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
		12 May 2010

LORD JUSTICE PITCHFORD:

1. This is an appeal against conviction with the leave of the single judge. There is one ground of appeal, namely that the judge erred in permitting the case to proceed beyond the end of the prosecution case.
2. The single count in the indictment faced by the appellant alleged fraud contrary to section 1 of the Fraud Act 2006. The particulars of offence read as follows:

"Thomas Essex, Thomas Andrew Greig and Andrew Anthony Cooper between the 12th day of April 2008 and the 22nd day of April 2008 committed fraud in that, dishonestly and intending thereby to make a gain for themselves or another, or to cause loss to another, or to expose another to risk of loss, they made a false representation to David House which was and which they knew was or might be untrue or misleading, namely the amounts written into cheques numbered 478, 480 and 481 from account number 72579501 represented fair payment for gardening work carried out at 13 Bridge Road, Charmouth."

At the time of trial Thomas Essex's name had been deleted from that count and he was not before the jury since, with the agreement of the prosecution, he had pleaded guilty to the alternative offence of transferring criminal property contrary to section 327 of the Proceeds of Crime Act 2002 for a reason which will appear shortly. Nevertheless, in order that the jury should not be misled as to the position, they were made aware of the fact that that was the reason that Mr Essex was not being tried. The trial therefore continued upon count 1 in respect of the appellant and Andrew Cooper.

3. The evidence which the jury heard in the course of the prosecution case may be summarised as follows. Mr House was aged 77. He lived alone in a flat situated at 13 Bridge Road, Charmouth. It was in a small block of flats which provided also a communal meeting area. Residents could, if they wished, have the support of a sheltered housing officer. Although Mr House did not take advantage of that opportunity, he had previously been admitted to hospital with mental health problems. He was observed by those who knew him to have poor concentration and could be easily confused, especially with regard to his financial affairs. Attached to the block of flats was a small garden on which Mr House had a garden shed and a small vegetable plot. Because he was unable to look after it, it had become rather over-grown.
4. On 12 April 2008 three witnesses, who worked at a holiday park opposite the flats and who knew Mr House, noticed three men and a green van with the words "Gardening Services" written on the side. One of those witnesses saw one of the three males speaking with Mr House. The witnesses were worried about the events which they saw, knowing of Mr House's vulnerability, so they notified the police.
5. Two days later on 14 April 2008 one of those three witnesses saw the van and the three males again. The third of the three witnesses saw the van on 17 April and noticed that one of the males was working while the other two were standing not far away.
6. On 22 April 2008 the three witnesses again saw the van parked outside Mr House's garden and the three males appeared to be waiting for Mr House. When Mr House met them, two of the males went with him into his flat.
7. On the following day the appellant and his original co-accused, Essex, were arrested. It turned out that there had been relevant movements in Mr House's bank account. He held a bank account with the NatWest Bank in Bridport. On 15 April 2008 cheque number 480, drawn on the account in the sum of £3,000, was presented to the bank and paid into an account held by the appellant. On 22 April 2008 cheque number 481, drawn on Mr House's account in the sum of £2,000, was also presented to the bank and paid into the appellant's account. On each occasion cash to the equivalent sums was drawn from the appellant's account as soon as the funds had been cleared. A third cheque, number 478, drawn for the sum of £1,850 and payable to Thomas Essex, was presented for payment but returned unpaid. It was recovered from a van in which Thomas Essex and Andrew Cooper were when they were arrested.
8. When he was interviewed by the police the appellant told lies. He denied knowing the identity of those who had offered him gardening work for a day.
9. The issue for the judge at the close of the prosecution case was an unusual one. Although the case against the defendants was that they had made a false representation to Mr House about the value of work for which they were to be paid, neither Mr House nor any other witness was called by the prosecution to prove that the representation had been made. There was expert evidence upon which the jury were entitled to act in considering what they could properly infer. The evidence of a handwriting expert was that the date and the sums for which the cheques were drawn were in the handwriting of Essex. There was an issue as to whether the signature on the cheques was that of Mr House, but the effect of the evidence was that there was no evidence that it was not Mr House who had signed the cheques.
10. The actual value of the work done in Mr House's garden was on the evidence in the order of £300. The prosecution case was that this was a classic example of contractors preying on the vulnerable. It was submitted that it was open to the jury to infer that Mr House would only have parted with these cheques if he had been persuaded that the sum for which they were being drawn amounted to reasonable payment for the work that had been done on his garden. Given the substantial disparity between the real value of the work and the amount obtained, it was obvious that the three men were acting dishonestly.
11. Mr Lyons submits on behalf of the appellant, as he submitted to the learned judge, that his submission of no case to answer was bound to succeed since there was no evidence, or no evidence from which the jury could properly infer, that any representation had been made to Mr House. It may be, for example, that they had surreptitiously obtained access to Mr House's cheque book, stolen the cheque, and made out the cheque in order to present it for payment. Further, or in the alternative, there was no evidence as to what representation had been made. For example, the representation may not have been that £6,850 was a fair price for some gardening work; it might have been payment for work which was yet to come: for example, renewing the roof on the building in which Mr House lived in his sheltered accommodation.
12. Mr Ellacott, who also appeared on behalf of the Crown in the court below, submitted that the jury would be entitled to infer from the evidence they had heard that the three men were acting together; secondly, that they knew the real value of the work that they had done; thirdly, that the cheques were made out in payment for the work that had been done; fourthly, that one or more of the three men had represented to Mr House, either expressly or by writing sums on his cheque book or both, that the sum was handed by cheque to the men in payment for the work represented the amount reasonably due for that work; and finally, that each of the three men was acting dishonestly.
13. It appeared to us that Mr Lyons' submissions were tantamount to an assertion that the learned judge was bound to allow the submission of no case unless the prosecution had by the evidence adduced excluded all other possible inferences than those sought by the prosecution. It is not the law, of course, that the prosecution must exclude all other possible inferences: see, for example, R v Edwards [2004] EWCA Crim 2102, at paragraph 84; R v Jabber [2006] EWCA Crim 2694, at paragraph 21; and R v P [2007] EWCA Crim 3216, [2008] 2 Cr App R 6, at paragraph 23, in which Thomas LJ, delivering the judgment of the court, said this:

"23. .... it seems to us that the correct approach is to look at the circumstantial evidence in the round and ask the question, no doubt employing the various tests that are suggested in some of the authorities, and ask the simple question, looking at all this evidence and treating it with the appropriate care and scrutinising it properly: is there a case on which a jury properly directed could convict? We do not think that anyone is assisted by a more refined test than that. ...."

14. The trial judge had observed all the witnesses and had heard all the evidence. At paragraph 4G of his ruling, he said:

"And it seems to me that there is .... quite enough evidence for a jury, properly directed, to draw inferences that these men, those men that I have made reference to, these men were engaged in work on the garden of Mr House and that those cheques to which I have already made reference were payment. Now whether the jury will reach that view I do not know, because it is perfectly possible as Mr Lyons suggests, the jury will prefer other potential explanations, other than the one which the Crown put to them. But certainly it seems to me there is sufficient evidence on that basis, on that submission, for the jury to reach that view if they so choose."

He continued with regard to the representation allegedly made by way of the cheques.

"I then turn to the other principal submission made by Mr Lyons because I do not propose to say very much about the fact that perhaps someone just got the cheques from Mr House for no good reason at all; that seems to me in the circumstances of this case not to be a submission which I suspect Mr Lyons relies on with any particular force, but he does draw to my attention the question of bad bargains. And I quite accept that there may be different prices for the same sort of work. I quite accept that, as he suggests to me, it may well be that one member of the bar, through his clerk, would charge a great deal more than another member of the bar. That is, of course, why it is important that the jury have their attention drawn to the word 'dishonestly' within that statement, within the particulars of offence, because the jury, it seems to me, will have to address their minds as to whether there has been a dishonest advantage taken of Mr House.

Now, it seems to me that this is a question of degree. .... Were the position to be before this court that the aggregate amount of those three cheques was not excessively more than the amount suggested by Mr Moss, it may well be that the bad bargain point made by Mr Lyons would have a good deal of force. But so far removed is it from that figure that it seems to me that the jury are quite entitled to have that evidence before them and reach a view as to whether they believed there has been a dishonest intention and a dishonest false representation made to Mr House."

15. As we have observed, the question for the trial judge was whether the inference sought by the prosecution was available to the jury on the evidence. On the other hand, the question for the jury was whether on the evidence they could be sure that the prosecution inference was right to the exclusion of any other. In reality there were in this case only two rational alternatives on the state of the evidence as it was at the close of the prosecution case. Either these men had inveigled their way into Mr House's flat and obtained access to the cheque book so as to steal the cheques in the way which we have mentioned; or, on the prosecution case, that they persuaded Mr House to allow them to make out the cheque for a sum which he was expecting represented what was due for the work he had been watching them carry out in his garden.
16. It is noteworthy that the witnesses had seen these men not just on one occasion but on successive days after the first of these cheques had been drawn and presented. On one view of the evidence, that made it the more probable that they had obtained this money by persuading Mr House that the sums for which the cheques were drawn were reasonable, rather than by stealing the cheques themselves.
17. In our judgment the judge was right to reject the submission of no case. We accept, of course, that the jury could only convict if they were sure of the relevant inference. The jury would require careful directions as to the conclusions they must reach before finding the appellant guilty of count 1 in the indictment. There is no issue in this case but that the judge's directions to the jury were what was required. In those circumstances we must conclude that the verdict was safe and the appeal must be dismissed.

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