No:95/5753/X3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
                                   Royal Courts of Justice 
                                   The Strand 
                                   London WC2 
 
                                   Friday 11th October 1996

	B E F O R E: 

	LORD JUSTICE BROOKE 
 
	MR JUSTICE McCULLOUGH 
 
	and 
 
	HIS HONOUR JUDE RIVLIN QC 
 
	(Acting as a Judge of the CACD) 
     
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	R E G I N A 
 
	‑v‑ 
 
 	RITA MAY PALFREYMAN 
 
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	Computer Aided Transcript of the Palantype Notes of 
	Smith Bernal Reporting Limited 
	180 Fleet Street, London EC4A 2HD 
	Tel No: 0171 831 3183 Fax No: 0171 831 8838 
	(Official Shorthand Writers to the Court) 
 
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MR. M. HARGEN appeared on behalf of the APPELLANT 
 
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	JUDGMENT 
	(As Approved) 
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Friday 11th October 1996 
 
LORD JUSTICE BROOKE: Mr. Justice McCullough will give the judgment of the court. 
 
MR. JUSTICE McCULLOUGH: Rita May Palfreyman appeals against her conviction on 6th April 1995 in the Crown Court at Kingston‑upon‑Hull of a single count of attempting to obtain services, namely, a voucher for a holiday, from a travel agent by falsely representing that a cheque for £200 was a good and valid order for the payment of that sum. On the same day the jury found her not guilty of stealing £200 from the parents teachers association of a school between 9th May and 19th October 1993.  At that time she was the head teacher of the school. 
           The case for the prosecution was as follows.  The parents teachers association held a lottery. The appellant was the promoter and responsible for the distribution of the tickets. The principal prize was a voucher for £200 to be spent on a holiday booked through a travel agency in Selby. The money raised was all given to the appellant. She accounted for it to Mrs. Senior who was the treasurer of the association. The appellant gave Mrs. Senior a total of £343.78 and told her that this sum, together with £200 that she had taken to pay to the travel agency, represented the income from the ticket sale. 
           The draw took place on 17th July 1993.  When the winner went to the travel agency she was told they had not received the £200. The winner took the matter up with the appellant. She gave a variety of explanations; one was that somebody had run off with the money but she could not say who.  The travel agency also took the matter up with the appellant and they too were given a variety of excuses and promises.
		The winner wanted to take her holiday on 26th October 1993 but could only do so if the £200 was paid by then. On 21st October a man took a cheque for £200 to the travel agency which was drawn on Mr. and Mrs. Palfreyman's account with the Co‑Operative Bank.  It was not paid. At that time the account was overdrawn by more than £400.  Mr. and Mrs. Palfreyman had no authority to overdraw.  There had been a facility to overdraw but this had expired and had not been renewed, and the bank had told them so on 19th or 20th of September.   The bank had for some time been refusing to honour cheques drawn on the account and refusing to pay standing orders and direct debits.  The appellant was aware of this.  The bank had been writing to inform her and her husband.  The bank was sending statements to them each week; so she knew the state of the account. On 15th October a statement was sent showing that the account was overdrawn by over £350; so she must have known that the cheque for £200 was worthless. The bank did not pay it.  So the charge was one of attempt. 
           In due course the parents teachers association paid the travel agency £200, and in 1994 the winner got her holiday.
		The appellant was not arrested until 15th August 1994. She was interviewed then and twice more in September 1994. She said in interview that she had handed over all the lottery money to Mrs. Senior, the treasurer, or to Mr. Elias, the chairman of the association. She said she understood that Mr. Elias had not banked all the money. She said it had been his obligation to pay the travel agency, but she nevertheless felt that she should make up the loss.  It needs to be said that Mr. Elias was emphatic his in evidence that none of the money was paid over to him. 
           In interview Mrs. Palfreyman denied having told Mrs. Senior that in addition to the £343, she had kept £200 to pay the travel agency. She said she only agreed to pay the travel agency herself because the money had gone missing and she felt a moral responsibility. She that she had written the cheque for £200 but she denied getting it taken to the travel agency. She agreed that the cheque had not been paid but she attributed this to the fact that she and her husband had closed the account.   She denied that the travel agency had told her that the cheque had bounced. She claimed that there were funds in the account when she drew the cheque on the 18th October. When she was shown copies of bank statements showing the state of the account at that time she claimed that a facility had been agreed to overdraw to the extent of £2,000 and they were within that limit. She accepted that the bank had said on 20th September that the account must be operated in credit, but claimed that they had thereafter written to her offering to reinstate the overdraft to the extent of £2,000, and she said she would produce letters from the bank saying so. All she did produce was an offer from the bank for an overdraft of £2,000 dated 1st September, the offer letter making it plain that it had to be accepted by 15th September.  It was not.
           She and her husband, she said, changed the date on the offer letter, i.e. the date under the bank official's signature, from 1st September to 1st October.  She said that it had been signed either by her, or by her husband, or both, on 1st October, and she claimed that this was in accordance with an agreement made over the telephone with the bank. 
           The bank official who was called at the trial denied that any such conversation had taken place. He said the offer letter dated 1st September had never been returned with or without any alteration of the date. 
           At her trial the appellant gave evidence in line with what she had said in interview. 
           The prosecution had been asked before trial to produce the bank statements for the whole period of the account, but the bank official who came to court brought only the statements dated 22nd and 29th October; these showed the balances from 15th to 29th October.  At all times during this period the account was overdrawn. 
           The appellant said in evidence that had earlier statements been produced, they might have shown money being paid into the account, and defence counsel complained about the fact that these earlier statements had not been produced. 
           In his summing‑up the judge drew a distinction between counts 1 and 2. This was that the bank official's evidence could only help the jury on the question of dishonesty on Count 2 because the dates when the cheque was written and taken to the travel agency were known: 18th and 21st October.  In relation to Count 1 he said that, even if the jury should be sure that she had appropriated the £200, it could not be shown when she had done so, and, thus, he suggested, there was no evidence about the state of her finances at the time of the appropriation. So the bank official's evidence could not assist on the question of her honesty or dishonesty at the time of any such appropriation. 
           Various grounds of appeal have been taken in the notice of appeal, but the arguments today have concentrated upon the judge's directions about the necessary state of mind of which the jury would have to be sure before they could convict the appellant on the second count. 
           In relation to the first count of theft, he told them that the question of dishonesty had to be judged by the simple application of the ordinary standards of reasonable and decent people.  He said that he could not help the jury any further than that. When he came to deal with the essential elements of Count 2, he said this: 
		"Count 2, attempting dishonestly to obtain services from Co-op Travel by deception.  First, "obtaining services" includes inducing Co-op Travel to produce the holiday on the understanding that it will be paid for.  There is no dispute about that.  Secondly, "by deception", that has to be proved.  A cheque handed over in payment represents, that says of itself, "I am a good and valid order to the bank I am written on to pay this amount - £200 here - on first presentation."  That is what a cheque means. That is both law and common sense. If you pay by cheque that is what you are saying by handing the cheque over.  "I am a good and valid order, the bank will pay this amount when it is presented to them." Deception is making a false representation which operates on the mind of the person to whom the representation is made, and a cheque does all that.
			But do not lose sight of it:  Count 2, attempting dishonestly to obtain services. So, dishonesty is again an essential ingredient.  You apply the same ordinary standards of ordinary decent people.  And note particularly, this was not a full offence being committed because it was prevented by the Co‑op Travel Service." 
 
           He went on to remind them that the cheque had not been paid on presentation. He then told the jury what an attempt was, and concluded by saying "The dishonesty, I say, depends on all of the circumstances and you simply apply those standards. 
           What those directions did not say was the following.  In relation to the defendant's state of mind, you cannot convict her unless you are sure that at the time the cheque was presented to the travel agency she knew, or at least believed, that it would not be met on presentation, and that means that you must be sure of two things: first, that she knew, or at least believed, that the account was not in credit and would not be in credit when the cheque was presented, and, secondly, that she knew or believed that the bank had not granted any facility to overdraw. 
           The nearest the judge came to telling the jury that they had to be sure of those elements before they could convict was when he was reviewing the evidence of the bank official and said:
		"Is it possible that Mrs. Palfreyman believed that the cheque for £200 delivered on 21st October was a good and valid order and would be met on first representation in the light of that list?"
 
That list, we interpreted, was a list of unpaid items which the bank had prepared and sent to Mr. and Mrs. Palfreyman. Continuing, the judge said:
		"The obvious answer is, "Certainly not."  But Mrs. Palfreyman says, and her case is, that she did believe that it would be met because she says a further overdraft had been agreed."

		He went on to refer to the evidence that she had given about the offer of a further overdraft dated 1st September which she or her husband had, she said, altered as a result of a conversation on 1st October with the bank. 
           Counsel for the Crown submits that those remarks were sufficient to alert the jury to that of which they had to be sure in relation to Mrs. Palfreyman's state of mind. 
           We do not accept that submission. The evidence given in this case was of some complexity. Mrs. Palfreyman had concentrated in her evidence upon her assertions that the bank had agreed to continue to provide overdraft facilities, but she also said in evidence something which suggested that she believed, or may have believed, that the account was sufficiently in credit to enable the £200 to be paid. In our view, the judge, not when reviewing the evidence, but when recounting to the jury the essential elements of which they had to be sure, should have spelt out a direction on the lines we have indicated. He did not do so.  In our view, therefore, the conviction is unsafe and the appeal against it must be allowed. 
           In the circumstances, it is not necessary to refer to the other grounds of appeal which were advanced. 
 
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