Sakalouskas, R. v [2013] EWCA Crim 2278

[2013] EWCA Crim 2278Case No 2013/5088/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 15 November 2013
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE GOLDRING
MR JUSTICE MITTING
MR JUSTICE PHILLIPS
Between
R E G I N ACrownv
Between
GYTIS SAKALOUSKAS
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 J Thackray appeared for AppellantMr C Attwooll appeared for Crown
J U D G M E N T
[1]MR JUSTICE MITTING: The applicant is aged 21. He applies for permission to appeal against his conviction on one count of a three count indictment. The Registrar has referred his application to this court. We grant the application and treat this as the full appeal.[2]On 12th September 2013 he was convicted after a trial at Hull Crown Court before His Honour Judge Mettyear of three offences: two of fraud by false representation committed on 8th July 2011 and 11th January 2012 contrary to sections 1 and 2 of the Fraud Act 2006 and the third of possession of an article for use in fraud on 30th October 2012, contrary to section 6(1) of the same Act. He appeals against the third conviction only.[3]Counts 1 and 2 concerned the opening of two current accounts at different banks by the use of false identity documents containing the appellant's photograph. Each account afforded an automatic overdraft facility and a debit card. The appellant exploited the overdraft facility by using the debit card to obtain rapidly substantial quantities of fuel from different filling stations: £1,471 worth was obtained on the two accounts.[4]To make the fraud worthwhile the applicant needed a substantial fuel tank. He had, and the jury must have found that he had used, a 25 litre can in the boot of his car into which the fuel was put. On his arrest on 30th October 2012 police officers found the 25 litre can in the boot of his car. He accepted that it was in his possession on that date. Mr Thackray, his counsel at trial and on this appeal, submitted that the jury should be directed that the appellant could be convicted of count 3 only if it was sure that he intended to use the petrol can for the purposes of fraud committed on or after 30th October 2012. The proof that it had been used on or soon after 8th July 2011 and 11th January 2012 was not enough. The prosecution disagreed. When

judge Mettyear, hearing submissions by Mr Attwooll for the Crown put this question to him:

"So that means for use in the course of or in connection with fraud whenever that fraud took place?"
Mr Attwooll answered:
"Yes, whenever it took place. If they had found a gun there and related it to a robbery 12 months earlier then the count would still stay the same."
The judge directed the jury in accordance with his ruling. He summarised the Crown's case in relation to counts 1 and 2 and then turned to the petrol can:
"They [that is the Crown] say it was there, held by him in connection with a fraud which are related back to counts 1 and 2. They say it's too much of a coincidence that he just happened to have such a large fuel container in circumstances where the background is that his identity was being used to open those accounts to obtain those debit cards. You just need to be slightly wary because the canister was found on 30th October, you'll remember, whereas these offences go back months before that, so you'd have to come [to] the conclusion so you were sure that this container had been used for those past transactions and he'd just forgotten to clear up the evidence and move it away."
He then went on to mention the fact that it is illegal to use 25 litre fuel cans in petrol stations anyway and posed the question which the jury had to answer as follows:
"Was he in possession of that because of his involvement in a fraud in the obtaining of fuel?"
At no stage did the judge explain to the jury that it had to be sure that the can was in his possession with the intention that he should or that someone else should obtain fuel by fraud on the day on which it was found or thereafter.[5]Section 6(1) provides:
"(1) A person is guilty of an offence if he has in his possession or under his control any article for use in the course of or in connection with any fraud."
The wording is very similar to that which is found in section 25 of the Theft Act 1968:
"(1) A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary or theft."
Apart from the additional requirement that the article must be otherwise than at his place of abode, and the nature of the crime for which the article is possessed, the wording is in effect identical.[6]As it happens there is clear and binding authority on section 25: Ellames [1974] 60 Cr.App.R 7. Ellames was charged with the possession on 13th April 1973 of items used in an armed robbery that had been committed earlier the same day. His counsel submitted that there was no case to answer because there was no evidence that he had those articles in his possession for use either at that time or later. The judge rejected the submission, ruling that the offence was committed if the defendant was in possession of the articles used in connection with the theft committed immediately before and directed the jury accordingly. On appeal, the Crown argued that the words "for use in the course of or in connection with theft" were an adjectival phrase applying to "article" and so applied whether the theft was going to be committed or had already been committed. The Court of Appeal rejected that submission. Browne J gave the judgment of the court. He observed as follows:
"In our judgment, the words in subsection (1) 'has with him any article for use' mean 'has with him for the purpose' (or 'with the intention') that they will be used'... An intention to use must necessarily relate to use in the future. If any support is needed for this view, we think it is found in the recent decision of this Court in Allamby and Medford ... decided under the Prevention of Crime Act 1953. It seems to us impossible to interpret section 25(1) as if it read 'has with him any article for use or which has been used in the course of or in connection with any burglary, theft or cheat'. Equally, it is impossible to read subsection (3) as if it said 'had it with him for or after such use'. In our judgment the words 'for use' govern the whole of the words which follow. The object and effect of the words 'in connection with' is to add something to 'in the course of'. It is easy to think of cases where an article could be intended for use 'in connection with' though not 'in the course of' a burglary, etc - eg articles intended to be used while doing preparatory acts or while escaping after the crime."
The court went on to point out that it was not necessary for the prosecution to prove that it was the intention of the person in whose possession the articles had been found to commit the offences.[7]In our judgment, the observations of the court in Ellames in relation to count 25 apply with equal force to an offence charged under section 6. If it were not so, then it is easy to see how an innocent person who knew that an article used by somebody else for the purpose of fraud would commit an offence under section 6 if he knowingly had it in his possession. That cannot have been the intention of Parliament. The intention of Parliament as in the case of section 25 was to prevent the possession of articles that were intended for use then or in the future, not those which had been used in the past.[8]Accordingly, because the direction to the jury as to the facts that they must be sure about made it clear to them, or at least left it open to them to conclude that if the petrol can which was admittedly in the appellant's possession had been used for the purpose of fraud before, so he must be guilty of the offence. That was a misdirection. In consequence the conviction is unsafe and we quash it.