England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM DERBY CROWN COURT
HIS HONOUR JUDGE J.J. WAIT

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th November 2003

Lord Justice May:

1. On 5^th December 2002, Layean Atkinson, the appellant, appeared in the Crown Court at Derby before His Honour Judge Wait and a jury, when she was convicted on 15 counts of a 21 count indictment. The 15 counts on which she was convicted alleged false accounting contrary to section 17(1)(a) of the Theft Act 1968. On each of these counts she was fined £200 – a total fine of £3,000 – with 3 months' imprisonment in default. She was ordered to pay costs of £17,142 within 12 months. The jury's verdicts on counts 7, 11, 12, 13 and 20 were unanimous. Their verdicts on counts 1 to 6 inclusive and 9 were 11:1 majority verdicts. Their verdicts on counts 10, 15 and 16 were 10:2 majority verdicts. She was acquitted on four other counts of false accounting, including count 18, and on two further counts of furnishing false information.
2. She appeals against conviction by leave of Pitchers J, the single judge. He granted leave on three of four proposed grounds of appeal, refusing leave on the fourth. There is a renewed application for leave on that fourth ground.
3. Section 17(1) of the Theft Act 1968 provides:

"(1) Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another, -

(a) … falsifies any account or any record or document made or required for any accounting purposes; or

(b) …

he shall, on conviction on indictment be liable to imprisonment for a term not exceeding 7 years.

(2) For purposes of this section, a person who makes or concurs in making in an account or other document an entry which is or may be misleading, false or deceptive in a material particular, or who omits or concurs in omitting a material particular from an account or other document, is to be treated as falsifying the account or document."

4. Section 34(2)(a) of the 1968 Act defines "gain" and "loss" in terms which it is not necessary to set out.
5. The appellant operated two pharmaceutical chemists in Derby. One of these was the Atkinson Pharmacy at 7-9 Uttoxeter Old Road, Derby. She acquired this business in 1994 and had built it up to be substantial. The large majority of prescriptions with which the pharmacy was concerned were for elderly residents at nursing or residential homes. Patients who came to collect their prescriptions in person were only a small proportion of the business.
6. Payment to the pharmacy for prescriptions was effected through the Prescription Pricing Authority. To obtain full payment for prescriptions, the pharmacy submitted prescription forms. These gave details of the patient and the drug prescribed and so forth. Patients who were not for one reason or another exempt from making a payment for their prescription themselves were at the time required to pay £5.80 for their prescription. The amount of the payment which the pharmacy received had to be recorded on the form and that amount would be deducted from any payment to be made by the Authority to the pharmacy. Those who were exempt from payment included patients who were 60 years of age or over and those who received income support or some other Social Security payments. Almost all the patients in nursing or residential homes were over 60 and entitled to prescriptions without payment. The form had boxes to record these facts or to record the fact that a patient had paid for the prescription. The form concluded with a declaration to be signed either by the patient or the patient's representative declaring that the information was true and complete. There was a warning that false information might lead to prosecution.
7. The essence of the allegations against the appellant in the indictment was that she submitted prescription forms to the Pricing Authority for payment which she knew contained materially false information and that this was dishonest. In most instances, it was alleged either that the form stated that the patient was over 60 when the appellant knew that he or she was not; or that the form falsely indicated that the patient had made no payment for the prescription when the appellant knew that payment had been made. There were variants in the details. As to the signatures on these forms, we understand that it was acceptable in an appropriate case for the appellant herself to sign as the patient's representative provided that she was in a position to know that the information on the form was correct. She might, for instance, know perfectly well that a regular customer was over 60, as patients from nursing homes would be. The appellant accepted that she had signed some of the relevant forms. Others were signed by one or more employees on her behalf. At least one other had been signed for her by her young daughter. Count 20 related to a prescription form for the appellant herself. On this form, a box had been ticked indicating falsely that she was in receipt of income support.
8. After her arrest in July 2000, the appellant was interviewed on five occasions. She strongly denied any dishonesty. In relation to her own prescription form, the subject of count 20, she admitted endorsing the front and signing the reverse. The over 60 box had been marked and crossed out and a mark made in the income support box. She accepted that she might have been responsible for marking the 60 or over box by mistake, but she had not crossed it out or altered it to claim the income support exemption.
9. The appellant gave evidence at her trial. She was born in Malaysia and came to this country in 1979. She graduated as a pharmacist in 1984 and purchased the Atkinson Pharmacy 10 years later. She and her husband then took on another pharmacy which was run with the help of an assistant. By 1998, they had contracts with 22 residential nursing homes and this amounted to about 80% of their work. Over 96% of all the prescriptions which they handled were for patients who were exempt from payment.
10. In the Spring of 1998, her marriage ran into difficulties. In April 1998, her husband left home leaving her to cope with her children and the pharmacy businesses alone. There were a number of additional pressures at the time. She had 23 registered drug addicts collecting their methadone each day. She had problems with the children being bullied at school. She relied on locums and other assistants and in the summer provided work experience for students. Most of her time was spent in a room at the rear of the pharmacy preparing and dispensing medication. She rarely herself dealt directly with patients. When she did so, she would ensure that the patient signed the reverse of the prescription form wherever possible.
11. At the end of each week there were numerous prescription forms whose declaration had not been signed. She regularly took these home to complete. She would sit at a table going through piles at a time while watching television and talking to her daughters. If she noticed something out of the ordinary, she would make a check. But she often worked on "autopilot" and regretted not looking at the front of each prescription. Her daughters asked if they might help, and on one occasion she allowed them to do so. She regularly overlooked things and prescription forms were often returned by the Pricing Authority. Sometimes her errors caused her financial loss. In some instances, former members of staff were responsible for entering the declaring signature on the reverse of the forms. Errors occurred simply because of the large number of prescription forms from residential nursing homes. Five former employees gave evidence to the effect that they had signed prescription forms on behalf of the patients. Numerous witnesses described the appellant as a conscientious and professional individual.
12. This court considers that, of the three grounds of appeal for which the single judge gave leave, one is substantial and the other two are not. Each of these grounds relies on what are submitted to be material errors in the judge's summing up. Two of the grounds relate to the mental element which the prosecution had to establish to found a conviction under section 17(1)(a) of the 1968 Act.
13. The judge directed the jury that the prosecution had to establish that each form was signed by the appellant or someone authorised by her to do so. He then said:

"So did she do it or authorise it, and crucially in this case, was it done dishonestly? And that is the real issue throughout this case, was there dishonesty, as the prosecution say, or carelessness as the defence say?

Now, members of the jury, dishonesty is an ordinary English word, which you understand, which does not of itself require definition. But what I do have to do in this case is to describe to you the circumstances in which you would be entitled to conclude that the defendant was being dishonest, if you were sure that those circumstances arose.

First of all, you would be entitled to conclude that she was dishonest if in respect of any transaction you were considering you were sure that she knew or believed that the information that was going on to the declaration was false, that is if she signed the declaration that someone was on income support and you consider on the evidence that she knew or believed that that was false at the time she did it, then you would be entitled to conclude that she was guilty. If she did not know or believe it, then we will move on.

You would be also entitled to conclude that she was dishonest in these circumstances. The defendants have said that she was signing declarations for a great many patients who were over 60 because the bulk of her work came through nursing homes, I think she put it as something over 80%, and if those prescriptions were coming in directly from the surgery or brought in in bulk from the nursing homes, and as she has said there were some 300, or whatever, the declarations were made of over 60, then members of the jury, if you were sure that she knew that it was likely that among the forms she was signing there were forms of patients who had paid for their prescriptions, but there was no declaration to that effect, you would be entitled to conclude she was guilty. If you are not sure not guilty.

That is if you were sure that she knew that the system being operated in her pharmacy was such that there were going to be blank forms from paying patients in the box and among the many for the over 60, then if it was so, then you would not have to conclude that she knew about each individual form, but if she knew that among those in the box there were likely to be prescriptions from people who had paid for which she was making a declaration that they were over 60, then you would be entitled to conclude that that was a dishonest way of operating.

…

… When she has signed them she has patently had something to do with them, and she has signed the bulk. Where someone else has signed them you in addition have to be sure that she knew about those prescriptions and knew and authorised that they be put into the box to be dealt with as prescriptions from someone who was exempt whilst she knew that that was not in fact true.

So three categories of potential dishonesty, members of the jury, in each case you would have to be sure of it. First of all you could conclude she was dishonest … if she knew at the time of the declaration that it was false then you could conclude that was dishonest.

Secondly, if it was part of a package, part of a system whereby she knew that there were going to be some forms which she was claiming were exempt when having had the fee in her box, then that would be capable of being dishonest without you having to know about the individual forms.

Thirdly, in respect of the three forms which were not signed by her, for which there is no evidence that they were signed by her, you have to be sure that she knew about those forms and authorised that they be dealt with in that way."

14. At the conclusion of his summing up, after he had reminded the jury in summary of the evidence relating to each of the counts on the indictment, the judge said this:

"Well, members of the jury, that is the evidence you have to consider. Crucially, was she dishonest or not? If you were sure that she was dishonest then it seems probable that you are going to find her guilty of most if not all of the charges, but if you are not sure that she was dishonest, if you think it was or may have been that she was careless or under stress, then she would not be guilty of all charges."

15. Mr Mulholland's first submission is that the judge's direction that the jury were entitled to conclude that the appellant was guilty of any of these offences if they were sure that she knew that it was likely that among the forms she was signing were forms containing false information materially understates the necessary mental element inherent in the statutory words "with a view to gain" and "with intent to cause loss". He submits that the necessary intent has to be proved and likelihood is not enough. He says that knowledge that a false statement is likely equates with recklessness, and that recklessness here is not sufficient to infer the necessary dishonest intent. He emphasises that the statutory offence requires a deliberate intentional act. He refers to R v. Cunningham [1957] 2 QB 396; R v. Maloney [1985] AC 905; R v. Hancock [1986] AC 455; and R v. Woollin [1999] AC 82. The last three of these cases are among the well known House of Lords authorities relating to intent in homicide cases where a simple direction as to intent to kill or do really serious bodily harm is not enough – as, for instance, where an adult in temper injures and kills a tiny baby, but his case is that he did not have the requisite intent for murder. In such cases, the jury should be directed that they are not entitled to find the necessary intention for a conviction of murder unless they feel sure that death or really serious bodily injury was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions. Mr Mulholland does not put his present case as high as that, but he does refer to the passage in the opinion of Lord Scarman in Hancock at page 473, where he said that the greater the probability of a consequence the more likely it is that the consequence was foreseen; and if that consequence was foreseen, the greater the probability is that that consequence was also intended.
16. In our judgment, in the present context Mr Mulholland over-concentrates on intent in isolation from the requisite mental state as a whole. Where it was established that the appellant had submitted prescription forms containing materially false information, the essential question was whether she did so dishonestly. The specific intent required for murder is quite distinct from the act or acts which cause death. The same may be said of physical acts which comprise false accounting and the mental state in which those acts are done. The mental state has to be dishonest with a view to gain or with intent to cause loss. But that is a composite mental state which only lawyers would think of breaking into component parts. Dishonesty in this context connotes deliberately and intentionally making a false accounting statement knowing it to be false. The purpose or intention of making the false statement has to be established. And we suppose that unusual facts might possibly arise where a person deliberately and intentionally makes a false accounting statement knowing it to be false without any purpose of personal gain or loss to another. But that would be quite unusual. In the present case, there was no issue but that, if the appellant did make deliberate false accounting statements knowing them to be false, she did so with the necessary intent. As the judge rightly said, the crucial question was whether she was dishonest or not. The nub of the present appeal, as Mr Snell for the Crown rightly submits, is whether the judge's direction as to likelihood was a misdirection, in that it understated findings from which the jury would be entitled to conclude that the appellant was dishonest. It is clear that, when he gave these directions, the judge was directing what he said to dishonesty and not to a fragmented mental element limited to intent alone.
17. In our judgment, the passage at the very end of the judge's summing up, which we have quoted earlier in this judgment, taken alone was both an accurate and sufficient statement of the central issue which the jury would have to consider if they found appropriate underlying facts. If the appellant submitted prescription forms containing false information, that was in ordinary understanding dishonest if she did so knowingly and deliberately. Her case was that, insofar as she may have submitted prescription forms containing false information, she did so carelessly or inadvertently because she was under stress.
18. The judge had given a compressed version of the same essential direction earlier in his summing up at the beginning of the extended passage which we have quoted. The next passage correctly states that dishonesty is an ordinary English word which does not of itself require definition. The judge was then correct to say that if the appellant signed a declaration knowing or believing it to be false, the jury would be entitled to conclude that she was guilty. In the context, that was a reference to the signing of a single declaration. The judge then addressed the situation where the appellant might be signing a large number of declarations. Of these he said that if the jury was sure that the appellant knew that it was likely that among these forms were forms containing false information, they would be entitled to conclude that she was guilty. Taken alone, we consider that this direction was unhelpfully confusing. The mental state which it represents sits uncomfortably on the border line between deliberate dishonesty and carelessness. Mr Mulholland would characterise this as recklessness. We are inclined to think that in the present context such terminology does not help the analysis. Suffice to say that, if this sentence in the summing up stood alone, we should be strongly inclined to conclude that the appellant's convictions were not safe.
19. But it did not stand alone. The immediately following direction was that if the jury were sure that the appellant knew that the system being operated in her pharmacy was such that there were going to be blank forms from paying patients in the box, the jury would not have to conclude that she knew about each individual form. If she knew that among those in the box there were likely to be prescriptions containing false information, the jury would be entitled to conclude that that was a dishonest way of operating. This passage again sits somewhat uncomfortably on the border line between dishonesty and carelessness. But the opening part of it at least firmly states a state of mind capable of being dishonest. If the appellant knew that the system was going to produce for her to sign some prescription forms containing false information and she signed them all, that was capable of being dishonest.
20. There are then two subsequent passages immediately following in the summing up in which the judge directs the jury that, in order to convict, they had to be sure that the appellant knew that information on the prescription forms she was submitting was false. These were the passages in which the judge dealt with forms signed for her by others and the passage in which he referred to a system whereby the appellant knew that there were going to be some forms which contained false information. Here, as in earlier passages, the judge said that that would be capable of being dishonest, not in terms that it was.
21. Mr Mulholland submits that, even if the passage at the end of the judge's summing up may be regarded as correct in law and sufficient, it nevertheless harks back to the judge's earlier definition of what was capable of being dishonest. He submits that the two passages containing the word "likely" diminished the necessary ingredients of dishonesty to an extent that the jury may have been misled into convicting the appellant upon findings of fact which did not surely amount to dishonesty. We see the force of this submission, but consider that the summing up has to be seen as a whole. So viewed, we consider that the jury were in substance properly directed as to dishonesty. The judge's general directions as to dishonesty could not have been clearer. There are points of criticism as to the passage which follows, but we consider that the general import of the particular passage is plain enough. If the appellant knew that a batch of forms which she was signing included forms with false information on them and with this knowledge deliberately submitted them, that in our judgment was indeed capable of amounting to dishonesty. That is what the judge in substance said in the latter part of the extended passage which we have quoted. If the appellant knew that a batch of such forms was likely to include forms with false information and with that knowledge deliberately submitted them, that also, depending on the jury's view of the evidence as a whole, was capable of being dishonesty. That is in substance what the judge said in the earlier passage. Insofar as this latter possibility, taken alone sits uneasily on a border line, the other clear directions as to dishonesty in this summing up dispel that possibility. After careful consideration, we have concluded that this ground of appeal should fail.
22. The second ground of appeal assumes that the first ground fails, and further assumes that the judge's summing up was to the effect that a person may be dishonest for the purpose of an offence of false accounting if they are reckless. We have indicated that in our judgment this is not the effect of the judge's summing up. The submission nevertheless is that the judge was in error in failing to give a direction of the kind considered in R v Ghosh [1982] 1 QB 1053. In the relevant part of that case, the court was considering the meaning of "dishonestly" in section 1 of the Theft Act 1968. The court rejected an approach that the test was purely objective. On the other hand to adopt an unvarnished subjective test would be to abandon all standards but those of the accused himself. Accordingly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.
23. More recent decisions of this court have shown that, in most cases where dishonesty is alleged, a direction of this kind is not only unnecessary but also misleading – see R v. Roberts (William) (1987) 84 Cr. App. R. 117 and R v. Price (1990) 90 Cr. App. R. 409. The direction need only be given in cases where the defendant might have believed that what he or she was alleged to have done was in accordance with the ordinary person's idea of honesty.
24. As we have said, the submission assumes that the judge directed the jury that a person might be dishonest as a consequence of recklessness. We do not accept this interpretation of the judge's summing up. It is further submitted that the appellant may have acted as she did for a number of possible reasons such as tiredness or a hope that no errors would result from her actions. These possibilities did not, in our judgment, require a Ghosh direction. The judge explicitly said that, if the appellant may have acted as she did because she was careless or under stress, she would be not guilty. Importantly, however, the substance of the summing up taken as a whole was that she would be dishonest if, acting deliberately, she knew that what she was doing would result in her submitting prescription forms containing false information. It was not suggested on her behalf that that state of knowledge might not amount subjectively to dishonesty.
25. The third ground of appeal is that the judge should have left for the jury's consideration a factual possibility which they might conclude on the evidence was or might be correct, but which was the case of neither the prosecution nor the defence. The officer of the Prescription Pricing Authority had agreed that there had been a number of prescriptions for which the appellant had not been paid because the forms were not correctly filled in. It is submitted that it was a possibility that the appellant deliberately or recklessly sent in forms containing false information in order to recoup her losses on other forms for which she had not received payment. In our judgment, this ground only has to be articulated to see that it has no merit whatever.
26. The appellant finally renews her application for leave to appeal on a fourth ground rejected by the single judge. The appellant was acquitted of count 18. It is submitted that the jury's verdicts on 11 of the counts on which she was convicted should be regarded as unsafe because the convictions on those counts were inconsistent with the acquittal on count 18. Count 18 concerned a Mr Gargaro. It is accepted that the facts relating to the prescription form which was the subject of count 18 were not identical with those of the other counts. In his case, the appellant had stated in interview that she knew him and that he was not exempt from payment. She had not said this of all the others. It is nevertheless submitted that the prosecution had put forward a pattern of dishonesty and that there was no sufficient difference between the facts relating to count 18 and those relating to the other counts to provide a rational explanation for the different verdicts.
27. Granted that the acquittal on count 18 was curious, it does not in our judgment affect the safety of the convictions on the other 11 counts. It was not logically inconsistent since the facts were different facts. No doubt there is an explanation why the jury gave the verdict which they did on count 18. The acquittal on this single count does not in our judgment impugn the safety of the other eleven convictions upon which the jury must necessarily have cumulatively spent a great deal more time. The application for leave on the fourth ground of appeal is refused.
28. For these reasons, we conclude that the appellant's convictions were safe and her appeal is dismissed.