England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CANTERBURY CROWN COURT
HHJ O'Mahoney
T20130688

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/04/2016

Lord Justice McCombe:

1. On 9 May 2014 in the Crown Court at Canterbury, after a trial before HHJ O'Mahony and a jury, the applicant was convicted of an offence of theft and on 19 June 2014 she was sentenced by the judge to pay a fine of £5,000 and was ordered to pay a contribution towards the costs of the prosecution.
2. Her application for an extension of time in which to apply for leave to appeal against conviction (the application being made a little over 7 months late) was referred to the Full Court by the Single Judge. We heard the application on 12 April 2014 and, at the conclusion of that hearing, we granted the applicant leave to appeal (and with it the extension of time sought) but informed the parties that we would dismiss the appeal for reasons to be given in writing at a later date. These are our reasons.
3. The appellant (as she now is) explained the delay in making her application by her having suffered a major depressive illness after the trial and having travelled to India for family support and care. There was also delay in recovering papers from her former solicitors and in raising funds to obtain further advice. She had been privately represented at trial and trial counsel had advised in negative terms with regard to any appeal. We are not entirely satisfied that these reasons were sufficient on their own to warrant the grant of the extension of time sought. However, having considered the merits of the proposed appeal, we considered that the matter was sufficiently arguable to justify a grant of an extension of time for the matter to be fully considered.
4. The facts of the case can be shortly stated. The appellant was, at the material time, a doctor employed at a medical centre in Canterbury. The complainant, Ms Kelly Wissenden attended the centre to seek medical advice for her son of 9 months old. She had no appointment, but waited until a doctor could see her and the child. The appellant became available and Ms Wissenden and her son, in his buggy, entered the consulting room. When Ms Wissenden left the consultation, she found that a sum of £130, which had been in her purse, was missing; she reported it to the receptionist. A search was undertaken and the money was found, crumpled up in or near a changing table in the lavatory.
5. It is not necessary to say much about the disputes of fact between the Crown and the defence in view of the narrow issue of law that comes before the court today. In short, however, the complainant said that her purse containing the money in question had been left by her in the baby changing bag, slung over the handles of the child's buggy, in the appellant's consulting room when the complainant went briefly to the lavatory, with the changing facilities we have mentioned, in order to change the child's nappy and to make available a stool sample that the appellant wanted for analysis. The complainant said that on her return to the consulting room she found her purse open in the changing bag. On leaving, she found the money missing and reported the loss to the receptionist and stated her the suspicion that the appellant had taken the money. A search of the changing area in the surgery lavatory led to the money (all in notes) being found by the receptionist, while in the company of the appellant, crumpled up in a corner near a hinge on the changing unit's surface. The complainant made a formal complaint and the matter was reported to the police. On the same evening, the appellant telephoned the complainant asking her not to pursue the matter with the police and denying she had taken the money. There was a dispute as to what was said in this conversation. According to the complainant, the appellant said things that would later prove to be untrue in an attempt to dissuade the complainant from taking the matter further. The appellant in contrast said that she had merely telephoned to ask why a complaint had been made when she had done nothing at all wrong. As to the incident itself, the appellant maintained in evidence that Ms Wissenden had taken the changing bag (and by implication, the purse) with her to the bathroom when she went to change the baby; thus, there could have been no opportunity for the appellant to take the money.
6. It is clear that on these disputed facts the jury accepted the complainant's account of the incident and disbelieved the appellant.
7. The sole issue on the appeal relates to the question of the appellant's previous character and its handling at the trial. It seems that at a late stage in the week before the trial it came to light that on 17 December 2011 an incident had occurred at a shop in Kilmarnock in Scotland which had led to the appellant being charged with an offence of shoplifting. The items involved were six lipsticks and two packets of sweets for which the appellant had not paid when she had nonetheless paid for other items acquired at the store. When cautioned and charged the appellant was said to have replied, "I would never do anything like that and I forgot that they were in my bag". The matter was reported to the Procurator Fiscal who wrote to the appellant on 28 January 2012.
8. The terms of that letter should be set out in full:

"You have been reported to me for allegedly committing the following offence(s): -

(1) Theft by shoplifting on 17 December 2011 at Tesco, West Shaw Street, Kilmarnock in that you did steal a quantity of cosmetics and confectionary.

Consideration of this report shows that the evidence is sufficient in law to justify my bringing you before the Court.

I have decided, however, in all the circumstances of the present case, not to bring proceedings.

You should note that if a similar report against you is submitted to me in the future, and there is sufficient evidence in law to justify my bringing you before the Court, you may well be prosecuted.

If you accept this warning or if you are deemed to have accepted it, I shall not prosecute you for the above offence(s).

The warning is not a conviction and shall not be recorded as one. Any alleged victim may be entitled to be notified of the disposal of the case against you.

Information about this warning will however be recorded on the Scottish Criminal History System (SCHS) and will remain on the system for two years. This will be used to help inform future police or prosecution decisions if you offend again and it will be disclosable under 'enhanced disclosure' in terms of Part V of the Police Act 1997 during this time.

If you wish to challenge this warning and wish to be tried in a criminal court for the above offence(s), you may refuse this warning."

The letter proceeded to summarise the evidence in these terms:

"Description of locus

The locus of this offence is Tesco Store, West Shaw Street, Kilmarnock.

Description of event

On 17^th December 2011 the witnesses Millar, Allen and Goodman were working at the locus in their capacity of Loss Prevention Officer, Security Manager and Security Guard.

About 1930 hours on the same date the witnesses Millar and Goodman, who were within the rear security room monitoring the stores CCTV, became aware of the accused at the make-up aisle. The accused was with a child who was within a shopping trolley. They observed the accused pick up various cosmetics and place the cosmetics within her bag in the trolley and zipped her bag back up. The accused then selected two boxes of Veet wax strips and transferred the wax strips from one box into the other and discarded the empty box and placed the other box within her trolley. The accused then continued to walk around the store and allowed her child to eat a box of Maltesers and then discard the empty box. She then took a packet of fruit flakes sweets off the shelf and fed them to her child as she made her way around the store.

The accused then made her way to the pay point and paid for various items that were within her trolley. She did not make any attempt to pay for the cosmetics that were within her handbag or the Maltesers or the packet of sweets. The accused then left the store.

The witness Goodman then stopped the accused outside and identified himself as Tesco Security and asked the accused to return to the store as he suspected her to have items on her person that she had not paid for. The accused then returned into the search room of the store where the witness Goodman and Allen informed the accused that they suspected her to have left the store with items she had not paid for and asked for the accused to produce them. The accused shook her head.

The witnesses Goodman and Allen checked the accused's receipt against the shopping she had in her trolley and everything matched. The witness Allen asked the accused to empty her bag. The accused emptied her bag and within were six Max Factor lipsticks from the store. The witnesses asked if she could explain and the accused stated that she forgot they were in her bag. The witness Millar then contacted the police.

About 2050 hours on the same date police witnesses Low and Kilpatrick attended at locus and viewed the CCTV footage of the aforementioned. Police witness Kilpatrick, in the presence of police witness Low, thereafter cautioned and charged the accused and noted the accused's reply to the charge. The accused was informed a report would be sent to the Procurator Fiscal.

Police witnesses Low and Kilpatrick obtained statements from the witnesses and seized the CCTV as a production and label in lieu's were signed for the stolen goods.

Medical evidence

No details provided.

Interview

No details provided.

Caution and charge/reply

The accused was cautioned and charged with the offences libelled by police witness Kilpatrick in the presence of police witness Low. The accused replied, "I would never do anything like that and I forgot that they were in my bag"."

9. When this material became available shortly before the trial in this case the Crown gave notice of an application to have evidence of the warning admitted as bad character evidence, pursuant to CJA 2003. However, Mr Forsyth for the Crown had decided not to pursue any application to have the material admitted in the Crown case, as bad character evidence of propensity to commit such offence. At the close of the prosecution evidence, both counsel sought to clarify with the judge the effect of the warning on the question of the appellant's character to go before the jury, before the appellant was called to give evidence.
10. The precise status of the warning in Scottish law was unclear. In discussions between the judge and counsel (a transcript of which we have seen) it seems initially to have been assumed that the warning was likely to have the same status as a caution in English law, requiring as a pre-condition that the suspected person admits the offence. In the course of the exchanges between the judge and counsel, it was made clear that the Crown did not intend to seek to adduce evidence of the warning and the underlying events, unless the appellant were to seek to establish her good character beyond the mere fact of her status as a practising doctor of medicine. Counsel then appearing for the appellant also said to the judge (no doubt on instructions) that the appellant "never received any notice" of the warning. However, the underlying facts of the incident, which we have set out above, did not appear to be disputed.
11. In an exchange on the same subject the following day, the judge gave his view as to the position with regard to how character should be dealt with in the summing-up. The judge said this:

"JUDGE O'MAHONY: for what it is worth, gentlemen, my reflection on the Scottish problem is that should there be any question of good character and good character direction there would have to be at the same time disclosure of the matter in Scotland, Tesco, however it is done, because on the simple principle that the jury… (sound change)

MR FORSYTH: Yes.

JUDGE O'MAHONEY: If nothing is said about it and there is no claim as to good character then nothing will be said and the jury will treat the defendant as a Doctor, not hearing anything more about her character, but if there is any request for a good character direction it would have to be balanced by disclosure of that matter, whether or not she got the letter informing her about her right to dispense with the fiscal warning. That is my perception at the moment.

MR FORSYTH: I would not disagree with that.

MR BISHOP: Likewise, your Honour."

As can be seen, both counsel agreed with what the judge proposed. After the judge had said this, Mr Forsyth informed the judge of the result of enquiries that he had made of the Procurator Fiscal in Scotland. He informed the court as follows:

"MR FORSYTH: For what it is worth, your Honour, I managed to speak yesterday afternoon to a senior fiscal deputy, Katie McCall, in Ayshire. It appears that the situation was that police were called to the store, the accounts taken and the response to caution noted. Then she was notified that she would be informed by the Procurator Fiscal's office of how the matter was to proceed. On that understanding this letter we have seen was sent out. It was not sent recorded delivery. It was sent in the usual mail. The procedure up there is, as it says in the letter there is a deeming provision that if there is no response to the letter within 28 days the warning effectively takes effect. The way it was put to me, which is rather alien to our system, was that the burden effectively shifts to the suspect then to notify the Crown if they dispute what is set out.

JUDGE O'MAHONEY: I am grateful that someone has done the homework required. Unless certain developments occur it is not going to play any part."

The last remark by the judge was clearly intended to indicate further that the warning would fall out of account unless the appellant made positive assertions of good character.

12. The result was that there was no evidence placed before the jury as to the appellant's character, good or bad, and nothing was said about the appellant's character in the course of the summing-up.
13. The appellant was represented before us by different counsel (Mr Bains). He argued that the conviction is unsafe because (a) the judge failed to give a reasoned ruling as to the status of the PF warning as potential bad character evidence, in breach of section 110(1) of the 2003 Act, and (b) the appellant was deprived of the benefit of a "good character" direction in the judge's summing-up to which she would, in the normal course, have been entitled.
14. Mr Bains submitted that the judge and both counsel at trial were led into taking a false course by an absence of full understanding of the status of the Procurator Fiscal's warning in Scottish law. Thus, the appellant was unable to mount a case of good character which would otherwise have been open to her and which would have led to favourable directions from the judge. It was submitted in the written grounds that it would have been proper for the defence to apply for an adjournment of the trial, having regard to the novelty of the issue raised by the information that had come to light so late. The grounds of appeal were supported by an opinion of Leading Counsel in Scotland which confirmed that the warning did not constitute a conviction in Scottish law and that, notwithstanding such a warning, the appellant (in proceedings in Scotland) would be entitled to assert her good character in evidence and the prosecution would not be entitled to challenge that evidence on the basis of the warning that had been given to her.
15. In view of the criticism levelled against trial counsel, the Registrar sought and obtained from the appellant a waiver of privilege and the comments of trial counsel were received. That response informed the court that trial counsel considered that the judge had given his clear view that any attempt by the defence to adduce evidence of good character would lead to details of the Scottish matter being placed before the jury and that any character direction would include reference to the warning given. Counsel took the view that, having regard to the judge's expressed views on this matter, the continued reference to the appellant as "Doctor", as the jury knew she was, was itself sufficient evidence of good character which would hardly have been improved by a positive case being advanced by the appellant, which would then run the risk of being countered by the evidence of what had happened in Scotland.
16. In the circumstances, Mr Bains argued before us that the warning in this case was of no higher status in our law than that of a fixed penalty notice under s.2 of the Criminal Justice and Police Act 2001 in English law. Such notices do not amount to convictions and do not entail admissions of guilt of any offence. In Hamer [2011] 1 Cr App R 3, page 23 at 28 Thomas LJ (as he then was), giving the judgment of this court, said that such a notice is entirely irrelevant to the accused's entitlement to a good character direction. The court held that evidence of the accused having been given such a notice should not have been admitted before the jury as evidence of bad character, as it had been not on the Crown's application but on the trial judge's insistence. In the circumstances, however, having regard to the terms in which the trial judge directed the jury as to the accused's character, it was held that his conviction was not unsafe and his appeal was dismissed.
17. In the present case, Mr Bains submitted that the warning in the present case was of the same status as the fixed penalty notice considered in the Hamer case. The judge's preliminary indications as to his view of the consequences of a positive case of good character being made by the defence, it is argued, must have deterred such a case being made and prevented the giving of a normal good character direction.
18. In our judgment, it is perhaps unfortunate that the precise status of the warning by the Procurator Fiscal was not ascertained at an earlier stage and that the position was not clearly understood by the parties and the court at the outset of the trial. In future, when such warnings have to be considered, we would hope that the Crown would supply full information on the subject to the court in the pre-trial processes. However, that said, we did not consider that what occurred in this case rendered the appellant's conviction unsafe. Whether the giving of the warning entailed an admission of guilt by the appellant or not, it must have been correct that any attempt on the appellant's behalf to make out a case of positive good character would have risked a successful application by the Crown to cross-examine the appellant upon the admitted background facts of the incident in Scotland, as they were recited in the warning letter. Counsel for the appellant at the time understandably decided not to run that risk, since the jury knew that the appellant was a practising medical practitioner and would have been likely to assume that she was of good standing. The judge had indicated in the exchanges that he did not regard that fact as having meant "putting her character in": see page 4F-G of the transcript for 7 May 2014.
19. Therefore, the matter was left alone by both counsel in the course of the defence case. No application was made to the judge at the close of evidence that he should give the jury a conventional "good character" direction. Nor could such an application sensibly have been made. The position was that there was no evidence before the jury as to the appellant's character at all, for good reason, and, in the light of the way in which the matter had proceeded, it would have been impossible to contend that such a direction should be given. The judge would have been fully entitled to decline to give such a direction as a matter of his discretion, given that both sides had sought to exclude the question of character as a whole from the jury's consideration.
20. In the circumstances, we did not consider that the judge erred in proceeding as he did. The question of the appellant's character was dealt with by mutual accord and the appellant avoided the risk of an application being made by the Crown to have the adverse material admitted in evidence. That point apart, the Crown case against the appellant on the facts of the present case was a strong one, even without the potential deployment of extraneous bad character material. We took the view, therefore, that the conviction is safe and that the appeal, properly arguable as it was and for which we had given leave accordingly, should be dismissed.