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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Williams, R. v [2023] EWCA Crim 1236 (05 October 2023) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2023/1236.html Cite as: [2023] EWCA Crim 1236 |
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CRIMINAL DIVISION
ON APPEAL FROM
THE CROWN COURT AT WOOLWICH
B e f o r
e :
MR JUSTICE MURRAY
HIS HONOUR JUDGE MENARY KC
(RECORDER
OF LIVERPOOL)
____________________
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MR N. JONES appeared on behalf of the Respondent.
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
LORD JUSTICE WARBY:
(1) In February and April of 2019, a tenancy audit officer called Cooper made six unannouncedvisits
to Etta Street, finding nobody there.
(2) It was ascertained that LandRegistry
![]()
records
showed that from 25 November 1988 the appellant and one Junior Morrison were the
registered
owners of a property at 86 Spencer
Road
in Ilford, Essex. From 23 September 1998 the appellant's Student and Graduate Services account was
registered
to that address and on 7 February 2002 a mortgage application form was submitted to the Abbey National in
respect
of that property in the names of Junior Morrison and the appellant purporting to bear their signatures. At the time the property was mortgaged to Santander PLC.
(3) LandRegistry
![]()
records
further showed that from 25 April 2003 the appellant and Junior Morrison were the
registered
owners of a property at 76 South Park
Road,
also in Ilford. On 26 February 2006 a personal bank account in the appellant's name was
registered
at this address. In February 2018 a flexible savings account was
registered
at number 76 South Park
Road
in the names of the appellant and Junior Morrison, and children's savings accounts were also
registered
at this address in the names of the appellant and each of her children. At the time of trial this property had a charge in favour of The Mortgages Business PLC.
(4) On 16 May 2019 Mr Cooper went to 76 South ParkRoad
where a woman answered the door but declined to produce ID and shut the door on Mr Cooper.
(5)Mr Cooper later went to Etta Street. On a couple ofvisits
he found nobody at home. When he attended on 3 June 2019 by appointment, he was met by a woman wearing a blonde wig whom he said was the same woman who had answered the door in South Park
Road
18 days earlier. He said he had seen that same woman leaving Etta Street that evening without the wig. The prosecution case was that this woman was the appellant.
(1) Count 1 alleged that, dishonestly and intending to make a gain for herself or another the appellant failed between 15 January 2007 and 16 May 2019 to disclose to the Council information which she had a legal duty to disclose namely that she had stopped using 44 Etta Street as her only or principal home.
The prosecution case was that at some point in this period the appellant had moved out of Etta Street and begun toreside
at 76 South Park
Road.
She was under a legal obligation to disclose this, it was said, because it would have affected her entitlement to
remain
a tenant of Etta Street, which was dependent on her living at that address as her only and principal home. The prosecution alleged that her failure to make such disclosure was dishonest.
(2) Count 2 alleged that on or about 3 January 2016 the appellant committed fraud in that, dishonestly and intending thereby to make a gain for herself or another, she made arepresentation
within her
Right
to Buy application which she knew to be untrue or misleading, namely that she was occupying Etta Street as her only or main home.
The prosecution case was that on the date specified in this count the appellant knew full well that she was not occupying Etta Street as her only or main home and was therefore not eligible to buy it under the scheme. The allegation was one of deliberate deception in order to make a gain for herself.
"No-one disputes that if MW moved out of 44ES and began to live somewhere else and deliberately failed to disclose it that elements (ii) and (iii) of the allegation would be made out - what is in dispute is (i). Thus as far as count 1 is concerned the principal question for you to answer is:
Has P proved to the necessary standard that MW ceased to live at 44ES as her only or principal home between the times alleged?
If the answer is yes then it is open to you to find her guilty upon count 1 - because all the elements that P has to prove would be established given the facts of this case.
If you are not sure that is proved, then you must acquit her. If you decide that she had 2 homes but that 44ES was her principal home then she must be acquitted. To that end you may ignore the word "only" in each count and concentrate upon the question has P proved that 44ES was not her main or principal home. That observation applies to both counts."
"Has P proved that at the time she completed the paperwork MW knew that 44ES was not her only or principal home? If you are sure the answer to that question is yes then assuming that you find the other elements established it would be open to you to find her guilty. If it is no or we are not sure then you must acquit her on count 2."
(1) The appellant bears the burden of satisfying the court that the twoverdicts
cannot stand together.
(2) What the appellant must show is that noreasonable
jury which had applied their minds properly to the facts in the case could have arrived at the conclusion they did.
(3) Butverdicts
are not to be treated as inconsistent if the jury had been sure about some parts of the evidence given by a witness but unable to be sure about other aspects of that evidence.
(1) The one critical factual issue in the case, as everyone agreed, was whether the appellant was living at Etta Street as her mainresidence
throughout the period covered by count 1. If the jury found that this was or might be the case the appellant was entitled to be acquitted on both counts. She could not be found guilty of any failure to disclose, nor could the
representations
she made in the
Right
to Buy form be found to be false. The appellant could not be convicted on either count unless the jury was sure that she was not living at Etta Street as her main
residence
at the time stated in that count.
(2) If, on the other hand, the jury were sure that Etta Street was not the appellant's mainresidence
throughout the period specified in count 1 a finding of non-disclosure for the purposes of that count was logically inevitable, and if the jury were sure she was not living there on 3 January 2016 a finding of misrepresentation for the purposes of count 2 was equally inevitable.
(3) But that was not the whole picture. Even on these assumptions count 2 would stillraise
the further issues of whether any positive misrepresentation was not just false but also dishonest and made for to gain. Count 1 would
raise
the further issues of whether any passive failure to disclose the true position amounted to a breach of a legal duty and, if it did, whether that was dishonest conduct engaged in with a
view
to gain.
(4) On some of those matters the appellant had made concessions in the course of her evidence. But these were not binding on the jury, nor did the judge direct them to that effect. He did direct them to focus on what we have described as the critical factual issue. But he did not direct them that if they were persuaded of the prosecution's case on that issue they must convict on each count. What he said about that scenario was that in the light of the concessions made by the appellant it "would be open" to the jury to convict.
(5) There was evidence on the basis of which areasonable
jury could be sure that Etta Street was not the appellant's main
residence
on 3 January 2016. As a matter of logic, a jury sure of that would have to conclude that the
representation
made in the appellant's
Right
to Buy form was false. It will be irrational to do otherwise. Although it did not follow necessarily, that jury might well conclude that the
representation
was not only false but also dishonest, and made with a
view
to gain, so that count 2 was made out.
(6) That analysis would explain theverdict
on count 2.
(7) The same jury might, however, have been unpersuaded that the appellant had a positive legal duty to disclose to the Council that she was non-resident
on 3 January 2016, or indeed any other date within the period covered by count 1. This was a question of law which seems never to have
received
any detailed attention from Counsel or the judge in court during the trial. We have explored the issue in the course of argument today. It has emerged from scrutiny of the trial bundle by counsel for the appellant that there was a term expressly imposing on her an obligation to disclose within 28 days any long-term change in the persons occupying the property. But we have not been shown that this was drawn to the jury's attention, other than being placed in the jury bundle. It seems that all the jury was ever told about the issue was that the prosecution's case was that the duty arose because
residing
somewhere else would have affected the appellant's
right
to
remain
as a tenant of Etta Street, and that the defendant did not dispute this. The judge did not direct the jury that they must accept the prosecution's point of law.
(8) Arational
jury might, further or alternatively, have been unsure that the appellant was aware that she had any legal duty to disclose the fact of her non-
residence
at Etta Street. The jury might consequently or for some other
reason,
have been uncertain that the appellant's failure to make such a disclosure was dishonest. We have not been shown the detail of the concessions she made on the issue of dishonesty. But it is clear that her concessions on that issue must necessarily have been hypothetical and so far as the information before us goes, they appear to have gone only to count 2. The issue of dishonesty on that count was not the same as the issue on count 1.
(9) These considerations would explain theverdict
on count 1.