No: 201207155 C3 
Neutral Citation Number: [2013] EWCA Crim 937 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 1 May 2013
 
B e f o r e:

LORD JUSTICE McCOMBE 

MR JUSTICE KING 

RECORDER OF LIVERPOOL
HIS HONOUR JUDGE GOLDSTONE QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) 
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R E G I N A 

v 

PAUL ANTHONY MCKNIGHT
 
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Computer Aided Transcript of the Stenograph Notes of  
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Ms N Matheson (Solicitor Advocate) appeared on behalf of the Appellant
Mr O Gibbons appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE McCOMBE:  On 16 November last year in the Crown Court at Inner London after a trial before His Honour Judge Bishop and a jury, this appellant was convicted of one offence of using a false instrument.  On 12 December he was sentenced to 12 months' imprisonment.  He now appeals against conviction by leave of the single judge.
2.	The circumstances of the offence with which the appellant was charged are fairly straightforward.  In June 2011 he had sent to the Treasury Solicitor, in his capacity as the personal representative of the late Juana Gonzalez (who had died intestate on 7 October 2000) a document purporting to be a will made by her on 10 February 1999.  The submission of the will, in those circumstances, attracted suspicions of the person at the Treasury Solicitor's department dealing with the matter and led in the end to the allegation that the will was a false document which the appellant knew and believed to be false.  Accordingly, he was charged with the offence we have mentioned.  
3.	The fuller circumstances of the case were these.  The deceased had lived at a flat in Davenport Road in London E12.  She had been made a subject of a Court of Protection Order on 6 January 1999 because of her mental incapacity.  It seems she had been suffering from senile dementia.  She died on 7 October 2000.  
4.	On 22 August 2001, the Treasury Solicitor was appointed as administrator of the deceased's estate as she had died intestate with no apparent next of kin.  The administration had essentially been completed by 2003 and had reached a value of some £178,000.  In the practical circumstances of the administration, a claim against the estate had to be intimated to the administrator by 13 March 2015.  On 7 June, 2011 the appellant instructed a firm of solicitors to submit the document purporting to be a will, seemingly made by the deceased, to the Treasury Solicitor.  
5.	As we say, the will was dated 10 February 1999, a month or so after the Court of Protection Order.  The will stated on its face that the original was to be sent to the appellant for safe keeping and that copies were going to be supplied to the witnesses.  It was a strangely drafted document, the details of which do not have to be mentioned, although it purported to be signed and witnessed by the testatrix in customary form.
6.	The lady at the Treasury Solicitor dealing with the matter noticed that the will post‑dated the Court of Protection Order and certain other strange circumstances: the claim was made nearly 11 years after the deceased's death; the appellant in submitting the will had not provided an explanation as to why the claim had not been made earlier.  All these circumstances led the Treasury Solicitor's representative to hand the document to the police.  They did not have direct contact with the solicitors.  The police made some attempt to trace the witnesses, criticised by Miss Matheson, no doubt correctly, as being somewhat perfunctory.  They were unable, however, to find witnesses at the addresses that had been given (perhaps not surprisingly after the lapse of time), but nor was it suggested that any information had come to light as to where those witnesses had gone.  
7.	On 16 December 2011, some six months or so after the document had been submitted to the Treasury Solicitor, the appellant was arrested and interviewed.  He answered "no comment" to all questions.  However, he provided a prepared statement stating that he had met the deceased on Uxbridge Road in London in 1990 when he had helped her home with some shopping when something seemed to have fallen out of her bag.  He checked up on her whenever he was in the area.  His visits would last for 10 to 15 minutes.  They would speak about their respective families.  She appeared to be coherent, and the appellant said that he was unaware of her disability.  He said in the statement that the deceased had sent him an envelope in about 1997 or 1998, but he did not open it at the time.  He put the envelope in the loft when his house was being tidied.  However, he had discovered the envelope containing the document in 2010 when clearing the loft and found the will inside.  He said he was shocked because he had not seen the deceased for about four years prior to receiving the envelope.  He took the will to some solicitors to find out whether it was a valid document or not.  
8.	Essentially the issues for the jury were whether the document that was being presented was a document actually executed by this testatrix and whether the appellant knew or believed it to be false.  The evidence before the court for the Crown was the evidence of the lady from the Treasury Solicitor to whom the document had been submitted.  She set out her experience in the bona vacantia department of the Treasury Solicitor.  She outlined that no claims on the estate had been made until the will had been submitted by the appellant's solicitors on 7 June 2011.  She then referred the will to a colleague.  She had been surprised by it because it was submitted so long after the death.  She noticed differences in font within parts of the document.  She had thought it was unusual that the original had been sent to the appellant and copies to the witnesses.  She was cross‑examined and she told the jury matters of straightforward law: that a will did not have to be in a particular format; there was a difference, she accepted, between a will that was invalid because of lack of capacity and because of falsity as such; she said it was not unusual for a person to make a claim after 11 years.  The concern had been originally because of the deceased's known absence of capacity at the date borne on the will document.  The estate had been advertised in local and national newspapers some six months after the death.  It was likely that it had been advertised, she thought, in Spain as well as in England because that is where the deceased had come from.  She told the court that the advertisements at the time would have included the value of the estate, although that practice had subsequently changed.  She said that she would have looked at the will before deciding whether to give up the Treasury Solicitor's interest in the estate, and she did think that the will was a possible forgery.  
9.	The Police Officer in the case gave evidence.  The appellant had been asked in interview, he said, about his background and his knowledge of the deceased; about the nature of the relationship; about whether the will he had supplied to the solicitors was the same he had received in the envelope; and he was asked about his address.  He offered no comment to all these questions.  The Officer had asked two other officers to attend the premises said to be at the addresses of the witnesses.  Nothing relevant had been found.  He said he was not the original reporting officer.  The case had been originally closed, but had been reopened on the invitation of the Treasury Solicitor.  He accepted there was no forensic evidence in support of the case that it was a false instrument.
10.	In those circumstances, at the close of the Crown's case, Miss Matheson, who appeared for the appellant at the trial as she has before us, submitted that there was no case for the appellant to answer.  She argued there was no evidence to show the document was not a will made by the deceased; the fact that it might have been invalid by reason of her incapacity was nothing to the point.  She submitted that that fact did not mean that the document had not actually been executed by her.  There was no forensic evidence, and suspicion about the circumstances in which the will had been presented was not, she argued, sufficient to enable a jury, properly directed, to be sure that the appellant was guilty of the offence charged.  
11.	The Crown for its part, through Mr Gibbons who appeared at trial as he has before us, relied upon the circumstances that we have mentioned as being sufficient evidence from which the jury could be sure that the will was false (that is, that it was not a will or purported will of Miss Gonzales).  It was argued that this was a case, albeit circumstantial, that should be left to the jury.  He tells us (although this is not clear from the judge's own summary of the argument) that he also mentioned the failure of the accused to answer questions when interviewed by the police.
12.	In dealing with the submission, the judge expressed himself shortly.  It is indeed, of course, a short point.  He said this:
"It seems to me that this is a case in which the jury must decide these competing submissions on the evidence.  Plainly my judgment is that a reasonably directed jury could reach a conclusion that they could be sure that this was a document which was false, in the sense that it was lying about itself in purporting to be a will from Ms Gonzalez, and in those circumstances I am quite satisfied that the case should proceed to the next stage." 
13.	On the present appeal, the point that is argued by Miss Matheson is that the judge was wrong to reject her submission of no case.  She repeats the arguments she raised before the learned judge.  The point arising was and is a short one, and the answer to it permits little more elaboration than the judge was able to give in his ruling.  
14.	The circumstances in which the will was produced were highly suspicious.  It was extraordinary that a document in the strange form that this will took should be produced 11 years after the deceased's death, having, on the defence case, been sent to him in an envelope some 13 or 14 years previously, which he did not open but consigned to his loft where it remained undisturbed until re‑found during a house‑clearance exercise.  The police could find no trace of either attesting witness.  On the defence case, the testatrix had consigned this original document to the post without any care as to what would happen to it and without seeking to make further contact with the appellant.  
15.	In short, we agree with the judge that there was indeed a case to answer.  It was a circumstantial case, but it was one proper for the jury to assess in the light of proper directions as to the burden and standard of proof.  For those reasons, we reject the ground of appeal that was advanced and for which leave was given.
16.	Mr Gibbons, as we have already suggested, submits in his skeleton argument that the judge would also have been entitled to take into account in assessing the no‑case submission the facts of the appellant's silence (as it is put in the skeleton argument) in his interview with the police, relying upon section 34 of the Criminal Justice and Public Order Act 1994, the well‑known statutory provision whereby inferences adverse to an accused may be drawn from a failure to answer questions in such circumstances.  This was not, however, a point relied upon by the judge in his ruling, as we have already indicated.  
17.	However, that submission by Mr Gibbons gave us cause to examine the circumstances in which the possibility of such an inference arose.  It is correct, as we have already noted, that the appellant did not answer questions in interview.  He said he was so advised by his solicitor.  However, he did provide a two‑page prepared statement in the terms which we have already outlined.  
18.	It will be recalled that the trigger for the application of the provisions of section 34 of the 1994 Act are provided in subsection (1) of that section, which provides as follows:
"(1) Where, in any proceedings against a person for an offence, evidence is given that the accused—
 (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings;
...
Being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be ..."
It is important to recall that the triggering provision is a failure to mention any fact relied on in his defence.  
19.	So far as we can see, up to the point where the appellant gave evidence he did not rely on any fact which was not mentioned in the prepared statement.  Accordingly, at the half‑time stage the point simply did not arise.  However, he did give evidence and his account, as related by the judge in his summing‑up at pages 33A to 38B of the transcript, did not, as we see it, deviate in substance from what he told the police in that prepared statement.  Naturally, the account given orally in the witness box was fuller than that given in the statement.  For example, he said that when he moved home in 1996 he told the deceased his new address but did not give her a telephone number.  He also said that during the search of his loft he had found an unopened letter from insurers enclosing a significant cheque, thus bolstering his apparently strange explanation that the important letter from the testatrix had gone unopened for so long.  However, the substance of what he said had happened did not vary from the earlier prepared statement.  
20.	When the judge came to sum up the case, he gave the jury a direction pursuant to section 34 of the Act along very standard lines.  The important passages for present purposes are to be found at page 20B to C in these terms:
"There is then the question of his failure to answer questions in the police interview.  Before his interview, the defendant was cautioned.  He was first told that he need not say anything, and it was therefore his right to remain silent.  But he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court, and that anything he did say might be given in evidence.  
Now, as part of his defence in this trial, the defendant has relied upon the following facts: firstly, that he knew Juana Gonzalez, having met her and helped her in the Uxbridge Road with her shopping, and gone home with her, and then befriended her, and met her ‑‑ in passing he had called on her once a month or so for a period of time, but he had not seen her for some years; secondly he told you that the will, this document at page 4, had arrived in an envelope some 13 years or so ago, but he had not opened the envelope; and thirdly, he said that he had recently found the will in the loft, when they were clearing the loft." 
21.	It seems to us to note at this stage that every one of the facts there identified by the judge as being relied upon by the appellant at trial had been mentioned in the prepared statement.  The judge made no mention of the additional matters that we have just mentioned, nor certain other matters (to which we will shortly refer) of which Mr Gibbons has informed us today became relevant.
22.	Straight after the passage that we have just read, the judge went on to says this at the bottom of page 20 at H through to 21 at C:
"The prosecution argue that if there was any truth in his defence now put forward in this trial, then the defendant would have mentioned those facts to the police as soon as he was questioned, and that the only reason for not mentioning his defence must have been that he did not then in that interview have an answer to give."
But by definition he had mentioned those facts: they were all in the prepared statement.
23.	Again, at the bottom of page 21 starting at letter F over to page 22 at letter B, the judge mentions again the circumstances that the defendant had related in the statement and in evidence.  He said this:
"So the first question you have to consider is whether in the circumstances the defendant could reasonably have been expected to tell the officers that he knew Juana Gonzalez, he had met her in the Uxbridge road, helped her with her shopping, befriended her, seen her once a month or so, and that the envelope had arrived 13 years ago, unopened, put up into the loft, and that he had recently found it and opened the envelope and found the will.  So the question is whether in the circumstances he could reasonably have been expected to tell the police that when he was being asked questions."
Again, those matters were all mentioned in the prepared statement.
24.	In the circumstances, those enquiries and those passages in the summing‑up that we ascertained From the papers led us to ask counsel how it was that a section 34 direction came to be given at all.  Miss Matheson was at first unable to recall the precise circumstances, and Mr Gibbons helped us to some extent by saying that he had invited the judge, before speeches, to say that this was a case in which, although a statement had been given, the accused had expanded upon that statement in the evidence that he had given.  He had added things such as the reason that his being in the area where the deceased lives was because he played football there regularly and that he dropped in on her occasionally (that, of course, was in the statement), and also that he had got friends to look in on the deceased.  Mr Gibbons said that he invited the learned judge to give a more tailored direction in respect of those expansions on the appellant's account, but, as we have shown from the passages that we have read, that is not what the learned judge did.  What he did do, rather than reciting facts which this appellant was relying upon in his defence which he had not mentioned, recited a series of facts that he had mentioned in the prepared statement, precisely the opposite of what was required by the circumstances of the case.
25.	At the end of summing‑up, the learned judge, as some judges do, invited counsel to comment on areas in which he may have failed to deal with matters as he should, but neither counsel took up the invitation to amplify, correct or supplement the summing‑up that the learned judge had given.  It seems to us that it is highly arguable that no adverse inference direction should have been given in this case at all.  It certainly should not, in our judgment, have been given in the form that it was, because it drew to the attention of the jury not new facts relied upon by the appellant but old facts that had been relied upon by him in interview.  In essence, the appellant had not relied on facts not mentioned when questioned in any significant sense, save in the two respects that we have already identified in this judgment.  
26.	This was a case in which in strange circumstances (the production of the will as we have outlined), the credibility of a man of good character was in issue.  The judge gave a good character direction immediately followed by a direction, five pages in length, under section 34.  That direction could only tend to undermine that credibility in a very significant way.  We have listened carefully to Mr Gibbons' submission that the case was highly suspicious; it was an overwhelming case, he submitted, on the circumstantial evidence.  We can see the force that the Crown had in putting such an argument before the jury.  However, this was a case that depended essentially upon the appellant's credibility.  To give a direction at all in questionable circumstances under section 34 was unfortunate; to give it in terms that were substantially inaccurate was even more unfairly prejudicial to this appellant.
27.	In the end, therefore, we consider that the conviction in this case is unsafe and must be quashed on the grounds that we have identified, rather than those for which leave was initially given.  
28.	We would emphasise that this case has thrown in stark relief the importance of counsel discussing with a judge, prior to speeches, the precise ambit of any direction that is to be given pursuant to section 34 of the 1994 Act.  It is the experience of those sitting in this court that it is usual for counsel to identify the specific facts relied upon by a defendant in his case at trial, over and above anything that may have been said in interview, and any respect in which the account given at trial varies from that which was put in any prepared statement or in any answers given in interview.  That must be done with some care, identifying the individual features that are to be pointed out specifically to the jury in the summing‑up.  We would hope that that would be noted in any future circumstances where this arises.
29.	For the reasons, however, that we have given, we allow the appeal and quash the conviction.