England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ST ALBAN'S CROWN COURT
(His Honour Judge Plumstead)
Insert Lower Court NC Number Here

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/05/2008

Lord Justice Laws:

INTRODUCTION

1. Before the court are four appellants and one applicant for leave. We shall refer to all five as appellants for convenience. Together with three other defendants they originally faced an indictment containing 23 counts. However in the event the Crown did not proceed on a number of charges, and in the result there were thirteen live counts for the jury to consider. These were pleaded in a revised indictment and sequentially numbered 1 – 13. We shall use this numbering in what follows.
2. On 8 December 2006 before His Honour Judge Plumstead at the St Albans Crown Court the jury returned verdicts as follows. They convicted Gabriel Kiernan (to whom we will refer as "Gabriel") on count 1 – conspiracy to defraud, count 2 – forgery, count 3 – using a false instrument, count 4 – forgery, count 5 – using a false instrument, and counts 6 and 12 – obtaining a money transfer by deception. Kevin Kiernan ("Kevin") was also convicted on counts 1, 2, 3, 4, 5, 6 and 12 and in addition on counts 7, 8, 9, 10 and 11: all offences of obtaining a money transfer by deception. Julian Burton was convicted on counts 8, 10, 11 and 12. Nigel Coyne was convicted on count 12. Sean Kiernan ("Sean") was convicted on counts 7, 8 and 9. Gabriel and Kevin, together with another defendant called Kevin Halliday, were acquitted on count 13 (a further charge of obtaining a money transfer by deception).
3. There were three co-accused including Mr Halliday, whose acquittal on count 13 was by direction of the judge after his counsel's successful submission of no case to answer. The Crown chose not to proceed against Linda Kiernan and Peter Procopi on such charges as they faced, which we need not enumerate.
4. On 14 December 2006 His Honour Judge Plumstead passed sentence. Gabriel and Kevin were each sentenced to four years imprisonment on count 1, and lesser concurrent sentences on the other counts on which the jury had convicted them. The other three appellants were sentenced to non-custodial penalties.
5. Gabriel, Kevin, Sean and Nigel Coyne all appeal against conviction by leave of the single judge, though in the case of Gabriel and Kevin on limited grounds as we shall explain. Mr Burton's application for leave to appeal against conviction has been referred to the full court by the single judge, but only in relation to three of his five grounds. Gabriel and Kevin also appeal against sentence by leave of the single judge. As we shall explain, Kevin seeks to renew his conviction application in respect of two grounds on which the single judge refused leave. Mr Burton does not seek to renew the two grounds (grounds 4 and 5) on which the single judge refused him leave.

OUTLINE OF THE FACTS

6. It will be necessary to give further details of the facts in dealing with the grounds of appeal. What follows will serve as an introductory sketch.
7. Gabriel and Kevin are brothers. Sean is Kevin's son. Gabriel worked for a man called Derek Barrett who was involved in property transactions. Mr Barrett was named in count 1 of the indictment as a co-conspirator, but was not before the court as a defendant. Kevin also worked in the property business, as a builder and developer. Mr Coyne worked for Sean. Mr Burton was a mortgage broker.

The Crown Case

8. The subject-matter of the indictment consisted in a series of property and mortgage frauds. It may be divided into three parts under the headings "Claregate", "the Grand Hotel", and "the mortgage frauds". Counts 1 - 3 (which charged only Gabriel and Kevin) together constitute the Claregate part of the case. They concerned a large run-down property in about an acre of ground at Potters Bar. It was called Claregate. The Crown's case on count 1 was that Gabriel and Kevin conspired with Derek Barrett to defraud Claregate's very elderly owner John Harness, by inducing him to sell the property at an undervalue. On 18 November 2002 Kevin obtained from Mr Harness, for a consideration of £1, an option to purchase a 999 year lease of Claregate for £500,000, valid for two years, with a right to extend the option upon payment of a further £50,000. On the same day Mr Harness granted Kevin a shorthold tenancy of the property for two years at £10,000 a year. The option agreement was the subject of the conspiracy alleged in count 1. The Crown did not call expert evidence as to the value of Claregate; but they placed before the jury evidence of a considerable number of offers made by other parties for the purchase of the property. The Crown said that this evidence went to show that the defendants' purpose in procuring the option from Mr Harness was to obtain the property at an undervalue. The Crown also relied on other evidence of the appellants' conduct at the relevant time.
9. Counts 2 and 3 concerned a letter forged by Gabriel and Kevin purporting to be written by Mr Harness to a firm of solicitors called Nicolaou and Co, stating that they (the solicitors) had never acted for Mr Harness. Nicolaou and Co were in fact solicitors for a company called Love and Care Ltd. Love and Care Ltd were rivals with Gabriel and Kevin for the acquisition of Claregate. At a date after the grant of Kevin's option, they claimed to have obtained from Mr Harness a long lease over Claregate. They sought to register this supposed interest at the Land Registry but found themselves unable to do so because Kevin's option was on the register. The Crown accept and accepted at trial that Love and Care acted, or at the very least may have acted, in bad faith; in truth they had no lease on the property. It was also as we understand it accepted that Nicolaou and Co themselves acted in bad faith in the course of representing Love and Care Limited.
10. The Crown case on counts 2 and 3 was and is that Gabriel and Kevin placed this false letter before Mr Harness, whose mental faculties and especially his memory were gravely impaired, in order to secure that he should distance himself from Nicolaou and Co and thereby, so to speak, ward off Love and Care Limited, so as to clear out of the way any remaining difficulties which the Land Registry might raise, or which might be raised in litigation, as to the title to Claregate. This ruse would ultimately smooth the appellants' path towards the exercise of Kevin's option and thus the rewards of the conspiracy charged at count 1.
11. Counts 4 – 6 comprise "the Grand Hotel" part of the case. Again only Gabriel and Kevin were charged on these counts. Among them only count 6 is the subject of any ground of appeal (as we will explain in due course). The context of these counts was the refurbishment and conversion into flats of the Grand Hotel in Weymouth. The hotel was bought by Jasmin Limited, an offshore company owned or controlled by Derek Barrett. However, Kevin and Gabriel were both involved in the project. Kevin assisted Mr Barrett in obtaining a loan of £900,000 from BM Samuels Finance Group plc. Samuels had the property valued by a Mr Moses. Documentation, called the "City Space Construction Estimate", containing a list of estimates of the cost of works and a schedule of monies paid was produced. The Crown's case was that Gabriel and Kevin forged these documents (count 4), used them by providing them to Mr Moses (count 5) and procured the loan by the pretence to Samuels that the documents were genuine and their contents true (count 6).
12. Counts 7 – 12 (and indeed 13, although as we have said the defendants charged on that count were acquitted, and it will be unnecessary to describe its particular facts) are the mortgage frauds. Counts 7 – 9 concerned a mortgage on Flat 6, 24 Greenhill, one of the finished flats at the Grand Hotel. It was bought in Sean's name with a mortgage of £134,975 obtained from the Royal Bank of Scotland. Count 7 charged Kevin and Sean with dishonestly obtaining the mortgage money by pretending that Sean was the true applicant for the mortgage and had a gross annual salary of £45,000. A further loan of £11,000 was obtained from Swift Advances plc. Count 8 charged Kevin, Sean and Mr Burton with having made false representations to Swift that the true applicant was Sean with a salary of £40,000. Thereafter the flat was re-mortgaged and a loan of £168,000 was obtained from the London Mortgage Company upon a representation that Sean's income was £55,000. This was the subject of count 9, upon which Kevin and Sean were charged.
13. The Crown's case on counts 7 – 9 was that all these loans were obtained by deception: that Kevin was behind the applications, which were in truth a financing exercise to which Sean lent his name and for which he allowed his identity to be used. The various salaries stated in the applications were entirely fictitious.
14. Counts 10 and 11 concerned Flat 8, 24 Green Hill, and a property at Goff's Lane which belonged to Kevin. Kevin and Mr Burton were the defendants. Kevin obtained a loan of £126,976.50 from Igroup Limited to purchase Flat 8. He also raised a mortgage of £74,000 on his own home, Goff's Lane, from Future Mortgages. Both applications were made through Mr Burton and supported by an accountant's letter from a Mr Harnick. Mr Harnick appeared as a witness for the Crown and told the jury that the accountancy evidence he had provided was entirely bogus. Count 10 related to the false representations thus deployed in relation to the loan on Flat 8, and count 11 to Goff's Lane.
15. Gabriel, Kevin, Mr Burton and Mr Coyne were all charged on count 12 which concerned a mortgage obtained in the name of Nigel Coyne for £191,925 from Igroup Limited in order to finance the purchase of Flat 7, Danebury, in Notting Hill. The application for the mortgage was supported by a statement that Mr Coyne's income was £50,400, an accountant's letter from Mr Harnick, and other documents. The Crown's case was that the application was a money-raising exercise; Gabriel and Kevin were behind it; Mr Coyne's income figure was false, as were the accountant's letter and other documents.
16. There were a number of interlocutory matters on which the learned trial judge was required to rule. We shall describe these so far as necessary in dealing with the grounds of appeal, but note at this stage that submissions of no case to answer were made for all the defendants on all counts. The judge rejected all save one, count 13, which the judge allowed in part; the jury acquitted Kevin Halliday on what remained of the count.

The Defence

17. Of the defendants only Gabriel, Kevin and Mr Burton gave evidence and only Mr Burton answered questions in interview. All denied any wrongdoing.
18. On counts 1 – 3 it was said that £500,000 was a fair price for Claregate, and that the letter stating that Nicolaou and Co had never acted for Mr Harness contained no more than the truth and would be used only if Mr Harness approved it. Gabriel and Kevin believed that Nicolaou and Co had purportedly acted for Mr Harness, though in fact without his instructions or consent, in relation to the supposed acquisition of a long lease over Claregate. On counts 4 – 6 it was said that the City Space Construction documents were genuine, that no deception was practised on Samuels to procure the loan for £900,000 which had been paid back in full. As for counts 7 – 12, there were cut-throat defences as between Mr Burton and the other defendants. The case advanced for Kevin, Sean and Mr Coyne was that Mr Burton was responsible for putting forward any false information in the mortgage applications. Mr Burton accepted that he filled in the relevant forms but claimed to have done so using only information provided by the named clients who signed the forms as correct. He denied ever filling in blank forms. He never suggested that Mr Harnick provide false references. Generally, it was submitted for the defendants that the lenders were not deceived. They were "sub-prime" lenders, interested only in the value of the secured property. Statements of the mortgage applicants' income were in reality window-dressing.

THE GROUNDS OF APPEAL AGAINST CONVICTION

19. We shall first address the grounds for which leave has been given or which have been referred to the full Court by the Registrar, arranged by reference to the counts in the indictment to which they relate. Kevin seeks to renew two grounds on which the single judge refused leave (his grounds 1 and 11) and we shall deal with those last.

Count 1: Evidence of Value

20. Gabriel and Kevin both submit (ground 3 in each case) that the Crown's evidence of offers to purchase Claregate, other than Kevin's option, was in principle insufficient to support count 1. They say that the Crown's case to the effect that £500,000 was an undervalue could not be established without expert evidence of which there was none. The proposition that £500,000 was indeed an undervalue is said to have been a material averment in count 1, and for the purposes of the argument we shall proceed on the footing that that is so. This ground is articulated on the basis that the judge should have acceded to the submission of no case to answer on count 1, but it is also submitted that the convictions by the jury on count 1 are unsafe. The point is the same: the count could not survive the absence of expert evidence.
21. The Crown's evidence of other offers for Claregate was adduced through a surveyor, Robert Griffiths. There was a broad range of offers. They are set out in a schedule attached to the skeleton argument prepared by Crown counsel. They go as high as £1.3m for the "unrestricted freehold purchase of the site" (P+R Associates, 29 June 2001). There are other offers of lower sums. It is submitted for Kevin and Gabriel that this evidence was entirely inadequate. The higher offers took no account of certain cautions on the property; some offers were subject to the grant of planning permission for the development of the site, which Kevin's option was not; one offer (from a Mr Eugenio, made one month before Kevin's option was signed, of £550,000 for a lease of 125 years) was particularly relied on as being in the same range as the option; the offerors gave no live evidence and were not cross-examined, and (as the judge recognised) an offer may be pitched high in the first place to attract the vendor, but then adjusted down. There was evidence that the valuation of real estate was a highly specialised discipline, and so the over-arching submission was that without expert valuation evidence the jury were in no position to infer, or to find, that £500,000 was an undervalue for a 999 year lease.
22. There were a large number of offers. Plainly Claregate generated much interest, though the evidence was it was never advertised for sale. We have already referred to an offer of £1.3m. Within about a year before Kevin obtained his option Mr Harness received offers between £900,000 and £1.25m whose terms would have involved greater restrictions on the purchaser than were imposed pursuant to the option. One of the cautions relied on by the appellants, arising from a charge registered by a Mr Baker, was cleared by Kevin himself for £7,000. As for the option, it prevented Mr Harness from dealing with the land during its currency; there were no restrictions such as had been stipulated by Mr Harness in respect of other offers (such as a requirement that the property be used as an educational establishment or a nursing home); and the 999 year term was as good as a freehold.
23. There is plainly no legal rule that a fact such as the value of a property can only be proved by expert evidence, though obviously expert evidence would be amenable and would be likely to illuminate such an issue. However absent such a rule the only question on this ground of appeal is whether on the evidence that was adduced a reasonable jury could conclude, applying the criminal standard of proof, that a purchase pursuant to Kevin's option would have been at an undervalue. We are clear that it could so conclude. The evidence of offers provided a variegated picture of the spread of serious interest in Claregate. No doubt the jury could not arrive at a precise valuation for themselves. But in our judgment it was certainly open to them to decide that £500,000 for a 999 year lease was below the range for a fair and reasonable price.
24. In dealing with the evidence going to undervalue it is convenient at this stage to consider a related point taken by Kevin at ground 4. It is that in addressing the relative value of leasehold interests for different terms of years the judge in his summing-up went beyond what was warranted by the evidence. This criticism is directed at a passage (summing-up transcript vol. VIII 34E – 35E) in which the judge made some graphic observations about the difference between a lease for 125 years and one for 999 years: supposing oneself to be at the end of the term, the former might have been granted in the lifetime of a juror's grandparents; the latter when "the Britons were still living in mud huts" (the judge was not, it seems, a very good historian of early 11^th century England). He concluded (35E):

"So, members of the jury, as I say, it is up to you but you are entitled to take into account that this was to be a 999 year lease on terms attached."

Kevin had himself given evidence to the effect that the difference in value between a 999 and 125 year lease was negligible.

25. The jury were plainly entitled, to say the least, to adopt a guarded view of this evidence from Kevin. While we consider the judge's picturesque observations about times past were unhelpful, he was entitled to make the essential point that it was open to the jury to consider for themselves the difference between 999 and 125 years. There is nothing in this ground.
26. The Crown, however, has more to say on count 1. It is important not to consign the evidence into rigid compartments. The Crown relied not only on the evidence of offers, but also on other evidence concerning the appellants' conduct. There was before the court evidence from what has been referred to as a probe – a recording device – fitted to a car used by Kevin, Gabriel and Derek Barrett. It recorded, among other things, a conversation between Gabriel and Mr Barrett in the car on 11 July 2003 (the day on which the Crown said the letter the subject of counts 2 and 3 was forged). As I have said Mr Barrett, though not a defendant, was named as a co-conspirator on count 1. The jury were plainly entitled to infer from the probe material that Gabriel had been bragging about Mr Harness having been duped into granting the option (Mr Barrett said "You've done very well to get all that done"). The context of this boast, however, was not so much the past as the future – the plan to create the forged letter, the subject of counts 2 and 3. As we understand it the Crown deployed the whole of the probe evidence to support their case on count 1.
27. Mr Altham, who appeared for the Crown at trial and before us, submits that material tending to show that Mr Harness was tricked into granting the option tends also and by the same token tends to show that the tricksters can have had no scruples as to the market value of the property: quite the contrary. Kevin and Gabriel's purpose in duping Mr Harness, if that was properly proved, was to make a lot of money by illicit means. In our judgment evidence to that effect clearly went to support the Crown's case on count 1.
28. That is, however, subject to the merits of ground 5 in Kevin's appeal. The probe evidence was relied on by the Crown not only against Gabriel but also against Kevin. By ground 5 it is submitted that the judge failed to direct the jury correctly as to the approach they should take to statements put before them to prove the furtherance of the conspiracy. Kevin was not in the car when the recorded exchanges between Gabriel and Mr Barrett took place on 11 July 2003. However he involved himself in the discussions to the extent that he spoke to Mr Barrett by phone in the course of comments being made about whether Mr Barrett's mother might be sent to Bournemouth to befriend Mr Harness – Mr Barrett explained the idea to him; he also joined in by phone when agreement was being arrived at to meet up in order to forge the letter.
29. The essence of the complaint advanced by Mr Johnson QC for Kevin under ground 5 is that although the judge stated the right test for admissibility of a statement in furtherance of a conspiracy as against a party absent when the statement was made, he invited the jury to apply the test for themselves; whereas he should have ruled as to what was and was not admissible evidence under this head.
30. At 39B – 40B of the summing-up transcript the judge made some observations as to what the jury might get out of the discussions between Gabriel and Mr Barrett. Mr Johnson referred to this passage in the course of his oral submissions, but it is in our judgment entirely unexceptionable unless the judge's earlier directions on the law relating to statements made in furtherance of a conspiracy can be faulted. These directions are at 17D ff. Dealing with the probe evidence in the context of the conspiracy charge he said:

"You need to know what use you can make of that and how you can use them [sc. the conversations] and that is because they include on a number of occasions things said by one of the accused in that conspiracy, and if you have your indictments there you will see the three names are [Gabriel], [Kevin] and [Mr Barrett], when things are said by one of those accused which may, if you apply these directions I am about to give you, affect the case of another accused even if that other accused is not there and not involved in the conversation… The answer is when you are dealing with a statement made during the time that a conspiracy was underway by one person to another which involves the interests of a third one you need to have these factors in mind. Firstly, you would have to be satisfied… that the people who are talking are people who are involved in the conspiracy. Secondly, as to what is said, you would have to be satisfied that what was said is reasonably open to the interpretation that they were talking in furtherance of the conspiracy. That is that the discussion was a part of an ongoing conspiracy. Thirdly, before you could use that against the absent person… you would have to be satisfied in relation to the third person that that other person is within the conspiracy…"

The learned judge proceeded to illustrate the effect of these directions by means of a somewhat graphic example. We need not set that out.

31. Mr Johnson for Kevin accepts that the judge's directions as we have set them out were perfectly correct as far as they went. However he says that they delineate a test for the admissibility of the evidence in question, and so the judge should have applied them so as to decide for himself which parts (if any) of the exchanges between Gabriel and Mr Barrett were admissible against Kevin and ruled accordingly. By contrast he told the jury this (20A – B):

"[I]t is your job to look in the way that I have just directed you to see what evidential value you believe those conversations have."

32. Mr Johnson submits further that as regards any part of this evidence which he held admissible as against Kevin, the judge should have warned the jury of its drawbacks or dangers as hearsay. By reason of these failures of the judge the verdict on count 1 is said to be unsafe.
33. Mr Altham for the Crown reminds us that in any event Kevin was party to some of the discussion between the other two, having joined in by telephone. However that did not apply to the exchange where Gabriel is bragging about having tricked Mr Harness into signing the agreement and the two discuss the creation of the letter (the subject of counts 2 and 3), nor to a conversation between Gabriel and Mr Barrett on 16 August 2003 about sending a person of Greek appearance, posing as a representative of Nicolaou and Co, to talk to Mr Harness.
34. In Jones [1997] 2 CAR 119, 132A this court referred to Ahern (1988) ALR 162 in which the High Court of Australia considered (p. 171) that "the preferable view [was] that the trial judge alone should determine the sufficiency of the independent evidence" (in context, the reference is to evidence of the kind in question here). Mr Altham submits, however, that it is at least not clear that this approach was endorsed in Jones as correct in the law of England, because the court cited without criticism (at 133F – 134A) a passage from the trial judge's summing-up in which the jury were directed in terms akin to the direction in this case which we have set out. But as we understand it the trial judge in Jones had in fact himself ruled the relevant evidence admissible (see 134B – C), and this court expressed no reservations as to the reasoning in Ahern, which is of course high persuasive authority. There is in our view no basis for suggesting that the law of evidence in this respect differs as between England and Australia.
35. That, however, is by no means the end of Mr Altham's answer to this ground of appeal. He submits first that in truth, the relevant evidence of exchanges between Gabriel and Mr Barrett was plainly admissible. The three conditions mentioned by the judge in his direction to the jury were all met. In particular there was ample other evidence to show that Kevin was involved in the conspiracy. This seems to us to be right. Kevin obtained the option in the first place. His telephone interventions on 11 July 2003 were intermingled with what the other two were saying. He was party to the creation of the letter. And these two points run together: Kevin joined the other two at the internet café where the letter was produced, and then got into the car with the other two and the conversation was promptly picked up virtually where it had been left off.
36. It is not without significance that so far as we are aware no submission was made during the trial to the effect that the judge should rule inadmissible as against Kevin any part of the exchanges between the other two, nor was any objection taken to the terms in which the judge directed the jury about those exchanges. There has been no serious attempt before us to show that any of the evidence was in fact inadmissible. There is in our judgment nothing in Kevin's ground 5. We should add that we find no force in the subsidiary argument that the jury should have been warned as to the limitations of this evidence, or the use they might properly make of it. It is true, certainly, that against Kevin it was hearsay: save, however, to the extent that he participated from time to time, and that is in our judgment an important feature. So is the fact that, as we have said; Gabriel gave evidence and was accordingly subject to any proper cross-examination on behalf of Kevin.
37. In our judgment the grounds advanced for Gabriel and Kevin relating to count 1 are without foundation. They possess, however a corollary which we should deal with now. It is expressed as ground 4 in Gabriel's case, ground 6 in Kevin's. The argument is that had a submission of no case on count 1 succeeded, an application to discharge the jury in relation to the remaining counts faced by Gabriel and Kevin would also have succeeded owing to the substantial prejudice occasioned to Gabriel and Kevin by the jury's knowledge of the count 1 accusation. However in light of our conclusions on the grounds relating to count 1 the point falls away.

Counts 2 and 3: Whose Prejudice?

38. Gabriel (ground 5) and Kevin (ground 7) both submit that counts 2 and 3 should have been withdrawn from the jury. Mr Pearse Wheatley for Gabriel draws attention to the terms of ss.1 and 3 of the Forgery and Counterfeiting Act 1981 to show that the offences of forgery (count 2) and using a copy of a false instrument with intent (count 3) both require proof that the defendant intended "to induce another to accept it [the document in question] as genuine and by reason of so accepting it to do or not to do some act to his own or another person's prejudice". It is then submitted that on the facts of the present case the only persons who might be affected by the letter – and thus potential victims of prejudice under the statute – were the solicitors for Love and Care Ltd, Nicolaou and Co, and Mr Harness. However neither could be prejudiced by the letter since its statement that the latter had not instructed the former was the simple truth. Gabriel's ground 5 also makes a related point, namely that the letter cannot in law have been a forgery, because it did not "tell a lie about itself".
39. On this approach one might be forgiven for wondering what the letter was for. At trial it was said for the defence (see summing-up, 43C) that it was intended to put the letter before Mr Harness for his approval and used only if he approved it. But part of the exchanges between Gabriel and Mr Barrett recorded by the probe on 11 July 2003 make it plain that they were at that stage contemplating forging Mr Harness' signature. As it happened, on the Crown's case the plan evolved through several forms and when at length it was carried into effect it involved an unsigned copy being left at Mr Harness' home in Bournemouth, where such a copy was found after his death.
40. Mr Altham points to the fact, of which there was ample evidence, that Kevin and Gabriel were prepared to go to very great lengths to obtain the fruits of the option. Inherent in this ambition, it is submitted, was a determination to neutralise the competition offered by Love and Care Ltd. It was shown that Mr Barrett was concerned at the scrutiny being brought to bear on the title to Claregate by the Land Registry, who were seemingly faced with two competing interests. There was also a concern to avoid litigation. The letter was to play its part in clearing Love and Care Ltd out of the way. The consequence would be that the Land Registry would step back and the goal of achieving the 999 year lease would be that much nearer.
41. The judge told the jury this (45F – H):

"You only convict [on count 2] if you are sure that the defendant whose case you are considering took part in the creation of a bogus letter nothing to do with Jack Harness in order to obstruct or deflect their rivals and damage theirs or Harness's economic interest and you bear in mind that the Crown's case is that this was an attempt to spike the guns of the solicitors, Nicolaou & Co, who the defendants, say the prosecution, wished to discomfort and deflect and thereby to act to their own or another's prejudice."

42. In our judgment this direction sits perfectly well with the way the case was put by Mr Altham before us, as we have described it. The appellants would have it that there was some slippage (not a term that counsel used) in the Crown's identification of the victim of potential prejudice between Mr Harness and Messrs Nicolaou and Co. We do not think there was. The overriding purpose of the letter was to facilitate the grant of the lease on Claregate pursuant to the option; given count 1, that was obviously to Mr Harness' prejudice since if the plan came to fruition he would be parting with the property at an undervalue. This was the position whatever might be said of any prejudice to Messrs Nicolaou and Co.
43. We should add that there is no question of the letter not telling "a lie about itself". It would falsely purport (signed or not) to have been written by Mr Harness.
44. There is nothing in the grounds relating to counts 2 and 3. Gabriel and Kevin's appeal in relation to the Claregate counts will accordingly be dismissed.

Count 6: Was Samuels Deceived?

45. The Grand Hotel counts (4 – 6) come next. There is no appeal relating specifically to counts 4 and 5, which concerned the City Space Construction Estimate. (Gabriel and Kevin applied for leave to appeal their convictions on these counts. Their applications were refused by the single judge and have not been renewed. However Gabriel has one ground of appeal (his ground 10) not tied to any particular count; we assume he intends it to apply to all the counts on which he was convicted, and we deal with it below.) Count 6 also concerned the City Space Construction Estimate. As we have said it charged Gabriel and Kevin with obtaining the loan of £900,000 from BM Samuels Finance Group plc by deception. Counts 7 – 12, relating to the mortgage frauds, were as we have shown also charges of obtaining money transfers by deception. Kevin appeals (ground 9) against his conviction on all of these counts, that is counts 6 – 12, on the ground that there was insufficient evidence to prove that the person from whom the money was obtained was in fact deceived. Gabriel appeals (ground 8) against his conviction on grounds 6 and 12 on a like basis (he was not charged on counts 7 – 11). There are like appeals by Mr Coyne and Sean against their convictions on the mortgage fraud counts on which they were charged. It is convenient to deal with Kevin and Gabriel's appeal on count 6 first and separately, not because it alone relates to the Grand Hotel but because all the other counts (7 – 12) possess a common feature absent from count 6, namely that the Crown did not call as a witness the person on whose mind the relevant deception was said to have operated.
46. That is not, however, the case in relation to count 6 to which we now turn. The Crown case was that after receiving the application BM Samuels sent their valuer, Mr Moses, to value the Grand Hotel. He was supplied with the City Space Construction Estimate, which purported to be or to contain a true and accurate representation of the works so far done and to be done, together with estimates of costs and money so far expended. The documents were on City Space headed paper. In fact, said the Crown, they were bogus. The Crown asserted (and presumably the jury accepted) that the work had not been done by City Space as the documents stated. They called Mr Samuels from the lenders. He told the jury that he would not have authorised the loan of £900,000 had he known that he was being supplied with forged documents in support of the loan application.
47. In this court there is no issue but that the documents were forged. However the Crown had also of course to prove a causal link between the presentation or use of the forged documents and the grant of the loan. The appellants point to the fact that Mr Samuels agreed that it did not matter to him "a row of beans" who had done the renovation work on the Grand Hotel as long as it had been done to the appropriate standard. There was no suggestion that it had not. Accordingly it is submitted for Gabriel and Kevin that the fact of the forgery had no operative effect on the mind of Mr Samuels when he authorised the loan.
48. Summing up to the jury the learned judge said this (58E – 59E):

"[The prosecution case] is using bogus documents... and that that falsehood... at least in part caused Samuels to make the transfer. I have said at least in part because of course it is perfectly clear from the evidence in this case that Bernard Samuels is a business which specialises in marginal business. Its primary concern when it makes a loan... is the value of the asset... So, members of the jury, you must only convict in this case if you are sure... that the effect [sc. of the false documents] was material, that is of some significance, real significance, on Mr Moses' opinion and therefore on Samuels' decision to make a loan."

49. In our judgment the appellants' argument rests on a non sequitur. The fact, if fact it was, that Samuels were not interested in who had done the renovation work so long as it was up to standard does not imply that the authenticity or otherwise of the documents produced was irrelevant to the loan decision. As we have said, Mr Samuels told the jury that he would not have authorised the loan had he known that he was being supplied with forged documents. That evidence is not undermined by the company's attitude to the quality of the work and who carried it out. The judge was right to reject the submission of no case that was made on count 6, and the jury were wholly entitled to convict the defendants. There is nothing in the grounds relating to count 6.

Counts 7 – 12: Proof of Deception

50. As we have indicated Gabriel's ground 8 and Kevin's ground 9 encompass a submission in relation to counts 7 – 12 (in Gabriel's case, count 12 only) to the effect that there was insufficient evidence to prove that the person from whom the money was obtained was in fact deceived. There is thus on the face of it an affinity with the appeal on count 6, but the argument is quite distinct. The over-arching point on counts 7 – 12 is that the Crown failed to call direct evidence to prove the operation of deception upon the person or persons who in each case could be said to represent the state of mind of the company which was said to have been deceived. Under this head we have to consider not only Gabriel and Kevin's appeals but also those of Mr Coyne and Sean. Mr Coyne was charged and convicted only on count 12; Sean on counts 7 – 9. Mr Coyne has advanced two related grounds of appeal, both of which bear on this part of the case. In Sean's appeal grounds 1 and 2 are relevant.
51. On counts 7 – 12 it was generally the defence case (as we have stated) that the lenders were not deceived. They were "sub-prime" lenders who charged high rates of interest and would usually not lend more than 75% of the property's assessed value. The loans took the form of self-certification mortgages. Proof of income was not required and the income stated was not checked. The lenders were really only interested in their security. That is the background, it is said, against which the Crown were required to prove that the deceptions alleged in these counts operated on the lenders' minds so as to procure the loans.
52. Much of the burden of argument on this part of the case was undertaken by Mr Chandarana on behalf of Mr Coyne. His first and primary point consists of a twofold submission. (1) In a case of obtaining by deception the Crown must prove that the deception in question operated on the mind of the person deceived so as to cause him to act in the way alleged. (2) Evidence to that effect must come from the person deceived. The first of these propositions is effectively, and rightly, conceded by Mr Altham for the Crown, whose skeleton argument (p. 18) accepts that the Crown must prove that "a mind, which is a mind capable of being taken as representative of the company, has operated under a false inducement".
53. The real question is as to the second proposition. The appellants say it draws support from Laverty (1970) 54 CAR 495 and Rozeik [1996] 1 CAR 260. In Laverty Lord Parker CJ said this at 497 – 498:

"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... This court is anxious not to extend the principle in Sullivan more than is necessary. The proper way of proving these matters is through the mouth of the person to whom the false representation is conveyed."

In Sullivan (1945) 30 CAR 132 it was held that proof of an operative deception need not in every case be afforded by direct evidence, if no other inducement is suggested.

54. Mr Chandarana says that the approach taken in Laverty was built on in Rozeik [1996] 1 CAR 260. In that case the defendant was charged with dishonestly obtaining cheques from two finance companies. The prosecution accepted that the branch managers of the companies might not have been deceived; but the judge directed the jury that they could convict if they found that any employee of the company was deceived by the false invoice into doing something which resulted in a cheque being obtained. Delivering the judgment of the court Leggatt LJ said this at 266F – 267A:

"There were therefore two reasons why the judge's direction was wrong, that it was sufficient that any employee of the company was deceived who was concerned in the provision of each cheque. First, the question is not whether any employee of the company was deceived but whether any employee whose state of mind stood as that of the company knew of the falsity of the transaction, since if he or she did know, the company also knew. If the company knew, it would not matter how many fellow employees were personally deceived. Secondly, and in any event, a cheque could only be obtained from the company from an employee who had authority to provide it. The deception had to operate on the mind of the employee from whom the cheque was obtained. In no sense could a cheque be 'obtained' from the person who merely typed it out. So the judge's references to 'any' employee were fatally wide. What the Crown had to prove was that when the cheque was obtained from the company it was obtained from a person who was deceived."

55. Between the decisions in Laverty and Rozeik the House of Lords gave judgment in Lambie [1982] AC 449. The defendant was charged with obtaining a pecuniary advantage by deception. She was in possession of a credit card but had exceeded her credit limit and had failed to return the card to the bank, despite her promise to do so. In those circumstances she had no authority from the bank to use the card. However she used it to acquire goods at a shop, presenting the card to the departmental manager who checked the details on the face of the card and filled in the appropriate voucher. The defendant thus obtained the goods. This court allowed her appeal against conviction on the footing that there was no evidence that the departmental manager was induced by a false representation that her credit standing at the bank gave her authority to use the card. The Crown's appeal to their Lordships' House was allowed on the basis that the defendant's credit standing was irrelevant. Her presentation of the credit card implied only a representation that she had actual authority to make the contract with the shop on the bank's behalf to the effect that the bank would honour the voucher. As Lord Roskill (giving the only reasoned speech) observed (at 460C) the only remaining question was whether the departmental manager was induced by that representation to complete the transaction. Lord Roskill held that had she been asked whether she would have done so had she known that the defendant was acting dishonestly and had no authority whatever from the bank to use the card, her answer must have been No.
56. Lord Roskill proceeded to state as follows 460G – 461A:

"My Lords, credit card frauds are all too
frequently perpetrated, and if conviction of offenders for offences against sections 15 or 16 of the Theft Act 1968 can only be obtained if the prosecution are able in each case to call the person upon whom the fraud was immediately perpetrated to say that he or she positively remembered the particular transaction and, had the truth been known, would never
have entered into that supposedly well-remembered transaction, the guilty would often escape conviction. 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 my mind it is in the present case."

After expressing his agreement with the ratio in Sullivan, Lord Roskill continued (461D – E):

"It is true that in R v Laverty... Lord Parker CJ said that the Court of Appeal, Criminal Division, was anxious not to extend the principle in Sullivan 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 on 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 on a dishonest representation cannot be sufficiently established by proof of facts from which an irresistible inference of such reliance can be drawn."

57. The judge referred to some of this authority in rejecting submissions of no case to answer. He said (transcript vol. III 6A – C):

"The defence rely on Sullivan and Laverty and distinguish Lambie and submit that the Crown can only prove that the deception operated on the mind of someone who authorised the loan by calling the individual who dealt with the application on the lender's behalf. While I am sure this remains literally true in any instance where the individual is directly the target of a fraud, I rule that where a company is the target and the application is processed by one or more of teams of staff whose role is to check applications against criteria established by their employers, none of whom may be expected to have any recollection at all of one among many routine applications, there can be no universal rule requiring that such individuals be identified and brought to court."

58. In due course the judge directed the jury thus (summing-up, 153E – 154H):

"[S]ubmissions have been made to you that in these cases what you have lacked... is somebody who comes along and says, 'I looked at this application and I made the decision to grant the loan. The decision I made was influenced by A, B or C.' ... There is no such evidence in this case. The question is does that prevent you from reaching a conclusion on these counts? I direct you that it does not. If you are looking at a mortgage that is granted by a large commercial provider of domestic mortgages I direct you that you are entitled... to act on the evidence of a member of staff authorised to speak on behalf of the company about such matters... You do not need to root through a call centre or trawl through a processing centre to find which individual looked at a form and pressed the buttons... What you have to be sure of is the principle and the principle in this case was set out for you by Anne Bowes who her company puts forward as somebody who can speak on their behalf and what she said was that if the details on an application were found to be untrue they wouldn't lend money."

59. Anne Bowes was a prosecution witness who had been employed, as we understand it, by one of the lenders. At 155B – H the judge described her cross-examination by Mr Boulter for Sean. He reported her (155H) as saying when pressed that "she wouldn't even lend 15% of the value of the property on a false application form".
60. Upon each of counts 7 – 10 the Crown relied on evidence of system or practice, to the effect that had the lender known that the mortgage applications and/or supporting documentation contained false representations as to such matters as the applicant's income, the loan would not have been advanced. One can see an example of such testimony in the transcript (vol. XII) of Mr Jeffery Maye's evidence in chief at 3H – 7E.
61. It is submitted for Kevin, in somewhat general terms, that on counts 7 – 12 the Crown witnesses called to prove the operative deceptions "were essentially document producers or fraud investigation officers... [who] were not the people on whom the deception could be said to operate". The argument is that it must be shown that the relevant deception operated on the mind of the person who actually authorised the mortgage in each instance, and if the Crown is to prove its case that person must give evidence (skeleton argument paragraph 17). We apprehend that Gabriel would join in this submission so far as it relates to count 12. It was likewise submitted for Sean that fraud investigators were called from the lenders, and they were by no means individuals on whom any deception might have operated so as to procure a mortgage.
62. Mr Chandarana on behalf of Mr Coyne has somewhat more detailed submissions on the facts of count 12. The Crown said that Mr Coyne was not a bona fide applicant to Igroup for a mortgage to purchase 7 Danebury. He was a front for Kevin and Gabriel. A witness called Kate Sinnott (who gave evidence also on other counts) produced the mortgage application and linked documents. However her job description, at any rate at the date of trial, was Money Laundering Prevention Officer. She had played no part in dealing with the application, and could not answer questions as to the detail of the process. Concerns as to the scope or efficacy of her evidence were expressed by the defence. It is stated in Mr Chandarana's skeleton (paragraph 8) that it was expressly submitted to the judge that Mr Ian Harding, the underwriter at Igroup who acted on the application, would be the right witness. But the Crown informed the court (as Ms Sinnott had said in evidence) that Mr Harding no longer worked for the company. They called Mr Maye, to whom we have already referred in passing. He was an underwriting manager but had had nothing to do with the particular case.
63. As we understood him Mr Chandarana did not submit that the only permissible mode of proof of the alleged operative deceptions in the mortgage fraud counts was "through the mouth" of the person on whom the deception is said to have operated. His first argument was, rather, that indirect evidence would only suffice if "the direct evidence of the witness [sc. who acted on the deception] is not and cannot reasonably be expected to be available" (Lambie at 461E: it is notable, however, that Mr Chandarana suggested – skeleton paragraph 32 – that Lambie was decided on its own facts). On count 12 the relevant witness was Mr Harding, and it was by no means shown that his testimony was not and could not reasonably be expected to be available. As we have indicated the Crown simply informed the court that Mr Harding no longer worked for the company. In the alternative, Mr Chandarana submitted that a Mrs Shelia Patel might have been an appropriate witness, there being some evidence that she too was directly involved in the mortgage application process to which count 12 related.
64. Before confronting this submission, and the more general submissions advanced for Gabriel, Kevin and Sean which march with it, it is convenient to describe Mr Chandarana's second argument. This seeks to advance a specific reason why Mr Harding should have been called. It requires us to describe certain further factual points relating to count 12. In particular, reference is made to two documents. One is headed "Declaration of Affordability". It was numbered 11a at the trial and we shall so refer to it. It was the only document disclosed by the Crown which contained a statement (actual or purported) of income from the mortgage applicant. The second document – 12a – is a letter from the appellant Mr Burton to Mr Harding at Igroup dated 24 February 2003. 11a is signed but not dated by Mr Coyne. The date ("19/2/03") is inserted in manuscript under the words "taken today's date". 12a, which contains a request for the mortgage to be increased to the amount of the purchase price, also contains a handwritten note. It says "purchase price - £190,000 we cannot do this?". Ms Sinnott stated that someone at Igroup would have made this note. An expert witness stated (through a formal admission) that the manuscript additions to both documents were likely to have been made by the same hand. In the course of his evidence Mr Maye (vol. XII 26H – 27A) accepted that it is bad practice and "verges on illegal" (counsel's words) for an underwriter to date a document such as 11a.
65. On this material Mr Chandarana submits that had Mr Harding been called he could have been cross-examined as to whether he made the manuscript notes, and if so why he (or if it was not him, another member of his team) put a date on 11a. Counsel would have been able to investigate whether an employee – Mr Harding or another – "whose state of mind stood as that of the company" (Rozeik) in fact knew of the falsity, if false it was, of the income declaration. Such a person's knowledge would fix the company with like knowledge along the lines explained by Leggatt LJ in Rozeik, and in that case the Crown would not have proved that the deception procured the mortgage.
66. Those are the arguments on this part of the case. We turn to confront the first: that the operative deceptions had to be proved "through the mouth" of the person on whom the deception is said to have operated.
67. The law of evidence contains no rule that the effect of a deception may only be proved by the testimony of the person said to have acted on the deception. In accepting (Lambie, 461E) that proof of facts giving rise to an irresistible inference of reliance may suffice "where... the direct evidence of the witness [sc. who acted on the deception] is not and cannot reasonably be expected to be available" Lord Roskill was not with respect suggesting that if the person who so acted is available to come to court, he must be brought and other evidence should not be admitted. The reference to direct evidence being available must refer to the prospective testimony of a witness who recalls the specific transaction and can give "direct" evidence of the effect on his mind of the representations made. In Lambie itself the departmental manager was no doubt available to give evidence. She had attended the committal hearing and her deposition was read at trial. But she could not give "direct evidence" because she could not be expected to recollect the particular transaction. No doubt in a case where such "direct evidence" is available, it should be called; Laverty establishes nothing more.
68. It follows that the possible availability of Mr Harding to give evidence on count 12 was no impediment (subject to what may be called Mr Chandarana's Rozeik argument) to the receipt of evidence, such as was given by Mr Maye, to the effect that had the lender known that the mortgage applications and/or supporting documentation contained false representations as to such matters as the applicant's income, the loan would not have been advanced. It is not suggested, as we understand it, that evidence of general practice of this kind is inadmissible, nor could it be. On this first argument, therefore, the only question is whether in the circumstances of the mortgage fraud counts or any of them such evidence is insufficient to prove that the deception was acted on by the lender.
69. We see no reason why such evidence should be insufficient. And there may be many cases where it will be the only kind of evidence available to prove the nexus between the deception and its outcome. Mortgages are granted by very large companies on a very large scale, deploying more or less fixed and formal procedures. It is simply unreal to suppose that an individual employee of such a company, called months or years after the event, will remember the details of a specific past transaction and the effect of the specific loan application. He can only speak of the company's practice. He can say, if it is the fact, that had he known the application contained deliberate falsehoods he would not have authorised the loan.
70. We therefore reject the submission that the operative deceptions had to be proved "through the mouth" of the person on whom the deception is said to have operated.
71. That being so, all that is left in Mr Chandarana's Rozeik argument is the suggestion that the Crown were obliged to call Mr Harding to allow for the possibility that his cross-examination by the defence might show that he, or another employee, had knowledge of the deception inherent in the mortgage application, thus fixing Igroup with the same knowledge. In our judgment, however, documents 11a and 12a do not in reality contain the seeds of such a suggestion; it was in any event open to Mr Coyne's counsel to explore such a possibility as far he chose with Mr Maye; Mr Coyne's actual defence was to lay the blame for all and any deception at Mr Burton's door; he could have given evidence to rebut what was to our minds the otherwise irresistible inference that he was party to the supply of false information which operated on the mind of the lender.
72. For all these reasons the grounds of appeal relating to proof of deception on counts 7 – 12 are not made out.

Counts 10 and 11: Mr Harnick –Kevin's Knowledge

73. This is Kevin's ground 10. It will be recalled that on these two counts the Crown alleged that the mortgage applications were supported by an accountant's letter from a Mr Harnick, who appeared as a prosecution witness and told the jury that the accountancy evidence he had provided was entirely bogus. It is submitted that there was no evidence that Kevin knew about these false references, and so the case should have been withdrawn from the jury. On count 10, the mortgage application form contained no reference to Mr Harnick, whose supporting reference bears a later date. Mr Harnick's evidence was that he sent the letters to Mr Burton. Likewise on count 11 there was no cross-reference on the face of the documents between the application and the Harnick letter, and no evidence on either count that the Harnick letter was sent to Kevin.
74. There is no merit in this ground. First, it is in the highest degree unlikely that Mr Burton would have submitted the Harnick letters to the lender without Kevin's knowledge. As a matter of practice (of which Mr Burton would have been well aware) Igroup conducted what was called a "speakwith" with the applicant before the mortgage was completed. There was every possibility that the speakwith would have revealed that Mr Harnick was not Kevin's accountant. The application form on count 11 had Kevin's mobile phone number on it, and in another instance Mr Burton provided Kevin's mobile number to the lender to facilitate the speakwith (though in fact in that case the mortgage was being taken in Sean's name).
75. Moreover the jury had evidence, introduced by Mr Burton after the close of the Crown case, that a faxed copy of a Harnick reference was found in a filing cabinet at Kevin's home. It was addressed to Igroup and bore Kevin's reference. In addition there was evidence of a meeting at a supermarket between Kevin, Mr Burton and Mr Harnick after the police had made arrests in the case. Mr Harnick had been arrested, and gave evidence that he had telephoned Kevin twice to seek reassurance. There was no suggestion that Kevin had been surprised to hear from him, or wondered who he was, or anything of the kind. Lastly – but this of course could not prove the case on its own – Kevin's previous convictions for mortgage fraud were introduced by way of admission. He had on earlier occasions used accountants' references to support bogus income figures.

The Mortgage Fraud Counts: A Witness not Called

76. Under this head the grounds are Kevin ground 10 and Gabriel ground 9. Mr Johnson for Kevin has made the running; his argument is adopted for Gabriel (in relation to count 12). There were as we have said cut-throat defences on the mortgage fraud counts. The case advanced for Kevin, Sean and Mr Coyne was that Mr Burton was responsible for putting forward any false information in the mortgage applications. He would ask them to sign the application forms in blank, and himself filled in whatever figures were necessary to justify the loans sought. They had no idea that he put in false figures and did not ask him to do so. Mr Burton accepted that he filled in the forms but said he only inserted details provided by the client, who signed them as correct. He denied ever filling in blank forms simply to suit a lender's criteria. Some blank signed application forms were found by the police among Mr Burton's papers. He said he sometimes gave Kevin blank forms and they came back signed; they were no use, but he did not throw them away.
77. Late in the trial, after Mr Burton gave evidence but before the conclusion of Kevin's case, the Crown served a statement made by Alison Braithwaite. She was Mr Burton's ex-wife. It seems the statement was made in domestic proceedings in which Mr Burton sought, or had obtained, a freezing order against her assets. In it she stated that she often signed forms which Mr Burton then took away to complete. Mr Johnson for Kevin applied to call Ms Braithwaite, contending that what she had to say conspicuously supported his defence. The application was not opposed by the Crown, though Mr Altham observed in passing (transcript vol. VII 8C) that it was a "bad character application", and the judge said he supposed that it was. This was a reference to s.101(1)(e) of the Criminal Justice Act 2003, to which we will refer further.
78. The judge opined that had this material come to light earlier, when Mr Burton's case was still under way, he might well have acceded to Mr Johnson's application. As it was, however, to do so at the present juncture would involve allowing Mr Burton to "re-open his case utterly" (vol. VII 9B), and perhaps giving time for investigations to be made into the documents referred to by Ms Braithwaite (9C). The process would be unfair to Mr Burton: his case would have to be re-visited after other defendants had given evidence. As it was, the jury already had evidence of blank signed application forms in Mr Burton's possession. And so the judge declined to allow Mr Johnson to call the witness.
79. By s.98 of the Criminal Justice Act 2003:

"References in this Chapter to evidence of a person's "bad character" are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—

(a) has to do with the alleged facts of the offence with which the defendant is charged..."

S.101(1)(e) provides:

"In criminal proceedings evidence of the defendant's bad character is admissible if, but only if—

...

(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant".

80. Apart from the passing reference which we have noted the judge in his ruling on this issue did not turn his mind to the question whether Ms Braithwaite's testimony would amount to evidence of Mr Burton's bad character within the meaning of s.98, and if so whether it was admissible pursuant to s.101(1)(e). For the sake at least of clarity it would have been better had he done so. If it was not bad character evidence, its admissibility would have depended on the general law, and in particular its relevance to the issues joined in the case; if relevant, Mr Johnson would on the face of it have been entitled to put it in. Mr Altham submits that it would indeed have been bad character evidence but, he says, it is doubtful whether it had "substantial probative value in relation to an important matter in issue between the defendant and a co-defendant".
81. We entertain considerable doubt whether what Ms Braithwaite might have said would have amounted to evidence of Mr Burton's bad character within s.98. As the judge was at pains to recognise (vol. VII 5A – E, 7C – F) she was describing things done in an entirely domestic setting, and it must be questionable whether evidence of a husband giving his wife blank forms to sign can realistically be said to show misconduct on his part, at least in the absence of a telling and specific context. But even if this was bad character evidence, we do not think it possessed the substantial probative value required by s.101(1)(e). It threw little light if any on Mr Burton's business practices. By the same token, if it was not bad character evidence and its admissibility depended simply on its relevance, we consider its relevance was thin at best. We are clear that its exclusion does not touch the safety of Kevin or Gabriel's conviction. We consider, as did the judge, that it is not without significance that the jury had other (and if anything more telling) evidence of signed blank forms in Mr Burton's possession.
82. In our judgment this ground of appeal is not sustained.

Counts against Gabriel: Criminal Justice Act 2003 s.101(1)(f)

83. As we have indicated, we take it that Gabriel's ground 10 is intended to apply to all the counts on which Gabriel was convicted, that is to say counts 1 – 6 and 12. The complaint concerns a ruling of the judge allowing cross-examination of Gabriel by the Crown as to the fact that he had absconded many years earlier following a previous conviction, and had remained unlawfully at large for thirteen years until he was arrested on these present charges.
84. Gabriel (in common with Kevin) had a previous conviction or convictions for mortgage fraud and the learned judge ruled at an early stage that those matters might go before the jury. No complaint is made of that. The judge at that stage rejected the Crown's further application to admit evidence of the fact that Gabriel had absconded on the day of his conviction and remained at large, as we have said, until his present arrest. He later reversed this ruling in light of certain answers given by Gabriel in cross-examination. Here is what the judge said (transcript vol. VI, 3A – F):

"[Gabriel] was pressed on whether or not he is a dishonest man and he said, 'I did things in 1992 and I have paid for it'... I suppose that might have been a slip. He might have paid for it when in fact 'paying for it' would have been technically more accurate. If that's as far as it went I should not have entertained the Crown's application. He went on to say, 'I broke the law in 1992 and paid my debt to society'. That was the point that I recollect my attention being drawn very strongly to what he was saying. He was asked, 'You haven't done anything wrong in this case?' 'No.' 'You must have decided to mend your ways?' 'I learned my lesson. I went to prison and I didn't like it.' The past tense is maintained in circumstances which lead to this impression [sic].

In my opinion, I am quite sure that the defendant was seeking to give the impression that he had learned his lesson before the events with which he is now being faced on this trial ever took place. In other words, that he had a past record, he was entitled to live it down and put it behind him and that he had learned his lesson. That is very different from somebody who... was only apprehended when his identity became known and at the point of arrest in this investigation which led to these proceedings. So [Gabriel] has given an impression which is false, in my judgment, which is that before he ever got involved working for Mr Derek Barrett in these events he is somebody who had (past tense) learned his lesson."

85. Though the syntax is ragged the reasoning is perfectly clear; and in our judgment entirely correct. In the witness-box Gabriel was purveying the impression that he was a reformed character, having "learned his lesson" by serving his time for previous crimes. He was nothing of the sort. He had by no means served his time. He had been on the run and (plainly) would have remained so had he not been arrested for these fresh crimes. Mr Pearse Wheatley submits that the cross-examination recorded by the judge amounted to a trap laid by the prosecution. We see no reason so to hold. The judge was quite right to allow cross-examination of Gabriel's absconding as "evidence to correct a false impression given by the defendant" within the meaning of s.101(1)(f) of the Criminal Justice Act 2003.

Counts 7 – 9: Sean's Further Ground

86. Sean's ground 3 asserts that the judge wrongly refused to allow Mr Burton to be recalled to face further cross-examination on Sean's behalf on certain documents which had been put to Mr Burton in the course of his cross-examination by the Crown. The documents are four letters from Mr Burton, three to Sean and one to the lender, Swift Advances plc. Mr Boulter on Sean's behalf says that this cross-examination would have assisted him in exposing Mr Burton's fraudulent conduct in completing mortgage application details on a form signed in blank by Sean. He says that the judge had allowed the Crown to put the documents to Mr Burton (the Crown had not disclosed them earlier) on the basis that he (Mr Boulter) would have an opportunity to cross-examine on them. It was not in fact the judge's clear recollection that he had in terms indicated that that would be allowed (see transcript vol. V 4A); but what matters is not whether the judge changed his mind but whether his refusal to allow the cross-examination goes to the safety of Sean's conviction.
87. It is necessary only to set out part of the first of these documents, a letter from Mr Burton to Sean dated 7 August 2002:

"I have been asked by your dad to send you the enclosed mortgage application form, for your proposed purchase of one of his flats.

I understand the purchase price to be £145,000, and that you require 85% of this on a 'self certification of income' basis.

In addition to the completed application form, I would also require from you a copy of either your passport or driving licence as proof of ID...

On receipt of the above, I will be able to place it with a lender, and confirm to you the scheme, interest rate, payments etc, that you will need to know..."

This letter does not, as we understand it, relate to any count in the indictment. It apparently related to an application in respect of another flat (Flat 10) which did not proceed. Mr Boulter says (and submitted to the judge) that it marries up with other documentation which was referred to in Mr Boulter's exchanges with the judge as the "hybrid" document, because it was part original and part photocopy. The hybrid document is, or is part of, a mortgage application form showing Sean as the applicant. It contains some entries which are crossed through and other details substituted: £40,000 instead of £35,000 as Sean's income figure, and Flat 6 instead of Flat 10. In his summing-up the judge described it as a work in progress document – not in a form that would actually be submitted to the lender (vol. VIII 159A – B). It is said that the manuscript entries on the hybrid document were made by Mr Burton.

88. Mr Boulter has developed a somewhat elaborate argument, but the essential point is a short one: it is that the terms of the letter of 7 August 2002, clearly emanating from Mr Burton, are inconsistent with Mr Burton's use or treatment of the hybrid document, and he should have been allowed to confront Mr Burton with the fact in developing his client's cut-throat defence.
89. The judge held (we summarise) that there was insufficient reason to recall Mr Burton to the witness-box. Mr Boulter had put his case to Mr Burton and any elaboration of it based on the new documents could be deployed before the jury in his speech (this is the effect of the passage at vol. V 8B – E).
90. This was a matter for the judge's discretion. He had to balance the interests of Sean and of Mr Burton. Sean's substantive case must have been put vigorously in cross-examination, including, we assume, all the points Mr Boulter wished to make on the hybrid document. The new letters were before the jury. It was open to Mr Boulter to make what he would of them when he closed his case. We are quite unable to conclude that the judge's refusal to allow this cross-examination begins to infect the safety of Sean's conviction. We note that Sean never lived in Flat 6; he provided none of the money for its purchase; he received none of the proceeds when it was sold on; when the London Mortgage Company were paid off the balance went to other parties, including Kevin and Mr Barrett.
91. This ground of appeal is without merit.

Counts 8, 10, 11 and 12: Mr Burton

92. As we have indicated Mr Burton does not have leave to appeal against conviction. His application for leave has been referred to the full court by the single judge, but only in relation to grounds 1 – 3; he was as we have said refused leave on grounds 4 and 5 and does not seek to renew them.
93. Grounds 1 and 2 concern confessions made by Mr Burton and relied on by the Crown. They were made in his second police interview on 6 September 2005 in the presence of his solicitor. He admitted his guilt on counts 10 and 11, accepting that he had paid Mr Harnick to produce false references. His case before the jury was that these admissions were false and had been procured by an inducement offered by the police, namely that if he confessed he would be let off with a caution, as had happened in Mr Harnick's case.
94. However no submission was made to the judge that the confession should be excluded as having been improperly obtained. It is plain from Mr Sinclair's supplemental skeleton argument and his submissions before us that this was a deliberate decision made for pragmatic and tactical reasons. We make no criticism whatever of that, but it presents to say the least a difficulty in the way of Mr Burton's prospective appeal, as the single judge pointed out.
95. Evidence of the alleged inducement was given by the solicitor who was present at the interview. He was a trainee, Mr Blackerby. He said that a policeman showed him a statement made by Mr Harnick who, said the officer, had been cautioned for three false references "and that if Julian Burton confirmed that he had been involved he would be cautioned, too" (vol. VIII 217H – 218A). The judge directed the jury thus (218D):

"If you think that Mr Blackerby is right then Mr Burton's confession in his second interview is valueless and don't even bother reading it. If you think that he may be right, the same applies."

An earlier passage (67B – D) shows that the judge expressly directed the jury to apply the criminal standard of proof in considering this issue.

96. The burden of Mr Burton's grounds 2 and 3 is that although no application was made to exclude the confession evidence, and no voir dire was sought, the judge should of his own motion have decided whether the evidence should be kept out (pursuant to s.76(2)(b) of the Police and Criminal Evidence Act 1984) and indeed should have excluded it, since it was clear from Mr Blackerby's evidence that an improper inducement was offered. Reliance is place on the decision of the Privy Council in Ajodha v The State [1982] AC 204 in which Lord Bridge of Harwich, delivering the judgment of the Board, said this (at 223):

"(1) In the normal situation which arises at the vast majority of trials where the admissibility of a confession statement is to be challenged, defending counsel will notify prosecuting counsel that an objection to admissibility is to be raised, prosecuting counsel will not mention the statement in his opening to the jury, and at the appropriate time the judge will conduct a trial on the voir dire to decide on the admissibility of the statement; this will normally be in the absence of the jury, but only at the request or with the consent of the defence: Reg v Anderson (1929) 21 Cr.App.R. 178.  (2) Though the case for the defence raises an issue as to the voluntariness of a statement in accordance with the principles indicated earlier in this judgment, defending counsel may for tactical reasons prefer that the evidence bearing on that issue be heard before the jury, with a single cross-examination of the witnesses on both sides, even though this means that the jury hear the impugned statement whether admissible or not.  If the defence adopts this tactic, it will be open to defending counsel to submit at the close of the evidence that, if the judge doubts the voluntariness of the statement, he should direct the jury to disregard it, or, if the statement is essential to sustain the prosecution case, direct an acquittal.  Even in the absence of such a submission, if the judge himself forms the view that the voluntariness of the statement is in doubt, he should take the like action proprio motu.  (3) It may sometimes happen that the accused himself will raise for the first time when giving evidence an issue as to the voluntariness of a statement already put in evidence by the prosecution. Here it will be a matter in the discretion of the trial judge whether to require relevant prosecution witnesses to be recalled for further cross-examination. If he does so, the issue of voluntariness should be dealt with in the same manner as indicated in paragraph (2) above."

97. There is no reason in this case to suppose that the judge himself considered that the voluntariness of the statement was in doubt, and there are substantial grounds for concluding that it was not. Nothing was said on the tape recording of the interview suggesting that such an inducement was given, despite Mr Blackerby's presence. Mr Blackerby made a poor note. He was a nervous witness (vol. VIII 218B). In all these circumstances we consider that the judge was by no means bound to exclude the confession evidence, and was entitled to take the course he did.
98. In his submissions before us Mr Sinclair very candidly accepted that if the court was against him in relation to the confession evidence, that was the end of his appeal. However we shall make short observations about his other points, not least since his conviction on counts 8 and 12 are not on the face of it connected with the confession.
99. In his first skeleton argument Mr Sinclair refers to strong comments made by the judge in disparagement of Mr Harnick. But Mr Altham by contrast points out that important parts of Mr Harnick's evidence were not disputed: he had undoubtedly provided the references used to obtain the money transfers on counts 10 and 11; he had met with Kevin and Mr Burton after the arrests; Mr Burton had originally introduced him to Kevin.
100. Mr Burton's ground 3 alleges that the judge should have permitted further cross-examination of Mr Harnick following the discovery of a false reference from Mr Harnick at Kevin's home. Mr Sinclair submitted that this went to the question whether Kevin and Mr Harnick were up to no good behind Mr Burton's back. The learned judge had permitted Mr Harnick to be recalled and cross-examined for Kevin. We do not have a transcript of the judge's ruling. In any event the discovery of this reference constitutes no inconsistency with the Crown case against Mr Burton. The want of this cross-examination cannot affect the safety of Mr Burton's conviction.
101. Lastly, Mr Burton seeks by amendment of ground 2 to assert that there was no evidence against Mr Burton fit to go to the jury on counts 8 and 12. However we note these following points, collected in Mr Altham's skeleton argument (pp. 41 – 42). Mr Burton provided one of the lenders with Kevin's mobile phone number where the mortgage was being taken out in Sean's name. He processed application forms relating to the count 8 transaction in Sean's name but bearing Kevin's phone number. On count 12, he collected information about Mr Coyne from Kevin.
102. There is no merit in Mr Burton's application for leave to appeal against conviction.

Kevin's Renewed Grounds

103. As we have said Kevin seeks to renew grounds 1 and 11. Ground 1 is to the effect that the judge was wrong not to stay the proceedings as an abuse by reason of a breakdown in the process of disclosure. Ground 11 is to the effect that there was no evidence, or no legally sufficient evidence, that Kevin was the true applicant for the loan on counts 7, 8, 9 and 12.
104. We turn to ground 1. As we have said evidence of offers for Claregate was adduced through a surveyor, Robert Griffiths. Despite many requests his file was disclosed extremely late – indeed not until he came to court to give evidence. It is said they contained material which assisted the defence. Other failures of disclosure were also complained of. On 26 September 2006 the learned judge declined to stop the case as an abuse because of the want of disclosure, holding (vol. I 3F) that there was not "a systemic failure of disclosure such as to amount to an abuse of process of the court".
105. The next month, October 2006, files taken from Mr Burton's home were inspected. They contained signed blank forms relevant to the issues on counts 7 – 12. Some of the documents had in fact been exhibited and were already before the jury. But the files, described as "Conveyancing files" had been marked CND (clearly not disclosable). Their significance had been missed. The disclosure officer, Mr Jones, gave evidence on a voir dire on 18 and 19 October 2006 that he had not read the defence case statements and had been on another case since March 2006. Mr Johnson submits that there had in effect been no disclosure officer since that time. A further application was made to the judge to stop the case on 26 October 2006 but was refused.
106. The single judge refusing leave said this:

"There was late disclosure in particular of the Griffiths papers relating to offers on the Claregate property and the signed blank forms from the Burton files. The problem appears to have flowed from the absence of a full time disclosure officer after March 2006 in place to oversee secondary disclosure once the defence case statements were served. However the judge was entitled to take the view he did that there had been no bad faith and that it could not be said that the disclosure process had broken down to such an extent that a fair trial could no longer be guaranteed."

We agree.

107. On ground 11 the single judge said this:

"'Falsely representing he was the true applicant' in counts 7, 8, 9, 12: this ground does not appear sustainable. The Crown appear to have relied upon the overall circumstances of the development of the Grand Hotel enterprise, including the lack of physical involvement of the purported applicant in the property in question, the history of the resales, the apparent lack of income to sustain mortgage payments, the source of the deposit, to establish that the true applicant was yourself. It was for the jury to decide whether they were satisfied this was so but it was open to them so to conclude. It is noteworthy that this ground is not pursued by either [Sean] or [Mr Coyne]."

Again, we agree.

108. For the reasons we have given, all the appeals and applications for leave to appeal against conviction are dismissed.

SENTENCE: GABRIEL AND KEVIN

109. As we have said Gabriel and Kevin were each sentenced to four years imprisonment on count 1, and lesser concurrent sentences on the other counts on which the jury had convicted them. The only ground of appeal is that the four year terms will require Gabriel and Kevin to serve longer than the judge intended. In his sentencing remarks he stated (vol. X 6A – B):

"So in each case the sentence of the court in total is one of four years imprisonment. The effect of that is that you serve two years in custody before your automatic release."

110. But the offences pre-dated the coming into force of the relevant provisions of the Criminal Justice Act 2003, and under the anterior regime a sentence of four years meant that these appellants would serve 2 years 8 months before automatic release. It is unnecessary to go into the details of the statutory provisions. It is clear that the judge intended them to serve two years. We are by no means persuaded that they did not richly deserve the sentences passed by the judge, with the longer period in custody which those sentences implied. But fairness requires that they serve no longer than the time the judge expressly intended. In each case we will quash the sentences of four years, and substitute sentences of 3 years 10 months. We understand that will produce a release date after two years detention. To that extent the appeals against sentence succeed.