Cook, R. v [2017] EWCA Crim 353

[2017] EWCA Crim 353

Case No 201600606 C3

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 7 February 2017

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE FULFORD

MR JUSTICE LANGSTAFF

THE COMMON SERJEANT OF LONDON ‑ HIS HONOUR JUDGE MARKS QC

(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)

Between

R E G I N ACrown

Between

NICOLA COOK

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Mr D Leathley appeared for Applicant

Mr A C Jones appeared for Crown

J U D G M E N T (Approved)

LORD JUSTICE FULFORD:

[1]On 17 December 2015 in the Crown Court at Cardiff before Judge Williams and a jury, the applicant, who is now aged 42, was convicted of conspiracy to defraud. On 29 January 2016 she was sentenced to 12 months' imprisonment.

[2]Before this court, the applicant applies for an extension of time (19 days) in which to apply for leave to appeal against conviction. The applicant's advocate, Mr Leathley, abandoned her appeal against sentence during the course of the hearing, but both of those applications had originally been referred to the Full Court by the Registrar.

[3]It is said that the justification for the delay as regards the application for leave to appeal against conviction is to be found in a decision by Mr Leathley to delay the application for leave to appeal until after the applicant had been sentenced so as not to prejudice her at the sentencing hearing, because the judge might have discovered that there was an extant appeal. We indicate immediately that that explanation for the delay in filing grounds of appeal against conviction is entirely devoid of merit. A defendant will never be prejudiced at his or her sentencing hearing because he or she had filed an application for leave to appeal against conviction. The applicant's submission involves the starkly disrespectful suggestion that the judge may sentence the defendant less favourably because he or she was seeking to challenge the safety of the conviction. It is to be regretted that the applicant's representatives have chosen to advance such a fallacious argument. In these circumstances the court would have been fully entitled to have refused the application for leave to appeal against conviction without considering the merits of the proposed appeal, but out of an abundance of caution we have considered whether or not this appeal is arguable.

[4]The case against the applicant was that she played a relatively minor part in an extensive piece of criminality involving a large number of defendants who were involved in a conspiracy to defraud money from a variety of insurance companies. The modus operandi was that of the well‑known "cash for crash" deception, involving staged or non‑existent accidents. It was said to have been operated from premises trading as a garage called Easifix. The central conspirators were Byron, Peter and Rachel Yandell. This extensive criminality was reflected in a series of indictments, and the particular conspiracy alleged against the applicant involved claims for an accident which was said to have occurred on 8 August 2009. The co‑conspirators named with the applicant on that count were Byron, Rachel and Peter Yandell, Jonathan Cook, Alan Williams, Darren Hillman, Terence Lee and Emma Lee. A collision between a Land Rover Discovery and a Mitsubishi Pajero on 8 August 2009 was reported to two insurance companies. The Discovery was said to have pulled out in front of the Pajero causing the latter to collide with the rear offside door of the Discovery. Darren Hillman was purportedly driving the Discovery with Terence and Emma Lee as passengers. Jonathan Cook was alleged to have been driving the Pajero with Nicola Cook and Alan Williams as passengers. £37,803.73 was paid by Aviva to the occupants of both vehicles in respect of the damage to them, personal injuries and legal costs. There was further loss to the insurance industry of £16,609.03 following legal claims. The applicant received a payment of £6,000 on 30 December 2010 for alleged personal injury.

[5]The prosecution case was the accident was a fiction and that the claim was entirely fraudulent. Given the focus of the grounds of appeal it is unnecessary to investigate the various strands of the case against the applicant and her co‑accused. The applicant's case was that there had been a collision on 8 August 2009. She had been a passenger in the Pajero driven by her husband and had received whiplash injuries on account of the accident. She denied that she had been involved in the conspiracy to defraud either of the insurance companies. She maintained that she had no contact with the other accused prior to the trial, save her husband and one of his friends, Alan Williams, with whom she had refused to be involved because she disliked him. Her case was that her husband completed the insurance forms that she agreed she may have signed at his request. She maintained she believed that this was a bona fide insurance claim.

[6]Of relevance to this application, Police Constable Goddard gave evidence of his inspection of the two vehicles. The Pajero had sustained light damage and the vehicle was in pristine condition at what would have been the first point of impact in line with the account that had been provided by the alleged conspirators. There was no scratch or damage where such ought to have been found. As regards the Discovery, there were no horizontal scrape marks or drag marks, and no marks that would have been caused in a real collision by the front of the Pajero. There was no paint transference between the two vehicles. The officer concluded, "I do not know what caused the damage to either of the vehicles, but it was not interaction with the other".

[7]The applicant called an expert as part of her defence, Alan Edwards, who concluded that on the basis of what he had seen "we cannot discount the two [vehicles] coming together". The applicant gave evidence. She said that they had owned the Pajero for about 5 years and it was used to tow a caravan. She maintained that she had not known the occupants of the other vehicle. She said that the accident had happened in the evening and that her husband had been driving. The vehicle had pulled in front of them and the collision caused her injuries. She said that she had been in a lot of pain. The account to the doctor who examined her and her account in court were notably inconsistent.

[8]In the grounds of appeal it is submitted first that the judge erred in failing to direct the jury that in order to convict the applicant they should be sure that she knew of the existence of others involved in the conspiracy in addition to herself and her husband. This ground of appeal, in our judgment, is without foundation. The judge directed the jury on this issue as follows:

"Just as it is a criminal offence to commit fraud, so it is a criminal offence for two or more people to agree with one another to commit that offence, and an agreement to commit an offence is called a conspiracy. The offence charged here is conspiracy to defraud. In law a husband and wife, do not ask me why, in law a husband and wife cannot conspire together. For that reason when considering the evidence in relation to the count affecting Nicola Cook, Count 2, to find Nicola Cook guilty upon that count you would have to be sure that she conspired with someone other than Jonathan Cook, her husband. The prosecution allege that none of the accidents took place and that claims made upon the basis that they did are fraudulent. You would not convict any defendant if you concluded that it was or may have been a genuine, but inflated claim. Before you can convict any of the defendants of the counts charged, you must be sure, first, that there was an agreement between two or more people to commit the offence of fraud, and, second, that the defendant whose case you are considering was a party to that agreement in the sense that (a) he or she agreed with one or more of the other people referred to in the count that the crime should be committed, and (b) at the time of agreeing to this he or she intended that they should carry it out. When people make agreements to commit crimes you would expect them to do so in private. You would not expect them, would you, to agree to commit a crime in front of others or put their agreement into writing? But people may act together to bring about a particular result in such a way as to leave no doubt that they are carrying out an earlier agreement. Different people may join in an agreement at different times. But if a defendant joined in an agreement intending that the agreement be carried out, he or she is guilty of conspiracy. Different people may be involved in an agreement on different levels, and play different roles in putting it into effect. They need not know one another or know all of the details. If a person joins an agreement at whatever level, and whatever role he or she plays or agrees to play, intending that the agreement be carried out, he or she is guilty of conspiracy. You may wish to add here one matter, and it is this: if one withdraws following an agreement, that is irrelevant to guilt. I will repeat that: if one withdraws following an agreement, that is irrelevant to guilt. Accordingly, in deciding whether there was a criminal conspiracy, and, if so, whether the defendant was a party to it, you must look at all the evidence as to what occurred during the relevant period covered by the count, including the behaviour of each of the alleged conspirators. If you are sure that there was a conspiracy and that the defendant was a party to it, you must convict. If you are not sure, you must acquit. The questions for you are, question 1, are you sure that the collision did not take place? If you conclude that the collision did or may have taken place as part of a genuine accident, your verdict would be not guilty. If you are sure that the collision did not take place as part of a genuine accident, go on to question 2, which is, are you sure that the defendant was a party to a conspiracy to defraud the insurance company or companies concerned by falsely claiming that the collision was genuine? If you are sure that he or she was, verdict guilty. If you are not sure, verdict not guilty."

[9]Furthermore, the judge provided written directions to the jury and he read from them when giving the jury the legal direction that we have just set out.

[10]In analysing the applicant's contention that the judge should have directed the jury that the prosecution needed to be able to prove that the applicant was aware of or knew of the existence of "parties other than her husband and herself" it is necessary to look at the reality of this case. As already rehearsed, for each defendant to be convicted the jury needed to be sure, inter alia, that the accused they were considering knew that either the accident did not take place at all or, if it did occur, it was not genuine, in the sense that it had been staged. If the jury were sure of either of those two bases they would be entitled then to conclude that the applicant must have known that the false arrangements of which she must have been aware or had observed, given she was said on her own account to have been a passenger in the Pajero, involved another vehicle allegedly driven by someone who was not her husband in order to advance the necessary false claims that were made to the two insurance companies. This is particularly the case given that on her own account she had been involved in an incident with another vehicle when Williams, one of the alleged co‑conspirators, was a passenger in the vehicle in which she was travelling.

[11]It is not a requirement of a criminal conspiracy that the co‑conspirators have met to devise their plan, or that any individual participant is aware of the identities of any of the others who are involved. Instead, a conspiracy simply requires the agreement of two or more individuals. A conspiracy may exist between people who have neither seen nor been in contact with each other. These statements of law are so well established that they do not require the citation of authority.

[12]Mr Leathley, on behalf of the applicant, has suggested that, based on R v Chrastny

(1992) 94 Cr App R 283

, the judge should, in addition to the words that he used, to have directed the jury that they needed to be sure that the applicant had knowledge that there were others with whom she had conspired in addition to her husband without necessarily being aware of their identity. We do not accept that that criticism has any validity. The judge correctly directed the jury that they needed to be sure that the applicant had conspired with someone other than her husband. That self‑evidently dealt with the need in order for there to be a conviction for the applicant to have joined a conspiracy which involved at least one other person in addition to her husband. Reference by the judge to the word "knowledge" would not have added anything material to the direction which he gave.

[13]What is necessary is that the alleged conspirator is a party to a common design, and he or she must have been aware of a scheme involving others which he or she joined. All of those requirements were dealt with with great clarity by the learned judge.

[14]In our judgment, it was wholly open to the jury to conclude that either there had been no accident or that it was not genuine, and for them then to have drawn the inference that the applicant joined in this conspiracy with one or more individuals apart from her husband. As we have already set out, the judge directed the jury that "to find Nicola Cook guilty [...] you would have to be sure that she conspired with someone other than Jonathan Cook, her husband."

[15]We note that there was evidence before the jury that the applicant knew members of the Yandell family, together with Alan Williams who was travelling in the same vehicle. There was also evidence before the jury that the applicant had been involved in previous collisions resulting in payments for personal injuries. We repeat that the judge distributed the written directions in law in advance of the summing‑up. There was no suggestion at that stage or after the summing‑up had been delivered that the directions were deficient in the manner now advanced before this court.

[16]As to the second ground of appeal, it is suggested there is fresh evidence available to support the contention that there had indeed been a genuine accident. The Crown disclosed at trial a statement or report from a vehicle examination and collision expert, Brian Henderson, which supported the applicant's account that the two vehicles may have collided by accident, in the sense that Mr Henderson suggests that he would be "hesitant" to provide a report which concluded the vehicles did not collide given the poor quality of the photographic images of the Land Rover.

[17]The applicant now claims she was prevented from calling this witness by her co‑accused because Mr Henderson had made statements contrary to their cases on other issues that had arisen during the course of this trial. There is no evidence before this court to support the suggestion that the applicant was prevented from introducing this evidence. All that is said in the grounds of appeal ‑ which of course is not evidence ‑ is that she was "pressured". This is further described as an "implicit threat" that she would be held accountable if she did something to undermine the cases of any of her co‑accused. No witness statement has been provided from the applicant, nor is there any application to introduce evidence that she had in any way acted under pressure. We note, moreover, that this suggested problem was not raised at any stage with the trial judge. There is no basis for the suggestion that there is a reasonable cause for the applicant having not called this evidence at trial. It follows that this ground of appeal, as with the first ground of appeal, has no credible foundation and the renewed application for leave to appeal against conviction is refused.

[18]As we observed at the outset, the application for leave to appeal against sentence was abandoned during the course of this hearing, and in consequence we do not need to consider the merits of that application any further, save to indicate this: if the application had been maintained, we consider that it was so lacking in merit it is likely that we would have disallowed time so as to mark our view as to the lack of merit in the arguments that had been outlined in writing. As it is, because the application has been abandoned, we will not adopt that course.