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MOHAMMED NAVIEDE, R v.  EWCA Crim 784 (21st March, 1997)
THE COURT OF APPEAL
Courts of Justice
21st March 1997
e f o r e:
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Down Judgment of
Bernal Reporting Limited, 180 Fleet Street,
0171 831 3183
Shorthand Writers to the Court)
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R RHODES and MR S STAFFORD-MICHAEL
appeared on behalf of the Appellant
LATHAM QC and MR D SWEETING
appeared on behalf of the Crown
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U D G M E N T
approved by the Court
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JUSTICE HUTCHISON: The appellant appeals with leave of the single judge
against his conviction by a jury on 7th July 1995 of a number of offences
relating to a company , Arrows Ltd., which he owned and ran. The trial had
lasted some six months, inclusive of an adjournment for five weeks when the
appellant was ill. He had throughout that period appeared in person, by his
own wish, though he had solicitors in court to advise him.
first hearing of the appeal was in the summer of 1996 and we reserved judgment.
On 24th July, just before we were to deliver the judgment we had prepared, we
were informed that the appellant wished in the light of the decision of the
House of Lords in
 3 WLR 255
, to amend his grounds of appeal and address to us further
arguments. The respondent did not oppose the application, to which we acceded,
giving directions as to draft amendments, skeleton arguments and so on.
Various matters, including the difficulty of reconvening this constitution of
the court, have prevented the resumed hearing taking place earlier. It was
implicit in those directions that at the resumed hearing we would grant leave
for properly drafted amendments arising out of the decision in
and the expectation was that the amendments would be confined to points arising
out of that decision, where it was held that a charge of obtaining property by
deception contrary to s.15 (1) of the Theft Act 1968 was inappropriate in a
case where the allegation was that the dishonest deception had caused the
lender to make a loan effected by debiting his bank account and arranging a
corresponding credit to the account of the defendant, because the defendant did
not in such circumstances obtain property belonging to another. In the event,
as we shall show, the amendment sought by Mr. Rhodes Q.C. was significantly
more extensive, involving as it did a contention which does not depend on
anything decided in
At the beginning of the resumed hearing we gave leave for the
amendments, but reserved until we had heard Mr. Rhodes's arguments the decision
whether to grant leave for the others. In the event we refused it.
should mention that at the hearing on 24th July we did not deliver the judgment
we had prepared but we did indicate to counsel that the decision we had reached
on the basis of the arguments we had heard was that the appeal against
conviction should be dismissed and the appeal against sentence should be
allowed to the extent that the total term should be reduced by two years.
offences of which the appellant was convicted were the following:
1 and 3, obtaining property by deception, in respect of which he received seven
years imprisonment on each count concurrent.
2 and 4, obtaining services by deception: four years concurrent.
5 and 7, being a company officer who published a false statement to creditors:
five years concurrent.
8, trading with intent to defraud creditors: two years consecutive.
is important to appreciate from the outset what was the nature of the case
which the appellant faced, and we begin by referring in a little detail to the
content of the counts in the indictment.
1, 2 and 3 were concerned with the obtaining by deception of credit facilities
from a bank, NMB Postbank Groep NV. (NMB).
1 and 3 charged Nr. Naviede
with dishonestly obtaining £3 m. and £1
m. for Arrows Ltd. from NMB by deception contrary to section 15 (1) of the
Theft Act 1968. The wording of the particulars in each count was, save as to
date and amount, identical and involved four alleged false representations,
business of Arrows Limited had been and remained that of providing trade finance;
money was required by Arrows Limited for use in such business and in particular
that the sum would be used by Arrows Limited to enter into trade finance
transactions with its trade finance customers;
such transaction entered into and thereafter to be entered into by Arrows
Limited with its customers had been and/or would be insured against loss
through Arrows Insurance Limited and Trade Indemnity plc;
said bank had been well and effectively added to the said Insurers' respective
lists of banks and financial institutions to which payments would be made by
such insurers in settlement of claims made under their respective policies
concerning the trade finance business of Arrows Limited.
2 charged Mr. Naviede
with obtaining services by deception contrary to section
1 of the Theft Act 1978 and section 18 of the Theft Act 1968 by consenting to
or conniving at the dishonest obtaining by Arrows from NMB of a £30 m.
revolving credit facility. Subject to minor variations in wording appropriate
to the different offence, the same four false representations were relied on.
4 related to the obtaining of credit facilities from Girozentrale und Bank der
Osterreichischen Skarkassen AG (Giro) and, save that it relates to a syndicated
loan facility of £11 m. and a different date, is otherwise in terms
essentially the same as Count 2.
will be seen, therefore, that these four counts, though involving the obtaining
by or for Arrows on various dates of monies or credit facilities, had a marked
similarity. The essential issues for the jury on all four were the same -
namely had the Crown proved that:
or more of the representations was made by or with the consent or connivance of
representation in question was and was known by Mr. Naviede
to be false and was
made with the intention of deceiving the Bank;
false representation or representations caused the payment (Counts 1 and 3) or
the grant of the facility (Counts 2 and 4)
intended permanently to deprive NMB of the £3 m. and £1 m.
(Counts 1 and 3)
was acting dishonestly.
the heart of the Crown's case in relation these four counts were the following
contentions (which we state only in brief outline):
nature of Arrows' business had been to provide finance to traders requiring
extra short term credit over and above such normal facilities as they might
have. This was achieved by Arrows buying the trader's stock at a discount and
immediately re-selling it to him at full value in return for a bill of
exchange. Arrows at first financed the business by discounting the bills with
banks or discount houses and though, in the course of time, the methods by
which the business was financed were refined or varied, its essential elements
were and remained that;
overall charge to a trader exceeded the cost to Arrows of borrowing from the
bank, and the difference represented their profit;
risk that the trader would not be able to pay on maturity of the bill was
off-set by the fact that Arrows were able to and did insure against loss
occasioned by such an eventuality. This was, naturally, an attractive feature
so far as the banks who lent money to Arrows were concerned.
about the end of 1989 Arrows, whose normal trade financing business may even
then already have been under strain, began to speculate in property, by means
of complicated purchase and leaseback arrangements. This business was quite
unlike their stock financing business, in that it was risky, any returns were
long rather than short term, and it was not covered by insurance. At the same
time Arrows reduced the level of their normal trade financing business.
this very significant change of direction, Arrows through the appellant,
continued to represent to potential lenders that the relevant part of their
business was wholly or almost wholly trade finance as previously and that it
was insured in the manner described.
representations, dishonestly made, were what induced NMB and GIRO to advance
the monies and make available the facilities with which Counts 1 to 4 are
document of particular importance so far as the first bank, NMB, were concerned
was the Information Memorandum which was prepared for a presentation to banks
not yet doing business with Arrows to inform them of the nature of its
business. A first draft of this document was prepared by Mr. Endersby of NMB,
who drew on all the information he had about Arrows, with whom NMB had already
done business in previous years. In preparing that first draft he left a
number of blanks to be completed with information obtained from the appellant.
The Crown's case, based on Mr. Endersby's evidence and supporting
documentation, was that the appellant did produce that information and approved
the final version of the memorandum. The appellant's case was that the
document was all Mr. Endersby's own work and that all the mis-statements as to
the nature of Arrows' business derived from him alone. The appellant, it was
conceded, saw the final version and he said that his response was, in effect,
that if Mr. Endersby wished to present the picture in that way he would go
along with it.
has to be said that there was documentary evidence, to the detail of which it
is unnecessary to refer, which strongly supported the Crown's case that the
appellant had - as one would expect - provided the detail. Nevertheless, there
was this acute issue between the appellant and Mr. Endersby.
was undeniable was that the Information Memorandum wholly mis-stated the nature
of Arrows' business in 1990. This will be apparent from a brief summary
comparing what the Memorandum asserted with what was the true state of affairs.
the information it contained had been provided by Arrows.
Arrows maintained 100% insurance cover over its trade debtors; and that it had
been and remained Arrows' policy to insure its debtor book. There was cover of
100% of loss in the event of a client's insolvency. The insurance
discretionary limit was £200,000, and authority for larger loans was only
sought where Arrows was satisfied as to the client's creditworthiness.
Arrows provided three main services, namely Stock Financing, Bill Discounting
and Documentary Credits, of which by far the most important was Stock Financing
which accounted for about 98% of Arrows' turnover during the financial year to
31st August 1990. Their philosophy was to provide short term seasonal working
capital financing to corporate clients with a turnover in excess of £1 m.
and "it cannot be over-emphasised that it is
Arrows' policy to replace a client's clearing bank, but merely to fulfil
top-up, cyclical cash flow requirements". It was Arrows'
policy to ensure that clients did not use their Arrows' facility 365 days a
year. The customer base comprised a wide variety of traders, specifically
listed by types of business, not including property. Arrows' main objective
was to transact its trade with companies of high credit standing, particularly
in businesses which could be considered of a conservative nature.
average facility was £150,000 and although in the past it had offered
facilities up to £1 million to particularly strong corporates, it was now
policy to grant maximum facilities of £250,000.
would continue to build on its success in its "niche sector", no deviation was
planned and it remained committed to its uncompromising credit procedures.
true position was that Arrows were doing very little trade (stock) finance
business and what there was - some £10 m. - was very precarious. It was
owed £75 m. on one outstanding bill from ECC Ltd. in respect of which it
held no security and which did not figure in its accounts. The money it sought
to borrow was not required for trade fiance of the sort described in the
memorandum but was needed principally to repay existing borrowing and deal with
the consequences of its real business - commercial property acquisition.
October 1990 Arrows had disposed, for £750,000, of
m. worth of debts due on 90 day trade finance bills - reflecting, said the
Crown, a state of affairs that must have been known in July. No claim was made
on their insurers in respect of these bad debts.
we have said, the appellant's case was that all the mis-representations in the
Information Memorandum were Mr. Endersby's work, which he "went along with".
He agreed however that at a presentation meeting at the Overseas Banking Club
at which he spoke to bank representatives at this time he never mentioned
property dealing or the weakness of the rump of the stock financing business.
other banks whom it was sought to involve in the syndicate were not prepared to
join - but NMB itself provided the £30 m. facility, allowing Arrows to
draw down the first £5 m. at the end of July 1990. The formal
documentation was executed in October 1990.
will readily be appreciated why Mr. Endersby was an important witness, and why
the conflict between his account and that of the appellant was central to the
was one of the banks with whom Arrows had had a satisfactory relationship for
some years, beginning in December 1987. At the end of April 1990 the appellant
sought to interest Giro in setting up a syndicated facility with other
Austrian banks to provide Arrows with additional funds with which to conduct
its expanding trade finance business. In May Giro was sent Arrows' Group
Balance Sheet and Accounts to 31st March 1990 together with a report which
indicated that the level of business enquiries continued to grow; that Arrows
was ever conscious of its responsibilities to its bankers to adopt a more
vigorous approach to credit control and ensure that only the best business was
written; that during the period under review its main business had continued to
be that of stock financing; and that the directors were confident of future
steady growth of Arrows' core business and had taken a policy decision to limit
new business to a maximum of £250,000 per client irrespective of credit-
worthiness and to limit clients' usage of their credit lines to two drawings a
5th July 1990, the appellant attended a presentation in Vienna when he
explained the reasons for seeking a syndicated loan and the nature of Arrows'
business. The evidence of the Giro witnesses - in particular Mr. Beitz the
deputy general manager - was that the appellant represented matters in a manner
entirely consistent with the information contained in the Information
Memorandum involved in the NMB counts. In this case some of the other banks,
as well as Giro, were interested and participated in the facility which was, as
a result of the appellant's representations, obtained - the formal
documentation was signed in September. It was to this that Count 4 related.
's case was, in barest outline, that the banks were told about the
change into property investment; that such was in any event within the
description trade finance, so there was no misrepresentation; and that there
was insurance cover and/or full security for the property part of Arrows'
business. He had not been dishonest. That there had been a massive shift from
the sort of trade finance involving stock purchase and resale into property was
not in dispute.
addition to the
amendment for which we granted leave, Mr. Rhodes put forward amendments by
which he sought to contend (i) that counts 2 and 4 were also misconceived,
because the granting of the £3 m. and £1 m. loans did not constitute
services within the meaning of s.1 of the Theft Act 1978, or if it did, the
counts should nevertheless have been withdrawn from the jury because the
evidence was that Arrows had paid in full for such services, or because the
judge had misdirected the jury in relation to them; and (ii) to assert that
in consequence the convictions on the remaining counts, the details of which we
are about to relate, were unsafe.
5 and 7 charged Mr. Naviede
with publishing false statements with intent to
deceive creditors of Arrows contrary to section 19 of the 1968 Act. Count 5
related to Arrows' interim management accounts for the six months to 30th
September 1990 and the misleading false or deceptive statements to the
publication of which he was alleged to be a party were that
volume of trade finance business undertaken by Arrows during the period had
the whole of the debts owed by its customers to Arrows was insured through
Arrows Insurance Ltd. and Trade Indemnity plc.
7 related to the publication in April 1991 of a document entitled "Group
Accounts 1991" asserting that "The principal activity of the Group remains that
of trade financiers", and said thereby to represent that the largest element in
the figures given in the Annual Accounts in respect of turnover, cost of sales
and bills recoverable was in each case attributable to trade finance business.
6, on which the jury failed to agree, was a charge under section 389A (2) of
the Companies Act 1985 of making false or misleading statement to Arrows'
auditors, as to the nature of the relationship between Arrows and various
companies (the ICE companies) and to the effect that neither Arrows nor he were
in any way connected with those companies.
8 was a charge under section 458 of the Companies Act 1985 of fraudulent
trading in relation to Arrows in respect of the period 1st February 1989 to
30th July 1991.
relation to the new grounds, which we shall consider in detail at the
appropriate place in this judgment, the respondents' stance is (i) that the
convictions on counts 1 and 3 must, by reason of
be quashed but that convictions for alternative offences can and should be
substituted; (ii) that the attack on counts 2 and 4 should be rejected; and
(iii) that there is no reason to consider that the convictions on the
remaining counts are unsafe.
are six grounds of appeal (1A - 3B) which it is convenient to consider as a
group since they all relate to the appellant's ability properly to present his
case at trial. The contention is that by reason of errors or omissions on the
part of the judge the appellant was deprived of representation and was
compelled to conduct his defence when he was not fit to do so and without being
allowed sufficient time for preparation during the trial.
case had been transferred pursuant to s. 4 of the Criminal Justice Act 1987 at
the end of 1992 and was first listed before the judge in March 1993. The
appellant was represented by solicitors and leading and junior counsel, all
very experienced in the conduct of long criminal trials. In the latter part of
1993 they intimated that an application to dismiss was to be made, and a date
for this to be argued was fixed for just after Easter 1994. However, it was
not pursued, and the appellant's adviser instead sent to the Serious Fraud
Office detailed submissions supported by seventeen files of documents as to why
the prosecution should be discontinued.
on 24th May 1994 the trial formally began with the appellant's arraignment.
The hearing was fixed for September 1994 but that date was, by reason of the
written submissions already referred to, vacated. Following the rejection of
the submissions on 11th October 1994 the appellant decided that he wished to
represent himself. On 13th October 1994 Mr Julian Bevan Q.C. and his junior
Mr. Chawla appeared before the judge and asked to be allowed, together with
their solicitors, to withdraw from the case. They equated that with an
application to have the appellant's legal aid certificate discharged.
Bevan explained to the judge that his instructions from the appellant were
that, whereas he wished himself to present the factual side of the case -
examine and cross-examine witnesses and address the jury - he wanted to be
allowed to have his solicitors and counsel to advise him upon and argue on his
behalf such matters of law as might arise in the course of the case. Mr. Bevan
told the judge that the appellant had instructed him that this was his firm and
judge heard submissions from not only Mr. Bevan but also from the solicitor Mr.
Burton. Mr. Bevan said that he knew of cases where a defendant had retained
solicitors and counsel to argue the law and Mr. Latham for the Crown seems to
have accepted that, provided proper "ground rules" were established, such a
thing could happen.
Burton told the judge that he had made clear to the appellant his view that he
must be represented by counsel if his case was to be properly conducted but
that Mr. Naviede
was not prepared to accept his advice. He said that there had
been a serious breakdown of confidence between him and his client and that in
the circumstances, unless directed to the contrary, he wished to withdraw. The
judge - in our view rightly and understandably - said that he considered Mr.
Burton was the best judge of whether he could properly continue. Mr. Bevan and
his junior told the judge that they also felt that they could not properly
continue to represent the appellant.
judge had earlier asked the appellant if he wished to say anything and the
appellant told him, in the strongest terms, of his determination to represent
himself on the facts and his reasons for that decision. The judge said:-
is your perfect right, Mr. Naviede
, to represent yourself, but I take it you
have given the matter very careful thought before you have come to this
decision, and it is a firm decision.
appellant assented - though in terms which re-enforced his desire to have
representation on matters of law.
a short adjournment there was further discussion. The judge said that he had
been thinking about the proposal. It seemed to him, he said, that it would put
counsel in a wholly impossible position: counsel in conducting a case must have
control over it. The judge continued:-
idea that you have a defendant conducting his own defence and then instructing
counsel, it seems to me, is quite impossible. I see Mr. Bevan agrees. I have
been thinking about it a good deal today. Do all counsel agree with that
counsel for the Crown confirmed that that was the view the Crown had come to.
He explained that their view was that it would simply not be feasible. When
advanced further argument in support of his wish for representation
throughout only on the law the judge reiterated that in his view it would be
completely wrong and that he was not prepared to allow it, and said that that
must be quite clear to Mr. Naviede
before he made his decision. Pressed to
reconsider the judge again stated his decision in similar terms. He again
enquired whether Mr. Naviede
's decision to represent himself was a firm one and
was told that it was.
case was before the judge again on 21st October 1994 when the judge summarized
- as it were by way of embodying them in a formal ruling - the decisions he had
reached on the 13th October. There was also discussion about the substitution
of the appellant's present solicitors, who at all times subsequently - in
particular throughout the trial - advised him. They also had access to advice
from counsel on particular matters, and we know that Mr. Rhodes was consulted
and gave advice on many occasions. The judge allowed Mr. Bevan and his junior
and their solicitors to withdraw.
a number of subsequent occasions the appellant repeated his wish to have the
sort of representation described, contending that without it the trial would
not be fair: and the judge reaffirmed his earlier ruling. The judge on at
least one such occasion (4th November 1994) again sought and received
confirmation that the appellant had decided to represent himself. The judge's
last pre-trial reiteration of his ruling was on 3rd January 1995, and in the
course of it he said this:
is an absolute right for someone to represent themselves; and Mr. Naviede
decided to represent himself in this trial. I have considered the question of
whether I should extend his legal aid for leading and junior counsel to
represent him; and I have come plainly to the conclusion that it would be
wholly inappropriate in this case for Mr. Naviede
to represent himself, have
control of cross-examination and the calling of witnesses [on] issues of fact,
then instruct counsel to represent him on points of law throughout the course
of the case. It seems to me that that would be wrong. It would involve, were
I to grant this application, an adjournment of this case for ... a considerable
period ... and, in all the circumstances, I have no alternative but to reject
the application that is made. The defendant has had ample time to prepare
himself for this trial ... [A] great deal of work has been done on his behalf.
The documents have all been got in order and, in my view, the representation
that he has - which in the representation of experienced solicitors, who no
doubt are knowledgeable in the law - is a proper basis on which we ought to
9th January - the day on which the trial began, and on which the judge rejected
an application for an adjournment on medical grounds to which we shall have to
refer in more detail later - the judge in relating the history of the matter
that the defendant had taken the firm decision to represent himself, his own
solicitors and counsel had withdrawn from the case. The question arose as to
whether he should have counsel to represent him, on the law; and it was clear
to me then and it has remained clear to me, that Mr. Naviede
wishes to have
total control over the way his case is presented to the court. At one stage,
there was reference to him being in the role of leading counsel being assisted
by junior counsel. I decided, on everything that was placed in front of me,
that it would not be in the interests of justice that a trial should proceed in
a way that was envisaged. [The judge went on to explain why].
these decisions by the judge are founded the first three grounds of appeal.
Ground 1A alleges that it was an error of discretion on the part of the judge
to allow counsel and solicitors to withdraw or that at least he should have
required them to remain until the conclusion of the preparatory hearings and
that he failed to give them adequate directions when they sought to withdraw.
Ground 1B asserts that the judge failed to give the defendant proper warning as
to the great disadvantages that would flow from his decision to represent
himself - the implication being that had he had these fully explained he would
or might not have persisted in that decision. Ground 1 challenges as an
irregularity the judge's refusal of leading counsel to argue the law.
support of his arguments on Ground 1A Mr. Rhodes referred us to the relevant
Legal Aid Regulations, the Legal Aid Act 1988 and to a number of authorities,
but we do not consider that much help is to be derived from any of these
sources. For present purposes we are prepared to accept that a judge has a
wide discretion in relation to the approval of a request by legal advisers to
withdraw, in relation to the discharge of legal aid, and in regard to
representation by solicitors and counsel either in combination or individually.
However, even assuming all this in the appellant's favour, we were entirely
unconvinced by the basic contentions on which Mr. Rhodes relied. Thus:
reject the contention that the judge should have taken a much more active and
positive role when the appellant's decision to represent himself was made
known. In effect, what is being suggested is that it was incumbent on the
judge, by emphasising the disadvantages, to seek to dissuade him from that
course. In our view, in the circumstances of this case, the judge did all
that was reasonable and necessary. He knew that the appellant, an intelligent
and obviously able man, had taken a firm decision at a time when he was
represented by very experienced and able advisors. He knew that it was not a
spur of the moment decision. He obviously had - and discharged - a duty to
satisfy himself that it was a firm decision. He may well have felt inhibited
about appearing to exert pressure on the defendant to abandon such a decision,
given that it was said to be firm and that reasons for it which were perfectly
understandable had been given. It is in our view simply impossible to
criticize the way the judge - who for obvious reasons must have been concerned
at the prospect of the defendant's being unrepresented - dealt with the matter.
submission that he should at least have insisted on the advisers continuing to
act for the remaining preliminary hearings is unsustainable in the particular
circumstances, because, as Mr. Latham satisfied us, the possibility of their
doing so was raised by the judge, but they indicated that they felt in the
circumstances unable to accede to such a proposal.
the situation with which the judge was presented we have no hesitation in
saying that he was entitled to accept the assessment of solicitors and counsel
that they felt unable to continue to act. We need not repeat what those
circumstances were, and say only that given the reasons advanced by the
appellant for his decision and the status and experience of the advisers we can
readily understand why the judge was prepared, as we would have been, to accept
their assessment. Moreover, we believe the judge may, for reasons which we can
well understand, have felt a certain inhibition about pressing them to take a
these reasons we reject Grounds 1A and 1B.
to Ground 1 - which is, of these three, that on which Mr. Rhodes placed the
greatest emphasis - we reject his attack on the judge's exercise of his
discretion. Mr. Rhodes, rightly pointing out that this ground was linked to
the other two, criticised the judge for not seeking the assistance of counsel:
but it seems to us that, as one of the passages to which we have referred
shows, he was aware that counsel on both sides considered the proposal
inappropriate. We do not accept that the judge was rejecting the application
out of hand on the basis that it was one to which he could not, whatever the
circumstances, accede: his observations, taken as a whole, appear to us to
embody an exercise of discretion on the particular circumstances of the case.
it is important to recollect that the appellant was not asking for the right
to be represented by counsel on discrete issues of law. What he was asking
for, and asserts before us to have had a right to be granted, was to represent
himself on one aspect of the case and be represented by counsel on another; and
for that purpose to have counsel in court throughout as his representative. If
the judge had decided the matter on the basis that it was in principle
inappropriate to permit such an arrangement, our view is that he would have
been right to do so. We reject the argument that such a refusal would breach
the appellant's common law or statutory rights to representation or constitute
an infringement of Article 6 of the European Convention of Human Rights, or
otherwise constitute an injustice. Mr. Rhodes argues that a criminal trial
must be fair, and that the principle of equality of arms demands that an
accused person be accorded representation commensurate with the seriousness and
complexity of the proceedings and comparable to the facilities enjoyed by the
prosecution. Since he is entitled to present the case himself, he must be
entitled to the assistance which he needs and requests on the law. The fallacy
inherent in this contention, in the circumstances of a case such as the
present, is that it assumes that the entitlement to representation and the
entitlement to represent oneself must be exercisable simultaneously. The truth
is that the appellant was not denied legal representation. On the contrary he
had had made available solicitors and counsel and chose not to avail himself of
their services. We know of no principle which demands that he who makes such a
choice must be permitted representation on his own terms. Whatever may be the
position as to representation for the purposes of arguing discrete issues, we
consider that there is no valid basis for contending that someone who has been
offered and decided to reject ordinary legal representation is entitled to
demand representation on the law only. Such a person cannot complain of
inequality of arms, or assert that he has been unfairly treated or that his
trial is unfair. In truth his only complaint - an invalid one - is of the
refusal of a right to dictate the terms of the representation he is to have.
we consider that to allow representation in the terms demanded by the appellant
would indeed place counsel who - as was apparently the case here - was prepared
to act in a most invidious position. Having no control over the presentation
of the evidence, he could be faced with a demand to argue untenable
propositions, or deprived of the opportunity to try to establish the necessary
factual basis for the contentions which he would wish to argue. The task of
the judge would be rendered infinitely more difficult and his ability to
control the case impaired. None of the members of this court has experience of
such an arrangement being permitted and we were not referred to any instance of
is no answer to submit that (as occurred here) a defendant who represents
himself often has solicitors to advise him: indeed as we have said the
appellant also had the advantage of advice from Mr. Rhodes. Advice is one
thing, representation another, and there is no inconsistency between our view
and the practice referred to. A right such as that for which the appellant
contends is not one which principle or fairness demands, and we reject it.
we consider that there is no substance in Ground 1 either.
3A relates to the judge's refusal on 9th January, the day fixed for the start
of the trial, to accede to an application for an adjournment of four to six
weeks by reason of the appellant's state of health.
will be remembered that on 3rd January a renewed application for partial
representation was refused. In the course of the hearing on that day a brief
report from the appellant's doctor was shown to the judge. It spoke of his
suffering from stress "as he believes his basic rights are being denied to
him". The doctor said he had advised a complete break for up to a month. On
that date however no application for an adjournment was made.
9th January the appellant did apply for an adjournment. He relied on reports
from Dr. Nias and Dr. Wolfe and the Crown on reports from Dr. Shepherd and
Professor Watson. All four doctors were called to give evidence. The
complaint made in Ground 3A that the judge, confronted with evidence strongly
weighed in favour of the view that the appellant was unfit by reason of mental
exhaustion and stress, substituted his own opinion as to the fitness of the
appellant and rejected the expert medical evidence. This had, it is said, a
serious consequence in that the appellant had to cross-examine the most
important and damaging prosecution witness when in no fit condition to do so.
matter was very fully argued on behalf of the appellant, in written and oral
submissions by Mr. Rhodes, which we have considered with care. We are
satisfied (i) that there was material before the judge on the basis of which
he was entitled to conclude that the appellant was fit to conduct the case, and
that the judge accepted that evidence; and (ii) that to the extent that he
made use of his own assessment of the appellant's abilities he was entitled to
Rhodes argued that it was not clear from what the judge said when giving his
reasons for refusing the application to adjourn whether he accepted the Crown's
medical evidence or not, and that the decisive consideration appeared to be his
own views. Our own view is that the language used by the judge - in what was a
extempore ruling - implies that he did accept the Crown's evidence. Moreover,
that this was the judge's conclusion is clear from what said later in the trial
on 3rd March when ruling on a matter which figures in another ground of appeal
- the appellant's fitness to continue after a physical illness he suffered
during the trial. The judge said this:-
should make it quite clear that, in my view, the opinion of these called by the
prosecution at the outset - namely Dr. Wolfe and Dr. Shepherd - came to a
correct conclusion, and Mr. Naviede
's conduct of the case thereafter has shown
his ability to deal with the matters that the prosecution raised against him.
to making use of his own views, the judge had seen a great deal of the
appellant and, on the day in question, had heard him argue other matters.
While his medical condition was for the doctors to assess, there is in our view
no reason why the judge should not have placed reliance on his own view of the
appellant's capacity as demonstrated by his performance and demeanour.
accordingly reject this ground.
3B concerns the judge's decision to continue with the trial after a five week
break occasioned by the appellant's suffering a pneumothorax on 11th February.
This, according to the medical evidence, was not occasioned by stress: but it
was a serious illness, necessitating an operation under general anaesthetic
followed by a period of recuperation.
15th March when the appellant returned to court he was still suffering from
post-operative discomfort and wanted an adjournment of a week for further
evidence followed by a review of the case in the light of such evidence. The
judge, who had evidence (which he accepted) from Dr. Lightowler that the
appellant was fit to continue, refused the application and directed that the
case continue on the following Monday, 20th March. It is said that, while the
judge's acceptance of Dr. Lightowler's evidence cannot be impugned, that
evidence went only to the appellant's physical condition: and that the judge
wrongly rejected uncontradicted evidence from Dr. Nias to the effect that the
appellant was in a downward mental spiral and at risk of a nervous breakdown -
again substituting his own judgment of the appellant's ability to represent
support of the contention that the judge was wrong Mr. Rhodes relies on what he
submits is evidence of incapacity on the part of the appellant, both before the
pneumothorax (incompetent cross-examination of the main prosecution witness Mr.
Endersby) and afterwards, as evidenced by a number of passages in the
transcripts to which he drew our attention, and which we have considered.
is also contended that in any event the judge should at this stage have
discharged the jury, and that he failed to take account of the effect upon them
of the lengthy adjournment.
first question is whether it can be said that the exercise by the judge of his
discretion to continue with the trial when he did can legitimately be
criticised. We do not think that it can. His acceptance of Dr. Lightowler's
evidence is not criticised; and his own view that in the first part of the
trial the appellant had displayed intelligence and ability to conduct his own
defence is one which, contrary to Mr. Rhodes' submissions, we consider the
judge was entitled to rely on. He gave a careful and fully reasoned ruling,
and we see no ground for thinking that he was not fully alive to all material
Latham argued that after the resumption the appellant's conduct of his case did
not raise concerns as to his health - in particular that he gave evidence in
chief over five days in a lucid, structured and chronological manner. It was
submitted that the passages relied on by Mr. Rhodes do not support the contrary
have had the task of making our own assessment. There are two distinct strands
to Mr. Rhodes's submissions. One is that the appellant was complaining from
time to time of illness or tiredness, and seeking indulgence from the judge in
the matter of early adjournments or postponement of cross-examination.
References are made in this connection to passages gathered in Schedule 3,
which we have carefully considered. Our view is that there is no reason to
believe that the appellant was not sufficiently fit to conduct his defence, or
that the judge was other than reasonably sympathetic and accommodating in
dealing with his requests.
second of these submissions relates to the manner in which the appellant
conducted his defence, and the suggestion is that the lengthy extracts in
Schedule 2 demonstrate incapacity due to unfitness. It is said that the
appellant was unable to conduct an adequate cross examination, give clear
evidence on his own behalf or properly address the jury; that he pursued at
length issues which it was self-evidently disadvantageous to pursue and called
witnesses obviously hostile who could only damage his cause; and that he placed
before the jury documents which presented him in a bad light and were likewise
who has experience, as we have, of trying cases in which defendants are
unrepresented will know that frequently such litigants do find the task of
presenting their case and cross-examining witnesses difficult and that even
able and intelligent people are prone to pursue matters which an experienced
advocate would leave alone. This ground is not - as others are - concerned
with the question whether the appellant has any valid complaint in relation to
his being unrepresented: it is concerned with a complaint that he was not fit
to conduct his case. We are being invited to infer from the content of
Schedule 2 that this was so. There are undoubtedly passages which evidence
confusion and display the faults often characteristic of litigants in person:
but our own view is that it certainly cannot be said that there is evidence in
the transcripts to justify the conclusion that subsequent events demonstrated
that the judge's decision on 15th March was erroneous. That some of the
contentions pursued by the appellant - particularly of a conspiracy against him
- were hardly credible and probably damaged his case is true: but there is
nothing to suggest that they were the product of illness.
our view this ground of appeal is unsustainable.
2 alleges that the judge refused to allow the appellant sufficient time to
prepare his defence, in that at no time during the trial did he make adequate
provision for preparation by the appellant notwithstanding his precarious
mental and physical health. A particular point is made of the fact that at one
stage during the presentation of the defence case the judge erred in saying to
the appellant that his conduct (in not having his witnesses available to give
evidence as and when required) verged on contempt; and of the fact that counsel
for the Crown at that juncture invited the judge to threaten the appellant
with imprisonment for contempt. It is said that this was oppressive.
Rhodes first complained of the judge's refusal at the beginning of the trial to
accede to the appellant's request that the court should sit only three days a
week. However, he came to recognize that it was impossible to challenge this
exercise of discretion and the submission he pursued was that, following the
break caused by the appellant's pneumothorax the judge should on his own
initiative have instituted a regime such as is common in long trials of sitting
only four days a week. He rightly submitted that, particularly in
circumstances such as obtained in this trial, it was for the judge to keep
matters under review and ensure that the appellant was able to cope. To a
considerable extent Mr. Rhodes relied on matters germane to Ground 3B as being
indicative of a failure on the judge's part to do this.
Rhodes also relies on what he submits are specific instances of refusal by the
judge to allow the appellant additional time reasonably requested for the
preparation of his defence, and in this context took us to Schedule 1. Mr.
Rhodes took us to a number of passages in this Schedule and it is fair to say,
we think, that he was not really suggesting that, with one exception, the judge
could be seriously criticised: his main contention was that the cumulative
effect of these extracts, coupled with the judge's not having allowed a day a
week for preparation and the threat of contempt, were such as to amount to an
irregularity and unfairness.
contempt episode occurred on 14th May, in the absence of the jury. A defence
witness was not at court when needed. He should have been available and the
judge was understandably concerned at the waste of time that his absence was to
cause. The judge said:
, I would like you just to think of this: imagine what I would have done
if the prosecution had treated me like this while they were presenting their
case. Imagine what I would have said to them. Now in my view you are treating
the court with contempt by the way you are behaving and it must not happen again.
appellant apologised and the judge, in conciliatory language, said he would not
have spoken as he had but for the fact that probably nearly a week had been
wasted in the course of the defence, which was serious. Mr. Latham then
invited the judge to make clear to the appellant that he had powers to imprison
him of contempt and the judge again emphasised the seriousness of the matter,
without mentioning imprisonment.
Rhodes' complaint is confined to Mr. Latham's intervention, which he alleges
was gratuitous and oppressive.
the individual instances covered by Schedule 1 that particularly relied on -
the one exception mentioned above - related to an occurrence on 25th May, the
Thursday before Whit Monday, when the appellant himself had just completed
eleven days in the witness box, and in the absence of the jury sought to be
allowed to start calling his witnesses on Tuesday. The judge indicated that he
thought the rest of Thursday would afford the appellant the opportunity for the
discussion he wished to have with his lawyers about the future presentation of
the case, and insisted on sitting on the Friday. This, Mr. Rhodes submitted,
was and would have been perceived by the appellant to be unfair.
Mr. Rhodes submitted that the trial chronology helpfully prepared by the Crown
- and on which they relied - did not present a picture of excessive time wasted
have considered all these submissions and the various transcripts relied upon.
It has to be remembered how difficult is the task facing the judge in a case
such as this of balancing on the one hand the need to ensure that a defendant
in person has adequate time for out of court work and preparation and on the
other ensuring that the trial progresses in a reasonably expeditious way. He
has to consider all sorts of interests, including those of jurors and the
public - though of course his paramount concern must be to ensure that the
defendant is treated fairly and has a fair trial. This does not involve
acceding to every request he makes for extra time; it requires that the judge
should exercise sympathetic but firm control.
may be that there were occasions when some would think that the judge might
have been a little more accommodating - for example on 26th May: and it might
have been preferable if Mr. Latham had left it to the judge to admonish the
appellant for what seems to have been a culpable failure to get a witness to
court. But looking at the matter in the round we are satisfied that the judge,
who was in a position far better than we are to judge what was required, dealt
in a fair and accommodating manner with the appellant's requests for time. If
has to be remembered that, heavy though the burdens of conducting his own
defence were, the appellant had the advantage of a very fully prepared case
(see the seventeen files presented on the request of the Serious Fraud Office
to abandon the prosecution); of legal assistance; and of his own intimate
knowledge of the events with which the trial was concerned.
conclusion is that this ground of appeal has not been established.
Ground 3 it is contended that the judge was in error in refusing to sever Count
8 (fraudulent trading) from the other counts. Though the circumstances in
which the application came to be made are a little unusual, we can deal with
this ground, which we are satisfied is without merit, quite shortly.
is common ground that Count 8 was properly joined in the indictment. The only
point taken is that, in the light of the fact that the appellant was
unrepresented, the judge should have severed the indictment so as to eliminate
Count 8 in the interests of simplifying and shortening the trial.
a time when the appellant was still represented by counsel and solicitors the
judge had at a preliminary hearing raised the question of severance and the
stance of counsel on both sides was that justice demanded that Court 8 should
be tried with the other counts.
3rd January 1995, however, the appellant applied for severance, submitting that
there would be a considerable time saving and that the issues would be
simplified if that occurred. It is worth noting that in the course of his
submissions the appellant argued that the Crown's case essentially involved the
assertion of Arrows' insolvency and "if the insolvency were to be decided
first, then in the event that the company was solvent - obviously ... it would
be much simplified".
judge rejected the application, saying that the matter had been looked at with
great care the previous May, that nothing that he had heard caused him to
change his mind and that he had concluded that the jury should consider all
counts including count 8.
Rhodes, recognizing the difficulty that confronts an appellant in seeking to
persuade this court to interfere with the exercise by a judge of his discretion
whether or not to sever, submitted that the judge failed to attach any weight
to the fact that the situation had changed because the appellant was now in
person, and to the consequent imperative to try to simplify and shorten the
trial and the issues in it. The retention of Count 8 complicated the trial,
made it much longer and necessitated the calling of more witnesses, including
do not find these arguments persuasive. The judge must, in our view, be
credited with having in mind that a significant factor was that Mr. Naviede
by now in person, with the consequences that that entailed. However, as Mr.
Latham submitted, he would also have had in mind that (as the appellant himself
rightly accepted) the solvency of Arrows was of crucial importance in resolving
most of the other counts, and was inevitably going to be an issue in the trial
whether or not Count 8 was severed. We see absolutely no ground for thinking
that the judge exercised his discretion without regard to material matters or
3C raises an alleged irregularity which occurred in the course of the trial,
when the judge was rightly and properly intent on explaining to the appellant
the purpose and scope of cross-examination. He said this, in the presence of
purpose of cross-examination is firstly, if you can, to obtain evidence from
the witness that is favourable to your case; secondly to undermine or destroy
evidence that is not favourable to your case. If you propose to call evidence
that contradicts evidence of the witness, you should make that clear to the
witness so that he or she may have an opportunity to deal with it, if you are
proposing to call evidence that contradicts evidence that the witness gives.
is contended (i) that this direction was wrong in law because there is no
obligation to do more than simply put your case; (ii) that it could
reasonably be interpreted as imposing on a litigant in person a requirement to
give evidence if he challenges part of the evidence of a prosecution witness;
and (iii) that the wording of the direction was sufficiently ambiguous to be
understood by the jury as shifting the persuasive burden of proof on particular
issues and therefore to undermine such directions as the judge later gave on
the burden of proof.
consider that these submission are quite without merit, and at best involve a
fanciful and highly artificial interpretation of what the judge was intent on
conveying - namely that the obligation on the cross-examiner is to challenge
those material parts of the witness's evidence which are disputed.
Rhodes confined his criticisms to the second sentence of the quoted passage.
It is of course correct that, insofar as the words used conveyed that the
appellant had to make it clear
he proposed to call a witness
that was strictly incorrect. Mr. Rhodes conceded, however, that if the judge
had said "If you propose to call evidence that contradicts the evidence of the
witness, then you should make
effect of the contradiction
clear to the witness so that he has an opportunity to deal with the point ..."
that would have been unexceptionable.
have no doubt that that is the overall message that the judge's actual words
would have conveyed to the appellant and the jury. By the second sentence the
judge was seeking to put some flesh on the legal formula accurately spelled out
in the first. We cannot conceive that the jury would have understood the
direction in the sense contended for in (ii) or (iii) above - even at the
time, let alone months later when they were listening to the summing up. This
ground involves a technical quibble, and merits no further attention.
are two further grounds (13 and 14) which relate to matters involving the
conduct of the trial and it is convenient to consider them before we turn to
the remaining grounds, all of which relate to the summing up. The two grounds
are closely related, and focus on what are said to be the unfair and
prejudicial way in which the prosecution conducted the case against the
13 complains that in his closing speech Mr. Latham unfairly criticised the way
the appellant had conducted his defence, suggesting that he was intentionally
evading the truth and not permitting witnesses to give evidence on important
issues in the case. The implication, it is contended, was to suggest that the
defence was dishonest and so therefore was the appellant - a tactic which took
unfair advantage of a litigant in person. This impropriety was compounded, so
it is alleged, by counsel's suggestion in his closing speech that monies had
been misappropriated by the appellant for the benefit of members of his family
or dissipated in extravagant living; that the charitable works which figured
large in Arrows' business publicly were done with the intention of "propping up
the fraud"; and that these allegations, which did not figure in the
prosecution's case statement, were inflammatory and unfair, especially to a
litigant in person.
order to give the flavour of this point we shall quote one or two of the many
passages to which we were referred in the transcript of Mr. Latham's final
continued trading simply by in effect mortgaging the group's main asset, namely
the property portfolio which brought in lots of cash, the double borrowing.
Then to use all that cash to pay the interest and to pay the jet flights around
the place, and to pay all the ritzy entertaining and to pay for all the staff,
and to pay the likes of Tariq [the appellant's brother] a million pounds in
cash. I said to Mr. Wilkinson [the appellant's accountancy expert], in the
light of the fact that Arrows was a property company, why are all the staff
there, the 90 odd staff? What is the television advertising about? What is
all the publicity for? Why all the charitable functions? Why were all the bad
debts being disposed of as it were under the counter without publicising it to
connection with the reference to the appellant's brother Tariq we were shown a
number of passages in the cross-examination of the appellant where the
suggestion that £1 m. had been illicitly paid to Tariq were pressed, it is
said unfairly. The complaint is that there ought either to have been a charge
of misappropriation of the money paid to Tariq or at least an assertion in the
case statement about it.
a complaint is made in the written submissions on the appellant's behalf in the
the closing submissions of leading counsel for the Crown contained the
distasteful and unfair implication that the appellant was a jumped up, vulgar,
ostentatious hypocrite from an immigrant background who had only achieved
success by perpetrating a staggering fraud. This goes beyond the bounds of
reasonable comment. There must be limits to the extent to which a court is the
appropriate forum for such personal vilification which a reasonable
dispassionate observer might regard as mere prejudice.
however, we were referred to the passage on which this serious assertion is
based, we found that what Mr. Latham actually said was:
it personal enrichment beyond one's wildest dreams ... to fly round the world
in your personal jet, to commute from the South of France, to be feted by the
famous and by royalty, the successful dynamic entrepreneur, the benefactor of
good causes, the supporter of charities. It is all on other peoples money and
it was all done to prop up the fraud ...
is, in this admittedly hard-hitting passage, no hint of the most serious of the
suggestions contained in the submission. However, even if regard is had to the
words used by counsel, it can be said that some quite forceful submissions were
being made which presented the appellant in an unflattering way.
response to this ground of appeal the Crown drew attention to the fact that in
opening his case the appellant had, in outraged terms, spent considerable time
telling the jury how the authorities had pursued him and his family and made
their lives a misery: and in the course of his evidence in chief had again
emphasised these criticisms. Given that it was - or became - common ground
that the beneficiaries of the ICE companies were the appellant's family, and
that the Crown's case was that money supposedly destined for old-style stock
finance had been used for purchase of property vested in these ICE companies,
investigation of the sort of matters of which complaint is made was to be
further factor is that, as appears from the brochures and other publicity
material which we have seen, the appellant had promoted Arrows in exactly the
way that, given what occurred, made cross-examination and comment of the kind
of which complaint is made relevant and indeed inevitable.
have carefully considered the material relied on is support of this ground, and
we are satisfied that the Crown did not act in an unfair or oppressive manner
in putting the case as they did. It is of course true that particular care
must be taken not to be unfair to a litigant in person but he does not enjoy
some special immunity which precludes the Crown from making valid comments or
pursuing relevant lines of enquiry - and in any case of this sort an
investigation of what has become of the money is usually relevant. As to
criticisms of the appellant's presentation of his case or cross-examination of
witnesses, similar considerations apply. It was the Crown's contention that
the appellant, on critical issues, had consistently and deliberately avoided
putting to the witness a positive case and they were entitled to make that
clear. It is the duty of the Crown not only to be fair to the defendant -
whether represented or not - but also to ensure that the points that can
legitimately be made in support of a grave case such as this was are made. We
are satisfied that they performed this duty properly, and we reject the
assertions of unfairness and oppression embodied in this ground.
14 contains allegations of unfairness based both on the matters already
considered and on what are said to be the interventions and interruptions of
leading counsel for the Crown "which had the effect of diminishing the honesty,
credibility, competence, integrity and esteem of the appellant in the eyes of
the jury and which further had an oppressive and demoralising effect on the
appellant which inhibited his ability properly to present his case to the
jury". It is further contended that counsel's interruptions during submissions
to the judge in the absence of the jury had a similar effect. Finally, it is
said the judge's own interruptions had a similar effect.
Rhodes, in support of this ground, submitted two files, containing a
compendious collection of the interventions he relied upon: Schedule 4,
Interventions of Prosecution Counsel, and Schedule 5, Interventions of the
judge. Quite properly he did not take the court through each and every
intervention which the above schedules demonstrate occurred. Save for one
instance where he contended the judge interrupted no less than 30 times in the
course of a day, he did not direct the court's attention to any particular
interventions and interruptions. He invited the court to read the two
schedules, having in mind the consequences which he submitted had occurred and
which constituted the unfairness relied upon. The preponderance of counsel's
interventions arose in the course of the appellant's cross examination of
witnesses. The judge's interventions occurred frequently in cross examination
by the appellant but also during the very lengthy evidence in chief of the
Rhodes accepted that the conclusion whether there had been a fair trial on
grounds such as this was essentially a matter of perception and impression for
the court. His submissions were consistent with the contentions advanced in
this ground, summarized above.
must be obvious that where a defendant chooses to conduct his own case, he will
be subject to interruption from both counsel for the prosecution and the judge
in relation to his conduct of the case. Those objections and interruptions
will in general be made in the presence of the jury. By electing to conduct
his case a defendant cannot acquire immunity from interruption and objection
from those sources. A helpful consequence of being represented by counsel is
that when aspects of the defence case (for example as it is put in
cross-examination) give rise to comment, that comment will be directed at
counsel. The defendant is thus screened from being the immediate focus of
attention in the jury's eyes. In a case where a defendant acts in person and
interventions by counsel or judge are necessary it is to be expected that both
will act with restraint and endeavour to limit intervention to the occasions
when, in their judgment, it is necessary. Both should be alert to any possible
prejudice to the defendant's ability to conduct his case. Plainly no advantage
should be sought to be obtained from the defendant's position. The number of
interventions, however, cannot of itself be determinative of the question
whether a fair trial has taken place, for the number of interventions may
themselves have been dictated by the need to secure a fair trial: for example,
to ensure the proper presentation of the case, and the exclusion of irrelevant
and inappropriate material from the trial. Thus the number of interventions
will often reflect the skill with which the defendant in person has been able
to conduct his defence. An unskillful presentation of a case demanding
frequent intervention cannot of itself give rise to a ground of appeal that the
number of interventions has prevented a fair trial. In the judgment of this
court the starting point is to consider the ground for objection or reason for
the intervention. Other considerations will also apply.
as this court does that as a matter of principle a trial could be rendered
unfair by the interruptions of prosecuting counsel and/or by the judge, we have
read the above mentioned schedules having in mind, in particular, the following:
reason for the intervention or interruption;
the intervention or interruption could fairly be termed gratuitous or
extent to which it can be seen that the judge has properly considered the
objections made by prosecuting counsel;
particular submission that the appellant was so demoralised and affected by the
interventions that he was unable to conduct his case properly, which has led us
to have close regard to the manner in which the appellant conducted himself
when the interruptions took place and to other parts of the general conduct of
his own defence.
by Prosecuting Counsel
of Schedule 4 discloses the following broad categories of bases for intervention:
about the appellant's readiness to start the case;
points being put in cross-examination by the appellant;
to the validity of a particular point being taken;
by the prosecution that the appellant should put his case;
objections in cross examination, for example, criticisms of a lack of precision
in language, the introduction of hearsay material, repetition, inappropriate
questions, and other objections to the admissibility of matters being put by
way of cross examination.
are satisfied that a legitimate ground for objection existed on each occasion.
In that sense objection was properly taken by prosecuting counsel. He was
vigilant and determined in pursuit of his objections. Other counsel might not
have taken the same objections. The prosecution was vigorously pursued. In
our judgment counsel was entitled to conduct the case as he did. His
objections were not invariably upheld. Sometimes the judge permitted the
appellant to pursue a line of questioning to which objection was taken. Again,
it is apparent that where the judge did not immediately resolve the question,
the appellant was quite able to deal with objections himself. He would appear
to have acquitted himself adequately. The jury inevitably witnessed criticisms
in open court of how the appellant was conducting his case, but they were not
personal, they were not gratuitous. We cannot conclude that they were
unnecessary or constituted the taking of an unfair advantage. There being a
rational basis for the objections we see no reason to conclude that the jury
would have appraised the objections in a way which did not give effect to the
context in which they had been raised. Thus we are unable to conclude that any
unfair consequence of the nature submitted by Mr Rhodes occurred.
by the learned Judge
of Schedule 5 discloses that the judge intervened on occasions which can be
broadly described as follows:
a witness who, by reason of the manner of cross examination was not being
allowed to answer;
the content of a document which was being put to a witness;
advising the appellant on how to conduct cross examination;
documents which might be helpful to the appellant which should be put;
witnesses who were not answering questions, or who were asking questions by way
the appellant down to permit answers to be given;
up questions which the jury itself posed during the cross examination;
a witness for the manner in which he gave his evidence;
the appellant to put his questions properly and fully;
to prevent repetition. It is clear to us that the Judge concluded that there
had been far too much repetition.
judge's interruptions were fair in the sense that they were polite and firm.
They were not personal. They were precisely the type of interruptions which a
judge would conventionally make to counsel conducting a case. There is nothing
to suggest that they were gratuitous or unnecessary. Indeed, we have concluded
from our reading of the transcripts that the judge had good reason to take
steps to see that the trial was properly conducted. The issue of repetition
was a matter with which he was, rightly in our judgment, deeply concerned, and
good case management required him to take firm steps to prevent repetitious
questions. There is nothing in the extracts that we have read to indicate that
in responding to the judge the appellant was so oppressed as to be
significantly handicapped in the presentation of his case. The transcript
discloses that on occasions he had difficulty articulating certain parts of his
case. But such events occur even with experienced counsel who, from the
pressure of circumstance and maybe pressure from interruption by his opponent
or the judge, might temporarily have difficulty in formulating questions
regard to the essentially straightforward character of the appellant's defence
to these charges, and having seen the nature of the case which he advanced, we
are not persuaded that he was prevented from presenting his case. The judge's
summing up contained a summary of the defence case which was a model of clarity
and simplicity. We have therefore concluded that this ground of appeal must
first of Mr. Rhodes's new grounds he has numbered 4C, which relates to the
point and counts 1 and 3, and we are inclined to agree that this is the place
where it logically falls to be considered. However, since Mr. Rhodes for good
reasons addressed us first on his other main new ground, we propose to consider
we shall for convenience call the extra ground - that not based on
- was, as finally formulated, in these terms:
4D: Obtaining Services by deception
learned judge erred in law and/or misdirected the jury in that he
to withdraw counts 2 and 4 from the consideration of the jury on the ground
that there was no evidence that
Revolving Credit Agreement (count 2); or
Credit Facility (count 4)
in each case a "service" and/or conferred a benefit on Arrows Ltd. which had or
would have been paid for within the meaning of section 1 of the Theft Act 1978.
in law in that he failed to withdraw counts 2 and 4 from the consideration of
the jury on the ground that there was no case to answer by reason that Arrows
had paid in full for such services as they had received under the Revolving
Credit Agreement and the Syndicated Loan Facility.
the jury and/or erred in law in that he directed the jury that
offence may be committed even where it is intended that the services should be
paid for or indeed where payment is made".
the reasons which we are about to give we have concluded that there is no
substance in this ground and, since we also considered that it raised no point
which is both relevant and reasonably arguable we refused leave for this
amendment. We set out our reasons below.
is convenient to deal with sub-paragraphs (c) and (d) first. Section 1 of the
1978 Act, headed "Obtaining services by deception", provides:
person who by any deception dishonestly obtains services from another shall be
guilty of an offence.
is an obtaining of services where the other is induced to confer a benefit by
doing some act, or causing or permitting some act to be done, on the
understanding that the benefit has been or will be paid for.
Rhodes submits that this section is ambiguous, because it is not clear whether
it makes it an offence only where the defendant is shown dishonestly to have
deceived the provider of services as to the prospect of payment, or whether it
is enough that in respect of a service for which payment is to be made, the
provider was dishonestly deceived into providing the service, In a sentence,
must the operative deception relate to the prospect of payment for the service
or may it be as to other matters.
the basis that his submission as to the existence of this ambiguity was
correct, Mr. Rhodes sought, in reliance on
 AC 593
, to take us to the record in Hansard of the debates leading to
the enactment of the section, and he also relied on what he called the
legislative history of the section. As to
he recognized the limitations indicated by Lord Oliver at page 620 A-B and D-E
but submitted that the present was indeed a case
the expression of the legislative intention is genuinely ambiguous or obscure
or where a literal or prima facie construction leads to a manifest absurdity
...." (per Lord Oliver at 620D)
relied in particular on the word "obscure". He accepted that unless he could
make good his assertion of ambiguity or obscurity we were not entitled to refer
to Parliamentary material.
see no ambiguity or obscurity in the section. In our view Mr. Rhodes's
argument founders on the word "any" in subsection (1), the presence of which
(as he was we think almost constrained to accept) cannot be explained on the
basis of his suggested restrictive meaning. So far from being open to the
possible construction that an offence is committed only where the deception
relates to the prospect of payment, the language of the section is in our view
entirely inconsistent with such an interpretation. What it says is that
dishonestly to obtain services by
deception of another is an offence in those cases where the services (a benefit
conferred by the doing of some act or the causing or permitting of it to be
done) are given on the understanding that the benefit has been or will be paid
for. There is simply no scope for Mr. Rhodes's suggested alternative
construction nor is there any ambiguity or obscurity - let alone manifest
absurdity, which Mr. Rhodes did not assert -about the literal construction
which we have identified. We accordingly refused to look at any Parliamentary
to legislative history, Mr. Rhodes relied on the fact that the 1978 Act was
passed "to replace section 16 (2) (a) of the Theft Act 1968 with other
provision against fraudulent conduct; and for connected purposes". As this
submission was developed it seemed to us that it was, if apt at all, germane to
the issue of how the suggested ambiguity should be resolved rather than whether
there was an ambiguity. Certainly we derive no assistance from it on the
are satisfied that there is no basis for the argument on which sub-paragraphs
(c) and (d) of the draft amended grounds are based and we reject them as
now turn to consider sub-paragraph (a). Inherent in this ground are two
contentions; first that the provision of the two facilities was not the
provision of services within the meaning that had been attributed to that word
in section 1 by this court in
 Cr. LR 624; and second that
is still to be regarded as good law notwithstanding recent decisions of this
court that it should not be so regarded. Mr. Rhodes accepted that, in order to
succeed, he must make good both of these contentions. We shall address first
the question whether, assuming that
embodies some principle and still binds this court, it would conflict with that
principle to hold that the provision of the two facilities by the banks
concerned amounted to the provision of services within s.1 of the 1978 Act.
a division of this court had occasion to consider whether the allegations in
counts 2, 3 and 4 of the indictment fell within section 1 of the Theft Act
1978, cited above.
case arose from the conduct of a 20 year old man who had but a few weeks before
the events in question become an insurance consultant. He had unjustifiably
high expectations of his likely future earnings. He opened a bank account with
Williams & Glynn's Bank having very limited funds, and went to see a
solicitor, who happened to be an agent for a building society, with a view to
purchasing a house. In an attempt to obtain an advance by way of mortgage for
the purchase of a house, he made misrepresentations about the length of time he
had been employed
his likely future earnings. He also presented for payment into the building
society account which was to be opened, a cheque for £500 drawn on William
and Glynn's Bank, when he knew that there were no funds to meet the cheque.
few days later he attended and delivered another cheque which he knew would not
be met, drawn in the sum of £250. He also induced by deception the
employee of the building society to pay out £100 in cash by claiming that
the initial sum of £500 had been paid not by way of cheque, but by cash.
very simple facts gave rise to an indictment which the court considered unduly
complicated. Count 2 of the indictment alleged that the appellant had obtained
a service, namely the opening of a savings account with the Portsmouth Building
Society, with an initial credit balance therein of £500. Count 3 of the
indictment alleged that he had dishonestly attempted to obtain a service,
namely a mortgage advance by deception by falsely representing that he was an
insurance consultant and had been so employed for 18 months. Count 4 alleged
that he had dishonestly obtained a service, namely the increase of £250 to
the apparent credit balance by payment of the invalid cheque referred to above.
At the time he obtained the £100 in cash the entry was made in his
passbook that £250 had been paid. The convictions on counts 2, 3 and 4
were quashed. On count 2 the court held:
a customer pays £500 into a bank, by no stretch of the use of ordinary
English can anyone suggest that the bank is conferring a benefit on the
customer; and so too, if the £500 is lodged in a building society account
by no stretch of the imagination can anyone say that the building society is
conferring a benefit on the customer.
the court held in answer to the submission that the benefit was the entry in
the passbook, that:
payment whatever was made for that, or expected for it.
was for those reasons that the count was quashed.
to count 4, the court held:
service was rendered by Mrs. Cooper, (the building society employee) by making
an entry in the passbook.
to count 3
a mortgage advance cannot be described as a service. A mortgage advance is the
lending of money for property and can properly be charged under s.15 of the
summary, therefore, the court held:
when a cheque is paid into a bank account by a customer the bank confers no
benefit on the customer;
benefit is conferred when an entry is made in a passbook recording a payment in;
mortgage advance cannot be described as a service.
is the third holding which has received much recent judicial consideration.
v Graham, Transcript 25 October 1996, R v Cooke, Transcript 24 January 1997, R
v Cumming-John transcript 28 February 1997, and R v Hilton Transcript 7 March
The Lord Chief Justice, Lord Bingham, observed in
that "the practical utility of this section has been greatly limited by the
The broad language employed went beyond the facts surrounding the particular
mortgage advance in question and has been treated as applying to all mortgage
advances. Having regard to the extent of the difficulty the words have
occasioned it may be pertinent to recall an observation of Viscount Haldane,
Lord Chancellor, in
& C Kreglinger v The New Patagonian Meat and Cold Storage Company
1914 AC 25
at page 40:
follow previous authorities, so far as they lay down principles, is essential
if the law is to be preserved from becoming unsettled and vague. In this
respect previous decisions of a court of co-ordinate jurisdiction are more
binding in a system of jurisprudence such as ours than in systems where the
paramount authority is that of a code. When a previous case has not laid down
any principle, but has merely decided that a particular set of facts
illustrates an existing rule, there are few more fertile sources of fallacy
than to search in it for what is simply resemblances in circumstances, and to
erect a previous decision into a governing precedent merely on this account.
To look for anything except the principle established or recognized by previous
decisions is really to weaken and not to strengthen the importance of
precedent. The consideration of cases which turn on particular facts may often
be useful for edification, but it can rarely yield authoritative guidance.
as we have said, the holding in relation to a mortgage advance is couched in
broad language, it cannot be taken that it was intended to lay down that no
mortgage advance, no matter what terms might attach to the mortgage and no
matter in what circumstances the advance had been made, could amount to a
service within the meaning of s.1 of the Theft Act 1978. In our judgment, at
its highest, the court was holding that a mortgage advance to a private
individual by a building society in respect of a private residence and on the
terms and conditions normally attendant upon such a building society mortgage,
did not amount to a service within the meaning of the Act. The court was
plainly concentrating its attention upon the money which would have been
obtained as a result of the deception, and must be taken to have concluded that
the consequences derived from such a transaction, namely the use and occupation
of a property and, in normal circumstances, the holding of a significant
investment, did not constitute a benefit. It is in this regard that the
decision is surprising and it is noteworthy that a division of this court in
82 Cr. App. R 314 was able to identify the conferring of a benefit sufficient
to constitute a service in a hire purchase situation.
support of his argument as to the status and effect of
Mr. Rhodes relied on an observation by Lord Goff in
at page 269:
is considerable force in this criticism and certainly, if accepted, it would
close a manifest gap in our criminal law. I feel bound to comment, however,
that, although a wide definition of "services" appears to have been intended
(see Professor Smith's The Law of Theft, 7th Ed page 112), nevertheless if
sub-section 2 were to be construed in the literal manner which is
understandably urged upon us in the literature on the subject, it would follow
that the ambit of section 1 of the Act of 1978 would be remarkably wide. It
would stretch far beyond what is ordinarily included in the notion of services
as generally understood. In particular, although we have become used to the
expression "financial services" as describing a range of services available
from those involved in that service industry, it is not altogether natural to
think of the simple making of a loan upon interest as itself constituting a
little later, Lord Goff observed:
stands, its effect is that [prosecuting authorities] can hardly charge
defendants, alleged to have committed mortgage frauds, with the offence of
obtaining services by deception ...
Rhodes submits that although we are not concerned with a mortgage fraud, by
analogy the revolving credit facilities obtained by Arrows and referred to in
the counts in the indictment should be treated as though governed by the ratio
Alternatively, he submits, they are covered by Lord Goff's observation that:
it is not altogether natural to think of the simple making of a loan upon
interest as itself constituting a service.
regard to: (1) Lord Haldane's reminder of the danger of erecting a previous
decision reached on particular facts into a governing precedent; and (2) the
strong criticism which has been levelled at the decision in
and the recent statements in other divisions of this court that that case
should not be followed, we would, if bound by it, consider it appropriate to
give effect to it only on the basis of the strictest and narrowest permissible
interpretations of its ratio. It should at best be treated only as authority
for what so interpreted, it actually decides.
2 alleged that the appellant obtained services from NMB, namely a £30 m.
revolving credit facility. Count 4 covered a similar facility for £11 m.
from GIRO. In our judgment there are a number of facts which distinguish such
a facility from a mortgage advance and from a simple "loan on interest". The
following are not intended to be exhaustive:
a facility is granted no loan is made until draw-down occurs.
facilities granted to Arrows provided the core finance for the operation of its
short-term capital financing business. The NMB facility was expressly stated
to be for the purpose of providing Arrows with "working capital requirement".
facility enabled Arrows to draw-down as and when it required finance and to
repay it as and when it chose to do so within the limits of the facilities
provided Arrows with financial strength and capability to the extent of the
facility beyond the assets of the company but without the need, save to the
extent of any draw-down, for the assets to be offset by a loan.
enabled Arrows to operate its business without entering into medium and
gave the company great financial strength and flexibility where hitherto it had
been required to seek finance from NMB and other banks against the presentation
of bills of exchange from the clients of Arrows.
were obliged to pay a commitment fee on signing of the facility and a further
commitment fee in the event that utilisation of the facility was less than a
specified percentage. In addition, upon draw-down interest was payable on the
facility carried the benefit of security for Arrows in that it was a committed
facility, enabling Arrows to draw-down and rely upon it for a period of up to
far as the facility for £11 m. obtained from GIRO is concerned, although
the charges were not the same, there was no material difference between it and
the terms and characteristics to which we have referred in respect of the NMB
facility was not available as "the lending of money for property". Indeed, the
very opposite was the case, for it is the appellant's use of money for that
purpose which has been found to be fraudulent. The case did not involve a
private individual and a building society. The circumstances of Arrows
financing its commercial affairs bear no resemblance to Mr. Halai's dealings
with the building society.
facility agreement, extending as it does to a substantial number of clauses,
cannot be described as a simple loan upon interest.
the above reasons we are entirely satisfied that there is no arguable case that
the facilities referred to in counts 2 and 4 of the indictment can be said to
fall within any governing ratio laid down by the case of
the light of this conclusion it is unnecessary to consider in any detail the
second contention (relating to the present status of
and we do not propose to prolong this already long judgment by doing so. We
state simply that Mr. Rhodes's submission was that the decisions in this court
in the cases of
was no longer to be regarded as good law were all made per incuriam and should
not be followed. His contention, in support of which he referred us to a
number of authorities, was that it was only open to this court to depart from a
previous decision of the court if that decision had been given per incuriam,
overruled by the House of Lords or reversed by Statute; or, exceptionally,
where justice to the defendant, who has been wrongly convicted on the strength
of an erroneous decision, required it. Since none of those reasons existed,
this court, which in the above cases appears not to have been referred to those
authorities, was itself acting per incuriam.
deference to Mr. Rhodes's careful argument we should record that the line of
authority to which he referred us included
v Spencer & others
 1 QB 771, where he particularly relied on a passage in the judgment of
May LJ at 778 F to 779 F. He also took us to the summary of the law on this
topic in the current edition of Archbold at 7-33 to 7-35 (and to all the other
authorities there mentioned, and others besides).
add only this. In
the Lord Chief Justice giving the judgment of the court, said of
years now the decision of this court in
has lain like a sunken wreck, impeding navigation but difficult, laborious and
expensive to remove. It amounts, on this point, to mere assertion, unsupported
by reasoning. Lord Lane CJ in
v Teong Sun Chuah
 Crim. LR 463 considered the decision to bear all the hallmarks of being
decided per incuriam. There is no reason to restrict the meaning of "services"
in section 1 of the 1978 Act, "services" being wide enough to embrace
professional services (as the court accepted elsewhere in its judgment in
and commercial services and financial services, the essential conditions being
that a service must confer a benefit and be rendered on the understanding that
it has been or will paid for. The time has in our judgment come when the
quoted above should no longer be regarded as good authority, and it should no
longer be followed. So to hold does not in our view remove the need for
remedial legislation, to which we refer below; but it may in the short term
provide a basis for indicting those responsible for at least some fraudulent
we have already said, that approach has been followed in a number of other
cases in this court. We cannot conceive (particularly in the light of Lord
Bingham's words at the beginning of the passage cited above) that he did not
have the principles of stare decisis well in mind, and we should not have
acceded to the invitation to treat
and the subsequent decisions as having been per incuriam.
had the outcome of this proposed extra ground of appeal depended upon whether
was still binding, we should have decided the matter on the basis that it was
learned judge erred in law and/or misdirected the jury in that he
to withdraw counts 1 and 3 from the consideration of the jury on the ground
that there was no evidence that the appellant obtained for Arrows Ltd. any
property belonging to another; and/or
the jury in connection with counts 1 and 3 that the credits to the bank account
of Arrows were the property of NMB.
we have said already, Mr. Latham conceded this point, accepting that in the
charges under s. 15 (1) of the 1968 Act were, on the facts of this case,
inappropriate. In our judgment, given the way in which the transfers of the
money was effected in each case, he was clearly right to make this concession.
His submissions under this head have accordingly been confined to inviting us
to substitute verdicts of theft, contrary to s.1 of the 1968 Act; or of
obtaining services by deception, contrary to s.1 of the 1978 Act; or procuring
the execution of a valuable security by deception, contrary to s.20 of the 1968
Act. We should, however, say something about the facts on which Mr. Latham
makes his concession, because they are relevant to the question whether
verdicts should be substituted. This can most conveniently be done by
reference to the documents pertaining to count 1.
a letter of 3rd August 1990 to Mr. Endersby the appellant for Arrows requested
NMB to make available a further £3,000,000, pursuant to the facility, on
6th August. On that date the appellant wrote again, in accordance with the
agreement enclosing a promissory note by Arrows for £3 m. with a maturity
date of 1st November 1990, and asking NMB to endorse the note and giving
instructions as to the destination of the funds to be paid. On the same day
NMB sent written confirmation of a SWIFT transfer of £3 m. to the
designated Arrows account. This document contained, in summary form, details
of the entire transaction, including the maturity date of the loan and the
interest payable. In particular it stated:
will remit [the £3 m.] to your account with Societe Generale ... through
Midland Bank International division London".
transaction was carried out as detailed in these documents. Save for the
difference in dates and amount the same procedure was followed in relation to
the draw down of the
m. the subject of count 3.
will be readily apparent why Mr. Latham conceded that, in the light of
and the subsequent decision of this court in
the convictions on these two counts could not stand.
Latham's first suggested alternative was theft contrary to s.1 of the Theft Act
1968. He conceded that he was unable to point to any case in which such a
substitution had been made. However, relying in particular on
69 Cr. App. R 395 (a case the authority of which was expressly affirmed in an
addendum to the judgment in
and the unreported decision of this court in
(7th March 1997) Mr. Latham argued that such a substitution would be
permissible and appropriate. There had been, he submitted, a deliberate
destruction of a chose in action belonging to NMB when its balance in the
Midland Bank was debited. That event was, it is true, the immediate result of
the instructions given by NMB (and was therefore consensual) but that was no
bar because the consent had been procured by deception. In this connection he
placed reliance on
 AC 442
argument on this point was lengthy and wide-ranging, and we have not mentioned
all the submissions made. We are, however, satisfied that theft is not an
available alternative on the facts of this case, if only because
Mr. Latham conceded there was no evidence as to the state of NMB's account at
the Midland Bank. For all we know (or the jury knew, which is more to the
point) the payment ordered would have resulted in an unsanctioned overdrawing.
Mr. Latham submitted that the jury could, despite the absence of
evidence, have inferred that the account was either sufficiently in credit or
within authorized overdraft limits, and therefore fell within the first or
second of Lord Lane's categories in
but we do not agree. There simply was no evidence from which such an inference
could be drawn.
are not satisfied that a misrepresentation which persuades the account holder
to direct payment out of his account is an assumption of the rights of the
account holder as owner such as to amount to an appropriation of his rights
within s.3 (1) of the 1968 Act.
all the circumstances we are not satisfied either that the terms of the
indictment were such that the jury could have found the appellant guilty of
theft of a chose in action or that they must have been satisfied of facts which
proved the appellant guilty of theft - the two requirements that the
prosecution must establish before this court can substitute a conviction for an
alternative offence (see per Lord Bingham CJ in
next suggested substitute conviction advanced by Mr. Latham was obtaining
services by deception contrary to s.1 of the 1978 Act, the same offence as that
charged in counts 2 and 4. He relied on the fact that in two of the unreported
cases to which we have earlier referred -
- this court had made such substitution: and he argued that on the facts it was
plain that the terms of the allegations in counts 1 and 3 of the indictment
impliedly included an allegation of such an offence (s.6 (3) of the Criminal
Law Act 1967) and that the jury could on the indictment have found the
appellant guilty of such an offence and must have been satisfied of facts which
proved him guilty of such an offence (s.3 of the Criminal Appeal Act 1968).
The way in which, at the end of his argument, he formulated the charge which
the indictment impliedly included was that, whereas count 2 covered the
obtaining by deception of the service involved in making available a facility,
the suggested alternative to counts 1 and 3 covered the obtaining by deception
of the service involved in the utilization of the facility, by taking advantage
of the right to draw down funds.
Rhodes, in response to these submissions, did not contend that the main part of
Mr. Latham's argument was incorrect; he confined his submissions to the
relied on his earlier arguments based on
and contended that in the circumstances the facts did not in law support a
charge that services were obtained.
invited us, as a matter of discretion, to refuse to permit substitution,
because as he submitted there were available to the court plenty of other
counts which reflected the overall criminality of the appellant and in all the
circumstances it would not be appropriate or fair to substitute two more.
to the first of these submissions, it will be clear from what we have said
earlier that we take the view that, even if
is still to be regarded as correctly decided, it is to be treated as a case
very much on its own facts. In our judgment there are very significant
differences between the mere "lending of money for property" in an ordinary
mortgage transaction and the arrangements involved in a continuing facility
with its reciprocal obligations. We are quite satisfied that, here again, any
principle embodied in
would not compel us to hold on the facts of the present case that, when the
bank complied with a requirement by Arrows to draw down funds pursuant to the
facility, the bank was not providing a service. Plainly, it was doing so.
had we not been satisfied of this we should, for reasons given earlier, have
felt compelled to treat
as no longer binding.
to discretion, we have carefully considered Mr. Rhodes's submissions, in the
course of which he made it clear that, notwithstanding his argument as to
overall criminality, he would be submitting that the quashing (without
substitution) of counts 1 and 3 should make a significant difference to the
overall sentence. It seems to us that,given that the jury were, as their
verdicts demonstrate, satisfied that the appellant dishonestly deceived NMB
into granting the facility and permitting it to be operated, there is nothing
inappropriate or unfair in making the substitution for which the Crown contend.
We indicated at the conclusion of the argument that we proposed to do so, and
is accordingly unnecessary to consider Mr. Latham's arguments in support of the
third possible substituted offence - procuring the execution of a valuable
security by deception contrary to s. 20 of the 1968 Act. We say no more than
that this involved reliance on the cancellation of the promissory note provided
as security for the loans and that, as he developed his submissions, we readily
understood why Mr. Latham characterized this option as the one he favoured
least. We should not have permitted it.
Rhodes's subsidiary new grounds only arose if one or both of his main new
grounds succeeded - in the case of the first ground to the extent of
successfully resisting the substitution of a conviction for an alternative
offence - and in the event he did not advance them.
turn now to the grounds which embody criticisms of the summing up. We begin by
setting out a quite lengthy passage from the summing up to which the first
group of grounds that we shall consider relates - for ease of reference we have
numbered the paragraphs.The quotation starts with a passage which occurs
shortly after the judge had introduced the elements of Counts 1 and 3,
explained that they were sample counts and explained what obtaining property
meant. He continued:
person is to be regarded as having an intention permanently to deprive another
of property if, even though he does not mean the other to lose the property
permanently, he intends to treat the property as his own, to dispose of
regardless of the other's rights. Thus, if money is loaned for a particular
purpose, an intention to use it in a way which was not intended by the lender
and for an entirely different objective may amount to an intention permanently
to deprive, whether or not the borrower has the hope or expectation of repaying
the sum advanced. The intention must be present at the time when the property
judge then dealt with intention and deception and continued:
a representation may be true in one sense, that is not necessarily a defence.
Clearly, if the person making the representation may have honestly intended
that the true sense should be understood, he would be not guilty of the
offence. But if he intended that the representation would be understood in the
untrue sense and it was in fact understood in that untrue sense, then that is a
particular representations in counts 1 and 3 cover two broad topics: trade
finance and insurance. You are not concerned in this case with legal arguments
as to what these terms might encompass or might mean. You are considering them
as representations made about the business of Arrows. In considering whether
an individual representation was false, you should ask what NMB understood by
the use of the expression "trade finance", for example, and what Mr. Naviede
knew and intended that they should understand. Similarly in relation to
insurance, the representation which the prosecution seek to prove at number 3
is that each individual transaction with a customer of Arrows was insured. Is
this what NMB understood and what Mr. Naviede
knew they would understand to be
the insurance position as a result of a representation that he made?
deception must operate on the mind of the person deceived, in this case the
representatives of the banks -- and taking the transactions as a whole -- must
be the cause of the property being obtained.
this has to be approached employing common sense. There may be many reasons
why banks loan money, not least the wish to make a profit. Equally, lending
may be the result of a sequence of events and decisions set in train by the
initial representations. The deception does not need to be the only reason for
the advance but it must have been relied upon so as to be the effective cause
of the obtaining. If the representation was unimportant to the person to whom
it was made and played no part in the obtaining of the money, then clearly it
would not have been the effective cause.
must be sure that Mr. Naviede
acted dishonestly. In deciding whether the
prosecution have proved dishonesty, you approach the matter in stages.
Firstly, consider whether on the evidence before you you are sure that Mr.
acted dishonestly by the standards of ordinary and decent people. If
but only if you consider that he did so act, then go on to consider whether you
are sure that he must have realised that what he was doing was by those
should add in this regard, members of the jury, that, although it may seem
difficult to envisage a deliberate deception which was not also dishonest, the
question of dishonestly is a separate matter to which you must apply your
minds. You will, just by way of illustration, remember for example the
evidence that Mr. Naviede
was secretive in his business affairs. There has
been a good deal of evidence about that. It is conceivable that the true
nature of a business might be concealed by a deliberate deception for the
honest purpose of protecting trade secrets or confidentiality. I merely give
that to you as an example, members of the jury, about how deception and
dishonesty are separate matters to be considered. However, since I have chosen
this as an example, I should remind you that it is Mr. Naviede
's case that he
did not deliberately deceive anyone whether for this or any other reason.
an intention to repay sums obtained or to perform contractual obligations at
some stage may be evidence of honesty, it is not of itself a defence to this
would like you now to go to the script that has just been handed to you, as I
conclude my directions on counts 1 - 3. Do you have the first page, counts 1
in mind the directions I have given you as to all of the elements of the
offence and my observations (if you agree with them) as to what is in issue, it
may be helpful for you to approach your consideration of these counts by taking
each representation in turn and asking whether the prosecution have made you
feel sure of the following:
that Mr. Naviede
made the representation;
the representation was false when made;
at the time when the representation was made Mr. Naviede
knew it to be false
and intended to deceive NMB;
the credit to the account of Arrows was obtained as a result, that is to say
that the representation was the effective cause of the credit;
intended permanently to deprive NMB of the sums advanced;
reference in paragraphs 9 and 10 to a script is a reference to written
directions which the judge had prepared, the content of which can be gathered
from what he said.
on the second day of their retirement, the jury asked the judge if he would
clarify sections (c) and (e) of his written directions, he discussed with
counsel and the appellant how he should answer and in the event adopted
suggestions by Mr. Latham that in repeating his earlier directions he should
add a few words in paragraphs 1 and 3. Accordingly, when he repeated paragraph
1 he extended the penultimate sentence by adding the words "and even if at some
later stage an equivalent value is returned". In paragraph 3 he also inserted
some words and for clarity we repeat the entirety of that paragraph with the
added words underlined.
particular representations in counts 1 and 3 cover two broad topics: trade
finance and insurance. You are not concerned in this case with legal arguments
as to what these terms encompass or might mean. You are considering them as
representations made about the business of Arrows. In considering whether an
individual representation was false you should ask what NMB understood by the
use of the expression "trade finance".
they have understood it to encompass property financing or, alternatively, are
you sure that they understood it to mean traditional stock financing
example, and what Mr. Naviede
knew and intended they should understand.
Similarly, in relation to insurance, the representation which the prosecution
seek to prove at number 3 is that each individual transaction with and customer
of Arrows was insured. Is this what NMB understood, and what Mr. Naviede
they would understand, to be the insurance position as a result of the
representation that he made?
4A and 4B assert that the judge erred when he directed the jury as he did in
paragraphs 2 and 3. These directions were, Mr. Rhodes submitted, simply wrong
in law. It was the appellant's case that the property financing business was
within the description of trade finance and there was some evidence to support
this construction, as well as what Mr. Rhodes called a concession by Mr. Latham
for the Crown in his closing submissions to that effect. He argued that the
judge was not only disregarding these matters by his directions in the first
sentence of paragraph 2, he was also confusing two distinct elements of the
offence - whether the representation was false and whether it was made with the
intention of deceiving the bank. The judge should have directed the jury that
a representation was either true or false; and that if they were not satisfied
that it was false that was an end of the matter and the defendant must be
acquitted. Only if they were sure it was false need they consider the other
quite separate elements of the charge. The subjective understanding of the
defendant or the complainant was irrelevant at this initial stage.
this connection we were referred to
 36 Cr. App.R 184, a case in which the charge depended on proof that the
defendant did not, as he had represented he did, own a vehicle which he had
disposed of. The Crown's case rested on the proposition that the vehicle was
subject to a hire purchase agreement to the defendant who therefore did not own
it. However, the court concluded that the documents were a sham and that he
did in fact have title; and it was held that notwithstanding his own belief to
the contrary, he was entitled to be acquitted.
is, in our view, not material in the present context. There it turned out as a
matter of law that the defendant was the owner of the car, even though he
believed that he was not. Plainly, therefore, he could not be guilty of
obtaining by deception - there had been no deception. The present case was
quite different, for the reasons given by Mr. Latham - namely that the issue
for the jury was what, in the context of the business of Arrows and the
exchanges between the appellant and the banks, the words trade finance were
intended by him and understood by them to mean. Trade finance is not a term of
art and we accept Mr. Latham's submission that it was well understood by
everyone at the trial, including the jury, that they could only convict if they
were sure that by that term the appellant meant the banks to understand and
they did in fact understand that he required money for the purposes of
providing finance to traders by means of purchase and resale of stock.
reject Mr. Rhodes' contention that, in the circumstances the indictment was
defective and the judge should have required it to be amended or alternatively
withdrawn these counts from the jury.
should mention in this context that we were referred by Mr. Latham to and
derived assistance from the recent decision of this court in
v Page and others
 Crim. L.R. 821, a case in which it was contended for the appellant that
it was for the judge to direct the jury as to the legal effect of undertakings
given by a solicitor. In rejecting that contention Kennedy LJ. giving the
judgment of the court referred to
 CLR 525 and to Sir John Smith's comment in a footnote:
distinction must be made according to whether the issue is as to:
legal effect of the document or
meaning of the document as (a) understood or intended by the person making it
and (b) understood by the person reading it.
the issue is as to the legal effect of the document, it is submitted that it is
a matter for the judge. Where the issue is as to the meaning intended or
understood by the parties it is a matter for the jury".
precisely encapsulates the position as we understand it. In the present case
the issue in relation to each alleged solicitor's undertaking was as to the
meaning of the document as understood by the person reading it - either Page or
Holden. It was therefore a matter for the jury"
should not be thought that, in arriving at the conclusion stated above, we have
failed to have regard to Mr. Rhodes' arguments that in any criminal trial the
indictment is a crucially important document and that it is incumbent on the
Crown properly to plead the ingredients of the offence. We accept that the
indictment must make clear to the defendant what it is that is alleged against
him. In essence the complaint here is of the failure to refer to stock finance
or to make it clear by additional words that the allegation was that the term
trade finance was used in the sense of stock fiance. But in the context of
this case that complaint is, we are satisfied, technical and ummeritorious. It
is easy to understand why the words trade finance were used, because that is
the way "trade finance" is described, in effect defined, in the all-important
documents on which the Crown relied - see in particular the Information
Memorandum. As we have said, we have no doubt that, both by reason of the way
the whole trial had been conducted and in the light of what the judge said in
his summing up, the jury well understood that the misrepresentation alleged
involved that the appellant was telling the banks that the business of Arrows
was still old style stock finance and that it was for that purpose that he
required the money.
to the contention that the judge was, in paragraph 2,. confusing the question
whether the deception was false with the question whether it was operative, we
accept that he was dealing with both concepts. It does not, however, follow
that this was confusion or that the jury were confused. Here again our view is
that this is in the context of this case a technical rather than a substantive
before he gave the direction in paragraph 2 the judge had told the jury that
the deception must be deliberate and false when it was made, explaining that
deliberate in the context meant that the representation was made in the
knowledge that it was false and with the intention that the person to whom it
was made should believe it to be true. In paragraph 3 he told the jury that
they were considering the representations "as representations made about the
business of Arrows". We are satisfied that the jury would have understood
paragraphs 2 and 3 as meaning that, in deciding whether the representations
were true or false, they were concerned not with some possible meaning that
they might, as a matter of strict construction, bear, but with what they were
intended and understood by the parties to mean at the time and in the context
in which they were made. The jury must have understood perfectly well that if
they thought that the appellant may have intended the words to encompass
property finance or the banks may have understood them in that sense then the
appellant was entitled to be acquitted. We therefore reject Mr. Rhodes's
submission that paragraph 3 contains serious misdirections and, with paragraph
2, may have led the jury to understand that they could convict the appellant
even if the Crown had not proved that the representations alleged were false.
We also reject his argument that the jury may have failed to understand that it
was incumbent on the Crown to prove as a distinct element of the charge that
the deception had caused the loss: that this was necessary was we consider
abundantly clear from the judge's directions taken as a whole, including his
Rhodes also advanced under this head some arguments in connection with the
aspect of insurance but it is more convenient to deal with those in a different
5A asserts that the judge erred in that he gave no adequate directions as to
the separate elements of deliberate deception and dishonesty required to be
proved in the counts of obtaining by deception, or as to the matters the jury
could properly take into account in determining those elements. It is
contended that the correct direction given in paragraph 7 was wholly vitiated
by the allegedly incorrect directions in paragraphs 2 and 3. Given the view we
have expressed about the latter paragraphs, we need say no more than that we
reject this contention.
5B raises a discrete point in relation to paragraph 8, contending that the
judge was there guilty of a serious misdirection in that he did not go far
enough, since he should have reminded the jury that intention to repay might go
to the issue of dishonesty, which was at the core of the case; and that he
should in this context have emphasised that absent proof of dishonesty the
defendant did have a defence.
is said that this misdirection was compounded by the judge's direction in
paragraph 1, repeated with additional words in answer to the jury's question -
those additional words introducing the incorrect and confusing notion that an
intention permanently to deprive is synonymous with an absence of intention to
repay. It was said that intention permanently to deprive the banks of the sums
advanced was not in issue and that the only issue to which intention to repay
went was dishonesty. Accordingly, it was argued, those directions were
confusing to the jury - all the more so because of the introduction of the
concept, irrelevant on the facts of this case, of unauthorized later
was in our judgment necessary for the judge to direct the jury on intention
permanently to deprive: we accept Mr. Latham's recollection that this element
of the offences
in issue. However, we accept that in the passages relied on by the appellant
there was an element of confusion.
question, however, is whether the central thrust of this ground - that the
judge misdirected the jury in saying what he did in paragraph 8 by not making
clear that intention to repay was relevant to the important issue of dishonesty
- is made good. We have no doubt that it is not. The first part of the
sentence specifically refers to its relevance to the issue of dishonesty, and
it was not necessary for the judge to say more.
5C seeks to impugn the judge's directions on dishonesty. He had given a
standard direction in accordance with
75 Cr. App. R 185 of which no criticism is made. The complaint is that such a
standard direction was in the circumstances wholly inadequate - there should
have been a direction tailor-made to guide the jury by explaining to them how
the evidence and the issues in the case which they had to decide related to the
honesty or dishonesty of the appellant. Thus, it is argued, among the
questions which the jury ought to have been directed specifically to consider
were whether the appellant believed or might have believed that he had made
sufficient disclosure to the banks; that the insurance policies covered Arrows'
property business; and that that business could properly be described as trade
it is said that there was a serious omission in that the judge failed to direct
the jury that the formation of a dishonest intent in relation to the banks
the obtaining of the property did not suffice to prove dishonesty at the time
of the obtaining.
complaint is made in relation to the judge's failure to direct the jury to
ignore a suggestion, already mentioned in a different context, that the
appellant had been salting money away for himself or his family. The
submission is that the jury should have been directed to ignore that
suggestion, and that the failure so to direct them was a material misdirection
because the allegation may have been a factor in their deliberations on the
issue of dishonesty.
cannot accept these criticisms. The extent to which a judge who has given what
is conceded to be a correct direction in law as to dishonesty may choose to
reinforce that direction in relation to specific issues is very much a matter
for his judgment, and we find no valid reason for criticising what the judge
did in this case. He had, as passages we have already cited show, made clear
to the jury that an honest intention on the part of the appellant as to how his
representations should be understood would entitle him to be acquitted. Both
his written and his oral directions made clear that the prosecution must
establish dishonesty and that central to the defendant's case was his assertion
that he had acted honestly throughout. The jury were properly directed as to
the material time for proof of the charges, including the element of
dishonesty. As to the introduction of the suggestion that money had been
salted away, we have already considered this when dealing with Ground 13 and we
do not accept that it was incumbent on the judge to give the suggested
direction on dishonesty in relation to it.
vital question is whether the jury - who after hearing this case for months
were obviously very familiar with the issues - were made sufficiently aware of
the fact that the question of the appellant's honesty was central, and that it
was for the Crown to satisfy them so that they were sure that he had been
dishonest. We have no doubt that they were, and we do not think that the
judge's directions on this issue were deficient.
Ground 6 it is alleged that there was a misdirection by reason of the judge's
failure to tell the jury that the appellant was under no duty to disclose
material facts to the banks when he made representations as to the scope of
Arrows' business. It is further contended that he should have directed them
that there was a material difference between insurance contracts and agreements
between a bank and its customer in that the latter are not subject to duties of
utmost good faith.
is in our judgment no substance in this ground. It is based primarily on the
contention - disputed by the prosecution - that Mr. Endersby of NMB had
repeatedly confused the two types of contract and appeared to believe that he
was entitled to complete disclosure. However, the passage in his evidence to
which we were referred does not support the contention that he was equating
agreements between banks and their customers with contracts of the utmost good
faith - and we do not believe the jury can have thought that there was any such
obligation. Counsel for the Crown had in his opening explained that an
involved a duty of full disclosure and the judge in summing up, when dealing
with the evidence of Mr. Morris the insurance broker, had rehearsed his
evidence that "utmost good faith" is a general concept in all forms of
insurance. We see no reason to think that the jury may have been under a
misapprehension that such a duty applied to other contracts.
has to be remembered, moreover, that the Crown's case, based as it largely was
on the contents of the Information Memorandum, involved a positive
misrepresentation to the effect that Arrows' business was and remained one 98%
which related to old style stock finance.
7 relates to the way the judge dealt with similar fact evidence, and requires a
Crown had adduced evidence of witnesses from three banks which did not figure
in any of the counts in the indictment. It is clear that, at least by the end
of the case, the relevance of this evidence was that it went to refute the
appellant's case that it was Mr. Endersby who had been responsible for
inserting in the Information Memorandum all those details on which the Crown
placed so much reliance. The Crown pointed to the evidence of the witnesses
from these other banks, whose accuracy but not whose honesty was challenged by
, that he had told them very much the same as Mr. Endersby said Mr.
had told him. This was, accordingly, most telling evidence. It went
to support Mr. Endersby's and refute the appellant's evidence as to where the
damaging information came from. What it did not go to prove, however, was that
what the appellant had allegedly said, whether to Mr. Endersby or other
bankers, was untrue.
judge gave the jury this direction:
the case of each of the banks that I have referred to, the prosecution say that
was falsely and deceitfully representing that the main part of his
business was trade finance, the old business, backed by insurance. It is
alleged that the false and deceitful representations caused each bank to grant
facilities, and that Mr. Naviede
was behaving dishonestly.
deciding whether for instance you are sure that an individual offence is made
out against NMB, you may take into account the evidence of any of the other
banks I have referred to -- that is Giro, Dresdner, RZB and OLB -- if you find
that there is an underlying unity shown in their evidence as to make
coincidence an affront to common sense. Putting it another way, if you find
that there is a plain unity of intention shown on the defendant's part
dishonestly to obtain from the banks by deception, then you may take into
account the evidence of the other banks when considering if you are sure on an
you may use the evidence of the other banks in that way, you must feel sure
that the evidence of the bank in question was independent of the others, and
this has two aspects: firstly, you must feel sure that there has been no
collaboration between them in the account that they give, collaboration meaning
putting their heads together to tell a false story; secondly, you must feel
sure that there has been no contamination of their evidence. Contamination in
this context means being influenced by hearing of other allegations or being
influenced by some third party such as an investigating officer to make
unreliable or untruthful statements.
the evidence of any or all of the other banks I have referred to does not pass
the tests of independence that I have described, then it should be totally
ignored when considering each NMB count.
Mr. Rhodes submitted that the judge should have directed the jury to ignore the
evidence of the other banks entirely as it did not go to any live issue in the
case: but we think on consideration he accepted that it did go to the very
important issue we have identified. His real contention is that the judge did
not explain to the jury how the evidence was relevant, but instead gave them
what was intended to be a standard similar fact direction.
accept the validity of the criticism that this direction was in the
circumstances inappropriate in that it did not bring home to the jury the real
relevance of the evidence referred to. (However, we reject a second contention
- that the judge did not adequately warn the jury about collaboration and
contamination, since he plainly did so). The question is whether this
misdirection makes the appellant's conviction unsafe - a matter to which we
shall return when we have considered all the grounds of appeal.
8 concerns the judge's directions on the subject of insurance. Complaint is
made that the judge erred in directing the jury as he did in paragraph 3, in
effect telling the jury to concentrate upon whether the prosecution had proved
the alleged representation by the appellant that each individual transaction
with a customer of Arrows was insured.
the judge said in paragraph 3: "Is this what NMB understood and what Mr.
knew they would understand to be the insurance position as a result of
a representation that he made?"
Rhodes submitted that it was a question of law for the judge as to whether the
ICE transactions were capable of being insurable risks under the insurance
policy. That question went both to the issue of the falsity of representation
3 in Counts 1 - 4 and the appellant's dishonesty, in particular, whether he
could honestly have believed that the ICE transactions were insured against
loss. It was submitted that the judge should have directed the jury that, as a
matter of law, the ICE transactions were capable of being insurable risks under
the insurance policy because:
ICE transactions were capable, as a matter of law, of being described as "trade
insurance policies, as a matter of law, did not exclude cover in the respect of
the ICE transactions at least from 1st October 1990 having regard to the
references in Endorsement F effective from that date to "a Corporate Finance
Facility" and to Arrows being permitted to advance in excess of the permitted
limit of £200,000 "provided the net amount of exposure after deduction of
value of security held does not exceed £200,000".
Mr. Rhodes' submission, if the judge had taken that course, the jury would have
been enabled fairly to assess the appellant's alleged honest belief that the
ICE transactions were insured against loss.
some thirty-three pages of the summing up, the judge first summarised the
evidence of the prosecution witness, Mr. Morris, the broker who arranged the
insurance and referred the jury to the terms of various insurance policies. He
then summarised the appellant's evidence and the essential elements of the
appellant's case in respect of insurance.
is necessary to refer to the Arrows Insurance Company Limited policies for the
years 1988 - 1989, 1989 - 1990 and 1990 - 1991. The position from 1982 had
been that Mr. Morris, an insurance broker at Sedgwick Group PLC, arranged trade
or credit insurance on behalf of Arrows with a view to Arrows being indemnified
against losses incurred through the insolvency of clients who had defaulted on
their obligations to pay under the relevant Bill of Exchange. That insurance
was arranged at first through Trade Indemnity PLC. In 1985, Arrows Insurance
Company Limited (AIC) was established in the Isle of Man as a captive insurance
company to cover the first aggregate annual loss of £400,000, with Trade
Indemnity PLC issuing a policy of
to cover any potential additional liability over and above the £400,000
cover provided by AIC. AIC was only ever authorised to issue policies to
Arrows as the insured party. The AIC credit insurance policies for 1988 - 1989
and 1989 - 1990 are in identical terms save that Endorsement F, to which we
shall refer, was added on 2nd November, 1989. In summary, the effect of those
two policies was to provide insurance cover in respect of each stock finance
transaction up to 100% of the amount lent by Arrows with a £10,000 excess,
in the event of the insolvency of the client, subject to recoveries and
salvage. Those two policies plainly related to stock finance, the insured debt
being defined as relating specifically to the invoice value of goods, that is,
the stock purchased and resold by Arrows. There are numerous references
throughout the policies to "goods" or the "invoice value of goods", the trade
of Arrows being described in the policies as that of "Trade Financiers". The
permitted limit of any indebtedness by a client of Arrows (called "THE INSURED
BUYER") was expressed to be £150,000 subject to any higher limit being
specifically agreed in writing by AIC. The permitted limit was expressed to be
"for the purposes of THE DEFINITION OF INSURED DEBT", insured debt being
defined by reference to the "the invoice value of goods (or the face value of
the original Bill where a Bill of Exchange is drawn or accepted by THE BUYER in
respect of the invoice value of goods)". The policy for 1989 - 1990 introduced
for the first time Endorsement F in the following terms:
to the provisions of Section 5(b) of the Schedule to this Policy, the insured
can advance a facility to THE INSURED BUYER in excess of £150,000 without
the need to obtain a permitted limit from the Company provided the net amount
of exposure after deduction of value of security held does not exceed
"Section 5(b)" there referred to relates to the permitted limit of
£150,000 of any indebtedness by the Insured Buyer (Arrows' client),
Section 5(b) commencing with the words "For the purposes of THE DEFINITION OF
INSURED DEBT". Having regard to the definition of Insured Debt being firmly
tied to the invoice value of goods, it is plain that Endorsement F also related
to stock finance concerning the sale and repurchase of goods.
the AIC policies up to 31st March 1990 reflected what was understood to be the
nature of Arrows' business, namely, short term lending in respect of goods up
to a limit of, at that time, £150,000 to any one client, each transaction
being credit insured, up to 100% of the amount lent subject to an excess of
AIC policy for 1990 - 1991 introduced a number of changes. As with the two
earlier policies, the period within which the policy operated was specified in
Section 4 of the Schedule by reference to the "period for delivery of goods".
The period for delivery of goods was expressed to be for a year running from
1st April - 31st March. For the 1990 - 1991 policy, the period ran from 1st
April 1990 - 31st March 1991. In the 1990 - 1991 policy, Endorsement F
preserved the original Endorsement F referring to "deduction of value of
security held" and further redefined "INSURED DEBT" as follows:
INSURED DEBT is defined as being so much of any indebtedness arising out of the
trade specified in Section 2 of the Schedule ["Trade Financiers"] and owing by
an INSURED BUYER to the INSURED as does not exceed the limit permitted under
Section 5 of the Schedule [£200,000] and is in respect of goods sold and
delivered to and/or Bills of Exchange drawn or accepted by INSURED BUYERS
domiciled in [certain] countries ....... within the period specified in Section
4 of the Schedule pursuant to a Contract of Sale or a Corporate Finance
Facility providing for repayment of a debt upon the terms specified [normally
120 day Bill of Exchange]".
2 of Endorsement F provided that the definition of INSURED BUYER "shall be
deemed to include any client of ARROWS LIMITED with whom a Corporate Finance
Facility has been effected".
place of the heading of Section 4 of the Schedule "period for delivery of
goods" the following words were substituted: "period for delivery of goods
and/or commencement of a Corporate Finance Facility".
we have said, it was the prosecution's case that far from informing the Banks
or AIC that the business of Arrows had ceased to be that of stock finance and
had moved into commercial property investment, the appellant positively
represented that the business of Arrows remained the same, namely, that of
short term lending in respect of goods. Mr. Morris said in evidence that
Endorsement F as to "value of security held" was introduced to enable Arrows to
lend more than the permitted limit of £200,000 to any one customer without
reference to the insurance company where Arrows held security in respect of the
debt in excess of the permitted limit. He also said that the change in the
definition of insured debt to include "a Contract of Sale or a Corporate
Finance Facility" was introduced to deal with a possible problem about raising
invoices for VAT and did not affect "the on-going business of stock finance".
It was the appellant's case that the ICE transactions which commenced from
about early 1990 fell within the term "trade finance" and were covered by the
insurance policy as being Corporate Finance Facilities which, although each ICE
transaction normally involved lending by Arrows of sums in excess of
£1,000,000, fell within the permitted limit of £200,000. That, so
the appellant maintained, was because he personally had given indemnities to
each of the ICE Companies to cover any shortfall or loss on the ICE
transactions. In a word, the appellant's case was that his personal
indemnities amounted to "security held" within Endorsement F, although such
indemnities were held not by Arrows, the lender, but by the ICE Companies, the
those issues were properly left to the jury. What the judge did not do was to
direct the jury, as a matter of law, as to the true meaning of the AIC policy,
namely, whether it did or did not cover each ICE transaction. Mr. Latham
submitted that it was not necessary for the judge to do so. It was plain that
the course of dealing between the Banks and Arrows, together with the
representations made by the appellant about the nature of Arrows' business
meant that the terms "trade finance" and "stock finance" were effectively
interchangeable. It was further plain that the appellant had led the Banks to
believe that the stock finance business would continue to be insured,
transaction by transaction as before. What the insurance policy, properly
construed, actually covered was irrelevant because there was no true issue as
to its meaning. The fact was, as Mr. Latham submitted and as the evidence
showed, that, whereas stock finance transactions were insured to the extent of
100% of the amount lent subject to a £10,000 excess, the ICE transactions
were insured, if at all, to no more than a maximum of 8% of the amount lent.
is clear that the judge's decision not to direct the jury as to the true
meaning of the policy was quite deliberate. It seems to us that for him to
have done so would have been to risk confusing the jury. There was the
further risk that the appellant might contend that any ruling had resulted in
his defence being withdrawn from the jury. In our judgment, the judge's
decision was a correct one. We say that for two reasons.
as we see it, the judge would have been bound to rule that the policy, having
regard to the course of dealing between the parties, only covered short term
stock finance transactions and not the ICE transactions relating, as they did,
to long term commercial property investment. We have reached that conclusion
as a result of a careful consideration of the terms of the policies between
1988 and 1991. We regard it as unarguable that the changes introduced in the
1990 - 1991 policy could have had the effect of extending the ambit of the
insurance cover from short term stock finance transactions to long term
commercial property investment. The business of Arrows, so far as the
insurance company knew, continued to be short term lending for the purpose of
stock finance. Although the appellant's barely credible case was that the
insurance company was, or should have been, aware of the change in Arrows'
business, it would not have advanced the appellant's case or have assisted the
jury's understanding of it for the judge to have rehearsed with the jury the
rival interpretations to be placed upon the insurance policy which depended
solely upon whether the jury accepted the evidence called on behalf of the
prosecution or that of the appellant. Further and we regard this as critical,
the judge would have been bound to rule, as we see it, that the appellant's
personal indemnities given to the ICE Companies as borrowers and enforceable
only by them, did not amount to "security held" within Endorsement F which
could only have referred to security held by Arrows,the lender. It is to be
noted that in about half the ICE transactions, some thirty or so, there were no
indemnities in existence until June or July, 1991 so that, at the time those
transactions were entered into, Endorsement F (as to "security held") could
not, on any view, have applied. So in the case of each of those transactions,
the permitted limit of £200,000 was, without doubt, very considerably
exceeded. Thus, by adopting the approach he did, the judge in his summing up
was unduly favourable to the appellant. Instead of being faced by rulings
that the ICE transactions fell outside the insurance policy and that his
personal indemnities could not amount to "security held" (resulting in the ICE
transactions being very considerably in excess of the permitted limit of
£200,000), the appellant had the advantage that his alleged belief that
the ICE transactions fell within the policy was assessed by the jury,
untrammelled by rulings of law unfavourable to him.
the representations by the appellant plainly amounted to a representation that
each transaction would relate to short term lending stock finance covered by
insurance, as it had been over the years of dealing with the Banks. Put
another way, the case against the appellant was that he had falsely represented
that Arrows' transactions would be covered by equivalent insurance to that
which had obtained in respect of stock finance transactions.
at the case in that way, the true meaning of the policy was not in issue. If
the appellant had continued with stock finance transactions, such transactions
would have been covered by insurance as before, that is, to the extent of 100%
of the amount lent less a £10,000 excess. Because the appellant chose
secretly to embark upon the ICE transactions (each normally in excess of
£1,000,000) while pretending to be still engaged in stock finance, the
fact was that the policy, even if it covered such transactions, did so to the
extent of only 8% of the amount lent. Neither that fact (which resulted from
the very large amounts lent by Arrows to the ICE Companies) nor the existence
of the appellant's personal indemnities was ever explained either to the banks
or to the insurance company, as the appellant accepted in cross-examination.
It seems to us that, in all those circumstances, the judge's approach was a
correct one. It would not have assisted the jury to have to grapple with
directions of law as to the true interpretation of the insurance policy when
the real issues were (1) as to whether the ICE transactions were covered by
equivalent insurance to that which had covered the stock finance transactions
(which they plainly were not) and (2) as to whether the appellant could have
believed that the ICE transactions were so covered.
issues as to insurance were fully and clearly before the jury. The only
defence with any kind of viability related to the appellant's alleged belief
that the ICE transactions were covered by insurance. That went to the
appellant's honesty. That defence was left to the jury in terms that were at
least favourable to the appellant. We very much doubt that the jury would have
ventured beyond representations 1 and 2 so plain was it that the ICE
transactions had nothing to do with trade finance in the sense that that term
was understood and intended by the appellant to be understood by all concerned.
Even if they did, we cannot see that the judge's approach to the subject of
insurance was incorrect or that it resulted in other than advantage to the
we reject Ground 8.
8A requires no separate consideration, since it is in effect an abbreviated
reiteration of certain other grounds.
9 contends that the judge failed adequately to direct the jury as to the need
to give separate consideration to each count. He ought, it is said, to have
directed them that even if they found the appellant guilty on any of counts 1 -
4 it did not follow that he was guilty of any of the remaining counts. The
judge did more than once direct the jury to give separate consideration to each
count, and it seems to us that this ground is really comprised in Ground 10
which is in these terms:
learned judge erred in law and/or misdirected the jury in that he invited the
jury to take into account any finding of guilt on the obtaining by deception
counts when considering the remaining counts in the indictment. In particular
the learned judge wrongly repeated this misdirection in connection with count 8
relevant passages in the summing up are to be found at pages 2 and 24 of the
first day's transcript, where the judge said:
give separate consideration to each of the charges, each of the counts that
appears on the indictment, because separate verdicts are required for each
count. Which order you look at matters in, which of the counts you take first,
is entirely a matter for you. The prosecution have said that it would be
sensible to look at the counts alleging deception on the banks first. The
defendant in his final address began with solvency, an issue on count 8.
for instance you decide to deal with the counts alleging deception on the banks
first, and if you were to find the defendant guilty on one or more of those
counts, then plainly that is the factual background upon which you consider the
remaining counts. Likewise, if you were to take that course and if you had
acquitted the defendant of those counts, then that would be the factual
background upon which you would consider the remaining counts. But I repeat:
you give separate consideration to each count.
at page 24 he said:
I shall give you a separate direction as to the potential relationship between
certain of the deception counts, in relation to this count of fraudulent
trading I direct you as follows. If you are sure that Mr. Naviede
is guilty of
one or more of the counts of deception and you are sure that Arrows was
insolvent, then you would be entitled to take into account for the purposes of
your consideration of fraudulent trading any lies told to or deceptions
practiced upon the creditor bank or banks in reaching a conclusion about Mr.
's knowledge of solvency and the company's true financial position, and
also on the question of whether Mr. Naviede
intended to defraud the bank or
submission made by Mr. Rhodes concentrates on the judge's use of the word
"guilty": he does not suggest that it would have been wrong for the judge to
tell the jury that if they were satisfied the appellant had lied to and
deceived the banks during the relevant period those were facts to be taken into
consideration in their consideration of such matters as whether the intent to
defraud creditors had been established and whether there was a question mark in
the appellant's mind as to the solvency of Arrows: i.e. that would be a
relevant part of the background, but did not necessarily import guilt.
it in the way the judge did - "if you were to find the defendant guilty" -
carried the risk that the jury might take the illegitimate step of thinking
that a finding of guilt on the earlier counts equated with guilt on the later
counts. Hence the need for an express direction that guilt on one did not
equate with guilt on the others.
Latham's response, which we accept, is to contend that, against the background
of clear directions as to the necessity for separate consideration, the
suggested risk did not arise. If the jury made findings of guilt on any of
Counts 1 - 4 before considering the remaining counts (and the judge left it to
them to decide in what order to approach the counts) they were perfectly
entitled to bear in mind the factual conclusions underlying such a finding when
considering the other counts. The lending banks said to have been deceived
were also the creditors of the company referred to in Count 8. The judge's
words, so far from equating a finding of guilt on 1 - 4 with guilt on the
others, made clear that the relevance of that was the underlying facts.
Moreover the judge went on to direct the jury that an acquittal on counts 1 - 4
was also something they could take into account by way of factual background.
was, it seems to us, nothing wrong with these directions, and no danger of the
jury misunderstanding the point the judge was properly making.
11 is a complaint that the judge misdirected the jury on an important matter
which went to the appellant's credibility, and therefore his honesty - namely
a claim for professional privilege. This too needs a little explanation.
a time when the new joint auditors, BDO Binder Hamlyn, were voicing misgivings
about Arrows' accounts the appellant obtained a report from Coopers &
that in proceedings in the Chancery Division Hoffman J. had ruled that this
report was not privileged and (ii) that the liquidator had, as he was entitled
to do, provided the Crown with a copy of it, the appellant with the support of
Mr. Rhodes (who was advising him before as well as during the trial) intimated
a claim for privilege. The prosecution, we accept, must have taken a decision
not to contest that claim. However, in the course of cross-examination Mr.
Latham, mindful of the fact that the appellant had waived privilege in relation
to certain documents when it suited him, pressed him as to whether he would
disclose this report; and, when he refused, put to him that he was "scared
stiff". This, we should record, was in our view, an inappropriate assertion to
put to the witness, given that the claim for privilege was not challenged.
later, and in a different context, Mr. Latham asked of Mr. Levy, the
appellant's solicitor, some questions about the report - in circumstances in
which we are satisfied, contrary to Mr. Rhodes' submissions, it was legitimate
to do so.
judge, when in summing up he came to deal with the matter of professional
before I turn to the facts, the law allows in certain circumstances privilege
to be claimed for good reason. So no adverse inference should be drawn from
the fact that the defendant has claimed privilege in relation to a document in
complaint is that the judge should have gone on to direct the jury that the
comments that had been made were improper and unfair; and that "for good
reason" was an ambiguous phrase which did nothing to correct the unfair
impression, created by the question that the appellant was unjustifiably
seeking to withhold from the jury a document which would seriously damage his
case, or to correct the damage thereby done to his credit in the jury's eyes.
strongly suspect that the judge directed the jury as he did because he was
mindful of the fact that the damaging questions had been asked of the appellant
about a month before. In such circumstances he may well have thought - and we
would agree - that a brief direction such as he gave was in the appellant's
best interests. We do not, at all events, accept that what the judge said can
be described as a misdirection.
12 asserts that the judge's failure to give a
(1981) 73 Cr. App. R 159 direction in relation to lies was a misdirection.
Rhodes first submission was that, because it was suggested by the Crown that in
many respects Mr. Endersby's evidence was to be preferred to the appellant's,
this made it appropriate for the judge to give such a direction. We reject
this contention - it is certainly not the law that, wherever there is a
conflict between the prosecution witnesses and the defendant's evidence as to
the very issues in the case such a direction must be given.
as to the circumstances in which a
direction should be given is to be found in
(1994) 98 Cr. App. R 11 and
v Burge & Pegg
(1996) 1 Cr. App. R 163. In the latter case Kennedy LJ. giving the judgment of
this court said this:
there seems to be at the moment a tendency in one appeal after another to
assert that there has been no direction, or an inadequate direction, as to
lies, it may be helpful if we conclude by summarising the circumstances in
which, in our judgment, a
direction is usually required. there are four such circumstances but they may
the defence relies on an alibi.
the judge considers it desirable or necessary to suggest that the jury should
look for support or corroboration of one piece of evidence from other evidence
in the case, and amongst that other evidence draws attention to lies told, or
allegedly told, by the defendant.
the prosecution seek to show that something said, either in or out of the
court, in relation to a separate and distinct issue was a lie, and to rely on
that lie as evidence of guilt in relation to the charge which is sought to be
although the prosecution have not adopted the approach to which we have just
referred, the judge reasonably envisages that there is a real danger that the
jury may do so.
direction is given where there is no need for such a direction (as in the
normal case where there is a straight conflict of evidence), it will add
complexity and do more harm than good.
Latham's recollection is that there was a brief discussion before the judge as
to whether a
direction was appropriate in this case. Whether or not he is right about that,
it is to be inferred that the judge considered that it was not appropriate. We
see no reason to think that he was wrong to take that view, in a case where the
prosecution had not sought to show that something said by the appellant in
relation to a separate and distinct issue was a lie or to rely on that lie as
evidence of guilt and where there was as it seems to us no real danger that the
jury might adopt that approach.
Ground 12 A the appellant contends that the judge should have given a
 2 QB 464 direction as to the need for caution in relation to the
evidence of witnesses who might have some purpose of their own to serve. The
suggestion is that the bank witnesses were persons who might have a purpose of
their own to serve, because their conduct might have been negligent, and the
acquittal of the appellant might destroy their professional careers or at least
show them to have been incompetent.
was a case concerning the evidence of a co-accused, and therefore very
different from the present. We were also referred to
74 Cr. App. R 221 where these words are to be found at 228:
we in no way wish to detract from the obligation on a judge to advise a jury to
proceed with caution where there is material to suggest that a witness's
evidence may be tainted by an improper motive, and the strength of that advice
must vary according to the facts of the case, we cannot accept that there is
any obligation to give the accomplice warning with all that entails, when it is
common ground that there is no basis for suggesting that the witness is a
participant or in any way involved in the crime the subject matter of the trial.
is in our view significant that it was not suggested that any of the bank
witnesses other than Mr. Endersby was lying, nor was there any suggestion of
collaboration. It seems to us that, if the judge was obliged to give such a
direction in this case, he would be so obliged in almost every case in which
prosecution witness's evidence was seriously challenged. There was, we
consider, no requirement in the circumstances of this case to give such a
have now dealt with all the grounds of appeal argued on behalf of the
appellant. It will be remembered that we have, with the exception of the
point in relation to counts 1 and 3 (Ground 4C) and the point on Ground 7
relating to the judge's direction on similar fact evidence, rejected each
individual ground. In respect of Ground 7 we have accepted the criticism that
the judge's direction was not such as to bring home to the jury the real
relevance of the evidence referred to. However, we see no reason to think that
this omission or the direction which the judge did give, which we have cited,
were such as to make the appellant's conviction unsafe. They form a very small
part of the tapestry which the jury had to consider.
recall that the burden of the submissions Mr. Rhodes made on many of the
individual grounds was that he invited us to take that ground into account not
so much for its individual merit but in conjunction with other grounds, and to
have regard to their cumulative effect. Notwithstanding our rejection of all
the other individual Grounds we have given effect to the spirit of Mr. Rhodes's
invitation in that after considering and reaching our conclusions upon the
grounds of appeal individually, we have endeavoured to stand back and look at
the case overall, and have considered whether in all the circumstances there is
any reason to think that the appellant's conviction on any of the seven counts
is unsafe. We have in that connection particularly borne in mind that
throughout the long trial he was not represented by counsel in court - though
he had throughout access to legal advice - and that he was therefore at an
inevitable disadvantage. We have also taken into account the evidence as to
his physical and mental capacity and the undoubted fact that during the trial
he suffered a serious physical illness necessitating a lengthy adjournment.
Finally, we have brought into the reckoning all that we have learned of the
case and its conduct from the extensive documentation and the detailed
arguments presented to us on both sides. Having done this we are
unhesitatingly of the view that there is no valid basis for contending that the
appellant's convictions are unsafe. The fact is that the prosecution's case
was overwhelming and that there was no sensible answer to it. We are quite
satisfied that the appellant, whose own considered choice it was to represent
himself, was properly and fairly dealt with and received a fair trial. Save as
already indicated, the conviction appeal fails.
turn finally to sentence. The single judge referred the appellant's
application for leave to appeal to the court, and we grant leave.
total sentence of 9 years was made up in the manner already briefly described:
but in order to deal properly with Mr. Rhodes's arguments we shall set matters
out in more detail in the following table:
(s.1 1978 Act) 4
will be remembered that the sentences on counts 1 - 7 were concurrent (total 7)
and that on count 8 was consecutive.
he sentenced the appellant the learned judge said this:
do bear in mind the fact that you are 41 and a man of hitherto good character,
but these offences are very serious. There is no doubt that the evidence has
shown that you were Arrows and that upon the jury's verdict you repeatedly
obtained loans from banks by making false representations that your business
remained the old business of stock finance and that the business was insured.
It is clear that you were behaving in a thoroughly dishonest way, committing
these offences as the indictment sets out.
July 1991 Arrows crashed to the tune of £100 million and evidence has been
called from four banks who suffered losses in the crash approaching £50
million, and you obtained loans from each of those banks on the false basis
that I have just described.
used the money to deal in the commercial property market, setting up a web of
companies closely related to you, to disguise that activity. You published
false accounts that you circulated to the banks in order to advance the fraud,
the object being to deceive the banks into thinking that the old business of
stock finance business was the business of Arrows.
a substantial period before the crash you continued to carry on the business of
Arrows knowing that it was insolvent and you carried it on intentionally and
dishonestly to the prejudice of the rights of the banks, knowing you had no
right to do so.
I said to the jury in the course of the summing-up, there is no doubt that
banks play an important role in our complex society, and the evidence shows
that you defrauded them here on a grand scale.
have had plenty of opportunity to observe you during this six-month trial, and
I have come to the conclusion that you are a highly intelligent man and you
were very crafty in the way that you carried out these offences. It is clear
to me that substantial sentences are the only ones that are appropriate.
judge then indicated the sentences on each count, saying in relation to count 8
that he made the sentence consecutive "because this represents a wholly
different aspect of the prosecution's case and in my view increases the gravity
of the matter. The sentence is only 2 years because I have borne in mind the
totality principle and I have looked at the overall sentence". It is apparent,
therefore, that the judge had very much in mind what is in cases such as this
the most important consideration - namely what was an appropriate sentence, in
total, to reflect the overall gravity and criminality of the defendant's
conduct in respect of the matters for which he had been convicted. Of course
he also, in the individual sentences, plainly had regard in each case to the
statutory maximum: but we have no doubt that his main concern was the one we
have identified - to arrive at a correct overall sentence.
support of his argument that a total of nine years was manifestly excessive Mr.
Rhodes, at the previous hearing, made a number of points. First he submitted
that in all the circumstances the judge was wrong to make the sentence of two
years on Count 8 (fraudulent trading) consecutive. Then he emphasised the
personal mitigation on which the appellant could rely - the fact that initially
the business had been an honest and successful one; his charitable works; his
ill-health, which has continued after his conviction; and the fact that his
personal and business life was in ruins. Finally Mr. Rhodes invited us to
consider the total sentence of nine years in this case against the ten years
imposed on the defendant Clowes in the
case. That, he submitted, was a much worse case because, while the sums
involved were broadly comparable the victims, unlike those in the present case,
were particularly vulnerable. He also made a point on the effect of the
changes since Clowes was sentenced in the rules as to release.
was in our view no substance in the first point as to the consecutive sentence
on count 8: and the judge we were sure had all the relevant personal mitigation
in mind. We were however influenced by the comparison with the
case and it was essentially for that reason that we were minded, as we told
counsel then, to reduce the overall sentence by two years.
Rhodes submits that, in the light of the substitution of convictions on count 1
and 2 of offences bearing a maximum sentence of 5 as opposed to 10 years, logic
and fairness require a further reduction. He also asks us to take account of
the lengthy delays, before as well as after the last hearing, and the anxiety
that the appellant must have been experiencing, and invites us to extend mercy
and reduce the sentence further.
have given very careful consideration to these submissions. At first sight
that based on the available maximum sentences does indeed appear logical.
However, we are we consider entitled to bear in mind that the conduct on which
the substituted conviction is based is precisely the same and is undoubtedly as
the judge rightly considered very serious. It is not readily apparent,
therefore, why the substitution of convictions which require, because of the
lower maximum available, a reduction on two counts should necessarily lead to a
reduction in overall sentence.
is, however, a further matter which we have taken into consideration. It is
apparent from the passage we have cited from the judge's sentencing remarks
that, when assessing overall gravity, he took account of both the evidence
bearing on the counts in the indictment and of that relating to losses
sustained by other banks with which Arrows and the appellant had dealings. Of
course, to an extent the charge of fraudulent trading in count 8 meant that the
losses of those other banks were covered by a charge in the indictment but the
judge did say:
you obtained loans from each of those banks on the false basis that I have just
can therefore be not unreasonably suggested that the judge, when assessing
gravity, was putting into the scales criminal conduct which he attributed to
the appellant which was subject neither to an adverse verdict not to an
admission by the appellant. We do not criticise the judge for doing so because
at the time he sentenced it was widely supposed that this was permissible and
it was common practice. However in 1996 came the decision of this court in
v Raymond Clark
 2 Cr. App. R (S) 351 where it was held that where an offender is
convicted on a count put forward as a specimen count the sentencer must not
sentence him on the basis that he is guilty of further offences of a similar
nature unless the offender admits that this is so.
we said what we did in July last year we were not alive to this point. It
could well be argued that, even so, no good ground exists for any further
reduction in the sentence, because looked at overall 7 years is a perfectly
proper sentence for the offences of which the appellant now stands convicted.
However, it does represent a second new factor and it just suffices to persuade
us that some further adjustment to the sentence is called for - if only to
ensure that the appellant is not left with a justifiable sense of grievance.
we propose to do, therefore, is to reduce the total sentence to 6 years and
that will be achieved by substituting for the sentences on counts 5 and 7 terms
of 4 years and substituting on counts 1 and 3 similar terms. That means that
on all save count 8 there will be concurrent sentences of 4 years and on count
8 a consecutive sentence of 2 years.
appeal against conviction will be allowed only to the extent that the
convictions under section 15 of the 1968 Act on counts 1 and 3 will be quashed
and there will be substituted convictions under section 1 of the 1978 Act. The
appeal against sentence will be allowed to the extent that the sentences of 7
years on counts 1 and 3 and 5 years on counts 5 and 7 will be quashed and there
will be substituted sentences of 4 years on each of those counts, concurrent
with each other and with the 4 year sentences on counts 2 and 4. The sentence
of 2 years on count 8 will remain consecutive, so the total sentence will be
reduced from 9 years to 6.
RHODES: May it please your Lordships. May I, first of all, express my
gratitude for giving me the extra time.
JUSTICE HUTCHISON: It has had the consequence of enabling you to complete a
skeleton argument and draft grounds. We are grateful to you for providing
those so quickly.
RHODES: Before I turn briefly to the proposed question, may I mention one
matter which I would invite your Lordship to deal with in the approved
judgment? On page 31, second paragraph, there is a typographical error in the
second line. Mr Kenyon was not a defence witness; he was the solicitor
advising Mr Naviede
and he came to court to explain why the defence witness, a
Mr Wilkinson, I think it was, was not present.
JUSTICE HUTCHISON: It is obviously an error on our part.
RHODES: If my Lords just remove the words "Mr Kenyon" and the commas on either
side, that solves the problem.
JUSTICE HUTCHISON: I will do that, and the shorthand writer, who has a copy,
will no doubt make a note.
RHODES: My Lords, we have drafted questions and in our skeleton provided our
submissions as to why we submit it would be appropriate for my Lords to
certify. We have also dealt with my Lords' powers, and they are set out in
Archbold. In those circumstances I do not intend to address my Lords any
further unless there is----
JUSTICE HUTCHISON: So far as your desire to raise a challenge based on the
case, that was not the basis of our decision.
RHODES: Well, that is so, but----
JUSTICE HUTCHISON: It was not part of our decision.
RHODES: But, my Lords did say that my Lords did not consider
to be binding.
JUSTICE HUTCHISON: We felt it was not binding. You cannot go to the House of
Lords on an expression of opinion which has not been part of the decision.
RHODES: Is my Lord talking about the third question in that connection?
JUSTICE HUTCHISON: Yes.
RHODES: My Lords, I have nothing further to submit.
JUSTICE HUTCHISON: We will retire to consider the matter.
Court adjourned for a short time
JUSTICE HUTCHISON: We have carefully considered your suggested questions and
the skeleton arguments in support of them, for which we are most grateful, but
we do not consider there is here any question which either requires or
justifies our certifying and we are not going to do so. Is there any other
matter? May we express our gratitude to both sides for all the help we have
had in this rather long hearing.
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