Source: All England Reporter
Publisher Citation: [2008] All ER (D) 344 (Jun)
Court: Court of Appeal, Criminal Division

Maurice Kay, Plender J and the Recorder of Nottingham

Representation Stephen Requina (assigned by the Registrar of Criminal Appeals) for the defendant.
  Richard Cherrill (instructed by the Crown Prosecution Service) for the Crown.
Judgment Dates: 25 June 2008


Criminal law - Indictment - Aggravated burglary - Having an imitation firearm with intent to commit an indictable offence - Offences arising out of same incident - Whether second count should have been withdrawn following conviction of first count - Failure to leave second count as alternative offence - Whether conviction unsafe.

The Case

Criminal law Indictment. The defendant's appeal against conviction of aggravated burglary (count one) and having an imitation firearm with intent to commit an indictable offence (count two), on the ground that count two, which arose out of the same incident as count one, ought not to have been left to the jury as it simply duplicated count one, or that it should have been left as an alternative offence, would be dismissed. In the instant case, the failure of the judge to withdraw count two, or to direct that that count was an alternative count, did not give rise to any injustice to the defendant. It was merely a matter of case management which did not occur. The defendant had been tried on a valid indictment and no, let alone great, unfairness had accrued to her defendant as a result of the failure to withdraw count two or to leave it to the jury as an alternative count.

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