England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
MR RECORDER MICHAEL EGAN QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2013

Lord Justice Pitchford :

1. This is an appeal against conviction and sentence brought with the leave of the single judge. At the conclusion of the hearing on 18 July 2013 the Court announced its decision to dismiss the appeals against conviction and sentence for reasons which would be provided in writing. These are our reasons.

Trial

2. Between 13 and 18 September 2012 at Wood Green Crown Court before Mr Recorder Egan QC the appellant was tried on an indictment containing three counts. In count 1 he was charged with an offence contrary to section 1 Fraud Act 2006 in that between 1 June and 30 December 2011 he made false representations to Rosalia Werner which were untrue or misleading, namely that he was owed money by Mrs Werner for roof repairs he had carried out at her home at 62 Hampstead Way, London NW11. In counts 2 and 3 the appellant was charged with theft in June and July 2011 of £1,500 and £3,500 respectively, belonging to Henry Knight.
3. On 18 September 2012 the jury returned verdicts of guilty and on 21 September the appellant was sentenced by the Recorder to 4 years imprisonment upon count 1; upon counts 2 and 3 he was sentenced to 2 years concurrent upon each count to be served consecutively to the sentence upon count 1, making 6 years in all. The appellant was in breach of a suspended sentence order imposed on 7 December 2011 by Richmond Magistrates Court for an offence of attempted burglary. The Recorder ordered that a term of 4 weeks imprisonment should be activated consecutively in full. The appellant spent 129 days in custody on remand, all of which were ordered to count towards his sentence.
4. The prosecution case was that the appellant had preyed upon the vulnerability of two elderly victims who suffered from dementia in order to extract money from them. Mrs Rosalia Werner was aged 91. She was unable to manage her financial affairs and her son, David, held a power of attorney. On 23 November 2011 the appellant took Mrs Werner to her bank in Finchley Road. He remained outside while she entered the bank to make a withdrawal of cash. The cashier was aware of Mr Werner's power of attorney and she telephoned Mr Werner for instructions. As a result the cashier declined to allow Mrs Werner to withdraw £250 in cash for the benefit of the appellant. A month later, on Boxing Day 2011, the appellant again visited Mrs Werner. Unknown to the appellant, her son had recently arrived to visit his mother. He was taking a nap upstairs when he was awoken by the sounds of the appellant demanding in a loud voice the sum of £200. Mr Werner emerged from the bedroom to find both his mother and the appellant on the landing. The appellant was continuing to shout. Mr Werner demanded to know what the appellant was doing. On seeing Mr Werner the appellant retreated from the house. Mr Werner had the presence of mind to note the registration number of the vehicle in which the appellant left.
5. The appellant purported to trade as a self-employed roofer. When interviewed following his arrest he said that he was owed £175 by Mrs Werner for work he claimed he had carried out to the roof of her house. He agreed he had taken Mrs Werner to the bank to obtain payment but denied that he had later demanded £200 in Mr Werner's presence. He claimed that he had decided not to pursue the debt and this was the defence he advanced at trial. There was, therefore, a direct conflict of evidence between Mr Werner and the appellant. A surveyor, Chris Hawkins, gave evidence for the prosecution that he had inspected the roof: either the work had not been done at all or, if any work had been done, it was of a very poor standard. Mrs Werner did not make a witness statement and did not give evidence. Dr Patricia Ryan, a consultant elderly care psychiatrist, gave evidence that she knew and treated Mrs Werner. In 2011 Mrs Werner was passing into the more advanced stages of dementia. She would have appeared to the appellant to be a person who was bewildered. The issue for the jury was whether the appellant had taken advantage of Mrs Werner dishonestly to make a demand for money knowing that it was not properly due to him.
6. The alleged victim in counts 2 and 3 was Mr Henry Knight, aged 90 years. On 23 June 2011 Mr Knight's personal cheque for £1,500 was deposited into the appellant's bank account and the proceeds were immediately withdrawn in cash. On 12 July a second cheque for £3,500 was paid into the appellant's account and again the cash was withdrawn. The prosecution relied on the agreed evidence of a handwriting expert, Jacqueline Lord. In her opinion the name of the payee on the first cheque was written by the appellant. She could not reach an opinion upon the other writing on either cheque. In interview and in evidence the appellant said that he had agreed with Mr Knight to carry out substantial work to Mr Knight's house to a value of £5,000. He had sought and received payment in advance but admitted that by the time of the police investigation later in the year he had not commenced work. No written record of his agreement with Mr Knight was produced. Despite the agreed expert evidence the appellant denied that he had written any part of the cheques.
7. Unlike Mrs Werner, Mr Knight made a witness statement in reply to questions from a police officer. It was not in dispute that Mr Knight was not fit to give oral evidence at trial. The prosecution sought leave from the Recorder under section 116(2)(b) Criminal Justice Act 2003 to adduce Mr Knight's account in his witness statement as hearsay evidence. Mr Knight's treating psychiatrist, Dr Ali, had given evidence before the jury as to Mr Knight's state of dementia. Ms Saimbhi, on behalf of the appellant, challenged Mr Knight's capability to make the witness statement the prosecution sought to adduce in evidence. In the absence of the jury the Recorder heard further evidence from Dr Ali directed to the issue whether Mr Knight had the capability to make the statement within the meaning of section 123 Criminal Evidence Act 2003. He accepted the defence submission that Mr Knight's statement should not be admitted because at the time he made it he did not have the required capability.
8. It was, however, the appellant's account in evidence that neither of the alleged victims was suffering or appeared to be suffering from the effects of dementia at the time of his conversations with them. He gave evidence as to his belief that both Mrs Werner and Mr Knight well understood the transactions into which he had entered with them.

Grounds of appeal against conviction

9. The appellant advances three grounds of appeal:

(1) The Recorder wrongly directed the jury that they could treat the evidence upon all three counts as cross-admissible;

(2) The Recorder wrongly informed the jury that he had ruled that the statement of Mr Knight was inadmissible; and

(3) The Recorder wrongly permitted the prosecution to recall DC Irwin to rebut an allegation made by the defendant in evidence that the police and the Crown Prosecution Service had conspired together to keep the witnesses away from court.

Cross-admissibility

10. As we have said, the appellant had in November 2011 received a suspended sentence order for an offence of attempted burglary. In September 2011 the appellant had visited the home of a 92 year old woman and distracted her with the intention of stealing. This conviction was admitted in evidence under section 101(1)(d) and section 103 Criminal Justice Act 2003 for its capacity to establish the appellant's propensity for selecting elderly people as victims of theft and fraud. The Recorder also directed the jury that they could, when considering the evidence relevant to count 1 on the one hand and counts 2 and 3 on the other, take account of all the evidence before reaching their conclusion whether the prosecution had proved its case upon any one of the counts in the indictment. The Recorder gave to the jury oral and written directions as to their approach. To paraphrase the Recorder's directions, there was no evidence of collusion between Mrs Werner and Mr Knight. If they were satisfied of that fact the jury could, having heard the medical and other evidence of their state of dementia, conclude that Mrs Werner and Mr Knight had been deliberately selected by the appellant as persons with infirmity. If the jury was sure that a pattern of conduct was revealed the jury was entitled to have regard to that finding when considering whether the appellant had acted dishonestly with respect to either Mrs Werner or Mr Knight or both.
11. The appellant argued that the Recorder should have directed the jury that before the evidence of the transaction between the appellant and one of the alleged victims could be considered as relevant to his transaction with the other the jury must be sure that the prosecution had proved the appellant's guilt in respect of the first transaction and that his guilt established, so that they were sure, that he had a propensity to commit such offences. In argument Ms Saimbhi accepted that her submission failed to recognise the guidance given by this Court in Freeman and Crawford [2009] 1 Cr App R 11, [2008] EWCA Crim 1863. Latham LJ, giving the judgment of the Court, explained that the bad character provisions of the 2003 Act had not confined relevance of previous bad conduct to that which established a propensity to commit offences of a similar kind; evidence may be relevant to issues between the prosecution and the defence whether or not it is relied upon to establish propensity. Latham LJ said at paragraphs 19 and 20:

"19. The evidence may provide, for example, strong circumstantial evidence that the offences were committed by the same person, and that the defendant is that person. This point was made clearly by Moses LJ in DM.^[1] It follows that when it is submitted that evidence in relation to one count is admissible in relation to another, it may not always be helpful to concentrate on the concept of propensity when the nature of the evidence is such that, in itself, it is capable of being probative in relation to another count, in the sense that it makes it more likely either that the offence was committed (Chopra) ^[2] or that this defendant committed the offence (Wallace).^[3]

20. In some of the judgments since Hanson ^[4], the impression may have been given that the jury, in its decision making process in cross-admissibility cases should first determine whether it is satisfied on the evidence in relation to one of the counts of the defendant's guilt before it can move on to using the evidence in relation to that count in dealing with any other count in the indictment. A good example is the judgment of this court in S.^[5] We consider that this is too restrictive an approach. Whilst the jury must be reminded that it has to reach a verdict on each count separately, it is entitled, in determining guilt in respect of any count, to have regard to the evidence in regard to any other count, or any other bad character evidence if that evidence is admissible and relevant in the way we have described. It may be that in some cases the jury will find it easier to decide the guilt of a defendant on the evidence relating to that count alone. That does not mean that it cannot, in other cases, use the evidence in relation to the other count or counts to help it decide on the defendant's guilt in respect of the count that it is considering. To do otherwise would fail to give proper effect to the decision on admissibility."

12. In our judgment, the evidence of the circumstances of the appellant's transactions with both Mrs Werner and Mr Knight was plainly admissible upon the jury's assessment whether the appellant acted dishonestly in respect of either of them. The evidence was relied upon not for its capacity to establish propensity to commit offences of fraud or theft but for its capacity to demonstrate that Mrs Werner and Mr Knight had been deliberately selected because they were vulnerable. Recognising the force of the respondent's argument, Ms Saimbhi fell back upon a submission that the admission of the evidence for this purpose was nonetheless unfairly prejudicial within the meaning of section 78 Police and Criminal Evidence Act 1984. We do not accept this submission. The Recorder was careful to direct the jury that coincidence was not enough. The jury had to be sure that there was a pattern of conduct which assisted their consideration of each of the counts that the appellant faced. The Recorder's direction may have revealed the weight of the prosecution case but it did not, in our view, render the admission of the evidence unfairly prejudicial. This ground has no substance.

Disclosure of ruling in law

13. The appellant's second ground of appeal reveals an inconsistency in the conduct of the defence case which the Recorder described in his ruling as an attempt by the appellant to have his cake and eat it. Despite the expert psychiatric and other evidence as to the infirmity of the alleged victims it was the appellant's case that neither Mrs Werner nor Mr Knight was suffering from symptoms of dementia when he encountered them. It was common ground that Mr Knight was not, in September 2012, fit to give evidence. In the voir dire Ms Saimbhi advanced the argument that when he made his witness statement some weeks after the transactions of June and July 2011, Mr Knight had become incapable within the meaning of section 123. Section 123 Criminal Justice Act 2003 provides that section 116 does not make admissible the statement of a person who did not have the required "capability" to make it. Section 123(3) provides that a person has the required capability only if he is capable of (a) understanding the questions put to him about the matters stated and (b) giving answers to such questions which can be understood. We entertain some doubt as to whether the evidence in the voir dire was directed to the statutory questions. However, we are not concerned in this context with the Recorder's analysis of Dr Ali's evidence in the voir dire or its effect because the Recorder resolved the issue in favour of the appellant and there is, accordingly, no appeal against that finding.
14. The appellant's complaint is that the Recorder, both after reaching his decision and during his summing up, informed the jury to the following effect (summing up, transcript page 21G):

"Now, in addition to that, members of the jury, I told you yesterday, by agreement, that on Friday of last week in your absence I concluded, having heard expert medical evidence, that in July 2011, Mr Harry Knight did not have the requisite capacity to make an admissible statement in this case."

Ms Saimbhi submitted that one of the important issues in the trial was whether Mr Knight was suffering from dementia at the time of his encounters with the appellant. The jury had heard expert and other evidence upon that issue. In the absence of the jury the Recorder heard further evidence from Mr Knight's treating psychiatrist, Dr Ali. The effect of informing the jury of his decision was to reveal his own judgment that in July 2011 Mr Knight's state of mental health was such that he "did not have the requisite capacity" to make a witness statement. That must, Ms Saimbhi submitted, have had an important bearing upon the jury's own assessment of the issue of Mr Knight's capacity to make with full understanding the agreement the appellant claimed he did. In effect it withdrew the issue from them; alternatively, the jury was left to apply the Recorder's judgment of "capacity" without hearing the evidence upon which it was based or receiving directions as to the legal issue ("capability") to which the evidence in the voir dire had been addressed.

15. It can be inferred from the transcript of the argument before the Recorder that Ms Saimbhi was driven to concede that the jury would be informed of the Recorder's decision. We do not regard that concession as any bar to the ground of appeal now raised. We have some sympathy for the predicament presented to the Recorder by the appellant's attempt to advance two inconsistent arguments at the same time. On the one hand, the appellant's case was that at the material time Mr Knight was a bright man with full understanding; on the other, Ms Saimbhi was instructed to resist the admission of his statement in evidence on the ground that he had not been not capable of making a witness statement. The Recorder took the view that, in the circumstances, justice to both the defence and the prosecution required him to inform the jury of his decision. Ms Saimbhi argued that the inconsistency to which we have referred may have been more apparent than real. It was possible that Mr Knight was fully in command of his cognitive functioning on the dates when the appellant acquired his personal cheques but incapable of recalling those events when making a witness statement about them a short time later when interviewed by the police. While that claim may have been sufficient as a theory to justify the appellant looking in two directions at once we do not regard it as realistic on the evidence in this case.
16. Notwithstanding our sympathy for the Recorder's position, and notwithstanding his later directions to the jury that the issue of dementia was for them alone to resolve, we have no doubt that he fell into error when, without more, he informed the jury of his decision that Mr Knight lacked capacity to make a witness statement. We accept the appellant's argument that the effect of the Recorder's disclosure was to run the risk that, without a strict warning to the contrary, the jury would be influenced in their own judgment as to whether the Mr Knight would have had the capacity to make a building contract with the appellant in June/July 2011. In other circumstances we might have concluded that this misdirection was fatal to the safety of the jury's verdicts. However, in this case the appellant was to allege in the course of his evidence that the CPS and the police had conspired to keep Mrs Werner and Mr Knight away from court; that if the witnesses attended to give evidence the jury would see that he was telling the truth when he said that they were perfectly capable of conducting the transactions into which they had entered. In these circumstances the Recorder was entitled, it seems to us, to redress the balance. To have done otherwise would have risked an injustice to Mr Knight and the prosecution. Ms Saimbhi recognised that there were two ways in which the Recorder could have responded appropriately to the exigency which her own application to the Recorder and the appellant's evidence had created. The first was to explain to the jury that he had ruled at the invitation of Ms Saimbhi that, for legal reasons with which they were not concerned, they could not receive any evidence from Mr Knight (accompanied by a warning that his decision should not influence their decision as to Mr Knight's mental alertness at the material times); the second was to invite the prosecution to recall Dr Ali to give evidence before the jury of Mr Knight's capability to make a witness statement when first seen by the police in July 2011.
17. We have been provided with a transcript of Dr Ali's evidence in the voir dire. In the course of his evidence Dr Ali said that it was "extremely unlikely" that Mr Knight would have been able to explain to a police officer what had happened when the appellant had visited him. In cross examination Dr Ali said that Mr Knight would not have had the "capacity" to relate on 14 July 2011 details of a transaction between himself and the appellant which had taken place during the period 28 June to 5 July 2011. Had the jury heard this evidence the inconsistency between the case being advanced by the appellant and the questions put on his behalf by his advocate would have been revealed to its full effect. We find it inconceivable that, had the Recorder responded as it is submitted he should to the problem that had arisen, the jury may have reached a different conclusion about Mr Knight's competence to conduct business at the material times. The jury did not merely receive Dr Ali's evidence in the trial. They also heard from Mr Knight's close friend and neighbour, Mr Young. Mr Young gave evidence that Mr Knight was "a lively old boy" who by 2010 was very confused and suffered very bad eyesight. He was unable to deal with letters and banking. By July 2011 he was confused and forgetful. The appellant, to the contrary, gave evidence that Mr Knight was bright, articulate and well able to provide detailed instructions as to the building work he required and to instruct the appellant that he was not to start work until "I've had the windows done". In our judgment the evidence of Mr Knight's dementia and its deleterious effect on his ability to engage in a business transaction with the appellant was overwhelming.

Evidence in rebuttal

18. The appellant's third ground of appeal was that the Recorder wrongly permitted the prosecution to call evidence in rebuttal of the appellant's claim in evidence that there was a conspiracy against him to prevent the jury seeing for themselves the capacity of the alleged victims to do business with him. The prosecution called DC Irwin to describe to the jury his own impressions of Mrs Werner and to explain his decision not take a witness statement from her. In our judgment there was no unfairness to the appellant. The prosecution had not presented its case with knowledge of any allegation of conspiracy, only with knowledge of the appellant's case that Mrs Werner and Mr Knight had not been infirm and vulnerable. It seems to us, for the reasons given in paragraphs 15 and 16 above, that it was well within the Recorder's legitimate exercise of discretion to permit the prosecution to answer the late allegation that the police had deliberately kept witnesses away from trial to conceal the truth. No injustice was done. On the contrary, the Recorder acted to do fairness to both sides.

Section 74 Police and Criminal Evidence Act 1984

19. When directing the jury upon their proper consideration of the appellant's previous conviction for attempted burglary the Recorder said at page 7H of his summing up:

"You have heard evidence that the defendant, in November 2011…was convicted of committing an offence of attempted burglary involving distracting a ninety two year old woman, in her own home, while attempting to steal from her. Now …an attempted burglary involves an attempt to enter as a trespasser a property with intent to steal. The defendant said to you yesterday that in fact he's innocent of that allegation, and he gave an explanation which you heard; that he was merely trying to help the old lady by giving her something. I direct you as a matter of law that you should reject the evidence of the defendant because his conviction is final proof and for these purposes irrevocable proof that the person so convicted-that's him-committed that offence."

As Nicol J observed in the course of argument, this was a misdirection of law. The fact of the conviction was admitted. The appellant's evidence was to the effect that he was wrongly convicted. His conviction was not irrevocable proof of his guilt. Section 74(3) Police and Criminal Evidence Act 1984 provides that in any proceedings in which the fact of commission of an offence by the defendant is admissible, and he is proved to have been convicted of the offence, he shall be taken to have committed that offence unless the contrary is proved. The effect of section 74(3) is that the defendant bears the burden of proving that he did not commit the offence.

20. When Ms Saimbhi had this misdirection drawn to her attention by the Court she did not seek to raise it as an amended ground of appeal. It appears that neither advocate had spotted the error at trial or since. Ms Saimbhi invited the Court to have regard to it when assessing her submission that upon the pleaded grounds the verdicts of the jury were unsafe. We considered the impact of the error on the safety of the convictions, not merely as a make-weight but as a free-standing ground of appeal. We have also considered whether, in combination with the Recorder's error when informing the jury of his decision in the voir dire, the safety of the verdicts is compromised. We note that while he was giving evidence the appellant did not merely deny that he was guilty of the offence of attempted burglary; he also informed the jury that the only other offence of which he had been convicted was drink-driving. That was untrue. In 1986, 1990 and 1992 he was convicted of theft by shoplifting. In 1995 he was convicted of criminal damage. In 2004 he was convicted of an attempt to obtain property by deception. In consequence these further convictions were proved by formal admission. It seems to us that as to his guilt of offences in the past the appellant's evidence was completely discredited. We do not consider that there was the slightest prospect of the jury concluding that he was on balance telling the truth about his conviction in November 2011 for attempted burglary.
21. In conclusion, we accept that there were two errors in the Recorder's summing up (ground 2 and section 74 Police and Criminal Evidence Act 1984) which in other circumstances would be likely to cast doubt on the safety of the jury's verdict. For the reasons we have given at paragraphs 15, 16 and 19 above, in the particular circumstances of the appellant's case, we entertained no doubt that the jury's verdicts were safe and the appeal against conviction was accordingly dismissed.

Appeal against sentence

22. As to the appeal against sentence the pre-sentence report informed the Recorder that the appellant was continuing to protest his innocence and demonstrated little empathy towards his victims. He said he had been set up. It was clear to the author that the appellant had targeted vulnerable victims. The likelihood of further offences was "medium".
23. In his sentencing remarks the Recorder informed the appellant that he was quite satisfied, having heard the evidence, that both his victims were at the time of the offences suffering from severe dementia which rendered them defenceless to a person such as the appellant, who was resolved to take advantage of them. The Recorder regarded the previous conviction for attempted burglary as a serious aggravating factor. Eight days after his conviction the appellant was back on Mrs Werner's doorstep persuading her dishonestly to accompany him to the bank to withdraw money for his benefit. Furthermore, the final stages of the count 1 offence were committed while the appellant was on bail for the count 2 and count 3 offences. On 2 December 2011 the appellant was interviewed about the withdrawals in cash of Mr Knight's money in June and July. He was released on bail pending further investigation. Three weeks later Mr David Werner found the appellant on the landing in his mother's home attempting to extract money from her.
24. The Recorder noted the evidence of Dr Ryan, the elderly care consultant. The preferred treatment for those who suffer dementia is treatment in the community provided that the elderly person has available a network of friendly neighbours or relatives upon whom they can rely when in familiar surroundings. An increase in the average expectation of life has had the consequence that there are many more such persons living in their communities who remain vulnerable to the predations of the unscrupulous. The judge continued at page 7B of his sentencing remarks:

"There is a powerful public interest in protecting Mrs Werner and Mr Knight and people who suffer similarly, because society is probably truly judged by how it deals with such people…Moreover, I have had the opportunity to hear you give evidence and to observe you both before and after conviction. I…formed the view, on Wednesday, that you were distinctly lacking in shame and insight into your offending at all…I asked for the Probation Service to speak to you and report back to the court specifically with that concern in mind. Sadly, that report merely confirms my clear view that unusually, for someone who has committed such mean and despicable offences, you genuinely feel no shame or remorse at all."

25. The Recorder noted Ms Saimbhi's submissions that the appellant should properly be sentenced under the guidelines for fraud and theft. Under the fraud guideline count 1 was a single offence of confidence fraud characterised by a degree of planning, the starting point for which was 18 months custody and the range 26 weeks to 3 years. Counts 2 and 3 represented thefts in a dwelling from a vulnerable victim involving the use of deception for which the starting point was 18 months custody and the range 12 months to 3 years. The Recorder concluded that the present offences were difficult to fit into the guideline categories. There were factors which significantly aggravated the appellant's offending and he proposed to sentence outside the guidelines.
26. Ms Saimbhi submitted that to the extent the Recorder imposed sentences outside the guidelines he was wrong to do so. Count 1, in particular, involved a modest sum of money which was well below the illustrative starting point of £10,000. The total sentence required attention to the principle that sentences should in the final analysis be just and proportionate.
27. Despite the Recorder's assessment that he was sentencing outside the guidelines we are not convinced that he did. He paid close attention to the principles of sentencing for such cases and made explicit reference to the relevant starting points and ranges. He expressly reached sentences of four years and two years imprisonment respectively after weighting seriousness for the aggravating factors he identified. There were no mitigating factors to be considered. In our judgment the Recorder's approach was entirely appropriate. As to count 1 the sum involved may have been modest but the offence was aggravated by persistence, even while on bail and in breach of a recent suspended sentence order, by the pursuit of his elderly victim to the first floor landing of her own home and voluble intimidation of her in an attempt to achieve his aim. As to counts 2 and 3 the appellant, who had previous convictions for dishonesty, made successive predatory visits to his vulnerable victim and the sums stolen were considerable for a man in Mr Knight's situation. They represented the first in a series of such offences targeted against elderly victims. Consecutive sentences were merited. There is no basis on which the Recorder could properly be criticised for activating the suspended sentence consecutively and we did not understand Ms Saimbhi seriously to do so.
28. These were, we recognise, stern sentences both individually and cumulatively, but we have no doubt that they were appropriate for the total criminality involved, for reasons which the Recorder explained in his sentencing remarks and which we have summarised above. We concluded that the total sentence of 6 years and 4 weeks was neither wrong in principle, nor manifestly excessive, and the appeal against sentence was also dismissed.

Note 1    [2008] EWCA Crim 1544    [Back]

Note 2    [2006] EWCA Crim 2133    [Back]

Note 3    [2007] EWCA Crim 1760    [Back]

Note 4    [2005] 2 Cr App R 21    [Back]

Note 5    [2008] EWCA Crim 544    [Back]