England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL Friday, 4 May 2018

LORD JUSTICE SINGH:

1. These are two appeals against conviction brought with the permission of the single judge. In the case of Gavin Inns the single judge refused permission to appeal on the first ground. That ground has not been renewed before this court. We are grateful for the assistance of all counsel both for their written arguments and their oral submissions at this hearing. We heard initially from Mr Wainwright on behalf of Gavin Inns, although as will become apparent much of the appeal concerns complaints relating to the evidence at trial of the other appellant, Emma Inns. Those submissions were adopted by Mr Witcher on behalf of Emma Inns. We are also grateful to Ms Guest who has assisted us with submissions on behalf of the Crown.
2. On 12 December 2016 at the Crown Court at Canterbury, Gavin Inns was convicted unanimously of two counts of false accounting (counts 2 and 3 on the indictment) and one count of perverting the course of public justice (count 6 on the indictment). The other appellant, Emma Inns was convicted unanimously of three counts of false accounting (counts 1, 2 and 3), one count of cheating the public revenue (count 4) and one count of being knowingly concerned in the fraudulent evasion of VAT, contrary to section 72 of the Value Added Tax Act 1984 (the subject of count 5).
3. On 16 December 2016 they were sentenced as follows. Gavin Inns was sentenced to eight months' imprisonment on count 2 suspended for two years. On count 3 there was a sentence of 12 months' imprisonment suspended for two years. On count 6, which was consecutive to count 3, there was a sentence of six months' imprisonment suspended for two years. There was a requirement to abide by a curfew which was attached for a period of six months to that suspended sentence order. Emma Inns was sentenced to six months on count 1, 12 months on count 2 and 18 months on count 3, all of those sentences being concurrent. She was sentenced to 12 months on count 4 to be consecutive to count 5. On count 5 she was sentenced to 18 months. That made a total of 30 months' imprisonment. She was disqualified from acting as a director for a period of 10 years pursuant to section 2 of the Company Directors Disqualification Act 1986. Emma Inns was acquitted by the jury on count 7 which had concerned being knowingly concerned in the fraudulent payment of tax credits.
4. The facts of the case can be summarised as follows for present purposes. The appellants are a married couple. Emma Inns' parents are Barry and Kathleen Graham. They are divorced and Kathleen is now known as Kathleen Lester and sometimes known in the case as "Lady" Lester.
5. The case, according to the prosecution, involved the falsification of a series of documents in order to obtain a large sum of money from building societies and from the tax payer. Emma Inns, said the prosecution, took the lead. Her husband Gavin Inns was jointly charged on counts 2 and 3 and was said to be responsible for wiping two computer hard drives which may have contained information relevant to the case. That was the subject of count 6 on the indictment.
6. At the trial there was no dispute that a series of frauds had been committed and that the appellants had benefited. The appellants, who were both of previous good character, argued that at the time of their involvement they honestly believed that anything they signed, contained or would contain honest and truthful information. Further, they identified Emma Inns' father and a woman called Eloise Fennel, who was said to be Emma Inns' God mother, as those responsible for having completed the various forms and false invoices. In relation to count 6, Gavin Inns admitted wiping the two laptops but said that he did so for innocent reasons, probably because they had a virus.
7. At the trial Barry Graham gave evidence that at the time he was estranged from his former wife and said that his daughter had cheated him of a tax refund in excess of £7,000 from HMRC. He denied involvement in any of the applications and said that he had never met or heard of an Eloise Fennel or a company called Pencobben Fennel which featured in a number of the counts.
8. In relation to Eloise Fennel enquiries had proved fruitless, according to the prosecution. There was no trace of her. She had never voted, never paid any taxes and there was no record of her existence or business activities with the authorities. Indeed the only match for an "Eloise" was found to be an image of the appellant's dog which Gavin Inns accepted was called Eloise. In any event, it was the prosecution case that Eloise Fennel was a fictitious character.
9. We turn briefly, as necessary, to the facts underlying each of the counts on the indictment. Counts 1 to 3 involved mortgage frauds committed in 2005 in respect of two separate properties. The appellants and Mrs Lester made applications in which grossly inflated income details were provided for the appellants. Each application was signed by the appellants and Mrs Lester. Counts 1 and 2 concerned a property in Newquay, Cornwall, 62 Pentire Avenue, whereby applications were made for a remortgage (£250,000) and additional lending (£200,000). Count 3 covered an application for £500,000 on a property in Truro at 7 Madeira Walk called "Sealap". This application was made during the currency of the mortgage pertaining to the Newquay address and included reference to a company, Pencobben Fennel, said to be the appellants' accountant. Moreover it also included a handwritten note "I am an accountant" and a statement which read that there were no other outstanding mortgages. According to the prosecution, Pencobben Fennel was run by the appellants, a fact accepted by Emma Inns. However there was also a suggestion that it was run by Eloise Fennel and her husband Pencobben. It was not disputed at the trial that the offending amounted to false accounting. It was contended by Emma Inns that her father had given her blank forms to sign which she had then posted back to him in an envelope which he had provided. She identified her father and Eloise Fennel as having been responsible for arranging everything.
10. We turn briefly to count 4. Between 2005 and 2012 whilst Gavin Inns was employed with Cornwall County Council, Emma Inns submitted false income tax self-assessment forms (and false invoices) on his behalf. Declared self-employment losses of his were set against the PAYE tax he had paid in his employment. The amount cheated was a sum in excess of £18,000.
11. We turn to count 5. Pencobben Fennel was registered by Emma Inns for VAT purposes in 2008. By 2013 it had secured repayments to the tune of £77,000. During the relevant period Emma submitted VAT returns which contained false information. False invoices were provided in support. The repayments were paid into the business account of Pencobben Fennel of which Emma Inns was the sole signatory and shortly after transferred out into accounts controlled by her.
12. Finally we turn to the allegation under count 6. On 4 February 2013 a Peta Andrew, who was a VAT officer, paid Emma Inns a visit. Up to that date Pencobben Fennel had made no VAT payments. The officer asked to see a number of documents but none were supplied on the day of the visit. On 7 February 2013 Emma Inns supplied Peta Andrew with the requested documentation but it was accepted that this included falsified invoices.
13. On the weekend of 22 to 25 February 2013, Gavin Inns was witnessed by a colleague Gemma Snell taking from work a dongle which was an Encase software licensing key, which supported the use of Encase, and a tableau writer-blocker. At the relevant time Gavin Inns' role at Cornwall County Council involved the examination of computers on behalf of the police to check to see whether they contained indecent images. He was conversant with the system known as "Encase" which was a tool used to detect and locate material which a user might think had been successfully deleted from their computer or device and he was trained to "Encase Advanced Level". He had expertise to wipe data from a computer and then to check whether any traces of the data remained.
14. Ms Snell's agreed evidence at the trial was that she had asked Gavin Inns which computer he would be using that had Encase installed upon it and that Gavin Inns did not answer that question directly. In his evidence Gavin Inns said that it was pure coincidence that the two Dell computers seized from his home address had been wiped on 24/25 February 2013.
15. We turn to summarise the grounds of appeal which are advanced. On behalf of Gavin Inns, Mr Wainwright advances the following grounds of appeal by reference to their original numbering.

Ground 2

16. It is submitted that the Recorder misdirected the jury as to the elements of the offence alleged under count 6 and/or the requisite standard of proof which applied. The jury were directed in the relevant part of the summing-up, which is at page 7D:

"If you are sure that one or both laptop hard drives might have contained material relevant to this investigation and that Gavin Inns wiped those hard drives with the intention of perverting the course of public justice by frustrating this investigation your verdict is guilty. If not sure your verdict is not guilty."

It is submitted by Mr Wainwright that the correct direction should have been along these lines:

"If you are sure that one or both laptops were used in the course of the fraud and therefore the hard drives might have contained material relevant to this investigation..."

It is submitted the manner in which the jury were directed not only erred in relation to the elements of the offence charged but also watered down or confused the direction which had been given in the usual way as to the standard of proof.

17. We do not accept those submissions by Mr Wainwright. We are of the view that the judge's direction cannot be faulted. He correctly summarised the two requisite elements of the offence under count 6. The mental element was correctly directed upon, being the intention to pervert the course of public justice by frustrating the investigations. So far as the actus reus is concerned, in our view it was sufficient to direct the jury that Gavin Inns wiped the hard drives in circumstances where one or both laptop hard drives might have contained material relevant to the investigation. We bear in mind that it will often be the case that in a criminal investigation, almost by definition, what exactly the investigation will find by way of evidence will not yet be known. We certainly reject the submission made by Mr Wainwright that it has to be known that the devices were in fact used in the course of the fraud before the offence of perverting the course of justice can be established. That would be, as it were, to put the cart before the horse.
18. Furthermore, we accept the submission made on behalf of the Crown by Ms Guest that one of the things which would have been of potential importance to the investigating authorities was not just the presence of material but the absence of material. For example, if it could have been shown that the hard drives did not have references to the woman alleged to exist called Eloise Fennel or to Pencobben Fennel, then that would have been relevant to the investigations. By deleting that data Gavin Inns prevented the prosecution and the investigating authorities from pursuing this aspect of the case. Accordingly, we reject that ground of appeal.

Ground 3

19. Mr Wainwright's other ground, numbered 3 in the original grounds, in substance is the same as the main ground of appeal also advanced by Emma Inns. Both Mr Wainwright and Mr Witcher submit that there was such extensive judicial intervention in the course of the giving of Emma Inns' evidence in chief that there was an unfair trial. It is submitted that the Recorder asked approximately 197 questions during the course of two-and-a-half hours. We have seen the entirety of the transcript. Counsel submit that that numbering does not in fact include questions which the jury themselves had posed - a topic to which we shall return - or questions which were asked simply to clear up ambiguities in the evidence, for example by way of clarification or amplification of an answer which has already been given. It is fairly and correctly accepted on behalf of the appellants that there is nothing wrong in principle with that sort of question.
20. Four specific topics are referred to in the grounds of appeal, set out in writing by Mr Wainwright, which he has helpfully developed during the course of this hearing. The complaints made on behalf of the appellants are not confined to those four main topics but nevertheless they are put before this court in order to highlight what might be said to be the most egregious examples of the impermissible interventions of which complaint is made.
21. In the light of those interventions it is submitted that the jury can only have formed one view of the Recorder's own opinion of the defendant's case. It is further submitted that although the standard direction was given in the summing-up at page 9G about disregarding what the jury might perceive to be the judge's own view of the facts, it is submitted that was too little too late. Further, it is submitted that although the interventions occurred during the course of the evidence of Emma Inns, the impact on both appellants' cases would have been profound. Mr Wainwright submits that Gavin Inns' defence on counts 2 and 3 essentially hinged on his wife's account as to how the mortgage application forms had come to be completed and further that a conviction on count 6 was contingent upon his wife being convicted of counts 4 and 5. Accordingly, it is submitted that if Emma Inns' convictions are unsafe, then Gavin Inns' convictions must also be quashed.
22. On behalf of Emma Inns, Mr Witcher advances three grounds of appeal. First, he complains that the refusal by the judge to grant the defence an adjournment was Wednesbury unreasonable. Secondly, he complains that there was a specific line of questioning which emanated from the judge which invited comparison by the jury impermissibly between handwriting samples. Thirdly, the main ground of appeal in Emma Inns' case, as in Gavin Inns' case, is that the extent of judicial intervention during her evidence in chief renders her convictions unsafe also.
23. We turn to each of those grounds in turn. We reject the submission by Mr Witcher that there was anything unfair about the refusal to adjourn the trial. This was preeminently a matter which fell within the trial judge's discretion. He had valid reasons for not adjourning the trial. As the Respondent's Notice points out, there was no guarantee that Mrs Lester would be any better at an adjourned hearing as she was being treated for cancer. In our view, the Recorder acted appropriately offering, as he did, special measures to assist her. Certainly no lack of safety of the conviction has resulted from his refusal to adjourn since in fact Mrs Lester was indeed able to give evidence. Accordingly we reject that ground of appeal.
24. We turn to the ground advanced by Mr Witcher in relation to the handwriting evidence. Emma Inns gave evidence as to who had completed and/or signed relevant documents. It was part of her defence that her father had completed some documents. It was permissible to question that evidence, including questions asked along the lines of "who do you think wrote this?" by reference to the handwriting, as well as to the content of the document and to the witness's recollection. We see force in the argument that the Recorder went beyond what was permissible in inviting the witness to analyse and compare the handwriting used on different occasions. We have also been reminded by Mr Witcher at the hearing that in fact the topic of handwriting analysis had been discussed and agreed by the parties. The Recorder had, we are told, been informed at the outset of the trial that there would not, for example, be a handwriting expert. However, in the end, we are sure that these convictions are not unsafe for this reason. Fortunately counsel reflected on the point overnight. Mr Witcher raised his concerns, we understand in an email. Indeed the Recorder was invited to and gave a direction during the evidence to the effect that the jury should not try to make handwriting comparisons and should ignore the line of questioning which the Recorder had engaged in towards the end of Emma Inns' evidence-in-chief. We note also that that direction was repeated in the Recorder's summing-up. For those reasons we reject that ground of appeal also.
25. We turn therefore to the main ground of appeal which arises in both appeals, which concerns the extent of judicial intervention during the course of Emma Inns' evidence-in-chief.
26. It is unnecessary for present purposes to set out the material passages in detail. As we have already mentioned, we have read the entirety of the transcript of the evidence-in-chief. The particular topics to which our attention has been drawn include the following. First, there is a passage from page 14B which concerns the tax returns. The Recorder asked a number of questions in relation to that topic, going up to page 17B. It is submitted that the Recorder in effect entered the arena, not least by raising new topics for questioning, he was not simply eliciting clarification or amplification of evidence that had already been given in chief.
27. When Mr Witcher, trial counsel for Emma Inns, was about to leave this topic, we see from the transcript at page 17G and following that the Recorder in fact persisted in remaining with that topic. He asked Emma Inns a number of questions about a meeting which had taken place with HMRC. It is submitted on behalf of both appellants that this amounted to more than simply clarification or amplification of her evidence-in-chief, but included elements of cross-examination. For example, a letter was referred to at page 18F to which apparently reference had not previously been made but in any event the document was in effect the subject of the sort of cross-examination which an advocate might engage in, so it is submitted.
28. The next main topic of which complaint is made begins at page 28B, although to put it into context one has to see what Mr Witcher had been asking just before in eliciting Emma Inns' evidence-in-chief at page 27G to page 28A. This related to the forms and their signatures. The Recorder then asked a series of questions about this, beginning at page 28B. There was then a note received from the jury at page 29C. However the Recorder did not immediately deal with that note. He said at 29D: "I will wait until we get to that point."
29. Criticism is made on behalf of the appellants of the questions which were asked by the Recorder at page 28 and page 29. In effect it is said to amount to cross-examination. For example, the question was asked of the witness: "Was everyone happy signing a blank form?" And over the page at page 29A: "But your mother and your husband were happy signing a blank form?" It is submitted that whether as a matter of form these were sometimes open questions or sometimes leading questions, they were in substance tantamout to entering the arena and cross-examining the witness.
30. The Recorder then asked a whole series of questions from page 30E to page 33F. During the course of those questions at page 32C he referred to the content of the jury note which he had mentioned at page 29 but which he had never yet, up to this point, read out. The question on the note related to how Emma Inns' father would know about Gavin Inns' National Insurance number. That was the question posed by the judge to Emma Inns at 32C. The more general point lying behind such questions was, it is said, that the jury were in effect being invited to regard as incredible the defence suggestion that these two intelligent people would have been content to sign bank forms and leave Emma Inns' father to fill them in. Furthermore, the implication was effectively being made, it is said, by the judge that if her father did not know such details as Gavin Inns' National Insurance number, how could this account be plausible because he would not have known what details to fill in.
31. The next main topic of complaint appears in the transcript at pages 47H to 53. It is submitted first of all that that length of time taken up in the transcript alone demonstrates that this judge was intervening in the arena in an impermissible way. It is further submitted that whenever counsel Mr Witcher tried to regain control, as it is put, of the evidence-in-chief, the Recorder would allow him to ask a few questions and then resume the questioning himself. Further complaint is made of the questions asked by the Recorder, in particular at page 61D to 62D and page 75D relating to the VAT fraud and Eloise Fennel up to page 76E. It is unnecessary for present purposes to rehearse the details. The flavour of the complaint and the flavour of the questions which the judge was asking we trust is now clear.
32. Before we turn to the fundamental submission which is made in these appeals on the facts of this case, we would wish to set out some fundamentals which we take to be uncontroversial.
33. First, the tribunal of fact in a criminal trial in the Crown Court is the jury and no one else.
34. Secondly, ours is an adversarial system, not an inquisitorial one. The role of the judge is therefore to act as a neutral umpire, to ensure a fair trial between the prosecution and the defence. The judge should not enter the arena so as to appear to be taking sides. These are well established principles of our law. If authority is needed for them, it is to be found in the two decisions of this court which have been placed before us: Hamilton, an unreported judgment of 9 June 1969 and Gunning (1994) 98 Cr.App.R 303.
35. Thirdly, there is nothing wrong in principle with a trial judge asking questions of witnesses in order to assist the jury. That indeed is one of the fundamental functions of the trial judge. For example, this may be done to clarify a point that may arise on the face of a document or in an immediate response to an answer that has just been given by a witness. Otherwise, it may often be preferable for the judge to wait until the end of the evidence given by that witness, or at least the end of the evidence-in-chief. Often things that are not clear may become clearer once the evidence-in-chief has been completed.
36. Fourthly, since ours is an adversarial system it is for the prosecution to prove its case and it will have the opportunity to cross-examine the defendant if he or she chooses to give evidence. It will often be unnecessary for the judge to ask any questions during the defendant's evidence-in-chief because it should be for the prosecution to cross-examine the defendant. It is certainly not the role of the judge to cross-examine the defendant.
37. Fifthly, it is particularly important that the defendant should have the opportunity to give his or her account to the jury in the way that he or she would like that evidence to come out, elicited through questions from their own advocate. If there were constant interruptions of the evidence-in-chief there is a risk that a defendant will not be able to give his or her account fully and in the manner they would wish to put before the jury.
38. Sixthly, this is not affected by the fact that the defence account may appear to be implausible or even fanciful. If it is truly incredible, the prosecution can reasonably be expected to expose its deficiencies in cross-examination and the jury will see through it. If anything, unwarranted interventions by a judge may simply prove to be counterproductive.
39. We turn more specifically to one of the features which has been observed about this particular trial. Both in the experience of the advocates and the members of this court, there seem to have been a very large number of jury notes. We have counted 12 jury notes and some contained more than one question. There were, it seems, 16 questions posed during the course of the evidence-in-chief of Emma Inns. All the advocates in this case have informed us that it may be helpful, without laying down any rules, if this court were to give some guidance as to how jury notes should be handled in this sort of context.
40. The fact that ours is an adversarial and not an inquisitorial system also has implications for the way in which jury notes are handled during the course of the evidence of a witness, in particular the evidence of a defendant. We would stress that the trial judge is best placed to deal with jury notes, especially as they will often have to make quick decisions in the cut and thrust of the questioning of a witness, and will be more familiar than this court can be with the entirety of the evidence.
41. However a jury note should normally be shown to counsel so that they can decide, and often will decide by agreement, how best to address the question from the jury. It may be that it can be dealt with straight away by allowing counsel to put the question to the witness or it may be better dealt with at the end of a particular witness's evidence. There may be other ways of dealing with the question, for example by way of an agreed fact between the parties or by way of an answer which is to be given by the judge. Finally, it may sometimes be necessary to discuss the question in the absence of the jury because a matter of law arises. What would be undesirable is if a constant flow of questions from the jury interrupts the flow of the evidence in such a way, in particular if it prevents a defendant from giving his or her account in a complete and fair way.
42. The final topic to which we ought to make brief reference is the connection between the right to a fair trial and the safety of convictions. There has been no suggestion before this court that there is any material distinction between the right to a fair trial at common law and the right to a fair trial in Article 6(1) of the European Convention on Human Rights, which is one of the Convention rights set out in Schedule 1 to the Human Rights Act 1998.
43. It is clear from the authorities that if there is an unfair trial in breach of Article 6, then the resulting conviction cannot be regarded as safe - see for example R v Forbes [2001] 1 AC 473 at paragraph 24 in the speech of Lord Bingham of Cornhill given on behalf of the whole Appellate Committee. Furthermore, it is of some interest to observe that when a case about judicial intervention in the giving of evidence went to the European Court of Human Rights, that court took a similar view and endorsed the practice of the courts of this country in this regard -- see CG v United Kingdom [2002] 34 EHRR 31 at paragraph 35 to 42, in particular at paragraph 35 where the Court said:

"The central question raised is whether the nature and frequency of the trial judge's interventions, combined with the deficiencies found by the Court of Appeal in his summing-up, were such as to render the proceedings against the applicant unfair. The Court recalls that, in determining issues of fairness of proceedings for the purposes of Article 6 of the Convention, the Court must consider the proceedings as a whole, including the decision of the appellate court... "

The Court then went on to examine the facts of that particular case and noted that this court had found there to be "some substance" in the criticisms made of the conduct of the trial judge, but nevertheless had not felt the resulting conviction was unsafe. The Court said at paragraph 41:

" ... the Court attaches importance to the fact that the applicant's counsel was able to address the jury in a final speech which lasted for 45 minutes without interruption, apart from a brief intervention which was found to be justified, and that the substance of the applicant's defence was reiterated in the trial judge's summing-up, albeit in a very abbreviated form."

In those circumstances, as the court said at paragraph 42, it did not find that the judicial interventions in that case "although excessive and undesirable" had in fact rendered the trial proceedings as a whole unfair.

44. We turn to the facts of the present case. In our view, it was unfortunate that the judge intervened as much as he did during the evidence-in-chief of Emma Inns. However, we do not accept the suggestion that his tone was hostile or abrupt. To the contrary, having examined the transcript in full we consider that his tone was courteous and not hostile. Furthermore, we consider that his questions were usually framed as open questions and were designed to elicit or clarify the evidence that was being given at the time as it was being dealt with topic by topic. We bear in mind that the trial judge had to deal in the heat of the moment with a large number of questions from the jury that came during the course of the evidence-in-chief of Emma Inns. It is not surprising, perhaps, that he felt that he should sometimes follow-up the questions in order to assist the jury. We also note that no submission was made at the time, or indeed at any stage during the trial, that the judge had intervened too much or that he should be asked to address the jury in any way to correct this. We have been informed at the oral hearing before us that Mr Wainwright had become so concerned about the degree of questioning which was taking place by the judge that he began to keep a log, numbering the number of interventions being made by the trial judge. Despite that, nothing was said by any counsel at the time or before the end of the trial. Rather, as it seems to us, all counsel appear to have been content at the trial to have the judge give the usual directions to the jury: for example, as to the respective functions of the judge and jury and in particular that the jury should ignore any opinion by the judge if he appeared to express one on the facts.
45. Finally, but very importantly, we have come to the firm conclusion that the summing-up was fair and balanced. It put the defendants' case fully and fairly before the jury for their consideration. No complaint has been made in the grounds of appeal before us that the summing-up itself was deficient, or not fair and balanced, save for the specific point about the direction of law giving the elements of the offence in count 6 which we have already rejected. Of course we bear in mind that the jury had the opportunity, as this court does not, of considering the evidence as a whole. In particular, the jury had the opportunity to see and hear the live evidence being given of not only these appellants in their own behalf, but also the evidence of prosecution witnesses, for example Emma Inns' father. They clearly believed, for example, Emma Inns' father. They clearly formed the conclusion that these appellants had told them a pack of lies in their evidence. As the authorities make clear, it is the overall fairness of a trial taken as a whole that is crucial. In the circumstances of this case, we have come to the conclusion that this was not an unfair trial and the resulting convictions are not unsafe. For those reasons these appeals are dismissed.

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