty cases are very different in nature from benefit fraud, but help to set the context within which to consider the Stewart guidelines.[30]The decision in Kefford. In Kefford Lord Woolf CJ, who sat with Rose LJ and Judge LJ, considered the problem presented by the overcrowding of the prison system. In giving the judgment of the Court, Lord Woolf observed that in the present situation it is of greatest importance to the criminal justice system as a whole that only those who need to be sent to prison are sent to prison, and that they are not sent to prison for any longer than is necessary.[31]In the course of his judgment he also drew attention to the recent decision in Mills [2002] 2 Cr App R(S) 52 at 229, in which similar guidance had been given in the context of the dramatic rise in the female prison population. At page 498 he addressed the approach to economic crimes in the following terms:
"In the case of economic crimes, for example obtaining undue credit by fraud, prison is not necessarily the only appropriate form of punishment. Particularly in the case of those who have no record of previous offending ... Certainly, having to perform a form of community punishment can be a very salutary way of making it clear that crime does not pay ..."
[32]Conclusions. We draw the following conclusions from that analysis. 1. If Stewart is to continue to apply, the figure of £10,000 should be updated for inflation. 2. There will be cases in which a sentence should properly reflect an element of deterrence. 3. The decisions to which we have been referred are broadly consistent with Stewart. In Armour and Sherlock Newman J suggested that the increasing prevalence of such offences had led to a more serious view of such offences being taken by the courts, but the heavier sentences that have been imposed in some cases are readily explicable by reference to aggravating features and to an element of deterrence. 4. In the light of our conclusion at 3 and taking account of the guidelines for comparable offences and of the decisions of the Court in Kefford and Mills, we do not consider that the Stewart guidelines require a revision, save in relation to the effect of inflation. 5. Accordingly, we consider that where imprisonment is necessary, short terms of up to about nine to 12 months will usually be sufficient in a contested case where the over payment is less than £20,000.[33]As we have already indicated, the aggravating and mitigating features identified in Stewart do not require modification or amplification. As Lord Lane observed, sentences will depend upon an almost infinite variety of factors. Serious aggravating factors, such as the obtaining of large sums, frauds persisted in over length periods, claims for benefit that are fraudulent from their inception, sophisticated fraud involving the use of false and/or multiple identities, the maintenance of an extravagant lifestyle over the periods in question, will be likely to result in substantial periods of imprisonment.[34]We turn then to consider the two appeals before us.[35]Whatley. On 25th March 2004 the appellant, Albert John Whatley, who is now 64 years of age, was convicted on an indictment containing 13 counts of benefit fraud and on 14th March was sentenced to a total of two and a half years imprisonment. He appeals against that sentence with the leave of the learned single judge.[36]The Crown's case in essence is that for a considerable period the appellant claimed sickness benefit to which he was not entitled. He was working as a street trader at East Street Market, Southwark. The story begins in September 1994 when the appellant first made a claim for sickness benefit, claiming that he was unable to work because of degenerative osteoarthritis. In May 1997 the appellant completed an A2 Review Form, by which, as its name suggests, his claim for income support was reviewed, and in which he declared that he was not working either full-time or part-time and that he had no other income. Between May 1997 and the end of the period covered by offences in the indictment, July 2001, the appellant received benefits, both income support and mortgage interest repayments, totalling in excess of £90,000. But from 1992 the appellant held a casual trader's licence for the East Street Market issued by Southwark Council. In April 1997 he applied successful for it to be upgraded to a permanent street licence.[37]It was the Crown's case that the appellant had worked as a street trader for the period covered by the indictment, namely from May 1997 to July 2001, and as a casual street trader since 1992, but had not declared such work and the income that it generated to the Department of Works and Pensions, in other words that he was guilty of benefit fraud. The Crown adduced evidence that the appellant was seen by trading inspectors at his pitch serving people and paying over his rent. At other times there were what were described as 'assistants' working the pitch or providing temporary cover. Evidence was also adduced as to approximately 16 trips made by the appellant to France between February and September 2001. On three of those trips he was stopped by Customs and Excise, and found to have alcohol and cigarettes in his car. The Crown argued that such evidence proved he was well enough to drive a car to a ferry, take a day trip and load his car with goods, and that it also showed that he could afford the goods.[38]There was also evidence that during the relevant period the appellant had made an agreement with his bank to pay monthly instalments of approximately £700 off his mortgage. The appellant began to make such payments from September 1998. The amounts varied, and in some months nothing was paid at all, but the payments totalled £21,600.[39]In a number of voluntary statements, not made under caution, the appellant maintained that he had never worked at the market. He said that others ran his stall and that he had not received any financial benefit from it. He denied taking trips to France, except one in 2001 when he had been apprehended by Customs and Excise.[40]As we have already indicated, the indictment contained 13 counts. The first count was a charge of false accounting contrary to section 17(1)(a) of the 1968 Theft Act which related to Form A2 completed by the appellant in May 1997. Counts 2 to 11 inclusive also alleged offences contrary to section 17(1)(a). Each related to the falsification of a document required for an accounting purpose, namely a paid order in the name of Albert John Whatley. They covered the period August 2000 to July 2001. Count 12 alleged that the appellant dishonestly obtained a money transfer in the sum of £1,048.74 on or about 28th April 1997 by deception, namely by falsely representing that he was entitled to claim income support and thereby still entitled to receive mortgage interest benefit, an offence contrary to section 15(1)(a) of the Theft Act. Count 13 was an identical offence committed on 14th June 2001. On count 1 the appellant was sentenced to 30 months imprisonment; on counts 2, 3 and 4, nine months imprisonment on each concurrent and concurrent with count 1; on counts 5, 10, 11, 12 months imprisonment on each count concurrent with count 1; on count 12, nine months concurrent; and on count 13, 18 months concurrent, giving a total sentence of 30 months imprisonment.[41]In passing sentence the learned

judge referred to the decision in Stewart and continued:

"Put simply, blatant fraudsters such as you are devoid of any conscience about the fact that you are not only helping yourself to honest tax payers' money, but also taking the bread out of the mouths of those who genuinely need it. I am quite satisfied, and it is conceded, that these offences are so serious that only a custodial sentence is justified. In my judgment the only issue is length."
[42]The learned judge then went on to address the proper approach to sentence in a case where a defendant has been convicted on a number of sample counts. As we have already indicated, the Crown adduced evidence that the total of the benefits received by the appellant during the period in issue was in excess of £90,000. But sums involved in the counts in the indictment totalled approximately £3,100. The learned judge approached the sentencing exercise on the basis that there was no dispute that the sum in excess of £90,000 received by way of benefits could all be traced back, as he put it, to the fraudulent A2 Review Form. He continued:
"That enables me to say, whilst keeping faith with the case of Cheryl Evans, that here one has on the indictment very much what their Lordships had in mind, an incepting claim. Count 1, the review form, subsequent counts being stepping stones, each in themselves all relatively small amounts, but demonstrating the period over which the fraud was perpetrated and thus going to prove period rather than amount, amount being accepted in the bundle and accepted in the course of the mitigation."
[43]It is submitted on behalf of the appellant that the judge's approach was wrong in principle and contrary to authority. Miss Davenport took as her starting point the decision the decision of this Court in R v Canavan, Kidd and Shaw [1998] 1 Cr App R(S) 79 at 243, in which the judgment of the Court was given by Lord Bingham, then Lord Chief Justice. Lord Bingham began his judgment in the following terms:
"These three appeals raise a common issue of principle concerning specimen or sample counts in an indictment. The issue may be expressed as follows: 'If a defendant is indicted and convicted on a count charging him with criminal conduct of a specified kind on single specified occasion or on a single occasion within a specified period, and such conduct is said by the prosecution to be representative of other criminal conduct of the same kind on other occasions not the subject of any other count in the indictment, may the court take account of such other conduct so as to increase the sentence it imposes if the defendant does not admit the commission of other offences and does not ask the court to take them into consideration when passing sentence?'."
[44]The question was of great practical importance to those responsible for preparing indictments, differing answers to it having been given by this Court in Clark [1996] 2 Cr App R(S) 351 and in Bradshaw [1997] 2 Cr App R(S) 128.[45]At page 84E Lord Bingham concluded that the Court reached the correct conclusion in Clarke:
"... and to the extent that that decision is at variance with other authority it is in our judgment to be preferred."
[46]Clark was a case of indecent assault on a male person in which the indictment contained a single specimen count. In giving the judgment of the Court, Henry LJ said at page 357:
"When you have specimen counts in (say) thefts or benefit frauds, then on conviction in the specimen counts there is reasonable chance that the defendant will admit the others -- first the prosecution should have no difficulty in proving them, and second, the slate will be wiped clean only if the defendant does admit them. Those pressures are less likely to apply with specimen counts in sexual cases. First, offenders of this kind are often in denial at this stage. Secondly, they will be well aware that the prosecution will be unwilling to make the victim give evidence again. So what is to be done? We regret that we can do no better than to suggest that prosecutors charge sufficient offences fairly to reflect the criminality of the offending."
[47]Clark and Canavan have been followed in a number of cases involving benefit fraud. In Rosenburg, to which we have already made reference, the appellant was convicted on nine counts of obtaining income support by deception. He had claimed income support on the basis of incapacity to work in 1992, and he was paid continuously until March 1996. The prosecution limited the counts to a period from the beginning of 1994 to mid-1996, because that was when the business was most profitable. The total amount obtained in that period was £30,000, whereas the sums specified in the counts of the indictment totalled only £2,500. In passing sentence on the basis of the total amount received by the appellant, the sentencing

judge said:

"It is wrong for a judge to usurp the function of the jury where there is a genuine possibility that they could have acquitted the defendant of an offence or offences which have not been charged. However, I cannot believe that the decision in Clark was intended to restrict me to the sentence upon the basis of simply nine offences in this case. The nine representative charges cover the whole two and a half year period. The facts remain the same throughout the period. The defendant was drawing the same benefit each week while working in the same way. It is inconceivable to me that the jury would not have convicted him of all the other charges that could have been placed on the indictment for the periods in between, I notice the jury are nodding their heads."
[48]Those observations are understandable given what Lord Bingham CJ acknowledged in Canavan to have been the long standing practice of prosecuting authorities to frame indictments said to be representative of other criminal offences of like kind committed by a defendant, and the practice of the courts to pass sentences that took account not simply of the isolated instances specified in the counts, but also of the conduct of which, on the evidence adduced by the prosecution, those counts were representative. But this Court held that the sentencing judge fell into error in not following Canavan, and that the appellant ought to have been sentenced on the basis of the sum involved in the counts on the indictment and not on the basis of the sums received over the whole of the period in issue.[49]Similarly in Cheryl Eleanor Evans the appellant was charged with housing benefit fraud over a period of four and a half years. She pleaded guilty to four counts and was convicted on a further 20 counts. The sums involved in the counts to which she either pleaded or was found guilty amounted to £2,807, whereas the prosecution contended that she was involved in a sophisticated fraud involving a sum in excess of £25,000 over the period in question. In passing sentence the judge specifically stated that he was sentencing her for a fraud involving £25,000.[50]After reviewing the decisions in Clark and Canavan and referring to the decision in Rosenburg Mantell LJ said:
"In the case of this appellant we have some sympathy with the trial judge when he came to pass sentence. The prosecution had presented their case against her in 24 counts. We are told that, had every cheque which had been procured been included in this indictment as a separate offence, there would have been 200 counts or more. We cannot see any judge embarking upon a trial with a jury in those circumstances with any degree of enthusiasm and without firmly insisting that the number of counts be substantially reduced. Likewise, it might well be considered unacceptable to proceed on a number of separate indictments. Also we regard it as unrealistic to expect any defendant who has contested a case of this nature, upon being convicted to ask, for offences to be taken into consideration which she has hitherto denied. The consequence may well be that a defendant who has pleaded guilty and confessed the full extent of his fraud may be treated more harshly than a defendant who has contested the matter but has been only convicted in respect of so-called specimen counts. We have no doubt that the anomaly will be exploited by those who otherwise have no answer to a multitude of charges, a tactic of which this case is an acute illustration. Also it may be that some will attempt to apply the undoubted logic of Clark and Canavan to other situations, perhaps in connection with Newton hearings, or other occasions on which hitherto the judge has been able to form his own view of the facts as to the basis of the jury's verdict. However, it is not within the province of this Court and certainly not on this occasion to suggest any solution. It may be it is something which can be overcome by the ingenuity of those who frame indictments. For the time being, however, we simply remark that the position is far from satisfactory."
[51]Those are observations with which we wholeheartedly agree. In so doing we respectfully part company with Lord Bingham, who, in Canavan, had suggested that prosecuting authorities would wish in the light of the decision in Clark to include more counts in some indictments saying:
"We do not think this may be unduly burdensome or render the trial unmanageable."
[52]The problem presented by Canavan which is graphically illustrated by the two cases before us; Whatley in which the appellant stands to be sentenced for dishonestly obtaining £3,000, when it was the Crown's case that he had received in excess of £90,000 by fraud, and Graham in which the appellant pleaded to an indictment containing ten counts, but asked for 471 counts to be taken into consideration, has been addressed by the Law Commission in its paper no 277 The Effective Prosecution of Multiple Offending. We are grateful to Mr Earnshaw for drawing it to our attention.[53]The executive summary contains the following paragraphs:
"3. The logic and correctness in principle of this decision [the decision of Canavan] cannot be faulted and we do not seek to do so. The decision does, however, pose an intractable dilemma for prosecutors and the courts in cases such as multiple theft and multiple fraud. In essence it counterposes the inability of a court to deal with an indictment with hundreds of separate counts with the inability to sentence for the totality of offending in the absence of a decision on each instance of offending. The problem is an important one because the consequence of the impracticability of prosecuting the full extent of dishonest offending in such cases is that the vast majority of such offending will not be prosecuted and the offenders will escape appropriate sanction. We have been told that the practice of fraud squads faced with this problem is to charge merely a handful of offences, making no attempt to reflect the full criminality in any given case. Clearly this is not a desirable solution. From the judiciary, we have heard that the present law is found to be "pedantic and unworkable', and the senior judges whom we have consulted recognise that 'very real inherent difficulties' exists. 4. Under the present system (where there is a limit to the number of separate counts, each containing a single offence, that can be managed within a jury trial) it is not possible to give full respect to each of the following two fundamental principles. To some degree, one is bound to yield to the other. The principles are: (1) Defendants should only be sentenced for that which they have admitted, or which has been proved following a trial in which both sides can be examined on the evidence. (2) It should be possible to sentence for the totality of an individual's offending. Defendants should not escape just punishment because the procedure cannot accommodate this. 5. The legal system should operate so as to reflect in full each of these fundamental principles. The constraints that prevent full recognition being given to both of these principles are threefold: (1) the requirement of all issues that go to guilt must, if not admitted, be proved to a jury/magistrates; (2) the strict limitations to the inclusion of more than one offence in any single charge/count; (3) the limit to the number of separate counts or charges that can be managed within a trial."
[54]The Law Commission proposed a number of possible solutions. All would require primarily legislation. Unless and until there is such legislation prosecutors and judges will continue to be faced with an intractable problem.[55]In the case of Whatley the learned judge sought to distinguish Canavan and Evans on the basis that in Evans there were no concessions, whereas in this case there was no dispute, as he put it, that the whole of the sum of approximately £90,000 could be traced back to the fraudulent A2 Review Form. In our judgment, that attempt was misconceived for two reasons. First, although it was not conceded that a total sum in excess of £90,000 had been received by way of benefits during the relevant period, it was conceded that the appellant had not been entitled to benefits throughout that period. On the contrary, it was the defence case that he had not been working. The highest that it could be put was that the Crown was able to satisfy the jury that the appellant had not been entitled to receive benefit on the dates specified in the counts in the indictment. Secondly, the A2 Review Form was a declaration that at that date the appellant was not working. It was not, and could not be, a declaration as to the future. That is no doubt why the system for claiming benefit requires the recipient to sign a declaration in a benefit book on each occasion that he or she receives benefit; hence counts 2 to 11 of the indictment.[56]It follows that, in our judgment, the valiant attempt by the learned judge to circumvent the decisions in Clark and Canavan was misconceived and that he erred in imposing a sentence on count 1 intended to reflect the receipt of over £90,000 by dishonest means. The appellant stood to be sentenced for offences of fraud involving a total of approximately £3,100.[57]The second limb of the appeal in Whatley is that the learned judge gave insufficient weight to the personal mitigation available to the appellant. It is submitted that it was accepted by the judge that this was not a sophisticated fraud and that the appellant had not sought to conceal his identity. Secondly Miss Davenport prayed in aid that the appellant is a family man with two daughters and grand children. At the date upon which he was sentenced his 90 year old father, to whom he was very close, was dying of cancer. Sadly, his father has since died.[58]According to the appellant's general practitioner, who gave evidence at the trial, the appellant has suffered from chronic degenerative osteoarthritis for many years, and has undergone numerous operations to his knee and shoulder. He is not able to sit or stand for long periods, or walk unaided further than 50 metres. As a result of his disabilities he has been clinically depressed. We are satisfied that in those circumstances life in prison will inevitably be very hard. We were also informed that since being sentenced to imprisonment the appellant has twice undergone surgery and currently has to use crutches. As a result, he cannot be moved to an open prison.[59]We are satisfied that the learned judge was right to conclude that the offences crossed the custody threshold. These were deliberate and persistent offences, committed over a considerable period. As Miss Davenport conceded in the course of argument, the claims were fraudulent from their inception. We also take account of the fact that during the period in which the offences were committed, the appellant made a number of trips to France to buy alcohol and cigarettes, and was able to pay some £21,600 off his mortgage.[60]But constrained, as we are, by the decision in Canavan and in the light of the guidance afforded by Stewart, as updated, the total sentence of 30 months imprisonment was plainly manifestly excessive. In our judgment, the appropriate sentence would have been one of 12 months imprisonment on each count concurrently. The appeal is therefore allowed, and we substitute sentences of 12 months imprisonment on each count concurrently.[61]Graham. On 25th March 2004 Cheryl Graham pleaded guilty to ten offences of benefit fraud at Stratford Magistrates' Court. She asked the court to take a further 471 offences into consideration and was committed to the Crown Court at Snaresbrook for sentence. On 20th April 2004 she was sentenced to two years and six months imprisonment concurrently on each offence.[62]The appellant is 36 years of age. She lives with a dependent child, her son, who was aged 17 at the time of her appearance at the Crown Court. She was a woman of good character. In December 1992 she started receiving benefits, both income support and housing benefit, on the basis that she was separated from her partner and was not earning. She continued to receive such benefits until 2002, when she applied to change from income support to incapacity benefit. Investigations then revealed that she had been in employment since June 1992 before she began to receive benefits. During the period in question she received income support amounting to £34,500 and housing benefit of £16,000, a total in excess of £50,000. Of the ten charges to which she pleaded guilty five related to the housing benefit and were based on the annual declarations as to her financial circumstances made in the years 1998 to 2002. The remaining five charges related to income support. They were sample charges, but the 471 offences that she asked to be taken into consideration related to income support paid on a weekly basis from 6th September 1993 and 3rd February 2003. When arrested and interviewed, the appellant made a full admission.[63]It was submitted on her behalf that the sentencing judge failed to have regard to the mitigation available to her. She was of good character, pleaded guilty at the first opportunity, showed genuine remorse for her actions and was deeply distressed by her contact with the police and the courts, of itself a substantial punishment. It was further submitted that the offences were committed against a background of very modest earnings on which she had been unable to cope. The offences were not committed to support an extravagant lifestyle. On the contrary, in September 2002, a year before her arrest, she had submitted to an administration order in the county court. Finally, the appellant is a woman who had suffered from abusive relationships in the past, which had had a detrimental effect upon her son, who had been repeatedly excluded from school, and upon the appellant herself. The medical records show that she had suffered from severe depression, and on two occasions had attempted to commit suicide. It is also submitted that the sentencing judge failed to pay sufficient regard to the decisions of this Court in Kefford and Mills, decisions to which we have already made reference.[64]In passing sentence the learned

judge said:

"... these offences show, in my judgment, a prolonged and deliberate course of fraud. You knew at all times that you were not entitled to these benefits, they are a fraud on all other tax payers, it is a very serious matter. The tax system relies, essentially, upon people's honesty, it would rapidly deteriorate into chaos if it could not rely on people's honesty. You were thoroughly dishonesty and dishonest on a prolonged scale and on a large scale."
[65]Those are observations that we strongly endorse. In our judgment, the learned judge was fully justified in forming the view that, taken together, the offences were so serious that only a custodial sentence was warranted.[66]Against the substantial personal mitigation available to the appellant, there were a number of serious aggravating features. The appellant persisted in her fraud on the state over a period of ten years. She received a total of approximately £59,000. Her claims to benefit were fraudulent from the outset.[67]Taking full account of her pleas of guilty and of the mitigating factors that we have summarised, we have come to the conclusion that the appropriate sentence in her case was one of 18 months imprisonment. Accordingly, we are satisfied that the sentences imposed upon her were manifestly excessive. Her appeal is allowed and we substitute sentences of 18 months imprisonment on each count in the indictment to be served concurrently.

Cited in 1 later judgment