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Cite as: [2000] EWCA Crim 59
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WOOD, R v. [2000] EWCA Crim 59 (9th November, 2000)
Case No: 199708320X2
IN THE COURT OF APPEAL
Royal Courts of Justice
Strand, London, WC2A 2LL
9TH NOVEMBER 2000
LORD JUSTICE MANTELL
MR JUSTICE HOLMAN
and
THE RECORDER OF LIVERPOOL
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REGINA
- v -
GRAEME WOOD
Transcript of the Handed Down Judgment
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
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(MR N DOHERTY appeared
for the Crown
)
(APPELLANT appeared in person
)
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(As Approved by the Court)
LORD JUSTICE MANTELL:
On 17th November 1997 Graeme Wood was convicted at Knightsbridge Crown Court of nine offences of false accounting and three offences of procuring the execution of a valuable security by deception. He was sentenced to twelve months' imprisonment concurrently for each of offence.
On 30th November 1998 a differently constituted division of this court dismissed his appeal against those convictions and gave reasons for so doing on 21st December 1998.
On 19th March 1999 Mr Alun Jones QC, who had appeared for Mr Wood on appeal, invited the court to certify a point of law of public importance arising out of the court's judgment and for leave to appeal to the House of Lords. The court declined to certify.
Mr Wood feels aggrieved. He considers that this court got it wrong partly, at any rate, because a transcript of his evidence at trial was not available at the hearing of the appeal notwithstanding a request that it should be. He has already taken his complaint to the Criminal Cases Review Commission which is presently considering whether or not to make a reference. If he has not done so already, he is certainly contemplating taking it up with the European Court of Human Rights.
Now he applies to have his appeal reinstated. Following protracted correspondence between himself and the Registrar and on the direction of the Lord Chief Justice the application came before this Court on 24th October 2000. For want of time and in order to give full consideration to Mr Wood's submissions, judgment was not given on that date. We proceed to give it now, taking into account further written submissions provided by Mr Wood in the meantime.
It is necessary to make some brief reference to the background. At the time of the offences Mr Wood was a barrister and lecturer in law. Between January 1994 and June 1995 his employment was sporadic at best. He had difficulty in meeting the rent bill for his accommodation in central London. The charges of false accounting contrary to section 17(1) of the Theft Act 1968 were based on false and misleading statements made by Mr Wood in dishonestly completing declarations to obtain unemployment benefit or income support. The offences of procuring the execution of a valuable security by deception contrary to section 20(2) of the Theft Act 1968 were based on false representations made dishonestly to the Westminster City Council to obtain cheques for housing benefit.
At trial Mr Wood said he believed he was entitled to obtain unemployment benefit by false and misleading statements and to obtain housing benefits by falsely representing his income because the Westminster City Council had awarded him less in housing benefit than it ought to have done. His defence, therefore, was that he honestly believed that he had a claim of right. That he may have been paid less in housing benefit than he was entitled to was not disputed by the Crown but it was nevertheless contended that the various statements had been made dishonestly. A major plank in the Crown's case was that one of the false declarations to obtain benefit had been made even before he had been told the amount of the housing benefit awarded.
There were two grounds of appeal. The first was that the convictions were unsafe because the learned judge had misdirected the jury with regard to dishonesty and claim of right. The second was that they were unsafe because the summing up was unbalanced and unfair to the appellant.
As indicated the court rejected both grounds. It is only with regard to the first that Mr Wood now seeks to have the matter reopened.
The general rule is that having allowed or dismissed an appeal the court has exhausted its jurisdiction. There are exceptions. The first is where the case is referred back to the court as formerly by the Secretary of State for Home Affairs and as now by the Criminal Cases Review Commission. The second is where the first hearing was a nullity. A third may be where the court has failed to follow the rules or well established practice as a result of which there is a likelihood that injustice has been done. (See R -v- Cross (1973) 1QB 937, and R -v- Daniel (1977) 1QB 364 per Lawton LJ at pps. 369-370). The position was comprehensively stated by Lord Lane Chief Justice in R -v- Pinfold (1988) 1QB 462 at 464:
"The question therefore posed before us is whether the court has power to hear an appeal by the applicant when his first appeal was dismissed by this court on 11th November 1981.
Section 1(1) of the Criminal Appeal Act 1968 provides: 'a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.' Section 2(1) provides: 'except as provided by this Act, the Court of Appeal shall allow an appeal against conviction if they think - (a) that the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or (b) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law; or (c) that there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal;'
So there is nothing there on the face of it which says in terms that one appeal is all that an appellant is allowed but in the view of this court, one must read those provisions against the background of the fact that it is in the interest of the public in general that there should be a limit or a finality to legal proceedings, sometimes put in a Latin maxim, but that is what it means in English. We have been unable to discover, nor have counsel been able to discover, any situation in which a right of appeal couched in similar terms to that, has been construed as a right to pursue more than one appeal in one case.
So far as the Criminal Appeal Act 1968 is concerned, there are perhaps two possible exceptions or apparent exceptions, because that is what they are, to that rule: first of all, where the decision on the original appeal, if I may call it that, can be regarded as a nullity. This is more commonly applied where there has been an application to treat a notice of abandonment as a nullity. The second occasion, which may be simply an example of the first, is where, owing to some defect in the procedure the appellant has on the first appeal being dismissed suffered an injustice, where, for example, he has not been notified of the hearing of the appeal or counsel has been unable to attend, circumstances such as that.
Indeed that first exception is perhaps an indication that no one has ever considered that an appellant is entitled to appeal twice, because if there were such a right, then there would be no necessity to apply to set aside a notice of abandonment. The appellant would simply launch another appeal."
The position as stated by Lord Lane continues under the domestic law and there is nothing which we can see in the European Convention for the Protection of Human Rights and Fundamental Freedoms and in particular under Article 6(1) which might lead to a reassessment of those principles. So it is that in order to succeed in his application to "re-list" Mr Wood must bring himself within one of the exceptions. He does not contend that the original hearing was a nullity but he does say that there was an administrative or procedural irregularity leading to injustice in the refusal of the court to order that transcripts of his evidence be made available on the appeal. It is necessary to look at what happened in a little more detail. On 6th September 1998 Mr Alun Jones QC had advised that it was essential for a transcript of Mr Wood's evidence in chief to be made available "to see exactly how the claim of right" was dealt with at trial. On 28th September 1998 Mr Jones wrote to the Registrar stating "the purpose of this letter is to say that a transcript of the appellant's evidence is essential for two reasons" and went on to say that it was necessary to show how the claim of right defence was dealt with during the course of the trial. The request was repeated on 8th October, and on 13th October a letter was sent on behalf of the Registrar stating that the matter had been referred to Lord Justice Buxton (we interpose that Lord Justice Buxton at that time was the designated Lord Justice for the forthcoming appeal) who had declined the request for a transcript giving as his reason that since it had been agreed by all parties that the applicant had not been asked to explain his claim of right defence there was no merit in ordering the transcript to demonstrate that such had been the case. Lord Justice Buxton also had regard to the very considerable expense involved in obtaining the transcript which as we now see covers a great many pages. There is some uncertainty as to whether or not the application for the transcript was renewed at the hearing before the full court by this time presided over by Lord Justice Beldam. At all events Mr Wood contends that by the time of the hearing before the full court it was no longer accepted on behalf of the Crown that he had not been asked to explain the basis of his belief that he had a claim of right.
So, submits Mr Wood, there has been a procedural irregularity which has led to an injustice. We reject both contentions. First of all the refusal of the application for a transcript was a judicial decision. It was not a procedural or administrative decision. If in truth the application was renewed before the full court and refused that too was a judicial decision. We should say by way of commentary, though it is hardly material to our decision, that in any event it would have been possible by reference to their notes for counsel to agree what had or had not occurred at trial. No attempt to do so was made. But as we say that is hardly to the point. Even if the refusal to order transcripts had amounted to administrative or procedural error, it still cannot be shown to have led to any injustice. Aside from the complaint about general unfairness the issue for the court was whether or not there had been an adequate direction to the jury on the question of mens rea. The point was neatly expressed in the question of law which the court was eventually asked to certify as being of public importance:
"In a case in which a defendant having made claims for social security benefits which to his knowledge involved false representations, asserts that he believed that he was entitled in law to the sums obtained by such representations, ought the jury to be directed to acquit him if they find that he had such a belief, or ought they to be directed in accordance with the 2-stage directions approved of in R -v- Ghosh (1982) 75 CAR 154."
That the court in the original appeal directed its mind to the question is clear from the passage appearing at p.14 of the transcript.
"In the first ground of appeal Mr Alun Jones contended that the convictions are unsafe because the learned judge misdirected the jury on the matter of dishonesty and claim of right; this was a fault compounded because the appellant was not asked by either counsel or the judge to explain the legal basis of his assertion that he was entitled to withhold information and to give misleading information in submitting claims for benefits."
In the event the court came to the conclusion that the directions given by the learned trial judge were adequate in all the circumstances. Even though invited to do so by Mr Wood it is not for this court to enquire into the correctness or otherwise of that conclusion. We merely note that the court was alive to the issue raised and able to contend with the submissions unhampered by the lack of transcript. There was simply no causal connection between the failure to order a transcript and the original courts' final conclusion.
We are grateful to Mr Wood for the courteous and able manner in which he has presented his arguments, but for the reasons given we must refuse the application.
MR DOHERTY: Would your Lordships entertain an application for costs against the applicant?
LORD JUSTICE MANTELL: Do you have a figure?
MR DOHERTY: £1500.
LORD JUSTICE MANTELL: What do you say, Mr Wood, about the application for costs; did you hear it?
THE APPELLANT: Yes, my Lord. If you bear with me, I feel I need to lean on something in order to speak, my Lord.
LORD JUSTICE MANTELL: Yes. Mr Doherty has asked for costs in the sum of £1500.
THE APPELLANT: In relation to costs, my Lord, very briefly I would submit this -- and excuse my ignorance on the issue -- I understand that costs are a matter of discretion for a court. Two matters I would ask your Lordships to have regard to, first the circumstances of this particular appellant -- it is rather embarrassing to have to make these submissions to the court -- the effect of the conviction in this particular case has been devastating. There are perhaps cases where the principle that the punishment be condign with the offence in question is not borne out in practice --
LORD JUSTICE MANTELL: You are short of money is the point, Mr Wood?
THE APPELLANT: Indeed, my Lord. That is the point I was making. I do not earn an income.
LORD JUSTICE MANTELL: They might not be able to enforce force the order for costs in that case, Mr Wood.
THE APPELLANT: That is the point I was making, my Lord.
If your Lordships feel nevertheless that impecuniosity is not a consideration, I would just draw your attention to counsel for the Crown's word product in the case which runs to some five pages. With respect to counsel for the Crown, I would submit there was not a great deal of research or time that was required.
LORD JUSTICE MANTELL: He had to read all the papers you produced though, Mr Wood.
THE APPELLANT: Indeed, my Lord.
LORD JUSTICE MANTELL: And here they are.
THE APPELLANT: Indeed my Lord, and I apologise for that. In short, if the court feels there must be a cost order which I certainly would not be in a position to pay -- I would have to seek the assistance of third parties in doing that -- then if it could be limited as much as the court considers reasonable in its discretion, given the entire circumstances --
LORD JUSTICE MANTELL: Excuse me, Mr Wood. Do you have a bill of costs there, Mr Doherty?
MR DOHERTY: My Lord, I have not. That is based on my fee for the last appeal. Your Lordships will appreciate that no previous application for costs has ever been made against Mr Wood. On the last occasion the Department bore its own costs but they have taken the view --
LORD JUSTICE MANTELL: What was the last occasion?
MR DOHERTY: The original appeal.
LORD JUSTICE MANTELL: So you are not asking for costs for that?
MR DOHERTY: No.
LORD JUSTICE MANTELL: Sorry, I am misunderstanding.
MR JUSTICE HOLMAN: What you are indicating is that the amount that you are seeking is based on the amount that was marked on the last occasion.
MR DOHERTY: Yes. I anticipate it will be the same on this occasion. As I indicate, we have not before -- I think quite rightly -- applied for costs against Mr Wood but on this occasion we feel --
LORD JUSTICE MANTELL: So it represents an application for costs for two appearances?
MR DOHERTY: For the substantive hearing for this application and for yesterday and today.
RECORDER OF LIVERPOOL: Mr Wood does not have to pay for yesterday.
MR DOHERTY: My Lord is right. But of course it will be included in what the Department will pay.
LORD JUSTICE MANTELL: Thank you. Anything further, Mr Wood? We have the point.
THE APPELLANT: No.
LORD JUSTICE MANTELL: We think £1500 is a reasonable sum. We propose to make an order for costs in the sum of £1500, whether that is of value to the respondent or not is a separate question. Thank you.
© 2000 Crown Copyright