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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Henwood, R. v (Rev 1) [2014] EWCA Crim 2615 (10 December 2014) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2014/2615.html Cite as: [2014] EWCA Crim 2615 |
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ON APPEAL FROM CROWN COURT LIVERPOOL
His Honour Judge Wright
T20127664
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE KENNETH PARKER
and
MRS JUSTICE MCGOWAN DBE
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REGINA |
Respondent |
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- and - |
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CHERYL FIONA HENWOOD |
Appellant |
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Louise Brandon (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 5th November 2014
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Crown Copyright ©
Lady Justice Rafferty :
"The heart of the prosecution case appears to have been not whether or not the marriage was stable, but whether or not the applicant acted dishonestly in not declaring that her husband was living at her address."
"The convictions on each count of the indictment, are unsafe.
(a) The trial proceeded upon the basis that records had been destroyed and / or were missing when the relevant department of state held records which substantially undermined central planks of the prosecution case;
(b) The prosecution and/ or the investigators either failed to make proper enquiry so as to discover the said documents or failed to disclose them when it was obvious they would either undermine the case for the prosecution or assist that for the Applicant;
(c) Their availability for the Applicant to deploy was of fundamental importance.
(d) In directing the jury as to whether the Applicant and her husband were a couple, the judge misdirected the jury in that he failed to pay heed to the terms of s. 3(5) Tax Credits Act, 2002;
(e) The jury was led to act under a false premise, i.e. that there were no more records available relevant to the issues"
The suggested error in the summing-up as to tax credits.
The statutory framework.
"a man and a woman who are married to each other and are neither:
i) Separated under a court order;
ii) Separated in circumstances in which the separation is likely to be permanent."
"Is that a difficult concept? If you're married, or a man and woman living together you must claim jointly. Why? Let's think about this, and it's entirely a matter for you. But the tax authorities aren't concerned about whether you share a bed and have sexual intercourse on a frequent basis. This form's about money. And when you're talking about money and when you're seeking to get a tax credit in respect of money, the State's concerned about money, isn't it? Your money. And if you're a mum on your own, there's your money. You declare it. If you're married you know as a legal consequence of being married there are obligations of maintenance that arise, therefore money is either because you are actually living together, pooling of money, therefore your husband, if you're married, or your partner, if you're living together, is there as an available resource to provide money and the State would want to know that before giving you a tax credit. As I say, if you are married there are legal obligations which can apply if you're living with your spouse, you are there to provide it, but if you are living somewhere else you have a legal obligation, and so the State would want to know what your means are, because whether it's child benefit or child maintenance, or whatever it is, the State would want to know about it. So these aren't prying into personal lives; it's about money, isn't it? And that's why you may think - but it's a matter for you - that the form makes the difference between marriage -- you've got to claim jointly -- or, if you're not married but you're living with someone, you have to claim jointly."
"But what about the other words "knowingly concerned in a fraudulent activity" and "dishonest completion" and "falsely declaring"? Where does that factor in? Well as I have said to you the one core issue that underlines the bulk of the evidence in this case – it is not the exclusive issue but the core one – is about her relationship with her husband and whether they were a couple or were separated, living in the same household"
Fresh Evidence
"And, she said "I was advised to claim as an individual because I was separated. And, as I said to you when I went through the indictment, members of the jury, if you're sure that she got that advice, then she can't have been acting dishonestly, whether it was right or wrong advice. If you think she may have got advice to that sort which she acted upon, then, again, you can't be sure she was acting dishonestly, you find her guilty (sic). It's only if you are sure that she's invented this to justify what she did, you reject her evidence on this aspect, that you can come to the conclusion that she knowingly, deliberately, dishonestly made these claims that then, and only in those circumstances, that you find her guilty."
"The Crown ("C") "……….at no stage at any section on this form did you confirm that you were married, there's nothing relating to your marriage on this form is there?"
The Applicant ("A") I spoke to the [helpline] who again I shared my circumstance with her and I told her I was married, I'm separated and had three disabled children that we needed help with.
C "You don't mention in [that call]… anything about the relationship restarting temporarily do you?
A……..there must be another call because I do remember …….making a couple of calls around that time.
C "You're talking about a temporary arrangement you say whilst he gets over an illness and you appreciated that that was something you needed to let HMRC know about?
A Yes………But I had let them know in another call as well I remember.
C "……….that conversation you say took place some time before you started claiming tax credits because you wanted to make sure you were putting the right information down on the form?
A Yes
C And we know from the agreed facts…..the first call came in …14th January 2003?....
A No I remember having a conversation in 2004 and I remember having several around the time I did put the claim form in whether they were before or just after I remember it was around 2004 that I did make calls…………
The judge ("J") …your case is that ………there was a call when you discuss "well I'm married my husband's in the same house as me but we're separate and apart in the same house"…..and that person said "oh well you can put yourself down as a single respondent in those circumstances"?......Was that a conversation that happened once or did you raise it and someone said "Well I don't know"?
A I did raise it in 2004
J ………you said there was a conversation before January 2003….when you raised this topic…….and when you spelt [it] out……..what was the answer ……?
A …….I think…she advised me to claim as an individual and that was on the first claim………
J So your predicament about how you dealt with the situation was unanswered you say by the helpline adviser?
A Yes
J Why did you raise it again?........Even though you'd already got firm advice of what you should do in the first telephone call?
A This was a new claim in 2004
C …….nowhere in that call do you suggest that your husband was …living with you but in the arrangement that you have now told the jury about?
A Not on this one but it was ..around the February that I ran through the circumstances.…
C You make no reference either……to …a conversation with somebody previously in which you have explained your circumstances in the way you're now telling the jury?
A ……….I remember bringing it up with an adviser that I'd spoke to someone several times……I just remember getting quite…annoyed really that I kept on having to phone up checking that my circumstances have not been changed ………..I didn't go through my change of circumstances every time because…on a couple of occasions…someone had advised me to claim single and I accepted that and I didn't need to raise it again.
C …….you did discuss that on a number of occasions?
A I think I did it in the first claim and I did it in around …….January February with the second claim…..I may have phoned up a couple of months later about another change of circumstances and to get advice……..I know I made the phone calls…..and I was led to believe it would be in my file or computer system….I know I made these phone calls….
C Where are the calls dealing with the moving in and out?
A …I did speak to an adviser around that time and I remember saying he had moved back in ..and she said……you don't have to tell us unless you become a couple……It was around about the February…….the time just before this or around that May………"
"GENERAL Unable to contact by phone. Case b/f…"
"(i)…Phoned app but no reply. LFC sent requesting confirmation that ex-partner is now permanently resident. Mc TPO CDF"
"Ex partner moved in. Household breakdown.TC600 sent for fresh claim – TPO Cardiff."
"App cld to query the amount of awards she has received advise if she is not happy to put it in writing."
"Adviser ("Ad") You haven't had a household breakdown or anything….have you"
A Yes I have I had one a couple of years ago.
Ad Yeah but when you've been claiming tax credits
A Yes I have …I've always been on my own with the children….Yes the whole time, my partner came back for a couple of weeks due to an illness and this was all rectified. I told the tax people it was for a couple of weeks. They stopped it because of that then they put it back in writing…………I told them in February March what was going on. I told them over the phone and I put it in writing to them…………it was about the end of February I cant remember the exact date."
"As evidenced now, I contacted HMRC helpline 20th April 2004 and informed them of a change of circumstances those changes being that GH had moved in to 16 Heythrop Drive"