England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		11th December 2002

1. MRS JUSTICE HALLETT: On 27th July 2001 in the Crown Court at Canterbury before His Honour Judge Nash, the appellants Ian McKechnie, David Smith and husband and wife, Christopher and Jane Gibbons, were convicted of conspiring together with others unknown to defraud banks and credit card companies by dishonestly obtaining the redirection of mail, applying for credit account facilities by giving false details about themselves by telephone and in writing and using the fraudulently obtained credit cards to acquire goods, services and cash, contrary to common-law.
2. On 26th November 2001 His Honour Judge Nash sentenced McKechnie, Smith and Christopher Gibbons to 4 years imprisonment each and Jane Gibbons to a community punishment order for 220 hours. A confiscation order pursuant to section 71 of the Criminal Justice Act 1988 was made against Christopher Gibbons in the sum of £32,011, with a period of 12 months' imprisonment in default. As far as Jane Gibbons was concerned, the confiscation order was in the sum £18,121, with a period of 12 months' imprisonment in default. As far as David Smith was concerned the order was in the sum of £790 with 28 days' imprisonment in default.
3. The facts of the case are as follows. The Crown alleged sophisticated and well organised conspiracy involving the four appellants and at least seven other unnamed people. The plan was to obtain credit cards by fraud and to use those cards to obtain cash, property and services. In total, some 133 applications for credit cards were made in the names of people who had recently died and in the names of innocent members of the public. Sixty-two of the applications were successful. The total loss to the credit card companies was in excess of £222,000.
4. The method employed was that forms were submitted to the post office redirecting mail to addresses to which the conspirators had access. The credit cards when issued would be used until the credit card limit had been reached. The conspiracy was discovered by chance, when a sharp eyed postman realised a great deal of mail was being delivered to an unoccupied house in Margate. The police monitored the address and saw the appellant Smith and Christopher Gibbons nearby.
5. Enquiries at the post office revealed that mail addressed to a resident of Canterbury, then deceased, was being directed to this house. The redirection facility was cancelled and arrangements were made for a lockable post box to be attached to the Canterbury house from which mail could be retrieved.
6. Smith and Christopher Gibbons were filmed looking in that post box. Gibbons was also filmed making cash withdrawals from cash dispensing machines at times which corresponded with the use of fraudulent credit cards at those machines.
7. Fingerprints of each of the appellants were found on various credit card application documents and postal redirection forms. Handwriting on the documents was attributed to each of the appellants save David Smith. This evidence also revealed the links between the conspirators. For example a redirection form could be linked to Christopher Gibbons by handwriting evidence, and to David Smith by fingerprint evidence. Christopher Gibbons admitted in interview he was the person filmed at the cash dispenser. Jane Gibbons in interview said she had filled out redirection applications and credit card applications.
8. The defence attempted to argue before the jury that the expert evidence as to fingerprints and handwriting was unreliable and that, even if such evidence proved a conspiracy it did not prove the appellants acted together in one general conspiracy. It was suggested that the evidence pointed equally to a number of conspiracies and to a number of conspirators.
9. As far as Jane Gibbons was concerned it was argued that her admissions to the police were unreliable and the evidence established no more than that she had conspired with her husband.
10. Grounds of appeal have been submitted to this Court on behalf of all four appellants to the following effect: Mr Germain, on behalf of McKechnie, has argued firstly that the judge was wrong in preventing the defence from adducing evidence as to the character of a fingerprint examiner. This submission was based on the fact that the original fingerprint expert instructed on behalf of the Crown called Powell had been cautioned for a criminal offence. His witness statement was served on the defence but he was not in fact called at trial. A colleague, called Plummer, another fingerprint expert was called in relatively late in the day to examine the items himself and to report on them. This he did, submitting his findings in a report which we are told was in similar terms to those of Mr Powell including some factual errors made by Mr Powell.
11. The defence argued that the credibility of the expert evidence generally was in issue and therefore they should have been allowed to tell the jury about Powell's caution for dishonesty. The judge ruled against them.
12. The second ground advanced by Mr Germain on behalf of McKechnie is that the judge erred in failing to exclude prosecution evidence of handwriting comparisons. This argument was advanced on the basis that the material used to make the comparison between McKechnie's handwriting and the disputed handwriting had been obtained unlawfully.
13. The appellant's home was searched in accordance with a search warrant issued under section 26 of the Theft Act 1968 which relates to the recovery of stolen property. We do not have a copy of the warrant but we are told that the materials for which the officers were authorised to search were described in it as "stolen credit cards, associated documentation and items purchased with the same."
14. Complaint is made by Mr Germain about the inclusion of the words "associated documentation" which he contends renders the warrant and subsequent entry and search unlawful. He submits that section 26 would authorise an entry and search under these provisions solely for the recovery of stolen property. Further, he argues that the warrant as issued did not authorise the seizure of greetings cards albeit they provided samples of handwriting.
15. During the course of the trial evidence emerged that, before the execution of the warrant, there had been a presearch briefing in which the officers were told that they could seize any item which might be used for handwriting comparison.
16. Mr Germain made two attempts to exclude greetings cards seized on the basis that the instruction to officers at this presearch briefing and the contents of the warrant itself rendered the whole search unlawful. He has referred to the provisions of sections 15(1) and section 16(8) of the Police and Criminal Evidence Act 1984. Section 15(1), reads as follows:

"This section and section 16 below have effect in relation to the issue to constables under any enactment including an enactment in an Act passed after this Act of warrants to enter and search premises and an entry on or search of premises under a warrant is unlawful unless it complies with this section and section 16 below."

Section 15 goes on to set out a number of safeguards for the application for and the issuing of search warrants. Section 16 deals with the execution of warrants. subsection (8) reads:

"A search under a warrant may only be a search to the extent required for the purposes for which the warrant was issued."

Mr Germain further argued that section 19 of the Police and Criminal Evidence Act 1994 did not apply because cards could not themselves be described as evidence of a criminal offence. Section 19 authorises a constable, lawfully on premises, to seize anything which he has reasonable grounds for believing is evidence, in relation to an offence he is investigating and it is necessary to seize it to ensure its preservation.

17. Mr Germain submitted that the police had deliberately and in bad faith, taken the shortcut of applying for a warrant under section 26 because they would not have been authorised by a Justice of the Peace otherwise to conduct the search in the way that it did. Thus he maintained there were clear breaches of Article 8 of the European Convention of Human Rights and Article 1 of the first protocol.
18. In his rulings the judge found specifically there had been no bad faith on the part of police. He was satisfied the officers were lawfully on the premises and they were entitled to take the greetings cards under section 19, whether or not the section was upper most in their minds at the time.
19. The judge found that in any event, had the police applied for a warrant under section 8 of the Police and Criminal Evidence Act 1994, it would have been granted, and then there could have been no argument as to the lawfulness of the entry search and seizure. Section 8 provides that a Justice of the Peace may issue a warrant authorising entry and search of premises and the seizure of material, where the Justice of the Peace is satisfied that there are reasonable grounds for believing a serious arrestable offence has been committed and relevant evidence likely to be of substantial value to the investigation is on the premises.
20. The judge considered the provisions of the European Convention on Human Rights and in his first ruling decided there was no breach. He did not refer specifically to the Convention in his second ruling and is criticised for his omission. It is argued that he was wrong to find there was no breach of the Convention and he has failed to take into account a relevant matter, when exercising his discretion under section 78 of the Police and Criminal Evidence Act to admit this evidence.
21. Thirdly, Mr Germain, makes complaint about the way the learned judge dealt with the question of whether or not there was here one conspiracy. It is conceded that he correctly directed the jury on the law, that unless the evidence proved there was one general conspiracy, then the accused would not be guilty as charged.
22. However, thereafter, the learned judge used the phrase, when dealing with the defence submissions that there may have been more than one conspiracy "were there lots of tiny conspiracies"'. This, submitted Mr Germain belittled and misrepresented the defence case. In his written grounds of appeal he took us through the passages in the summing-up about which he makes complain.
23. Suffice it to say Mr Germain argues that the judge failed to deal adequately and fairly with his argument that there may not just have been one conspiracy here but two.
24. Mr Hillen, on behalf of the prosecution, explained in his written skeleton argument the way in which the Crown put its case that there was one general conspiracy. In our judgment, the evidence was, and he argued, compelling. He relied upon the method used, namely the use of the identities of deceased people and the redirection of mail addressed to them, the geographical area where the overt acts of the conspiracy had been performed namely East Kent, Canterbury and Margate in particular, the time scale of the overt acts, the common information used by the conspirators and the evidence of the handwriting and fingerprint experts which linked documents written by each accused in different ways with various of their co-accused and seven other unknown conspirators.
25. Lastly on behalf of McKechnie, Mr Germain rather diffidently relied upon the fact that McKechnie himself fraternised with a member of the jury during the trial. Had this been known at the time of the trial, it is argued that the jury would have been discharged. We shall return to this ground later.
26. On behalf of the appellant Jane Gibbons two grounds are advanced. Firstly, reliance is place on the alleged association between McKechnie and the female juror during the trial. This, Mr Forbes, on behalf of Jane Gibbons argues may have affected the integrity and impartiality of the juror concerned and, if there is any possibility that other jurors learned of the association, they may have been adversely influenced against the McKechnie's co-accused.
27. Secondly Mr Forbes argued that the judge erred in finding that there was a case to answer against Jane Gibbons. He submitted there was no basis, on the evidence presented by the Crown, for the jury to find that the appellant had conspired with anyone other than her husband. This submission was based on the undoubted provisions of section 2(2) of the Criminal Law Act 1977, which states in terms that a person shall not be guilty of conspiracy if the only person with whom they agree to commit an offence is their spouse.
28. On Mrs Gibbons' behalf Mr Forbes argued that her admissions in interview and forensic evidence against her, linked her to a possible conspiracy with her husband but to no one else. There was no evidence that she knew of the existence of any other conspirator.
29. Christopher Gibbons, her husband, and David Smith have but the one ground of appeal, namely the alleged contact between McKechnie and a juror during the trial.
30. The Full Court granted leave to appeal against conviction to all four accused because information came to light after the trial. On the 4th September 2001, the three male defendants, McKechnie, Gibbons and Smith, arrived at the offices of the firm of solicitors representing them, namely Godfrey, Davies and Waitt and presented, to Mr Thomas Coe, an employee of that firm, a tape recording of a conversation between McKechnie and a number of the jury whom we shall describe by the initials CG. According to Mr Coe he was told that McKechnie informed Smith that, during the trial, he had associated with a female juror. McKechnie was asked for proof of this and he recorded a conversation in his car with the juror. This conversation took place after the trial had concluded.
31. The recording has been transcribed. Although it is not easy to understand every part of it, one thing is crystal clear: McKechnie makes a very determined effort to get the juror to discuss what went on in the juryroom when the jury were deliberating. We are told the contents of the conversation suggests that it took place in August 2001.
32. The Full Court authorised a number of enquiries to be made. This led to the juror CG, McKechnie, Christopher Gibbons and Smith being interviewed by police officers. McKechnie having instituted this whole affair with the assistance it seems to us of his two co-accused declined to comment. The material in relation to the interviews has been put before us, with the agreement of the Crown. We have therefore considered it. From our reading of it, it seems the officers may have unwittingly gone further than the provisions of section 8 of the Contempt of Court would allow as to enquiries into jury deliberations. However it does seem the officers acted unwittingly, believing they were acting in pursuance of this Court's order and that therefore is a matter we do not, at this stage, need to pursue.
33. The juror in essence told police that she had met McKechnie once during the trial, by chance, in a public house and then once after the trial. Investigations of telephone bills revealed no contact by land line between McKechnie and her, but mobile telephone contact, consistent with their meeting in the car after the trial. She was asked in terms whether there was any conversation between her and McKechnie which might affect the propriety of the verdict. She said time and again that there was not. She said McKechnie had approached her in the public house during the trial, offered to buy her drink, which she had declined and then left her with his telephone number. She insisted that she had made no use of that telephone number until after the verdict, when she sent him a text message. The meeting in the car was then arranged.
34. Having discussed certain matters in the car they then clearly spent some time together. Criticism is made of the juror as to her frankness when she described the original meeting in the public house and what happened after she and McKechnie had left the car. From what she told the police officers it seems she told no one during the trial of any contact with McKechnie. A number of criticisms have been made of what she has said when interviewed and we have been invited by counsel to infer that she may have been lying about the extent of her association with McKechnie during the trial and about the effect of any such association on the jury's deliberations.
35. We shall consider the grounds of appeal against conviction, in turn. Firstly, dealing with the ground in relation to the fingerprint expert's caution for dishonesty. This can be disposed of very shortly. This was, in our judgment, a matter very much for the judge's discretion. The jury was reminded fully and fairly of the evidence of Plummer and of its alleged inadequacies and contradictions. The jury were well aware of the fact that there had been a change in the expert used by the Crown and of the explanation given by Mr Plummer of how he had apparently adopted some factual errors made by his predecessor Powell. There was no suggestion that Mr Powell had been in any way involved in the tests carried out by Plummer. It was Plummer's reliability and credibility that was in issue at trial not Powell's. We agree. With that the learned judge, that the fact that someone no longer a witness in the case had a caution for obtaining property by deception was irrelevant on the facts of this case to the jury's consideration of whether or not they accepted the evidence actually before them, namely that of the expert witness, Plummer. Accordingly we reject this ground of appeal.
36. As far as the ground in relation to the search warrant is concerned, we have the benefit of the two transcripts of the two rulings made by the learned judge. It is clear from those transcripts that on each occasion he dealt with the detailed submissions of counsel and the evidence before him fully and fairly. He considered all the material before him and he rejected the allegations of bad faith as he was entitled to do on the basis of the evidence he had heard. He found that there was no flagrant breach of any of the statutory provisions or the codes associated with them, and, therefore, no deliberate disregard of the rights of the appellant.
37. The judge focused his attention, as he was bound to do, on the test under section 78 of the Police and Criminal Evidence Act as to whether or not the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court should exclude it. He was persuaded that the police, had they chosen to apply for a warrant, under section 8 of the Police and Criminal Evidence Act would have been authorised to seize the items that had been seized. We agree. He was also persuaded that the police were on the premises lawfully. They were there to search for their primary objective, stolen goods, as authorised by the Justice of the Peace. Again, we agree. The inclusion of the words "associated documentation" did not in our judgment invalidate the whole warrant. Being on the premises lawfully the officers had the power to seize these documents by virtue of section 19 of the Police and Criminal Evidence Act. Again, we agree.
38. The judge decision that the European Convention in this instance added nothing to the provisions of domestic law. Even if the judge was wrong to decide, as he did, that the provisions of Article 8 did not take the matter any further and even if Mr Germain is right that the seizure of these items was unlawful, the fact is the learned judge was not bound by either domestic or European law to exclude evidence simply because it may have been obtained unlawfully. The judge, in this instance, considered that possibility and he looked at the effect of the evidence on the proceedings as a whole. The case against this appellant went far beyond just this handwriting evidence. The greetings cards concerned were only part of the samples used by the expert, in making his handwriting comparisons. McKechnie himself admitted that the handwriting on the greetings cards was his. The judge considered the effect of admitting the evidence and any possible prejudice to the appellant. Having ourselves considered all those matters, particularly, the learned judge's finding that there was no evidence of bad faith on the part of the police officers involved, we are not satisfied that the way in which the judge exercised his discretion in favour of the Crown in any way undermines the safety of this conviction.
39. Turning now to Mr Germain's complaint about the judge's comments as to the number of possible conspiracies, this ground can be dealt with shortly. The judge directed the jury fully and fairly that the facts were for them and not for him. As is conceded, he directed them they had to be satisfied that each of the appellants was knowingly involved in the one general conspiracy as alleged. Any references during the summing-up to whether or not the evidence pointed to more than one conspiracy should be read in the context of the summing-up as a whole. We have no doubt that the jury were well aware, by the time they retired to consider their verdicts, of the issue they had to decide in this respect. We are satisfied that the learned judge dealt with this matter perfectly properly and, again, that this point is unarguable.
40. That takes us conveniently to the submission made on behalf of Jane Gibbons that the judge should have allowed the submission of no case, on the basis that there was insufficient evidence of her conspiring with anyone other than her husband. We have, again, looked at the way in which the learned judge approached this submission. He reminded himself of the appropriate test to be applied and he reviewed the evidence. It was submitted, on behalf of the Crown, that the evidence proved that Jane Gibbons had conspired with people other than her husband and knew this conspiracy went far further than the two of them.
41. In his written skeleton argument Mr Hillen has taken us through that evidence, the handwriting evidence, the evidence of what Jane Gibbons said in interview, the links to the other conspirators which could be established by the facts of the case and by looking at the documents themselves. In the judge's view this amounted to ample evidence from which the jury could infer that Jane Gibbons must have known that others were involved. We agree. This was very much a matter for the jury and this ground too must fail.
42. Turning lastly to the ground that affects all four appellants. We accept the Crown's submission that whatever reservations one may have about what happened after trial between McKechnie and the juror, there is absolutely no evidence and absolutely nothing to suggest that anything happened during the trial to affect the safety of these convictions. McKechnie himself tells us nothing of his so called fraternising with the juror during the trial. There is no evidence therefore before this Court to contradict the juror's assertion that all it amounted to was the offer of a drink which was declined and the leaving of a telephone number which remained unused until after the verdicts were delivered.
43. There is nothing in the material put before us or indeed in the transcript of the recorded conversation to suggest that matters went any further at all. We decline to speculate in the absence of any proper material as to whether or not there was anything further happening between the juror and McKechnie. Indeed, in our judgment, all the evidence points to the fact that the juror has told the truth as to what happened during the trial.
44. We are satisfied, therefore, there is nothing that happened during the trial that could or would have affected the jury's deliberations or prejudiced them in any way against any of the appellants. Any contact was plainly extremely limited. Whatever test one applies there is, in our judgment, no real danger of any bias on the part of the jury at the time of trial, and we are satisfied that no fair minded observer would be in any way fearful that such a danger existed. The Crown has indicated in writing that they intend to take no action in relation to the juror and the appellant McKechnie. McKechnie may consider himself fortunate. He was the one who apparently approached the juror during the trial and attempted to make contact. He was the one, encouraged by two of his co-accused, who set up the recording of his meeting with the juror after the trial. The three male appellants made sure all relevant parties were informed of what had happened in an attempt, no doubt, to bolster their chances of appealing their convictions. This seems to us to have been a cold blooded attempt to manipulate this Court. It has failed.
45. Had the learned judge trial judge been aware of McKechnie's approach to the juror he may well have issued a warning to the jury as a whole. But we do not accept, on the basis of the information we have been given, he would have agreed, if invited, to discharge the jury. If there was any contact between McKechnie and the juror which McKechnie thought might prejudice the trial for him or for the others with whom he seems to be fairly close, it was open to him to tell his lawyers. He did not do so. We also note that the verdicts, as far as the three men were concerned, were unanimous and 11: 1 as far as Jane Gibbons was concerned. The evidence against each of them was overwhelming and the verdicts of the jury come as no surprise at all to this Court. None of the matters raised before us comes close to undermining the safety of these convictions. Accordingly they are all dismissed.
46. MRS JUSTICE HALLETT: We turn now to Jane Gibbons' appeal against the confiscation order made upon her. She, as we indicated, was the only appellant who did not receive a sentence of imprisonment. From his sentencing remarks the learned judge was plainly unimpressed by what he described as her attempts to pull the wool over the eyes of the probation officer who had prepared a report upon her. The judge said he had been contemplating a sentence of 18 months' imprisonment about which no complaint could have been made. There can be no doubt that Jane Gibbons played her part in this conspiracy and she admitted her involvement to a certain extent in interview, if not to the probation officer. The judge took what can only be described a merciful course, solely because she was pregnant at the time of sentence.
47. In dealing with the question of confiscation the judge described this as a comprehensive and sophisticated fraud, involving the obtaining of credit cards in the name of deceased or dying people to obtain money. He agreed with the Crown that in assessing the benefit obtained as a result of this criminal conduct one should look first to the total amount of obtained as a result of this conspiracy, namely just over £225,000.
48. It was said by the Crown in this case to be impossible to calculate the full amount by which each individual had benefited personally and therefore as a starting point it was suggested the total should be divided between the four conspirators who stood in the dock, giving a figure of roughly £56,389 or thereabouts each.
49. The learned judge rejected the argument advanced by Mr Forbes and repeated before us, that the starting point for individual defendants should be the personal gain to each individual conspirator. Mr Forbes has relied upon three decisions, two at first instance and one of this Court. Firstly, the case of Rees, unreported 19th July 1990, then Gokal unreported 7th May 1997 and Patel [2000] 2 Cr App R(S) 10. Mr Forbes reminded this Court of the provisions of section 71(4) of the Criminal Justice Act 1998, which defines the circumstances in which a person benefits as follows:

"A person benefits from an offence if he obtains property as a result of, or in connection with its commission and his benefit is the value of the property, so obtained."

By a subsection (5):

"Where a person derives a pecuniary advantage as a result of or in connection with the commission of an offence he is to be treated for the purposes of this part of this act as if he had obtained as a result of or in connection with the commission of the offence a sum of money equal to the value of pecuniary advantage."

The standard of proof to be applied in determining the question whether or not a person has benefited from any offence, by virtue of section 7(7)(a) is that applicable in civil proceedings.

50. Mr Forbes referred us to the facts of Rees, where the offender was the only person in the dock but a number of people had been involved in the criminal enterprise of obtaining mortgage funds by deception contrary to section 15 of the Theft Act 1968. Auld J, as he then was, held that the defendant's benefit was the whole amount obtained even though the defendant, insisted that he personally, did not receive all of the money. The learned judge relied upon the provisions of section 15(2) of the Theft Act 1968, by which obtaining is defined as follows:

"For the purposes of this section, a person is to be treated as obtaining property if he obtains ownership, possession or control of it. Obtaining includes obtaining for another or enabling another to obtain or retain."

51. Mr Forbes having distinguished the facts of Rees relies on the decision in Gokal. In Gokal the offender was convicted of an offence to which section 15 of the Theft Act did not apply. It involved a deception of the auditors of BCCI, in concealing a number of substantial loans made to a group of companies ran by the defendant Gokal.
52. Buxton J, as he then was, considered that Rees was confined to its own facts and an offence under section 15 of the Theft Act. Buxton J held that the phrase "if he obtains" in section 71(4) of the 1988 Act requires what can be fairly be described as an obtaining by the defendant himself.
53. On appeal the Court of Appeal (Criminal Division) did not dissent from that view but was not for obvious reasons obliged to deal with the point in terms.
54. In Patel, however, this Court did comment on what Buxton J had said in Gokal. In giving the judgment of the court, Douglas Brown J said:

"We share the view of Buxton J that section 15(2) of the Theft Act 1968 cannot assist in the construction of the 1988 Act, where the offender is not charged with obtaining property by deception under section 15 or conspiracy to do so."

55. The judge in the present case, followed the reasoning of Auld J in Rees. He distinguished the facts of the present case from the decision of Buxton J in Gokal, which he described as being miles away from instant case.
56. Mr Forbes invited this Court to find that because the offence charged here was conspiracy to defraud contrary to common law and not as envisaged in Patel, conspiracy to obtain by deception, the judge should have followed the reasoning of Buxton J and this Court in Patel. His argument was a stark one. He submitted that, if the Crown cannot prove either receipt of the proceeds of crime by a particular defendant or how the proceeds of a criminal offence have been divided up between the defendants, then the court is unable to make a confiscation order. It is not entitled, in those circumstances, to determine the amount of benefit that has been obtained.
57. Even if that argument fails Mr Forbes submitted that in assessing benefit the court should have regard to the individual culpability of the accused.
58. In our judgment, it is plain that Parliament intended this legislation to bite and to bite hard on criminals and to remove from them, where possible, their ill-gotten gains. The Court is under a duty, under the terms of section 71, either of its volition or at the behest of the prosecution to determine the benefit obtained by an offender as the result or in connection with the offence of which they have been convicted.
59. In our judgment the words of section 71(4) have a deliberately wide ambit. The word "obtains" is neither qualified nor defined. Parliament has not laid down any rules governing the way in which a court should approach its task in determining the benefit obtained as a result of or in connection with an offence. We decline to follow Mr Forbe's reasoning because, if we did, it would plainly thwart the clear intention of Parliament.
60. In our judgment, the way in which this particular judge approached the task facing him was entirely appropriate and fair to this appellant, on the facts of the case. It is clear from his sentencing remarks, taken as whole, that he took into account all the material before him in reaching his decision as to the amount of benefit, fairly to be attributed to this defendant, to the extent that she should be regarded as having obtained it as a result of or in connection with the offence.
61. He was faced with an undoubted loss of over £220,000; that sum has moved from the losers to those who participated in this conspiracy. The judge had before him just four identified conspirators. He had no information as to how the proceeds of the conspiracy had been divided between them and between anybody else involved. We note in passing that, had the learned judge divided the total sum obtained by the number of conspirators alleged namely eleven, the sum thereby obtained would still be larger than the final sum he ordered to be paid by this appellant.
62. In our judgment, where there is clear evidence of movement of money to conspirators as in this case and in the absence of any evidence as to how the benefit of the conspiracy has been divided between individuals, dividing the total amount between those identified is as good a starting point as any. But it does not stoper there and the learned judge in this case rightly did not stop there. He stated, in terms, that in fairness and in the interests of justice he was bound to take into account the fact that other people were involved and would benefit to some extent. As Mr Forbes conceded he was in the best possible position to assess the roles played by each of the conspirators before him.
63. Mr Forbes however complains that this approach fails sufficiently to take into account the fact that the evidence indicated this appellant had made only one application for a credit card which had been successful.
64. In our judgment, this argument ignores the reality of the situation. Jane Gibbons was convicted of playing her part, in a large and sophisticated conspiracy, which netted her and her co-conspirators substantial ill-gotten gains. There can be no doubt that between them they received a very substantial sum.
65. In any event, as Mr Hillen on behalf of the prosecution has argued, the essence of this conspiracy as particularised in this case, was that this was a conspiracy to obtain, money by deception. Neither this appellant nor her co-accused provided any assistance the court, as to how the sums they had received had been divided between them or how much had passed over to any one of them.
66. It is true to say that the learned judge did not actually specify the figure at which he arrived as to the amount of benefit this appellant obtained as a result of carrying out his assessment. No doubt, that was because, in the absence of a clear evidence as to the division of the proceeds he would have been forced to pluck a figure from the air. He was forced and, in our view entitled, to take a broad brush approach provided he did so reasonably and fairly. Taking into account the fact that this appellant had every opportunity, to contest the assertions made by the Crown and the arguments advanced we are satisfied that however one approaches the calculations to be made here, on facts of this case, the judge was perfectly entitled to conclude on the evidence before him, that J Gibbons benefited the tune of £18,121 of as a result of or in connection with the criminal conduct of which she had been convicted.
67. Accordingly, in our judgment, this application for leave to appeal the confiscation order must be refused. The confiscation order cannot be described as excessive.