Cox, R (on the application of) v DPP

MR JUSTICE NEWMAN: In this case, which comes before this court by way of case stated by the Justices for the Thames Valley Commission Area, the prosecution alleged that the defendant, now the appellant, Mr Cox, was guilty of a criminal course of conduct involving sums in cash being taken from his employer between 14th November 2003 and 3rd March 2004.

The total alleged to have been taken was between £1,500 and £2,700, or thereabouts. The allegation was that he had effected the theft of cash by entering his PIN number into his till and recording false refunds. That was the system, it was said, he had employed to enable him to take the cash. The defendant admitted all of this on no less than three occasions before the trial in the Magistrates' Court, and in the Magistrates' Court, but when he was charged before the Magistrates with 11 specimen counts of theft between those dates, each in the same amount of money, namely £39.99, and reflecting a pattern, so far as those 11 were concerned, of activities of once or twice a month in that period, he pleaded not guilty, one would surmise, in the light of what one now knows, because he wished to run the defence of duress. His case of duress failed but the ingenuity of the solicitor then representing him was such that he sought also to submit, and did, that (despite the admissions which had been made to a course of conduct spreading over exactly the months included in the charges to a sum far greater than the £440-odd represented by the charge, namely to at least a figure of £1,500 and possibly £2,700) nevertheless the prosecution had not proved its case to the criminal standard of proof. This somewhat surprising submission was carefully considered by the Magistrates and, in my judgment rightly, rejected.

It is necessary just to summarise the effect of the admissions which had been made by the defendant. Then I will endeavour to identify the extent of the legal point which has been taken. In evidence before the Magistrates, the appellant admitted completing false refunds on his till on numerous occasions, using his PIN number in order to steal sums of money from the till. His reservation, which one would not regard as surprising, was that, having regard to a sum of money which he had taken, he could not remember how many times he had done it and when he had done it. Further, he admitted to the court that he had taken £1,500 in cash and agreed that it was most likely that he had taken much more, namely something of the order of £2,700.

These admissions before the court were entirely consistent with his out of court admissions. In the course of his employer's investigations, namely WH Smith's investigations, when he had been shown a review of his Daily Till Exception Reports, known as DTERs, from 14th November 2003 to 2nd March 2004, showing what the investigators said were false refunds totalling £2,886, he accepted that he thought that the figure represented by these DTERs was a realistic figure of the sort of amount that he had taken. Secondly, he admitted to the police, when first interviewed by them, that he had stolen cash in the relevant period and to a sum of about £2,700. Again, in the second interview with the police, he admitted matters to a similar effect.

Armed with this evidence, the prosecution proceeded by way of 11 specimen charges of theft, each, as I have said, £39.99, on the various dates in the relevant period.

The evidence before the Magistrates, as reflected in a very detailed case stated, in its material part records these salient facts: that it was in March 2004 that Mr Taylor, the branch manager at WH Smith's in Bletchley, became aware of disparities in the amount of stock available following a recall to send stock back to a manufacturer. He therefore needed to check the DTERs. He produced to the court, as the Magistrates record, an exhibit known as exhibit GT/1, GT/2 and GT/3, which disclosed refunds equivalent to the amount set out in the 11 charges and the record showed that these had been made against the appellant's PIN number between the dates alleged. It was in evidence before the Magistrates that there were some legitimate refunds on Mr Cox's PIN and there was evidence also that some illegitimate refunds had been done on somebody else's PIN. It was Mr Taylor's contention that it was Mr Cox who had used someone else's PIN in order to effect a false refund, something he could do if his colleague, having entered his PIN, had gone off to lunch or something of that sort without closing down the till.

The Magistrates also record that it was put to the appellant that a review of the DTERs on 14th November 2003 to 2nd March 2004 on his PIN code had shown false refunds totalling £2,886 and it records that the appellant accepted that he thought that this was a realistic figure of the false refunds. He also admitted he had done refunds when another member of staff was signed on to a particular till but absent at the time.

In summarising the appellant's evidence, the Magistrates stated as follows: that he admitted working as a sales assistant at WH Smith's, that he admitted in evidence he had completed false refunds on the till on numerous occasions and that he had removed a similar amount in cash from the till but did not recall how many times he had done this. When asked about the refund analysis exhibit, he stated he could not recall exactly which was a legitimate refund and which was a false one and he could not recall any other transactions accept the two mentioned in the police interview. He remembered those two because he had managed an authorisation to do the refunds as there had been a complaint about these items and he had gone to the manager about them. He stated that he had just accepted the schedule of refunds as being true, that there would have been legitimate refunds but he could not recall them. When asked, he thought he had taken about £1,500 in cash but accepted that the schedule indicated a higher amount.

The Magistrates made the following finding as they appear in the case stated:

On occasions, issues are raised in criminal proceedings which appear to be rooted in a belief that the criminal process of our courts is an obstacle course for the prosecution and that the defendant is a bystander at the spectacle. It has to be emphasised that the rules of evidence and procedure which have been developed in our courts are there to prevent unfairness and to further justice. It is regularly the case that the prosecution allege that there has been a systematic course of criminal conduct, frequently where there has been dishonesty over a period of time. On such occasions, providing the prosecution provide the defence with a list of all offences which are alleged, sample counts can be selected for the court proceedings. Sometimes an alternative course is adopted and offences are taken into consideration and a list is drawn up for that purpose. In such instances, and in particular where sample counts or specimen counts or charges are involved, the duty resting on the prosecution is to inform the defendant of the circumstances of the alleged offending so that he can know the nature of the offence and the gravity of the case which he has to meet. These matters are also critical to a fair sentencing exercise. On this occasion, the defendant had admitted that he frequently adopted the system of entering up false refunds to enable cash to be taken from the till, knew the nature of the allegation which was being made against him and had admitted the particularity of the circumstances surrounding its commission. He also knew, because he had been so informed, of the period of time over which it was alleged he had utilised this systematic, dishonest conduct in order to steal. He therefore was possessed of information which would enable him, had he chosen to do so, to dispute the circumstances or to raise another defence. In litigation, he attempted, unsuccessfully, to plead duress. He faced 11 charges. He knew that they were specimen charges only. He knew that he would be sentenced, if convicted, not simply on the basis of the 11 charges which had been specified but upon the wider offending in respect of which he had made admissions. He was in no better position to make admissions in relation to the wider offending than he was in connection with offences as they appear in the list of charges. By that I mean the point which was taken for him in the court below, and which is now repeated here, is not a point directed towards any injustice that has arisen because he has been sentenced in respect of an unknown number of offences on days which have not been specified in respect of the bulk of the money he took, namely, at very least, the difference between the £440 with which he was specifically charged and the balance of sum of £100-odd with which he was facing the court on a wider basis. What is said is that the prosecution failed to prove the individual charges to the criminal standard of proof. The unusual feature of the matter is, having regard to the potency and evidential value of the admissions that he had made, that this amounted to the defendant contending in one breath that indeed he had stolen, by entering false refunds so as to steal from his employer, during the very period specified, but he was able, it is said, in effect to sit back and require the prosecution to prove the 11 that had been selected and, having adopted that, to suggest, as is now the case, to the Magistrates and to this court, that the Magistrates should not have been satisfied so that they were sure that he had committed the 11 offences. For the moment, it is just worth analysing the options which can be identified as to how the schedule figure can be accounted for. Mr Polson, in his measured and realistic submissions, accepted that two possibilities in particular were in play from the evidence: firstly, that some of the selected 11, if not all of them, possibly represented legitimate refunds. The next possibility is that some, if not all of them, represented transactions carried out by someone else, namely a reverse of the dishonest conduct to which the appellant admitted, using someone else's machine, and the suggestion that someone might have acted dishonestly for using his machine.

For completeness, one can see from the argument that other possibilities could be identified. For example, since no reconciliation had taken place between the recorded transaction and the actual stock, there was a possibility that there had been a theft from the stock room which could explain the discrepancy arising as it did. Again, a possibility, although it was in issue as to whether any the items to the value of £39.99 would have been on the shop floor, a discrepancy arising from shoplifting from the floor of the shop. Those were possibilities but the thrust of the submission appears to be that, because one can in any particular case identify particular possibilities which might fall to explain how something has occurred, that Magistrates, or, indeed, for this purpose, a jury, would be bound to conclude, even though there had been admissions of the scale in this case, that those possibilities have somehow got to be eliminated before the criminal standard of proof can be made out on evidence. In my judgment, in a situation such as this, what the Magistrates had to weigh and consider in the evidence was how compelling the extent of the admissions by the appellant were and how far they could safely rely upon those admissions establishing, so that they could be sure, that on each of the 11 occasions alleged, the loss had been caused by the criminal conduct of the appellant. There is no set evidential principle which requires a fact-finder to give particular weight to mere speculative possibilities. In many instances, remote possibilities, which may be suggested from a set of circumstances, can be safely dismissed because what falls for consideration is not what other evidence there might have been in the case, which might have made something clear, but whether the evidence which is in the case is capable of justifying the fact-finder in coming to a conclusion to the criminal standard of proof.

In my judgment, the Magistrates carefully considered the weight to be attached to the admissions in three separate interviews and the precise extent of the admissions that he had made to them on oath. They rightly identify that his admission that he accepted a full amount was stolen of £2,700 was rightly taken by them as an indication of the frequency with which the transactions must have been carried out. They had evidence -- one might say hard evidence -- that, in respect of the 11 occasions, there had been deficiencies. All that they had to weigh, in my judgment, and that they did, was whether the possibility which they had heard about, namely that it was a legitimate transaction, or whether somebody else had used his PIN number, those two in particular, raised in their mind any doubt about the comprehensive nature of the evidence which the appellant himself had given.

In my judgment, they carried out an impeccable exercise. They obviously dismissed as mere remote possibilities, upon which they had had no evidence other than speculative evidence, that that possibility could explain the deficiency. They had dismissed those from their consideration. In my judgment, the Magistrates were plainly entitled, on the evidence which they had heard, to conclude that the appellant was guilty of the 11 specific specimen charges.

It follows that the first question, of whether there was evidence on which we could find the appellant guilty of the 11 specific specimen charges, is to be answered yes. Secondly, whether we were entitled to draw interference on the evidence we heard that the appellant was guilty of the 11 specimen charges: the answer is yes.

On a final note, I would observe that it has not been disputed by counsel in this court that, in the light of admissions which had been made, it would have been legitimate for the prosecution to have simply charged this appellant with a single count of theft, namely that he had, on diverse dates between 14th November 2003 and 2nd March 2004, stolen cash or money to the total value of either £1,500 or £2,700. To that, having regard to the admissions which had been made, there could have been no possible complaint, nor, as it seemed to me, would there have been a defence but for the defence of duress, which was unsuccessfully run.

It follows therefore that this appeal must be dismissed.

MR TATTERSALL: My Lord, as a matter of costs, I consider that the appellant is legally aided, so that there is no order other than legal aid taxation.

MR POLSON: That is right.

MR JUSTICE NEWMAN: Legal aid taxation. Thank you both.