England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Bradford Crown Court
HHJ Rose
T20137529

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/04/2016

Lord Justice Fulford

1. On 9 October 2015 at the Crown Court at Bradford the applicant was convicted of obtaining a pecuniary advantage by deception. He applies for leave to appeal against conviction, and the application has been referred to the Full Court by the Registrar for summary dismissal under section 20 of the Criminal Appeal Act 1968.
2. On 2 September 1999 the applicant applied for a position at the National Westminster Bank. When completing the application form, he dishonestly ticked a box on the form which indicated he had no unspent convictions. Having provided this information, he was made the offer of employment. If he had declared his unspent convictions, the Bank would have refused to offer him the position.
3. The applicants defence was that he had made the application via a recruitment agency, and he had been advised that he did not need to disclose spent convictions.
4. The central issue in the case was whether the applicant had been dishonest at the time of the application.
5. During their retirement, the jury sent the judge two notes. The first read:

Not sure that enough evidence has been provided to prove the defendant is dishonest as some evidence leads more to inference and speculation. How can you prove he knew the difference between spent and unspent?

6. The second read:

I'm not happy that the evidence I have is enough. I'm not happy to decide the accused's guilt based on my judgment of character.

7. The judge dealt with these notes as follows:

I am going to respond to these letters in this way. You've heard all the evidence that you are going to hear. There isn't any more evidence, and you must reach a decision based on the evidence that you have heard. I remind you, of course, that the burden of proving guilt rests on the prosecution, there is no burden on the defence, and the prosecution has to make you sure of guilt before you can convict. If you are less than sure, your verdict must be one of not guilty.

8. This direction was given in accordance with the submissions of the applicant's defence counsel in the discussions with the judge in open court before the direction was given to the jury.
9. It is submitted that the contents of the two notes are inconsistent with the unanimous verdict the jury returned some 30 minutes later. It is argued by counsel who drafted the original Grounds of Appeal (we note this was not Mr Kane Q.C., who appeared on this application) that some of the jurors had clearly taken the view that there was insufficient evidence of the applicant's guilt, and that no further evidence was called. In those circumstances, it is contended the verdict is unsafe. Additionally, by way of a proposed late amendment to the Grounds of Appeal formulated by Mr Kane, it is suggested that at least one juror appeared to have conflated the process of drawing legitimate inferences and impermissible speculation, and that the judge was obliged to give an additional direction setting out the difference between them.
10. These two arguments are without any credible foundation. The directions in law to the jury were entirely correct, and these notes simply reveal that at some stage in their deliberations one or more jurors were uncertain as to whether there was sufficient evidence. The judge reminded the jury they would not receive further evidence and that they must base their decision on the evidence in the case. Having received that direction, the jury returned a unanimous verdict. This demonstrates no more than a stage in the process of the jury's consideration of this case, when there was a clear element of uncertainty, and it does not arguably reveal an 'inconsistency' with the final verdict or some other event that renders this conviction unsafe.
11. Although, as set out above, it is argued the juror who wrote the first note appeared to equate drawing an inference with speculation, the point of the question was to highlight a suggested lack of evidence on the issue as to whether the applicant knew the distinction between spent and unspent convictions. This apparent dismissal of possible 'inferences' operated, therefore, entirely in the applicant's favour, and the judge clearly directed the jury that they needed to be sure, on the evidence, of his guilt. Although some judges would have clarified the distinction between inference and speculation (given the way they had seemingly been elided), in our view it is unarguable in these circumstances that this conviction was unsafe.
12. We refuse leave to amend the Grounds of Appeal on the basis, inter alia, that the proposed additional ground is without arguable merit, and the application for leave to appeal is dismissed under section 20 Criminal Appeal Act 1968.