R v Mallett

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLORD JUSTICE ROSKILL
Judgment Date17 April 1978
Judgment citation (vLex)[1978] EWCA Crim J0417-5
Docket NumberNo. 2718/B/77
Date17 April 1978

[1978] EWCA Crim J0417-5

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Before:-

Lord Justice Roskill

Lord Justice Eveleigh

and

Mr. Justice Michael Davies

No. 2718/B/77

Regina
and
Edward Arnold Mallett

MR. D. FARRINGTON appeared for the Applicant.

MR. M. HYAM appeared for the Crown.

LORD JUSTICE ROSKILL
1

We have before us an application for leave to appeal against conviction by Edward Arnold Mallett who, together with two other men – one named Burrows and the other named Graham – was convicted, at Inner London Crown Court after a very long and protracted trial, of certain hire purchase frauds. The trial took place before Her Honour Judge Suzanne Norwood and a Jury from the 18th April to the 16th May, last year. We have the benefit of nearly 250 pages of the learned Judge's summing-up and a further 250 pages or thereabouts of transcripts of evidence. This Court would, at the outset of this judgment, pay tribute to the quality and clarity of the learned Judge's summing-up. The case was one of great complication and full of difficulties. There were no less than six prisoners before the Court and 20 counts in the indictment. Save in one minor respect, with which I shall deal later in this judgment, the summing-up is beyond criticism and rightly Mr. Farrington has made no attempt to criticise it. It is, if we may be allowed to say so, a model of its Kind in a highly complicated case full of difficulties.

2

Mallett was charged on a number of counts. The main count which concerned him was a count of conspiracy with which he stood charged with Graham and Burrows. That count, which was Count 1 in the indictment, charged him with conspiring over a longish period of time, between the end of 1972 and the Summer of 1973 with a man named John Smith and others to obtain money from a well known hire purchase finance company, Lloyds and Scottish Finance Ltd., dishonestly by false representations contained in hire purchase agreements submitted to that company (and I quote the words of the indictment) "and by other false and fraudulent devices."

3

Ultimately, upon that count, the jury disagreed in the case of Mallett but they convicted Graham. Burrows, in the course of the trial, had changed his plea on that count from one of not guilty to one of guilty. Following that disagreement of the jury the Crown did not invite a retrial for the reason that Mallett was convicted on three other specific counts to which I shall have to refer in more detail hereafter.

4

The second count in the indictment concerned Mallett alone and charged him with furnishing false information to Lloyds and Scottish Finance Company, contrary to section 17(1)(b) of the Theft Act, 1968. On that count this jury also disagreed. Then as to other counts which were 9, 10, 11, 14, 15, 16, 19 and 20, 9 the learned Judge withdrew, 10 the Jury disagreed upon (and the matter was not proceeded with further), on 11 there was a conviction by a majority of ten to one, on 14, like 9, the learned Judge directed the jury to return a verdict of not guilty, on 15 there was a verdict of guilty – that was furnishing false information – on 16 –which was a charge of obtaining property by deception – there was again a verdict of guilty and on 19 and 20 – two further charges of obtaining property by deception – there were verdicts of not guilty. Thus in the end, as I said a few moments ago, Mallett was convicted on three charges only out of a large number against him. As a result various submissions have been made in this Court with a view to upsetting those three convictions.

5

Although, as I have said, the conspiracy charge related to Lloyds and Scottish (as I shall call them) there were other companies involved in these alleged frauds, one of which was Lombard and the other, another well known hire purchase company, was Charterhall: But those specific charges concerning those two companies could not be connected with the conspiracy count because the intended victims were different from the subject of the conspiracy count in Count 1. I need not at this stage deal separately with various charges against Graham and Burrows or specify those upon which there were verdicts of guilty and those on which there were acquittals.

6

Broadly speaking, the pattern of the alleged frauds is one which is all too well known to anybody who has been involved from time to time over the years in any capacity with long hire purchase fraud trials. It was suggested that Mallett, who traded as Elstree Road Car Sales at Bushey or under another name, that of Westcroft Service Station, at Cricklewood, Burrows who traded as R. & R. Motor Sales, Cricklewood or Car Centre, Cricklewood, and Graham who it seems operated with Burrows's permission from Burrows's premises, quite deliberately, were either together or separately, fleecing these hire purchase companies and, on the Crown's case, they obtained very substantial sums of money from them.

7

They did it in this way. They pretended to hire purchase companies when these various hire purchase agreements in the usual form were filled in that various deposits, substantial sums, had been paid by the hirers in question when such deposits had not been paid. Of course that was, and would be, a material factor in persuading the hire purchase finance company concerned to advance money to the dealer. It would enable a bad risk customer to obtain a car on hire purchase when, had the truth been told – either as to the identity or the qualification of the customer or as to the quantum of any deposit which he had paid – that result would not have followed. In short, the car price shown on the various hire purchase agreements was inflated and deliberately inflated by the amount shown as having been deposited and the dealer would then get the full amount from the hire purchase company. Ultimately and, perhaps, not surprisingly having regard to the nature of the fraud, almost all the hirers defaulted and most of the cars were the subject of repossession by the hire purchase companies concerned.

8

The Crown case was that there was here a systematic fraud on Lloyds and Scottish and indeed a wider conspiracy beyond the individual transactions which were the subject of the substantive charges.

9

The learned Judge, early on in the summing-up – and nobody could say that she was wrong in so doing (I am referring in particular to page 53 of the transcript) – told the jury this when dealing with the interrelationship of the substantive charges on the one hand and the conspiracy charge on the other: "That is why it would be perfectly possible for you, if you believed it to be right, to come to the conclusion – and we are only dealing here with Graham and Mallett –that Graham and Mallett were in fact guilty of each of the offences with which he is charged, where it is a completed offence, but not guilty of the conspiracy. Because the prosecution say, 'We have to prove to you that they were concerned, as they were charged in counts 2 to 20, in carrying out completed offences, and then we will see if we can prove to you that they were more widely involved in that they were involved in a conspiracy.'" In short, as I tried to say a moment ago, there was the learned Judge in effect saying very succinctly and with faultless accuracy in law to the jury "Look at these specific individual transactions, are they isolated transactions or are they part of a wider conspiracy? It is open to you to take either view. You may say there was here a conspiracy in which some or all of these men were involved, or you may take the view that these are only isolated transactions but consider all these cases separately and reach your conclusion in the light of the view you take." Ultimately, as I have said, Graham was convicted on the conspiracy charge and Burrows pleaded guilty to the conspiracy charge. Mallett was not so convicted, nor was he convicted on Count 2. He was convicted, in the end, on Counts 11, 15 and 16. As I have already said, Count 16 does not involve Lloyds and Scottish it involves another company and since Mr. Farrington advanced an argument on Count 16 first, I will deal with that first.

10

Count 16 was a count under section 15(1) of the Theft Act and it charged Mallett with obtaining £895 from Lombard by deception, namely false representations that the particulars on the hire purchase agreement concerned relating to a Volvo car were correct. This was one of three counts relating to what one might call a "dead man". The dead man in question was called Barnes. The other two counts relating to the dead man Barnes were Counts 9 and 14 but, as I have already mentioned, the learned Judge withdrew Counts 9 and 14 from the Jury so the Jury had only, in relation to Barnes, to consider Count 16.

11

Barnes – and this seems to be clear beyond all doubt –had died on the 7th March, 1973. The Crown case was that on the 21st May, 1973, Mallett, knowing perfectly well that Barnes was dead, had used his name in a hire purchase transaction in order to put him (whom he knew to be dead) forward as an intended hire purchaser of a car. The learned Judge dealt with this at page 200 of the summing-up when she dealt with the law as to what had to be proved for an offence against section 15(1) of the Theft Act.

12

The evidence of this misuse of the dead man's name depended upon a Mrs. Wingard. Mrs. Wingard was the wife of a witness to whom I shall have to refer later and whose credibility was very much in issue at the trial. She gave evidence at page 56 of the transcript and that evidence was directed to this particular transaction. Mr. Hart-Leverton, who was appearing for the Crown at...

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