England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Crown Court at Chester
HHJ Dutton

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/12/2007

LORD JUSTICE HOOPER :

1. At the conclusion of the hearing we announced that the appeals were dismissed. We now give our reasons. All members of the court have contributed to the judgment.
2. On 6 June 2006 in the Crown Court at Chester before His Honour Judge Dutton and a jury the appellants were each convicted of counts 1 and 2. Both counts charged conspiracy to defraud. Count 1 charged a conspiracy between 1 March 1998 and 31 March 1999 the allegation being that they conspired to defraud Martin Dawes Telecommunications Limited. Count 2 alleged an identical conspiracy to defraud BT Cellnet the dates being between 1 March 1999 and 31 December 2001. The only reason for the two counts was that BT Cellnet had acquired Martin Dawes Telecommunications. Each count was particularised. It was said that the defendants dishonestly presented purchase orders and invoices for printing and reprographic work by Doyle Quays Limited as if they represented genuine prices whereas in fact they represented dishonest and deliberately inflated prices for such work and secondly dishonestly failed to disclose to Martin Dawes Telecommunications (BT Cellnet) that the relationship between Papworth and Doyle was not an arms-length business relationship in that Papworth was receiving money and other financial benefits from Doyle.
3. In March 1998 Papworth became the marketing services manager with Martin Dawes Telecommunications. That company was taken over by BT Cellnet in April 1999. Doyle was the owner of a printing company called Doyle Quays Limited a medium size company employing about 20/25 people. The prosecution's case was that Doyle gave Papworth corrupt payments in return for placing her company's printing business with his firm. They conspired together to place over inflated bills for the work. Between March 1998 and November 2001 the total value of the 771 contracts placed with Doyle Quays was £3.5m and the amount overcharged was alleged to be about £1.8m In return, so the prosecution said, Papworth received gifts and cash payments totalling at least £60,000 from Doyle whose characteristics and activities were ascribed by Papworth to a phantom boyfriend.
4. The jury told the judge when they brought in verdicts of guilty that they had found both limbs of the conspiracies proved. There was a strong case against both appellants on limb 1 and on limb 2 the case was, in our view, overwhelming.
5. The Full Court gave leave to appeal conviction on three grounds. The judge failed, so it is submitted, to give the jury an adequate exposition of a number of defence points advanced during the course of the trial and relied upon in counsel's closing address, failed to summarise the main points made by the appellants in interview and failed in his summing up to strike a fair balance between the prosecution and the defence.
6. We gave leave for an additional ground to be argued. The additional ground challenged the trial judge's direction to the jury (in accordance with the standard JSB direction) that the contents of the appellants' police interviews did not amount to evidence of the facts contained therein. The judge gave that direction because the defendants did not give evidence and had not therefore testified to their accuracy and/or truthfulness. We first give our reasons for rejecting this additional ground.
7. There was no challenge to the direction by the very experienced defence counsel at trial, but it is now submitted by counsel instructed for the appeal that the interviews were mixed statements and, as such, were evidence of the truth of the contents. During the course of the hearing we announced that this additional ground had failed. Having been told that, counsel abandoned the ground which criticised the judge for not having summarised the main points in the interview during the summing up. However, it was submitted that had the appellants known that the judge would direct the jury in the way that he did, they would have given evidence. We rejected that submission. There was no evidence to support it.
8. Section 118(2) of the Criminal Justice Act 2003 abolishes all of the common law rules governing the admissibility of hearsay evidence subject to the exceptions set out in section 118(1). Paragraph 5 of sub-section (1) preserves "any rule of law relating to the admissibility of confessions or mixed statements in criminal proceedings". The rule that exculpatory parts of a mixed statement are evidence of the truth of the facts was confirmed by the House of Lords in Aziz [1996] 1 A.C.41. At page 49 Lord Steyn compared the "purist view" that no exception to the hearsay rule warranted the admission of the exculpatory part of the statement as evidence and the "common sense" view that fairness demanded that the jury should take into account the entirety of the mixed statement or interview.
9. Although the principle is clear there has been little reported authority on the issue of what is a mixed statement, although there have been a number of cases in which, without discussion, statements have been treated as mixed statements.
10. The one case to which we were referred which does look at the matter in some detail is Garrod [1997] Crim LR 445 We were provided with a copy of the transcript of the judgment of Evans LJ. The court considered whether the appellant's interview could be classified as mixed or as wholly exculpatory. The court said:-

"This has meant that Mr Bethel for the defence has found himself in the unusual position of submitting that the interview answers contain admissions or what he has called 'inculpatory' as well as exculpatory statements, pointing, in other words, to parts of the prosecution evidence which support the jury's finding of guilty. We cannot regard this as a satisfactory exercise, not least because it is almost impossible to conceive of any series of answers – i.e. something more than a bare denial – which cannot be regarded as containing some admissions of relevant fact as well as a statement of innocence and denial of guilt (the so-called 'exculpatory' part of a mixed statement). The question is how to identify the kind of interview which contains enough in the nature of admissions to justify calling it a 'mixed' rather than an 'exculpatory' statement. (Underlining added)

11. Mr Spencer QC for the respondent relies on the proposition encapsulated in the underlined passage. We agree with the proposition- all statements would be mixed statements if the test was as broad as Mr Bethel had submitted. The court continued:

Mr Bethel submits that the test to be applied should be that a statement is a 'mixed' statement if it contains any admission of a fact which is significant in relation to the prosecution case. Mr Milford QC, on behalf of the prosecution, prefers to rely upon a passage in the judgment in Duncan which reads as follows:

'Where a 'mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence'

We would hold that where the statement contains an admission of fact which are (sic) significant to any issue in the case, meaning those which are capable of adding some degree of weight to the prosecution case on an issue which is relevant to guilt, then the statement must be regarded as 'mixed' for the purposes of this rule. This is little, if any, different from paraphrasing the use of the word 'incriminating' in the passage in Duncan which we have already quoted. If the statement is of that nature, then the credibility direction is required and the whole statement can be regarded as evidence in the case. (Underlining added)

12. The court went on to apply this test (namely "Does the statement contain an admission significant to an issue in the case") to the interviews and said:-

We return to the present case in order to consider what are alleged to be admissions in this particular interview, which result in the interview properly being regarded as 'mixed'. The particular passages relied upon are, first, four at pages 10, 11, 17 and 19, which were concerned with the preliminary correspondence where the appellant had been concerned with the obtaining of a quotation from 3iC, another from Arthur Andersen, and deciding which of those should be accepted. The effect of statements by the appellant was to indicate that he had been involved in those processes. He said at one stage that he had 'banged the table' with 3iC with regard to them obtaining this job, and it can be said that he thereby admitted that there was that degree of involvement so far as he was concerned in that stage of the AMT grant application. But any reading of those passages overall shows beyond doubt that what the appellant was saying was that although he was the Chairman, although he had played a Chairman's role in relation to these matters, although he had some little knowledge of the detail, he had no idea of the precise figures, he had no personal involvement in the administration of the scheme, and he was totally unaware of anything which could be called dishonesty. It seems to us that taking those passages first, in so far as they were admissions, they were admissions merely of what was obvious, and admissions which the appellant could hardly fail to make, even for the purposes of what he was saying, which was that he had no personal knowledge of the matters which were the basis subsequently of the charge.

Similarly the next passage referred to at page 23 of the interview involves an admission by him that he had been present at a particular meeting. But again he went on to say that he had no recollection of it: he had no detailed knowledge at the time. The theme of what he was saying was wholly exculpatory rather than otherwise so far as any matter relevant to the charge subsequently brought against him was concerned.

On page 24 he accepted that the 'buck in terms of decisions stops with me and I appreciate that'. That, it is submitted, is an admission that he had at least the responsibility of Chairman. To that extent it supports the prosecution case. But the same answer continues immediately as follows:

'But if I have been given or feel that I've been given misrepresentation of information, then that does not make me guilty of any crime. I have no intention to defraud the DTI.'

It seems to us that that is clearly to be regarded as an exculpatory answer. The limited admission contained in the first sentence is not the kind of admission which qualifies the nature of the answer.

The next matter referred to involves a passage in the interview which covers three to four pages. The police officer produced a manuscript document, which was not strictly admissible in evidence against the appellant, although a note on it appeared to have been addressed to him. It set out details of the scheme sufficient to show that there was dishonesty of the kind that was subsequently alleged. When asked about that document the appellant volunteered that he had found a copy of the same document in his own file and, what is more, it was a copy which contained a note written by himself. He went on to say:

'…I've obviously seen it because I've written a note on it, but it didn't register as being, it didn't alert me, it didn't ring any blinking bells. I wish it had. There are other people I pay to, you know, t have information and correlate…

I've admitted I've seen the wretched document and if I hadn't found that document through searching in my files, in Mandy Simons' memo files of which there are thousands of the things, I would have said to you 'Never seen it before'. Can I make that clear?

Whatever it implies, a document like that has not got a lot of meaning to me…'

At the same time, however, he accepted that what the document said was something in the nature of a plan which would be suspicious. He said:

'Yes, it does look like some sort of a plan almost, but it would mean nothing to me.'

The fact that he volunteered a copy of the document and admitted having seen it at the time were certainly admissions of fact which might perhaps be sufficient to bring this statement within the 'mixed' category. But overall, even those passages read in their context show that the appellant essentially was making an exculpatory statement. This was because not only was the emphasis placed upon his lack of understanding of the document, but in fact the comment which he had made was precisely that. His manuscript note was 'I don't understand this', plus some further reference to the figures.

It seems to us overall that what the appellant was saying in that interview, notwithstanding that he had volunteered the fact that he had seen the document, was that he did not understand the contents at the time any more than he did when these matters were put to him by the police. It seems to us that to regard that as anything other than an exculpatory statement, or as part of an overall denial, would not be correct. It seems also that little, if anything, was made of that particular answer and admission at the trial.

We ask ourselves the question already posed: were these limited admissions 'significant' in relation to the central issue in the case against the appellant, or incriminating in the sense already described, the issue being did he have knowledge of the dishonest grant application scheme? It seems to us that it is only possible to classify this as an exculpatory statement, notwithstanding the presence of those limited admissions of fact."

13. Thus the interviews were held not to be mixed statements. At one point in the argument it was suggested by counsel for the appellants that the question whether the admissions were 'significant' had to be answered by relation only to what was said in the interview and not in relation to what thereafter happened at the trial. In our view the question has to be resolved by reference to what happens at the trial and can therefore only be finally resolved at the close of the evidence. We reach that conclusion because, as Lord Steyn made clear in Asiz, it would be unfair to the defendant to tell the jury that the exculpatory parts of mixed statements are not evidence of the facts therein stated although the inculpatory parts are. Asiz also makes it clear that there are pragmatic considerations for the rule. A direction that both parts are evidence in the case is much easier for the jury to apply.
14. When applying the Garrod test to interviews or statements, judges should bear in mind that the rule that the exculpatory parts of a mixed statement are evidence of the facts contained therein, is based on considerations of fairness to the defendant and simplicity for the jury. To the extent to which at the close of all the evidence, the prosecution place significant reliance on the incriminating parts of an interview, the more likely it is that the jury should be told that the parts which explain or excuse those incriminating parts are also evidence in the case.
15. The admission in interview of an ingredient of the offence will often constitute a significant admission for the purposes of the Garrod test, but not necessarily. The fact that a defendant on trial for murder accepted in interview that the victim was dead is not likely to be a significant admission. Likewise, in the absence of an admission of an ingredient of the offence, it will be more difficult to conclude that the admissions which were made convert the statement into a mixed statement.
16. We examined the interviews in some detail, particularly those of Papworth. The respondent produced Schedule F in response to the arguments that the interviews contained such significant admissions that they should be regarded as mixed statements. We asked counsel for the appellants to concentrate on what they submitted were the most significant admissions- we did so because, if we did not accept those to be significant then the others certainly would not be.
17. In the case of Papworth counsel relied on a series of "admissions" that she had various bank accounts in Jersey, that she had discussed these with Doyle and, having travelled to Jersey with Doyle on two occasions, had gone to the bank with him, whilst at all times denying any dishonest transaction with Doyle. Likewise she admitted that she had stayed with Doyle in Devon. The respondent points to the fact that her application to the Jersey bank stated in terms "Introduced by Doyle" and that paying in slips had shown that they had both made deposits in the bank at the same time (relevant to the second limb particularly as we shall show later). In the case of Doyle, Doyle admitted that he was living with Papworth, which, as the respondent points out was indisputable given that he was found to be living there when they were arrested. Doyle admitted buying Papworth a reasonably expensive car (relevant to the second limb particularly) but gave an innocent explanation, which the jury almost certainly disbelieved. He said that he had loaned the money for the car and that the repayment of the loan and interest thereon and the rent that he owed for staying with her cancelled each other out. Doyle also made admissions about going to Jersey and about various financial transactions between them.
18. None of these admissions either alone or cumulatively with the others came anywhere near satisfying the Garrod test. Fairness to the defendants who had at all times interview denied any dishonesty and had not accepted any ingredient of the offences charged did not require a mixed statement direction. Trial counsel was right not to ask for one and the judge was right not to give one. This ground fails. Likewise and for the same reason the ground that complains that the judge failed to summarise the main points made by the appellants in interview fails, as was conceded on behalf of the appellants when we said that the "mixed statements" ground failed. In any event, as the respondent points out in the very detailed Schedules B and C, the judge did remind the jury of many of the points made by the appellants in interview.
19. We turn to the remaining grounds- the alleged failure on the part of the judge to remind the jury of the points made in cross-examination of the prosecution witnesses and in closing speeches and the alleged lack of balance.
20. We start with the evidence which particularly related to the first limb.
21. Printing is an intensely competitive business. It is important, as the prosecution submitted, to obtain quotations because by doing so it is usually possible to achieve a bargain. Of course, sometimes speed is at a premium and it is not always possible to put contracts out to a formal tender but never to do so is highly unusual in the commercial world. For the same reason it is unusual always to engage the same printer, since they may lose their commercial edge and cease to do the work at a truly competitive price. Here the appellant Papworth engaged Doyle almost as soon as she became responsible for awarding these contracts and thereafter gave every – or nearly every - contract to Doyle, without making any other enquiry from any other printer. This conduct, by itself could have led the jury to conclude that she was acting dishonestly.
22. One member of staff, Nicola Shone, junior to Papworth became aware that she was awarding every contract to Doyle, even though she thought that the work could be done elsewhere considerably cheaper. She provided some documentation to support this. Papworth took no notice of this and continued as before.
23. As part of their investigation into this fraud, the prosecution then commissioned Knapp Goodwin Ltd, a well known firm of print brokers, to carry out a detailed analysis of the print contracts which Papworth had placed with Doyle. The work was actually done by Stephen Vaughan. He analysed 137 of the 700 jobs which Papworth had placed with Doyle, for which they had charged over £800,000. These 137 jobs were ones for which he felt he could obtain a realistic 'like for like' comparison. It is true that he made this choice and it was criticised as being capricious and unrepresentative.
24. It was said against him that he was not independent at all but a trade witness, consciously or otherwise producing figures which he hoped would encourage BT to do business with him. This point was extensively developed in cross examination; the judge reminded the jury of the attack upon him (at 85 B – F).
25. An allied criticism which was made against Mr Vaughan was that the other quotes were obtained from companies which may have been tendering at a deliberately low price – even at a loss leader - so as to get the work from BT in the first place. Having got the work, it was suggested, they would gradually have raised the price to a commercial rate. To compare Doyle's prices with the prices tendered in these artificial circumstances was unrealistic and unfair. The judge plainly spelt this point out to the jury for their consideration.
26. Mr Vaughan produced a schedule showing the prices which he had obtained and contrasted them with the prices charged by Doyle. The prices which he obtained averaged out at between 30-40% less than Doyle had charged. Whereas Doyle had charged £800,000 (rounded up) the lowest quoted figures were £360,000 and the highest £530,000. The prosecution relied on this to establish that Doyle had been deliberately and systematically overcharging BT, as Papworth must have known and intended.
27. This comparison was always going to be attended by a number of problems but if it had not been done no doubt the defence would have complained abut that. A number of points were made against Mr Vaughan.
28. It was said that Doyle gave a first class printing service: a Rolls Royce job and that you have to pay for quality. But this was not the sort of job where BT – or any other commercial operator – would pay 30–40% over the odds for a quality service. Every one of the printers approached by Mr Vaughan was a competent and experienced commercial printer; each would have done the job to a perfectly acceptable commercial standard. There is nothing in this point which damaged Mr Vaughan's comparative study.
29. It was said that the work was done back in 1999 and that Mr Vaughan's exercise was not done until several years later and that the passage of time had made the exercise valueless. Mr Vaughan's answer to that was that conditions do change but they had not changed so much in so short a time and the exercise was valid. Again the judge reminded the jury of that (63G).
30. It was said that the mixture of work in the sample selection of 137 jobs did not properly reflect the overall proportion of stationery to non-stationery jobs, where costs and profits may be different. If there was anything in that point, the jury were reminded of it (73E).
31. The same applies to the suggestion that some of these quotations were from geographically distant firms, which – it was suggested – would lead to increased costs of transport, which should have been factored into the price. Again, if there is anything in that point, the judge dealt with it (at 73H).
32. It was suggested that Doyle could always meet deadlines and were prepared to do work at short notice. Mr Vaughan's answer to that was that nearly all commercial printing jobs are done subject to time pressure and every quotation was given on that basis. So, he suggested, there was no special factor here which justified Doyle's high costs. Again, the judge dealt with that in his summing up (at page 80D)
33. It was suggested that Doyle's association with Michigans, a specialist reprographic firm, allowed them to provide printing and reprographic skills and that was a factor which might justify some degree of higher charge because some other printers would not do reprographics, which would then have to be charged separately. This point does not bear examination since there was clear evidence (gathered together in the schedule at the red jury bundle, tab 8 at page 43) that for the jobs in question Michigans had charged Doyle £66,000 but that Doyle had charged BT £353,000 for essentially the same work. Although this evidence was called before the jury, the appellants were fortunate that the judge did not stress this point in his summing up: it was damning against them.
34. Then there is the brokerage point. It is said that if other printers were engaged, then BT would have had to pay brokerage fees: it being a common practice in the business to engage a broker to find the most competitive printer, who would typically charge 10-15%, and possibly even higher. So, it is argued, that the prices tendered by these other firms should be increased to allow for the costs of brokerage. Again this point was fully explored in the evidence and faithfully summed up to the jury (at 82 D–F)
35. Another of the criticisms which was made was that seven out of the ten comparator printers had B1 size presses, which are larger and more economical than the B2 presses, which were used by Doyle. The judge reminded the jury of this point very clearly (at 86D, 63 B–D and 119D). More than that, at 74D–F he spelt it out: 'Now he was asked a number of questions by Mr Marks … and he agreed that it was necessary to get a meaningful comparative quote 'like for like' to get the same work, and the same size of machinery and type of machinery …' . One might wonder if the size of the presses did in fact make such a difference to the pricing – as the defence contend – why Papworth continued to send all the work to Doyle, who only had the smaller and less efficient B2 presses.
36. Defence counsel had made some particular points on particular jobs. For example – and it is only an example - on job 9, Doyle had charged £16000, the cheapest quote that Mr Vaughan had obtained was £5000. The point was made that the work as done by Doyle was alleged to have required overtime and the quote was, in any event, for 40,000 less copies than Doyle provided; the judge pointed these matters out. Indeed he pointed out every point made on those few other particular jobs singled out for particular specific criticisms.
37. Much capital is made of the reference by Mr Spencer in his closing speech for the prosecution to Mr Vaughan being a 'poor witness'. The judge reminded the jury of this (at 128E-G, correcting an earlier attribution of this remark to Mr Marks, at 85G). It should be noted that, as the contemporary notes made clear, this was not a concession made by Mr Spencer with the intention of abandoning the witness; on the contrary for the point which counsel was making was that he may have been 'poor' as a witness but that did not necessarily undermine the validity of his comparative costings, the results of which were so striking in their conclusions as to remain formidable evidence against the defendants.
38. The appellants argue that these criticisms were not faithfully reproduced in the summing up. The judge's recital of Mr Vaughan's evidence was fully 23 pages. The judge reminded the jury of the robust criticisms which had been made of Vaughan (19 E–G). In our judgment, all these matters were fairly summed up to the jury in general terms at both the beginning (at 9A–G) and end of the summing up (at 125 D–F). In short, we reject the criticisms made of the summing up; the judge dealt with this point in general and the evidence of Mr Vaughan in particular thoroughly and fairly. To the extent to which the summing-up may have appeared to the appellants not to strike a fair balance, that was inevitable in the light of the strength of the prosecution case and particularly given that they chose not to give evidence. In our view, it was a fair and balanced summing-up. Furthermore. there was, in our view, very clear evidence of systematic, deliberate and dishonest over-charging on these matters so that the jury's adverse finding on the first limb was entirely justified, indeed it seems to us to have been inevitable.
39. We turn to the second limb, the evidence on which overlapped with the evidence on the first limb. On the other hand the jury could have convicted on the second limb only but, understandably, chose not to do so.
40. The second limb of the conspiracy to defraud alleged that the appellants dishonestly failed to disclose that their relationship was not "an arms length business relationship in that …Papworth was receiving money and other financial benefits from … Doyle". Thus, although there was evidence that their relationship was a close personal one and indeed that Papworth had told lies to work-colleagues about that, the allegation was specifically directed to her receipt of money and "other financial benefits".
41. The prosecution's case about payments of money was that over a period of three years, Doyle provided Papworth with over £44,000: that cash was paid into a bank account in Jersey which had been opened in her name when she made a visit there with Doyle, and that cash was used to pay off her credit card accounts. They said that it was apparent from examining the details of these receipts that they corresponded to transactions conducted by Doyle and the inference was that Papworth was receiving these benefits from Doyle. In interview Papworth had given explanations about where the money had come from, referring to money inherited from her father, and money from selling cars and from car boot sales.
42. The "other financial benefits" which the prosecution relied upon as having been provided by Doyle to Papworth comprised a Renault Megane car. The prosecution said that it was a simply a gift. In their interviews both Papworth and Doyle had accepted that Doyle bought the car for Papworth, but said that he was providing her with the finance for it on commercial terms.
43. The complaint about this part of the case made by the appellants concerns the way in which the Judge dealt with the money transfers in his summing up.
44. The detailed evidence upon which the prosecution relied as demonstrating that Papworth was receiving money from Doyle was presented to the jury in schedules extracted from bank records. It is not necessary to go through it in this judgment. It is, however, important that the prosecution relied not only on the fact that Papworth had received substantial cash sums or cash payments into her accounts which were too large to be attributed to her salary and any other apparent income that she had, but also upon correspondence between those payment and bank transactions associated with Doyle. Two examples suffice to illustrate the point: when Papworth visited Jersey with Doyle in September 1998, her account there was opened with a cash payment of £3,000 and in the previous weeks in August 1998 Doyle made a series of nine cash withdrawals each of £500 from his account with Abbey National. On 17 April 2000 Doyle withdrew £6,500 in cash from his Halifax account. Two days later, on 19 April 2000, there was a cash deposit of £4,500 to Papworth's Barclays account, paid in at Salford Quays (where Doyle Quays Limited was based).
45. It is said on behalf of the Papworth and Doyle that the judge failed adequately to deal in his summing up with a number of points which were made on their behalf by way of response to this allegation: that although the prosecution's case was that fraud began in March 1998, they pointed to no payment before September 1998; that they could not identify payments between then and April 1999 or between October 1999 and April 2000, although Doyle had received substantial sums from Martin Dawes during that period; that the prosecution had not identified cash withdrawals by Doyle corresponding to the whole of the payment of £12,500 into Papworth's Jersey account in April 1999; and the payments into Papworth's account with no explained source continued after the end of the business relationship between Doyle and Martin Dawes or BT Cellnet.
46. As we have already indicated, the jury had the schedules relating to this part of the case, including a summary of cash credits to accounts of Papworth between September 1998 and August 2001 and a schedule of cash payments by Doyle. The judge said this in the summing up:

…you have… the financial aspect set out in those schedules, the entries both into and from accounts involving Mrs Papworth and involving Mr. Doyle.

The prosecution invite you to form what they regard is an inescapable inference from the evidence set out in those papers, that there are there regular substantial payments made to Karen Papworth by Anthony Doyle. No direct evidence of one person seeing another person handing it over, no record on paper of that kind, no such record could be pointed to by the prosecution but their case is that the timings of the entries in those forms is not a coincidence, the timings coincide because they form part and parcel of the same transaction.

Now you remember the points made in the other direction, that there are some where there's no coinciding at all, that there are long periods of substantial money having gone into Doyle Quays where there are no such entries of cash into any account. As I said, cash of course is a commodity which by its very nature doesn't carry a record of where it goes to unless it ends up in an account in which you can say so much in cash has gone into an account. These are all arguments and they're for your careful consideration.

47. Thus, the judge did not set out in detail either the instances upon which the prosecution relied in order to invite the inference that Papworth was receiving cash payments from Doyle or the points made in response on behalf of Papworth and Doyle. We consider that was a proper approach. It was quite unnecessary take the jury item by item through the schedules, while if he had drawn their attention to specific items, he might have been criticised of being unfairly selective or giving the appearance of being so. The jury had had the schedules before them when they were addressed by counsel. In these circumstances the approach of the judge in his summing up was even-handed and sensible.
48. Indeed, if anything it was favourable to the appellants in that it reminded the jury of the points made on their behalf about the absence of correspondence between monies received into Papworth's account and other recorded transactions, and about the periods when no receipts had been identified, and the judge did not refer to the prosecution's response to them.
49. It is understandable, therefore, that the oral submissions about this part of the case made on the appellants' behalf before us focused on the point that unexplained receipts into Papworth's account continued after the end of the business relationship.
50. We reject the complaint that the judge should have specifically referred to this argument: the judge was not obliged to reiterate every point made on a defendant's behalf. But we add that the appellants would not, in our judgment, have benefited from close scrutiny of the continuing receipts into Papworth's account. While it is true that some unexplained credits to Papworth's account continue, they are not on the scale of earlier receipts, and emphasis on this would not, to our mind, have assisted the appellants but would have underlined the scale of earlier unexplained payment.
51. In conclusion we reject all the grounds of appeal. We have no doubt that, on the evidence before the jury, the convictions are safe.