Malik Iqbal Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lady Paton,Lord Justice Clerk |
| Neutral Citation | [2015] HCJAC 71 |
| Docket Number | HCA/2014 |
| Court | High Court of Justiciary |
| Date | 30 July 2015 |
| Published date | 11 August 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 71
HCA/2014/3827/XC
Lord Justice Clerk
Lady Paton
Lord Menzies
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
MALIK IQBAL
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: N Allan, Solicitor Advocate; John Pryde & Co SSC
Respondent: Farquharson AD; the Crown Agent
30 July 2015
Introduction
[1] On 5 August 2014, after a trial lasting 5 days at Edinburgh Sheriff Court, the appellant was found guilty of a charge of fraud and an associated contravention of section 328(1) of the Proceeds of Crime Act 2002. The fraud charge originally libelled that between 1 March and 28 June 2012, at his shop, namely Eight Days a week, and certain Royal Bank of Scotland addresses, he opened up an online banking facility “under [his] sole control” and allowed it to be used by others, who paid in a total of about £103,330 by means of some 23 cheques. The cheques were accompanied by pay-in slips bearing the appellant’s numerical bank account details, even although the payees’ names on the various cheques were, with one exception, those of other people, who may or may not have existed. All of the cheques were in due course dishonoured, but not before the amounts had, under a banking scheme designed to improve business cash flow, been credited to the appellant and rapidly transferred to the accounts of several other persons and dissipated. On 2 September 2014 the appellant was sentenced to 15 months’ imprisonment.
The evidence and objections
[2] The Crown case consisted, amongst other things, of testimony from Craig Reid, a business relationship manager at the Bernard Street, Leith, branch of RBS. He spoke to a business account being opened by the appellant in 2009 and a further tax saver account in 2012. The appellant would have been provided with a debit card in relation to the business account. Prior to speaking about a document, which related to the appellant’s registration for online facilities, objection was taken to Mr Reid’s evidence on the basis that the date on the document was 1 March 2012, in contrast to that on the indictment. There was some suggestion from the appellant that he could have had an alibi for the particular date, but, as the sheriff reports, this seemed to be something less than a positive assertion.
[3] The procurator fiscal depute moved the sheriff to amend the libel by altering the date from 3 March to 1 March. The sheriff allowed the amendment and consequently repelled the objection. He reasoned that the amendment cured a variance between the evidence and the charge. Although it was central to the fraud that the appellant had online facilities, the sheriff did not consider it to be essential that these facilities should have been opened within the period libelled. Mr Reid went on to refer in general to the use of a card reader in the context of online facilities. There was some cross-examination by the appellant on that topic.
[4] A further witness was Patricia Paterson, who was employed by RBS as a fraud investigator. She spoke to what was required in order to pay funds to third parties using online facilities. She described how the account holder would log onto the RBS website by providing his customer identification details, entering three numbers from his four digit PIN and three letters from a password, which could consist of up to eight letters. By doing that, the account holder could transfer funds between his own accounts and pay sums to those to whom he had previously made payments. However, in relation to payments to third parties, hitherto unknown to the account, the account holder would have to use a card reader supplied by RBS. The account holder would place his debit card into the reader and enter his PIN. The website would display a number which would then have to be entered into the card reader. The reader would in turn display another number, which required to be typed into the website. It was only once that procedure had been done correctly, that the funds would be transferred.
[5] Ms Paterson testified that the relevant transfers in this case had been made using the card reader procedure. As she embarked upon that evidence, however, the appellant objected to its admissibility on the basis of non-disclosure and the absence of a libel relative to the card reader procedure. The sheriff repelled this objection, reasoning that the libel was wide enough to encompass the use of the card reader. He recorded that, in any event, Mr Reid had previously spoken about the card reader and the appellant had not objected to his evidence. It was not suggested at the time that the defence would be unable to deal with the unexpected evidence. In due course, the defence expert did deal with the card reader in his evidence, although it is now contended that he was unable to do so fully. It was also not suggested that the Crown had material in their possession about the card reader which they had failed to disclose.
[6] The sheriff directed the jury, in respect of the evidence from the expert, as follows:
“There’s also … the defence evidence of Mr McLaren, the expert…. He was asked about the card-reader. It’s obviously for you to say how much you thought he knew about the detail of the card-readers. It’s obviously for you … generally to form a view and decide what you made of him as a witness. He indicated that the accused’s debit card, if he had a debit card, could have been cloned. …So it’s obviously for you, ladies and gentlemen, to come to a view about Mr McLaren’s evidence. “
The sheriff explains that, when Mr McLaren had spoken about card readers, it appeared to him that Mr McLaren thought that the account holder would attach the card reader to his computer, which was not the impression the sheriff had gained from the testimony of Ms Paterson about how the system worked. It was upon that basis that he made the remark about the expert’s knowledge.
[7] The sheriff did not direct the jury that they could make deletions from the lengthy terms of the indictment. In his view, it would not have been appropriate to do so. Both the Crown and the appellant had approached the case on the basis that the question for the jury was whether the charge, as framed, stood or fell. No suggestions about deletions had been made in the course of the speeches. There was no dispute that there had been a fraudulent scheme; the question at trial was whether or not the appellant had participated in it.
Submissions
Appellant
[8] The appellant appeals on four grounds. He explained that the first and third grounds simply provided the context for the main second ground. The fourth ground was a separate issue.
[9] The first ground was that the sheriff had erred in permitting the Crown to amend the period of the libel to meet the objection by the appellant to the evidence of obtaining online banking facilities prior to the period libelled. The second ground was that the sheriff had erred in admitting evidence of the card reader, in the absence of any reference to such a device in the libel and any disclosure by the Crown of such evidence. Without the evidence of the card reader, there would have been an insufficiency in relation to the charges. The appellant’s defence had been that he could as readily have been a victim of the crime as a perpetrator of it. It had been for the Crown to rebut that defence (Owens v HMA 1946 JC 119). In the absence of the card reader evidence, there was nothing in the Crown case capable of providing a basis for such a rebuttal.
[10] The Crown had breached the right of the appellant to disclosure in relation to the card reader. There was a real possibility that the jury would have arrived at a different verdict had the material been disclosed and the appellant’s expert had...
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