R v Gleeson (John Vincent)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HOOPER,LORD JUSTICE POTTER,LORD JUSTICE AULD |
| Judgment Date | 16 October 2003 |
| Neutral Citation | [2003] EWCA Crim 2160,[2003] EWCA Crim 3357 |
| Docket Number | No: 200300502/Y2,No. 2003/00502/D3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 October 2003 |
[2003] EWCA Crim 2160
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Lord Justice Potter
Mr Justice Curtis
Mr Justice Hooper
No: 200300502/Y2
MR S SPENCE appeared on behalf of the APPLICANT
This is a renewed application for leave to appeal against conviction. Because we are going to grant leave, it will not be necessary to go into the matter in any detail.
It was the prosecution's case that the appellant and a co-defendant were involved in what is commonly known as an advanced fee fraud. The appellant's alleged involvement started on about 15th July 2002. Before that time a Swedish national, Mr Stefan Udovic, became concerned about an approach made to him, which he thought might well have something to do with a fraud. He informed the police, and ultimately an undercover officer assumed Mr Udovic's identity and held a meeting with the appellant and his co-defendant.
In the defence statement the appellant said that he had no idea why he was at the meeting and certainly had no idea that he was involved in any form of criminal conduct.
The prosecution charged a conspiracy to defraud. Counsel for the appellant knew that such a charge could not succeed, having regard to the decision of the House of Lords in Nock [1978] AC 979. Counsel decided not to reveal his 'hand' and waited until the close of the prosecution case. By then, so counsel tells us, there was some evidence before the jury to which there would have been objection. No objection was made, so we are told, because counsel knew that a submission of no case to answer would succeed.
Furthermore, questions which could have been put to suggest that this was not an advanced fee fraud but what counsel described as 'a honest dishonest money laundering', were not for the same reason.
At the close of the prosecution's case, following the submission of no case, the trial judge allowed the indictment to be amended by the addition of a further charge of a conspiracy to obtain by deception, a charge not affected by Nock.
Counsel then submitted that, by allowing an amendment, the defendants had been prejudiced. The judge gave the defence an opportunity to have witnesses recalled and to put any matters to them which they wished to do. The judge made it clear in his ruling that, if that was done, he would tell the jury that that came about solely because of the "fault" of the prosecution. No witnesses were in fact recalled. The appellant gave evidence along the lines of his defence statement to which we have already referred, and the jury convicted.
Whilst we have considerable doubts whether or not this appeal will succeed, we think it important that the Full Court have an opportunity to consider the submissions made by Mr Spence, relating to the duties and obligations of counsel, when they know that they have a cast-iron answer to the charge but do not take the point until the close of the prosecution case. In those circumstances, so that the matter can be considered more carefully, we grant leave to appeal.
May I make application for legal aid?
Yes you may. For today and for the preparation of the appeal, one counsel only. Is he still in custody?
No, he has been released from the sentence, he is present today.
[2003] EWCA Crim 3357
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Lord Justice Auld
Mr Justice Grigson And
Mr Justice Roderick Evans
No. 2003/00502/D3
MR S SPENCE appeared on behalf of THE APPELLANT
MISS E L BROADBENT appeared on behalf of THE CROWN
Thursday 16 October 2003
On 19 December 2002, before His Honour Judge Dodgson and a jury in the Crown Court at Southwark, the appellant, John Vincent Gleeson, was convicted on count 2, of what was by then a two count indictment, of conspiracy with a co-accused and with others unknown to obtain property by deception contrary to section 1(1) of the Criminal Law Act 1977. Count 1 of the indictment (to which count 2 became an alternative) had charged the appellant with the common law offence of conspiracy to defraud. The jury entered a verdict of not guilty on that count on the judge's direction. The appellant appeals against conviction by leave of the full court.
The prosecution case was that the appellant and a co-accused, Aimienwauu, who was similarity convicted, were parties to an advance fee fraud to obtain £35,000 from a man called Stefan Udovic by falsely representing that they would pay into a bank account to be opened by him a sum of $75 million.
The prosecution relied on a fax sent to Udovic by an allegedly fictitious company, on recorded conversations between one or other of the conspirators and an undercover police officer posing as Udovic, and on inferences capable of being drawn from the appellant's silence when later interviewed by the police.
The defence case was that the jury could not be sure that the conspiracy was to commit the crime alleged. It might equally have been a conspiracy to launder money.
The appellant, who gave evidence and called witnesses in his support, explained his silence in interview by saying that he had been uncertain as to what was going on and had, as a result, decided to say nothing. The co-accused did not give evidence. Thus the issue for the jury was whether the prosecution had proved an agreement to obtain £35,000 from Udovic by the deception that in due course $75 million would be paid into an account to be opened by him for the purpose.
The prosecution evidence in summary, and so far as material, was as follows. In early July 2002, Udovic, a Swedish national, was the recipient of a letter in Sweden from a man who stated that he was Peter Anthony, a Ghanaian lawyer, seeking assistance to effect a transfer of $75 million from Africa to Europe. He asked Udovic to open a bank account in London in his own name and to provide £35,000 to cover fees of £10,000 and an opening credit balance of £25,000. Anthony was very pressing in his request to Udovic for this assistance. He telephoned him a number of times over some days about it. Udovic also received, as we have indicted, a fax from an allegedly fictitious entity under the name of Optimum Financial Services. We say allegedly fictitious because the police were later unable to trace it in the Companies Registry.
Udovic, who was a man of some sophistication in business affairs internationally and in Africa particularly, was suspicious. He informed the British police.
Arrangements were made through an intermediary, a man named Otis Grant, for Udovic to meet Anthony at the Royal Lancaster Hotel in London on 15 July 2002. The undercover policeman who was to pose as Udovic duly came to London on that day, where he was met by a man who drove him to the hotel. There they found the appellant and his co-accused. The co-accused introduced the appellant by the name of Walker. There was a brief discussion in which the appellant referred, among other things, to contractual obligations. The undercover officer then arrested the appellant. On searching him he found £400 odd in cash and a travel card issued at Sydenham station, but no form of identification. The appellant refused to say who he was. In interview, as we have said, he declined to answer any questions. At his co-accused's address there was found a travel card with the name Anthony on it. There was no evidence as to what, if any involvement, either the appellant or the co-accused had had in the events leading up to the meeting on 15 July 2002.
The indictment on which the appellant was arraigned, to which he pleaded not guilty and upon which the prosecution evidence was adduced, contained only one count, namely, common law conspiracy to defraud.
At the close of the prosecution case, and without any advance warning to prosecuting counsel, Mr Stephen Spence, counsel for the appellant, submitted that there was no case to answer on the indictment as drawn. He and counsel for the co-accused took that course in part in reliance on the ruling of the House of Lords in DPP v Nock [1978] AC 729, that there could be no common law conspiracy to defraud where, unknown to the alleged conspirators, the object of the conspiracy was impossible to achieve. The focus of the submissions of both defence counsel was that the prosecution could not identify any date before 15 July 2002 upon which they joined the conspiracy and by which time it was plainly impossible of achievement —plainly impossible of achievement because by then the potential victim had handed over whatever role he might have had in the matter to the police; there was going to be no victim.
In the light of that authority the judge accepted the submission that the defendants could not be convicted of common law conspiracy to defraud. Miss Emma Broadbent, counsel for the prosecution, then applied to amend the indictment by adding what became count 2, a charge of statutory conspiracy to obtain money by deception. Both defence counsel resisted that application. They said that they had met the case that their lay clients had to answer and that the sought amendment deprived them of a good defence to the prosecution. They said that, in anticipation of making and being successful in their submission in reliance on the case of Nock, they had deliberately not cross-examined prosecution witnesses and had agreed to much of...
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