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Neutral Citation Number: [2009] EWCA Crim 1896
Case No: 200806662 C4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 30th June 2009

B e f o r e:

LORD JUSTICE HOOPER 

MRS JUSTICE SWIFT DBE 
 
MR JUSTICE HAMBLEN 
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R E G I N A 

v 

DEBORAH TATTON
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Miss J Wallbanks appeared on behalf of the Appellant 
Mr D Bennett appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE HOOPER:  Deborah Tatton was convicted of a single count of theft at the Crown court sitting at Stoke‑on‑Trent, His Honour Judge Glenn and a jury.  She appeals against the conviction by leave of David Clarke J.  
2.	We can state the facts very simply.  On 10th May 2008, at 10.45 in the morning, the appellant and her daughter each took a trolley full of goods to the checkout of an Asda store in Stoke‑on‑Trent.  Each trolley contained goods totalling some £200‑£300 in value.  The cashier scanned only a small number of items from each trolley through the till, with the result that both women were undercharged and the majority of the items in their trollies were not paid for.  The appellant paid £19.48 by card for the goods in her trolley and her daughter paid £20.58.  The women were arrested in the car park whilst loading their shopping into the car.  The cashier was also arrested.  The daughter and the cashier admitted to planning this in advance and pleaded guilty to theft in the magistrates' court.  The appellant, on the other hand, pleaded not guilty and elected trial by jury.  
3.	It was the prosecution's case that the appellant was involved in the agreement between her daughter and the cashier to steal the goods.  It was, on the other hand, the defence case, supported by the evidence of the appellant, that she believed that she had paid for the goods in the trolley and that she was unaware of any scam that may have been arranged between her daughter and the cashier.  
4.	The ground of appeal is a simple one.  It has rightly been conceded by the counsel for the respondent, Mr Bennett.
5.	During the course of giving evidence the appellant, in answer to questions from her counsel, Mrs Wallbanks, who also represents her here today, said that her financial situation was healthy: in other words, she was seeking to put before the jury that her financial situation was such that she would not need to resort to theft of this kind.  We turn to the conclusion of her evidence.  Mrs Wallbanks re‑examined her and then the judge asked a series of questions:
"JUDGE GLENN: Mrs Tatton, can you just help me with this.  You told the jury that your financial situation of 10th May of 2008 was healthy.
A:  Yes.
Q:  Is that true?
A:  It is true, yes.  Then I'm in a better financial position now than I've ever been, to be honest.
Q:  Right.  I'm looking at a legal aid application you've filled in.
A:  Mm.
Q:  You and your husband's businesses were closed in 2000?
A:  Yes.  That's when we were suffering financial difficulty.
Q:  'We got into financial difficulty and are currently still trying to clear the outstanding debts'.  What are your debts?
A:  Still I had some county court judgments and some debts ‑‑
Q:  County court judgments?  Right.  Tell us a bit about those.
A:  It was all round at the same time.  Like I say, we both went self‑employed.  It wasn't really working.  I ended up with some business debts from the shop and we ‑‑ at that time we couldn't keep up with the bills.
Q:  How many county court judgments are there?
A:  I think I had three.
Q:  Does five ring any bells?
A:  I think my ‑‑ two ‑‑ two were my husband's.  So all together possibly five.
Q:  So you had jointly between you five?
A:  Yes.
Q:  What was the total amount involved?
A:  Not a lot.  They were quite small.  Quite small amounts.  I think the biggest one was £350 ‑‑ no, sorry.  £700 the biggest for water rates which was my husband's ‑‑
Q:  What was the total amount involved?  I'll ask you again.
A:  Say possibly about 2,000 ‑‑ no, probably a bit more than that, sorry.  About 3,000.
Q:  How does 4,000 sound?
A:  Yes, could ‑‑ could have been.
Q:  Which is what is specified in your legal aid application.
A:  Yes.  Could have been.  Round about that.  Without having the figures sort of in front of me, it's difficult.
Q:  Were you earning 29,500 in May of this year?
A:  28,500.
Q:  Sorry?
A:  20 ‑‑ 27,900.  Just had a 2 1/2% pay rise.
Q:  Would it be fair to describe you as struggling financially but managing to keep your head above water?
A:  No, no, not at the moment.  I'm managing to carry on clearing off those debts.
Q:  Well, why did you put that in your legal aid application?
A:  Because I'm honest so I like, you know ‑‑
Q:  Well, why have you just denied that that's the case?  These are your words.
A:  I'm not in ‑‑ I'm not in financial difficulty now.  At that time I was but I'm still managing to pay ‑‑ I'm still paying some of the things off but I'm still managing to survive and keep my head above water comfortably.  
Q:  A family of three ‑ you, your husband and a 15 year old son?
A:  Yes.
Q:  And you spend £250 a week, do you, in Asda?
A:  Sometimes, yes.
JUDGE GLENN:  Yes.  I've no more questions.  Thank you." 
It is submitted that the judge should never have asked those questions. 
6.	We refer, first of all, to the decision of the Court of Appeal in Winter [1982] 74 Cr App R 16.  In that case the trial judge, a recorder, had done precisely what the judge did in this case, namely question the defendant about the contents of his legal aid application form in order to undermine the evidence which the defendant had given.  The judgment was delivered by Tasker Watkins LJ VC.  Watkins LJ said this:
"Mr Harris, counsel for the appellant, very soon thereafter applied for a new trial on the basis that the questions which had been asked by the recorder and the answers which were provided to them could have done no other but to have caused irreparable prejudice to the appellant; so damaged his credibility that it lay in ruins.  Nothing thereafter he submitted which could possibly be said by the recorder could rectify that position.  Therefore a fair trial could no longer be had before the jury which was then trying the appellant.  Mr Harris asked the recorder to discharge that jury.  His request, made with that civility and dignity which typify the Bar in its relationship with the Bench, was treated with disdain, if not hostility.  It was with considerable hauteur that the recorder almost refused to listen to what the very polite Mr Harris was saying to him.  We gather the impression that the recorder felt insulted that so much as a slight criticism could be made of him and his conduct of the trial.  He said he had never heard such nonsense in all his born days and having 'sat in these courts now since January, 1972' he was not going to be told, believe it or not, that he was unfair.  He is about to be disabused.  He was being grossly unfair.  Judges must not take hold of material which is not evidence in the case and use it for the purpose which obviously this legal aid application form was used for, namely to damage the credit of a defendant when giving evidence in the witness box, or in any other way.
It behoved this recorder having regard to what he most regrettably did to have listened very carefully, and with a due sense of humility too, to counsel who had very sensibly and properly suggested a course which the recorder, in the view of this Court, ought to have adopted without demur, which was to have ordered a new trial." 
7.	There is also a further decision to a similar effect, albeit involving the prosecutor using the legal aid application: Stubbs [1982] 74 Cr App R 246.  
8.	That alone would be enough to justify a conclusion that the trial of this appellant was not fair, but the matter does not rest there.  The Registrar has drawn to our attention section 20 of the Access to Justice Act 1999.  Subsection (1) states that information which is furnished to the Commission or any court in relation to an application for legal aid "shall not be disclosed except as permitted by subsection (2)".  Subsection (2) provides in paragraph (d) that the information may be disclosed "except where regulations otherwise provide, for the purpose of the investigation or prosecution of any offence (or suspected offence) under the law of England and Wales or any other jurisdiction".  A regulation has been made, the Legal Services Commission (Disclosure of Information) (Amendment) Regulations 2000, as amended by the Legal Services Commission (Disclosure of Information) (Amendment) Regulations 2001.  As a result of that amendment the following clause was inserted into the 2000 Regulations:
"The Commission shall not disclose to the prosecuting authority any information which:
 (a) is in connection with a defence of the individual concerned; and
(b) may be used for the purposes of the prosecution of that case."
In other words, it would be unlawful for the prosecution to use the material upon which the judge placed reliance.  It must follow that the judge also was not entitled to use it of his own motion.
9.	In all those circumstances, we have no doubt that the appellant did not receive a fair trial.  The appeal is allowed, the conviction quashed, and Mr Bennett sensibly does not seek a re‑trial.

SMITH BERNAL WORDWAVE