Herewith some interesting bits of Case Law. As always, let us know if there’s anything particular you’d like to see.
For a full briefing on changes to the law, and updates on caselaw and procedure, we offer Law Update training.
Atos IT Services Limited and Fylde Borough Council – NNDR Taxation on single hereditaments that are now let as multiple smaller units.
DPP v Barton – Interesting case on Res Gestae and witnesses
Poplar HARCA v Begum & Rohim – Guidance on Calculating Unlawful Profit Orders
Direct Holidays plc v Wirral Metropolitan Borough Council – Admissibility of Postal Statement Under Caution
Fagan v MPC – Coincidence of actus reus and mens rea as part of a continuing act
R v Lee Hodgin – Sentencing : Early Indication of Plea
Ivey v Genting Casinos (UK) Ltd t/a Crockfords – Dishonesty (The “Ivey Test”)
R v Jarrett & Steward – Right of a Local Authority to Prosecute
R (Michli) v Westminster Magistrates Court – Time bar starts when FPN payment period expires
R v Patten [2018] EWCA Crim 2492 – A reminder about majority verdicts DPP and Vicky Patterson – Future relationship between Ghosh and Ivey
R v Penny – Case on totality of sentencing in fraud cases
Phiri v Director of Public Prosecutions – Duty to return a form
Quinn v Director of Public Prosecutions – Sentence in case with no actual loss
R v Rahal – Prosecution Costs
Retention of Evidence / Intelligence – Not Guilty Verdict (‘YZ’ and ‘Catt’ cases)
Flintshire County Council v Mrs. Anne Reynolds 2006 – Knowingly
The Queen (on the application of Jocelyn Robson) v CPS – Case Disposal & Cautions
Royal Brunei Airlines Sdn. Bbd. 1994 – Dishonesty
R v Smith [2020] EWCA Crim 38 – Evidence of Bad Character
R v Smith [2020] EWCA Crim 38 – Interpretation of ‘Article for Use in Fraud – s.6(1) Fraud Act
R v South Ribble (ex parte Hamilton) QBCOF 99/1021/4 – Clarification that an ‘underlying entitlement’ gained through fraud may be set aside (HB case)
R v Turnbull & others [1976] QB 244 – Identification by a witness
Phiri v Director of Public Prosecutions – Duty to return a form
A brief, yet interesting, case that may be of use in cases where a person has not discharged a duty to notify a change and alleges that the fault lies with a third party who did not post the notification.
In Phiri v Director of Public Prosecutions, a case concerning a road traffic offence, the defendant was sent a notice that required him to identify the driver of his vehicle. His evidence that he completed the notice and left the envelope in the post tray at his workplace was not disputed. When the form failed to arrive, he was prosecuted and convicted for failing to furnish the required information. On appeal, his conviction was upheld – by relying on someone else, rather than posting the envelope himself, he had not discharged the duty placed on him to return the form.
DPP v Barton – Res Gestae and witnesses [2024] EWHC 1350 (Admin)
Although the case giving rise to this concerns domestic violence, something many of us do not investigate, the remarks made in this judgement surrounding hearsay and the duty to call witnesses make for interesting reading.
The main issue was the fairness of a prosecution which relied upon res gestae hearsay statements made by a domestic violence complainant and where :
the prosecution never intended to call the complainant ;
the complainant has made a retraction (and is not in favour of pursuing the prosecution) ; and
the prosecution has declined the judge’s invitation to call the complainant as a Crown witness.
The judge decided that such a prosecution would amount to an abuse of process. The High Court held this was not the case, allowed the DPP’s appeal and remitted the case to be tried by a differently constituted court.
Bottom line is that you choose which witnesses to use ; if defence wants to call a witness you choose not to use, they can but you don’t have to!
View the full case on https://www.judiciary.uk/judgments/dpp-v-joseph-barton/Â (Opens in new window)
Poplar HARCA v (1) Begum (2) Rohim – Guidance on Calculating Unlawful Profit Orders
Neutral Citation Number: [2017] EWHC 2040 (QB)
Begum & Rohim obtained an assured tenancy of a two-bedroom flat in Poplar ; the rent was met in full by payments of Housing Benefit. During the course of the tenancy, they moved out of the property and sub-let it. They retained the ‘use’ of a single room, padlocked shut, in which they kept children’s belongings in an attempt to avoid detection in case of an inspection by the landlord. Following their sublet, they gained a rental income of £400 a month.
At the original trial, the landlord claimed that the Respondents had parted with possession of the entire property, thereby losing security of tenure (s.15A of the Housing Act 1988). (It also claimed the right to possession under grounds 10, 12, 14 of the HA.) The Respondents denied moving out of the flat, saying that they had left only to care for a sick relative and that they had received no money from the ‘relatives’ who were staying at the address. The Recorder found that the respondents had not parted with possession but made a suspended possession order on the other grounds. He refused to make a UPO, finding that the Respondents had not made enough from any sub-letting to meet the rental payments.
In addition to overturning the suspended possession order and granting possession to the landlord, His Honour Judge Turner, sitting in the High Court, gave the first guidance during an appeal decision in relation to the granting and calculation of an Unlawful Profit Order.
Section 5 of the Prevention of Social Housing Fraud Act (PoSHFA) says that (in simple terms) the amount of any order should be the income generated unlawfully less any rent actually paid. The first step is to determine the total amount the tenant received as a result of [the sublet] (or the best estimate of that amount). Next you must deduct from that amount the total amount, if any, paid by the tenant as rent to the landlord (including service charges) in relation to [the period during which the property was sublet]. In making his calculations, the landlord argued, the Recorder had accounted for the Housing Benefit as rent paid but not as income received ; this, they said, could not be correct.
The Judge agreed, holding that, the word, ‘total’ means that any income that arises from the ‘the dishonest relinquishment of possession’ should be considered as income received – to do otherwise would defeat the “obvious intention of Parliament to provide a mechanism with which to strip him of his spoils.”
Note to investigators : The judge’s words mean that any income derived from the property should be included in the calculation, so do look for benefits, grants, alterations etc., in compiling your figures.
View the full case on www.bailii.org/ew/cases/EWHC/QB/2017/2040.html  (Opens in new window)
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Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent) [2017] UKSC 67 – Dishonesty
For a long time, the case law on dishonesty was R v Ghosh [1982] 3 WLR 110 (Court of Appeal). The ‘Ghosh Test’ was used in all cases where dishonesty was an element of the offence, and was comprised of two stages, requiring proof both that the ordinary and decent person (the ‘reasonable man’ on the Clapham omnibus) would think the behaviour was dishonest and that the accused have realised that what they were doing was, by those standards, dishonest.
This was overruled by the Supreme Court in the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. In this case, the judges restated the law from Royal Brunei Airlines v Tan [1995] UKPC 4 (24 May 1995), and made the point that :
(63) …there can be no logical or principled basis for the meaning of dishonesty (as distinct from the standards of proof by which it must be established) to differ [between] a civil action [and] a criminal prosecution. Dishonesty is a simple, if occasionally imprecise, English word. It would be an affront to the law if its meaning differed according to the kind of proceedings in which it aroseâ€
The court went on to say that directions based upon the Ghosh test should no longer be given and that the test of dishonesty is as set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan and by Lord Hoffmann in Barlow Clowes.
In his judgement, Lord Nichols says that dishonesty “…means simply not acting as an honest person would in the circumstances. This is an objective standard.†He goes on to make it clear that [h]onesty has a connotation of subjectivity, as distinct from the objectivity of negligence. Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated. Further, honesty and its counterpart dishonesty are mostly concerned with advertent conduct, not inadvertent conduct. Carelessness is not dishonesty. Thus for the most part dishonesty is to be equated with conscious impropriety. He goes further, noting that “In most situations there is little difficulty in identifying how an honest person would behave. Honest people do not intentionally deceive others to their detriment. Honest people do not knowingly take others’ property.†Furthermore, he makes it clear that an honest person does not deliberately close their eyes and ears or avoid asking a question in case they learn something they don’t want to know.
- What was the actual state of the individual’s knowledge or belief as to the facts?
- Was his conduct honest or dishonest by the (objective) standards of ordinary decent people.
The big change from Ghosh is that it is not essential that the accused knew that others would view their actions as dishonest or wrong.
In the case of DPP and Patterson [2017] EWHC 2820 (Admin), Sir Brian Leveson says, “These observations were clearly obiter, and as a matter of strict precedent the court is bound by Ghosh, although the Court of Appeal could depart from that decision without the matter returning to the Supreme Court. This much is clear from R v Gould [1968] 2 QB 65, in which Diplock LJ observed at 68G that:
‘In its criminal jurisdiction, … the Court of Appeal does not apply the doctrine of stare decisis with the same rigidity as in its civil jurisdiction. If upon due consideration, we were to be of opinion that the law has been either misapplied or misunderstood in an earlier decision of this court or its predecessor, the Court of Criminal Appeal, we should be entitled to depart from the view expressed in that decision …’
Given the terms of the unanimous observations of the Supreme Court expressed by Lord Hughes, who does not shy from asserting that Ghosh does not correctly represent the law, it is difficult to imagine the Court of Appeal preferring Ghosh to Ivey in the future.”
Whilst this isn’t binding on the Court of Appeal, in real terms it means that the Ivey Test is the one that courts will consider in the future.
The “Ivey Test” :
1. Did the defendant carry out the (allegedly dishonest) behaviour intentionally? (If not, they cannot be deemed to be dishonest.) If they did then :
2. Would an ordinary person (‘a man one might chance to meet on the top deck of a Clapham omnibus’) consider that behaviour to be dishonest?
Here are the links to the full cases (open in new windows) :
The Royal Brunei Airlines case is available to view on http://www.bailii.org/uk/cases/UKPC/1995/4.html
The Ivey case is available to view on http://www.bailii.org/uk/cases/UKSC/2017/67.html
The Barlow Clowes case is available to view on http://www.bailii.org/uk/cases/UKPC/2005/37.html
The Ghosh case is available to view on http://www.bailii.org/ew/cases/EWCA/Crim/1982/2.html
ThePatterson case is available to view on http://www.bailii.org/ew/cases/EWHC/Admin/2017/2820.html
Flintshire County Council v Mrs. Anne Reynolds 2006 – Knowingly [2006] EWHC 195 (Admin)
Reynolds claimed social security benefits after having signed a form that her husband had filled out which did not include income that she had from work. She was convicted of ‘knowingly making false representations’ under the Social Security Administration Act 1992. She appealed, claiming that she could not be guilty of ‘knowingly’ making the false representation if she did not read the form before signing it. Two types of knowledge were considered :
- Actual knowledge : Evidence shows that the person ‘knew’. It can be inferred from evidence of a person’s previous actions, for example, Smith did X before and so cannot claim not to know now. Evidence in support of their lack of knowledge is equally considered. A person cannot merely say that they did not know, it must be backed up with evidence.
- Constructive knowledge : Encompassed by the words ‘ought to have known’ in the phrase ‘knew or ought to have known.’ It does not mean actual knowledge at all, it means that a person had in effect the means of knowledge i.e.: could have read the form and chose not to.
The court took the view that if someone were to deliberately fail to make enquiries (read a form) in order to not have information, then this can be deemed ‘actual knowledge’. Merely neglecting to make enquires when a person should have done may be reckless and irresponsible but it is constructive knowledge only and is not sufficient for the term ‘knowingly’ in criminal statute.
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R v Jarrett & Steward – Right of a Local Authority to Prosecute [1997] 161 JPN 816
Under section 222 of the Local Government Act 1972, a local authority may prosecute, defend or appear in any proceedings and under any legislation, as long as it is in the interests of the inhabitants of the local area. This case provides that the right is very wide, and should not normally be limited.
In the case, a local authority had prosecuted a car dealer for conspiracy to defraud buyers of second-hand cars by reducing the odometer readings on a number of cars. The defendants were convicted but appealed, arguing that a weights and measures authority couldn’t bring a prosecution for conspiracy. The Trades Descriptions Act imposes certain duties on local weights and measures authorities (including the enforcement of the provisions of that Act) but is silent on any power to prosecute for conspiracy or other matters. The Authority relied on the power to prosecute created by s.222 of the Local Government Act. This, the defendants argued, was limited to matters relating to the interests of local inhabitants such as nuisance, highways and boundary disputes. Rose LJ decided that: “So far as [s 222 LGA] is concerned, there is … no warrant for limiting in any way the words of the section which, on their face, are extremely wide.”
We have not been able to find R v Jarrett and Steward [1997] 161 JPN 816 as an online resource.
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R v Rahal – Prosecution Costs [2017] EWCA Crim 1779
The London Borough of Southwark prosecuted a number of people, including Ms Rahal, for false statements to obtain a tenancy. Following her conviction, the learned Judge ordered the appellant to pay prosecution costs of £23,933.50. No order was made against the other defendants, on the basis that they were not in funds. Ms Rahal appealed the order on a number of grounds, including that any award should have been limited to the amount that would have been awarded had the CPS been prosecuting and that costs of both barristers should not be included.
The court disagreed on the first point, stating (14) that, “…We do not consider that the judge is required to do that. The prosecution here was brought by the local housing authority. They have power to bring such proceedings under section 222 of the Local Government Act 1972. They have a direct interest in doing so, as they wish to ensure the proper allocation of housing which is a scarce resource. If the costs incurred are ones reasonably incurred by them, they are in principle recoverable.â€
On the second point, the court said that it saw, “force in that submission. The position here is that the appellant had been charged with an offence of obtaining services by deception, and alternative offences of using a false instrument. The respondent contends that it would have been necessary to explain the benefit system to the jury and the case was “paper heavy”. Notwithstanding those matters, it does seem to us that it would not be reasonable to order the appellant to pay the costs of two counsel. It may well be that the presence of a second counsel was of assistance to the prosecution. Ultimately, however, we do not consider that it is just and reasonable for the appellant to have to pay the costs of that, bearing in mind that this was ultimately a relatively straightforward offence of obtaining services by deception.â€
This case emphasises the point that prosecutors should apply to the court for FULL prosecution cost, notwithstanding that portions of them may be disallowed. Where, in particular, a person’s conduct (such as contesting the case) has increased costs, the courts are likely to award substantial amounts. Against that, courts are required to be fair and so, for example, (a) if a person has no assets or (b) where multiple barristers are used, you may not receive the full costs that are scheduled.
You may view the judgement on www.bailii.org/ew/cases/EWCA/Crim/2017/1779.html
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The Queen (on the application of Jocelyn Robson) – v – CPS [2016] EWHC 2191 (Admin)
The claimant sought judicial review of the decision of the Crown Prosecution Service (“CPS”) to prosecute her for criminal damage rather than to offer her a conditional caution as an alternative disposal. The decision was made as the crime had been categorised as one of Domestic Violence and CPS guidance was against a caution in such cases. The decision maker has held themselves bound by the guidance.
“It is clear, however, that the decision maker in the present case has interpreted the Guidance as possessing no flexibility at all, and as permitting no exceptions. It follows that no consideration was given to whether a conditional caution might as a rare exception be offered. That decision was based on what we have concluded is a misinterpretation of policy. The decision to prosecute, therefore, falls to be quashed, and a further decision must be taken, recognising that the Guidance does permit of exception.
“Although the decision not to offer a simple caution is one, at least primarily, for the police and has not been challenged here, this judgment does not mean that it is not open to the police or the prosecutor, as appropriate, to reconsider that decision as well.
“Accordingly, we quash the decision contained in the email of 19th August 2015, and require the CPS to reconsider its decision on the prosecution decision in the light of this judgment. We invite the parties to agree on the form of order which should be made in the light of this judgment.â€
It is clear form this that prosecutors must be able to show that they have considered all their options. There are other cases that support this. Your policy may not restrict the case disposals you consider.
You may view the full judgement on www.bailii.org/ew/cases/EWHC/Admin/2016/2191.html
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Fagan v MPC [1969] 1 QB 439
A policeman was directing the defendant to park his car when the defendant accidentally drove onto the policeman’s foot and parked there. The policeman shouted at him to move his car but the defendant refused.
When the matter came to court, the defendant argued that, since a coincidence of actus reus and mens rea was necessary for the offence to be complete, he should not be convicted. He stated that the actus reus was driving onto the policeman’s foot and that, at the time he did that, he lacked the mens rea of any offence since it was purely accidental. When, later, he formed the mens rea by remaining on the foot, he was not acting. This he suggested meant that there was never a coincidence of actus reus and mens rea.
The court disagreed. The driving on to the foot and remaining there was part of a continuing act ; hence, when he remained on the foot deliberately, there was a coincidence of mens rea with part of the continuing actus reus.
As a matter of law, this case gives the precedent that there is coincidence of actus reus and mens rea if there is any overlap between the continuing act and the mental element of an offence.
You may view / download a pdf of the full judgement by clicking here. (…may open a new window)
R v Penny [2018] EWCA Crim 1827
Penny had been sentenced to five years and four months imprisonment, having gained unauthorised access to computer material and tracked orders for gold bars and coins. During examination of devices seized by officers executing searches in connection with tehse matters, evidence arose connecting him to a number of online frauds. These cases involved hijacking email / sales accounts (Amazon & eBay), selling non-existent goods and making purchases. The sentencing judge passed a consecutive sentence in relation to these matters and, taking into account totality, inposed a total of three years and four months.
The Court of Appeal, using the the guidelines on offences to be taken into consideration and totality, considered the question of whether the overall sentence was just and proportionate in all of the circumstances. HELD : It was clear that he had in mind the guidelines referred to and that two of the offences to be sentenced occurred while on remand. The duration and volume of offending, including the number of victims and the total value of almost £1M, took into account totality correctly and was not excessive.
You may view / download a pdf of the full judgement by clicking here. (…may open a new window)
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R v Patten [2018] EWCA Crim 2492 – A reminder about majority verdicts
The appellant was convicted of indecent assault, indecency with a child and rape, and sentenced to 15 years imprisonment. When he appealed against sentence, the Criminal Appeal Office realised that there had been a fairly serious irregularity, as a juror had been discharged leaving 11 jurors hearing the case. When there are 11 jurors, as in this case, s17(1) of the Juries Act 1974 stipulates ten jurors must agree for a majority verdict. In this case the trial judge took majority verdicts of guilty with nine in favour and two against, which meant the convictions were unlawful and could not stand. As a result, the court issued a writ of venire de novo, which orders a new trial.
The rules on majority verdicts are in the Juries Act 1974.
View the full case on bailii.org by clicking here. (opens in new window)
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R v Smith[2018] [2020] EWCA Crim 38 – Evidence of Bad Character
This case of Fraud (s.1) and Article for Fraud (s.6(1)) is an interesting case for a number of reasons, not least in that it is a Consumer Protection case. In the appeal, defence disputed what “for use in the course of or in connection with any fraud†means, when evidence of bad character may be admitted and under what circumstances a CRIMBO may be made. This note currently covers the bad character and ‘articles for use in fraud’ elements.
One of the issues before the jury was “Whether the appellant had deliberately and dishonestly failed to tell the complainant about his statutory rights with the requisite intent.†In support of this point, the crown sought to adduce evidence of the appellant’s previous convictions for dishonesty offences. One of the reasons where PreCons may be admissible is when it is relevant to an important issue between the prosecution and defence ; this is provided for by s.101(1)(d) Criminal Justice Act 2003. The prosecution applied to adduce the bad character evidence on the basis that it spoke clearly to the question of Smith’s dishonesty. The previous convictions were said to be directly relevant to the specific allegations of fraud on this indictment and also demonstrated that the appellant had a propensity to commit offences of the type alleged. Not only that, but the previous offences showed that Smith was aware of his duty to tell his customers about their cancellation rights ; this contradicted his interview in which he suggested that any failure to disclose such information would have been inadvertent.
The defence submitted that there was no other evidence of dishonesty, and that the appellant’s previous convictions should not be used to bolster a weak case. The prosecution submitted that dishonesty could be inferred from the circumstances of the interactions between Smith and the complainant ; the case against the appellant was, said the prosecution, strong and the evidence was not, therefore, adduced in an attempt to bolster a weak case.
The leading case on propensity evidence is R v Hanson: R v Gilmour; R v P [2005] EWCA Crim 824. The Court of Appeal gave this useful guidance :
1. Do the PreCons show a propensity to commit offences of the kind with which D is charged?
2. Does such a propensity make it more likely that the defendant committed the crime?
3. Although no minimum number of events are needed to demonstrate propensity, the fewer the convictions, the weaker the evidence of propensity. Note, however, that where a single PreCon discloses a tendency to unusual behaviour and/or the method of commission was of a strikingly similar nature, the n this might still be admissible.
4. How strong is the prosecution case? If there was minimal other evidence against a defendant (or none at all!) it was unlikely to be just to admit his previous convictions, regardless of their nature.
5. It was important to examine each individual conviction rather than merely looking at the name of the offence.
Such evidence is admissible, effectively, to rebut any defence of mistake or innocent association on the basis of unlikelihood of coincidence.
In this case, the judge found that the convictions established a propensity to commit offences of the type charged and that they were therefore admissible. He did not accept the defence submission that the case for the prosecution was otherwise a weak one and he concluded that the admission of the evidence would not be unduly prejudicial or unfair to the appellant. The court of appeal upheld the decision of the learned Judge and the appeal on this point was dismissed.
The Smith case is not currently available on bailii.
Click on R v Hanson: R v Gilmour; R v P [2005] EWCA Crim 824 to view the leading case on bailii.org.
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R v Smith [2020] EWCA Crim 38 – Interpretation of ‘Article for Use in Fraud – s.6(1) Fraud Act
Another ground considered by this case was whether the phrase “to be used in the course of or in connection with the fraud” could apply not only to articles that were used to mislead the customer but also to articles created earlier with a view to them being used in the fraud or created later in order to disguise or mask the fraud. In this case there was a ‘cancellation notice’ purporting to be signed by the complainant. In this case the document, if genuine, would undermine the prosecution case ; if, on the other hand, it were a forgery and had been created either to assist in the commission of the fraud or as an attempt to defeat a prosecution in relation to that count, the offence would still be made out and, said the crown, a properly directed jury could convict.
The crown submitted that there was clear evidence that supported the case that the complainant had neither seen nor signed a cancellation notice. They suggested that the jury should decide whether or not the document was genuine. It matters not, say the crown, when the document was created and whether in the course of its creation the appellant was also guilty of attempting to pervert the course of justice. If the document was intended to create a false impression that Smith dealt properly with the complainant then it was open to the jury to find that he dishonestly possessed the document as an article to be used in connection with fraud, those being the words in the statute creating the offence.
The court reviewed the case of Ellames [1974] 3 All ER 130, which was applied by the Court of Appeal in the context of s. 6(1) of the Fraud Act 2006 in Sakalauskas [2013] EWCA Crim 2278. The Ellames case deals with s.25 Theft Act 1968 (Going Equipped), but is similar in language to s. 6(1) ; indeed s.25 used to include the offence of ‘going equipped to cheat’. The court remarked that there is nothing in those authorities which holds that the relevant fraud cannot be one which has already been committed. What those cases do make very clear is that the defendant must intend to use the article either then or in the future in connection with fraud. It is NOT enough that the article is one which has been used in the past in connection with fraud.
Turning to this case, the court made two important points : firstly that the words “in connection with” are broad and are ordinary words with no technical or restricted meaning ; secondly that they must add something to the preceding phrase in the offence ‘in the course of’, otherwise parliament would not have included them.
In a case like this, the court held, it could well be said that the offence has been committed because the article is intended to be used in connection with the fraud ; for example, to demonstrate that a customer did receive the statutory notice because the defendant has possession of a document signed by him.
They observed that the interpretation they would give to s.6(1) is supported by Smith and Hogan on Criminal Law, 15th Edition, page 974, at paragraph 22.7.1.5 where it is said, “This form of words is identical to that in going equipped. The offences of fraud are so wide that the items which might be used ‘in connection with’ such activities are endless. It is not necessarily a defence that D did not intend to use the article while in the physical commission of the contemplated crime. If, for example, he intended to use it only in the course of covering his tracks after the commission of the offence, this would be enough, being use ‘in connection with’ the offence. Similarly, if he intended to use the article while doing preparatory acts, the offence would be committed.
So in a prosecution under s.6(1) Fraud Act 2006 the words “for use in the course of or in connection with any fraud†could mean :
- articles that were to be used to mislead a victim.
- articles created later in order to attempt to conceal the fraud.
The court stated that nothing in past authorities holds that the fraud in question cannot be one which has already been committed. What they do decide is that the defendant must intend to use the article either then or in the future in connection with fraud. As those authorities make clear, it is not enough that it is an article which has been used in the past in connection with fraud.
The Smith case is not currently available on bailii.
Click on R v Ellames [1974] 3 All ER 130 to view a summary of that case on swarb (opens in new window).
Click on R Sakalauskas [2013] EWCA Crim 2278 to view that case on bailii (opens in new window).
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Direct Holidays plc v Wirral Metropolitan Borough Council [1998] EWHC Admin 456 (28 April 1998) – Admissibility of Statement Made by Post
This was a Trading Standards case where the company under investigation were asked questions in a letter. The letter ended by drawing the attention of the company to the PACE caution, which was set out in full, and reminding it that it might wish to seek legal advice.
The company responded in writing but, later, questions were raised about whether the statement they made consitituted admissible evidence.
In his decision Mr Justice Blofeld said, “This was not a letter that had been written without care. First of all, it answered the questions that were put to it by the Trading Standards Office and their letter of 28th November reminded the Appellants of the caution and suggested they seek legal advice.â€
View the full case on bailii by clicking here (opens in new window).
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Atos IT Services Limited and Fylde Borough Council – NNDR Taxation on single hereditaments that are now let as multiple smaller units.
Neutral Citation Number : [2020] EWHC 647 (QB)
In this case, parts of the main hereditament had been let to other tenants (that also occupied other parts of the office block that HAD been valued as separate hereditaments) – including a block of office space and a considerable number of parking spaces. The areas in question were contained within the description of the main hereditament, not the other hereditaments within the block, which were occupied by the companies that also leased those parts of the main hereditament.
The main question decided by the Judge was a pure issue of law. It concerns the liability, if any, of a person for business rates in circumstances where the person said to be liable does not occupy the entirety of the unit of property (or, “the hereditamentâ€) identified in the relevant rating list.
The Judge held that the hereditament must be considered as a single, indivisible “unit†and that a person is only in rateable occupation if he occupies the “unit†(as a whole). Where a person cannot occupy part of the hereditament because that part is let to another there is no liability at all for any of the rates, as the hereditament may only be taxed as a whole. The correct process was for the council to ask the Valuation Office to ‘correct’ the list, by reviewing the current hereditaments and revising them, creating novel ones, if appropriate.
This is a potential issue for any authority seeking to establish liability and bill accordingly in cases where larger units are sublet to multiple tenants.
View / download a pdf of the full case by clicking here (…may open in new window).
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R v Lee Hodgin – Sentencing : Early Indication of Plea
Neutral Citation Number: [2020] EWCA Crim 1388
In this case, the appellant sought the full one-third reduction in sentence because he had indicated a ‘likely guilty plea’ on committal to the crown court on a charge of conspiracy to burgle. Held that this was not an unequivocal indication of plea and that the full discount did not, therefore, apply.
The case turned on the Sentencing Council’s Definitive Guideline on Reduction in Sentence for a Guilty Plea, effective from 1st June 2017, which provides that (with certain exceptions), “Where a guilty plea is indicated at the first stage of proceedings, a reduction of one-third should be made. The first stage will normally be the first hearing at which a plea or indication of plea is sought and recorded by the court.
In this case, the matter being indictable only, a plea could not be taken at the magistrates’ court so, on the committal paperwork, defence had indicated a likely guilty plea. Defence contended that this amounted to an indication of a guilty plea, requiring a one-third discount to the sentence. The crown submitted that the word ‘likely’ made the entry meaningless, meaning that pre-trial preparation was started. In the event, on the first appearance at the crown court a guilty plea was entered.
The judges considered the case in light of two other decided cases, R v Hewison [2019] EWCA Crim 1278 and R v Davids [2019] EWCA Crim 553. In the first case, the question asked on the case management papaerwork was “What are the likely pleas indicated?” ; the defendant had written ‘G’. The court agreed that, in answering “Guilty”, the defendant could have said no more to indicate that it was a definite and unequivocal plea of guilty rather than merely a probable plea of guilty. In the second case, R v Davids, the question was different, “Pleas (either way) or indicated pleas (indictable only) or alternatives offered” (this being the same wording used in the current (Hodgin) case) ; the defendant had noted “Likely to be guilty pleas on a basis.” This, the court indicated, was very different : the defendant could have indicated, “guilty†but chose not to. This rendered the answer meaningless : how likely and on what basis?
In the instant case, the judges agreed that Hewison and Davids were not at odds with each other and that the current case management forms are clear in asking for an indication of plea. If the indication is modified with words to the effect of ‘likely’ or ‘probable’ or ‘on a basis’, then this is not a reliable indication of plea and will not attract the full discount.
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R v Turnbull & others [1977] QB 244
In 1977, the Court of Appeal heard three appeals (from four defendants) and prescribed rules to guide Judges faced with contested visual identification evidence. Those rules are summed up by acronyms – either ‘VODKA all the time, TEA when you have to’ or ADVOKATE. The CPS use these guidelines for visual, and voice recognition or identification. The guidelines are aimed at assessing the quality of the identification.
A witness statement must include (as juries are expected to have regard to) Visibility / Obstructions / Distance / Known to the witness (or seen before) / Amount of time, in addition to other matters. (More information on our Quality Witness Statements course.
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Retention of Evidence / Intelligence – Not Guilty Verdict
On the application of YZ [2021] EWHC 1060 (Admin)
Catt v UK [2019] 69 ECHR 7
Whilst it is clear that there is no need to keep unused material following an acquittal, the case of YZ raises the question of what may be kept in terms of intelligence. In this case, YZ had been acquitted of three counts of rape within marriage. The South Wales Police retained details of the acquittals and other details about the claimant on the Police National Computer (PNC) and the defendant sought to argue that such retention is unlawful.
During the case, the defendant had made various comments (the details are not important to this principle) that led the police to believe that he might offend in the future and/or that his wife and children (and possibly others) might be at risk from him. On those grounds the police reviewed his request for his details to be deleted and declined, indicating an intention to retain that information until he reached the age of 100.
The court held that, as long as a reasonable consideration of the facts had been undertaken by the DP officer (acting for the Chief Officer), in accordance with the guidance contained within the National Retention Assessment Criteria, a lengthy retention of intelligence was lawful.
The case of spurious retention is considered in Catt v UK [2019] 69 ECHR 7. The applicant had been an active peace campaigner since 1948. In 2005 he began participating in demonstrations organised by a violent protest group which attracted a substantial policing presence. The applicant himself had never been convicted of any offence and his risk of violent criminality was remote.
Catt sought the deletion of his data held on a police database known as the “Extremism databaseâ€. The data held included information such his name, address, date of birth and presence at demonstrations. Most of the records related to demonstrations organised by the violent protest group but others related to the applicant’s attendance at political and trade union events.
The court held that such retention was contrary to his Article 8 rights.
The guidance is relevant to anyone retaining Criminal Intelligence and can be accessed here : https://www.app.college.police.uk/app-content/information-management/management-of-police-information/retention-review-and-disposal-of-police-information/ (Opens in new tab)
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Considering risk (for sentencing purposes) where the harm is reputational not fiscal
Quinn [2021] EWCA Crim 1563; [2022] 1 Cr. App. R. (S.) 56
Quinn was committed to the crown court for sentencing in regard to the theft of an item that would have caused no fiscal loss to his employer. The arguments used here might be of use or interest to anyone prosecuting a case where the damage or harm is to reputation rather than actual loss – for example data theft.
Quinn worked at a medical research company from where he stole a bottle of viral vector intended for use in the treatment of leukaemia. In sentencing, the judge identified a breach of trust, concluding that there was a high degree of trust that was breached, which attracted category A culpability. The question of assessing the harm was less straightforward as, had Quinn not taken it, the bottle would have been disposed of as surplus to requirements. This resulted in no actual financial loss to his employers. (Furthermore, Quinn nad not attempted to sell the sample, instead destroying it.)
The Court of Appeal held that the issue of value was not germane to the harm caused by the theft, preferring instead the issue identified by the Chief Operations Officer that much of the company’s work was highly confidential and publicity around the loss or sale of a product highly could be highly damaging to the company’s reputation.
Sentenced based around the actual value would have been at the lowest level and the court agreed that it would run contrary to the interests of justice if this were done. That being the case, harm was assessed in the light of the risk of serious reputational damage, regardless of the fact there was no evidence of any actual loss or damage.
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R v South Ribble (ex parte Hamilton) QBCOF 99/1021/4 – Clarification that an ‘underlying entitlement’ gained through fraud may be set aside (HB case)
In this case, Hamilton claimed HB, based on an underlying entitlement to housing benefit. The local authority declined to pay it, based on evidence that confirmed to their satisfaction that he had witheld material information when claiming income support. Hamilton argued that the LA had no right to go behind the DSS decision and that, IS being awarded, HB must follow. The Court of Appeal confirmed the first instance decision that a person might not rely on something gained fraudulently, in order to gain something for themself. Although this is an HB case, its application is not limited to that arena.
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R (Michli) v Westminster Magistrates Court [2024] EWHC 559 (Admin)
The court confirmed that, if a fixed penalty notice had been offered, the period for calculating the time bar runs from the date the period for payment of the FPN expires, and not some earlier period, such as the date of the offence or the date the FPN was offered.
Held: “…the evidence was not sufficient to justify a prosecution until it was known whether the claimant would pay the fixed penalty. If he did, a prosecution would not be justified. Indeed, it would not even be permitted. If he did not pay, even if he made his refusal to pay clear from the outset (which, in this case, it seems he did not), a prosecution could still not be brought until expiry of the 28 days. The evidence justifying a prosecution could not be complete until it was known that there had been a failure to pay the Fixed Penalty Notice sum within the 28 day period allowed.â€
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