R v Radley
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 20 December 1973 |
| Judgment citation (vLex) | [1973] EWCA Crim J1220-13 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Nos: 4276/C/72 4278/C/72 |
| Date | 20 December 1973 |
[1973] EWCA Crim J1220-13
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Widgery)
Mr. Justice Ashworth
and
Mr. Justice Melford Stevenson
Nos: 4276/C/72
4277/C/72
4278/C/72
MR. A. SCRIVENER appeared on behalf of the Applicant Ronald George Radley.
MR. N. LEWIS appeared on behalf of the Applicant Wilfred George Radley.
MR. O. MARTIN, Q.C. and MR. J. HAYNES appeared on behalf of the Applicant Brian Radley.
MR. D. FARQUHARSON, Q.C. and MR. A. GREEN appeared on behalf of the Crown.
On 5th June, 1972 at Chelmsford Crown Court, these three Applicants were convicted on counts of conspiracy to which I must refer in detail a little later, and they were sentenced to be fined various substantial sums of money. They now apply for leave to appeal against their conviction.
The one count which originally stood in the Indictment when the Jury were empanelled alleged that these three men on divers dates between the 1st day of January, 1965, and the 8th day of October, 1970, conspired together to defraud A. & J. Wedge Limited, a company, by stealing the property of the said company, by obtaining money from the said company by falsely pretending that payments were due and owing in respect of the supply of hardcore to a building site occupied by the said company, by dishonestly making use of the said company's plant and labour for their own benefit, and by other fraudulent means and devices, to which count each of the three Applicants pleaded not guilty.
The background to the case, as disclosed in the depositions, and put in the briefest form, was that the Company referred to in the Indictment, A. & J. Wedge Limited, was a building contracting company. Of that company, Wilfred Radley was a director and Brian Radley was in the company's employ and at all relevant times the site foreman on a site being developed by the company at a place called Broadlands. Ronald Radley who, like Brian Radley, was a son of Wilfred George Eadley, was not employed as a servant of the company at any time but, having certain professional qualifications, and practising as an architect and designer of buildings he was frequently called in by the company to assist ad hoc on property propositions which they had in mind. And the Prosecution case, in a few sentences, was that over the period referred to in the Indictment these three, together, had been systematically swindling the company in a number of different ways. First of all, it was said that Ronald Radley, who of course was not an employee, had started building and developing sites on his own account, which he was perfectly entitled to do if he wanted to do so, but that he had been assisted in a dishonest way by Brian and Wilfred who had helped him by deflecting to his, Ronald's, own sites various materials, equipment and the like which belonged to the company and which had no business to be used on Ronald's sites at all, unless indeed it was on some basis of contract and payment. Furthermore, it was said that on another site, the Broadlands site to which I have referred, where Brian Radley was the site foreman, that Brian Radley was in the habit of selling Wedge's goods and equipment to people who owned houses on the Broadlands Estate, that is to say, he would sell them 100 bricks or a tin of paint, or things of that kind, but the goods which he sold were goods belonging to Wedge, and that he sold them dishonestly, and that either he or his father, Wilfred, put the money in his pocket. It was not suggested that Ronald was an active party in sales of the company's goods on the Broadlands Estate. It was said that the active participants in that particular affair were Brian, the foreman, and Wilfred, his father, Brian, incidentally, admitted from an early stage being guilty of this conduct, but his defence was that his father was innocent, there was no conspiracy, and that therefore he should be acquitted on the charges in this case.
The other main aspect of the Prosecution case was that it was alleged that Wilfred and Brian worked a swindle in regard to the sale of hardcore to the company by a man called Walsh. The details do not matter for reasons which will appear a little later in this Judgment, but the substance of the allegation was that Brian and Wilfred sold to Wedge and received from Wedge money for hardcore which Wedge had already purchased in another and more direct way. As I say, it will be clear in a moment that that last aspect of the Prosecution case really took a back seat as proceedings continued.
The case was opened by Mr. Farquharson on behalf of the Prosecution, the three Applicants having been arraigned, and the Jury having been empanelled without incident and in the usual way, and when he finished opening - which occupied about a day and a half - it was suggested to him by Mr. Oliver Martin, appearing for Brian Radley, that the count in the Indictment, coupled with the opening, suggested that there might be more than one conspiracy involved in the case which the Prosecution were seeking to make out. Mr. Martin's enquiry, as I understand it, of Mr. Farquharson through the Judge (because this was done in open Court), was whether Mr. Farquharson on behalf of the Prosecution would not restrict the case to certain aspects of the affairs and not allow the matter to go on in the omnibus form in which it had been pleaded, with the danger of considerable time and money being spent beyond what was strictly necessary. This suggestion having been made by Mr. Martin a considerable discussion followed, and in the course of this discussion the idea came - I think Mr. Parquharson proposed this - that perhaps the way to meet this objection, and possibly others which he saw from the line of argument, would be to amend the Indictment substantially so as to divide up what I have described as the three aspects of the Prosecution case and put them into three separate counts. Mr. Farquharson volunteered to do this and his reason for it, as he has told us and of course we accept, was that he did recognise that there might be some disadvantage to the Defendants if the three aspects of the Prosecution case were not separated in some way. So he put forward an application to amend the Indictment, not by removing Count 1 but by letting Count 1, as it were, fall into the background and by adding Counts 2, 3 and 4 in the following terms. Count 2 was to be against all three Applicants, and it was to be that they conspired together to defraud A. & J. Wedge by stealing the property of the company, by dishonestly making use of the said company's plant and labour for their own benefit, and by other fraudulent means and devices. It is not entirely clear to me that that count focuses attention, as it were, on the aspect of the Prosecution case concerning the assistance being dishonestly given to Ronald, but everybody accepted that it was, and so Count 2 in effect dealt with the conspiracy with Ronald part of the case.
Then Count 3 was proposed in these terms. It was against Brian and Wilfred, and charged again that they conspired together to defraud Wedges by stealing the property of the...
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