Mote v R

On 17 August 2007 at the Crown Court at Portsmouth before HH Judge Price the appellant was convicted of 21 counts of offences that can broadly be described as benefit fraud. He was acquitted of a further 4 such counts. He was sentenced by the judge on 4 September 2007 to 9 months imprisonment on each count, to be served concurrently. He applied for permission to appeal against his conviction on all these counts. His application was referred to this court by the Registrar. We granted permission to appeal at the outset of the hearing.

Counts 1, 2, 4, 9, 10, 12, 14, 16 and 18 charged the appellant with false accounting contrary to section 17(1)(a) of the Theft Act. The false accounting related to the contents of various forms made out by the appellant in order to claim benefits for different periods between 20 February 1996 and 29 September 2002. The nature of the false accounting alleged was a failure to disclose that he and his wife had significant income from companies that he controlled and, in some instances, false claims that his landlord was a company called Caravel Investments Ltd.

Some of these counts were linked with counts charging the appellant with obtaining a money transfer by deception contrary to section 15A of the Theft Act and counts of evasion of liability by deception contrary to section 2(1)(c) of the Theft Act 1978, the liability in question being in respect of Council Tax.

One count, count 8, charged the appellant with dishonestly failing to notify a change of circumstances, contrary to section 111A (1A) of the Social Security Administration Act 1992.

Overall the benefits obtained by these offences totalled approximately £63,000.

The appellant attacks his convictions on a number of grounds. The first is that it is impossible to reconcile the jury’s decision to convict him on 21 counts with their decision to acquit him on the other four and that this inconsistency renders the former verdicts unsafe. The second is that his trial was an abuse of process; it should never have taken place as he had advanced a claim to immunity as a Member of the European Parliament (‘MEP’) which has yet to be finally resolved by the European Court. The third is that permission should not have been granted to amend the indictment to add additional counts because these did not fall within a waiver of privilege or immunity granted by the European Parliament. The fourth is that the amendments in question should not have been permitted because there was no jurisdiction to allow them. Finally it is alleged that his conviction on Count 8 was unsafe because any failure to notify occurred before the commencement of the section under which the charge was brought.

It is logical to deal with the procedural grounds first.

On 27 April 2004 the appellant was committed to Chichester Crown Court for trial on what were then ten counts. These were 8 counts of false accounting and count 8. On 18 June 2004 the appellant was declared to have been elected to the European Parliament. On 16 June 2004, at a plea and directions hearing, the appellant pleaded not guilty to those ten counts. The trial was fixed to commence on 15 November 2004. On 4 October 2004 the appellant advanced a claim to privilege and immunity as a member of the European Parliament.

Arts. 8, 9 and 10 of the 1965 Protocol on Privileges and Immunities of the European Communities of 8^th April 1965 (“the 1965 Protocol”) provide, so far as relevant, as follows:

“8.

No administrative or other restriction shall be imposed on the free movement of Members of the European Parliament travelling to or from the place of meeting of the European Parliament…

9.

Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.

10.

During the sessions of the European Parliament, its Members shall enjoy:

(a)

in the territory of their own State, the immunities accorded to members of their parliament;

(b)

in the territory of any other Member State, immunity forms any measure of detention and from legal proceedings.

Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament. Immunity…shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.”

In November of the same year, Mr Mote’s claim to immunity came before Aikens J, sitting at Lewes Crown Court; the defence applied under ss. 39 and 40 of the Criminal Procedure and Investigations Act 1996, to quash or stay the indictment or to adjourn the case.

Aikens J gave his ruling on 25 November 2004. He concluded that Article 8, which fell to be treated as part of English law, required the court to stay the criminal proceedings. His reasons appear from the following passage of his judgment:

“36.In my view the expression ‘other restriction’ in Article 8 has to be interpreted broadly, because of the overall intention of these articles that there should be no interference with the proper function of the EP and its members. The English law concept of ‘bail’ is a ‘restriction’. This is because if a person is charged with a criminal offence and, as in this case, the matter has been committed to the Crown Court, the accused will always be subject to the Court’s supervision until the trial is complete and sentence has been passed. The provisions of the Bail Act 1976 will govern whether the accused person is to be remanded in custody or is to be released on ‘bail’. If on bail, even if it is ‘unconditional’ and the accused has no other obligations to the Court, he is always under an obligation to surrender to custody at court upon further hearings and the trial, unless excused by the court. Under English law there is no means to place a person facing a trial on Indictment outside the regime of the Bail Act.

37.Therefore an English MEP who has been charged with a criminal offence in England on Indictment and who has been admitted to ‘unconditional’ bail has had imposed on him a restriction on his free movement to travel to the meeting place of EP. This is because of the legal obligation placed on him to surrender to custody at hearings of the court unless waived by the court itself. In my view it is no answer to say that the MEP can choose whether or not to obey the obligation to surrender to custody. The existence of bail and the existence of the legal obligation to surrender to custody that is thereby imposed constitutes a legal restriction on the free movement of the MEP.”

On 3 February 2005 the Attorney General submitted an application to the President of the European Parliament requesting that the Parliament confirm that the prosecution of the appellant might proceed. The application contended that Aikens J had erred in holding that requiring the appellant to attend trial would be incompatible with Article 8 of the 1965 Protocol. Alternatively he invited the Parliament to waive the privilege or immunity conferred by Article 8.

The Parliament referred the application for waiver of immunity in accordance with Rule 6(2) of its Rules of Procedure to its Committee on Legal Affairs, before which the applicant made oral and written representations. On 20 June 2005, the Parliament’s Committee on Legal Affairs unanimously adopted a draft Report on the application for waiver of immunity. The Report contained a proposal for a decision of the Parliament to be presented in plenary session and an ‘explanatory statement’ which was the sole responsibility of the rapporteur, and was not put to a vote. At the plenary session following the request by the Attorney General, the Parliament, having regard to Articles 8,9,10 and 19 of the Protocol on Privileges and Immunities and the Report of the Committee on Legal Affairs, adopted a resolution waiving the immunity of the applicant.

The Report adopted by the Legal Committee included the following commentary on the application of Article 8 of the 1965 Protocol:

“As regards Article 8 and Article 10, - second paragraph, it is useful to note the purpose of immunity as it has been defined since the Donnez report in 1986: Parliamentary immunity is not a Member’s personal privilege, but a guarantee of the independence of Parliament and its Members in relation to other authorities, and with a view to explore whether immunity has to be waived or not, the principle set by Parliament over the years is that of the independence of European parliamentary immunity from national parliamentary immunity.

Therefore, when the effect of the proceedings brought against a Member is to diminish his own or Parliament’s independence, immunity should not be waived. It follows from this that the EP must not concern itself with the substance of the criminal proceedings except when considering whether or not ‘fumus persecutionis’ may exist.

Articles 8 and 10, second paragraph protect the Parliament’s independence, granting Members of Parliament certain rights not necessarily covered by Articles 9 and 10 (a) and (b).

4.

It is important to examine which kind of privileges these two Articles may reasonably cover:

(a)

With respect to Article 10 second paragraph, it is linked to the first paragraph of Article 10 and completes the immunity granted in letters (a) and (b). When a Member is in the territory of their own state, she/he enjoys the immunities granted to the Members of her/his Parliament. When in the territory of another state (i.e. giving a conference or in a demonstration), from any measure of detention and from legal proceedings.

Immunity is also applied when the members are travelling to or from the place of meeting of the European Parliament, as it is declared in the second paragraph of Article 10.

Mr Mote was not travelling from England to France when he committed the wrongful acts alleged by the Prosecutor. He was not travelling at all.

This argumentation is also admitted by the Court which does not consider it necessary to request Parliament to waive immunity on the basis of Article 10(2) see point 44 of Annex 4 of Application).

Mr Mote cannot be reasonably protected by Article 10, second paragraph.

(b)

With respect to Article 8 of the Protocol, which is the one strongly invoiced by Mr Mote’s Attorney, and at the core of the Prosecutor’s Application, it should be considered whether or not this article gives protection to Mr Mote against prosecution in UK.

Article 8 is clearly intended to ensure the freedom of movement of Members. It was drafted at a time when it was not as easy as nowadays for European citizens to move around the Union. Its main purpose is to prohibit restricts of any kind on the free movement of Members. This Article also provides protection on customs issues and exchange control facilities.

The purpose of Article 8 was to avoid any impediment when travelling within the Community in connection with the performance of their duties from their places of origin to any Parliament or official meeting in connection with their duties. It excluded travelling for personal ends.

These impediments must be those of administrative, police or custom nature. Either inviolability or immunity of Articles 9 or 10 would have covered any other more serious impediment (arrest).

As it is rightly pointed out in point 19 of the Application, Article 8 is not intended to provide an absolute immunity against prosecution during the duration of a trial. Other wise, the provisions that refer to inviolability (Article 9) and immunity (Article 10) would be without purpose during the duration of Parliament (5 years).

Article 8 should be interpreted in connection with the principle stated above in point 3 and with Article 9 and 10 in a way that these Articles are not deprived of meaning and logical sense.

It can therefore be concluded that Mr Mote does not enjoy protection against prosecution from Article 8 and that the proceedings may be pursued by the Court.”

By application dated 5^th September, 2005, Mr Mote applied to the Court of First Instance of the European Communities (“the CFI”) under Arts. 230 and 231 of the EC Treaty (“the Treaty”) for the annulment of the 5^th July 2005 decision of the EP to waive Mr Mote’s immunity. Arts. 230 and 231 of the Treaty provide as follows:

“230.

The Court of Justice shall review the legality…of acts of the European Parliament…

Any natural…person may…institute proceedings against a decision addressed to that person or against a decision which …is of direct and individual concern to…[him].

231.

If the action is well founded, the Court of Justice shall declare the act concerned to be void.”

Both Aikens J and the Crown were unaware of this application.

The prosecution applied for an order lifting the stay imposed by Aikens J. This was referred to Gross J who heard the application on 17 October 2006. On behalf of the appellant, Mr Lofthouse submitted that the situation was governed by the judgment of the European Court of Justice in R (IATA and others) v Department of Transport [2006] ECR 1-0000. This he submitted was authority for the proposition that the English court should not proceed while the question of the validity of the waiver had not been determined by the European Court. Alternatively he argued that the prosecution should be stayed because to proceed with it would pre-empt the decision of the European Court and lead to potential consequences that he described as ‘disastrous’.

Gross J handed down his ruling on 1 November 2006. He held :

“Mr Lofthouse’s reliance on IATA was misplaced. IATA is concerned with references by national courts to the ECJ for preliminary rulings under Art. 234 of the Treaty. In such circumstances, it can readily be appreciated that there may be a need to await a decision of the ECJ in respect of properly arguable questions of European Law; there may be no alternative if harmony within the Community is to be achieved.

In the present case, however, there is nothing to refer from the national court; the matter is already before the CFI, by virtue of Mr Mote’s application under Art. 230 of the Treaty. The law here is clear. The decision of the EP which Mr Mote seeks to annul remains in force in the absence of a successful application to suspend its operation under Art. 242 of the Treaty. IATA is thus both inapplicable and of no analogous assistance”

Gross J went on to hold that, as a matter of discretion, the desirability of proceeding with the trial outweighed any potential injustice to the appellant that might result if the CFI were to annul the decision of the European Parliament to grant a waiver.

On 15 December 2006 the appellant made an application to the CFI for ‘interim measures’, namely the suspension of the order of the European Parliament. The application was dismissed on the ground that the condition of urgency was not satisfied.

On 20 April 2007 His Honour Judge Price ruled on an application made by the prosecution to amend the indictment by adding an additional 18 counts. He granted permission to add 16 of these, thus producing the total number of counts that we described at the start of this judgment. Counsel for the appellant had objected to these amendments on grounds that have been advanced again before us.

On 4 May 2007 the appellant drew the amendments to the attention of the European Parliament, complaining that Judge Price’s ruling was a contempt of Parliament. The Legal Affairs Committee made a Report that recommended to Parliament that it should take no action, remarking, among other matters, that the appellant had no immunity to defend and that the matters of which he complained did not ‘constitute an administrative or other restriction imposed on the free movement of a Member travelling to or from the place of meeting of Parliament’. The European Parliament adopted that Report on 10 July 2007.

On 8 May 2007 the appellant made a second application for interim measures to the CFI. This was dismissed for the same reason as the first application.

On 29 August 2007, after his trial and conviction the appellant brought a third similar application, stressing that the matter was urgent as he was about to be sent to prison. On this occasion the court dealt with his application on its merits. The Order of the CFI was made on 22 November 2007 by the President of the court. The application was dismissed on the grounds that the appellant had failed to make out a prima facie case to entitlement to the relief sought. The decision was not confined to the merits of granting interim relief. It included a prima facie determination of the appellant’s substantive claim. The court ruled that each of five pleas advanced by the appellant was, prima facie, without merit.

The court’s finding in relation to the first plea is particularly significant:

“47.

In that regard, it must be held that the contested act, in acceding to the request of the Attorney General, does no more than waive the immunity of the applicant, as provided for by Article 10 of the Protocol on Privileges and immunities and Rule 7 of the Rules of Procedure. By contrast, Article 8 of the Protocol, which the applicant claims has been infringed, does not refer either to the immunity of Members of the European Parliament or to the waiver of such immunity.

48.

In so far as the applicant appears to be maintaining that Article 8 of the Protocol on Privileges and Immunities confers upon him absolute and unlimited protection of his free movement as a Member of the European Parliament, it is obvious that that provision – which prohibits restrictions, particularly of an administrative and customs nature and of exchange control, on the free movement of Members of the European Parliament – cannot be given an isolated interpretation precluding a waiver of immunity pursuant to Article 10 of the same Protocol. That latter article is also designed to protect the free exercise by Members of the European Parliament of their functions as Members, particularly the freedom to travel to and from the place of meeting of the European Parliament, while laying down derogations and restrictions on that protection. Thus, on their national territory, Members of the European Parliament enjoy only the immunities accorded to the Members of Parliament of their country. Moreover, the European Parliament has the right to waive the immunity of one of its members.

49.

The interpretation of Article 8 of the Protocol on Privileges and Immunities must take account of those particularities of Article 10 of the same Protocol and give that provision its proper effect. Taking account of the overall scheme of the two provisions in question, Article 8 must therefore be interpreted in such a way that the protection which it confers does not in any event preclude waiver of the immunity of a member of the European Parliament expressly provided for in Article 10. Moreover, waiver of the immunity, as provided for in Article 10, obviously cannot, in itself, constitute an infringement of freedom of movement for the purposes of Article 8.

50.

As regards the applicant, the only effect of waiving his immunity has been to allow criminal proceedings to be brought against him. Only the custodial decision taken against him by the national authorities must be regarded as constituting a restriction on his freedom of movement. It is not for the President of the Court of First Instance to rule on the legality of that decision having regard to the privilege guaranteed by Article 8 of the Protocol on Privileges and Immunities.

51.

Prima Facie, therefore, the first plea in law, claiming infringement of Article 8 of the Protocol on Privileges and Immunities, cannot be regarded as well founded.”

The court concluded:

“…it should be noted that none of the pleas which have just been examined has been found sufficient to demonstrate a prima facie case. It follows, prima facie, that the vague and unsupported plea, alleging that the contested act is unreasonable and excessive, cannot establish a prima facie case either.”

Under the procedure of the European Court this decision on interim relief is without prejudice to the decision that remains to be reached by the CFI on the substantive hearing.

We can summarise the submissions made by Mr Lofthouse on behalf of the appellant in the circumstances that we have just described as follows:

We do not consider that the case advanced by the appellant before the Court of First Instance is ‘well founded’ or a ‘good arguable case’. We share the view to the contrary expressed by the President of that Court. Mr Lofthouse sought to persuade us that it was wrong in principle to pay any regard to the decision of the President as it was only a ‘prima facie’ opinion that was given without prejudice to the final result in the proceedings. We were not persuaded by his submission. It is Mr Lofthouse’s submission, founded on IATA, that Gross J should not have lifted the stay because the appellant had a ‘good arguable case’ before the Court of First Instance. It seems to us legitimate to have regard on this issue to the view of the President in respect of the same test.

Our conclusion is not, however, founded upon the view of the President alone. We find the Report of the Committee on Legal Affairs that appears to have been accepted by the European Parliament compelling. In the light of that Report it is hardly surprising that the Parliament was prepared to accede to the Attorney General’s request.

It follows from the conclusions that we have just expressed that we consider that Aikens J misinterpreted the effect of Article 8. Whether he did or not is not, however, of critical importance.

We turn to the attack made by Mr Lofthouse on Gross J’s decision to lift the stay. Gross J reached that decision on the premise that Aikens J’s decision was correct and that the appellant had a good arguable case for seeking before the CFI to annul the European Parliament’s waiver. He held, nonetheless, that the decision in IATA did not require him to stay the appellant’s trial. This was because IATA was concerned with references by national courts to the European Court of Justice for preliminary rulings. While it might be necessary in such circumstances to await a ruling on an area where European law was uncertain, there was no such necessity in the present case. The decision of the European Parliament was in force. No application had been made to suspend its operation pursuant to Article 242 of the Treaty. As a matter of discretion the desirability of getting on with a criminal trial where the facts were already of some age outweighed the possible consequences that would follow if the decision of the European Parliament was held to be erroneous.

We share this analysis of the position on the basis of the facts as Gross J perceived them. He was under no obligation to maintain the stay in place and in deciding to lift it he properly exercised his discretion. From our own viewpoint there are even stronger grounds for the decision that he reached, for we do not consider that there is any reasonable likelihood of the CFI differing from the decision taken by the European Parliament.

Mr Lofthouse submitted that if we concluded that Gross J had erred in lifting the stay imposed by Aikens J, we should hold that the appellant’s trial constituted an abuse of process. For reasons that we shall explain we do not accept that this would have been the consequence of such a conclusion.

We shall assume, contrary to our expectation, that in due course the CFI determines that Article 8 was infringed by proceeding with the trial of the appellant and that the European Parliament should not have granted a waiver. Mr Lofthouse submits that this scenario would demonstrate that the appellant’s trial involved an abuse of process of such a nature as to require the quashing of the appellant’s conviction. Once again we do not agree.

In arguing that there has been an abuse of process in this case Mr Lofthouse relied upon the decision of the House of Lords in R v Horseferry Magistrates Court ex parte Bennett [1994] 1 AC 42 and of this court in R v Mullen [1999] 2 Cr App R 143. Those cases show that where bringing a defendant to trial has involved a deliberate flouting of the rule of law by the executive the court can demonstrate that such conduct cannot be tolerated by staying the trial on the ground of abuse of process. Putting the appellant’s case at its highest there can be no suggestion that such a situation prevails here.

If Mr Lofthouse is correct in all his submisions, Gross J erred in not awaiting the final result of the appellant’s application to the CFI. The consequence of this would be that the court had, unwittingly, permitted the appellant to stand his trial in disregard of a privilege or immunity that existed, not for the appellant’s benefit, but for the benefit of the European Parliament. Such a state of affairs could not require, or justify, the quashing of the appellant’s conviction on the ground of abuse of process. It is not necessary to examine whether there would be any other basis for re-examination of the safety of such a conviction in this eventuality.

For all these reasons, the contention that the appellant’s trial involved an abuse of process is without foundation.

Mr Lofthouse also dealt with this aspect of the appellant’s case. He advanced two grounds for objecting to the fact that permission was given to amend the indictment. First he submitted that the amendment took the prosecution outside the scope of the waiver given by the European Parliament. Secondly he submitted that the judge had had no jurisdiction to give permission to amend the indictment. Both of these contentions had been rejected by Judge Price.

As the prosecution made plain, the object of amending the indictment was to ensure that the offences charged against the appellant properly reflected the full criminality of his conduct so that the court was in a position to impose sentences that fully reflected this. The prosecution submitted to Judge Price that the decision of this court in R v Graham and Whatley [2005] 1 Cr App R (S) 115 rendered this course necessary or desirable. Judge Price gave permission to amend on this basis. The effect of the added counts was not to alter the allegations of the course of conduct that the prosecution alleged to have been criminal, but to add particulars of the financial consequences of that course of conduct.

Mr Lofthouse submitted to us, as he did to the judge, that the waiver granted by the European Parliament applied only to the 9 counts that were on the indictment when the waiver was granted. If additional counts were to be added a further waiver was necessary. The judge thought that there was nothing in this point and nor do we. Nor did the European Parliament when the appellant made a further application to it to defend his alleged privileges after the amendment.

The indictment was not placed before the European Parliament when the Attorney General applied for the waiver. The nature of the criminality alleged against the appellant was, however, spelt out. The European Parliament granted the waiver on the basis that Article 8, in fact, constituted no bar to the English criminal proceedings. The prosecution subsequently applied to amend the indictment because they considered that it did not properly reflect the criminality of the appellant’s behaviour, as it had been spelt out to the European Parliament. There is no merit in the suggestion that the amended indictment did not fall within the waiver granted by the European Parliament.

Even were we wrong in this conclusion, it would not follow that trying the appellant on the amended indictment constituted an abuse of process that required or justified the quashing of his conviction. The comments that we have already made in relation to quashing for abuse of process apply with even greater force to this point. For all these reasons this ground of appeal is rejected.

Section 5(1) of the Indictments Act 1915 provides:

“Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case…”

Mr Lofthouse’s challenge to the judge’s jurisdiction to give permission to amend was short and simple. The indictment was not defective, ergo section 5(1) had no application. This submission accorded to the word ‘defective’ a very narrow meaning. Mr Lofthouse accepted that, had the amendment not been made, the defence would have taken the point that it was not open to the judge to sentence on the basis of the amount by which the appellant had profited by his dishonesty, because this formed no part of the indictment. He contended, however, that this inadequacy or deficiency in the indictment was not a ‘defect’ within the meaning of section 5(1) of the 1915 Act. There was nothing inherently defective in the indictment as originally drafted.

This is an argument that was made and rejected by this court over 30 years ago in R v Johal and Ram (1972) 56 Cr App R 348. It suffices to quote the following passage from the judgment of the court delivered by Ashworth J at p. 351:

“The argument for the appellants appeared to involve the proposition that an indictment, in order to be defective, must be one which in law did not charge any offence at all and therefore is bad on the face of it. We do not take that view. In our opinion, any alteration in matters of description, and probably in many other respects, may be made in order to meet the evidence in the case so long as the amendment causes no injustice to the accused person.”

In that and subsequent cases the courts have given a very wide construction to a ‘defective indictment’ for the purposes of section 5(1) or the 1915 Act. It is the appellant’s own case that the indictment as originally drafted was not wide enough to encompass the case that the prosecution had sought to advance from the outset. We are in no doubt that this amounted to an argument that the indictment was ‘defective’ and that the judge had jurisdiction under section 5(1) to give permission to amend the indictment in order to cure the alleged deficiency. Accordingly we reject this ground of appeal.

The jury convicted the appellant on 21 counts, namely 1 to 13, 16 to 19, 21 to 22 and 25. They acquitted the appellant on counts 14, 15, 20 and 23. Mr Anthony Donne QC, who argued this part of the appeal for the appellant, submitted that it was impossible to identify any logical basis upon which the jury could have distinguished between the counts on which they acquitted the appellant and other counts on which they convicted him. In these circumstances the inconsistencies could only be explained on the basis that the jury must have been ‘confused or adopted the wrong approach’ – see the third ground of appeal. In these circumstances the appeals had to be quashed.

This argument reflected the following passage in Archbold, 2008 edition, at paragraph 7-70:

“There is no shortage of authority to support the proposition that logical inconsistency does not make the verdict complained of unsafe unless the only explanation of the inconsistency must or might be that the jury was confused or adopted the wrong approach.”

The authority in question is then cited.

There was some debate before us as to the burden of proof in relation to setting aside a verdict for inconsistency. Mr Donne referred us to Cova Products Limited [2005] EWCA Crim 95 where this court reviewed a number of authorities on this topic. At paragraph 28 the court held that there was much to commend the view expressed by Professor Sir John Smith that

“…a better view would be that the conviction is not safe unless the court is satisfied that the verdict is not based on the confusion or wrong approach of the jury; and that, once the verdicts are shown to be inconsistent, the burden of persuasion is on the Crown, not the appellant.”

We question whether it is helpful to adopt a staged approach to the burden of proof in this way. The starting point is that the burden is on an appellant to persuade the Court of Appeal that a verdict is unsafe. Where he seeks to do this by showing that acquittals on some counts are inconsistent with convictions on others he has to persuade the court that the nature of the inconsistencies is such that the safety of the guilty verdicts are put in doubt. That question will turn on the facts of the particular case and it is not safe to attempt to formulate a universal test.

The starting point in this case is to itemise the various counts and to set out the verdicts and the manner in which these were reached.

The counts on the indictment were arranged in three sections: firstly, counts relating to Income Support (counts 1-8), followed by counts relating to Housing Benefit (counts 9-19) and, finally, those relating to Council Tax Benefit (counts 20-25).

Within these sections, the counts were listed chronologically. Counts under section 17(1)(a) of the Theft Act 1968 reflected the completion of application and review forms; the payment of benefit arising from the completion of such forms was represented by counts under section 15A of the Theft Act 1968.

Council Tax Benefit constitutes an exemption from liability to pay Council Tax, rather than the payment of money, and was reflected in counts under section 2(1)(c) of the Theft Act 1978.

The jury retired, after a five week trial, at 10.17am on 16^th August 2007 and returned the following verdicts, unanimously, at 2.26pm, on 17^th August 2007:

Income Support counts

Counts 1 to 8 – guilty

Housing Benefit counts

Count 9 – no verdict

Counts 10 to 13 – guilty

Counts 14 to 15 – not guilty

Counts 16 to 17 – no verdict

Counts 18 to 19 – guilty

Council Tax Benefit counts

Count 20 – no verdict

Counts 21 to 22 – guilty

Count 23 – not guilty

Count 24 – no verdict

Count 25 - guilty

The Judge directed the jury to retire again to continue their deliberations. At 3.42pm, the jury returned the following verdicts:

Count 9 – guilty

Counts 16 to 17 – guilty

Count 20 – not guilty

Count 24 – guilty.

The Applicant was convicted on all eight counts concerning Income Support, nine out of eleven counts regarding Housing Benefit, and four out of six counts concerning Council Tax Benefit. The four Counts on which the appellant was acquitted were as follows.

Count 20 was founded on the completion of an application form for Housing Benefit and Council Tax Benefit (“HB1 form”) signed by Ashley Mote and his wife, Anna Nicola Mote, and dated 10^th May 1996, which resulted in the grant of Council Tax Benefit between 10^th May 1996 and 12^th January 1997.

Counts 14, 15 and 23 were founded on the same document entitled “Repeat Claim Form for Housing Benefit/Council Tax Benefit” (“HB2 form”) which was signed by the Applicant and dated 11^th January 1999. Count 14 Charged false accounting in respect of the completion of the form and counts 15 and 23 reflected the benefits gained by Ashley Mote and his wife arising from that form: count 15 concerned the Housing Benefit money paid to them and count 23, their exemption from Council Tax liability.

The first point to be made in relation to these verdicts is the obvious one that the not guilty verdicts were exceptional. There were only four of these, as compared with 21 guilty verdicts. This strongly suggests that there were particular features of the four counts, or of the evidence given in relation to those counts, that raised doubts in the minds of the jury that were not present in the case of the majority of the counts. This is the context in which we shall consider the individual verdicts, but before doing so we propose to consider the summing-up. This will often call for consideration when examining the implications of verdicts alleged to be inconsistent, and it certainly does in this case.

The appellant has made no criticism of the summing-up. We would commend it. In particular, we have been impressed by the care and clarity with which the judge directed the jury on the approach to elements that were common to more than one count.

The judge emphasised more than once that the jury had to consider each count separately. On the first occasion he said this:

“Now they are 25 separate charges, requiring separate consideration by you each from the other. If you were for example to find Mr Mote guilty of one of them, and I am not suggesting that you should or you should not, that is a matter for you, but if you were to find him guilty of one of them, it does not follow that he is somehow automatically guilty of another, or others. You must consider the evidence against and for the defendant separately in respect of each individual charge. Do not lump them all together; give them each separate consideration and remember that you are of course that you are required to return a verdict in respect of each count separately.”

No complaint has been made of that direction; it was clearly appropriate, the more so when one considers the implications of the length of this trial. This reflects the fact, as we were informed, that the appellant did not simply contest his guilt on broad issues, such as dishonesty, but dealt individually with many of the counts.

When dealing with the element of dishonesty, the judge once again emphasised that the test had to be applied:

“at the relevant time, and the relevant time of course is the time he did whatever he did in respect of each individual count on the indictment. The point as I am sure you have realised is that you cannot be dishonest by accident. If Mr Mote was muddled or confused or mistaken or had forgotten something at the relevant time or if he thought, or may have thought, that what he was doing would not be regarded as dishonest by reasonable and honest people, then he was not, in law, dishonest.”

Although the judge gave directions to consider each count separately, he none the less drew attention to the fact that some of the counts had common ingredients and that conclusions on these in respect of one count would have to apply equally in the case of another. We will give an example of the careful way in which he did this:

“Look at count four for a moment would you? There is a count of false accounting and we have got five, six and seven of a follow-on, obtaining by deceptions, are they not, in respect of count four. Now just look at count four. There are five specific matters or allegations or situations alleged, A to E. If you look at count five, the first consequential count, there are eight specific allegations and four of them are the same as those in count four and I expect you know what I am going to say. Four of them are not the same as in count four; four of them are additional to those set out in count four. Now if you found him not guilty of count four, you could not find him guilty of count five on the basis of any of the specific allegations contained in count five which are also contained in count four, could you? That would be inconsistent in exactly the same way as it would be in two and three. You could find him guilty of count five based on one or more of the specific allegations contained in that count which are not contained in count four. The basic principle is one of consistency. If you do not make a finding against him in respect of a particular allegation in one count you could not make a different finding in respect of the same allegation in another count unless of course both allegations spanned different time periods, in which case they would not be the same allegation, would they, even if the wording was the same. It is about consistency, ladies and gentlemen. As I say, if you think about it in those terms it is not actually complicated or difficult. It is about consistency.”

Having regard to these careful directions, and the amount of evidence of fact given by the appellant, there is nothing inherently surprising in finding that in four instances the jury were not convinced of guilt, notwithstanding that they were so satisfied in relation to the other twenty one. We turn to look more closely at the four counts on which the jury acquitted the appellant.

This count charged the appellant as follows:

“STATEMENT OF OFFENCE

Evasion of Liability by deception, contrary to s2(1)(c) of the Theft Act 1978.

PARTICULARS OF OFFENCE

Ashley Mote between 10^th day of May 1996 and 12^th day of January 1997 dishonestly obtained an exemption of liability to pay council Tax to Chichester District Council, by deception, namely by making false entries on an HB1 Housing Benefit application form in that:

a)

he failed to declare his interest in and/ or control of Tanner Management Ltd

b)

he failed to declare that his wife and children received monthly standing orders from Tanner Management Ltd;

c)

he failed to declare that he used the bank accounts of Tanner Management Ltd to fund his lifestyle:

d)

he claimed that his landlord was Caravel Investments; and

e)

he failed to declare any assets, investments or pensions.”

This was the first occasion on which it was alleged that the appellant committed the offence of obtaining exemption from Council Tax by making false entries on his Housing Benefit Forms. Mr Donne submitted that the jury had been irrational to acquit the appellant of this count and yet to convict him of identical counts, namely 21, 22, 24 and 25 based on similar allegations of failure to give information in his Housing Benefit Forms.

Mr Donne pointed out that count 20 was based on the form that had founded count 9, which charged the appellant as follows:

“STATEMENT OF OFFENCE

False accounting, contrary to section 17(1)(a) of the Theft Act 1968.

PARTICULARS OF OFFENCE

Ashley Mote, on the 10^th day of May 1996, dishonestly and with a view to gain for himself or another or with intent to cause loss to another falsified a document required for an accounting purpose namely an HB1 Housing Benefit application form by making an entry therein which was or may have been misleading, false or deceptive in a material particular in that:

a)

he failed to declare his interest in and/or control of Tanner Management Ltd;

b)

he failed to declare that his wife and children received monthly standing orders from Tanner Management Ltd;

c)

he failed to declare that he used the bank accounts of Tanner Management Ltd to fund his lifestyle:

d)

he claimed that his landlord was Caravel Investments Ltd; and

e)

he failed to declare any assets, investments or pensions.”

The jury had convicted on this count. By doing so they indicated that they were satisfied that he had dishonestly made out the form in a manner that was misleading, false or deceptive. How could they have had doubts about his intention to avoid Council Tax by so doing on this occasion and yet been satisfied of this on the subsequent occasions?

On initial consideration we can appreciate the force of Mr Donne’s submissions, although these tend to lead to the conclusion that the jury should have convicted the appellant on count 20 rather than that they should have acquitted him on the latter counts. Is there any possible explanation for their acquittal on count 20 other than that they were confused or adopted the wrong approach in relation to all the counts? Miss Greenberg QC advanced a number of possible explanations:

The first conclusion logically to be drawn from verdicts of guilty on count 9 and not guilty on count 20 is that the jury were satisfied of the appellant’s dishonest concealment, but not satisfied that the manner in which the HB1 Form was completed induced the Council to grant exemption from Council Tax. Inevitably one is in the realm of speculation as to why the jury might not have been so satisfied. The first explanation suggested by Miss Greenberg for the different verdicts does not seem to us to be likely. It implies confusion on the part of the jury, for Miss Greenberg did not suggest that there was any rational basis for the concerns that she postulated might have existed. The second explanation again is not very likely because it accords to the two misrepresentations a greater significance than the prosecution had suggested that they deserved.

We consider that Ms Greenberg’s third suggestion provides a more convincing explanation for the jury’s not guilty verdict. The jury could well have asked themselves why a statement that the appellant and his wife had applied for income support and not received it should have satisfied the Council that they were entitled to Council Tax benefit. It seems to us that this unique feature of the appellant’s entry on the form may well have given rise to a doubt on the part of the jury as to whether the prosecution’s case on causation had been made out.

As we said earlier, we have necessarily been involved in an exercise in speculation. What we can say with confidence is that it is much more likely that the jury’s verdict on Count 20 was attributable to some unique feature of the completion of the HB1 Form than that they were confused in the conclusions that led them to record guilty verdicts on count 1 and counts 21 to 25. We do not consider that the not guilty verdict on Count 20 puts the other verdicts in doubt.

We take these three counts together because they were each founded on the same standard form document, a Repeat Claim for Housing Benefit/Council Tax that was completed by the appellant and signed by him on 11 January 1999.

The three counts were as follows:

“COUNT 14 STATEMENT OF OFFENCE

False accounting, contrary to section 17(1)(a) of the Theft Act 1968.

PARTICULARS OF OFFENCE

Ashley Mote, on 11^th day of January 1999, dishonestly and with a view to gain for himself or another or with intent to cause loss to another falsified a document required for an accounting purpose namely a repeat claim form for Housing and Council Tax Benefit by making an entry therein which was or may have been misleading, false or deceptive in a material particular in that:

a)

he failed to declare his interest in and/or control of Tanner Management Ltd;

b)

he failed to declare that his wife received monthly standing orders from Tanner Management Ltd:

c)

he failed to declare that he used the bank accounts of Tanner Management Ltd to fund his lifestyle; and

d)

he failed to declare any assets, investments or pensions.

COUNT 15 STATEMENT OF OFFENCE

Obtaining a money transfer by deception, contrary to section 15A of the Theft Act 1968.

PARTICULARS OF OFFENCE

Ashley Mote, between 11^th day of January 1999 and 31^st day of January 2000, dishonestly obtained for himself money transfers of Housing Benefit in the sum of £5,451.38 by deception (see schedule F) in that:

a)

he failed to declare his interest in and/or control of Tanner Management Ltd:

b)

he failed to declare that his wife received monthly standing orders from Tanner Management Ltd;

c)

he failed to declare that he used the bank accounts of Tanner Management Ltd to fund his lifestyle;

d)

he failed to declare that he used the bank accounts of Jacq-Clean Commercial to fund his lifestyle;

e)

he failed to declare his or his wife’s income; and

f)

he failed to declare any assets, investments or pensions.

COUNT 23 STATEMENT OF OFFENCE

Evasion of Liability by deception, contrary to s2(1)(c) of the Theft Act 1978.

PARTICULARS OF OFFENCE

Ashley Mote between 11^th day of January 1999 and 31^st day of January 2000 dishonestly obtained an exemption of liability to pay Council Tax to Chichester District Council, by deception, namely by making false entries on a repeat claim form for Housing and Council Tax Benefit in that:

a)

he failed to declare his interest in and/or control of Tanner Management Ltd;

b)

he failed to declare that his wife received monthly standing orders from tanner Management Ltd;

c)

he failed to declare that he used the bank accounts of Tanner Management to fund his lifestyle;

d)

he failed to declare that he used the bank accounts of Jacq-Clean Commercial to fund his lifestyle;

e)

he failed to declare his or his wife’s income; and

f)

he failed to declare any assets, investments or pensions.”

Mr Donne drew attention to the fact that the particulars of the matters that the appellant was charged with dishonestly failing to declare were common to other counts on which the appellant was convicted. He submitted that it was irrational for the jury to have concluded that the appellant had dishonestly failed to declare these matters on the occasions to which the other counts related, but not when he completed the form on 11 January 1999. Once again we can see the force of this submission, but the fact that all three counts were based on the same form suggests that it may have been a feature of the completion of that form that left the jury unsure as to the defendant’s guilt

Miss Greenberg pointed out some unique features of the way that the appellant completed the Repeat Claim Form for Housing Benefit/Council Tax Benefit on 11 January 1999. The first was that he made no positive representation about his wife or family’s income. The second was that he entered the correct amount of rent that he was paying, whereas on the other forms this was a little exaggerated. Miss Greenberg suggested that the fact that the appellant had made accurate entries in these respects may have led to a doubt on the part of the jury as to whether the element of dishonesty was made out in relation to this particular form. If they had such doubt, then this would logically have resulted in not guilty verdicts on all three counts.

We do not find this a very plausible explanation as to why the jury were not satisfied of the appellant’s guilt on the counts based on the 11 January form, having regard to the guilty verdicts that they reached on the other similar counts. The fact remains that it was always possible that the jury, in accordance with the judge’s directions, might find the appellant’s guilt had not been proved in relation to one occasion on which he submitted a benefits form notwithstanding that they had no such doubts on others. The conclusion that the jury reached in relation to the counts based on the January 11 form is not necessarily inconsistent with those reached in relation to the majority of the counts. Just because we cannot deduce with certainty why the jury acquitted the appellant on the three counts in question it does not follow that they failed to appreciate the elements of the offences to which they related or that they were confused or following the wrong approach when considering, in the case of each count, whether those elements were made out. When we consider the methodical way that the jury set about their task, the evidence that was placed before them and the fact that they found the defendant guilty of dishonestly failing to declare relevant information in the case of the vast majority of the counts, we do not consider that their verdicts on those counts are put in doubt by the verdicts on the three counts relating to January 11. We would add that the case against the appellant on the counts on which he was convicted appears to us to be a very strong one; it certainly leaves us with no doubt as to the safety of the jury’s verdicts on those counts.

For these reasons the appeal against conviction in relation to all counts other than Count 8 will be dismissed. We now turn to consider the conviction on that count.

Count 8 charged the appellant as follows:

“STATEMENT OF OFFENCE

Dishonestly failing to notify a change of circumstances, contrary to section 111A(1A) of the Social Security Administration Act 1992.

PARTICULARS OF OFFENCE

Ashley Mote, between 18^th October 2001 and 29^th September 2002 with a view to obtaining for himself benefit dishonestly failed to notify the Department for Work and Pensions promptly of a change in his circumstances which would affect his entitlement to Income Support benefit, namely that:

a)

he failed to declare his interest in and/or control of Tanner Management Ltd;

b)

he failed to declare that his wife received monthly standing orders from Tanner Management Ltd;

c)

he failed to declare that, from 18^th June 2001, he received monthly standing orders from Tanner Management Ltd;

d)

he failed to declare that he used the bank accounts of Tanner Management Ltd to fund his lifestyle;

e)

he failed to declare that he was a director of JC Commercial Management Ltd;

f)

he failed to declare that, between 18^th October 2001 and 31^st January 2002, he used the bank accounts of JC Commercial Management Ltd to fund his lifestyle;

g)

he failed to declare his or his wife’s income; and

h)

he failed to declare any assets, investments or pensions.”

The particulars of this count were amended pursuant to permission granted by Judge Price. Objection was taken to it on behalf of the appellant, but the amendment was allowed.

Section 111A of the Social Security Administration Act 1992 provides:

“(1)

If a person dishonestly –

(a)

makes a false statement or representation; or

(b)

produces or furnishes, or causes or allows to be produced or furnished, any document or information which is false in a material particular;

(c), (d)…

with a view to obtaining any benefit or other payment or advantage under the relevant social security legislation (whether for himself or for some other person), he shall be guilty of an offence.

(1A). A person shall be guilty of an offence if –

(a)

there has been a change of circumstances affecting any entitlement of his to any benefit or other payment or advantage under any provision of the relevant social security legislation;

(b)

the change is not a change that is excluded by regulations from the changes that are required to be notified;

(c)

he knows that the change affects an entitlement of his to such a benefit or other payment or advantage; and

(d)

he dishonestly fails to give a prompt notification of that change in the prescribed manner to the prescribed person.”

Subsection 111A (1A) was inserted into the 1992 Act by section 16 of the Social Security Fraud Act 2001 and came into force on 18 October 2001. The benefits that the appellant obtained accrued by reason of ‘relevant social security legislation’.

Subsection 111A(1A) replaced an earlier provision, inserted into the 1992 Act by the Social Security Administration (Fraud) Act 1997, which made it an offence to ‘fail to notify a change of circumstances which regulations under this Act require him to notify’. This provision had never had any effect, for no regulations requiring notification of a change of circumstances were ever made under the Act.

The scheme of section 111A, with the addition of subsection 111A(1A) appears to us to be clear. If a false statement, representation or document is made or furnished with a view to obtaining benefit an offence will be committed under section 111A. If benefit is being paid pursuant to a statement, representation or document that was true when made, but ceases to be true because of a change of circumstances, 111A(1A) imposes an obligation to give prompt notice of the change, so that the recipient of benefit does not continue to receive benefit to which he is no longer entitled.

A count charging an offence under section 111A(1A) should identify the relevant change or changes of circumstances that the defendant is alleged to have failed to notify. The particulars of Count 8 do this in so far as c) is concern, but none of the other particulars a) to h) appear to allege any change of circumstances. They could well apply to circumstances that already existed when the appellant first claimed benefit.

In his directions to the jury in relation to Count 8 the judge did not tell them that it was necessary for them to identify a relevant change of circumstances that the appellant failed to notify. He proceeded on the basis that the offence was committed if the appellant had failed to notify the Department that he was receiving benefits on the basis of facts that differed from the true facts. We do not consider that any offence was committed if there never was a relevant change of circumstances during the period that the appellant was receiving benefits because the initial receipt had been induced by falsely failing to declare the true facts.

The prosecution contended when seeking permission to amend Count 8 that the position was covered by the decision of the Divisional Court in Parry v Halton Magistrates’ Court and the Department of Work and Pensions [2005] EWHC (Admin) 1486. Miss Greenberg sought to rely upon that decision before us. Mr Donne submitted that Parry was wrongly decided. The facts of that case were as follows

Mr Parry had been receiving incapacity benefit from 1999 and continued to do so until 2003. Between 22 August 1999 and 8 January 2001 he was in paid employment. This was a material change of circumstances that affected his entitlement to incapacity benefit. He failed to notify it and thus continued to receive the benefit. He was charged and convicted before the magistrates of breach of section 111A(1A). The justices stated a case for the opinion of the Divisional Court that was summarised by Field J, when giving a judgment with which Rose LJ agreed, as follows:

“The justices state that they were of the opinion that:

‘(a) The wrong doing at which the offence was aimed was to prevent persons from dishonestly failing to notify a change in their circumstances that might affect their entitlement to benefit.

(b)

The use of the word ‘prompt’ was to prevent abuse by a person giving notification of a change in circumstances an unreasonable length of time after the change occurred.

(c)

As a result, in a situation where no notification was ever given the issue of promptness was irrelevant.

(d)

On 22^nd August 2000 the appellant became subject to an obligation to notify the respondent Department of the fact that a change of circumstances had occurred, an obligation that did not cease purely due to passage of time but continued without a break until the appellant’s claim for benefits was stopped in 2003.

(e)

On 1^st December 2001 [sic] – section 111A of the Social Security and Administration Act came into force.

(f)

Between 8^th December 2001 and 5^th November 2003 the appellant dishonestly failed to notify the respondent Department of the fact that a change of circumstances had occurred on 22^nd August 2000, knowing that this fact would affect his entitlement to benefit, an omission which constituted an offence under section 111A.’

9.

The questions stated by the justices for the opinion of this court are:

‘(a) Were we right to find that the use of the word ‘prompt’ in section 111A of the Social Security Administration Act 1992 was to prevent abuse by a person giving notification of a change in circumstances an unreasonable length of time after the change occurred with the result that, in a situation where no notification was ever given, the issue of promptness was irrelevant?

(b)

Were we right to find that the appellant’s obligation to notify the respondent Department, which began on 22^nd August 2000, did not cease purely due to passage of time or his ceasing to work on 8^th January 2001 but continued beyond the commencement date of section 111A and until his claim for benefits was stopped in 2003?

(c)

Were we right to find that the period during which the appellant was working, namely 22^nd August 2000 to 8^th January 2001, was itself not relevant to the issue of whether the appellant had committed a criminal offence between 8^th December and 5^th November 2003 and that the relevant consideration was the appellant’s behaviour between 8^th December 2001 and 5^th November 2003, namely his dishonest failure to notify the respondent Department of the fact that he had worked?’”

Field J dismissed Mr Parry’s appeal for the reasons that appear in the following short passage from his judgment:

“…when section 111A(1A) came into force the appellant came under a fresh obligation to give a “prompt” notice in conformity with that provision and could not be charged under the subsection’s predecessor (section 111A(1C) of the 1992 Act) for the provision had been repealed. The appellant came under this fresh obligation because the period during which the appellant had worked was plainly a change in circumstance affecting his entitlement to benefit for he was continuing to claim benefit which was being paid on the basis that he had never worked since signing on.”

We have difficulty with this decision. The magistrates found that Mr Parry’s obligation to notify his change of circumstances arose on 22 August 2000 and continued up to the time that he ceased receiving benefits in 2003. As we understand the position, however, there was no statutory obligation to give notice of a change of circumstances until section 111A(1A) came into force on 18 October 2001. Field J held that a fresh duty to give “prompt” notice arose when that Act came into force. We question whether this was correct, given that there was no statutory duty to give such notice before the new subsection came into effect and no relevant change of circumstances during the period that it was in effect.

Whether or not Parry was correctly decided, the facts of this case differ from those in Parry in that, in this case, it is doubtful whether there was ever any relevant change of circumstances. It seems likely that the circumstances that disentitled the appellant to benefit existed at the time that he first claimed benefit and that his offending consisted of concealing the true circumstances rather than failing to notify a change in circumstances. Count 8 was defective and the judge’s summing-up in relation to that count was not adequate.

For these reasons we quash the appellant’s conviction on Count 8 and, to that extent only, this appeal is allowed.