Smith, R v [2013] EWCA Crim 1011

No: 2012/6935/C3[2013] EWCA Crim 1011
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 5 June 2013
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MR JUSTICE GRIFFITH WILLIAMS
Venue THE RECORDER OF BRISTOL
HIS HONOUR JUDGE FORD QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
STEPHEN SMITH
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr B Carville appeared for AppellantMr K Sutton appeared for Crown
J U D G M E N T

LORD JUSTICE PITCHFORD:

[1]This applicant's application for leave to appeal against conviction has been referred to the full court by the single judge upon grounds drafted by counsel Mr Carville who has attended to present the application. We grant leave and henceforward will refer to him as the appellant. We shall also grant a representation order for junior counsel for the work done by Mr Carville in respect of this appeal.[2]On 27th September 2012 before His Honour Judge Gilmour QC at the Liverpool Crown Court, the appellant was convicted of an offence of dishonestly failing promptly to notify a change of circumstances contrary to section 111A(1A) Social Security Administration Act 1992. A month later he was sentenced to a suspended sentence order for two years with a requirement that he perform 200 hours unpaid work.[3]On 18th February 1995 the appellant submitted a claim for severe disablement allowance representing that he was 80 per cent disabled in consequence of an accident at work. An award was made in his favour. Subsequently, between 2nd June 2003 and 31st January 2007 he was employed as a construction manager by Touchstone Property Limited. In his application for that job he represented himself as fit and active.[4]On 29th January 2007 the appellant set up his own building company, having been made redundant by Touchstone Property. The prosecution case at trial was that in consequence the appellant received benefits of £28,157.51 to which he was not entitled. It was agreed evidence that no notification to the department of work and pensions either by telephone or in writing could be found in the department's records. It was however the appellant's assertion in interview under caution and in evidence that he had telephoned the DWP in 2003 and 2007 to inform them of his change of circumstances. According to his evidence he had been told to write in and his wife had done that for him. The appellant's wife gave evidence in support of that case.[5]The trial judge directed the jury to consider whether they were sure that the appellant had not notified the department on at least one occasion in 2003 that he was no longer severely disabled.[6]The appellant claimed to have been told on both occasions that the award was made for life. SDA is not an award for life. The evidence from Mr Lloyd, a witness for the DWP, was that the appellant was notified annually of changes in the rate of the award. He said that notification by phone is recorded directly into the computer system against the name, address and National Insurance number of the claimant. Notification by letter is placed with the claimant's docket. The appellant's docket had been retrieved and no letter was found, although Mr Lloyd accepted that if a letter had been required by another office it could have been mislaid.[7]The jury clearly disbelieved the appellant and his wife. They retired at 10.35 am on 27th September and returned with a guilty verdict at 11.48 am.[8]There is a single ground of appeal, namely that due to a misunderstanding the trial judge did not give the jury a direction as to the significance of the appellant's good character.[9]That misunderstanding arose because the Crown Prosecution Service produced to the advocate for the appellant, Mr Parry, a police national computer antecedent report which contained the appellant's full name, his date of birth and an address which was incorrect. It named Stephen John Smith as living on a farm at High Peak in Derbyshire. That antecedent report read in respect of convictions:
"17.5.78. Macclesfield Magistrates. Assault occasioning actual bodily harm, Offences Against the Person Act 1861, section 47, fine £10 ... 11.05.84. Knutsford Crown Court. Handling, imprisonment three months, wholly suspended two years; handling, imprisonment three months consecutive, wholly suspended two years. Compensation £300."
As a consequence of this document the advocate representing the appellant chose not to adduce any evidence of character and the judge did not give the good character direction.[10]At the sentence hearing on 23rd October 2012, the appellant maintained that he had no criminal convictions. The following day the prosecution obtained a further antecedent report in respect of this appellant. The name and date of birth were identical, but this time the appellant's address in Merseyside was correct. The report disclosed that no convictions or cautions were recorded against the appellant.[11]It is now submitted by Mr Carville that had the judge been aware that the appellant was a man of good character, he would undoubtedly have provided the jury with a good character direction. We agree. Secondly, it is submitted that the verdict of the jury is unsafe. Had the jury been informed of the two respects in which good character affected their deliberations upon the evidence, they might reasonably have come to a different conclusion about the credibility of the defence. Again, we agree. The court has said on several occasions that a good character direction is an essential component of a summing-up when the jury is considering evidence of dishonesty, particularly by a man of middle years with no convictions. It may be that the evidence of dishonesty was compelling and that a good character direction could not have saved the appellant. We cannot however be sure of that.[12]The respondent has taken a responsible view of this appeal. It is conceded by instructions given to counsel Mr Sutton, who appears on behalf of the respondent, first that an error was made which deprived the appellant of the requisite good character direction, and secondly, that it cannot be argued that it would certainly have made no difference to the result of the trial if the good character direction had been given. It follows that this appeal must be allowed and the conviction quashed.[13]We cannot however leave the appeal without expressing our concern that at the time when the advocate representing this appellant at trial received an antecedent report, he did not take the precaution of checking its details with his own client.[14]No application is made by the prosecution for a retrial of this matter. We are informed that the unpaid work requirement of the order made has in any event been completed. We therefore make no further order.