R v Graham
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 25 October 1996 |
| Judgment citation (vLex) | [1996] EWCA Crim J1025-18 |
| Docket Number | No. 95/2171/Z2, 95/0212/Z2, 96/5253/Y3 96/4926/X2 & 96/4939/X2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 25 October 1996 |
[1996] EWCA Crim J1025-18
The Lord Chief Justice of England
(Lord Bingham of Cornhill)
Mr Justice Blofeld
and
Mr Justice Cresswell
No. 95/2171/Z2, 95/0212/Z2, 96/5253/Y3
96/4782/X2 96/4850/X2
96/4926/X2 & 96/4939/X2
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
APPEARANCES
THE APPELLANT HEMAMALI GRAHAM
For the appellant: MR IVAN KROLICK
For the Crown: MR andREW RADCLIFFE
THE APPELLANT RUPE LAL KANSAL
For the appellant: MR IVAN KROLICK
For the Crown: MR WILLIAM COKER QC
THE APPELLANT SAJID PASHA ALI
For the appellant: MR ANTHONY ARLIDGE QC
and MISS ROSAMUND HORWOOD-SMART QC
For the Crown: MISS JANE SULLIVAN and MR E BROWN
THE APPELLANTS TERENCE COLIN MARSH
GARRY ALLAN GRAHAM
PAUL GRAHAM PRICE
DAVID BRAMICH
For the appellants: MR RICHARD LISSACK QC and MR JAMES COUNSELL
For the Crown: MR BRUCE HOULDER QC and MR DAVID PERRY
MR PHILIP MOTT QC and MR TOM LEEPER
Friday 25 October 1996
These applications and appeals have been listed and heard together because they raise a number of common questions prompted by the recent decision of the House of Lords in R v Preddy [1996] 3 WLR 255.
Mrs Graham was convicted by a jury of attempting to obtain property, namely monies, by way of a mortgage loan from a building society by deception. Her application for leave to appeal against conviction has been adjourned to this court.
Mr Kansal was convicted by a jury on five counts of obtaining sums of money by deception contrary to section 15(1) of the Theft Act 1968. He appeals against conviction with the leave of this court.
Mr Ali was convicted by a jury of attempting to steal a credit of £1,000,000 belonging to National Westminster Bank. He appeals against conviction with leave of the single judge and a certificate of the trial judge.
Messrs Marsh, Graham, Price and Bramich were convicted by a jury on various counts of obtaining or attempting to obtain property by deception. In each count the property was specified to be a cheque in a stated sum, some of the cheques being drawn by finance companies and some by insurance companies. The trial judge granted each of these applicants a certificate that his case was fit for appeal under section 1(2) of the Criminal Appeal Act 1968 as amended by section 1(1) of the Criminal Appeal Act 1995, but none of the applicants had given notice of appeal against conviction within 28 days from the date of conviction as required by section 18(1) and (2) of the 1968 Act. The applicants accordingly ask the court to extend their time for giving notice under the section.
Section 15(1) of the Theft Act 1968 provides:
"A person who by deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years".
In recent years those who dishonestly make false representions to lending institutions and thereby induce those institutions to make loans which they would not otherwise have made have been prosecuted under this section. Many mortgage lenders have been victims of such misrepresentations, and in such cases the offence has become known as mortgage fraud.
Preddy and others were alleged to have committed mortgage fraud. They were prosecuted under section 15 and convicted. Their convictions were upheld by this court. But on further appeal their convictions were quashed by the House of Lords. The essential ground for allowing the appeals, based on a close and accurate analysis of the procedures involved when a mortgage lender makes a loan, was that the borrower (or his solicitor) does not obtain any property which has ever belonged to the lender:
"…. when the bank account of the defendant (or his solicitor) is credited, he does not obtain the lending institution's chose in action. On the contrary that chose in action is extinguished or reduced pro tanto, and a chose in action is brought into existence representing a debt in an equivalent sum owed by a different bank to the defendant or his solicitor. In these circumstances, it is difficult to see how the defendant thereby obtained property belonging to another, i.e. to the lending institution….
…. In truth the property which the defendant has obtained is the new chose in action constituted by the debt now owed to him by his bank, and represented by the credit entry in his own bank account. This did not come into existence until the debt so created was owed to him by his bank, and so never belonged to anyone else" (at 264 D, F).
The House reached this conclusion on the assumption that the bank accounts of both lender and borrower were in credit, but if either was not in credit a charge under section 15 was even more inappropriate. The same difficulty arose if payment were made by cheque (rather than by telegraphic transfer or under the CHAPS system) and the defendant charged with obtaining by deception the sum for which the cheque was drawn. A charge based on obtaining the cheque form by deception would fare no better:
"…. there can have been no intention on the part of the payee permanently to deprive the drawer of the cheque form, which would on presentation of the cheque for payment be returned to the drawer via his bank" (at 266H).
I. Common Issues:
1. The role of the Court of Appeal (Criminal Division)
Section 2(1) of the Criminal Appeal Act 1968, as amended, provided:
"Except as provided by this Act, the Court of Appeal shall allow an appeal against conviction if they think—
(a) that the conviction should be set aside on the ground that under the circumstances of the case it is unsafe or unsatisfactory; or
(b) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law; or
(c) that there was a material irregularity in the course of the trial,
and in any other case shall dismiss the appeal: Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred".
Following the Royal Commission on Criminal Justice, the Criminal Appeal Act 1995 repealed this subsection and replaced it with a shorter and simpler provision:
"Subject to the provisions of this Act, the Court of Appeal—
(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and
(b) shall dismiss such an appeal in any other case".
This new provision, the subject of a penetrating analysis by Sir John Smith QC in [1995] Crim LR 920, is plainly intended to concentrate attention on one question: whether, in the light of any arguments raised or evidence adduced on appeal, the Court of Appeal considers a conviction unsafe. If the court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the court will dismiss the appeal. But if, for whatever reason, the court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe. The court is then subject to a binding duty to allow the appeal. It can make no difference that the appellant might, if duly indicted, have been rightly convicted of some other offence. Where the condition in section 2(1)(a) as it now stands is satisfied, the court has no discretion to exercise.
For the Crown it was submitted that the amendment of section 2 had effected no change in the law: the crucial question is whether a miscarriage of justice has occurred; and where the criminality of the defendant is clearly established the practice of the court has been and should be to hold that there has been no miscarriage merely because the offence had been misdescribed in the indictment.
In support of this submission reliance was placed on four cases. In R v McHugh (1977) 64 Cr App R 92 the defendant was convicted of theft. On appeal it was suggested that he might have been guilty of obtaining by deception. The court considered it (at 95) "a purely technical question whether at the end of the day the proper offence is one of theft or obtaining by deception" and concluded that even if the point was a good one there could have been no miscarriage of justice. It accordingly applied the proviso. In R v Molyneux (1981) 72 Cr App R 111, a statutory conspiracy was misdescribed as a common law conspiracy; the particulars of the offence were properly set out but a reference to the relevant statute was omitted. The court held (at 116) that the defect was favourable to the defendant and made not the slightest possible difference. There had been no miscarriage of justice and the proviso was applied. In R v Ayres [1984] AC 447, the defendant was charged upon indictment with a common law conspiracy. It was held that the only proper charge was of conspiracy to obtain by deception. The defendant was convicted upon an indictment which did not charge him accurately with the only offence for which he could properly be indicted. The House held (at 462B) that "The misdescription of the offence in the statement of offence as a common law conspiracy to defraud had in the circumstances not the slightest practical significance" and that there had been no actual miscarriage of justice. The defendant in R v Pickford [1995] 1 Cr App R 420 pleaded...
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