England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		Thursday 26th April 2001

1. LORD JUSTICE KAY: On 6th January 1999 in the Crown Court at Bolton before His Honour Judge McMillan, the appellant was convicted of obtaining a money transfer by deception by a majority of 11 to 1. On 26th February 1999 he was sentenced to six months' imprisonment. He now appeals against conviction by leave of the single judge.
2. In 1996 both the appellant, Kevin Malcolm Scranage and his father, Keith Scranage, had accounts with the National and Provincial Building Society. They both lived at the same address. Keith Scranage (the father) had over £10,000 in his account. The National and Provincial merged with the Abbey National and in the run up to the merger between the building society and the bank Keith Scranage's account was merged with the account of the appellant in error. It was merged in the appellant's name. Literature about the proposed merger was sent twice to the appellant but not at all to his father. Keith Scranage wrote to the building society and also to the bank asking what had happened to his account which seemed to have disappeared together with his potential windfall as a result of the merger.
3. On 11th October 1996 a letter was sent to the appellant not mentioning the original capital sum or the merging of the accounts but only asking for the return of £1,500 windfall that they had credited him by mistake. On 7th December a passbook was issued to the appellant in his name and collected by him. That passbook showed a balance in excess of £12,000 which was to be compared with what the appellant had in his old National and Provincial account, namely £140.
4. On 21st December the appellant withdrew £250 from the Abbey National but not from his own branch. On 7th February the remaining money £12,161.97 was withdrawn and the account was closed. A transfer was made out in favour of a Halifax liquid gold account. An investigator from the Abbey National confirmed that there had been problems with the appellant and his father's account when they were both with the National and Provincial. Mr Scranage senior had written a letter of complaint and there was a dispute between the building society and the appellant whereby the appellant said he was owed £400. That dispute was still continuing.
5. When the appellant's father complained he was sent a cheque for the windfall but not the capital and he was never given a passbook to provide access to his capital. The appellant closed his Halifax account on 1st August 1997 by which time the balance had risen to some £17,500.
6. Keith Scranage, the father, gave evidence. He had had an account with the National and Provincial with about £10,500 in it. He knew his son also had an account. He said that he had not received the literature about the merger but was aware his son had received two copies so he wrote to the building society. The merger occurred in August but he heard nothing from the Abbey National so he continued to write. On 11th October he received a cheque for his windfall but nothing more than that. He wrote to the banks, the building society and the Ombudsman to find out what was happening to his capital. These letters were dictated to the appellant who typed them. In March 1997 Mr Scranage senior went to his local branch of Abbey National to get his monies out. He was told that the account was closed. There were further complaints to the Ombudsman about the closure of the account. Mr Scranage senior told the appellant that the account was in his name but he made no answer to this. He wrote further letters of complaint typed by the appellant and discussed the matter with him. The appellant never said where the money might have gone.
7. When interviewed about the matter by the police the appellant did not dispute the factual basis of what occurred. He described himself as having been naive and unwise. He thought that the Abbey National should have been able to sort out the problems and he had transferred the money from the Abbey National to the Halifax and then closed the Halifax account and he gave reasons for having done that.
8. The appellant gave evidence. He admitted again the factual basis of the prosecution's case but denied that he had in any way acted dishonestly. Putting it in short form, his defence was that he and his father had had so much trouble with the bank and the building society that he had determined to teach them a lesson. If they could not sort matters out he was going to bring matters to a head so that they would have to be sorted out.
9. Thus the issue for the jury to decide was a very straightforward one: whether or not the conduct of the appellant could properly be described as dishonest.
10. The grounds of appeal with which we are concerned start with a complaint about the directions given by the trial judge to the jury in relation to the appellant's good character. The appellant was a man of good character. He worked as a trading standards officer and he called evidence about his good character. The judge dealt with that aspect of the matter at page 6 of the transcript, letter A, and he said:

"However, there is a further question of law upon which I must direct you and it deals with the question of character. Not only has Mr Scranage never been convicted of any criminal offence before, but we heard, either read to you agreed evidence or from that witness box, three senior colleagues of Mr Scranage in his job as a Trading Standards Officer who spoke of his honest, trustworthy, straightforward honesty beyond doubt character and the way he conducts himself at work. Ladies and gentlemen, what is the significance, in law, of good character? What it is not, of course, and cannot be, is a passport to an acquittal, but what it is, ladies and gentlemen, is twofold. First, and most significantly, it goes to Mr Scranage's credibility. In other words, when he stands in that witness box and says to you, 'I was not acting dishonestly when I transferred this £12,000, which I knew was my father's, from one account into another.' Knowing what you do about his good character, does it make you more likely to believe him? In other words, it is a fact in the case, you put that fact into the balance. How heavily it weighs in the balance, if at all, is, as all matters of fact, entirely for you. The second matter - significance - of good character, in law, is the fact that, as a man in his thirties, the fact that he has never been convicted of any crime in the past, does it make it less likely that he should have committed this crime that he is alleged to have done? It is entirely a matter for you, ladies and gentlemen."

11. Mr Barlow on behalf of the appellant submits that that direction was, as he describes it, neutral and not positive. By that he seeks to argue that the judge in posing the questions that he did to the jury "does it make you more likely to believe him" and "does it make it less likely that he should have committed this crime that he is alleged to have done", was putting the matter in an entirely neutral way and not, as is required, so he submits, by way of a positive assertion that these were matters that needed to be taken into account by the jury. He further submits that the judge did not properly relate his directions as to good character to the evidence that had been given in that regard.
12. As to that second point we find it difficult to see exactly what is meant by that. In the passage to which we have referred the judge had set out the nature of the evidence of good character, he had referred specifically to the evidence given earlier that day as to that good character and he had then related that to the direction that was to follow by saying "What is the significance in law of good character". We are entirely sure there is nothing in that criticism which is remotely valid.
13. However, the more important question to be asked is whether the way in which the direction continued by the posing of questions is in fact a proper way of dealing with the matter. We have been referred to the case of Lloyd (2000) 2 Cr App R 355. The submission that is made is that this case is effectively indistinguishable from that decision. In the headnote the holding is put in this way:

"...character directions should not be given in the form of a question, they should be given in the form of an affirmative statement, and that applied even if the question was a leading question; that in a case such as this one which turned almost entirely on the question of credibility as between the complainant and the appellant, the question of credibility was of the greatest importance and relevance so that, in the absence of an appropriate direction as to good character, the convictions were unsafe."

14. We have been referred to the precise directions that had been given in the case of Lloyd as set out at page 357D and it does seems to us that the directions given in this case have exactly the same fault as that found by this court in the case of Lloyd. Mr Metcalfe, who appears on behalf of the Crown, concedes that in the light of Lloyd the directions were insufficient for what was required in the circumstances. However, he submits that notwithstanding that concession, this is a case where the court can properly conclude that the resulting conviction was nonetheless safe on the basis that to have given the direction even in the most appropriate form would not have resulted in any different verdict. He submits that when one looks at the case of Lloyd, one was dealing with a wholly different situation where the court was being asked to decide whether or not to accept the principal witness for the Crown or the appellant's own evidence and that in that context the good character direction was of particular crucial importance. In this case the prosecution evidence was not challenged.
15. We have considered carefully those submissions and we have come to the conclusion that in this case the good character direction was one of crucial importance. This was a case in which the appellant was admitting what on the face of it was either dishonest conduct or highly unusual conduct. In those circumstances it does seem to us that it was particularly important to have proper regard to the undoubted good character of the appellant. We do not think that this is a case where one can brush aside the accepted deficiencies in the summing-up. In the course of his judgment in Lloyd, Pill LJ referred to the then relevant sentence from the Judicial Studies Board guideline direction which read:

"This means it is a factor which you should take into account when deciding whether you believe his evidence."

16. The specimen direction also includes:

"Of course good character cannot by itself provide a defence to a criminal charge, but it is evidence which you should take into account in his favour in the following way."

17. The two customary limbs of credibility and lack of any propensity are then set out. It does seem to us that it is important that a judge in any case, but more particularly in a case of this kind, should bring home to the jury that on the face of it any evidence of good character is something to be taken into account in favour of the defendant in a particular case.
18. In those circumstances we have concluded that whilst this was certainly a strong case that the prosecution put forward, it is impossible to say that if the jury had been given a proper direction that they might not have arrived at a different verdict. That being the situation it clearly follows that the resulting conviction is unsafe and we quash it.
19. If we had reached a different conclusion, there was an application before the court to call fresh evidence about the nature and mental state of the appellant. It is unnecessary now for us to consider that application although we make clear that from our reading of the papers it is one that might well have failed.

MR BARLOW: Thank you, my Lord. Can I make an application for an appellant's costs order?

LORD JUSTICE KAY: Yes, you may have such an order.