David Barton v The Queen
| Jurisdiction | England & Wales |
| Judge | The Lord Burnett of Maldon,Dame Victoria Sharp DBE,Lord Justice Fulford,Mrs Justice McGowan DBE,Mr Justice Cavanagh,Burnett,Maldon,Victoria Sharp,Fulford,McGowan,Cavanagh |
| Judgment Date | 29 April 2020 |
| Neutral Citation | [2020] EWCA Crim 575 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 201802396 C1; 201803347 C1 & 201802305 C1 |
| Date | 29 April 2020 |
[2020] EWCA Crim 575
THE RT HON The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON Dame Victoria Sharp DBE
PRESIDENT OF THE QUEEN'S BENCH DIVISION
THE RT HON Lord Justice Fulford
VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
THE HON Mrs Justice McGowan DBE
and
THE HON Mr Justice Cavanagh
Case No: 201802396 C1; 201803347 C1 & 201802305 C1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
HHJ Everett
T20167320 & T20167360
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Bogan QC and Bob Sastry (instructed by Farleys Solicitors) for the 1 st Appellant/Applicant
Geoffrey Payne and Sushil Kumar (instructed by JD Spicer Zeb Solicitors) for the 2 nd Applicant
David Perry QC, Benjamin Myers QC, Nicola Daley and Katherine Hardcastle (instructed by CPS) for the Respondent
Hearing dates: 20–21 January 2020
Approved Judgment
The Lord Chief Justice:
Introduction
For 35 years the approach to dishonesty in the criminal courts was governed by the decision of the Court of Appeal Criminal Division in R v Ghosh [1982] QB 1053. In Ivey v Genting Casinos (UK) (trading as Cockfords Club) [2017] UKSC 67; [2018] AC 391 the Supreme Court, in a carefully considered lengthy obiter dictum delivered by Lord Hughes of Ombersley, explained why the law had taken a wrong turn in Ghosh and indicated, for the future, that the approach articulated in Ivey should be followed. These appeals provide the opportunity for the uncertainty which has followed the decision in Ivey to come to an end. We are satisfied that the decision in Ivey is correct, is to be preferred, and that there is no obstacle in the doctrine of stare decisis to its being applied as the law of England and Wales.
The Facts: Overview
The appellant, David Barton, ran a luxury nursing home in Birkdale, Southport, Lancashire, the Barton Park Nursing Home (Barton Park), along with his wife, Lucinda Barton. He operated the business through a company, Choice Classic Limited, (CCL). David Barton exercised close control over Barton Park and made all key decisions in relation to the management of the home.
The applicant, Rosemary Booth, was the General Manager of Barton Park. Ms Booth seeks leave to appeal against conviction out of time. We grant leave to appeal.
The prosecution case against David Barton was that, over many years, he had dishonestly targeted, befriended, and “groomed” wealthy and vulnerable (and childless) elderly residents of the home, in order to profit from them. He manipulated them and isolated them from their family, friends and advisers. A number of these residents made him the residuary beneficiary of their wills, usually within a short time of arriving at Barton Park. They also allowed him to assume control of their finances, by making him next of kin, or granting him power of attorney, or by making him executor, and he used this control to enrich himself.
The prosecution alleged that David Barton dishonestly exploited his relationship with these residents in a number of different ways. He did so in breach of the trusted position that he occupied. He obtained large cash gifts and spurious “loans” from the residents. He charged fees to the residents which were vastly in excess of reasonable fees and were sometimes entirely fabricated. In some cases, he claimed to have negotiated or entered into “lifetime agreements” pursuant to which the resident had agreed to make a large up-front payment in return for the right to reside in the home for the whole of the rest of the resident's life. He also overcharged residents for services. Still further, David Barton sold Rolls-Royce motor cars to two residents for grossly inflated prices.
The prosecution alleged that David Barton was assisted by others in his criminal behaviour, and, in particular, by Rosemary Booth and by a solicitor, Thomas Mills. Mills would have been tried alongside him, but died before the trial.
The residents who were the victims of these practices were willing to agree to the transactions that David Barton entered into with them, and had capacity to do so, but, the prosecution said, they were highly vulnerable and isolated from advisers at the time when they did so.
There was no suggestion that any of the victims was physically mistreated or neglected at Barton Park. In fact, it was common ground that they were well-treated and well looked after. They had been living in unsatisfactory conditions before they arrived at Barton Park, and were happy to be there, and were grateful to David Barton for accommodating them.
The treatment of these residents at Barton Park came to the attention of the police in 2014 after one of them, Katie Willey, died, and a civil claim was brought by David Barton, Lucinda Barton, and CCL against her estate for a sum of approximately £10 million. Members of Mrs Willey's family asked the police to investigate Mr Barton's business.
David Barton was arrested in 2014, and the trial, before Judge Everett, took place in 2017–18. David Barton gave evidence. He said that the money that he had received consisted of gifts from grateful residents, whom he had treated very well. The residents had always acted with full capacity and with professional advice. All of the fees that had been claimed were legitimate, save where there had been an occasional misunderstanding. The civil claim against Mrs Willey's estate had been brought on professional advice and in good faith. In so far as any mistakes had been made in relation to that claim, or in relation to the accounting at the home, this was the fault of a bookkeeper, Kiria Hughes, not him.
As for Rosemary Booth, the essence of the case against her was that she, too, had abused her trusted position as General Manager of Barton Park, and confidante of vulnerable residents, to act as the “eyes and ears” of David Barton and to assist him in this fraudulent activity.
Rosemary Booth said that she was responsible for managing the domestic arrangements at Barton Park, and that she had no responsibility for the establishment's financial affairs, which were managed elsewhere. She knew little about finances and had limited ability so far as computers were concerned. She had not taken part in any fraudulent conspiracies. She did not personally benefit financially from the alleged offences, to any significant extent.
The trial, with breaks, lasted from May 2017 to May 2018. Verdicts were returned between 2 and 11 May 2018. There were 25 counts on the indictment, although some of these were alternatives. David Barton was convicted of 10 counts. These consisted of four counts of conspiracy to defraud, contrary to common law, three counts of theft, one count of fraud, one count of false accounting, and one count of transferring criminal property, contrary to section 327 Proceeds of Crime Act 2002. David Barton was acquitted of three counts, and the judge directed not guilty verdicts on a further two counts. No verdict was taken on seven alternative counts, in light of the convictions on the principal counts. The jury was unable to agree on three further counts. The prosecution did not seek a retrial, and these counts were ordered to lie on the file.
Rosemary Booth was convicted on three counts of conspiracy to defraud, and the jury was unable to reach a verdict on a further count, which was ordered to lie on the file.
On 13 July 2018, David Barton was sentenced to a total period of imprisonment of 21 years and Rosemary Booth was sentenced to a total of 6 years' imprisonment. The following is a chart of the convictions and sentences:
| 1 | Conspiracy to Defraud Patricia Anderson-Scott | David Barton: 6 years | |
| 5 | Theft from the estate of Patricia Anderson-Scott | David Barton: 2 1/2 years | Concurrent |
| 7 | Theft from Margaret Pinnington | David Barton: 5 years | Concurrent |
| 8 | Theft from Margaret Pinnington | David Barton: 2 years | Concurrent |
| 15 | Fraud relating to the estate of Rita Gibson | David Barton: 1 1/2 years | Concurrent |
| 16 | Conspiracy to Defraud Ronald Ward-Howlett | David Barton: 6 years Rosemary Booth: 2 years | Consecutive |
| 19 | Conspiracy to Defraud Katie Willey and Gordon Willey | David Barton: 8 years Rosemary Booth: 4 years | Consecutive Consecutive |
| 22 | Conspiracy to Defraud the estate of Katie willey and Gordon Willey | David Barton: 8 years Rosemary Booth: 3 years | Concurrent Concurrent |
| 24 | False Accounting re Choice Classic Ltd | David Barton: 15 months | Concurrent |
| 25 | Transferring Criminal Property | David Barton: 1 year | Consecutive |
David Barton was aged 64, and Rosemary Booth was aged 69, at the time of sentence. They were each of previous good character.
In his sentencing remarks, the judge said that “this case is one of the most serious cases of abuse of trust that I suspect has ever come before the courts in this country”. He described David Barton as a “despicably greedy man”. He said that there was “effectively a web of deceit and dishonesty.” The judge referred the two conspiracies to defraud perpetrated upon Mr and Mrs Willey (counts 19 and 22) as being perhaps “the most brazen I have ever come across”.
The case concerned a period of offending of almost twenty years. As for the sums involved, David Barton obtained approximately £4,130,000 in total from the offences for which he was convicted and, as indicated above, attempted to obtain a further sum of approximately £10 million in relation to proceedings against Katie Willey's estate.
At the time that the police investigation into David Barton commenced in June 2014, he had a portfolio of 23 properties in the Southport area, owned by him, his wife and his business. In addition, he had a fleet of luxury vehicles,...
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