Case No: 201809409 C4, 201801478 C4
Neutral Citation Number: [2018] EWCA Crim 2486
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT DERBY
His Honour Judge Jonathan Bennett
T20177017
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/11/2018
Before :

THE PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE JEREMY BAKER
and
MR JUSTICE GOOSE

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Between :

	ALAN SHIRT and VIRGINIA SHIRT	Appellants	
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	THE QUEEN	Respondent	

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Graham Arnold for the Appellants
Tony Stanford for the Respondent

Hearing date : 17 October 2018

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Judgment
Sir Brian Leveson P :
1.	On 14 March 2018, in the Crown Court at Derby before His Honour Judge Jonathan Bennett and a jury, Virginia Shirt and Alan Shirt were convicted of conspiracy to commit fraud by making a false representation, contrary to s.2(1) of the Fraud Act 2006. The particulars of the offence on the indictment were as follows:
“Daniel John Davenport, Virginia Shirt, Alan Shirt and Kelly Kushner together with Robert Lane and others between 10th day of August 2014 and 22nd day of April 2016 conspired together to defraud Kieran Clarke Green solicitors by dishonestly making a false representation that a document dated 5 January 2015 and headed Last Will and Testament and which purported to be made by William Bond was a true and genuine document knowing this to be untrue and intending thereby to make a gain for themselves or another”. 
2.	On 17 April 2018 Virginia Shirt was sentenced to 18 months’ imprisonment, whilst Alan Shirt was sentenced to 16 months’ imprisonment. At the same time, Daniel Davenport and Kelly Kushner who had pleaded guilty to the conspiracy on an earlier occasion were sentenced respectively to 12 months’ imprisonment and 9 months’ imprisonment suspended for an operational period of 12 months with a curfew requirement for 3 months. 
3.	Virginia Shirt and Alan Shirt now appeal against their convictions by leave of the single judge. 
The Facts
4.	The background to these convictions is that Virginia Shirt, who is married to Alan Shirt, was the sister of Kate Ashmore who had been the owner of and lived at a property at 47, New Queen Street, Chesterfield. She had a daughter called Jody Davidson who lived at the property with her mother and latterly her own young daughter. Kate Ashmore commenced a relationship with William Bond and he moved into the property. Subsequently his name was placed on the title deeds of the property as joint owner with Kate Ashmore. 
5.	On 10 August 2014, Kate Ashmore died. William Bond continued to live in the property until the date of his death on 29 April 2015. During this period, he continued to see Jody Davidson and acted as a grandfather figure to her young daughter. 
6.	Following William Bond’s death, the appellants took a document which purported to be William Bond’s last will and testament to their own solicitors Messrs Kieran Clarke Green. By that document, Mr Bond bequeathed his estate, including the property, to Jody Davidson.  It was dated 5 January 2015 was made without solicitors on a form available from High Street stationers and contained a signature purporting to be that of William Bond and signed in the presence, as witnesses, of the two co-accused Davenport and Kushner. The executors were named as Alan Shirt and Kate Ashmore’s brother Robert Lane, who has since died. 
7.	William Bond had two adult daughters from a previous relationship, Kathryn Anderson and Sarah Adams. He had been estranged from them for about 20 years prior to Kate Ashmore’s death. However, after her death, he had renewed contact with them. Following his own death, his two daughters doubted the validity of his will and his signature which read “Billy B” and was very different to the formal signature which they had seen used by him on other documentation. 
8.	The appellants were arrested by the police on suspicion of fraud. In their police interviews Alan Shirt made no comment to most questions but asserted that the will had been signed in his presence, whilst Virginia Shirt submitted a prepared statement denying fraud and asserting that the will was genuine. 
The trial
9.	The prosecution case at trial was that although the deceased may have expressed his intention to make a will in favour of Jody Davidson, leaving the property to her, he had not done so.  It was contended that the will was a forgery which the appellants had fabricated in order to ensure that Jody Davidson would inherit the property.  
10.	The defence case at trial, as reflected in the appellants’ Defence Statements, was that the will was genuine and had been signed by the deceased at a meeting which had taken place at his home in the presence of Robert Lane, the co-defendants and the appellants. Moreover, the will was in accordance with their understanding both of Kate Ashmore’s wishes before she died and those expressed by the deceased during his lifetime. 
11.	At the commencement of the trial the prosecution applied to adduce evidence before the jury of the co-accused’s pleas of guilty to the indictment under s. 74(1) of the Police and Criminal Evidence Act 1984 (“the 1984 Act”). It was submitted that it was relevant to prove the existence of a conspiracy. Moreover, it was capable of establishing that the will was a forgery. The prosecution pointed out that the indictment did not allege a closed conspiracy and that although it accepted that the admission of the evidence would cause difficulties for the defence it did not close off their only line of defence, as the prosecution still had to prove that the appellants were a party to the conspiracy. 
12.	The defence objected to the admission of this evidence. It was submitted that the admission of this evidence would have the effect of importing the complicity of the appellants in the conspiracy as the co-defendants must have accepted the falsity of the will. In these circumstances the evidence should be excluded under s. 78 of the 1984 Act. 
13.	The judge ruled in favour of the prosecution and explained his reasons in a subsequent ruling in which he referred to a number of previous cases of this court. He noted that however curious the jury might be as to the position of the co-accused, this was not in itself a reason to permit the evidence to go before the jury, who could be directed not to speculate about the matter. He stated that the cardinal principle for the admissibility of a relevant conviction of a co-accused was whether it necessarily imported the complicity of those on trial. He noted that the indictment did not allege a closed conspiracy involving only the appellants and the co-defendants. Moreover, that in order to convict the appellants, in addition to the existence of a conspiracy, the jury would have to be sure that each of them was a party to such a conspiracy and that they were acting dishonestly when they did so. In the circumstances, the judge ruled that the evidence was relevant to the issue as to the existence of a conspiracy, and that although the admission of the evidence may cause difficulties for the defence it was not unfair. 
14.	The trial proceeded on that basis with the evidence of the co-accused’s pleas was placed before the jury.  In addition, the prosecution relied upon the evidence of the two daughters of the deceased. Kathryn Anderson stated that after Kate Ashmore’s death her father’s life had been somewhat chaotic and he had been drinking a lot. However, he had never mentioned having made a will. Both Kathryn Anderson and her sister Sarah Adams stated that following their father’s death they recalled a conversation with Virginia Shirt in which the appellant had initially asked whether the deceased had made a will and only later asserted that she had his will at her house and that the property had been left to Jody Davidson. 
15.	In addition, there was evidence from Max McMillan, an old friend of the deceased, who said that the deceased had never told him he had made a will and believed that the deceased would have told him if he had made one. He also said that he believed that he had visited the deceased at some point on the afternoon of 5 January 2015 when the will was meant to have been signed by the deceased. 
16.	A witness statement from Jody Davidson was read to the jury in which she stated that she recalled her mother asking her whether she would like to live at the property after her death and telling her that she would be well looked after. However, Jody Davidson stated that she was never aware of the deceased having made a will, nor did the deceased tell her that he had made one. She said that following the deceased’s death she recalled a conversation between the deceased’s sisters and Virginia Shirt in which the sisters had claimed that the property was theirs, whilst the appellant had told them that it wasn’t as the deceased had made a will. 
17.	Of particular importance was the evidence of a handwriting expert, Nichola Musgrave. She examined both the disputed will and handwritten letters which had been written and signed by the deceased. She found significant detailed differences between the writing on the two documents and the signatures which they bore. She was of the opinion that although she could not entirely exclude the deceased having written the main body of the will and the signature purporting to be that of the deceased, there was very strong support for the proposition that both the writing on the will and the signature which it bore were written by some person or persons other than the deceased: this conclusion was expressed from a scale which ranged from conclusive, through very strong, strong, moderately strong, moderate, weak, inconclusive to no support. Moreover, there was moderate support for the proposition that the writing on the will and the signature which it bore were written by the same person who wrote the name and address of Robert Lane as being an executor on the will. 
18.	The jury were provided with details of an email which Virginia Shirt had sent to their solicitors on 24 February 2015, after the date of the purported will but before the deceased’s death, asking for advice on placing an equitable charge on the property because:
 “Bill now has once estranged children and has stopped communicating with us. Therefore it would save a lot of worry as if anything happens to Bill everything that Jo’s mum and my mum worked for will go the wrong way, yet again.”
19.	On the other side, there was also evidence in the form of telephone conversations between the deceased and Robert Lane that the latter had recorded and which the jury heard.  These supported the appellants’ assertion that the deceased had always intended to leave the property to Jody Davidson.
20.	Turning to the evidence of the appellants, Virginia Shirt told the jury that after the deceased’s death she was concerned as to what was going to happen to the property and raised the issue with her brother Robert Lane, as the deceased had always promised to leave the property to Jody Davidson. She said that on the afternoon of 5 January 2015 there was a meeting at the deceased’s home which Robert Lane, the co-accused and the appellants had attended at which the deceased signed the will. However, she didn’t see from where the will had come but assumed that the deceased had produced it himself. 
21.	She said that after the deceased’s death his daughters were asserting that they owned the property and she didn’t recall telling them about the will. She said that the reason she sent the email on 24 February 2015 was because even though by then the deceased had made a will in favour of Jody Davidson, she also knew that he had rekindled his relationship with his daughters and was concerned lest he altered his will in favour of them. 
22.	Alan Shirt provided similar evidence to that of his wife. He said that it was Robert Lane who had told them that the deceased wanted to make a will. He said that whilst they were at the deceased’s home on the afternoon of 5 January 2015 he had written his name and address as one of the executors. He said that he saw the deceased beginning to write part of the will, but he had then looked away to talk to someone and didn’t see what happened after that. However, Alan Shirt said that later on he did see the deceased sign the will. 
23.	There is no criticism of the summing-up. In written directions to the jury the judge informed them of the limited relevance of the evidence of the co-accused’s pleas of guilty namely that,
“The only reason you have been given the information of their guilty pleas is because it is evidence which goes to prove that there was a conspiracy. It does not prove anything else and, apart from that issue, has no bearing on these D’s cases. It can have no bearing on your decision as to whether the prosecution has made you sure of the guilt of these two Ds. The burden of proof, which I mentioned right at the outset, remains on the prosecution to satisfy you, so you are sure, that both these Ds were part of this conspiracy. They must make you sure of all the elements of the offence, about which I am now to embark upon.”
24.	Thereafter the judge directed the jury as to the elements of the conspiracy which was alleged on the indictment, including the element of dishonesty. 
The Appeal
25.	The grounds of appeal are limited to a criticism of the judge’s decision to admit the guilty pleas to the indictment by Davenport and Kushner. It is submitted that the judge erred in law by not exercising his discretion to exclude the evidence under s. 78 of the 1984 Act which has had the result of rendering the appellants’ convictions unsafe. This was on the basis that the only defence being run by the appellants was that the will was genuine and that the admission of the pleas of guilty by those who were said to have witnessed the will proved that it was a forgery. As a result, the effect of admitting the evidence of the guilty pleas was to deprive the appellants of their defence. 
Discussion 
26.	It is common ground that the pleas of Davenport and Kushner fall within s. 74(1) of the 1984 Act so that the critical issue relates to the judge’s decision under s. 78 of the 1984 Act and the fairness of the trial.  In that regard, early decisions on s. 74 spoke of its use “sparingly” (see R v Robertson, R v Golder [1987] QB 920, 85 Cr App R 304), referring specifically to the danger of importing complicity of the person on trial.  Thus in R v O’Connor [1987] 85 Cr App R 298 the court was dealing with a conspiracy between only two men one of whom had pleaded guilty. It was held evidence of that plea at the co-accused’s trial should have been excluded under s.78. It was observed that, 
“Once the conviction was put in evidence, all those details went in as being admitted by Beck. It would be very difficult to contend realistically that a jury would not be entitled to draw the inference from that admission and those details that not only had Beck conspired with O’Connor, but the converse had taken place.”
27.	Moving on, in R v Lunnon [1989] 88 Cr App R 71 the court was dealing with a conspiracy between four individuals one of whom had pleaded guilty. At the trial of the co-accused the evidence of the plea was admitted and the appeal sought to challenge that decision. This court observed that there were two issues for the jury to resolve at the trial, firstly as to whether the prosecution had proved the existence of a conspiracy, and secondly whether the particular accused whose case they were considering was a party to that conspiracy. judge had been careful to direct the jury that the co-accused’s plea was only relevant to the first of these issues and on this basis, there was no unfairness in the admission of the evidence.
28.	In R v Stewart [1998] EWCA Crim 3398 the appellant together with his co-accused was charged with blackmail and robberies relating to one of the co-accused’s customers. The co-accused had pleaded guilty and the judge at trial admitted the evidence of her pleas to the joint offences before the jury. In dismissing the appeal which sought to criticise the judge’s decision, Kennedy LJ observed:
“The fact that having decided as he did, his decision placed the defendant in difficulty, is neither here nor there. The Crown was entitled to have resort to the pleas of HM in order to demonstrate that a robbery, in fact several robberies, and an attempted robbery and a kidnapping had taken place. The defendant’s misfortune was that his particular defence was that no such offences had been committed. But that does not, for a moment, mean that in the context of section 78, because that evidence was admitted before the jury, it had such an adverse effect on the fairness of the proceedings that the court ought not to admit it. As has been said on many occasions, the fairness of the proceedings in the context of section 78, must have regard not only to the interests of a particular defendant, but also the interests of the prosecution and the interests of justice as a whole” 
29.	More recently in R v Denham & Stansfield [2017] 1 Cr App R 7 the court was dealing with conspiracies between four individuals to rape/sexually assault a child. Two of the conspirators had pleaded guilty, whilst the other two stood trial during which they asserted that the electronic communication which lay at the heart of the prosecution case was simply masturbatory material and was not evidence of complicity in the alleged conspiracy. The prosecution sought to adduce evidence of the co-accused’s pleas of guilty. The judge admitted the evidence and the appeal sought to challenge his decision.  Simon LJ put the matter in this way:
“38.  The essential questions raised by this ground of appeal are: first, whether the judge’s approach was wrong in law; and secondly, if not, whether his decision to admit the evidence was nevertheless a decision which can be properly impugned on appeal?
39.  On the first point we are clear that he correctly stated the law which should be applied. The evidence should be excluded if its admission were unfair in the particular circumstances. The admission of prosecution evidence will often raise difficulties for a defence; but it is unfairness to, and not difficulties for, the defence which is key.
40.  On the second point, the decision whether to admit the evidence, although often described as the exercise of a discretion, might be better described as the exercise of a judgment in which a balance has to be struck on the issue of fairness. We mention this because, if it were a pure matter of discretion the basis of challenge to a judge’s decision might be unduly confined. Ultimately the decision whether to admit evidence in these circumstances is either right or wrong, although whether the conviction is safe is another matter. Nevertheless, as the judge noted, correctly in our view, such decisions will necessarily be fact-sensitive, and the judge will be in a particularly good position to assess the fairness in the context of the dynamics of the trial process.”
30.	In the present case, it is important to bear in mind that the judge was asked at the commencement of the trial to rule upon the admissibility of the co-accused’s pleas of guilty to the indictment. In addition to the way in which the matter was being articulated by counsel on behalf of the appellants as reflected in his written submissions, the only other material which was before the judge was the responses by the appellants in their police interviews together with the contents of their Defence Statements.  It is clear from these that the factual basis upon which the appellant’s case had been set out at that stage was extremely limited, namely that the will had been signed by the deceased in the presence of themselves and the others named on the indictment. 
31.	Although it may well be that at the heart of the defence case lay the assertion that the will was genuine, not only was it being inferentially asserted that because the will was in accordance with the deceased’s intentions the appellants lacked dishonesty, but they also denied being part of any conspiracy. Thus, it was necessary not only for the prosecution to prove that the will was a forgery, that the appellants were a knowing party to a conspiracy to use the will to defraud the solicitors, but that in doing so they were acting dishonestly. 
32.	Clearly one of the issues which the jury were going to have to consider, as appropriately directed by the judge in his summing-up, was whether they were sure that a conspiracy to defraud existed, before turning to the issue of whether the particular appellant whose case they were considering was a knowing party to the conspiracy. It is readily apparent that the co-accused’s pleas of guilty to the indictment was relevant to the first of these issues, and therefore prima facie admissible as such under s.74(1) of the 1984 Act. 
33.	As the judge recognised the real issue for him to determine however was whether, pursuant to s. 78 of the 1984 Act, the introduction of that evidence would have such an adverse effect on the fairness of the trial that he ought not to admit it. In this regard the judge recognised that the introduction of this evidence would detrimentally impact upon the ability of the appellant’s assertion that the will was genuine although the prosecution’s expert handwriting evidence alone caused formidable difficulties to the defence on this issue. However, at the time that he was being asked to make his ruling it is apparent that there were other significant lines of potential defence for the appellants (whether or not that was how they sought to advance their case) namely, that regardless of whether the will was a forgery, neither of them were a knowing party to any conspiracy and that in any event they were not acting dishonestly. 
34.	In relation to the first of these issues it was not known what the appellants would be asserting in evidence over and above the contents of the documentation to which we have just referred. Therefore although the appellants had asserted that they were present when the will had been signed by the deceased and the co-accused, they had otherwise been silent as to the detailed circumstances surrounding the making of the will, including such matters as to how the parties came to be present, who had provided the pro-forma document, who had written the body of the will and when, and what had been said by the parties in their differing roles.  Furthermore, there was the issue of dishonesty which had been raised by the appellants. 
35.	In these circumstances although we, as the judge did, recognise that the introduction of the evidence of the co-accused’s pleas raised difficulties for the defence on the issue of the genuineness of the will, it did not have a similar impact upon the other issues which the jury had to resolve and overall we, like the judge, are not persuaded that the introduction of this evidence unfairly impacted on the interests of the appellants at trial. 
36.	It may be that as the trial unfolded and in particular after the appellants gave evidence that the issues became more crystallised. However, even at that stage we do not consider that the introduction of the co-accused’s pleas rendered the trial unfair. Indeed, in reality, it was only Alan Shirt who provided any significant further details concerning the circumstances surrounding the making of the will and he was careful to suggest in the course of his evidence that although he had seen the deceased start to write something on the pro-forma document, he had turned away to talk to one of the others and only turned back again in time to see the deceased place his signature on the document. 
37.	As the judge had subsequently directed the jury, in addition to the issue of the genuineness of the will, they still had to be sure that the appellants were a knowing party to the conspiracy and that they were acting dishonestly in doing so. Moreover, as we have already set out, the judge made it abundantly clear that the evidence of the co-accused’s pleas of guilty had extremely limited relevance, being limited to the existence of the conspiracy and had no bearing on the other issues which the jury had to resolve in order to convict the appellants of the count on the indictment. 
38.	Although not raised as a ground of appeal there was some criticism of the judge in not allowing defence counsel to raise during the course of his closing address to the jury that the co-accused may not have been guilty of the offences to which they had pleaded guilty. It is suggested that this was based upon an answer which Virginia Shirt provided in cross-examination that the co-accused suffered from mental health problems and could not face a trial. It may be that, once the evidence was adduced, comment should have been permitted (subject to the overall direction of the judge to avoid speculation).  In any event, it is difficult to see that this would render the verdicts unsafe and it is not surprising that it was not a ground of appeal: in the circumstances, we say no more about it.  
39.	For these reasons, the appeals are dismissed.