White v R. [2014] EWCA Crim 714

[2014] EWCA Crim 714Case No 201303380 C2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
Her Honour Judge Taylor
T20100731
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/04/2014
Before
THE PRESIDENT OF THE QUEEN’S BENCH DIVISION(SIR BRIAN LEVESON)MR JUSTICE WILKIEMRS JUSTICE LANG DBE
Between
ANTHONY ALAN WHITEAppellantTHE QUEENRespondent
David Claxton for ApplicantJonathan Spicer for RespondentHearing Hearing date : 2 April 2014
JudgmentSir Brian Leveson P :
[1]The facts that give rise to this application for an extension of time for leave to appeal conviction generate legitimate concerns about the operation of the criminal justice system and serve to underline the need for all those involved not to lose sight of the need to pay close attention to the formal legal requirements of our law and practice. Whatever the financial pressures facing the system, it is critical that a professional approach to all aspects of the prosecution of offenders is maintained by prosecutors, defence lawyers and, indeed, the court.[2]On 17 March 2011, in the Crown Court at Southwark, Anthony Alan White pleaded guilty to three offences of obtaining a pecuniary advantage by deception contrary to s. 16(1) of the Theft Act 1968 and to one further offence of Fraud contrary to s. 1 of the Fraud Act 2006; a further allegation of fraud was left on the file. He was sentenced by Her Honour Judge Taylor to a term of 30 months imprisonment on each count concurrently which reflected a discount of 25% for his guilty pleas: issues of confiscation were adjourned. A successful appeal against sentence was mounted which, on 27 September 2011, led to the term of imprisonment being reduced to 2 years: see [2011] EWCA Crim 2280.[3]On 11 June 2012, Judge Taylor determined the confiscation order and found a total criminal benefit of £265,000. She also found that the recoverable amount available pursuant to ss. 6 and 7 of the Proceeds of Crime Act 2002 was £55,640.15 and made an order made in that amount with 18 months’ imprisonment (to be served consecutively to his custodial sentence) in default of payment. This order was not the subject of appeal and there the case rested.[4]For reasons which will become apparent, the basis in law of the charges to which pleas of guilty had been entered was challenged in the legal journal, Criminal Law Week and, as a result, the solicitors who had acted for Mr White took advice and thereafter, in May 2013, by counsel who did not appear in the Crown Court, launched an appeal against conviction, seeking an extension of time in excess of 2 years in order to do so. The Crown (also appearing by different counsel) has served a respondent’s notice: neither the extension of time nor the basic grounds of appeal are opposed. In the light of the unusual circumstances of the case, the Registrar has referred the matter to the full court and we grant the relevant extension of time and leave to appeal.

The Facts

[5]In August 2009, the appellant was arrested for an offence of dishonesty (which itself led to his serving a term of imprisonment). Financial investigations by HMRC established that for six tax years between 2003 and 2009, he had declared no income or employment, but that he had a joint mortgage with his mother on a property at Flat 32, Midway House, Mannington Road, London (“Flat 32”). This property had been remortgaged several times, the original mortgage dating from January 1995 and re-mortgaged on 15 May 2003. There is no suggestion that these original mortgages were obtained other than entirely properly.[6]On 24 June 2004, the appellant re-mortgaged Flat 32, obtaining some £178,964. This was obtained pursuant to an application made jointly with his mother, Mrs Sally Patricia White, who declared that she was retired and of low income. He stated (falsely) to G&E Money Home Lending that he had been self-employed since 2002, earning £1,950 per month working in security.[7]On 22 February 2005, G&E Money Home Lending received a further joint mortgage application from the appellant and his mother in connection with Flat 32, this time in the sum of £210,794. Mrs White stated that she was retired, but working as a self-employed caterer. The appellant stated (again falsely) that he was a security manager for the London Social Taxi Club, employed for the previous 3 years, earning a gross salary £31,200 per annum. This re-mortgage was granted on 3 March 2005.[8]On 16 November 2006, a further advance by way of loan was sought from the same mortgagees, this time in the sum of £21,000. The appellant then stated (again falsely) that he was a security officer, who had been employed for 2 years and 10 months, and earning £24,000.[9]Finally, on 27 September 2007, through a financial adviser, the Bank of Scotland received an application electronically from the appellant and his mother. The sum sought was £265,000. Again, Mrs White said she was retired with no income, but the appellant said he was currently employed by Tony White Autos, having started work on 1 April 2002, earning £70,000 per annum.[10]When the appellant was arrested on 21 January 2010, correspondence was found which included five certificates of taxable incapacity benefit and income tax in the name of Tony Alan White together with a National Insurance Number matching HMRC records. Annual statements showed that he was in receipt of incapacity benefits from 2002 to 2007. When interviewed, he made no comment. The appellant was charged.[11]Notwithstanding the need for care in relation to any allegation of deception or fraud, the criminality alleged was comparatively straightforward and, following committal, on 10 September 2010, an indictment was signed by an officer of the court. It included (as counts 3 and 4) allegations of breach of the Fraud Act 2006 in relation to the further advance of £21,000 by way of loan, even though the offences were said to have been committed on 16 November 2006 (that is to say before the operative commencement of the Act).[12]This error was identified and, as a result, on 17 March 2011, with leave, the indictment was amended so as to remove counts 3 and 4 as originally drafted, include a further single count alleging a further offence under the Theft Act 1968 (“the 1968 Act”) and renumbering the remaining counts. It was to counts 1-4 of this amended indictment that the appellant pleaded guilty. As drafted, it was in these terms:
“Count 1 STATEMENT OF OFFENCE Obtaining a pecuniary advantage by deception, contrary to section 16(1) of the Theft Act 1968 PARTICULARS OF OFFENCE ANTHONY ALAN WHITE on the 23rd day of June 2004 dishonestly obtained for himself a pecuniary advantage, namely that he was allowed to borrow by way of loan from GE Money Home Lending by deception, namely by falsely representing that he was self-employed. Count 2 STATEMENT OF OFFENCE Obtaining a pecuniary advantage by deception, contrary to section 16(1) of the Theft Act 1968 PARTICULARS OF OFFENCE ANTHONY ALAN WHITE on the 22nd day of February 2005 dishonestly obtained for himself a pecuniary advantage, namely that he was allowed to borrow by way of loan from GE Money Home Lending by deception, namely by falsely representing the amount of his income. Count 3 STATEMENT OF OFFENCE Obtaining a pecuniary advantage by deception, contrary to section 16(1) of the Theft Act 1968 PARTICULARS OF OFFENCE ANTHONY ALAN WHITE on or about the 16th day of November 2006 dishonestly obtained for himself a pecuniary advantage, namely that he was allowed to borrow by way of loan from GE Money Home Lending by deception, namely by falsely representing the amount of his income. Count 4 STATEMENT OF OFFENCE Fraud, contrary to section 1 of the Fraud Act 2006 PARTICULARS OF OFFENCE ANTHONY ALAN WHITE on the 21st day of September 2007 committed fraud in that, dishonestly and intending thereby to make a gain for himself or another, or to cause loss to another or to expose another to risk of loss, he failed to disclose to the Bank of Scotland information which he was under a legal duty to disclose, namely that he was unemployed, in breach of section 3 of the Fraud Act 2006. Count 5 STATEMENT OF OFFENCE Fraud, contrary to section 1 of the Fraud Act 2006 PARTICULARS OF OFFENCE ANTHONY ALAN WHITE on the 21st day of September 2007 committed fraud in that, dishonestly and intending thereby to make a gain for himself or another, or to cause loss to another, or to expose another to risk of loss, he made a false representation to the Bank of Scotland which was and which he knew was or might be untrue or misleading, namely that he was entitled to a loan, in breach of section 2 of the Fraud Act 2006.”
STATEMENT OF OFFENCE Obtaining a pecuniary advantage by deception, contrary to section 16(1) of the Theft Act 1968 PARTICULARS OF OFFENCE Count 2 STATEMENT OF OFFENCE Obtaining a pecuniary advantage by deception, contrary to section 16(1) of the Theft Act 1968 PARTICULARS OF OFFENCE Count 3 STATEMENT OF OFFENCE Obtaining a pecuniary advantage by deception, contrary to section 16(1) of the Theft Act 1968 PARTICULARS OF OFFENCE Count 4 STATEMENT OF OFFENCE Fraud, contrary to section 1 of the Fraud Act 2006 PARTICULARS OF OFFENCE Count 5 STATEMENT OF OFFENCE Fraud, contrary to section 1 of the Fraud Act 2006

PARTICULARS OF OFFENCE

[13]It is not in issue between the parties (and we agree) that not only were the original counts 3 and 4 wrongly indicted but, in addition, all four counts to which the appellant pleaded guilty are defective in law. As for counts 1-3, the decision of the House of Lords in R v Preddy [1996] 2 Cr App R 524 made clear that the definition of pecuniary advantage in s.16(1) of the 1968 Act does not extend to loans secured by way of mortgage. For this reason, Parliament passed the Theft (Amendment) Act 1996 (commenced 18 December 1996) which inserted a new section 15A into the 1968 Act creating the offence of obtaining a money transfer by deception: this includes provision of a mortgage.[14]In relation to Count 4 to which the appellant also pleaded guilty, it is now also accepted that, as a matter of law, the applicant was under no duty to inform the mortgage lender that he was unemployed, and therefore there could be no requirement to disclose that fact under s.3 of the Fraud Act 2006. Similarly, as to Count 5 (in respect of which a plea of not guilty was entered, the allegation being left on the file), it is further clear, again as a matter of law, that the appellant was not ‘representing that he was entitled to a loan’ and that, in any event, such a representation would not contravene s. 2 of the Fraud Act 2006.[15]An appeal against conviction after a plea of guilty has been tendered will only be entertained in exceptional circumstances. Examples include cases where upon the admitted facts, an appellant could not in law have been convicted of the offence charged (see R v Forde (1923) 17 Cr App R 99 per Avory J at 102) or where an appellant is without fault and has been deprived of what was, in all likelihood, a good defence in law (see R v Boal (1992) Cr App R 272 per Simon Brown J at 278). It is necessary, however, to repeat the words of Simon Brown J which follow:
“This decision should not be taken as a licence to appeal by anyone who discovers that following conviction (still less where there has been a plea of guilty) some possible line of defence has been overlooked. Only most exceptionally will this Court be prepared to intervene in such a situation. Only, in short, where it believes that the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done.”
[16]In this case, there has been a plea of guilty and it is difficult to argue that the defendant has suffered an injustice because if the point had been taken, it would have been a straightforward matter further to amend the indictment to allege the offences that the facts did reveal (not least contrary to s. 15A of the 1968 Act) with an identical result on sentence. On the other hand, these errors in the indictment are truly egregious and it is important to underline the imperative of ensuring, at the start and throughout the criminal process, that allegations of crime are accurately formulated both in substance and form. In the circumstances, we are not in doubt that it is appropriate to treat this case as exceptional on the basis of Forde although it should not be thought that this will always be the case where there is no injustice and we would deprecate attempts to persuade the Criminal Cases Review Commission to look at convictions where there is clearly no underlying merit in arguments about injustice.[17]On behalf of the Crown, Mr Jonathan Spicer did not seek to argue that leave to appeal against conviction should not be granted and neither did he support the convictions which followed the guilty pleas. Rather, he argues that, in relation to counts 1-3, s. 3A of the Criminal Appeal Act 1967 permits the court to substitute convictions for offences of obtaining a money transfer by deception contrary to s. 15A of the Theft Act 1968, the particulars of the offences being: for the existing Count 1 ANTHONY ALAN WHITE on or about the 24th day of June 2004 dishonestly obtained a money transfer in the sum of £178,964 by deception, namely by falsely representing that he was self employed with a monthly income of £1,950. for the existing Count 2 ANTHONY ALAN WHITE on or about the 3rd March 2005 dishonestly obtained a money transfer in the sum of £201,794 by deception, namely by falsely representing that he was employed with a gross income of £31,200. for the existing Count 3 ANTHONY ALAN WHITE on or about the 16th November 2006 dishonestly obtained a money transfer in the sum of £21,000 by deception, namely by falsely representing that he was employed with an annual income of £24,000. for the existing Count 1 for the existing Count 2

for the existing Count 3

[18]In relation to counts 4 and 5, Mr Spicer similarly accepts that the particulars of the offence as pleaded do not amount to an offence in law. Representing the criminality involved in that transaction, he submits that it is appropriate to substitute an offence of fraud by false representation contrary to s. 2 of the Fraud Act 2006, the particulars being that he made a false representation that he was employed and earning £70,000 per annum.[19]Mr David Claxton, for the appellant, first argues that the indictment as drafted (and as amended) is and was a nullity on the grounds of the significance of the defects and the fact that none of the offences identified in the particulars could be made out. He relied on the decision of the House of Lords in R v Clarke & McDaid [2008] UKHL 8 where the absence of the signature of a court official made an indictment a nullity. That decision, however, turned on the technical requirements of the law governing the preferring of an indictment: here, there is no doubt that each count identified an offence known to law: it was the failure of the particulars to identify facts which made up the ingredients of the offence that has caused the problem.[20]Furthermore, the recent trend has been to look at indictments purposively, that is to say, as safeguards against unfairness. Where no material unfairness whatsoever is caused to the defendant, the courts are increasingly reluctant to take too technical or formalistic an approach. Thus, in R v Stocker [2013] EWCA Crim 1993, this court surveyed the authorities on nullity, and noted (per Hallett LJ at [42]) “a clear judicial and legislative steer away from quashing an indictment and allowing appeals on a purely technical defect”. We reject the argument that the indictment was a nullity.[21]Against that background we consider substitution. Section 3A of the Criminal Appeal Act 1968 provides as follows: “(1) This section applies on an appeal against conviction where –(a) an appellant has been convicted of an offence to which he pleaded guilty,(b) if he had not so pleaded, he could on the indictment have pleaded, or been found, guilty of some other offence, and(c) it appears to the Court of Appeal that the plea of guilty indicates an admission by the appellant of facts which prove him guilty of the other offence. (2) The Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the appellant’s plea of guilty an plea of guilty of the other offence and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity.” (a) an appellant has been convicted of an offence to which he pleaded guilty, (b) if he had not so pleaded, he could on the indictment have pleaded, or been found, guilty of some other offence, and (c) it appears to the Court of Appeal that the plea of guilty indicates an admission by the appellant of facts which prove him guilty of the other offence.[22]This provision (which makes similar provision in relation to a guilty plea to that which is available after verdict of the jury as set out in s. 3 of the same Act), was analysed by this court in R v R [2007] 1 Cr App R 10 where Hughes LJ (as he then was) identified a two stage test in relation to s. 3 in these terms:
“(i) Could the jury have convicted on the trial indictment of the substitute offence? (ii) If yes, must the jury have been satisfied of facts which proved the defendant guilty of the substitute offence, or, in the case of a plea of guilty, does the plea indicate an admission of facts proving him guilty of it?”
[23]As to the former test, it is clear from R v Wilson (Clarence) [1984] 1 AC 242 that the proposed alternative must necessarily be proved en route to the indicted offence. Dealing with s. 47 of the Offences Against the Person Act 1861 as an alternative to s. 20 (unlawfully causing grievous bodily harm), Lord Roskill observed (at 258):
“In the present case, the issue to my mind is not whether the allegations in the section 20 charge, expressly or impliedly, amount to an allegation of a section 47 charge, for plainly they do not. The issue is whether they ‘either expressly or impliedly’ include such an allegation. The answer to that question is what is expressly or impliedly included in a charge of inflicting bodily harm.”
[24]For that purpose, it is appropriate only to look at the indictment. In R v R [2007] 1 Cr App R 10, without having to decide the issue, Hughes LJ observed (at [52-3]) that the court saw great force in the submission that although a count for conspiracy does not amount to a charge of the substantive offence, it includes it in the sense explained in Rv Wilson (Clarence). R v Burke [2000] Crim LR 413 is an example of the operation of this concept in the context of the Theft Act 1968 when it was held that different offences capable of describing the same conduct are available as alternatives: in that case, (also arising from R v Preddy) the court substituted a conviction for attempted theft of a chose in action in place of a conviction for attempting to obtain property by deception.[25]This principle and the examples of its operation have caused Mr Claxton to accept that the first stage of the test identified by Hughes LJ is satisfied that that this court does have the power to substitute a conviction under s. 15A of the 1968 Act in the circumstances of this case: we agree with that concession. Under section 16(1), the Crown has to prove that the defendant dishonestly obtained a pecuniary advantage by deception. Under section 15A(1), the Crown has to prove that the defendant dishonestly obtained a money transfer by deception. The definition of ‘deception’ in section 15 applies in both cases. The particulars “borrowing by way of loan from GE Money Home Lending” are wide enough to include borrowing by way of money transfer (without being limited to that mechanism) and the false representation of self employment or as to the amount of income, while lacking specificity, are clearly broad enough to encompass the representations in fact proved.[26]As to the second part of the test, first, there is no question of permitting an alternative verdict under s. 3A if injustice or unfairness might result. In that regard, Mr Claxton submits that the appellant has served his sentence, the errors in the drafting are inexcusable, there was no question of uncertainty in the law (such as obtained prior to Preddy), the confiscation was relatively modest and the long history of the case made swift resolution desirable. Mr Spicer submits that there has never been a dispute about the criminal activity or that the basis of the plea does demonstrate an admission of facts proving him guilty of it; that he substantially benefitted from his criminal conduct (leading to a substantial confiscation order) which, in default of substitution, he would be able to retain; and, finally, that the conviction is itself an important record that might properly impact on future dealings with financial institutions.[27]It is undeniable that the primary responsibility for the indictment rests with the Crown Prosecution Service and the prosecution: it is their duty to ensure that the charges which they wish to pursue are properly drawn and reflect both the facts and the law. The overriding objective identified by the Criminal Procedure Rules 2013, however, includes a requirement that criminal cases be dealt with justly (which includes acquitting the innocent and convicting the guilty); each party must prepare and conduct the case in accordance with that objective and deal with cases efficiently and expeditiously: see CPR 1.1, and 1.2. Criminal justice is not a game and the idea that the defence can sit back and defeat the pursuit of the overriding objective is no longer acceptable (if it ever was). It is inconceivable that the appellant’s lawyers would have done nothing and allowed him to plead guilty to offences unknown to law; if they had identified the issues, it is equally inconceivable that the court would not have taken steps to ensure that the prosecution put the indictment in proper order.[28]The appellant was prepared to admit his dishonest transactions in relation to mortgage advances and, in our judgment, if the outcome can lawfully be achieved, it would be wrong to permit him to evade the consequences of his behaviour simply in order to punish the prosecution for its egregious failures in relation to charging. In the circumstances, in relation to counts 1, 2 and 3 of this indictment we are prepared to substitute convictions for offences contrary to s. 15A of the 1968 Act in place of those recorded as admitted breaches of s. 16(1) of the same Act.[29]In relation to count 4, Mr Spicer seeks to substitute a conviction for fraud on the basis of a false representation that he was employed, relying on s. 2 of the Fraud Act 2006, rather than s. 1. Mr Claxton’s response is that ‘failing to disclose that he was unemployed’ is not the same thing as ‘representing (falsely) that he was employed’ and that, on any showing, the former does not include the latter. Neither can the prosecution be saved by count 5 because, as Mr Spicer concedes, not only did the appellant not make a representation that he was entitled to a loan but, in any event, there was no such entitlement: in any event, that allegation was left on the file. We agree with Mr. Claxton: in the circumstances, the conviction on count 4 is quashed and no other offence can be or is substituted.[30]As to sentence, this court reduced a term of 30 months imprisonment to 24 months imprisonment on each count concurrent, reflecting the totality of the offending: the appellant has now served that custodial term so that the position is academic and no submission was made by Mr Claxton as to that aspect of the sentence. In our judgment, quashing the conviction on count 4 does not, in any event, require us to revisit the term of imprisonment.[31]What is, however, affected is the confiscation order. This is not only because the loss flowing from count 4 of the indictment falls outside the benefit figure but, additionally, the order was originally calculated on the basis of the decision of this court in R v Waya [2011] 1 Cr App R (S) 4. The appeal against that decision was, however, allowed by the Supreme Court (see [2013] 1 AC 294) and the calculations must now be done on that basis. Fortunately, the figures have been agreed. Following Waya, had all four counts of the indictment stood, the benefit would have been reduced from some £265,000 to £98,105.13. Taking count 4 out of the calculation (as we must) further reduces the sum to £74,441.25 which is the benefit figure that we now find. The available amount (not assessed by reference to the benefit) remains £55,640.15 and therefore that sum continues to be the amount which the appellant must pay.[32]In summary, we grant the necessary extension of time for leave to appeal conviction and allow the appeal by quashing the conviction on count 4 and substituting convictions for offences under s. 15A of the Theft Act 1968 in relation to each of counts 1-3 of the indictment. The sentence imposed for the three substituted offences (already served) remains one of 2 years imprisonment on each count, to run concurrently. As for the confiscation order, the benefit figure is reduced to £74,441.25 but the amount that the appellant must pay (and the period in default) remains as ordered by the judge.[33]Before leaving this case, we return to the point made at the commencement of this judgment. This case reveals many failings in the system primarily on the part of the Crown Prosecution Service and the prosecution but extending beyond that to the defence and the court. We would expect the Director of Public Prosecutions to institute an urgent review of how charging practice could so utterly have failed accurately to identify the offences which this comparatively common conduct revealed and to institute measures to ensure that failures of this type will not recur. It is equally incumbent on those acting for defendants to scrutinise the indictment and ensure that it is not proceeding on a basis unjustified in law.[34]The judiciary, of course, has a critical part to play and judges, also, must be satisfied that indictments which will form the basis for sentences after a plea of guilty or trials (and possible sentence) proceed on a legally sound footing but it must be recognised that our system is adversarial and relies on the parties to ensure that legal and procedural proprieties are observed. Judges will inevitably focus on the particular issues placed before them: care must be taken by everyone to identify what those issues should be.[35]We trust that the circumstances which have arisen in this case are anomalous and will not be repeated.

Cited in 1 later judgment