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Cite as: [2001] EWCA Crim 1260, [2001] 3 WLR 751

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R v. Yash Pal KANSAL On a Reference from the Criminal Cases Review Commission [2001] EWCA Crim 1260 (24th May, 2001)

Case No: 199802818S1

Neutral Citation Number: [2001] EWCA Crim 1260

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

(CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 24th May 2001

B e f o r e :

The Vice President of the Criminal Division

(LORD JUSTICE ROSE)

MR JUSTICE ROUGIER

and

MR JUSTICE McCOMBE

R

v

Yash Pal KANSAL

On a Reference from the Criminal Cases Review Commission

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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - -

Mr I Krolick & Miss A Geser (appeared on behalf of the appellant)

Mr J McGuinness (appeared on behalf of the Crown)

- - - - - - - - - - - - - - - - - - - - -

Judgment

As Approved by the Court

Crown Copyright ©

THE VICE PRESIDENT:

1. On 18th February 1992 at Snaresbrook Crown Court, following a seven-day trial before His Honour Judge Rucker, the appellant was convicted on Counts 1 and 2 of obtaining property by deception contrary to s15(1) of the Theft Act 1968, on count 4 of, being a bankrupt, removing property contrary to s354(2) of the Insolvency Act 1986 and, on count 5, of, being a bankrupt, failing to account for property contrary to s354(3) of the Insolvency Act 1986. Count 3, which alleged that, being a bankrupt, he obtained credit, was left on the file on the usual terms. The appellant's wife Rashme Kansal was acquitted by the jury of aiding and abetting the offence in count 4. The appellant was sentenced to 15 months imprisonment on counts 1 and 2 concurrently and to 3 months imprisonment on counts 4 and 5 concurrently with each other and with the 15 months on counts 1 and 2.

2. On 12th May 1992 (95 Cr App R 348) the Full Court dismissed his appeal against conviction on grounds relating to counts 1, 2 and 4. On 21st May 1992 the Full Court certified a point of law of general public importance of no present relevance. Leave to appeal was refused by the Court of Appeal and subsequently by the House of Lords.

3. The appellant now appeals against conviction upon a reference by the Criminal Cases Review Commission. A reference was initially made in April 1998 in relation to counts 1 and 2, as a consequence of the decision of the House of Lords in Preddy [1996] AC 815, [1996] 2 Cr App R 524. Subsequently, in June 2000, as a result of further submissions from counsel, the CCRC widened the reference to cover all four counts.

4. The facts can be briefly summarised. The appellant came to this country from India in 1967. He qualified as a pharmacist in 1973. In 1977 he formed a company called Yash Pal Kansal and Company which flourished and operated twenty chemist shops. In about 1983 the appellant bought a house in Hornchurch, in joint names with his wife, with the assistance of a £60,000 mortgage. In 1986 the house was re-mortgaged, the original mortgage being paid off and the balance invested in the business. The appellant and the company began to encounter financial problems. In February 1986 a finance company obtained judgment against the appellant in relation to a £4000 loan. The company went into liquidation in February 1987, owing in excess of £1,000,000.

5. On 20th May 1987 a bankruptcy petition was presented against the appellant and, on 11th March 1988, a bankruptcy order was made against him. On 16th March 1988 the Halifax Building Society advanced, by cheque, £150,000 and, on 23rd March, a further £116,250 on the security of the Hornchurch house. These advances formed the subject matter of counts 1 and 2. The prosecution alleged that the building society had been misled by the appellant into drawing those cheques by false representations that his basic annual income was £90,000, that he had never been bankrupt and did not have any judgment or proceedings for debt outstanding and that he did not have any bank or other loans or charge/credit card debts.

6. In relation to count 4, on 23rd March 1988, the appellant's wife collected from the appellant's solicitor approximately £104,000 in cash, part of the building society advance, and took it in a bin liner to India. The prosecution alleged this was done at the instigation of the appellant with knowledge that the money should have been delivered to the official receiver or trustee in bankruptcy. Count 5 related to the failure to account for the loss of a substantial part of his property, occurring in the 12 months before the bankruptcy petition in May 1987 or between then and the date of the bankruptcy order in March 1988, or to give a satisfactory explanation of how such loss was incurred, in that he did not comply with a court order dated 17th June 1988 to lodge a cash account. The appellant claimed to have used the money to pay off creditors but he refused to divulge details.

7. Evidence was given for the prosecution by Christopher Watson a financial advisor. Once or twice in 1987 he visited the appellant who wished to raise money on the Hornchurch house. He was shown a sub-post office which the appellant said he wanted to buy. Application forms for a mortgage from the Halifax Building Society were signed by the appellant and his wife on 29th January 1988 and filled in by Mr Watson with information which the appellant had already provided. The appellant said his annual income was £90,000, that he had never been made a bankrupt and that he had no bank or other loans or credit card debts. Mr Watson said he was never told about the bankruptcy proceedings. Pursuant to this application, the two cheques to which we have referred were issued by the building society.

8. Mr Mangat was a solicitor instructed by the appellant in 1988 in relation to the re-mortgage. He was also instructed by the building society to act for them in the transaction. He received the two cheques which he paid into his client's account. The mortgage of £150,000 was paid off with the first cheque. The appellant told him to use some of the money to pay off an £8,000 loan to Barclays Bank, but the bank returned the cheque because the appellant was bankrupt. The appellant then told Mr Mangat that his wife would collect £104,000 in cash and Mr Mangat made the necessary arrangements putting the money in a dustbin liner. These events gave rise to count 4. Mangat claimed that he did not know that the appellant was bankrupt, but he admitted in cross-examination that he had made a search on 16th March 1988 revealing this. He had not told the building society. He said he had been given no instructions about transferring the appellant's half share in the equity of the house to his wife.

9. The appellant gave evidence. He said that, by the beginning of 1988, he was short of money and decided to re-mortgage the Hornchurch house which was worth over £350,000. He said he had told Mr Watson everything about his debts including the bankruptcy proceedings and the judgment against him for £4000. The figure of £90,000 for his income was suggested by Mr Watson. The appellant was astonished when the application went through. . He was not there when the £104,000 was withdrawn in cash. But he had told Mangat that his wife was to have the money to pay debts in India and Mangat had given him no reason why it should not be handed over to his wife or taken to India. He admitted that he had not given information about the loans: this was because it was all too embarrassing. In cross-examination, he said he had borrowed £120,000 from India on the security of properties belonging to his father-in-law. The money should not have been sent from India because of exchange control and everyone wanted to keep it secret, hence the need for cash. He had planned to make over his share of the Hornchurch house to his wife but this had never been done formally. His wife went to India on 26th March 1988 taking with her the balance of the £104,000 after paying for her air ticket. She had gone to pay the debts.

10. At the trial, it was submitted that the appellant's statement of affairs in the bankruptcy proceedings and the documents relating to his public examination in bankruptcy were inadmissible by virtue of s31 of the Theft Act 1968, not- withstanding s433 of the Insolvency Act 1986. The trial judge ruled that the evidence was admissible and that ruling was upheld by the Court of Appeal, on the basis that s31 of the Theft Act 1968 did not provide the appellant with any protection against the admissibility in criminal proceedings of compelled statements made under s433. It was further submitted to the trial judge that, as the appellant's wife had an equitable interest in the matrimonial home amounting to almost £100,000, she was entitled to take the £104,000 withdrawn in cash. The judge ruled that the status of the money was a question of fact for the jury.

11. The grounds of appeal fall into 4 categories. First, ground 1 challenges the safety of the convictions on counts 1 and 2 in the light of Preddy. [1996] AC 815 Secondly, ground 2 challenges the propriety of joining counts 1 and 2 in the same indictment as counts 4 and 5. Thirdly, grounds 3 to 10 and 12 are variously critical of directions given by the trial judge in his summing-up, of the alleged duplicity of count 5 and of the judge's ruling that there was a case to answer. Fourthly, ground 11 challenges the judge's ruling admitting the transcript of the examination of the appellant at the bankruptcy proceedings, in the light of the decision of the European Court of Human Rights in Saunders [1997] 23 EHRR 313. Not all these grounds have the support of the CCRC. But, in the light of s 14(5) of the Criminal Appeal Act 1995, once a reference has been made, the appeal may be on any ground.

12. Before turning to the grounds of appeal, there is a point of considerable importance in relation to the treatment, by this court, of appeals resulting from a reference by the CCRC.

13. So far as we are aware, the point has not previously been the subject of argument in this court. It is related to the grounds which rely on Saunders and Preddy. It is one which was not addressed in the CCRC's reasons in April 1998 or June 2000 or in counsel's original submissions to this court. But we invited and heard oral submissions. It is this. In view of the long established practice of this court, (see for example Lane LJ in Mitchell [1977] 65 Cr App R185 at 189, Lord Bingham CJ in Campbell [1997] 1 Cr App R 199 at 206F and Lord Woolf CJ in Benjafield CACD transcript 21st December 2000, paragraph 46) not to re-open convictions because of a change in the law since trial, is it appropriate in the light of sections 9 and 13 of the Criminal Appeal Act 1995 for the CCRC to refer, and for this court on a reference to consider, the safety of a conviction on such a ground? Section 9(2) provides that a reference "shall be treated for all purposes as an appeal" and s13 provides.

"(1) A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 to 12 unless-

(a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,

(b) the Commission so consider-

(i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or

(ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and

(c) an appeal against conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused"

The point is at the heart of the present case because the principal reasons for the reference and grounds of appeal are, as we have said, the House of Lords' decision in Preddy and the European Court of Human Rights' decision in Saunders, both some years after the trial. It is true that in Clark CACD 5th April 2001 at paragraph 3 of the judgment, this court approved a reference on Preddy grounds, where the trial was in 1985, as a proper exercise of the CCRC's discretion under s9 of the Criminal Appeal Act 1995. But no argument was addressed to the court, nor did the court consider, the terms of s13 of the Act or its interrelationship with this court's practice. Changes in the law can, of course, arise by virtue of Acts of Parliament, developments in the common law, particularly by virtue of decisions of the House of Lords or this court, and, following the coming into force of the Human Rights Act 1998 on 2nd October 2000, decisions of the European Court of Human Rights. In the ordinary way, changes by Acts of Parliament are not, but changes in the common law are, retrospective. The retrospectivity or otherwise of the Human Rights Act has, as will appear, attracted divergent judicial views.

14. Mr Krolick, for the appellant, submitted that there is no such practice as that to which Lord Bingham referred in Campbell. Since the abolition, by the Criminal Appeal Act 1995, of the proviso to s2 of the 1968 Act as to no miscarriage of justice having occurred, the only question for determination by this court on an appeal is whether the conviction is safe. Whether the law has changed since trial is a consideration which is only relevant to whether or not an extension of time should be granted when considering an application for leave to appeal. All the authorities referred to by Lord Bingham in Hawkins [1997] 1 Cr App R 234 at 239D to E and 240F to G, and in Graham [1997] 1 Cr App R 302 at 308E to 309D, were decided at a time when the proviso still existed. They do not support the assertions as to the present practice of this court made by Lord Bingham in Campbell or a similar assertion made by him in Hawkins at 240C to E. Now that the proviso has gone, this court should always grant an extension of time whenever the conviction is arguably unsafe. Further or alternatively, Mr Krolick submitted that, if Lord Bingham's statement correctly reflects the current practice of the court, that cannot stand in the way of this court addressing the safety of a conviction in the light of a post-trial change in the law once a reference has been made by the CCRC. Such a reference must, by virtue of s9 (2) of the 1995 Act, "be treated for all purposes as an appeal" and the making of the reference overcomes whatever difficulty with regard to an extension of time might otherwise be faced by an applicant. In the light of s13(1)(a) of the 1995 Act, in deciding whether there is a real possibility that the conviction would be upheld were the reference made, the CCRC must have regard to the decisions and relevant practice of this court, but its practice in relation to leave applications is irrelevant. Horsman [1997] 2 Cr App R 418 shows that, once leave has been granted, even if it should not have been, this court, on the appeal, has to address the sole question of whether the conviction is safe.

15. Mr Krolick further submitted that, although Acts of Parliament, unless they have retrospective provisions, have prospective effect which cannot avail a defendant tried before they were passed, decisions of the House of Lords or this court which appear to change the law are merely declaratory of the common law as it is deemed always to have been. Mr Krolick relied on the distinction between common law and statutes drawn by Lord Bingham in Bentley [2001] 1 Cr App R 307 at 310 para 5:

"Where between conviction and appeal there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time."

Accordingly, an appellant, once before the court by virtue of a reference, is entitled to have his conviction quashed as unsafe in the light of authoritative decisions since his trial. This appellant is therefore entitled to rely on Preddy. Furthermore, the appellant is entitled to rely on the European Court of Human Rights' decision in Saunders because, by virtue of the Human Rights Act 1998, (i) this court is a public authority which must act compatibly with Convention rights (s6(1) and (3)), (ii) the appellant can rely on his Convention rights under s7(1)(b) and, (iii) by virtue of s22(4), in proceedings against him by a public authority (which criminal proceedings are) he can rely on those rights "whenever the act in question took place." In ex parte Kebilene [2000] 2 AC 326 Lord Steyn at 367H to 368C, in a speech with which Lord Slynn of Hadley and Lord Cooke of Thorndon agreed, approved observations by Lord Bingham of Cornhill CJ in the Divisional Court and concluded that s7(1)(b) and s22(4) have a retrospective impact on trial and appeal as parts of one process.

16. For the Crown, Mr McGuinness advanced 4 propositions as to the effects of a change in the law. First, this court's established practice is not to grant an extension of time for leave to appeal against conviction by reason only of a change in the law since trial (see per Lord Bingham in Campbell [1997] 1 Cr App R 199 at 206F and Hawkins at 240C-E). In Lambert and others [2001] 1 Cr App R 205 at 216 paragraph 28 Lord Woolf CJ, having referred to the acceptance by all parties that, because of s22(4) and s7 of the Human Rights Act, the safety of the conviction had to be approached as if the Act had been in force and having referred to the above cited passage in Lord Steyn's speech in Kebilene said

"It should not however be assumed that non-compliance with the Convention before the Act came into force will be regarded as a ground for extending time for appealing."

In Benjafield at paragraph 46 Lord Woolf, having referred to Lambert and others confirmed this court's existing practice of not granting leave to appeal out of time on grounds based on post-trial changes in the law. (We understand that Benjafield and Lambert and others are both the subject of appeals to the House of Lords, though it is not known when any decision will be given).

17. Secondly, Mr McGuinness submitted, because a reference by the CCRC may circumvent this court's practice in refusing leave in such cases, it is incumbent on the CCRC to consider that practice when deciding whether there is a real possibility under s13(1)(a) of the Criminal Appeal Act of the conviction not being upheld. This submission is reinforced because, by s9, the CCRC has a discretion whether to refer even if s13 conditions are fulfilled. In ex parte Pearson [2000] 1 Cr App R 141 at 150A Lord Bingham CJ considered the nature of the judgment required of the CCRC, including the need to make a judgment, in a fresh evidence case, as to how this court might resolve an application to adduce evidence under s23. Such a judgment is required, Mr McGuinness submitted, whenever the CCRC is exercising its discretion whether to refer and should have been made in the present case by reference to this court's practice in refusing leave following a change in the law.

18. Thirdly, he submitted, it does not follow that this court will necessarily quash a conviction as unsafe because of a change in the law, though it must quash, as in Graham, if the offence is unknown to the law. The general approach is that identified by Lord Bingham in Campbell because of the need for finality in proceedings, and because, if the trial was conducted according to law and standards proper at the time of trial, a conviction should not be regarded as unsafe: he relied on Gerald [1999] Crim LR 315, CACD transcript 3 November 1998 which followed Ward [1996] Cr App R 1 at 23 (It is to be noted that at paragraphs 25 and 26 in Johnson [2001] 1 Cr App R 408 at 414 the approach in Gerald and that in Bentley (already cited) were regarded as consistent with each other and Lord Woolf CJ said "The test which this court is required to apply is to approach the issues in the round. In doing so it can only apply the standards which this court adopts today. No one can be criticised for applying standards which were current at the time of any trial. If, however, as a consequence of doing that the trial is properly regarded by this court as unsafe, this court must intervene")..

19. Fourthly, in assessing real possibility under s13, the CCRC should bear in mind that this court will not generally regard a conviction as unsafe because of a post-trial change in the law and will generally apply trial date standards, especially as to fairness. If references are made solely because of a change in the law they will be numberless.

20. As to the European Convention aspect, Mr McGuinness, somewhat tentatively, invited us (particularly in the light of the reservations expressed about the alternative approach by Waller LJ in Parker v DPP Divisional Court transcript 7th December 2000 paragraphs 3 to 8) to prefer the approach to retrospectivity of Lord Hobhouse in Kebilene at 396C to 397C and to conclude that the trial judge, in following an Act of Parliament by admitting compelled answers under s433 of the Insolvency Act, could not be committing an unlawful act so as to attract the retrospective impact of s22 (4) of the Human Rights Act. But he accepted that the majority view in the House of Lords in Kebilene was to the contrary effect. Furthermore in Benjafield this court, in a judgment given by Lord Woolf CJ, at paragraphs 49-51 followed that majority approach. He submitted that Lord Woolf's reference, in paragraph 49 of the judgment, to the Act providing limited retrospectivity should be construed as applying the retrospectivity principle only to prompt appeals. He pointed out that, in paragraph 55, Lord Woolf recognised that "any legal system is entitled to impose time limits and, if reasonable, they can apply to disable an individual from alleging a breach of the Convention". (It is, however, to be noted that Parliament has chosen not to impose any time limits in the Human Rights Act and Lord Woolf did not say what limitation he envisaged). He urged this court not to apply the approach of Lord Steyn and Lord Woolf in relation to a trial in 1992, otherwise retrospectivity and references by the CCRC would be unlimited.

21. In our judgment it is plain on the authorities that, regardless of the presence or absence of the proviso to s2 of the 1968 Act, it has been this court's established practice for over 20 years not to grant an extension of time or leave to appeal because of a change in the law since trial. It is also plain, notably from Horsman, that, once leave has been granted, the only question for this court, when hearing an appeal against conviction (whether on a reference by the CCRC or otherwise) is whether the conviction is safe.

22. But, attractive though Mr McGuinness' submissions on the European Convention are as a matter of practicality, it seems to us they cannot prevail in the face of the statutory language as presently interpreted by the majority of the House of Lords and in this court. Equally, there are difficulties with his reliance on Pearson in support of his submissions as to the CCRC's discretion. In this appeal, we have not had the advantage of hearing any submissions on behalf of the CCRC as to how they might properly choose to exercise their discretion. It will, in our judgment, be helpful if, at an early date, it proves possible for this court to hear representations on behalf of the CCRC as to the proper ambit of their discretion. Meanwhile, we express the very firm hope that, in exercising the discretion under s9 and the judgment conferred by s13(1)(a), the CCRC may think it right to take into account this court's practice in refusing leave because of a change in the law just as, in the light of Pearson, they take the court's practice into account when assessing the possibility of fresh evidence being received. But the analogy is inexact: although s13 requires a judgment as to what may happen on the hearing of an appeal, it is silent in relation to applications. And it may or may not be apt to construe the s9 discretion sufficiently widely to embrace consideration of the court's practice on applications. We do not think it right to reach any conclusion as to the full ambit of sections 9 or 13, because we have heard no submissions on behalf of the CCRC and because, a reference having been made in the present case without any challenge, we have to deal with the appeal.

23. As a matter of statutory construction, however, it appears to us that the consequences of the absence from the Criminal Appeal Act 1995 of any time limit for references by the CCRC and the presence of the retrospectivity provision of s22(4) in the Human Rights Act, as interpreted by the majority in Kebilene, are twofold: (i) the CCRC, subject to the proper exercise of the discretion conferred by s9 of the Criminal Appeal Act, can refer to this court a conviction following a trial whenever it took place; (ii) this court, once such a reference has been made, has no option, however old the case, but to declare the conviction unsafe if that is the result either of the admission of evidence obtained in breach of Article 6 or of a change in the common law, which is deemed always to have been that which it is authoritatively declared to be, as, for example, by reason of Preddy. (See the approach of the Court of Appeal and House of Lords in R [1992] 1 AC 599 at 610E-H, 611D-E and 623B-D, approved by the European Court of Human Rights in SW and CR v UK [1995] 21 EHRR 363).

24. We reach this conclusion with no enthusiasm whatever. Leaving aside colourful historical examples such as Sir Thomas More, Guy Fawkes and Charles I, all of whom would have benefited from convention rights, until the Criminal Evidence Act 1898, no defendant was permitted to give evidence on his own behalf. That is a clear breach of Article 6. Many examples in the 20th century of other rules and procedures which, viewed with the wisdom of hindsight, were in breach of the Convention could be given. But we resist that temptation lest, by succumbing, we exacerbate the problem to which we are drawing attention. For over 20 years, this court has adopted a pragmatic approach, confirmed by successive Lord Chief Justices, whereby a refusal to extend time to apply for leave to appeal has filtered out those seeking to take advantage of a change in the law since they were convicted. This, in our judgment, reflects the public interest that there be finality in litigation and it is an approach which has also helped this court to concentrate its limited resources on determining more meritorious appeals arising from more recent convictions. Subject to the outcome of further consideration of the breadth of the CCRC's discretion, it appears that Parliament, consciously or unconsciously, has completely emasculated that approach. If so, the consequential prospective work-load for the CCRC and for this court is alarming. If this is what Parliament intended, so be it. If not, the sooner the matter is addressed, by Parliament or by the House of Lords on appeal from this court, the better.

25. That said, it is convenient to deal first with ground 11, the challenge to the safety of the conviction on all 4 counts because of the use made at trial under s433 of the Insolvency Act of the appellant's answers in the bankruptcy proceedings which were compelled by s291 of that Act. In Saunders the court said in paragraph 68

"The right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment the aims of Article 6. The right not to incriminate oneself, in particular, pre-supposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Articles 6(2) of the Convention."

In paragraph 71 the court said

"Bearing in mind that the concept of fairness in Article 6 the right not to incriminate oneself cannot reasonably be confined to statements of admission or of wrongdoing or to remarks which are directly incriminating. Testimony obtained under compulsion which appears on its face to be of a non incriminating nature - such as exculpatory remarks or mere information on questions of fact - may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility. Where the credibility of an accused must be assessed by a jury the use of such testimony may be especially harmful. It follows that what is of the essence in this context is the use to which evidence obtained under compulsion is made in the course of the criminal trial."

The nature of the privilege against self incrimination at common law was illuminated by Lord Mustill in R v Director of SFO ex parte Smith [1993] AC 1 at 30-31. The effect of Saunders was considered by the House of Lords in R v Herts CC ex parte Green [2000] 2 AC 412, in particular by Lord Hoffmann at 422B to 425A. But neither ex parte Smith nor ex parte Green assists in the determination of this appeal.

26. As a result of the judgment in Saunders, s59 and Schedule 3 paragraph 7 of the Criminal Youth Justice and Criminal Evidence Act 1999 have amended English law so as to render compelled statements previously admissible under s433 generally inadmissible on behalf of the prosecution in criminal proceedings.

27. In the present case, a full transcript of the appellant's examination by the Official Receiver was placed before the jury at his trial and, in the course of his summing-up the judge said that that transcript "could be very important". Mr Krolick submits that, in consequence, the appellant's trial was unfair and the jury's verdicts are unsafe.

28. Mr McGuinness sought to resist this contention on the basis that, at the time of trial, the answers were properly admissible under the provisions of s433. The trial judge had a discretion under s78 of PACE which could have been exercised to exclude the transcript if there had been special features but, otherwise, s433 amounted to a statutory presumption that the admission of such evidence was fair: Mr McGuinness relied on Staines and Morrisey [1997] 2 Crim App R 426 in which such a conclusion was reached in relation to comparable provisions in the Financial Services Act 1986. (But Staines and Morrisey was decided before the European Convention became part of the English Law: this was of high materiality - see per Lord Bingham CJ at 443F-444A). Mr McGuinness further submitted that, even if this court in the light of the majority view in Kebilene and of Benjafield, concluded that the appellant was entitled to claim the retrospective benefit of the Human Rights Act, it did not necessarily follow that his convictions were unsafe. Unfairness is not necessarily the same as lack of safety (see Davis, Rowe and Johnson [2001] 1 Cr App R 115 at 134-135, Francom and others [2001] 1 Cr App R 237 at 248 paragraph 43, Togher, Doran and Parsons CACD transcript 9th November 2000 paragraph 30; and Saunders paragraph 86). The appellant admitted before the jury that the answers he had given in relation to his income and debts were false but his defence was that this was due to Watson. Accordingly, the issues having been fully and fairly placed before the jury by the judge in his summing-up, false answers given to the Official Receiver would not materially affect the case against him nor, in consequence, the safety of his convictions. Furthermore, in relation to counts 1 and 2 the issue was whether the jury believed Watson which clearly they did. In relation to count 4, the jury rejected the appellant's evidence that the cash taken from the jurisdiction by his wife was her property not his and, in relation to count 5, there was no real defence.

29. In our judgment, Mr McGuinness' submissions on this aspect cannot survive the judge's direction to the jury as to the potential significance of the transcript of the proceedings before the Official Receiver. Although proof of dishonesty was a necessary element of counts 1 and 2 but not of counts 4 and 5, it is, in our judgment, impossible to isolate the impact on the jury of false answers in the bankruptcy examination to counts 1 and 2. The degree of scepticism or otherwise with which the jury viewed the appellant's explanations in relation to counts 4 and 5 may well have been affected by the falsity of those answers. That being so, the convictions on counts 1,2,4 and 5 cannot be regarded as safe in the light of the inadmissibility, as we must now hold, of those answers.

30. There is however, no practical merit in any of the other grounds of appeal. If the only ground for quashing the convictions on counts 1 and 2 had been the inadequacy of the judge's directions in the light of Preddy we would, pursuant to s3 of the Criminal Appeal Act 1968, unhesitatingly have substituted, in relation to both those counts, a verdict of guilty of procuring the execution of a valuable security by deception contrary to s20(2) of the Theft Act: see Graham [1997] 1 Cr App R 302 at 333A. There is no substance in the complaint about misjoinder.. No submission was made at the trial that counts 4 and 5 should not be tried together with counts 1 and 2 and, that, in consequence, a challenge to joinder made years afterwards, is deeply unattractive. But, in any event, all these counts were properly joined and tried together. They were, within Rule 9 of the Indictment Rules 1971, charges founded on the same facts or forming or part of a series of offences of the same or a similar character: the appellant, during the period leading up to and immediately following his bankruptcy, had acquired and divested himself of assets to the detriment of his creditors and the frustration of the activities of the Official Receiver. Save in relation to the Preddy point, there is, in our judgment, no substance in any of the criticisms of the judge's directions or of his ruling that there was a case to answer. We note, and find it unsurprising that, at the time of the original appeal, no such complaints were advanced on the appellant's behalf. In relation to count 4 the appellant gave instructions for cash to be paid to his wife after the bankruptcy order had been made against him: it was property required to be delivered up to the Official Receiver as part of his estate pursuant to sections 291(1), 351, 307 and 436 of the Insolvency Act 1986. Again, we find it unsurprising that leading counsel highly experienced in insolvency, instructed at the first appeal, did not seek to argue to the contrary. As to count 5, it was not, in our judgment, duplicitous: it did not allege two or more offences but a single offence, contrary to s354, of failing to account for property and, quite apart from the cash which went to India, the appellant failed to account for loans which he had received totalling £75,000.

31. Accordingly, this appeal succeeds and the appellant's convictions on all 4 counts are quashed on the sole ground that the answers he was obliged to give in his examination by the Official Receiver were, as the law now stands, wrongly admitted before the jury.


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