R v Rebecca Toloui & Anor

On 6 December 2023, in the Crown Court at Ipswich, the appellants, Rebecca Toloui and Simon Toloui, were convicted of one offence of fraud by abuse of position. On 23 February 2023, they were sentenced to 2 years' imprisonment suspended for 2 years. They each appeal with leave against conviction. The essential ground of appeal in both cases is that they were not granted a fair trial as the Recorder entered the arena as the second prosecutor and advocate, and demonstrated a view hostile to the appellant or a view that favoured the prosecution. We will deal with the details of the complaints later in the judgment. We will consider each complaint individually but also, importantly, the cumulative effect of those complaints. Both Ms Bailey for Mrs Toloui and Ms Lee for Mr Toloui emphasise that it is the cumulative effect of the individual complaints rather than the individual complaints taken alone which are at the heart of their appeals.

The facts can be stated shortly. Simon Toloui is the father and Rebecca Toloui is the stepmother of Andre Toloui. Andre has severe and profound disabilities. His needs require a high degree of care and provision of services. They involve providing a number of carers so that Andre can live independently. Following a move from London to Suffolk in about 2014, those needs were funded by Suffolk County Council. In 2014 Andre was funded to have 45 hours a week of care but that had increased by 2017 to 336 hours a week. That figure represents broadly 2:1 care, 24 hours a day, 7 days a week. Payment was made via a system known as direct payments. The money was paid to the recipient (in this case Rebecca Toloui) who then paid for the team of staff required to support Andre.

The prosecution alleged that some of the money that should have been used to purchase care for Andre was used by Rebecca and Simon Toloui to fund their own outgoings. The outgoings included mortgage payments and utility bills for a house that they had purchased in Suffolk. It was accepted ultimately that some of the funds had been used to pay for those outgoings.

The real issue in the case was whether Rebecca or Simon Toloui had acted dishonestly. Their case was that they had always provided all the care that Andre needed. They said that they understood from the council that they could use the monies received in a way they thought would benefit Andre, either directly or indirectly, and that, for example, paying for the house in Suffolk enabled them to be close to Andre and to continue to provide the care and support that he needed. In the course of evidence Mr Toloui said that he had been told by a social worker (Katrina Warren) that he could use the money to pay the mortgage and bills. Rebecca Toloui said that she had been assured by another social worker (Hollie Scorer) that so long as she and her husband did not go over the funding levels, they could spend the money in the way that they felt would ensure that Andre was gaining the most.

The prosecution relied on a number of features which they contended showed that Mr and Mrs Toloui had acted dishonestly. In July 2015 and from March 2016 to February 2019, Rebecca Toloui submitted a number of invoices to the council for payments, ranging from about £1,500 in some cases to about £6,500 in other cases. The prosecution alleged that at least some of the invoices were false and that they did not represent genuine expenditure and if the Tolouis believed they could use the money flexibly they would not have been generating false invoices. The invoices were submitted on behalf of the consultancy referred to or known as "RLHR". This company was owned and run by Mrs Toloui but she did not tell the council that. Some at least of the money was used , it was alleged, to pay the Tolouis' mortgage and utility bills and other general expenditure.

The prosecution also relied on a number of lies told by Mrs Toloui. These included the following:

Mrs Toloui provided a breakdown of hours and mileage in an email of 3 January 2019 which she accepted was false;

Mrs Toloui accepted that she had told two lies at a meeting in February 2019, namely that she said her brother and nephew had been caring for Andre in the last 18 months when that was not true and when she said that all the money from her company (RLHR) was going to the brother and nephew when in fact some of the money was going to Mr and Mrs Toloui;

Mrs Toloui accepted that she lied in a letter sent on 29 April 2019 giving a false breakdown of mileage in hours of care.

Mrs Toloui accepted she lied in another letter sent on 24 July 2019, when she said that she did not know what the more recent invoices were for when she knew that they were false invoices.

Mr Toloui admitted that he had discussed the contents of a letter with his wife and had agreed it should contain statements that an account balance in the relevant account had arisen because Andre was no longer being taken on trips when he knew that that was not true.

The Recorder gave directions. He also summed up at great length the evidence in the case, including the evidence given by Mr and Mrs Toloui. The jury found them guilty.

The grounds of appeal relate to things done or said by the Recorder during the trial. Both Rebecca and Simon Toloui submit that the Recorder, when you look at those matters cumulatively, could be seen to have entered the arena as an advocate or second prosecutor and preferred, or signalled to the jury that he preferred, the case of the prosecution over that of the defence. They say that, in all the circumstances, the point had been reached when, whatever the evidence against the appellants, they had not had a fair trial.

A number of discrete complaints are made although, we stress Ms Bailey and Ms Lee say that these should be looked at cumulatively. Both appellants rely on the fact that the Recorder said to the prosecution, in the absence of the jury, that the prosecution should seek evidence from Katrina Warren and Hollie Scorer (two of the social workers) because there was a gap in the prosecution case which needed to be filled. These two social workers were the ones that had been said to have assured the Tolouis that they could spend the money on mortgages and utilities (that was said to have been said by Ms Warren), or that they assured the Tolouis that they could spend the money in a way which they thought best met Andre's needs (that was said to have been said by Ms Scorer). It is also submitted that the Recorder referred in front of the jury to the circumstances which had led to Ms Scorer being called as a witness.

In relation to Rebecca Toloui, Ms Bailey on her behalf submitted that Ms Scorer had been referred to an email that Mrs Toloui had written to her. Part had been read to her and she was asked to comment on that part. That part said this:

Complaint is made that the Recorder insisted that the whole email be put in evidence and he went through it line by line asking questions of Mrs Toloui in a manner that were not intended to clarify any matters but was intended to emphasise that, when one read the context, what Mrs Toloui was saying was not justified, namely, he was trying to show that Mrs Toloui in the email was asking about specific expenditure on specific things not expenditure generally.

Complaint is made by counsel on behalf of both Mr and Mrs Toloui that the Recorder would often stop a witness who was making a positive point for the prosecution to enable him to repeat the point and write it down. Further, they rely on the fact that the Recorder asked questions at the end of the cross-examination of Mrs Toloui to the effect that she had accepted the particular document was false. He read it out bit by bit and then asked her at the end: "Is any of that true?" It is said that that demonstrated a wish on the part of the Recorder to show that the defence case was not correct.

In addition to points already referred to, the following points were also made on behalf of Mrs Toloui by Ms Lee. First, it was said that the Recorder stopped Mr Toloui in evidence, when he was explaining the amount of care given to Andre, to ask whether that evidence was germane to the issues. Next, at the close of the cross-examination, the Recorder asked questions about whether Mr Toloui knew the various invoices were false and then he went on to ask about whether Mrs Toloui was the director of a company and whether Mr Toloui would regard a co-director as dishonest if he submitted fictitious invoices.

Ms Lee for Mr Toloui also submitted that the Recorder expressed criticism and was disparaging of Mr Toloui in front of the jury when Mr Toloui said that his defence statement was prepared by lawyers and was a "vanilla" statement. Further, it was also submitted that the Recorder wrongly led the jury to believe that the first time the prosecution had sought to speak to the social workers (Ms Warren and Ms Scorer) was after Mr Toloui mentioned them in evidence and that if he had mentioned them in the defence statement there would have been contact before. In fact, the prosecution knew about, and had certainly obtained a statement which had not been used from one of the social workers, before their names were mentioned by Mr Toloui in evidence.

Next, complaint is made that the Recorder read out parts of Mr Toloui's interview where he accepted certain things about certain invoices being false. But the Recorder did not read out parts where Mrs Toloui gave his explanation. Counsel did draw that to the Recorder's attention, and the parts were then read out by counsel. However it is submitted the fact that that had to happen reinforced the fact that the Recorder was focusing on parts of the case which helped the prosecution and was not fairly recording parts of the case that helped or might be said to help the defendants.

Counsel submits that the Recorder made other observations which they submit cast the prosecution case in a more favourable light. They say that the Recorder downplayed the relevance of the amount and quality of care given to Andre. Further, whilst the Recorder said that the defendants did not have to prove their innocence from the burden of proving guilt was on the prosecution, it is said that he then diluted that by saying the jury had to assess their evidence to see if they were reliable, accurate and truthful. Finally, it is said that the Recorder praised the prosecution during his summing-up in a number of ways in terms of how well the prosecution had presented the case.

Both appellants rely upon the following two authorities, R v Michel [2010] UKPC 41; [2010] Cr App R 24 and R v Malcolm [2011] EWCA Crim 2069. We deal first with the principles governing what is necessary for a fair criminal trial and what is expected of a judge in a criminal trial. In Michel the judge had intervened with lengthy questions on 273 occasions. The questions amounted to cross-examination which was generally hostile to the defendants. The judge had demonstrated his scepticism and sometimes incredulity about the defendant's case and was on occasion sarcastic, mocking and patronising. Lord Brown, giving the opinion of the Privy Council, said this at [27] and [28]:

In the case of Malcolm the issue is whether a person had dishonestly removed property from a rented flat. The accused said that he had been given permission to remove the items by a person from the managing agents. The judgment set out extracts from the transcript. The judge is recorded as saying: "... I’m going to demand a witness from [the estate agents] presents his or herself here in the course of this trial". The judge said he wanted the witness there for the duration of the trial and he wanted an explanation from the officer as to why that had not been done. Later the Recorder said: "… the witness from [the estate agent] must come straight away, as indeed must... must both make witness statements." Later, the Recorder was critical about the defence statement, which did not identify the person said to have given permission. The judge said: "I am being forced into the arena" and a little later he said the lacuna would have to be filled if that could be done without injustice and: "And if that means my having to descend occasionally into the arena to ask questions that need to be asked, I’m afraid I will."

At [83] and [84], the Court of Appeal said this:

We turn then to the specific criticisms to consider them individually before we consider the criticisms cumulatively. First, in relation to the calling of the two social workers, we have read that parts of the transcript during the hearing when the Recorder raised with the prosecution, in the absence of the jury, the fact that they had not called Ms Warren or Ms Scorer. The Recorder said that he was exercising his case management powers. In part, as appears from the transcript, the Recorder was seeking to ensure what he thought was necessary to ensure fairness. As the appellant's had identified that these two people had said things relevant to what they understood they could do with the funding, the Recorder thought it was necessary for them to be able to put their case to those two social workers.

We think that the remarks made by the Recorder reflect an inaccurate understanding of the procedure in a criminal trial. It is ultimately for the prosecution to decide what witnesses they wish to call as part of the prosecution case. A judge's case management powers in criminal trial do not extend to deciding what witnesses should be called. If witnesses are called by the prosecution and they give evidence which is contested, those matters have to be put to them. If the prosecution do not call witnesses to give evidence on a particular matter, there may be no prosecution evidence on that matter. The appellants may then give their evidence as part of the defence case. They might give evidence about what they say they were told by particular people. If there is no evidence to gainsay what they were saying, that would be a matter for the jury to assess. We doubt it was necessary or correct to talk about the prosecution needing to call witnesses to enable the appellants to put their case to those witnesses.

That said, first, the Recorder would be entitled to raise with the prosecution whether or not other witnesses should be called. Secondly, there is nothing remotely like the circumstances of the language used in Malcolm in this case. The Recorder was polite and courteous throughout and it is clear why he was concerned at the absence of the witnesses. Thirdly, and perhaps most importantly, in terms of assessing the fairness of the trial, the evidence was obtained. As it happens Ms Warren could not remember much about any conversations she had and her statement was read out. Ms Scorer gave evidence and she was able to be, and was, cross-examined. Nothing said or done in anyway could have affected the fairness of the trial. We do not consider that the steps taken by the Recorder showed a hostility to the appellants or involved him becoming a second prosecutor.

Secondly, we have considered the fact the Recorder wanted the whole email to Mrs Scorer from Mrs Toloui to be included. We have considered the questions that were asked. Mr Parker, for the prosecution, accepted that they were more of a challenge than a clarification. Whilst with the benefit of hindsight it was unnecessary and unwise to do that, we would not regard that, of itself, as undermining the fairness of the trial. The Recorder did insist the whole email be put in evidence, and we understand why he was concerned about that. He was concerned that reading parts of the email rather than the email as a whole might give rise to a misunderstanding and the jury would have to assess whether or not the comments that had been made were in the context of seeking approval for particular types of expenditure for Andre or expenditure generally. Nonetheless with the benefit of hindsight the way in which the Recorder went about this matter was unwise. However, of itself, it stops short of amounting to anything remotely demonstrating hostility to the prosecution.

Thirdly, we consider other questions asked by the Recorder of Mr and Mrs Toloui. One concerned the fact that the Recorder went through a particular false invoice with Mrs Toloui effectively line by line and said at the end: "Is any of that true?" In relation to Mr Toloui he asked about particular invoices and then said:

Again Mr Parker, for the prosecution, fairly accepted that the questions were more by way of challenge than clarification. Judges often need to seek clarification of particular questions. They usually do so at the end of the re-examination. On occasions, it seems to us that the judge went beyond clarification and did challenge witnesses on particular matters. Again, however, we do not consider that the content, length, tone or significance of the questioning that we have referred to cast doubt upon the fairness of the trial, although with the benefit of hindsight the questioning that we refer to was both unnecessary and unwise.

Fourth, we turn to the way in which the criticism was made of the defence statement. When asked about this in cross-examination, and the fact that he had not referred to the conversation with Ms Warren when he said that he had been told he could use the money for mortgage and the utility bills, he referred to the defence statement as being prepared by lawyers and it being a "vanilla" statement. The judge made what has been described in argument as "robust" clarification of the position in relation to defence witness statements. By that, we infer that it went beyond simply explaining what a defence statement is so the jury could understand what it was and implied some criticism by Mr Toloui of the way in which he regarded the defence statement. Again, we regard the way in which this matter was dealt with as unwise and unnecessary. The judge could have dealt with the defence statement in summing up. He could have explained what it was required to contain and, if appropriate, to indicate to the jury what inferences they might draw if they thought it appropriate to do so. This again was a situation where the Recorder was responding to the way the things were unfolding. It falls far short of any demonstration of hostility or of the Recorder taking up the case for the prosecution and we do not consider it undermines the fairness of the trial.

Fifth, we do not see any significance in the Recorder having to ask witnesses to pause so that he could make a note of a particular point. Similarly, we do not see that any significance can legitimately be attached to the Recorder not indicating that the prosecution had been trying to speak to, and certainly knew about, at least Mrs Warren before Mr Toloui mentioned it in evidence. Nor do we think that any legitimate significance can be attached to the reading out of part of the interview that Mr Toloui had made. There is no actual unfairness. The jury had their attention drawn to the whole of the interview and to what the defence case was and to what Mr Toloui's evidence was during the course of the summing-up. We do not consider that it would be legitimate to infer from that matter any hostility or any attempt to assist the prosecution case.

Sixth, we do not consider that the criticism made in the legal directions and in particular the way they were amplified in oral statements during the summing-up is justified. The Recorder made it quite clear that the burden of proof lay with the prosecution. He did not dilute that direction. He quite properly reminded the jury that they must assess each of the appellants' evidence in the way that they assessed all other evidence in the case and they had to determine whether it was reliable, accurate and truthful. Again, with hindsight, that part of the summing-up and the directions might have been better placed at an earlier stage of the summing-up when he was describing how the evidence of witnesses should be approached. But in substance it is correct, and we do not consider that it demonstrates any hostility or would be understood as in some way inviting the jury to be sceptical about the appellant's evidence.

Seventh, we do not see any significance in the way the Recorder dealt with the issue of the quality and amount of care for Andre. When summarising the evidence, he said that it was accepted that Mr and Mrs Toloui cared greatly for Andre. He said there was no suggestion of any lack of care on their part. He said that the jury might well think having heard the evidence, that it was very difficult to recruit appropriate carers for Andre, given his challenging needs, and that it would have been difficult to organise carers for Andre. Those were points that the appellants or others had made in their evidence to explain why payments had not been used for carers. He also said that that was a matter for the jury but that they might consider that that was not the main issue. Given that the central issue in this case was really dishonesty, had each of the appellants dishonestly abused their position of trust and used money for their own purposes which was supposed to be used for funding services for Andre, he was entitled to do that.

Eight, we do not see any real significance in the fact that the Recorder praised the skill of the prosecution and for that matter the defence barristers in the way that they prepared or conducted their case. We should say however, we do not consider that it was necessary to comment in that way in a summing-up and to refer to the skill of the professionals involved. It is better in a summing-up to focus simply on the legal directions to be given to the jury and on the summary of the evidence. There are other points in the trial, preferably when the jury are not present or after the case has concluded, where a judge, if he or she thought it necessary or appropriate to do so, could express any praise or any criticism of the professionals involved. We understand why a judge would wish to appear to be polite and complimentary to counsel, on both sides as it happened in this case, but we think it was misplaced to do so in a summing-up. Nonetheless, we do not think it in any way affected the fairness of the trial.

Consequently none of the individual matters relied upon demonstrate that the Recorder acted as a second prosecutor or entered the arena in a way that was unfair or hostile to either appellant. Criticism can be made, as we have made, of individual matters. But the criticism would at most establish a failure of best or ideal practice. They fall short of establishing that the individual failures constituted or resulted in any unfairness in the trial.

We have also considered the individual matters cumulatively, as both counsel for each of the appellants encouraged us to do. The thrust of their submissions were that the individual matters had to be assessed cumulatively and whilst each one individually may have been insufficient to establish unfairness, taken as a whole they did. Both counsel reminded us of the observations of Lord Brown at [27], which we have already read out emphasising that, put shortly, there comes a point when however obviously guilty an accused person may appear to be, the Court of Appeal reviewing his conviction cannot escape the conclusion that it has simply not been fairly tried.

We do not consider that these matters taken together establish that there was unfairness in this trial or the appearance of unfairness. Each of the appellants had the opportunity to put their case in evidence. The evidence was properly summed up. The jury then assessed that evidence and determined whether or not the appellant was guilty or innocent. The matter that occurred during the trial did not undermine the fairness of the trial and could not properly be categorised as the Recorder entering the area or acting as a second prosecutor. For those reasons therefore we dismiss each of these appeals.