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
		19 February 2008

LORD JUSTICE MOSES:

1. This is an appeal which in relation to the appellant David Taylor raises the issue as to the circumstances in which, during the course of a trial, it is appropriate for a judge to order that the trial should continue despite the involuntary absence of the defendant due to ill-health. During the course of the trial in the Canterbury Crown Court, His Honour Judge Van Der Bijl ordered that the prosecution should continue to call witnesses adverse to the case for the defendant, despite the fact that the defendant was not able to be present due to ill-health. The upshot was that the trial continued, the appellant gave evidence and was convicted on 20 October 2006 of sixteen counts of false accounting and one count of deception (count 5) to which we shall have to return. He was found not guilty of six counts.
2. The applicant (the appellant's former wife) Tina Paivarinta-Taylor was also convicted, but only on count 5.
3. The case concerns a number of frauds alleged against the appellant David Taylor by which it was said that he had obtained housing benefit, council tax benefit and job-seeker's allowance from the Department of Work and Pensions and the London Borough of Greenwich. It was alleged that, despite the fact that in order to receive sums of council tax benefit, job-seeker's allowance and housing benefit he had to be unemployed, without savings and without other sources of income, he had in fact performed as a musician in a number of places, had benefited from rental income and had not lived in 19 Ellison House, Lewisham SE13 (the subject matter of the case against him), but on the contrary had purchased property in Kent at an estimated value in 2001 of £250,000, had significant capital and assets, and had frequently been abroad and unavailable for work. We shall turn later to the facts of count 5 which concern an alleged dishonest application to exercise his right to buy the property to which we have referred.
4. The prosecution case was that the appellant was a successful musician in Finland, had released a number of albums and could derive a substantial income in this country from performances as an act known as "Rocking Dave Taylor". The prosecution case in part was that they could prove by adducing evidence from a number of publicans and others from premises where the performances took place, to show that they had booked "Rocking Dave Taylor" to play and indeed he had played.
5. The defence case was that it was not he who had played. The appellant said that he had not earned money by working as a musician and had not been available for work throughout the indicted period, despite his previous earnings. He was therefore forced to explain how it was that all the witnesses were able to say that "Rocking Dave Taylor" had performed at their premises. He said that this was probably due to the fact that they had impersonated him, impersonated his business by playing the piano and singing, or through mime had pretended to sing pre-recorded music.
6. Count 5 turned on an application made by both the appellant and his then wife (the applicant). The application form asked whether the property in question, Ellison House, was the tenants' only or principal home. As the form explained, only one of the couple need be a secure tenant in order to trigger the right to buy. Both the appellant and the applicant ticked the box denoting that the property was the tenants' only or principal home, and ticked the further notes indicating the same. That form was important because it explained the substantial advantage which derived from being a secured tenant in the public sector where a discount would arise proportionate to the number of years that the tenant had been a public sector tenant.
7. The prosecution case in relation to count 5 was that, although the application was only granted in 1998, the material period of the application was between 1996-1998. The prosecution contended that for many years -- certainly since 1991 -- that property had not been the principal residence, let alone the only principal home, of the appellant. On the contrary, he lived in substantial premises in Kent where, amongst other things and relevantly to the issues in this appeal, he was registered with the local medical practitioner. The prosecution called a number of witnesses from Finland who, through advertisements in that country, had learnt of the possibility of renting that property in Lewisham Road. A Finnish lady was called to say that since 1991 she had occupied those premises exclusively for a number of years. The appellant said that he had been living there but behind closed doors in circumstances where his presence was not revealed to her.
8. It is in that context that the main ground of appeal on which leave has been given arise. Unfortunately, for a number of years the appellant has been unwell. The circumstances as to how that affected the trial require reference to the chronology. This was an old case. The facts date back to 2004. The trial was fixed for 4 September 2006. On that date the appellant indicated that an angiogram had been arranged for 7 September 2006 and accordingly asked that the court should not sit on 7 and 8 September. The trial judge was clearly concerned that an appointment had been made which, according to the letter from the hospital, could have been deferred. Nevertheless, the judge granted the application and the court did not sit on 7 or 8 September. The appellant was discharged from hospital and returned to court on Monday 11 September. Although the appellant contended that he should be in bed following the angiogram, the judge ordered that the case should continue on 11 September but allowed the appellant to be absent.
9. The appellant complains that, bearing in mind that he had just had an angiogram and that his doctor had advised him to rest in bed, it was wrong to order that the case should continue on 11 September. We shall turn later to the principles which the judge had to deploy in considering whether the trial should continue, but in order to complete the chronological narrative we note that on 11 September two witnesses from Finland gave evidence. It is difficult to see what sensible cross-examination could have been usefully deployed on that occasion, bearing in mind the defence was that, although the appellant was living in the premises, those witnesses would not have been aware of the fact, but the ingenuity of counsel at Canterbury Crown Court should never be underestimated.
10. On the following day (12 September 2006) the appellant returned to court after seeing Dr Mathews, his general practitioner. Dr Mathews noted that the appellant was worried over future medical intervention following the angiogram and that that concern occupied most of his thoughts. It is not surprising that it did so since, as a result of the angiogram, there has been advice that he should have fitted devices to ease the passage of air and oxygen through his arteries to the heart. Nevertheless, the judge ordered that the trial should continue on that day and some cross-examination of further witnesses took place.
11. The next day (13 September) the appellant again attended court but claimed to be unwell. As a precaution an ambulance was called. He was conveyed to hospital to Canterbury. The trial continued.
12. On 14 September the court was informed that the appellant was still in hospital. There was no further medical report. The judge had to consider whether, contrary to the application on behalf of the appellant, the case should continue rather than being adjourned or the jury discharged. The judge retired in order to consider that application. He then gave a ruling in which he summarised his reasons for refusing to grant an adjournment and ordering the case to continue in the appellant's absence. In his ruling he reviewed the evidence in some detail. He made a number of comments about what he plainly regarded as the inadequacies of the defence being raised in relation to the prosecution allegations. He then considered the medical evidence. He pointed out that the evidence from the general practitioner was that the appellant was used to drinking but suffered from considerable stress, chronic low mood, fear and anxiety. He apparently became upset very easily. He was advised not to take any physically strenuous or stressful work. The doctor continued:

"Whilst one always hopes for some improvement in his symptoms, Mr Taylor has had these conditions over a long period and is likely to be living with the symptoms in the foreseeable future."

The judge made a number of comments about the general practitioner's evidence which seemed to suggest that it was for the appellant to "pull himself together" and "allow himself to improve". He repeated, however, the medical evidence that it could not be predicted how long the appellant's increased anxiety would continue. He recorded the doctor's view that the appellant was unlikely to be able to concentrate and instruct his legal team with a clear mind since he was most concerned and pre-occupied with the future intervention that was feared.

13. Having recorded his views as to the cogency of the defence and recalled the medical evidence, the judge concluded that the appellant was afflicted by an involuntary illness or incapacity. The judge found as a fact that the appellant was not voluntarily absent from the trial. He then considered both the House of Lords' decision in R v Jones [2003] 1 AC 1 and its endorsement of the earlier decision of Rose LJ [1981] Crim LR 720. Having considered those cases and directed himself as to the factors which had to be considered in such a situation, the judge ruled that there was no realistic possibility of knowing when it would be that the appellant would recover and ordered that the trial should continue.
14. Thereafter, the appellant attended court between 15 and 20 September 2006. His presence should not be held against him since it is plain that he had been advised not only of the judge's conclusion but of the way in which the judge had expressed himself. He clearly felt difficulties in attending. This culminated in an application on 21 September 2006 for the judge to recuse himself. The application was made because of the way the judge had expressed himself as to the merits or otherwise of the defence, despite the fact that he had ruled that the appellant had not voluntarily absented himself from the trial. Later that same day the appellant collapsed in the dock. An ambulance was called and a doctor called. No further medical report was obtained. The doctor reported that tests revealed that the appellant's position had been stabilised and the appellant asked to remain in court. Subsequently the appellant gave a full uninterrupted evidence, which took place over five days.
15. The first question therefore in this appeal is whether the judge correctly directed himself as to the principles to be applied and was correct to conclude that the trial should continue, despite the appellant's obvious health difficulties. These were, as the judge found, involuntary, and for three days, possibly longer, he could not attend court.
16. It is not submitted that where a defendant is involuntarily absent it inevitably follows that the trial cannot continue. The right to be present at court is vital. It is not only a right so that the defendant can participate by giving instructions and following the trial, but also so that he can see and hear the witnesses who are giving evidence against him. This is not only part of the process by which a defendant participates at trial, but is also a sanction by which the public can be confident that there are pressures on those witnesses who give adverse evidence against a defendant to tell the truth. To give an account of events in a witness statement or within the seclusion of a police station is one thing. It is quite another to have to stand up in public, face-to-face with a defendant, and repeat those assertions. Thus Rose LJ in Halson emphasised the importance of the right of a defendant to be present at his trial and to be legally represented. In considering the factors which a judge has to take into account, as explained by the House of Lords in Jones, it is apparent that that right is not absolute. Even in cases where a defendant is not voluntarily absent, a judge must consider for how long an adjournment is likely to be and also the extent to which legal representatives in the absence of a defendant are able to receive and act upon their instructions. The court is also enjoined to take into account the public interest in the pursuit of a continuous trial and the interest not only of victims but also of witnesses. There is a public interest in not allowing a trial to be put off for an indefinite period.
17. Nevertheless, where a defendant is absent through ill-health, the judge must be astute to see that an adjournment for a short period until he recovers will not be refused, save in circumstances where he is compelled to take the opposite course.
18. It is plain that the judge had concerns as to whether the appellant really was suffering to the extent which the doctor and the appellant said. Were it not so, he would not have made a number of comparatively disparaging comments about not only "the good doctor", but also as to the appellant's need to "pull himself together". Those remarks in our judgment were inapposite. If, as he was entitled to do, the judge had doubts about either the genuineness of the symptoms or their gravity, the proper course was to adjourn and invite another medical report to be prepared (if the appellant was agreeable) in order to check upon those symptoms. It was not for the judge to exercise some medical expertise which he did not have.
19. The judge found that the appellant had not voluntarily absented himself. The correct question was, therefore, as Mr Long rightly pointed out, to consider what flowed from that finding. It did not inevitably follow that the judge was bound to allow the adjournment. Uppermost in his mind was whether an adjournment would resolve the problem. There was ample medical evidence, to which we have already referred, to indicate that it would not have done so. The appellant's anxiety and stress was of some considerable standing and length. He had apparently suffered an alcohol problem and was often anxious and of low mood or depressed. The stress of a trial would inevitably exacerbate those symptoms. In those circumstances the judge was entitled to consider whether an adjournment for a few days would have remedied the problem and to conclude that it would not have done so. He was entitled to take that view. His concern to press on and his belief that the appellant would be able to cope with the trial were, as it turned out, proved to be correct. Moreover, the judge was entitled to consider what was likely to happen during the appellant's absence. It is true that witnesses were called, but their evidence was hardly the subject of any fierce cross-examination. Having regard to the issues, it was not likely to have been subjected to such treatment. Since the appellant's general defence was, "I was in the house, but others in the house would not have noticed", it is difficult to see why those witnesses needed to be there, let alone cross-examined in his presence. Since the appellant's defence in relation to playing music was the general defence, "I do not know who these people were who impersonated me, but they were not me", again it is unlikely that the cross-examination could have been particularly fierce or focused, or that much difference would have been made by the appellant being present in the dock. There was always the danger after all that one of those witnesses might recognise him.
20. In short, whilst the imperative is clear that a defendant ought to be present during the trial and that in most cases an adjournment should be granted where he is ill, this was one of those rare cases where we conclude that the judge was right to allow the prosecution to continue to adduce evidence. He was wrong, however, to be so scathing about the paucity of the defence. That was not relevant to his ruling and can only have excited feelings both in the appellant's representative and in the appellant himself of antagonism towards the case he was advancing. That antagonism was not relevant and ought not to have been expressed. What was relevant was the extent to which the appellant was prejudiced in the context of the defence that he was proffering by not being present whilst those witnesses were called. Having regard to the nature of the defence and having regard to the evidence that the witnesses gave, in our view the appellant was not prejudiced. In those circumstances, whilst we would criticise the terms in which the judge expressed himself, for the reasons we have given we take the view that he reached the correct conclusion entirely consistent with what their Lordships said in Jones and what Rose LJ said in Halson. We have not cited the important passages in either of those cases lest mere reiteration detracts from the importance of the words there used. It suffices to say that the right to be present at trial is not absolute; a judgment must in some circumstances be exercised as to whether an adjournment will be of benefit or cause any prejudice. In our judgment the judge was correct to foresee that it would not have done any good and correct to consider that there was no prejudice. For those reasons the first and main ground of the appeal is rejected.
21. There is, however, an application by both the appellant and the applicant in relation to count 5. It concerns the way the judge directed the jury as to events prior to the making of the application which was between 1996 and 1998. Although the judge was correct, so it was argued, in the initial directions he gave to the jury, subsequently he erred in answer to questions by directing the jury that they could convict notwithstanding that they were only satisfied that the property was a second property in a period prior to 1996 but not at the time of the application. The issue arises in this way. During the course of his directions in relation to count 5, the judge directed the jury that they should focus upon the application between 1996-1997. He pointed out that the application in the written form to which we have already referred was made in March 1997. He correctly pointed out to the jury that if at that time the defendants were renting or leasing out the premises, then the secure tenancy would come to an end and if the defendants had appreciated that, then the claim was dishonest.
22. Subsequently, in relation to the applicant, the judge pointed out that her case was linked to the appellant's. He said:

"If you think that both were or may have been legitimately secure tenants in that it was David Taylor's main or principal home, in other words that it was not rented out and that he was living there either alone or with casual lodgers, then they had a right to buy and should be found not guilty on count 5."

The judge pointed out that although the applicant was not living there, the question was as to her knowledge or belief of the appellant's use of those premises as a main or principal home. Those passages are important because although the prosecution set out a number of particulars in count 5, it is clear that by the time of the directions to the jury the case was focused on the allegation that both the appellant and the applicant had dishonestly represented that the appellant occupied the property as his only or principal home.

23. The jury were not content with that direction. They asked questions as to the appropriate date of any alleged misrepresentation. This followed that which had possibly been foreseen by the prosecution who sought to widen the period of deception to a period before 1996. The judge rejected any such widening and accepted the defence submission that the jury should focus upon any representation and any facts relating to the specific period of 1996-1998. Following their retirement the jury asked this question:

"Does a retrospective breach of the tenancy by letting the property out prior to 1997 in law vacate the right to buy entitlement?"

In response to that question a written direction was prepared with, we are told, the consent of all counsel. It reads:

"As a matter of housing law under the Housing Act 1985, a breach of the council tenancy conditions by subletting the property to subtenants does automatically end the secure tenancy from that date; but, you are not dealing with housing law, you are dealing with a criminal offence alleging dishonesty.

The prosecution case is that the defendants rented the property out as a matter of course and that David Taylor never truly occupied the place. Thus you are dealing with more than a mere technical breach of tenancy conditions. You are dealing with an allegation of obtaining of property by dishonesty.

To convict either defendant, you have to be sure that the defendants, before or at the date of the application, and the date of the application is from 1996 to 1998, treated the place as a second property, renting it out on exclusive possession leases, and that they must have realised that that their application to buy under the Right To Buy scheme was dishonest in the sense of being contrary to the conditions and whole point of that scheme.

The defence case is that David Taylor was, at the date of the application, occupying the place, was living there as his main and principal home, and that any other persons living there at the same time as him were mere lodgers. Mrs Taylor's case adopts that defence."

24. The main focus of complaint about that direction is that, contrary to the judge's earlier summing-up and ruling, it appears to permit of a verdict based upon the use of the home as a second property prior to 1996, but not during the period of the application between 1996 to 1998. The relevant part, we repeat, reads:

"To convict either defendant you have to be sure that the defendants before or at the date of the application treated the place as a second property, renting it out on exclusive possession leases."

It was argued by Mr Long, and ably supported by Mr Martin-Sperry, that that incorporated into the consideration of the jury a wider period than that which had hitherto been relied upon and might have permitted the jury to be deflected into concentrating only on the earlier period. That was particularly important bearing in mind that the Finnish ladies who lived in the property had confined their evidence to occupation (and they said exclusive occupation by them) between 1991 and 1994. The jury were still not clear as to what they had to concentrate on. They asked again:

"To convict either defendant, we have to be sure that the defendants before or at the date of the application means the two periods 1996 to 1998 exclusively and not a period before 1996?"

The answer was:

"It includes a period before 1996. I hope that is helpful."

We pause to comment that it might have been better had the judge clearly distinguished between the period on which the misrepresentation was supposed to have taken place and the evidence which went to show that it was a misrepresentation. The period prior to 1996, in particular the period between 1991 to 1994, was evidence relevant to show that the property was not occupied by the appellant at the time of the representation between 1996 and 1998. But the misrepresentation relied upon was the written application form, signed in March 1997. That, in our judgment, was not made sufficiently clear to the jury.

25. However, the question that we must consider is whether the verdict on count 5 was safe. To do that we have to look at the summing-up as a whole and the written directions given with the sanction of all counsel. The whole of the third paragraph must be read, and in particular it must be appreciated that, although there is reference to the period before the date of the application, in considering dishonesty the jury were directed that the defendants must have "realised that their application (the application of March 1997) to buy under the Right To Buy scheme was dishonest". That in our judgment, in the context of the way the prosecution put their case and in the directions as a whole was sufficient to focus the jury on the issue as to whether the actual written application was dishonest. That is particularly so when the defence is considered. The defence was not that the property had been unoccupied during the period of which the Finnish ladies spoke (1991 to 1994) and had subsequently been occupied. The defence was that it had been occupied as a principal or only residence by the appellant throughout that period. In those circumstances in our judgment it cannot be inferred that by reason of the perhaps inadequate direction on that point the jury were in any way deflected from the essential issue before them.
26. In those circumstances we refuse both the applications in relation to count 5 and the appellant's appeal is dismissed.