England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MOLD
Mr Recorder Wyn Lloyd Jones

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/07/2015

Lord Thomas of Cwmgiedd, CJ :

1. This is an appeal under s.58 of the Criminal Justice Act 2003 against a terminating ruling made by Mr Recorder Wyn Lloyd Jones at the Crown Court at Mold on 18 March 2015 in which he held that it was an abuse of process to proceed with count 1 of the indictment against the defendant as further particulars had not been given.
2. Count 1 of the indictment was as follows:

"STATEMENT OF OFFENCE

FRAUD, contrary to section 1 of the Fraud Act 2006.

PARTICULARS OF OFFENCE

TJC between the 26^th day of February 2010 and the 1^st day of June 2012 committed fraud in that, dishonestly and intending thereby to make a gain for herself or another, or to cause loss to another or to expose another to risk of loss, abused her position of holder of a lasting power of attorney, in which she was expected to safeguard or not act against the financial interests of another, namely JW, by using monies belonging to the said JW for the benefit of herself and others, in breach of section 4 of the Fraud Act 2006."

The background

3. The matters giving rise to count 1 and the other three counts on the indictment, counts 2, 3 and 4 can be summarised as follows:

i) The defendant's father had been born in 1926. He had three children, one of whom was the defendant and one her brother; the third child died. He lived in a house in a town in North Wales. He became widowed. He lived alone at that property. He had savings in the Post Office, bank accounts and a flexible investment bond with Canada Life. He had a pension of over £2,000 per month.

ii) In about 2009 the father began to exhibit symptoms of dementia. A lasting power of attorney was drawn up and signed by the father in October 2009, with the defendant being appointed the sole attorney for her father. Her brother signed the lasting power of attorney the following month, agreeing to be a replacement attorney in the event that the defendant was unable to carry out the role.

iii) In February 2010 a medical specialist determined that the father did not have the mental capacity to understand his affairs. The defendant then registered the lasting power attorney with the Office of the Public Guardian on 27 February 2010. From that time onwards, the defendant exercised the powers under the lasting power of attorney over the moneys and other property, including the house owned by the father. He died in October 2013.

iv) Between 27 February 2010, the date of the registration of the lasting power of attorney, and November 2010 the father lived in his own home. During that period, all the regular bills such as utilities and council tax were paid by standing order from the father's bank account. In November 2010, the defendant moved her father from his own home into her home and allowed her daughter and friends to live in his house rent free. In November 2011 the father's mental health deteriorated and he was moved into a care home on a full time basis at a cost of £506 per week; that sum was paid directly from the father's account to the nursing home.

v) At about the beginning of 2012 the defendant's brother had sight of one of the bank statements. As a result of this, he contacted the Office of the Public Guardian. Sonia Hanson, an investigator working for the Office, commenced investigations which showed that significant sums had been withdrawn from the bank accounts and transferred into the defendant's own account, that the flexible investment bond with Canada Life had had funds withdrawn from it and substantial cash withdrawals had been made from other accounts.

vi) As a result of her findings, Sonia Hanson contacted the North Wales police and a criminal investigation began.

vii) That eventually resulted in a single count indictment in form identical to the one we have already set out but covering the period until 19 January 2013.

4. The defendant had admitted in interview that she had not separated her own money from her father's. She denied she was taking advantage of his money; she was using it just to "get by". She admitted that she had spent some of her father's money on things that were not in his best interests and on herself and other people. In respect of sums that had been shown to have been expended on repairs to two vehicles, she said that was in her father's interests because the vehicles were used to take him out. In respect of money that had been spent on a kitchen in her home, she said that that was for his benefit because her intention was to have him return to live with her after he went into the care home in November 2011.
5. The matter was sent for trial on 2 December 2013. There were pre-trial hearings on 13 December 2013, 7 February 2014, 22 September 2014 and 11 March 2015. No point was taken on the indictment nor were any other issues raised in relation to the way in which the prosecution put its case.

The hearing before the Recorder

6. On 18 March 2015, the first day of the trial, the Recorder raised with the prosecution the sufficiency of the particulars in the indictment. He indicated, we were told, that the prosecution should identify the payments it said were fraudulent or dishonest. Having heard this from the Recorder, counsel for the defendant (who had not appeared at the previous hearings) applied that such particulars be given. The Recorder agreed to consider the application after the opening.
7. On 19 March 2015 the advocate for the prosecution opened the case to the jury on that single count in the indictment but with the wider dates to which we have referred. He summarised the case for the jury in these succinct terms:

"The prosecution say that once you have considered all of the evidence in this case, including the large amount of money withdrawn by the defendant from her father's accounts, the regular standing orders and the bank transfers she was making from her father's accounts to her own, her failure to keep any record of the expenditure of her father's money, the car bills and credit card purchases clearly for her own benefit and paid for with her father's money and the £6,000 spent on a new kitchen for her own property you will be satisfied of her guilt."

The advocate then went through all the documentation with the jury.

8. At the conclusion of the opening, counsel for the defendant applied then and there for the court to direct that the prosecution give the further particulars which the Recorder had indicated should be given. He submitted that the prosecution had not identified what part of the money had been fraudulently and dishonestly used by the defendant. He submitted that the defendant was entitled to know what expenditure was said to be legitimate and what was said to be unlawful.
9. The response of the prosecution was to say that, although it was accepted that some of the money was spent on her father, she had been spending the sums to such a degree and in such high quantities in certain given months that she could not possibly have been acting honestly. She must have known that what she was doing was dishonest. The prosecution said there were no tangible assets which could be pointed to (such as holidays or expensive assets which had been acquired); that the father's money had been frittered away on minor assets. Furthermore the sums which had been taken from the father's account had been either amounts taken out in cash (through an ATM or by cheques made out to cash) or had been transferred directly into the defendant's account. Thus, for example, although the prosecution could point to a sum of £1,200 spent on a "makeover", the cheque for that sum had been drawn on the defendant's bank account. It was, therefore, not possible to say that that specific sum came from the father's funds.
10. As a result of the application, the prosecution decided to add three specific counts to the indictment, counts 2, 3 and 4, in respect of repairs to the defendant's own vehicles, to the purchase of a kitchen for the defendant's house and to crediting a sum to her Barclaycard account. The prosecution took their stand on the fact that count 1 was properly particularised as it stood. It was submitted that, at the end of the evidence, the jury would be entitled to ask themselves five questions and then infer the defendant's guilt. The first two were:

i) How much would it reasonably cost to care for one elderly gentleman suffering from dementia on a month by month basis?

ii) Did the amounts being withdrawn and transferred by the defendant far exceed that which would reasonably be required to care for her father?

The Recorder's decision

11. After hearing further submissions, the Recorder ruled on 20 March 2015 that the prosecution had declined to produce further particulars of count 1 and had accepted that they could not identify and specify the unlawful transactions under that count. The Recorder said he wondered who was capable of doing it if the prosecution could not. He concluded that it would be unfair and an abuse of process to try the defendant on count 1 in the absence of further particulars. He therefore stayed the count and discharged the jury.
12. The prosecution appeal that ruling under s.58 of the Criminal Justice Act 2003.

Our conclusion

13. It became clear in the course of argument that the case being made by the prosecution was that there was a general deficiency of funds that they contended had been misappropriated. It was a case similar to that which arose in R v Tomlin [1954] 2 QB 274, but with the difference that it was not possible to arrive at the exact amount of the general deficiency. The prosecution contended that that general deficiency could be arrived at by allowing, against the total sum of £75,000 that had been withdrawn from the father's accounts (either in cash or by transfer to the defendant's bank account), the reasonable sums that would have been incurred in caring for the father. The reasonable sums that would have been incurred in caring for the father would be calculated by reference to the three periods to which we have referred, namely, the time during which he was at his own house, the time during which he was at the defendant's house and the time during which he was at the nursing home. Taking the last by way of example, it appears that in the period between November 2011 and June 2012 approximately £14,000 had been withdrawn in cash during a period where the costs of the nursing home were entirely covered by direct payments from the father's account to the nursing home. The general deficiency for that period would be calculated by allowing a reasonable sum for the incidental expenditures that would have been incurred for the benefit of the father as against the substantially greater sum that had been taken in cash. A similar process could be taken for the other two periods.
14. When counsel for the defendant was asked if there would have been an objection to the indictment if the prosecution's case had been framed in this way, he said there would have been none. That was because the defendant would know what the prosecution case was in relation to the size of the general deficiency and how it was calculated.
15. The Recorder decided that it was an abuse of process to continue with the case without the prosecution specifying the transactions which they said were unlawful. As is apparent from what we have said, that could not be done. This was a case where the prosecution alleged that there was a general deficiency, not that specific transactions were unlawful. In our view the indictment was sufficient for such a purpose and the Recorder was wrong in point of law.
16. What the Recorder should have done was to require the prosecution to set out, in the way we have described, the case being made in relation to the general deficiency; this could easily have been done by way of a written note of opening.
17. As a result of our decision, proceedings under count 1 must resume in the Crown Court and be heard together with counts 2, 3 and 4. We are told that will be early next year. We, therefore, direct that the prosecution produce a note by 1 October setting out the case, in the manner we have described, as to the calculation of the general deficiency alleged. The prosecution may also wish to consider in what way it intends to prove the general deficiency and to provide the proper evidential base for the assessment of a reasonable sum.

Postscript

18. It is a regrettable feature of this case, as we observed at paragraph 5, that despite the pre-trial hearings, counsel then representing the defendant had not raised any issue as to the adequacy of the way in which the prosecution had put its case. This was a failure that should not have occurred and resulted in three days of court time being wasted before the Recorder. This type of waste of resources must not be repeated. Those attending pre-trial hearings must give the proper attention to cases. If they do not, then it is open to the trial judge to proceed with the trial without entertaining applications of this type on the basis that they should have been made earlier; it will not matter that the advocate at the pre-trial hearing was different; it was the duty of that advocate only to appear at the pre-trial hearing on the basis that the advocate was fully familiar with the case and had the requisite competence to do so.