Montague, R v

On 25^th January 2013 in the Crown Court at Isleworth before Mr Recorder Shetty and a jury the appellant was convicted of two counts of having articles in his possession, or under his control, for use in the course of or in connection with any fraud, contrary to section 6(1) Fraud Act 2006 (counts 1 and 2 on the indictment he faced).

On 8^th March 2013 he was sentenced by the learned recorder to 5 months’ imprisonment concurrent on each count.

He was jointly charged with others. Quincy Williams pleaded guilty to counts 1 and 2. He was sentenced to 9 months’ imprisonment suspended for 2 years with a requirement to undertake 200 hours unpaid work and to undertake education, training and employment for 10 days. Edwin Danso was acquitted of count 1. Michael Owusu pleaded guilty to count 1. He was sentenced to 4 months’ imprisonment suspended for 2 years with a requirement to undertake 80 hours unpaid work. Curtis Efole was acquitted of one count of fraud (count 3) and one count of making or supplying articles for use in frauds (count 4).

The appellant was granted leave by the single judge to appeal his conviction.

The short point arising on this appeal is whether the judge fairly directed the jury on the issue of joint enterprise. It is argued that the jury should have been directed that the appellant could only be convicted as a principal and that he was to be acquitted if the jury concluded he may only have had a secondary role.

At around 11am on 10^th November 2011 the police stopped the appellant, Williams, Owusu and Danso in Caxton Road, London W12. They were standing near Williams’ car. They were searched. Owusu was in possession of a Santander cash card and a United Kingdom driving licence both in the name of Mr S. Sharman (these items related to count 1, in which the appellant, Williams, Danso and Owusu were charged). The cash card had been issued to Danso and the driving licence bore the appellant’s photograph. All four were arrested and their home addresses searched. In a safe in Williams’ bedroom the police found, amongst other things, another UK driving licence in the name of Beasley with the appellant’s photograph on it and a strip of passport photographs of the appellant. The photographs were identical to the pictures on the driving licences. There were also three bank customer profile reports relating to Barclays Bank customers. These had been printed by co-accused Efole, who worked at the Sutton branch of Barclays Bank, on 9^th November 2011. All of these latter items formed the basis of count 2 (in which the appellant and Williams were charged).

In interview the appellant declined to answer the questions put to him other than to deny that he had ever been in possession of the cash card and licence relating to Sharman. That remained his defence at trial as regards all of the items set out in the two counts (although we note he was not questioned in interview about the documents in the safe).

The prosecution case was that Williams was the principal fraudster. It was suggested there was a strong inference that the four men who had been stopped on 10 November 2011 were “in this together”, in that the cash card was in Danso’s name and the driving licence had the appellant’s picture on it. The Crown’s contention was that the appellant was the only person who could have benefited from using the driving licence. Accordingly, it was argued this was a joint enterprise and the appellant’s involvement was demonstrated, inter alia, by his photographs on the false documents. Additionally, the prosecution maintained that the circumstantial evidence, such as the other copies of his photographs in the safe, supported the inference that he was jointly in possession or control of the fraudulent items, even if he was not physically in possession or control of them.

The defence case was that the appellant was not in possession or control of any of the fraudulent items found on Owusu or in Williams’ safe. It was contended there was no evidence that he saw, handled or knew of the cards or driving licences and that if the co-accused had intended to give him the articles relating to Sharman, “possession” had not been transferred by the time they were arrested. In support of this defence, it was emphasised that Williams was the “puppeteer” in this case and exercised strict control over the fraudulent items and the appellant had ceased being possession of the passport photographs that were found in the safe.

Accordingly, at trial the issue for the jury in relation to the appellant was whether he was, on a joint enterprise basis, in possession of the driving licence and two bank cards (count 1) and a driving licence, a bank card, passport photographs and three customer profile printouts of Barclays bank customers (count 2), on 10 November 2011.

The issues raised on this appeal are twofold. First, did the judge sum up the case on joint enterprise in a way that undermined an assurance by the prosecution and the court as to how the case was be left to the jury, with the result that the appellant elected on a false basis not to give evidence. Second, did the summing up impermissibly “all but strip[…] him of a valid defence”. The appellant maintains that his approach to the case was that he could only be convicted if he was a principal and that participation as an accessory was insufficient.

The appellant was faced with some notably difficult factual circumstances because, as the judge observed to the jury, his counsel had not challenged the proposition that the driving licence and bankcard bearing his photograph were for use in the course of or in connection with fraud. In those circumstances, defence counsel, Mr Bass, during the course of his closing speech, sought to rely on the narrow defence that at the relevant time these items were not in his possession or under his control as a principal. During submissions before this court, Mr Bass accepted that prior to his closing speech it may well have been unclear that this was the limited defence the appellant was advancing, given that the Defence Statement was almost devoid of any substance. Under the heading “The General Nature of the Accused’s Defence”, it simply rehearsed that “[t]he defendant denies possessing or controlling the articles in question and was unaware of any potential or proposed fraud by others”. This bald statement would not have alerted the prosecution or the court to the importance now attached to the distinction in this case between principals and accessories that has featured prominently on this appeal.

In the context of his submission of no case to answer, Mr Bass indicated to the recorder that the Crown were proceeding on the foundation that the defendant was guilty of possession of the items for use in fraud on the basis of joint enterprise liability. During his ruling, the judge referred to the possibility of the prosecution establishing the appellant’s guilt as an aider or abettor, or a counsellor or procurer, of the offences; in other words, there was the basis for drawing a reasonable inference that the appellant acted as an accessory to the crime. Mr Bass expressed his concern about the reference to secondary liability and the judge responded that this had been included simply because his ruling had been formulated before there had been focus on the precise way the prosecution put its case.

Before counsel’s speeches, the recorder circulated his draft legal directions to the jury on the counts in the indictment:

Possession of Articles for use in Frauds consists of the following elements:

It is not in dispute that the articles were for the use in the course or in connection with fraud. Neither Danso or Montague challenge that the driving licences and the bank cards were for the use in the course or in connection with fraud. The items in count 2 were in Williams’s safe.

As a matter of law, someone may also be in possession of something even if it is not physically on his person if it is part of a common pool to which he has the right draw at will – if he has the right to say what should be done with the thing – or if the possession was part of a joint enterprise – that is the defendants were working together.

The prosecution case on count 1 is that four men committed this offence in a joint enterprise. In respect of count 2, it is alleged that two men committed this offence. An offence can be committed by one person or more than one person. If two or more people act together with a common criminal purpose to commit an offence they are each responsible, although the parts they play when carrying out that purpose may be different. The prosecution must prove participation by the defendant with a common purpose or intention to commit the offence and doing something to bring about a commission of that offence. Whilst participation with a common purpose implies an agreement to act together, no formality is required. The agreement can be made spontaneously any may be inferred from the defendant’s actions.

Your approach to the case should therefore be as follows: if looking at the case against the particular defendant you are considering, you are sure that with the intention I have mentioned he took some part in a plan with another he is guilty. Mere presence at the scene is not enough to prove guilty but if you that the defendant intended and did play a part in the plan he is guilty.

Was Danso acting together with others with a common criminal purpose to commit the offence of possession or control of articles for the use in the course of or in connection with fraud? If you are sure that Danso was, then the verdict would be guilty. If you are not sure then the verdict would be one of not guilty.

Was Montague acting together with others with a common criminal purpose to commit the offence of possession or control of articles for the use in the course of or in connection with fraud? If you are sure that Montague was, then the verdict would be guilty. If you are not sure then the verdict would be one of not guilty.

Having received this document, there was no application from Mr Bass either to call his client or for the discharge of the jury.

After the Crown’s closing speech, Mr Bass again raised his concern that the appellant should not be at risk of conviction on the basis of joint possession solely because he had provided Williams with his photographs. He accepted, however, that the jury could take this evidence into account on the issue of control (given the way the Crown put its case). The prosecution reiterated that it was proceeding on the basis of joint possession and control, as opposed to secondary liability. Mr Cranston-Morris, for the prosecution, rehearsed that the essence of the Crown’s case against the appellant was that he had been part of a fraudulent gang. He had contributed to the creation of the false documents by providing his photographs and he had been with the other members of the criminal enterprise at the time of their arrest. The prosecution was proceeding on the basis that “the joint enterprise plan manifested itself on 10^th November by the four defendants meeting together with the documents […] in West London. Mr Montague knew about the items that were fraudulently created. He was in control of the items that were fraudulently created. The inference that that is in fact the case, the Crown say, starts with the fact that he had provided the photographs […]”. On this basis, it was alleged the appellant was jointly in possession or control of the fraudulent items, even if he was not physically in possession of them, as “a fully participating member of the joint enterprise”.

However, notwithstanding this formulation of the prosecution’s case, Mr Cranston-Morris correctly submitted that “aiding, abetting, counselling and procuring are merely methods by which an individual may participate in a joint enterprise plan” and that the Crown did not need to distinguish between primary and secondary parties, as long as it was able to prove participation in the plan – in this instance, to possess the articles for use in fraud – with the necessary mens rea.

The judge stated that his interpretation of the Crown’s closing speech was that the fact that the appellant handed the photographs to Williams was relied on as circumstantial evidence that could lead the jury to conclude that the appellant was in joint possession of the fraudulent items. He suggested there was no need to go beyond that when directing the jury and counsel for the appellant indicated that he was content with a direction in those terms.

After speeches, Mr Bass indicated that he did not object to the contents of paragraphs 2 and 3 of the written directions (he proposed a slight amendment on an unrelated issue), but he suggested that paragraphs 4 and 5 left open the possibility that the appellant was guilty solely on the basis that he handed the photographs to Williams in order to produce false documents. Mr Bass conceded that if the appellant had “some control” over one or more of the items in question “even if it [was] not in his possession, he would be guilty of the offence”. The recorder agreed that he needed to direct the jury that the mere fact that the appellant gave Williams the photographs did not itself prove guilt, and he accepted Mr Cranston-Morris’s submission that the Crown had to prove “joint intent and […] joint possession and control”. Mr Bass indicated he was content with this approach.

The judge summed the case up on counts 1 and 2 as follows:

Mr Bass submits the judge misdirected the jury at paragraphs 3-5 of the written directions and thereafter during the summing up on the issue of joint possession and control in that he gave a joint enterprise direction that, in effect, permitted the jury to convict on the basis of aiding and abetting or counselling and procuring. In particular, it is highlighted that the charge was one of possession and not a conspiracy alleging the creation and supply of articles for use in fraud. It is suggested that the prosecution had given a clear indication that its case was that of “joint possession and control” and that it did not seek a conviction on the basis of secondary participation and the judge had informed counsel he would not be directing the jury on that alternative basis. As a result, the appellant decided not to give evidence, although if he had known how the case was to be left to the jury it is “likely” he would have testified.

The prosecution contends that the criticisms of the judge’s directions are unfounded. In particular, it is suggested the recorder did not equate involvement in the creation of the items with possession and control of them at the relevant time. Instead, it is suggested the appellant’s contribution at this earlier stage was a material consideration in determining whether he was in possession of them, either personally or on a joint enterprise basis. The prosecution maintains the jury were entitled to conclude that the appellant and his co-accused were “in it together”. In all the circumstances, it is suggested that the Crown did not change its case after the close of the evidence or at any other time.

Although the difference in law between principals and accessories is of considerable importance in our system of justice in terms of defining the criminal liability of the individual concerned (see R v A and others [2010] EWCA Crim 1622 at [9]), in the vast majority of cases – as presented to juries – the distinction tends to be unimportant. This is particularly the case given that pursuant to section 8 of the Accessories and Abettors Act 1861, an accessory is liable to treated as a principal offender. Indeed, it is not unusual for it to be unclear whether the defendant’s role was that of a principal or a secondary. In those circumstances this issue can be left on an alternative basis if the prosecution can properly allege that if the defendant is not liable to be convicted on one basis (e.g. as a principal), he must be liable on the other (e.g. as a secondary).

By way of example, in R v Robert Vincent Giannetto [1997] 1 Cr. App. R. 1 the prosecution was unable to say whether the appellant was the murderer (the principal) or that someone else had murdered Julia Giannetto on his behalf (meaning the appellant was a secondary). The Court of Appeal decided that the prosecution was entitled to put its case on an alternative basis:

The court went on to observe:

One of the critical factors, therefore, is the need for clarity as regards the alleged role of the defendant. In DPP for Northern Ireland v Maxwell [1978] 1 W.L.R. 1350, 1357; [1979] 68 Cr. App. R. 128 the accused had been charged in the indictment as a principal when he was a secondary, as regards offences of doing an act with intent to cause an explosion and being in possession of a bomb. Lord Hailsham emphasised it is desirable “in these cases of aiding, abetting, counselling or procuring, of drawing the particulars of offence in such as way as to disclose with greater clarity the real nature of the case that the accused has to answer”. Viscount Dilhorne put the matter thus:

Applying those principles, it follows that it was necessary that the case against the present appellant was advanced on a proper legal basis, which did not breach any substantive assurance given by the prosecution or the court as to the way the matter would be left to the jury, and that the allegation he had to meet was clearly spelt out. Additionally, we observe that if the Crown had proceeded on the entirely legitimate basis that the appellant was liable to be convicted as a principal or an accessory, none of the present difficulties would have arisen and the judge would not have needed to address unnecessary conceptual issues, in an artificial context. It will usually be preferable for the case to be presented on this alternative footing when the prosecution is entitled, on the facts, to suggest that it is open to the jury to convict the accused either as a principal or as a secondary because there is no relevant or material difference in relation to the issues in the case between the two alternatives. In those circumstances, a direction pursuant to R v Brown (Kevin) (1984) 79 Cr. App. R. 115 will not need to be given.

Mr Bass accepts that the directions in law to the jury were entirely appropriate in a joint enterprise case of this kind, if the appellant was liable to be convicted as either a principal or an accessory (as regards the latter by aiding and abetting the possession or control of the items by another or others). Instead, as set out above, his complaint is that following the discussions in court the judge did not direct the jury to acquit unless they were sure he was a principal, in the sense that one or more of the items relevant to the count they were considering was in his possession or under his control, either by way of personal possession or on a joint enterprise basis. It is argued that as a result the jury may have convicted him as a secondary.

The expression “possession and control” indicates that the individuals concerned needed to have had “actual control of the goods” (or possession of them), the test applied by the Court of Appeal in R v Kousar [2009] EWCA Crim 139; [2009] 2 Cr.App.R. 5. Although that case concerned “possession, custody or control” of an item by a principal for the purposes of the Trade Marks Act 1994 in the context of a marriage, it is to be noted that the Court of Appeal expressly disavowed the suggestion that an “ability to control” was sufficient to establish liability, certainly in the context of that case.

As regards “joint possession”, in our judgment the approach taken in R v Searle [1971] Crim.L.R. 592 (a case that concerned a number of accused who were found in a touring vehicle that contained various dangerous drugs) applies equally to articles that are alleged to be in an accused’s possession or under his control for use in the course of or in connection with any fraud contrary to section 6(1) Fraud Act 2006. As set out in the report of the case in the Criminal Law Review:

In the written directions provided in advance of speeches ([14] above), the judge had instructed the jury that there were two relevant options as regards possession: either the item in question was in a common pool from which he had the right to draw at will (he had the right to say what should be done to the thing, to use the judge’s expression) or possession was part of a joint enterprise with the defendants working together, and that the appellant did something to bring about the commission of the offence in question. It is unnecessary to analyse the former basis because the second option potentially encompassed joint enterprise participation on the part of the appellant other than as a principal who had, either alone or with others, “actual control of the goods”. Having posed the options as alternatives, for the appellant to be convicted as a principal the judge would have needed to direct the jury that it was for the Crown to demonstrate the appellant, alone or with others, had possession or control of the articles for use in fraud, by having the necessary ability to control them. The judge’s written directions did not make this sufficiently clear.

Therefore, the second option described by the judge meant the present case was left on the basis that the jury could convict if they found that the appellant was a secondary.

However, that conclusion is not determinative of this appeal. Putting to one side for one moment the legal concepts of principals and secondary parties, Mr Cranston-Morris’s case against the appellant was that he had been part of a fraudulent gang, as demonstrated by the photographs he provided for the false documents and his presence with this co-accused at the time of their arrest in West London when the joint enterprise plan “manifested itself”. It was suggested unequivocally that even if the appellant was not physically in possession of the fraudulent documents, he was “a fully participating member of the joint enterprise”. There was never any doubt that this was the core of the case against the appellant, and it was suggested the prosecution was able to prove his participation in the plan – to possess or control the articles for use in fraud – with the necessary mens rea. Whether, strictly speaking, he was in joint possession of the items on 10 November 2011, or instead assisted others who were in possession of them, made no material difference to the prosecution case he had to meet on the facts. Indeed, this case is a paradigm of the circumstances when it is extremely difficult to determine whether a particular accused is properly to be described as being a principal or a secondary, although a jury would have been fully entitled to determine to the criminal standard that if he was not the one, he was the other.

In accordance with the suggestion of Mr Bass, the judge directed the jury that the appellant was not to be convicted if he may have done no more than provide the photographs in advance of 10 November 2011 (whether found in the safe or, by implication, elsewhere) because that limited contribution to the criminal enterprise would not have established that he was in possession of them on 10 November 2011 (the date charged in the indictment). In our judgment, that direction ensured that the appellant could only be convicted on the basis that he participated in the plan – to possess or control the articles for use in fraud – on the day he was arrested with his co-accused.

Whilst it is correct to observe that Mr Bass pressed for a concession that the appellant could only be convicted as a principal, it was only during his closing speech that the real reason for, and significance of, his repeated submissions on this subject were revealed. If an accused chooses not to elucidate the true nature of his defence until the very last moment (in this instance, a limited and technical defence), the court will be particularly astute in investigating whether any suggested unfairness, largely caused by the lack of clarity as regards the issues in the case, has resulted in an unsafe verdict. Rule 3.2 of the Criminal Procedure Rules places an obligation on the parties actively to assist the court in identifying the real issues in the case at an early stage, and the defence does not appear to have cooperated in this way in the present trial.

In the event, we have no doubts as to the safety of the convictions on counts 1 and 2. The case against the appellant was advanced on a proper legal basis (as Mr Bass accepted), which did not breach any substantive assurance given by the prosecution or the court as to the way the matter would be left to the jury, and the entirety of the case he had to meet was clearly spelt out. We are unimpressed with the submission that it was material to his defence whether he was liable to be convicted as a principal or a secondary, and particularly the suggestion that this was significant as regards his decision on whether or not to give evidence. The reality of the allegation he had to meet was unaffected by the precise legal label attached to his participation in these two offences. Given the judge expressly withdrew the possibility of a conviction on the basis that he provided the photographs for the fraudulent documents, the appellant needed – whether as a principal or an accessory – to deal with all the other aspects of the relevant evidence, including particularly the events of 10 November 2013.

To return to the words of Lord Hailsham in Maxwell, there was complete clarity as to the real nature of the case the appellant had to meet and no unfairness resulted from the apparent lack of precision in the summing up and in the written directions as to whether his criminal liability was limited to participation as a principal. Furthermore, once Mr Bass accepted that paragraph 3 of the written directions was a correct description of the law, it is difficult to see how the judge can be criticised credibly for summing up in the way we have set out. The appellant did not apply to be allowed to give evidence once he heard how the prosecution left the case to the jury in Mr Cranston-Morris’s closing speech; no submissions were made to the judge to amend his legal directions at the conclusion of the summing up; and no application was made at any stage to discharge the jury on the grounds of unfairness.

This was a strong case against the appellant. In essence, he sought to defend himself on the basis that he had not been involved, either alone or on a joint enterprise basis, in the possession or control of the relevant items after he supplied the photographs to his co-accused. For the purposes of resolving that issue it was not of significance whether he was in joint possession of the items on 10 November 2011 (as a principal) or, instead, assisted others who were in possession of them (acting as an accessory). Accordingly, the verdicts are safe and this appeal is dismissed.