[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Jenkins & Anor, R. v [2002] EWCA Crim 2475 (06 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/2475.html Cite as: [2002] EWCA Crim 2475

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
(HIS HONOUR JUDGE MERCER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		6 November 2002

Lord Justice Potter:

1. On 12 December 2001, before His Honour Judge Mercer and a jury, following a re-trial (the first jury having been discharged), the appellants were convicted by a majority verdict (10:2) on a single count indictment of conspiracy to defraud. On 15 January 2002 each was sentenced by Judge Mercer to 15 months imprisonment and ordered to pay costs of £2547 within 28 days. Jenkins was ordered to pay compensation of £31,366.72 to the Hounslow Borough Council (“the council”). Jenkins and Starling each appeal against conviction by leave of the single judge.
2. The appellants were both directors of a company called Mottram Ltd (“Mottram”) an off-the-shelf company set up by them to develop a site at 82-84 Stockwell Road on a speculative basis.
3. The appellants had been old friends since schooldays and their main business was as partners in LHDC Developments Ltd (“LHDC”) a building business carrying out work to sites owned by Housing Associations. That was a less risky form of development than that effected by Mottram, in which Starling was responsible for the day to day administration and financial arrangements of the business, while Jenkins was the man on site responsible for the works of development on the ground. In summer 1999 their business and personal relationships were deteriorating, Jenkins having to some extent lost interest in the LHDC work, preferring instead to spend more time in his own loft conversion business which he carried on with another business partner, Rita Lovelace, who lived at 33 Tayfield Close, Ickenham.
4. In late July or early August 1999 a cheque for £62,733.45 contained in an envelope addressed to Mottram was sent by post to Miss Lovelace’s address at 33 Tayfield Close. That cheque was a computer-produced document drawn by the council on 20 July 1999, bearing the computerised signature of Mr Steele, the borough treasurer, and the manuscript signature of an L. Watson. It was the case for the prosecution that the cheque represented the refund of a business rate, issued on the basis of a document (“exhibit 1”) headed “NNDR Refund Request”. Exhibit 1 was a proforma document completed in manuscript and bore the date 14 July 1999. The name of the applicant for the refund was recorded as “Mottram Ltd (Re: Strand Lighting”). The ‘Address where refund to be sent’ was recorded as 33 Tayfield Close, Ickenham and the ‘Property to which refund relates’ was recorded as ‘2 Centarus Business Park, Grant Way, Isleworth’. The document showed ‘Overpayment’ of £62,733.45 and a ‘Total Refund Amount’ in the same figure. The ‘Reason for Refund’ was stated to be “overpayment ended account”. Opposite the ‘Name of officer requesting refund’ appeared the signature of “Chris Ronan” and opposite the ‘Name of officer checking refund’ appeared a signature “D.A. Bryant”.
5. It was not in issue that Mottram was not entitled to that payment, nor was it in issue that the information contained in exhibit 1 was incorrect. The property in respect of which the claim was made had once been occupied by a company called Strand Lighting which had vacated in 1997 in order to go to Scotland. Karen Todd, a witness from Strand Lighting gave undisputed evidence that, on vacating the premises, the company had received a cheque from the council for £192-odd and it had never requested, received or been entitled to payment from the council in the sum of £62,733.45. It had no accounts in the name of Mottram Ltd and Miss Todd had never heard of that company.
6. Following receipt by Mottram, the monies were paid into its account at Clydesdale Bank by the office manager of LHDC, Mr Godfrey, who also performed administrative tasks for Mottram. On 11 and 12 August two cheques signed by Starling for £52,000 and £7,000 were drawn on the Mottram account in favour of LHDC which had liquidity problems at the time. Following payment into the LHDC account, Starling transferred funds amounting to £45,000 from LHDC into his personal account to cover his own charge card which had been used for paying for materials for LHDC.
7. The administration and operation of the council’s system for, inter alia, rent rebates was carried out under contract by a computer services company, ICL, which operated within the council building, but separately from the council administration. It employed its own staff and operated its own procedures and had created its own internal administration and documentation for that purpose. There was no direct oversight of its activities by the council, which simply drew cheques in favour of applicants identified by ICL to the council on a weekly basis as entitled to payment.
8. The police had been unable to identify anyone within the council or ICL who was responsible for origination of the false information contained on exhibit 1. However, it was the prosecution case that the appellants had conspired with a person unknown within the council dishonestly to obtain the sum of £62,733.45 falsely claimed to be payable to Mottram. The prosecution put its the case on the basis that some person or persons employed by the council or ICL must have participated in such dishonest scheme, but it had not been possible to establish who was responsible. The prosecution relied on the financial difficulties of the appellants in relation to LHDC, (which was put into voluntary liquidation in October 1999) and of Mottram in relation to their Stockwell Road development. It was suggested that they procured and made use of the council cheque in the expectation or hope that through the activity of their co-conspirator(s) within the council or ICL, the impropriety of the payment would never be discovered. It was also contended that the explanation which the appellants had given for their use of the monies, to which they must have known they were not entitled, were transparently untrue and unacceptable.
9. In the case of each appellant, his defence was to deny any involvement in a conspiracy to defraud the council. Each asserted that he had no connection with any personnel from the council or ICL and relied on the fact that there was no evidence of the circumstances in which the cheque had been drawn. The defence attacked the prosecution case on the basis that, although the refund request was prepared by ICL, no member of its staff gave evidence in relation to the refund transaction or the procedures followed by ICL. Notably, neither Ms Ronan nor Ms Bryant was called. Mr Steele, the Borough Treasurer who gave evidence for the council and produced exhibit 1 said he did not know what part if any the document had played, nor did he know whether it was created before or after the council cheque had been drawn.
10. It was the case for Jenkins that, in July 1999, he had been telephoned by a man called “Ian” who said he was interested in investing £50-60,000 in the Stockwell Road site. Jenkins gave him the name of Mottram and the address of Miss Lovelace in this connection. Subsequently an envelope arrived addressed to Mottram which he handed unopened to Mr Godfrey. He did not know until later that it contained a cheque and never knew that it had come from the council. He went off on holiday and, on his return, spent more time on his loft conversion business, drifting apart from Mr Starling. The case for Starling was that he never saw the cheque or knew that it had come from the council. He was away on holiday when it arrived and, although told over the telephone by Mr Godfrey of receipt of a cheque for £60,000, he did not learn of the source or the details at that time, believing from an earlier conversation with Jenkins that the cheque represented a loan to or investment in Mottram. If the case was to be proved as charged it was not enough for the jury to be satisfied that the appellants or either of them had stolen the cheque, taking advantage of a mistake or irregularity within the council; they had to be satisfied that the cheque was drawn as a result of a prior conspiracy between the two appellants and an unidentified third party within the council.
11. The trial suffered a number of delays because of various inefficiencies and deficiencies in disclosure by the prosecution. At a plea and directions hearing on 21 December 2001 a trial date was set for 2 April 2001. That date had to be vacated because highly relevant material, namely a transcript of an interview with Christine Ronan, had not been disclosed. An application for stay on the grounds of abuse of process was rejected on 2 April 2001 by Mr Recorder Kramer QC, who found that the role of Christine Ronan was clearly central to the case and that the defendants would be prejudiced if the trial was allowed to proceed at that stage. The case was re-listed for 16 July 2001. In the light of further delays and defaults in disclosure, a further application was made to stay on the grounds of abuse of process on 6 June 2001, but this too was rejected. On 16 July 2001 the trial commenced before His Honour Judge Goymer. On the sixth day of the trial three further files came to light and were belatedly disclosed; a police file comprising correspondence and other notes in relation to the case, and files relating to an operation in the course of which the computer records of ICL were removed copies and retained. In hearing a further application for a stay on the grounds of abuse of process, Judge Goymer described the history of disclosure as “at least unfortunate and more aptly described as lamentable”.
12. However, the judge refused the application. Despite the defence having made clear that if the application was refused they wished the trial to proceed, the judge thought it right to discharge the jury and order a re-trial “in the overall interests of justice” stating that such interests included not only a fair opportunity for the defendants to put their case, but also the public interest in ensuring that, if there was sufficient evidence of the offence, it should be properly litigated before the jury. He described the two essential aspects of the case as being:

“Firstly, the fraud aspect, exactly what was going on at Hounslow that caused this cheque to be issued and, secondly, the participation aspect as to whether each of these defendants dishonestly participated in that ...

The Crown say that they cannot point the finger of suspicion firmly at any particular individual or individuals, so the Crown say that it is a matter of inference that this cheque was issued irregularly and dishonestly to somebody who was not entitled to that and that is an inference that the jury legitimately can draw from all the facts”

13. At the first trial, it had been made plain (as Mr Steele also made plain at the second trial), that the collection of business rates and the processing of refunds had been transferred by the council to ICL some time before, ICL performing such services under contract in a separate part of the council building and that the officers of ICL who dealt with this particular alleged refund request were former employees of Hounslow. It had emerged that Christine Ronan was interviewed by the police on 6 June 2000 but never cautioned or charged on the basis that she was a participant or had been dishonest in any way. D.C. Jack said in evidence that he believed what she had said in interview and that he had seen no need to interview her colleague Denise Bryant even though it was Ms Bryant who had signed as the officer checking the refund. It also emerged that another of the officers employed by ICL was the manager of the department, named Ian Barry. He however had never been asked about the transaction, despite the fact that Mr Jenkins had told the police in interview on the day of his and Mr Starling’s arrest that a man called Ian had contacted him by telephone in relation to his proposed ‘investment’. Despite the adverse comment implicit in the cross-examination by the defence at the first trial, and the comments of Judge Goymer to which we have already referred, when it came to the retrial the prosecution maintained its position that it did not seek to call any of the officers or employees of ICL, but simply relied on the evidence of Mr Steele.
14. At the commencement of the trial, a submission was made by counsel for the defence that exhibit 1 should not be admitted on the basis that it had been signed by Ms Ronan and Ms Bryant, neither of whom was being called as a prosecution witnesses. It was objected that the contents of the document were hearsay evidence and inadmissible, not falling within any of the exceptions provided by sections 23 and 24 of the Criminal Justice Act 1988. In giving his ruling, whereby he admitted the document in evidence, the judge summarised the submissions of Mr Holt for the prosecution as follows:

“ ... the document is admissible as coming from the Borough Council’s business records and is to be produced appropriately by the Borough Treasurer, whose evidence will be that the refund was paid in reliance on this document. Mr Holt particularly relies on the reference in this document to Strand Lighting as a company seeking the refund as set out on the form, but otherwise he submits that it is not sought to produce this document as evidence of the truth of the matters asserted in the document. His submission is that this was a dishonest document submitted in pursuance of the conspiracy alleged which caused the issue of the cheque in question.”

15. The judge ruled as follows:

“In my view, the contents of this document are not hearsay evidence insofar as it purports to show that Mottram Ltd (Strand Lighting) are entitled to the rent refund. The prosecution case is that such was the dishonest assertion. What is sought to be proved, it seems to me, is not the truth of the contents of this document but the terms of the document which in fact procured the refund by cheque. If I am wrong about that, insofar as the document may contain hearsay evidence, then in my view it would nonetheless be properly admissible under section 24 of the Criminal Justice Act, having considered the relevant criteria set out in section 25 of that Act. In those circumstances this application is refused.”

16. The judge having so ruled, the trial proceeded. The only witness called in relation to the making of the refund was Mr Steele, who explained in broad terms the procedure relating to the non-residential rating system, indicating that if a business vacated premises it might well be entitled to a rate refund if payments had been paid in advance. He explained that the council had contracted with ICL to deal with the administration. Payment was made by the council which issued a cheque via its computer system in respect of any refund, following production to the council by ICL of a computerised weekly input sheet showing the payments to be made. No such input sheet was produced. He produced the relevant cheque, identifying his own facsimile signature and that of the second signatory. He also produced exhibit 1. He stated that the council’s investigation had not been able to establish that Mottram was entitled to a refund, nor that they occupied premises at Cantarus Business Park. Having said that, however, it emerged in cross-examination that he had not carried out, and had no personal knowledge of, the investigation. Nor did he have direct knowledge of the systems within ICL in general or the procedure followed in respect of exhibit 1 in particular. He said that he had asked ICL for any documentation such as a letter or note from Mottram to support the refund but said he had received none. He said he had not asked about ICL’s general procedures, although he understood his audit staff had done so. He had not spoken to either Ms Ronan or Ms Bryant about exhibit 1 or how it came into existence. He could not say what enquiries had been made by Ms Ronan or Ms Bryant in relation to exhibit 1 or the repayment requested thereunder.
17. Mr Steele agreed in cross-examination that it was possible that a mistake rather than fraud could have occurred in issuing the cheque to Mottram but he had not been informed by ICL that was in fact so. He said no documentation had been produced to him by ICL which would enable him to give reasons why the payment to Mottram had been made. He was in no position to answer questions, and did not know the answers, as to the preparation or production of the refund request. He said that he had simply been given exhibit 1 by Mr Ibrahim, the ICL manager of the project, and that no other documents were made available to him by Mr Ibrahim in respect of this transaction. Although he had stated in his witness statement that “the only document found amongst the ICL piles which related to the refund to Mottram was exhibit 1”, his evidence was that exhibit 1 was the only document handed to him by ICL. He did not know, and he said that he understood it had not been possible to ascertain, who had access to the council computer in order to make the payment.
18. Evidence was read from Karen Dobb, the financial accountant for Strand Lighting Ltd, along the lines we have already mentioned. Rita Lovelace was called to say she remembered a letter arriving at her address for Mottram which she gave to Mr Jenkins the day after it arrived. She knew nothing about Mottram and had no particular reason to remember anything Mr Jenkins might have said about it. The manager of Clydesdale Bank was called in relation to receipt of the cheque from Mr Godfrey, and there was evidence from the arresting officers.
19. At the end of the prosecution case the judge rejected a submission that there was no case to answer in relation to the charge of conspiracy to defraud because there was no evidence as to the circumstances in which the cheque was drawn.
20. Each of the appellants gave evidence along the lines we have already mentioned. Mr Jenkins spoke of the proposed investment from a man called Ian, to whom he had said that Mottram were looking for £50-60,000 to get off the ground and cover the substructure costs. He said he gave him Mottram’s name as owners’ of the Stockwell Road site and the address at Tayfield Close because it was close to Ruislip where Ian had said he was based and had proposed a meeting. When Rita gave him the envelope addressed to Mottram he took it unopened to LHDC’s office, giving it to Mr Godfrey and telling him there was a letter for Mr Starling’s attention. The first he knew of the cheque was when Mr Starling telephoned him later, saying the envelope for Mottram contained a cheque but not identifying the source.
21. Mr Jenkins produced documentation from a travel agency to show that he then went abroad on holiday, returning on 21 August. Because his relationship with Mr Starling had then deteriorated and he was concentrating on his own loft conversion business, he had no more dealings with Starling or anyone else about the cheque. He said he had never been to the council offices, nor did he know Ian Barry, Christine Ronan, Denise Bryant or Mr Ibrahim. He had no knowledge of Centarus Business Park and had not heard of Strand Lighting. He was generally cross-examined about the unlikelihood of his ignorance of Ian’s surname, address or telephone number and of his assertion that the cheque was received in circumstances in which he did not seek such details.
22. Mr Starling gave evidence as to his deteriorating relationship with Mr Jenkins at the time. He said he had not been involved at all with the obtaining of the cheque and had not spoken to anybody called Ian of whom he knew nothing. He was on holiday in Cornwall when the cheque arrived but telephoned the office frequently and, on one such call, Mr Godfrey told him that Jenkins had brought in some documentation including a letter from Mottram containing a cheque. He was not expecting a cheque and was not told by Mr Godfrey that it had originated from the council. He was merely told the amount. He said he did not give much thought to it at the time but telephoned and spoke to Jenkins telling him there was no correspondence in the envelope. Jenkins said it would probably follow on later and mentioned a possible meeting. In cross-examination he agreed that, if he had seen the cheque, he would have realised that it must have been questionable and would then have made enquiries of Mr Jenkins to find out more. He had no idea who the cheque was from, only the amount. It was possible Mr Godfrey would have given him further information, had it not been that the mobile phone conversation which he had with him on holiday was breaking up because of the reception. He said he subsequently got information about the cheque from Mr Jenkins and that, later in meetings, Mr Godfrey asked about the cheque being drawn by the council. He then said that he had misunderstood the question and that the first he knew that the source of the cheque was the council was when he was arrested. Mr Godfrey had said on the telephone that the cheque related to a loan. He agreed he thought it odd that the cheque was for a specific sum rather than round figures, but he never asked Jenkins about it due to the way things developed.
23. Mr Godfrey was called and gave evidence which supported that of both appellants. He said Mr Jenkins had brought in the envelope addressed to Mottram unopened, he found in it the cheque and nothing else and subsequently sent it off to the bank with a letter of 6 August 1999. Mr Starling had phoned him on holiday on his mobile and he told him about the cheque that had been received including the one for Mottram but at that point got cut off. Mr Starling had phoned again a couple of days later by which time the cheque had been banked and so he did not see it. He confirmed that, when speaking to Mr Starling on his mobile telephone, he told him about the cheque but not that it was from the council or the amount. He later entered the amount as a loan following a conversation in which Mr Starling told him he believed it was a loan that Mr Jenkins had been dealing with. It was only after Mr Starling’s return from holiday that both he and Mr Jenkins knew the amount of the cheque.
24. There are a number of grounds of appeal in this case. The first ground is that the judge erred in law, or in the alternative exercised his discretion wrongly, in admitting exhibit 1 in evidence, in that (1) he wrongly concluded that it did not comprise hearsay evidence (2) he wrongly concluded that it was admissible pursuant to s.24 of the 1988 Act and (3) if it was properly admissible pursuant to s.24, he failed to give any reasons for rejecting the application that it be not admitted, having regard to the considerations set out in s.25(2) of the 1988 Act. Second it is said that in the light of Mr Steele’s evidence, the judge erred in rejecting the submission of no case to answer. Third it is said that the judge made a number of errors in his summing up. Fourth it is said that the verdict of the jury was perverse and unreasonable. Fifth, it is sought, on grounds it is not easy to follow, to appeal the decision of His Honour Judge Goymer in rejecting the application to stay the proceedings on the grounds of abuse of process at the time of his discharge of the jury at the first trial.
25. We now turn to the first ground which, in the event, we consider to be decisive of the appeal. Mr Holt, who appeared below has not sought to support the ruling of the judge on the ground upon which it was made. His submission before the judge was, as it is before this court, that exhibit 1 was a dishonest document submitted in pursuance of the conspiracy to cause the issue of the cheque in question. He does not seek to get bogged down, as the judge seems to have done, in the question whether or not the document constituted hearsay given that the prosecution did not assert the truth of its contents. No doubt Mr Holt adopts that position because, while it is true that, in one sense, the Crown did not assert the truth of the contents of exhibit 1, it did seek to rely on that document to assert that its signatories had in fact made and communicated to ICL the application for a refund on the basis therein set out and on the date therein stated. Indeed, that fact was the very linchpin of the prosecution case that there was a conspiracy between the defendants and ‘a person or persons unknown’ in the council. Having confirmed that position before us, Mr Holt does not seek to rely on s.24 of the 1988 Act, acknowledging the difficulty of establishing the requirement of sub-paragraph (i), and the impossibility of establishing the requirement of sub-paragraph (ii), of s.24(1)(b).
26. That being so, the basis upon which the judge admitted exhibit 1 in evidence was incorrect and is undefended by Mr Holt. Is it nonetheless open to him to argue that exhibit 1 was properly admitted as a document created by a co-conspirator in the course and furtherance of the conspiracy alleged?
27. The rule governing admission of such a document is the rule which permits the actions and declarations of one alleged conspirator, A, to be used in evidence against an alleged co-conspirator, B, and as such is an exception to the general rule that B is not to be prejudiced by the acts or statements of A not made in his presence, and an exception to the hearsay rule insofar as it involves reliance on A’s statements as evidence of their truth: see Blackstone’s Criminal Practice 2002 at F16.48 (p.2264).
28. The practical difficulty confronting Mr Holt in that respect is that, in the circumstances of the case, that involves an assertion that exhibit 1 was created, or at least signed by Ms Ronan, knowing its contents to be untrue and in furtherance of a conspiracy with the appellants. Mr Holt baulks at the matter being put in that specific and limited fashion; perhaps not surprisingly, because, as he accepts, Ms Ronan (as the judge had been informed before admitting the document) was interviewed and her answers satisfied the police that there was no basis for charging her as a conspirator; further, Ms Bryant was not interviewed at all, apparently upon the basis that there was no reason to suppose she was involved. Both women were, and remain, employed by ICL.
29. Faced with that dilemma, Mr Holt has before us sought to justify the admission of the document on the alternative basis that, (1) although the signatories to the document may themselves have been innocent of any misdoing or fraud, they nonetheless must have prepared the document on the basis of false and fraudulent information supplied by someone else within ICL. He was also obliged to concede the possibility that (2) Ms Ronan properly filled in the form on the basis of a letter or other communication from outside the council and, again, the matter passed through innocently being insufficiently checked. Finally, he was obliged to accept the possibility canvassed for the appellants before the judge and pursued before us, namely (3) that the document was not in existence prior to the payment being made and that it was prepared and produced well after the making of the payment to justify a mistake or irregularity by the signatories and/or others in the ICL office. The difficulty of course, in relation to any of those possibilities is that, on none of them, could it be demonstrated that exhibit 1 was an act or statement of the maker made in the course or furtherance of the conspiracy charged.
30. Mr Holt finally settled on the argument that, the document having been produced by Mr Steele, it was open to the jury to conclude as a matter of common sense that the contents of the document were bogus and known to be bogus to ‘someone’ concerned with the refund within the council, that being the reason for, and basis of the charge that the appellants conspired ‘with another or others unknown’.
31. In our view the generality of that assertion is not one which is sufficiently ‘focused’ to meet the narrower question of the admissibility of exhibit 1.
32. Despite the recommendations of Law Commission, there has been no general alleviation of the fundamental rule of evidence at common law that hearsay evidence is inadmissible: c.f. the position achieved in civil proceedings by the passage of the Civil Evidence Act 1995. The rule against hearsay applies equally to documents as it does to oral testimony, and is relevant both to the authenticity of the document and to its contents. In this case it was and is conceded for the prosecution that the admission in evidence of exhibit 1 constitutes a breach of the hearsay rule in both respects unless it can be justified under the exception concerning documents produced in the course and furtherance of a conspiracy. In this case, in order to establish that exception, the prosecution was obliged (1) to produce a witness able to speak to the circumstances in which the document was made, or at least, discovered and (2) to be in a position to invite the jury to infer from such circumstances and the content of the document that the signatories to the document had brought it into existence in collusion with the appellants.
33. At the stage when the judge made his ruling on admissibility, he no doubt did so on the basis that, despite the absence of the signatories as witnesses, Mr Steele had sufficient knowledge, and was the appropriate witness, to speak to the circumstances in which the document was made and/or discovered. Mr Steele’s witness statement was a short one and it did not give details of, or make clear, (a) the separate role of ICL and (b) Mr Steele’s limited personal knowledge and function in relation to the refund machinery. Those details only emerged in evidence during his cross-examination. On the other hand, it may well be that the reason the judge declined to found his decision as to admissibility on the basis that exhibit 1 was a document created by a co-conspirator was precisely because he knew the background to the investigation, was aware of the statement given by Ms Ronan, and that the police saw no reason to prosecute her or Ms Bryant, nor the council to dismiss them, on the basis of their involvement. What is clear to us is that the judge, having failed to rule exhibit 1 admissible upon the basis that it was made in the course or furtherance of the conspiracy, it would be quite wrong for us to proceed upon the basis that such a ground could properly have been made out. In our view, the judge was, as conceded by Mr Holt, in error in admitting exhibit 1 under s.24 of the 1988 Act. If we are to be asked in retrospect to justify the admission of exhibit 1 on the basis that it was the document of a co-conspirator, we must be satisfied it would be just to do so in the light of the evidence of Mr Steele.
34. In that connection, the answers given by Mr Steele in cross-examination made it quite clear that he was not in a position either to say how the document was made or where and in what circumstances it was discovered. It was clear from his evidence that ICL, acting under contract, created and operated their own system for the making of refunds, the Refund Request being a document internal to them which was not communicated to the council before any cheque was issued. He was unable to say whether its content would have originated in a telephone call or letter received from outside, or would have been taken from existing internal documentation within ICL or information orally communicated by another ICL employee. All Mr Steele could say was that he knew that, within ICL, there were five or six people dealing with business rates, that Ms Ronan and Ms Bryant, former employees of the council, were two of them, that the name of ICL’s manager of the department was Ian Barry, that ICL dealt with any written or personal requests made for business refunds, that he (Mr Steele) could not say whether or not they filled in a form in that respect, that he had not asked ICL what was their procedure for administering applications for refund; he had merely asked them whether there was documentation to support the refund which had been made. He also said that, while ICL had the function of carrying out checks on applications, he could not say what their procedure was or what checks had been made in this case. All he could say was that having asked ICL for any document which appeared to support the refund payment he had been handed exhibit 1 well after the event by Mr Ibrahim, the ICL site manager. Nor had Mr Steele enquired who it was who put the information on to the computer in connection with the transaction. In this connection, he reaffirmed a statement which he had made at the original trial to the effect that the overpayment could have occurred through a mistake although nobody had admitted making such a mistake.
35. In our view that evidence is wholly inadequate to establish the circumstances in which the document was made or discovered within ICL. It is clear that it was a witness from ICL, and not Mr Steele, who would have been competent to speak to such matters. The signatories were the obvious candidates. However given that the prosecution was unwilling to call them, there were plainly other witnesses available, notably Mr Ian Barry, the manager of the department, and Mr Ibrahim the site manager for ICL, who appeared to have been the person who investigated the documentary position in order to hand over any supporting documentation to Mr Steele.
36. Insofar as the prosecution intended to invite the jury to draw inferences based upon exhibit 1, we accept that, in the absence of knowledge of the background we have set out, it was open to the jury (indeed they were likely), if the document was admitted, to infer that it was created in the course or furtherance of the conspiracy rather than, for instance, coming into existence after the payment had been made to cover up some earlier mistake or irregularity. That is why it was so important to the defence that the foundation for admitting exhibit 1 should be laid by someone with knowledge of its creation or at least of the system pursuant to which it had been created. Only if this was done could the defence properly explore the facts, or at least the possibilities, on a basis favourable to the defence. That raises a further point of importance to which we now turn.
37. Even if the prosecution were otherwise entitled to introduce exhibit 1 via the evidence of Mr Steele, it is necessary to consider whether its admission simply on his say-so, and on the basis that the prosecution were not prepared to call a single witness from ICL with direct knowledge of the procedures involved, was fair under s.78 of the Police and Criminal Evidence Act 1984 (“PACE”). S.78 permits the Court to refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, the admission of the evidence would have an adverse effect on the fairness of the proceedings. In this case all the circumstances included (a) a history of unsatisfactory disclosure by the prosecution; (b) the blowing hot and cold by the prosecution on the question whether or not the signatories of exhibit 1 were involved in the conspiracy; and (c) the desire of the defence to canvass the possibility of mistake and subsequent cover-up by ICL.
38. It was crystal clear that if there was admitted in evidence the document which was said to be the linchpin of the conspiracy case asserted, the appellants would wish, and be entitled, to cross-examine the witness who produced and spoke to it upon the procedures followed within ICL prior to the making of the payment and the possibility of honest error and subsequent cover-up by those responsible for processing the payment and/or a fraud initiated by “Ian” as the source of the loan to Mottram (the suggestion being that “Ian” might be the same Ian who was the manager of the ICL Rates and Rebates department). By admitting exhibit 1 in evidence, but calling only Mr Steele to speak to its provenance, Mr Steele’s ignorance of the particular transaction and of ICL’s usual procedures deprived the appellants of any effective opportunity to explore the date of, and full circumstances surrounding, its creation or discovery. In our view the admission of the evidence in those circumstances was bound to have an adverse effect on the fairness of the proceedings, such that it should have been excluded.
39. Because it has been conceded that the admission of exhibit 1 was central to the success of the prosecution in establishing the conspiracy pleaded and that, without it, the case could only be put on the basis of theft of the cheque at best, it is plain that the conviction of the appellants is unsafe. The appeal will therefore be allowed without the necessity to consider the remainder of the grounds relied on. In the light of the period of imprisonment which the appellants have already served, no retrial will be ordered.