Jurecka & Ors v R [2017] EWCA Crim 1007

Case No 201603320 C5, 201603658 C5,201603356 C5, 201603322 C5[2017] EWCA Crim 1007
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
His Honour Judge Joy
T20157008, T20150077, T20157005
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/07/2017
Before
LORD JUSTICE IRWINSIR ALAN WILKIEHIS HONOUR JUDGE DICKINSON QC(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
(1) Aniela Halina JureckaAppellantsCharlotte Elizabeth May JohnsonAppellantDavid Edward SmithAppellantThe QueenRespondent
Mr G Harris (instructed by Foxes Solicitors) for First AppellantMrs R Becker (instructed by Foxes Solicitors) for Second AppellantMr R Barraclough QC and Mr C Wray (instructed by Bond Joseph) for Third AppellantMr D Connolly (instructed by The Crown Prosecution Service) for RespondentHearing Hearing date: 27 June 2017
JudgmentBackground
[1]On 13 June 2016 in the Crown Court at Maidstone, following a trial lasting more than three months before HHJ Joy and a jury, the Appellants were unanimously convicted of conspiracy to commit fraud by false representation. On 11 July 2016 they were all sentenced to imprisonment of two years and six months.[2]All three Appellants have leave to appeal against conviction on a single ground. The complaint is that the judge in summing up failed to remind the jury of any of the concessions made by prosecution witnesses during cross-examination. Johnson also appeals against her sentence, by leave of Gilbart J. In addition, the first two Appellants (Jurecka and Johnson) renew applications for leave to appeal on other grounds, following refusal by the single judge.

The Facts and the Proceedings

[3]Aniela Jurecka and Charlotte Johnson were engaged in the business of buying and selling horses. They used the trading name SE Horses. They operated from two farms, Great Thorn Farm, Marden, and Duckhurst Farm, Staplehurst in Kent. The third Appellant, David Smith, was a veterinary surgeon based at the Lakeview Veterinary Centre in Deal.[4]The prosecution case was that the Appellants were all three party to an agreement to commit fraud involving the sale of substandard, injured or unreliable horses to unsuspecting members of the public by making false representations as to the qualities of the animals or their suitability for novice or unconfident riders. It was alleged that they dishonestly gave false descriptions of horses in advertisements and in documents for sale, in sales patter and in answers to prospective purchasers’ questions. Typically, the false representations would relate to the horse’s health, temperament, history, behaviour and particularly to their suitability for novice or inexperienced riders.[5]Many of the horses were said to have been known by them to have physical or behavioural issues which were deliberately masked for the purposes of inspection by prospective buyers using sedatives and/or painkillers, administered prior to the horse being shown. The drugs, it was alleged, were dishonestly supplied by the Appellant David Smith. The drugs were all prescription only drugs and should have been recorded as being prescribed in relation to a specific animal. They were not. The effect of the drugs would be to calm a nervous horse, or diminish or abolish pain in an animal with physical problems so as to give the animal the appearance of complying with the advertisements or sales patter.[6]The fraud also involved Jurecka and Johnson persuading, manipulating or tricking buyers into using Smith for the pre-purchase “vetting” examination. He would play his part by passing horses which would have been failed had he been acting honestly and in the interests of the buyers, which was his professional and legal duty.[7]All of the Appellants denied that there was a conspiracy to defraud buyers and denied being party to any such conspiracy. If there were any shortcomings in the descriptions of horses for sale, they were not dishonest, particularly in the context of a world where descriptions of a horse for sale may often not be full and frank.[8]The issue for the jury was whether they were sure that each defendant was party to an agreement with another that an animal, or animals, should be dishonestly sold by pretending to the buyer that the animal was materially different from the truth.[9]Amongst other evidence, the prosecution relied upon seventeen specific transactions as evidencing the broader conspiracy between the parties. The exhibit file included many thousands of text messages, mainly from Jurecka’s mobile phone, in addition to notes, e-mails and letters concerning other horses sold during the indictment period, which ran from 1 June 2008 to 31 December 2013. The case was structured around the seventeen specific sales of horses. Purchasers gave evidence concerning the transaction and about what took place with the horse after the purchase. There was also a great quantity of evidence from veterinary surgeons, farriers and other professionals, as to the animals’ defects and whether they were likely to have been pre-existing.[10]The bundles provided to the jury were subdivided by reference to these seventeen sales, and the papers and documents for the jury were organised according to each sale, a matter which was of some significance as we shall see. The seventeen transactions, organised in point of time and by name of horse, were as follows: i) Jimmy: purchased by Emma Stephens in October 2008. ii) Marcello: purchased by Rosalind Sykes in December 2008. iii) Charlie: purchased by Diane Hogben in August 2009. iv) Snip: purchased by Jacqueline Lowe in January 2010. v) Jack: purchased by Natasha Bartlett in July 2010. vi) Belle: purchased by Oliver Chinery in October 2010. vii) Ollie: purchased by Janet Dellaway in January 2011. viii) Bentley: purchased by Susan Leigh in April 2011 (statement read). ix) Ali G, aka Bentley: purchased by Frances Taylor in June 2011. x) Oakley: purchased by Stacey Boy in June 2011. xi) Ringo Cody: deposit paid by Andrea Vizzard in June 2011 who withdrew after further inspection; then sold same month to Vanessa Harris-Magri. xii) Blake aka Bruce: purchased by Emma Boughton in October 2010 and Elizabeth Molyneux in September 2011. xiii) Christopher: purchased by Samantha Drummond-Hay August 2011. xiv) Ben, aka Salvador Dali: purchased by Delia Silver December 2011. xv) Duchess: purchased by Jonathan Sidwell in January 2012. xvi) Smithy: purchased by Joanne Harris-Hughes in January 2012. xvii) Skye: purchased by Emily Henton in July 2012.[11]In addition to the evidence as to individual sales, there were other important witnesses in the case. Maria Gage worked for Jurecka from September 2011 as a groom. She described how Johnson would come to the premises and, in order to facilitate a sale, would pretend to the prospective buyer that she (Johnson) was the owner and this was a private sale, rather than a sale by a horse dealer. She would give customers a fictional account of the horse’s past. She would then take a cut of the sale profits. Gage also gave evidence that it was commonplace for her to be instructed to give a lame or difficult horse a sedative or a painkiller before a customer came to inspect. The drugs would be dropped off by Smith, who she said conducted many of the vettings. She gave evidence that Smith would pass horses which should have failed the vetting. She also described techniques that were used to exhaust a difficult horse before viewing. She described the business as “a bit of a sham”.[12]Shelley Anthony was a horse transporter. She too was called to give evidence concerning dishonest practices by Jurecka in the sale and purchase of horses and in relation to the use of sedatives. However, in the course of the trial, it became clear that she intended to depart from the evidence in her sworn statements. Following argument, she was declared a hostile witness.[13]In the course of the investigation the Appellants were interviewedunder caution, in April 2012. Jurecka and Johnson handed in prepared statements confirming that they bought and sold horses but made no further comment. Smith answered questions from police and denied the allegations. He was re-interviewed a year or so later in June 2013 and at that stage answered “no comment” to most of the questions asked. In due course, the jury were asked by the Crown to draw an adverse inference from the failure by the Appellants Jurecka and Johnson to mention facts in interview upon which they later relied in their evidence.[14]We were informed by Mr Connolly, who appeared below and before us for the Crown, that in a pre-trial hearing the judge raised with the prosecution whether it would be a useful mode of proceeding through the long and complex trial for the Crown to produce for the jury, in relation to each of the transactions relied on, a “working document” or note summarising the relevant evidence for the jury. Thus, for example, there would be a working document in the “Jimmy” file summarising the evidence bearing on that transaction. That procedure was adopted, and the “working document” placed into the jury bundle, beside other documents bearing on the sale, photographs and any relevant communications.[15]Counsel for Jurecka and Johnson objected to this modus operandi. When their objection was overruled they did not provide any parallel working documents on behalf of their clients. Mr Barraclough QC, representing Smith, took a rather different approach. He and his junior provided defence working documents for the jury which were placed in each relevant sub-divider. Although Smith’s case had separate aspects, his case was, as Mr Barraclough described it to us, in many respects “parasitic” upon the cases against Jurecka and Johnson. If there was no criminal conspiracy between the first and second named Appellants, there clearly was no conspiracy involving Smith. The content of the working documents provided on behalf of Smith covered the whole case, was not confined to matters relevant only to Smith, and it addressed or recorded much of the material relevant to Jurecka and Johnson.[16]Jurecka sought permission to appeal based on the procedure adopted of placing in the jury bundle prosecution summaries. The Single Judge refused leave on this ground and the application was renewed by Jurecka before us. We address that matter below.[17]In the course of the prosecution case, the Judge acceded to the application by the Crown to read the witness statement from Susan Lee, the purchaser of the horse Bentley. Jurecka also sought permission from the Single Judge to appeal that ruling, but leave was refused. The application is renewed before us.[18]At the close of the prosecution case, Mr Barraclough QC made a submission on behalf of Smith that there was no case to answer. That was rejected. He sought leave to appeal on that ground. That was refused by the Single Judge. In written submissions, Mr Barraclough sought to renew the application for leave on this ground, on the basis that it was appropriate if the other Appellants succeeded on appeal. He did not address this matter further in oral submissions.[19]All three Defendants gave evidence. Aniela Jurecka gave evidence that she set up SE Horses in around 2008 with her boyfriend Stephen Hendry. She and Johnson had been friends for a long time but Johnson had never been her employee. She and the prosecution witness Shelley Anthony had argued with each other and Anthony had lied in giving her evidence. She had never deliberately defrauded any horse buyer.[20]Jurecka was asked about a “Bebo” profile in which she described herself as “making a mint from selling dodgy mules”. She stated she was not aware of this profile and suggested that a malicious ex-boyfriend was responsible for making this posting. She agreed that she would encourage buyers on occasion to use Smith for the vetting: she did so because she considered him a senior, experienced and honest vet. He did not pass every horse. She did sometimes give horses sedatives or painkillers if they were needed. This was normal practice. The drugs were obtained from various vets and from Stephen Hendry. Her case was there was nothing inaccurate in the advertisements she was aware of. She sold the horses in good faith and they were in good health when they were sold by her. She was not involved in all of the seventeen identified transactions. Some of those horses were advertised and sold by Hendry or by Johnson, and were nothing to do with her. She had given no comment in interview on the advice of her solicitor. She would commonly use a sedative if she was making a video of a horse. Ms Jurecka gave detailed evidence in chief going through each of the transactions in turn.[21]In relation to the evidence of the stable hand Maria Gage, Jurecka agreed that she did instruct her “that [if] a customer was coming, to give [a horse] a small or big pea or a couple of smarties”:
“It was not a secret from the customer. If it was a nice quiet pony I would say so. I would not sedate horses that were dangerous for novice riders. Maria was happy to sedate horses for customers and she never questioned it.”
This last was a remark which the Judge characterised as “an admission that Maria was told to sedate horses for customers”. Jurecka went on to say:
“I am not denying systematic doping of horses for customers. It is not uncommon. I admit I sold Pluto and there was talk about Luke and the false history and it was wrong but unnecessary. The wrong photograph of a horse, Bilbao and I was told by Stephen Hendry to do this. Luke would ask me to lie for him, and it was dishonest but not thoroughly dishonest.”
[22]Jurecka made a number of further similar admissions. She agreed that she had asked Johnson: “to lie that she owned Dollar. He wasn’t her family pet for three years. Dollar was similar to Smithy. I was getting her to pose as the previous owner of the horse; it wasn’t totally honest. I did get Charlotte to say things that were not true, a lie about the history of the horse, and to talk posh and telling her what to say, to lie that she owned the horse.” (Summing up, 305G/306B)[23]In relation to another customer she said:
“I agree it was wrong her giving a false history to give customers. Charlotte never refused to lie on my behalf. She asked me to make up the testimonial.”
[24]Jurecka said that the use of drugs was widespread but denied she would give drugs to a horse without informing the customer: “of course not”. Her case was that none of the seventeen horses had needed drugs. The prosecution case was that covertly given drugs were the only explanation for the very different behaviour on the part of horses at the time of viewing and later, when the drugs had worn off.[25]In relation to arranging that horses should be “vetted” by the Appellant Smith, Jurecka said:
“I would sometimes say he was coming when he wasn’t. It was a lie. I found it easy to convince people.”
[26]On a number of occasions, Jurecka admitted that she had lied. She said:
“I admit I have told little lies but not to make people buy the wrong horse. I have told lies about the history of horses as it is what people do.”
[27]Charlotte Johnson also gave evidence, agreeing that she was involved in selling horses from about 2008 to 2012. She had previous convictions which went before the jury. In August 2012 she was sentenced by the Central Kent Magistrates in respect of twelve charges of engaging in forbidden commercial practice between June 2010 and June 2011, in each case giving a false description or history when selling a horse. In evidence she stated she had pleaded guilty to these offences: “I told lies about the ownership of horses, the previous ownership of horses”.[28]She stated she had no website or business name but advertised on horse-selling websites. She accepted that she sedated a horse if it was “a bit fresh” or to prevent it “having an explosion”. There was no intention to deceive a customer or mask any defect in a horse. She agreed she had encouraged buyers to use Smith for pre-purchase examinations because he was a good vet. The horses that she advertised as her own to sell were indeed hers. She denied selling horses that had recently been bought by Jurecka and pretending they were her own, or giving a false history. There was no conspiracy to defraud. If there were inaccuracies in descriptions of horses in adverts, they were genuine mistakes. She acted in good faith and denied lying to or deceiving customers. She denied tampering with any [horse] passports or trying to conceal a horse’s defects from a customer.[29]On a number of occasions she did acknowledge that there were specific misdescriptions of horses or that some of the sales patter had been untrue. In relation to the horse Christopher/Andante, she had never taken the horse to dressage. He was not a working hunter. She should not have made such claims and it was a lie to say that he was a “great, safe hunter”. In relation to the horse Blake, she began by saying that the long advertisement she had published was true, but later conceded it was not true that he had been:
“… riding out with a 74 year old lady, nor true that he had team dressaged, nor that it was true that he had been out with the bloodhounds being ridden by a novice. It was not true that he had been at cob classes, nor working hunters. It was not true that he had been at a family-run riding school …. It was not true that he was a much loved family horse. It was not a private sale, that was a pretence”
. She had told the eventual purchaser of Blake: “… a pack of lies …. I can’t remember why I lied. One thing led to another. No-one told me to say these things; I kept the lies going” (summing up, page 328D/F)[30]In relation to the sale of the horse Ringo, she also conceded that she had placed the advert “as a private sale and that was a lie” and when the advertisement said that the horse had “cost £6,000 a year ago” that was also a lie.[31]The Appellant Smith also gave evidence. He had qualified as a vet in 1974. He specialised in dog breeders, horses and large animals, his practice being based in Deal. The jury were aware that he had been erased for a considerable period from the register by the Royal College of Veterinary Surgeons, for signing inaccurate certificates in relation to horses. A key component of the Crown’s case against him was that a consistent device was employed by Jurecka and Johnson to ensure that Smith was the vet chosen to conduct the pre-purchase examinations. In one form of words or another, it was suggested that he was coming to the relevant farm at a convenient time to vet another horse and that the prospective purchaser could save money by splitting the call-out charge with the [fictional] other purchaser. Where the prospective purchaser named another vet, various excuses were made as to why that independently chosen vet would be unsuitable or expensive. Consistent text messages between Jurecka and Smith enjoined Smith to undercut charges quoted by alternative vets.[32]The text schedule before the jury also indicated significant numbers of requests for the supply of various prescription-only medicines for general use, as opposed to use on a specific animal. There are no records of Smith supplying these drugs, as there should have been. It was not contested that he did supply such drugs.[33]On 1 November 2011 Smith texted Jurecka that [a purchaser] “wants to come to the vetting so I will have to do it on the way. Will need pony to blood test!” The implication was that a different animal would supply a blood sample to avoid the risk of detection of drugs in the sample from the animal to be sold. Subsequent texts from that evening fit the same pattern.[34]The Appellant Smith denied any dishonest practices or being part of any agreement with Jurecka and/or Johnson to defraud buyers. He did sell Bute and sedatives to Duckhurst Farm, but that was not unusual or dishonest. He stated that he did not know Jurecka or Johnson well, but only knew them through carrying out the pre-purchase examinations. He stated that he conducted these properly and did not attempt to conceal a horse’s faults from purchasers. He was not being asked to certify a horse as perfect, but only as suitable for its intended use. As to the condition of the horses which were the subject of the trial, he disputed much of the evidence as to the condition of the horses sold. He denied that he would have passed a horse if he had seen it was lame or that he would conceal faults. The fees for his vettings in relation to Jurecka and Johnson were not significant for him financially, forming “12-13 percent of my vettings” and “vettings is a relatively small amount of my work”. He was taken in detail through the different horses and different histories, and denied any wrongdoing.[35]In relation to the horse Skye, there was a signature against a record of vaccination of the horse which he denied was his signature. It did not appear to be his signature, although it was his name. There was no entry in the diary for the relevant day, or the day before or day after. He denied that he knew any horses were sold when they were drugged up and he denied he had taken blood from other horses to send off. He denied any dishonest plan to defraud customers.

The Ground of Appeal

[36]We now turn to the ground upon which the Appellants have leave to appeal. This was originally Ground 8 as advanced by Jurecka. The complaint was put concisely by Mr Harris in oral submissions, and in written submissions both before the hearing and afterwards in short additional written submissions. We have considered them all with care. The submission is that the judge simply failed to remind the jury of any of the concessions made by prosecution witnesses in questioning by the defence. He amplified that simple proposition, as follows.[37]Mrs Hogben was the purchaser of Charlie, in August 2009. She was a large lady and needed a large, strong horse. In giving evidence of an important conversation with both the First and Second Appellants present, this witness conceded that the representations about the horse may have been made by Johnson, not Jurecka. Mr Harris said this evidence showed that little weight should be attached to her evidence, and affected “her credibility in having an animus” towards Jurecka. It was also established in cross-examination that despite the problems Ms Hogben had had with Charlie, which was said to include lameness and back problems, she attempted to sell on the horse. She posted on the Horse and Hounds forum asking for help from other forum members as to how to sell such a horse. It was put to her that she was “worried about scaring away” purchasers, and she said “in some ways I was”. Following a suggestion she did advertise the horse for sale as a “project horse”. She agreed that she did not mention in the advertisement that the horse was “lame” or that it was prone to “weaving”. While she agreed that presenting things in this way was “not right” she maintained that what she did was not misleading since the advertisement had contained the phrase “project horse” anyone could inspect the animal and she was open to vetting. Mr Harris also submits (Hogben transcript 33D) that Ms Hogben accepted that she was trying to sell the horse on “dodgily”. We are bound to say that on a close reading of the transcript we do not accept that was her meaning, but that is the complaint made. She was also cross-examined about an entry she posted on the forum concerning the embarrassment caused by horses that are ordinarily well-behaved but may misbehave in front of potential purchasers.[38]In answer to questioning by Mrs Becker, counsel for Johnson, it is agreed that Ms Hogben said when she attended to the yard to buy Charlie that she understood from the advertisement that it was a trade sale (transcript 46C). This was in the context of what was said more fully by the witness that the sale was on behalf of a pregnant friend who had lost her job, the suggestion being that although a trade sale this was a horse that had been privately owned and was being sold for a specific private reason. Further in the course of cross-examination, Ms Hogben accepted that there was no objective test to determine whether a horse was strong enough to carry the weight of a heavy rider. She accepted that it might be that two people had different but genuine opinions about the matter.[39]It is helpful to note that the working document before the jury, coming from the Defendant Smith, recorded much of the relevant detail in relation to Ms Hogben and Charlie. The entry for Charlie included the following:
“The vet noted that the bar was too heavy for the horse. Whether she had this note or not it is inconsistent with any contention that DS was behaving fraudulently. By the time she had the horse examined by her vet David McDonald on 27.10.09 it was lame. It was examined by Emma Boyd on 30.9.09. Whatever the problems, this horse was as described in January and was being ridden in February and neither the vet nor the osteopath was recalled to see the horse. It must have recovered. It just needed gentle massage and release of muscle.”
[40]As with all the other witnesses where this complaint arises, the nub of the matter is these issues were not rehearsed by the judge in his summing up. Before we reach a conclusion on the matter, we will touch on the other specific points raised in support of the complaint.[41]Ms Emma Boughton was the purchaser of the horse Bruce who was renamed Blake. Ms Boughton stated in evidence in chief how she purchased the horse from Jurecka in October 2010, but she said she did not ride the horse until the New Year of 2011 and when she did ride him, he was very nervous, did not like her on him and tended to run away. She decided to sell the horse as she did not have time to “educate him”, her mother being ill. She also suggested that Bruce was not good or well behaved with children.[42]In cross-examination, Ms Boughton was shown a Facebook photograph of her son and the horse, dated 30 October 2010. She accepted that the horse “looked okay there” but reiterated that when she first had him he was “quite sort of subdued really”.[43]Mr Harris took Ms Boughton to a Facebook entry of 12 January 2011. Part of the entry was the photograph of herself riding Blake. At first she thought that photograph must have been taken later, but conceded that if it had been uploaded on 12 January 2011, it must date from that day or earlier. The photograph provoked an exchange on Facebook, in the course of which a friend of the witness commented (of the horse) “he looks fantastic”. The witness’s reply was “thank you, he’s a real sweetie”. When the matter was pressed, Ms Boughton agreed that the horse was a “sweetie”, that she was happy with him at that stage, but she reiterated that to start with the horse “wouldn’t stand still” and “just kept on walking away from the block”. He was not easy to “tack up”. Ms Boughton was asked if she could find the advertisement for her onward sale of Blake. She could not. However, she agreed that the reason for her onward sale was to do with her mother’s illness, but for which she would probably not have considered selling the horse at all. She had also sold the other horse that she owned, which she had had for many years.[44]Relevant passages from the notes before the jury concerning this horse on behalf of the Appellant Smith read in part as follow:
“Boughton bought him mid October 2010. Boughton says quiet and slower paced, calm. Not over schooled. Right temperament so could train him. Seemed quiet on a hack. … … In June 2011, sold him to Charlotte Foreman for £700. … He is a big horse, Irish draught. Ended up under the bar of a vehicle some time in October. He was then sore until New Year. Happy with him in January. The photographs at Div 13 pp 38-42. Photo 38 taken before 12.1.11. “Real sweetie”
. Page 41/2 dated 30.10.10 not long after accident. Looked okay with children. Good with children. … Only vice was that could not catch. Would not have sold him but for the illness of her mother. Needed to spend time with him.”[45]The two purchasers of horses identified above were, said Mr Harris, illustrative of the position in relation to other purchasers. We proceed on the basis, however, that they are the illustrations, since chosen by the defence, which would best illustrate concern from their point of view. We assume that there would be other detailed points from cross-examination of other purchasers. In each case, there were present for the jury notes or working records included from counsel on behalf of Smith.[46]The two further witnesses in respect of which complaints are made were not specifically relevant to particular sales, or only peripherally so in one case. Sue Walker was a joint owner of Duckhurst Farm where, for a considerable period, Jurecka was a livery customer. In respect of her evidence, Mr Harris would wish to make a sequence of points: points which of course he did make in closing submissions to the jury. So as to avoid any sense that we are to any degree confining Mr Harris’s submissions to us, we record here the sequence of points he says arose from Ms Walker’s evidence and were significant for the Defence:
“a) In the 20 years Ms Walker has known the appellant there was never a problem with her horses (transcript, p2E); b) How snow wouldn’t be an impediment to have a sale as there was a tarmac yard (transcript, p5C); c) How Annie would take very good care of her horses (transcript, p5E); d) How all horses will potentially buck or rear in their life as it’s a natural characteristic (transcript, p6E); e) How a horse may react after being kept in a stable or due to an inexperienced rider (transcript, p6H); f) How complaints are an occupational hazard (transcript 10F); g) How customers may exaggerate their riding ability (transcript, p11D); h) When in reality it’s a customer riding ability, but customers complain that it is the horse that is difficult or not behaving (transcript, p12A) and sometimes blame the seller for mis-describing the horse (transcript p13C); i) How some vets are more pernickety than others in recommending horses for sale (transcript, p14C); j) How customers sometimes save money on call-out costs by having the same vet vetting different horses on the same day (transcript, p16G); k) How Karen Coombe was in her opinion a particularly pernickety vet (transcript, p17D); l) How sedatives (Sedaline and ACP) are kept in the witness’s own yard and used for emergencies (transcript, p19D); m) How Ms Walker would use a sedative if the horse was stressed, shoeing (transcript p21A), for transportation (transcript, p21G) and how hauliers from Ireland carry it in their cabs (transcript, p22B); n) How, as a previous owner of Jimmy Ms Walker states she had no problems at all with the horse (transcript, p24B); o) How Jimmy was used for riding clubs on children’s holidays because it was a particularly quiet and well mannered (transcript, p24D); p) How the advert used to sell the Jimmy (relied upon by the prosecution as misrepresentation) was accurate (transcript, p24H); q) How, when the other ponies were “spooked” by a large hole in the sand or a sand-kite Jimmy simply walked back with a child on his back (transcript, p28F).”
[47]Mr Harris submits that this evidence would provide positive evidence about his client and her care of horses, would give a more accurate and balanced picture of the complexity of selling horses, their unpredictability and how subject they are to change. The evidence might assist on how a vetting could have taken place in snowy conditions, on the practice of Karen Coombs as a vet, on the readiness of customers to complain, on the frequent availability of sedatives and the use of sedatives in transporting horses from Ireland and in relation to the horse Jimmy, his suitability for children.[48]There was a “working document” note on behalf of Smith concerning the evidence of Walker, covering some but not all of the matters raised by Mr Harris for Jurecka. The note reads as follows:
“SUE WALKER confirmed the evidence of MANTELL. Some PPE vets she said are nervous or pernickety about vettings; they are reluctant to pass horses sold by a dealer. It is easy to fail a horse. It is not uncommon she said for a PPE vet to do more than one vetting. The call out charge will be shared. The vet may have three vettings on the same day. As a dealer she said she has seds/ACP/Ibubrofen available in the yard, for emergency, if horse is stressed; for clipping; for transport (hauliers from Ireland carry them in the lorries); they can be used when the horse is being ridden by someone new, who might ride badly; they are used a lot on the continent. She had known DS for 25 years. She spoke of his ability and judgment; that he is honest in his vettings; that he quickly assesses a horse on a vetting more quickly than younger vets.”
[49]Mr Harris also makes submissions about the witness Mantell. He was a veterinarian called by the Crown. In chief, he gave evidence to the effect that the use of sedatives was commonplace and that in relation to a horse in new surroundings, it was often “sensible from health and safety point of view to have tranquilised horse underneath you. More docile”.[50]Mr Harris notes that in cross-examination Mr Mantell was to concede that there were a number of horse dealers who tried to influence buyers to use their own vets because they might be favourable; how it is commonplace for vets to perform pre-purchase examinations for different buyers on the same day; how ACP could be used to reduce a horse’s anxiety, that a seller must agree before blood samples are taken from a horse prospectively to be purchased; that travel in a horsebox for several hours could cause stiffness or temporary lameness; how the effect of sedatives was short lasting whereas tranquilisers (such as the commonplace drug Bute) lasts longer, and how a range of factors could change a horse’s behaviour. Those factors include a change in surroundings, diet, habit or routine, an ill-fitting saddle or the overuse of the crop. In relation to these points, Mr Harris submits that such evidence from a prosecution expert could establish a common usage of drugs for non fraudulent reasons, differences in behaviour arising from a variety of reasons, the fact that fraudulent dealers were unlikely to consent to the taking of bloods, and an alternative explanation for the condition of the horse Jimmy inconsistent with fraud.[51]Unsurprisingly, given the Defendant Smith’s position as a veterinarian, the working document before the jury in relation to Mr Mantell was extremely full. We do not intend to repeat that two page document here, but in our judgment it covered virtually all the points emphasised by Mr Harris.[52]The submissions of Mr Harris on this ground were actively supported by Mrs Becker for Johnson. She makes it clear in paragraph 12 of her written submissions that the witnesses identified as the important witnesses for this ground, and addressed by us above, were chosen by way of example after consultation between defence counsel. In the course of her submissions, she provides a table of a little over three pages of detailed comment, wherein she indicates that points favourable to the defence were either missing or misstated in the summing up.[53]It is important to note that in the exchanges before us, Mr Harris and Mrs Becker made it clear that the jury were reminded of all the relevant points which they say were omitted from the summing up, in closing submissions on behalf of the defence. Listening to counsel, it is clear that those closing submissions will have been extremely detailed, and presented forcefully.[54]We bear in mind that, due to illness of a juror and a short illness on the part of the judge, there was an interruption of some ten days after the judge completed the first portion of his summing up and before he was able to conclude and the jury retired. The summing up began on Wednesday 25 May 2016. A juror was unwell on Thursday 26 May and the summing up continued on the Friday. On the Friday the judge reiterated the need for the jury to consider all the points raised by counsel in closing submissions, and then continued to analyse the case. Due to further problems with the jury, the matter was adjourned on the Friday with the intention of resumption on Wednesday 1 June. By that stage, the judge had completed the general aspects of the prosecution case and the evidence concerning twelve of the seventeen horses sold. The Court adjourned, intending to resume on Wednesday 1 June.[55]However, when the Court reassembled on 1 June, HHJ Joy was ill himself. The Court was adjourned once more to Tuesday 7 June. When the Court resumed on that day, the issue of Rosalind Sykes was addressed first and the summing up could only be resumed a little before noon. The judge returned to the sequence of horses beginning with the horse Blake at Divider 12 and continued to sum up the prosecution case. During the afternoon of that day, the judge concluded the summing up of the Crown case and began to sum up the defence. The summing up of the defence case resumed no the morning of Wednesday 8 June, and substantially concluded by the end of the afternoon on that day. The jury retired on the morning of Thursday 9 June. The purpose in recording those timings is that the defence submit there was necessarily a considerable lapse of time between the conclusion of speeches on behalf of the Defendants (and of course it follows, on behalf of the Crown) and the point when the jury retired. In those circumstances, the defence submission is that the impact of defence speeches may have been lessened by the passage of time. Of course those timings also mean that there was a lapse of time between the jury being reminded of most of the prosecution case and their retirement, whereas the defence case had been fully summed up to them much more recently.[56]The Crown response to these submissions is expressed relatively briefly. This was a long, detailed case. It would be impossible for the judge to include every detailed point in favour of Defendants in a summing up without taking an excessive length of time, and indeed producing confusion rather than assistance. As was emphasised in R v Farr (1999) Crim LReV 506, 163 JP 193, a summing up should never be a mere rehearsal of the evidence and an omission of a particular piece of evidence or particular argument should not be considered to make a conviction unsafe, or indeed to found any valid criticism of a summing up.[57]Mr Connolly emphasises the Criminal Practice Direction of October 2015, as amended in April 2016, providing as follows: “To assist the jury to focus on the issues during retirement, save where the case is so straightforward that it would be superfluous to do so, a judge should provide:• A reminder of the issues;• A summary of the nature of the evidence relating to each issue;• A balanced account of the points raised by the parties; and• Any outstanding directions. It is not necessary for the judge to recount all relevant evidence or to rehearse all of the significant points raised by the parties.”• A reminder of the issues;• A summary of the nature of the evidence relating to each issue;• A balanced account of the points raised by the parties; and• Any outstanding directions.[58]Whatever theoretical objection the First and Second Defendants might have to the inclusion of detailed working documents to assist the jury, that approach did mean that the jury had a sensible note and a working document in relation to each of the critical transactions, both from the Crown and from the Third Defendant. Although the positions of the Third Defendant and the First and Second Defendants were not identical, there was no conflict and considerable overlap between them. The effect of the inclusion of all relevant documents, such as photographs, downloaded images and content from Facebook sites, texts, email traffic and the working documents from each side, meant that this jury had a well-structured jury bundle with all the critical material bearing on the relevant transactions and providing the matrix of evidence necessary for their decision.[59]The learned Judge directed the jury properly in the usual terms that if he left out of his summing up something which they regarded as important, they must take it into account, emphasising that it was their: “judgement on the facts that you must rely upon and not mine. That cannot be emphasised strongly enough” (summing up page 4D) He repeated similar comments at different points in the summing up, indicating that he would not seek to repeat all of the facts, as indeed would have been impossible. He informed the jury expressly that he would not be reminding them of the evidence of Jeremy Mantell, Sue Walker, and that of two other witnesses David Jones and Carol Kenneally. He stressed that they were still important witnesses to whose evidence they should have regard if they saw fit.[60]As is made clear by the skeleton argument from Mrs Becker, counsel were provided approximately one week in advance with a draft of the Judge’s summing up of the prosecution case. This led to some detailed submissions from junior counsel for Jurecka, Mrs Pryor. There was no submission to the judge in the course of, or at the conclusion of, his summing up, to the effect that he should sum up the evidence of the witnesses in relation to whom he had given the indication he would not rehearse their evidence.[61]Given that background, Mr Connolly submits that the summing up here satisfied the requirements of the law. Mr Connolly acknowledges that this Court in Amado-Taylor [2000] 2 Cr App R 189 emphasised that counsel’s closing speeches are no substitute for a judicial and impartial review of the facts from the trial judge, emphasising however that the prime consideration for a judge’s summing up is to focus the jury’s attention on the issues that are important. The Court referred to R v Farr and the principle set out in the judgment of Rose LJ in that case that:
“It cannot be too strongly emphasised that the judge is under no obligation, when summing up, to rehearse all the evidence or all the arguments.”
[62]Further, the Court in Amado-Taylor emphasised the remarks of Lord Morris of Borth-y-Gest in McGreevy (1973) 57 CAR 424 at [430], himself quoting Lord Lowry, Chief

Justice of Northern Ireland:

“It is not essential that the trial judge should make every point that can be made for the defence ... The fundamental requirements are correct directions on points of law, an accurate review of the main facts and alleged facts, and a general impression of fairness.”
[63]Mr Connolly also emphasises that the complaint advanced bears only on the summing up of parts of the evidence of prosecution witnesses. The evidence of the defence was fully summed up by the judge and no complaint has been made in relation to the detail given by the Judge as to their case.[64]In those circumstances, Mr Connolly submits that, even if this summing up might not be held up as a model summing up, it satisfied the requirements of the law. Any failings or shortcomings are certainly no basis for concluding that the convictions are unsafe.

Our Conclusions on this Ground

[65]It is important to begin with two or three over-arching points. The case was long and detailed, but the issue was whether or not the Defendants entered a dishonest conspiracy. The verdicts did not turn on a multiplicity of specific points or detailed particular allegations. The jury cannot and did not reach their conclusions on the basis of one transaction or one witness. Their judgement, taking the evidence as a whole, was whether they could be sure of the Defendants’ dishonesty.[66]There were extensive admissions by the Defendants of lies and dishonesty in sales, however qualified those admissions might be by such terms as “only a little lie”.[67]There was extensive evidence of the use of drugs to pacify horses or diminish the symptoms of pain. The defence line on this was that such use was normal. The jury had to consider this evidence as a whole, with the Defendants’ attitudes, and thus honesty, in mind.[68]There was strong – indeed unanswerable – evidence of Jurecka and Johnson manoeuvring and lying to ensure that vetting was done by Smith rather than any other veterinarian. There was in addition significant evidence, some of it unanswerable, that Jurecka and Johnson were collaborating with Smith to manipulate his fees, to the same end. There was at least one example of extremely strong evidence, to which we refer above, that a blood sample from a pony, other than the horse to be sold, was to be taken, so as to pass off the sample, and the test results, as coming from the traded horse. That is powerful evidence of dishonesty.[69]The evidence was highly persuasive that the seventeen horses used as the focus of the case were not as advertised or sold. Even allowing for the concessions of the prosecution witnesses relied on under this Ground, in our judgment there was ample material before the jury supportive of the Crown case. Taken at its highest, the body of concessions or other evidence favourable to the defence adduced from prosecution witnesses was not such as to displace the overall weight of the prosecution case derived from the seventeen horses sold.[70]With those points in mind, we consider the Appellants’ submissions. It was freely and properly acknowledged that the jury had been reminded of all the material in respect of which the Appellants criticise the judge. They heard the evidence, and they made extensive notes: a point expressly recorded more than once. There were the two sets of “working documents” organised in respect of each horse, which contained much of this material, indeed much of it noted down from a defence point of view. We address below the renewed application for leave in relation to this way of proceeding, but the fact remains that the jury had the great part of this material when they retired. As Mr Harris and Mrs Becker acknowledged, their complaint cannot be that the jury were not made aware of this material, or reminded of it. The argument really boils down to the complaint that the judge did not recapitulate this evidence and thus invest it with the weight or significance which would have been derived from his recounting it. Yet there is no complaint, nor could there be any proper complaint, that the judge failed fully to remind the jury of the defence case.[71]We do not consider that it is a desirable way of structuring a summing up for a judge to take the simple step of declining to recite any evidence from the cross-examination of a category of witnesses. It is much preferable as an approach to make an assessment of points as they arise and integrate these points, or a suitable selection of them, into a coherent account of the evidence. However, a way of proceeding like this can only lead to a successful challenge to convictions if the result is a summing up which fails overall to convey fairly the balance of the evidence. There was here “an accurate review of the main facts and [main] alleged facts, and a general impression of fairness” to employ the language of Lord Lowry in McGreevy.[72]Moreover, even if our concerns as to the judge’s approach were thought to be too muted, we are firmly of the view that the case against the Appellants was very strong. These convictions are not unsafe. For those reasons, the appeal on this Ground is dismissed.

Renewal Applications

[73]We turn more briefly to the renewed applications for leave to appeal.

Hearsay evidence of Susan Lee

[74]The application is made on behalf of Jurecka for permission to appeal on the ground that the evidence of Susan Lee, purchaser of horse 8 (Bentley) was read to the jury.[75]Susan Lee was the purchaser of the horse Bentley. At the time of the trial she was significantly ill, being treated for a pancreatic condition with a drain in place. She had a good deal of pain and was housebound. There was proper medical evidence supporting this. The Crown made an application under Section 116(2)(b) of the Criminal Justice Act 2003 on the basis she was “unfit to be a witness”. The defence conceded that the criteria set out in Section 116(2)(b) were met, but sought to exclude the evidence pursuant to the judge’s discretion under Section 78 of the Police and Criminal Evidence Act 1984 [“PACE”].[76]The relevant issues concerning Ms Lee can be summarised as:(1) the original advertisement placed by Jurecka to sell the horse was unavailable and cross-examination of the witness might elicit the best evidence remaining;(2) the defence wish to explore whether this witness had been communicating with others on the internet;(3) the defence sought to argue that the similarity of complaints about the horses sold by the Defendants might be explained by communications; and(4) the defence sought to cross-examine as to the condition of Bentley following delivery.[77]As the Single Judge observed, the trial judge considered all the relevant factors under Section 114 of the Criminal Justice Act 2003, identical for present purposes to Section 78 of PACE. An edited version of the statement was read, avoiding some of the more hostile contents of the statement from the defence point of view. The question of communication through internet forums could be and was fully explored with other witnesses, and the evidence from Ms Lee could be and was the subject of comment, on the basis of that more general and broader picture which was suggested by the defence as the source of possible tainting or corruption of evidence. As did the Single Judge, we regard the exercise of discretion here as entirely proper.

The Working Documents or Summaries

[78]There is an application by Jurecka to renew the appeal in relation to these documents. We have sufficiently described above the nature of the documents that were placed before the jury, both on behalf of the prosecution and on behalf of the Appellant Smith. It is not necessary to expand that factual picture.[79]Cases of this kind represent a considerable case management problem. Working documents of all kinds are regularly admitted before juries, often agreed but also quite often as explicitly coming from one side. There is no absolute objection to proceeding in such a fashion, provided the source and nature of such documents are clear and the jury are at all stages reminded, where appropriate, that such documents are not agreed and are there as aides memoire of the evidence bearing on the particular aspect of the case. Such documents must be handled with care. In our judgment, their proper use should be confined to a convenient reminder to the jury of the facts relied on by a given party and, in brief and neutral terms, of the conclusions sought to be drawn from those facts.[80]It is quite right that if such documents are to be admitted, the defence as well as the prosecution should be given the opportunity to place their working documents before the jury in similar manner and format to any lodged by the prosecution. How far such a process may properly go, must be decided on a case by case basis, but undoubtedly a trial judge must be careful to prevent such documents becoming too extensive or being transformed into a substitute for an adequate summing-up or closing submissions.[81]The Single

Judge observed in relation to this Ground:

“There can be no absolute bar to a document such as this being given to the jury. Indeed it happens often with documents such as schedules of telephone calls. It is therefore an issue of judicial case management, and of ensuring fairness to all parties. Provided the Judge directed the jury, as he did (transcript volume 9, pages 92-93) that they did not amount to evidence but were simply submissions, it is hard to see what prejudice would be caused. [Jurecka’s] counsel had the opportunity to do as Smith’s counsel did and prepare a counter-document. Any disputes or errors could be pointed out by your counsel in closing submissions, and the jurors asked to write a note on their copies of the document to that effect.”
[82]The Single Judge went on for those reasons to refuse leave to appeal. We agree. We likewise consider there is no proper basis for an appeal on this Ground.

Smith: Submission of No Case to Answer

[83]We have in the course of addressing the Ground of Appeal for which leave was given, summarised the case against the Appellant Smith. In our view there was a clear case for Smith to answer. As we have already noted above, Mr Barraclough made no oral submissions in relation to this application before us. We consider he was entirely realistic in taking that position. As did the Single Judge, we refuse leave to appeal on this Ground.

Abuse of Process and Contamination of Witnesses: Late Applications

[84]The basis for this application is as follows. There was a concern on behalf of the defence throughout the trial (and indeed before the trial) that there had been discussion groups or “forums” on the internet concerning the activities of the Defendants. The jury had been firmly warned against any exploration of the internet for material connected with the trial. Following the closing speech for the First Defendant, enquiries were made on behalf of the Second Defendant Johnson, and two posts were discovered on a relevant Facebook page, filed in the name “Michael Michaels”. The two posts read:
“Is it 17 horses! Allegedly! Drugged to disguise health problems or 17 in total? I think there are more than 17 horses involved in the case, surely, with 60+ witnesses. And how many “private” sellers! can manage to sell so many horses? 350+ in 5 years? “quite possible that the ‘350+ sold’ were simply a few who kept being returned and sold on again!”
[85]It transpired that the poster “Michael Michaels” was in fact a prosecution witness named Rosalind Sykes, and it emerged that she had been posting on Facebook pages under that name since at least 2013. Upon establishing the identity of “Michael Michaels” the defence applied to discharge the jury and stay the case.[86]The first question arising is whether such posts could affect the minds of the jury. As the prosecution point out, the material brought to the Court’s attention by the defence was found in closed forums. These are not “open” internet sites. In order to access the relevant sites, one would need to provide a name or pseudonym. There was no evidence that any juror had done so or had attempted to do so. Were that to have been established in relation to any juror, that juror would have been in serious contempt of court. Nothing of that kind was established and nor was there any evidence to suggest it.[87]The basis of the defence concern, then and now, was that the witness Rosalind Sykes evinced hostility to the Defendants and that she had, in effect, concealed her history of posting on the internet. Her credibility as a witness for the Crown might be affected to a relevant extent by this fact, but the evidence was closed and they could not be told of it.[88]Fuller investigation revealed that Rosalind Sykes had posted in this way in July 2012 and November 2013, as well as May 2016. Her first postings took place before the interviews had taken place, before the Defendants had been charged and about three and a half years before the beginning of the trial. The Crown submit there is nothing objectionable in her communication in that way. The second posting, in November 2013, consisted of one message, at a time when she could not know whether there would or there would not be a criminal trial. That message was capable of being or was communicated to the prosecution witness Diane Hogben. However, the Crown point out that the message was at best of marginal significance. Moreover, neither would have known at that stage (at least from this activity) that each was a witness for the prosecution, or would be so for the future.[89]In relation to the posting of May 2016, it is accepted by the Crown that Ms Sykes had been warned not to speak about the case and therefore should not have engaged in the conversation. However, her evidence was complete and nothing could possibly arise from the conversation to prejudice the trial. Any impact upon her credibility as a witness would be extremely limited and as Mr Connolly submitted to us, this represented a clearly insufficient basis to intervene in a trial that had taken three months and was now very close to completion.[90]We reject this submission from the defence. Accepting that Ms Sykes should not have engaged in internet posting following the warning she had been given, we regard her transgression as of at worst, very moderate significance. The rhetorical criticism of her, that she posted under a pseudonym, carries little impact. This was not a fresh pseudonym newly devised to circumvent the instruction she had been given. It is commonplace for those posting messages in such a way to use pseudonyms. Nothing she did or said could possibly affect the trial. At its height, a witness who had been, as she herself would suggest it, a victim of these Defendants, had made two postings before there ever was a case. That is of no significance whatsoever. She had gone on in breach of her instruction to make one rather incidental further intervention in a closed forum. In our judgment, the potential impact on her credibility as a prosecution witness was close to negligible.[91]For those reasons we refuse leave to appeal on that Ground.

Deficient Summing-up

[92]In the body of the judgment dealing with the principal Ground, we have already expressed our views as to the summing-up and to the evidence overall. This was not a favourable summing-up to the Defendants. In our view that reflected the balance of the evidence in this long trial, not least the admissions made by Jurecka and Johnson. It may be inevitable in the course of such an extensive trial that a number of quite detailed criticisms can be raised. In our judgement they come nowhere near establishing that the summing-up was defective overall, much less establishing that these convictions are unsafe. We refuse leave on this Ground as well.

Johnson’s Appeal against Sentence

[93]Although expressed at rather greater length, the nub of the submission as to the sentence on Ms Johnson is that the judge himself made remarks which accurately distinguished the role of Ms Johnson from that of Ms Jurecka, but treated the offenders in exactly the same way. It will be recalled that both Jurecka and Johnson had relevant previous convictions. It is not suggested that there is a material distinction to be made between them as on that ground. The judge emphasised that all three Appellants were actively involved in the conspiracy. He was right. In the course of his remarks, Judge Joy stated:
“In relation to the two female defendants, you both acted closely together, selling horses together, acting fraudulently together, and I am satisfied on all of the evidence that both of you were as seriously involved as each other. I reject completely the argument that has been put forward in writing on behalf of Charlotte Johnson that somehow she was less involved. The reality is that sometimes buyers were just not sure who they were dealing with between the two of you. One witness said you were always together. Well, that’s a figure of speech, but the text messages clearly show that you were acting as a team together and the effect of the evidence of both you and the First Defendant was that each was selling horses acquired by the other, or loaned, or on sale, or acquired by the other, and each of you pretended that you acted separately; that seems to me quite clear. Sometimes one bought a horse and the other sold it, and you each shared the gains. Each of you, particularly Charlotte Johnson, was always ready with the easy lies, I call it, and the false pretences; the false history such as the horses were private sales, that the horse had been owned by you or a relative or a friend for years, that it had done things it had not done: won awards which it did not; that it belonged to a friend who was pregnant or now had a job in London and how it had been ridden by an old lady who had cancer, but did not in fact exist and was a complete fiction with a completely non-existent address.”
[94]However, at page 15 of the sentencing remarks, the Judge gave a slightly different inflection to his analysis of the facts. After indicating that there had to be immediate custodial sentences, and indicating further that he had reviewed submissions, documents, letters and references sent to him on behalf of the Defendants, he said this:
“Clearly, the First Defendant, as I say, is the driving force and is in a particularly serious position. I take into account all of the documents that have been handed in on her behalf and I take into account her family circumstances and the fact that she is a mother and I reflect this in coming to the appropriate sentence. In relation to the Second Defendant I also take account of the letters handed in on her behalf and the points made in her written submissions made on her behalf.”
[95]At page 16B he said:
“In the end, each Defendant has convictions and I intend to deal with each Defendant in the same way. That is because the roles that each of you played, as well as all of your individual circumstances, all seem in the end to balance each other out and because in the end that in the end is the fairest result. In the case of the first two Defendants I have been addressed about the welfare of your children. I have taken very much what has been said in writing and in the references and documents into account.”
[96]The learned Judge then proceeded to pass identical sentences on the two.[97]The simple point made by Mrs Becker for Johnson is that the Judge, having observed that Jurecka was the “driving force” and all other circumstances being equal, in terms of previous convictions, age, responsibility for young children and other aspects of the roles in the offending, it was inappropriate of the Judge not to make some distinction in length of sentence as between Jurecka and Johnson. Having reflected upon this, we consider that there is some force in that submission.[98]For those reasons, we quash the sentence of two years six months in relation to Charlotte Johnson and substitute a sentence of two years. The Appellant has been on home detention curfew following release from immediate custody. There will be consequences of the alteration in sentence which will be explained and put into effect by the relevant prison authorities. To that extent, the appeal on sentence succeeds.[99]Otherwise, for the reasons expressed, these appeals are dismissed.

Cited in 1 later judgment