R v Horsman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER |
| Judgment Date | 13 June 1997 |
| Judgment citation (vLex) | [1997] EWCA Crim J0613-2 |
| Docket Number | No.: 9606372 Y3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 13 June 1997 |
[1997] EWCA Crim J0613-2
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Lord Justice Waller
Mr Justice Tucker
and
Mr Justice Bennett
No.: 9606372 Y3
MISS H NIMMO-SMITH (MISS S MUNRO, 3.6.97) appeared on behalf of the Appellant
MISS C KAVANAUGH (MR G MERCER, 3.6.97) appeared on behalf of the Crown
Friday 13th June 1997
Introduction
This appeal raises a point of some significance. On 18 April 1994 at the Crown Court at Barnstaple before His Honour Judge Neville, the appellant pleaded "guilty" to two counts on an indictment alleging the obtaining of property by deception contrary to Section 15(1) Theft Act 1968. His plea represented an admission, on any view, of serious acts of dishonesty. He was sentenced to 15 months imprisonment. A further two counts were left to remain on the file. Following the decision of the House of Lords in R v Preddy [1996] 2 Cr.App.R. 524, the appellant applied for an extension of time for appealing his conviction, the decision in Preddy (as is now common ground) demonstrating that despite the admitted dishonesty no offence under Section 15(1) could have been committed. An extension of time for appealing was granted by the Deputy Registrar pursuant to the powers now contained in Section 31A of the Criminal Appeal Act 1968 (as inserted by Section 6 of the Criminal Appeal Act 1995). Leave to appeal was granted by the single judge, that leave clearly being granted on the expectation that the Court of Appeal would have power to substitute convictions for some other offence under Section 3 of the Criminal Appeal Act 1968. The question which is raised squarely before us is whether the court does in fact have that power. As will appear, we have most reluctantly come to the view that the court does not have that power. At the outset we accordingly stress, for the reasons which will become apparent, that until some amendment to the powers of the Court of Appeal is introduced, applications for extensions of time for appealing and indeed applications for leave to appeal where there has been a plea of "guilty" (if not simply refused) should be referred to the full court so that the Court of Appeal's powers to see that justice is done in any particular case are not hampered, as we shall show they have been in the instant case.
The facts
Count 1
Count 1 of the indictment charged an offence under Section 15(1) of the Theft Act 1968 and gave particulars of the offence in the following terms:-
"Richard David Horsman between 18 April and 7 June 1990 dishonestly obtained from Abbey National plc a cheque in the sum of £85,500 with the intention of permanently depriving Abbey National plc thereof by deception namely ….". There was thereafter set out details of the alleged dishonesty e.g. that the appellant had failed to disclose to Abbey National that Horsman (the purchaser of 6 Highfield Terrace) and Priscott (the vendor of the same) were one and the same person; that the appellant falsely described himself as a single man; that he falsely asserted that he had no existing mortgage; that he falsely asserted that he was employed by Channel Finance Co Ltd as Chief Executive at an annual salary of £35,000; that he falsely represented that a reference provided was a genuine and honest reference; and that he falsely represented that he had no convictions, other than for driving, when in truth he had been convicted of two offences of forgery in 1988.
The result of the appellant's dishonesty was that a false sale of the property was completed in June 1990. The sale price of the house was £90,000. The mortgage advanced by Abbey National was £86,310. The cheque for £85,000 was the amount of the mortgage minus a certain premium required by the lender and that cheque was sent to the licensed conveyancer. An existing mortgage of £79,606 was redeemed, and a cheque for £5,617 was sent to the appellant as Priscott and his wife by the licensed conveyancer.
Count 4
This count also alleged an offence under Section 15(1) and charged the appellant with dishonestly obtaining £13,447.66 from the Department of Social Security. The Appellant applied to the Department of Social Security for Income Support benefit to cover the interest payments under a loan agreement that he pretended that he had entered into with a fictional entity called the West of England Mortgage Company. Initially his application was turned down but he appealed, and managed to persuade the Presenting Officer to agree that his appeal should be allowed by a number of totally false representations. His dishonest conduct involved pretending that the above entity had made a loan of £40,000 to him for the purpose of carrying out improvements to 6 Highfield Terrace; that the entity had paid the sum directly to some fictional building contractors; and that certain documents purporting to support the above were genuine documents. In the result the Appellant received £13,447.66 by a series of cheques for the period 1st November 1990 (backdated) to 18th August 1992.
Effect of Preddy
Both counts of the indictment to which the appellant pleaded "guilty" were (as already indicated) charges under the Theft Act 1968 and charged him with having obtained property by deception under section 15(1) of that Act. In the light of the House of Lords decision in Preddy (supra) it is common ground that it was not open to the Crown to obtain convictions under that section on the facts as alleged and admitted. The payments received by the appellant were by means of cheques drawn on, in the one case, Abbey National's account at a Bank, and in the other case the account of the Department of Social Security, accordingly, on a true analysis of the transaction, since all that happened was that the payer's account was reduced by the amounts of the cheques and a new chose in action was created in favour of the recipient, no property of either of the payers was obtained by the appellant.
As we have said, the appellant applied for an extension of time for appealing, and that having been granted, also applied for leave to appeal which was also granted. It must be very doubtful whether any extension of time would have been granted or whether the single judge would, in the circumstances of this case, have given leave to appeal if the difficulties, to which we shall be returning below, had been appreciated. This appellant on any view had been guilty of serious dishonesty. If he had taken the point prior to pleading "guilty" that the facts as alleged under the separate counts could not amount to an offence of obtaining property by deception contrary to Section 15(1), there would have been an application for leave to amend. It has very properly been conceded by Miss Munro, who appeared for the appellant before us, that there would have been no answer to an application by the Crown to amend Count 1 to allege an offence of procuring the execution of a valuable security, namely the cheque for £85,000, contrary to Section 20(2) of the Theft Act 1968, and to amend Count 4 to provide for a specimen count alleging the procuring or execution of any one of the cheques contrary again to Section 20(2). Accordingly, for the dishonest conduct admitted, charges could have been correctly framed for which leave to amend the indictment would have been granted. The appellant would then have pleaded "guilty" and been sentenced to a term of imprisonment of no less a period than he was in fact sentenced.
Accordingly it can scarcely be said that any serious injustice has been done to the appellant in serving the term of imprisonment he has served. Undoubtedly what the single judge had in mind was that if the appeal had to be allowed because of Preddy, the Court of Appeal would be free to substitute the appropriate verdict of guilty to some other offence reflecting the appellant's admitted dishonesty. Indeed it is...
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