England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		21 March 2018

1. PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 25th August 2017 in the Crown Court at Harrow before Miss Recorder Lynsey Rose and a jury, this appellant was convicted of five counts of fraud, contrary to section 1 of the Fraud Act 2006. He was subsequently sentenced on each count to a term of 20 months' imprisonment suspended for 2 years and ordered to take 200 hours of unpaid work. An order for compensation was made in the sum of £7,000 together with a requirement that the victim surcharge be paid. On the direction of the learned Recorder the jury acquitted of a sixth count of fraud, which was count 4 on the indictment.
2. He now appeals against conviction by leave of the single judge.
3. The facts, so far as they are relevant for the purposes of this appeal, can be summarised very briefly. The appellant was employed for 7 months during 2015 as an associate manager at The Gap store in Wembley. One of his duties was to "cash up" along with another member of staff at the end of each working day. This involved balancing each till, placing the cash into an appropriate money bag, sealing the bags at the till counter and then placing them into the manager's safe. This procedure was filmed on the CCTV within the store.
4. The prosecution case was that the appellant was guilty of fraud. On each relevant occasion alleged in the indictment it was contended that he had dishonestly misrepresented the amount on the till receipt, that he had not sealed the cash bag at the till as required in the presence of his co-worker and that he had disappeared from the view of the CCTV cameras to remove cash from the bag before depositing the reminder in the safe.
5. The defence case was that he had not been dishonest at all. He had not falsified the till receipts nor had he taken cash from the bags before depositing them in the safe. On each occasion he sealed the cash bags at the counter as required in the presence of his colleague and he submitted that the CCTV footage which the jury saw in fact showed him doing precisely that. On occasions when he disappeared from the view of the cameras he maintained that he either went to the toilet or to the staff room. The fact that money was missing on each occasion alleged in the indictment was either a coincidence or an error, committed by others involved in the cashing up procedure and the collecting of accounting of the money.
6. The issue for the jury therefore was whether they were sure that on each occasion alleged the appellant had dishonestly, intending to make gain for himself or another or to cause loss to another, abused his position of trust by failing to seal the cash bags properly and falsely representing that the full day's takings were contained in the bag being sent to the bank.
7. It is not necessary to outline in detail the evidence that was adduced before the jury, save to say that it consisted from the prosecution, of the loss prevention manager for Gap who produced the CCTV evidence, the senior sales associate at the branch and the group manager concerned with retail banking who produced other CCTV evidence in relation to what took place in those premises.
8. A police officer made it clear that no cash was found at the appellant's home and there was no evidence of his spending or depositing large unexplained amounts of money.
9. In interview, the appellant gave with account, consistent with the description of his defence to which we have referred, which he repeated in his evidence.
10. The circumstances of this appeal arise because of what happened at the conclusion of the trial. The judge gave a full and complete summary, both in relation to the law and the facts and no criticism whatsoever is advanced in connection with those directions.
11. The jury, who had paid close attention to the trial, as evidenced at least in part by the fact that they had submitted no fewer than 21 jury questions passed by one of their number a question to the jury at the conclusion of the summing-up. The question was: "May we have the CCTV footage please?" That was followed by a second note: "May we have the CCTV footage in the jury room? Not watch it again now. (Sorry for confusion)". The judge dealt with these notes at the conclusion of his summing-up. She said this:

"Ladies and gentlemen, that is all the evidence. And you must reach, if you can, a unanimous verdict. As you may know, the law allows me to, in certain circumstances, to accept a verdict which is not the verdict of you all. But those circumstances have not yet arisen. So, when you retire, I ask you to reach a verdict upon which each of you of you is agreed. Should however the time come when I accept a majority verdict I will call you back into court and give you a further direction.

You can take the exhibits with you, except the blue book. But I know you want to see that so I will pass that around that to you now because I received your note. Also, the CCTV, if you wish to see that, please send us a note and we can arrange for that to happen. If you wish to see the blue book again or any of the CCTV, obviously in relations to counts 1, 2, 3, 5 and 6, or the blue book, please write a note and we will make arrangements for that to be done.

Please elect one of your number to chair your discussions, to be the person who will return your verdict."

12. The Recorder then went on in these terms:

"I am going to ask you to retire now just to make a start. You are not expected - can I be clear - you are not expected to reach a verdict now. We have discussed that we will come back on Tuesday, where you will start again with your deliberations.

Also, so you know, we will stop at 4.30 today in the usual way. So, at 4.30, I will bring you back; you will stop your deliberations then and come back on Tuesday to continue. But please make a start now. Thank you."

13. There was then a discussion about setting up the CCTV in court should the jury wish to see it again. It was the view of the judge, correctly, that the footage had to be seen in court because the jury would not be entitled again to see the CCTV in relation to count 4. She went on in relation to which aspects of the CCTV they might wish to see:

"But if it is something that needs to be paused or the jury particularly wish to see - if the jury wish to write us a note to say they would rather clip 1 or clip 2 or whatever the dates more than once, then they can give us a note and we can make sure that happens. So, perhaps we swear the jury out now. And if there are any requests for the CCTV, I am sure the jury can give that to us and we can play it for them when they come back in."

14. Counsel agreed that that course would be sensible. It was then that the jury were sworn and retired to consider their verdict at 3.18 that afternoon.
15. The jury returned at 4.43. We are told, and we accept, that there was some delay in bringing them back into court because counsel were otherwise engaged in another court. Entirely conventionally the clerk of the court invited the defendant to stand and asked the foreman whether the jury had reached verdicts upon which they were all agreed. Perhaps surprisingly in the light of the direction that the learned judge had given the foreman of the jury said "yes" and then verdicts of guilty were returned in relation to each of the remaining five counts.
16. In this court Mr Brereton Horne argues that the learned Recorder should not have asked the jury to retire so late on a Friday afternoon, that is to say 3.18 pm, especially considering that they had the CCTV evidence to consider with five separate verdicts, bearing in mind that a long Bank Holiday weekend was about to commence. He relies on the decision in R v Birch (The Times, 27th March 1992), which the Court of Appeal said that in a serious case, especially one involving more than one defendant and a number of verdicts, it was undesirable that a jury should be sent out after 3.00 pm unless there were exceptional circumstances. That case is cited both in Archbold, Criminal Proceedings, Evidence & Practice at paragraph 4-501, which also refers to R v Hawkins 98 Cr App R(S) 228 and also Blackstone's Criminal Practice at paragraph D19.4.
17. These authorities however were decided at a different time in our criminal jurisprudence. Prior to an amendment to section 13 of the Juries Act 1974, effected by section 43 of the Criminal Justice and Public Order Act 1994, it was not possible for jurors to be separated once they had been sworn and had embarked upon a consideration of their verdict or verdicts. Thus, if a jury did not reach a verdict on the day on which they were asked to retire it was necessary that arrangements be made to keep them segregated and in seclusion in a hotel. Thus, it was very important that jurors were not asked to retire late in an afternoon, even more so late on a Friday afternoon, to say nothing of late in the Friday afternoon prior to a Bank Holiday weekend. However, the amendment to section 30 of the Juries Act was brought into force on 3rd February 1995, after which date it became lawful for jurors to separate while deliberating on their verdicts and save in the most exceptional circumstances, that is what now, very properly, occurs. Indeed, it is only in the most grave and unusual circumstances that arrangements are made to keep a jury segregated in a hotel overnight.
18. As a result, the constraints contained within the decisions to which we have referred no longer obtain. There is no pressure on jurors to return verdicts quickly or face seclusion away from friends and family in a hotel. The references to these authorities in both practitioner text books need to be updated accordingly. Furthermore, in the context of this case, it had been made abundantly clear to the jury that they were not expected to reach a verdict that afternoon. That instruction was repeated for purposes of clarity, as we have outlined. There was no pressure placed by the judge on the jury but equally, she was not telling them that they were prohibited from returning a verdict that afternoon; in short, they needed to take as long as they required.
19. As for the requirement to see the CCTV evidence, that was very much a matter for the jury when they retired to decide if they wished to review what they had seen during the course of trial on presumably more than one occasion. That one juror had asked if facilities could be made for them to see the CCTV does not mean that either they or even that juror would necessarily feel the requirement to do so. Indeed, the learned judge equally made that clear when directing the jury at the end, by saying, in their presence, that the jury would doubtless identify by way of a note, what they wished to see and that arrangements would then be made to play it to them.
20. Having retired to consider their verdict at the end of the week it is abundantly clear that the jury found the task rather more straightforward than had been anticipated as possible by the careful arrangements made by the court. That is not necessarily surprising. The jury had heard this case over a week. They had heard the witnesses given in-chief and be cross-examined. They had heard the defendant give evidence and be cross-examined. They had the benefit of speeches and a very clear summing-up. It was for the jury to decide how much time they needed to reach a verdict. The suggestion that they would have felt under pressure is, in our judgment, not established on any of the material that we have seen.
21. In the circumstances there is nothing unsafe about these verdicts and this appeal is dismissed.

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