Browbank v Director of Public Prosecutions

1. MR JUSTICE MCCOMBE: This is an appeal by way of case stated by Mr Richard Laurence Browbank from a decision of the justices for the County of Hampshire, acting in respect of the Petty Sessional Division of North East Hampshire, whereby they convicted Mr Browbank of a charge of theft contrary to sections 1 and 7 of the Theft Act 1968.

2. The facts as found by the justices were in summary these. Mr Browbank was employed as a retail assistant, or sales person, at a roadside retail outlet on the A34 outside Winchester. The relevant outlet consisted of two units, one on each side of the road, and Mr Browbank worked there. Part of his duties was to key in monies taken for goods sold and to provide where necessary refunds for returned goods, and then at the end of his shift to cash up his till takings as required. Before starting his shift and when concluding it Mr Browbank would be required to key in a personal identification number allotted to him and to no other employee, which was in fact 4598. He was the only person, apart from his supervisor, who knew this personal number.

3. On 28th October 2001 it fell to one of Mr Browbank's superiors to check the takings of cash in respect of Mr Browbank's shift on 26th October 2001. The supervisor, or superior, discovered a surplus of some £75 in the cash takings cashed up by Mr Browbank. The surplus, as the magistrates found, had been created by keying into the till refunds various amounts which were entered under a product code for "retail maps"; in other words, they reflected refunds for road maps, books and the like. The justices found that the refunds had been entered without the relevant sum being removed from the till in respect of that refund.

4. This surplus led to an investigation of further till reports in the period between 7th October 2001 and 27th October 2001 showing a large number of refunds under the retail map code. In respect of those days no surplus money had been found when such a refund code had been used. All relevant refund entries had occurred when Mr Browbank was working. They matched times when he was rostered, or indeed were entered using his personal identification number. Those refunds that had been entered in the till reports not using Mr Browbank's personal number were entered using the code 1111. The justices found that Mr Browbank was aware of that code, which was one used in the introductory training of all new recruits until they were allocated their own personal number.

5. In one respect the video evidence showed Mr Browbank operating a till at a time such a refund had taken place. Further examination of the till reports showed that when Mr Browbank was not working, no refunds of a similar type were recorded by the tills. Further, it was company practice for refunds to be authorised by senior managers, and none of the relevant refunds had been so authorised.

6. Mr Browbank was responsible for cashing up and depositing his takings at the end of the shift, and the justices found on the evidence before them that the price of retail maps could not be scanned into the till, but had to be keyed in. This, they found, Mr Browbank was aware of, and it was a particular technique that was not required in respect of other products.

7. Also, the justices found that the sum of the amounts keyed in for refunds did not correspond with the actual cost of the products concerned. They found -- and this is the finding that Miss Churchill, for the appellant, challenges principally -- that Mr Browbank in each case would remove the money for himself in such a way that the till would balance, as inevitably it seems it would. The justices found that Mr Browbank had the opportunity to remove the surplus money he had created, having been responsible for cashing up his own tills at the end of each shift. They found that the money belonged to the employer company, and originally related to goods sold by Mr Browbank acting in the course of his employment in respect of other goods.

8. The breakdown of the till on 26th October 2001 was found by the justices to have stopped Mr Browbank continuing his course of conduct. The remaining surplus in the till was there, and a till report they found provided evidence of a system of appropriation of funds.

9. The justices found in conclusion:

"We did not find it credible that other surplus amounts arising from refunds could have remained undetected in the system as a small surplus would have alerted the Store Supervisor.

"We did not draw an adverse inference from Mr Browbank's silence at trial.

"We rejected a submission of no case to answer as we were of the opinion that evidence of appropriation had been addressed by the respondent in that the refund transactions could amount to the taking of a corresponding sum of money."

10. On those facts, as found by the learned justices, the short submission, and none the worse for that, made by Miss Churchill on behalf the appellant is simply that the learned justices should have acceded to the submission of no case to answer on the basis that the Crown had failed to prove appropriation of relevant sums. Taking on board all the till records and all the other evidence that I have been able to recite and the justices' summary of their own findings, she submits that in the absence of some evidence of stock taking, or some other stock check process, it cannot be shown by the Crown to the relevant standard that goods had not in fact been returned, and that all the refunds had been properly made by Mr Browbank.

11. In my view this was a case where the justices were faced by a congeries of circumstances giving rise to a clear case upon which it would seem that money had gone missing in the circumstances that the Crown alleged. The evidence was such that the coincidences were staggering. As in many cases where juries or justices are faced with evidence of that sort, it seems to me clear that they were entitled to draw common sense conclusions from the facts that they found proved. The system that had been demonstrated, the till records that had been demonstrated, the control through the supervisor process, and the authorisation of refunds were all circumstances which the justices were entitled to take into account, together with the other evidence, to decide the facts that they found established, and they were entitled to draw the inference that they did in the last three paragraphs of their findings of fact, which I have quoted from the case stated.

12. The question that was posed by the justices for the opinion of this court was the following:

"The question for the opinion of the High Court is whether a reasonable tribunal properly directed could have convicted the appellant on the evidence laid before the court."

13. I would unhesitatingly answer that question as "yes", and accordingly this appeal is dismissed.

14. MR FEEST: I am aware that in the lower court the applicant was not ordered to pay costs because of his needs, so I leave it at the discretion of your Lordship whether to make any order as to costs today.

15. MR JUSTICE MCCOMBE: There was no order for costs made below?

16. MR FEEST: No order in the lower court, no.

17. MR JUSTICE MCCOMBE: I am inclined to take the same course today, if that was what happened before the magistrates. Is there anything else, Miss Churchill?

18. MISS CHURCHILL: No, my Lord.

19. MR JUSTICE MCCOMBE: Thank you for your able submissions, none the worse for being short.