England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		18 November 2004

LORD JUSTICE KENNEDY:

1. On 2 April 2004, in the Crown Court at Sheffield, this appellant was convicted of misconduct in a public office and was sentenced to 18 months' imprisonment. He was also ordered to pay £25,000 towards the costs of the prosecution, to be paid by 2 April 2005. He now appeals against conviction and sentence by leave of the single judge. Yesterday we said that the appeal against conviction is dismissed and we now give our reasons for that decision.
2. The case was concerned with the conduct of the appellant as Leader of Lincolnshire County Council in relation to a proposed re-alignment of the A1073 Peterborough to Spalding Road in the vicinity of Crowland. The conduct of the appellant in 2000 and 2001 was said to be inappropriate to the extent of being criminal, having regard to his ownership of a 4 acre plot of land, the value of which could be affected by the line of the road.
3. The single judge gave leave to appeal against conviction on three grounds, which can be summarised as follows:

(1) that the trial judge misdirected the jury about the mental element required for the offence, and failed in particular to deal adequately with mixed motives;

(2) that the judge was wrong to reject the submission made by the defence at the end of the prosecution case that there was no case to answer; and

(3) that the judge was wrong to rule that counsel for the defendant could not, when opening the defence, remind the jury of its common law right to acquit the defendant at any time after the close of the prosecution case.

It is not, therefore, necessary to deal with the evidence in detail, but in order to set in context the first two grounds of appeal it is necessary to outline the facts.

The Background

4. The appellant was born on 10 July 1936, so he is now 68 years of age. He has no previous convictions. He was not at any relevant time a large land owner. He lived in Crowland, where he had a number of parcels of land which he owned or rented, as can be seen from the plan at page 1544 of the court bundle. One of those parcels of land was a 4 acre field adjacent to Barber's Drove. It is that parcel of land which is central to this case.
5. Many years ago a by-pass was built to carry the A1073 past Crowland. The village now lies to the west of the road which at that point runs in a north-easterly direction. The appellant's land was separated from the village by the road. In the 1970s and 1980s the appellant made a number of applications for planning permission to develop that land for industrial use. He did not intend to develop it himself because his interest was in farming, but he recognised that he would have benefited if permission were to be granted. On each occasion permission was refused. Every refusal indicated that a fundamental objection to the development proposal was that the land was separated from the village by the A1073. In 1995 draft planning permission was given for a dwelling and outbuildings to be occupied by someone employed in agriculture, but that was not pursued.
6. By 2000 the appellant was a very experienced councillor. He had been a Parish Councillor at Crowland since he was 28. He had acted as chairman of the Parish Council about six times, but stepped down in 1973. He was elected a County Councillor in 1967 and became Leader of the Conservative group in 1993. He became Leader of the council when his party won the election in 1997.
7. As a County Councillor the appellant was required to register his interests, including land holdings. He did register land in and around Crowland, but not in such a way as to enable anyone inspecting the register to know to which land the registration referred. The evidence showed that at the material time the rule that required that degree of identification was not being enforced. The Parish Council did not even have a registration book.
8. The appellant was not alone in believing that to reduce the number of accidents the A1073 needed to be re-aligned, with a new by-pass being built to the east of Crowland beyond the existing road. As Mr Harbage QC for the appellant pointed out, it is well known that such schemes have a long period of gestation and have to pass through many stages from conception to implementation. But the evidence showed that from before 2000 this road improvement scheme was the appellant's pet project. He was passionately in favour of it. He was a man with a strong personality, so it became a council priority.
9. On 7 February 2000 the project was discussed with the County Council's officers. The appellant wanted a dual carriageway. The officers knew that there was no possibility of obtaining government funding for that. Eventually the appellant accepted that. A plan was produced. According to the officers, the appellant said to Mr Kirby, the Director of Environmental Services, and to Mr Jameson, the Head of Technical Services, that they would have to move the line of the proposed road away from Crowland village at the Peterborough end of the village because the Parish Council had a tree planting scheme. Mr Bowles, the Chief Executive, was present at the afternoon meeting. According to the officers, the appellant said nothing about owning any land in the vicinity of the proposed road. That was not directly challenged by the appellant when he gave evidence. He said he had no thought at this meeting that he owned a field nearby. But his deputy, Councillor Mawby, recalled a meeting at about the material time at which the appellant pointed out a field and said to Mr Jameson, apparently in the presence of Mr Bowles, that if this field was ever affected in any way he was to be informed because he would have to declare an interest. Mr Jameson denied that anything of that kind was ever said and claimed that had it been said he would have remembered it. He would have told the appellant he needed to declare an interest and would have taken no further account of his views as to where the road should go.
10. The concept of having to declare an interest was, according to the evidence, familiar to councillors and officials alike. If asked, Mr Kirby advised councillors that they should declare an interest if they had more to gain than a normal person and if the situation was marginal they should seek advice. Over the years the appellant must have witnessed declarations of interest many times, but in evidence he said that his understanding was that a land owner need only declare an interest if a proposed road went through his land, not if it was next to it. That seems to have been his position even if the proposal increased the value of the land.
11. On 14 March 2000 Mr Karley, the Divisional Highways Manager for Boston and South Holland, wrote to the appellant with a copy of the first draft detailed route alignment. He asked for assistance about land owners along the route so that they could be contacted and invited comments about the alignment, particularly any that would help to avoid problems of which the officers might not yet be aware. If the appellant wanted to discuss the matter, he was invited to contact Mr Karley, or in his absence Mr Greener, who was the Project Manager for the preparation of the scheme. It was the prosecution case that the appellant made no attempt to contact Mr Karley. Instead he summoned Mr Greener who, as a junior official, might be easier to persuade. The appellant indicated in evidence that he would have telephoned Mr Karley and when told he was out would then have contacted Mr Greener. Maybe, but Mr Karley was never told that the Leader wanted to see him.
12. It is common ground that the meeting between the appellant and Mr Greener which took place on 24 March 2000 is important. Mr Greener had never previously been asked to see the Leader of the authority. When he was summoned on 23 March 2000 he was a little apprehensive, but all went well. The appellant examined the whole 9 kilometre length of the proposed road re-alignment and made comments about places other than Crowland. But as to that part of the road he said that he would prefer the line to be altered. He took a red pen and sketched his suggested route on the plan, saying, "This line will provide development opportunity". He then scribbled to indicate the land which would enjoy the development opportunity. It was land next to his which, together with his land, would be transferred to the village side of the A1073. He said that he and his cousins owned land at Crowland. He put a cross on his land, saying, "I think this may be my land". When he returned to his office, Mr Greener asked his assistant, Mr Kent, to check the feasibility of the route suggested by the appellant. Mr Greener clearly regarded it as important to do what the appellant had suggested if it was practicable.
13. The appellant, when he gave evidence, did not really dispute Mr Greener's account of the meeting. He said he was just trying to assist. When he marked his own field he did not necessarily regard it as a declaration of interest and had no thought of any development of that field.
14. Before Mr Kent completed his work of revising the plan the appellant on 3 April 2000 returned to Mr Karley the plan sent to him under cover of the letter of 14 March 2000, there having been marked on it his proposed new alignment for the road and the other markings he had made in the presence of Mr Greener. He also listed and indicated on the plan the land owners affected, but his name did not appear on that list. When he gave evidence his explanation for the omission was that the road did not go through his land.
15. The re-alignment scheme received support from Peterborough which was responsible for the southern end of the route. The appellant tried to have the scheme accelerated. Lincolnshire then consulted the Agricultural Development Advisory Service ("ADAS") as to who owned what land. Their report of 18 August 2000 identified the appellant's holding. But Mr Jameson said he was unaware of that. However, on 13 September 2000 Mr Jameson said that he spoke to the appellant on the telephone and in the course of that conversation the appellant said that the road would go one side or the other of one of his fields. Mr Jameson, who was about to go on holiday, was, he said, concerned. He asked Mr Greener or Mr Kent to discover via the ADAS which field it was "so that we can advise Councillor Speechley what he should say and do in terms of declaration of interest etc". The e-mail from Mr Jameson to Mr Greener was copied to Mr Karley, Mr Brookes and Mr Wills, the Director of Highways.
16. In fact neither Mr Jameson nor any of the other officers seems to have pursued the issue during the autumn of 2000. There was a public consultation exercise during which the appellant campaigned for the "off line" route which he preferred, and 81 per cent of those consulted agreed with him.
17. So far as Mr Wills was concerned, the penny seems to have dropped early in January 2001. There was then a meeting on 5 January 2001 attended by Mr Wills, Mr Jameson and the appellant, at which the consultation exercise was discussed. According to the officers, it was then put to the appellant that he owned some land in the area. According to Mr Jameson, he identified it immediately, putting his finger on the plan and saying, "That one". He was told that he needed to be aware that it was an interest and that they would write to him in response, which he acknowledged with a nod. The evidence of Mr Wills was broadly to the same effect.
18. When he gave evidence the defendant said that the January meeting was a meeting at which the public consultation was discussed but no question was put to him about land ownership and nothing was said about declaring an interest. That may not have been easy for the jury to accept because after the January 5th meeting the officers reported to Mr Bowles and on 12 February 2001 Mr Bowles sent an e-mail to Mr Jameson which read:

"I understood that you had quite an extensive conversation with him on the 5th and the difficulties of some land owners. I would rather there was a fairly full record of what was discussed there then in some detail. We do not want any allegation that the lines have been developed in anything other than a proper way to protect both him and us. In that note I would refer to the advice he was given by you about the land so it is clear that it was on the 5th when we first became aware of it and could offer that advice."

That e-mail was copied to Mr Wills. Both he and Mr Bowles saw the draft of a letter written to the appellant by Mr Jameson and dated 14 February 2001. That letter contained this paragraph:

"During the meeting on 5 January 2001 you indicated that you owned a parcel of land between the existing Crowland by-pass and a possible line of the new route. As construction of the new route on this possible line could have the effect of increasing the value of this parcel of land, I must advise you that you should consider whether you need to declare your interest in this. Clearly declarations of interest are matters for each individual member to consider."

At trial time was spent considering why that letter was not written sooner and in more direct terms, but for present purposes that does not matter.

19. Mr Jameson was 85 per cent sure he handed the letter to the appellant personally, the other 15 per cent possibility being that he put it on the appellant's table. But the appellant has always contended that he never received the letter.
20. There were public consultation meetings in February 2001. On 19 March 2001 there was a Highways and Planning meeting to consider the preferred route. The appellant attended. He did not declare an interest. The appellant's evidence was that he spoke as a local member of the Parish Council and that it never crossed his mind to make a declaration, but Councillor Croft, a close colleague, did make a declaration and left.
21. In May 2001 Mr Bowles consulted the Monitoring Officer, Hazel Salisbury, who gave him her written advice that if the situation recurred the appellant should be warned by the Monitoring Officer or the Chief Executive. In the Notice of Pecuniary Interest which he completed on 11 June 2001 the appellant for the first time referred specifically to his land at Barber's Drove.
22. Following a meeting of the South Holland District Council on 9 August 2001, at which the appellant was present, a new plan was produced by Mr Kent on 19 September 2001. It dealt with the issues raised at the meeting on 9 August, but cut across the corner of the appellant's field. It became known at the trial as the "clipping plan". Subsequently, during November 2001, the officers noticed what had happened to the appellant's land. The plan was re-amended to take the proposed road round that land, but not before there had been some circulation of the clipping plan.
23. Also during November 2001 it became known that a local journalist, Mr Orange, was making inquiries. The appellant was at a Parish Council meeting on 12 November when he produced a map indicating what he then believed to be the final route. It was the route which preceded the clipping plan.
24. On 16 November the appellant attended the launch of the Rural Academy for South Holland, and agreed to be interviewed before the public event. Mr Orange asked him a couple of questions about the prospects of development at Crowland. The appellant indicated that they were small. Mr Gull, who was conducting the television interview for the BBC, asked not only about the Academy but also (which the appellant had not anticipated) about the A1073. It was put to him that he owned land right next to the route of the by-pass. He was asked if that created a conflict of interest for him, considering his position. He answered:

"Well, I own land and property in Crowland, like a lot of other people does. It's not actually next to the bypass. I have land, you know, in different parts. And certainly that is no problem at all, for me at all. The need of the road is the number of fatal accidents that have been made that take place continually there, and the importance of a better road from Peterborough to Spalding."

25. When he gave evidence the appellant said that he understood the interviewer to be referring to the old by-pass. When pressed, he acknowledged to the interviewer that his land was literally a stone's throw from where the by-pass was going to be. It was put to him that the new road would substantially increase the value of his land. The appellant denied that. He said:

".... in actual fact, it is currently to be fairly close to the old bypass, and there are properties next to it. I certainly don't see it improving the value of that particular field, because in actual fact I did have planning permission myself on there to build a few years ago, and that actually ran out. So I certainly don't look at increasing its value than it was previously to where the route is going to be."

That was a position which he maintained in evidence. He was asked by Mr Gull if he had only recently registered his land at Barber's Drove, and he denied that. It was the prosecution case that in that interview the appellant was lying or was at least evasive.

26. On 16 November 2001 the appellant complained to Mr Wills that the BBC interview had been hi-jacked by Mr Orange over the A1073 and his ownership of the land.
27. Mr Orange wrote to the Council's officers. On 20 November 2001 Mr Bowles saw the appellant. According to Mr Bowles, the appellant said, "You have got me. I'll have to resign. This is a criminal offence". The appellant, in evidence, denied making that admission, but it was recorded by Mr Bowles in a memorandum. Mr Bowles said to the appellant that if he had heeded advice he would not be in that position. He referred in particular to Mr Jameson's letter of 14 February 2001. The appellant said that he had never received it. According to Mr Bowles, he mentioned the possibility of the matter going to the police. In evidence the appellant disputed that.
28. It seems that after he had seen Mr Bowles the appellant contacted Mr Jameson, saying he had never received the letter of 14 February. Mr Jameson said that he had delivered it by hand. According to Mr Jameson, the appellant then said:

"It seems, Paul, that I have committed a criminal offence. That bugger Bowles has finally got rid of me."

Mr Jameson did not reply, but sent a fax copy of the letter of 14 February to the appellant. The appellant accepted that he may have been offensive when speaking about Mr Bowles to Mr Jameson, but he said nothing about committing a criminal offence or being got rid of.

29. On 23 November 2001 there was a meeting of the full County Council at which the appellant did declare that the line of the proposed road was on or about his land. Then under cover of a letter dated 20 November 2001 the appellant received a copy of the clipping plan. Armed with that, he attended a meeting of the Parish Council on 26 November 2001. He made no declaration of interest but suggested that the Parish Council should register a strong protest to the County Council in writing that the line of the proposed line should go further out, as it had done originally. That was agreed. The appellant, in evidence, agreed that with the benefit of hindsight he would not have attended the meeting. He had no explanation to offer as to why he did not declare an interest when the proposed route actually crossed his land.
30. On 27 November 2001 the police were informed. The appellant's home was searched. On 14 December 2001 the appellant wrote to the Head of Personnel asking when the Director of Highways (Mr Wills) and the Chief Executive (Mr Bowles) had last been appraised. The appellant's explanation in evidence for the inquiry was that the appraisal system had become lax, but he accepted that he was annoyed and believed Mr Bowles to be responsible for his predicament with the police.
31. On 18 December 2001, at a meeting of the Policy Committee, the appellant declared an interest and left the meeting. He knew by then that a mistake had been made when the clipping plan had been sent out, but chose to declare an interest nonetheless.
32. At the meeting of the Highways and Planning Committee on 28 January 2002 the off-line route favoured by the appellant was adopted.
33. In March 2002 the appellant was interviewed by the police. For present purposes we need not dwell on that.
34. In May 2002, after an approach from the wife of the purchaser, Mr Gibney, the appellant sold the line in question to Mr Gibney for £22,000.
35. Proceedings were then instituted against the appellant for offences of failing to register and to declare his interest. Those proceedings were instituted out of time, so they were withdrawn. On 22 August 2002 he was arrested for misconduct in public office. When interviewed he made no further comment, but made statements denying misconduct and saying that the investigation had become a witch hunt.
36. At trial the tension between the Council officers and the appellant was evident. The prosecution called expert evidence as to the effect of the proposed road on the value of the appellant's land. Mr Brown was a local chartered surveyor. He said that the possibility that planning permission would be granted gave the land hope value, but here the likelihood of development would be fairly remote. As agricultural land it was worth about £2,500 per acre (in other words £10,000). For light industrial use its value would be £190,000. He thought that the sale price of £22,000 was reasonable, but his advice would have been, "If you don't need to sell it, don't do so; there is a chance of development".
37. To other witnesses it was obvious that the line of the road made a critical difference to the development potential of the appellant's land. The planning authority's response to the earlier planning applications for industrial development tended to support that view.

First Ground of Appeal

38.We return to the first ground of appeal, which concerns the judge's direction to the jury as to the mental element required for he offence and the way in which he dealt with mixed motives.

38. Misconduct in a public office is an offence contrary to common law, and it is not often alleged. In this case the particulars of the offence alleged that the appellant misconducted himself in his public office of Leader of the City Council in that

"he sought to influence the route to be taken by the A1073 road improvement scheme in the area of Crowland with a view to gaining a personal advantage thereby, namely the potential increase in value of a field owned by him at Barbers Drove South, Crowland."

The prosecution gave further details of what they alleged to be the appellant's misconduct in an addendum to the Prosecution Case Summary which was served pursuant to a direction made by the trial judge at a pre-trial hearing on 29 July 2003. For present purposes it is unnecessary to set out those further particulars. After all the evidence had been heard the judge rightly discussed with counsel, in the absence of the jury, how they should be directed as to the necessary elements of the offence. He gave the jury the critical part of his direction in writing. He reminded the jury of the appellant's assertion that the question of declaration of interest never occurred to him; it never crossed his mind as an issue, and that he acted as he did for the sole benefit of the people of Crowland and the users of the A1073.

39. Misconduct, the judge said, is an ordinary word but it must be serious misconduct, calling for condemnation by members of the public represented by the jury. It could be in the form of acts or omissions, and the judge then said this:

".... you cannot and must not convict unless the prosecution have proved, so that you are sure, that the defendant:

1.Quite deliberately pursued a course of serious misconduct which was:

2.Quite improper; and

3.Dishonest; and

4.He did so with a clear intention of influencing the route of the 1073 in the vital area so that the new bypass would effectively enclose his land; which

5.He knew or believed would have the effect of potentially increasing the value of his field, and therefore give him a financial advantage, or, put another way, make him money by future development; and

6.That in influencing the route, the driving force in his mind and his motivation was dishonest."

Mr Harbage, for the appellant, has no complaint about that direction, but he submits that there was further assistance which the judge could and should have given to the jury in relation to mixed motives. The judge dealt with that in terms. He said at page 15D of the summing–up:

".... if you found -- and it is entirely a matter for you -- that in early 2000 he not only thought that there was potentially something in it for him in shifting the line -- in other words personal financial gain -- but that by moving the line it would, for example, help the inhabitants of Barbers Drove and address the problem of the trees -- two of the things he says he was concerned about -- then what would be the position? He would have two motives for influencing the line, one honest and the other dishonest.

As I have said, and I repeat, if you find he was, or might have been acting solely -- I stress 'solely' -- for perfectly proper motives, namely acting as the local County Councillor for the benefit of the community, as he says, then there can be no dishonesty, no misconduct, and you will acquit him.

However, if he had, so to speak, these dual motives, what is your approach? I said a moment ago that you cannot, and must not, convict unless each of the six things were proved so that you are sure. That remains the case. Even if you were to conclude that Mr Speechley had a genuine and honest motive or motives as well as the dishonest one, I repeat, you can only convict providing you are sure that in influencing the route, the driving force -- that is the key phrase here, 'the driving force' -- in his mind and his motivation was the dishonest one. If, as I say, you are sure of that, you will be entitled to convict. Anything less than sure, you acquit."

40. Mr Harbage submits that the judge should have used the approach adopted by Widgery J (as he then was) in R v Llewellyn Jones (1966) 51 Cr App R 4, where it was held that the Particulars of Offence as originally drafted did not disclose an offence in law. The defendant in that case was the Registrar in Cardiff County Court who was alleged to have made an order for the payment out of money in court in the expectation that he would gain personal advantage from the making of the order by having the money lent to him personally. The judge said that it was not easy to lay down the precise limits of the kind of misconduct or behaviour which would amount to an offence, and he then indicated the boundaries, saying at page 6:

".... if the registrar of a county court when exercising his power to order payment out of court of money held on behalf of a beneficiary were to make an order in expectation of some personal benefit which he hoped to obtain and in circumstances where, had it not been for the personal benefit, he would not have made the order, that would be an example of misconduct in a public duty sufficient to come within this rule. The reason why I feel that that would come within the rule is because in that hypothetical case a public officer would be distorting the course of justice to meet his own personal ends and, in my opinion, it would be sufficient to justify a conviction if it could be shown that he had made such an order with intent to obtain personal benefit for himself and in circumstances in which there were no ground for supposing that he would not have made the order but for his personal interest and expectation. On the other hand, I have reached an equally clear view that it is not enough to bring a country court registrar within the principle merely to show that, when making an order which was within his powers and which he could make for perfectly proper motives, he knew that by a side wind, as it were, he was going to gain some personal benefit."

Mr Harbage submits that the judge should have used that approach in the present case. The summing-up was defective because it failed to set the boundary indicated by Widgery J's final sentence. Widgery J explained that sentence further when he said a little later on page 7:

".... I would not be prepared to say that it would be misconduct for this purpose for a registrar to make a decision which did affect his personal interests, merely because he knew that interests were so involved, if the decision was made honestly and in a genuine belief that it was a proper exercise of his jurisdiction so far as the beneficiaries and other persons concerned came into it."

41. When the case of Llewellyn Jones reached the Court of Appeal (51 Cr App R 204) the court was concerned with the amended indictment, and the Lord Chief Justice said at page 211:

"Assuming in [counsel's] favour that there must be some element of dishonesty involved, a dishonest motive, a fraudulent motive, it seems to this court that that is in inherent in the words of the count. It is true the word 'dishonestly' or 'fraudulently' does not there appear, but it is inherent in the description of the offence."

In the present case with which we are concerned dishonesty was specifically alleged.

42. The only other decision to which we need refer is R v Dytham [1979] 1 QB 722, which concerned a different type of misconduct -– inaction by a police officer who observed a fatal assault. At page 727H the Lord Chief Justice said that the offence alleged involved:

".... an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment. Whether such a situation is revealed by the evidence is a matter that a jury has to decide."

That seems to us to be accurately reflected by what the trial judge said in this case.

43. As to the judge's failure to refer to the insufficiency of the defendant merely knowing that he was going to gain some personal benefit by a side wind, we accept the response of Mr Martin Wilson QC for the Crown, who submitted that to do so was unnecessary and would only have created confusion because of the way in which the judge formulated the necessary ingredients of the offence. If dishonesty was the driving force in the appellant's mind, and his motivation was dishonest, he cannot have been someone honestly seeking a legitimate goal but knowing that if he succeeded he was going to get some personal benefit by a side wind.
44. That is sufficient to dispose of the first ground of appeal, but we also accept Mr Wilson's submission that the judge went further than he need have done in favour of the defence. At point 6 it would have been sufficient to say that at some relevant time when attempting to influence the route his motivation was dishonest in that he was motivated to a significant degree by considerations of personal advantage. What amounts to a significant degree is something that could properly be left to the good sense of the jury.

The Second Ground of Appeal

45. Turning now to the second ground of appeal, it is clear that in this case the allegations made by the prosecution at the outset were not all substantiated, and Mr Wilson concedes that, but he submits that at the close of the prosecution case there was still a strong case for the defendant to answer.
46. Mr Harbage submitted otherwise, and provided the trial judge with a detailed written argument, which we have seen and to which the judge gave careful consideration before he gave his ruling. In that ruling the judge was rightly selective. It is often possible to show that there is a case to answer by pointing to a restricted part of the prosecution case, and where that can be done it is desirable to adopt that course. Amongst other things it prevents the defendant from concluding that the judge has taken an adverse view of his case.
47. Both leading counsel agreed that dishonesty was at the heart of the case, and the judge drew attention to:

(1) The meeting on 7 February 2000, and the appellant's alleged observation that the line of the road would have to be moved, at a time when, as the judge said, the jury may reasonably have concluded that the appellant knew exactly where his field was and that he owned it. They could therefore find a dishonest motive and the evidence showed that the appellant was not someone to cross.

(2) The Greener meeting on 24 March 2000 which, the jury might think, gave a further insight into the appellant's state of mind. The prosecution contended that Mr Karley was avoided, and the appellant chose Mr Greener. He marked his field, but not in such a way as to make it clear that the field was his, and because of his position in the local authority the line of the road was re-drawn.

(3) When the names of landowners were given by the appellant his name was omitted. There was a cross on the plan, but no written explanation of it.

(4) Although the defence had made headway with the expert witness, there was still ample evidence that if the appellant's field was inside the A1073 then, at some stage, it would be ripe for development, and because the appellant was experienced in local government that could be expected to be his view.

(5) The advice given to the appellant on 5 January 2001, and the letter of 14 February 2001, if the jury found that he received it.

(6) The meeting of the Highways and Planning Committee on 19 March 2001 when the appellant attended, and did not make any declaration of interest although Councillor Croft did so and left.

(7) The television interview in November 2001 when the jury might conclude that the appellant was being less than frank.

(8) The appellant's reaction to receipt of the clipping plan.

(9) The way in which the appellant registered his interest, with no particularity until June 2001. Essentially it was open to the jury to find that the appellant revealed next to nothing until the balloon went up.

(10) The appellant's intemperate letters in December 2001.

48. For those reasons collectively the judge ruled as he did. Mr Harbage submitted that the ruling failed to analyse the prosecution case and the way it came out. But that was not the judge's function. His function was to indicate, as he did, why he concluded that there was a case to answer. As Mr Wilson sets out in appendix 1 to his skeleton argument, the judge could have gone further but, as we have said, he did not need to do so. The reality was that there was a very powerful case to answer, and it would have been entirely wrong for the judge to accede to the submission made at the end of the prosecution case.

The Third Ground of Appeal

50.Mr Harbage then indicated to the judge in the absence of the jury that he proposed to remind the jury of their common law right to return a verdict of not guilty at any time after the close of the prosecution case, but the judge ruled that he was not entitled to do so.

49. In our judgment the judge was right to rule as he did. It appears to be accepted that a jury does have a right to acquit after the conclusion of the prosecution case, but we know of no case in which that right has ever been exercised other than at the invitation of the trial judge, and we are satisfied that it can only be exercised if the trial judge invites the jury to consider exercising it. That is because it is the duty of the judge to ensure that the trial is fair, both to the defence and to the prosecution, and he must therefore be in a position to decide when the time has come for the jury to be permitted to reach a decision. In almost every case in order to do justice the jury needs to listen to all of the evidence, the submissions of counsel, and the directions in law of the judge. Otherwise, for example in a case of murder, the jury might acquit without ever realising that a verdict of manslaughter was a possible alternative. So if a jury is invited by counsel, or seeks of its own motion, to return a verdict before being asked by the judge to do so the judge should in our judgment direct the jury that it is his duty to ensure that justice is done, and that it is not open to them to return a verdict until he invites them to do so.
50. Furthermore, we re-iterate what was said by Roskill LJ in R v Falconer-Atlee (1973) 58 Cr App R 348 at 357, that in practice a judge should not invite a jury to stop the case. He said:

"If a judge thinks that the case is tenuous, then, even though there is some evidence against the accused person, the judge, if he thinks it would be unsafe or unsatisfactory to allow the case to go to the jury even with a proper direction, should take upon himself the responsibility of stopping it there and then. If the judge is not prepared to stop the case on his own responsibility, it is wrong for him to try and cast the responsibility of stopping it on the jury."

That was underlined by McCowan LJ in R v Kemp [1995] 1 Cr App R 151, when he said at 156C:

"We do not think it will always be very easy to distinguish between an invitation to acquit and a mere intimation of a right to stop the case....

Moreover, a jury may well use their common sense and read a mere intimation that they have a right to stop a case as an invitation to acquit, on the basis that a judge is not likely to be giving them the intimation unless he thinks that they should acquit. If a judge is going to do anything of this sort, and we do not encourage it, he should clearly, in our judgment, not go beyond a mere intimation of the right to stop, for fear that if he goes further and utters a clear invitation to acquit, the result may be as in the present case, leaving a convicted defendant with a grievance, however unjustified."

Plainly, as the facts of that case demonstrated, a prudent judge will say nothing at all.

51. We accept that in some cases judicial silence may mean that a trial lasts longer than it need because, for example, the strengths or weaknesses of the prosecution evidence may depend upon the view to be taken of a witness's reliability, and the judge cannot therefore accede to a submission of no case to answer simply because he regards the key prosecution witness as unreliable (see R v Galbraith (1981) 73 Cr App R 124), but it is worth remembering that in an exceptional case a judge can consider a submission of no case to answer, or decide of his own motion that there is no case to answer, as late as the close of the defence case, as was pointed out in R v Brown [2002] 1 Cr App R 46. We therefore find it difficult to envisage any circumstance where in reality it will be appropriate in the interests of justice for a judge to invite the jury to acquit. Experience shows that when such invitations have been issued in the past they have all too often led to difficulties.

The Appeal against Sentence

52. We turn to the appeal against sentence. Mr Harbage accepts that a sentence of imprisonment was not wrong in principle, but he submits that the sentence of 18 months' imprisonment was too long for a number of reasons:

(1) At the time of sentence the appellant was 67 years of age. Not only did he have no previous convictions, but he had a long and distinguished record of service in local government which had been recognised when he was made a Commander of the Order of the British Empire.

(2) The very fact of conviction was destructive of his reputation and humiliating. He had already resigned from his position as Leader prior to the trial and decided not to stand for re-election to the Parish Council in 2002. As a result of his sentence his service as a County Councillor was brought to an end.

(3) Furthermore, the anxiety and humiliation were prolonged. The police were informed at the end of 2001 and the result was widespread publicity, which continued until the end of the trial in April 2004. Part of the reason for the delay prior to trial was, of course, that the prosecution originally alleged offences which were time-barred.

(4) The appellant had good as well as bad reasons for advocating the off-line route for the A1073. It is still the preferred route. His misconduct did not, in fact, yield any financial reward.

(5) The misconduct, although reprehensible, was not, as the judge described it, "conduct which strikes at the very roots of our democracy". It was more aptly described as "sleaze".

In short, Mr Harbage submits that if the judge had not exaggerated the gravity of the offence, and had taken properly into account the various mitigating factors, he would have come to the conclusion that a lesser sentence would be appropriate.

53. We disagree. If the new by-pass followed the off-line route many people, including the appellant, believed that it would substantially increase the value of the appellant's land. That is clear from the finding of the jury, having regard to the way in which they were directed by the judge. With that knowledge the appellant, as Leader of the County Council, chose to conceal his interest and to press for the off-line route using the full weight of his office and his personality to further the case. This was not a case of oversight. His conduct, as the jury found, involved dishonesty. Indeed, it was dishonesty that was the driving force. Advice was ignored. Any official who attempted to withstand the appellant had also to consider his own position. As the judge said, the public must have confidence in our public institutions. When someone in a high position is convicted of this sort of misconduct a severe sentence is entirely appropriate. But for the mitigating factors to which Mr Harbage referred, the sentence could well have been longer. Accordingly, the appeal against the sentence of 18 months' imprisonment is dismissed.

Costs

54. We turn to the order made that the appellant pay £25,000 towards the costs of the prosecution, that sum to be paid within 12 months, that is to say by 2 April 2005. The material placed before us shows that the appellant is not a wealthy man. He owns about 25 acres of land said to be worth about £2,000 per acre, but that land secures a bank overdraft of £40,000. Furthermore, some of the land is let because the appellant is partially retired. Therefore any purchaser would be buying the land subject to the rights of a sitting tenant. The appellant lives with his wife in their home, which she owns. He also owns a shop, the rent from which is a major part of his income. His accounts for the year ended 5 March 2002 show a net profit of £13,408. He has already incurred costs liabilities amounting to almost £25,000 for legal representation in relation to the charges which were withdrawn and in relation to the preparation of a public interest report. If he has to meet the costs order made by the judge, he will probably sell the shop. That, as indicated by Mr Harbage this afternoon, will seriously reduce the money on which he and his wife live.
55. Mr Harbage submits that in all the circumstances, there being no dispute about the figures, it was unnecessary and inappropriate to make any order for the payment of prosecution costs. Such orders are not meant to be an additional penalty.
56. In our judgment the judge was right to consider carefully whether it was appropriate in this case to order that the appellant pay part of the prosecution costs. We are satisfied that he was right to conclude that an order should be made; but we consider that the sum ordered was too high. We reduce the sum to £10,000, but we are not prepared to extend the time for payment. The £10,000 must, therefore, be paid by 2 April 2005.
57. Accordingly, the adjustment in relation to the order for payment of prosecution costs is the only extent to which the appeal against sentence succeeds.
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