Gleeson, R. v

J U D G M E N T

Thursday 16 October 2003

LORD JUSTICE AULD:

1. On 19 December 2002, before His Honour Judge Dodgson and a jury in the Crown Court at Southwark, the appellant, John Vincent Gleeson, was convicted on count 2, of what was by then a two count indictment, of conspiracy with a co-accused and with others unknown to obtain property by deception contrary to section 1(1) of the Criminal Law Act 1977. Count 1 of the indictment (to which count 2 became an alternative) had charged the appellant with the common law offence of conspiracy to defraud. The jury entered a verdict of not guilty on that count on the judge's direction. The appellant appeals against conviction by leave of the full court.

2. The prosecution case was that the appellant and a co-accused, Aimienwauu, who was similarity convicted, were parties to an advance fee fraud to obtain £35,000 from a man called Stefan Udovic by falsely representing that they would pay into a bank account to be opened by him a sum of $75 million.

3. The prosecution relied on a fax sent to Udovic by an allegedly fictitious company, on recorded conversations between one or other of the conspirators and an undercover police officer posing as Udovic, and on inferences capable of being drawn from the appellant's silence when later interviewed by the police.

4. The defence case was that the jury could not be sure that the conspiracy was to commit the crime alleged. It might equally have been a conspiracy to launder money.

5. The appellant, who gave evidence and called witnesses in his support, explained his silence in interview by saying that he had been uncertain as to what was going on and had, as a result, decided to say nothing. The co-accused did not give evidence. Thus the issue for the jury was whether the prosecution had proved an agreement to obtain £35,000 from Udovic by the deception that in due course $75 million would be paid into an account to be opened by him for the purpose.

6. The prosecution evidence in summary, and so far as material, was as follows. In early July 2002, Udovic, a Swedish national, was the recipient of a letter in Sweden from a man who stated that he was Peter Anthony, a Ghanaian lawyer, seeking assistance to effect a transfer of $75 million from Africa to Europe. He asked Udovic to open a bank account in London in his own name and to provide £35,000 to cover fees of £10,000 and an opening credit balance of £25,000. Anthony was very pressing in his request to Udovic for this assistance. He telephoned him a number of times over some days about it. Udovic also received, as we have indicted, a fax from an allegedly fictitious entity under the name of Optimum Financial Services. We say allegedly fictitious because the police were later unable to trace it in the Companies Registry.

7. Udovic, who was a man of some sophistication in business affairs internationally and in Africa particularly, was suspicious. He informed the British police.

8. Arrangements were made through an intermediary, a man named Otis Grant, for Udovic to meet Anthony at the Royal Lancaster Hotel in London on 15 July 2002. The undercover policeman who was to pose as Udovic duly came to London on that day, where he was met by a man who drove him to the hotel. There they found the appellant and his co-accused. The co-accused introduced the appellant by the name of Walker. There was a brief discussion in which the appellant referred, among other things, to contractual obligations. The undercover officer then arrested the appellant. On searching him he found £400 odd in cash and a travel card issued at Sydenham station, but no form of identification. The appellant refused to say who he was. In interview, as we have said, he declined to answer any questions. At his co-accused's address there was found a travel card with the name Anthony on it. There was no evidence as to what, if any involvement, either the appellant or the co-accused had had in the events leading up to the meeting on 15 July 2002.

9. The indictment on which the appellant was arraigned, to which he pleaded not guilty and upon which the prosecution evidence was adduced, contained only one count, namely, common law conspiracy to defraud.

10. At the close of the prosecution case, and without any advance warning to prosecuting counsel, Mr Stephen Spence, counsel for the appellant, submitted that there was no case to answer on the indictment as drawn. He and counsel for the co-accused took that course in part in reliance on the ruling of the House of Lords in DPP v Nock [1978] AC 729, that there could be no common law conspiracy to defraud where, unknown to the alleged conspirators, the object of the conspiracy was impossible to achieve. The focus of the submissions of both defence counsel was that the prosecution could not identify any date before 15 July 2002 upon which they joined the conspiracy and by which time it was plainly impossible of achievement -- plainly impossible of achievement because by then the potential victim had handed over whatever role he might have had in the matter to the police; there was going to be no victim.

11. In the light of that authority the judge accepted the submission that the defendants could not be convicted of common law conspiracy to defraud. Miss Emma Broadbent, counsel for the prosecution, then applied to amend the indictment by adding what became count 2, a charge of statutory conspiracy to obtain money by deception. Both defence counsel resisted that application. They said that they had met the case that their lay clients had to answer and that the sought amendment deprived them of a good defence to the prosecution. They said that, in anticipation of making and being successful in their submission in reliance on the case of Nock, they had deliberately not cross-examined prosecution witnesses and had agreed to much of their evidence being read. They added that such cross-examination as there had been of prosecution witnesses had, for the same reason, been kept to a minimum. They maintained that they had been under no duty to cross-examine witnesses to meet a charge that the prosecution had not preferred, relying on the decision of this court in R v O'Connor [1997] Crim LR 516. In that case the court held that the trial judge had been wrong to permit the addition of a further count in order to put the prosecution case on a different basis after a successful submission of no case on the original indictment. The court was of the view that the defendant had been deprived of putting his case in the way he would have done if the prosecution had charged the correct offence from the start.

12. With that authority in mind, both defence counsel invited the judge to discharge the jury and direct a fresh trial. They said that they would have asked more questions of the prosecution witnesses who had given oral evidence, notably Udovic and the undercover police officer, and they would have challenged the admissibility of certain evidence. The judge rejected their submissions and gave the prosecution leave to amend the indictment by adding as a second count the charge of statutory conspiracy. In a full and carefully reasoned ruling, he said that there would be no injustice to the defence in permitting the prosecution to “change the legal description of the dishonest activities” that the prosecution had alleged from the start. He added that any possible unfairness to the defence could be cured by allowing prosecution witnesses to be called or recalled for cross-examination or further cross-examination.

13. Defence counsel, in particular Mr Spence, made two further submissions, both of which the judge rejected. The first was that there was in any event no case of fraud to answer because the prosecution evidence was as consistent with an allegation of money laundering (for example, an attempt to circumvent exchange control restrictions in an African country) as it was with the fraud alleged. The second submission was that the allegation was one of economic loss, and there was no prosecution evidence that Udovic had a right capable of being prejudiced either by actual loss or being put at risk, in accordance with the Privy Council ruling in Adams v Regina [1995] 2 Cr App R 295.

14. The judge rejected those submissions too, and the trial continued. Neither defence counsel requested that prosecution witnesses be called or re-called for cross-examination or further cross-examination. The appellant, as we have said, gave evidence; his co-accused did not.

15. There are four overlapping grounds of appeal, all of which centre on the judge's decisions permitting the prosecution to add the charge of statutory conspiracy to the indictment and, having done so, to continue the trial. The grounds of appeal are in these terms:

(1) The appellant was entitled to meet the charge on the indictment and rely on the submission of no case to answer, following which the judge was wrong to allow the prosecution to amend the indictment effectively in its entirety.

(2) The judge erred in allowing the amendment without first considering the strength of the prosecution evidence.

(3) The judge wrongly refused the application to discharge the jury and order a fresh trial.

(4) The appellant was deprived of a fair trial, and, as a result, the conviction is unsafe.

16. In refusing leave to appeal, the single judge observed:

“I have considered the papers in your case and your grounds of appeal and have decided that your application must be refused.

1. The question for the judge was whether the amendment to the indictment could be made without injustice to you. He rightly concluded that it could, provided that the witnesses were recalled for cross-examination.

2. There was ample evidence to go to the jury.

3. There was no injustice to you in not discharging the jury. If the reason for recalling the witnesses reflected badly on anyone in their eyes it was the prosecution.

4. Your conviction was not unsafe.”

17. But on renewal of the application, the full court gave leave. Hooper J, giving the judgment of the court, said at paragraph 8 of the transcript:

“Whilst we have considerable doubts whether or not this appeal will succeed, we do think it important that the full court have an opportunity to consider the submissions made by Mr Spence, relating to the duties and obligations of counsel when they know that they have a cast-iron answer to the charge but do not take the point until the close of the prosecution case. In those circumstances, so that the matter can be considered more carefully, we grant leave to appeal.”

18. The main issue in this appeal flows from the circumstances giving rise to those observations of Hooper J. Where a defendant with an unanswerable legal challenge to the indictment, which unless amended would entitle him to an acquittal, leaves it until the end of the prosecution case before raising it, does justice require that, though the defect is remediable by amendment, no amendment should be permitted at that stage or, if it is, that there should be a fresh trial before another jury?

19. It is to that issue, the fairness of the trial, which is often highly fact-sensitive, that the duty of defence counsel in such circumstances falls for consideration. Mr Spence, on behalf of the appellant, largely repeated the arguments that he had addressed to the judge in his various submissions at the close of the prosecution case. He added that the judge, before allowing the amendment of the indictment, should have had regard to his submission of insufficiency of evidence -- a submission that, though made later in time, he had signalled in a skeleton argument provided to the judge. He submitted that, even if the judge had acted correctly in allowing the amendment, he had acted wrongly in refusing to discharge the jury and to order a fresh trial.

20. Mr Spence's main point in support of this complaint was that he had conducted the appellant's defence in a manner commensurate with the submissions, in particular that based on the Nock ruling, that he intended to make at the close of the prosecution case. He said that the judge's ruling to continue with the jury put him “atmospherically” in a difficult position. The jury might think, he said, that the defence had had something to hide, and that, therefore, there was no longer a level playing field. He maintained that it was unfair to the defence to force it to choose between not cross-examining witnesses and requiring their recall for cross-examination. There was, he said, a real risk of the jury being left with an unfavourable impression of the way in which the defence was conducting its case. If the trial continued, as ordered by the judge, there was a risk of prejudice to the appellant. If a fresh jury had been empanelled, there would have been no risk of such prejudice. In short, he submitted that the judge should have given the defence an opportunity to avoid that risk.

21. In making those submissions, Mr Spence frankly acknowledged that he could have notified the prosecution and the judge of the “Nock” point at a much earlier stage, and that he had not done so because he would have lost the tactical advantage for which he had hoped from leaving it to the latest possible moment, that is at the close of the prosecution case. Implicit in that acknowledgement was his expectation that it would be more difficult for the prosecution to secure amendment of the indictment to cover the position at that stage than it would have been if it had been dealt with at the outset of the trial.

22. Miss Emma Broadbent, on behalf of the respondent, focused her submissions on the duties of defence counsel who intend to make what they regard as a strong submission of law that the facts and evidence upon which the prosecution rely are not capable of amounting to the offence charged. She submitted that in recent years what used to be regarded as an inalienable right of the defence to ambush the prosecution in this way with technical defences has been significantly modified by legislation and Practice Directions. The forensic climate, she maintained, has changed. She referred to “a gradual evolution of practice” in this respect, starting with the requirement in the Criminal Justice Act 1967 on the defence to give particulars of a proposed alibi defence, moving on to the recommendations of Lord Roskill in his report on the Trial of Serious Fraud, as implemented in the Criminal Justice Act 1987, and then the Criminal Procedure and Investigations Act 1996, largely implementing the recommendations of the Runciman Royal Commission in its introduction of a system of mutual disclosure by the prosecution and defence before trial of material relevant to the issues in the case. She referred also to the Practice Direction on Plea and Directions Hearings in the Crown Court 1995 to similar effect ([1995] 1 WLR 1318).

23. The 1996 Act in its provisions for a system of staged mutual disclosure requires the prosecution to disclose its full hand in the form of primary and secondary disclosure, and the defence a more modified hand, in the form of a defence statement identifying simply, but importantly, what is in issue. Miss Broadbent drew particular attention to the requirements of section 5(6) of the Act on a defendant in the formulation and provision of a defence statement. He is to set out in general terms “the nature of his defence”, “the matters on which he takes issue with the prosecution” and in the case of each such matter to state “why he takes issue with the prosecution”.

24. Miss Broadbent observed that, though this is a statutory obligation on the defendant, not on his legal representatives, it has an obvious carry-over into their professional obligations when advising and acting for him in the preparation for, and conduct of, his defence at trial. Thus, similar formulae are to be found in Practice Directions and other instruments governing various forms of pre-trial hearings, most notably, as we have mentioned, the 1995 Practice Direction. Miss Broadbent referred to paragraph 10 of the Direction, the relevant parts of which read:

“Following a not guilty plea .... the prosecution and defence will be expected to inform the court of: (a) the issues in the case; .... (j) any point of law which it is anticipated will arise at trial, any questions as to the admissibility of evidence which appear on the face of the papers, and of any authority on which the party intends to rely; .... (n) any other significant matter which might affect the proper and convenient trial of the case; ....”

25. Turning to the application of those statutory and practice requirements on defendants and their carry-over to their legal representatives to the facts of this case, Miss Broadbent drew attention to the following matters and made the following submissions:

(1) At the plea and directions hearing in the case on 5 September 2002, the Judge's Questionnaire Form completed by and handed in by Mr Spence on behalf of the appellant showed blank in the box for question 12(a):

“Any points of law likely to arise at trial?”

And his answers to other questions in the form did not mention the possible effect of the Nock authority on the validity of the indictment.

(2) In the defence statement of 29 November 2002 (only about three weeks before trial), again there was no mention of the point.

(3) It appears therefore that Mr Spence deliberately chose not to comply with his professional duty to disclose a critical, possibly determinative, issue of law on which the defence intended to rely.

(4) The result of that failure, coupled with the prosecution's own initial error in the drafting of the indictment was to lead the prosecution again into error when confronted at the last moment and without warning with the Nock point. Miss Broadbent said that, if she had had time to consider that authority, she would have realised and alerted the judge at the time to the point that it was concerned with impossibility of law, not impossibility of fact in the form of a potential victim, like Mr Udovic, who was not fooled by the conspirators. She relied on a commentary to that effect in the 1994 edition of Archbold at paragraph 30 on page 2/1692, and a decision of this court in R v Bennett and Others (1978) 68 Cr App R 168, on which it was based, in particular the observations of Browne LJ giving the judgment of the court at page 178. As she submitted, whatever the correctness or otherwise of this distinguishing feature on the breadth of Nock, it is illustrative of the potential for injustice of ambush arguments of law, whichever side indulges in them.

(5) Miss Broadbent said that, the stage having been set in that way by Mr Spence, the judge correctly and without unfair prejudice to the appellant ruled as he did.

(6) As to unfair prejudice (or the lack of it), she submitted that there was none, since the facts on which the prosecution relied in support of count 2 were the same as those on which it had relied on count 1.

(7) Finally, she said that, as to the claim of unfair prejudice in continuing the trial, first, as the judge had observed, the evidence which Mr Spence said he would have objected to as inadmissible was of marginal relevance or importance, given the main evidence against the appellant; and secondly, that there would have been no prejudice to the appellant in the re-run of some of the evidence if Mr Spence wanted to cross-examine or further cross-examine some of the witnesses, given the judge's indication that he would explain to the jury how it all arose.

26. The critical question for the court is: did the judge's conduct of the trial -- all of it -- result in a safe verdict of guilty of the statutory conspiracy; or was it unsafe because of unfairness in any of the respects of which Mr Spence complains?

27. All of Mr Spence's arguments have a common theme, namely that the appellant was unfairly prejudiced because he was not able to take advantage of his counsel's decision not to identify until the last moment a legal defence that he (counsel) believed to be cast-iron unless the indictment was amended. It is tempting to consider the matter from the standpoint of what Mr Spence as defence counsel should or should not have done. But while that may make for a cautionary tale, the court must keep its eye on whether, given the way and the stage in the trial at which Mr Spence sought to bring the prosecution to a halt, the judge's various rulings and what happened thereafter rendered the whole trial unfair and, if so, on that account the conviction unsafe?

28. In our view, the judge's rulings did not have that effect. We say that for the following reasons: First, in deciding whether to permit the sought amendment at such a late stage of the trial, the judge had to consider how it chimed with the way in which the prosecution had opened the case, the evidence that it had called and the approach of the defence to that evidence. That is just what he did. This is how he dealt with and answered those questions in a number of passages in paragraphs 5-7D of his ruling. At paragraph 5E he said:

“It seems to me that I have to ask myself three questions. The first is this. If the proposed count had been the original count, would the Crown have opened the case to the jury any differently? In my judgment, the answer to that is a resounding no. Their case is and always has been, that this was an agreement to obtain £35,000 by telling lies. The second question I have to ask myself is: would the Crown have conducted their case any differently? Again, in my judgment a resounding no. I cannot see how their case as presented to the jury would have differed one iota. Thus the third question must be: have the defence been prejudiced or would they be prejudiced by this late amendment? It seems to me obvious that the answers that I have given to questions one and two, that is a resounding no, are highly pertinent to this third question. But of course I have to go on to consider the submissions that have been made by the defence.”

At page 7E the judge said:

“Having regard to the defence that has been outlined at least in Mr Gleeson's defence case statement, I cannot see that injustice would be caused to either of the defendants if the Crown are allowed at this stage to change the legal description of the dishonest activities that they have always alleged.”

29. We agree with the judge that, so far as the jury were concerned, the amendment changed nothing. Their task and the material evidence under count 2 were the same as they had been under count 1.

30. Second, the judge rightly distinguished the case of O'Connor on which Mr Spence relied in arguing that the judge should not respond to his successful submission on count 1 by permitting the prosecution to add what became count 2. That case was, as the judge observed, far different on the facts. There, the prosecution had been invited by the judge at a very early stage to consider amending the indictment and had deliberately chosen not to do so. The proposed amendment would have confronted the defence with a factual case that they had not hitherto had to meet.

31. Third, the two areas of prejudice that Mr Spence advanced to the judge and relied on again before this court do not bear examination. As to the evidence he said he would have objected to as inadmissible if he had not counted on succeeding on his submission based on Nock, it was, as the judge said and Miss Broadbent submitted, of marginal relevance. As to his wish to cross-examine witnesses on certain points once he had lost the shield of Nock, the judge rightly dealt with it by indicating his willingness to have the witnesses called or recalled for cross-examination and by explaining to the jury that the re-run of the evidence was the prosecution's fault in selecting the wrong charge. There was no conceivable unfairness to the appellant in that approach in the circumstances of this case.

32. Fourth, as to the complaint that the judge should have considered Mr Spence's second submission of insufficient evidence before his first submission based on Nock, we cannot see, in the light of the judge's reasoning, how a different order of consideration of the submissions would have affected the outcome. His ruling that there was on the evidence a case to answer on count 2 was plainly right, and would have been right on count 1 but (on his understanding of Nock) for the impossibility of the conspiracy achieving its object against Udovic -- an impediment that in no way detracted from the evidence of the fact of the conspiracy upon which the prosecution relied under either count.

33. Finally, and for reasons to which we have already referred, we are of the view that there was no unfairness in the judge's refusal to discharge the jury and to direct a fresh trial before a different jury. Mr Spence could, as the judge indicated, have had witnesses brought to court for cross-examination or further cross-examination. He chose not to ask for that, notwithstanding his argument before the judge and to this court that the appellant was prejudiced in having to face count 2 without him (Mr Spence) having cross-examined them on count 1. It is wrong to suggest, as Mr Spence did, that he was forced, unfairly or otherwise, to choose between not cross-examining witnesses and recalling all of the witnesses and more.

34. Mr Spence should have drawn attention to his proposed legal challenge to the indictment -- if he was right, a determinative issue in favour of the defence -- at the plea and directions hearing and in the defence statement. If he had done that, he could have had no valid objection to the prosecution correcting their error at that stage, or certainly by the beginning of the trial. Fortunately for justice, his deliberate delay in identifying it as an issue until the close of the prosecution case did not, in the circumstances we have described, result in any unfairness from correction of the error at that late stage.

35. As we have said, the proper determination of such difficulties when they arise in a trial are often fact-sensitive. It may not always be possible for amendment of an indictment to be permitted with fairness to a defendant at so late a stage, wherever the fault lies. But, just as a defendant should not be penalised for errors of his legal representatives in the conduct of his defence if he is unfairly prejudiced by them, so also should a prosecution not be frustrated by errors of the prosecutor, unless such errors have irremediably rendered a fair trial for the defendant impossible. For defence advocates to seek to take advantage of such errors by deliberately delaying identification of an issue of fact or law in the case until the last possible moment is, in our view, no longer acceptable, given the legislative and procedural changes to our criminal justice process in recent years. Indeed, we consider it to be contrary to the requirement on an accused in section 5(6) of the 1996 Act, in particular paragraph (b), to indicate “the matters on which he takes issue with the prosecution”, and to their professional duty to the court -- and not in the legitimate interests of the defendant.

36. In this context we take the opportunity to repeat and adopt the extra-judicial sentiments of one of us in the Report of the Criminal Courts Review (October 2001), in paragraph 154 of Chapter 10:

“To the extent that the prosecution may legitimately wish to fill possible holes in its case once issues have been identified by the defence statement, it is understandable why as a matter of tactics a defendant might prefer to keep his case close to his chest. But that is not a valid reason for preventing a full and fair hearing on the issues canvassed at the trial. A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles.”

37. For all those reasons we dismiss the appeal.

(Counsel requested time to formulate a point of law of general public importance. The court indicated that it would consider it in writing)