Elkins, R v [2005] EWCA Crim 2711

Case No 2005/02790/B3[2005] EWCA Crim 2711
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 6 October 2005
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE GAGE
MR JUSTICE HOLLAND
HIS HONOUR JUDGE WIDE
(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrown- v -
Between
PAULINE GLADYS ELKINS
Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
MR D GIBSON-LEE appeared for APPELLANTMR S PATTERSON appeared for CROWN
J U D G M E N TThursday, 6 October 2005
[1]On 3 May 2005, in the Crown Court at Bournemouth, the appellant was convicted of conspiracy to defraud. She was sentenced to a term of twelve months' imprisonment. There was a co-accused, Terence Paul Elkins (the appellant's brother-in-law), in respect of whom the jury were unable to reach a verdict. It is because the jury were unable to reach a verdict in respect of Terence Paul Elkins that this matter comes before this court in circumstances which we shall explain. The appellant appeals against her conviction by leave of the single judge.[2]Olwen Elkins was born on 15 August 1916. She was married to Raymond, who died on 5 April 2000. They had three sons, Gary, Kenneth and Terence (the latter being the appellant's brother-in-law and co-defendant). The appellant was married to Kenneth, who died in 2001.[3]From about June or July 2000 the appellant started to care for Olwen in her own home. She did so at the request of the family and for a fee. In November 2001 Olwen went to live with the appellant. On 22 February 2002, Olwen went into residential care.[4]Olwen had two accounts with Lloyds TSB. In July 2000 she had £26,000 in a savings account and £1,900 in a current account. Each month a British Gas private pension in the sum of £290.08 was credited directly into her account. She also had a state pension payable by order book in the sum of £130 per week. Money was transferred from the savings into the current account. Money was withdrawn from the current account by means of a cash card issued with a PIN number to the appellant.[5]The evidence was that there were 277 cash withdrawals totalling £28,991.50 over a nineteen month period. On 14 October 2000 the appellant and her co-defendant Terence opened an account with the Halifax Building Society to transfer money into it. There were thirteen cheque and cash transactions paid into the account in the total sum of £17,500. As we understand it, this account was referred to at trial as the "saver's account". There were two cash cards for the account, one in the appellant's name and one in Terence's name. A total of 117 ATM transactions were carried out on the account until it was empty -- £7,190 on Terence's card and £10,400 on the appellant's card. Six cheques totalling £4,462.92 were paid into the appellant's account with the Abbey National between 24 January 2001 and 8 November 2001. There were various other transactions from Olwen's account, including £799.14 to repair the appellant's car, £423 for the appellant's son's car insurance, £225 for a holiday in Guernsey, AA subscriptions of £56 and £92, and five cheques in the sum of £100 each made out to the appellant.[6]The prosecution's case was that between 1 May 2000 and 31 October 2002 the appellant and Terence Elkins, together and in agreement, used a substantial amount of Olwen's money for their own benefit. They did so without her consent, either because she was incapable of giving it due to her mental condition, or because she was unaware of what they were doing.[7]The defence case was that the appellant was responsible for the 277 cash withdrawals before Olwen went into residential care, but not for those after or the one in Welwyn Garden City on 24 September 2001. All withdrawals were either for Olwen's benefit or with her knowledge and consent. There was no dishonesty and no intention to use the funds for her own benefit.[8]It is unnecessary for us to recite in detail any further all the evidence given at trial. Suffice it to say that there was medical evidence that from about April 2000 Olwen was incapable, by reason of mental disorder, of managing and administering her property affairs. She had severe senile dementia. She had no short or medium-term memory and her prospects of mental recovery were nil. This remained the position on the medical evidence during the period of time she was with the appellant.[9]The issue on this appeal centres on whether the jury could have been properly directed by the judge that their verdicts did not need to be the same in the case of the appellant and her co-defendant, and, if so, whether the direction which he gave was adequate.[10]In directing the jury on these matters, at page 6 of his summing-up

the judge said:

"Before you can convict either of these defendants of this offence, you must be sure (1) that there was, in fact, an agreement between these two people to commit the crime in question; and (2) that the defendant whose case you are considering was a party to that agreement in the sense that, first, he or she agreed with the other person referred to in the indictment that the crime should be committed, and, second, at the time of agreeing to this, he or she intended that they should carry it out."
So far, so good. The judge went on to direct the jury that they should consider the case against and for each defendant separately. At page 7 he said:
"You must consider the case against and for each defendant separately. The evidence is different and, therefore, your verdicts need not be the same. The essence of the offence is agreement, agreement to commit the offence of defrauding Olwen. The evidence of agreement is what was done. The correct approach is to look at the admissible evidence against each defendant separately. Look at the evidence against Pauline and ask yourselves, are we sure she is guilty; look at the evidence against Terence and ask yourselves, are we sure he is guilty? You consider the evidence. In order to convict a defendant, you must be sure that on the admissible evidence against that person there was an agreement and that the defendant you are considering was party to the dishonest agreement. Your verdicts need not necessarily be the same, as I have said, because the evidence against them is not the same. You can find both defendants guilty, both not guilty or one guilty and the other not guilty. This may appear to be illogical, but it is the necessary result of the rules of evidence, which are designed to ensure fairness. It is because the emphasis is on the requirement to consider the admissible evidence against each separately."
The judge then went on to deal with what he described as the marked differences in the evidence against the defendants. He said:
".... what Pauline said in her police interview, which is not evidence against Terence because he was not there at the time. Another example of the difference is that Pauline admits to making all the cash withdrawals from both Lloyds and Halifax, excluding withdrawals after Olwen went into residential care, mostly in the absence of Terence. Another is her admission that she wrote all the cheques. The weight you give to that evidence is, of course, entirely a matter for you. Another is that she used the debit card to pay what, on the face of it, were her own personal expenses, such as car repairs, insurance, AA and holidays. Of course, if Pauline was doing these things on her own, but with the knowledge and consent of Terence as part of the joint plan to deprive Olwen, then her actions are evidence against him as well. Whatever Pauline did within the scope of the agreement is evidence against both of them. So, even if Pauline went further, it would not mean that the agreement was not dishonest. But, if Pauline went beyond the plan and did things on her own, those actions would be evidence against her but not against Terence as to her dishonesty and to the agreement she initiated. But those extra activities would not be evidence against Terence if she had gone off at a tangent. .... The case centres around opening and maintaining the joint bank account with the Halifax, putting money in and drawing it out. There clearly was an agreement between them to open the account and to transfer money into it. Both defendants accept this. The issue is whether it was with dishonest intention. You must ask yourselves in relation to each defendant separately, was opening and putting Olwen's money into this account dishonest?"
[11]Mr Gibson-Lee on behalf of the appellant submits that this was a case where either both defendants were guilty or both should be acquitted. He submits that what was in issue was whether there was a criminal conspiracy. If one co-defendant either was found not guilty by the jury or the jury did not agree, the verdict of guilty against the other would be unsafe.[12]The Crown submits that the case against the appellant was markedly different to the case against her co-defendant. In the circumstances Mr Patterson, on behalf of the Crown, submits that by application of section 5(8) of the Criminal Law Act 1977, the jury could properly convict the appellant whilst acquitting (as it turns out disagreeing) in respect of her co-defendant.[13]There was no dispute that the conspiracy alleged in this case was a two person conspiracy. Accordingly, the effect of section 5(8) of the Criminal Law Act 1977 is that it is possible for one of two alleged conspirators to be convicted of conspiracy and the other acquitted. However, there are still circumstances in which a verdict of not guilty of one will render the verdict of guilty of the other inconsistent. There have been a number of decisions of this court in which this problem has arisen. The most recent is R v Testouri [2004] 2 Cr App R 26. In Testouri Kennedy LJ, giving the judgment of the court, referred to previous decisions of this court, including R v Longman and Cribben (1981) 72 Cr App R 121, R v Roberts (1984) 78 Cr App R 41, and also a commentary by the late Sir John Smith QC reported in Crim LR in R v Ashton [1992] Crim LR 667. Summarising the effect of these decisions, and what had been said by Sir John Smith, Kennedy LJ at paragraph 10 of Testouri said:
"In our judgment, the principle which has to be followed in relation to cases of this kind is easy to state but not always easy to apply."
With that observation this court agrees. "In any case where what is alleged is a conspiracy to defraud, in which only two defendants are alleged to have participated, the judge should ask himself two questions. First, whether there is evidence of conspiracy to defraud? That means there must be evidence of an agreement to achieve a criminal purpose. If there is no evidence of that because, for example, on one view of the evidence only one defendant can be shown to have been dishonest then, if that view of the evidence is taken, both defendants must be acquitted and the jury must be so directed. The authority for that proposition is to be found in Yip Chieu-Chung v The Queen (1994) 99 Cr App R 406, [1995] 1 AC 111. Secondly, whether there is any evidence admissible against only one defendant? If that evidence is or could be critical, in that without it that defendant cannot be shown to have been a party to the conspiracy alleged, then it will be necessary to explain to the jury how they may reach the conclusion that although the case is proved against that defendant, it is not proved against the defendant in relation to whom the evidence may not be admissible. Where there is no such evidence the jury must be told that it is not open to them to return different verdicts in relation to two defendants. That, as it seems to us, is in practical terms what is meant by the authorities to which we have referred when they speak of evidence being of unequal weight."[14]This decision is relied on by both counsel in this case. The issue for this court is whether in this case the jury could properly find on admissible evidence against each defendant that one was guilty whilst the case against the other one was not proved. Mr Patterson submits that the judge was correct to rule that the jury could reach different verdicts. He submits that the evidence against the appellant was markedly different and stronger against her than against her co-defendant. He relies on the fact that there was evidence that large sums were paid into the joint bank account in joint names of herself and the co-defendant, consisting of monies taken from Olwen's account. Further, between 30 November 2000 to 20 May 2002, all the money paid out of the joint account was removed by the appellant. He further relies on lies told by the appellant at interview. From all this evidence, he submits, the jury could infer that the agreement to open the joint account was from the outset a conspiracy with a co-defendant to commit a criminal act, namely to defraud Olwen. The evidence to which we have just referred was the evidence which we have set out in detail from the summing-up at page 7.[15]Mr Gibson-Lee's answer to this is that the evidence was either, in the case of withdrawals from bank accounts, acts in furtherance of the criminal conspiracy, and therefore admissible against both defendants, or was, in respect of it and lies, evidence of the appellant's dishonesty, but not evidence of the criminal conspiracy.[16]In our judgment, the crucial question in this case is whether the evidence relied on by the Crown as evidence admissible against this appellant but not against the co-defendant was such as the jury could safely infer that it was evidence that she was party to a criminal conspiracy with her co-defendant and not just evidence of theft. The other authorities which are referred to by Kennedy LJ in Testouri are redolent of such evidence being in the form of a confession by the defendant who is convicted. That is not the case here.[17]We think it possible to argue that evidence to which we have referred as being relied on by the Crown was evidence which might (we stress might) be capable of inferring that in setting up the joint bank account with her co-defendant, the appellant was a party to a criminal conspiracy with her co-defendant. Insofar as that evidence was evidence of acts in furtherance of a conspiracy, it would, however, be admissible against both her and her co-defendant and so would not be different from the case against him. Insofar as lies were relied on as showing the proper inference to draw, it would, in our judgment, require a careful direction by the judge directing the jury that that could be treated by them, if it felt sure that it was proper to do so, as showing an inference that it was evidence against the appellant that the agreement to open the joint account was a criminal conspiracy and not just evidence of her dishonesty in removing money from the joint account. There was no such direction in this case. What the judge did was to give the jury the usual conventional lies direction, but did not go on to say that they might draw the inference that it established more than just dishonesty, namely that it established evidence against the appellant of a criminal conspiracy. To that extent, in our judgment, the judge misdirected the jury by omission. The conviction is unsafe.[18]Having said all that, looked at in the round, the prosecution case was that both the appellant and her co-defendant at the outset agreed to defraud Olwen when they set up the joint account. That was the reality of its case. In the circumstances, in our judgment, different verdicts would inevitably lead to inconsistency. That seemed to be how the judge directed the jury in the passage at page 6 of the summing-up, to which we have referred. In our judgment, he never properly explained to the jury how it could have reached separate verdicts on the admissible evidence against each co-defendant. For that reason, in addition, we hold that the verdict was unsafe and the conviction must be quashed.[19]Mr Patterson? MR PATTERSON: Well, my Lord, the co-defendant still remains to be tried. LORD JUSTICE GAGE: So we understand -- re-tried. MR PATTERSON: Re-tried, yes. If your Lordships were to order a re-trial in relation to this defendant, then the two will be tried together. LORD JUSTICE GAGE: Yes. MR PATTERSON: And that, in the submission of the Crown, will be the most satisfactory means of dealing with the matter. LORD JUSTICE GAGE: Yes. Mr Gibson-Lee? MR GIBSON-LEE: I started out by suggesting that, my Lord. I understand that the court has fixed the date for both defendants to be re-tried on 27 February. LORD JUSTICE GAGE: And that is all you wish to say? MR GIBSON-LEE: I cannot realistically say anything else. LORD JUSTICE GAGE: Very well. That is sensible and realistic. There will be a re-trial. The orders that we make are: We allow the appeal and we quash the conviction on count 2 (which was the only one before the jury). We direct that a fresh indictment be preferred. We direct that the appellant be arraigned on the fresh indictment within two months. She is tagged -- there is no reason why she should not be on bail, is there, Mr Patterson? MR PATTERSON: No, my Lord. LORD JUSTICE GAGE: She will be released on bail pending the re-trial. I imagine that you would want a representation order, Mr Gibson-Lee? MR GIBSON-LEE: For a solicitor and counsel and a litigator's certificate, please. LORD JUSTICE GAGE: And a? MR GIBSON-LEE: It is called a litigator's certificate, otherwise I will not have a solicitor in court. LORD JUSTICE GAGE: Very well, you can have a litigator's certificate. Where should it be tried? MR GIBSON-LEE: Bournemouth. LORD JUSTICE GAGE: I think the better order now is that the venue for trial is fixed by a presiding judge of the circuit. MR GIBSON-LEE: I am entirely in your Lordship's hands. LORD JUSTICE GAGE: I have no doubt if the appropriate representations are made to the presiding judge, he will fix it for Bournemouth. MR GIBSON-LEE: I do not mind where it is. LORD JUSTICE GAGE: Thank you very much. We are very grateful to both of you for your submissions in this case, which we have not found entirely easy. Thank you. _________________________________________