England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand. London. WC2A 2LL
		20 July 2007

Mr Justice Griffith Williams :

1. The Prosecution applied for consent to prefer a Voluntary Bill of Indictment, in accordance with the provisions of the Indictment (Procedure) Rules 1971 and the Practice Direction (Criminal Proceedings; Consolidation) para.IV.35 [2002] 1 WLR 2870. The application was made on notice to all four Respondents, each of whom was represented by counsel at the hearing. At the conclusion of the hearing, I gave consent to the preferment of the Bill of Indictment against the Defendants Danny McGuinness and Daniel Mark McGuinness only and said that the judgment would be handed down. This is the judgment of the Court.

Introduction

2. Danny McGuinness was involved in the day-two-day running of D.M. Security ["DMS"] together with Daniel Mark McGuinness, Mark Daniel McGuinness and Leslie Reed. He London Borough of Newham ["LBN"] has a statutory duty to remove abandoned vehicles from its streets. Additionally it has the authority of the DVLA to remove untaxed vehicles from its streets as well as a general power to remove vehicles which the owners chose to surrender. Officers of LBN authorise the removal of such vehicles but LBN uses a contractor to physically remove the vehicles to their "pound" in Folkestone Road. Once the relevant specified period has elapsed, the vehicles are removed from the pound and taken to a designated site where proper environmentally controlled destruction takes place. LBN employed as a main contractor, Drakes, who sub-contracted work to DMS who were approved by LBN for the work.
3. On 6 February 2006, police officers went to premises at 5c and 29 Peto Street occupied and used by DMS where they found vehicles which should have been destroyed as well as parts of vehicles which had otherwise been destroyed. Danny McGuinness and Daniel Mark McGuinness were arrested and interviewed under caution: the other Defendants were arrested later and interviewed also under caution. In due course they were all charged and their case is sent to the Crown Court at Snaresbrook in accordance with the provisions of section 51 of the Crime and Disorder Act 19981 where a Bill of Indictment was preferred. That indictment was in these terms:

"Count 1

STATEMENT OF OFFENCE

CONSPIRACY TO STEAL contrary to Section 1 (1) of the Criminal Law Act 1977.

PARTICULARS OF OFFENCE

DANNY McGuinness, MARK DANIEL MCGUINNESS, DANIEL MARK MCGUINNESS and LESLIE REED between the 1st Day of January 2005 and 6 day of February 2006 conspired together and with a person or with persons unknown to steal motor vehicles.

Count 2

STATEMENT OF OFFENCE

CONSPIRACY TO TRANSFER CRIMINAL PROPERTY OUTSIDE ENGLAND AND WALES contrary to Section 1(1) of the Criminal Law Act 1977.

PARTICULARS OF OFFENCE

DANNY MCGUINNESS, MARK, DANIEL MCGUINNESS and DANIEL MARK MCGUINNESS and LESLIE REED between the 1st day of January 2005 and the 6^th day of February 2006, conspired together and with a person or with persons unknown to remove from England and Wales criminal property namely stolen motor vehicles and motor vehicles components.

Count 3

STATEMENT OF OFFENCE

CONSPIRACY TO CONCEAL CRIMINAL PROPERTY contrary to Section 1(1) of the Criminal Law Act 1977.

PARTICULARS OF OFFENCE

DANNY MCGUINNESS, MARK DANIEL MCGUINNESS, DANIEL MARK MCGUINNESS and LESLIE REED between the 1^st day of January 2005 and 6^th day of February 2006 conspired together and with a person or with persons unknown to conceal criminal property namely stolen motor vehicles and motor vehicle components.

Count 4

STATEMENT OF OFFENCE

DOING ACTS TENDING AND INTENDED TO PERVERT THE COURSE OF JUSTICE contrary to Common Law.

PARTICULARS OF OFFENCE

DANNY MCGUINNESS and MARK DENIEL MCGUINNESS on 20^th day of March 2006 with intent to pervert the course of public justice, did an act which had a tendency to pervert the course of public justice in that they removed from the secure custody of the London Borough of Newham motor vehicles and parts of motor vehicles which they knew or believed to be evidence of value in an investigation into criminal offences they were alleged to have committed."

There was a Count 5 alleging against the Defendants, Danny McGuinness, Mark Daniel McGuinness and a 5^th Defendant Saladin Bacchus an offence of Converting Criminal Property contrary to section 327 (1) (c) of the Proceeds of Crime Act 2002 but the Prosecution subsequently elected not proceed on that count and so no further reference to it is necessary.

4. Each of the 4 Defendants served notice of application to dismiss the charges. Then applications were listed before His Honour Judge Birts QC on 2 March 2007. Each application in respect of each count contained a number of grounds but the applications, by agreement, were made only in respect of Counts 1, 2 and 3 on the single ground that the evidence relied upon by the Prosecution did not establish that the vehicles which were the subject-matter of each count, were "property belonging to another". Having heard the submissions, the learned judge acceded to the defendants' applications and ordered that Counts 1, 2 and 3 be dismissed. The applications to dismiss Count 4 were adjourned when the prosecution informed the learned judge that they intended to appeal his ruling in accordance with the provisions of section 58 of the Criminal Justice Act 2003.
5. When the prosecution applied for leave to appeal, the point was taken that the ruling of the learned judge was not "a ruling in relation to a trial on indictment" and so the prosecution applied instead for consent to Prefer a Voluntary Bill. The Voluntary Bill is in these terms:

Count 1

Statement of Offence

CONSPIRACY TO STEAL, contrary to Section 1 (1) of the Criminal Law Act 1977

Particulars of Offence

DANNY MCGUINNESS, DANIEL MARK GUINESS and LESLIE REED between the 1^st day of January 2005 and the 6th Day of February 2006 conspired together or with a person or with person unknown to steal motor vehicles.

Count 2

Statement of Offence

DOING ACTS TENDING AND INTENDED TO PERVERT THE COURSE OF JUSTICE contrary to Common Law.

Particulars of Offence

DANNY MCGUINNESS and MARK DANIEL MCGUINNESS on the 20th day of March 2006, with intent to pervert the course of public justice, did an act which had a tendency to pervert the course of public justice in that they removed from the secure custody of the London Borough of Newham motor vehicle and parts of motor vehicle which they knew or believed to be evidence of value in an investigation into offences they were alleged to have committed.

6. The Practice Direction (see paragraph 1 above) at IV.35.3 states: -

"The preferment of a voluntary bill is an exceptional procedure. Consent should only be granted where good reason to depart from the normal procedure is clearly shown and only where the interests of justice, rather than considerations of administrative convenience, require it".

On behalf of the 4 defendants, it was submitted that consent should be withheld because His Hon Judge Birts QC has ruled on the application to dismiss and there are no grounds for going behind (and so reversing) his decision in his Ruling dated 2 March 2007. Particular reliance was placed on the observations of Pitchers J in The Queen v. Christine Davenport & Ors [2005] EWHC 2828 (QB). That too was an application by the prosecution for consent to prefer a Voluntary Bill following the dismissal of charges. At paragraphs 21-23, Pitchers J said:

"21 No application for a Voluntary Bill is, in form, an appeal from a decision of another court. However, at least when a High Court Judge is considering an application following a refusal of justices to commit for trial, the decision of a lower court is being considered by a judge of a higher court. There may then be scope for taking a broader view of the circumstances in which it is right to effect to overturn the decision of the lower court. That is not this case and I express no further view on the point

22. That cannot be said where an application for a Voluntary Bill is made after dismissal of transferred charges. It happens that the decision in this case was taken by a Circuit Judge but it could quite well have been by another High Court judge. In those circumstances, it must, in my judgment be wrong in principle for the prosecution to be able to get round a decision that they do not like by inviting another judge to take a different view of the same material that was before the judge who dismissed the charges. In R v The Crown Court at Snaresbrook, ex parte the Director of the Serious Fraud Office supra, the Divisional Court pointed out that Bell J had refused to grant a Voluntary Bill.

"On the basis that the application was in effect an appeal from one single judge to another single judge whose judgment appeared to be clearly and carefully reasoned. He said it was not obviously wrong or unreasonable."

23. I make no attempt to list the circumstances in which it might in general be appropriate to invoke the exceptional procedure of applying a Voluntary Bill in transferred cases. That said, an obvious example would be if the judge had not had a crucial authority or statutory provision drawn to his attention. The context of this case is that the judge in dismissing the charges took the decision after detailed and careful argument and gave full and clearly reasoned judgments. In this case, apart from one point made about the judge's treatment of one area of evidence, the Crown do not really argue that he erred in law. "

To the obvious example given in paragraph 23, I would add, where the judge has clearly made a mistake of law - as I am satisfied, for reasons to be given later in this judgment that His Hon Judge Birts QC did. I am satisfied also that his decision is not supported by the evidence. In such circumstances, it is clearly in the interest of justice that the error is put right.

7. What then should the court's approach be to this application? The Practice Direction at IV.35.6 provides: -

"A judge to whom application for consent to the preferment of a Voluntary Bill is made will, of course, wish to consider carefully the documents submitted by the prosecutor and any written submissions timeously made by the prospective defendant, and may properly seek any necessary amplification. The judge may invite oral submissions from either party or exceed to a request for an opportunity to make such oral submissions, if the judge considers it necessary or desirable to receive such oral submissions in order to make a sound and fair decision on the application. Any such oral submission should be made on notice to the other party, who should be allowed to attend".

As I said earlier in the judgment, the Defendants had notice of the application and were represented by counsel. Additionally, they had notice of the written submissions in support of the application and skeleton arguments were served on behalf of each Defendant in opposition to the application. Clearly the appropriate way to proceed was to allow the prosecution to make its application and then to afford each Defendant the opportunity to oppose the application as if they were applying to dismiss the counts.

8. Schedule 3, Paragraph 2 (2) of the Crime and Disorder Act 1998 provides: -

"The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment preferred against the applicant) which is the subject of any such application if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted".

In R (on the application of the Inland Revenue Commissioners) v Crown Court at Kingston [2001] 4 All ER 721, an application to the Divisional Court for judicial revue of a judge's decision to dismiss charges following transfer in a serious fraud case, Stanley Burnton J giving the judgment of the Court, said: -

"On an application under s.6, it is not appropriate for the judge to view any evidence in isolation from its context and other evidence, any more than it is appropriate to derive a meaning from a single document or from a number of documents without regard to the remainder of the document or the other connected documents before the court. We reject the argument that the judge was bound to deal with the application under s 6 by assuming that a jury might make every possible inference capable of being drawn from a document against the defendant. Section 6 expressly provides that the judge will decide not only whether there is any evidence to go to a jury, but whether that evidence is sufficient for a jury properly to convict. That exercise requires the judge to assess the weight of the evidence. This is not to say that the judge is entitled to substitute himself for the jury. The question for him is not whether the defendant should be convicted on the evidence put forward by the prosecution, but the sufficiency of that evidence. Where the evidence is largely documentary, and the case depends on the inferences or conclusions to be drawn from it, the judge must assess the inferences or conclusions that the prosecution propose to ask the jury to draw from the documents, and decide whether it appears to him that the jury could properly draw those inferences and come to those conclusions."

A similar approach should be adopted when considering an application for consent to prefer a Voluntary Bill Indictment.

9. Before I turn to consider the application itself, I should mention one matter. On behalf of the Defendant, Mark Daniel McGuinness, Ms. Heer submitted that because the. prosecution had given undertakings in accordance with section 58 (8) & (9) of the Criminal Justice Act 2003, they should not be permitted to make this application because they effectively abandoned their application for leave to appeal to the Court of Appeal Criminal Division. The point was not taken on behalf of any other defendant, but if it had validity and merit, I would have refused the prosecution's application in respect of all defendants. However, although attractively made, on analysis the submission was without merit. The prosecution at no time gave notice of abandonment, rather it treated the application as ineffective. Furthermore, section 58 relates to proceedings on indictment which may only be concluded by verdict. If an application to dismiss succeeds, there is no right to an acquittal.

The Application

10. The prosecution case in respect of Count 1 is that the Defendants stole cars which should have been destroyed by diverting them either before they reached LBN's "pound" or the site where they were to be destroyed and taking parts from the vehicles or selling them onwards to persons who took them to Poland and Bulgaria. By agreement, the only matter which fell to be determined in respect of each Defendant was whether the prosecution had evidence to establish in respect of each car, allegedly stolen, that it belonged to LBN. Section 5 (1) and (3) of the Theft Act 1968 provides:

"(i) Property should be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).

.. .(3) where a person receives property from or an account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds should be regarded, (as against him), as belonging to the other."

Although the prosecution's primary case is that the vehicles remained the property of LBN once they were abandoned or not reclaimed, their fall-back position is that DMS was under an obligation to deal with the cars in only one way and that was to deliver them to be destroyed.

11. The evidence on which the prosecution rely is to be found principally in schedules, supported by evidence, of the vehicles alleged to have been diverted by the Defendants from destruction and resold in whole or in part by them, as well as in the statements of Nigel Mould, Kay Parsons and Trevor Kennett.

Nigel Mould, the Manager of LBN's Street Scene Enforcement Team manages LBN's operations with regard to the removal and abandoned and untaxed vehicles. In his witness statement, after describing the system, he stated: -

"All vehicles removed are brought to the Car Pound and Central Depot. The Car Pound is contracted to Drakes to run on behalf of the LBN. Drakes manage all operations within the Car Pound- utilising the Environmental data Base and further supporting data bases. Vehicles other than those removed under parking regulations may only remain in the Car Pound for a legislative maximum of fourteen days. On the fifteenth day they are authorised for removal and disposal. The DVLA authorises vehicles removed under their legislation on the same timescale. DM Security removed vehicles in the fifteenth day. These vehicles must be taken for de pollution and destruction at a fully licensed and approved site. These sites are licensed by the Environmental Agency. The vehicles must be totally destroyed and re cycled such that no identifying part remains. The LBN updates the Data Base to this effect, closing the vehicle record. A separate form is then sent to the DVLA confirming the vehicles destruction.

.. .Drakes and DM Securities provided monthly Invoices which detailed all vehicles dealt with. They list by date, vehicle index, manner of removal or disposal and record the unique Environmental Data Base Reference number. These invoices are checked and cross referenced against the various generated lists before being approved for payment. Drakes in their capacity of Car Pound management handle all cash and credit cards transactions in relation to vehicles restoration and fine payment. These are fully accounted and banked.

It is considered that the LBN, in the case of Abandoned Vehicles and the DVLA, in the case of Untaxed Vehicles, remain the owners from the moment of physical removal in the street to final destruction. Contractors are acting upon LBN or DVLA instructions and do not at any point take ownership of Vehicles.

The LBN is able to provide full and auditable case histories of all vehicles which have been processed through its systems."

Kay Parsons, a supervisor employed by Drakes Group Limited, in her witness statement, described the Environment Database which recorded all vehicles which had been abandoned, surrendered or were untaxed, and which had been brought to the Car Pound. A status box on the screen showed the current stage of all such vehicles. She stated: -

"The term surrendered relates to vehicles which are surrendered by the drivers to the council under a scheme, whereby the owner can surrender the vehicle free. Vehicle destroyed relates to the safe custody vehicles, and vehicles scrapped relates to DVLA removals e.g. untaxed vehicles removed from the street. Vehicle destroyed and vehicle scrapped means the same thing in that the vehicles should have been scrapped."

Trevor Kennnett, the unit head of the Crime and Anti-social Behaviour Unit of LBN stated: -

"I have been asked by the T/DC Robert MINGARD regarding the contracts that where issued to the persons that where authorised to collect and dispose of the vehicles, I can confirm that at that stage, the contracts for the vehicle removal/disposals were out to tenure and the operators were working out of contract. The company DM Securities managed by Danny McGuinness was aware of our operating procedures. The operating procedures are set out in an agreement between the DVLA and Newham Council. In this agreed procedure, it sets out what is to happen to a vehicle when the vehicle is authorised to be taken from the street, how long it shall be stored for before being either restored (after a fee consisting of the pound fee and road tax, refundable if the road tax is paid for within a certain time) sold at an auction (for vehicles over a certain price) or scrapped. The DVLA guidelines for a scrapped vehicle is a vehicle that, when authorised to be destroyed, is taken to an authorised "end of life" yard that will destroy the vehicle in an environmentally friendly way. This is by means of the yard draining all fluids from the vehicle before sending the vehicle through a crusher so that no parts of the vehicles are left. The vehicles are not given to the contractor so that they can sell on any parts from the vehicles or the whole vehicles themselves. The vehicles remain the property of the DVLA and Newham Council."

12. On behalf of the Defendants, it was submitted to His Hon Judge Birts QC and to me that that evidence does not establish that the cars were "property belonging to another". It was submitted that the evidence of Mr Mould as to ownership and the evidence of Mr Kennett that the vehicles remained the property of the DVLA and LBN amounted to no more than assertions. It was submitted that as there was no written contract, there was no evidence to establish that DMS were not authorised to sell or to cannibalise any vehicle. It was submitted that a legal obligation cannot be imputed for the purposes of the criminal law and must be strictly proved. The learned judge concluded his Ruling thus: -

"I have found this is a very difficult application to decide. The Theft Act provides a clear format for deciding whether property belongs to another, and I propose to follow it and it seems to me that looking at subsection (1), it cannot be demonstrated on the materials put before this court, taken at their highest, that the Council retained possession or control of these vehicles once the vehicles were taken on to the transporters by DMS and from then on to the pound and from then on to destruction. That may have been and, indeed, was the understanding of the witnesses, Mr Kent and Mr Mould, but the assertions which they make of the understanding of the Council are not the same as a contractual consensus between the Council and the defendants and in order to make a good criminal charge, such as theft, it seems to me that the control or possession relied on by the Crown should be demonstrated at this stage. To my mind it is not. So, I am against the Crown on section 5(1).

Turning to section 5 (3), which has not been the subject of a lot of argument, it seems to me that for the same reasons it cannot be shown, on the documents that I have seen, that the Council, although hoping and, indeed, requiring and believing that these vehicles were dealt with in a particular way by DMS, in fact, retained a proprietary interest in the vehicles. A proprietary interest could easily be retained by a simple document pointing out the obligations of the Council under European and domestic law, pointing out the good sense and business requirement for the Council to be satisfied and each and every vehicle assigned to the defendants have, in fact, been destroyed and setting up a system where the destruction was, in fact, evidenced and confirmed to the Council once it took place. None of that occurred.

It can be said that the defendants in acting as they did, behaved in a less than honourable way, if not something worse, that they breached the trust or understanding that development and existed between them and the Council, but that is not enough. What the authorities are clear about is that the obligation, which must exist in the arrangements between the relevant parties in a transaction of this kind, must be a clear legal obligation and not a moral one, or some kind of wishy-washy understanding.

I have reached the view at the end of the argument that it would be right to accede to the applications to dismiss in relation to Counts 1 to 3."

13. My conclusion is that the learned judge misdirected himself. It is not the law that an assertion of ownership is insufficient evidence of ownership. The witnesses describe clearly the course of dealings between DMS and LBN and the invoices support their evidence. The absence of a written contract is irrelevant. It is not the law that a legal obligation cannot be imputed for the purposes of the criminal law and must be strictly proved. The knowledge of the Defendants as to their contractual obligations can be inferred from the evidence of the course of dealings in the parties. An assertion in the course of submissions that the Defendants challenge assertions of ownership is irrelevant for present purposes. There is the evidence of Mr Kennett about the agreement between the DVLA and LBN (see above) -

"While the Defendants were not party to that agreement, the evidence is that they knew of its terms and so knew that vehicles could not be sold on."

14. During the course of submissions, Mr Mulholland and Mr Rollinson referred me to the Vehicle Excise Duty (Immobilisation, Removal and Disposal of Vehicles) Regulations 1997, submitting that they support their case that DMS were authorised to deal with the vehicles as they chose. Those regulations are not a part of the evidence and there is no evidence that the Defendants knew of their existence or their effect and so I ignore them - I observe, however, that on my reading of those regulations their provisions would seem to undermine the case being advanced for each Defendant - see paragraphs 2,9 & 10.
15. It is with regret that I have to disagree with the decision of His Honour Judge Birts QC but the witnesses to LBN's rights to the vehicle were not making "assertions of law" [Ruling, Transcript 14F and 19B]. These are assertions of fact which can be tested by cross-examination and/or by other evidence and they are sufficient to establish a case for the Defendants to answer.
16. Mr Mulholland and Mr Rollinson made no further submissions and abandoned the outstanding submissions in support of their respective applications to dismiss the original Counts 1, 2 and 3.
17. On behalf of the Defendant, Leslie Reed, Mr Bromfield submitted there is no evidence of his participation in the allege conspiracy. I agree. Mr Reed's presence at Peto Street on 6 February 2006 and a letter (which has no relevance to any allegation of theft of a vehicle) with a DMS letter-heading and which bears his signature is insufficient evidence to prove participation in the alleged conspiracy.
18. On behalf of the Defendant Mark Daniel McGuinness Ms. Heer submitted there is no evidence that his observed conduct on 20 March 2006 was with intent to pervert the course of justice. The evidence proves no more than that he went to Peto Street with his father, the defendant, Danny McGuinness on 20 March 2006 when two vehicles and some bumpers bearing number plates were removed. When interviewed, he made no admissions and while there may be suspicions, there is no evidence from which it can be inferred that by assisting to remove those items, he had the required and necessary intent to pervert the course of justice.

Conclusion

19. There is sufficient evidence from which a jury properly drew the inferences necessary to convict Danny McGuinness and Daniel Mark McGuinness of Court 1 and Danny McGuinness of Court 2. Whether a jury will convict, will depend upon any cross-examination and other evidence called to challenge or rebut the Prosecution's case. I give consent to the preferment of the Voluntary Bill of Indictment against those Defendants. But refuse consent in the cases of Leslie Reed (Count l) and Mark Daniel McGuinness (Count 2).