No: 200003306/Y4
Neutral Citation Number: [2002] EWCA Crim 1166
IN THE COURT OF APPEAL
CRIMINAL DIVISION
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Monday 29th April 2002
B E F O R E :

THE VICE PRESIDENT
(LORD JUSTICE ROSE)

MR JUSTICE MCKINNON

and

MR JUSTICE POOLE

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R E G I N A

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WILLIAM GARNER

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040   Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR G GRAY QC appeared on behalf of the APPELLANT
MR A GEE QC appeared on behalf of the CROWN

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JUDGMENT
1.	THE VICE PRESIDENT: On 14th September 1999, at Manchester Crown Court, following a trial before His Honour Judge Humphries, this appellant was convicted on three counts of obtaining by deception, acquitted on a fourth and sentenced to 6 months' imprisonment concurrently on all three counts. The count on which he was acquitted related to a man said to be called Thorn, who, it appeared, had given the appellant a cheque, providing the appellant, it may be, with some evidence of Thorn's existence. To the circumstances of the three counts on which he was convicted we shall come in a moment.
2.	He appeals against conviction by virtue of a reference to this Court by the Criminal Cases Review Commission, under section 9 of the Criminal Appeal Act 1995. Following his trial, he sought leave to appeal against conviction, which was refused by the Single Judge. He then renewed his application for leave to appeal to the Full Court.
3.	The grounds of appeal were that the trial judge had failed to emphasise sufficiently his good character and the lack of motive for the commission of the offences, and that there was new evidence available, in particular, from a Mr Tonay. Also there was evidence that the appellant, his firm and his mother were substantial shareholders in the Britannia Building Society which, as will emerge, were the victims of count 1. There was evidence that No 59 Toxteth Street Manchester, the property involved, as will emerge, in count 1, was later sold by a Patrick Martin, so that the Britannia mortgage was paid in full, and it was also said that there was evidence available in relation to the transfer of 84 Egerton Road, which was the subject of count 2. By reason of these alleged misdirections and the availability of new evidence it was said that the appellant's conviction was unsafe and, in terms of the then Appeal Act, unsatisfactory.
4.	On 12th March 1992, a differently constituted division of this Court, consisting of Steyn LJ (as he then was) Turner J and Morland J, on consideration of the papers alone, no counsel appearing, refused the renewed application for leave to appeal, and did so, as appears from page 1H of the transcript of Morland J's judgment, in these terms:
“Each member of the court has carefully read the judge's summing-up. In our judgment it cannot be criticised. It correctly directed the jury as to the law and fairly summarised the case for the Crown and for the appellant. The jury by their verdicts must have concluded that the appellant knew full well of Mr Tonay's dishonesty when he, the appellant, was acting for Mr Tonay in the three transactions. Each member of the court has considered the grounds of appeal and the supplementary grounds settled by the appellant and the appellant's correspondence.
In our judgment there are no reasonably arguable grounds....” 
5.	Thereafter, in 1995, the appellant petitioned the Home Secretary under the procedure then prevailing, which was capable of enabling a conviction to be referred back to this Court. In due course, the papers on that petition were passed to the Criminal Cases Review Commission.
6.	The Commission considered the complaints which were voiced in the petition to the Home Secretary and, in particular, a complaint by the appellant that he had been inadequately represented at trial, in relation to the preparation and presentation of his case. It was also said that the judge's summing-up was inadequate and that there was fresh evidence which cast doubt upon the safety of the conviction.
7.	It is to be noted that many, although not quite all, of the grounds of appeal now advanced to this Court appeared in the complaint considered by the Criminal Cases Review Commission. They, for reasons which it is unnecessary to rehearse, concluded that there was no substance in any of its complaints made under those three general headings. 
8.	The Commission did, however, conclude, although this had not been a matter raised by the appellant, or on his behalf, that, in view of the decision of the House of Lords in R v Preddy [1996] AC 851, there was a matter properly referable to this Court, namely that the appellant, under the law as it now is as a result of Preddy, would not have been susceptible to conviction for offences of obtaining by deception. But, as the Commission pointed out, it would have been open to the Court of Appeal (Criminal Division) to substitute convictions of a different offence other than obtaining by deception, for example, obtaining services by deception, contrary to section 1(1) of the Theft Act 1978, or procuring the execution of a valuable security by deception, contrary to section 20(2) of the Theft Act 1968. The Commission, therefore thought it right to refer this case to this Court because, if alternative verdicts were to be substituted, that would be a matter for this Court and not for the Commission.
9.	Before this Court, however, Mr Gilbert Gray QC indicated, in his strikingly brief skeleton argument, that he would not be pursuing the Preddy arguments and, that being so, it is unnecessary for this Court to give any further consideration to that aspect of the matter which, as we have said, was the only aspect which the Commission thought worthy of consideration by this Court.
10.	Of course, by virtue of section 14(5) of the Criminal Appeal Act 1995, the somewhat curious situation arises that, once a case has been referred to this Court by the Commission and, in consequence, is treated as an appeal, it is open to an appellant to argue any ground, once the matter has been referred. An appellant is not limited to those grounds on which the Commission refers the case. Accordingly, Mr Gray has advanced other grounds, to which in a moment we shall come.
11.	In order to set his submissions in context, it is necessary, briefly, to rehearse the facts giving rise to the appellant's conviction by the jury. The appellant had been a solicitor for over 30 years, and was of previous good character. He had two co-accused, Anthony Tonay and Brian Dewsbury. Tonay, as the jury trying the appellant knew, had pleaded guilty to a number of counts of obtaining property by deception, including those involving the appellant.
12.	The case involved fraudulent mortgage applications made to building societies, by Tonay, for funds to buy houses in Greater Manchester. Tonay made his applications for that purpose in false names: Martin, in count 1; Gasden, in count 2; Keogh, in count 5 and Thorn, to which we have earlier referred, in count 4. Tonay gave false information in those applications as to his status and employment.
13.	It was the Crown's case against the appellant that he knew perfectly well of Tonay's dishonesty, and helped him, by acting as his solicitor, in the mortgage and property transactions which resulted from Tonay's fraudulent applications.
14.	At the heart of the prosecution case were a number of documents which were relied upon as demonstrating not only a connection between the appellant and Tonay, but, it was said, a necessary knowledge, on the appellant's part, of Tonay's dishonesty and therefore, participation in that dishonesty by the appellant.
15.	The appellant's case, on the other hand, was that he never knew that Tonay was using false names, still less did he know that he was acting dishonestly. He, the appellant, was gullible and had been conned by Tonay.
16.	It was pointed out on the appellant's behalf that he had not destroyed any of the documents, incriminating as they were, according to the prosecution. There were no false attendance notes on the appellant's files, and his files were open for all to see by secretaries, the accountant, partners and anyone else who dealt with the files, when, in particular, the appellant was on holiday. The crucial question, it will be apparent, was whether the appellant was acting dishonestly.
17.	In relation to count 1, the co-accused, Dewsbury, made a false mortgage application to the Britannia Building Society for £12,000, in the name of Patrick Martin which, as we have said, was one of Tonay's aliases. In consequence, the building society paid the money sought to the appellant, who acted for Tonay, and the purchase was completed by the appellant in the name of Martin. There was a file, in the appellant's office, marked with the name Patrick Martin and dealing with the purchase of 59 Toxteth Street. There was also a note on the file, reading “attending Patrick Martin, Don, who is buying 59 Toxteth Street”. It was the prosecution case that the note referred to Tonay. The appellant agreed that he had never spoken to Patrick Martin but, he said, Tonay had telephoned him on Martin's behalf. It is also to be noted that the note, in relation to Martin, described his address as “said to be” at a particular address. On the same file, there was a letter from Tonay, writing to the appellant, asking for the money and indicating that Tonay was Martin rather than that he was acting on the authority of Martin. There was another note, indicating that a debt of £27 had been transferred from Martin to Gasden, who figured in count 2, on the instructions of Tonay. Not only had the appellant never spoken to Martin, but it also appeared that the appellant had never taken instructions from him, in writing, or otherwise, nor ever received a letter from him. There was simply no evidence that Martin existed.
18.	Count 2 related to 84 Egerton Road, Manchester. Again, Dewsbury made a false mortgage application to the Britannia building society, for £30,000, in the name of George Gasden, another of Tonay's aliases. Tonay, by his plea, had admitted the deception involved in this count. There was a file recovered from the appellant's office, relating to Martin and Toxteth Square, on which there was a letter addressed to “Dear Bill”, that is the appellant, and signed “Ton”, that is Tonay, asking for money to help Tonay to buy 84 Egerton Road. There was another attendance note by the appellant, on the Gasden file, which read “Don Tonay buying 84 Egerton Road, south” and that was followed by the name “Gasden”. In due course, Tonay sent the appellant a cheque for £500 for 84 Egerton Road, saying that the property was to be bought in the name of George Gasden. The appellant replied to that letter, to Tonay's home address, but he addressed the letter “Dear George”. Later, the appellant prepared a bill for Gasden, and sent it, with a covering letter, to Tonay. The bill indicated that the appellant had witnessed Gasden's signature on the mortgage but Gasden had not been there, as the appellant was to admit, when he purported to witness his signature.
19.	There was further evidence that money from the subsequent sale at a profit of Egerton Road was use to pay Tonay's debts, there being no apparent reasons why Gasden would want to pay Tonay's debts, if indeed Gasden existed.
20.	Count 5 related to 103 Queens Road, Oldham. A false application was made to the Alliance & Leicester building society, this time in the name of Thomas Keogh which Tonay admitted was him. The appellant had no contact with Keogh but was, as in relation to the other transactions, given instructions by Tonay purportedly on behalf of Keogh.
21.	The appellant gave evidence in relation to count 1. He admitted that the attendance note in respect of Martin was not 100% accurate, the transaction had in fact been done through Tonay on the telephone and he, the appellant, believed Tonay was acting for Martin. He denied that the notes suggested that he knew perfectly well that Tonay and Martin were the same person. 
22.	As to count 2, he denied that the attendance note showed that he knew Tonay was buying Egerton Road in the name of Gasden. He said he believed that Tonay, from whom he had obtained his instructions, was acting for Gasden, and he sent the bill to Tonay, because he knew that he would forward it to Gasden. The mortgage deed, purportedly signed in the appellant's presence, had been signed because the appellant had a chain of people waiting to see him and he suddenly realised that the document, purportedly signed by Gasden, had not been witnessed and so he, the appellant, witnessed it. He accepted that he should never have done that, but he said he had not been dishonest in doing so. He denied knowing that Tonay was Gasden.
23.	As to count 3, the appellant agreed that he had never met or spoken to Keogh, and that all the instructions in relation to the matter had come from Tonay. Again, he had witnessed the signature on the deed, when Keogh was not there. Again, the explanation was that he was working under pressure. He agreed, in cross-examination, that it had crossed his mind, towards the end of their dealings, that Tonay might have been using fictitious names to acquire more than one mortgage. But, he said, he trusted Tonay, who had conned him and he would never have kept the various documents if he had been acting dishonestly. He had, at no stage, made any profit from these events.
24.	On behalf of the appellant, Mr Gray QC submits, first, that the conduct of the appellant's legal defence team was fundamentally flawed and Wednesbury unreasonable. In particular, they had failed to call any witnesses as to the appellant's good character, when an abundance of such witnesses, particularly lawyers, solicitors, barristers and judges could have given evidence on the appellant's behalf. So, although the jury knew that the appellant had been a solicitor in practice for more than 30 years and had no previous convictions, they might have thought that the judge's reference in his summing-up to the absence of previous convictions meant merely that the appellant had never been found out. That was a particular risk, submitted Mr Gray, at the time of the appellant's trial, 1990, because of the considerable number of solicitors who were, up and down the country, at that time, being charged with offences arising from participation in fraudulent mortgage applications.
25.	Mr Gray submits that a number of statements should have been obtained for the purpose of trial and were not and a number of witnesses should have been called on behalf of the defence, who were not. Those witnesses, included the co-accused, Tonay, a friend of Tonay, called Arrowsmith, a number of solicitors identified in the grounds, and the appellant's wife, who could have spoken as to his state of mind at the relevant time. It was also suggested, although Mr Gray did not elaborate on this in his oral submissions, that a doctor could also have been called in relation to the appellant's state of mind.
26.	It is unnecessary to examine each of those potential witnesses in detail, although it is perhaps worth commenting that the appellant's wife and Dr Caldwell give rather different accounts as to the appellant's state of mind.
27.	The problem, in relation to calling Tonay, who has now since died, is that he was a professional criminal. It seems unlikely that he would have inspired the jury with confidence in his credibility, quite apart from the fact that what he might have said might not have been consistent with the appellant's defence was: the appellant claimed that Tonay was a man who had conned him and it might have been thought somewhat inconsistent to call Tonay as a witness on whom the jury could place reliance.
28.	It is unnecessary to deal with the other potential witnesses identified in paragraph B of the grounds because, in our judgment, even on the assumption that it would have been sensible to call them, the fact that they were not called cannot, in our judgment, begin to sustain the suggestion that their absence renders the appellant's conviction unsafe.
29.	Criticism is also made in the grounds of the conduct of the appellant's solicitor, in particular, in failing to respond to certain correspondence and otherwise. In our judgment, there is nothing in those complaints which could be regarded as rendering the appellant's conviction unsafe. In particular we, like the Criminal Cases Review Commission, reject the suggestion that there was any improper conflict of interest, so far as the appellant's solicitor was concerned, to be found in the fact that he had, at an earlier time, acted for Tonay in connection with property transactions.
30.	The complaint is made that the judge's summing-up was defective in a number of respects. First, the judge should not have introduced the word “reckless” as he did in the course of his direction at page 5E, and should not have gone on to tell the jury not to bother too much about whether a deception was deliberate or reckless. It is also submitted that this was a case in which the judge should have given the jury a directions as to dishonesty, in accordance with R v Ghosh 75 Cr App R 154. It is said that the direction as to character, which appeared at page 9G of the transcript of the summing-up, albeit that it dealt with both limbs of the relevant direction, according to R v Vye 97 Cr App R(S) 134, that is to say, both credit and propensity, was inadequate because the reference to the defendant having “no previous convictions” diminished the force of that direction. Had evidence of a positive nature as to the appellant's good character been called, the learned judge could have given a stronger direction by reference to good character than he did. It is to be pointed out that at page 24F, the judge said this:
“Mr Garner can say, 'My account to you now is given on oath and is substantially the same as I told the police in interview, which you can look at. There is no evidence that I have had any profit. I have a good character. I wouldn't be likely to get in this.” 
31.	The impact of that, submits Mr Gray, is diminished because those words were put in the mouth of the appellant rather than forming part of the legal direction which, at an earlier stage, the judge had given.
32.	It is also submitted by Mr Gray that the requirement for a Ghosh direction was underlined because the appellant's case was that he was entitled not to suspect dishonesty. The estate agents letters had confirmed transactions, the building society's issue of mortgage instructions would have required them to investigate the credit worthiness of those applying, the clients that obtained life insurance policies after attendance for medical examination, and Thorn and Keogh both had bank accounts which must have meant that the banks were satisfied of their identity and status.
33.	Mr Gray accepts that there was some reference to these matters, at page 9C, where the building society is spoken of as “obviously interested in knowing who is the buyer or borrower” and at page 24B, where there is a further reference to building societies normally making enquiries, so, Mr Garner could validly say why should not he, in consequence, become increasingly confident.
34.	On behalf of the Crown, Mr Gee QC submits that the issue in this case was whether or not the appellant had been conned by Tonay, or was a willing and dishonest partner to Tonay's deception. As to that, documentation, to which we have earlier referred, was at the heart of the case. Mr Gee, in that context, poses the question: how would more knowledge of the defendant's good character have assisted the jury? He points out that a lawyer called to give evidence of character, would have been susceptible to cross-examination on the documents which he or she had probably not previously seen, as to the propriety of doing such things as witnessing the signature of a person who you have not seen signing the document.
35.	As to the good character direction, Mr Gee submits that it was entirely appropriate. It was not devalued by the reference to good character being cast in the lips of the appellant. No Ghosh direction was called for: the defendant was not saying that others might not have regarded his conduct as dishonest; he was saying: “I was not dishonest”.
36.	The reference to “reckless”, Mr Gee submits, has to be looked at in the light of the summing-up as a whole. If one refers to the passages at page 2C, 5E-6B, 7C, 10C-D and 11B-G, which it is unnecessary to rehearse, recklessness was simply never left to the jury as an issue in the case. The issue for the jury was not the way in which representations were made, whether deliberately or recklessly, but whether the appellant was dishonest. The judge reminded the jury that there was no profit to the appellant, and no concealment by him of any of the documentation on which the prosecution relied.
37.	As to the criticisms of those who represented the appellant at trial, we agree with the view expressed by the Criminal Cases Review Commission that there is no sustainable criticism capable of being made. No doubt, some counsel, in a case of this kind, would have thought it wise to call evidence of positive good character. Equally, some counsel would have thought, particularly as such evidence would come mainly from lawyers, that that would be very unwise because of the vulnerability of such witness to cross-examine on the documentation in the case.
38.	The good character of the appellant and the many years which he had practised as a solicitor were known to the jury and the judge properly directed the jury as to that. In those circumstances, even if, which we do not accept, sustainable criticism can be made of the appellant's lawyers for not calling positive good character evidence, that failure cannot possibly have had any effect on the safety of the conviction in view of the way in which the jury were directed on this aspect of the case, in view of what they knew about the appellant and in view of the nature and strength of the evidence against him.
39.	So far as the possibility of fresh evidence is concerned, we have already indicated, without particularising our comments on each of the witnesses proffered, that they were not and are not now capable of giving credible evidence of a kind likely to undermine the safety of the conviction.
40.	As to the summing-up, having looked at the matter, again, carefully, we see no reason at all, despite Mr Gray's attractive submissions, to differ from the views expressed by the highly experienced Court of Appeal (Criminal Division) 10 years ago.
41.	In those circumstances, despite Mr Gray's valiant efforts, this appeal is dismissed.