England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		31st March 2011

1. LORD JUSTICE MOSES: The appellant is a solicitor of many years standing. We think he became a solicitor at least back in the 1990s and built up a practice and was held in great esteem. He was in private practice as a partner in a firm bearing his name, Manifold & Naser.
2. It was alleged that between 2001 and 2006 he had deliberately countersigned passport applications in relation to persons in respect of whom he had declared that he knew the person on the photograph for the purposes of tying in the identity of the person in the photograph with the person making the application. The applications were false and the prosecution case was that in relation to 17 applications he knew that the person in the photograph was not the person in respect of whom the passport application was made.
3. The defendant's case was that he did know the person who produced the form and the photograph and supporting documents. He claimed that he may well have only known them by a street name but there was nothing, neither from his knowledge of those people, nor in any of the material put forward to support the identity of the person who appeared in the photograph, to indicate to him that it was not a genuine application. He contended, not only that he knew each applicant but that he had checked every form and birth certificate. Any mistake was purely accidental.
4. In evidence it emerged that he had countersigned, during that period, a very large number of applications. There was some dispute as to how many. We were told today, by his counsel, Mr Webster QC, that some 150 (the judge referred to some 78). It matters not. But, said the prosecution, it defied belief that he could have made a mistake or been duped on 17 separate occasions.
5. It is unnecessary for the purposes of the ground of appeal that is now advanced to detail the evidence. In relation to all 17 counts the defendant had an answer in which he said that, whilst he accepted that the complainant was false, he had every reason to believe that the person in the photograph was the person making the application.
6. It is however necessary to recall one or two further features of this evidence. There were, as we have identified, some 17 occasions when he was said to have countersigned false applications.
7. He was convicted on a retrial. He was convicted of 14 counts, the verdicts being 11 to 1 on some six counts, unanimous on one, and 10 to 2 on the remainder.
8. There were two co-appellants but they, it is important to recall, were only charged with one count each. A man called Alfresco Jones who was alleged to have made a false application, appeared in a photograph in the application the subject matter of count 3, an application on behalf of a man named Purser, who had since died. He was acquitted of conspiracy to obtain property by deception.
9. A further co-accused was a man called Hutchinson, convicted of count 13, conspiracy to obtain property by deception: they were photographs in an application on behalf of a man called Murdoch but were the photographs of Hutchinson.
10. The defendant's case was that not only had he met both those defendants, but he knew them and had met them on many occasions. Both Jones and Hutchinson, as part of their case, denied ever having met this defendant: their defences were therefore in direct opposition to that of this appellant.
11. He advanced his appeal on a number of different grounds, all of which were rejected by the full court save one. It will however be necessary to refer to one of those grounds relevant to part of this appellant's case. The basis of this appellant's case, on the ground in respect of which he was given leave, is that the directions and summing-up of the judge, Her Honour Judge Hagen, at Bristol Crown Court, where this appellant was convicted on 18th December 2009 were so unbalanced and tilted as to lead to the conclusion that the verdicts were unsafe.
12. This is never an easy ground to advance. It requires this court to form an impression of the summing-up by reading it and carefully analysing it, in circumstances far removed from the actual circumstances at trial. The trial had lasted four weeks. There was detailed analysis in the process of examination and cross-examination of particular features of the evidence. It culminated in a lengthy summing-up by the judge, lasting more than one day. It is therefore not possible to recapture the actual impression that summing-up would have had upon the jury. All that can be said is that they did not have the advantage of reading through it and subjecting it to detailed analysis and assessment, in the light of detailed criticisms in the way that we have done. We have had to form an opinion about that summing-up, looking at it as a whole.
13. Nonetheless, we have been assisted by cogent submissions made by Mr Webster QC, highlighting those features of the summing-up which he submits were unfair and unbalanced. Firstly, he gives what he describes as two glaring examples of the judge misrepresenting points of defence, which Mr Manifold sought to make. By way of background, we should refer to a man called Vendrick Clarke who appears to have been behind the dissemination of documents used to support these false applications on behalf of Jamaican nationals. Not only was he a man who admitted or was convicted of arranging numerous false marriages in order to circumvent immigration controls, he obtained false identity documents and fraudulent false passports.
14. The fact that this was an operation probably set up by Vendrick Clarke was a feature of the case relied by upon the defence. The defence was, in part that there was no evidence of any connection whatever between this defendant and Vendrick Clarke, let alone any share of what must have been the lucrative proceeds received by Vendrick Clarke, distributed to this appellant. The judge, it was said, misrepresented the point that the defence was seeking to make. Many prosecution witnesses admitted to obtaining copies of their own birth certificate and handing them over to Vendrick Clarke. In order to assist in making good the defence point, Mr Webster cross-examined many of the witnesses who had assisted in making false applications as to their previous convictions; pointing out that they were, in many cases, involved in the drug addiction world who had been enticed through their criminality into assisting Clark in his venture.
15. The judge, in directing the jury, missed this point altogether, so it is contended. She reminded the jury that the fact a man had committed a criminal offence did not mean he was not telling truth and went on to say, that the fact that some of the witnesses had previous convictions is something to take into account to decide whether they were truthful or not, if the jury thought it helpful to do so.
16. But that was not the point the defence were making; the point the defence were making was that it looked as though this was all part of machinery or system, set up by Clark in which it appeared that the defendant played no part whatsoever and certainly received no gain.
17. There was, so the defence submitted, a further example of misrepresenting a point the defence wished to advance. Later in her summing-up, the judge referred to the fact that in Jones' case an expert had been called Mr Furlong, a consultant psychologist. Jones, as we have recalled, was a defendant who was said to have assisted in obtaining the false passport, making a false application, the subject matter of count 3. He said he had no knowledge whatever of this defendant, the defendant said he had met him on many hundred or so occasions.
18. Jones called the consultant psychologist to show that his intellectual ability was hampered and limited, that he was not the sort of man to be able to make any application let alone go along to this defendant to ask him to countersign his photograph for the purposes of making an application. That was Mr Furlong's evidence as recounted by the judge to the jury.
19. The defence sought to undermine that evidence in relation to another feature of Mr Furlong's evidence, namely that Jones was suggestible. The defence said that you could see from the way Jones conducted himself in court that that was not a sensible or accurate conclusion. But also, that the fact that Furlong had described him as suggestible cast doubt on the rest of Furlong's evidence. It demonstrated that there was a real doubt as to the reliability of that expert assessment. Again, it was submitted that the judge misrepresented this point by telling the jury that the question of whether Jones was or was not suggestible was not going to help them.
20. In so directing the jury, submitted Mr Webster, the point was effectively withdrawn from the jury. It is true that whether he was suggestible or not was not the point, but an assessment of whether he was suggestible or not went to the reliability of the expert's own assessment. Again, that point was misrepresented.
21. The defence relied, secondly, on the way the judge dealt with the absence of any evidence whatever that this defendant got anything out of these false applications. Here was, as the judge fairly told the jury, a solicitor of the highest reputation who was, if the prosecution case was accepted, prepared to throw everything away, putting himself in the hands of these former criminals and in the hands of serious criminal, setting up false applications for absolutely nothing. There was no evidence that he had anything to gain from this financially or otherwise.
22. The judge, in speaking of what this man, of the highest esteem professionally and socially, as she put it, had to lose, referred to the fact that he now finds himself in the dock, facing serious criminal charges, at the outset of her summing-up but only in the context of telling the jury, correctly, not to allow sympathy to sway their conclusion. When it came to the question of motive she merely put the prosecution case. She reminded the jury that there was no evidence that money had changed hands but also of the prosecution submission that that did not necessarily mean that money did not change hands. Quite what the meaning of that direction was, if there was no evidence of it, is not plain. She then suggested, no doubt at the prosecution's behest, that there may have been some other motive like getting a larger practice, as she put it. All of these may have been fair points, but if they were going to be made, if they were worth making at all, they had to be balanced and set against the counter argument as to the inherent unlikelihood of this man throwing everything away for no apparent gain.
23. A similar criticism is made of her summing-up in relation to inconsistencies. On a large number of occasions when dealing with the particularity of the evidence in relation to particular counts, the judge reminded the jury that in his first trial the defendant had said one thing. For example, and we need only give one example, that in support of an application he had met someone he knew, because he had to deal with he had seen their bank statement, whereas in the second trial he recalled some different document. She correctly reminded the jury of the relevance of inconsistencies, that it was for them to decide whether they were significant or not or whether any inconsistency ought to lead them to treat the account with, as she put it, considerable care.
24. She reminded the jury, during the course of her dealing with particular items of evidence that the prosecution suggested that the inconsistencies in account were the result of the fact that the details this defendant were giving were untrue. For example, in relation to count 8, he had recalled a client who was the person who produced the application and the photograph the subject matter of count 8, as someone who had produced a utility bill and student identification on the occasion of signing, whereas, he said in his first trial, that he had a clear recollection of her bringing a bank statement. She then said this:

"Whether you think it has force or not will be for you to decide but he [that is prosecuting counsel] suggested that if you are giving a truthful account it is very easy to remember and to be consistent."

She made a number of similar remarks on other occasions.

25. But what she did not ever do was to set those submissions in relation to inconsistency, advanced as they were by the prosecution, against the defence point that this defendant was compelled to recall events that had happened many years ago, in circumstances where they were but 17 in a very large number of applications, in the course of his business. In those circumstances, inaccuracies, absence of recollection or differing recollections on different occasions might be all too understandable without there being any intention to deceive. It was the most natural thing in the world that a defendant, faced with these accusations, might strive to remember concrete events in circumstances where the reality was they were all blurred by absence of time.
26. This was, we must accept, merely a counter argument for the jury to weigh and no doubt a counter argument advanced far more forcibly than we could do, by Mr Webster in his submissions to the jury. But if the judge was going to bother to advance prosecution arguments, there was no reason why she should not counterbalance it by referring to the defence argument or alternatively, leaving, as she might have been better advised to do, the arguments to counsel and not bothering to remind the jury of them at all.
27. There were further examples, so the defence said, of lack of balance. During the course of the evidence she reminded the jury that a witness on whom the defence relied, a Patrick Campbell in relation to count 1, had declined the opportunity to give evidence via a video link and had therefore not given the prosecution the opportunity to cross-examine him. He was someone involved in the production of a birth certificate for the purposes of making a false application in the name of "Colin Briscoe" who said in his statement that he had deceived Manifold into thinking that it was his true identity.
28. It was not this defendant's fault that Campbell would not come to this country. Although the judge had justification for pointing out the difficulties under which the prosecution laboured, she might, with greater balance, submitted Mr Webster, have reminded the jury that it was not the defendant's fault that that was the situation with which they were faced.
29. The judge was criticised in the way she dealt with the other defendant's cases, Jones and Hutchinson, which was said to be more favourable than the way with which his case was dealt with. We reject that submission. It is always difficult for a judge to deal equally with different defendants, particularly where they face only one charge and the other defendant faces 17. We do not detect in the summing-up any unfairness in the detail with which she dealt with those cases. Suffice it to say, that in relation to Jones he denied ever having met this defendant as part of his defence, whereas this defendant said that he had met him in Birmingham some 150 or more times and called a witness, Miss Tongue, who said that she had met Jones in a public house known as the Twin Towers, when he had attempted to approach her, giving him her his name. We do not detect any unfairness in the way the judge dealt with that or in the way she dealt with a witness who although no friend of Hutchinson suggested that Hutchinson was correct in saying that at the time the application on his behalf was made, the subject matter of count 13, when the defendant said he knew Hutchinson, he had never met this defendant.
30. As we have said, it is necessary to put those criticisms of the summing-up in the context of the summing-up and the evidence as a whole. Looking at the summing-up as a whole we take the view that the criticisms we have identified, in relation to lack of balance in the comments as to inconsistency and as to motive are well-founded. The prosecution points about inconsistency and about motive should have been balanced against fair arguments that could have been put the other way. If the judge was going to bother to repeat these comments, she should have at least repeated the comments that could be made in opposition to them. After all, if the judge is going to make comments they must be fair and balanced. In those respects we take the view that the judge failed to achieve this objective.
31. But close analysis of a summing-up is not the essential function of this court. This court has to put those criticisms, well-founded though they be, in the context of facts as a whole. The jury can have been in no doubt, after a trial of four weeks, as to the issue before them. Were they sure that this defendant countersigned photographs as being those of the person applies for the passport? Did he have any foundation for doing so? Or: was the truth that he had failed to check those applications, with the dishonest intention of a false application being made? The jury, as we have said, can have been in no doubt that was the issue. The defendant gave evidence and was adamant on some occasions of the accuracy of his memory as to the supporting documents produced. He was faced with the difficulty that in most of these cases he did not know the true name of the applicant but had known them only meeting him on various occasions either as client or in the gym by street names. The jury rejected his account. They reached the conclusion that they were sure that he had made these applications, or assisted in their being made dishonesty.
32. Looking at the summing-up as a whole, we cannot think, and we do not take the view that the jury were deflected from a fair resolution of that simple issue. The summing-up, though we have criticised it, though in certain respects it was unbalanced, was not of such a low standard and so unfair as to lead to that deflection and tilting of the jury against this defendant.
33. In those circumstances, that being the only ground of appeal, we reject it and we dismiss this appeal.
(Submissions Followed)
34. LORD JUSTICE MOSES: It is unnecessary to detail the facts again but worth stressing that this appellant was a highly regarded solicitor whose career has now, as a result of these convictions, come to an end and will inevitably do so.
35. He is now 49. He was sentenced to four-and-a-half years' imprisonment (54 months) on 19th February 2010. The judge rightly pointed out how serious this case was, where a solicitor is prepared to enter into dishonesty it is of great significance.
36. Mr Webster submitted: the reason why sentences of the level of 3 years are passed is because people trusted to countersign the photographs for passports are of a particular status, that this appellant did so, not as part of his work as a solicitor although because he was a solicitor. Thus the fact that he was a solicitor made no difference.
37. We do not agree. The fact that he was a solicitor is of great significance -- it might not have any greater effect on the success or otherwise on the passport application any more than that of a civil servant or anyone else -- but for a solicitor to be prepared to be dishonest is a matter of great consequence.
38. We were referred to two authorities: R v Costley [2007] EWCA Crim 3187 and R v Cheema [2002] 2 Cr App R(S) 79, both of which establish that the business of assisting in or providing false passports is serious, meriting a sentence in the region of 3 years. The judge thought this case was more serious by reason of the position of this appellant.
39. Looking at the facts as a whole we think that a sentence of four-and-a-half years (54 months' imprisonment) was manifestly excessive. We have to bear in mind this appellant's good character. We also have to bear in mind the considerable delay that was no fault of his, save that he pleaded not guilty. There had been a trial, which had to be disbanded through no fault of his own and he had to wait another 10 months for another trial. Of course in part that was his own fault because he pleaded not guilty. Nevertheless, taking those features into account as well as his character, and he is now, as one would expect, doing very well in prison, we think that he can be sufficiently punished by a sentence of 3 years' imprisonment. But we have taken into account the circumstances of the delay and we do not think it right to reduce the sentence further.
40. In those circumstances we shall quash the sentence of 54 months' imprisonment, and substitute for that a sentence of 36 months' imprisonment. His appeal against sentence is therefore successful.