Case No: 95/2738/Z3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
Royal Courts of Justice
The Strand
London WC2

Date: Tuesday 2nd April 1996

B E F O R E :

LORD JUSTICE ROSE

MR JUSTICE HIDDEN

and

MR JUSTICE BUXTON

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R E G I N A

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VICTOR EDWARD CLARKE

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 831 3183   Fax No: 0171 831 8838
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MR R PARDOE appeared on behalf of the Appellant
MR N SYFRET appeared on behalf of the Crown

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JUDGMENT
(As approved by the Court)

MR JUSTICE BUXTON:  On 29th March 1995 in the Crown Court at Oxford before HHJ Harold Wilson, the appellant, Mr Victor Edward Clarke, pleaded guilty on re‑arraignment, after the jury had been sworn and indeed after a substantial part of the prosecution evidence had been heard, to a single count of obtaining a pecuniary advantage by deception.  There were two other counts on the indictment to which the prosecution, on his plea, offered no further evidence and we need not concern ourselves with them further.  In that same court he was, in due course, sentenced to a period of 140 hours' community service.  He now appeals against conviction on that count with the leave of the single judge.
      The count to which Mr Clarke pleaded was in these terms, and it is important to note the particulars:
"On a day between 10th April 1993 and 31st October 1993 he dishonestly obtained for himself a pecuniary advantage namely that he was given the opportunity to earn remuneration or greater remuneration in an office or employment by deception namely by falsely representing by words and conduct that he was a former police officer of the Fraud Squad and a Court Bailiff." 
      He changed his plea to one of guilty after the judge had given an indication, in circumstances to which we will shortly come, as to how he would direct the jury in connection with the allegation of dishonesty contained in that count and (as a corollary of that  indication) of what evidence might be adduced by the defendant in connection with his defence.
      The prosecution's case was that a lady called Mrs Augar and a number of other persons had lost large sums of money in a fraud committed by a man called James.  In March 1993 the appellant, who was a private investigator, was introduced to Mrs Augar and the other victims by a former and satisfied client of his, and met them as a group in April 1993 with a view to assisting them.  The prosecution case alleged that at that original meeting the appellant made the false representations set out in the indictment.  By the plea that he eventually entered he admits that he did indeed so represent.  The victims alleged that they were deceived by what were in fact misrepresentations by the defendant to that effect, and were thereby persuaded to engage his services to try to trace their missing funds.
      The arrangement was that each member would pay him an annual retainer.  That would enable him to travel abroad in an attempt to trace the money.  It was agreed that he would be paid a flat rate of £100 a day while abroad; expenses were also to be paid.
      The defendant originally maintained, and indeed maintained (we understand it) until the time of the  change of his plea, that he had not made the misrepresentations that were alleged.  He conceded that he had told the members of the consortium for whom he was working that he had worked with the police and that he had employed court bailiffs, but he denied ever saying in terms that he himself had been employed in either of those capacities.  Further, his case was that he had not acted dishonestly in obtaining the employment (by whatever means he might have obtained it), because he genuinely believed that he could carry out the assignment successfully and do the work properly.
      A further part of his case was intended to be that he had made similar representations to other people, not for the purpose of financial or employment gain, but simply as a social matter or as a matter of self‑aggrandisement rather than for any pecuniary motive.  He also sought to adduce evidence that he had indeed done work abroad for the consortium and, when travelling abroad, had been working on their behalf and not improperly or dishonestly taking advantage of the funds that they had placed in his way.
      In the course of the trial questions arose as to the way in which the jury were to be directed by the learned judge on the question of dishonesty, and in connection with the questions that defence counsel might  properly put to prosecution witnesses in connection with the defendant's case of, as it were, lack of dishonesty.  Such issues had implications for the evidence that could properly be adduced by the defendant himself on the question of dishonesty.  This matter was raised by Mr Pardoe, who appeared for Mr Clarke at the trial, as he has appeared before us, on a number of occasions during the trial.
      We have a transcript of one such exchange, where Mr Pardoe asked the judge to explain, or to indicate, the position that he took on those matters.  At page 3 of Volume 1 of the transcript before the court the judge said this:
"If they find that your client said he was a bailiff of the court; that court bailiffs had special and exceptional powers which enabled them to get into bank accounts overseas, which ordinary people did not have, and that he was a former officer of the Fraud Squad.  If they find that he said those things; if they find that those things were lies; if they find that because of those lies he was sent abroad, and financed and funded to go abroad on behalf in particular of Mrs Augar, but also of the others, then the offence is made out.  The fact that he did work on their behalf, for which he had been sent abroad, is neither here nor there so far as the question of guilt is concerned.  It does go, or may well go, to mitigation in the event of a conviction. That is how I propose to sum up.
 
MR PARDOE:  I am sorry to press it but I do not want there to be any further misunderstanding between your Honour and I, because it is not productive, but it must follow from that formulation that your Honour takes the view that his belief, at the time that the representation was made, in his ability to in fact do the job is immaterial?
 
 JUDGE WILSON:  That again is neither here nor there."
We should say that, prior to those interchanges, the question of dishonesty had been raised.  The Judge had expressed the view that, on the evidence, Mr Clarke had no defence under the case of Ghosh, and the exchange which we have just set out followed that indication.
      In our judgement a correct interpretation of what the judge said at that point was that he thought that in law it was necessarily dishonest to tell lies to obtain employment, even though the person seeking the employment thought that he could do the job properly and would fully work and properly work for the remuneration paid; as the judge said the latter issues go to mitigation only.  As a corollary of that, although the point was not specifically mentioned during those exchanges, it seems to this Court that the evidence that was sought to be adduced by the defendant, to which we have earlier referred, was necessarily indicated by the judge not to be admissible, since it did not go to any issue before the jury.
      By so expressing his view, in our judgement the judge limited the effect and range of the requirement of dishonesty as set out in section 16 of the Theft Act 1968. On the basis of that indication (it was perhaps not a formal ruling but it was certainly an indication that  Mr Pardoe had sought and that the judge gave him) Mr Clarke changed his plea to one of guilty.  The judge further indicated the basis upon which he would have proceeded had Mr Clarke not changed his plea when he explained to the jury, when they returned to court, what had happened and the reasons for what had occurred.  He told them (at the second volume of the transcript before us) how he would have directed them had the matter remained in their charge; he said this:
"...in a sentence, I would have told you that you would have to be sure that he had said that he was a bailiff with special powers; that he had formerly been a police fraud officer; that those things were lies and that he knew they were lies; that the people you were hearing from had acted on them, and that is the end of the matter.  I would also have told you that the fact that he had really believed by telling the lies and getting the job he would be able to do the job was neither here nor there.  That might go to mitigation of sentence but it was nothing to do with what you have to do, and that would have been my direction to you." 
      That indication by the judge, clearly and helpfully set out, amounts to saying that on the evidence, actual or potential, to be adduced by the defendant it was not possible in law for him to claim that he had not acted dishonestly; in other words, in the light of the direction the judge intended to give, that issue of dishonesty was, on the evidence intended to be adduced, withdrawn from the jury.
      We have been referred to the case of Ghosh 75  Cr App R 154, where the requirements for the question of whether a person has acted dishonestly (which of course has to be proved by the prosecution) are set out:  the first issue is whether what he has done is dishonest by ordinary standards; and secondly, whether he must have realised it was dishonest by such standards even though he thinks himself to be morally justified.
      The effect of the judge's ruling or indication in this case was that in deciding question one, the question of dishonesty by ordinary standards, the only fact that was to be considered was the fact that he had lied to get the job, and not his belief that he could or would do the job properly or any more general claims about his intentions; nor indeed the matter of whether he had acted for self‑aggrandisement and not for pecuniary motive.  In effect the second question was not even considered.
      Judging how this Court should approach this matter, we have been helpfully taken to an earlier authority in this Court, O'Connell (1992) 94 Cr App R 33.  The facts, very briefly, were that the appellant and his wife made applications to building societies for mortgages to buy residential property which they let to obtain a rental income that covered most of the mortgage payments.  The properties were later sold to take  advantages of increases in value.  A sum of £1.5 million was made by the two defendants.  To avoid the fact that the building societies did not make such advances for commercial purposes or for trading purposes the appellant and his wife had given false particulars on the mortgage application forms.  When that came to light they were charged with obtaining property, the building societies' cheques, by deception.  The appellant gave evidence that he did not regard his actions as dishonest because the building societies' interests were fully protected and he had had no intention of depriving them permanently of the money lent.  The prosecution objected to the admissibility of that evidence.  The trial judge accepted that submission and ruled accordingly.  As in the case before us, the appellant then changed his plea to guilty.  His complaint about the conviction was that his evidence had been relevant to the issue of dishonesty and the judge's ruling to exclude it was therefore wrong.
      In giving the judgment of this Court Kennedy J drew attention not only to Ghosh, but also to the earlier case of Feely 57 Cr App R 512, where this Court had held that, in relation to a charge of theft where the issue of dishonesty is raised, it must be left to the jury.  He then went on as follows: 
"...it is by no means in every case involving dishonesty that a Ghosh direction is necessary.  But if dishonesty is the issue, even though deception has been proved, a judge should be slow to seek to constrain a defendant as to how he puts his case.  The attempt to show that the deception was a white lie may sound far fetched.  But unless the evidence is plainly irrelevant to the issue of dishonesty, it should not be excluded." 
and further on, on the facts of that case:
"No one suggests that an intention to repay or to perform contractual obligations can of itself amount to a defence.  But it may be some evidence of dishonesty: just as a demonstrated intention not to perform those obligations would be some evidence of dishonesty." 
      In the present case we appreciate the judge's reserve about the defence of dishonesty that was put before him.  The argument before him, which we accept was conducted under informal circumstances, did not put the appellant's case clearly under either question one or question two of Ghosh.  But adopting the broad view that was adopted by this Court in O'Connell, in our judgment the defendant's case on dishonesty was unduly constrained by the judge's ruling that in effect excluded evidence of his belief as to his ability to perform the work and the evidence that we are told could also be adduced as to his ability to do that.  It also excluded the actual evidence that was eventually accepted (we are told) as part of his mitigation , that he had in fact performed the work.  That factor, we remind ourselves, was referred to by Kennedy J in  O'Connell as something that could amount to evidence of honesty.  Those issues were withdrawn from the jury when they should not have been in the light of the guidance given in the cases of Feely and Ghosh.
      The effect of that was, in our judgement, that when the defendant entered his plea to this count, he pleaded, firstly, as to the actus reus, and secondly, to the issue of dishonesty:  but to the issue of dishonesty, as limited by the judge's ruling on the relevance of his evidence and the factors that the jury could consider.  In our judgement, that ruling or indication unduly narrowed and limited the potential defence in connection with dishonesty and, in those circumstances, the plea that he entered was entered on a basis that makes this conviction unsafe.
      Had the case proceeded it is not possible, in our judgement, to say with any sufficient degree of confidence what the result would have been or what the jury would have concluded had they been allowed to hear the evidence that the defendant wished to put before them.  It is therefore not possible, in our view, to say the conviction is nonetheless safe, despite the error that was originally made.  For those reasons, therefore, this appeal is allowed and this conviction quashed.
LORD JUSTICE ROSE:  Mr Syfret, in view of the age of these matters, we take it you do not invite the Court to  order a retrial?
 
MR SYFRET:  Indeed, my Lord.
 
LORD JUSTICE ROSE:  Thank you.