B e f o r e :
LORD JUSTICE WATKINS
MR. JUSTICE BUSH
and
MR. JUSTICE IAN KENEDY
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REGINA
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MICHAEL JOHN SILVERMAN
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(Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd.,
Pemberton House, East Harding Street, London EC4A 3AS. Telephone Numbers: 01-583 7635, 01-583 0889. Shorthand Writers to the Court)
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MR. M. HOPMEIER appeared as Counsel on behalf of the Appellant.
MR. C. MITCHELL appeared as Counsel on behalf of the Crown.
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LORD JUSTICE WATKINS: On 22nd January, 1967, after a four or five-day trial in the Crown Court at Acton before his Honour Judge Worthington, the appellant was convicted on a number of counts of obtaining property by deception. He was sentenced to 18 months imprisonment, four months of which was to be served forthwith and the remainder held in suspense. He appeals against conviction by leave of the Single Judge.
The appellant came to grief, we are told, in consequence of a television programme, in which his dealings with two ladies, to whom I shall refer in a little detail in a moment or so, were ventilated because it was thought that he had treated them dishonestly. The ladies are twins, who are now 63 or 64 years of age. They had lived with their mother from 1929 until March, 1983 at a house in Kenton. They are spinsters. Their home was sold in 1983. All the affairs concerning that place were wound up so that no debts remained in respect of it. They moved to a newly-acquired maisonette at 36 Magnolia Court. This they purchased for a good deal less than the sum for which they had sold their previous home. The appellant was known to them because he had done work for their mother and for them in the house which they sold. He was employed with a plumbing and central heating firm called Coiley's. By the time of the material events he had become the manager of this firm. He had seen the sisters on a number of occasions, as had other employees of the firm before him. The sisters and their mother had learned to trust these tradesmen to do properly whatever work they were asked to do and to charge fair and reasonable prices for it. One has therefore an impression arising out of the evidence in the case, which the jury must have accepted, of a relationship of trust which had been built up and maintained between customer and tradesman.
Soon after the sisters had moved to Magnolia Court the appellant paid them a visit. According to one of the sisters, he asked if he could see the boiler because, he said, it was leaking. At that time he gave no estimate for repairing the defect, but the sisters were prepared to accept his word and to allow him to put the boiler right. One of the sisters wrote out a cheque for £2,875 and handed it to the appellant for the work to be done to the boiler. She thought that it was rather a lot to charge for what was to be done, but she told the jury that her family had been employing Coiley's for 15 years or more and she believed that what she was asked to pay was a standard charge.
A short while later the appellant looked at the electricity points and told the sisters that the whole of the maisonette needed to be rewired. He said that that work could be done at a cost of £20,000 plus VAT of £3,000. About a week later the sisters agreed to that because, they said, they trusted the appellant and his firm. They thought this was the normal charge and they paid a deposit of £10,000 before the work was begun. Upon its completion the appellant came to the maisonette and asked for £5,000, which one of the sisters paid him. The work of rewiring was to include the redecoration of the maisonette.
At about that time the sisters paid a visit to the family solicitors in connection with probate of their deceased mother's estate. Mr. Cook of that firm, on hearing what was happening between the sisters and the appellant, thought that there should be a breakdown of costs and advised the sisters not to pay the balance of £8,000. On 14th November, 1984 the appellant went to see the sisters. He told them that he had received a letter from the solicitors. He gave them a form to sign. He did not explain it and they did not read it carefully. It later turned out to be a letter that certified that the sisters had agreed to the sum asked for and that they were satisfied with the work done. The appellant then said that he would not "do that", which they assured meant that he would not overcharge them. They believed him, though they had some reservations about the large sum involved. they paid the remainder of the charges and so parted with a good deal of money.
True it is that the work had been done, but it was agreed en all sides at the trial that the prices charged by the appellant on behalf of his firm were grossly excessive. For instance, a new boiler could have been installed for £700 and the cost of installing it would have been no more than between £100 and £150. But, as we have said, very nearly £3,000 was charged for repairing it. The Electricity Board, on being asked how much they would have charged to rewire the maisonette, said that their charge would have been considerably less than was charged by the appellant. The same applied to the redecoration of the maisonette.
It is a sorry tale, as the jury must have found, of overcharging in a situation of mutual trust. No attempt has been made in civil proceedings to recover the amount of the overcharge. No attempt has been made by the appellant's firm to recompense these two sisters. It appears that a neighbour or a friend of the sisters, on hearing the story I have recounted in summary form, was so incensed as to impart her knowledge to the producers of the television programme previously mentioned.
The gain to the appellant by his activities was about £1,000 in commission. He thereby obviously increased the profits of his firm and by a considerable margin the commission he would have earned if he had quoted fair and reasonable prices for the work to be done.
The charges of which the appellant was convicted were laid under s. 15 (1) of the Theft Act 1968. The first alleged that between July and November, 1984 he dishonestly obtained from Pauline McCleery and Kathleen McCleery a cheque in the sum of £2,875 with the intention of permanently depriving Pauline and Kathleen McCleery by deception, namely, by representing that that sum was a fair and proper charge for the work. The other counts in the indictment were similarly framed with specific reference to other cheques the sisters gave to the appellant. It follows from the particulars of the charges that the prosecution had to establish a number of elements to prove that in his transactions with the sisters the appellant committed criminal offences.
Mr. Hopmeier, who appeared below and appears here for the appellant, has argued, first, that the appellant made no representations to the complainants. He has not shrunk from conceding that the appellant was dishonest. He has submitted that the appellant quoted the sisters for the work to be done but that it was open to them either to accept or reject the quotation upon such advice as they might seek and perhaps in the light of tenders by others, and that the appellant was in much the same position as anyone else who is asked to quote for work to be done. He has argued that it is a dangerous concept to introduce into the criminal law that an excessively high quotation amounts to a false representation under s. 15 (1) of the Theft Act 1968. In certain circumstances that submission may we think be well founded. But whether a quotation amounts to false representation must depend upon the circumstances.
It seems clear to us that the complainants, far from being wordy wise, were unquestionably gullible. Having, left their former home, they relied implicitly upon the word of the appellant about their requirements in their maisonette. In such circumstances of mutual trust, one party depending upon the other for fair and reasonable conduct, the criminal law may apply if one party takes dishonest advantage of the other by representing as a fair charge that which he but not the other knows is dishonestly excessive.
In our view, the judge, in directing the jury, dealt with the matter accurately at the outset. At p. 3 of the transcript he said:
"So what are the essentials about which you have to be sure? Well, there are really four of them and they are these. First of all, the prosecution have got to prove that there was a deception, and the deception alleged here is a false representation that the said sum of £2,875 was a fair and proper charge for the work. The deception must operate on the mind of the person deceived, in this case the two sisters. The second essential is this, that the deception must be made dishonestly, and you, members of the jury, must be satisfied that it was in fact made dishonestly. Thirdly, the prosecution must prove that as a result of that deception the defendant obtained property belonging to another, in this case the cheque. Fourthly, it must be done with the intention of permanently depriving the others, that is to say, the sisters, of it. These are the four essentials which have got to be proved in respect of count 1, and the same four essentials have got to be proved in respect of each count."
The judge went on to advise the Jury perfectly properly of what he stated was a sensible way of approaching the matter, and referred with equal propriety to the relationship that had obtained between the sisters and the appellant and the firm which had employed him over a very long period of time. He encouraged the jury, rightly, in our view, to regard the matter of establishing the four essentials with the background circumstances very well in mind.
As to directing the jury upon what the prosecution had to prove and the circumstances in which they might succeed, we find no fault whatever in the way in which the judge directed them. There was material for a finding that there had been a false representation although it is true that the appellant had said nothing at the time he made his representations to encourage the sisters to accept the quotations. He applied no pressure upon them, and apart from mentioning the actual prices to be charged was silent as to other matters that may have arisen for question in their minds.
On the matter of representation we have been referred to DPP v. Ray, (1974) AG 370, which concerned someone leaving a restaurant without paying for a meal. At p. 379 Lord Reid said:
"So the accused, after he changed his mind, must have done something intended to induce the waiter to believe that he still intended to pay before he left. Deception, to my mind, implies something positive." Mr. Hopmeier submits that nothing positive was done in this case. Lord Reid continued: "It is quite true that a man intending to deceive can build up a situation in which his silence is as eloquent as an express statement."
Here the situation had been built up over a long period of time. It was a situation of mutual trust and the appellant's silence on any matter other than the sums to be charged were, we think, as eloquent as if he had said:
"What is more, I can say to you that we are going to get no more than a modest profit out of this".
There is, we think, no foundation for the criticism of the judge in the first ground of appeal nor any substance in this ground in law.
The second ground upon which Mr. Hopmeier relies is that the judge did not put the defence of the appellant to the jury. It goes without saying that the obligation of a judge when summing up is to ensure that he has among other things in a balanced way put the prosecution case and the defence case adequately to the jury.
The appellant did not go into the witness-box. A number of witnesses were called on his behalf. At the end of the summing-up counsel for the prosecution was troubled because the judge had not said anything about the defence to the jury, at any rate in express terms. He asked the judge to consider putting the defence to the jury, who by that time had retired. The judge heard observations from prosecuting and defending counsel. He re-called the jury, and what he said to them was merely this:
"I think it must have been very clear to you in this case from the cross-examination of the various witnesses, and indeed what I have just said in my summing-up with regard to the essentials that have to be proved. It must have been very clear to you of course that the defence case is and always has been that there was no deception by-conduct whatsoever in respect of any of these counts, or by express words. I am sure you will bear that in mind. It goes to the root of the case."
In our judgment that was a wholly inadequate way of dealing with the defence. Of course, they had had no assistance from the appellant, in the sense that he did not go into the witness-box to give evidence. But he was not bereft of all material to assist him apart from the argument of his counsel, for he had had lengthy interviews with the police. These had been tape-recorded and transcripts of them were in the hands of the jury, as was a statement carefully prepared by the appellant with the assistance of his solicitor, which in conclusion stated that at no time had he had any intention or wish to deceive the Misses McCleery or their mother, and that the complainants had seemed to be perfectly happy with the firm's work and accounts.
That fact had in our view to be referred to by the judge. There were the tape recordings, particular matters to which it was necessary for the judge to refer when dealing with the appellant's defence. In a number of passages in what is called "DD6", when the appellant was being very closely questioned by the police officer who was interviewing him he made it absolutely clear that the prices he put in his quotation to the sisters were similar to those which he would have charged anyone else in similar circumstances. Being on commission, he had to obtain, as far as he could do so, the best possible prices for work done. In that way he benefited both his employers and himself. That, expressed in a very bare way, was part of the appellant's defence, but, as we have said, nowhere in the summing-up nor indeed when they were re-called were the jury reminded of those assertions.
The judge dealt with the transcriptions of the tape recordings altogether in a very cursory way. He contented himself by telling the jury that when they retired they could at their leisure read them.
They are quite voluminous. He did not refer to any part of them. At p. 27 he said:
"Those tapes, the contemporaneous notes and that interview are all of course evidence in the trial, in that they are evidence that the defendant made this statement and gave the replies to the various questions which were put to him by the officer. They are evidence of his reaction, which is of course part of the whole general picture you have got to consider, but they are not evidence of the facts stated in them."
That was a very unfortunate direction, because clearly it was wrong.
In Hammond, 82 (1986) Cr. App. R. 65, Boreham J., giving the judgment of the Court, said at p. 68:
"There is clear authority for a proposition, which is contrary to the decision of the learned judge in this case, that where a defendant in the course of interview, whether by oral reply or by statement in writing, makes excuses for his conduct or assertions in his own favour in a mixed statement, those excuses or assertions form part of the evidence in the case. As is pointed out in Duncan, it may be evidence that in the circumstances will not carry a great deal of weight, but at least it is evidence of that which is asserted. The learned judge in this case, as I have indicated, decided to the contrary. We have no doubt that had the decision in Duncan been brought to the judge's attention his ruling would have been different."
The direction of the judge in the present case was similar to that which was disapproved of in very clear terms in Hammond.
We have therefore to consider the fact, as we find it to be, that the appellant's defence, worthless though it might have been in the minds of the jury, was not put to them in the summing-up. Furthermore, as it was virtually the only evidence in existence for the benefit of the appellant, the judge plainly misdirected the jury by telling them in effect that it was of no evidential value at all.
This last ground of appeal has come to be considered by us on our own initiative. But it is the duty of the Court, when it observes that, although counsel have not taken the point, the judge has erred in his summing-up, to deal with it. That we have done, we have also given leave to the appellant to include that ground among the others argued.
In the light of the judge's omission to put the defence adequately and his misdirection as to it, we have to ponder the question whether we can in the whole of the circumstances apply the proviso. We have given this matter anxious consideration, because we have no doubt that the jury must have thought that the appellant's conduct had beer most mischievous. But where there occur an omission adequately to put the defence and a misdirection of the jury as to it, it seems to us that, in the circumstances obtaining here, it would not be right to apply the proviso.
With very considerable regret, therefore, we have come to the conclusion that the appeal must be allowed and the convictions quashed.
