R Young v Central Criminal Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE,MR JUSTICE STANLEY BURNTON,MR JUSTICE LEVESON |
| Judgment Date | 18 March 2002 |
| Neutral Citation | [2002] EWHC 548 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 March 2002 |
| Docket Number | NO: CO/5198/01 |
[2002] EWHC 548 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Rose and
Mr Justice Stanley Burnton and
Mr Justice Leveson
NO: CO/5198/01
MISS CP MONTGOMERY QC and MR A CAMERON (instructed by Peters & Peters, 2 Harewood Plc, Hanover Square, London W15 1BX) appeared on behalf of the Claimant
MR R LATHAM QC and MR S CLIMIE (instructed by Serious Fraud Office, Elm Hse, 10–16 Elm Street, London WC1X CBJ) appeared on behalf of the Defendant
This case comes before the court as the result of a ruling of Jackson J at the Central Criminal Court on 4th September 2001. The defendant was charged, in the relevant count of the indictment, with having dishonestly concealed material facts, contrary to section 47(1) of the Financial Services Act 1986; I will come later to the particulars of the offence in the indictment. His case had been transferred to the Central Criminal Court under the provisions of the Criminal Justice Act 1987 as a serious fraud case.
On the defendant's first appearance at the Crown Court, the court was notified that there might be an issue as to the claimant's fitness to plead. Jackson J ruled that that question should be determined under section 4 of the Criminal Procedures (Insanity) Act 1964. On 15th December 2000 a jury determined that the accused was under a disability. The case was, accordingly, adjourned for a determination under section 4A of the 1964 Act as to whether the defendant did the act alleged in the indictment.
The judge ruled on 4th September 2001 first that the defendant's intention, as particularised in the count, was capable of being a fact, and secondly that investigation of that intent was the proper subject of inquiry by the jury in relation to the section 4A determination. Against his ruling, he gave leave to appeal on the agreed basis between prosecution and defence that what had taken place was a preparatory hearing, so that there was a right of appeal to the Court of Appeal (Criminal Division), either under the Criminal Justice Act 1987 or under sections 29–31 of the Criminal Procedure and Investigations Act 1996. Pursuant to that permission, an appeal was lodged.
However, in Moore, Kerr and Haroon [2001] EWCA Crim 2024 the Court of Appeal (Criminal Division) held that there is no scope under the 1996 Act for holding a preparatory hearing prior to a section 4A trial. That Act applies to trial on indictment, and section 4A hearings are not trials on indictment. A similar conclusion was reached by the Court of Appeal (Criminal Division) in Grant [2001] EWCA Crim 2611. Accordingly, an application was made for permission to proceed by way of judicial review, and such permission was granted by Ouseley J on 6th February 2002.
The case was then listed before three judges so that, if necessary, the court could constitute itself as a Court of Appeal (Criminal Division). In my judgment, such a course was not necessary. The parties were correct to conclude that the jurisdiction in relation to this matter lies in the Administrative Court and the Divisional Court, rather than in the Court of Appeal (Criminal Division).
Before setting out the rival contentions advanced in this court, it is first convenient to set out the material statutory provisions, the particulars of the count faced by the defendant, and the critical parts of the judge's ruling in relation to this matter.
The Criminal Procedure (Insanity) Act 1964 provides in section 4A that, where there has been under section 4 a determination by a jury that the accused is under a disability, in that he is unfit to plead:
"(2) The trial shall not proceed or further proceed but it shall be determined by a jury—
(a) on the evidence (if any) already given in the trial; and
(b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence,
whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.
(3) If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him."
Section 47 of the Financial Services Act 1986 is headed "Misleading Statements and Practices" and provides:
"(1) Any person who—
(a) makes a statement, promise or forecast which he knows to be misleading, false or deceptive or dishonestly conceals any material facts…
is guilty of an offence if he … conceals the facts for the purpose of inducing, or is reckless as to whether it may induce, another person … to enter or offer to enter into … an investment agreement."
The particulars of the offence of dishonestly concealing material facts, set out in the count in the indictment, are as follows:
"PETER WILLIAM YOUNG, between the 1st day of July 1994 and the 31st day of December 1994 being at all material times the investment advisor to the Deutsche Morgan Grenfell European Growth Trust Investment Fund dishonestly concealed material facts relating to the Carnegie Perpetual Bond exchangeable into shares in SensoNor AS (the bond) namely:
i) That he had been concerned in the design and structure of the said bond and the underlying 1,700 security printed bonds or warrants and/or
ii) That he intended to have a personal interest in one of the said 1,700 bonds or warrants and/or
iii) That he intended to have control of the entire 1,700 bonds or warrants and/or;
iv) That he intended so to manipulate the conversion of 1,699 of the said bonds or warrants as to enhance the value of his personal interest set out at ii) above and/or as to cause a reduction in value of the said 1,699 bonds or warrants
for the purpose of inducing or being reckless as to whether it might induce the trustees of the said investment fund to enter or offer to enter into an investment agreement namely the purchase of 1,699 of the said bonds or warrants…"
We are told, and accept, that ii), iii) and iv) were amended, without objection, to include a reference to the relevant intention being "then and there".
Jackson J, having reviewed the authorities to which he was referred, said this in relation to the first of the two rulings which I have identified:
"I draw three conclusions from the authorities and statutes to which my attention has been drawn.
One, in some criminal statutes a person's present intention is treated as a fact. In some criminal statutes it is not. There is no universal or uniform approach.
Two, in section 15(4) of the Theft Act 1968 Parliament expressly stated that present intention was to be treated as a fact because Parliament was changing the pre-existing law.
Three, in section 14 of the Trade Descriptions Act, a statement of present intention falls within the ambit of the provision, even though this is not expressly spelt out. It is to be inferred from the context.
With the benefit of this guidance, I turn back to the construction of section 47(1) of the Financial Services Act 1986, which is the issue before the Court. Subparagraph (a) of that section has two limbs, limb 1 is:
'Makes a statement, promise or forecast which he knows to be misleading, false or deceptive.'
Limb two is:
'Dishonestly conceals any material facts.'
Limb one of subparagraph (a) is widely drawn. It includes within its ambit statements of present intention as to future conduct and statements of belief. Likewise, subparagraph (b) of section 147(1) is widely drawn. It includes within its ambit statements of present intention as to future conduct and statements of belief.
Having regard to the context in which it appears, I do not consider that limb two of subparagraph (a) should have the narrow construction for which Miss Montgomery contends. In my judgment, the phrase 'material facts' should be read broadly so as to include the defendant's present intention as to future conduct. This reading accords with the obvious purpose of the section as a whole, which is to secure that investments are made on an informed basis. This reading is consistent with the authorities cited above."
In relation to the second ruling which he gave, having referred to the relevant authorities, he said:
"The relevant principles which emerge from Lord Hutton's speech [in Antoine [2001] 1 AC 340] are the following:
one, so far as possible, the Court's enquiry at a section 4A hearing should focus upon the defendant's actions as opposed to his state of mind. Two, this distinction is dictated by the language of section 4A and the social purpose which it serves. Three, however, this distinction cannot be rigidly adhered to in every case because of the diverse nature of criminal offences and criminal activity.
How, then, do these principles apply to the present case? It is not possible to determine whether the defendant committed the acts alleged without enquiring into his intentions. Three of the acts alleged are the concealment of certain specified intentions. To that extent, therefore, the defendant's intentions fall to be considered at a section 4A hearing. On the other hand, it is not necessary and not appropriate to consider whether the defendant had the mens rea which is set out in section 47(1) of the Financial Services Act 1986.
I therefore come to the following conclusions based upon the language of the 1964 Act and the guidance given by the House of Lords in Antoine...
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