Neutral Citation Number: [2008] EWCA Crim 1745
No: 2008/0902/B3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 16 July 2008
 
B e f o r e:
THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
(LORD JUSTICE LATHAM) 
MR JUSTICE GRIGSON 
HIS HONOUR JUDGE PERT QC
(Sitting as a Judge of the CACD) 
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R E G I N A 

v 

NSANGU LAKU
 
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Mr R Furlong appeared on behalf of the Appellant
Mr A Rooke appeared on behalf of the Crown
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J U D G M E N T
1.	THE VICE PRESIDENT:  On 14th December 2007 at the Crown Court at Snaresbrook this appellant was convicted of three counts of making a false representation, contrary to section 111A of the Social Security Administration Act 1992 and three counts of failure to declare a change of circumstances under section 111A(1A) of the same Act.  He was sentenced on 23rd January 2008 to 12 months' imprisonment on each of the counts to run concurrently.  He was also convicted of money laundering and sentenced at the same time to 18 months' imprisonment.  We are not concerned with that conviction or that sentence.  He appeals against conviction in relation to the indictment relating to false representations by leave of the single judge.
2.	The indictment related to the representations he made to the Borough of Newham and to the Department for Work and Pensions in order to obtain relevant benefits.  The charges were based upon the fact that he failed to disclose that he had capital in excess of the prescribed limits.  The fact was that at all relevant times he had significant bank accounts or bonds in which very substantial capital sums were deposited, well in excess of the relevant prescribed limits and in relation to counts 1, 2 and 3, if they were established, he was not in a position to claim any entitlement.  Counts 4, 5 and 6 alleged that in later statements he failed to notify the department and the council of changes in circumstances which could affect his entitlement.  
3.	This court has held in the case of Mote that in such circumstances where there was originally no entitlement any subsequent documentation that comes into existence cannot bring a relevant change of circumstances sufficient to justify a count in the indictment such as those which were added in this case.  That is now accepted by the respondent and accordingly as far as counts 4, 5 and 6, which are the counts which charged a failure to notify a relevant change of circumstances, the convictions on those counts must be quashed for that reason.
4.	Mr Furlong on behalf of the appellant submits that the convictions on counts 1, 2 and 3 are also unsafe, essentially for two reasons.  First, because the judge failed to give to the jury any direction which could help them as to how they should treat the fact that in interview the appellant on eleven occasions indicated that he was not prepared to comment in relation to a question at that time.  
5.	In order to put the matter into context we should say just a little more about the underlying facts.  
6.	As we have indicated, the basic prosecution case was that this appellant had the accounts and bonds which in total amounted at the relevant time to more than £90,000.  It was the defendant's case that when he filled in the forms in which he failed to disclose those accounts he did not consider that the forms required him to disclose those accounts because although those accounts were nominally his, they were not accounts which were for his benefit; they contained monies which had been supplied to him by, amongst others, his father for him to utilise at his father's instructions.  That was the defence which was put to the jury and which ultimately the jury clearly disbelieved.  
7.	In interview he was asked on a number of occasions, as might be imagined, about these accounts and why he had not disclosed their existence.  Whilst generally he gave an account which was similar to the account that he gave to the jury, in answer to a number of questions he said that he was not going to make any further comment "at present".
8.	The interviews were put to the jury in an unexpurgated form ‑ in other words the "no comment" answers were before the jury ‑ and although prosecuting counsel did not, as we understand it, ask any questions of the appellant during cross‑examination as to that, they remained essentially therefore as part of the material which the jury had to consider.  
9.	Before the summing‑up counsel for the appellant elicited from the judge that he was not going to give any direction under section 34 that the jury would be entitled to consider those no comment answers as part of the material against the appellant and accordingly he submitted that the jury should be directed in accordance with the principles set out by this court in the case of McGarry that the jury should not draw any adverse inferences from those no comment answers.  Mr Furlong before us accepts that the McGarry principle is usually prayed in aid where the defendant in a case simply makes a no comment interview, but he submits that where, as here, no comment was made to a number of what might be considered by the jury to be pertinent questions, there is the same risk that unless the jury is instructed not to draw an adverse inference it might draw an adverse inference in circumstances where the judge has himself concluded that no direction indicating that they could draw an adverse inference should in fact be given.  
10.	On behalf of the respondent, Mr Rooke accepts that perhaps it would have been better, given that the judge took the view that he did about these answers, for the judge to given some direction in relation to the no comment answers; but he submits the judge was perfectly entitled to take the view in this case, as he did, that to have given the jury any direction in relation to those no comment answers might have drawn attention to them in a way which could have been to the appellant's disadvantage.  
11.	The fact is that in this case the evidence against the appellant, who gave evidence and his evidence was therefore capable of full evaluation by the jury, was overwhelming against him.  It seems to us that in the circumstances the question that we have to ask ourselves in relation to this aspect of the case is: "Do we consider that the fact that the judge did not give the jury any direction in relation to these answers rendered the verdicts unsafe?"  We have come to the firm conclusion that there is no reason to believe that the way in which the matter was dealt with by the judge renders these verdicts unsafe in that respect and accordingly we dismiss the appeal on that ground.
12.	Mr Furlong secondly put before us a ground of appeal based upon the fact that the judge made certain comments about documents put before the jury by the appellant, particularly from his father, which were comments which were undoubtedly adverse to the appellant and had not been part of the prosecution's case, so that the judge was, as Mr Furlong puts it, descending into the arena in a way which rendered the passages in his summing‑up relating to that material unfair.  
13.	The fact is that the judge undoubtedly did make adverse comments about some of the material which had not been made by the prosecution.  But it was comment which was certainly available to the judge if he considered it appropriate to make it, provided that he made it clear to the jury that it was for the jury to determine what inferences to draw from that material and the mere fact that he (the judge) was making the comment was not in itself material.  The judge did give the jury that standard direction and we do not consider that in those circumstances the jury will have been in any way misled to the extent that the verdict would be unsafe.  The fact is that the comments were perfectly proper comments.  There is no way in our judgment that the fact that the judge made those comments in the circumstances renders the verdicts unsafe.  We accordingly dismiss this appeal.