England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Date Friday, 9th March 2007

1. LORD JUSTICE DYSON: On 7th and 8th February 2006 at Cardiff Crown Court the appellant was convicted of three counts of obtaining property by deception (counts 1-3), 17 counts of obtaining a money transfer by deception (counts 4-10, 12, 15, 18-22 and 24-26) and two counts of obtaining services, namely the use of a bank account, by deception (counts 28 and 29).
2. On 4th April 2006 the appellant was sentenced as follows. On counts 1-3, 12 months' imprisonment concurrent, on counts 4-10, 12, 15, 18, 19, 20, 21, 22, 24, 25, 26, 28 and 29, 3 years' imprisonment on each count concurrent as between themselves and consecutive to the 12 months passed in relation to counts 1-3, making a total of 4 years' imprisonment.
3. The appellant appeals against conviction and sentence by leave of the single judge.
4. The appellant was born in 1956. On 17th March 1998 District Judge Jackson made a bankruptcy order against him at Brighton County Court. It was undisputed that he made an application for two false passports in the names of Trevor Paul Ellis (that was the subject of count 1) and Martin Dubrey (that was the subject of count 2), as well as a driving licence in the name of Terence Leslie Batters (that was the subject of count 3). Bank and building society accounts were set up and applications for mortgages, unsecured and secured loans were made by the appellant in the names of Dubrey, Ellis and Batters.
5. It was the Crown's case that the appellant obtained the false identities of these three persons by deception. He created false documents to support these identities, such as employer's references and P60s. These false identities were then employed to obtain various money transfers and to use bank accounts that the appellant would have been unable to obtain or use by means of his own true identity.
6. The appellant's case in relation to counts 1-3 was that the documents were supplied by a man called Mr Ellison. It was his case that he knew he was making applications in names other than his own given name, but that he was not being dishonest when he did so. In relation to the remaining counts, the defence case was that there was no direct evidence from any of the lenders as to the basis for the decision taken in any of the individual applications to grant the loans, or as to what their attitude to the false details would have been had they been aware of them. The appellant also said that he was not acting dishonestly in holding himself out as Batters, Dubrey or Ellis when making these applications, since they were names in which he held the properties concerned which he offered by way of security, and he said he was entitled to call himself what he liked.
7. The appellant was arrested in Aberystwyth on 5th August 2004 by a PC Lodwig. He was interviewed the following day and the various searches were carried out.
8. Counsel for the appellant, Mr Krolick, who has appeared before us today as he did below, made an application to the judge to exclude evidence of the appellant's police interview on 6th August. Counsel submitted that the arrest of the appellant by the police was unlawful because PC Lodwig had no reasonable grounds for suspecting that an arrestable criminal offence had been committed or that the appellant was a person who had committed such an offence. The judge conducted a voir dire and held that PC Lodwig had reasonably believed that the appellant had committed arrestable offences, namely multiple mortgage frauds, and that he had made the arrest in that reasonable belief.
9. The first two grounds of appeal concern the arrest. It is submitted that the judge erred in holding as we have just summarised. It is said that there was no or no sufficient evidence that PC Lodwig suspected that the appellant had committed any offence or that he had reasonable grounds for doing so. It is further submitted that the judge erred in law and exercised his discretion unreasonably under sections 76 and 78 of the Police and Criminal Evidence Act 1984, in failing to exclude evidence of the transcripts of the interviews conducted on 6th August 2004 and the documents seized by the police in the course of their search of the appellant's vehicle following his arrest. The essential question therefore is whether the arrest was lawful.
10. During 2004 DC Phillips of the South Wales Police Fraud Squad was investigating a series of apparent mortgage frauds by a person using the names Ellis, Dubrey and Batters. He suspected that the perpetrator was the appellant. There seems to be no question but that DC Phillips had reasonable grounds for his suspicion.
11. On 5th August 2004 DC Phillips travelled to Aberystwyth with the intention of arresting the appellant for the purpose of interviewing him. He did not know the appellant's location, but he learnt that he was driving a Mitsubishi motor vehicle with a known registration number. DC Phillips had not obtained a warrant for the arrest, but he spoke to Detective Sergeant Howells of the Aberystwyth Police. DC Phillips gave evidence at the voir dire and Detective Sergeant Howells did not. He said that he told Detective Sergeant Howells that he wanted Ronald Olden, who was the driver of a Mitsubishi vehicle, arrested on suspicion of multiple mortgage frauds. DC Phillips said that he told Detective Sergeant Howells that this was a multiple mortgage fraud, involving a number of different lenders and properties, where the person responsible had used a number of falsely-obtained identities. He said that he told the sergeant that it was his intention to arrest and interview him. At about lunchtime DC Phillips left for Cardiff. There appears to have been no evidence as to the subsequent movements of Detective Sergeant Howells.
12. At 2.00pm PC Lodwig came on duty with PS Evans. They both gave evidence at the voir dire. They were given a briefing about the case by DS Richards, who did not give evidence. There was no direct evidence as to what DS Howells had told DS Richards about the case. PC Lodwig said that he and PS Evans were told by DS Richards to keep observation for a silver Mitsubishi Shogun. They were given its registration number and told that the driver was Ronald Olden. The man was to be arrested on suspicion of fraud on behalf of the South Wales Police.
13. In his evidence in chief PC Lodwig was unable to recall any other details. In cross-examination he said that he could not remember any of the details of the alleged fraud, but in response to a question from Mr Krolick in cross-examination he agreed that the Mitsubishi and "a lot of other things were mentioned".
14. PS Evans produced the custody records for the appellant's detention at the police station. These recorded the appellant's arrest in these terms:

"Arrested on behalf of the Rumney Police for multiple mortgage fraud. DC Chris Phillips given info re offences."

15. In response to a question from the judge, Sergeant Evans said that he recalled what he recorded in the custody record "being in the briefing". This was obviously a reference to the briefing by DS Richards.
16. The judge recorded this about Sergeant Evans:

"Finally, Police constable Evans himself told me in evidence that he recollected speaking to DC Phillips before the defendant's arrival at the police station and before the 2.00pm briefing of officers including PC Lodwig. He had no knowledge of the Mitsubishi vehicle said Sergeant Evans came from either this conversation (sic) but certainly from the briefing which he also had attended. All the information at the briefing he said only and could only have come from DC Phillips. Moreover Sergeant Evans told me that the purpose of the briefing was to ask of the reasons for required for arresting this described man."

It can be seen that the transcript appears to be slightly corrupt, but its meaning is clear enough.

17. It is common ground that the judge was wrong to say that Sergeant Evans spoke to DC Phillips before the 2 o'clock briefing. The conversation took place on the telephone at about 6.00pm, some time after the arrest.
18. On this evidence the judge concluded as follows:

"On this evidence then, I am quite satisfied that the officer conducting that briefing, Detective Sergeant Richards would have given his officers the fullest information which was then available to Aberystwyth police. In my view the only realistic and common sense inference to be drawn from this evidence is that DC Phillips provided that information in the terms as was subsequently recollected by him in re-examination and was summarised on the custody record document. I consider that it is reasonable to infer that he provided this information first to Sergeant Howells and then either through that Sergeant and or directly again himself to Sergeant Evans before he, that is Phillips and his colleague Forsyth left to return to Cardiff.

On the evidence that would have been done before the briefing and the subsequent arrest of the defendant. Detective Sergeant Richards then is reasonable in my judgment to infer would have had that information which had been so provided by Phillips and would have provided that information for his team of officers out on the street including PC Lodwig. On these findings of fact, I am consequently sure that PC Lodwig effected a perfectly lawful arrest and that the requirements of Section 24 of the Police and Criminal Evidence Act were met.

In my judgment the inference is irresistible that he had been given and then had well in mind the reasons why this man needed to be arrested as had been obtained from DC Phillips earlier. I am quite sure that those reasons included those recounted by DC Phillips. Thus although PC Lodwig does not now recall it, the clear inference is that he understood that there was evidence of multiple fraud involving the use of falsely obtained names. It is significant in that context that it is common ground now that his very first question to the defendant was to ask his name. If the defendant's account is also correct on this point that he gave two names, then it would simply strengthen Lodwig's suspicion and the information I am now sure he then had. On any view, rather the officer immediately required the defendant to accompany him to the police station. I do not consider that there can be any doubt that PC Lodwig knew at that time that he was arresting a man suspected of multiple fraud by South Wales Police. Moreover I find that it was entirely reasonable for him to infer from the information provided to him at his briefing that South Wales Police had evidence to support this suspicion albeit Lodwig himself had no knowledge of the details of that evidence.

Accordingly I find that this arresting officer reasonably believed that this defendant had committed an arrestable offence namely multiple fraud and effected an arrest in that belief which was a reasonable belief in the circumstances. That being so, I reject the first ground of exclusion upon all the limbs argued."

19. At the time of the arrest the material provisions of the Police and Criminal Evidence Act were these. Section 24:

"(4) Any person may arrest without a warrant—

(a) anyone who is in the act of committing an arrestable offence;

(b) anyone whom he has reasonable grounds for suspecting to be committing such an offence.

(5) Where an arrestable offence has been committed, any person may arrest without a warrant—

(a) anyone who is guilty of the offence;

(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.

(6) Where a constable has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence."

20. It is the appellant's case that the judge's conclusions cannot be supported. The leading authority in this area is O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] 1 Cr App R 447, [1996] UKHL 6 That was a decision on section 12(1) of the Prevention of Terrorism (Temporary Provisions) Act 1984, which is in these terms:

"... a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be ...

(b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism ..."

The provisions of that subsection are, it can be seen, in substantially the same terms as the relevant provisions of section 24 of the Police and Criminal Evidence Act.

21. The House of Lords decided that the arresting officer must himself or herself have the necessary suspicion and reasonable grounds for such suspicion. The mere fact that the arresting officer has been instructed by a superior officer to effect the arrest is not of itself capable of amounting to such reasonable grounds (see per Lord Steyn at page 452G-453D and Lord Hope at page 458C-E and 463B).
22. What affords reasonable grounds for suspicion will depend on all the circumstances of the case. It is certainly not necessary for the arresting officer to require from his superior officer who conducts the briefing a detailed account of the evidence on which the superior officer's suspicion is based. In many cases the barest outline of the alleged offence will be enough to give rise to a suspicion on reasonable grounds in the mind of the arresting officer.
23. We think that there is some assistance to be derived from the decision of the Court of Appeal, Civil Division, in Hough v Chief Constable of Staffordshire Police [2001] EWCA Civ 39. In that case a motor vehicle was stopped by a police patrol car, the officers being concerned that the vehicle had a damaged windscreen. In the course of their enquiries a routine check was made with the police national computer. The computer entry read:

"Any sighting and description of the occupants only, no stop checks, do not approach, occupant may be armed with a firearm; information to Sergeant 1615 Woodruff at Crewe."

24. At paragraphs 16 and 17 Simon Brown LJ said:

"16. True it is that the particular question under consideration in O'Hara was whether an order to arrest given by a superior officer was itself sufficient to afford the arresting officer a reasonable suspicion. It was the Chief Constable's (unsuccessful) contention that it was. The principle established, however, necessarily extends to encompass also a case like the present. The critical question to be asked in all cases is what is in the mind of the arresting officer: he can never be a 'mere conduit' for someone else. It is for that reason insufficient for an arresting officer to rely solely upon an instruction to carry out the arrest. Conversely, however, where the arresting officer's suspicion is formed on the basis of a police national computer entry, that entry is likely to provide the necessary objective justification. After all, if, as the authorities clearly establish, information from an informer or member of the public can properly found suspicion sufficient for an arrest, why too should not an apparently responsible entry in the computer?

17. But that is not to say that any computer entry will of itself necessarily justify an arrest. If there is no urgency in the situation and if 'in the light of the whole surrounding circumstances' (to use Lord Hope's phrase) some further enquiry was clearly called for before suspicion could properly crystallise, then the entry alone would not suffice."

25. But before we come to the question whether PC Lodwig had reasonable grounds for suspecting that the appellant had committed the offences for which he was arrested, we must consider whether the officer had the suspicion at all. In both O'Hara and Hough there was no doubt that the arresting officer did suspect the person arrested of having committed an arrestable offence. In the present case, PC Lodwig was not asked whether he suspected the appellant of having committed the mortgage frauds for which he was instructed by DS Richards to make an arrest. The emphasis of the argument before the judge and in his ruling was on the question whether PC Lodwig had reasonable grounds for suspecting that the appellant had committed the offences. The passage we have cited from his ruling shows that the judge was dealing only with the information that was communicated to PC Lodwig. In an earlier passage, where he summarised the evidence of PC Lodwig, he said that the officer had conceded that he was acting on orders to arrest the man on behalf of the South Wales Police. It is true that towards the end of the passage that we have quoted from the ruling, the judge did refer to the strengthening of "Lodwig's suspicion" and in the last paragraph he said that Lodwig "reasonably believed" that the appellant had committed an arrestable offence. But the judge did not explain why he was able to find that PC Lodwig held the suspicion or belief. A bare assertion to that effect is no substitute for a reasoned finding, particularly in a case where in our view there was no evidence upon which such a finding could be based. PC Lodwig did not say that he believed or suspected that the appellant had committed the offences. As the judge recorded in his ruling, and as we had said, he did concede that he was acting on orders.
26. Mr Crowther submits that PC Lodwig's suspicion can be inferred from the nature of the information that he was given and from the fact that, as the judge found, PC Lodwig is a conscientious officer. In our view, however, neither of these factors could justify drawing the necessary inference that PC Lodwig must have formed his own suspicion. They were equally consistent with the possibility that PC Lodwig acted as he did solely because he had been instructed to do so by DS Richards on behalf of the South Wales Police. We conclude that the judge did not address his mind to the question of PC Lodwig's state of mind, and that had he done so he should have concluded that he did not have material on which to find that PC Lodwig had the necessary suspicion. It follows in our view that the arrest was unlawful and that the interview and searches that resulted from the arrest were also unlawful.
27. Since the material that was discovered by the police in the interview and by the searches was of considerable importance in the case, the appeal must succeed. Mr Crowther may well have had his reasons for not asking PC Lodwig questions directed to the officer's state of mind at the time of the arrest. This case shows that taking such a course in the course of a trial where questions as to the lawfulness of an arrest are or may be in issue is fraught with danger from the prosecution's point of view. In view of our decision on this point it is not strictly necessary to deal with the other issues that have been argued before us, but in view of those arguments we shall deal with the other points, although in less detail than we would otherwise have done.
28. If PC Lodwig had suspected the appellant of having committed the mortgage frauds, would he have had reasonable grounds for doing so? The facts of O'Hara are of some significance here. Lord Steyn summarised the facts as follows, starting at page 449C:

"It was common ground that subjectively the constable had the necessary suspicion. The question was whether the constable objectively had reasonable grounds for suspecting that the plaintiff was concerned in the murder. The constable said in evidence that his reasonable grounds for suspecting the appellant were based on a briefing by a superior officer. He was told that the appellant had been involved in the murder. The constable said that the superior officer ordered him to arrest the appellant. He did so. Counsel for the appellant took the tactical decision not to cross-examine the constable about the details of the briefing. The trial judge described the evidence as scanty. But he inferred that the briefing afforded reasonable grounds for the necessary suspicion. In other words the judge inferred that some further details must have been given in the briefing. The legal burden was on the respondent to prove the existence of reasonable grounds for suspicion. Nevertheless I am persuaded that the judge was entitled on the sparse materials before him to infer the existence of reasonable grounds for suspicion. On this basis the Court of Appeal was entitled to dismiss the appeal. That means that the appeal before your Lordships' House must also fail on narrow and purely factual grounds."

29. At page 455G-456B Lord Hope said much the same. Lord Hope too described the evidence about the matters that were disclosed at the briefing session as scanty (see page 463C), but he said that the trial judge was entitled to weigh up that evidence:

"... in the light of the surrounding circumstances and, having regard to the source of that information, to draw inferences as to what a reasonable man, in the position of the independent observer, would make of it."

30. The only basis for the finding that the arresting officer had reasonable grounds for suspicion was that at a briefing session he was told by the superior officer that the appellant had been involved in the murder and the judge's inference that further details must have been provided.
31. In answer to a question from Mr Justice Crane, Mr Krolick conceded that if the information about the appellant's offences which DC Phillips gave to DS Howells had been passed on to PC Lodwig, that would have afforded PC Lodwig reasonable grounds to suspect that the appellant had committed the offences.
32. In the light of the authorities and the fact that the information had come from the investigating officer of another police force, we think that this concession was rightly made. In our view the judge was entitled to infer that DS Richards obtained the information provided by DC Phillips, and that he communicated the essential elements of it to PC Lodwig and PS Evans. To some extent this is borne out by the evidence of the officers Lodwig and Evans themselves. If we had concluded that PC Lodwig had suspected that the appellant had committed the offences, we would have decided that he had reasonable grounds for doing so.
33. We cannot leave this part of the case without observing that it was an unsatisfactory feature of it that neither DS Howells nor DS Richards gave evidence. So far as we are aware, no explanation was given for this. It meant that the judge was placed in the position of having to rely heavily on inferences for his findings of fact, when, so far as we can see, this should not have been necessary.
34. We turn to grounds 3-5. These grounds of appeal all concern decisions made by the judge purporting to limit the way in which the defence could put its case in relation to the mortgage fraud counts. The Crown applied for leave to adduce evidence from Mr Oliver as to the lending criteria for the financial institution which was the subject of count 11. The application was opposed on the grounds that the evidence was hearsay and should not be admitted. In the course of his ruling the judge said:

"The issue in the case insofar as count 11 is concerned, is whether there has been deceit practised by the defendant as to which it presently seems that there may be a certain amount of common ground, but also whether that has been dishonestly practised and whether it operated on the mind of the financial institution concerned. Lending criteria are crucially important as to at least the last of those factors. Thus on the face of it, his proposed testimony is in bold terms relevant to that issue."

35. The judge noted that the amended defence statement, which had been served in September 2003, specifically requested disclosure of the lending criteria of all the lending institutions, including that involving count 11, and that this had not been done. He nevertheless ruled that it was in the interests of justice that the prosecution should be permitted to adduce the evidence, provided that they complied with the relevant procedures, i.e. serving hearsay notices etc. (We interpose that we entertain very serious doubts as to whether the written material that was the subject of this application was indeed hearsay evidence at all.) But the lending criteria or policies of the institutions were set out in documents that proved not to be available. This led the judge to rule during the evidence of Ms Douds that neither the prosecution nor the defence should be permitted to ask questions about lending policies or criteria unless the document was produced in evidence. No document was produced.
36. In most of the mortgage transactions the appellant had in his applications disclosed the fact that he was buying the subject property for the purpose of letting. Some of the institutions, for example Bristol & West Plc, knew that the appellant had multiple mortgages with them. It was the defence case that the only material factors in those circumstances, so far as the lenders were concerned, were (a) the market value of the security, (b) the fact that the rental valuation on letting justified the mortgage instalments, and (c) the track record of the appellant where other similar mortgages were known to the lender.
37. The applications were supported by professional valuations advising the lenders of the market value of the property and the rental value, and there is no evidence that these valuations were inaccurate. There was evidence from the letting officers that the rental was paid on the respective properties, and evidence by all the lending institutions that there were no arrears on the mortgage instalments and that all the mortgage conditions had been complied with. It was therefore the defence case that there had been no effective deceptions. This issue was raised in the defence statement. It was to this issue that the lending institutions' lending criteria and policies were said to be relevant.
38. It is submitted on behalf of the appellant that the effect of the judge's ruling was that the defence were not permitted to put to witnesses for the various institutions that the factors just mentioned were the only factors which dictated their lending decisions, and that the institutions were not interested in details about the appellant himself, for example details about his employer, his employment documents, his creditworthiness and so on.
39. At the close of the prosecution case the defence made a submission of no case to answer. Central to this submission was the absence of any evidence from the decision-makers who authorised the individual loans or the opening of the bank accounts. Reference was made to R v Laverty (1970) 54 Cr App R 495, 497, where Lord Parker CJ said:

"It is axiomatic that it is for the prosecution to prove that the false representation acted on the mind of the purchaser, and in the ordinary way, and the Court emphasises this, the matter should be proved by direct evidence. However, it was said in Sullivan (1945) 30 Cr App R 132 that the inducement need not be proved by direct evidence, and I quote from the headnote 'If the facts are such that the alleged false pretence is the only reason that could be suggested as having been the operative inducement.' ...

...

This Court is very anxious not to extend the principle in Sullivan (supra) more than is necessary. The proper way of proving these matters is thorough the mouth of the person to whom the false representation is conveyed, ..."

40. We were referred to other authorities. It is only necessary to refer to R v Lambie (1981) 73 Cr App R 294 and the speech of Lord Roskill, who said at page 301, concerning credit card frauds and evidence of the effect of the alleged deceit on shop assistants:

"In some cases, of course, it may be possible to adduce such evidence if the particular transaction is well remembered. But where as in the present case no one could reasonably be expected to remember a particular transaction in detail, and the inference of inducement may well be in all the circumstances quite irresistible, I see no reason in principle why it should not be left to the jury to decide, upon the evidence in the case as a whole, whether that inference is in truth irresistible as to our mind it is in the present case. In this connection it is to be noted that the respondent did not go into the witness box to give evidence from which that inference might conceivably have been rebutted."

41. Lord Roskill then referred to the decision of Sullivan and said:

"'It is, we think, undoubtedly good law that the question of the inducement acting upon the mind of the person who may be described as the prosecutor is not a matter which can only be proved by the direct evidence of the witness. It can be, and very often is, proved by the witness being asked some question which brings the answer: "I believed that statement and that is why I parted with my money"; but it is not necessary that there should be that question and answer if the facts are such that it is patent that there was only one reason which anybody could suggest for the person alleged to have been defrauded parting with his money, and that is the false pretence, if it was a false pretence.'

It is true that in Reg v Laverty [reference given] Lord Parker CJ said, at p 498, that the Court of Appeal (Criminal Division) was anxious not to extend the principle in Sullivan (supra) further than was necessary. Of course, the Crown must always prove its case and one element which will always be required to be proved in these cases is the effect of the dishonest representation upon the mind of the person to whom it is made. But I see no reason why in cases such as the present, where what Humphreys J called the direct evidence of the witness is not and cannot reasonably be expected to be available, reliance upon a dishonest representation cannot be sufficiently established by proof of facts from which an irresistible inference of such reliance can be drawn."

42. Having referred to this passage from the speech of Lord Roskill, the judge in the instant case said this:

"In that light, it does not mean in my judgment that a jury can only be asked to consider the inference contended for if and when evidence cannot reasonably be expected to be available and when there is evidence as to why not. In my judgment the crown are entitled to put before the jury what they can and ask them to consider it. As to the possible inference contended, I am quite satisfied on the evidence in each of these remaining cases that there is a possible inference such as that asserted by the crown. It will of course be a matter for the jury to say whether that inference is the only one and whether it is the only realistic and irresistible inference which arises from the evidence. They may or may not, but it seems to me quite clearly that on the law they are perfectly entitled to consider that question when there is sufficient evidence raising the inference contended for. As I say I find there is."

43. In our view the judge's statement of the legal position in the first part of that ruling was correct. It is true that in Lambie Lord Roskill referred to the situation where the person who could give direct evidence of having been deceived either has no recollection or is not available. But it seems to us that there is no rule of law to the effect that a jury may not be invited to draw an irresistible inference that a false representation operated on the mind of the party deceived unless the person allegedly deceived either is unavailable or has no recollection of the transaction in question. It may be a matter for the jury to decide on the evidence that is placed before it.
44. In our judgment, the judge was right to say that there was a case to answer on the evidence before the jury. There was evidence on all the counts on which the appellant was convicted from which the jury was entitled to draw the necessary irresistible inference that a lending decision based on a false identity, to a person who was or had been bankrupt and who made applications on forms which contained false statements was one procured by deception, that is to say that the deception operated on the mind of the lender. The prosecution called evidence of the institutions' decision-making processes. That evidence indicated that had the fact of a false identity and/or bankruptcy and/or that the application forms contained false statements been known, the loans would not have been made, or at least not at the point when the deception operated to cause them to be made. Details of those lenders and the witnesses who gave evidence as to their decision-making processes were summarised in the summing-up. It is unnecessary for us to refer to those summaries. It is true that the Crown did not call the persons who authorised the individual lendings. It is highly unlikely that those persons would have had a recollection of the particular transactions. If called they would probably have been able to give evidence as to the lending institution's policy, in relation to checking the accuracy of details provided by an applicant for a mortgage, and to say whether false information would have influenced the decision to make the loan or not. But that is the very kind of evidence that was adduced by the Crown from the witnesses whom they did call.

In our view the judge was right hold that there was a case to answer. Indeed, in our view it was a strong case. We think it inherently unlikely that the decision of a mortgage lender to lend would not have been influenced by the knowledge that the borrower was or had been bankrupt, and was providing false information as to his identity and false details about his statement in the application form. It was the defence case that these factors were irrelevant to the lenders. That did not accord with the evidence given by all the witnesses called on behalf of the lenders. It is obviously of relevance to the assessment of risk for a lender to know that the applicant for a mortgage is or has been bankrupt, has assumed a false identity and has included false statements in his application form. It is clear from the summary of the evidence of the representatives of the lenders that they were asked questions about their lending criteria and policies by both counsel, as well as by the judge himself. In fact, therefore, the judge's ruling on this point seems to have been ignored. It follows in our view that the defence were not prejudiced by that ruling and we would reject grounds 3-5.

There remains the renewed application for leave to appeal in relation to ground 6, and the highly-technical point made by Mr Krolick in relation to section 15A(1) and (2) of the Theft Act 1968. Suffice it to say that we are wholly unpersuaded by his submissions. In our judgment the answer to them was more than adequately given by the judge in his ruling, and had it been necessary so to decide we would not have given leave in respect of ground 6.

But for the reasons given earlier in this judgment, this appeal must be allowed.

45. MR KROLICK: Would your Lordship therefore quash the convictions?
46. LORD JUSTICE DYSON: We will quash the convictions.
47. MR KROLICK: Can I say in my own defence in relation to the very first ground, although the learned judge only referred to, as it were, the second limb of O'Hara, there was argument before him by me that the officer had not actually suspected, although he did not refer to that in his ruling.
48. LORD JUSTICE DYSON: Thank you both very much.
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