Court of Appeal
| DOI | 10.1177/002201839806200202 |
| Published date | 01 April 1998 |
| Date | 01 April 1998 |
| Subject Matter | Court of Appeal |
COURT OF APPEAL
HANDLER'S KNOWLEDGE OR BELIEF
RVForsyth
The meteoric rise and as rapid fall of Polly Peck International in the 1980s
is vividly outlined in the judgment
of
Beldam LJ in RvForsyth
[1997]
2 Cr App R 299, although some of the transactions remain 'shrouded in
complexity'. The spectacular fall of PPI resulted in charges
of
fraud of
enormous proportions against the principal actors, represented by what
were specimen counts against the controller of the group, one Asil Nadir
(who was alleged to have misappropriated some
£15Om)
and the group
accountant, one Turner. Nadir fled to Northern Cyprus, where he
remained as a fugitive from justice, while the case against Turner was
abandoned, as it was thought it would be unfair to pursue it in the
absence
of
Nadir. The same view was not taken of the appellant in Rv
Forsyth, although she was a minnow in this pool, accused
of
one transaction,
namely the transfer
of
£400,000 from Switzerland back to England. That
gave rise to charges of two offences of handling stolen goods by disposing
of or assisting in the disposal of that sum by so transferring it. Section 22
of the Theft Act 1968 required the prosecution to prove that the defendant
dishonestly received or dishonestly undertook or assisted in the retention,
removal, disposal or realisation of the 'stolen goods' and that she had
done so 'knowing or believing them to be stolen goods'. On conviction,
the appellant raised a number
of
points
of
law relating to the judge's
rulings during the trial, to his directions to the jury and to the answer he
gave to a question put to him by the jury. Most of these failed as grounds
of
appeal; but the Court of Appeal was
of
opinion that the judge was
guilty of two misdirections which rendered the convictions unsafe. The
prosecution alleged that the money had been sent to a Swiss Bank from
England and that the appellant (who was in Switzerland in connection
with the affairs
of
one of the companies in the group) sent it back to yet
another company in London, where it was used to buy stock for Nadir's
farm. The appellant's primary defence was that she did not know that the
money had, in the first place, been sent from England to Switzerland and
did not know that it was not Nadir's money or that it had been stolen.
The case for the prosecution (which conceded that the appellant had
herself received no benefit from the transfer of the money) was that she
must have known or believed that this money was PPI money. Her reply
was twofold: first, she had done no more than work with an employee of
PPI in Switzerland and follow his instructions, as he went round the
various banks with her; and secondly, that she knew that Nadir was an
extremely wealthy man (his income was said to be £12.7m per annum), so
that, when she made the 'arrangement' to transfer the money back to
England, she had no reason to believe that he would ever need to be
dishonest.
127
Journal
of
Criminal Law
Of the two principal fraudsters against whom the Serious Fraud Office
wished to proceed, the case against Turner was abandoned as it would
have been unfair to proceed in the absence of Nadir (who had become an
unextraditable fugitive from justice). The Court of Appeal agreed that 'on
the face of it, it seems a strange decision' to abandon the prosecution of
one at the very centre of the major, enormous fraud, yet to proceed
against one who at short notice became involved indirectly in a
comparatively minor transaction which was on the fringe of the fraud.
The Court of Appeal held, however, that their opinion on this question
could not affect the appeal, since the choice of whom to prosecute was
entirely that of the Serious Fraud Office, and not that of the court. The
court nevertheless made its opinion clear, stating that the choice made by
the Serious Fraud Office might be thought not to accord with ordinary
notions of evenhandedness or enhance the public perception of the fairness
of the prosecuting authority. As the basis of an argument to the effect
that the prosecution of the appellant was an abuse
of
process, the court
rejected the appellant's submission. The court equally rejected the
submission that the judge had erred in ruling upon a number of
applications made to him as the trial proceeded. The defence had applied
for the admission of evidence from Nadir (and his mother) by TV link
from Cyprus. The judge had rejected this application on two grounds.
First, the application was made under s 32 of the Criminal Justice Act
1988;
but, by virtue
of
subs (3) of that section, a witness guilty
of
perjury
may be prosecuted as if he had given his testimony in court. Here,
however, there being no extradition treaty with Northern Cyprus, it would
be impossible to give effect to subs (3). The judge held that in those
circumstances he had no jurisdiction to admit evidence under s 32.
Secondly, in the case of Nadir, the judge held that, since he was a fugitive
from justice, his evidence could not be received. On appeal, however, the
prosecution conceded that, where a witness whose evidence might assist
the defendant is abroad, the 1988 Act permits the admission of the
evidence by TV link, whether or not the witness is extraditable and
whether or not he is a fugitive offender. As the appeal was allowed on
other grounds, the court found it unnecessary to decide this issue and
unnecessary to consider whether it should review the judge's exercise of
his discretion, on other, more general grounds; but it added that 'in
general', where a witness's evidence might assist the defence, the court
'should lean in favour of permitting the evidence to be given'. But is there
not something incongruous in permitting a witness, who ought to be in
the dock as a co-accused, to give evidence in favour
of
the accused's
acquittal, in circumstances in which he cannot be called to account for
any perjury he may commit?
The appellant next contended that the prosecution had failed to show
that a chose in action had been stolen or that the money in question had
been 'in the hands
of
the thief. The court concluded, however, that
notwithstanding the Preddy principle (see
[1996]
2 Cr App R 524), there
was evidence that a chose in action had been stolen and that the money
which the appellant had transferred represented that stolen chose in action.
As the term 'in the hands
of
in the Theft Act
1968
means no more than
128
To continue reading
Request your trial